CEDH · CASELAW;REPORTS;ENG — 10 décembre 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 }                    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:   <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      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. (...)"   <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 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