VAN DE HURK v. the NETHERLANDS



              EUROPEAN COMMISSION OF HUMAN RIGHTS

                   Application No. 16034/90

                     Cornelis van de HURK

                            against

                        THE NETHERLANDS

                   REPORT OF THE COMMISSION

                 (adopted on 10 December 1992)

TABLE OF CONTENTS

                                                          Page

I.        INTRODUCTION

          (paras. 1-15) . . . . . . . . . . . . . . . . . . .2

          A.   The application

               (paras. 2-4) . . . . . . . . . . . . . . . . .2

          B.   The proceedings

               (paras. 5-10). . . . . . . . . . . . . . . . .2

          C.   The present Report

               (paras. 11-15) . . . . . . . . . . . . . . . .3

II.       ESTABLISHMENT OF THE FACTS

          (paras. 16-28). . . . . . . . . . . . . . . . . . .4

          A.   The particular circumstances of the case

               (paras. 16-22) . . . . . . . . . . . . . . . .4

          B.   Relevant domestic law

               (paras. 23-29) . . . . . . . . . . . . . . . .5

III.      OPINION OF THE COMMISSION

          (paras. 30-51). . . . . . . . . . . . . . . . . . .8

          A.   Complaints declared admissible

               (para. 30) . . . . . . . . . . . . . . . . . .8

          B.   Points at issue (para. 31) . . . . . . . . . .8

          C.   Applicability of Article 6 para. 1

               of the Convention (paras. 32-37) . . . . . . .8

          D.   Compliance with Article 6 para. 1

               of the Convention (paras. 38-50) . . . . . . .9

          E.   Conclusion (para. 51). . . . . . . . . . . . 10

Dissenting opinon of Mr. H.G. SCHERMERS, joined by

Sir Basil HALL, MM. F. MARTINEZ and J.-C. GEUS. . . . . . . 11

APPENDIX I     : HISTORY OF THE PROCEEDINGS . . . . . . . . 14

APPENDIX II     : DECISION ON THE ADMISSIBILITY

                  OF THE APPLICATION. . . . . . . . . . . . 15

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 citizen, born in 1945, and residing at

Geffen, the Netherlands.  In the proceedings before the Commission he

was represented by Mr. Th.J.H.M. Linssen, a lawyer practising in

Tilburg.

3.   The application is directed against the Netherlands.  The

respondent Governement were represented by their Agent,

Mr. K. de Vey Mestdagh of the Netherlands Ministry of Foreign Affairs.

4.   The application concerns proceedings before the Industrial

Appeals Board (College van Beroep voor het Bedrijfsleven).  The

applicant complains that the Board is not an independent tribunal and

that he did not have a fair hearing within the meaning of

Article 6 para. 1 of the Convention.

B.   The proceedings

5.   The application was introduced on 1 December 1989 and registered

on 22 January 1990.

6.   On 7 January 1991 the Commission decided that notice should be

given to the Governement of the Netherlands of the application and that

they should be invited to submit written observations on the

admissibility and merits of the application.

7.   The Government submitted their observations on 2 May 1991.  The

applicant submitted observations in reply on 28 June 1991.

8.   On 8 January 1992 the Commission declared the application

admissible.  The parties were invited, should they so desire, to submit

further evidence or observations on the merits of the application.

9.   The Government submitted their further observations on

4 March 1992.  The applicant did not submit any further observations.

10.  After declaring the case admissible, the Commission, acting in

accordance with Article 28 (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 in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

           MM.  C. A. NØRGAARD, President

                J. A. FROWEIN

                E. BUSUTTIL

                G. JÖRUNDSSON

                A. WEITZEL

                J.-C. SOYER

                H. G. SCHERMERS

                H. DANELIUS

           Mrs. G. H. THUNE

           Sir  Basil HALL

           MM.  F. MARTINEZ RUIZ

                C. L. ROZAKIS

           Mrs. J. LIDDY

           MM.  L. LOUCAIDES

                J.-C. GEUS

                M. P. PELLONPÄÄ

                B. MARXER

12.  The text of this Report was adopted on 10 December 1992 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.  A schedule setting out the history of the proceedings before the

Commission is attached hereto as Appendix I and the Commission's

decision on the admissibility of the application as Appendix II.

