EUROPEAN COMMISSION OF HUMAN RIGHTS
SECOND CHAMBER
Application No. 20641/92
Terra Woningen B.V.
against
the Netherlands
REPORT OF THE COMMISSION
(adopted on 5 April 1995)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1 - 15) . . . . . . . . . . . . . . . . . . . . . . . 1
A. The application
(paras. 2 - 4) . . . . . . . . . . . . . . . . . . . . . 1
B. The proceedings
(paras. 5 - 10). . . . . . . . . . . . . . . . . . . . . 1
C. The present Report
(paras. 11 - 15) . . . . . . . . . . . . . . . . . . . . 2
II. ESTABLISHMENT OF THE FACTS
(paras. 16 - 35). . . . . . . . . . . . . . . . . . . . . . . 3
A. The particular circumstances of the case
(paras. 16 - 30) . . . . . . . . . . . . . . . . . . . . 3
B. Relevant domestic law
(paras. 31 - 35) . . . . . . . . . . . . . . . . . . . . 6
III. OPINION OF THE COMMISSION
(paras. 36 - 51). . . . . . . . . . . . . . . . . . . . . . . 7
A. Complaints declared admissible
(para. 36) . . . . . . . . . . . . . . . . . . . . . . . 7
B. Points at issue
(para. 37) . . . . . . . . . . . . . . . . . . . . . . . 7
C. As regards Article 6 para. 1 of the Convention
(paras. 38 - 45) . . . . . . . . . . . . . . . . . . . . 7
CONCLUSION
(para. 46) . . . . . . . . . . . . . . . . . . . . . . . 8
D. As regards Article 13 of the Convention
(paras. 47 - 48) . . . . . . . . . . . . . . . . . . . . 9
CONCLUSION
(para. 49) . . . . . . . . . . . . . . . . . . . . . . . 9
E. Recapitulation
(paras. 50 - 51) . . . . . . . . . . . . . . . . . . . . 9
DISSENTING OPINION OF MR. S. TRECHSEL . . . . . . . . . . . . . . .10
APPENDIX: DECISION AS TO THE ADMISSIBILITY
OF THE APPLICATION . . . . . . . . . . . . . . . . . . .11
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicant is a Dutch company with limited liability having
its registered seat in The Hague. It was represented before the
Commission by Mr. Wilhelmus M.P.M. Weerdesteijn, a lawyer practising
in Rotterdam.
3. The application is directed against the Netherlands. The
respondent Government were represented by their Agent,
Mr. Karel de Vey Mestdagh, of the Netherlands Ministry of Foreign
Affairs.
4. The case concerns civil proceedings in which the District Court
judge reduced the rent of an apartment owned by the applicant company
by about 50% as the soil under the apartment building was found to be
polluted. In the determination of the rent the District Court judge
considered himself bound by an assessment of the gravity of the soil
pollution by the provincial authorities. The applicant company invokes
Article 6 para. 1 and Article 13 of the Convention.
B. The proceedings
5. The application was introduced on 9 September 1992 and registered
on 16 September 1992.
6. On 8 January 1993 the Commission (Second Chamber) decided,
pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give
notice of the application to the respondent Government and to invite
the parties to submit written observations on its admissibility and
merits.
7. The Government's observations were submitted on 2 April 1993.
The applicant company replied on 10 August 1993.
8. On 5 July 1994 the Commission declared admissible the applicant
company's complaints under Article 6 para. 1 and Article 13 of the
Convention. It declared the remainder of the application inadmissible.
9. The text of the Commission's decision on admissibility was sent
to the parties on 20 July 1994 and they were invited to submit such
further information or observations on the merits as they wished. The
applicant company submitted observations on 23 September 1994,
15 November 1994 and 4 January 1995.
10. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, also placed
itself at the disposal of the parties with a view to securing a
friendly settlement. In the light of the parties' reaction, the
Commission now finds that there is no basis on which such a settlement
can be effected.
C. The present Report
11. The present Report has been drawn up by the Commission (Second
Chamber) in pursuance of Article 31 of the Convention and after
deliberations and votes, the following members being present:
Mr. H. DANELIUS, President
Mrs. G.H. THUNE
MM. G. JÖRUNDSSON
S. TRECHSEL
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
12. The text of this Report was adopted on 5 April 1995 by the
Commission and is now transmitted to the Committee of Ministers of the
Council of Europe, in accordance with Article 31 para. 2 of the
Convention.
