HET FINANCIEELE DAGBLAD B.v. v. THE NETHERLANDS

THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 577/11
by HET FINANCIEELE DAGBLAD B.V.
against the Netherlands

The European Court of Human Rights (Third Section), sitting on 28 June 2011 as a Chamber composed of:

Josep Casadevall, President,
Corneliu Bîrsan,
Egbert Myjer,
Ján Šikuta,
Ineta Ziemele,
Nona Tsotsoria,
Kristina Pardalos, judges,
and Santiago Quesada, Section Registrar,

Having regard to the above application lodged on 21 December 2010,

Having deliberated, decides as follows:

THE FACTS

1. The applicant company, Het Financieele Dagblad B.V., are a limited liability company (besloten vennootschap) incorporated under the law of the Netherlands having their registered offices in Amsterdam. They were represented before the Court by Mr T. Barkhuysen, Mr A.W. Bos and Ms C.M. Saris, lawyers practising in Amsterdam.

A. The circumstances of the case

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

1. Background to the case

3. The applicant company publish a daily newspaper, called Het Financieele Dagblad (“The Financial Daily”), which specialises in news and information aimed at a readership interested in business and commerce.

4. At the relevant time, the applicant company outsourced the printing of its newspapers and their distribution to subscribers to another company, Telegraaf Media Groep N.V., a media conglomerate without any institutional links to the applicant company. Telegraaf Media Groep N.V. had the applicant company’s newspapers printed by a subsidiary company, B.V. Rotatiedrukkerij Voorburgwal. Actual distribution to subscribers was organised by another Telegraaf Media Groep N.V. subsidiary company, called DistriQ B.V., which delivered newspapers to depot managers (effectively sub-contractors) who employed newspaper boys to deliver them.

2. Administrative proceedings

5. On various dates in April, May and June 2005 inspectors of the Labour Inspectorate (Arbeidsinspectie) found that the applicant company’s newspapers were delivered to subscribers by newspaper boys of whom 39 did not have either Netherlands nationality or a nationality that allowed them to be equated with Netherlands nationals. The inspectors’ findings were based on identity checks and interviews with the newspaper boys themselves, and on information obtained from the depot managers. It would appear that these newspaper boys, whose names appeared in the reports, were variously Afghan, Cameroonian, Congolese, Egyptian, Ethiopian, Moroccan, Nigerian, Sudanese, Surinamese and Togolese nationals, and that no work permit (tewerkstellingsvergunning) had been issued for any of them. Copies of the inspectors’ reports were sent to the applicant company on 13 March 2006.

6. On 7 August 2006 the Deputy Minister (staatssecretaris) of Social Affairs and Employment (Sociale Zaken en Werkgelegenheid) wrote to the applicant company announcing the intention to impose administrative fines in an amount of 8,000 euros (EUR) for each newspaper boy, or EUR 312,000 in total.

7. The applicant company submitted written comments (zienswijze) disputing the statement that the newspaper boys had distributed their newspapers and arguing, as relevant, that they could not in any case be blamed for whatever might have transpired since the contracts with the newspaper boys were the responsibility of Telegraaf Media Groep N.V. or DistriQ B.V. as the case might be.

8. In a series of decisions dated 30 October 2006 the Deputy Minister dismissed the applicant company’s arguments and imposed fines corresponding to those announced in the letters of 7 August 2006. In so doing the Deputy Minister referred to the inspectors’ reports, drawn up on oath of office, for the facts; dismissed as irrelevant the applicant company’s assertions that it could not be blamed; and stated that there was no reason to reduce the fines, which were in accordance with official policy.

9. The applicant lodged an objection (bezwaar) against the Deputy Minister’s decision, largely restating the arguments set out in their written comments.

10. The Deputy Minister gave a decision dismissing the objection on 31 August 2007. He referred to case-law of the Administrative Jurisdiction Division (Afdeling bestuursrechtspraak) of the Council of State (Raad van State), which had held, citing the drafting history of the Foreign Nationals (Employment) Act (Wet arbeid vreemdelingen), that the mere fact that work was done on the orders or in the service of an employer was sufficient to make the employer liable under that Act, even if employment was arranged via an intermediary. In response to the applicant’s suggestion that it had not been proved that any of the newspaper boys had actually delivered the applicant company’s newspapers, he again pointed to the official reports of the inspectors, which had been drawn up on oath of office and whose content there was no reason to doubt. Whether or not any blame accrued to the applicant company was irrelevant; in any case, it would appear that the applicant company had not themselves checked the identities and nationalities of the newspaper boys. Finally, the fines had been set in accordance with published policy and there was no particular reason to reduce them.