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 owns a cubicle cowshed containing 90 cubicles for

dairy cows and 63 cubicles for calves.  He was frequently warned by a

veterinarian that this situation was unhealthy for his cattle and

contrary to modern breeding requirements.  By 1978 plans for extending

the cowshed were made.  On 6 January 1984 the applicant entered certain

investment obligations to finance this rebuilding.  The construction

started on 14 April 1984.  After the rebuilding the cowshed's capacity

increased so that it could contain 130 cubicles for dairy cows.

17.  According to EEC Regulation No. 856/84 of 31 March 1984,

implemented in the Netherlands by the Super Levy Ordinance (Beschikking

Superheffing) of 18 April 1984, every dairy farmer may produce a

certain amount of milk, calculated on the basis of his production

capacity prior to April 1984.  Such a quota, granted on an individual

basis, is however transferable.  The amount of milk the applicant was

authorised to produce was based on his production in 1983.  For any

surplus production a levy (super levy) must be paid.  Farmers who prior

to 1 April 1984 had concluded binding contracts with builders for an

expansion of their farm with more than 25% were entitled to an extra

(levy-free) quota based on the capacity of the expanded farm.  On the

basis of these rules, the Director of Agriculture and Food Supply

(Directeur voor Landbouw en Voedselvoorziening) of the province of

Noord Brabant granted the applicant a levy-free milk-quota in 1984.

The applicant states that this quota was insufficient for him to comply

with the financial obligations he had entered into.

18.  The applicant then claimed an extra levy-free quota according to

Article 11 of the Super Levy Ordinance in view of the investment

undertaken and the increase of cow cubicles.  However, the Minister of

Agriculture and Fisheries (Minister van Landbouw en Visserij) and

subsequently the Industrial Appeals Board found that the information

adduced by the applicant did not justify his claim.

19.  On 29 June 1984 the applicant filed a further request for an

extra levy-free quota.  This request was rejected by the Director of

Agriculture and Food Supply on 1 November 1984, on the ground that the

applicant had failed to show that "he had always intended to extend the

cowshed".

20.  On 27 November 1984 the applicant filed an objection

(bezwaarschrift) with the Minister of Agriculture and Fisheries.  The

Minister dismissed the objection on 11 November 1985 as the extension

of the cowshed did not meet the requirements of Article 11 of the Super

Levy Ordinance.  In order to be eligible for an extra levy-free quota,

Article 11 requires either a minimum increase of cow cubicles of 25%

or that the investments entered into amount to a minimum of 100.000

Dutch guilders.  The Minister found in particular that the increase of

cow cubicles merely amounted to 10%. In addition, there was also no

question of force majeure within the meaning of Article 19 of the Super

Levy Ordinance.  For these reasons, the Minister refused the

application for an extra levy-free quota.

21.  On 6 December 1985 the applicant appealed to the Industrial

Appeals Board.  Subsequently, on 30 December 1985, he requested the

Board to exempt him from paying the super-levy for 1984/1985 and to

refund the amount already paid.  This request was refused by the Board

on 7 July 1987.  On 19 April 1989, at the hearing before the Board, the

Minister stated again that the applicant was not eligible for an extra

levy-free quota as the increase of cow cubicles was less than 25%.  He

added that the applicant had in any event not met the other requirement

of Article 11 either.  The applicant argued that the Minister had based

his calculation of the amount of the investments on incorrect data

whilst submitting his own calculation method.

22.  On 16 June 1989, when deciding on the merits, the Industrial

Appeals Board rejected the applicant's appeal.  It held inter alia that

it could not take into consideration the argument adduced by the

applicant for the first time at the hearing in order not to put his

opponent at a disadvantage.  Moreover, it found that the applicant had

failed to prove the alleged value of his investments and the Minister

had correctly ascertained the relevant information.

B.   Relevant domestic law

     a) The Industrial Appeals Board

23.  Disputes concerning the allocation of milk-quotas do not belong

to the competence of the ordinary civil jurisdictions but are subject

to a specific administrative procedure governed by the Industrial

Jurisdiction Act (Wet Administratieve Rechtspraak Bedrijfsorganisatie).

