Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 16034/90

by Cornelis van de HURK

against the Netherlands

The European Commission of Human Rights sitting in private on 8

January 1992, the following members being present:

MM.C.A. NØRGAARD, President

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs.G. H. THUNE

SirBasil HALL

MM.F. MARTINEZ RUIZ

C.L. ROZAKIS

Mrs.J. LIDDY

MM.L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

Mr. H.C. KRÃœGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 1 December 1989

by Cornelis van de HURK against the Netherlands and registered on 22

January 1990 under file No. 16034/90;

Having regard to the observations submitted by the respondent

Government on 2 May 1991 and the observations in reply submitted by the

applicant on 28 June 1991;

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 applicant, a Dutch citizen born in 1945, is a dairy farmer

resident at Geffen in the Netherlands. Before the Commission he is

represented by Mr. Th. J.H.M. Linssen, a lawyer practising at Tilburg

in the Netherlands.

1. Particular circumstances of the case

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

summarised as follows.

The applicant owns a cubicle cowshed containing 90 cubicles for

dairy cows and 63 cubicles for calves. He was frequently warned by a

veterinarian that this situation was unhealthy for his cattle and

contrary to the modern breeding requirements. By 1978 plans for

extending the cowshed were made. To finance this rebuilding, on 6

January 1984, the applicant entered into certain investment

obligations. The construction started on 14 April 1984. After the

rebuilding the cowshed's capacity increased so that it could contain

130 cubicles for dairy cows.

According to the EEC Regulation No. 856/84 of 31 March 1984,

implemented in the Netherlands by the Super Levy Ordinance (Beschikking

Superheffing) of 18 April 1984, every dairy farmer may produce a

certain amount of milk, calculated on the basis of his production

capacity prior to 1 April 1984. For any surplus production a levy

(super levy) must be paid. Farmers who prior to 1 April 1984 had

concluded binding contracts with builders for an expansion of their

farm with more than 25% were entitled to an extra (levy-free) quota

based on the capacity of the expanded farm. On the basis of these

rules, the Director of Agriculture and Food Supply (Directeur voor

Landbouw en Voedselvoorziening) of the province of Noord Brabant

granted the applicant a certain levy-free milk quota in 1984.

Nevertheless, the applicant claims that this quota was insufficient for

him to comply with the financial obligations he had entered into.

The applicant then claimed an extra levy-free quota according to

Article 11 of the Super Levy Ordinance in view of the investment

undertaken and the increase of cow cubicles. However, the Minister of

Agriculture and Fisheries and subsequently the Industrial Appeals Board

(College van Beroep voor het Bedrijfsleven) found that the information

adduced by the applicant did not justify his claim.

On 29 June 1984 the applicant filed a further request for an

extra levy-free quota. This request was rejected by the Director of

Agriculture and Food Supply on 1 November 1984, on the ground that the

applicant had failed to show that "he had always intended to extend the

cowshed".

On 27 November 1984, the applicant filed an objection

(bezwaarschrift) with the Minister of Agriculture and Fisheries. The

Minister dismissed the objection on 11 November 1985 as the extension

of the cowshed did not meet the requirements of Article 11 of the Super

Levy Ordinance. In particular, the increase of cow cubicles merely

amounted to 10% instead of the required minimum of 25%. In addition,

the amount of the investments was insufficient and there was also no

question of force majeure in the sense of Article 19 of the Super Levy

Ordinance. For these reasons, the Minister denied the applicant the

requested extra levy-free quota.

On 6 December 1985, the applicant appealed to the Industrial

Appeals Board. Subsequently, on 30 December 1985, he requested the

Board to be exempted from paying the super-levy for 1984/1985 and to

be refunded the amount already paid. This interim measure was refused

on 7 July 1987 by the Board. On 16 June 1989, when deciding on the

merits, the Industrial Appeals Board rejected the applicant's appeal.