3. Proceedings in the Regional Court

11. The applicant company lodged an appeal with the Regional Court (rechtbank) of Amsterdam. They again argued that the inspectors had not reliably determined that the 39 newspaper boys had actually delivered their newspaper. In addition, they had mistakenly been deemed employers of the newspaper boys, whereas in fact they were so neither in fact nor in law given that the newspaper boys were actually employed on a freelance basis by DistriQ B.V.’s depot managers. They also relied on Article 6 of the Convention, submitting that the length of the proceedings could no longer be considered reasonable. Finally, they argued that the Deputy Minister’s decision was disproportionate in that it apparently meant that the applicant company were supposed to check the identities and nationalities of the myriad newspaper boys working for DistriQ B.V.’s depot managers at any one time, and in that the applicant company could not in reason be blamed.

12. The Regional Court gave judgment on 30 September 2009. Finding that the applicant company was not, in fact, the employer of the newspaper boys given that their core business was publishing rather than distributing newspapers, it quashed the Minister’s decision. It went on to order the reopening of the proceedings in order to assess the damages to be awarded to the applicant company for the length of the proceedings.

4. Proceedings before the Administrative Jurisdiction Division of the Council of State

13. The Minister of Social Affairs and Employment lodged a further appeal (hoger beroep) with the Administrative Jurisdiction Division of the Council of State, stating inter alia that distribution of newspapers was in fact part of the applicant company’s core business.

14. The applicant company responded, largely restating their position as set out before the Regional Court.

15. On 7 April 2010, after the Administrative Jurisdiction Division had given its decision in the Igweh case (see paragraph 33 below), the applicant company, who been denied permission to intervene as an interested party in that case (see paragraph 34 below), submitted an unsolicited document setting out further arguments which in their view distinguished their situation from that of the newspaper publishers held in that case to have been “employers” of newspaper boys for the purposes of the Foreign Nationals (Employment) Act. In particular, they argued that for them to be considered the newspaper boys’ “employer” was unforeseeable and hence a violation of Article 7 § 1 of the Convention, since they had outsourced the delivery of newspapers to another company without institutional links to them. They also argued extensively that it had not been proved that the newspaper boys had actually delivered Het Financieele Dagblad, the inspectors’ reports containing too little conclusive information on that point – in particular, they did not state that the inspectors had personally observed the newspaper boys delivering Het Financieele Dagblad – and being in any case impossible for the applicant company to verify. For the remainder, the fines were not proportionate to the blame, if any, attaching to the applicant company and moreover out of all reasonable proportion to the paper’s very limited circulation (only 1.5% of all the newspapers circulated in the Netherlands).

16. The Administrative Jurisdiction Division held a hearing on 22 April 2010.

17. On 23 June 2010 the Administrative Jurisdiction Division decided in favour of the Minister. As relevant to the case before the Court, its decision may be summarised as follows.

18. It referred to its own case-law (including its decision in the Igweh case) and to the drafting history of the applicable legislation, from which it appeared that the fact that work was performed on an employer’s instructions or in an employer’s service was sufficient to apply the label “employer” in a factual sense.

19. Turning to the facts, the Administrative Jurisdiction Division found that the applicant company had entered into a seven-year contract for the printing, distribution and delivery of their newspapers. That being so, the newspaper boys were in the service of the applicant company, who were accordingly their “employer”. The fact that the applicant company had outsourced the work made no difference in this respect, nor did the applicant company’s ignorance of the fact that the newspaper boys were foreign nationals not entitled to work permits. Moreover, it appeared from the contract that the applicant company’s representatives could attend meetings with the distributors, from which it appeared that they could exercise real influence.

20. The Administrative Jurisdiction Division dismissed the applicant company’s suggestion that the fines were disproportionately high. However, it reduced them to a total sum of EUR 298,000 in view of the lapse of time that had passed from the date on which the Deputy Minister had given notice of his intention to impose the administrative fines, and of the “reasonable time” requirement set out in Article 6 of the Convention.

5. Subsequent events

21. On 1 September 2007 the distribution contract expired; the applicant company entered into a new distribution contract with a different company. The applicant company state that they were unable to stipulate that the new distributor would take sole responsibility for the consequences of any failure on the part of its staff and sub-contractors to comply with the Foreign Nationals (Employment) Act.

22. On 10 September 2010 the Labour Inspectorate wrote to the applicant company demanding payment of the fines plus interest and costs.

23. The applicant company state that they have been ordered to pay further administrative fines under the same legislation, following inspections carried out in 2006, 2007, 2008 and 2009. These amount to a total sum of EUR 246,000 thus far.

B. Relevant domestic law

1. The Foreign Nationals (Employment) Act

24. Relevant sections of the Foreign Nationals (Employment) Act provide as follows:

Section 1

“1. In this Act and delegated legislation based on it, [the following definitions shall apply]:

a. The Minister: the Minister of Social Affairs and Employment;

b. employer:

1º the person who, in the exercise of an office, profession or business, has someone else perform work (degene die in de uitoefening van een ambt, beroep of bedrijf een ander arbeid laat verrichten); ...”

Section 2

“1. It is forbidden for an employer to employ a foreign national in the Netherlands without a work permit.

2. The prohibition set out in the first paragraph shall not apply to a foreign national in respect of whom another person also acts as an employer, if that other person holds a work permit valid for the work in question.”

Section 15

“1. If the employer has a foreign national do work but the work is in fact done with another employer (Indien de werkgever door een vreemdeling arbeid laat verrichten waarbij die arbeid feitelijk worden [sic] verricht bij een andere werkgever), the first-mentioned employer shall ensure without delay that the other employer receives a copy of [an identity document identifying the foreign national].

2. The employer who receives the copy of the document referred to in the first paragraph shall determine the identity of the foreign national by means of the said document and shall keep the copy in his administration. ...”

Section 18

“1. Any failures to comply with sections 2(1) and 15 shall be deemed administrative offences (overtredingen). ...”

Section 19a

“1. A civil servant appointed by the Minister [i.e. the Minister of Social Affairs and Employment] for that purpose and coming under the Minister’s authority shall, in the Minister’s name, impose an administrative fine on any person to whom the obligations deriving from this Act apply, in so far as the failure to comply with such obligations is deemed an administrative offence.

2. The administrative offences defined for the purpose of this Act ([d]e terzake van deze wet gestelde overtredingen) shall apply with regard to every person with whom or in relation to whom an administrative offence has been committed (ten opzichte van elk persoon, met of ten aanzien van wie een overtreding is begaan).”

25. Section 3(1)(a) exempts from the work permit requirement foreign nationals in respect of whom the Netherlands is treaty bound to allow access to the domestic labour market. These include nationals of the member States of the European Union (temporarily, that is until 2014 at the latest, minus Bulgaria and Romania); the non-EU member States of the European Economic Area (i.e. Iceland, Liechtenstein and Norway); and Switzerland.

26. Section 19c makes it clear that an “administrative offence” in the sense of this Act is not a criminal act (strafbaar feit) in the sense of criminal law, unless it is repeated twice within forty-eight months with an interval of not more than twenty-four months.

27. Section 19d sets the maximum of the administrative fine, for a first administrative offence, at EUR 11,250 if the transgressor is a natural person and EUR 45,000 if the transgressor is a legal person.

2. The Ordinance of 27 August 1992 equating with an employment contract certain other agreements to perform work for the purposes of the Foreign Nationals (Employment) Act (Besluit van 27 augustus 1992 tot gelijkstelling in het kader van de WABW van andere overeenkomsten tot het verrichten van arbeid met een arbeidsovereenkomst)

28. For purposes of the Foreign Nationals (Employment) Act, section 1 of this Ordinance equates with employment contracts any agreement under which a natural person binds himself or herself, for consideration, personally to render particular services or achieve a defined objective (persoonlijk enkele diensten te verrichten dan wel een bepaald werk tot stand te brengen), and which relates to work normally done under a contract of employment.

29. The explanatory memorandum to this Ordinance explains that the intention is to prevent employers from frustrating the implementation of the Foreign Nationals (Employment) Act by misrepresenting an employee as a self-employed worker.

3. Parliamentary documents

30. The following is taken from the drafting history of the Foreign Nationals (Employment) Act (Explanatory Memorandum (Memorie van Toelichting), Lower House of Parliament, no. 23,574, 1993-94 session, no. 3):

“...

This new Bill is intended to provide complete clarity as to [who is] the responsible employer. Whoever factually has the foreign national do work (Degene die de vreemdeling feitelijk arbeid laat verrichten) is bound to obtain a work permit within the framework of the Bill. Pursuant to this provision, this employer is at all times responsible, and liable, for the presence or absence of the necessary work permit.

In some situations this could produce a lot of red tape, compared to the current situation, if a contracting firm or a contractor wanted to use foreign nationals to implement the work. In that case it is not the intention of the Bill that a work permit should be requested anew for each assignment (opdracht) by the principal (opdrachtgever). In such a situation, the work permit could also be obtained for the person who concludes an employment contract with the alien. It will then be enough for the ultimate principal (uiteindelijke opdrachtgever) to make sure that a work permit has actually been issued for the foreign nationals doing the work. He will be well advised to ask for a copy of the work permit before work begins. The party having the labour placed at their disposal/employer (inlener/werkgever) thus fulfils their responsibility within the framework of the Bill.