This Act designates the Industrial Appeals Board as the competent court

in last resort concerning such disputes and determines its organisation

and functioning.  The Board is an administrative court whose function

is to control the lawfulness of decisions of various administrative

bodies as well as of Ministers acting in an administrative capacity.

Article 9 of this Act stipulates that the Board's members are appointed

for life, i.e. until the compulsory retirement age of 70, by the Crown

(Kroon) on the recommendation of the Minister of Justice (Minister van

Justitie) after previous consultation of the Minister for Statutory

Industrial Organisation (Minister voor Publiekrechtelijke

Bedrijfsorganisatie).  Board members must have the qualifications of

a judge of a court of appeal (raadsheer in een gerechtshof).

Furthermore, they can only be removed by the Supreme Court (Hoge Raad)

in exceptional circumstances stated in the Judicial Organisation Act

(Wet op de Rechterlijke Organisatie).

24.  Articles 74 and 75 of the Industrial Jurisdiction Act state,

inter alia:

     "Artikel 74.  1.  Indien een uitspraak naar Ons oordeel in haar

     gevolgen in strijd komt met het algemeen belang, kunnen Wij op

     voordracht van Onze betrokken Ministers besluiten, dat zij geen

     gevolg of niet volledig gevolg zal hebben.

     2.  In afwachting van de totstandkoming van een besluit, als in

     het vorige lid bedoeld, kunnen Wij, op voordracht van Onze

     betrokken Ministers, de uitspraak gedurende een bij Ons besluit

     te bepalen tijd geheel of gedeeltelijk schorsen.  De schorsing

     kan, ook na verlenging, niet langer duren dan een jaar.

     3.  Een besluit, als in het eerste lid bedoeld, kan slechts

     worden genomen binnen twee maanden, nadat de uitspraak is gedaan,

     of, indien binnen die termijn de uitspraak is geschorst, binnen

     de voor de schorsing bepaalde tijd.  Een besluit, als in het

     tweede lid bedoeld, kan slechts worden genomen binnen twee

     maanden, nadat de uitspraak is gedaan.

     4.  ...

     5.  Het bepaalde in de eerste twee leden geldt niet, voor zover

     bij de uitspraak schadevergoeding of tegemoetkoming in de schade

     is toegekend of een veroordeling in de kosten is uitgesproken.

     (...)"

     "Article 74.  1.  If, in Our (i.e. the Crown's) view, a decision

     of the Board is contrary to the general interest, We may order,

     on the recommendation of Our Ministers concerned, that it will

     have no effect, or only a partial effect.

     2.  Pending the issue of an order within the meaning of para. 1,

     We may, on the recommendation of Our Ministers concerned, suspend

     the decision wholly or partially for a period determined by Us.

     The suspension, even after prolongation, may not last longer than

     one year.

     3.  An order as mentioned in para. 1 can only be issued within

     two months after the Board's decision or, if the decision has

     been suspended within that period, within the period determined

     for suspension.  An order as mentioned in para. 2 can only be

     issued within two months after the Board's decision.

     4.  ...

     5.  Paras. 1 and 2 do not apply when the Board has granted

     damages or when it has ordered the payment of costs. (...)"

     "Artikel 75.  1.  Indien Wij besluiten, dat de uitspraak

     geen gevolg of niet volledig gevolg zal hebben, kan het

     College op verzoek van de betrokkene opnieuw recht doen met

     inachtneming van Ons besluit, dan wel het lichaam

     veroordelen tot vergoeding van of tot betaling van een

     tegemoetkoming in de schade, die de verzoeker ten gevolg

     van het geen of niet volledig gevolg hebben van de

     uitspraak lijdt. (...)"

     "Article 75.  1.  If We (i.e. the Crown) order that the

     decision of the Board shall have no effect, or only a

     partial effect, the Board may, at the request of the person

     concerned, either take a new decision having regard to Our

     order, or oblige the body concerned to compensate the

     damages suffered by the applicant as a result of the fact

     that the decision has wholly or partially been deprived of

     its effect. (...)"

