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TECHNISCH INSTALLATIEBUREAU VAN DER MOEZEL B.V. v. THE NETHERLANDS

Doc ref: 26330/95 • ECHR ID: 001-3387

Document date: December 13, 1996

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TECHNISCH INSTALLATIEBUREAU VAN DER MOEZEL B.V. v. THE NETHERLANDS

Doc ref: 26330/95 • ECHR ID: 001-3387

Document date: December 13, 1996

Cited paragraphs only

Application No. 26330/95

by Technisch Installatiebureau

Van Der Moezel B.V.

against the Netherlands

The European Commission of Human Rights (Second Chamber) sitting

in private on 3 December 1996, the following members being present:

Mrs. G.H. THUNE, President

MM. J.-C. GEUS

G. JÖRUNDSSON

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

Ms. M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 19 December 1994

by Technisch Installatiebureau Van der Moezel B.V. against the

Netherlands and registered on 27 January 1995 under file No. 26330/95;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a company with limited liability, having its

registered seat in Schiedam, the Netherlands. Before the Commission,

the applicant company is represented by Mr G.J. Schipper, a lawyer

practising in Rotterdam.

The facts of the case, as submitted by the applicant company, may

be summarised as follows.

In 1985 the applicant company subcontracted certain works to

another company S. and paid a total amount of 45.282,45 Dutch guilders

for social security contributions to a special bank account held by S.

for this purpose, a so-called "G-account" (G-rekening) within the

meaning of Section 16 (b) para. 5 of the Social Security Co-ordination

Act (Coördinatiewet Sociale Verzekeringen).

On 16 September 1986 S. was declared bankrupt. It then appeared

that S. had not or not fully paid the social security premiums due in

the year 1985 to the Occupational Association for the Metal Industry

(Bedrijfsvereniging voor de Metaalnijverheid). The Occupational

Association, together with the Inspectorate of Wage Taxes (Inspectie

Loonbelasting), subsequently started an investigation into the amount

of S.'s debt to the Occupational Association and the possibilities of

obtaining redress. In this context, agents of both organs inspected the

applicant company's premises and accounts in the beginning of 1987.

The investigation was closed on 6 August 1987. In the report on

the investigation it was concluded that the applicant company, together

with fifteen others, could be held jointly and severally liable for the

debts of S. in respect of the social security contributions.

By letter of 26 October 1989, the Occupational Association

informed the applicant company of its intention to hold the applicant

company liable for payment of a part of S.'s social security

contributions debt. The applicant company was invited to submit its

possible objections within four weeks. The applicant company submitted

an objection by letter of 20 November 1989 without indicating any legal

grounds. It was explained that for the time being the company was

unable to comment on the merits of the case, as it could not reach its

former director.

On 21 December 1990 the Occupational Association issued a formal

decision in which the applicant company was held liable for a part of

S.'s social security contributions debt.

On 18 January 1991 the applicant company filed an appeal against

this formal decision with the Appeals Tribunal (Raad van Beroep) of

Rotterdam. Its grounds of appeal were submitted on 15 August 1991.

The Occupational Association replied to these grounds on 12

November 1991. The applicant company submitted a counter-memorial on

3 January 1992.

Following a change in procedural rules of administrative law, the

examination of the applicant company's appeal was transferred on 1 July

1992 from the Appeals Tribunal to the Administrative Law Division of

the Regional Court (Sector Bestuursrecht Arrondissementsrechtbank) of

Rotterdam.

On 27 May 1993, following a hearing, the Administrative Law

Division of the Regional Court of Rotterdam rejected the appeal as ill-

founded. A copy of this decision was sent to the parties on 9 June

1993. The applicant company filed an appeal against this decision with

the Central Appeals Tribunal (Centrale Raad van Beroep) on 5 July 1993.

One of its grounds of appeal was that the period of time which had

elapsed between 6 August 1987, when the investigation was closed, and

26 October 1989, when the Occupational Association informed the

applicant company for the first time of its intention to seek payment,

constituted an unreasonable delay contrary to Article 6 para. 1 of the

Convention.

On 5 November 1993 the Central Appeals Tribunal transmitted the

applicant company's grounds of appeal to the Occupational Association

for comments. These comments were submitted on 18 January 1994.

Following a hearing held on 18 May 1994, the Central Appeals

Tribunal rejected the appeal on 22 June 1994 and upheld the Regional

Court's decision of 27 May 1993. As regards the complaint under Article

6 para. 1 of the Convention, the Central Appeals Tribunal held that the

Occupational Association's course of action concerning its liability

claim against the applicant company could not really be labelled

expeditious. It did not, however, find that as a consequence thereof

the Occupational Association's claim should be rejected.

COMPLAINTS

1. The applicant company complains under Article 6 para. 1 of the

Convention that its civil rights and obligations have not been

determined within a reasonable time. It complains in particular of the

delay which occurred between the investigation of its premises and

accounts in the beginning of 1987 and the written liability claim of

26 October 1989 and the further delay between the letter of 26 October

1989 and the formal decision which was issued on 21 December 1990.

2. The applicant company further complains that, since the

Occupational Association was able to delay the access to a court of

appeal by withholding the formal decision, it had been deprived of a

fair hearing within the meaning of Article 6 para. 1 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 19 December 1994 and registered

on 27 January 1995.

On 11 April 1996 the Commission decided to communicate the

application to the respondent Government.

In a letter dated 9 July 1996 the Government informed the

Commission that they were prepared to consider a friendly settlement

with the applicant company on the basis that they would reimburse the

costs incurred by the applicant company in the proceedings before the

Commission insofar as they were reasonable and specified and not

covered by legal aid paid for by authorities in the Netherlands and/or

by the Council of Europe, and that they would pay the applicant company

an ex gratia sum of 2,500 Dutch guilders.

On 16 October 1996 the applicant company confirmed that as a

consequence of the settlement with the Government it wished to withdraw

the application.

REASONS

Having regard to Article 30 para. 1 (a) of the Convention, the

Commission notes that, by letter of 16 October 1996, the applicant

company informed the Commission that it does not intend to pursue its

application since it has reached a settlement with the respondent

Government. The Commission finds no special circumstances regarding

respect for human rights as defined in the Convention which require

examination of the application to be continued, in accordance with

Article 30 para. 1 in fine of the Convention.

For these reasons, the Commission, unanimously,

DECIDES TO STRIKE THE APPLICATION OUT OF ITS LIST OF CASES.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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