J.S. AND OTHERS v. THE NETHERLANDS
Doc ref: 14561/89, 14657/89, 15105/89, 15343/89, 15712/89, 15908/89, 15988/90, 16118/90, 16513/90, 16583/90, ... • ECHR ID: 001-2248
Document date: September 7, 1995
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AS TO THE ADMISSIBILITY OF
1. Application No. 14561/89 2. Application No. 14657/89
by J.S. by P.B. and A.B
against the Netherlands against the Netherlands
3. Application No. 15105/89 4. Application No. 15343/89
by C.A. and W.H. VAN DEN BERG by A.A. and E.A.
against the Netherlands against the Netherlands
5. Application No. 15712/89 6. Application No. 15908/89
by J.W. JANSEN by J.B. and M.B.
against the Netherlands against the Netherlands
7. Application No. 15988/90 8. Application No. 16118/90
by F.C. VAN OIRSCHOT by Th.C.M. GIEBELS
against the Netherlands against the Netherlands
9. Application No. 16513/90 10. Application No. 16583/90
by G.J.T. WILLEMSEN by H.P.J. SIMONS
against the Netherlands against the Netherlands
11. Application No. 16843/90 12. Application No. 16896/90
by J.O. and C.O. by J.S. and Th.S.
against the Netherlands against the Netherlands
13. Application No. 16897/90 14. Application No. 17001/90
by J.W. and D.W. by J.B.G. KLINK
against the Netherlands against the Netherlands
15. Application No. 17241/90 16. Application No. 17252/90
by F.S. by H. BRAAM
against the Netherlands against the Netherlands
17. Application No. 17675/91 18. Application No. 17883/91
by A.J. VERSMISSEN by Th.B.
against the Netherlands against the Netherlands
19. Application No. 18340/91 20. Application No. 18615/91
by P.F.M. VAN DER HEIJDEN by P.H.
against the Netherlands against the Netherlands
21. Application No. 19590/92 22. Application No. 19591/92
by C.D. by J.B.
against the Netherlands against the Netherlands
23. Application No. 19637/92 24. Application No. 20311/92
by L.A.M. VERHAGEN by L.A.G. HUIJBEN
against the Netherlands against the Netherlands
25. Application No. 22532/93
by E.P. and C.P.
against the Netherlands
The European Commission of Human Rights (Second Chamber) sitting
in private on 7 September 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 25 applications mentioned in the Appendix
to this decision;
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
9 December 1994 and the observations in reply submitted by the
applicants on 6 April 1995 (Nos. 2, 7, 8, 9, 10, 11, 15, 17, 19,
20, 23 and 24), 3 May 1995 (No. 25) and 30 May 1995 (Nos. 1, 3,
4, 6, 12, 13, 18, 21 and 22);
Having deliberated;
Decides as follows:
THE FACTS
The applicants are all dairy farmers, holding Dutch nationality,
and reside in the Netherlands.
In the proceedings before the Commission the applicants mentioned
under Nos. 1, 3, 4, 6, 12, 13, 18, 21 and 22 are represented by Mr.
G.W.A. Bernards, a lawyer practising in Eindhoven. The applicants
mentioned under Nos. 2, 7, 8, 9, 10, 11, 15, 17, 19, 20, 23 and 24 are
represented by Mr. Th. Linssen, a lawyer practising in Tilburg. The
applicant mentioned under No. 5 is represented by Mr. J.P.M.M.
Heijkant, a lawyer practising in Dongen. The applicant mentioned under
No. 14 is represented by Mr. E.G.J. Hendriksen, a lawyer practising in
Zwolle. The applicant mentioned under No. 16 is represented by Mr. A.J.
Boonstra, a lawyer practising in Groningen. The applicants mentioned
under No. 25 are represented by Mr. J.P.E. Baakman, a legal adviser
established at Haaksbergen.
The facts of the respective cases, as submitted by the parties,
may be summarised as follows.
a. General background
According to the Council Regulations (EEC) No. 856/84 and No.
857/84, implemented in the Netherlands by Ordinance no. J 1731 on the
Super Levy of 18 April 1984 (Beschikking Superheffing - hereinafter
referred to as the "1984 Ordinance"), dairy farmers are allowed to
produce a certain amount of milk, calculated on the basis of their
production capacity prior to 1 April 1984 (the "reference quantity").
For any surplus production a levy (superheffing) must be paid.
Dairy producers who, between 1 September 1981 and 1 March 1984,
entered into investment obligations of at least 100.000 Dutch guilders
for an expansion of their cow stands by at least 25% to more than 60
may be allotted an extra reference quantity based on the capacity of
the expanded farm (Section 11 of the 1984 Ordinance). Pursuant to
Section 7 of the Super Levy Ordinance for Farm Succession Undermanning
Situations (Beschikking Superheffing Bedrijfsopvolgingssituaties
Onderbezetting) of 16 May 1986 this possibility also exists in the case
of farm successions, provided that the investment obligations amount
to at least 20.000 Dutch guilders.
Pursuant to Section 14 of the 1984 Ordinance, when dairy farm
land was sold between 1 April 1984 and 31 March 1985, the entitlement
to a reference quantity would be diminished correspondingly.
An extra reference quantity may be allotted in exceptional cases
not explicitly provided for in the 1984 Ordinance (Section 19). For
instance this may apply in cases where, due to "force majeure", the
milk production in a reference year was so low that it cannot be
considered as being representative of the "normal" production of the
dairy farm, or in cases where it is established that dairy farm land
has been acquired by way of a notarial contract of sale before 1 April
1984 without, however, being formally inscribed in the relevant public
registers before that date, but which has been formally inscribed
between 1 April 1984 and 1 April 1985.
When, between 1 September 1981 and 1 March 1984, dairy producers
had entered into investment obligations for an amount between 50.000
and 100.000 Dutch guilders for a replacement or an expansion of their
cow stands by at least 25% to more than 60, an extra reference quantity
may be allotted under Section 2 of the Additional Super Levy Ordinance
(Beschikking Aanvulling Superheffing).
If a plot of dairy farm land is sold, a corresponding part of the
reference quantity may be transferred to the new owner under Section
7 para. 1 of the 1985 Super Levy Ordinance (Beschikking Superheffing
1985). Pursuant to Section 8 paras. 1 and 2 of the 1985 Super Levy
Ordinance such a transfer will be registered by the provincial Director
of Agriculture, Nature and Outdoor Recreation (Directeur Landbouw,
Natuur en Openluchtrecreatie) following a notification of the transfer
by the parties involved. According to Section 19 of the 1985 Super Levy
Ordinance a party may, within 30 days, file an objection
(bezwaarschrift) to the Minister of Agriculture and Fisheries (Minister
van Landbouw en Visserij) against the Director's decision in respect
of the registration of the reference quantity transfer.
Under Section 10 of the 1985 Super Levy Ordinance an extra
reference quantity may be allotted in case dairy farmers temporarily
have to interrupt their production activities as a result of a land
consolidation project.
b. Particular circumstances of the individual cases
1. Application No. 14561/89 - J.S.
The applicant was born in 1952 and resides at Veulen-Venray. On
20 June 1984 he applied for a reference quantity under Section 11 of
the 1984 Ordinance. On 18 October 1984 the Director of Agriculture and
Food Supply (Directeur voor Landbouw en Voedselvoorziening) of the
province of Limburg provisionally allotted to the applicant a reference
quantity of 529.463 kilogrammes.
However, an investigation by the General Inspection Service of
the Ministry of Agriculture and Fisheries (Algemene Inspectiedienst,
hereinafter referred to as the "GIS") concluded that certain documents
submitted by the applicant in support of his request had been
antedated. On the basis of this finding, the Director of Agriculture
and Food Supply rejected the applicant's request for a reference
quantity on 20 August 1985. On 17 September 1985 the applicant appealed
to the Industrial Appeals Tribunal (College van Beroep voor het
Bedrijfsleven).
On 8 October 1986 the President of the Industrial Appeals
Tribunal rejected the applicant's request for an interim measure
(voorlopige voorziening).
Following adversarial proceedings in which the applicant was
represented by a lawyer and in which the parties and a number of
witnesses were heard, the Industrial Appeals Tribunal rejected the
applicant's appeal on 3 August 1988, finding that it had not been
established that the applicant had entered into investment obligations
before 1 March 1984.
2. Application No. 14657/89 - P.B. and A.B.
The first applicant was born in 1921. He died pending the
proceedings before the Commission. The second applicant, born in 1962,
resides in Dongen. As from 1 January 1984, until the first applicant's
death, they formed a partnership (maatschap). On 8 June 1984 they
applied for a reference quantity under Section 11 of the 1984
Ordinance.
On 14 September 1984 the Director of Agriculture and Food Supply
of the province of Noord-Brabant provisionally allotted to them a
reference quantity of 233.490 kilogrammes, against which decision the
applicants filed an objection (bezwaarschrift) on 9 October 1984.
On 6 November 1984 the Director of Agriculture and Food Supply
partially granted the applicants' request for a reference quantity.
They were allotted a reference quantity of 233.490 kilogrammes. They
filed an objection against this decision with the Minister of
Agriculture and Fisheries (Minister van Landbouw en Visserij,
hereinafter referred to as the "Minister") on 14 November 1984.
On 23 August 1985, the Minister rejected the applicant's
objection against the decision of 6 November 1984 as ill-founded. On
2 September 1985 the applicants appealed to the Industrial Appeals
Tribunal.
On 2 June 1986 the President of the Industrial Appeals Tribunal
rejected the applicants' request for an interim measure (voorlopige
voorziening).
Following a hearing on 1 July 1986 during which the parties and
a witness were heard, the Industrial Appeals Tribunal, on 2 July 1986,
ordered an investigation by the GIS concerning the investment
obligations entered into by the applicants. The GIS submitted its
findings on 9 September 1986.
On 1 June 1988 the Industrial Appeals Tribunal quashed the
Minister's decision, finding that in the challenged decision an
incorrect factual assumption in respect of the applicants' partnership
had been made. Consequently, it ordered the Minister to take a new
decision with due regard to the Industrial Appeals Tribunal's findings.
On 20 June 1988, pursuant to the Industrial Appeals Tribunal's
decision, the Minister fixed a new reference quantity. The applicant
filed an appeal against this decision with the Industrial Appeals
Tribunal.
Following adversarial proceedings in which the applicants were
represented by a lawyer and in which the parties were heard, the
Industrial Appeals Tribunal rejected the applicants' appeal on
5 October 1989, holding that the merits of the appeal had already been
decided in its judgment of 20 June 1988 and that the Minister's new
decision of 20 June 1988 was in conformity with that judgment.
