CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 31 mars 1993

.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. 17239/90                       by Johannes Adrianus Josephus JANSEN and                       Maria Johanna VERSCHUEREN-JANSEN                       against the Netherlands           The European Commission of Human Rights (Second Chamber) sitting in private on 31 March 1993, the following members being present:                    MM.   S. TRECHSEL, President of the Second Chamber                       G. JÖRUNDSSON                       A. WEITZEL                       J.-C. SOYER                       H.G. SCHERMERS                       H. DANELIUS                  Mrs. G.H. THUNE                  MM.   F. MARTINEZ                       M. NOWICKI                    Mr.   K. ROGGE, Secretary to the Second Chamber           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 2 August 1990 by Johannes Adrianus Josephus JANSEN and Maria Johanna VERSCHUEREN-JANSEN against the Netherlands and registered on 1 October 1990 under file No. 17239/90;         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 applicants, born in 1933 and 1931 respectively, are Dutch dairy farmers living in Baarle-Nassau, the Netherlands.   Before the Commission they are represented by Mr. E. Beele and Mr. Th.J.H.M. Linssen, both lawyers practising at Tilburg.         The facts as submitted by the applicants may be summarised as follows.         The applicants had leased a parcel of land from their neighbour, Mr. B., since 1972.   On the basis of the surface exploited for dairy production, they were allocated a certain milk-quota.   At some time Mr. B., also a dairy producer, wanted to recuperate the parcel of land for personal use.   By decision of 2 March 1984 the Land Lease Chamber (Pachtkamer) of the Tilburg District Court (Kantongerecht) therefore declared the lease terminated on its expiry date, 10 November 1985. The Land Lease Chamber of the Arnhem Court of Appeal (Gerechtshof) however decided that the lease should run until 11 November 1988 on which date the contract was actually rescinded.         On 16 March 1988 Mr. B. requested the Land Lease Chamber of the Tilburg District Court to order the applicants to transfer their milk- quota to him insofar as it rested on the parcel of land leased to the applicants.   By decision of 3 March 1989 this Chamber partly granted the request and ordered the applicants to transfer half of the milk- quota in question to Mr. B.   The applicants appealed against this decision to the Land Lease Chamber of the Arnhem Court of Appeal complaining in particular that the Court of Justice of the European Communities had not been requested to give a preliminary ruling on the question who is entitled to a milk-quota related to a leased parcel of land after termination of the lease contract and requested the Court of Appeal to bring the matter before the Court of Justice.   They also complained that they were obliged to transfer part of the milk-quota allocated to them without being awarded any compensation.   On 5 February 1990 the Court of Appeal confirmed the District Court's decision and considered that it was not necessary to request the Court of Justice to give a preliminary ruling.     COMPLAINTS   1.     The applicants complain that they did not have access to court in that the Land Lease Chamber of the Arnhem Court of Appeal refused to seek a preliminary ruling from the Court of Justice of the European Communities.   They also submit that, in view of this refusal, the Court of Appeal cannot be considered to be an impartial tribunal.   They invoke Article 6 para. 1 of the Convention.   2.     The applicants further complain that, by ordering them to transfer half of the milk-quota allocated to them to Mr. B., the Court of Appeal deprived them of their possession contrary to Article 1 of Protocol No. 1 of the Convention.       THE LAW   1.     The applicants complain that they did not have access to court in that the Land Lease Chamber of the Arnhem Court of Appeal refused to seek a preliminary ruling from the Court of Justice of the European Communities.   They also submit that, in view of this refusal, the Court of Appeal cannot be considered as an impartial tribunal.   They invoke Article 6 para. 1 (Art. 6-1) of the Convention which reads 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 (...)"         The question arises in the first place whether Article 6 (Art. 6) applies to the proceedings complained of.   The Commission has already found that a dispute concerning the allocation of a certain milk-quota constitutes the determination of civil rights (Van de Hurk v. the Netherlands, Comm. Report 10.12.92, paras. 34-36).   The Commission considers that a court decision ordering the person entitled to a milk-quota to transfer it, even partially, to another person equally affects his right to produce a certain quantity of milk and therefore also determines his civil rights.   Article 6 (Art. 6) therefore applies to the proceedings complained of.          However, insofar as the applicants complain that they did not have access to court as the Court of Appeal refused to seek a preliminary ruling from the European Court of Justice, the Commission notes that in the determination of their dispute with Mr. B., the applicants did have access to the Tilburg District Court and to the Arnhem Court of Appeal as tribunals within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.   Moreover, the Commission finds no indication in the present case that the Court of Appeal's refusal to seek a preliminary ruling from the European Court of Justice rendered the proceedings unfair.         It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         Insofar as the applicants further complain about partiality of the Court of Appeal, they have failed to substantiate their complaint. The Court of Appeal cannot be said to have been biased on the sole ground that it refused to seek a preliminary ruling from the European Court of Justice.         It follows that this part of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.     The applicants further complain that, by ordering them to transfer to Mr. B. half of the milk-quota allocated to them, the Court of Appeal deprived them of their possession contrary to Article 1 of Protocol No. 1 (P1-1) to the Convention.           However, the Commission is not required to decide whether or not the facts alleged by the applicants disclose any appearance of a violation of this provision as, under Article 26 (Art. 26) of the Convention, it may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law.         The mere fact that the applicants have submitted their case to the competent courts does not of itself constitute compliance with this rule.   It is also required that the substance of any complaint made before the Commission should have been raised during the proceedings concerned.   In this respect the Commission refers to its established case-law (see e.g. No. 1103/61, Yearbook 5 pp. 168, 186; No. 5574/72, Dec. 21.3.75, D.R. 3 pp. 10, 15; No. 10307/83, Dec. 6.3.84, D.R. 37 pp. 113, 120).         In the present case the applicants did not raise, either in form or in substance, in the proceedings before the District Court and the Court of Appeal, the complaint which they now make before the Commission.   Moreover, an examination of the case does not disclose the existence of any special circumstances which might have absolved the applicants, according to the generally recognised rules of international law, from raising this complaint in the proceedings referred to.         It follows that the applicants have not complied with the condition as to the exhaustion of domestic remedies and their application must in this respect be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.         For these reasons, the Commission, by a majority         DECLARES THE APPLICATION INADMISSIBLE.       Secretary to                                  President of the Second Chamber                            the Second Chamber       (K. ROGGE)                                   (S. TRECHSEL)