PROCEDURE

The case originated in an application (no. 7369/04) against the Federal Republic of Germany lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a German national, Mr Hans-Jürgen Deiwick (“the applicant”), on 19 February 2004.

The German Government (“the Government”) were represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice.

On 27 May 2008 the President of the Fifth Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 3).

Judge Jaeger, the judge elected in respect of Germany, withdrew from sitting in the case (Rule 28 of the Rules of Court). On 20 June 2008, the Government, pursuant to Rule 29 § 1 (a), informed the Court that they had appointed in her stead another elected judge, namely Judge Mark Villiger.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

1. Background to the case

The applicant was born in 1923 and lives in Hamburg.

From 1970 he practised as a physician affiliated to the statutory public health insurance scheme.

In 1992 the Health Care Reform Act (Gesundheitsstrukturgesetz) amended the relevant provisions of the Social Security Act, Book V (Sozialgesetzbuch V) and introduced a retirement age of 68 for those medical practitioners who were affiliated to the statutory public health insurance scheme with effect from 1 January 1999 (see “Relevant domestic law” below).

2. Proceedings before the domestic authorities

On 11 May 1998 the Hamburg Regional Registration Committee for Physicians (Zulassungausschuss für Ärzte) decided that according to section 95 § 7 of the Social Security Act, Book V (see “Relevant domestic law” below) the applicant’s authorisation to practise as a physician under the statutory public health insurance scheme would expire on 1 January 1999 as the applicant already had reached his 68th birthday prior to that date.

On 27 July 1998 the applicant lodged an administrative appeal against that decision, which the Hamburg Appeals Board for Physicians (Berufungsausschuss) dismissed on 30 September 1998.

On 19 November 1998 the applicant brought an action before the Hamburg Social Court to have the previous decisions annulled without submitting his statement of claim.

On 21 December 1998 the applicant, without awaiting the outcome of the proceedings before the Social Court, lodged a constitutional complaint which the Federal Constitutional Court refused to admit on 15 February 1999.

On 21 May 1999 the applicant submitted a statement of claim to the Hamburg Social Court which it forwarded to the defendant on 16 July 1999.

On 21 December 1999 the Social Court forwarded the defendant’s statement of 26 July 1999 to the applicant.

On 18 February 2000 the Social Court forwarded the defendant’s further statements of 18 January 2000 to the applicant and requested him to comment on them which the applicant did on 3 September 2001.

Between 21 September 2001 and 22 May 2002 the case file was erroneously stored in the Social Court’s archives.

On 17 October 2002 the Social Court informed the applicant that it intended to render a decision (Gerichtsbescheid) without holding an oral hearing and invited the applicant to submit written comments within one month. On 15 November 2002 the applicant submitted his comments.

On 20 August 2003 the Hamburg Social Court dismissed his action, referring to the established case-law of the Federal Constitutional Court according to which the introduction of a compulsory retirement age for doctors had been compatible with the Basic Law (Grundgesetz).

On 23 September 2003 the Social Court served that decision on the applicant.

3. Proceedings before the Court

On 18 August 1999 the applicant lodged his first application with the Court, alleging that the revocation of his authorisation to practise as a physician under the statutory public health insurance scheme violated his rights under Article 14 of the Convention and Article 1 of Protocol No. 1.

On 20 May 2003 the Court declared his application (no. 55004/00) inadmissible for being manifestly ill-founded.