AS TO THE ADMISSIBILITY OF

                      Application No. 20641/92

                      by Terra Woningen B.V.

                      against the Netherlands

      The European Commission of Human Rights (Second Chamber) sitting

in private on 5 July 1994, the following members being present:

           MM.   S. TRECHSEL, President

                 H. DANELIUS

                 G. JÖRUNDSSON

                 J.-C. SOYER

                 H.G. SCHERMERS

           Mrs.  G.H. THUNE

           MM.   F. MARTINEZ

                 L. LOUCAIDES

                 J.-C. GEUS

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 J. MUCHA

                 D. SVÁBY

           Mr.   K. ROGGE, Secretary to the Chamber

      Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

      Having regard to the application introduced on 9 September 1992

by Terra Woningen B.V. against the Netherlands and registered on 16

September 1992 under file No. 20641/92;

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

of Procedure of the Commission;

      Having regard to :

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

      Commission;

-     the observations submitted by the respondent Government on

      2 April 1993 and the observations in reply submitted by the

      applicant on 10 August 1993;

      Having deliberated;

      Decides as follows:

THE FACTS

      The applicant is a Dutch company whose registered seat is in The

Hague.  It is represented before the Commission by Mr. W.M.P.M.

Weerdesteijn, a lawyer in Rotterdam.

1.    Particular circumstances of the case

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

follows.

      The applicant company owns six apartment buildings, in which

there are 288 flats.  The buildings are situated at the Merellaan in

the Municipality of Maassluis.  On 18 April 1990 the applicant

concluded with Mr. W. an agreement under which Mr. W. rented a flat on

the third floor in one of the buildings from 1 May 1990, the rent being

790,25 Dutch guilders per month.

      On 9 July 1990 Mr. W. asked the Rent Board (Huurcommissie) of

Schiedam for a decision as to whether the rent was reasonable, in view

of, inter alia, the soil pollution in the area where the buildings are

located.

      On 17 April 1991 the Rent Board, assessing the quality of the

flat under the housing accommodation point-rating system (woning-

waarderingsstelsel) as set out in Annex I to the Ordinance implementing

the Act on Rents for Housing Accommodation (Besluit Huurprijzenwet

Woonruimte) at 134 points, declared that the agreed rent was excessive

and decided that a monthly rent of 783,07 Dutch guilders was

reasonable.

      The applicant then requested the District Court judge

(kantonrechter) of Schiedam to confirm the rent which had been agreed

between the parties, i.e. 790,25 Dutch guilders, increased by

permissible annual supplements to 832,14 Dutch guilders.  However, on

10 March 1992 the District Court judge determined the rent at 399,75

Dutch guilders per month.

      The District Court judge based his decision on certain principles

laid down in the Ordinance implementing the Act on Rents for Housing

Accommodation. Annex IV to this Ordinance contains a list of

particularly serious deficiencies, the so-called "absolute zero

conditions" which could lead to a reduction of the rent to a minimum

reasonable level. Point 4 of this Annex reads:

      [Dutch]

      "4.  Het nader onderzoek in het kader van de Interimwet

      bodemsanering heeft aangegeven dat er sprake is van een zodanige

      verontreiniging van de bodem onder of in de directe omgeving van

      de woning, dat er ernstig gevaar voor de volksgezondheid of het

      milieu bestaat."

      [translation]

      "4.  The further investigation in accordance with the Interim

      Act on Soil Cleaning has shown the existence of such pollution

      of the soil under or in the direct vicinity of the dwelling as

      to constitute a serious threat to public health or environment."

      The building concerned is located in an area where, following an

indicative examination of the soil in 1985, the Central Environmental

Management Service Rijnmond (Dienst Centraal Milieubeheer Rijnmond)

carried out an investigation of the soil under the Interim Act on Soil

Cleaning (Interimwet Bodemsanering). A report on the subsequent further

investigation by the Central Environmental Management Service Rijnmond

under the Interim Act on Soil Cleaning was completed in July 1990.

      On the basis of the results of this investigation the Provincial

Executive (Gedeputeerde Staten) of Zuid-Holland decided that the soil

should be cleaned and, by letter of 1 November 1990, the Provincial

Executive informed the inhabitants of the area about the pollution of

the soil and about the decision of principle to undertake clean-up

measures. On 26 March 1991 the Provincial Executive transmitted the

final report on the soil investigation to the Mayor and Aldermen

(Burgemeester en Wethouders) of Maassluis and informed them that "the

Provincial Executive finds it desirable to carry out an investigation

regarding the cleaning of the area". In a provincial soil cleaning

programme for 1992 the area was indicated as being subject to the

Interim Act on Soil Cleaning.

