SMITS, KLEYN, METTLER TOLEDO B.V. ET AL., RAYMAKERS, VERENIGING LANDELIJK OVERLEG BETUWEROUTE and VAN HELDEN v. THE NETHERLANDS

FIRST SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 39032/97: Maatschap SMITS

Application no. 39343/98: Anthony A. KLEYN

Application no. 39651/98: METTLER TOLEDO B.V. et al.

Application no. 43147/98: Markus A.J.E. RAYMAKERS & Pauline W.N. RAYMAKERS

Application no. 46664/99: VERENIGING LANDELIJK OVERLEG BETUWEROUTE

Application no. 61707/00: Aart VAN HELDEN

against  the Netherlands

The European Court of Human Rights (First Section), sitting on 3 May 2001 as a Chamber composed of

MrsE. Palm, President,
MrsW. Thomassen,
MrGaukur Jörundsson,
MrR. Türmen,
MrC. Bîrsan,
MrJ. Casadevall,
MrR. Maruste, judges,
and Mr M. O’Boyle, Section Registrar,

Having regard to the above applications introduced with the European Commission of Human Rights on 8, 28, 29 and 31 July 1997 and 16 March 1997 and with the Court on 9 August 2000 and registered on 18 December 1997, 14 January 1998, 4 February 1998, 28 August 1998, 9 March 1999 and 12 October 2000,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the applications introduced with the Commission was transferred to the Court,

Having deliberated, decides as follows:

THE FACTS

The present case concerns the planning and construction of a new railroad, the so-called “Betuweroute” railway, which is to run across the entire width of the Netherlands from Rotterdam to the border with Germany. It is currently under construction.

A.The applicants

Application no. 39032/97

Maatschap Smits is a partnership consisting of Mr B.G. Smits and his father Mr P.G. Smits. They are dairy farmers. Their farm and the house inhabited by Mr P.G. Smits are located in the municipality of Sliedrecht, at a distance of 20 meters from the projected railway track. The house is due to be expropriated and demolished, leaving the farm buildings standing. The house is built onto the farm buildings.

Application no. 39343/98

Mr A.A. Kleyn is a managing director of the limited liability company (besloten vennootschap met beperkte aansprakelijkheid) B.V. Kleijn Financierings- en Leasemaatschappij and of the limited liability company Exploitatiemaatschappij De Zeiving B.V.. He is also part owner of the restaurant “De Goudreinet”. He lives above this restaurant, which is located directly on or adjacent to the projected railway track.

Application no. 39651/98

Mettler Toledo B.V. is a limited liability company. Its business is supplying weighing instruments. Its premises are located in Tiel, at a distance of approximately 50 meters of the projected railway track. It owns a device for calibrating weighing instruments which is accurate to within one-millionth of a gram. This is the only such device in private hands in the Netherlands and it is highly sensitive to vibration.

Van Helden Reclame-Artikelen B.V. is a limited liability company.  Its business is the manufacture, by screen printing, of advertising materials and their sale. Its premises are located in Tiel, close to the projected railway track. Its managing directors, Mr A. van Helden and Mrs C.H. van Helden-Schimmel, live next to the company’s business premises.

Grasshopper Reclame is a registered partnership (vennootschap onder firma) established under Netherlands law. Its business is printing advertising materials.  Its premises are located in Tiel, close to the projected railway track. Its managing directors, Mr A. Hougee and Mrs O.L. Hougee-van Frankfoort, live above the company’s business premises.

M.C. Gerritse B.V. is a limited liability company. Its business is the sale of lorries and motor cars. Its premises are located in Tiel, close to the projected railway track.

Texshop B.V. is a limited liability company. Its business is the sale of casual clothing.  Its premises are located in Tiel, close to the projected railway track.

Restaurant De Betuwe B.V. is a limited liability company. It operates a restaurant in Tiel, close to the projected railway track.

The Chamber of Commerce and Industry for the province of South-west Gelderland (Kamer van Koophandel en Fabrieken voor Zuid-West Gelderland) has its offices in Tiel, close to the projected railway track.

Maasglas B.V. is a limited liability company. Its premises are in Tiel, at approximately one kilometre from the projected railway track. Its business is the manufacture and sale of sheet glass for the building industry, agriculture, the motor industry and other commercial applications. The production of sheet glass involves floating molten glass on the surface of a bath of molten tin, a process that is highly sensitive to vibration.

Mr C.M. van Burk operates a petrol station on the A15 motorway near Meeteren, which will have to be moved to another location. This new location is close to the projected railway track.

Kuwait Petroleum (Nederland) B.V. is a limited liability company.  It owns the petrol station operated by Mr van Burk.

Sterk Technisch Adviesbureau B.V. is a firm of technical consultants whose business is the development of cost-saving devices for commercial vehicles and industry.  Its premises are located in Spijk and they will have to be relocated if the railway is built.

The B.V. Kleijn Financierings- en Leasemaatschappij and the Exploitatiemaatschappij De Zeiving B.V. are both a limited liability company and - together with Ms C.J.P. Kleijn, Ms P.M. Kleijn and Ms C.J. Kleijn - are joint owners of a number of plots along the A15 motorway and further are part owners of the restaurant “De Goudreinet” that is located on one of the plots.

Application no. 43147/98

Mr M.A.J.E. Raymakers and Mrs P.W.N. Raymakers-Spreeuwenberg are resident in Kerk-Avezaath. Their home is located close to the projected railway track.

Application no. 46664/99

The “Vereniging Landelijk Overleg Betuweroute” (Association for nationwide consultation on the Betuweroute) is a private association based in Kerk-Avezaath. It is applying on its own capacity as well as on behalf of its members. It further represents a number of natural persons in the proceedings before the Court. The names of its members as well as the persons it represents in the proceedings before the Court are appended to this decision.

Application no. 61707/00

Mr A. van Helden lives in Tiel where he owns three plots that will be affected by the construction of the Betuweroute railway. He is also one of the applicants in application no. 39651/98.

All corporate applicants and the applicant association Vereniging Landelijk Overleg Betuweroute have legal personality under Netherlands law. All applicants being natural persons are Netherlands nationals.

With the exception of the applicants in application Nos. 39032/97 and 46664/99, all applicants are represented in the proceedings before the Court by Mr K.F. Leenhouts, a lawyer practising in Tiel.

B.The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

1.Factual background

The territory of the Netherlands includes the estuaries of the rivers Rhine, Maas and Schelde, all of which join the North Sea at or near the town of Rotterdam.  These rivers have long been used for the transport of merchandise to and from a large part of the North western and Central European hinterland, and in particular the vast industrial area situated along the river Ruhr in Germany. Over the centuries this geographical situation has allowed the Netherlands to become one of Europe’s major transport hubs, with the harbour of Rotterdam and Schiphol airport near Amsterdam having developed into important transit points for goods.

In recent years worldwide economic growth, the opening of the borders between the European Union countries and the opening up to foreign trade of Central and Eastern European countries have led to an increase in the quantity of merchandise transported through the Netherlands and, consequently, in the volume of traffic.

Since the 1980s the volume of transport by inland waterways, rail and pipelines has largely remained stable. It is essentially road transport which has absorbed the increase. This is due to various factors, such as the greater availability and convenience of roads as compared to railways and waterways and the increased tendency of industry to have raw and unfinished materials delivered as and when needed instead of keeping stocks.

In the early 1990s the Government decided on a policy of maintaining and further improving the competitiveness of the port of Rotterdam as Europe’s main entry and exit port, as compared to its major rivals, Hamburg, Antwerp, Le Havre, Marseille and London.  At the same time it was considered important to prevent, and if possible reduce, congestion of the roads and damage to the environment.

An existing railway, opened in 1879 and known as the “Iron Rhine” (IJzeren Rijn), runs from the Belgian port of Antwerp to the German city of Mönchengladbach. It crosses Netherlands territory near Roermond. About half of its length is single-track, and only some 60 % of it is electrified.  It is at present disused. Initiatives of the Belgian Government aimed at modernising it and reviving it as a main transport artery have so far met with a refusal of the Netherlands Government on the ground that it runs through the nature reserve “Meinweg”, east of Roermond, an area protected under EC Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (the “habitat directive”). Negotiations between the two Governments about re-routing this part of the Iron Rhine or, in the alternative, connecting to the Dutch railway system elsewhere are ongoing.

2.The planning process

A.The preparatory stages

An existing railway through the Betuwe region (the area circumscribed by the rivers Rhine, Lek and Waal) - known as the “Betuwe line” (Betuwelijn) - joins the city of Rotterdam to the town of Elst.  It was, and still is, mainly used for passenger traffic and is operated at a loss. As early as 1985 a Government committee suggested converting it for use solely for the transport of goods, extending it as far as the town of Zevenaar and connecting it to the German railway system. A study commissioned by the Netherlands Railways (Nederlandse Spoorwegen, “NS”) and published in 1991 concluded that the environmental impact would be unacceptable and the capacity of such a railway would be insufficient. This led the Government to reject that idea. Instead, the Government decided to investigate the possibility of building a new railway through the Betuwe, to be known as the “Betuweroute”, along the motorway A15. The NS was required to prepare an environmental impact report (milieu-effectrapportage, “MER”).

On 16 April 1992 the Minister of Transport and Communications (Verkeer en Waterstaat) and the Minister of Housing, Planning and Environment Management (Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer) together presented the first draft of the Outline Planning Decision (Planologische Kernbeslissing), later to become known as “Outline Planning Decision part 1”. The environmental impact report prepared by the NS was appended to this document. In accordance with the then Article 2a of the Town and Country Planning Act (Wet op de ruimtelijke ordening) it was laid open for public inspection, notice of its publication being given through the Official Bulletin (Staatscourant) and the media. Anyone interested could then make known his or her views. The time-limit for so doing was 27 July 1992.  More than 1,800 reactions were received.

On 31 August 1992 the Netherlands Minister of Transport and Communications signed an agreement with his German counterpart, the Federal Minister for Transport, for increasing co-operation in the matter of cross-border railway communication.  The agreement provided, subject to the conclusion of procedures prescribed by national law, for inter alia the building of a new railway from Rotterdam via Zevenaar to the German border.  There were to be two border crossings, one at Oldenzaal/Bad Bentheim and the other at Venlo/Kaldenkirchen.  The agreement also provided for corresponding measures to be taken on the German side and for a time frame.

On 18 April 1993 the Government published a document entitled “Reacties op de Ontwerp Planologische Kernbeslissing Betuweroute” (Reactions to the Betuweroute Outline Planning Decision). It contained an overview of the reactions to Outline Planning Decision part 1 sent in by individuals and the results of further consultations and discussions with local government bodies, i.e. provinces, municipalities, regional surface water boards (waterschappen). Advice obtained from the Netherlands-German Planning Board (Nederlands-Duitse Commissie voor de Ruimtelijke Ordening), the Environmental Impact Reports Board (Commissie milieu-effectrapportage), the Planning Advisory Board (Raad van Advies voor de Ruimtelijke Ordening) and the Traffic Infrastructure Consultation Body (Overlegorgaan Verkeersinfrastructuur) was also included in this document, which became known as Outline Planning Decision part 2.

On 18 May 1993 the Government published its views on the Betuweroute project and transmitted it to the Lower House of Parliament for approval.  This document became known as Outline Planning Decision part 3. After deliberations, the Lower House of Parliament sent Outline Planning Decision part 3 back to the Government with its comments.