3. Application No. 15105/89 - C.A. and W.H. VAN DEN BERG
The applicants were born in 1943 and 1947 respectively and both
reside in Oploo. On 21 June 1984 they applied for a reference quantity
under Section 11 of the 1984 Ordinance.
On 21 September 1984 the Director of Agriculture and Food Supply
of the province of Noord-Brabant rejected the applicants' request.
On 10 October 1984 the applicants filed an objection with the
Minister, who rejected it as ill-founded on 21 March 1985. The
applicants, represented by their lawyer, appealed to the Industrial
Appeals Tribunal on 19 April 1985.
On 24 August 1988 the President of the Industrial Appeals
Tribunal rejected their appeal as manifestly ill-founded because it did
not appear that the applicants had entered into investment obligations
within the prescribed period between 1 September 1981 and 1 March 1984.
The President based this finding on the fact that on their application
form of 21 June 1984, the applicants had stated that the investment
obligations, upon which their application was based, were entered into
on 6 May 1981.
After having heard the applicants in chambers (raadkamer), the
Industrial Appeals Tribunal rejected the applicants' objection against
the President's decision on 7 November 1988 as ill-founded.
4. Application No. 15343/89 - A.A. and E.A.
The applicants were born in 1926 and 1958 respectively and both
reside in Haps. On 26 June 1984 they applied for a reference quantity
under Section 11 of the 1984 Ordinance.
On 7 December 1984 the Director of Agriculture and Food Supply
of the province of Noord-Brabant allotted to them a reference quantity
of 432.245 kilogrammes, which was less than they had applied for.
On 22 December 1984 the applicants filed an objection with the
Minister, who rejected it as ill-founded on 12 April 1985, holding that
the applicants had not proven that, at the time they entered into their
investment obligations, they had planned an extension of the number of
cow stands on their farm rather than a partial replacement of old cow
stands. On 6 May 1985 the applicants appealed to the Industrial Appeals
Tribunal.
Following adversarial proceedings in which the applicants were
represented by a lawyer and in which the parties and a witness were
heard, the Industrial Appeals Tribunal rejected the applicants' appeal
on 2 February 1989, holding that the applicants had not proven that
their investment obligations only concerned an extension of the cow
stands on their farm. The Industrial Appeals Tribunal found no basis
for the finding that the applicants had also intended to keep the old
cow stands in use when they had decided to enter into investment
obligations.
5. Application No. 15712/89 - J.W. JANSEN
The applicant was born in 1936 and resides in Dongen. On
25 June 1984 he applied for a reference quantity under Section 11 of
the 1984 Ordinance. On 19 October 1984 the Director of Agriculture and
Food Supply of the province of Noord-Brabant rejected his request.
On 30 October 1984 the applicant filed an objection with the
Minister, who rejected it as ill-founded on 11 March 1986, holding that
it had appeared from an GIS investigation that the investment
obligations had been contracted after 1 March 1984.
On 26 March 1986 the applicant appealed to the Industrial Appeals
Tribunal. On 24 August 1988 the President of the Industrial Appeals
Tribunal rejected the appeal, holding that the applicant had not proved
that the investment obligations had been entered into before
1 March 1984. The applicant subsequently filed an objection against the
President's decision.
On 18 November 1988 the Registry of the Industrial Appeals
Tribunal informed the applicant that, as the Industrial Appeals
Tribunal saw no reason to declare the applicant's objection against the
President's decision ill-founded or inadmissible, the President's
decision was void, and that the applicant's appeal against the
Minister's decision of 11 March 1986 would be determined by the
Industrial Appeals Tribunal.
Following adversarial proceedings in which the applicant was
represented by a lawyer and in which the parties and a witness were
heard on 25 January 1989, the Industrial Appeals Tribunal rejected the
applicant's appeal on 10 May 1989. It found that it had been
established that a written confirmation of a construction order dated
19 April 1983 had in fact only been drafted in May/June 1984 and had
been antedated upon the applicant's request. It held that the applicant
had failed to sufficiently prove, either by written documents or by the
examination of a witness, that he had entered into investment
obligations before 1 March 1984.
6. Application No. 15908/89 - J.B. and M.B.
The applicants were both born in 1927 and both reside in Wanroy.
On 28 June 1984 they applied for a reference quantity under Section 11
of the 1984 Ordinance. On 21 September 1984 the Director of Agriculture
and Food Supply of the province of Noord-Brabant provisionally allotted
to them a reference quantity of 455.664 kilogrammes.
However, in a subsequent investigation by the GIS it was found
that documents submitted by the applicants had been antedated and that
they had not entered into investment obligations before 1 March 1984.
On 12 May 1986, on the basis of the GIS findings, the Director of
Agriculture and Food Supply withdrew his provisionally allotted
reference quantity and rejected the applicants' request for a reference
quantity. On 10 June 1986 the applicants' lawyer filed an appeal to the
Industrial Appeals Tribunal.
On 13 January 1989 the President of the Industrial Appeals
Tribunal declared the applicants' appeal ill-founded, holding that the
applicants had failed to prove that they had entered into investment
obligations between 1 September 1981 and 1 March 1984. On
26 January 1989 the applicants filed an objection against the
President's decision.
Following adversarial proceedings in which the applicants were
represented by a lawyer and in which the parties and a witness were
heard, the Industrial Appeals Tribunal rejected the applicants' appeal
against the decision of 12 May 1986. It noted, inter alia, that both
the applicants and the witness heard had confirmed that the date of
18 January 1984 on the submitted construction contract was incorrect.
It held that the applicants had failed plausibly to show that they had
entered into investment obligations before 1 March 1984.
7. Application No. 15988/90 - F.C. VAN OIRSCHOT
The applicant was born in 1932 and resides in Boxtel. On
7 June 1984 he applied for a reference quantity under Section 11 of the
1984 Ordinance. On 14 September 1984 the Director of Agriculture and
Food Supply of the province of Noord-Brabant rejected the applicant's
request, considering that the applicant had not entered into investment
obligations between the prescribed period and that the extension of the
number of cow stands was less than the prescribed 25%.
On 9 October 1984 the applicant filed an objection with the
Minister, who rejected it on 30 July 1985 as ill-founded. On
21 August 1985 the applicant appealed to the Industrial Appeals
Tribunal.
Following adversarial proceedings in which the applicant was
represented by a lawyer and in which the parties were heard on
19 April 1989, the Industrial Appeals Tribunal rejected the applicant's
appeal on 7 June 1989. It held that the applicant had not complied with
the requirements of Section 11 of the 1984 Ordinance in that the
extension of the number of cow stands was less than 25%.
8. Application No. 16118/90 - Th.C.M. GIEBELS
The applicant was born in 1949 and resides in Mierlo. On
24 June 1984 he applied for a reference quantity under Section 19 of
the 1984 Ordinance. The Minister rejected the applicant's request on
2 January 1985.
On 9 June 1986 the applicant submitted a new application for a
reference quantity. The second application was based on Section 2 of
the Additional Super Levy Ordinance. On 30 September 1986 the Director
of Agriculture and Food Supply of the province of Noord-Brabant issued
favourable advice.
However, on 19 December 1986 the Minister rejected the request,
holding that it had not been established that the investment
obligations in respect of the applicant's cow stands had been entered
into between 1 September 1981 and 1 March 1984. The applicant appealed
to the Industrial Appeals Tribunal on 15 January 1987.
On 16 March 1987 the President of the Industrial Appeals Tribunal
rejected the applicant's request for an interim measure.
Following adversarial proceedings in which the applicant was
represented by a lawyer and after having heard the parties on two
occasions, the Industrial Appeals Tribunal rejected the appeal on
15 November 1989. It held that the Minister has correctly refused to
allot the applicant a reference quantity on the basis of Section 2
para. 1 of the Additional Super Levy Ordinance.
9. Application No. 16513/90 - G.J.T. WILLEMSEN
The applicant was born in 1930 and resides in Overloon. On
6 February 1986 the applicant applied for a reference quantity under
Section 10 of the Super Levy Ordinance 1985 on the basis of the
consolidation of his farm.
On 20 October 1985 the Director of the Land Development
Department (Landinrichtingsdienst) initially issued a favourable
opinion. However, on 8 December 1986, following further investigation
into the applicant's situation, he changed his opinion on the ground
that the applicant had not relocated his activities in the framework
of the land consolidation and had not produced any milk since 1976.
On 31 December 1986 the Minister rejected the applicant's request
for a reference quantity under Section 10 of the 1985 Super Levy
Ordinance, holding that the applicant had not produced any milk since
1975. On 23 January 1987 the applicant filed an appeal with the
Industrial Appeals Tribunal.
On 18 March 1988 the President of the Industrial Appeals Tribunal
rejected the applicant's request for an interim measure.
Following adversarial proceedings in which the applicant was
represented by a lawyer and in which the parties were heard on two
occasions, the Industrial Appeals Tribunal rejected the applicant's
appeal on 10 January 1990. It held, inter alia, that the 1985 Super
Levy Ordinance contained no basis for an allotment of a reference
quantity to the applicant.
10. Application No. 16583/90 - H.P.J. SIMONS
The applicant was born in 1932 and resides in Haaren. On
14 June 1984 the applicant applied for a reference quantity under
Section 11 of the 1984 Ordinance.
On 31 August 1984 the Director of Agriculture and Food Supply of
the province of Noord-Brabant allotted to the applicant a reference
quantity of 366.378 kilogrammes, which was less than the applicant had
applied for.
On 26 September 1984 the applicant filed an objection against the
decision of 31 August 1984 with the Minister, who rejected it as ill-
founded on 13 May 1985. The Minister did not find it established that
the applicant had intended to continue to use a number of old cow
stands when he entered into investment obligations. On 20 May 1985 the
applicant appealed to the Industrial Appeals Tribunal.
On 29 November 1986 he requested the Tribunal to order an interim
measure to the effect that no super levy be collected pending the
outcome of the proceedings and to be reimbursed should it be collected.
On 22 January 1987 the President of the Tribunal granted this interim
measure, provisionally holding that the applicant's request for a
reference quantity was justified.
On 4 April 1989 the Minister amended his decision of 13 May 1985
insofar as the number of cow stands on the applicant's farm was fixed
at 78, not 88 as had been indicated in the previous decision. In view
of the amended decision of the Minister, the applicant supplemented his
appeal to the Industrial Appeals Tribunal on 12 April 1989.
Following adversarial proceedings in which the applicant was
represented by a lawyer and in which the parties and two witnesses were
heard, the Industrial Appeals Tribunal rejected the applicant's appeal
on 6 December 1989. It held, inter alia, that the Minister's
determination of the number of cow stands for the purposes of Section
11 of the 1984 Ordinance was correct and that his decision was properly
reasoned.