      On this basis, the District Court judge found that this was a

case where the soil is, or risks being, polluted to such an extent that

there is a serious danger to public health or environment within the

meaning of the second sentence of Section 2 para. 1 of the Interim Act

on Soil Cleaning.

      In the proceedings before the District Court judge, the applicant

company, while referring to the findings in the report on the

investigation of the soil of July 1990 - which stated, inter alia, that

on the basis of the present information the pollution at issue would

not lead to noticeable or measurable health damage -, had objected that

no such danger to public health or environment in fact existed. It had

further argued that the decision of the Provincial Executive under the

Interim Act on Soil Cleaning should not automatically lead to the

conclusion that there was a so-called "absolute zero condition"

(absoluut nulpunt) as mentioned under point 4 of Annex IV of the

Ordinance implementing the Act on Rents for Housing Accommodation.

      However, the District Court judge held that it was not his task

to determine directly or indirectly whether or not the Provincial

Executive's decision was correct and well-founded and considered the

existence of a serious threat to public health or environment to be a

fact established by the Provincial Executive's decision that a soil

cleaning operation should be carried out in this area.

      The District Court judge subsequently found in favour of the

tenant concerned by deciding to deduct the maximum number of 20 points

for a particularly serious deficiency from the number of points the

flat was assessed at under the residential accommodation point-rating

system. He further set the rent at the minimum reasonable rent

corresponding to the number of points thus determined, i.e. a rent of

399,75 Dutch guilders as from 1 May 1990.

      Subsequently 269 other tenants of the applicant company have

introduced proceedings in order to have their rents reduced in the same

way.  The applicant company alleges that this will mean an annual loss

of rent income amounting to about 1.300.000 Dutch guilders.

      On 21 July 1992 the District Court judge of Schiedam, in another

case between a tenant and an owner of a house in Maassluis, decided not

to reduce the rent since the Provincial Executive had not yet taken a

decision within the meaning of the second sentence of Section 2 para.

1 of the Interim Act on Soil Cleaning.

2.    Relevant domestic law

      The Act on Rents for Housing Accommodation (Huurprijzenwet

Woonruimte) lays down the rights and obligations between tenants and

landlords in respect of the rents charged for housing accommodation.

The aim of the system adopted in the Act on Rents for Housing

Accommodation is that the rent should as far as possible reflect the

quality of the housing accommodation.

      Pursuant to Section 5 para. 1(a) of the Ordinance implementing

the Act on Rents for Housing Accommodation the quality will be assessed

on the basis of a housing accommodation point-rating system, which

system is set out in Annex I to the Ordinance. Point 11 of Annex I

contains rules for assessing the quality of housing accommodation in

cases where there is a high nuisance level in the neighbourhood which

has a negative influence on the enjoyment of the accommodation, such

as, inter alia, traffic or industrial noise, serious deterioration of

the neighbourhood or non-incidental pollution of the air or soil, which

could affect the health of residents. If this is the case a maximum of

20 points can be deducted from the points awarded to the accommodation.

      Annex IV to the Ordinance contains a list of particularly serious

deficiencies, the so-called "absolute zero conditions", which are used

in disputes concerning rent increases or reductions. The presence of

such a "zero condition" makes a rent increase impossible and can lead

to a reduction of the rent to the minimum reasonable level pertaining

to the determined number of points of a particular accommodation. The

minimum reasonable level of rent belonging to a given number of points

is set on a yearly basis and can be found in Annex III to the

Ordinance.

      Under Section 17 of the Act on Rents for Housing Accommodation

new tenants, within three months following the conclusion of a rent

agreement, can request the Rent Board to assess whether the agreed rent

is reasonable. Under Sections 20 and 23 of the Act both tenants and

landlords can request the Rent Board to determine whether a proposed

change of the rent is reasonable.

      Both tenants and landlords can file an appeal against the Rent

Board's decisions with the District Court. The District Court may fully

review a decision of the Rent Board but, like the Rent Board, must

observe the criteria for assessing whether the rent is reasonable as

set out in the Ordinance, i.e. the point rating scale and the zero

condition system. It is, however, within the discretion of the District

Court to assess whether or not a specific soil pollution constitutes

a serious health risk for tenants. No appeal lies against the decision

of the District Court.

COMPLAINTS

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

Convention that it did not receive an effective judicial review in the

determination of its civil rights, as the District Court judge

considered himself bound by the position taken by the Provincial

Executive in respect of the soil pollution and its effects on public

health and environment, thereby barring the applicant company from

obtaining a judicial finding on an important part of its legal

arguments.

