Communicated on 22 November 2017
THIRD SECTION
Application no. 19732/17
STICHTING LANDGOED STEENBERGEN and Others
against the Netherlands
lodged on 2 March 2017
STATEMENT OF FACTS
1. A list of the applicants is set out in the appendix.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
3. The three individual applicants live in the municipality of Heerde, which is located in the province of Gelderland. The applicant foundation owns an estate in the municipality of Heerde on which a study centre is run.
4. A motocross track, which is operated by a motocross association (hereinafter: “the association”), is located in close proximity to the applicants’ premises and land. Since 19 May 1987 the association has been operating under a permit granted by the Provincial Executive (Gedeputeerde Staten) of the province of Gelderland which allows the motocross track to operate on Wednesdays and Saturdays from 1 p.m. to 7 p.m. and, from April to October, on a further two weekdays from 2 p.m. to 7 p.m.
5. The association and the applicants’ premises are (partially) located within the so-called Natura 2000 area (a Special Area of Conservation, designated under the EU Habitats Directive). The applicants claim that they can hear the motocross bikes from their premises and land.
6. On 27 September 2013, the association asked the province of Gelderland to issue it with a new permit under the 1998 Nature Conservation Act (Natuurbeschermingswet 1998) that would allow it to expand its activities, entailing a larger number of motocross bikes and extended opening hours.
7. On 4 December 2013, the Provincial Executive published on its website a notification that it intended to grant the requested permit and that the draft decision and the relevant documents could be viewed from 9 December 2013 until 20 January 2014 at the provincial government building and via its website. Interested parties were given the opportunity to submit their views on the draft decision, either in writing or orally, before 20 January 2014, and more information about this could be found at the bottom of the draft decision itself.
8. No views having been received, the Provincial Executive issued the permit on 27 January 2014. It published a notification of the decision on its website, saying that the decision and the relevant documents could be viewed from 30 January until 13 March 2014 at the provincial government building and via the aforementioned website. Interested parties could appeal against the decision before 13 March 2014 and more information about this could be found at the bottom of the decision itself.
9. The applicants first became aware of the decision granting the new permit on 4 November 2014. On 12 November 2014 they lodged an appeal against the decision with the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State) (hereinafter: “the Administrative Jurisdiction Division”). They stated that it was unclear whether the notifications of the draft decision and the decision had actually been published. In addition, they submitted that the fact that their appeal had been lodged outside the legal time-limit and that they had not submitted any comments on the draft decision was excusable because publication of the notification on a provincial government website could not be regarded as publication in “some other suitable manner” as required by section 3:12 paragraph 1 of the General Administrative Law Act (Algemene wet bestuursrecht; see paragraph 16 below). Citizens of the Netherlands could not be expected, or might not be able, to monitor all the websites of all local and regional authorities. For that reason their right of access to court under Article 6 of the Convention had been breached.
10. On the merits of the case, the applicants contended that they were interested parties as referred to in section 1:2 paragraph 1 of the General Administrative Law Act because they lived in the vicinity of the Natura 2000 area and had an interest in the quality of their environment. The new permit would result in disproportionate amounts of noise, pollution and indirect nuisance and have a significant detrimental effect on the conservation objective of the Natura 2000 area. According to the applicants, the Provincial Executive had not properly investigated the potentially negative side-effects of the new permit.
11. In reply the Provincial Executive stated that the notifications of both the draft decision and the decision had been published correctly. It submitted two screenshots taken from an archiving website[1] which showed the notifications of the draft decision and the decision. The Provincial Executive also contended that the electronic publication of the notifications had complied with the provisions of the General Administrative Law Act and the 2012 Gelderland Province Electronic Notification Directive (Verordening elektronische bekendmaking Gelderland 2012; hereinafter: “the Electronic Notification Directive”) which specifically provided for electronic publication. Moreover, given the accessibility of the Internet, the Provincial Executive was of the view that there had been no violation of Article 6 of the Convention.
12. In a ruling of 7 September 2016, the Administrative Jurisdiction Division held, with reference to its case-law (see paragraph 19 below), that notification of a draft decision via the Internet could constitute a suitable manner of notification, but that the applicable provisions of the General Administrative Law Act required that notification of a draft decision also be given in at least one non-electronic manner, unless a statutory provision provided otherwise. The applicants’ argument that electronic notification was not a suitable manner of notification did not give the Administrative Jurisdiction Division cause to reconsider this case-law.
13. Furthermore, it considered that its case-law was not at odds with Article 6 of the Convention. Referring to the Court’s case-law (Ashingdane v. the United Kingdom, 28 May 1985, Series A no. 93), it stated that Article 6 did not entail an absolute right of access to court and that States had a certain margin of appreciation when laying down regulations limiting access to court, as long as such limitations did not impair the very essence of the right of access to court, pursued a legitimate aim, and complied with the requirement of proportionality. The Administrative Jurisdiction Division acknowledged that it was possible for the manner of notification of a decision to restrict the right of access to court to an extent incompatible with Article 6; for example when notification was given in such an insufficient manner that an interested party was not able to turn to a court or to do so in time. In the opinion of the Administrative Jurisdiction Division, such a situation did not arise when notification of a decision was given electronically only, and it could therefore not be said that the essence of the right to a court was impaired. By allowing notification of a decision by electronic means only, the legislator had attempted to facilitate easier and faster communication between citizens and the administrative authorities. The underlying thought behind this was that such electronic communication could significantly contribute to the objective of achieving a more accessible and better functioning government, which was a legitimate aim.
