Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

Application No. 12856/87

E. van WIJK B.V.

against

the NETHERLANDS

REPORT OF THE COMMISSION

(adopted on 7 July 1992)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-18) ......................................... 1

A. The application

(paras. 2-5) .................................. 1

B. The proceedings

(paras. 6-13) ................................. 1

C. The present Report

(paras. 14-18) ................................ 2

II. ESTABLISHMENT OF THE FACTS

(paras. 19-26) ........................................ 3

III. OPINION OF THE COMMISSION

(paras. 27-43) ....................................... 5

A. Complaint declared admissible (para. 27) ..... 5

B. Point at issue (para. 28) ..................... 5

C. Applicability of Article 6 para. 1

of the Convention (paras. 29-33) .............. 5

D. Compliance with Article 6 para. 1

(paras. 34-42) ................................. 5

E. Conclusion (para. 43) .......................... 7

APPENDIX I : HISTORY OF THE PROCEEDINGS .................. 8

APPENDIX II : DECISION ON THE ADMISSIBILITY ............... 10

I. INTRODUCTION

1. The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The application

2. The applicant, E. van Wijk B.V., is a Dutch private company with

limited liability having its seat at Genderen, the Netherlands.

3. In the proceedings before the Commission, the applicant company

was represented by Mr. W.J. Wortelboer, succeeded by Mr. L. de Jong and

Mr. R.B.H.M. Casander, who are lawyers practising in Amsterdam.

4. The application is directed against the Netherlands. The

Netherlands Government were represented by their Agent,

Mrs. D.S. van Heukelom, succeeded by Mr. K. de Vey Mestdagh, both of

the Netherlands Ministry of Foreign Affairs.

5. The applicant company complains that it did not have access to

an independent and impartial tribunal for the determination of its

civil rights since the Crown, which dealt with its case, does not meet

these requirements.

B. The proceedings

6. The application was introduced on 31 March 1987 and registered

on 15 April 1987.

7. On 2 May 1989 the Commission decided to give notice of the

application to the respondent Government, and to invite them to

present, before 8 September 1989, their written observations on the

admissibility and merits of the application.

8. After an extension of the time-limit, the observations of the

Government were submitted on 13 September 1989.

9. The applicant company was invited to submit observations in reply

before 3 November 1989. Following an extension of the time-limit, it

submitted its observations in reply on 24 November 1989.

10. On 2 September 1991 the Commission referred the application to

a Chamber.

11. On 10 September 1991 the Commission (Second Chamber) declared the

application admissible. The parties were invited, should they so

desire, to submit further evidence and observations on the merits of

the application.

12. After an extension of the time-limit, the Government submitted

their further observations on 18 December 1991, followed by the

applicant's on 23 December 1991.

13. In their observations of 18 December 1991 the Governement,

referring to the Oerlemans judgment (Eur. Court H.R., Oerlemans

judgment of 27 November 1991, Series A no. 219), maintained the view

that the domestic remedies were not exhausted. However, the Commission

found no basis for declaring the application inadmissible under

Article 29 of the Convention.

14. After declaring the case admissible, the Commission, acting in

accordance with Article 28 (b) of the Convention, placed itself at the

disposal of the parties with a view to securing a friendly settlement

of the case. In the light of the parties' reactions, the Commission

now finds that there is no basis upon which a friendly settlement can

be effected.

C. The present Report

14. The present Report was drawn up by the Commission (Second

Chamber) in pursuance of Article 31 para. 1 of the Convention and after

deliberations and votes, the following members being present:

MM. S. TRECHSEL, President of the Second Chamber

G. JÖRUNDSSON

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

MM. F. MARTINEZ RUIZ

L. LOUCAIDES

J.-C. GEUS

15. The text of this Report was adopted by the Commission on

7 July 1992 and is now transmitted to the Committee of Ministers of the

Council of Europe, in accordance with Article 31 para. 2 of the

Convention.

16. The purpose of the Report, pursuant to Article 31 para. 1 of the

Convention, is

1) to establish the facts, and

2) to state an opinion as to whether the facts

found disclose a breach by the State concerned

of its obligations under the Convention.

17. A schedule setting out the history of the proceedings before the

Commission is attached hereto as Appendix I, and the Commission's

decision on the admissibility of the application as Appendix II.

18. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

A. Particular circumstances of the case

19. On 13 May 1982, the applicant company applied to the Municipal

Authorities for a licence under the Nuisance Act (Hinderwet) to

construct, to bring into operation and to exploit storage space, a

repair device for motor vehicles and three underground oil tanks, all

of which it had apparently been using for a number of years.