11. Application No. 16843/90 - J.O. and C.O.
The applicants were born in 1952 and 1954 respectively and both
reside in Venhorst. The applicants form a partnership. On 25 June 1984
they applied for a reference quantity under Section 11 of the 1984
Ordinance.
On 31 October 1984 the Director of Agriculture and Food Supply
of the province of Noord-Brabant rejected the applicants' request,
holding that the applicants' investments were less than the required
100.000 Dutch guilders and that their extension of the number of cow
stands was less than the required 25%. On 16 November 1984 the
applicants filed an objection with the Minister, who rejected it on
5 July 1985. On 30 July 1985 the applicants filed an appeal with the
Industrial Appeals Tribunal.
By letter of 24 April 1989 the Minister informed the applicants
that in the decision of 5 July 1985 an error had been made in respect
of the number of cow stands on the applicants' farm, but that in any
event the applicants had not complied with the investment requirements
under Section 11 of the 1984 Ordinance.
Following adversarial proceedings in which the applicants were
represented by a lawyer and in which parties and a witness were heard
on 26 October 1989, the Industrial Appeals Tribunal rejected the
applicants' appeal against the Minister's decision on 16 November 1989.
It found that the applicants' investments for the purposes of Section
11 of the 1984 Ordinance only amounted to 60.000 Dutch guilders and
that, therefore, their application had been rejected on correct
grounds.
12. Application No. 16896/90 - J.S. and Th.S.
The applicants were born in 1931 and 1940 respectively, and
reside in Haastrecht. On 21 June 1984 the applicants applied for a
reference quantity under Section 11 of the 1984 Ordinance.
On 22 March 1985 the Director of Agriculture and Food Supply of
the province of Zuid-Holland rejected the applicants' request, finding
that the applicants' investment obligations had been entered into after
1 March 1984, namely in May 1984.
On 29 March 1985 the applicants filed an objection with the
Minister, who, on the basis of an investigation by the GIS confirming
the findings of the Director of Agriculture and Food Supply, rejected
the applicants' objection as ill-founded on 18 March 1986.
On 15 April 1986 the applicants' lawyer filed an appeal to the
Industrial Appeals Tribunal.
Following adversarial proceedings, the President of the
Industrial Appeals Tribunal rejected the applicant's appeal as ill-
founded on 28 June 1989, holding that it had not been established that
the applicants had complied with the investment requirements under the
1984 Ordinance. The applicants subsequently filed an objection against
the President's decision with the Industrial Appeals Tribunal.
After having heard the applicants in chambers (raadkamer), the
Industrial Appeals Tribunal, in its decision of 25 October 1989, held
that the President had correctly rejected the appeal, that the
applicants' additional submissions did not alter this finding, and
rejected the applicants' objection against the President's decision of
28 June 1989 as ill-founded.
13. Application No. 16897/90 - J.W. and D.W.
The applicants were born in 1942 and 1946 respectively, and
reside in Boornzwaag. The applicants form a partnership. On
22 June 1984 the applicants applied for a reference quantity under
Section 11 of the 1984 Ordinance.
On 3 October 1984 the Director of Agriculture and Food Supply of
the province of Friesland rejected this request, holding that the
extension of the number of cow stands on the applicants' farm was less
than the required 25%. On 18 October 1984 the applicants filed an
objection with the Minister, who rejected it on 23 August 1985 as ill-
founded on the same ground. On 2 September 1985 the applicants filed
an appeal with the Industrial Appeals Tribunal.
On 15 June 1987 the President of the Industrial Appeals Tribunal
rejected the applicants' request for an interim measure. On
20 January 1989 the President rejected the applicants' second request
for an interim measure.
Following adversarial proceedings, in which the applicants were
represented by a lawyer and in which the parties and a witness were
heard, the Industrial Appeals Tribunal rejected the applicants' appeal
on 11 October 1989. It found that the extension of the number of cow
stands on the applicants' farm was less than the required 25%.
14. Application No. 17001/90 - J.B.G. KLINK
The applicant was born in 1920 and resides in Laag Zuthem. On
14 June 1984 he applied for a reference quantity under Section 11 of
the 1984 Ordinance. On 9 November 1984 the Director of Agriculture and
Food Supply of the province of Overijssel provisionally allotted to the
applicant a reference quantity of 262.490 kilogrammes.
However, on 15 August 1986, following an investigation by the
GIS, the Director of Agriculture and Food Supply rejected the
applicant's request for a reference quantity, as it had appeared that
the investment obligations had not been entered into by the applicant
before 1 March 1984. The applicant filed an appeal with the Industrial
Appeals Tribunal on 15 September 1986.
On 8 January 1987 the President of the Industrial Appeals
Tribunal rejected the applicant's request for an interim measure.
Following adversarial proceedings, in which the applicant was
represented by a lawyer and in which the parties and two witnesses were
heard, the Industrial Appeals Tribunal rejected the applicant's appeal
on 6 December 1989. It held, inter alia, that it had been established
that the applicant had submitted an antedated confirmation of an order
for the construction of a stable, and that it had not been established
that the applicant had entered into investment obligations within the
meaning of Section 11 of the 1984 Ordinance before 1 March 1984.
Also on 6 December 1989 the Industrial Appeals Tribunal, in a
different set of proceedings, rejected an appeal lodged by the
applicant and his son in respect of a refusal to allot them a reference
quota under Section 7 of the Super Levy Ordinance for Farm Succession
Undermanning Situations. In those proceedings the Industrial Appeals
Tribunal also concluded that it had not been established that the
investment obligations had been entered into before 1 March 1984 as
required under this Ordinance.
15. Application No. 17241/90 - F.S.
The applicant was born in 1966 and resides in St. Oedenrode. On
29 July 1986 he applied for a reference quantity under Section 7 of the
Super Levy Ordinance for Farm Succession Undermanning Situations.
On 18 November 1986 the Director of Agriculture and Food Supply
of the province of Noord-Brabant rejected the applicant's request
finding, inter alia, that the extension of the number of cow stands on
the applicant's farm was less than the required 25%. On
15 December 1986 the applicant filed an objection with the Minister,
who rejected it on 30 July 1987 as ill-founded, confirming that the
extension was less than 25%.
On 25 August 1987 the applicant appealed to the Industrial
Appeals Tribunal. On 8 November 1989 the President of the Tribunal
rejected the appeal as ill-founded, after having found that the
extension of the number of cow stands on the applicant's farm was less
than the required 25%. On 18 November 1989 the applicant filed an
objection.
After having heard the applicant in chambers, the Industrial
Appeals Tribunal, in its decision of 13 February 1990, held that the
President had correctly rejected the appeal, that the applicant's
additionally submitted grounds were insufficient to alter this finding,
and rejected the applicant's objection against the President's decision
of 8 November 1989 as ill-founded.
16. Application No. 17252/90 - H. BRAAM
The applicant was born in 1945 and resides at Kiel-Windeweer. On
8 June 1984 the applicant applied for a reference quantity under
Section 11 of the 1984 Ordinance. On 21 September 1984 the Director of
Agriculture and Food Supply of the province of Groningen allotted to
the applicant a reference quantity of 333.874 kilogrammes, which was
less than he had applied for.
On 9 October 1984 the applicant filed an objection with the
Minister, who rejected it on 22 May 1985 as ill-founded. The Minister
held that the applicant had not proved that, at the time he entered
into his investment obligations, he planned an extension of the number
of cow stands on his farm rather than a partial replacement of old cow
stands. On 15 June 1985 the applicant appealed to the Industrial
Appeals Tribunal.
On 17 August 1989, following adversarial proceedings in which the
applicant was represented by a lawyer, the President of the Tribunal
rejected the applicant's appeal as ill-founded, holding that it had
sufficiently appeared from submitted documents that the applicant, at
the time he entered into his investment obligations, had not intended
to continue to use the old cow stands in addition to the cow stands in
the new stable to be constructed. On 29 August 1989 the applicant's
lawyer filed an objection with the Industrial Appeals Tribunal.
After having heard the applicant in chambers, the Industrial
Appeals Tribunal rejected the objection as ill-founded. It held that
the President had correctly rejected the appeal, that the additionally
submitted grounds did not alter this finding, and that the applicant
had failed to submit further evidence in order to make his allegations
plausible.
17. Application No. 17675/91 - A.J. VERSMISSEN
The applicant was born in 1937 and resides in Borkel en Schaft.
On 24 June 1984 the applicant applied for a reference quantity under
Section 11 of the 1984 Ordinance. On 5 November 1984 the Director of
Agriculture and Food Supply of the province of Noord-Brabant rejected
the applicant's request, holding that it had not appeared from the
submitted evidence that the applicant had entered into investment
obligations between 1 September 1981 and 1 March 1984.
On 22 November 1984 the applicant filed an objection with the
Minister, who rejected it on 13 June 1985 as ill-founded on the same
ground as the Director of Agriculture and Food Supply. On 8 July 1985
the applicant filed an appeal with the Industrial Appeals Tribunal.
Following adversarial proceedings in which the applicant was
represented by a lawyer, in which the parties and a witness were heard
and in which the Industrial Appeals Tribunal had sought and obtained
further evidence from the applicant, the Industrial Appeals Tribunal
rejected the applicant's appeal on 3 May 1990. It held that the
applicant had failed to prove that he had entered into investment
obligations between 1 September 1981 and 1 March 1984.
18. Application No. 17883/91 - Th.B.
The applicant was born in 1923 and resides in Meerkerk. As the
applicant's land was spread over an area in different plots, he decided
to sell some of these plots and to buy land adjacent to his own within
the framework of a land consolidation plan. These transactions were
executed between April and June 1984.
After the applicant had reported the transactions, the Director
of Agriculture and Food Supply of the province of Zuid-Holland, by
decision of 26 August 1985, determined the applicant's reference
quantity on the basis of the new situation. Pursuant to Sections 5, 14
and 16 of the 1984 Ordinance, the Director took the respective sizes
of the plots sold and acquired by the applicant into account in his
determination. The new determination resulted in a lower reference
quantity for the applicant.
On 18 September 1985 the applicant filed an objection with the
Minister, who rejected it on 18 February 1987 as ill-founded, and who
refused to apply Section 19 of the 1984 Ordinance in the applicant's
case. On 19 March 1987 the applicant filed an appeal with the
Industrial Appeals Tribunal.
On 9 May 1989 the President of the Industrial Appeals Tribunal
rejected the applicant's request for an interim measure.