The Government made certain modifications. The resulting document, which became known as Outline Planning Decision part 3A, was submitted to the Lower House of Parliament on 14 December 1993 for approval. Outline Planning Decision part 3A was approved by the Lower House of Parliament on 22 December 1993. Subsequently, on 12 April 1994, Outline Planning Decision part 3A was approved by the Upper House of Parliament.  It became known thereafter as Outline Planning Decision part 4.

B.Outline Planning Decision part 4

Outline Planning Decision part 4 contained an explanatory memorandum setting out the need for the Betuweroute, as perceived by the Government, and giving reasons for the choices made. It was stated that the Netherlands main ports, Rotterdam and Schiphol Airport, now served most of the continent of Europe and that the increase in the volume of transport could not be absorbed by inland waterway traffic alone. Moreover, much of the European hinterland could not be reached by water.  Road traffic could not be the only alternative, as it was relatively expensive, uneconomical over long distances and environmentally unfriendly. Furthermore, in much of Eastern Europe railway infrastructure was better developed and in a better state of repair than the roads.

Other European countries, including Germany, France and the Alpine countries, were investing heavily in railways in order to relieve the roads. Germany had undertaken to connect its railway system to the Betuweroute, and would give effect to this undertaking as soon as the decision to build the Betuweroute was taken. The transport policies developed by the European Economic Community (EEC) also provided for the development of new railways.

The explanatory memorandum contained summaries of studies - additional to that undertaken by the NS in 1991 - that had been commissioned by the Government, namely a study on the macro-economic and social effects by Knight Wendling and a micro-economic analysis by McKinsey. Both of these studies concluded that the Betuweroute would be profitable. They were scrutinised by the Central Planning Office (Centraal Planbureau). The results of this appraisal were also rendered in summary form. The Government considered that although the Central Planning Office was rather more guarded in its conclusions, these too justified finding that the project was viable.

Also alternatives were taken into consideration. These included increasing the capacity of an existing railway running from Rotterdam through the southern province of North Brabant to Venlo and from there into Germany (the “Brabantroute”), currently used mainly for passenger traffic, and making it more suitable for the transport of goods.  This alternative was rejected on the ground that it would require building two extra tracks. Moreover, the urban density along the Brabant route being three to four times as high as that along the projected Betuweroute, this would cause severe and unacceptable problems.

Alternatives not involving railways, which had been suggested after Outline Planning Decision part 1 had been laid open for public inspection, were discarded in view of the need to connect to existing railway infrastructure in the remainder of Europe. The importance of inland navigation was nonetheless recognised, and it was stated that in both the Netherlands and Germany inland port facilities were under further development.

Alternative methods of constructing the railway had been suggested in the wake of Outline Planning Decision part 1. Many of those who had stated their views on the matter had expressed a preference for an underground tunnel or for open tracks sunk below ground level.  These were considered, but rejected as the cost would be prohibitive. A choice was made for a traditional construction consisting of rail tracks resting on a sand base and located mostly at ground level, a raised or lowered track being countenanced only for locations where such was indicated by considerations of safety or environmental impact. Similarly, a choice was made for using conventional rather than innovative technology.

Outline Planning Decision part 4 provided for a twin-track railway. Its location was fixed as far as possible within a horizontal bandwidth of one hundred meters. Within this bandwidth limited adjustment to local conditions would be possible, it being understood that any additional features such as drainage ditches or other traffic infrastructure might have to be located outside it. The actual route was set out in sketch plans, reasons for the choices made and for the rejection of alternatives being given.

Consideration was given to possible harmful effects. Thus, although under the legislation in force (Article 7 of the Railway Noise Ordinance (Besluit geluidhinder spoorwegen)) the maximum permissible noise level was 60 decibel ampère (dB(A)) on the outside walls of residential buildings, a “preferential noise level” of 57 dB(A) would be applied in anticipation of stricter standards which were expected to enter into force in the year 2000. Where it appeared in practice that this could not be achieved, noise levels would be reduced by means of screens. Exceptionally, noise levels of up to 70 dB(A) might be tolerated at specific locations, but even there they were not to exceed 37 dB(A) inside residential buildings with the windows closed and ventilation apertures open. Although there might be a accumulation of noise from the A15 motorway and the Betuweroute railway, it was considered that the railway would contribute less noise than the louder motorway traffic, so that it would be possible by screening and other measures to reduce the combined noise levels to 60 dB(A).

Some 150 residential buildings were found to be located within 50 meters of the projected railway track. It was estimated that approximately one quarter of these were so close to the projected track that noise levels would compel the termination of their residential function. Studies also had been conducted regarding the vibration likely to be caused and the standards to be applied on this point. Further studies would be undertaken with a view to taking constructive measures aimed at reducing vibration levels.

The danger that might be caused by the operation of the Betuweroute railway was also considered, although not in detail. It was intended to build the railway so that the “individual risk” would be no greater than 10-6 near residential areas.  The “group risks” would be kept “as low as reasonably achievable”. Specific measures would be set out in the Routing Decision (Tracébesluit).

There had been an audit into the costs of the project as proposed by the Government, which, as was estimated at 1993 cost levels, would amount to a total of 7,138 million Netherlands guilders (NLG). Of this sum a portion of NLG 1,975 million would be paid out of the State budget. The remaining NLG 5,163 million would be raised from other sources, such as the financial markets, windfall profits from the sale of natural gas and funds supplied by the EEC. The total figure included a sum of NLG 750 million occasioned by changes imposed by the Lower House of Parliament and NLG 375 million required to meet objections and special requests made by individuals and local authorities.

A new Government took office in August 1994, which in pursuance to agreements reached between the coalition parties reconsidered the Betuweroute plan in its entirety. After obtaining the views of a parliamentary committee (the “Hermans Committee”), the new Government decided that the plan should go ahead. Its views were made public in a letter sent by the Minister of Transport and Communications and the Minister of Housing, Planning and Environment Management to the Lower House of Parliament on 21 April 1995. On 29 June 1995 the Lower House of Parliament endorsed the Government’s views.

C.The Routing Decision (Tracébesluit)

A preliminary draft of the Routing Decision was laid open for public inspection in June 1994, together with an addition to the environmental impact report and a survey of expected noise levels. Some 5,500 reactions were received from individuals and non-governmental organisations, among them the applicant association Vereniging Landelijk Overleg Betuweroute, in addition to reactions from local government bodies. These led to modifications, which were incorporated in the draft Routing Decision.

The draft Routing Decision was published on 4 March 1996 and laid open for public inspection until 29 April 1996. More than 600 reactions were received from individuals and local government bodies. Changes were considered, and eventually incorporated in the final Routing Decision, insofar as they did not affect the projected route, did not require additional expenditure and did not affect the interests of other parties. Changes made included, for certain locations, noise reduction measures additional to those foreseen in Outline Planning Decision part 4.

The Routing Decision was finalised on 26 November 1996 by the Minister of Transport and Communications in agreement with the Minister of Housing, Planning and Environment Management. It covered most of the projected track of the new Betuweroute railway, with the exception of a number of locations not concerned in the present case for which further planning was required.

The Routing Decision comprises 24 articles, creating a legal framework for the measures required, and a set of detailed maps with explanations. In its published form it is accompanied by an extensive explanatory part setting out the outline of the choices made.

A series of tests had been carried out from which it appeared that goods trains made rather more noise than had initially been estimated. It was stated that a reduction of noise levels was expected from modifications to the rolling stock (reduction at source). However, in case these should not be sufficient, screens would be erected where necessary without regard to the expected reductions at source. Further reductions were expected from the use of modern concrete sleepers instead of the conventional wooden ones on which the initial noise level assessments had been based. Finally, if the noise levels still turned out to be too high in practice, further measures would be considered, such as further modifications to rolling stock, avoiding operations at night and lowering maximum speeds. The standards to be applied, including those with regard to accumulation of noise caused by the new railway and the A15 motorway, were those set out in Outline Planning Decision part 4. Stricter standards would be applied in the vicinity of sensitive locations such as hospitals and schools and certain designated rural areas (stiltegebieden, “silence areas”). The residential function of residential buildings where the noise levels would be excessive would have to be terminated. A detailed report, setting out the noise levels for each municipality, was appended to the Routing Decision.

Compensating measures for the preservation of the environment and the existing landscape were to include, amongst other things, the provision of culverts (to enable wildlife and cattle to cross underneath the railway) and of appropriate vegetation. Special measures were also envisaged for the protection of any known archaeological sites.

Consideration was also given to special measures required by the nature of the subsoil, which provided less support in the western part of the country than in the east; hence the need for additional supporting shoulders in certain areas.  The need, at some locations, for cleaning polluted soil was noted.

Indications were given of how noise reduction screens, bridges and viaducts were to be built, and of how the railway would be sunk below ground level where this was unavoidable, an important objective being to limit the railway’s visual and environmental impact while maintaining its visual unity and continuity. Where the Betuweroute crossed existing traffic infrastructure – roads, existing railways, cycle paths  – safety was the main consideration. Changes to existing ditches and waterways were unavoidable.  Construction details of the electrical installations would, however, depend on the final decision on the electrical system to be used, which would be taken at a later date.

3.Appeals against Outline Planning Decision part 3a and the Routing Decision

A.The appeal against Outline Planning Decision part 3A

A total of 173 appeals against Outline Planning Decision part 3A were lodged with the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State), many jointly by a plurality of appellants. The appellants included a large number of individuals, non-governmental organisations and private companies, several Dutch local government bodies and two German municipalities (Voerde and Dinslaken). Of the applicants in the present case, Kuwait Petroleum (Nederland) B.V. (no. 39651/98) and M. Witvliet (no. 46664/99) are not mentioned as appellants in the resulting decision.

With the exception of the applicants Mr and Mrs Raymakers (no. 43147/98), who only raised objections of a general nature to Outline Planning Decision part 3A, all applicants in the present case submitted specific complaints about the proposed route of the railway insofar as their respective interests would be affected.

A total of sixteen hearings were held before the Administrative Jurisdiction Division in July, August and September 1996. 

On 31 January 1997 the Administrative Jurisdiction Division handed down its decision. It rejected all the complaints of a general nature. As to the specific complaints, it noted that Outline Planning Decision part 3A was not yet final as regards the eventual route of the railway.  It therefore limited the scope of its review, for each separate location, to the question whether the Government could reasonably have set the bandwidth as it had and, if so, whether it could reasonably have considered that an acceptable route was possible within the bandwidth specified or that, in view of possible measures to be taken, the interests of affected appellants had been adequately taken into account. It reserved its opinion on the eventual location of the railway, which was to be the subject of the Routing Decision.

One group of general complaints addressed inter alia the assessment made by the Government of the need for a new railway. These were rejected with reference to Government policy aimed at maintaining and strengthening the position of the Netherlands as a European hub for transport and distribution. The Administrative Jurisdiction Division concluded that the Government’s assessment did not appear incorrect or unreasonable.

Another group of general complaints challenged the Government’s estimates of  the railway’s macro-economic effects and its profitability as well as the financial calculations underlying the Government’s plans. These were rejected on the ground that the said estimates did not appear incorrect or unreasonable in view of the expert reports which the Government had commissioned.

A further group of general complaints challenged what was the Government’s failure to choose the most environmentally friendly alternative. The Administrative Jurisdiction Division held that the Government could reasonably have come to the decision - having weighed alternatives and decided to give priority to human interests - to choose the most cost effective solution and to use only proven technology. Where specific problems were alleged to arise, these would be dealt with separately. General complaints concerning expected noise and vibration levels, risk assessments, deprivation of property and the likelihood of damage were rejected as being either unfounded on the facts or premature given that these problems would be addressed for specific locations in the Routing Decision.

Specific complaints of 22 appellants were declared well-founded, which led to parts of Outline Planning Decision part 3A – and therefore Outline Planning Decision part 4 – being annulled. These twenty-two appellants did not include any of the applicants in the present case.

As regards the specific complaints which were rejected, the Administrative Jurisdiction Division held either that it could not be found in advance of the Routing Decision that it would be impossible within the bandwidth to choose the eventual location of the railway so that the objections raised could be met, or that the appellants’ objections could not be met in another way, for instance by relocating business premises or offering financial compensation.

The decision ran to 292 pages, to which maps were appended indicating locations in respect of which parts of Outline Planning Decision part 3A were annulled.

B.The appeals against the Routing Decision

In total 147 appeals were filed with the Administrative Jurisdiction Division against the Routing Decision. Many of these appeals were introduced by a plurality of appellants. Appeals were brought by most of the applicants in the present case. As before, the appellants included individuals, non-governmental organisations and private companies, several Netherlands local government bodies, and also a German municipality (Emmerich). Of the applicants in the present case, W.A. Bassa, A.K. Bassa van der Vliet, C. den Brauen, P.J. de Jongh, H. Kardol-van der Meyden, J.M. Keijman, A.N. de Kreij, J.R. de Kreij, M.L. de Kreij, N.G.C. de Kreij, P.A. de Kreij, F. de Kreij-Duizer, W. de Kreij-Wingelaar, K.A. de Kruis-de Kreij and C. Kuiper (no. 46664/99) are not mentioned as appellants in the resulting decision.

As was the case in the appeal against Outline Planning Decision part 4, a large number of appellants made complaints of a general nature going to such matters as the procedure followed. Some challenged the Government’s refusal to consider modifications of the Routing Decision unless the objections put forward were of a very serious nature. Others questioned the need or desirability for building the railway at all or objected to the procedure for assessing expected noise levels.

A public hearing was held on 2 December 1997. Mr and Mrs Raymakers (no. 43147/98) challenged the entire membership of the Administrative Jurisdiction Division and, in the alternative, all the members of that Division with the exception of the extraordinary members (staatsraden in buitengewone dienst), and in the further alternative, the members sitting on the case, on the ground of lack of impartiality. They argued that, since the plenary Council of State was involved in advising the Government on proposed legislation, it was inconsistent with Article 6 of the Convention that members of that body should subsequently decide in a judicial capacity on the application of legislation once it had been adopted.

A hearing on this matter was held on 9 December 1997 before a special Chamber of three members of the Administrative Jurisdiction Division who were not involved in hearing the appeal. Mr and Mrs Raymakers cited the European Court’s judgment of 28 September 1995 in the case of Procola v. Luxemburg (Series A no. 326). They noted similarities between the organisation and functioning of the Netherlands Council of State and the Luxemburg Conseil d’Etat and quoted several comments published in the legal press by learned authors. Given that the Council of State’s advice on the introduction of the Transport Infrastructure Planning Act (Tracéwet) had been “in generally positive terms” and therefore opposed to these applicants’ own interest in maintaining the status quo, they considered that that advice had been contrary to their own position in their appeal. The Administrative Jurisdiction Division was therefore not an “impartial tribunal”. These applicants therefore asked the special Chamber to rule that the Administrative Jurisdiction Division should decline to make any decision in the case.

On 10 December 1997 the special Chamber of the Administrative Jurisdiction Division gave its decision. It held that, according to Article 8:15 of the Administrative Law Act (Algemene Wet Bestuursrecht) a request for challenge could only be directed against judges who are dealing with the case of the party concerned. As to the challenge of the entire membership of the Administrative Jurisdiction Division, it was pointed out that if the Administrative Law Act would have provided otherwise, no judge being a member of such a tribunal would in fact be in a position to entertain the challenge. Consequently, insofar as the applicants’ challenge was directed against members of the Administrative Jurisdiction Division who were not involved in hearing the applicants’ appeal, it was inadmissible. It rejected the challenge directed against the members who were so involved in the following terms:

“The Division considers that pursuant to Article 8:15 of the General Administrative Law Act each of the members who decide a case can be dismissed from a case (gewraakt) on the application of a party on the grounds of facts or circumstances by which judicial impartiality might be impaired. The Division deduces therefrom that only a lack of impartiality on the part of a judge can lead to his dismissal from a case.  Neither the wording nor the drafting history of that provision offers support for the contention that a lack of independence of the tribunal to which a judge belongs can constitute grounds for the dismissal of that judge from a case.  Already for this reason the appellants’ submissions at the hearing cannot lead to the acceptance of their application.

As to the appellants’ reliance on the Procola judgment the Division considers that the appeal lodged by the appellants with the Division does not raise questions on which the Council of State has, in advisory opinions on the legislation that is at issue in this appeal, expressed itself in a way contrary to the position taken by the appellants in their appeal. There is therefore no reason to fear that the members of the Council of State who are charged with deciding on the appeal will consider themselves bound by any position adopted by the Council of State in the relevant advisory opinions.”

The hearing on the merits was resumed on 25 February 1998 and, on 28 May 1998, the Administrative Jurisdiction Division handed down its decision, which ran to 354 pages.

General complaints relating to the refusal of the Government to consider modifications to the Routing Decision unless the objections put forward were of a very serious nature were dismissed on the ground that this was not per se unreasonable; it was more appropriate to consider the objections in question individually. General complaints relating to the necessity or desirability of building the railway at all - including complaints about the environmental impact report - were also dismissed. These had already been considered as part of the appeals against Outline Planning Decision part 4. It was no longer the question whether the building of the Betuweroute was acceptable, but only whether, in coming to the Routing Decision, the Government could reasonably have decided as it had.

As to noise levels, the various complaints were to be considered individually. General complaints concerning the determination of acceptable noise levels could not be entertained.  Reasonable standards had been set by law, and actual noise would be monitored once the railway was in use. The safety studies were not held to have been insufficient. It was noted that there had been an additional study made in respect of areas where the concentration of the population, and therefore the group risk, was greatest. Moreover, the Government had specified additional safety measures for these areas in its statement of defence, as well as specific ways of operating the railway so as to minimise the dangers attending the transport of dangerous goods. As to the individual risk, the Routing Decision provided that new development which would increase it within 30 meters from the centre line of the track would be prevented; this made it unlikely that the individual risk would be increased further away from the track. Other objections relating to safety considerations would be dealt with on an individual basis.

As to vibration levels, the Administrative Jurisdiction Division held that it could not be found that the Government had acted unreasonably by basing its assessments on an industrial standard (DIN 4150) rather than a different standard suggested by certain appellants. Nor was the assessment of the likely nuisance caused by vibration per se unreasonable. Moreover, the Government had undertaken to provide active monitoring (i.e. to measure vibration levels of its own motion) in all residential buildings located within 50 meters of the railway once it was in use, and passive monitoring (i.e. to measure vibration levels after complaints were received) in residential buildings located 50 to 100 meters from the railway. The Government would then deal with unacceptable nuisance on a case by case basis. Specific problems raised by appellants would be dealt with individually.

With regard to general complaints about the arrangements for compensating for damage, the Administrative Jurisdiction Division referred generally to the relevant provisions of the routing decision. It further noted that legal remedies were available against any specific decisions taken in this regard. It could therefore not be assumed at this stage already that acceptable arrangements in respect of damage were not possible.

The applicant association Vereniging Landelijk Overleg Betuweroute (no. 46664/99) made several complaints which the Administrative Jurisdiction Division construed as being of a general nature only.  Insofar as they coincided with the complaints summarised above, they were dismissed on the grounds already stated. A complaint about what the applicant association considered to be a lack of sufficient opportunity to influence the decision-making process in its early stages was dismissed by the Administrative Jurisdiction Division on the ground that the association had in fact made its views known at the stage of the preliminary draft of the Routing Decision. A complaint about the alleged failure to prepare an environmental impact report with regard to altering a stretch of the A15 motorway was dismissed on the ground that the Government was not under a legal obligation to do so. Complaints that the planned route of the railway was incomplete were dismissed as factually unfounded, gaps left by Outline Planning Decision part 4 having in the meanwhile been filled in. Complaints that the Routing Decision failed sufficiently to take into account the possibility of interferences with high-tension electricity lines and natural gas conduits were dismissed as factually unfounded. Complaints about the impact on wildlife habitat and landscape were either dismissed as lacking any foundation in fact or dealt with separately, together with similar complaints of other appellants, in so far as they concerned specific areas. In response to misgivings expressed about the storage in temporary and permanent dumps of polluted soil that might be extracted in the course of the building of the railway the Administrative Jurisdiction Division noted that the Government had undertaken to deal with polluted soil in accordance with the applicable legislation. Insofar as the applicant association claimed on technical grounds that the assessment of expected noise levels was deficient, reference was made to the standards which the Government had set itself, which did not appear unreasonable, and to the Government’s undertaking to reduce noise to a minimum by technical means such as the use of sloping screens which would absorb noise and reflect it upwards. Any remaining problems caused by noise could be dealt with locally in accordance with the legislation in force.

The applicants Maatschap Smits (no. 39032/97) objected to plans to relocate only the farmhouse, leaving the cowsheds where they were, instead of relocating the entire farm including the cowsheds on to which the house was built. It was not in dispute that farming could not continue if the farmers had to live away from the cowsheds. The Administrative Jurisdiction Division considered that, depending on where the house would be rebuilt, it would be located between 40 and 120 meters from the railway track, that was outside the 30-meter individual risk zone. As regards nuisance caused by vibration, this would be actively or passively monitored as the case might be, depending on the distance from the track. As to noise, it was found that the question of noise levels at that particular location, the possibility of rebuilding the house on such a location as to minimise the nuisance thereby caused and the possible need for screens had been insufficiently considered; the Government was accordingly ordered to reconsider the Routing Decision in this respect.

Sterk Technisch Adviesbureau B.V. (no. 39651/98), whose premises would have to be relocated, complained that no sufficient clarity had been provided as to whether a new location of equivalent quality would be made available. The Administrative Jurisdiction Division held this complaint to be well-founded. This made it unnecessary to go into other specific complaints made by this applicant.

B.V. Kleijn Financierings- en Leasemaatschappij (no. 39651/98) and Mr A.A. Kleyn (no. 39343/98) objected to the loss of some land which they owned and which they had intended to use for building on. This objection was dismissed on the ground that adequate arrangements for providing compensation were in place.

With regard to a complaint submitted jointly by Mr A.A. Kleyn (no. 39343/98), and B.V. Kleijn Financierings- en Leasemaatschappij, Exploitatiemaatschappij De Zeiving B.V., Ms C.J.P. Kleijn, Ms P.M. Kleijn and Ms C.J. Kleijn (no. 39651/98) in respect of the restaurant “De Goudreinet” which they owned and the flat inhabited by Mr A.A. Kleyn, the Administrative Jurisdiction Division found that no investigation had been undertaken as to whether it would be possible for these to continue in use. To that extent the complaint was therefore well-founded.

