AS TO THE ADMISSIBILITY OF

                      Application No. 21491/93

                      by Beleggings- en Beheersmaatschappij

                      INDIANA B.V.

                      against the Netherlands

     The European Commission of Human Rights (Second Chamber) sitting

in private on 29 November 1995, the following members being present:

           Mr.   H. DANELIUS, President

           Mrs.  G.H. THUNE

           MM.   G. JÖRUNDSSON

                 J.-C. SOYER

                 H.G. SCHERMERS

                 F. MARTINEZ

                 L. LOUCAIDES

                 J.-C. GEUS

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 J. MUCHA

                 D. SVÁBY

                 P. LORENZEN

           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 8 December 1992

by Beleggings- en Beheersmaatschappij INDIANA B.V. against the

Netherlands and registered on 10 March 1993 under file No. 21491/93;

     Having regard to :

-    the reports provided for in Rule 47 of the Rules of Procedure of

     the Commission;

-    the observations submitted by the respondent Government on

     23 November 1994 and the observations in reply submitted by the

     applicant on 12 April 1995;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicant is a Dutch company with limited liability, whose

registered seat is in Rotterdam. The applicant company is represented

before the Commission by Mr. A.D. Lindenbergh, a lawyer practising in

Rotterdam.

     The facts, as presented by the parties, may be summarised as

follows.

a.   Particular circumstances of the present case

     Since 1984, the applicant company has been the owner of a plot

of land situated in an industrial area in the municipality of

Vlissingen. Before 1984, the plot was owned by the N.V. Metaalmaat-

schappij Cracau, which, until 1974, used it as a depot for metals. From

1974 to 1980 Cracau rented the plot to the company B.V. Nickel and

Tungsten Alloy Manufacturing Co. Maxalloys, which regained metals from

waste products.

     From 1979 onwards, the municipality of Vlissingen had been

negotiating with the owners of the above-mentioned plot over the

purchase thereof by the municipality.

     In 1982, the municipality of Vlissingen carried out a preliminary

examination of the soil of the plot. This examination showed that the

soil and the groundwater were polluted by heavy metals and oil. In 1985

the municipality of Vlissingen instructed the company Grontmij N.V. to

carry out a formal investigation of the soil pursuant to the Interim

Act on Soil Cleaning (Interimwet bodemsanering). The results of this

investigation were made public in June 1986. On the basis of the

investigation, the Provincial Executive (Gedeputeerde Staten) of

Zeeland decided that the soil should be cleaned. In the provincial soil

cleaning programme for 1989 the plot was indicated as being subject to

the Interim Act on Soil Cleaning.

     The pollution of the soil, the cleaning operation, the costs

thereof, and the liability of the applicant were important elements in

the negotiations between the municipality of Vlissingen and the owners

of the plot.

     In 1988, the Ministry of Housing, Regional Planning and

Environment (Ministerie van Volkshuisvesting, Ruimtelijke Ordening en

Milieubeheer, hereinafter referred to as the "Ministry") seized the

plot for security (conservatoir beslag), and started civil proceedings

against, inter alia, the applicant company, in order to recover the

costs of the soil cleaning operation. In August 1988, in summary

proceedings (kort geding) before the President of the Regional Court

(Arrondissementsrechtbank) of The Hague, the applicant company

unsuccessfully sought to have the seizure lifted in order to be able

to sell the plot.

     On 3 February 1989, the Mayor and Aldermen (Burgemeester en

Wethouders) of Vlissingen, who were put in charge by the Provincial

Executive of Zeeland of the soil cleaning operation, informed the

applicant company of their intention to start the soil cleaning

operation in 1989, and asked the applicant company for its co-

operation. The applicant company replied on 17 February 1989 requesting

a suspension of the soil cleaning operation pending the outcome of an

investigation of the soil which it had ordered from the private company

X. The applicant company further expressed its willingness to reach a

solution and asked for consultations with the municipality on the

modalities of the soil cleaning.

     By letter of 20 March 1989, the applicant company's lawyer

informed the Mayor and Aldermen that the applicant company wished to

carry out the cleaning under its own management and that the company

X would act as their expert. The results of the investigation carried

out by X and the latter's proposals on the technical modalities of the

soil cleaning were added to this letter.

     By decision of 28 March 1989, the Mayor and Aldermen rejected the

request for a suspension of the soil cleaning operation, and, on the

basis of Section 11 of the Interim Act on Soil Cleaning, ordered the

applicant company to admit authorised persons to their property, to

allow these persons to investigate the extent of the pollution, and to

allow the cleaning of the soil. As regards the investigation of the

soil by authorised persons, the order was declared to be immediately

enforceable.

     On 26 April 1989, the applicant company lodged an appeal against

the decision of 28 March 1989 with the Administrative Litigation

Division of the Council of State (Afdeling voor de geschillen van

bestuur van de Raad van State). On 1 August 1989, the Mayor and

Aldermen submitted their memorial in reply to the applicant's appeal

(verweerschrift) to the Administrative Litigation Division.

     On 2 August 1989, the Chairman of the Division requested an

official report (ambtsbericht) from the Environmental Management

Appeals Adviser (Adviseur Beroepen Milieubeheer, hereinafter referred

to as "Adviser") of the Ministry. The official report was submitted on

9 December 1991 by the Adviser. He concluded that the decision of the

Mayor and Aldermen of Vlissingen should be upheld and that the appeal

should be rejected.

     By letter of 17 February 1992, the Administrative Litigation

Division, pursuant to Section 36 of the Act on the Council of State

(Wet op de Raad van State, hereinafter referred to as "WRS"), informed

the parties that the documents concerning the applicant company's

appeal against the decision of 28 March 1989 could be consulted until

and including 13 March 1992 at the Registry of the Council of State.

In general terms the parties' attention was drawn to the fact that a

consultation of these documents could be important in particular

insofar as an official report had been issued in the proceedings.

     The Registry of the Administrative Litigation Division informed

the applicant company that its appeal would be examined in the course

of an oral hearing and that, provided that the President of the

Division would have been duly informed thereof before 21 April 1992,

it could bring witnesses and experts in order to have them examined

before the Administrative Litigation Division.

     On 2 June 1992 - by that time the soil cleaning operation, the

costs of which are estimated to be about 2.000.000 Dutch guilders, had

already taken place - a hearing was held by the Administrative

Litigation Division of the Council of State. The Adviser did not take

part in this hearing. The applicant company and the Mayor and Aldermen

of Vlissingen, both represented by lawyers, pleaded their case.

     The applicant company submitted, inter alia, that already in the

period between 1986 and 1988 it had offered the municipality that the

company would clean the soil and bear the costs thereof itself, but the

municipality had declined to enter into negotiations on this subject.

The company further argued that the Adviser was not independent and

impartial, that the official report should be disregarded by the

Division, and that the official report was contrary to an independent

and impartial administration of justice and therefore contrary to

Article 6 of the Convention. It proposed that an impartial expert

should be appointed and offered to advance the costs of such an expert

if the Administrative Litigation Division should decide to appoint such

an expert. It submitted that in the end the costs of the expert should

be borne by the party who would lose the case before the Division.

     On 9 June 1992, the Administrative Litigation Division rejected

the appeal. It held, inter alia, that the Mayor and Aldermen had

correctly taken the position that the soil cleaning operation should

be carried out in accordance with the requirements and conditions of

the Soil Cleaning Guideline (Leidraad Bodemsanering) which is based on

the Interim Act on Soil Cleaning. It further held that the soil

cleaning method opted for by the Mayor and Aldermen (removal,

processing and replacement of polluted soil, extraction of polluted

ground water) could be considered as being in accordance with the Soil

Cleaning Guideline, whereas the soil cleaning method proposed by the

applicant company (removal of a top layer of 30 centimetres of polluted

soil, followed by a further investigation in order to determine the

subsequent procedure) could not be regarded as an acceptable

alternative from an environmental hygiene point of view. It found that

the Mayor and Aldermen, after having weighed the interests involved,

could reasonably have reached the decision complained of, including its

immediate enforceability.

