Information Note on the Court’s case-law No. 115
January 2009
Cooperatieve Producentenorganisatie van de Nederlandse Kokkelvisserij U.A. v. the Netherlands - 13645/05
Decision 20.1.2009 [Section III]
Article 6
Civil proceedings
Article 6-1
Fair hearing
Adversarial trial
Refusal by the Court of Justice of the European Communities to authorise a third party to respond to the Advocate General's opinion: inadmissible
In July 1999 and July 2000, the applicant association obtained licences which would allow it to fish for cockles in an area protected under European Community environmental legislation.
In 2001 two environmentalist non-governmental organisations (NGOs) instituted court proceedings, arguing that mechanical cockle fishing caused long-term and possibly irreversible damage to ecologically vulnerable areas. The domestic tribunal sought a preliminary ruling from the Court of Justice of the European Communities (ECJ) under Article 234 of the EC Treaty. The NGOs, the applicant association, the respondent Government and the European Commission all submitted observations to the ECJ. Following proceedings in writing, the ECJ held an oral hearing. At a later date, the Advocate General's advisory opinion was read out in public. The applicant association requested permission to submit a written response to that opinion; in the alternative, an order for the reopening of the oral proceedings; and in the further alternative, some other opportunity to revisit the advisory opinion. The ECJ dismissed these requests, noting, inter alia, that the applicant association had not submitted any precise information showing that it was either useful or necessary to reopen the oral proceedings. In 2004 the ECJ gave its preliminary ruling, opining that as a matter of Community law the respondent Government could grant a licence for mechanical cockle fishing to the applicant association provided that it was shown beyond reasonable scientific doubt that such fishing would not adversely affect the natural habitat in the area concerned. The domestic tribunal allowed the participants in the proceedings before it to respond in writing to the judgment of the ECJ and held a further hearing before giving its judgment. Finding it established, in the absence of scientific evidence to the contrary, that the impact of mechanical cockle fishing on the natural habitat appeared likely to be “significant”, it annulled the cockle-fishing licences issued to the applicant association. The latter complained that its right to adversarial proceedings had been violated as a result of the refusal of the ECJ to allow it to respond to the Opinion of the Advocate General.
Inadmissible: The Court proceeded on the assumption that Article 6 was applicable to the preliminary ruling procedure before the ECJ. In so far as the applicant's complaints had to be understood as directed against the European Community itself, which had separate legal personality as an international intergovernmental organisation and was not a party to the Convention, the application was incompatible with the provisions of the Convention ratione personae.
However, the responsibility of the Kingdom of the Netherlands as a respondent Party was engaged, given that the applicant's complaint was based on an intervention of the ECJ sought by a domestic court in proceedings pending before it (contrast with Boivin v. France, in Information Note no. 111). The interpretation which the ECJ had given of Community law was authoritative and could not have been ignored by the domestic court. However, there was a presumption that a Contracting Party had not departed from the requirements of the Convention where it had taken action in compliance with legal obligations flowing from its membership of an international organisation to which it had transferred part of its sovereignty as long as the relevant organisation protected fundamental rights, as regards both the substantive guarantees offered and the mechanisms controlling their observance, in a manner which could be considered at least equivalent to that for which the Convention provides (seeBosphorus Hava Yollari Turizm Ve Ticaret Anonim Şirketi (“Bosphorus Airways”) v. Ireland [GC] in Information Note no. 76). As a corollary, this presumption applied not only to actions taken by a Contracting Party but also to the procedures followed within the international organisation itself and, in particular, to the procedures of the ECJ. In that respect, such protection did not have to be identical to that provided by Article 6 of the Convention; the presumption could be rebutted only if, in the circumstances of a particular case, it was considered that the protection of Convention rights had been manifestly deficient. In examining whether the procedure before the ECJ had ensured equivalent protection of the applicant's rights, the Court gave weight to the possibility offered by Rule 61 of the ECJ's Rules of Procedure – a possibility which had to be accepted as realistic and not merely theoretical – to order the reopening of the oral proceedings after the Advocate General had read out his or her opinion if the ECJ found it necessary to do so and to the fact that requests by one of the parties to reopen the proceedings were considered on their merits. Furthermore, the domestic court could have submitted a further request for a preliminary ruling to the ECJ if it had found itself unable to decide the case on the basis of the first such ruling. In the light of these considerations, the applicant association had failed to rebut the presumption that the procedure before the ECJ provided equivalent protection of its rights: manifestly ill-founded.
See also Emesa Sugar N.V. v. the Netherlands, in Information Note no. 71.
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This summary by the Registry does not bind the Court.
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