Mr C.M. van Burk and Kuwait Petroleum (Nederland) B.V. (no. 39651/98) complained about the location to which it was intended to relocate their petrol station. They feared serious nuisance from noise, this in view of inter alia the absence of any noise-reduction measures at that location. They also feared that the pumping installations and the computers would be affected by vibration, that the situation would prove unsafe and that there would be excessive fallout of iron and copper particles. The Administrative Jurisdiction Division found that the petrol station was not as such sensitive to noise, that there appeared to be sufficient possibility to keep vibration down to an acceptable level and that most of the fallout would be confined to the railway itself. These applicants’ complaints were therefore unfounded.

Mettler Toledo B.V., Van Helden Reclame-Artikelen B.V., Mr and Mrs van Helden, Grasshopper Reclame B.V., Mr and Mrs Hougee, M.C. Gerritse B.V., Texshop B.V., Restaurant De Betuwe B.V., Maasglas B.V. and the Chamber of Commerce and Industry for South-west Gelderland province (no. 39651/98), whose respective premises were all located on the same industrial estate near Tiel, lodged a joint appeal. They made objections with regard to nuisance caused by noise and vibration, safety considerations, fallout of iron and copper particles and the loss of visibility. They also considered the traffic problems which would attend the building of the railway for several months unacceptable. General complaints of this nature were dismissed on the grounds that the studies into noise and vibration problems undertaken by the Government appeared adequate, that any fallout of metal particles would be confined for the most part to the railway track itself, that there was nothing to suggest that the applicants’ accessibility could not be ensured while building was going on, and that any other damage could be compensated under the arrangements provided for that purpose.

With regard to Mettler Toledo B.V., whose extremely accurate device for calibrating scales was stated to be particularly sensitive to vibration, it was held that studies were still ongoing as to whether the vibration likely to be caused by the railway would unduly interfere with that company’s business. That being so Mettler Toledo B.V.’s claims could not be dismissed as unfounded; to that extent, the appeal was allowed.

As to Van Helden Reclame-Artikelen B.V., on the other hand, it was not considered that their manufacturing processes would unduly be interfered with by such vibration. Its appeal was therefore dismissed.

In respect of Mr and Mrs van Helden, who lived at a distance of 100 meters from the projected railway track, it was held that their residence was unlikely to be affected by noise and vibration to an unacceptable extent; nor was the additional danger unacceptable per se. Their appeal was likewise dismissed.

The appeal of Grasshopper Reclame B.V. was dismissed on grounds similar to that on which the appeal of Van Helden Reclame-Artikelen B.V. was dismissed, as was that of Mr and Mrs Hougee.

Insofar as M.C. Gerritse B.V. complained of the likelihood that its business would be affected by vibration, the Administrative Jurisdiction Division considered that such an effect was unlikely given the nature of its business (the sale and servicing of lorries and motor cars).  Other reasons why this applicant company would be unacceptably affected by the railway were not established.  This appeal was accordingly dismissed.

On similar reasoning the Administrative Jurisdiction Division dismissed the appeal of Texshop B.V., whose business was trade in working clothes.

As to Restaurant De Betuwe B.V., whose restaurant was located some 180 meters from the track, it was held that, although it appeared likely that its business premises would be affected to some extent by noise, its business was not of such a nature as to make it particularly sensitive to noise and it did not appear likely that the effects on its business would be disproportionate.

The business premises of Maasglas B.V. were located some 1000 meters from the projected track.  In light of this fact it was held to be unlikely that its manufacturing processes would be disturbed by noise or vibration.

It was likewise considered unlikely that the activities of the Chamber of Commerce and Industry for South-West Gelderland Province, whose offices were located at 140 meters from the track, would be hindered by noise or vibration.

Mr and Mrs Raymakers (no. 43147/98) complained about the noise and vibration which they expected would be caused by the railway once it became operational. They also feared that the value of their residence would be affected. The Administrative Jurisdiction Division dismissed the complaints about the noise and vibration levels, referring to what it had held in response to the general complaints on these issues. It could not be assumed that their living conditions would be unacceptably affected. As to the possibility that these applicants’ house would lose some of its value it held that sufficient arrangements had been made for providing compensation.

As regards W.F. van Duyn (no. 46664/99), who lived at a distance of about 225 meters from the projected railway track, the Administrative Jurisdiction Division held that the noise reducing measures foreseen were sufficient and that it was not established that the applicant’s home was exposed to an unacceptably high security risk. His appeal was therefore dismissed.

As to J.H. Kardol (no. 46664/99), who lived at a distance of about 170 meters from the projected railway track, the Administrative Jurisdiction Division accepted as sufficient that a three metres high noise screen was planned to be placed at the level of his home. It further held that his residence was unlikely to be affected by vibration to an unacceptable extent. His appeal was therefore dismissed.

As regards C. de Kreij (no 46664/99), who made objections as regards nuisance caused by noise and vibration, safety considerations and the manner the Betuweroute would be fitted into the landscape, it was held that acceptable living and working conditions were sufficiently guaranteed. Moreover, this appellant would be given the opportunity to sell his business premises to the NS Railway Infrastructure Division. Noting that Mr de Kreij’s residence was planned to be taken down, it was not necessary to determine the objections raised in respect of this house. Insofar as he complained of inadequate noise reducing measures at the location of his new home, it was held that the measures taken were sufficient. Insofar as his complaints concerned the possibilities for compensation for damages, the Administrative Jurisdiction Division held that any damage could be adequately compensated under the arrangements provided for that purpose. His appeals was therefore rejected.

The partnership Maatschap Takel- en Bergingsbedrijf Hanhart Tiel, C.J. Hanhart and S.J.B.A. Pompen (no. 46664/99) made objections with regard to nuisance caused by noise and vibration, safety considerations and the loss of visibility and land. They also considered the problems relating to the accessibility of their premises which would attend the building of the railway unacceptable. General complaints of this nature were dismissed on the grounds that the measures foreseen for limiting nuisance by noise appeared sufficient, that the studies into noise and vibration problems undertaken by the Government appeared adequate, that there was nothing to suggest that the applicants’ accessibility could not be ensured while building was going on, and that any other damage could be compensated under the arrangements provided for that purpose. Their appeals were consequently rejected.

In respect of the houses owned by G. van der Vliet, the Administrative Jurisdiction Division noted that these houses were scheduled to be taken down and that, in these circumstances, it was not necessary to determine the complaints raised in relation to unacceptable living conditions resulting from the construction of the railway.

As regards C.M. Wennekes and P. van Bunschoten, who complained that their residence was likely to be affected by unacceptable noise and vibration, it was noted that their house was scheduled to be taken down and that negotiations were ongoing about the purchase price of their home and the amount of compensation. In these circumstances, the Administrative Jurisdiction Division did not find it necessary to determine their complaints about unacceptable nuisance by noise and vibration. It further rejected their complaint that the railway would unacceptably affect the beauty of the local landscape.

As to the appeal filed by M. Witvliet (no. 46664/99), the Administrative Jurisdiction Division rejected the objections to a possible expropriation, holding that such objections could be raised in the specific procedure set out in the Expropriation Act (Onteigeningswet). His complaint about nuisance by noise in a particular area, it was held that this element had been insufficiently examined. To that extent, his appeal was founded. The remainder was rejected.

The appeals filed by A.J.Th. Berndsen, B.A.G. Berndsen-Wezendonk, A.C. de Kreij, E.D. de Kreij, J.W. de Kreij, K.A. de Kreij, L.C. de Kreij, C. de Kreij-van Hoorne, F. de Kreij-Vonk G.J. van Lent, G. van Lent-de Kroon and G.J. van der Vliet-de Kreij were equally rejected.

The appeal of Maatschap Smits was thus held to be well-founded in its entirety. The joint appeals of B.V. Kleijn Financierings- en Leasemaatschappij, Mr A.A. Kleyn, Exploitatiemaatschappij De Zeiving,  Ms C.J.P. Kleijn, Ms P.M. Kleijn and Ms C.J. Kleijn and of Mettler Toledo B.V., Van Helden Reclame-Artikelen B.V., Mr and Mrs van Helden, Grasshopper Reclame B.V., Mr and Mrs Hougee, M.C. Gerritse B.V., Texshop B.V., Restaurant De Betuwe B.V., Maasglas B.V., the Chamber of Commerce and Industry for South-west Gelderland province and Mr Witvliet were held to be well-founded in part. The remainder of the appeals lodged by the applicants were dismissed. Insofar as the appeals were considered well-founded the Administrative Jurisdiction Division annulled the Routing Decision and made an award in respect of costs.

4.Subsequent developments

A.The 1998 Routing Decisions

In a letter to the Lower House of Parliament of 13 July 1998 the Minister of Transport and Communications, writing also on behalf of the Minister of Housing, Planning and Environment Management, observed that the decision of the Administrative Jurisdiction Division left 95 % of the Routing Decision intact.  It was therefore not necessary either to undertake a radical review of the project or to interrupt the building work; it was expected that the Betuweroute railway would be operational by the year 2005.

Considering that in so far as minor parts of the Routing Decision had been annulled, the reason therefor had merely been that insufficient information had been obtained as to whether the interests of the appellants could be safeguarded.  Insofar as relevant to the present case, the Minister expected that in all but one or two cases at most changes to the original Routing Decision would prove unnecessary. New partial Routing Decisions were taken in the course of 1998.

Mr A.A. Kleyn (no. 39343/98) indicated that insofar as he is affected by them, the new Routing Decisions do not make any material difference.

An appeal lodged by Mettler Toledo B.V. was declared inadmissible by the Administrative Jurisdiction Division on 16 April 1999.

Sterk Technisch Adviesbureau B.V. (no. 39651/98) appealed against the 1998 Routing Decisions to the Administrative Jurisdiction Division.  The appeal was dismissed on 25 October 1999.

The appeals filed by B.V. Kleijn Financierings- en Leasemaatschappij, Exploitatiemaatschappij De Zeiving B.V., Ms C.J.P. Kleijn, Ms P.M. Kleijn, Ms C.J. Kleijn (no. 39651/98) and Mr A.A. Kleyn (no. 39343/98) were dismissed by the Administrative Jurisdiction Division on 25 July 2000.

Insofar as the implementation of the 1998 Routing Decision requires property to be expropriated, the necessary proceedings have been started.

B.The Betuweroute Note

In response to suggestions made in the public media to reconsider the Betuweroute project, the Minister of Transport and Communications sent a note (Notitie Betuweroute, the “Betuweroute Note”) to the Lower House of Parliament on 6 November 1998. In this note the Minister restated the considerations which had led to the decision of 1995 to allow the project to go ahead. She also expressed the view that no new information had become available since the reconsideration of 1995 which would tend to undermine earlier assumptions with regard to the viability and desirability of the project.  On the contrary, developments had been such as to endorse these.

C.Expropriation proceedings against Mr A. van Helden (nos. 39651/98 and 61707/00)

By Royal Decree (Koninklijk Besluit) of 11 November 1998 it was decided that land belonging to the applicant Mr van Helden was to be expropriated in favour of the NS Railway Infrastructure Division. The Royal Decree referred to Mr van Helden’s objections as to the need for building the Betuweroute railway in the first place and the possibility of alternative routes and technical measures; these were dismissed as being more appropriately dealt with in the context of the Outline Planning Decisions and the Routing Decision.

