DECISION

AS TO THE ADMISSIBILITY OF

Application No. 23789/94

           by

1. Belangenvereniging ex- bestuursleden en ex- verenigingsraadsleden van de              Veronica Omroep Organisatie

             2. Willibrorda C.T. VAN ROSSUM

             3. Cornelis VAN DEN HOEK

             4. Johannes Jacob VAN EIK

            against the Netherlands

The European Commission of Human Rights (Second Chamber) sitting in private on 18 May 1995, the following members being present:

Mr. H. DANELIUS, President

Mrs. G.H. THUNE

MM. G. JÖRUNDSSON

S. TRECHSEL

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J. C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. ŠVÁBY

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

Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 18 October 1993 by 1. Belangenvereniging ex- bestuursleden en ex- verenigingsraadsleden van de Veronica Omroep Organisatie , 2. Willibrorda C.T. VAN ROSSUM,

3. Cornelis VAN DEN HOEK and 4. Johannes Jacob VAN EIK against the Netherlands and registered on 31 March 1994 under file No. 23789/94;

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

Having deliberated;

Decides as follows:

THE FACTS

The first applicant is an association with its registered seat in Hilversum , the Netherlands , and consists of former members of the association council ( verenigingsraad ) of the Association Veronica Broadcasting Organisation ( Vereniging Veronica Omroep Organisatie , hereinafter "VOO") and former members of the VOO board.

The other applicants are all Dutch citizens. The second applicant, born in 1955, resides in Nieuwersluis and is a former board member of VOO. The third applicant was born in 1935 and resides in Zeist . The fourth applicant was born in 1942 and resides in Maarssen . The third and fourth applicants are former members of the association council of VOO.

Before the Commission the applicants are represented by Mr. P.P.A. van Rossum , a lawyer practising in Hilversum .

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

1. The particular circumstances of the case

On 4 July 1990 the Commissariat for the Media ( Commissariaat voor de Media) imposed sanctions on VOO for having violated the Media Act ( Mediawet ). It found VOO guilty of having actively contributed to the establishment of the commercial broadcasting station RTL- Véronique , which, based in Luxembourg , aims its broadcasts at the Netherlands , thereby exposing the Dutch broadcasting organisations to increased competition. The Commissariat for the Media in its decision considered, inter alia, that the second applicant as secretary to the VOO board had performed legal tasks for the benefit of the RTL- Véronique project.

VOO appealed against this decision on 26 July 1990 with the Judicial Division of the Council of State ( Afdeling Rechtspraak van de Raad van State).

Following a hearing on 7 March 1991, the Judicial Division on 27 May 1991 quashed the decision of the Commissariat for the Media in respect of one offence against the Media Act and suspended further examination of the case pending the outcome of a preliminary ruling by the Court of Justice of the European Communities. This preliminary ruling was delivered on 3 February 1993.

On 2 March 1993 the applicants requested the Judicial Division to be heard in the proceedings between VOO and the Commissariat for the Media as an interested party ( belanghebbende ). They alleged that a rejection by the Judicial Division of the appeal would imply that VOO had violated the Media Act. The second, third and fourth applicants, who at the time of the alleged offences were responsible for VOO’s policy and performed administrative and supervisory tasks in that organisation, might subsequently suffer damage to their reputation and might be held legally and morally responsible for all negative consequences which the Judicial Division’s decision would have for VOO.

On 31 March 1993 the President of the First Chamber of the Judicial Division refused the applicants’ request. The President stated that a second hearing in the proceedings between VOO and the Commissariat for the Media to be held on 3 June 1993 had become necessary as the composition of the Judicial Division’s First Chamber had changed since the first hearing on 7 March 1991. However, only the parties heard during the first hearing would be given the opportunity to appear before the Chamber.

The President of the First Chamber further considered that the applicants could not be regarded as interested parties within the meaning of Section 78 of the Act on the Council of State (Wet op de Raad van State). The President’s letter did not contain any information regarding the possibility to appeal against his decision, but the applicants were informed that they were free to attend the public hearing as observers.

On 14 April 1993 the applicants filed an objection ( verzet ) with the Judicial Division analogous to Section 106 of the Act on the Council of State against the refusal of their request to be heard.

On 27 April 1993 the President of the Judicial Division’s First Chamber, while holding that the applicants’ letter of 14 April 1993 could not be considered as an objection within the meaning of Section 106 of the Act on the Council of State, informed the applicants that he saw no reason to reconsider his decision of 31 March 1993.

Following a second hearing in the proceedings between VOO and the Commissariat for the Media, the Judicial Division on 27 June 1993 quashed the Commissariat’s decision of 4 July 1990.

On 14 July 1993 the Commissariat for the Media took a new decision whereby, in accordance with the judgment of the Judicial Division, it imposed mainly suspended sanctions on VOO.

2. Relevant domestic law and practice

Pursuant to Sections 7 para . 1 and 8 para . 1 of the Administrative Decisions Appeals Act (Wet Administratieve Rechtspraak Overheidsbeschikkingen ) persons whose interests are directly affected by a decision of an administrative body ( administratief orgaan ) can, within 30 days, instigate proceedings before the Judicial Division of the Council of State if it is alleged that

- the decision is not in accordance with the law; or

-the administrative body, in taking the decision, abused its powers; or

-the administrative body, taking all the relevant interests into account, could not reasonably have taken the decision; or

-the administrative body has decided contrary to the principles of good administration.