25.  It appears that, so far, these provisions have not been applied

with regard to decisions of the Board. For this reason they will be

rescinded as from 1 January 1993.

     b) The appeal to the civil courts

26.  Pursuant to the Benthem judgment (Eur. Court H.R., judgment of

23 October 1985, Series A no. 97), in which the Court held that the

Crown is not a tribunal within the meaning of Article 6 para. 1 of the

Convention, the Dutch legislation has been amended by the Provisional

Act on Crown Appeals (Tijdelijke Wet Kroongeschillen).  This Act came

into force on 1 January 1988.  In order to comply with the Benthem

judgment before 1 January 1988, the Supreme Court (Hoge Raad) has

decided that, pursuant to a well-established rule under Dutch law, the

interested party may file an appeal with the civil courts after a

decision of the Crown.  The civil court has the right to conduct an

independent examination of the case, including the contentious issue

already decided by the Crown (Hoge Raad 12 December 1986, Nederlandse

Jurisprudentie 1987/381).  This case-law has been confirmed by

subsequent judgments (e.g. Hoge Raad 6 February 1987, Nederlandse

Jurisprudentie 1988/926).

27.  Dutch law has traditionally recognised the competence of the

civil courts to grant relief against the administration where no other

relief is available.  This competence is based on the Constitution and

on the Act on the Organisation of the Judiciary of 1827 (Wet op de

Rechterlijke Organisatie).

28.  An extensive case-law was developed by the Supreme Court over the

last decades, supported by several authorities, to the effect that

where an administrative appeal would not offer sufficient guarantees

of a fair procedure, the civil courts are competent to examine the

lawfulness of the administrative decision against which the appeal

lies.

29.  The European Court of Human Rights in its Oerlemans judgment

(Eur. Court H.R., judgment of 27 November 1991, Series A no. 219,

para. 56) found that:

     "Under Netherlands law a civil court can carry out a full

     examination of all acts of the administration in the light,

     inter alia, of principles of administrative law, can award

     damages for torts committed and can grant injunctions

     against the administration (...)."

III.  OPINION OF THE COMMISSION

A.   Complaints declared admissible

30.  The Commission has declared admissible the applicant's complaints

that he did not have access to an independent tribunal for the

determination of his civil rights and that he did not have a fair

hearing before the Industrial Appeals Board.

B.   Points at issue

31.  Accordingly, the issue to be determined is whether there has been

a violation of Article 6 para. 1 (Art. 6-1) of the Convention.

C.   Applicability of Article 6 para. 1 (Art. 6-1) of the Convention

32.  The Commission must first examine whether Article 6 para. 1

(Art. 6-1) of the Convention applies to the proceedings at issue.

33.  Article 6 para. 1 (Art. 6-1) of the Convention provides, insofar

as relevant:

     "In the determination of his civil rights and obligations...,

     everyone is entitled to a fair ... hearing ... by anindependent

     ... tribunal ..."

34.  Article 6 para. 1 (Art. 6-1) extends only to disputes over "civil

rights and obligations" which can be said, at least on arguable

grounds, to be recognised under domestic law (see e.g. Eur. Court H.R.,

Tre Traktörer Aktiebolag judgment of 7 July 1989, Series A no. 159,

para. 36).  Such a dispute must be genuine and of a serious nature; it

may relate not only to the actual existence of a right but also to its

scope and the manner of its exercise and, finally, the result of the

proceedings concerning the dispute at issue must be directly decisive

for such a right (ibid., para. 37).

35.  It is not contested that there was a "dispute" concerning a

"right" since the allocation of both a milk-quota and an extra levy-

free quota conferred a "right" to the applicant to produce a determined

quantity of milk, subject to the condition that a levy must be paid for

any surplus (para. 17 above).

36.  The size of a milk-quota determines for each dairy farmer the

quantity of milk he is authorised to produce.  It is therefore decisive

for his income.  The fact that in addition a milk-quota is transferable

confers to it the character of, in the words of the European Court of

Human Rights, a "pecuniary" right (Eur. Court H.R., Editions Périscope

judgment of 26 March 1992, Series A no. 234-B, para. 40).  Thus the

allocation or refusal of a milk-quota may seriously affect a milk

producer's business activities.  A dispute concerning the granting of

a higher quota therefore involves the determination of civil rights and

obligations within the meaning of Article 6 para. 1 (Art. 6-1) of the

Convention.

37.  The Commission finds that Article 6 para. 1 (Art. 6-1) of the

Convention is applicable to the proceedings at issue.

D.   Compliance with Article 6 para. 1 (Art. 6-1) of the Convention

38. The Commission must consequently first address the question whether

the Industrial Appeals Board is an independent tribunal.

39.  The applicant submits that the Industrial Appeals Board is not

an independent tribunal since the Crown can deprive the Board's

decision of its effect on the basis of Article 74 of the Industrial

Jurisdiction Act.  The fact that this provision has never been applied

is not relevant as its very existence constitutes a threat to the

Board's independence.  Indeed, the Board's decisions are all geared to

the Ministry's policy concerning milk-quotas.

40.  The applicant furthermore submits that the request for a revised

decision or for damages provided for in Article 75 of the Industrial

Jurisdiction Act after the Crown has deprived the Board's decision of

its effect does not afford sufficient redress since he can never be

granted the requested extra levy-free quota through these proceedings.

41.  The applicant finally submits that the possibility of seizing the

civil courts after the Crown's decision constitutes in itself a breach

of Article 6 para. 1 (Art. 6-1), since the entire duration of these

proceedings would exceed "a reasonable time".

42.  The Government emphasise that Article 74 has never been applied.

In the event that the Crown would deprive a decision of the Board of

its effect, they refer to well-established case-law, in particular to

the ARAL judgment (Hoge Raad 6 February 1987, Nederlandse

Jurisprudentie 1988/926), according to which there is an appeal to the

civil courts against such a decision by the Crown.  In this respect,

they also refer to the Oerlemans judgment (Eur. Court H.R., Oerlemans

judgment of 27 November 1991, Series A no. 219, pp. 14-17,

paras. 30-35) in which the Court has accepted this rule of Dutch law.

The assertion that the Board decides along policy lines and thus lacks

independence is therefore unfounded.

43.  The Government further argue that the present case cannot be

compared to the Benthem case (Eur. Court H.R., Benthem judgment of

23 October 1985, Series A no. 97).  In the Benthem case, it was an

administrative body - the Crown - which settled the dispute whereas the

present case involves a tribunal which is set up and functions

according to the statutory rules governing the judiciary.

44.  The Government finally point out that Articles 74 and 75 will be

rescinded as from 1 January 1993.

45.  The Commission recalls that in order to establish whether a body

can be considered independent, regard must be had, inter alia, to the

manner of appointment of its members and their term of office, to the

existence of guarantees against outside pressures and to the question

whether the body presents an appearance of independence (see Eur. Court

H.R., Langborger judgment of 22 June 1989, Series A no. 155, p. 16,

para. 32).

46.  The members of the Industrial Appeals Board are appointed for

life on the recommendation of the Minister of Justice after previous

consultation of the Minister for Statutory Industrial Organisation.

Moreover, in order to be appointed, they must have the qualifications

of a judge of a court of appeal. The Industrial Appeals Board is thus

a tribunal whose members are subject to the rules governing the

judiciary (see para. 23 above).  The Commission therefore considers

that these features, taken by themselves, are indications of

independence.

47.  A question arises as regards the independence of the Industrial

Appeals Board in view of the fact that under Article 74 of the

Industrial Jurisdiction Act (see para. 24 above) the Crown may decide

in the general interest to deprive its decisions of their effect or

order that they shall only have partial effect.  It is true that, if

this was done, there would be a remedy before the civil courts (see

paras. 27-28 above).  However, in the present case there was no such

ruling by the Crown, and consequently a remedy before the civil courts

would not seem to have been available.