2.    The applicant company complains under Article 13 of the

Convention that it had no effective remedy against the decision of the

Provincial Executive which affected its property rights.

3.    The applicant company complains under Article 1 of Protocol

No. 1 that the rules about reduction of rent by reason of soil

pollution are disproportionate and arbitrary. The fact that a drastic

reduction of the rent takes place when the Provincial Executive has

taken a decision about the danger caused by soil pollution, whereas,

in the absence of such a decision, there is no such reduction, is based

on an arbitrary distinction.  A number of other relevant factors are

left out of account, and the applied criterion is inappropriate.  The

applicant also submits that the financial burden of soil pollution is

put on the property owner, irrespective of whether he has in any way

caused the pollution.

4.    The applicant company complains under Article 14 of the

Convention that, since there is no appeal against the decisions of the

District Court judge, there can be a legal inequality which also

appears from this case.  In fact, while the applicant had to suffer a

substantial reduction of the rent income, another property owner in the

same area was permitted by decision of a District Court judge to

increase his rents, despite the fact that the pollution conditions were

exactly the same.  The applicant further points out that there is a

legal inequality in that the public authorities have access to a court

in order to have a decision on the responsibility for soil pollution,

whereas a property owner, in cases where those responsible for the

pollution are unknown, will, without any judicial assessment of risks

and responsibility, be obliged, as a result of a rent reduction, to

compensate a large part of the damage.

5.    Finally, as regards Article 1 of the Protocol No. 1 in

conjunction with Articles 14, 17 and 18 of the Convention, the

applicant submits that the judgment of the District Court judge of

Schiedam violates the principle of equality in that:

      (a)  In one and the same area, the applicant suffered a rent

      reduction to half of the rent whereas another property owner was

      allowed to increase the rent;

      (b)  in a similar case, the District Court judge of Amsterdam

      found that there was no serious danger to public health;

      (c)  the District Court judge did not take into account the

      differences between owners of one family houses and owners of

      apartment buildings insofar as the effects of soil pollution are

      concerned.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 9 September 1992 and registered

on 16 September 1992.

      On 8 January 1993 the Commission decided to communicate the

application to the Netherlands Government and invite them to submit

written observations on the admissibility and merits of the

application.

      The Government's observations were submitted on 2 April 1993. The

applicant company's observations in reply were submitted on

10 August 1993.

THE LAW

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

(Art. 6-1) of the Convention that it did not receive an effective

judicial review in the proceedings before the District Court judge

concerning a rent dispute.

      Article 6 para. 1 (Art. 6-1), insofar as relevant, provides:

      "In the determination of his civil rights and obligations

      (...), everyone is entitled to a fair (...) hearing (...)

      by an independent and impartial tribunal (...)."

      The Government submit that in the proceedings at issue the

District Court is fully competent to make its own independent

assessment of the question whether or not the soil is polluted to such

an extent that this amounts to a serious danger to public health or

environment. The District Court, in making this assessment, may rely

on the results of the soil investigation by the competent

administrative authorities. It appears from Dutch case-law that

District Courts do not necessarily follow the findings by the

administrative authorities in respect of the effects of soil pollution

on public health and environment.

      The Government further submit that in the present case the

District Court judge apparently found that it was not necessary to

examine whether the Provincial Executive had taken its decision on good

grounds, in view of the results of the soil investigations and the

decision to include the area in a soil cleaning programme.

      The applicant company submits that in the present proceedings the

District Court judge failed to make an assessment of his own as to the

factual effects of the soil pollution, as he considered himself bound

by the position taken by the Provincial Executive in respect of the

soil pollution and its effects on public health and environment,

thereby barring the applicant company from obtaining a judicial finding

on an important part of its legal arguments, since the District Court

judge failed to determine whether or not the soil pollution at issue

in fact constituted a threat to the public health or environment of the

residents in the area concerned which is a decisive element in the

determination of the rent the applicant company can charge its tenants.

      The Commission observes that the applicability of Article 6 para.

1 (Art. 6-1) to the proceedings at issue is not disputed between the

parties. Noting that the proceedings were decisive for the rent the

applicant company could charge its tenants, the Commission finds that

the proceedings involved a determination of the applicant company's

civil rights within the meaning of Article 6 para. 1 (Art. 6-1) of the

Convention.

      After a preliminary examination of the substance of the present

complaint in the light of the parties' submissions, the Commission

considers that it raises questions of fact and law of such complexity

that its determination requires an examination of the merits. The

application 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 for inadmissibility

have been established.