From the Judicial Division’s case-law it can be concluded that a person is directly affected when the alleged damage resulting from the impugned decision can be attributed to that decision, i.e. when there is a direct causal link between the administrative decision and the appellant’s personal situation. When the administration grants an airport permission for the construction of a runway, for example, people living in the immediate vicinity are regarded as directly affected. Employees of a foundation, however, who wish to instigate proceedings against an administrative decision to stop funding this foundation are not directly affected since they will only be affected as a result of a notification of dismissal from the foundation.

Pursuant to section 78 of the Act on the Council of State interested parties will be summoned to appear at a public meeting ( openbare vergadering ) of the Judicial Division to explain their views ( hun standpunt toelichten ).

When the President of the Judicial Division is of the opinion that a case is manifestly ill-founded ( kennelijk ongegrond ) or when a further examination does not appear to him to be necessary, he may give an immediate decision in simplified proceedings ( vereenvoudigde behandeling ) pursuant to Section 105 para . 1 Act on the Council of State.

Section 106 of the Act on the Council of State provides for interested parties to file an objection with the Judicial Division against a decision taken by the President in simplified proceedings. Upon the appellant’s request, the Judicial Division has to grant a public hearing. If the Judicial Division considers the objection well-founded, the President’s decision is annulled and the case will be dealt with in ordinary proceedings.

COMPLAINTS

The applicants complain that they were not heard as interested parties in the proceedings between the Commissariat for the Media and VOO, although the outcome of these proceedings was directly decisive for their civil rights.

The applicants complain furthermore that they were not heard by the Judicial Division on their objection against the refusal of the President of the Judicial Division to admit them as interested parties and, finally, that it was not the plenary Judicial Division but its President who decided on the applicants’ civil rights in this respect.

The applicants invoke Article 6 para . 1 of the Convention.

THE LAW

1. The applicants complain under Article 6 para . 1 of the Convention that they were not heard as an interested parties to proceedings which involved the determination of their civil rights.

Article 6 para . 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 (...) by a (...) tribunal established by law. (...)."

The Commission observes in the first place that it is not alleged that the civil rights of the applicant association were at issue in the proceedings between VOO and the Commissariat for the Media before the Judicial Division. The Commission considers, however, that it does not need to examine the status of the applicant association in this respect since this part of the application is in any case inadmissible for the reasons set out below.

The Commission recalls that in order for Article 6 para . 1 of the Convention to apply to the proceedings in question, it must first ascertain whether there was a dispute over a "right" which can be said, at least on arguable grounds, to be recognised under domestic law and whether this "right" can be regarded as "civil" for the purposes of Article 6 para . 1 of the Convention, namely whether or not the outcome of the proceedings at issue is decisive for private rights and obligations (cf. Eur . Court H.R., Éditions Périscope judgment of 26 March 1992, Series A no. 234-B, p. 64, para . 35 and X. v. France judgment of 31 March 1992, Series A no. 234-C, p. 90, para . 30).

The applicants allege that the proceedings between VOO and the Commissariat for the Media were directly decisive for their civil rights, since a rejection of VOO’s appeal by the Judicial Division would be detrimental to their reputation and might result in their being held morally and legally responsible for any negative effects of the judgment for VOO.

The Commission notes that the proceedings at issue concerned the question whether or not VOO had acted contrary to the Media Act. It did not concern the question whether or not the applicants bore any responsibility for the VOO activities examined in these proceedings.

The Commission recalls that it has repeatedly held that the right to enjoy a good reputation is a civil right and that there is therefore a right under Article 6 para . 1 of the Convention to have determined by a tribunal whether attacks on such reputation were justified (cf. No. 10877/84, Dec. 10.5.85, D.R. 43 p. 184; No. 11430/85, Dec. 16.10.86, D.R. 50 p. 191; and No. 10594/83, Dec. 14.7.87, D.R. 52 p. 158). However, the applicants’ reputation was not at issue in the proceedings before the Judicial Division.

The Commission finds, therefore, that the proceedings complained of cannot be regarded as constituting a determination of the applicants’ civil rights within the meaning of Article 6 para . 1 of the Convention and thus do not fall within the ambit of that provision.

It follows that this part of the application must be rejected as incompatible ratione materiae with the provisions of the Convention in accordance with Article 27 para . 2 of the Convention.

2. The applicants further complain under Article 6 para . 1 of the Convention that they were not heard on their objection and that it was not dealt with by the Judicial Division but by its President.                          

The Commission notes that the decision complained of concerned the question whether or not they could be admitted as interested parties to the proceedings between VOO and the Commissariat for the Media. The Commission, recalling the established case-law as regards the scope of Article 6 para . 1 of the Convention (see above), has found that the decision concerning the applicants’ entitlement to admission as interested parties in those proceedings did not constitute a determination of the applicants’ civil rights within the meaning of Article 6 para . 1.

It follows that this part of the application must also be rejected as incompatible ratione materiae with the provisions of the Convention in accordance with Article 27 para . 2 of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Second Chamber    President of the Second Chamber

(M.-T. SCHOEPFER)   (H. DANELIUS)