THIRD SECTION

DECISION

Application no . 63072/10 Jan STOLK against the Netherlands

The European Court of Human Rights ( Third Section), sitting on 7 October 2014 as a Chamber composed of:

Josep Casadevall , President , Alvina Gyulumyan , Ján Šikuta , Dragoljub Popović , Luis López Guerra, Johannes Silvis, Valeriu Griţco , judges , and Marialena Tsirli , Deputy Section Registrar .

Having regard to the above application lodged on 8 October 2010 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant ,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr Jan Stolk , is a Netherlands national, who was born in 1957 and lives in Utrecht . He was represented before the Court by Mr A.M.J. Brands, a lawyer practising in Oegstgeest .

A. The circumstances of the case

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

3 . From January 2003 the applicant worked for a design and consultancy agency specialised in urban planning. At the relevant time, the owner of the agency was self-employed and w as employing two other persons , one of them the applicant.

4 . On 17 February 2010 the applicant ’ s employer (hereafter: “the employer”) requested the Employee Insurance Schemes Implementing Body ( Uitvoeringsinstituut Werknemersverzekeringen ) to authorise the termination of the applicant ’ s employment contract. Such authorisation may be requested and granted under the Extraordinary Labour Relations Decree 1945 ( Buitengewoon Besluit Arbeidsverhoudingen 1945 ; see below). The employer ’ s request was based on altered business circumstances ( veranderde bedrijfeconomische omstandigheden ).

5 . On 24 March 2010 the applicant submitted a statement of defence ( verweer ) to the Employee Insurance Schemes Implementing Body, arguing that it appeared from that organisation ’ s policy rules that a request for authorisation on the basis of altered business circumstances should be substantiated by relevant figures regarding the turnover, the costs and the results of the business per month for the last three years, which figures the employer had failed to include in his request. He further argued that there was a chance that the agency would be awarded two new projects and that there was a fair chance that any delay in ongoing projects had been caused by administrative proceedings instead of economic circumstances so that the decrease in available work would constitute normal business risk ( normale bedrijfsrisico ).

6 . On 2 April 2010 the employer stated that the ongoing projects were nearly finished and that due to the economic crisis much work had disappeared over a short period of time, that he had submitted the figures over the years 2008 and 2009, that the drop in available work did not concern a temporary lapse which could be considered normal business risk, and lastly, that his other employee, thanks to his qualifications, was able to carry out all business activities independently, unlike the applicant.

7 . On 16 April 2010 the applicant submitted a second statement of defence to the Employee Insurance Schemes Implementing Body, arguing, inter alia , that the employer ’ s statements concerning the agency ’ s prospects had not been substantiated.

8 . On 20 April 2010 the applicant received both the acknowledgement of receipt of the second statement of defence and the Employee Insurance Schemes Implementing Body ’ s decision authorising his employer to terminate his employment contract.

9 . On 22 April 2010 the applicant received a letter from his employer terminating his employment contract as of 1 August 2010.

B. Relevant domestic law and practice

10 . Pro visions of domestic legislation relevant to the case , and as applicable at the relevant time, are the following.

1. The Employee Insurance Schemes Implementing Body

11 . The Employee Insurance Schemes Implementing Body is a non ‑ departmental administrative body ( zelfstandig bestuursorgaan ) – i.e . an administrative body not subordinate to any particular Minister – under Netherlands law (section 4 of the Work and Income (Implementation Structure) Act ( Wet structuur uitvoeringsorganisatie werk en inkomen )). It is responsible not only for implementing social-security legislation, but also for exercising the tasks imposed on it by section 6 of the Extraordinary Labour Relations Decree 1945.

2. The Extraordinary Labour Relations Decree 1945

“ Section 6

1. The employer requires for the termination of the employment relationship prior authorisation of the Employee Insurance Schemes Implementing Body.

2. The employer does not require this authorisation :

a. if termination takes place without delay ( onverwijld ) for an urgent reason, under simultaneous notice of this reason to the employee;

b. during the probationary period;

c. if termination takes place as a result of bankruptcy of the employer or if a debt rescheduling scheme concerning natural persons is applied to him.

3. By ministerial regulation ( ministeriële regeling ) rules are set out concerning the authorisation within the meaning of paragraph one.

4. Before a decision regarding the giving of authorisation pursuant to paragraph one is taken, the Employee Insurance Schemes Implementing Body will hear representatives of the appropriate employer and employee organisations except in cases provided for by ministerial regulation.

5. Our Minister [of Social Affairs and Employment ( Minister van Sociale Zaken en Werkgelegenheid )] may provide the Employee Insurance Schemes Implementing Body with indications concerning the power to give authorisation within the meaning of paragraph one. He does not enter into the decision-making in individual cases.