13. The purpose of the Report, pursuant to Article 31 of the
Convention, is:
(i) to establish the facts, and
(ii) to state an opinion as to whether the facts found disclose
a breach by the State concerned of its obligations under
the Convention.
14. The Commission's decision on the admissibility of the application
is attached as an Appendix.
15. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. The particular circumstances of the case
16. The applicant company owns six apartment buildings, in which
there are 288 flats. The buildings are situated at the Merellaan in
the Municipality of Maassluis. On 18 April 1990 the applicant company
concluded an agreement with Mr. W. under which the latter rented a flat
on the third floor in one of the buildings from 1 May 1990, the rent
being 790,25 Dutch guilders per month.
17. On 9 July 1990 Mr. W. asked the Rent Board (Huurcommissie) of
Schiedam for a decision as to whether the rent was reasonable, in view
of, inter alia, the soil pollution in the area where the buildings are
located.
18. On 17 April 1991 the Rent Board, assessing the quality of the
flat under the housing accommodation point-rating system (woning-
waarderingsstelsel) as set out in Annex I to the Ordinance implementing
the Act on Rents for Housing Accommodation (Besluit Huurprijzenwet
Woonruimte) at 134 points, found that the agreed rent was excessive and
decided that a monthly rent of 783,07 Dutch guilders was reasonable.
19. The applicant company then requested the District Court judge
(kantonrechter) of Schiedam to confirm the rent which had been agreed
between the parties, i.e. 790,25 Dutch guilders, increased by
permissible annual supplements to 832,14 Dutch guilders. However, on
10 March 1992 the District Court judge determined the rent at
399,75 Dutch guilders per month.
20. The District Court judge based his decision on certain principles
laid down in the Ordinance implementing the Act on Rents for Housing
Accommodation.
21. Annex IV to this Ordinance contains a list of particularly
serious deficiencies, the so-called "absolute zero conditions"
(absoluut nulpunt) which could lead to a reduction of the rent to a
minimum reasonable level. Point 4 of this Annex reads:
[Dutch]
"Het nader onderzoek in het kader van de Interimwet
bodemsanering heeft aangegeven dat er sprake is van een
zodanige verontreiniging van de bodem onder of in de
directe omgeving van de woning, dat er ernstig gevaar voor
de volksgezondheid of het milieu bestaat."
[Translation]
"The further investigation in accordance with the Interim
Act on Soil Cleaning has shown the existence of such
pollution of the soil under or in the direct vicinity of
the dwelling as to constitute a serious threat to public
health or environment."
22. The building concerned is located in an area where, following an
indicative examination of the soil in 1985, the Central Environmental
Management Service Rijnmond (Dienst Centraal Milieubeheer Rijnmond)
carried out an investigation of the soil under the Interim Act on Soil
Cleaning (Interimwet Bodemsanering). A report on the subsequent further
investigation by the Central Environmental Management Service Rijnmond
under the Interim Act on Soil Cleaning was completed in July 1990.
23. On the basis of the results of this investigation the Provincial
Executive (Gedeputeerde Staten) of Zuid-Holland decided that the soil
should be cleaned and, by letter of 1 November 1990, the Provincial
Executive informed the inhabitants of the area about the pollution of
the soil and about the decision of principle to undertake clean-up
measures.
24. On 26 March 1991 the Provincial Executive transmitted the final
report on the soil investigation to the Mayor and Aldermen
(Burgemeester en Wethouders) of Maassluis and informed them that "the
Provincial Executive finds it desirable to carry out an investigation
regarding the cleaning of the area". In a provincial soil cleaning
programme for 1992 the area was indicated as being subject to the
Interim Act on Soil Cleaning.
25. On this basis, the District Court judge found that this was a
case where the soil is, or risks being, polluted to such an extent that
there is a serious danger to public health or environment within the
meaning of the second sentence of Section 2 para. 1 of the Interim Act
on Soil Cleaning.