The law [will accordingly be] unambiguous about the responsibility of the employer in employing foreign nationals. The party for whom the actual work is done (Degene voor wie de feitelijke arbeid wordt verricht) must see to it that a [work] permit is present. If there already is such a document for the person concerned, it [will be] unnecessary to obtain another one.”

31. The following is taken from the drafting history of the Foreign Nationals (Employment) (Administrative Fines) Act (Wet bestuurlijke boete arbeid vreemdelingen) (Explanatory Memorandum, Lower House of Parliament, no. 29,523, 2003-04 session, no. 3):

“It is the Government’s intention that the administrative fines to be imposed should be considerably higher than the present criminal-law fines, which average EUR 984 for the transgression defined by section 2 of the Foreign Nationals (Employment) Act (employing [a foreign national] without the required work permit). For a failure to abide by section 2, the Government considers that the fine might be EUR 3,500 per illegally employed foreign national, in the absence of aggravating circumstances.

There are several reasons to be given for this increase. Firstly, [the Government] wishes ... to discourage illegal employment further. In addition to increasing the chance of getting caught, which the Government will achieve by extending the Labour Inspectorate, raising the fines is an important means to that end. Secondly, employers who employ foreign nationals illegally gain a financial advantage in so doing. ... [F]oreign nationals illegally resident in the country are not covered by social insurance and there is therefore no obligation to pay social-security contributions. It is undesirable that the employer should continue to enjoy this advantage if he employs these foreign nationals. In addition, illegal employment may go hand in hand with underpaying the foreign national and transgressing the Working Hours Act (Arbeidstijdenwet) and the 1998 Working Conditions Act (Arbeidsomstandigheidenwet 1998), considerably reducing the employer’s labour costs. This victimises not only the foreign national, but also law-abiding fellow employers. A higher fine is thus also a way to redress the upset competitive balance.”

4. The Foreign Nationals (Employment) Act Fining Policy Rules (Beleidsregels boeteoplegging Wet arbeid vreemdelingen)

32. The Foreign Nationals (Employment) Act Fining Policy Rules (hereafter “Policy Rules”), first published in the Official Gazette (Staatscourant) 2004, no. 249 and renewed every year since then (as relevant to the case before the Court, Official Gazette 2005, no. 232; and Official Gazette 2006, nos. 116 and 250), set out a tariff to be applied in imposing administrative fines. A legal body which employs a foreign national without a work permit will be fined EUR 8,000; for failure to comply with an administrative formality under the Act (such as failing to keep a copy of the foreign national’s identity document) the fine will be EUR 1,500. If the employer is a natural person not a legal entity, the fines are reduced by half.

5. Relevant domestic case-law

33. On 17 March 2010 the Administrative Jurisdiction Division gave a decision (Landelijk Jurisprudentie Nummer [National Jurisprudence Number] BL7835) in a case (the “Igweh case”, after the name of the newspaper boy concerned) involving four publishers of major national daily newspapers and a distribution company which, although nominally separate corporate entities, belonged to a single conglomerate. As relevant to the present case, it held that the fact that work was performed under the instructions or in the service of another person (the employer) was in itself sufficient for that employer to be held liable under the Foreign Nationals (Employment) Act. It further noted the contractual relationship between the publishers and the distribution company, under which the publishers were obligated to make use of the services of the distribution company and the distribution company was obligated to distribute the publications issued by the publishers. Moreover, given the contractual relations between the various parties and the corporate links between them, the publishers could be considered to be in a position to influence matters surrounding the actual distribution of their newspapers.

34. The applicant company had asked to join these proceedings as an interested party. However, by a letter of 9 September 2009 the Administrative Jurisdiction Division had refused them permission on the ground that the applicant company had been ordered to pay an administrative fine of their own; it made no difference that the applicant company were at the time involved in similar proceedings.

COMPLAINTS

35. The applicant company complained under Article 6 of the Convention that they had not had an adequate opportunity to dispute the evidence against them; that the Administrative Jurisdiction Division had not allowed them to state their position in the Igweh case; that the Administrative Jurisdiction Division had ignored the unsolicited document which they had submitted in the wake of the Igweh case; and that the Administrative Jurisdiction Division had deprived itself of full jurisdiction by its uncritical endorsement of disproportionate fines imposed by the Minister. They also complained under this provision of the length of the proceedings.

36. They complained under Article 7 of the Convention that it had not been foreseeable that they might be considered the “employer” of the newspaper boys within the meaning of the Foreign Nationals (Employment) Act.

