Information Note on the Court’s case-law 103

December 2007

El Majjaoui and Stichting Touba Moskee v. the Netherlands (striking out) [GC] - 25525/03

Judgment 20.12.2007 [GC]

Article 37

Article 37-1-b

Matter resolved

Matter before Court resolved by successful intervening application for a work permit: struck out

Article 9

Article 9-1

Freedom of religion

Manifest religion or belief

Refusal of a work permi t to enable a foreign national to work as an imam at a mosque: struck out

Facts : The first applicant is a Moroccan national and the second applicant a foundation with legal personality under the laws of the Netherlands, where it runs a mosque. In 1999 the foundation applied for a work permit for the first applicant to act as its imam . That application was refused on the grounds that since the job vacancy had not been advertised it had to be assumed that there was an adequate supply of priority labour available from within the European Union or European Economic Area and that it had no t been shown that the first applicant would be paid the statutory minimum wage. The applicants appealed unsuccessfully and in 2005 the first applicant returned to Morocco after being served with an expulsion order. In the interim he had lodged an applicati on with the European Court complaining inter alia of a violation of Article 9 of the Convention. In 2006 the applicants made a fresh application for a work permit, which the authorities granted as they were now satisfied that sufficient efforts had been ma de to fill the post with priority labour and that the first applicant’s proposed wages met the minimum-wage requirements. The first applicant was able to take up the post.

Law : The Government had argued that the case had been resolved and should therefore be struck out of the Court’s list under Article 37 § 1 (b) of the Convention. The Court noted that in deciding that issue it had to determine whether the circumstances complained of still obtained and whether the effects of a possible violation of the Conv ention on account of those circumstances had also been redressed.  As to the first point, there was no longer any question of the first applicant being prevented from working as an imam at the mosque or of the foundation not being allowed to employ him in that capacity. As to the question of redress, the mere fact that the foundation had had to comply with certain requirements before it was able to employ the first applicant did not as such raise an issue under Article 9.  That provision did not guarantee f oreign nationals a right to a residence permit for the purposes of taking up employment in a Contracting State even if the employer was a religious association. Since a work permit had since been granted and the first applicant was now lawfully employed by the applicant foundation, their complaints had, in the light of all the relevant circumstances, been adequately and sufficiently remedied. The matter could therefore be considered to have been resolved.

Conclusion : striking out (fourteen votes to three).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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