14. The Administrative Jurisdiction Division found that the applicants’ argument offered no grounds for holding that the requirement of proportionality had not been complied with and concluded that the possibility of giving notification of decisions by electronic means only was not in breach of Article 6.
15. The Administrative Jurisdiction Division went on to note that the Electronic Notification Directive had entered into force before the impugned decision had been taken. There had therefore existed a statutory provision providing for notification of decisions by electronic means only. For that reason it considered that it was in principle not unacceptable that notification of the decision had only been published on the provincial government website. Moreover, the applicants had not made a plausible case for believing that the archiving website used by the Provincial Executive and other administrative authorities was unreliable or that it did not provide a proper overview of notifications that had previously been published on the government website. The Administrative Jurisdiction Division considered it sufficiently established that notifications of both the draft decision and the decision had been published on the provincial website. The applicants could therefore reasonably be considered to have been at fault for not having submitted any views on the draft decision and for having lodged their appeal too late. That appeal was, accordingly, inadmissible.
B. Relevant domestic law and practice
16. The rules governing the publication of draft decisions and decisions are set out in Chapter 3 of the General Administrative Law Act.
As regards draft decisions, the first paragraph of section 3:11 provides:
“The administrative authority shall deposit the draft decision for inspection, together with the relevant documents which are reasonably necessary to assess the draft.”
Section 3:12 paragraph 1 of the General Administrative Law Act concerns the manner in which a deposition for inspection is to be notified to the public:
“Prior to the deposition for inspection, the administrative authority shall give notice of the draft decision in one or more daily or weekly newspapers or free local papers or in some other suitable manner. Only the substance of the draft decision need be stated.”
17. Section 42 paragraph 3 of the Nature Conservation Act concerns the manner in which a decision is to be notified to the public:
“The authority authorised to grant a permit in accordance with Sections 16 and 19 shall publish notification of a decision to grant, modify or withdraw a permit in one or more daily or weekly newspapers or free local papers or in some other suitable manner. Only the substance of the draft decision need be stated”
18. A notification of a (draft) decision is a communication within the meaning of section 2:14 paragraph 2 of the General Administrative Law Act, according to the drafting history of this provision. It provides as follows:
“Unless otherwise provided by law, communications not addressed by name to one or more persons shall not be sent by electronic means only.”
19. In a judgment of 15 August 2012 (ECLI:NL:RVS:2012:BX4676), the Administrative Jurisdiction Division held that notification of a draft decision via the Internet constituted a suitable manner of notification within the meaning of section 3:12 paragraph 1 of the General Administrative Law Act. However, it followed from section 2:14 paragraph 2 of that Act that notification of a draft decision was also to be given in at least one non‑electronic manner unless a statutory provision providing otherwise was in force.
20. The Electronic Notification Directive was adopted by the Gelderland Provincial Council (Provinciale Staten) on 26 September 2012. Notification of that adoption was published in the Official Gazette (Staatscourant), and the text of the Directive was published in the Gelderland Provincial Journal. The item in the Official Gazette was accompanied by an explanation (toelichting), stating that the Directive constituted a codification of the practice − which had been in existence since 1 October 2011 − whereby notifications of provincial decisions were no longer published in local newspapers but electronically only.
Section 2 of the Electronic Notification Directive reads as follows:
“It is permissible for notifications of announcements, applications, draft decisions and decisions to be published by electronic means only.”
COMPLAINTS
21. The applicants complain under Article 6 of the Convention of a violation of their right of access to court. According to the applicants, they cannot be expected to monitor notifications that are only published electronically so as to be able to make use of legal remedies in a timely fashion. They point out that, as not everybody has access to the Internet, notification solely by electronic means impaired the very essence of the right of access to court. Moreover, the Electronic Notification Directive did not determine where electronic notifications were to be published and did not clarify whether or not the Provincial Executive would opt for this method of publication. Therefore, there was an insufficiently clear basis in law for electronic publication.
22. In addition, the applicants complain under Article 6 in conjunction with Article 13 of the Convention that the Administrative Jurisdiction Division provided insufficient reasons for its rejection of their claim that the Provincial Executive had not established that the notifications had actually been published on the provincial website.
23. The applicants lastly complain that a general, electronically published notification provides insufficient opportunity for their interests to be taken into account in the decision-making process, as required by Article 8 of the Convention.
QUESTIONS TO THE PARTIES
1a. Was Article 6 § 1 of the Convention under its civil head applicable to the proceedings in the present case?
1b. If the previous question is answered in the negative, did or do the applicants have other possibilities to challenge the alleged negative consequences of the decision before a court?
1c. If question 1a. is answered in the affirmative, was the applicants’ right of access to court sufficiently guaranteed?
2a. Have the applicants exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention, as regards the complaint under Article 8 of the Convention?
2b. If the previous question is answered in the affirmative, was due weight accorded to the interests of the applicants (see, for instance, Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 99, ECHR 2003‑VIII)?
Appendix
1. STICHTING LANDGOED STEENBERGEN is a foundation with legal personality under Netherlands law which is represented by R.S. Wertheim
2. Andreas BOTTEMA is a Dutch national who was born in 1961, lives in Wapenveld and is represented by R.S. Wertheim
3. Hermine Sofia Maria VAN VEEN is a Dutch national who was born in 1963, lives in Wapenveld and is represented by R.S. Wertheim
4. Walter Henricus Franciscus VENDEL is a Dutch national who was born in 1962, lives in Wapenveld and is represented by R.S. Wertheim
[1]. The website concerned is used by most local and regional authorities in the Netherlands for the digital archiving of content from their websites where such is required pursuant to the 1995 Archives Act (Archiefwet 1995).
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