Following adversarial proceedings in which the applicant was
represented by a lawyer and in which the parties and a witness were
heard, the Industrial Appeals Tribunal rejected the applicant's appeal
on 20 June 1990. It held that, pursuant to Section 14 of the 1984
Ordinance, the applicant's reference quantity had been correctly
reduced and that the Minister had correctly applied Section 19 of the
1984 Ordinance.
19. Application No. 18340/91 - P.F.M. VAN DER HEIJDEN
The applicant was born in 1952 and resides in Westerhoven. In
June 1984 the applicant applied for a reference quantity under Section
19 of the 1984 Ordinance. On 20 November 1984 the Minister rejected the
applicant's request.
On 18 December 1984 the applicant filed an appeal with the
Industrial Appeals Tribunal. The President of the Industrial Appeals
Tribunal rejected the applicant's appeal on 27 May 1987 as ill-founded.
On 8 July 1987 the Registry of the Industrial Appeals Tribunal
informed the applicant that, as the Industrial Appeals Tribunal saw no
reason to declare the applicant's objection against the President's
decision ill-founded or inadmissible, the President's decision was void
and that the applicant's appeal against the Minister's decision of
20 November 1984 would be decided by the Industrial Appeals Tribunal.
Following adversarial proceedings in which the applicant was
represented by a lawyer and in which the parties were heard, the
Industrial Appeals Tribunal rejected the applicant's appeal on
30 January 1990, holding that the Minister had correctly rejected the
applicant's request.
On 27 March 1990 the applicant requested a review (herziening)
of the decision of 30 January 1990, alleging that a typing error had
been made in the date on one of the documents examined by the
Industrial Appeals Tribunal. On 18 September 1990 the President of the
Industrial Appeals Tribunal rejected the request for a revision. The
applicant's subsequent objection against this decision was rejected on
21 February 1991 by the Industrial Appeals Tribunal.
20. Application No. 18615/91 - P.H.
The applicant was born in 1940 and resides in Wellerlooi. On
28 June 1984 the applicant applied for a reference quantity under
Section 11 of the 1984 Ordinance. Following a provisional grant on
1 October 1984, the Director of Agriculture and Food Supply of the
province of Limburg, on 10 April 1985, allotted to the applicant a
reference quantity of 389.792 kilogrammes.
On 8 August 1986 the applicant's son, who intended to take over
the farm, applied for a reference quantity under the Super Levy
Ordinance for Farm Succession Undermanning Situations.
In the course of the examination of the son's request, the GIS
also examined the documents submitted by the applicant in 1984 in
support of his application of 28 June 1984. It appeared from this
examination that the applicant had not entered into investment
obligations before 1 March 1984. Consequently, by decision of
23 January 1989, the Minister withdrew the applicant's reference
quantity granted on 10 April 1985 with retroactive effect. In the same
decision the Minister granted the applicant's son a reference quantity
under the Super Levy Ordinance for Farm Succession Undermanning
Situations provided the take-over of the farm would occur before
1 April 1989.
On 2 February 1989 the applicant requested the Minister to
reconsider his decision of 23 January 1989, but this request was
rejected on 5 July 1989.
On 20 February 1989 the applicant filed an appeal against the
Minister's decision of 23 January 1989 with the Industrial Appeals
Tribunal.
On 6 February 1990 the Minister partially revised his decision
of 23 January 1989, removing its retroactive effect. The withdrawal of
the reference quantity thus came into effect on 1 February 1989.
On 23 February 1990 the applicant filed an objection with the
Minister and appealed to the Industrial Appeals Board against the
latter aspect of the decision. This appeal was joined to the procedure
already pending before the Industrial Appeals Tribunal.
In the meantime, criminal proceedings had been brought against
the applicant. By summons of 27 April 1989 the applicant was ordered
to appear before the Magistrate (politierechter) of the Regional Court
(Arrondissementsrechtbank) of Roermond on charges of intentional use
of forged construction contracts and building plans. Following
adversarial proceedings in which the applicant and several witnesses
were examined, the full bench of the Regional Court, to which the case
had been referred by the Magistrate, acquitted the applicant of all
charges by judgment of 22 May 1990.
On 12 July 1990 the applicant asked the Minister to reconsider
his decision of 23 January 1989, as revised on 6 February 1990, taking
into account that he had been acquitted by the Roermond Regional Court.
This request was rejected on 27 September 1990, as the Minister held
that the outcome of criminal procedures, as such, has no bearing on
decisions taken under Section 11 of the 1984 Ordinance. The applicant
also appealed against the latter decision to the Industrial Appeals
Tribunal on 25 October 1990. This appeal was joined to the proceedings
already pending there.
In the proceedings before the Industrial Appeals Tribunal, the
applicant had requested the President of the Industrial Appeals
Tribunal to take an interim measure on two occasions, i.e. on
19 April 1989 and 16 March 1990. The President rejected these requests
on 20 July 1989 and 26 April 1990 respectively.
Following adversarial proceedings in which the applicant was
represented by a lawyer and in which the parties and eight witnesses
were heard, the Industrial Appeals Tribunal rejected the applicant's
various appeals on 22 January 1991. It held, inter alia, that the
applicant had failed to prove that he had entered into investment
obligations before 1 March 1984. The Industrial Appeals Tribunal also
held that the general principles of proper administration (algemene
beginselen van behoorlijk bestuur) had been respected.
21. Application No. 19590/92 - C.D.
The applicant was born in 1940, resides in Oirschot, and owned
a dairy farm until early 1987, in respect of which he had been allotted
a reference quantity. In April and May 1987 the applicant sold his land
in several separate plots, together with corresponding parts of his
reference quantity, to a company with limited liability, Quotumbureau
B.V., which in turn sold the plots and the corresponding reference
quantities to others.
The Quotumbureau B.V. and the new owners notified each
transaction involving a transfer of reference quantity to the Director
of Agriculture, Nature and Outdoor Recreation of the province of Noord-
Brabant. The Director reacted to each notification by issuing a
decision confirming the registration of the transfer of the reference
quantity as of 1 April 1987, whilst the applicant's quota was reduced
each time to a corresponding extent. The decisions were sent to both
the applicant and the new owner of the plot concerned. According to the
last decision of the Director, dated 11 February 1988, the reference
quantity of the applicant was reduced to zero. No objections against
any of the Director's decisions were filed within the prescribed 30
days.
However, by letter of 4 September 1989, the applicant objected
before the Director of Agriculture, Nature and Outdoor Recreation that
all transfers of the reference quantity had been registered as of
1 April 1987. He submitted his contract with Quotumbureau B.V.,
pursuant to which he was entitled to use the plots and produce milk up
to 15 May 1987. However, as a consequence of the quota transfer being
fixed for 1 April 1987, he had to pay a levy for all milk produced by
him between 1 April and 15 May 1987. The applicant suggested that
apparently a mistake had been made by the Quotumbureau B.V. and
requested the Director to revise his decisions and to allot the
applicant a reference quantity for the period between 1 April and
15 May 1987.
This request was rejected by the Minister on 10 July 1990 on the
ground that no facts or circumstances had been referred to on the basis
of which it should be assumed that the applicant could not be blamed
for not having filed an objection earlier. The Minister found no
reasons to revise the decisions taken.
On 7 August 1990, the applicant appealed to the Industrial
Appeals Tribunal. Following adversarial proceedings in which the
applicant was represented by a lawyer and in which the parties were
heard, the Industrial Appeals Tribunal rejected the appeal on
10 July 1991. It noted that, given the absence of a timely objection
by the applicant against the Director's decisions, the registration
decisions had obtained the force of res judicata, and found there were
no special circumstances on the basis of which it would have been
reasonable for the Minister to revise the decisions at issue.
22. Application 19591/92 - J.B.
The applicant was born in 1936 and resides in Oirschot. Until
early 1987 the applicant owned a dairy farm in respect of which a
reference quantity had been allotted to him. In April 1987, the
applicant sold his land in separate plots, together with corresponding
parts of his reference quantity, to a company, Quotumbureau B.V., which
in turn sold the plots and the corresponding reference quantities to
others.
The Quotumbureau B.V. and the new owners notified all
transactions to the Director of Agriculture, Nature and Outdoor
Recreation of the province of Noord-Brabant. The Director was requested
to register each transaction and transfer of the corresponding
reference quantity to the new owner, as from the beginning of the levy-
year (heffingsjaar) 1987/1988.
On 12 November 1987 the Director of Agriculture, Nature and
Outdoor Recreation informed the buyers of two plots that he would not
register the transfer they had requested. The buyers filed an objection
against this decision with the Minister.
The Director informed the applicant on 28 January 1988 that, as
a consequence of the transactions, his reference quantity was reduced
to zero as of 1 April 1987. The applicant did not file any objection
against this decision.
By decision of 27 December 1989, directed to the two buyers, the
applicant and another buyer, the Minister declared the first two
buyers' respective appeals founded, annulled the initial refusal of the
Director and ordered the registration of the transfer of the reference
quantity as from 1 April 1987.
On 25 January 1990 the applicant filed an appeal with the
Industrial Appeals Tribunal against the Minister's decision in respect
of the date of the transfer of the reference quantity. He submitted his
contract with the Quotumbureau B.V., according to which he was entitled
to use the plots and produce milk up to 15 May 1987. However, as a
consequence of the reference quantity transfer being fixed for
1 April 1987, he had to pay a levy for all milk produced by him between
1 April and 15 May 1987. The applicant suggested that apparently a
mistake had been made by the Quotumbureau B.V.. The applicant requested
the Tribunal partially to quash the Minister's decision of
27 December 1989 and order that, for the levy-year 1987/1988, a part
of the reference quantity remain registered in the applicant's name.
Following adversarial proceedings in which the applicant was
represented by a lawyer and in which the parties were heard, the
Industrial Appeals Tribunal rejected the applicant's appeal on
10 July 1991. It noted that, although according to the terms in the
applicant's contract with the Quotumbureau B.V. of 13 April 1987 the
applicant should be entitled to deliver milk until 15 May 1987, the
terms of a subsequent notarial agreement of 24 April 1987 between the
applicant and the Quotumbureau B.V. stipulates that the applicant's
reference quantity was to be transferred as from the beginning of the
levy-year 1987/1988. Consequently, it concluded that the Minister's
decision had been taken in accordance with the contract between the
Quotumbureau B.V. and the applicant as stated in the notarial
agreement.
23. Application No. 19637/92 - L.A.M. VERHAGEN
The applicant was born in 1933 and resides in Son. On
10 June 1984 he applied for a reference quantity under Section 11 of
the 1984 Ordinance. Following a provisional grant on 9 October 1984 of
223.544 kilogrammes, the Director of Agriculture and Food Supply of the
province of Noord-Brabant granted the applicant a reference quantity
on 12 March 1985.
