AS TO THE ADMISSIBILITY OF
Application No. 17239/90
by Johannes Adrianus Josephus JANSEN and
Maria Johanna VERSCHUEREN-JANSEN
against the Netherlands
The European Commission of Human Rights (Second Chamber) sitting
in private on 31 March 1993, the following members being present:
MM. S. TRECHSEL, President of the Second Chamber
G. JÖRUNDSSON
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
MM. F. MARTINEZ
M. NOWICKI
Mr. K. ROGGE, Secretary to the Second Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 2 August 1990 by
Johannes Adrianus Josephus JANSEN and Maria Johanna VERSCHUEREN-JANSEN
against the Netherlands and registered on 1 October 1990 under file No.
17239/90;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicants, born in 1933 and 1931 respectively, are Dutch
dairy farmers living in Baarle-Nassau, the Netherlands. Before the
Commission they are represented by Mr. E. Beele and Mr. Th.J.H.M.
Linssen, both lawyers practising at Tilburg.
The facts as submitted by the applicants may be summarised as
follows.
The applicants had leased a parcel of land from their neighbour,
Mr. B., since 1972. On the basis of the surface exploited for dairy
production, they were allocated a certain milk-quota. At some time Mr.
B., also a dairy producer, wanted to recuperate the parcel of land for
personal use. By decision of 2 March 1984 the Land Lease Chamber
(Pachtkamer) of the Tilburg District Court (Kantongerecht) therefore
declared the lease terminated on its expiry date, 10 November 1985.
The Land Lease Chamber of the Arnhem Court of Appeal (Gerechtshof)
however decided that the lease should run until 11 November 1988 on
which date the contract was actually rescinded.
On 16 March 1988 Mr. B. requested the Land Lease Chamber of the
Tilburg District Court to order the applicants to transfer their milk-
quota to him insofar as it rested on the parcel of land leased to the
applicants. By decision of 3 March 1989 this Chamber partly granted
the request and ordered the applicants to transfer half of the milk-
quota in question to Mr. B. The applicants appealed against this
decision to the Land Lease Chamber of the Arnhem Court of Appeal
complaining in particular that the Court of Justice of the European
Communities had not been requested to give a preliminary ruling on the
question who is entitled to a milk-quota related to a leased parcel of
land after termination of the lease contract and requested the Court
of Appeal to bring the matter before the Court of Justice. They also
complained that they were obliged to transfer part of the milk-quota
allocated to them without being awarded any compensation. On 5
February 1990 the Court of Appeal confirmed the District Court's
decision and considered that it was not necessary to request the Court
of Justice to give a preliminary ruling.
COMPLAINTS
1. The applicants complain that they did not have access to court
in that the Land Lease Chamber of the Arnhem Court of Appeal refused
to seek a preliminary ruling from the Court of Justice of the European
Communities. They also submit that, in view of this refusal, the Court
of Appeal cannot be considered to be an impartial tribunal. They
invoke Article 6 para. 1 of the Convention.
2. The applicants further complain that, by ordering them to
transfer half of the milk-quota allocated to them to Mr. B., the Court
of Appeal deprived them of their possession contrary to Article 1 of
Protocol No. 1 of the Convention.
THE LAW
1. The applicants complain that they did not have access to court
in that the Land Lease Chamber of the Arnhem Court of Appeal refused
to seek a preliminary ruling from the Court of Justice of the European
Communities. They also submit that, in view of this refusal, the Court
of Appeal cannot be considered as an impartial tribunal. They invoke
Article 6 para. 1 (Art. 6-1) of the Convention which reads insofar as
relevant:
"In the determination of his civil rights and
obligations ..., everyone is entitled to a fair and public
hearing within a reasonable time by an independent and
impartial tribunal (...)"
The question arises in the first place whether Article 6
(Art. 6) applies to the proceedings complained of. The Commission has
already found that a dispute concerning the allocation of a certain
milk-quota constitutes the determination of civil rights (Van de Hurk
v. the Netherlands, Comm. Report 10.12.92, paras. 34-36). The
Commission considers that a court decision ordering the person entitled
to a milk-quota to transfer it, even partially, to another person
equally affects his right to produce a certain quantity of milk and
therefore also determines his civil rights. Article 6 (Art. 6)
therefore applies to the proceedings complained of.
However, insofar as the applicants complain that they did not
have access to court as the Court of Appeal refused to seek a
preliminary ruling from the European Court of Justice, the Commission
notes that in the determination of their dispute with Mr. B., the
applicants did have access to the Tilburg District Court and to the
Arnhem Court of Appeal as tribunals within the meaning of Article 6
para. 1 (Art. 6-1) of the Convention. Moreover, the Commission finds
no indication in the present case that the Court of Appeal's refusal
to seek a preliminary ruling from the European Court of Justice
rendered the proceedings unfair.
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
Insofar as the applicants further complain about partiality of
the Court of Appeal, they have failed to substantiate their complaint.
The Court of Appeal cannot be said to have been biased on the sole
ground that it refused to seek a preliminary ruling from the European
Court of Justice.
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicants further complain that, by ordering them to
transfer to Mr. B. half of the milk-quota allocated to them, the Court
of Appeal deprived them of their possession contrary to Article 1 of
Protocol No. 1 (P1-1) to the Convention.
However, the Commission is not required to decide whether or not
the facts alleged by the applicants disclose any appearance of a
violation of this provision as, under Article 26 (Art. 26) of the
Convention, it may only deal with a matter after all domestic remedies
have been exhausted according to the generally recognised rules of
international law.
The mere fact that the applicants have submitted their case to
the competent courts does not of itself constitute compliance with this
rule. It is also required that the substance of any complaint made
before the Commission should have been raised during the proceedings
concerned. In this respect the Commission refers to its established
case-law (see e.g. No. 1103/61, Yearbook 5 pp. 168, 186; No. 5574/72,
Dec. 21.3.75, D.R. 3 pp. 10, 15; No. 10307/83, Dec. 6.3.84, D.R. 37 pp.
113, 120).
In the present case the applicants did not raise, either in form
or in substance, in the proceedings before the District Court and the
Court of Appeal, the complaint which they now make before the
Commission. Moreover, an examination of the case does not disclose the
existence of any special circumstances which might have absolved the
applicants, according to the generally recognised rules of
international law, from raising this complaint in the proceedings
referred to.
It follows that the applicants have not complied with the
condition as to the exhaustion of domestic remedies and their
application must in this respect be rejected under Article 27 para. 3
(Art. 27-3) of the Convention.
For these reasons, the Commission, by a majority
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to President of
the Second Chamber the Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy