CONCURRING OPINION OF JUDGE RESS

I agree with the outcome of this case but in my view the reasoning of the Court needs some clarification.

It is true, as the Court has stressed in paragraph 198 of the judgment, that the issue before it is whether, as regards the appeals brought by the present applicants, it was compatible with the requirement of objective impartiality of a tribunal that the Council of State ’ s institutional structure allowed certain of its o rdinary c ouncillors to exercise both advisory and judicial functions. But more precisely the issue is what was the subject matter of the relevant proceedings. In this connection, the Court refers in paragraph 200 to the fact that the advisory opinion given on the Transport Infrastructure Planning Bill and the subsequent proceedings on the appeals brought against the routing decisions cannot be regarded as involving the same case or the same decision. If this is the criterion then the question has to be answered: when are decisions “the same” or when is a case “the same”?

In my view that can only be so where their subject matter is identical – that is, to put it negatively, not different. The subject matter of different sets of proceedings is the same if the facts of the case are (more or less) the same and if the legal questions addressed in the proceedings on the basis of these facts are identical. One could also, as a third element, refer to the parties to the proceedings and ask the question whether they are different or the same.

The decisive question is not whether an o rdinary c ouncillor has exercised both advisory and judicial functions, but whether the decisions taken by him or her, irrespective of whether in an advisory or a judicial capacity, relate to the same subject matter. In that connection, it is necessary to note, as the Court did in paragraph 201 of the judgment , that the advice given by the Council of State to the g overnment on the Transport Infrastructure Planning Bill relates only to the consultation of local and regional authorities and the prospective exploiter of the railway before a draft routing decision is drawn up. The advice concerns the procedure leading to the outline planning decision which is to form the basis of, and be transformed into, a draft routing decision. It is an advisory opinion which concerns the general structure of this procedure, but not the precise routing decision, which is taken afterwards by the Minister for Transport and Communication s together with the Minister for Housing, Planning and Environmental Management (the final routing decision) and which may affect the interests and property rights of individuals. There is a clear relation between the Transport Infrastructure Planning Act as a general rule and the concrete routing decision. The subject matter of these two sets of proceedings is as different as the distinction between general and individual or abstract and concrete normally is. The advice on the Transport Infrastructure Planning Bill concerns the procedures laid down therein and does not relate to the precise places which the Betuweroute r ailway will cross. These places of the

routing arrangements are not determined, not even by the proposal of the Council of State to the g overnment to indicate the starting and ending points. Within the Transport Infrastructure Planning Bill quite a number of different routing decisions are possible. As everybody knows, the level of abstraction may be very different in different matters of legislation; it may become so near to concrete and the subject matter may become so narrowed that a formal distinction would have to be considered rather artificial in the light of appearances. Appearances do not just stop at these formal classifications. Therefore a closer look at the different subject matter of the decisions will always be necessary.

Here, since the subject matter of the decisions was clearly different, there is no appearance that those o rdinary c ouncillors who had given advice had already addressed, or made up their minds about, all the possible routing decisions. The facts of these two sets of proceedings were different, since the exact routing points were not known when the advice on the Transport Infrastructure Planning Bill was given. Secondly, the legal questions addressed were different because the advice only dealt with questions of procedure and participation and not the question of the necessity of the actual routing in the light of the applicants ’ rights and interests, unlike the decision on their appeals against the routing decision. And , thirdly, the parties were different, as the advice was given in proceedings between State organs whereas the examination of the legality of the actual routing involved private individuals, such as the applicants, with their specific rights, on the one hand and the ministers who had taken the Betuweroute R outing D ecision on the other.

DISSENTING OPINION OF JUDGE THOMASSEN

JOINED BY JUDGE ZAGREBELSKY

In Procola v. Luxembourg ( judgment of 28 September 1995 , Series A no. 326, p. 16, § 45 ) the Court stated: “The Court notes that four members of the Conseil d ’ Etat carried out both advisory and judicial functions in the same case. In the context of an institution such as Luxembourg ’ s Conseil d ’ Etat the mere fact that certain persons successively performed these two types of function in respect of the same decisions is capable of casting doubt on the institution ’ s structural impartiality.”

The present case raises the question of the structural independence and impartiality of the Netherlands Council of State, whose o rdinary c ouncillors, as in the Conseil d ’ Etat of Luxembourg , combine both judicial and advisory functions (see paragraphs 125-41 of the judgment). The Constitution of the Netherlands requires the g overnment, before submitting any b ill to Parliament for adoption, to seek the advisory opinion of the Council of State. This advice is required to address different aspects of the proposed law, bearing not merely on technical legislative questions but also on the effectiveness and feasibility of the intended measures, as well as on the quality of the legal protection thereby provided (see paragraph 134 of the judgment). Advisory opinions are adopted by the Plenary Council of State, which is composed of the o rdinary c ouncillors. The o rdinary c ouncillors are at the same time members of the Administrative Jurisdiction Division of the Council of State and, as such, are entrusted with the function of adjudicating administrative disputes, including applications for interim relief, where the law so provides.