     In reaching this finding, the Administrative Litigation Division

also had regard to the fact that, according to a telex of

5 January 1988, the applicant company, in its negotiations with the

municipality of Vlissingen regarding the sale of the plot, had

attempted to obtain a waiver as regards its environmental

responsibilities and that, by letter of 12 April 1988, the applicant

company had informed the State Advocate (landsadvocaat) that it was

willing to clean the soil at its own expense on condition that the soil

would be cleaned according to the guidelines of an engineering company

of the applicant company's choice and that the State would not

undertake any further action against the applicant company or the

(former) directors of Maxalloys. In these circumstances the

Administrative Litigation Division accepted the Mayor and Aldermen's

finding that was not clear that the applicant company was prepared to

secure a cleaning of the soil which was acceptable from the point of

view of environmental hygiene.

     In its decision, the Administrative Litigation Division made a

general reference to the official report, and the line of reasoning and

the conclusion are the same in the official report and in the Council

of State's decision. The Administrative Litigation Division did not

deal with the applicant company's submissions that the Adviser was not

independent and impartial, that the official report should be

disregarded and that the report was contrary to an independent and

impartial administration of justice as required by Article 6 of the

Convention.

b. Relevant domestic law and practice

     Pursuant to the Interim Act on Crown Appeals (Tijdelijke Wet

Kroongeschillen), which was in force from 1 January 1988 until 1

January 1994, the Administrative Litigation Division of the Council of

State was competent to decide on appeals concerning, inter alia, the

application of Section 11 of the Interim Act on Soil Cleaning. No

further appeal lay against a decision by the Administrative Litigation

Division, nor could it be overruled by an administrative authority.

Before 1 January 1988 such appeals were decided by the Crown (Kroon),

i.e. the Queen and the responsible Minister or Ministers.

     The procedure before the Administrative Litigation Division was,

until 1 January 1994, governed by the rules set out in Sections 26-62a

of the Act on the Council of State (WRS).

     The members of the Administrative Litigation Division, whose

number is determined by the Crown but cannot be less than five

including the President of the Division, are chosen by the Crown from

amongst the members of the Council of State, upon the proposal of the

Minister of Internal Affairs, after consultation of the Minister of

Justice and upon the recommendation of the Council of State (Section

27 WRS).

     The members of the Council of State are appointed for life by the

Crown, upon the proposal of the Minister of Internal Affairs, after

consultation of the Minister of Justice and on the recommendation of

the Council of State. They are dismissed by the Crown at their own

request or when they have reached the age of seventy years. They can

also be dismissed or suspended by decision of the Council of State in

accordance with the rules and procedures set out in Sections 11-13a of

the Judicial Organisation Act (Wet op de Rechterlijke Organisatie)

(Sections 3 and 3a WRS).

     Section 7 of the WRS deals with functions and professional

activities the exercise of which are incompatible with membership of

the Council of State.

     Before taking up their duties, new members of the Council of

State take the oath, the wording of which is set out in Section 8 of

the WRS. In the oath they solemnly declare that they shall abide by the

obligations of independence and impartiality in the exercise of their

functions as member of the Council of State.

     Section 32 (c) of the WRS, in its wording at the relevant time,

provides, insofar as relevant, as follows:

[Dutch]

     "1.   De Voorzitter van de Afdeling (voor de geschillen van

     bestuur) wint de nodige ambtsberichten in. Hij doet daarvan

     mededeling aan Onze Minister, wie de zaak aangaat.

     2.    Het overheidsorgaan, aan hetwelk een ambtsbericht is

     gevraagd, zendt dit onder bijvoeging van de zich onder zijn

     berusting bevindende tot het geschil betrekkelijke stukken - voor

     zover dit niet in strijd is met enige wettelijke bepaling tot

     geheimhouding - aan de voorzitter door tussenkomst van deze

     Minister.