Since Mr van Helden was not willing to part with the land on the basis of a friendly settlement, the Railway Infrastructure Division summoned him before the Arnhem Regional Court (Arrondissementsrechtbank) on 29 March 1999.  On 8 July 1999 the Regional Court gave judgment in favour of the Railway Infrastructure Division. It appointed three experts and an investigating judge to assess the compensation of damage suffered by Mr van Helden and ordered an advance payment of NLG 47,250.

As provided for in the Expropriation Act, Mr van Helden lodged an appeal on points of law to the Supreme Court (Hoge Raad). He complained, insofar as relevant here, that the Regional Court, by confining itself to referring to the administrative procedures already pursued, had neglected to rule on the legality and necessity of the expropriation; in particular, the Regional Court had failed to investigate technical alternatives such as tunnelling, which would make expropriation unnecessary. In this connection, referring to this Court’s Procola v. Luxemburg judgment, he argued that the Council of State’s “structural impartiality” was in doubt; from this it followed that he was entitled to have these issues reviewed by the ordinary courts.

In his advisory opinion (conclusie) submitted on 10 November 1999, the Advocate General to the Supreme Court stated, inter alia:

“3.2.  In the Procola judgment the European Court of Human Rights found that there was a violation of the first paragraph of Article 6 of the Convention because the impartiality of  the judges who had decided the case was in doubt, since four of the five members had expressed themselves in that decision as to the legality of the delegated legislation on which the decision was based, whereas they had earlier expressed themselves as to the legality in an advisory opinion to the legislature concerning that delegated legislation.

3.3.  Given that it is established in the present case that the legality of the Transport Infrastructure Planning Act has not been considered in the course of the examination of the Betuweroute Routing Decision by the Administrative Jurisdiction Division of the Council of State – Van Helden confirms this in the last sentence of point 5 of his written reply – there is, in light of the Procola judgment, already for that reason no possible doubt as to the impartiality of that tribunal in the present case.

3.4.  In brief: we are not concerned with Procola because the validity of the Transport Infrastructure Planning Act is not at issue.  That being so it is irrelevant that the Administrative Jurisdiction Division examines the Betuweroute Routing Decision under the Transport Infrastructure Planning Act.”

The Supreme Court dismissed Mr van Helden’s appeal by judgment of 16 February 2000. In agreement with the Regional Court, it held that issues such as the necessity of building the railway at all and the choice of technical and routing alternatives were more properly dealt with in administrative proceedings under the Town and Country Planning Act and the Transport Infrastructure Planning Act than in expropriation proceedings.  With regard to Mr van Helden’s point as to the impartiality of the Council of State, the Supreme Court held as follows:

“3.2.  Van Helden has submitted before the Regional Court - insofar as still relevant - in objection to the expropriation: ...

(b)  As the Council of State (as a whole; therefore including the Administrative Jurisdiction Division) has been involved in the enactment of the Transport Infrastructure Planning Act and in this respect, as an advisory organ, has issued a generally positive advice, the Council of State cannot be regarded as a structurally impartial tribunal within the meaning of Article 6 of the Convention; ...

3.4.5.1.  In part Ib of the cassation plea, that concerns the objection set out in 3.2 under (b), is being repeated, with reference to the judgment of the European Court ... in the case of Procola v. the Grand Duchy of Luxembourg, the argument unsuccessfully raised before the Regional Court that the Royal Decree must be reviewed in its entirety as doubts may arise as to the structural impartiality of the Council of State as a judicial body where members of the Council of State have subsequently advised about the Transport Infrastructure Planning Act and administer justice on a decision that has been taken on the basis of this Act.

3.4.5.2.  However, the argument overlooks that the mere fact that the Council of State, in accordance with the statutory provisions concerned, was heard about the Bill that led eventually to the Transport Infrastructure Planning Act does not warrant the conclusion that fears as to the impartiality of the Administrative Jurisdiction Division of the Council of State, which as judge had to determine objections against the Routing Decision, are objectively justified. Part Ib of the cassation plea must therefore be dismissed.”

D.The revision proceedings

On 13 April 1999, the Stichting Duurzame Mobiliteit (“the Durable Mobility Foundation”) - one of the appellants against the Routing Decision but who is not among the applicants in the present case - lodged a request for revision (herziening) of the decisions of 31 January 1997 and 28 May 1998 with the Administrative Jurisdiction Division. This appellant argued that the Government had either been insufficiently aware of certain relevant factual information at the time when they finalised Outline Planning Decision part 3A or had failed to consider this information.

In its decision of 9 March 2000 the Administrative Jurisdiction Division refused to revise its said decisions.  It found that the information in question was not of such a nature as to justify reopening the proceedings.

E.The report of the Audit Office

From August 1999 until February 2000 the Chamber of Audit (Algemene Rekenkamer) undertook a study of the Betuweroute decision-making process. It published its report on 22 June 2000 under the title Beleidsinformatie Betuweroute (Betuweroute Policy Information).

The purpose of the report was to provide guidance for the quality and use of information relied on by the Government to ground future policy decisions relating to large infrastructure projects. The central questions were whether the quality of the information relied on in taking Betuweroute policy decisions was assured and whether this information had been used in a responsible way in the preparation of the decision-making process.  Developments subsequent to the reconsideration of 1995 (see above) had been taken into account.

The Audit Office found that in the initial stages an adequate analysis of the problems to be solved had not been made. The decision-making process had related one-sidedly to the solution chosen, namely the construction of the Betuweroute railway, it having been decided at the outset that that was beneficial for the national economy and the environment; an expert analysis of the information on which the Outline Planning Decision was based had not been sought.

Predictions concerning the expected volume of transport through the Netherlands were considered imprecise and unreliable. The predictions eventually relied on appeared overly optimistic; also, in some cases, it was not clear on what considerations the preference for particular predictions over others was based. Uncertainty remained inter alia as to the capacity of the German railway system to absorb the increased volume of goods traffic. The increasing competitiveness of inland navigation had not been considered, nor had the slow progress in some European countries (for example Belgium and France) of the liberalisation of rail transport.  Nor yet had account been taken of the possible effects of levies on road transport as against the passing on of the costs of railway infrastructure to shippers, the latter possibility being countenanced in a policy proposal of the European Commission.

Alternatives to the Betuweroute had not been sufficiently explored. The Audit Office criticised the way in which the use of existing railway infrastructure in the Netherlands, waterborne inland and coastal transport and especially the Belgian “Iron Rhine” railway had been considered in isolation rather than in combination. A thorough analysis of the possibilities of optimising existing east-west transport, including existing railway infrastructure, was lacking. Possible future developments in inland waterway traffic, which already accounted for a greater volume of transport than Netherlands railways, had not been looked into. 

The assumed environmental benefit had also been misstated. The information concerning the environmental impact of alternatives to the Betuweroute railway had been inadequate and had been used in a selective way. Attention had been focused on the immediate reduction of energy use and noxious emissions without taking into account technical developments such as the increased use of cleaner and more economical engines in alternative transport; insufficient information had been provided concerning such matters as nuisance levels, external safety or soil and ground water pollution attending alternative choices.

A positive feature of the process, given especially the public discussion which had arisen, was that the project had been reconsidered in its entirety in 1995 and that the arguments in favour had been presented anew in 1998 (the Betuweroute Note; see above).  However, the information available at those times and the way in which it had been used was open to criticism.

The draft of the report was transmitted in its entirety to the Government. The Minister of Transport and Communications, in a reaction provided also on behalf of the Minister of Housing, Planning and Environment Management, expressed broad agreement with the report although some of the individual findings were contested.  The conclusions of the Audit Office were accepted for future reference.

Parts of the draft report were transmitted to the NS Railway Infrastructure Division and Railned, the Netherlands government entity which operated the railway system.

The Railway Infrastructure Division disagreed with certain findings of the Audit Office with regard to environmental impact estimates. Railned called into question some of the Audit Office’s findings with regard to the predicted increase in the volume of rail transport.

The full report, including the reactions, was transmitted to the Lower House of Parliament (parliamentary year 1999-2000, no. 27 195, nos. 1 – 2).

B.  Relevant domestic law and practice

1.Outline planning decisions

Article 2a of the Town and Country Planning Act (Wet op de Ruimtelijke Ordening) empowers the Minister of Housing, Planning and Environment Management together with the other Ministers concerned in each case to prepare plans, known as outline planning decisions, for particular aspects of national planning policy (Article 2a § 1). At the relevant time (i.e. until 1 January 1994), the draft for such a plan was required to be laid open for public inspection for a period of between one and three months, an announcement being made beforehand in the Official Bulletin and the local media; anyone minded to do so could submit their views for a period of one month after the end of the one to three month period (Article 2a § 2). The draft was transmitted to the Lower House of Parliament for information at the time of its being laid open for public inspection (Article 2a § 5).

The Ministers were required to consult the authorities of the provinces, regional surface water boards, municipalities and any other public-law entities, as appropriate, about the draft (Article 2a § 3). The advice of the Planning Advisory Board had to be sought (Article 2a § 4).

The Ministers were then required to transmit the outline planning decision - which by this time no longer had the status of a draft - to the Lower House for approval.  The plan had to be accompanied by a general statement setting out the way in which any views submitted by interested parties, the results of consultations with lower government bodies and the advice of the Planning Advisory Board had been taken into account (Article 2a § 6).

The Lower House was entitled to send the outline planning decision back to the Ministers concerned for modification before deciding whether or not to approve it.  Thereafter it could withhold its approval of all or part of the plan (Article 2a § 7).

The Lower House then transmitted the outline planning decision, as approved by it, to the Upper House of Parliament.  The latter House could decide to approve it or not, but could not amend it (Article 2a § 8). If approved by the Upper House, the outline planning decision entered into force (Article 2a § 7).

Once it was in force, the outline planning decision was published in the Official Bulletin and in the local media (Article 2a § 9).

Although no specific provision provides for any appeal to an administrative tribunal against an outline planning decision, the Administrative Jurisdiction Division of the Council of State held in its decision of 31 January 1997 - the decision on the appeals against the outline planning decision in the present case - that the decisive moment for such purpose was that at which the Ministers resubmitted the outline planning decision to the Lower House of Parliament after the latter had given it the opportunity to modify it; that is, for purposes of the present case, Outline Planning Decision part 3A.

Since 1 January 1994 it is provided that, insofar as an outline planning decision contains policy decisions about major projects of national importance, all further planning relating to such projects is subject to the limitations set out in these policy decisions (Article 39).

2.Routing decisions

A.The Bill for the Transport Infrastructure Planning Act and the advisory opinion of the Council of State

In accordance with Article 15 of the Council of State Act (Wet op de Raad van State; see below), the Bill for a new Transport Infrastructure Planning Act (Tracéwet) was transmitted by the Queen to the Council of State for an advisory opinion on 1 July 1991.

The proposed Transport Infrastructure Planning Act was intended to provide a legislative framework for the supra regional planning of new major transport infrastructure (roads, railways, canals) and major modifications to existing transport infrastructure with a view to simplifying procedures for securing the co-operation of the provincial, regional and local authorities whose territories might be affected. An additional effect was intended to be the concentration of legal remedies in such a way that a single appeal could be brought against a decision of central Government and all related decisions of subordinate authorities, obviating the need for a plurality of appeals against decisions and plans of local authorities.