2.    The applicant company further complains of a violation of Article

13 (Art. 13) of the Convention, which provides:

      "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."

      The applicant company submits that the fact that the District

Court judge considered himself bound by the position taken by the

Provincial Executive meant that there was no effective remedy against

the decision of the Provincial Executive  as regards the protection of

its property.

      The Commission observes that this complaint cannot be separated

from the above complaint under 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.

3.    The applicant further alleges a violation of Article 1 of

Protocol No. 1 (P1-1) to the Convention. It argues that the rules about

reduction of rent on the basis of soil pollution are disproportionate

and arbitrary, since on the basis of an arbitrary finding by

administrative authorities landlords are burdened with the financial

consequences of soil pollution.

      Article 1 of Protocol No. 1 (P1-1) provides 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 Government, referring to the Contracting State's wide margin

of appreciation in the field of housing and the necessity felt to offer

tenants sufficient legal protection in the field of rent levels, submit

that serious pollution of the soil in the area of a building can affect

a tenant's enjoyment of rented accommodation, which element plays a key

role in the Dutch housing accommodation point-rating system for rented

accommodation. Although in general neither the tenant nor the landlord

is to blame for serious soil pollution, the legislator considered that

a landlord, who in his relation with the tenant can be regarded as an

entrepreneur, takes certain more or less predictable risks. Moreover,

a landlord can claim compensation for the devaluation of his property

or diminished exploitation profits from those responsible for the soil

pollution, or from the municipality that has allowed building on the

soil, whereas the tenant has only the possibility of obtaining

compensation by means of a rent reduction.

      The applicant company argues that the application of the rules

about reduction of rent by reason of soil pollution is disproportionate

and arbitrary and, therefore, not compatible with the second paragraph

of Article 1 of Protocol No. 1 (P1-1). It submits that, although the

Act on Rents for Housing Accommodation and the Interim Act on Soil

Cleaning have different aims, the same criterion "serious danger to

public health or the environment" is applied in the same way in both

regulations. According to the applicant company the application of this

criterion is inappropriate for the determination of the rent.

Regardless of the kind of soil pollution and the particular housing

situation, the effects on the rent are the same, whereas the financial

risks for the soil pollution are to a great extent borne by the

landlords.

      The applicant company further submits that the drastic reduction

of the rent at issue is based on an arbitrary distinction, since it

takes place when the Provincial Executive has taken a decision about

the danger caused by soil pollution whereas, in the absence of such a

decision, there is no such reduction and, moreover, no distinction is

made between serious and less serious cases of soil pollution.

      The Commission notes that the rules at issue have not removed the

applicant company's interest in, or title to, the property concerned

but merely restrict the applicant company's freedom to ask for an

increase of rent or to maintain the rent at the initially agreed level.

The Commission finds that a restriction of this kind amounts to a

control of the use of property within the meaning of the second

paragraph of Article 1 of Protocol No. 1 (P1-1) (cf. No. 8003/77,

Dec. 3.10.79, D.R. 17 p. 80 and No. 16756/90, Dec. 12.1.91, D.R. 68

p. 312). The Commission has therefore examined whether this control is

lawful, is in accordance with the general interest and pursues a

legitimate aim in a proportionate manner (Eur. Court H.R.,

Tre Traktörer AB judgment of 7 July 1989, Series A no. 159, pp. 22-24,

paras. 56-63).

      The Commission notes that the restriction imposed is based on the

Act on Rents for Housing Accommodation, the Ordinance implementing the

Act on Rents for Housing Accommodation and the Annexes to the

Ordinance. The lawfulness of the District Court judge's decision is not

disputed between the parties and the Commission finds no reason to

doubt that this decision was lawful.

      The Commission recalls the case-law of the Convention organs

which recognises that State intervention in socio-economic matters,

such as housing, is often necessary in securing social justice and

public benefit. In implementing social and economic policies, the

margin of appreciation available to a legislature or to the public

authorities is necessarily a wide one under Article 1 of the Protocol

(P1-1), both with regard to the existence of a problem of public

concern warranting measures of control and as to the choice of such

measures (cf. Eur. Court H.R. James and others judgment of

21 February 1986, Series A no. 98, p. 32, para. 46, and Mellacher and

others judgment of 19 December 1989, Series A No. 169, p. 26, para.

45).

      In the present case the Commission finds that the decision

complained of pursues a legitimate aim in the general interest, i.e.

the aim of protecting the interests of tenants. As to the

proportionality of the interference the Commission notes that the

applicant company remains owner of the property, which it is free to

dispose of, that it continues to receive rent from the tenants, that

it is, in principle, free to claim damages for the financial

consequences of the soil pollution from either the responsible polluter

or the municipality and that, once the soil has been cleaned, the

applicant company can increase the rent up to a reasonable level since

the reason for the rent deduction will then have disappeared.

