Application No. 26330/95
by Technisch Installatiebureau
Van Der Moezel B.V.
against the Netherlands
The European Commission of Human Rights (Second Chamber) sitting
in private on 3 December 1996, the following members being present:
Mrs. G.H. THUNE, President
MM. J.-C. GEUS
G. JÖRUNDSSON
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
Ms. M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 19 December 1994
by Technisch Installatiebureau Van der Moezel B.V. against the
Netherlands and registered on 27 January 1995 under file No. 26330/95;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a company with limited liability, having its
registered seat in Schiedam, the Netherlands. Before the Commission,
the applicant company is represented by Mr G.J. Schipper, a lawyer
practising in Rotterdam.
The facts of the case, as submitted by the applicant company, may
be summarised as follows.
In 1985 the applicant company subcontracted certain works to
another company S. and paid a total amount of 45.282,45 Dutch guilders
for social security contributions to a special bank account held by S.
for this purpose, a so-called "G-account" (G-rekening) within the
meaning of Section 16 (b) para. 5 of the Social Security Co-ordination
Act (Coördinatiewet Sociale Verzekeringen).
On 16 September 1986 S. was declared bankrupt. It then appeared
that S. had not or not fully paid the social security premiums due in
the year 1985 to the Occupational Association for the Metal Industry
(Bedrijfsvereniging voor de Metaalnijverheid). The Occupational
Association, together with the Inspectorate of Wage Taxes (Inspectie
Loonbelasting), subsequently started an investigation into the amount
of S.'s debt to the Occupational Association and the possibilities of
obtaining redress. In this context, agents of both organs inspected the
applicant company's premises and accounts in the beginning of 1987.
The investigation was closed on 6 August 1987. In the report on
the investigation it was concluded that the applicant company, together
with fifteen others, could be held jointly and severally liable for the
debts of S. in respect of the social security contributions.
By letter of 26 October 1989, the Occupational Association
informed the applicant company of its intention to hold the applicant
company liable for payment of a part of S.'s social security
contributions debt. The applicant company was invited to submit its
possible objections within four weeks. The applicant company submitted
an objection by letter of 20 November 1989 without indicating any legal
grounds. It was explained that for the time being the company was
unable to comment on the merits of the case, as it could not reach its
former director.
On 21 December 1990 the Occupational Association issued a formal
decision in which the applicant company was held liable for a part of
S.'s social security contributions debt.
On 18 January 1991 the applicant company filed an appeal against
this formal decision with the Appeals Tribunal (Raad van Beroep) of
Rotterdam. Its grounds of appeal were submitted on 15 August 1991.
The Occupational Association replied to these grounds on 12
November 1991. The applicant company submitted a counter-memorial on
3 January 1992.
Following a change in procedural rules of administrative law, the
examination of the applicant company's appeal was transferred on 1 July
1992 from the Appeals Tribunal to the Administrative Law Division of
the Regional Court (Sector Bestuursrecht Arrondissementsrechtbank) of
Rotterdam.
On 27 May 1993, following a hearing, the Administrative Law
Division of the Regional Court of Rotterdam rejected the appeal as ill-
founded. A copy of this decision was sent to the parties on 9 June
1993.
The applicant company filed an appeal against this decision with
the Central Appeals Tribunal (Centrale Raad van Beroep) on 5 July 1993.
One of its grounds of appeal was that the period of time which had
elapsed between 6 August 1987, when the investigation was closed, and
26 October 1989, when the Occupational Association informed the
applicant company for the first time of its intention to seek payment,
constituted an unreasonable delay contrary to Article 6 para. 1 of the
Convention.
On 5 November 1993 the Central Appeals Tribunal transmitted the
applicant company's grounds of appeal to the Occupational Association
for comments. These comments were submitted on 18 January 1994.
Following a hearing held on 18 May 1994, the Central Appeals
Tribunal rejected the appeal on 22 June 1994 and upheld the Regional
Court's decision of 27 May 1993. As regards the complaint under Article
6 para. 1 of the Convention, the Central Appeals Tribunal held that the
Occupational Association's course of action concerning its liability
claim against the applicant company could not really be labelled
expeditious. It did not, however, find that as a consequence thereof
the Occupational Association's claim should be rejected.
COMPLAINTS
1. The applicant company complains under Article 6 para. 1 of the
Convention that its civil rights and obligations have not been
determined within a reasonable time. It complains in particular of the
delay which occurred between the investigation of its premises and
accounts in the beginning of 1987 and the written liability claim of
26 October 1989 and the further delay between the letter of 26 October
1989 and the formal decision which was issued on 21 December 1990.
2. The applicant company further complains that, since the
Occupational Association was able to delay the access to a court of
appeal by withholding the formal decision, it had been deprived of a
fair hearing within the meaning of Article 6 para. 1 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 19 December 1994 and registered
on 27 January 1995.
On 11 April 1996 the Commission decided to communicate the
application to the respondent Government.
In a letter dated 9 July 1996 the Government informed the
Commission that they were prepared to consider a friendly settlement
with the applicant company on the basis that they would reimburse the
costs incurred by the applicant company in the proceedings before the
Commission insofar as they were reasonable and specified and not
covered by legal aid paid for by authorities in the Netherlands and/or
by the Council of Europe, and that they would pay the applicant company
an ex gratia sum of 2,500 Dutch guilders.
On 16 October 1996 the applicant company confirmed that as a
consequence of the settlement with the Government it wished to withdraw
the application.
REASONS
Having regard to Article 30 para. 1 (a) of the Convention, the
Commission notes that, by letter of 16 October 1996, the applicant
company informed the Commission that it does not intend to pursue its
application since it has reached a settlement with the respondent
Government. The Commission finds no special circumstances regarding
respect for human rights as defined in the Convention which require
examination of the application to be continued, in accordance with
Article 30 para. 1 in fine of the Convention.
For these reasons, the Commission, unanimously,
DECIDES TO STRIKE THE APPLICATION OUT OF ITS LIST OF CASES.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy