THIRD SECTION
Application no. 63072/10
Jan STOLK against the Netherlands
lodged on 8 October 2010
STATEMENT OF FACTS
1. The applicant, Mr Jan Stolk, is a Netherlands national, who was born in 1957 and lives in Utrecht. He is represented before the Court by Mr A.M.J. Brands, a lawyer practising in Oegstgeest.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. From January 2003 the applicant worked for a design and consultancy agency specialised in urban planning. At the relevant time, the owner of the agency was self-employed and was employing two other persons including the applicant.
4. On 17 February 2010 the applicant’s employer (hereafter: “the employer”) requested the Employee Insurance Schemes Implementing Body (Uitvoeringsinstituut Werknemersverzekeringen) to authorise the termination of the applicant’s employment contract. Such authorisation may be requested and granted under the Extraordinary Labour Relations Decree 1945 (Buitengewoon Besluit Arbeidsverhoudingen 1945; see below). The employer’s request was based on altered business circumstances (veranderde bedrijfeconomische omstandigheden).
5. On 24 March 2010 the applicant submitted a statement of defence (verweer) to the Employee Insurance Schemes Implementing Body, arguing that it appeared from that organisation’s policy rules that a request for authorisation on the basis of altered business circumstances should be substantiated by relevant figures regarding the turnover, the costs and the results of the business per month for the last three years, which figures the employer had failed to include in his request. He further argued that there was a chance that the agency would be awarded two new projects and that there was a fair chance that any delay in ongoing projects had been caused by administrative proceedings instead of economic circumstances so that the decrease in available work would constitute normal business risk (normale bedrijfsrisico).
6. On 2 April 2010 the employer stated that the ongoing projects were nearly finished and that due to the economic crisis much work had disappeared over a short period of time, that he had submitted the figures over the years 2008 and 2009, that the drop in available work did not concern a temporary lapse which could be considered normal business risk, and lastly, that his other employee, thanks to his qualifications, was able to carry out all business activities independently, unlike the applicant.
7. On 16 April 2010 the applicant submitted a second statement of defence to the Employee Insurance Schemes Implementing Body, arguing, inter alia, that the employer’s statements concerning the agency’s prospects had not been substantiated.
8. On 20 April 2010 the applicant received both the acknowledgement of receipt of the second statement of defence and the Employee Insurance Schemes Implementing Body’s decision authorising his employer to terminate his employment contract.
9. On 22 April 2010 the applicant received a letter from his employer terminating his employment contract as of 1 August 2010.
B. Relevant domestic law and practice
10. Provisions of domestic legislation, relevant to the case and as applicable at the relevant time, are the following.
1. The Employee Insurance Schemes Implementing Body
11. The Employee Insurance Schemes Implementing Body is a non‑departmental administrative body (zelfstandig bestuursorgaan) – i.e. an administrative body not subordinate to any particular Minister – under Netherlands law (section 4 of the Work and Income (Implementation Structure) Act (Wet structuur uitvoeringsorganisatie werk en inkomen)). It is responsible not only for implementing social-security legislation, but also for exercising the tasks imposed on it by section 6 of the Extraordinary Labour Relations Decree 1945.
2. The Extraordinary Labour Relations Decree 1945
“Section 6
1. The employer requires for the termination of the employment relationship prior authorisation of the Employee Insurance Schemes Implementing Body.
2. The employer does not require this authorisation:
a. if the termination takes place without delay (onverwijld) for an urgent reason, under simultaneous notice of this reason to the employee;
b. during the probationary period;
c. if the termination takes place as a result of bankruptcy of the employer or if a debt rescheduling scheme concerning natural persons is applied to him.
3. By ministerial regulation (ministeriële regeling) rules are set out concerning the authorisation within the meaning of paragraph one.
4. Before a decision regarding the giving of authorisation pursuant to paragraph one is taken, the Employee Insurance Schemes Implementing Body will hear representatives of the appropriate employer and employee organisations except in cases provided for by ministerial regulation.
5. Our Minister [of Social Affairs and Employment (Minister van Sociale Zaken en Werkgelegenheid)] may provide the Employee Insurance Schemes Implementing Body with indications concerning the power to give authorisation within the meaning of paragraph one. He does not enter into the decision-making in individual cases.
6. By ministerial regulation provisions can be made in case the Employee Insurance Schemes Implementing Body does not properly fulfil its obligations that flow from this section.
...
9. By ministerial regulation certain employees or groups of employees can be conditionally or unconditionally dispensed or exempted from paragraph one.
10. No appeal to the Industrial Appeals Tribunal (College van Beroep voor het Bedrijfsleven) lies against decisions of the Employee Insurance Schemes Implementing Body regarding the giving of authorisation pursuant to paragraph one.”
12. Detailed rules for this procedure have been set out in the Dismissals Decree (Ontslagbesluit).
13. The authorisation of the Employee Insurance Schemes Implementing Body constitutes a decision within the meaning of the General Administrative Law Act (Algemene wet bestuursrecht). This Act generally gives the right to a judicial examination of such decisions; however, decisions made pursuant to section 6 of the Extraordinary Labour Relations Decree 1945 are excluded from the possibility to appeal (section 8:5, paragraph one, in conjunction with Annex F, paragraph one of the General Administrative Law Act).
COMPLAINT
14. The applicant complains under Article 6 of the Convention that Netherlands legislation denied him a judicial examination of the Employee Insurance Schemes Implementing Body’s decision to authorise the termination of his employment contract.
QUESTIONS TO THE PARTIES
Questions of fact
1. Are there any legal procedures available for an employee to challenge the authorisation for his or her dismissal given by the Employee Insurance Schemes Implementing Body (Uitvoeringsinstituut Werknemersverzekeringen) under section 6 of the Extraordinary Labour Relations Decree 1945 (Buitengewoon Besluit Arbeidsverhoudingen 1945)?
2. In particular, have there been any cases in which an employee has successfully invoked the nullity of the authorisation of the Employee Insurance Schemes Implementing Body?
Questions of law
3. Is Article 6 § 1 of the Convention applicable to the proceedings in the present case?
4. Do the procedures available to the applicant in order to challenge the authorisation for his dismissal given by the Employee Insurance Schemes Implementing Body, taken singly or in combination, satisfy Article 6 of the Convention (“access to a court”)?
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