37. They complained under Article 10 of the Convention that the administrative fines imposed on them were so high that they endangered their freedom to impart information.

38. They complained under Article 1 of Protocol No. 1 to the Convention that the administrative fines imposed on them were not in accordance with domestic law, since they were unforeseeable as stated in the context of Article 7 of the Convention, and that moreover they failed to strike a fair balance between the public interest and their own individual interest.

THE LAW

A. Complaints under Article 6 of the Convention

39. The applicant company made several complaints under Article 6 of the Convention, which, in its relevant part, provides as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time ... by [a] ... tribunal ...”

40. The Court observes that the proceedings in question have been removed from the scope of domestic criminal law by section 19c of the Foreign Nationals (Employment) Act (see paragraph 26 above). While noting that classification in domestic law is not decisive for the purposes of the Convention, having regard to the autonomous and substantive meaning to be given to the term “criminal charge” (see, among many other authorities, Engel and Others v. the Netherlands, 8 June 1976, § 81, Series A no. 22; and Escoubet v. Belgium [GC], no. 26780/95, § 33, ECHR 1999‑VII), the Court does not consider it necessary on this occasion to determine whether Article 6 applies given the conclusions which it reaches. In its assessment of these complaints, the Court will nonetheless assume, for the sake of argument, that Article 6 of the Convention is applicable under its criminal head.

1. Fairness of the proceedings

41. The applicant company alleged that the proceedings against them had been unfair.

42. They argued, firstly, that first the Deputy Minister, then the Administrative Jurisdiction Division had based their decisions entirely on the reports of the Labour Inspectorate inspectors. However, the newspaper boys and the depot managers had been questioned by the inspectors in the absence of the applicant company’s representatives. Copies of the inspectors’ reports had only been transmitted to the applicant company many months later, by which time it could no longer be verified that the newspaper boys had in fact delivered Het Financieele Dagblad in addition to the newspapers published by Telegraaf Media Groep N.V. This meant that the information contained in the inspectors’ reports could not be meaningfully challenged.

43. Secondly, they complained of not having had the opportunity to state their position before the Administrative Jurisdiction Division in the Igweh case. Since obviously the Igweh case was likely to set the precedent for future cases of this kind, the applicant company had an interest in influencing its outcome so as to reduce the impact of the resulting case-law on their own case.

44. Thirdly, they complained that the Administrative Division, in its decision, had paid no attention to the document prompted by the decision in the Igweh case which they had submitted on 7 April 2010.

45. Fourthly, they complained that the Administrative Jurisdiction Division had neglected to assess the magnitude of the fines imposed in light of what they considered the paucity of their guilt. By endorsing the fines set by the Minister’s policy document, the Administrative Jurisdiction Division had in the applicant company’s submission deprived itself of full jurisdiction.

46. The Court is not convinced that the domestic remedies have been exhausted in respect of the first of the above complaints, given that the applicant company do not at any time seem to have made any attempt to call the newspaper boys or even the depot managers as witnesses. However, in view of what is set out in paragraphs 51 and 52 below there is no need to address this question.

47. As to the second complaint, about the refusal of leave to intervene in the Igweh case, the Court observes that the applicant company were not among those whose had been fined in that particular connection. The Administrative Jurisdiction Division was therefore not called upon to determine either any “civil rights and obligations” of the applicant company or a “criminal charge” against them. Consequently Article 6 of the Convention did not compel the Administrative Jurisdiction to allow the applicant company access to those proceedings. It cannot be decisive that the case-law formed in the Igweh case was liable to weigh against their own position subsequently: it is in the nature of judicial proceedings that tribunals seek to maintain consistency by following their own precedent.

48. As to the third complaint, the alleged failure to respond to the arguments set out in the applicant company’s unsolicited document of 7 April 2010, the Court reiterates that Article 6 § 1 of the Convention obliges courts to give reasons for their decisions, but cannot be understood as requiring a detailed answer to every argument. The extent to which this duty applies may vary according to the nature of the decision. It is moreover necessary to take into account, inter alia, the diversity of the submissions that a litigant may bring before the courts and the differences existing in the Contracting States with regard to statutory provisions, customary rules, legal opinion and the presentation and drafting of judgments. That is why the question whether a court has failed to fulfil the obligation to state reasons, deriving from Article 6 § 1, can only be determined in the light of the circumstances of the case (see, among many other authorities, Ruiz Torija v. Spain, 9 December 1994, § 29, Series A no. 303-A, and Van de Hurk v. the Netherlands, 19 April 1994, § 61, Series A no. 288; and recently, Gorou v. Greece (no. 2) [GC], no. 12686/03, § 37, ECHR 2009‑...).