Following the applicant's objection against both the provisional
and the final decision of the Director, the Minister annulled the
Director's decision on 5 August 1986, as it had appeared from a GIS
investigation of the documents submitted by the applicant in June 1984
that the applicant had not entered into investment obligations between
1 September 1981 and 1 March 1984. However, a certain reference
quantity could be granted to the applicant under Section 11 of the 1984
Ordinance on another basis, i.e. the applicant's acquisition of a farm
with 28 cow stands. The Minister therefore ordered a new determination
of the applicant's reference quantity. On 1 September 1986 the
applicant filed an appeal against the Minister's decision with the
Industrial Appeals Tribunal. On 17 February 1987, on the basis of
information submitted by the applicant in the course of the proceedings
before the Industrial Appeals Tribunal, the Minister revised his
decision of 5 August 1986 and held that the applicant did not fulfil
the requirements for a reference quantity under Section 11 of the 1984
Ordinance, as the 28 cow stands were smaller than the required minimum
breadth of 1,10 metres. On 16 March 1987 the applicant filed an appeal
against the decision of 17 February 1987 with the Industrial Appeals
Tribunal, which was joined to the proceedings already pending.
In the meantime, criminal proceedings had been brought against
the applicant. By summons of 20 February 1987 the applicant was ordered
to appear before the Magistrate of the 's-Hertogenbosch Regional Court
on charges of intentional use of a forged construction contract in
connection with his application for a reference quantity. By judgment
of 23 March 1988, the Magistrate acquitted the applicant of the charges
against him.
Following adversarial proceedings in which the applicant was
represented by a lawyer and in which the parties and a witness were
heard, the Industrial Appeals Tribunal rejected the applicant's appeals
on 14 December 1988. It held, inter alia, that the applicant had failed
plausibly to show that he had entered into investment obligations
before 1 March 1984. It also held that the Minister had taken his
decision of 17 February 1987 on correct grounds.
On 29 December 1988 the applicant requested the Industrial
Appeals Tribunal to revise (herziening) its decision of
14 December 1988. On 13 November 1990 the President of the Industrial
Appeals Tribunal rejected the applicant's request. His subsequent
objection against the President's decision of 13 November 1990 was
rejected by the Industrial Appeals Tribunal on 31 July 1991.
24. Application No. 20311/92 - L.A.G. HUIJBEN
The applicant was born in 1963 and resides in Odiliapeel. Since
1 January 1984, the applicant has exploited a dairy farm in partnership
with his father. On 18 July 1986 the applicant applied for a reference
quantity under the Super Levy Ordinance for Farm Succession
Undermanning Situations, as he intended to take over the dairy farm.
Following a provisional grant of the applicant's request, the Director
of Agriculture, Nature and Outdoor Recreation of the province of Noord-
Brabant, on 17 July 1987, allotted to the applicant a reference
quantity of 279.391 kilogrammes, on condition that the applicant would
take over the farm before 1 April 1989.
On 31 March 1989, the applicant informed the Director of
Agriculture, Nature and Outdoor Recreation that the take-over had taken
place. By letter of 3 October 1989 the Director requested additional
information, as it did not appear from the submitted documents that,
in respect of the take-over, the applicant had complied with all
requirements. The applicant replied by letter of 12 October 1989.
By decision of 9 November 1989 the Director withdrew the
reference quantity allotted to the applicant because, from the
information and documents submitted, it appeared that the take-over had
not taken place in accordance with the provisions of the Super Levy
Ordinance for Farm Succession Undermanning Situations. On
30 November 1989 the applicant filed an objection with the Minister,
who rejected it on 16 July 1990, holding that the applicant did not
qualify for a reference quantity under that Ordinance. On
10 August 1990 the applicant filed an appeal against the Minister's
decision with the Industrial Appeals Tribunal.
Following adversarial proceedings in which the applicant was
represented by a lawyer and in which the parties were heard on
27 February 1991 and on 11 September 1991, the Industrial Appeals
Tribunal rejected the applicant's appeal on 30 October 1991. It found,
inter alia, that the applicant had not fully taken over his father's
farm and that thus the conditions under the Super Levy Ordinance for
Farm Succession Undermanning Situations had not been met. It further
held that the Minister had correctly applied and interpreted the
relevant rules of the Ordinance at issue.
25. Application No. 22532/93 - E.P. and C.P.
The applicants were born in 1965 and 1967 respectively, and
reside in Weerselo. Since 1986, the applicants have run the dairy farm
of their father, to whom a reference quantity had been allocated under
the 1984 Ordinance. As the applicants intended to take over their
father's farm, they requested a reference quantity on 25 July 1986
under the Super Levy Ordinance for Farm Succession Undermanning
Situations. In view of this take-over, the applicants established a
partnership in 1988.
On 9 June 1987, the Director of Agriculture, Nature and Outdoor
Recreation of the province of Overijssel allotted to the applicants a
reference quantity under the Super Levy Ordinance for Farm Succession
Undermanning Situations on condition that the take-over would take
place before 1 April 1989.
On 10 October 1989 the Director of Agriculture, Nature and
Outdoor Recreation withdrew the quota allotted on 9 June 1987, as the
applicants had failed to submit sufficient evidence that they had in
fact taken over their father's farm before 1 April 1989. On
7 November 1989 the applicants filed an objection with the Minister.
The objection did not contain any grounds.
The Minister rejected the applicants' objection on
23 October 1991. Although the applicants had failed to submit any
grounds for their objection, the Minister examined the Director's
decision of 10 October 1989 ex officio. The applicants filed an appeal
against the Minister's decision with the Industrial Appeals Tribunal
on 21 November 1991. Their grounds of appeal were submitted on
20 December 1991.
Following adversarial proceedings in which the applicants were
represented by a lawyer and in which the parties were heard on
3 March 1993, the Industrial Appeals Tribunal rejected the applicants'
appeal on 14 April 1993. It found, inter alia, that the applicants had
not taken over the farm before 1 April 1989, despite the fact that they
had been repeatedly informed that non-compliance with this condition
could affect their entitlement to a reference quantity under the Super
Levy Ordinance for Farm Succession Undermanning Situations. The
Industrial Appeals Tribunal also rejected the applicants' argument that
this failure was caused by extraordinary circumstances.
c. Relevant domestic law and practice
Pursuant to Section 46 of the Agriculture Act (Landbouwwet), an
appeal against a decision by the Minister concerning, inter alia, the
allocation of a reference quantity can be filed with the Industrial
Appeals Tribunal, a judicial body set up under the Industrial
Jurisdiction Act (Wet Administratieve Rechtspraak Bedrijfsorganisatie)
of 16 September 1954. No further appeal lies against a decision of the
Industrial Appeals Tribunal.
The Tribunal judges are appointed for life by the Crown and must
have the same qualifications as Court of Appeal judges (Section 9 of
the Industrial Appeals Act). They take the same oath and receive the
same salary as Court of Appeal judges and are subject to the same rules
and procedure as regards supervision and dismissal (Sections 11 and 12
of the Industrial Appeals Act). They may not have any other official
position, nor may they hold any position in private enterprise or in
any association of employers or employees (Section 10 of the Industrial
Appeals Act).
The proceedings before the Industrial Appeals Tribunal are public
and normally comprise both written and oral proceedings (Sections 29ff.
of the Industrial Appeals Act). However, if the Industrial Appeals
Tribunal is not competent or when, in view of the constant case-law of
the Industrial Appeals Tribunal, an appeal is manifestly inadmissible
or ill-founded, the President of the Industrial Appeals Tribunal, in
a reasoned decision pronounced in public, can declare the Industrial
Appeals Tribunal not competent in the matter, or declare the appeal
inadmissible or unfounded without a further examination by the
Industrial Appeals Tribunal (Section 37 of the Industrial Appeals Act).
An appellant may lodge an objection against this decision with the
Industrial Appeals Tribunal, which will determine the objection after
having heard the appellant concerned (Section 38 of the Industrial
Appeals Act). It can then either reject the objection, or decide to
decide on the appeal itself. In the latter case the President's
decision becomes null and void.
Pursuant to Section 51 of the Industrial Appeals Act, both
parties to proceedings before the Industrial Appeals Tribunal, i.e. the
Government body and the appellant, may alter their claim or their
defence and the grounds advanced in support, until the close of the
hearing, unless the Industrial Appeals Tribunal considers that such a
change places the opponent at an unreasonable disadvantage.
Under Section 65 of the Industrial Appeals Act an appellant can
request the President of the Industrial Appeals Tribunal to take
interim measures. Such a request can be made both before and after
filing an appeal on the merits. The President must give a decision as
soon as possible, after having heard the Government body concerned, or
at least after having offered it the opportunity to be heard.
The Industrial Appeals Tribunal is competent to review acts and
decisions of a socio-economic nature for compliance with legislation
of a general nature and the general principles of proper
administration, in order to verify whether there had been any abuse of
authority and to determine whether, in weighing up the interests at
stake, the Government body concerned had acted reasonably in deciding
as it had.
It may overrule the challenged decision and provide for the
consequences of such a reversal. In particular, it may order the
Government body concerned to make, retract or alter a decision, or to
act or refrain from acting in a certain way. Its judgment might include
an order to pay a penalty in the event of non-compliance (Section 58
of the Industrial Appeals Act). The Industrial Appeals Tribunal can
also order a Government body to pay compensation for any damage
suffered by the appellant as a result of the decision or act in
question (Section 60 of the Industrial Appeals Act). To the extent that
its judgment orders payment of a sum of money, it can be executed in
accordance with the rules pertaining to the execution of judgments of
the civil courts (Section 62 of the Industrial Appeals Act).
Sections 74 and 75 para. 1 of the Industrial Appeals Act provide
as follows:
Section 74
"1. If, in Our opinion the consequences of a judgment
[i.e. of the Industrial Appeals Tribunal] are contrary to
the general interest, We may, on the recommendation of
those of Our ministers whom it concerns, decide that it
shall not be followed or shall not be followed in its
entirety.
2. Pending the taking of a decision under the preceding
paragraph, We may, on the recommendation of those of Our
ministers whom it concerns, suspend the judgment for a
length of time to be determined by Us. Even after
prolongation, suspension may not be longer than one year.
3. A decision as referred to in the first paragraph may
only be taken within two months of the judgment or, if the
judgment is suspended within that period, within the length
of time determined for the suspension. A decision as
referred to in the second paragraph may only be taken
within two months of the judgment.
4. Our decisions shall be published in the Official
Bulletin.
5. The first two paragraphs shall not apply insofar as
the judgment awards compensation or partial compensation,
or orders the payment of costs. ...".
Section 75 para.1
"If We decide that the judgment shall not be followed or
shall not be followed in its entirety, the Industrial
Appeals Tribunal may, at the request of the person
concerned, retry the case taking due notice of Our
decision, or order the Government body concerned to pay
compensation for all or part of the damage suffered by the
appellant as a consequence of the fact that the judgment is
not followed or not followed in its entirety."