6. By ministerial regulation provisions can be made in case the Employee Insurance Schemes Implementing Body does not properly fulfil its obligations that flow from this section.

...

9. By ministerial regulation certain employees or groups of employees can be conditionally or unconditionally dispensed or exempted from paragraph one.

10. No appeal to the Industrial Appeals Tribunal ( College van Beroep voor het Bedrijfsleven ) lies against decisions of the Employee Insurance Schemes Implementing Body regarding the giving of authorisation pursuant to paragraph one.”

12 . Detailed rules for this procedure have been set out in the Dismissals Decree ( Ontslagbesluit ).

13 . The authorisation of the Employee Insurance Schemes Implementing Body constitutes a decision within the meaning of the General Administrative Law Act ( Algemene wet bestuursrecht ). This Act generally g rants a right to a judicial examination of such decisions; however, decisions made pursuant to section 6 of the Extraordinary Labour Relations Decree 1945 are excluded from the possibility to appeal (section 8:5, paragraph one, in conjunction with Annex F, paragraph one of the General Administrative Law Act).

COMPLAINT

14 . The applicant complain ed under Article 6 of the Convention that Netherlands legislation denied him a judicial examination of the Employee Insurance Schemes Implementing Body ’ s decision to authorise the termination of his employment contract.

THE LAW

15. The applicant complained that he had been denied full judicial review of the decision by which the Employee Insurance Schemes Implementing Body authorised the termination of his contract of employment. He relied on Article 6 of the Convention, which, in its relevant part, provides as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”

The Government disputed this.

16. In the Government ’ s view the applicant was not a “victim” within the meaning of Article 34 of the Convention of any alleged violation. It was not the Employee Insurance Schemes Implementing Body ’ s decision authorising his employer to terminate his employment contract that had affected him; it was his actual dismissal, which came later.

17. The Government submitted in the alternative that the applicant had failed to exhaust the available effective domestic remedies. In the first place, the applicant could have taken civil proceedings under Article 6:162 of the Civil Code against the Employee Insurance Schemes Implementing Body , which might have led to an award of compensation. Another possibility would have been for him to seek an order for his reinstatement in his former employment or for compensation to be paid by his former employer under Articles 7:681 and 7:682 of the Civil Code.

18. In the further alternative, Article 6 was not applicable to the case because it was not the decision of the Employee Insurance Schemes Implementing Body that had affected the applicant ’ s “civil rights and obligations” but only his actual dismissal.

19. The applicant admitted that he had made use of the second procedural option pleaded by the Government, namely to take his former employer to court under Articles 7:681 and 7:682 of the Civil Code , and that he had not appealed against the judgment of the first-instance court which had held in his former employer ’ s favour . Be that as it might, the civil courts could only order compensation; they were powerless to give a binding order for his reinstatement.

20. The Court will consider the Government ’ s objections that the applicant lacks “victim” status and that Article 6 is not applicable together, since they coincide in substance.

21. In X v. the Netherlands , no. 89 74/80, Commission decision of 8 October 1984, Decisions and Reports (DR) 24, p. 187, the Commission considered that proceedings under section 6 of the Extraordinary Labour Relations Decree 1945 did not “determine” civil rights and obligations; it was only the actual dismissal from employment, if it ensued, that affected the employee ’ s rights and brought Article 6 into play. The Court notes that in the present case that stage was reached; authorisation for the termination of the applicant ’ s employment relationship was given and the a pplicant ’ s former employer made use of it. That being the case the applicant has standing to claim a violation of his rights under Article 6 of the Convention provided that he has fulfilled the admissibili ty requirements of Article 35 § 1.

22. On the latter point, the Court notes that the applicant took proceedings against his former employer under Articles 7:681 and 7:682 of the Civil Code . He admitted , however, that he had not pursued these to a conclusion: he had failed to appeal against the judgment of the Amsterdam Regional Court of 1 June 2010 (see parag raph 10 above). The reason he ga ve for this was that the Regional Court was in any event unable to grant him the relief he sought, namely a binding order for his reinstatement in his former position that could not, at his former employer ’ s discretion, be replaced by compensation.

23. It may well be that the applicant would prefer reinstatement to compensation. However, the Court cannot find for that reason alone that the remedy in issue is ineffective. It should be pointed out that Article 6 § 1 does not guarantee any particular content for (civil) “rights and obligations” in the substantive law of the Contracting States: the Court may not create by way of interpretation of Article 6 § 1 a substantive right which has no legal basis in the State concerned (see, as a recent authority, Stichting Mothers of Srebrenica and Others v. the Netherlands ( dec. ), no. 65542/12, § 168, ECHR 2013-...).

24. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court, by a majority,

Declares the application inadmissible.

Marialena Tsirli Josep Casadevall Deputy Registrar President