     3.    Ook indien Onze Minister geen ambtsbericht is gevraagd, kan

     hij zijn ambtsbericht en stukken bijvoegen.

     4.    De voorzitter kan een termijn stellen, waarbinnen de

     ambtsberichten worden uitgebracht."

[translation]

     "1.   The President of the (Administrative Litigation) Division

     requests the necessary official reports. He informs Our Minister

     concerned of this.

     2.    The public body, which has been requested to submit an

     official report, will send this report together with the

     documents in its possession which relate to the dispute - insofar

     as this is not contrary to any statutory provision providing for

     secrecy - to the president via this Minister.

     3.    Also when Our Minister has not been asked for an official

     report, he can add his official report and documents.

     4.    The president may set a time-limit for the submission of

     official reports."

     In the Government's Memorandum of Reply (Memorie van Antwoord)

to the Lower House (Tweede Kamer) during the parliamentary discussion

on the adoption of the Interim Act on Crown Appeals (Tweede Kamer-

stukken 1986-1987, 19 497, nr. 5, pp. 11-13), the Government stated as

regards the compatibility of official reports with the requirements of

Article 6 para. 1 of the Convention, inter alia:

[Dutch]

     "Wij wensen in genen dele af te doen aan het beginsel dat de

     Afdeling voor de geschillen van bestuur in volle vrijheid tot

     haar beslissingen moet kunnen komen. (...) De rechter is in geen

     enkel opzicht gebonden aan dat standpunt (het ambtsbericht). Haar

     onpartijdigheid zal niet in het geding kunnen komen doordat zij

     kan beschikken over een mogelijk relevant standpunt van een

     instantie die geen partij is bij het geding (...) de Afdeling

     bepaalt zelf welke adviezen zij langs welke weg wenst in te

     winnen. Het wordt aan de rechter overgelaten te beoordelen welke

     waarde en welk gewicht hij aan de ingewonnen ambtsberichten,

     onder meer vanwege het ontbreken van voldoende onafhankelijkheid

     van de desbetreffende instantie, mag toekennen. De rechter kan,

     indien hij de afhankelijkheid van degene die het ambtsbericht

     uitbrengt ten opzichte van één van de procespartijen te groot

     acht, zo nodig advies inwinnen bij een andere instantie."

[translation]

     "We do not wish in any way to depart from the principle that the

     Administrative Litigation Division must be able to reach its

     decisions in all liberty. (...) The judge is not bound in any way

     by that opinion (the official report). Its impartiality cannot

     be questioned on the ground that it may have at its disposal a

     possibly relevant point of view of a body which is not a party

     to the dispute (...) the Administrative Litigation Division

     itself will decide what opinions are required and how to obtain

     them. It is left to the judge to assess the value and weight of

     the official reports thus sought, inter alia, having regard to

     a lack of sufficient impartiality of the body concerned (which

     issued the report). The judge may seek advice from another body,

     if he finds that the body which issues the official report is too

     closely connected with one of the parties to the dispute."

     Considering that the Administrative Litigation Division favoured

a position of advisers as independent as possible, the Minister of

Housing, Regional Planning and Environment, in his decision (besluit)

of 12 September 1988 with retroactive effect as from 1 January 1988,

provided the Adviser with an independent position within the Ministry.

According to this decision the Adviser shall independently sign

official reports (Section 2 of the decision) in his capacity of Adviser

(Section 3 of the decision) and will send official reports directly to

the Administrative Litigation Division (Section 5 of the decision).

     In proceedings before the Administrative Litigation Division, the

parties may submit such documentary evidence as they consider necessary

(Section 34 WRS) and, unless the parties do not find this necessary,

a public hearing will be held in the course of which the parties can

argue their case (Sections 38, 38a and 45 WRS). The parties have the

right, as does the President of the Administrative Litigation Division,

to call witnesses and experts provided the President has been informed

in time of this wish and these persons' particulars, to put questions

to them and to comment on any evidence given (Sections 41, 46 and 48

WRS).