The expressions "We", Our" and "Us" in the above sections refer
to the fact that the decisions under Section 74 were to take the form
of a Royal Decree (Koninklijk Besluit), a decree signed by the Queen
and the responsible Minister (the "Crown"). As such a Decree could only
be adopted on the initiative and under the political responsibility of
a Minister, it was effectively the Minister who had the power to issue
a decision under Section 74 paras. 1 and 2 of the Industrial Appeals
Act. No use was ever made of the powers under Sections 74 and 75.
On 1 January 1994 the General Administrative Law Act (Algemene
Wet Bestuursrecht) entered into force, laying down new uniform rules
of administrative law procedure. On that same date the Industrial
Appeals Act was replaced by the Industrial Organisation Administrative
Law Act (Wet Bestuursrechtspraak Bedrijfsorganisatie). Under Section
19 of that Act, the new uniform rules laid down in the General
Administrative Law Act also govern the procedure before the Industrial
Appeals Tribunal.
There is no provision in either the General Administrative Law
Act or the Industrial Organisation Administrative Law Act empowering
any executive authority to interfere with the binding force of a
judgment.
COMPLAINTS
1. All applicants complain that they did not have access to an
independent tribunal for the determination of their civil rights, as
the Industrial Appeals Tribunal could not be regarded as an independent
tribunal within the meaning of Article 6 para. 1 of the Convention,
given the Minister's previous powers under Section 74 of the Industrial
Appeals Act.
2. The applicants mentioned under Nos. 3, 5, 7, 8, 9, 10, 11, 12,
14, 15, 16, 17, 19, 20, and 23 also complain that in the determination
of their civil rights they did not receive a fair hearing as required
by Article 6 para. 1 of the Convention.
In particular:
- The applicants mentioned under Nos. 3, 12 and 16 complain that
the Industrial Appeals Tribunal, following its President's rejection
of their appeal, failed to examine the merits of their appeals.
- The applicants mentioned under Nos. 5, 7, 8, 9, 11, 14, 15, 17,
19, 20 and 23 complain that the Industrial Appeals Tribunal incorrectly
assessed the evidence before it and in certain cases failed to
sufficiently reason its findings in light of the evidence submitted by
the appellants.
- Finally, the applicants mentioned under Nos. 8, 10 and 11
complain that the principle of "equality of arms" has been violated
because, whilst they were required under Section 6 para. 2 of the 1984
Ordinance to produce all their arguments and evidence at the outset,
the Minister could change his arguments or amend his decision to suit
his position as the case evolved.
3. The applicants mentioned under Nos. 5, 7, 19, 24 and 25 complain
under Article 6 para. 1 of the Convention that their civil rights have
not been determined within a reasonable time.
4. The applicant mentioned under No. 20 complains under Article 6
para. 1 of the Convention that no appeal lies against a judgment of the
Industrial Appeals Tribunal.
5. The applicants mentioned under Nos. 1, 6, 13 and 18 also complain
that the proceedings to which they were a party were contrary to
Article 6 para. 2 of the Convention.
6. The applicants mentioned under No. 25 complain under Article 13
of the Convention, in conjunction with Article 1 of Protocol No. 1,
that they had no effective remedy in respect of the determination of
their request for a reference quantity.
7. The applicants mentioned under No. 25 finally complain that the
proceedings on their request for a reference quantity constituted
mental torture contrary to Article 3 of the Convention, and violated
Articles 7 and 14 of the International Covenant on Civil and Political
Rights, Article 3 paras. 2 and 3 of the EEC Council Regulation no.
857/84, and Section 43 of the Statute of the Kingdom of the Netherlands
(Statuut voor het Koninkrijk der Nederlanden).
PROCEEDINGS BEFORE THE COMMISSION
The present applications were introduced on different dates
between 23 January 1987 and 30 June 1993. They were registered on
different dates between 20 January 1989 and 26 August 1993.
On 1 April 1992 the Commission decided to communicate the
applications mentioned under Nos. 1-20 to the respondent Government,
pursuant to Rule 48 para. 2 (b) of the Rules of Procedure without, at
that time, requesting the Government to submit observations. The
applications were adjourned pending another case on milk quotas, namely
Application No. 16034/90, Van de Hurk v. the Netherlands, which was
subsequently referred to the European Court of Human Rights.
Similar procedural decisions were taken in the other applications:
- on 12 January 1993 in the applications mentioned under Nos. 21-
24; and
- on 2 March 1994 in the application mentioned under No. 25.
The European Court of Human Rights delivered its judgment in the
Van de Hurk case on 19 April 1994 (Eur. Court H.R., Van de Hurk
judgment of 19 April 1994, Series A no. 288).
On 18 May 1994 the Commission decided to join the applications
in three groups, i.e. the applications mentioned under Nos. 1, 2, 3,
4, 5, 6, 8, 9, 10, 11, 12, 13, 14, 15, 16, 18, 20, 23, 24 and 25, the
applications mentioned under Nos. 7, 17 and 19, and the applications
mentioned under Nos. 21 and 22. It further decided to request the
parties to submit their observations on the admissibility and merits
of the applications in the light of the Van de Hurk judgment.
The Government's written observations were submitted on 9
December 1994, after an extension of the time-limit fixed for that
purpose.
The applicants mentioned under Nos. 2, 7, 8, 9, 10, 11, 15, 17,
19, 20, 23 and 24 submitted their observations in reply on 6 April
1995, after an extension of the time-limit. The applicants mentioned
under No. 25 replied on 3 May 1995, after an extension of the time-
limit. The applicants mentioned under Nos. 1, 3, 4, 6, 12, 13, 18, 21
and 22 submitted their observations in reply on 30 May 1995, also after
an extension of the time-limit. The applicant mentioned under No. 16
submitted his observations in reply on 23 June 1995, after the expiry
of the time-limit. The applicants mentioned under Nos. 5 and 14 did not
submit any observations in reply.
THE LAW
1. General
All applicants complain that, in view of the Minister's power
under Section 74 of the Industrial Appeals Act, they did not have
access to an independent tribunal, within the meaning of Article 6
para. 1 (Art. 6-1) of the Convention, for a determination of the amount
of milk they were allowed to produce, as fixed by a reference quantity.
The applicants mentioned under Nos. 3, 5, 7, 8, 9, 10, 11, 12,
14, 15, 16, 17, 19, 20 and 23 also complain, on several grounds, that
in the determination of their civil rights they did not receive a fair
hearing as required by Article 6 para. 1 (Art. 6-1) of the Convention.
The applicants mentioned under Nos. 5, 7, 19, 24 and 25 further
complain under Article 6 para. 1 (Art. 6-1) of the Convention that
their civil rights have not been determined within a reasonable time.
The applicant mentioned under No. 20 complains under Article 6
para. 1 (Art. 6-1) of the Convention that no appeal lies against a
judgment of the Industrial Appeals Tribunal.
Article 6 para. 1 (Art. 6-1) of the Convention, insofar as
relevant, reads:
"In the determination of his civil rights and obligations ...,
everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal
established by law. ...".
2. As regards Article 25 (Art. 25) of the Convention
The Government submit in the first place that, even assuming that
Section 74 of the Industrial Appeals Act is contrary to Article 6
(Art. 6) of the Convention, the applicants cannot claim to be victims
of the existence of this statutory provision, as this provision has
never been applied. The Government further submit that there is no
indication that the mere existence of the Crown's powers under Section
74 had any influence on the way the Industrial Appeals Tribunal handled
and decided the cases which came before it. They refer in this respect
to the finding of the European Court of Human Rights on this point in
its judgment in the similar case of Van de Hurk (Eur. Court. H.R., Van
de Hurk judgment of 19 April 1994, Series A no. 288, p. 17, para. 47).
The applicants, equally referring to the finding by the European
Court of Human Rights in the Van de Hurk case of a violation of Article
6 para. 1 (Art. 6-1), refute the Government's argument as regards the
question whether they can claim to be victims within the meaning of
Article 25 (Art. 25) of the Convention.
The Commission recalls that in the Van de Hurk judgment against
the Netherlands the Court held that, although Section 74 of the
Industrial Appeals Act had never been applied, and although there was
no indication that this provision influenced the way in which the
Industrial Appeals Tribunal handled and decided the case before it,
this provision was still law at the time of the events complained of
and there was nothing to prevent the Crown from availing itself of its
powers under Section 74 (loc. cit., p. 16-17, paras. 47-50).
The Commission finds no reason to take a different position in
the present applications and, therefore, accepts that the applicants
may be regarded as victims within the meaning of Article 25 (Art. 25)
of the Convention (cf. No. 12314/86, Dec. 6.3.89, D.R. 60 p. 172).
3. As regards Article 26 (Art. 26) of the Convention
Under Article 26 (Art. 26) of the Convention the Commission may
only deal with a matter within a period of six months from the date on
which the final decision was taken.
a. As regards Application No. 18340/91 (No. 19) and Application No.
19637/92 (No. 23), the Commission notes that the applicants
unsuccessfully sought to obtain a revision of the final decisions of
the Industrial Appeals Tribunal of 30 January 1990 and 14 December 1988
respectively. Both applicants subsequently filed their applications to
the Commission, on 11 April 1991 and 16 January 1992 respectively, more
than six months after these decisions, but within six months of the
revision refusals.
The Commission has consistently held that the refusal of a
request to reopen proceedings does not restart the running of the six
months period referred to in Article 26 (Art. 26) of the Convention,
unless it is successful and actually results in the reopening (cf. No.
10431/83, Dec. 16.12.83, D.R. 35 p. 218 and No. 23949/94, Dec. 18.5.94,
D.R. 77-A p. 140).
It follows that these two applications must be rejected under
Article 27 para. 3 (Art. 27-3) of the Convention for failure to respect
the six months time-limit provided for in Article 26 (Art. 26) of the
Convention.
b. As regards Application No. 17001/90 (No. 14), the Commission
observes that the applicant complains of two sets of proceedings, i.e.
one set concerning a request for a reference quantity based on the 1984
Ordinance, and a second set concerning a request for a reference
quantity based on Section 7 of the Super Levy Ordinance for Farm
Succession Undermanning Situations.
The Commission further observes that in his initial letter of 1
June 1990 the applicant only complained of the proceedings concerning
his request under the 1984 Ordinance and that the complaint on the
second set of proceedings was raised for the first time in the
application form he submitted on 18 July 1990.