48.  In these circumstances, it is necessary to determine whether the

Industrial Appeals Board itself could be considered an independent

tribunal.  In this respect the Commission considers that, since the

Board's decisions could be overruled by an administrative authority,

the Board lacked one of the essential characteristics of an independent

tribunal.  Moreover, the power of decision which is inherent in the

very notion of "tribunal" (cf. Eur. Court H.R., Benthem judgment of

23 October 1985, Series A no. 97, p. 17, para. 40) could be said to be

at least partially affected when an administrative authority may decide

to deprive a decision of its effect.  The said deficiencies must be

considered to have existed in the present case despite the fact that

in reality it would seem to have been very unlikely that the Crown

should make use of its legal powers in this regard.

49.  The Commission therefore finds that the Industrial Appeals Board

could not in the present case be regarded as an independent tribunal

within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.

50.  In view of this finding, the Commission does not find it

necessary to examine separately the applicant's complaint concerning

the lack of a fair hearing.

E.   Conclusion

51.  The Commission concludes by 12 votes to 5 that there has been a

violation of Article 6 para. 1 (Art. 6-1) of the Convention.

Secretary to the Commission            President of the Commission

     (H. C. KRÜGER)                         (C. A. NØRGAARD)

Dissenting Opinion of Mr. H.G. SCHERMERS joined by Sir Basil HALL,

                MM. F. MARTINEZ and J.-C. GEUS

1.   The provision of Article 6 which prescribes that courts must be

independent is one of the essential rules of the Convention.  There can

be no fair trial if the courts are not independent.  In that light the

majority's decision should be supported that courts' decisions should

be final and that there should be no possibility for the government to

overrule any court decision.  But the question whether a court is

sufficiently independent should not be answered on purely theoretical

grounds as that would make it practically impossible to have courts.

In pure theory hardly any judge can be fully independent.  Often the

government have a say on the salaries of judges or on their possible

promotion to a higher court or to a more attractive city.  Usually,

governments decide whether courts will or will not receive additional

facilities like new buildings or more secretaries.  To establish

whether a court is independent one has to evaluate the actual

situation.

     When the statutory industrial organisation was set up in the

Netherlands, a new level of government was introduced.  The economic

actors received certain law-making competence each in their own field.

The legal rules thus created were to be supervised by special courts.

The system was new and nobody could know exactly how it would function

in practice.  There was some fear that the interest groups involved

could make legislation which would go contrary to the general interest

without being held illegal.  As a kind of safety-net Article 74 of the

Industrial Jurisdiction Act was then introduced.  Later it became clear

that the safety-net was not necessary.  It was never invoked and it can

safely be said now that it remained a dead letter.

2.   The present case must be distinguished from the Benthem Case

(A 97).  In Benthem the so-called "Kroonberoep" was at stake.  This is

a procedure in which the Administrative Litigation Division of the

Council of State advises the Crown in appeals on administrative

questions, such as the question whether a licence should be granted or

not.  The Division handles such advice in a judicial way, similar to

a court and the Crown normally follows its advice.  Nevertheless, the

Administrative Litigation Division of the Council of State is not a

court in the formal sense.  It is an advisory organ to the Crown.  The

Crown is not bound by its advice and may decide otherwise.

Furthermore, civil servants might indicate to the Division that a

particular decision is unacceptable to the cabinet minister concerned

and that the minister will overrule if it is adopted.

3.   In the present case there is no question of an advisory organ:

the Industrial Appeals Board is an independent court, not different

from any other Dutch court.  Nor is there any possibility of anybody

being entitled to overrule decisions of the Industrial Appeals Board.

     Article 74 of the Industrial Jurisdiction Act, providing for a

special procedure where a decision of the Industrial Appeals Board is

contrary to the general interest, concerns the execution of the Board's

decision, not the decision itself.  As a rule courts do not control the

execution of their judgments.  Occasionally, it happens that a court

jdugment is not properly executed.  This may lead to new litigation.

4.   The particularity of the Industrial Jurisdiction Act is that the

possibility of non-execution has been foreseen by the legislator.  Does

that make the court dependent of the executive?  This may be doubted.