26. In the proceedings before the District Court judge, the applicant
company, while referring to the findings in the report on the
investigation of the soil of July 1990 (see para. 22 above) - which
stated, inter alia, that on the basis of the present information the
pollution at issue would not lead to noticeable or measurable health
damage -, had objected that no such danger to public health or
environment in fact existed. It had further argued that the decision
of the Provincial Executive under the Interim Act on Soil Cleaning
should not automatically lead to the conclusion that there was a
so-called "absolute zero condition" as mentioned under point 4 of
Annex IV of the Ordinance implementing the Act on Rents for Housing
Accommodation.
27. In his judgment the District Court judge, however, held that it
was not his task to determine directly or indirectly whether or not the
Provincial Executive's decision was correct and well-founded. He
considered the existence of a serious threat to public health or
environment, an "absolute zero condition", to be a fact established by
the Provincial Executive's decision that a soil cleaning operation
should be carried out in this area. The judgment reads in this regard
as follows:
[Dutch]
"8.3. Met Onze ambtgenoot, in diens door beide partijen
aangehaalde beschikking van 5 juni 1990 (gepubliceerd in
Woonrecht 1990, nr 87), zijn Wij van oordeel, dat het niet
aan Ons is om te onderzoeken of Gedeputeerde Staten terecht
en op goede gronden het besluit hebben genomen, zoals
bedoeld in artikel 2 lid 1, tweede volzin van de IBS. Ook
niet op indirecte wijze, door (van geval tot geval) de
conclusies van het nader onderzoek te wegen in het kader
van de vaststelling of aanwezig is het (absolute) nulpunt,
geformuleerd sub 4 van Bijlage IV van het BHW ....
8.4. Het "ernstig gevaar etc." in de polder is gegeven met de
beslissing van Gedeputeerde Staten tot aanwijzing van deze
locatie als saneringsgeval, en daarmee staat tevens vast, dat
zich dit (identiek geformuleerd) absoluut nulpunt voordoet."
[Translation]
"8.3. Like Our colleague, in his decision of 5 June 1990
referred to by both parties (published in Woonrecht 1990,
No. 87), We are of the opinion that it is not Our task to
examine whether the Provincial Executive has been right in
taking the decision, or has taken it on good grounds, under
Section 2 para. 1, second sentence of the Interim Act on
Soil Cleaning. Not even indirectly by weighing the
conclusions of the investigation (on a case to case basis)
within the framework of establishing whether the (absolute)
zero condition, as formulated under point 4 of Annex IV to
the Ordinance implementing the Act on Rents for Housing
Accommodation, is satisfied ....
8.4. The "serious threat etc." in the polder is an
established fact when the Provincial Executive has decided
that this site shall be subject to cleaning, and it is
thereby also established that the absolute zero condition
(as formulated in an identical manner) is satisfied."
28. The District Court judge subsequently found in favour of the
tenant concerned by deciding to deduct the maximum number of 20 points
for a particularly serious deficiency from the number of points the
flat was assessed at under the residential accommodation point-rating
system. He further set the rent at the minimum reasonable rent
corresponding to the number of points thus determined, i.e. a rent of
399,75 Dutch guilders as from 1 May 1990.
29. Subsequently 269 other tenants of the applicant company have
introduced proceedings in order to have their rents reduced in the same
way. The applicant company alleges that this will mean an annual loss
of rent income amounting to about 1.300.000 Dutch guilders.
30. On 21 July 1992 the District Court judge of Schiedam, in another
case between a tenant and an owner of a house in Maassluis, decided not
to reduce the rent since the Provincial Executive had not yet taken a
decision within the meaning of the second sentence of Section 2 para. 1
of the Interim Act on Soil Cleaning.
B. Relevant domestic law
31. The Act on Rents for Housing Accommodation (Huurprijzenwet
Woonruimte) lays down the rights and obligations between tenants and
landlords in respect of the rents charged for housing accommodation.
The aim of the system adopted in the Act on Rents for Housing
Accommodation is that the rent should as far as possible reflect the
quality of the housing accommodation.
32. Pursuant to Section 5 para. 1(a) of the Ordinance implementing
the Act on Rents for Housing Accommodation the quality will be assessed
on the basis of a housing accommodation point-rating system, which
system is set out in Annex I to the Ordinance. Point 11 of Annex I
contains rules for assessing the quality of housing accommodation in
cases where there is a high nuisance level in the neighbourhood which
has a negative influence on the enjoyment of the accommodation, such
as, inter alia, traffic or industrial noise, serious deterioration of
the neighbourhood or non-incidental pollution of the air or soil, which
could affect the health of residents. If this is the case a maximum of
20 points can be deducted from the points awarded to the accommodation.
33. Annex IV to the Ordinance contains a list of particularly serious
deficiencies, the so-called "absolute zero conditions", which are used
in disputes concerning rent increases or reductions. The presence of
such an "absolute zero condition" makes a rent increase impossible and
can lead to a reduction of the rent to the minimum reasonable level
pertaining to the determined number of points of a particular
accommodation. The minimum reasonable level of rent belonging to a
given number of points is set on a yearly basis and can be found in
Annex III to the Ordinance.
34. Under Section 17 of the Act on Rents for Housing Accommodation
new tenants, within three months following the conclusion of a rent
agreement, can request the Rent Board to assess whether the agreed rent
is reasonable. Under Sections 20 and 23 of the Act both tenants and
landlords can request the Rent Board to determine whether a proposed
change of the rent is reasonable.
35. Both tenants and landlords can file an appeal against the Rent
Board's decisions with the District Court. The District Court may fully
review a decision of the Rent Board but, like the Rent Board, must
observe the criteria for assessing whether the rent is reasonable as
set out in the Ordinance, i.e. the point rating scale and the zero
condition system. It is, however, within the discretion of the District
Court to assess whether or not a specific soil pollution constitutes
a serious health risk for tenants. No appeal lies against the decision
of the District Court.
III. OPINION OF THE COMMISSION
A. Complaints declared admissible
36. The Commission has declared admissible the applicant company's
complaints that, in the determination of its civil rights and
obligations within the meaning of Article 6 para. 1 (Art. 6-1) of the
Convention in the proceedings before the District Court judge, it did
not receive an effective judicial review, as the District Court judge
considered himself bound by the position taken by the Provincial
Executive in respect of the soil pollution and its effects on public
health and environment, and that it was also deprived of an effective
remedy within the meaning of Article 13 (Art. 13) of the Convention
against the decision of the Provincial Executive which affected its
property rights.
B. Points at issue
37. The issues to be determined are:
- whether there has been a violation of Article 6 para. 1
(Art. 6-1) of the Convention, and
- whether there has been a violation of Article 13
(Art. 13) of the Convention.
C. As regards Article 6 para. 1 (Art. 6-1) of the Convention
38. The applicant company complains under Article 6 para. 1
(Art. 6-1) of the Convention that it did not receive an effective
judicial review in the proceedings before the District Court judge
concerning a rent dispute, as the District Court judge considered
himself bound by the position taken by the Provincial Executive in
respect of the soil pollution and its effects on public health and
environment
39. Article 6 para. 1 (Art. 6-1) of the Convention, insofar as
relevant, reads:
"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."
40. The applicant company submits that in the present proceedings the
District Court judge failed to make an assessment of his own as to the
factual effects of the soil pollution, as he considered himself bound
by the position taken by the Provincial Executive in respect of the
soil pollution and its effects on public health and environment,
thereby barring the applicant company from obtaining a judicial finding
on an important part of its legal arguments, since the District Court
judge failed to determine whether or not the soil pollution at issue
did in fact constitute a threat to the public health or environment of
the residents in the area concerned, this being a decisive element in
the determination of the rent the applicant company can charge its
tenants.
41. The Government submit that in the proceedings at issue the
District Court is fully competent to make its own independent
assessment of the question whether or not the soil is polluted to such
an extent that this amounts to a serious danger to public health or
environment. The District Court, in making this assessment, may rely
on the results of the frequently highly complex and technical soil
investigations by the competent administrative authorities. In
proceedings before the District Court on rent disputes, the question
whether the Provincial Executive has made a decision according to
Section 2 para. 1 of the Interim Act on Soil Cleaning is in no way a
determining factor in deciding whether or not there is a serious threat
to health or the environment for the purpose of the determination of
the reasonable rent. It appears from Dutch case-law that District
Courts do not necessarily follow the findings of the administrative
authorities in respect of the effects of soil pollution on public
health and environment.