      In these circumstances, the Commission finds that, bearing in

mind the wide margin of appreciation afforded to Contracting States in

regulating housing problems, the control of the use can be considered

to be justified within the meaning of the second paragraph of Article

1 of Protocol No. 1 (P1-1) to the Convention.

      It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

4.    The applicant further alleges a violation of Article 14 (Art. 14)

of the Convention which, insofar as relevant, reads:

      "The enjoyment of the rights and freedoms set forth in this

      Convention shall be secured without discrimination on any

      ground such as (...) property (...) or other status".

      The applicant company complains under Article 14 in conjunction

with Article 6 (Art. 14+6) of the Convention in the first place that,

since there is no appeal against the decision of the District Court

judge, there can be a legal inequality which also appears from this

case. Secondly the applicant complains under Article 14 in conjunction

with Article 6 (Art. 14+6) of the Convention that there is a legal

inequality in that the public authorities have access to a court in

order to obtain a decision on the responsibility for soil pollution,

whereas a landlord, in cases where those responsible for the pollution

are unknown, has no such possibility to obtain compensation for the

damage of the soil pollution. In the third place the applicant

complains under Article 14 in conjunction with Article 1 of Protocol

No. 1 (Art. 14+P1-1) that another owner of real estate in the same area

was allowed to increase the rent, whereas the applicant suffered a rent

reduction by 50%.

      The Commission recalls that Article 14 (Art. 14) of the

Convention has no independent existence, but supplements the other

provisions of the Convention and the Protocols. Article 14 (Art. 14)

safeguards individuals placed in similar situations from discrimination

in the enjoyment of the rights set forth in those other provisions

(cf.No.10491/83, Dec. 3.12.86, D.R. 51 p. 41, at p. 50).

a.    As regards the first complaint under Article 14 (Art. 14) the

Commission notes that the applicant company essentially complains of

the lack of an appeal against the decision of the District Court judge.

      However, according to well-established case-law, Article 6

(Art. 6) of the Convention does not guarantee the right to appeal

(cf. Eur. Court H.R., De Cubber judgment of 26 October 1984, Series A

no. 86, p. 18, para. 32; No. 12323/86, Dec. 13.7.88, D.R. 57 p. 155).

      It follows that this part of the complaint must be rejected as

being incompatible ratione materiae with the Convention within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

b.    As regards the second complaint under Article 14 (Art. 14) the

Commission notes that the applicant seeks to compare the situation of

an administrative authority in the case of a known soil polluter with

the situation of a private landlord in the case of an unknown soil

polluter in respect of the "right to a court" of which the right of

access is one aspect (cf Eur. Court H.R. Ashingdane judgment of

28 May 1985, Series A No. 93, p. 24, para. 55). However, the Commission

is of the opinion that these two situations cannot be regarded as

comparable for the purposes of Article 14 (Art. 14) of the Convention.

      It follows that this part of the complaint is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

c.    As regards the third complaint under Article 14 (Art. 14), the

Commission notes that in the other case, referred to by the applicant

company, in which the rent was not reduced the District Court judge,

contrary to the situation in the applicant company's case, decided not

to reduce the rent since the Provincial Executive had not yet taken a

decision within the meaning of the second sentence of Section 2 para.

1 of the Interim Act on Soil Cleaning. In these circumstances the

Commission finds, recalling that it cannot examine alleged errors of

fact and law  committed by domestic courts, that these two situations

cannot be regarded as comparable for the purposes of Article 14

(Art. 14) of the Convention.

      It follows that this part of the complaint is also manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

5.    Finally, the applicant company alleges violations of Article 1

of Protocol No. 1 in conjunction with the Articles 17 and 18

(P1-1+Art. 17+18) of the Convention.

      The Commission has examined these complaints and, insofar as the

matters complained of have been substantiated, finds that they do not

disclose any appearance of a violation of the provisions invoked.

      It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

      For these reasons, the Commission, by a majority,

      DECLARES ADMISSIBLE, without prejudging the merits of the case,

the applicant company's complaints under Article 6 para. 1

(Art. 6-1) and Article 13 (Art. 13) of the Convention;

      and unanimously,

      DECLARES INADMISSIBLE the remainder of the application.

Secretary to the Second Chamber       President of the Second Chamber

        (K. ROGGE)                           (S. TRECHSEL)