Any court may be influenced by the question whether a particular

judgment can be executed.  Any expectation of the execution of a

particular decision raising difficulties may influence a court not to

take that decision.  This is the responsibility of the court.  The fact

that a specific remedy is foreseen for the case when a court decision

cannot be executed does not necessarily mean that the court will be

deterred from taking the decision.  One could equally submit that

because of the existence of a special remedy the court will more easily

reach a decision which the government may be unable to execute.

5.   Still, the possibility for a government to state during the

proceedings before the court that a particular court decision would not

be executed by the government might influence the court in making its

judgment.  Therefore, I might have supported the majority's decision

if such influencing ever really happened or if there were any real risk

that it might have happened in the present case. But Article 74 of the

Industrial Jurisdiction Act is a dead letter.  Never has there been any

indication that the Industrial Appeals Board has taken account of the

theoretical possibility of its decisions not being executed under

Article 74 of the Industrial Jurisdiction Act.  In the present case,

too, there is no indication that the Industrial Appeals Board might

have been influenced by the government.  Had there been any such

indication, then the applicant would have had a remedy, analogous to

the remedy granted by the Hoge Raad when the European Court of Human

Rights held in the Benthem case that the Administrative Litigation

Division of the Council of State was not an independent court.

     According to Dutch law, extensively commented upon in the

Oerlemans case before the Court (A 219, paras. 21-26), the civil courts

are competent in all cases where no other competent court is available.

When the European Court of Human Rights decided in the Benthem case

that the Administrative Litigation Division of the Council of State was

not an independent court in the so called "Kroongeschillen" (a specific

kind of administrative procedure), then the Hoge Raad ruled that the

civil courts should be considered competent in this sort of cases on

the ground that there was no other competent court available as the

Administrative Litigation Division of the Council of State could no

longer be considered as a court in the sense of law (see the ARAL

judgment of the Hoge Raad of 6 February 1987, NJ 1988 No. 926).

     On the basis of this judgment the applicant in the present case

could have brought his case before the civil courts if he had any

indication that the Industrial Appeals Board had not operated as an

independent court.  If the civil courts had established that the

Industrial Appeals Board was not an independent court, then they would

have accepted jurisdiction on the same grounds as in the ARAL judgment.

One could submit that the applicant did not exhaust the domestic

remedies as they did not try this remedy.  I do not consider this to

be a correct view however.  The government did not raise this point of

exhaustion, which means that they do not object to the admissibility

of the case on the ground of non-exhaustion.  As a general rule I think

the Commission's policy is correct, namely that a case will not be

declared inadmissible for non-exhaustion if the government accept that

the domestic remedies have been sufficiently exhausted.  Also, the

remedy would have been of a purely theoretical nature (in the same way

as this whole case is of a purely theoretical nature) as there can be

no doubt that the civil courts would have accepted the Industrial

Appeals Board as an independent court.  But if the applicant pleads in

Strasbourg that the Industrial Appeals Board is not an independent

court, then he should have pleaded that also in the domestic legal

system.  The European Convention on Human Rights is part of Dutch law.

The Dutch courts are obliged to apply it.  Should Article 6 of the

Convention entail that the Industrial Appeals Board is not an

independent court, then the civil courts would be competent to decide

industrial appeals.

     Leaving the question of exhaustion aside, the analogy with the

ARAL case demonstrates that the applicant had a remedy under Dutch law,

which means that the conditions of Article 6 were fulfilled even if the

Industrial Appeals Board were not an independent court.

                          APPENDIX I

                    HISTORY OF PROCEEDINGS

Date                          Item

_________________________________________________________________

1 December 1989               Introduction of the application

22 January 1990               Registration of the application

Examination of admissibility

7 January 1991                Commission's decision to invite the

                              Government to submit observations on

                              the admissibility and merits of the

                              application

2 May 1991                    Government's observations

28 June 1991                  Applicant's observations in reply

8 January 1992                Commission's decision to declare the

                              application admissible and to invite

                              the parties, should they so desire,

                              to submit further observations on the

                              merits of the application

Examination of the merits

4 March 1992                  Further observations by the Government

16 May 1992                   Commission's consideration of the

                              state of proceedings

1 December 1992               Commission's deliberations on the

                                merits and final vote

10 December 1992              Adoption of the Report

 

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