DECISION

AS TO THE ADMISSIBILITY OF

Application No. 21202/93

by W.G.P.V.

against the Netherlands

The European Commission of Human Rights sitting in private on 11 January 1995, the following members being present:

Mr. H. DANELIUS, President

Mrs. G.H. THUNE

MM. G. JÖRUNDSSON

S. TRECHSEL

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. ŠVÁBY

Mr. K. ROGGE, 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 20 October 1993 by W.G.P.V. against the Netherlands and registered on 20 January 1993 under file No. 21202/93;

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 24 June 1994 and the observations in reply submitted by the applicant on 17 November 1994;             

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Dutch citizen and resides at Hunsel , the Netherlands. Before the Commission he is represented by G.W.A. Bernards , a lawyer practising at Eindhoven , the Nether-lands.

1. Particular circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant owns a pig farm, which he took over from his father in the course of 1983/1984. In order to improve the farm's cost-effectiveness the applicant intended to increase the number of live stock.

On 24 March 1987 the applicant completed a registration -form as required by Section 2 para. 1 of the Manure Registration Order ( Registratiebesluit Dierlijke Meststoffen , hereinafter referred to as the "Registration Order"). In this form he stated that his habitual live stock in 1986 consisted of 132 pigs for breeding purposes, one boar and 50 pigs for slaughter, resulting in the reference quantity of 3.064 kilogrammes of phosphate on 31 Decem-ber 1986.

On 9 January 1989 the applicant's farm was inspected by the General Inspection De- partment ( Alge-mene Inspectie-dienst ) of the Ministry of Agricultu -re, Nature Management and Fisheries ( Ministerie van Landbouw , Natuurbeheer en Visserij ). Following this inspection the applicant was provided with a declaration by the inspector stating that the applicant had correctly completed the registration form.

In his decision of 29 January 1990, the Minister of Agricultu -re, Nature Management and Fisheries (hereinafter referred to as the "Minister"), noting that it had appeared from the inspection held on 9 January 1989 that, pursuant to the Interim Act on Restric-tions on Pig and Poultry Farms ( Interimwet Beperking varkens - en pluimvee-houderijen ), the applicant was allowed to keep a maximum live stock of 132 pigs for breeding purposes, one boar and 18 pigs for slaughter which corresponds to a reference quantity ( referentie hoeveelheid dierlijke meststoffen ) of 2.827 kilogrammes of phosp -hate, adapted the applicant's reference quantity accordingly. On 19 February 1990 the applicant filed an objection ( bezwaarschrift ) with the Minister.

In another case concerning an appeal against a similar decision by the Minister, the Industrial Appeals Tribunal (College van Beroep voor het Bedrijfsleven ) held in its decision of 21 September 1990 that the Minister had incorrectly considered himself to be competent to determine a reference quantity in indivi -dual cases. It found the Minister lacked this competence since the reference quantity was to be derived directly from the applicable legal provisions. The only purpose served by the Minister's adjustment of the figures provided by the producer was to provide an administrative check, without any legal consequence, and that therefore this adjustment did not constitute an administrative decision ( beschikking ) within the meaning of Section 4 para. 4 of the Industrial Appeals Act (Wet Administratieve Rechtspraak Bedrijfsorganisatie ) in conjunction with Section 20 of the Manure Act. It consequently quashed the Minister's decision and declared the appeal against that decision inadmissible (Case No. 89/0340/60/178, decision of 21 Septem-ber 1990, Administratieve Beslissingen 1991, no. 97).

In view of that decision by the Industrial Appeals Tribunal, the Minister, in the present case, withdrew his decision of 29 January 1990 on 23 April 1992. He informed the applicant that, on the basis of further information received after the inspection by the General Inspection De- partment of the applicant's farm, the maximum number of pigs the applicant was permitted to keep under the Interim Act was 132 pigs for breeding purposes and one boar. Therefore the reference quantity of his farm was not 2.827 but 2.694 kilogrammes of phosphate. This adapted reference quantity would in the future be taken as a basis for the control of the obser-vance of Article 14 of the Manure Act ( Meststoffenwet ).

Insofar as the applicant relied on the exception contained in Section 3 of the Interim Act, the Minister found that the appli -cant did not satisfy the conditions under this provision, as he had only applied for a construction permit on 5 November 1984 and as he had not entered into any irreversible investment obligations.

