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AS TO THE ADMISSIBILITY OF

Application No. 17239/90

by Johannes Adrianus Josephus JANSEN and

Maria Johanna VERSCHUEREN-JANSEN

against the Netherlands

The European Commission of Human Rights (Second Chamber) sitting

in private on 31 March 1993, the following members being present:

MM. S. TRECHSEL, President of the Second Chamber

G. JÖRUNDSSON

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

MM. F. MARTINEZ

M. NOWICKI

Mr. K. ROGGE, Secretary to the Second 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 2 August 1990 by

Johannes Adrianus Josephus JANSEN and Maria Johanna VERSCHUEREN-JANSEN

against the Netherlands and registered on 1 October 1990 under file No.

17239/90;

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 applicants, born in 1933 and 1931 respectively, are Dutch

dairy farmers living in Baarle-Nassau, the Netherlands. Before the

Commission they are represented by Mr. E. Beele and Mr. Th.J.H.M.

Linssen, both lawyers practising at Tilburg.

The facts as submitted by the applicants may be summarised as

follows.

The applicants had leased a parcel of land from their neighbour,

Mr. B., since 1972. On the basis of the surface exploited for dairy

production, they were allocated a certain milk-quota. At some time Mr.

B., also a dairy producer, wanted to recuperate the parcel of land for

personal use. By decision of 2 March 1984 the Land Lease Chamber

(Pachtkamer) of the Tilburg District Court (Kantongerecht) therefore

declared the lease terminated on its expiry date, 10 November 1985.

The Land Lease Chamber of the Arnhem Court of Appeal (Gerechtshof)

however decided that the lease should run until 11 November 1988 on

which date the contract was actually rescinded.

On 16 March 1988 Mr. B. requested the Land Lease Chamber of the

Tilburg District Court to order the applicants to transfer their milk-

quota to him insofar as it rested on the parcel of land leased to the

applicants. By decision of 3 March 1989 this Chamber partly granted

the request and ordered the applicants to transfer half of the milk-

quota in question to Mr. B. The applicants appealed against this

decision to the Land Lease Chamber of the Arnhem Court of Appeal

complaining in particular that the Court of Justice of the European

Communities had not been requested to give a preliminary ruling on the

question who is entitled to a milk-quota related to a leased parcel of

land after termination of the lease contract and requested the Court

of Appeal to bring the matter before the Court of Justice. They also

complained that they were obliged to transfer part of the milk-quota

allocated to them without being awarded any compensation. On 5

February 1990 the Court of Appeal confirmed the District Court's

decision and considered that it was not necessary to request the Court

of Justice to give a preliminary ruling.

COMPLAINTS

1. The applicants complain that they did not have access to court

in that the Land Lease Chamber of the Arnhem Court of Appeal refused

to seek a preliminary ruling from the Court of Justice of the European

Communities. They also submit that, in view of this refusal, the Court

of Appeal cannot be considered to be an impartial tribunal. They

invoke Article 6 para. 1 of the Convention.

2. The applicants further complain that, by ordering them to

transfer half of the milk-quota allocated to them to Mr. B., the Court

of Appeal deprived them of their possession contrary to Article 1 of

Protocol No. 1 of the Convention.

THE LAW

1. The applicants complain that they did not have access to court

in that the Land Lease Chamber of the Arnhem Court of Appeal refused

to seek a preliminary ruling from the Court of Justice of the European

Communities. They also submit that, in view of this refusal, the Court

of Appeal cannot be considered as an impartial tribunal. They invoke

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

relevant:

"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 (...)"

The question arises in the first place whether Article 6

(Art. 6) applies to the proceedings complained of. The Commission has

already found that a dispute concerning the allocation of a certain

milk-quota constitutes the determination of civil rights (Van de Hurk

v. the Netherlands, Comm. Report 10.12.92, paras. 34-36). The

Commission considers that a court decision ordering the person entitled

to a milk-quota to transfer it, even partially, to another person

equally affects his right to produce a certain quantity of milk and

therefore also determines his civil rights. Article 6 (Art. 6)

therefore applies to the proceedings complained of.

However, insofar as the applicants complain that they did not

have access to court as the Court of Appeal refused to seek a

preliminary ruling from the European Court of Justice, the Commission

notes that in the determination of their dispute with Mr. B., the

applicants did have access to the Tilburg District Court and to the

Arnhem Court of Appeal as tribunals within the meaning of Article 6

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

no indication in the present case that the Court of Appeal's refusal

to seek a preliminary ruling from the European Court of Justice

rendered the proceedings unfair.

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.

Insofar as the applicants further complain about partiality of

the Court of Appeal, they have failed to substantiate their complaint.

The Court of Appeal cannot be said to have been biased on the sole

ground that it refused to seek a preliminary ruling from the European

Court of Justice.

It follows that this part of the application is also manifestly

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

Convention.

2. The applicants further complain that, by ordering them to

transfer to Mr. B. half of the milk-quota allocated to them, the Court

of Appeal deprived them of their possession contrary to Article 1 of

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

However, the Commission is not required to decide whether or not

the facts alleged by the applicants disclose any appearance of a

violation of this provision as, under Article 26 (Art. 26) of the

Convention, it may only deal with a matter after all domestic remedies

have been exhausted according to the generally recognised rules of

international law.

The mere fact that the applicants have submitted their case to

the competent courts does not of itself constitute compliance with this

rule. It is also required that the substance of any complaint made

before the Commission should have been raised during the proceedings

concerned. In this respect the Commission refers to its established

case-law (see e.g. No. 1103/61, Yearbook 5 pp. 168, 186; No. 5574/72,

Dec. 21.3.75, D.R. 3 pp. 10, 15; No. 10307/83, Dec. 6.3.84, D.R. 37 pp.

113, 120).

In the present case the applicants did not raise, either in form

or in substance, in the proceedings before the District Court and the

Court of Appeal, the complaint which they now make before the

Commission. Moreover, an examination of the case does not disclose the

existence of any special circumstances which might have absolved the

applicants, according to the generally recognised rules of

international law, from raising this complaint in the proceedings

referred to.

It follows that the applicants have not complied with the

condition as to the exhaustion of domestic remedies and their

application must in this respect be rejected under Article 27 para. 3

(Art. 27-3) of the Convention.

For these reasons, the Commission, by a majority

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to President of

the Second Chamber the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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JANSEN AND VERSCHUEREN-JANSEN v. THE NETHERLANDS

JANSEN AND VERSCHUEREN-JANSEN v. THE NETHERLANDS

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