The Council of State transmitted its advisory opinion to the Government on 9 December 1991. Among other things, it noted the absence of any time-limits binding the administrative authorities and expressed doubts as to whether the procedure under the new Bill, if enacted, would be any shorter than the aggregate of separate procedures necessary until then.  It also considered that the new Bill created uncertainty at the lower levels of government (the provinces, the regional surface water boards and the municipalities) by bypassing the planning structures of those lower bodies; in addition, insufficient weight was given to the justifiable interests of individuals.  Except, perhaps, in cases where the project concerned was of exceptional national or international importance, it would be preferable, in the view of the Council of State, to develop a structure allowing for parallel planning at the central and local levels. The Council of State also made a number of specific suggestions for co-ordinating planning with local government authorities and for improving the drafting of the Bill before it was transmitted to Parliament.

The Minister of Transport and Communications made a number of changes to the Bill in light of the Council of State’s criticism. These included a special arrangement for major projects of national importance.  The Government then submitted the Bill to the Lower House of Parliament, together with the Council of State’s advisory opinion and the Minister’s comments.

In response to the doubts expressed by the Council of State as to whether the new procedure would be appreciably shorter than the former one, the Minister noted among other things the time that could be involved in obtaining the co-operation of the local authorities, which could be very long.  It was also stated that the local authorities were involved in all stages of the procedure, being informed and consulted as the need arose; if it was necessary to compel their co-operation, this was done at the final stage, that of the Routing Decision. Legal protection of the justified interests of individuals was sufficiently guaranteed in the form of a single appeal, on grounds of legality, against the Routing Decision.

The Transport Infrastructure Planning Act eventually entered into force on 1 January 1994.

B.Content of the Transport Infrastructure Planning Act

The Transport Infrastructure Planning Act requires the Minister of Transport and Communications to consult the local and regional authorities whose territories may be affected and, in the case of a railway project, the prospective exploiter of the railway before drawing up a draft routing decision (Article 6).  This draft is then transmitted to them, after which they have the opportunity to comment (Articles 11 § 1, 12 §§ 1 and 2, and Article 13). The Minister then draws up a final routing decision and may if necessary require the local and regional authorities to modify their own local and zoning plans (Article 15 §§ 1-3). The routing decision is transmitted to Parliament with an explanatory statement (Article 16 § 1). Non-binding time-limits are set for the various stages of the procedure.

Anyone with an interest may appeal against the routing decision to the Administrative Jurisdiction Division of the Council of State (Article 15 § 4).

Special provisions govern the procedure relating to “major projects of national importance”. These are to be followed if an outline planning decision is in force (Article 21). In such cases the outline planning decision is to form the basis of, and be transformed into, a draft routing decision (Article 22). If changes to the draft routing decision appear necessary in view of observations received from interested parties or local government bodies then these changes are to remain within the limits drawn by the outline planning decision (Article 23 § 1). The Minister of Transport and Communication, together with the Minister of Housing, Planning and Environment Management, then draws up a final routing decision and may if necessary require the local and regional authorities to modify their own local and zoning plans (Article 24 §§ 1-3). An appeal against the routing decision lies to the Administrative Jurisdiction Division of the Council of State (Article 24 § 4). No separate appeal lies against the outline planning decision unless it is not followed within one year from its entry into force by a final routing decision (Article 24 § 5). The general provisions of the Transport Infrastructure Planning Act, in so far as they concern notification to Parliament and compelling the co-operation of local government authorities, apply by analogy (Article 25).

3.The Betuweroute (Compensation for Damage) Ordinance

The Betuweroute (Compensation for Damage) Ordinance (Regeling Nadeelcompensatie Betuweroute) (Official Gazette - Staatscourant - 1996, no. 189) was created by a decision of the Minister of Transport and Communications of 6 September 1996. It provides an administrative procedure under which persons who have suffered, or are likely to suffer, damage as a result of the Betuweroute railway project can claim compensation. Exceptions apply in so far as the damage in question ought in reason to be borne in whole or in part by the claimant himself and in so far as compensation is sufficiently ensured by voluntary purchase, expropriation or other means (Article 2 of the Ordinance).

Claims are addressed to the Railway Infrastructure Division of the NS, for the attention of the Betuweroute Project Manager (Article 3 of the Ordinance). Unless the Minister dismisses them out of hand in simplified proceedings (Article 4), they are then submitted to an advisory committee appointed by the Project Manager (Article 5).  The advisory committee shall report its findings to the Minister (Article 6). The Minister shall decide within six weeks after having received the report (Article 9). Objections and appeals against the Minister’s decision, including appeals to administrative tribunals, are possible in accordance with the provisions of the General Administrative Law Act (Algemene Wet Bestuursrecht; Articles 9 and 10 of the Ordinance).

In a separate decision of 20 November 1996, the Minister gave the Betuweroute Project Manager of the Railway Infrastructure Division a mandate to decide on claims under the Ordinance (Official Gazette 1996, no. 229). On 5 December 1997 the Minister additionally mandated the General Manager of the Railway Infrastructure Division to decide objections (Official Gazette 1997, no. 239).

4.The Council of State

Unless otherwise indicated, references in this section to domestic legal provisions are to the Act on the Council of State (Wet op de Raad van State).

A.Membership of the Council of State

The Council of State comprises up to 28 Ordinary Members (Staatsraden) (Article 1), and up to 55 Extraordinary Members (Staatsraden in buitengewone dienst) (Article 4 as worded since 1 April 2001; prior to this date the maximum number of Extraordinary Members was 25).

All Members are appointed by Royal Decree for life, the age of retirement is 70 (Articles 3 and 4).

B.Advisory function of the Council of State concerning draft legislation

In virtue of Article 73 of the Constitution, before the Government submits a Bill for adoption to Parliament (Staten-Generaal), a delegated legislation draft or a proposal to approve or denounce a treaty, it must seek the advisory opinion of the Council of State (Article 15).

In cases where proposed legislation does not originate from the Government but from one or more members of the Lower House of Parliament (Tweede Kamer), the Lower House shall seek the advisory opinion of the Council of State (Article 15a).

The Council of State adopts its advisory opinions in its plenary meeting (Volle Raad). It is standing practice that the plenary meetings are attended by the Ordinary Members but not by the Extraordinary Members of the Council of State.

C.Judicial function of the Administrative Jurisdiction Division

The Administrative Jurisdiction Division of the Council of State is entrusted with adjudicating those administrative disputes where the law so provides (Article 26).

The Division consists of all the Ordinary Members of the Council of State (not its Vice-President) as well as all the Extraordinary Members. They all hold this position for life until their retirement at the age of 70. Amongst them a President of the Division is appointed by Royal Decree, also for life.

D.Combination of the advisory and judicial function

From the above description it ensues that a part of the membership of the Administrative Jurisdiction Division combines the judicial function with the advisory function, namely the Ordinary Members of the Council of State (no more than 28), while the Extraordinary Members (no more than 55) only perform a judicial function within the Council of State.

E.Challenge of Members of the Administrative Jurisdiction Division

Members of the Administrative Jurisdiction Division to whom a case has been assigned, may be challenged by any of the parties on the grounds of facts or circumstances which may affect judicial impartiality (Article 8:15 of the General Administrative Law Act taken together with Article 36 of the Act on the Council of State).

The challenge will be examined as soon as possible by a three-Member Chamber, which shall not include the Member or Members challenged. The challenging party and the Member or Members challenged are offered the opportunity to be heard. A reasoned decision shall be given as soon as possible, against which no appeal lies (Article 8:18 of the General Administrative Law Act taken together with Article 36 of the Act on the Council of State).

F.Effect given to the Procola judgment of 28 September 1995

In a memorandum appended to a letter dated 12 February 1998 to the Chairman of the Lower House, the Minister of Justice and the Minister for the Interior informed the Lower House that, in view of the Procola judgment and given the fact that there was not yet communis opinio about its precise scope and its possible consequences for the Netherlands, the Council of State had adopted a provisional practice in anticipation of further clarification by the European Court of Human Rights in its future case-law.

According to this practice, whenever in view of the appeal lodged before the Administrative Jurisdiction Divisions, it may be considered likely that objections will be raised from a Procola perspective, the chamber to which the appeal is assigned will be composed of Members who have not been directly involved in the adoption of the advisory opinion on the relevant legislation and/or of Extraordinary Members, who in practice do not take part in the advisory function at all (Lower House of Parliament, parliamentary year 1997-98, 25425, no. 3; this line of practice has also been published in the Annual Report 2000 of the Council of State).

5.Chambers of Commerce and Industry

The organisation and duties of the Chambers of Commerce and Industry are laid down in the 1997 Chambers of Commerce and Industry Act (Wet op de kamers van koophandel en fabrieken). This Act, which entered into force on 1 January 1998, repealed and replaced an earlier Act of 1963.

Pursuant to Article 2 § 1 of this Act, Chambers of Commerce and Industry are set up throughout the country.  Their location and the territory in respect of which they exercise their responsibilities are decided by the Minister of Economic Affairs (Minister van Economische Zaken) by means of delegated legislation (Article 2 § 2).

The duties of the Chambers of Commerce and Industry are defined by law.  They include the keeping of the Commercial Register (Handelsregister), pursuant to Article 2 of the Commercial Registers Act (Handelsregisterwet); all limited companies (naamloze vennootschappen), limited liability companies (besloten vennootschappen met beperkte aansprakelijkheid), co-operatives (coöperaties), mutual insurance companies (onderlinge waarborgmaatschappijen), foundations (stichtingen), certain types of associations (verenigingen) and Netherlands-based joint European undertakings (Europese samenwerkingsverbanden) are registered therein (Article 4 of the Commercial Registers Act). Among their other duties and competences are the issuing of official certificates of origin, the legalising of signatures of persons involved in commerce and industry and the swearing in of persons invested with official functions such as measurers (meters) and valuers (taxateurs) (Article 28).

COMPLAINTS

The applicant partnership Maatschap Smits (no. 39032/97) complains under Article 8 of the Convention and Article 1 of Protocol No. 1 that the decision of the Government to build the Betuweroute railway at ground level, being motivated solely by considerations of cost and with disregard of less detrimental alternatives, constitutes a disproportionate interference with their rights.

The applicant Mr A.A. Kleyn (no. 39343/98) complains under Article 8 of the Convention and Article 1 of Protocol No. 1 that the Government interfered disproportionately with his rights by disregarding alternatives to building the Betuweroute railway and by not promising him compensation for damage beforehand. He also complains under Article 6 of the Convention that the Administrative Jurisdiction Division of the Council of State is not an “independent and impartial tribunal”.

The applicant company Mettler Toledo B.V. and the other applicants in Application no. 39651/98 complain under Articles 8 of the Convention and 1 of Protocol No. 1 that the necessity for building the Betuweroute railway was never properly established. They further complain, relying on the same provisions, that the interference with their rights was in any event disproportionate. They complain, under Article 6 of the Convention in addition to Articles 8 of the Convention and 1 of Protocol No. 1, that the Administrative Jurisdiction Division failed to appoint independent experts, that the alternative of a gradual enlargement of the capacity of the existing railway system was not considered and that no thorough investigation was made into more environmentally friendly alternatives. Finally, they complain under Article 6 of the Convention that the Administrative Jurisdiction Division is not an “independent and impartial tribunal”.

The applicants Mr and Mrs P.W.N. Raymakers (no. 43147/98) complain under Article 6 of the Convention that the Administrative Jurisdiction Division is not an “independent and impartial tribunal”.

The applicant association Vereniging Landelijk Overleg Betuweroute and the other applicants in Application no. 46664/99 make several complaints under Article 6. They complain that the proceedings were not “fair”, firstly in that interested parties had not been sufficiently involved in the decision-making  process in its initial stages and because their interests were disregarded by a powerful political lobby, secondly in that the Administrative Jurisdiction Division failed to offer the applicant association the opportunity to react to certain arguments of the Government and failed to respond to certain arguments, and finally in that the Administrative Jurisdiction Division is not an “independent and impartial tribunal”. The association complains under Article 8 of the Convention of interferences due to noise, vibration and possible effects on health for which the necessity is not established.  It additionally complains under Article 8 of the Convention and Article 1 of Protocol No. 1 that property is to be expropriated without justification related to the public interest.

The applicant Mr A. van Helden (no. 61707/00) complains under Article 1 of Protocol No. 1 and Article 8 of the Convention that the Netherlands State abuses its expropriation rights in that it does not expropriate plots that are strictly indispensable for the realisation of public works, but systematically opts for the technically cheapest realisation of the Betuweroute railway, which requires the expropriation of the applicant’s plots, whereas by a technically more expensive realisation of this project there would be no need to expropriate the applicant’s land. He further complains under Article 6 of the Convention that he did not receive a fair trial before both the Council of State and the Supreme Court in that they failed to address his argument that, by opting for the cheapest manner to realise the Betuweroute railway, the Netherlands State abuses its powers of expropriation.

THE LAW

The applicants raise various complaints under Articles 6 and 8 of the Convention and under Article 1 of Protocol No. 1.

Article 6 of the Convention, insofar as relevant, provides as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”

Article 8 of the Convention reads:

“1.  Everyone has the right to respect for his private and family life, his home and his correspondence.

2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Article 1 of Protocol No. 1 provides:

“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.”

Noting that the different applications all relate to the same project and raise largely the same complaints, the Court considers it appropriate to join the applications.

 Article 34 of the Convention

1.  The Court observes that, according to Article 34 of the Convention, it may receive applications from “any person, non-governmental organisation or group of individuals claiming to be the victim of a violation ... of the rights set forth in the Convention or the protocols thereto”. In this connection, it observes that the Chamber of Commerce and Industry for South-west Gelderland Province is an agency subordinate to the Government, set up by law and invested with authority to implement law. It is therefore a governmental organisation exercising public authority.

It follows that application No. 39651/98 is inadmissible ratione personae in its entirety insofar as it is brought by this applicant.

2.  As to the question whether all applicants can be regarded as a “victim” within the meaning of Article 34 of the Convention, the Court is of the opinion that this concept must be interpreted autonomously and independently of domestic concepts such as those concerning the interest in taking proceedings or the capacity to do so. In the Court’s opinion, there must be a sufficiently direct link between the applicant and the damage which he or she claims to have sustained as a result of the alleged violation, for an applicant to be able to claim that he or she is the victim of a violation of one or more of the rights and freedoms recognised by the Convention and its Protocols.

The Vereniging Landelijk Overleg Betuweroute is an association whose membership, according to the information provided, consists of a plurality of associations and one foundation. Neither the association itself nor its membership are directly affected by the matters complained of under Articles 8 of the Convention and 1 of Protocol No. 1. Nor, as regards Article 6 of the Convention, were its own “civil rights and obligations” – or for that matter those of its members – at issue in the proceedings before the competent domestic tribunal. It follows that Vereniging Landelijk Overleg Betuweroute and its members cannot claim to be a “victim” of a violation of these provisions in the sense of Article 34 of the Convention.

Its application No. 46664/98, is consequently inadmissible ratione personae in its entirety insofar as it is brought by the Vereniging Landelijk Overleg Betuweroute on its own account and on that of its members.

 Article 35 of the Convention - exhaustion of remedies

As regards the applicants represented by the Vereniging Landelijk Overleg Betuweroute, the Court notes that it does not appear that W.A. Bassa, A.K. Bassa-van der Vliet, C. den Brauen, P.J. de Jongh, H. Kardol-van der Meyden, J.M. Keijman, A.N. de Kreij, J.R. de Kreij, M.L. de Kreij, N.G.C. de Kreij, P.A. de Kreij, F. de Kreij-Duizer, W. de Kreij-Wingelaar, K.A. de Kruis-de Kreij and C. Kuiper (no. 46664/99) filed an appeal against the Routing Decision with the Administrative Jurisdiction Division and have therefore not, as required by Article 35 § 1 of the Convention, exhausted the remedies available under Dutch law.

 Article 35 of the Convention - six months’ rule

As to the applicants A.C. de Kreij, C. de Kreij-van Hoorne, L.C. de Kreij, G. van der Vliet, G.J. van der Vliet-de Kreij, E.D. de Kreij, F. de Kreij-Vonk and J.W. de Kreij, who are also represented by the Vereniging Landelijk Overleg Betuweroute, the Court notes that these applicants have only been mentioned and identified with sufficient clarity in submissions made on 9 October 2000. As the final decision in their case has been taken by the Administrative Jurisdiction Division on 10 December 1997, it follows that the application in respect of these 8 applicants has been introduced after the expiry of the six months’ time-limit set out in Article 35 § 1 of the Convention.

It follows that application No. 46664/98, insofar as it has been brought by these 23 applicants, must be rejected in accordance with Article 35 § 4.

 Article 6 of the Convention

1.The remaining applicants represented by Vereniging Landelijk Overleg Betuweroute complain under Article 6 of the Convention that they were not sufficiently involved in the initial stages of the decision-making process, which made it possible for individuals with political influence to prevail at their expense.

The Court is of the opinion that the matters complained of are not within the field of application of that Article, which applies exclusively to proceedings of a judicial nature. It further considers that the Convention does not, as such, guarantee the right claimed by these applicants.

It follows that this complaint must be rejected for being incompatible ratione materiae with the provisions of the Convention.

2.  With the exception of the applicants in application nos. 39032/97 and 61707/00, all applicants complain under Article 6 § 1 of the Convention that, from an objective point of view, the Administrative Jurisdiction Division of the Council of State cannot be regarded as an “independent and impartial tribunal” in that the Council of State combines both advisory and judicial functions. They refer in this respect to the Court’s findings in its judgment of 28 September 1995 in the case of Procola v. Luxembourg (Series A no. 326).

The Court finds that it cannot, on the basis of the files, determine the admissibility of this complaint at this stage and considers that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this complaint to the respondent Government.

3.The applicants in application No. 39651/98 further complain under Articles 6 and 8 of the Convention and Article 1 of Protocol No. 1 that the Administrative Jurisdiction Division of the Council of State, in the proceedings at issue, failed to appoint independent experts.

The Court considers it appropriate to consider this complaint under Article 6 only since it concerns the conduct of the proceedings before the Administrative Jurisdiction Division. The Court recalls that it is normally for the national courts to decide whether it is necessary to obtain evidence additional to that which is already available (cf, mutatis mutandis,  Bricmont v. Belgium judgment of 7 July 1989, Series A no. 158, § 89; and H. v. France judgment of 24 October 1989, Series A no. 162-A, §§ 60-61).

There are exceptional circumstances which could prompt the Court to conclude that the failure to obtain further evidence was incompatible with Article 6. However, the Court is of the opinion that no grounds have appeared in the present case to form the view that such circumstances exist.  Moreover, it would appear to have been reasonably possible for the applicants themselves, given their number and the fact that they include several incorporated commercial enterprises, to commission expert reports of sufficient quality and scope with a view to submitting them to the Administrative Jurisdiction Division.

In these circumstances, the Court cannot find that, on this point, the proceedings before the Administrative Jurisdiction Division fell short of the requirements of Article 6 of the Convention. It follows that this complaint must be rejected under Article 35 § 3 of the Convention as manifestly ill‑founded.

 Article 8 of the Convention and Article 1 of Protocol No. 1

1.The applicants Maatschap Smits (39032/97), Mr A.A. Kleyn (39343/98), Mettler Toledo B.V., Van Helden Reclame-Artikelen B.V., Mr A. van Helden, Mrs C.H. van Helden-Schimmel, Grasshopper Reclame, Mr A. Hougee, Mrs O.L. Hougee-van Frankfoort, M.C. Gerritse B.V., Texshop B.V., Restaurant De Betuwe B.V., Maasglas B.V., Mr C.M. van Burk, Kuwait Petroleum (Nederland) B.V., Sterk Technisch Adviesbureau B.V., Kleijn Financierings- en Leasemaatschappij B.V., Exploitatiemaatschappij de Zeiving B.V., Ms C.J.P. Kleijn, Ms C.J. Kleijn (39651/98) and Mr A. van Helden (61707/00) complain of an unjustified and disproportionate interference with their rights under Article 8 of the Convention and Article 1 of Protocol No. 1.

Maatschap Smits state that alternatives to building a railway at ground level had been dismissed from the outset on grounds of cost only. While it might be so that a railway sunk into the ground would be more expensive, it was not technically unfeasible; it would still enable the Government to achieve their policy objectives without affecting the homes and property of citizens in their position to an unacceptable degree. In their view, the fact that the cheapest technical solution was chosen at the expense of ordinary citizens made the interference disproportionate.

Mr A.A. Kleyn, Mettler Toledo B.V., Van Helden Reclame-Artikelen B.V., Mr A. van Helden, Mrs C.H. van Helden-Schimmel, Grasshopper Reclame, Mr A. Hougee, Mrs O.L. Hougee-van Frankfoort, M.C. Gerritse B.V., Texshop B.V., Restaurant De Betuwe B.V., Maasglas B.V., Mr C.M. van Burk, Kuwait Petroleum (Nederland) B.V., Sterk Technisch Adviesbureau B.V., Kleijn Financierings- en Leasemaatschappij B.V., Exploitatie-maatschappij de Zeiving B.V., Ms C.J.P. Kleijn, Ms C.J. Kleijn also argued that it was disproportionate that the Government’s decision had been based essentially on considerations of cost. In addition, they made the broader complaint that alternatives not involving the need to build a complete new railway for the transport of goods had been insufficiently considered and that consequently the need for the Betuweroute railway had not been objectively established: a proper macro-economic assessment had not been made. They expressed the view, finally, that the most environmentally friendly alternative ought to have been chosen.

Insofar as the implementation of the Routing Decision requires property to be expropriated, these applicants also argued that the respondent State was under a general obligation to avoid expropriating the property of its citizens if alternatives could be found whereby this could reasonably be achieved.

The Court observes that the complaints under Article 8 and Article 1 of Protocol No. 1 coincide. It accepts that there are interferences with the applicants’ rights under both of these Articles.  For the purposes of Article 1 of Protocol No. 1, it is clear that the interference is in the form of a “deprivation of possessions” insofar as property is to be expropriated.  For the remainder, they take the form of an “interference” with the applicants’ “peaceful enjoyment of [their] possessions”, which is to be considered under the first sentence of Article 1 of Protocol No. 1 (cf. Sporrong and Lönnroth v. Sweden judgment of 23 September 1982, Series A no. 52, § 65).

The applicants do not suggest that the interference complained of lacks a basis in domestic law.  Indeed it is clear that this is not the case. Nor do they argue that the decision to build the Betuweroute railway is not in furtherance of a legitimate aim.  On the basis of the information available, the Court is satisfied that the Government’s purpose is to ensure the continued economic well-being of the country – an aim which is legitimate under both of the Articles concerned (cf., as to Article 8 of the Convention, Powell and Rayner v. the United Kingdom judgment of 21 February 1990, Series A no. 172, § 42; and, as to Article 1 of Protocol No. 1, Pressos Compania Naviera SA and Others v. Belgium judgment of 20 November 1995, Series A no. 332, § 37).