49. Turning to the particular circumstances, the Court is prepared to accept that a reasonable opportunity to make additional points in the wake of important case-law developments that could not be addressed at an earlier stage of the proceedings is desirable in principle. However, even assuming that the said document of 7 April 2010 was ignored, the Court observes that nothing prevented the applicant company from making precisely the same points therein contained orally at the Administrative Jurisdiction Division’s hearing on 22 April 2010. In addition, the Court has frequently held that in dismissing an appeal, an appellate court may, in principle, simply endorse the reasons for the lower court’s decision (see, among many other authorities, García Ruiz v. Spain [GC], no. 30544/96, § 26, ECHR 1999-I, and Papon v. France (no. 2) (dec.), no. 54210/00, ECHR 2001‑XII (extracts)); taking this line of thought further, the Court considers that an appellate court may similarly confine itself to citing as authority earlier decisions of its own, even as the Administrative Jurisdiction Division did on this occasion.

50. As to the fourth complaint, the Court considers that, although Article 6 § 1 of the Convention covers the whole of criminal proceedings in issue, including the setting of any penalty (see, among other authorities, T. v. the United Kingdom [GC], no. 24724/94, § 108, 16 December 1999; and V. v. the United Kingdom [GC], no. 24888/94, § 109, ECHR 1999‑IX; and more recently, Gurguchiani v. Spain, no. 16012/06, § 24, 15 December 2009, ECHR 2009‑...), the actual penalty imposed by a competent court in criminal proceedings does not as such generally fall within the scope of the Convention (mutatis mutandis, Boons v. the Netherlands (dec.), no. 40171/98, 27 June 2000).

51. More generally, and in relation to all these complaints, the Court reiterates that it is not its function to deal with errors of fact or law allegedly committed by the national courts, as it is not a court of appeal – or, as is sometimes said, a “fourth instance” – from these courts (see, as a recent authority, Seldenrijk-Raat and Others v. the Netherlands (dec.), no. 1813/09, 22 February 2011, with further references).

52. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2. Length of the proceedings

53. The applicant company complained of the length of the proceedings. In particular, the preliminary stages of the proceedings had taken too long: after the inspectors had recorded the alleged offences (between April and June 2005), it had taken until 30 October 2006 for the fines to be imposed. Only on 30 September 2009 had the Regional Court given its decision; the Administrative Jurisdiction Division had brought the proceedings to a close on 23 June 2010.

54. Although the Administrative Jurisdiction Division had acknowledged the violation of the applicant company’s rights, the reduction of the total amount which the applicant company had to pay was inadequate compensation. In particular, the Administrative Jurisdiction Division had neglected to take into account the duration of the preliminary stages, taking as its starting point 7 August 2006, the date on which the Deputy Minister had given notice to the applicant company of his intention to impose the administrative fines.

55. The Court reiterates that in cases to which Article 6 is applicable under its criminal head, the “reasonable time” referred to in Article 6 § 1 begins to run as soon as a person is “charged”. “Charge”, for the purposes of Article 6 § 1, may be defined as “the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence”, a definition that also corresponds to the test whether “the situation of the [suspect] has been substantially affected” (see, as a recent authority, McFarlane v. Ireland [GC], no. 31333/06, § 143, ECHR 2010‑...). In the instant case, such official notification was given to the applicant company on 7 August 2006 when the Deputy Minister first informed them of his intentions in their regard.

56. The proceedings ended on 23 June 2010, the date of the decision of the Administrative Jurisdiction Division which brought the proceedings to a close. The total length of time to be taken into consideration is therefore 3 years, 10 months and 17 days for two levels of jurisdiction.

57. According to the Court’s well-established case-law, an applicant’s status as a victim may depend on compensation being awarded at domestic level on the basis of the facts about which he or she complains before the Court, and on whether the domestic authorities have acknowledged, either expressly or in substance, the breach of the Convention. Only when those two conditions are satisfied does the subsidiary nature of the protective mechanism of the Convention preclude examination of an application. The Court has accepted that a reduction of a prison sentence commensurate with the harm complained of may constitute “compensation” in this sense (see, among other authorities, Mathew v. the Netherlands, no. 24919/03, § 149, ECHR 2005‑IX). The same applies if the penalty imposed is a fine not a prison sentence.

58. The Administrative Jurisdiction Division explicitly recognised the violation alleged by the applicant company and reduced the fines by a total of EUR 14,000, a sum which the Court considers adequate compensation in the circumstances. Consequently, if violation there be, the applicant company can no longer claim to be a “victim” of it.

59. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

B. Complaint under Article 7 of the Convention

60. The applicant company complained that it had not been foreseeable that they might have to answer as an “employer” for the newspaper boys employed through depot managers by another company to which they had outsourced the production and distribution of their newspapers. They relied on Article 7 of the Convention, which, in its relevant part, reads as follows:

“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. ...”

61. They argued in the first place that on the ordinary meaning of the words used, the definition of an “employer” in section 1(1)(a) of the Foreign Nationals (Employment) Act could not be read so as to encompass a situation where there was no formal relationship of employment. The applicant company did not know the newspaper boys, did not pay them and did not give them orders or instructions.

62. They argued in the second place that it was not foreseeable for “outsourcing” as practised by them to make them liable as “employers” within the meaning of the Foreign Nationals (Employment) Act. In particular, such an interpretation could not be predicted either on the basis of the drafting history of that Act or on any other official publication prior to the events complained of, which tended to contain references to sub‑contractors and temporary employment agencies but nowhere mentioned outsourcing.

63. They argued in the third place that the Administrative Jurisdiction Division’s finding that the applicant company had been in the position to “influence” matters (paragraph 19 above) had introduced a new and unforeseeable criterion without any precedent in earlier case-law.

64. As it did when considering the applicant company’s complaints under Article 6, and observing that the notion of what constitutes a “penalty” cannot vary from one Convention provision to another (Göktan v. France, no. 33402/96, § 48, ECHR 2002‑V), the Court will proceed on the premise that Article 7 is applicable to the case in hand.

65. The Court has stated the applicable principles as follows (Kononov v. Latvia [GC], no. 36376/04, §§ 185-187, ECHR 2010-...; Van Anraat v. the Netherlands (dec.), no. 65389/09, § 78, ECHR 2010‑... (extracts)):

“185. The guarantee enshrined in Article 7, an essential element of the rule of law, occupies a prominent place in the Convention system of protection, as is underlined by the fact that no derogation from it is permissible under Article 15 in time of war or other public emergency. It should be construed and applied, as follows from its object and purpose, so as to provide effective safeguards against arbitrary prosecution, conviction and punishment. Accordingly, Article 7 is not confined to prohibiting the retrospective application of the criminal law to an accused’s disadvantage: it also embodies, more generally, the principle that only the law can define a crime and prescribe a penalty (nullum crimen, nulla poena sine lege) and the principle that the criminal law must not be extensively construed to an accused’s detriment, for instance by analogy. It follows that an offence must be clearly defined in law. This requirement is satisfied where the individual can know from the wording of the relevant provision – and, if need be, with the assistance of the courts’ interpretation of it and with informed legal advice – what acts and omissions will make him criminally liable.

When speaking of ‘law’, Article 7 alludes to the same concept as that to which the Convention refers elsewhere when using that term, a concept which comprises written and unwritten law and which implies qualitative requirements, notably those of accessibility and foreseeability. As regards foreseeability in particular, the Court recalls that however clearly drafted a legal provision may be in any system of law including criminal law, there is an inevitable element of judicial interpretation. There will always be a need for elucidation of doubtful points and for adaptation to changing circumstances. Indeed, in certain Convention States, the progressive development of the criminal law through judicial law-making is a well-entrenched and necessary part of legal tradition. Article 7 of the Convention cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen (Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, § 50, ECHR 2001-II; K.-H.W. v. Germany [GC], no. 37201/97, § 85, ECHR 2001-II (extracts); Jorgic v. Germany, no. 74613/01, §§ 101-109, 12 July 2007; and Korbely v. Hungary [GC], no. 9174/02, §§ 69-71, 19 September 2008).”

66. Turning now to the applicant company’s first argument under this Article, the Court observes that on their application form, the applicant company translate the definition of an “employer” contained in section 1(1)(b)(1) of the Foreign Nationals (Employment) Act as follows:

“the person who, in exercising an office, profession or business instructs another person to perform work”

whereas the Court, as set out above (paragraph 24), translates it as

“the person who, in the exercise of an office, profession or business, has someone else perform work”.

The Court considers its choice of words – “has someone else perform work” – a more faithful reflection of the original Dutch (een ander arbeid laat verrichten) than the applicant company’s. It notes in addition that the same expression is used in section 15 of the Foreign Nationals (Employment) Act, and that the applicant company themselves use the same verbal construction (“to have an alien [i.e. a foreign national] carry out labour”) in their own translation of that provision.

67. The applicant company’s point depends heavily on an interpretation implying the existence of a formal relationship under which presumed employers give personal instructions to the foreign national in their employ. On its own understanding of the legislative text, the Court finds that it offers greater flexibility than the applicant company suggest. This argument cannot therefore be accepted as correct.