In view of the Industrial Appeals Tribunal's above-mentioned decision no. 89/0340/60/178 of 21 September 1990, in which it had found that a mere adaptation (" loutere aanpassing ") by the Minister of a reference quantity cannot be regarded as an administrative decision, the applicant decided not to appeal to the Industrial Appeals Tribunal.

2. Relevant domestic law

a. Manure legislation

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Pending the adoption of the Manure Act ( Meststoffenwet , hereinafter referred to as the "Act"), the Dutch Parliament adopted the Interim Act on Restric-tions on Pig and Poultry Farms ( Interimwet Beperking varkens - en pluimveehouderijen - hereinafter referred to as the "Interim Act"). Parliament found it necessary to adopt an Interim Act in view of the urgent need felt to control the production of manure by pig and poultry farms given undesired environmental effects thereof.

The Interim Bill had been submitted to Parliament on 2 November 1984 and the Interim Act entered into force on 10 January 1985.  Under the Interim Act it was prohibited, as from 3 November 1984, to increase the live stock of pig and poultry farms and thus the output of manure.

Section 3 of the Interim Act contains an exemption from the prohibition to increase the live stock for farmers holding a con-struc-tion licence under the Housing Act ( Woningwet ) and a permit under the Nuisance Act ( Hinderwet ), both issued before 3 November 1984; and for farmers who had applied at the latest on 3 November 1984 for both permits and who had already entered into investment obli-gations for an increase of their live stock.

On 27 November 1986, the Dutch Parliament adopted the Manure Act replacing the Interim Act. The Manure Act entered into force on 1 January 1987. Pursuant to Section 6 of the Act, further rules in respect of the application of the Manure Act were enacted by Order in Council ( Algemene Maatregel van Bestuur ), i.e. the Manure Registration Order ( Registratiebesluit Dierlijke Meststoffen - Staatsblad 1986, no. 625).

The Act contains certain norms on the basis of which the permitted manure production level can be determined for each individual farm. The production level thus determined is, in practice, referred to as the "reference quantity of manure" ( referentie hoeveelheid dierlijke meststoffen ). Pursuant to the transitional regulations contained in Section 14 of the Manure Act, the permissible production levels were those allowed under the terms of the Interim Act. This level was to be determined on the basis of a farm's situation on 31 December 1986. Section 14 of the Manure Act pro- hibits an increase of the manure produced, insofar as this increase would result in a situation where the total production of manure is or exceeds 125 kilogrammes of phosphate per hectare per year of the exploitable surface of the farm.

A violation of Section 14 of the Manure Act may result in criminal proceedings pursuant to the Act on Economic Offences (Wet op de Economische Delicten ). Pursuant to Section 20 of the Manure Act an appeal may be lodged with the Industrial Appeals Board (College van Beroep voor het Bedrijfsleven ) against an administrative decision ( beschikking ) taken under this Act.

b. Appeal procedures concerning administrative decisions

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As a rule a decision made by an administrative authority may be challenged on appeal before an administrative judicial authority. This will, in general, be preceded by an objections procedure ( bezwaarschriftprocedure ) before the administrative authority which took the contested decision.

As regards the competence of civil courts in cases where an administrative appeal lies, it is an established principle under Dutch law that the civil court should refrain from examining the lawfulness of the administrative decision, provided that the administrative appeal offers sufficient guarantees as to a fair procedure.

An extensive case-law was developed by the Supreme Court ( Hoge Raad ) 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 fully competent to review the lawfulness of the administrative decision. The fact that the dispute is of a public law nature is irrelevant in this context. The civil court can thus 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 and can grant injunctions against the administration (cf. Eur. Court H.R., Oerlemans judgment of 27 November 1991, Series A no. 219, p. 21, paras. 53-56).

In cases where no administrative appeal lies against an administrative decision Dutch law has traditionally recognised the competence of the civil courts to grant relief against the administration. This competence is based on the Constitution and on the Act on the Judicial Organisation (Wet op de Rechterlijke Organisatie ). In such circumstances civil proceedings against the State can be instituted, claiming that the contested decision constitutes a tortious act ( onrechtmatige daad ).

In such a situation the civil court can carry out a full examination of all acts of the admi-nistrati-on in the light of, inter alia , principles of admini-strative law, it can award damages for torts committed and it can grant injunctions against the administration. Pursuant to Section 310 Book 3 of the Civil Code ( Burgerlijk Wetboek ) a claim for damages is statute barred after five years after the day on which the claimant became acquainted with the damage and the responsible person or organ, and in any event after twenty years after the tortious act which caused the damage.