As regards Article 8 of the Convention

2.Concerning Article 8 of the Convention, the remaining question is whether the interference in question can be considered “necessary in a democratic society”.

On this point, the Court recalls that it is for the national authorities to make the initial assessment of the "necessity" for an interference, as regards both the legislative framework and the particular measure of implementation. Although a margin of appreciation is thereby left to the national authorities, their decision remains subject to review by the Court for conformity with the requirements of the Convention. The scope of this margin of appreciation is not identical in each case but will vary according to the context. Relevant factors include the nature of the Convention right in issue, its importance for the individual and the nature of the activities concerned. As regards exercise of discretionary judgment by national authorities in the implementation of planning policies adopted in the interest of the community, it is not for the Court to substitute its own view of what would be the best policy in the planning sphere or the most appropriate individual measure in planning cases. By reason of their direct and continuous contact with the vital forces of their countries, the national authorities are in principle better placed than an international court to evaluate local needs and conditions. Insofar as the exercise of discretion involving a multitude of local factors is inherent in the choice and implementation of planning policies, the national authorities in principle enjoy a wide margin of appreciation, although it remains open to the Court to conclude that there has been a manifest error of appreciation by the national authorities. In these circumstances, the procedural safeguards available to the individual applicant will be especially material in determining whether the respondent State has, when fixing the regulatory framework, remained within its margin of appreciation. In particular, it must examine whether the decision-making process leading to measures of interference was fair and such as to afford due respect to the interests safeguarded to the individual by Article 8 when balanced against the general interest of the community (cf. Powell and Rayner v. the United Kingdom judgment of 21 February 1990, Series A no. 172, p. 19, § 44; Buckley v. United Kingdom judgment of 25 September 1996, Reports 1996-IV, §§ 74‑75; and Jane Smith v. the United Kingdom [GC], no. 25154/94, 18.1.2001, §§ 97-99).

All applicants concerned have expressed the fear that they will suffer interferences with their rights under Article 8 in that once it is operational the railway will cause them damage, variously in the form of noise, vibration and pollution. Some applicants fear that it may cause them danger.

These possible harmful effects were investigated by the Netherlands authorities at all stages of the planning process. Already when Outline Planning Decision part 1 was laid open for public inspection, it was accompanied by an environmental impact report prepared by the NS and lower government bodies and the public were invited to comment. The comments received were included in the revised Outline Planning Decision (Outline Planning Decision part 2) as were the views of a plurality of specialised Government agencies. The project was reviewed in its entirety by Parliament when it discussed Outline Planning Decision part 3 and changes were made in response to wishes expressed in Parliament. Considerable public expenditure was envisaged in Outline Planning Decision part 4 to meet problems not perceived, or not perceived as such at the initial stages. Amongst other things, an amount of NLG 375 million was reserved in response to special requests of individuals and local government bodies.

The expected detrimental effects were carefully considered by the respondent Government. Thus, the Government committed itself to observe specific and detailed environmental and safety standards and to undertake direct monitoring where standards were absent.

The applicants were able to have the project reviewed by the Administrative Jurisdiction of the Council of State twice: once when (with the exception of Kuwait Petroleum Nederland B.V.) they appealed against Outline Planning Decision part 4 and again when they appealed against the Routing Decision. The Court notes in particular that the appeals of a number of appellants - though none of any of the applicants - against Outline Planning Decision part 4 were successful and led to changes. Moreover, several of the applicants successfully appealed against the Routing Decision. Insofar as the appeals were successful, they led in fact to the reconsideration in detail of relevant parts of the project. While the project was not thereby prevented from going ahead, the Court cannot find on the information available to it that the appeals were for this reason ineffective. It is further significant that special provision has been made for the compensation of damage occasioned by the project, even such damage as does not consist of loss of property.

In these circumstances, the Court cannot find that an unfair balance was struck between the interests involved. It follows that this complaint must be rejected under Article 35 § 3 of the Convention as manifestly ill-founded.

As regards Article 1 of Protocol No. 1

3.Insofar as the interferences with the applicants’ rights under Article 1 of Protocol No. 1 take the form of a “deprivation of possessions”, the Court recalls that such an interference, including one resulting from expropriations intended to secure the realisation of large-scale public-works scheme, must strike a “fair balance” between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights (cf. Aka v. Turkey judgment of 23 September 1998, Reports 1998, § 44).

The Court further recalls that in its former King of Greece and Others judgment of 23 November 2000 ([GC], no. 25701/94, § 87) the following was held:

“The Court is of the opinion that because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is ‘in the public interest’. Under the system of protection established by the Convention, it is thus for the national authorities to make the initial assessment as to the existence of a problem of public concern warranting measures of deprivation of property. Here, as in other fields to which the safeguards of the Convention extend, the national authorities accordingly enjoy a certain margin of appreciation.

Furthermore, the notion of ‘public interest’ is necessarily extensive. In particular, the decision to enact laws expropriating property will commonly involve consideration of political, economic and social issues. The Court, finding it natural that the margin of appreciation available to the legislature in implementing social and economic policies should be a wide one, will respect the legislature’s judgment as to what is ‘in the public interest’ unless that judgment be manifestly without reasonable foundation.”

It follows from these considerations that it cannot be said as a general rule that the State is prevented by Article 1 of Protocol No. 1 from expropriating property merely because lesser alternatives are available. Moreover, on the facts of the present case the Court cannot find that the measures complained of manifestly lack reasonable foundation.

Furthermore, it is apparent that the applicants will be compensated for the possessions in question. In light of the information available, which includes the judgment of the Supreme Court in the matter of the expropriation of property of one of the applicants, the Court does not find it established that the respondent Government will disregard its obligations in this respect; nor indeed do the applicants suggest otherwise. That being so it cannot be said that the expropriation of the applicants’ property constitutes a disproportionate interference with their rights.

The Court will finally consider the interferences with the applicants’ rights under Article 1 of Protocol No. 1 insofar as they fall to be considered under the first sentence of that Article. In so doing the Court “must determine whether a fair balance was struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights” (Sporrong and Lönnroth judgment, loc. cit. § 69; Aka v. Turkey judgment, loc. cit.; and former King of Greece judgment, loc. cit., § 89).

Having regard to its above findings under Article 8 of the Convention, the Court does not find an indication that the respondent Government failed to strike such a balance for the purposes of Article 1 of Protocol No. 1.

It follows that this part of the application must also be rejected under Article 35 § 3 of the Convention as manifestly ill-founded.

For these reasons, the Court unanimously

Decides to join application nos. 39032/97, 39343/98, 39651/98, 43147/98, 46664/99 and 61707/00;

Decides to adjourn the examination of the complaint raised by the applicants A.A. Kleyn (no. 39343/98); Mettler Toledo B.V., Van Helden Reclame-Artikelen B.V., A. van Helden, C.H. van Helden-Schimmel, Grasshopper Reclame, A. Hougee, O.L. Hougee-van Frankfoort, M.C. Gerritse B.V., Texshop B.V., Restaurant De Betuwe B.V., Maasglas B.V., C.M. van Burk, Kuwait Petroleum (Nederland) B.V., Sterk Technisch Adviesbureau B.V., Kleijn Financierings- en Leasemaatschappij B.V., Exploitatiemaatschappij de Zeiving B.V., C.J.P. Kleijn, P.M. Kleijn, and C.J. Kleijn (no. 39651/98); M.A.J.E. Raymakers and P.W.N. Raymakers-Spreeuwenberg (no. 43147/98); A.J.Th. Berndsen, B.A.G. Berndsen-Wezendonk, P. Bunschoten, W.F. van Duyn, C.J. Hanhart, J.H. Kardol, C. de Kreij, G.J. van Lent, G. van Lent-de Kroon, S.J.B.A. Pompen, Maatschap Takel- en Bergingsbedrijf Hanhart, C.M.M. Wennekes and M. Witvliet (no. 46664/99) that the Administrative Jurisdiction Division, in the proceedings at issue, cannot be regarded as an independent and impartial tribunal within the meaning of Article 6 § 1 of the Convention;

Disjoins and Declares inadmissible application nos. 39032/97 and 61707/00; and

Declares inadmissible the remainder of the other applications.

Michael O’BoyleElisabeth Palm
RegistrarPresident

MEMBERS OF THE VERENIGING

LANDELIJK OVERLEG BETUWEROUTE :

1.    Actiegroep Tunneltracé TielAktiegroep De Giessen

3.    Belangengroep Wadenoijen

4.    Belangenvereniging De Kloeve

5.    Betuwe Fijn

6.    Betuwelijn Midden-Betuwe

7.    Betuwelijn so nicht

8.    Betuwelijn uit Meteren

9.    Bewonersorganisatie Pendrecht

10.  Boerenhoek vereniging i.o.

11.  Brummen tegen Aftakking

12.  Buurtschap Leuven

13.  Comité NA Blijn Zutphen

14.  Groessen in Protest

15.  Ha-Gi-Variant: Nee!

16.  KATER (Kerk-Avezaath tegen Rails)

17.  MOL

18.  Niet Over De Betuwe

19.  RONA

20.  Schelluinen Spoorloos

21.  Stichting Dorp Wijngaarden

22.  Tijd. Aftak. Rheden

23.  Vereniging Milieu Belangen

24.  Vereniging tot Behoud van het Lingelandschap

25.  Werkgroep BAR

26.  Zwijndrechtsewaard Leefbaar

APPLICANTS REPRESENTED BY THE VERENIGING LANDELIJK OVERLEG BETUWEROUTE :

Name :Place of residence:

27.  W.A. BassaSchelluinen

28.  A.K. Bassa-van der VlietSchelluinen

29.  A.J.Th. BerndsenGroessen

30.  B.A.G. Berndsen-WezendonkGroessen

31.  C. den BrauenSchelluinen

32.  P. BunschotenAndelst

33.  W.F. van DuynIJzendoorn

34.  C.J. HanhartTiel

35.  P.J. de JonghMeteren

36.  J.H. KardolMeteren

37.  H. Kardol-van der MeydenMeteren

38.  J.M. KeijmanTiel

39.  A.C. de KreijGiessenburg

40.  A.N. de KreijGiessenburg

41.  C. de KreijGiessenburg

42.  E.D. de KreijGiessenburg

43.  J.R. de KreijGiessenburg

44.  J.W. de KreijGiessenburg

45.  K.A. de KreijGiessenburg

46.  L.C. de KreijGiessenburg

47.  M.L. de KreijGiessenburg

48.  N.G.C. de KreijGiessenburg

49.  P.A. de KreijGiessenburg

50.  F. de Kreij-DuizerGorinchem

51.  C. de Kreij-van HoorneGiessenburg

52.  F. de Kreij-VonkGiessenburg

53.  W. de Kreij-WingelaarGiessenburg

54.  K.A. Kruis-de KreijGiessenburg

55.  C. KuiperMeteren

56.  G.J. van LentOchten             

57.  G. van Lent-de KroonEchteld

58.  S.J.B.A. PompenTiel

59.  Maatschap Takel- en Bergingsbedrijf Hanhart    Tiel

60.  G. van der VlietSchelluinen

61.  G.J. van der Vliet-de KreijSchelluinen

62.  C.M.M. WennekesAndelst

63.  M. WitvlietKesteren

Full & Egal Universal Law Academy