     The Administrative Litigation Division deliberates in camera

(Section 51 WRS), it may carry out on-site inspections (Section 52

WRS), ask for additional official reports on which the parties may

comment (Section 54 WRS) and hold further hearings (Section 55 WRS).

     As from 1 January 1994, the Interim Act on Crown Appeals is no

longer in force. As from that date an administrative appeal against

decisions under the Interim Act on Soil Cleaning lies directly with the

Administrative Law Division of the Council of State, which replaced the

Administrative Litigation Division. This change took place jointly with

the entry into force on 1 January 1994 of the General Administrative

Law Act (Algemene Wet Bestuursrecht), which lays down new uniform rules

of administrative law procedure. According to Section 36 of the present

Act on the Council of State, the new uniform rules laid down in Chapter

8 of the General Administrative Law Act, with certain exceptions, also

apply to proceedings before the Administrative Law Division. Under

Section 8:47 of the General Administrative Law Act, which also applies

to proceedings before the Administrative Law Division, the court may

seek expert opinions.

COMPLAINTS

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

Convention that its appeal before the Administrative Litigation

Division of the Council of State was not determined by an independent

and impartial tribunal, as the Division obtained an official report,

which was decisive for its decision, from an expert who could not be

considered independent and impartial, since he was employed as Adviser

of the Ministry. The Ministry had a direct financial interest in the

outcome of the proceedings before the Administrative Litigation

Division: it paid for the soil-cleaning operation, it seized the

property of the applicant company and it started a lawsuit against the

applicant company in order to recover the costs of the soil cleaning

operation.

2.   The applicant company further complains under Article 6 para. 1

of the Convention that it did not receive a fair hearing and that the

principle of equality of arms has been violated, in that the

Administrative Litigation Division did not seek the advice of an

independent and impartial expert, whereas the applicant company had

offered to pay the expenses of such an independent expert.

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 8 December 1992 and registered

on 10 March 1993.

     On 2 September 1994, the Commission decided to communicate the

application to the respondent Government, pursuant to Rule 48

para. 2 (b) of the Rules of Procedure.

     The Government's written observations were submitted on

23 November 1994, after an extension of the time-limit fixed for that

purpose. The applicant company replied on 12 April 1995, also after an

extension of the time-limit.

THE LAW

     The applicant company complains under Article 6 para. 1

(Art. 6-1) of the Convention that its appeal before the Administrative

Litigation Division of the Council of State was not determined by an

independent and impartial tribunal.

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

relevant, states:

     "In the determination of his civil rights and obligations

     ... everyone is entitled to a fair ... hearing ... by an

     independent and impartial tribunal".

     The Commission notes in the first place that the parties do not

dispute the applicability of Article 6 para. 1 (Art. 6-1) of the

Convention. Having regard to the close connection between the

proceedings at issue and the consequences of their outcome for the

applicant company's pecuniary rights and its economic activities, the

Commission finds that these proceedings concerned a dispute over a

right which was "civil" in nature. The proceedings at issue therefore

fall within the scope of Article 6 para. 1 (Art. 6-1) of the Convention

(cf. Eur. Court H.R., Ortenberg judgment of 25 November 1994, Series

A no. 295-B, p. 48, para. 28 and Procola judgment of 28 September 1995,

Series A no. 326, para. 39).

     Insofar as the applicant company complains that the

Administrative Litigation Division of the Council of State cannot be

regarded as an independent and impartial tribunal within the meaning

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

recalls that in order to establish whether a body can be considered

"independent", regard must be had, inter alia, to the manner of

appointment of its members and their term of office, to the existence

of guarantees against outside pressures and to the question whether the

body presents an appearance of independence.  As to the question of

impartiality, a distinction must be drawn between the subjective test,

whereby it is sought to establish the personal conviction of a given

judge in a given case, and the objective test, aimed at ascertaining

whether the judge offered guarantees sufficient to exclude any

legitimate doubt in this respect (Eur. Court H.R., Langborger judgment

of 22 June 1989, Series A no. 155, p. 16, para. 32).