42. The Government further submit that in the present case the
District Court judge apparently found that it was not necessary to
examine whether the Provincial Executive had taken its decision on good
grounds, in view of the results of the soil investigations and the
decision to include the area in a soil cleaning programme.
43. The Commission observes at the outset that the applicability of
Article 6 para. 1 (Art. 6-1) to the proceedings at issue is not
disputed between the parties. Noting that the proceedings were decisive
for the rent the applicant company could charge its tenants, the
Commission finds that the proceedings involved a determination of the
applicant company's civil rights within the meaning of Article 6
para. 1 (Art. 6-1) of the Convention.
44. The Commission further observes that, in the determination of the
rent the applicant company could charge its tenant, the District Court
judge found the existence of a serious threat to public health or
environment, an "absolute zero condition", to be a fact established by
the Provincial Executive's decision that a soil cleaning operation
should be carried out in the area where this tenant's apartment was
located. The Commission finds no indication that the District Court
judge, against whose decision no further appeal lies, made an
independent assessment of his own as to the effects of this pollution
in respect of the specific apartment occupied by this tenant. On the
contrary, he stated explicitly that it was not his task to determine
whether the Provincial Executive had been right in its assessment that
there existed a serious threat to public health or environment.
45. The Commission finds that, in disputes concerning civil rights
and obligations, such a limited review cannot be considered to be
sufficient to constitute a determination of civil rights within the
meaning of Article 6 para. 1 (Art. 6-1) of the Convention. There has
therefore been a violation of the applicant company's right of access
to a court (cf. Eur. Court H.R., Obermeier judgment of 28 June 1990,
Series A no. 179, p. 23, para. 70.)
CONCLUSION
46. The Commission concludes, by 12 votes to 1, that there has been
a violation of Article 6 para. 1 (Art. 6-1) of the Convention.
D. As regards Article 13 (Art. 13) of the Convention
47. The applicant company further complains that the District Court
judge's conduct of the proceedings deprived it of an effective remedy
within the meaning of Article 13 (Art. 13) of the Convention against
the decision of the Provincial Executive which affected its property
rights.
48. Having concluded that there has been a violation of Article 6
para. 1 (Art. 6-1) of the Convention (see para. 46), the Commission
finds that it is not necessary to examine the case under Article 13
(Art. 13) of the Convention. The requirements of Article 13 (Art. 13)
are less strict than, and are here absorbed by, those of Article 6
(Art. 6) of the Convention (cf. Eur. Court H.R., Pudas judgment of
27 October 1987, Series A no. 125-A, p. 17, para. 43).
CONCLUSION
49. The Commission concludes, by 12 votes to 1, that it is not
necessary to examine whether there has been a violation of Article 13
(Art. 13) of the Convention.
E. Recapitulation
50. The Commission concludes, by 12 votes to 1, that there has been
a violation of Article 6 para. 1 (Art. 6-1) of the Convention
(para. 46).
51. The Commission concludes, by 12 votes to 1, that it is not
necessary to examine whether there has been a violation of Article 13
(Art. 13) of the Convention (para. 49).
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (H. DANELIUS)
(Or. English)
DISSENTING OPINION OF MR. S. TRECHSEL
I regret that in the present case I cannot share the view of the
majority that there has been a violation of the applicant's rights
under Article 6 para. 1 of the Convention.
It is uncontested that the judge was not bound by the assessment
of the facts by the Provincial Executive. Unfortunately, the judge
committed an error in interpreting the domestic law. However, the
Commission has always held that it is not competent to rectify errors
made by a court in applying domestic law. By finding a violation of
Article 6 in the present case, the Commission in my view acts as a
fourth instance.
No issue arises under Article 13 as alleged violations of
Article 6 do not give rise to a remedy before a national authority. In
fact, and in accordance with Article 6, only a higher court could
examine whether a judicial organ acted in violation of the Convention.
However, no right to appeal is guaranteed by the Convention in civil
matters. Article 13 does therefore not apply in the present case.
Full & Egal Universal Law Academy