68. As to the second argument, based on the absence in the drafting history of any reference to “outsourcing”, the Court observes that it appears from the Explanatory Memorandum to the Foreign Nationals (Employment) Act (paragraph 30 above) that the aims pursued by the legislation concerned include imposing the responsibility for securing work permits for foreign national employees on the “ultimate principal” (uiteindelijke opdrachtgever), being “[t]he party for whom the actual work is done” ([d]egene voor wie de feitelijke arbeid wordt verricht), however defined. Nowhere is there any specification of types of contract covered, still less any delimitation which would exclude the liability of a party that has outsourced work to an intermediate employer but remains the ultimate beneficiary of the labour performed by the foreign national. Like the actual wording of the legislation in issue, its drafting history therefore does not support the applicant company’s suggestion that the Administrative Jurisdiction Division’s decision is perverse.

69. The third argument, i.e. that the “influence” criterion stated to have been introduced by the Administrative Jurisdiction Division in the present case has no precedent in earlier jurisprudence, must fail in consequence. As is pointed out in, for example, Kononov and Van Anraat (quoted above), judicial interpretation necessarily involves developing new concepts in response to new situations and changing circumstances. Case-law development cannot be restricted in the way suggested by the applicant company.

70. It follows that this part of the application too is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

C. Complaint under Article 10 of the Convention

71. The applicant company complained that as a result of the administrative fines which had been and continued to be imposed on them, they were hindered in distributing information and were even in danger of being forced out of business altogether. They relied on Article 10 of the Convention, which reads as follows:

“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

72. The Court observes that this complaint was not made, even in substance, in the domestic proceedings. It follows that it must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

D. Complaint under Article 1 of Protocol No. 1

73. The applicant company complained that the administrative fines imposed on them breached their rights under Article 1 of Protocol No. 1 to the Convention, which provides as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

74. They submitted, firstly, that the administrative fines constituted an interference with their peaceful enjoyment of their possessions not provided for by domestic law. They based this complaint on the same arguments put forward under Article 7 of the Convention.

75. Secondly, they argued that a “fair balance” had not been struck between the public interest and the requirements of the protection of their fundamental rights. The administrative fines were not commensurate with any fault imputable to them; moreover, the newspaper boys were not exploited in any greater measure than newspaper boys working legally under the same conditions of employment. Conversely, the administrative fines were very high; new administrative fines to similar amounts had been imposed since; and given that the applicant company themselves were virtually powerless to ensure compliance with the Foreign Nationals (Employment) Act by the parties to whom they had outsourced delivery, their long-term survival was threatened.

76. The Court notes that any administrative fines that are not the object of the Administrative Jurisdiction Division’s decision of 23 June 2010 fall outside the scope of the present application.

77. As to the first argument, that based on a lack of “foreseeability”, the applicant company themselves refer to their complaints under Article 7 of the Convention. The Court therefore refers to paragraphs 66-69 above. It is worth noting in addition that the Policy Rules governing the imposition of the fines in issue, including their amounts, were published alongside the legislation (paragraph 32 above). In the circumstances, therefore, the Court considers that the requirement of foreseeability was amply satisfied.

78. As to the second argument, the lack of a “fair balance”, the Court first reiterates that the search for this balance is reflected in the structure of Article 1 of Protocol No. 1 as a whole, regardless of which paragraphs are concerned in each case; there must always be a reasonable relationship of proportionality between the means employed and the aim pursued. In determining whether this requirement is met, the Court recognises that the State enjoys a wide margin of appreciation with regard both to choosing the means of enforcement and to ascertaining whether the consequences of the measures taken are justified in the general interest for the purpose of achieving the object of the interference in question. The requisite balance will not be achieved if the person concerned has had to bear an individual and excessive burden (see, among many other authorities, Perdigão v. Portugal [GC], no. 24768/06, § 67, 16 November 2010).

79. An issue under Article 1 of Protocol No. 1 may arise if an administrative fine is plainly out of all reasonable proportion in light of the competing interests (see, mutatis mutandis, Grifhorst v. France, no. 28336/02, §§ 97-105, ECHR 2009‑...).

80. As it is, the Court cannot find that such is the case. In arriving at this conclusion the Court takes into account the Government’s stated object of countering unfair business practices and infringement of the rights of workers (paragraph 31 above), for which purposes, among others, it is legitimate to control access of foreign nationals to the domestic labour market (compare, mutatis mutandis, Berrehab v. the Netherlands, 21 June 1988, § 26, Series A no. 138). Furthermore, although in this instance the fines are high, it has not been stated that they pose an insuperable problem to the applicant company.

81. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court by a majority

Declares the application inadmissible.

Santiago QuesadaJosep Casadevall              Registrar              President

 

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