Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12856/87

by E. VAN WIJK B.V.

against the Netherlands

The European Commission of Human Rights (Second Chamber)

sitting in private on 10 September 1991, the following members being

present:

MM. S. TRECHSEL, President of the Second Chamber

G. SPERDUTI

G. JÖRUNDSSON

A. WEITZEL

H.G. SCHERMERS

Mrs. G. H. THUNE

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. J.-C. GEUS

M.P. PELLONPÄÄ

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 31 March 1987

by E. van Wijk B.V. against the Netherlands and registered on 15 April

1987 under file No. 12856/87;

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

A. Particular circumstances of the case

The applicant is a company, having its seat at Genderen, the

Netherlands. Before the Commission it is represented by Mr. W.J.

Wortelboer, a lawyer practising in Amsterdam.

The facts as submitted by the parties may be summarised as

follows.

The applicant is a shipping and haulage company. It has

existed since 1933. In the course of time three storage tanks for oil

were put in the ground on its property.

On 13 May 1982, the applicant company requested the Municipal

Authorities for a license under the Nuisance Act (Hinderwet) to

construct, to bring into operation and to exploit storage space, a

repair device for motor vehicles and three underground oil tanks, all

of which it had apparently been using for a number of years.

By letter of 5 August 1982 the Waterworks Company

"Noord-West-Brabant" raised objections (bezwaar) in respect of the

license application and the draft decision of the Municipal

Authorities.

On 17 February 1983 the Municipal Authorities granted the

license subject to certain conditions.

The Waterworks Company lodged an appeal against the decision

of the Municipal Authorities with the Crown in March 1983.

In a public hearing before the Administrative Litigation

Division of the Council of State (Afdeling voor de geschillen van

bestuur van de Raad van State), the applicant company submitted that

it had a right to compensation if the Crown would take a decision

which would cause damages to the applicant company.

On 1 October 1986 the Crown, in accordance with the advice of

the Administrative Litigation Division of the Council of State,

decided that the Municipal Authorities had rightly granted the license

under the Nuisance Act, but changed several of the attached

conditions, so that the oil would now be stored above ground and part

of the company's property would be provided with a non-porous soil

covering in the interest of the water-supply. The Crown disregarded

the applicant company's request for compensation.

The applicant company alleges that it would cost 1.200.000,-

Dutch guilders to meet all the conditions in the Crown's decision.

B. Relevant domestic law and practice

Pursuant to the Benthem judgment, in which the Court has held

that the Crown is not a tribunal within the meaning of Article 6 para.

1 of the Convention, the Dutch legislation has been amended by the

Provisional Act on Crown Appeals (Tijdelijke Wet Kroongeschillen).

This Act came into force on 1 January 1988. In order to comply with

the Benthem judgment until 1 January 1988, the Supreme Court has ruled

that the interested party may file an appeal with the civil courts

after a decision of the Crown. The civil court has the right to

conduct a totally independent examination of the case, including the

contentious issue already decided by the Crown (Hoge Raad 12 December

1986, NJ 1987/272). This case-law has been confirmed by subsequent

judgments (e.g. Hoge Raad 6 February 1987, NJ 1987/381).

COMPLAINTS

The applicant company complains that the Crown, which has

decided on the applicant company's civil rights, is not an independent

and impartial tribunal within the meaning of Article 6 para. 1 of the

Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 31 March 1987 and registered

on 15 April 1987.

On 2 May 1989, the Commission decided to communicate the

application to the respondent Government and invite them to submit

written observations on the admissibility and merits of the complaint

under Article 6 para. 1 of the Convention concerning the proceedings

before the Crown.

The Government's observations were received by letter dated 13

September 1989 and the applicant's observations were dated 24 November

1989. On 2 September 1991 the Commission refered the application to

the Second Chamber.

THE LAW

The applicant company has complained that the Crown, which

decided on its civil rights, is not an independent and impartial

tribunal within the meaning of 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 ...

hearing within a reasonable time by an independent and

impartial tribunal..."

The Government submit that, while Article 6 para. 1

(Art. 6-1) of the Convention applies to proceedings concerning

applications for a licence under the Nuisance Act, the applicant

company has failed to exhaust the domestic remedies as required by

Article 26 (Art. 26) of the Convention. Pursuant to the Benthem

judgment and in anticipation on the Provisional Act on Crown Appeals,

the Supreme Court has ruled as soon as 12 December 1986 that an

interested party can apply to the civil courts for a full legal review

of the Crown's decision. This case-law has been further confirmed and

clarified in the Supreme Court's decision of 6 February 1987.

The applicant company 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 the proceedings will not be "within a reasonable time".

The applicant company further argues that a domestic remedy does not

have to be exhausted where it is not effective or adequate and that

the high costs attached to the civil proceedings render ineffective

the new domestic remedy indicated by the Government.

The Commission considers the objection by the Government not

as raising an issue of non-exhaustion but rather as implying the

argument that the applicant can no longer claim to be a victim of a

violation of its right under Article 6 para. 1 (Art. 6-1) to a hearing before an

independent and impartial tribunal and that the application is

therefore manifestly ill-founded within the meaning of Article 27

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

In this respect, the Commission observes that the applicant

company claims to have been a victim of a violation of Article 6 para.

1 (Art. 6-1) in the past, in that it did not have access to an

independent and impartial tribunal for the determination of its civil

rights; this situation prevailed throughout the domestic proceedings

which started on 13 May 1982 and ended on 1 October 1986 when the

Crown gave its decision. The Commission notes that some time after

that decision the Supreme Court rendered the two judgments invoked by

the Government (Hoge Raad 12 December 1986, NJ 1987/272 and Hoge Raad

6 February 1987, NJ 1987/381). The Commission also notes that under

this new case-law the applicant company could institute new

proceedings which would start before a civil court of first instance.

The Commission does not find that this recent development

precludes the applicant company from claiming that it has been a

victim in the past of the situation complained of.

It follows that the application cannot in this respect be

declared inadmissible as being manifestly ill-founded.

The Commission further, having regard to the parties'

submissions under Article 6 para. 1 (Art. 6-1) of the Convention,

considers that the applicant company's complaint, that its case was

not judged by an independent and impartial tribunal, raises a serious

issue which must be examined on the merits. The application cannot,

therefore, be declared 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 this reason, the Commission, by a majority

DECLARES THE APPLICATION ADMISSIBLE,

without prejudging the merits of the case.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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E. VAN WIJK B.V. v. THE NETHERLANDS

E. VAN WIJK B.V. v. THE NETHERLANDS

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