It stated inter alia that the applicant had failed to prove the claimed

value of his investments and that the Minister had correctly

ascertained the relevant information.

2. Relevant domestic law and practice

The Industrial Appeals Board's function is to control the

lawfulness of decisions of various administrative bodies as well as of

Ministers acting in an administrative capacity. The Board was

established by an Act of Parliament, the Industrial Jurisdiction Act

(Wet Administratieve Rechtspraak Bedrijfsorganisatie), which determines

its organisation and functioning. Its members are appointed for life

by the Crown and can only be removed by the Supreme Court in

exceptional circumstances stated in the Judicial Organisation Act (Wet

op de Rechterlijke Organisatie). Furthermore, they must have the

qualifications of a judge of a court of appeal (raadsheer in een

gerechtshof).

Article 74 of the Industrial Jurisdiction Act states, inter

alia:

"Artikel 74. 1. Indien een uitspraak naar Ons oordeel in

haar gevolgen in strijd komt met het algemeen belang,

kunnen Wij op voordracht van Onze betrokken Ministers

besluiten, dat zij geen gevolg of niet volledig gevolg zal

hebben. 2. In afwachting van de totstandkoming van een

besluit, als in het vorige lid bedoeld, kunnen Wij, op

voordracht van Onze betrokken Ministers, de uitspraak

gedurende een bij Ons besluit te bepalen tijd geheel of

gedeeltelijk schorsen. De schorsing kan, ook na

verlenging, niet langer duren dan een jaar. 3. Een besluit,

als in het eerste lid bedoeld, kan slechts worden genomen

binnen twee maanden, nadat de uitspraak is gedaan, of,

indien binnen die termijn de uitspraak is geschorst, binnen

de voor de schorsing bepaalde tijd. Een besluit, als in

het tweede lid bedoeld, kan slechts worden genomen binnen

twee maanden, nadat de uitspraak is gedaan. 4. ... 5. Het

bepaalde in de eerste twee leden geldt niet, voor zover bij

de uitspraak schadevergoeding of tegemoetkoming in de

schade is toegekend of een veroordeling in de kosten is

uitgesproken. (...)"

"Article 74. 1. If, in Our (i.e. the Crown's) view, a

decision of the Board is contrary to the general interest,

We may order, on the recommendation of Our Ministers

concerned, that it will have no effect, or only a partial

effect.

2. Pending the issue of an order within the meaning of

para. 1, We may, on the recommendation of Our Ministers

concerned, suspend the decision wholly or partially for a

period determined by Us. The suspension, even after

prolongation, may not last longer than a year.

3. An order as mentioned in para. 1 can only be issued

within two months after the Board's decision or, if the

decision has been suspended within that period, within the

period determined for suspension. An order as mentioned in

para. 2 can only be issued, within two months after the

Board's decision.

4. ...

5. Paras. 1 and 2 do not apply when the Board has granted

damages or a contribution to damages or when it has ordered

the payment of costs. (...)"

"Artikel 75 1. Indien Wij besluiten, dat de uitspraak geen

gevolg of niet volledig gevolg zal hebben, kan het College

op verzoek van de betrokkene opnieuw recht doen met

inachtneming van Ons Besluit, dan wel het lichaam

veroordelen tot vergoeding van of tot betaling van een

tegemoetkoming in de schade, die de verzoeker ten gevolg

van het geen of niet volledig gevolg hebben van de

uitspraak lijdt. (...)"

"Article 75. 1. If We (i.e. the Crown) order that the

decision of the Board shall have no effect, or only a

partial effect, the Board may, at the applicant's request,

either take a new decision having regard to Our order, or

oblige the body concerned to compensate the damages

suffered by the applicant as a result of the fact that the

decision has wholly or partially been deprived of its

effect. (...)"

It appears that, so far, these provisions have not been applied

with regard to decisions of the Board.