The Commission finally observes that the final decision in the
second set of proceedings concerning the applicant's request under the
Super Levy Ordinance for Farm Succession Undermanning Situations was
given on 6 December 1989 by the Industrial Appeals Tribunal. The
applicant's complaint about these proceedings has, therefore, not been
submitted within the six months time-limit laid down in Article 26
(Art. 26) of the Convention (cf. No. 10857/84, Dec. 15.7.86, D.R. 48
p. 106).
It follows that the part of Application No. 17001/90 involving
the second set of proceedings must be rejected under Article 27 para.
3 (Art. 27-3) of the Convention.
4. As regards Article 6 para. 1 (Art. 6-1) of the Convention
a) "Tribunal"
Concerning the other applicants' complaint that the Industrial
Appeals Tribunal, in view of the Crown's powers under Section 74 of the
Industrial Appeals Act, cannot be regarded as a "tribunal", within the
meaning of Article 6 para. 1 (Art. 6-1) of the Convention, the
Government accept the Court's finding in its Van de Hurk judgment that
Section 74 of the Industrial Appeals Act is incompatible with this
provision of the Convention.
After a preliminary examination of the substance of the present
complaint in the light of the parties' submissions and the Court's
findings in the Van de Hurk case, the Commission considers that it
raises issues of fact and law which require an examination of the
merits. This complaint cannot, therefore, be declared inadmissible as
being manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention. No other grounds of inadmissibility have
been established.
b) "Fair hearing"
The applicants mentioned under Nos. 3, 5, 7, 8, 9, 10, 11, 12,
14, 15, 16, 17, and 20 also complain, on several grounds, that in the
determination of their civil rights they did not receive a fair hearing
as required by Article 6 para. 1 (Art. 6-1) of the Convention.
aa. Applications Nos. 15105/89, 16896/90 and 17252/90
Insofar as the applicants mentioned under Nos. 3, 12 and 16
complain that they did not receive a fair hearing because the
Industrial Appeals Tribunal, following its President's rejection of
their appeal, failed to examine the merits of their appeals, the
Commission notes that the President of the Industrial Appeals Tribunal
rejected the applicants' respective appeals after an examination of the
merits. The applicants subsequently filed an objection against the
President's decisions, which was rejected as ill-founded by the
Industrial Appeals Tribunal after it had heard the applicants.
The Commission recalls that Article 6 para. 1 (Art. 6-1) of the
Convention does not lay down rules for the way in which proceedings
before national courts are organised, which is primarily a matter for
regulation under national law (cf. No. 13926/88, Dec. 4.10.90, D.R. 66
p. 209).
The Commission finds that, in principle, no issue arises under
Article 6 para. 1 (Art. 6-1) of the Convention when the merits of an
appeal are decided by the President or a single member of the competent
appeal court on the basis of that court's constant case-law rather than
by its full bench. Moreover, the Commission notes that, before the
Industrial Appeals Tribunal rejected the applicants' objection to the
President's decision, it had heard the applicants. In these
circumstances the Commission finds no indication that in this respect
the applicants were deprived of a fair hearing within the meaning of
Article 6 para. 1 (Art. 6-1) of the Convention.
It follows that this complaint must be rejected as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
bb. Applications Nos. 15712/89, 15988/90, 16118/90, 16513/90,
16843/90, 17001/90, 17241/90, 17675/91 and 18615/91
The applicants mentioned under Nos. 5, 7, 8, 9, 11, 14, 15, 17,
and 20 complain that the Industrial Appeals Tribunal incorrectly
assessed the evidence before it and in certain cases failed to
sufficiently reason its findings in light of the evidence submitted by
the appellants.
As regards the judicial decisions in the respective applications,
the Commission recalls that, in accordance with Article 19 (Art. 19)
of the Convention, its only task is to ensure the observance of the
obligations undertaken by the Parties to the Convention. In particular
it is not competent to deal with a complaint alleging that errors of
law or fact have been committed by domestic courts, except where it
considers that such errors might have involved a possible violation of
any of the rights and freedoms set out in the Convention. The
Commission refers, on this point, to its constant case-law (cf. No.
21283/93, Dec. 5.4.94, D.R. 77-A p. 81).
Furthermore, the Commission may ensure that the presentation of
evidence was fair, but cannot review the interpretation and application
of national law (cf. No. 10153/82, Dec. 13.10.86, D.R. 49 p. 67). 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, loc. cit., p. 19, para. 59).
The Commission finds no indication that the applicants'
respective lawyers, or the applicants in person, were prevented from
making full submissions on the question of entitlement to a reference
quantity under the relevant domestic rules. The applicants were
provided with ample opportunity to state their respective cases, to
submit evidence and to challenge the submissions made by the opposing
party, both orally and in writing.
Insofar as it is alleged that the Industrial Appeals Tribunal
erred in its assessment of the evidence adduced by the applicants, it
is clear from the established case-law of the Commission referred to
above, that this is not a complaint which raises an issue as to the
rights guaranteed by Article 6 para. 1 (Art. 6-1) of the Convention.
As regards the complaint that the Industrial Appeals Tribunal did
not deal, or insufficiently dealt with various arguments advanced by
the applicants in the proceedings at issue, the Commission recalls that
Article 6 para. 1 (Art. 6-1) of the Convention obliges national courts
to give reasons for their judgments, but cannot be understood as
requiring a detailed answer to every argument (cf. Eur. Court H.R.,
Hiro Balani judgment of 9 December 1994, Series A no. 303-B, para. 27).
Making a general assessment, the Commission finds that the
decisions of the Industrial Appeals Tribunal, of which complaint is
made, were sufficiently reasoned for the purposes of Article 6 para.
1 (Art. 6-1) of the Convention.
It follows that these complaints must be rejected as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
cc. Applications Nos. 16118/90, 16583/90 and 16843/90
The applicants mentioned under Nos. 8, 10 and 11 complain that
the principle of "equality of arms" has been violated because, whilst
they were required under Section 6 para. 2 of the 1984 Ordinance to
produce all their arguments and evidence at the outset, the Minister
could change his arguments or amend his decision to suit his position
as the case evolved.
The Commission recalls that, as regards proceedings concerning
a determination of civil rights and obligations, the principle of
"equality of arms" implies that each party must be afforded a
reasonable opportunity to present his case under conditions that do not
place him at a substantial disadvantage vis-à-vis his opponent (Eur.
Court H.R., Dombo Beheer B.V. judgment of 27 October 1993, Series A no.
274, p. 19, para. 33).
The Commission further recalls that the Court, in the case of Van
de Hurk where the same complaint was made, held that this complaint
overlooks the fact that Section 51 of the Industrial Appeals Act meets
the requirement of "equality of arms" in that it allows both parties
to the proceedings before the Industrial Appeals Tribunal to "alter
their claim or their defence and the grounds advanced in support" (Eur.
Court H.R., Van de Hurk judgment, loc. cit., p. 19, para. 57).
As regards the applicant mentioned under No. 8, the Commission
notes that it does not appear that in this case the Minister changed
his arguments or amended his decision. As regards the applicants
mentioned under Nos. 10 and 11 the Commission notes that in those cases
the Minister did in fact alter his decision. The applicant mentioned
under No. 10 availed himself of the opportunity to supplement his
appeal to the Industrial Appeals Tribunal following the Minister's
amended decision. It does not appear that the applicants mentioned
under No. 11 availed themselves of the possibility to supplement their
appeal, which they could have done between 24 April 1989, when the
Minister revised his decision, and 26 October 1989, when their case was
heard before the Industrial Appeals Tribunal.
In these circumstances the Commission finds no indication that
the principle of equality of arms has not been respected.
It follows that this complaint must also be rejected as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
c) Length of proceedings
The applicants mentioned under Nos. 5, 7, 24 and 25 further
complain under Article 6 para. 1 (Art. 6-1) of the Convention that
their civil rights have not been determined within a reasonable time.
The Government submit that, following the introduction of the
super levy in 1984, some 40.000 applications for reference quantities
were submitted to the Minister and some 10.000 dairy farmers
subsequently lodged a notice of objection. The Industrial Appeals
Tribunal had to deal with over 7.000 appeals. This overburdened both
the Ministry and the Industrial Appeals Tribunal, which had
insufficient staff to deal with so many cases. The Government further
submit that as a result of this extra workload the Ministry employed
extra staff and allocated extra funds to the Industrial Appeals
Tribunal in order to allow it to employ extra judges and support staff
for the super levy cases.
The applicants submit that the Government could have prevented
the long duration of the proceedings and the resulting insecurity for
the parties. The Government could have opted for another appeal
procedure, i.e. by making the civil courts competent to decide on
appeals concerning the allocation of reference quantities. In that case
an appeal could have been determined by one of the 19 Regional Courts
in the Netherlands as opposed to one appeal court.
The Commission recalls that the reasonableness of the length of
proceedings must be assessed in the light of the particular
circumstances of the case and with the help of the following criteria:
the complexity of the case, the conduct of the parties and the conduct
of the authorities dealing with the case (cf. Eur. Court H.R., Vernillo
judgment of 20 February 1991, Series A no. 198, p. 12, para. 30)
aa. Application No. 20311/92
The Commission notes that the proceedings, of which the applicant
mentioned under No. 24 complains, started on 30 November 1989, when the
applicant filed an objection with the Minister (cf. Eur. Court H.R.,
Schouten and Meldrum judgment of 9 December 1994, Series A no. 304,
para. 62). The Minister rejected the objection on 16 July 1990. The
proceedings ended on 30 October 1991 when the Industrial Appeals
Tribunal, following two hearings held on 27 February 1991 and 11
September 1991 respectively, rejected the applicant's appeal against
the Minister' decision. The proceedings thus lasted one year and eleven
months.
The Commission cannot find that there were any substantial delays
in the proceedings or that the total duration of those proceedings was
unreasonably long.
It follows that this part of Application No. 20311/92 must be
rejected as manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
bb. Applications Nos. 15712/89, 15988/90 and 22532/93
The Commission notes that the proceedings complained of in
Application No. 15712/89 (No. 5) started on 30 October 1984 when the
applicant filed an objection with the Minister, who rejected it on 11
March 1986. The proceedings ended on 10 May 1989 when the Industrial
Appeals Tribunal, following a hearing held on 25 January 1989, rejected
the applicant's appeal against the Minister's decision.
The proceedings complained of in Application No. 15988/90 (No.
7) started on 9 October 1984 when the applicant filed an objection with
the Minister, who rejected it on 30 July 1985. The proceedings ended
on 7 June 1989 when the Industrial Appeals Tribunal, following a
hearing held on 19 April 1989, rejected the applicant's appeal against
the Minister's decision.
The proceedings complained of in Application No. 22532/93 (No.
25) started on 7 November 1989 when the applicants filed an objection
with the Minister, who rejected it on 23 October 1991. The proceedings
ended on 14 April 1993 when the Industrial Appeals Tribunal, following
a hearing held on 3 March 1993, rejected the applicants' appeal against
the Minister's decision.