20. By letter of 5 August 1982 the Waterworks Company "Noord-West-

Brabant" raised objections (bezwaar) against the application and the

draft decision of the Municipal Authorities.

21. On 17 February 1983 the Municipal Authorities granted the licence

subject to certain conditions.

22. The Waterworks Company lodged an appeal against the decision of

the Municipal Authorities with the Crown in March 1983. In a public

hearing before the Administrative Litigation Division of the Council

of State (Afdeling voor de geschillen van bestuur van de Raad van

State), the applicant company submitted that it had a right to

compensation if the Crown would take a decision which would cause

damages to the applicant company.

23. On 1 October 1986 the Crown, in accordance with the advice of

the Administrative Litigation Division of the Council of State, decided

that the Municipal Authorities had rightly granted the licence under

the Nuisance Act, but amended several of the attached conditions. It

provided that the oil should be stored above ground and that part of

the company's site should be provided with a non-porous soil covering

in order to protect the water-supply.

B. Relevant domestic law and practice

24. Pursuant to the Benthem judgment (Eur. Court H.R., judgment of

23 October 1985, Series A no. 97), in which the Court held that the

Crown is not a tribunal within the meaning of Article 6 para. 1 of the

Convention, the Dutch legislation has been amended by the Provisional

Act on Crown Appeals (Tijdelijke Wet Kroongeschillen). This Act came

into force on 1 January 1988. In order to comply with the Benthem

judgment before 1 January 1988, the Supreme Court (Hoge Raad) has

decided that, pursuant to a well-established rule under Dutch law, the

interested party may file an appeal with the civil courts after a

decision of the Crown. The civil court has the right to conduct an

independent examination of the case, including the contentious issue

already decided by the Crown (Hoge Raad 12 December 1986, NJ 1987/381).

This case-law has been confirmed by subsequent judgments (e.g. Hoge

Raad 6 February 1987, NJ 1988/926).

25. The above-mentioned rule is derived from the traditional

competence of the Dutch civil courts to grant relief against the

administration where no other relief is available. This competence is

based on the Constitution and on the Act on the Organisation of the

Judiciary of 1827 (Wet op de Rechterlijke Organisatie).

26. An extensive case-law was developed by the Supreme Court over the

last decades, supported by several authorities, to the effect that

where an administrative appeal would not offer sufficient guarantees

of a fair procedure, the civil courts are competent to examine the

lawfulness of the administrative decision against which the appeal

lies.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

27. The Commission has declared admissible the applicant company's

complaint that its case was not judged by an independent and impartial

tribunal.

B. Point at issue

28. Accordingly, the issue to be determined is whether there has been

a violation of Article 6 para. 1 (Art. 6-1) of the Convention.

C. Applicability of Article 6 para. 1 (Art. 6-1) of the Convention

29. The first issue to be decided is whether Article 6 para. 1

(Art. 6-1) of the Convention applies to the proceedings at issue.

30. Article 6 para. 1 (Art. 6-1) of the Convention states, insofar

as relevant:

"In the determination of his civil rights and obligations ...,

everyone is entitled to a ... hearing within a reasonable time

by an independent and impartial tribunal ..."

31. The parties agree that Article 6 para. 1 (Art. 6-1) applies to

the proceedings at issue.

32. The Commission recalls the findings of the Court in the Benthem

case (Eur. Court H.R., Benthem judgment of 23 October 1985,

Series A no. 97, para. 36) that Article 6 para. 1 (Art. 6-1) of the

Convention applies to proceedings concerning applications for a licence

under the Nuisance Act.

33. Article 6 para. 1 (Art. 6-1) is therefore applicable to the

proceedings in the present case.

D. Compliance with Article 6 para. 1 (Art. 6-1)

34. The Commission must therefore examine whether the applicant

company had access to an independent and impartial tribunal for the

determination of its civil rights.

35. The applicant company submits that it did not have access to a

court for the determination of its civil rights, the appeal procedure

before the Crown not involving an independent and impartial tribunal

within the meaning of Article 6 para. 1 (Art. 6-1). It did not bring

an action before the civil courts after the Crown's decision, since the

entire duration of the proceedings would not be "within a reasonable

time" and the high costs attached to these proceedings, which are never

fully covered by legal aid, deprived them of their effectiveness. In

addition, when the Crown proceedings were instituted in the present

case, the possibility of starting civil proceedings did not yet exist,

or at least it could not yet be considered as a clearly defined appeal

procedure at that time. Moreover, one single decision of the Supreme

Court does not amount to well-established case-law. The Supreme

Court's first decision in this sense was only published on 9 May 1987.