The present applicants lodged appeals against the Betuweroute R outing D ecision ( Tracébesluit ) adopted by the g overnment, the effect of which was to route the planned railway close to their homes or businesses. Their appeals were determined by a C hamber of the Administrative Jurisdiction Division of the Council of State, whose judges combined both advisory and judicial functions and whose p resident had been a member of the Plenary Council which had advised the g overnment on the b ill which became the Transport Infrastructure Planning Act ( Tracéwet ). The Act was designed to introduce a new legislative framework for large-scale transport projects of major national importance. It did so by, inter alia , simplifying procedures for securing the cooperation of provincial, regional and local authorities whose territories might be affected by the project and by restricting to a single appeal the legal remedies available to those objecting to decisions of national and local authorities. The Act would be directly applicable to the already ongoing decision-making process concerning the Betuweroute .

The central question raised is whether, in the circumstances of the present case, the combining of the advisory and judicial functions within the Council of State was capable of casting doubt on the institution ’ s structural impartiality sufficient ly to vitiate the impartiality of the C hamber of the Administrative Jurisdiction Division which determined the applicants ’ appeals.

As the Court correctly observes in its judgment (paragraph 196) and as is established by Procola , the consecutive exercise of advisory and judicial functions within a body may, in certain circumstances, raise an issue under Article 6 § 1 of the Convention as regards the impartiality of the body seen from an objective point of view. In deciding whether in any given case there exists a legitimate ground to fear that the requirements of independence and impartiality are not met, the standpoint of a party is important but not decisive. What is decisive is whether this fear can be objectively justified, that is, whether there are ascertainable facts which may raise doubts as to the impartiality of the tribunal in question. However, in making this assessment, the Court has repeatedly emphasised that appearances may be of a certain importance, what is at stake being the confidence which the courts in a democratic society must inspire in the public and above all in the parties to proceedings.

The question of appearances assumes particular importance, in my view, in a context where judicial functions and the structural function of advising the g overnment are combined within the same body and where the structure of the body is such that its members can successively exercise both functions. While it is true that neither Article 6 nor any other provision of the Convention has been held by the Court to require States to comply with any theoretical constitutional concept of separation of powers, it is also true, as is noted in the judgment, that the notion of the separation of powers between the political organs of government and the judiciary has assumed a growing importance in the Court ’ s case-law, most recently in Stafford v. the United Kingdom ( cited at paragraph 193 of the present judgment).

Where, as here, there exists no clear separation of functions within the body concerned, particularly strict scrutiny of the objective impartiality of the tribunal is called for. This is all the more the case where, as in the Netherlands system, an appellant is not informed in advance of the composition of the C hamber of the Administrative Jurisdiction Division which is to determine his appeal or of the nature of the participation, if any, of its members in the advisory work of the Council of State.

The majority of the Court recognise in the judgment the potential problems posed in Convention terms by the structural arrangements within the Council of State. Indeed, the Court goes as far as to state that it does not share the confidence of the Government that even the changes made in the arrangements within the Council of State with a view to giving effect to Procola in the Netherlands would be such as to ensure that in all appeals coming before it the Administrative Jurisdiction Division would satisfy the requirements of impartiality for the purposes of Article 6 of the Convention.

The majority of the Court nevertheless find that, in the particular circumstances of the present case, the applicants ’ doubts were not justified. In doing so, they distinguish the present case from both Procola (cited above) and McGonnell v. the United Kingdom (no. 28488/95, ECHR 2000-II) by holding that the advisory opinions given on the Transport Infrastructure Planning Bill and the subsequent proceedings on the appeals brought against the routing decision cannot be regarded as involving “the same case” or “the same decision”. It appears to be the view of the majority that this would only have been the case if the Council of State in its advisory capacity could reasonably have been interpreted as expressing views, or making preliminary determinations, on issues subsequently decided by the responsible m inisters in the relevant routing decision (see paragraph 201 of the judgment).

I cannot agree with this analysis, which appears to me to place too narrow an interpretation on the terms “same case” or “same decision”. The terms themselves were first used in cases in which individual judges had been involved in the same legal proceedings at two different stages and in two different capacities (see, for example, Piersack v. Belgium, judgment of 1 October 1982 , Series A no. 53, and Hauschildt v. Denmark, judgment of 24 May 1989 , Series A no. 154). While, in such a context, the test of what constitutes the “same case” is straightforward, its application in circumstances such as the present, involving the structural independence and impartiality of the judicial members of the Council of State, is less clear. Having regard to the importance of the confidence which courts must inspire in the public, I consider that in such a case a broad rather than a strict legal approach should be taken to the question whether the proceedings on the appeals against the routing decision could reasonably be regarded as involving “the same case” as that on which the members of the Council of State had already advised.

As is clear from the summary of the facts, the construction of the Betuweroute was a highly controversial project which had been the subject of extensive debate at all stages. While the Council of State did not give any advice as to the precise routing of the railway, it indisputably played a role in the realisation of the Betuweroute project, to which explicit reference was made in the two advisory opinions given on the Transport Infrastructure Planning Bill. While the issues on which the Council of State, in its capacity as advisory body to the g overnment, was required to advise and those which, in its judicial capacity, it had to decide were clearly not identical and while the links between the two may be said to be more remote than those which were examined by the Court in Procola and McGonnell , I consider that those links were sufficiently strong to regard the proceedings before the Administrative Jurisdiction Division as relating to the same case and, thus, to give rise to doubts which were objectively justified.

For these reasons, I consider that there has been a violation of the applicants ’ rights under Article 6 of the Convention in the present case.