After a preliminary examination of the present complaint in the
light of the parties' submissions, the Commission considers that it
raises issues of fact and law which require an examination of the
merits. This complaint cannot, therefore, be declared inadmissible as
being manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention. No other grounds of inadmissibility have
been established.
d) Lack of further appeal
The applicant mentioned under No. 20 complains under Article 6
para. 1 (Art. 6-1) of the Convention that no appeal lies against a
judgment of the Industrial Appeals Tribunal.
The Commission finds that this complaint cannot be separated from
the complaint that the Industrial Appeals Tribunal cannot be regarded
as a "tribunal" within the meaning of Article 6 para. 1 (Art. 6-1) of
the Convention, the issues being closely interrelated. It, therefore,
considers that this complaint cannot be declared inadmissible as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention. No other grounds for inadmissibility
have been established.
5. As regards Article 6 para. 2 (Art. 6-2) of the Convention
The applicants mentioned under Nos. 1, 6, 13 and 18 also complain
that the proceedings to which they were a party were contrary to
Article 6 para. 2 (Art. 6-2) of the Convention.
Article 6 para. 2 (Art. 6-2) of the Convention reads as follows:
"Everyone charged with a criminal offence shall be presumed
innocent until proved guilty according to law."
The Commission recalls that the presumption of innocence will be
violated if a judicial decision concerning persons charged with a
criminal offence reflects an opinion that they are guilty before they
have been proved guilty according to law, and that not only a judge or
a court but also other public authorities can infringe the presumption
of innocence (Eur. Court H.R., Allenet de Ribemont judgment of
10 February 1995, Series A no. 308, paras. 35-36).
The Commission observes that the proceedings complained of
concerned the question whether or not the applicants were eligible for
a reference quantity under the rules of the 1984 Ordinance, and that
they did not involve any determination of a criminal charge to which
the presumption of innocence would have applied.
It follows that this complaint must be rejected as manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
6. As regards Article 13 of the Convention, in conjunction with
Article 1 of Protocol No. 1 (Art. 13+P1-1)
The applicants mentioned under No. 25 complain under Article 13
of the Convention, in conjunction with Article 1 of Protocol No. 1
(Art. 13+P1-1), that they had no effective remedy in respect of the
determination of their request for a reference quantity.
Article 13 (Art. 13) of the Convention provides as follows:
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been
committed by persons acting in an official capacity."
Article 1 of Protocol No. 1 (P1-1) reads as follows:
"Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of his
possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way impair
the right of a State to enforce such laws as it deems necessary
to control the use of property in accordance with the general
interest or to secure the payment of taxes or other contributions
or penalties."
The Commission recalls that Article 1 of Protocol No. 1 (P1-1)
applies only to existing possessions (Eur. Court H.R., Van der Mussele
judgment of 23 November 1983, Series A no. 70, p. 23, para. 48), and
that this provision does not guarantee any right to acquire property
(cf. No. 11628/85, Dec. 9.5.86, D.R. 47 p. 271).
The Commission also recalls that the question whether a licence
to conduct economic activities amounts to a "possession" within the
meaning of Article 1 of Protocol No. 1 (P1-1) depends, inter alia, on
whether it gives rise to a reasonable and legitimate expectation of
continuing benefits. A licence holder cannot be considered to have such
an expectation where the conditions attached to the licence are not or
no longer fulfilled (No. 19819/92, Dec. 5.7.94, D.R. 78 p. 88).
In the present case, a reference quantity, provisionally granted
under the condition that the applicants would have taken over their
father's farm before 1 April 1989, was withdrawn as the applicants had
failed to submit sufficient evidence that they had in fact taken over
their father's farm before 1 April 1989.
In these circumstances, the Commission considers that the
withdrawal of the provisionally granted reference quantity did not
affect any property right protected under Article 1 of Protocol No. 1
(P1-1).
As regards Article 13 (Art. 13) of the Convention, the Commission
notes, in the first place, that the word "remedy" within the meaning
of this provision does not mean a remedy bound to succeed, but simply
an accessible remedy before an authority competent to examine the
merits of a complaint (cf. No. 11468/85, Dec. 15.10.86. D.R. 50 p.
199).
In the second place, the guarantees of Article 13 (Art. 13) apply
only to a grievance which can be regarded as "arguable" (cf. No.
18598/91, Dec. 18.5.94, D.R. 78 p. 71). In the present case the
Commission has rejected the substantive claim under Article 1 of
Protocol No. 1 (P1-1) as falling outside the scope of that provision.
The applicants' complaint under Article 13 of the Convention in
conjunction with Article 1 of Protocol No. 1 (Art. 13+P1-1) cannot,
therefore, be regarded as "arguable".
It follows that this complaint must be rejected as manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
7. As regards Article 3 (Art. 3) of the Convention
The applicants mentioned under No. 25 finally complain that the
proceedings on their request for a reference quantity constituted
mental torture, contrary to Article 3 (Art. 3) of the Convention, and
violated Articles 7 and 14 of the International Covenant on Civil and
Political Rights, Article 3 paras. 2 and 3 of the EEC Council
Regulation no. 857/84 and Section 43 of the Statute of the Kingdom of
the Netherlands.
The Commission first points out that it can only examine a
complaint on the basis of the provisions of the European Convention on
Human Rights. Insofar as the applicants also refer to the International
Covenant on Civil and Political Rights, the EEC Council regulation no.
857/84 and the Statute of the Kingdom of the Netherlands, these
complaints fall outside the competence of the Commission.
Insofar as the applicants allege that the proceedings in respect
of their application for a reference quantity violated their rights
under Article 3 (Art. 3) of the Convention, the Commission recalls that
measures not involving physical ill-treatment may constitute inhuman
or degrading treatment provided it attains a minimum level of severity
(East African Asians v. the United Kingdom, Comm. Report 14.12.73,
paras. 188-195, D.R. 78 p. 5).
Although the proceedings to which the applicants were a party may
have caused them a degree of hardship and insecurity, the Commission
finds that the "minimum level of severity" envisaged by Article 3
(Art. 3) of the Convention was not attained.
It follows that this complaint must be rejected as manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, unanimously,
1. DECIDES TO JOIN THE APPLICATIONS;
2. DECLARES INADMISSIBLE Applications Nos. 18340/90 and 19637/90,
as well as Application No. 17001/90 as regards the second set of
proceedings;
3. As regards the other applications as well as the remaining part
of Application No. 17001/90:
DECLARES ADMISSIBLE, without prejudging the merits,
- the applicants' complaints that their civil rights and
obligations were not determined by a "tribunal" within the
meaning of Article 6 para. 1 (Art. 6-1) of the Convention;
- the applicants' complaints in Applications Nos. 15712/89,
15988/90 and 22532/93 that their civil rights and obligations
were not determined within a reasonable time within the meaning
of Article 6 para. 1 (Art. 6-1) of the Convention;
- the applicant's complaint in Application No. 18615/91 that no
appeal lies against a judgment of the Industrial Appeals
Tribunal;
DECLARES INADMISSIBLE the remainder of the applications.
Secretary to the Second Chamber President of the Second Chamber
(M.-T. SCHOEPFER) (H. DANELIUS)
APPENDIX TO DECISION OF 7 SEPTEMBER 1995
LIST OF 25 APPLICATIONS
1. Application No. 14561/89 2. Application No. 14657/89
introduced on 23 January 1987 introduced on 27 November 1988
by J.S. by P.B. and A.B
against the Netherlands against the Netherlands
registered on 20 January 1989 registered on 16 February 1989
3. Application No. 15105/89 4. Application No. 15343/89
introduced on 19 March 1989 introduced on 28 March 1989
by C.A. and W.H. VAN DEN BERG by A.A. and E.A.
against the Netherlands against the Netherlands
registered on 12 June 1989 registered on 2 August 1989
5. Application No. 15712/89 6. Application No. 15908/89
introduced on 30 August 1989 introduced on 11 August 1989
by J.W. JANSEN by J.B. and M.B.
against the Netherlands against the Netherlands
registered on 30 October 1989 registered on 14 December 1989
7. Application No. 15988/90 8. Application No. 16118/90
introduced on 1 December 1989 introduced on 12 December 1989
by F.C. VAN OIRSCHOT by Th.C.M. GIEBELS
against the Netherlands against the Netherlands
registered on 15 January 1990 registered on 1 February 1990
9. Application No. 16513/90 10. Application No. 16583/90
introduced on 5 March 1990 introduced on 7 March 1990
by G.J.T. WILLEMSEN by H.P.J. SIMONS
against the Netherlands against the Netherlands
registered on 26 April 1990 registered on 14 May 1990
11. Application No. 16843/90 12. Application No. 16896/90
introduced on 11 May 1990 introduced on 20 April 1990
by J.O. and C.O. by J.S. and Th.S.
against the Netherlands against the Netherlands
registered on 10 July 1990 registered on 19 July 1990
13. Application No. 16897/90 14. Application No. 17001/90
introduced on 6 April 1990 introduced on 1 June 1990
by J.W. and D.W. by J.B.G. KLINK
against the Netherlands against the Netherlands
registered on 19 July 1990 registered on 9 August 1990
15. Application No. 17241/90 16. Application No. 17252/90
introduced on 31 July 1990 introduced on 31 July 1990
by F.S. by H. BRAAM
against the Netherlands against the Netherlands
registered on 1 October 1990 registered on 3 October 1990
17. Application No. 17675/91 18. Application No. 17883/91
introduced on 31 October 1990 introduced on 17 December 1990
by A.J. VERSMISSEN by Th.B.
against the Netherlands against the Netherlands
registered on 16 January 1991 registered on 11 March 1991
19. Application No. 18340/91 20. Application No. 18615/91
introduced on 11 April 1991 introduced on 22 July 1991
by P.F.M. VAN DER HEIJDEN by P.H.
against the Netherlands against the Netherlands
registered on 11 June 1991 registered on 30 July 1991
21. Application No. 19590/92 22. Application No. 19591/92
introduced on 8 January 1992 introduced on 6 January 1992
by C.D. by J.B.
against the Netherlands against the Netherlands
registered on 5 March 1992 registered on 5 March 1992
23. Application No. 19637/92 24. Application No. 20311/92
introduced on 16 January 1992 introduced on 30 April 1992
by L.A.M. VERHAGEN by L.A.G. HUIJBEN
against the Netherlands against the Netherlands
registered on 16 March 1992 registered on 17 July 1992
25. Application No. 22532/93
introduced on 30 June 1993
by E.P. and C.P.
against the Netherlands
registered on 26 August 1993