     Having regard to the manner of appointment, the term of office

and the rules on dismissal and suspension of members of the Council of

State, the Commission finds no reason to doubt the independence of the

Administrative Litigation Division of the Council of State.

     As regards the question whether the Administrative Litigation

Division was impartial, the Commission first notes that the applicant

has not expressed any doubt as to the personal impartiality of the

members of the Administrative Litigation Division.

     As to the objective test, it must be determined whether there are

ascertainable facts which may raise doubts as to the impartiality of

the court. In this respect even appearances may be of a certain

importance. What is at stake is the confidence which the courts in a

democratic society must inspire in the public. It follows that, in

deciding whether in a given case there is a legitimate reason to fear

that a court lacks impartiality, the parties' opinion is important but

not decisive. What is decisive is whether a party's fear can be

regarded as objectively justified (Padovani judgment, loc. cit., p. 20,

para. 27).

     The Commission finds that such an objective justification is

lacking in the present case. The fear of lack of impartiality is based

on the fact that the Administrative Litigation Division based its

decision on an official report from an expert employed by the Ministry,

which, according to the applicant company, had a direct financial

interest in the outcome of the proceedings.

     The Commission recalls in this respect that the mere fact that

experts are employed by the administrative authority which is involved

in a case does not justify fears that such experts are unable to act

with proper neutrality. To hold otherwise would often place

unacceptable limits on the possibility to obtain expert advice (see

Zumtobel v. Austria, Comm. Report 30.6.92, Eur. Court H.R., Series A

no. 268-A, para. 86; Eur. Court H.R., Brandstetter judgment of 28

August 1991, Series A no. 211, p. 21, para. 44).

     The Commission is, therefore, of the opinion that the fact that

the Administrative Litigation Division sought advice from such an

expert belonging to the staff of the Ministry is in itself insufficient

for an objective justification of the fear that the Administrative

Litigation Division was not an impartial tribunal. There is no other

element in the case which could cause doubts as to its impartiality.

     It remains to be examined, however, whether the Adviser's report

was dealt with in a fair manner so as to give the applicant the

opportunity to argue against it and to present other expert advice.

     In this respect the applicant company complains that, in the

proceedings before the Administrative Litigation Division, it did not

receive a fair hearing as required by Article 6 para. 1 (Art. 6-1) of

the Convention in that the Administrative Litigation Division did not

seek the advice of an independent and impartial expert, although the

applicant company had offered to pay the expenses of such an

independent expert.

     The Government emphasise that the Adviser is an impartial expert.

He has an independent position and has been entrusted with final

authority in issuing official reports. He focused not only on the facts

of the dispute, but also dwelt on the relevant policy as it had been

pursued in order to allow the court to make a sound assessment of the

dispute. There was, however, no question in this regard of any

"propagation" of the policy pursued by the Ministry.

     The Government further submit that, apart from the submission of

an official report, the Adviser did not participate in the proceedings

at issue. Nor did the Ministry participate in these proceedings. Given

that the decision challenged by the applicant company only concerned

its obligation to co-operate in the soil cleaning operation, that the

provincial authorities decide on soil cleaning operations and determine

the priorities of such operations and that the Ministry has never tried

to acquire the applicant company's property, the Government argue that

the Ministry had no interest in the outcome of the proceedings at

issue. The fact that the Ministry sought to secure the recovery of the

costs of the soil cleaning operation, the possibility to recover such

costs from, inter alia, the owners of a cleaned plot being provided for

by Section 21 of the Interim Act on Soil Cleaning, does not alter this

as this action, which gave rise to civil proceedings in the present

case, is completely separate from the administrative powers held by the

provincial and municipal authorities as regards the implementation of

the Interim Act on Soil Cleaning. The Administrative Litigation

Division is, moreover, entirely free to determine how much value it

attaches to an official report.