COMPLAINT

The applicant complains under Article 6 of the Conven-tion that his civil rights and obligations can only be determined in the course of criminal proceedings for non-observance of Section 14 of the Manure Act, as this is the only way in which the lawful size of his live stock can be determined by an independent and impartial tribunal.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 20 October 1992 and registered on 20 January 1993.

On 6 April 1994 the Commission (Second Chamber) decided to communicate the application to the respondent Government and to invite them to submit written observations on the admissibility and merits of the application.

The Government's observations were submitted on 24 June 1994 and the applicant's observations in reply were submitted on 17 November 1994.

THE LAW

The applicant complains under Article 6 of the Conven-tion that his civil rights and obligations can only be determined by an independent and impartial tribunal in the course of criminal pro- ceedings .

Article 6 para. 1 of the Convention, insofar as relevant, reads:

"In the determination of his civil rights and obliga-tions or of any criminal charge against him, everyone is entitled to a (...) hearing (...) by an indepen -dent and impartial tribunal (...)."

The Government submit that the applicant could have instituted civil proceedings, requesting the civil court to review the Minister's application of the regulations at issue.

The applicant submits that, although the Industrial Appeals Tribunal is designated as the competent appeal organ, it did not deal with the substance of an appeal against a similar decision by the Minister, but declared it inadmissible holding that no administrative appeal lies against such a decision. The result is a lacuna in the legal system at issue, in that in such circumstances he has no access to an independent and impartial tribunal in order to obtain a determination of his reference quantity, whereas on the other hand a violation of the Manure Act may result in criminal proceedings against him.

Referring to the Van de Hurk case (Eur. Court H.R., judgment of 19 April 1994, to be published in Series A no. 288), the applicant further submits that, even assuming that the Industrial Appeals Tribunal would declare an appeal against the Ministers's determination of a reference quantity admissible and subsequently determine the merits of such an appeal, his civil rights and obligations within the meaning of Article 6 para. 1 of the Convention would still not be determined by an independent and impartial tribunal, given the Crown's competence under Sections 74 and 75 of the Industrial Appeals Act to decide that the Industrial Appeals Tribunal's decision will have no or only a partial effect.

As regards the possibility to seize the civil judge, the applicant submits that he did not start such proceedings as, at the time he introduced his application, the civil judge still held that the proceedings before the Industrial Appeals Tribunal were in conformity with the requirements of Article 6 para. 1 of the Convention and refused to examine appeals against administrative decisions in which an appeal could be filed with the Industrial Appeals Tribunal.

The Commission finds that Article 6 para. 1 of the Convention is applicable to the proceedings at issue (cf. Van de Hurk v. the Netherlands, Comm. Report 10.12.92, paras. 34-37).

The Commission notes that the applicant chose not to file an appeal to the Industrial Appeals Tribunal in view of the latter's decision no. 89/0340/60/178 of 21 September 1990 in which it had declared a similar appeal inadmissible. In these circumstances the Commission finds that the issue as regards the effect of the decisions of the Industrial Appeals Tribunal does not arise in the present case.

The Commission recalls that, under Dutch law, it is clearly established in extensive case-law, which predates the present dispute, that where no administra-tive appeal lies against an administrative decision, it is possible to have recourse to the civil court for a full review of the lawfulness of the admini-stra-tive decision. The fact that the dispute is of a public nature is irrelevant in this context (Eur. Court H.R., Oerlemans judgment of 27 November 1991, Series A no. 219, pp. 21-22, paras. 53 and 56 with further references).

The Commission notes that the applicant could thus seize the civil court, which under Dutch law appears to be competent to examine the lawfulness of the Minister's decision at issue since, according to the Industrial Appeals Tribunal, no administrative appeal lies against this decision. The Commission further notes that, under Section 310 Book 3 of the Civil Code, this possibility is still open to the applicant.

In these circumstances the Commission is satisfied that the applicant does in fact have the possibility to submit his case to an independent and impartial tribunal within the meaning of Article 6 para. 1 of the Convention.

It follows that the application is manifestly ill-founded and must be rejected in pursuance of Article 27 para. 2 of the Conven-tion .

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Second Chamber      President of the Second Chamber

  (K. ROGGE) (H. DANELIUS)