36. The Government submit that according to the Benthem judgment the

administrative appeal to the Crown could no longer be considered to

offer sufficient guarantees of a fair procedure. However, in the

Oerlemans judgment (Eur. Court H.R., Oerlemans judgment of

27 November 1991, Series A no. 219, para. 56) the Court has accepted

that under Dutch law a civil court can carry out a full examination of

any administrative decision coming within the scope of Article 6

(Art. 6) against which an appeal to the Crown lies, but which is

considered not to satisfy the requirements of Article 6 (Art. 6).

Therefore the applicant company could and still can submit its dispute

to the civil courts for examination. As the applicant company did not

seize the civil courts, its complaint about the total length of the

proceedings is one in abstracto and should therefore be rejected. In

any event, it could have applied for legal aid under the Dutch legal

aid scheme. Moreover, the applicant company could have submitted these

complaints for examination to the civil courts.

37. The Commission observes that the applicant company claims to have

been a victim of a violation of Article 6 para. 1 (Art. 6-1) in the

past, in that it did not have access to an independent and impartial

tribunal for the determination of its civil rights; this situation

prevailed during the first part of the national proceedings starting

on 13 May 1982 and ending on 23 October 1985 when the European Court

of Human Rights rendered its judgment in the Benthem case. Then it

became clear that the Crown could not be considered as a lawful court.

This meant that after the Crown's decision further proceedings before

the civil courts became possible, as held by the Supreme Court in two

judgments invoked by the Government (Hoge Raad 12 December 1986,

NJ 1987/381 and Hoge Raad 6 February 1987, NJ 1987/926).

38. The Commission notes that under the Supreme Court's new case-law

the applicant company could institute new proceedings which would start

before a civil court of first instance.

39. The Commission notes that, prior to the Benthem judgment, several

legal writers in the Netherlands had already argued that the Crown

proceedings did not meet the requirements of Article 6 (Art. 6) of the

Convention. If this proposition was right, the consequence would be (1)

that the appeal to the Crown could no longer be said to be an

administrative appeal which "offers sufficient guarantees" as to a fair

procedure and (2) that accordingly the civil courts would be free to

examine the lawfulness of any decision of the administration coming

within the province of Article 6 (Art. 6) of the Convention against

which an appeal to the Crown lies. After the Benthem judgment this

view was generally accepted and was confirmed by the decision of the

Supreme Court of 12 December 1986 in which it held that the civil

courts are able to examine the lawfulness of any administrative

decision coming within the scope of Article 6 (Art. 6) against which

an appeal lies to the Crown.

40. The European Court of Human Rights has accepted this rule in its

Oerlemans judgment (ibid., para. 56):

"Under Netherlands law a civil court can carry out a full

examination of all acts of the administration in the light, inter

alia, of principles of administrative law, can award damages for

torts committed and can grant injunctions against the

administration (...)".

41. The applicant company could therefore have seized the civil

courts after the Royal Decree of 1 October 1986.

42. It follows that the applicant company did have access to an

independent and impartial tribunal for the determination of its civil

rights.

E. Conclusion

43. The Commission concludes by 9 votes to 1 that there has been no

violation of Article 6 para. 1 (Art. 6-1) of the Convention.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

APPENDIX I

HISTORY OF PROCEEDINGS

Date Item

_______________________________________________________________________

31 March 1987 Introduction of application

15 April 1987 Registration of application

Examination of admissibility

2 May 1989 Commission's decision to

invite the Government to

submit their observations on

the admissibility and merits

of the application

4 September 1989 Time-limit extended until

18 September 1989 at

Government's request

13 September 1989 Government's observations

31 October 1989 Time-limit extended until

24 November 1989 at

applicant's request

24 November 1991 Applicant's observations in

reply

2 September 1991 Commission's decision to

refer the application to the

Second Chamber

10 September 1991 Commission's decision to

declare the complaint under

Article 6 para. 1 admissible

3 October 1991 Parties invited, should

they so desire, to submit

further observations on the

merits of the application

Examination of the merits

6 November 1991 Time-limit extended until

31 December 1991 at

Government's request

18 December 1991 Further observations by the

respondent Government

23 December 1991 Further observations by the

applicant on the merits of

the application

12 March 1992 Applicant's request for

leave to comment on

Government's further

observations

2 April 1992 Request granted

23 April 1992 Applicant requests extension

time-limit until 28 May 1992

28 April 1992 Extension until 16 May 1992

7 July 1992 Commission's deliberations

on the merits, final vote

and adoption of the Report

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E. VAN WIJK B.V. v. THE NETHERLANDS

E. VAN WIJK B.V. v. THE NETHERLANDS

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