     The Government further point out that, although the Interim Act

on Soil Cleaning does not provide for an obligation to consult the

party concerned nor a right for the party concerned to conduct a soil

cleaning operation itself, it may be inferred from the parliamentary

procedure regarding this Act that an administrative body should first

find out whether the party concerned is willing to co-operate in the

soil cleaning or to carry out the soil cleaning itself. According to

the Government it was not unreasonable, in view of the applicant

company's attitude towards the soil cleaning operation since 1982 - in

particular the absence of sound, serious and timely proposals by the

applicant company concerning the manner in which the soil cleaning

operation should be carried out - that the municipality of Vlissingen

took the view that there was no willingness of the applicant company

to co-operate in a sound clean-up operation.

     The Government finally submit that, in the proceedings before the

Administrative Litigation Division, the applicant company only

submitted its objections to the official report and its offer to

appoint an independent adviser and to advance the costs involved at a

very late stage, i.e. at the hearing on 2 June 1992. It did not avail

itself of the possibility of submitting its own report in reaction to

the official report which had been made accessible to the parties

between 17 February and 13 March 1992, or of bringing witnesses and/or

experts to the hearing on 2 June 1992 in order to have them examined

before the Administrative Litigation Division or, provided the other

party had not objected to this, of presenting new items of evidence at

the hearing of 2 June 1992.

     The applicant company submits that, although the Administrative

Litigation Division is formally not obliged to seek an official report

and is not bound by it, a study has shown that in 67% of the

environmental cases brought before the Division in 1988 and 1989 an

official report was sought and that in 69,7% of the cases in which an

official report was obtained the findings in the decision of the

Administrative Litigation Division fully coincided with the findings

in the official report. The applicant company, therefore, finds it

evident that official reports have a great influence on the findings

of the Administrative Litigation Division in environmental cases.

     As regards the use of experts, the applicant company argues that

in procedural law a distinction is made between an expert appearing for

a party and an expert appointed by the court. An expert appearing for

a party is approached by one of the parties in order to advise on a

question formulated by this party. If the advice given is not to its

liking, the party is free not to use this advice and to seek another

expert. An expert appointed by the court is approached by the court and

requested to advise on one or more specific questions. The parties

determine in consultation with the court which expert should be

approached. This expert is deemed to provide impartial and independent

advice.

     The applicant company submits that the Adviser is an expert

appointed by the court and that this Adviser - in whose official report

the facts of the case are considered in the light of the applicable

statutory provisions, the policy pursued is taken into account and a

conclusion is reached as regards the outcome of the proceedings -

cannot be regarded as independent and impartial. The Adviser is

employed by and works in the building of the Ministry, is appointed by

the Minister of Housing, Regional Planning and Environment and derives

his internal independent position from the Minister. Given the relation

of power, the Minister can easily influence the contents of the

official report. The applicant company is of the opinion that the

Adviser's final authority in issuing reports referred to by the

Government offers an insufficient guarantee for autonomy or

independence.

     The applicant company refutes the Government's argument that the

Ministry had no interest in the matter. It submits that the Ministry

is accountable to parliament for environmental matters, it has an

interest in ensuring that environmental policy can be enforced. In this

respect the applicant company emphasises that the outcome of the

proceedings was decisive for the question whether the Ministry could

subsequently recover the costs of the soil cleaning operation from the

applicant company.

     As regards the Government's observation that the applicant

company could have submitted a counter-report, the applicant company

states that the point was that it wanted the Administrative Litigation

Division, in consultation with the parties, to appoint an independent

expert and that it was not able to make this request until the hearing

on 2 June 1992. It further submits that the Administrative Litigation

Division did not seek advice from the Adviser on specific questions and

that the official report can be interpreted as a draft judgment. In the

absence of specific questions, it was difficult for the applicant

company to assess which questions an expert should answer. Moreover,

given that it took the Adviser almost 21/2 years to draw up the official

report, the applicant company considers that it cannot reasonably be

expected from it to produce a properly argued counter-report in the

short period available.