COMPLAINTS

1.The applicant complains that his case has not been dealt with by

an "independent and impartial" tribunal within the meaning of Article

6 para. 1 of the Convention. He complains in particular that, as the

Crown, and thus the Minister, can deprive the Industrial Appeals

Board's decision of its effect or suspend it, this Board is not an

independent and impartial tribunal.

2. The applicant furthermore complains that he did not have a fair

hearing before the Industrial Appeals Board because the Board

disregarded his arguments, while permitting the Minister to makefurther

submissions at a later stage. Moreover, he argues that the objection

he filed with the Minister concerned a different issue, i.e. the

increase of the number of cow cubicles, whereas before the Board the

criterion of the volume of investments was at stake.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 1 December 1989 and registered

on 22 January 1990.

On 7 January 1991, the Commission decided to communicate the

application to the respondent Government and invite them to submit

written observations on the admissibility and the merits of the

application.

The Government's observations were received by letter dated 2 May

1991 and the applicant's observations were dated 28 June 1991.

THE LAW

1. The applicant complains of the proceedings before the Industrial

Appeals Board. He relies on Article 6 para. 1 (Art. 6-1) of the

Convention which states, 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

established by law."

The applicant submits in particular that the Industrial Appeals

Board is not an independent and impartial tribunal within the meaning

of Article 6 para. 1 (Art. 6-1) of the Convention since the Crown can

deprive the latter's decision of its effect on the basis of Article 74

of the Industrial Jurisdiction Act. The fact that this provision has

never been applied is not relevant as its very existence constitutes

a threat to the Board's independence and impartiality. He alleges that

this is shown by the Board's decisions which are all geared to the

Ministry's policy concerning milk quotas.

The applicant furthermore submits that the request for a revised

decision or for damages provided for in Article 75 of the Industrial

Jurisdiction Act after the Crown has deprived the Board's decision of

its effect does not afford sufficient redress since the applicant can

never be granted the requested extra levy-free quota through these

proceedings.

The applicant finally submits that the possibility of seizing the

civil courts after the Crown's decision constitutes in itself a breach

of Article 6 para. 1 (Art. 6-1) of the Convention, since the entire

duration of these proceedings will not be "within a reasonable time".

The Government emphasise that Article 74 has never been applied.

In the event that the Crown would deprive a decision of the Board of

its effect, they refer to well-established case-law, in particular to

the ARAL judgment (Hoge Raad 6 February 1987, Nederlandse

Jurisprudentie 1988, no. 926), according to which there would be an

appeal to the civil courts against such a decision by the Crown. In

these circumstances, the assertion that the Board decides along policy

lines and thus that it lacks independence and impartiality is therefore

unfounded.

The Government finally point out that Articles 74 and 75 will be

rescinded as from 1 January 1993.

2.The applicant further complains of unfairness of the proceedings

in that the Board disregarded his arguments while permitting the

Minister to make additional submissions at a later stage. He

furthermore argues that the appeal to the Minister concerned a

different issue, i.e., the increase of cow cubicles, whereas before the

Board the criterion of the volume of investments was at stake.

The Government contend that it had never been acknowledged that

the applicant had complied with either criterion. Therefore, when

examining his claim for an extra levy-free quota, the Minister and the

Board could rely on either criterion as compliance with only one of

them is sufficient. It cannot be said therefore that the proceedings

were unfair especially since the new arguments and figures adduced by

the applicant at a later stage were also taken into account.

3.The Commission has taken cognizance of the parties' submissions.

After a preliminary examination of the case the Commission finds that

the application concerns complex issues of fact and law which must be

examined on the merits. The application cannot therefore be rejected

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.

For these reasons, the Commission, by a majority

DECLARES THE APPLICATION ADMISSIBLE,

without prejudging the merits of the case.

Secretary to the Commission President of the Commission

(H. C. KRÜGER) (C. A. NØRGAARD)

Menu

VAN DE HURK v. THE NETHERLANDS

VAN DE HURK v. THE NETHERLANDS

LEXI