CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 8 janvier 1992

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  AS TO THE ADMISSIBILITY OF   Application No. 16034/90 by Cornelis van de HURK against the Netherlands     The European Commission of Human Rights sitting in private on 8 January 1992, the following members being present:   MM.C.A. NØRGAARD, President S. TRECHSEL F. ERMACORA G. SPERDUTI E. BUSUTTIL G. JÖRUNDSSON A.S. GÖZÜBÜYÜK A. WEITZEL J.-C. SOYER H.G. SCHERMERS H. DANELIUS Mrs.G. H. THUNE SirBasil HALL MM.F. MARTINEZ RUIZ C.L. ROZAKIS Mrs.J. LIDDY MM.L. LOUCAIDES J.-C. GEUS M.P. PELLONPÄÄ B. MARXER   Mr. H.C. KRÜGER, Secretary to the Commission   Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;   Having regard to the application introduced on 1 December 1989 by Cornelis van de HURK against the Netherlands and registered on 22 January 1990 under file No. 16034/90;   Having regard to the observations submitted by the respondent Government on 2 May 1991 and the observations in reply submitted by the applicant on 28 June 1991;   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, a Dutch citizen born in 1945, is a dairy farmer resident at Geffen in the Netherlands.   Before the Commission he is represented by Mr. Th. J.H.M. Linssen, a lawyer practising at Tilburg in the Netherlands.   1.   Particular circumstances of the case         The facts of the case, as submitted by the parties, may be summarised as follows.         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 the modern breeding requirements.   By 1978 plans for extending the cowshed were made.   To finance this rebuilding, on 6 January 1984, the applicant entered into certain investment obligations. 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.         According to the 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 1 April 1984.   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 certain levy-free milk quota in 1984. Nevertheless, the applicant claims that this quota was insufficient for him to comply with the financial obligations he had entered into.         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 and subsequently the Industrial Appeals Board (College van Beroep voor het Bedrijfsleven) found that the information adduced by the applicant did not justify his claim.         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".         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 particular, the increase of cow cubicles merely amounted to 10% instead of the required minimum of 25%.   In addition, the amount of the investments was insufficient and there was also no question of force majeure in the sense of Article 19 of the Super Levy Ordinance.   For these reasons, the Minister denied the applicant the requested extra levy-free quota.         On 6 December 1985, the applicant appealed to the Industrial Appeals Board. Subsequently, on 30 December 1985, he requested the Board to be exempted from paying the super-levy for 1984/1985 and to be refunded the amount already paid.   This interim measure was refused on 7 July 1987 by the Board.   On 16 June 1989, when deciding on the merits, the Industrial Appeals Board rejected the applicant's appeal. It stated inter alia that the applicant had failed to prove the claimed value of his investments and that the Minister had correctly ascertained the relevant information.         2.   Relevant domestic law and practice         The Industrial Appeals Board's function is to control the lawfulness of decisions of various administrative bodies as well as of Ministers acting in an administrative capacity. The Board was established by an Act of Parliament, the Industrial Jurisdiction Act (Wet Administratieve Rechtspraak Bedrijfsorganisatie), which determines its organisation and functioning.   Its members are appointed for life by the Crown and can only be removed by the Supreme Court in exceptional circumstances stated in the Judicial Organisation Act (Wet op de Rechterlijke Organisatie).   Furthermore, they must have the qualifications of a judge of a court of appeal (raadsheer in een gerechtshof).         Article 74 of the Industrial Jurisdiction Act states, inter       alia: <Dutch> "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. (...)"   <Translation>   "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 a 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 a contribution to damages or when it has ordered the payment of costs. (...)"   <Dutch>   "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. (...)"   <Translation>   "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 applicant's request, 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. (...)"   It appears that, so far, these provisions have not been applied with regard to decisions of the Board.     COMPLAINTS   1.The applicant complains that his case has not been dealt with by an "independent and impartial" tribunal within the meaning of Article 6 para. 1 of the Convention.   He complains in particular that, as the Crown, and thus the Minister, can deprive the Industrial Appeals Board's decision of its effect or suspend it, this Board is not an independent and impartial tribunal.   2.     The applicant furthermore complains that he did not have a fair hearing before the Industrial Appeals Board because the Board disregarded his arguments, while permitting the Minister to makefurther submissions at a later stage.   Moreover, he argues that the objection he filed with the Minister concerned a different issue, i.e. the increase of the number of cow cubicles, whereas before the Board the criterion of the volume of investments was at stake.     PROCEEDINGS BEFORE THE COMMISSION   The application was introduced on 1 December 1989 and registered on 22 January 1990.         On 7 January 1991, the Commission decided to communicate the application to the respondent Government and invite them to submit written observations on the admissibility and the merits of the application.         The Government's observations were received by letter dated 2 May 1991 and the applicant's observations were dated 28 June 1991.     THE LAW   1.     The applicant complains of the proceedings before the Industrial Appeals Board.   He relies on Article 6 para. 1 (Art. 6-1) of the Convention which states, insofar as relevant:   "In the determination of his civil rights and obligations everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."   The applicant submits in particular that the Industrial Appeals Board is not an independent and impartial tribunal within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention since the Crown can deprive the latter'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 and impartiality.   He alleges that this is shown by the Board's decisions which are all geared to the Ministry's policy concerning milk quotas.         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 the applicant can never be granted the requested extra levy-free quota through these proceedings.         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) of the Convention, since the entire duration of these proceedings will not be "within a reasonable time".         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, no. 926), according to which there would be an appeal to the civil courts against such a decision by the Crown. In these circumstances, the assertion that the Board decides along policy lines and thus that it lacks independence and impartiality is therefore unfounded.         The Government finally point out that Articles 74 and 75 will be rescinded as from 1 January 1993. 2.The applicant further complains of unfairness of the proceedings in that the Board disregarded his arguments while permitting the Minister to make additional submissions at a later stage.   He furthermore argues that the appeal to the Minister concerned a different issue, i.e., the increase of cow cubicles, whereas before the Board the criterion of the volume of investments was at stake.   The Government contend that it had never been acknowledged that the applicant had complied with either criterion.   Therefore, when examining his claim for an extra levy-free quota, the Minister and the Board could rely on either criterion as compliance with only one of them is sufficient.   It cannot be said therefore that the proceedings were unfair especially since the new arguments and figures adduced by the applicant at a later stage were also taken into account.   3.The Commission has taken cognizance of the parties' submissions. After a preliminary examination of the case the Commission finds that the application concerns complex issues of fact and law which must be examined on the merits.   The application cannot therefore be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   No other grounds for inadmissibility have been established.           For these reasons, the Commission, by a majority           DECLARES THE APPLICATION ADMISSIBLE, without prejudging the merits of the case.     Secretary to the Commission          President of the Commission             (H. C. KRÜGER)                        (C. A. NØRGAARD)