     The Commission notes in the first place that the Ministry, which

employs the Adviser, was not a party to the proceedings at issue which

concerned the lawfulness of the decision of the Mayor and Aldermen of

Vlissingen. It is true that the Ministry could be considered to have

a certain interest in the outcome of the proceedings, but this

concerned the question whether the costs of the soil cleaning should

be borne by public funds or whether they could be recovered from the

owner of the cleaned plot. This question formed the object of a

different set of proceedings.

     There may be some doubts as to whether the Adviser could be

regarded as fully independent of the Minister given their hierarchical

relationship. However, in matters of this kind it would not seem

unnatural that a court may ask for advice from an expert who holds a

central position in the state structure and has special knowledge and

experience of the implementation of the applicable rules and

guidelines. There is no reason to believe that the Adviser failed to

act with proper neutrality in the present case. The Commission also

recalls in this respect the case-law as regards the use of experts

employed by an administrative authority which is in a certain way

involved in proceedings (cf. Eur. Court H.R., Bönisch judgment of 6 May

1985, Series A no. 92, p. 15, para. 32; Brandstetter judgment of 28

August 1991, Series A no. 211, p. 21, para. 44; and Zumtobel v.

Austria, Comm. Report 30.6.92, Eur. Court H.R., Series A no. 268-A, p.

22, para. 86).

     The Commission notes that, in proceedings before the

Administrative Litigation Division, the parties may submit such

documentary evidence as they consider necessary and, unless the parties

do not find this necessary, a public hearing will be held in the course

of which the parties can argue their case. The Commission further notes

that parties have the right to call witnesses and experts, to put

questions to them and to comment on any evidence given.

     The Commission recalls that, as a general rule, it is for the

national courts to assess the evidence before them (cf. Eur. Court

H.R., Vidal judgment of 22 April 1992, Series A no. 235-B, p. 32, para.

33), but the Commission may ensure that the presentation of evidence

was fair. The effect of Article 6 para. 1 (Art. 6-1) of the Convention

is, inter alia, to place the domestic courts under a duty to conduct

a proper examination of the submissions, arguments and evidence adduced

by the parties, without prejudice to the domestic courts' assessment

thereof (Eur. Court H.R., Van de Hurk judgment, Series A no. 288, p.

19, para. 59).

     The Commission notes that the applicant company did not seek to

submit any other expert opinion before the hearing before the

Administrative Litigation Division and did not seek the attendance of

its own experts or witnesses at this hearing in order to have them

heard before the Administrative Litigation Division. Only at the latest

possible stage - namely at the hearing on 2 June 1992 - the applicant

company criticised the position of the Adviser and the official report

and requested the Administrative Litigation Division to appoint another

expert in consultation with the parties.

     In these circumstances the Commission considers that the

applicant company did not avail itself of the opportunity which it had

to contest the contents of the Adviser's report and to present

alternative expert advice. The Commission also considers that the

implied refusal by the Administrative Litigation Division of the

applicant company's request to appoint another expert, made at a very

late stage of the proceedings, cannot be considered to have deprived

the applicant of a fair hearing within the meaning of Article 6 para.

1 (Art. 6-1) of the Convention.

     The Commission finds no indication that the applicant company was

prevented from making full submissions on the question of the necessity

and the modalities of the cleaning of the soil or that it was placed

in a disadvantaged position vis-à-vis its adverse party. It was

provided with ample opportunity to state its case, to submit evidence

and to challenge the official report or the submissions made by the

opposing party, both orally and in writing. Moreover, there is no

reason to believe that the Administrative Litigation Division failed

to take the parties' submissions, arguments and evidence into account

when taking its decision in the present case.

     The Commission is, therefore, of the opinion that the

Administrative Litigation Division was in the present case an

independent and impartial tribunal within the meaning of Article 6

para. 1 (Art. 6-1) of the Convention and that the proceedings before

the Litigation Division were in conformity with the requirements of

that provision.

     It follows that the application is to be rejected as being

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

     For these reasons, the Commission, unanimously,

     DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Second Chamber      President of the Second Chamber

      (M.-T. SCHOEPFER)                       (H. DANELIUS)