CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 5 juillet 1994

.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. 20641/92                       by Terra Woningen B.V.                       against the Netherlands         The European Commission of Human Rights (Second Chamber) sitting in private on 5 July 1994, the following members being present:              MM.    S. TRECHSEL, President                  H. DANELIUS                  G. JÖRUNDSSON                  J.-C. SOYER                  H.G. SCHERMERS            Mrs.   G.H. THUNE            MM.    F. MARTINEZ                  L. LOUCAIDES                  J.-C. GEUS                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY              Mr.    K. ROGGE, Secretary to the 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 9 September 1992 by Terra Woningen B.V. against the Netherlands and registered on 16 September 1992 under file No. 20641/92;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having regard to :   -      reports provided for in Rule 47 of the Rules of Procedure of the       Commission;   -      the observations submitted by the respondent Government on       2 April 1993 and the observations in reply submitted by the       applicant on 10 August 1993;         Having deliberated;         Decides as follows:     THE FACTS         The applicant is a Dutch company whose registered seat is in The Hague.   It is represented before the Commission by Mr. W.M.P.M. Weerdesteijn, a lawyer in Rotterdam.   1.     Particular circumstances of the case         The facts, as presented by the parties, may be summarised as follows.         The applicant company owns six apartment buildings, in which there are 288 flats.   The buildings are situated at the Merellaan in the Municipality of Maassluis.   On 18 April 1990 the applicant concluded with Mr. W. an agreement under which Mr. W. rented a flat on the third floor in one of the buildings from 1 May 1990, the rent being 790,25 Dutch guilders per month.         On 9 July 1990 Mr. W. asked the Rent Board (Huurcommissie) of Schiedam for a decision as to whether the rent was reasonable, in view of, inter alia, the soil pollution in the area where the buildings are located.         On 17 April 1991 the Rent Board, assessing the quality of the flat under the housing accommodation point-rating system (woning- waarderingsstelsel) as set out in Annex I to the Ordinance implementing the Act on Rents for Housing Accommodation (Besluit Huurprijzenwet Woonruimte) at 134 points, declared that the agreed rent was excessive and decided that a monthly rent of 783,07 Dutch guilders was reasonable.         The applicant then requested the District Court judge (kantonrechter) of Schiedam to confirm the rent which had been agreed between the parties, i.e. 790,25 Dutch guilders, increased by permissible annual supplements to 832,14 Dutch guilders.   However, on 10 March 1992 the District Court judge determined the rent at 399,75 Dutch guilders per month.         The District Court judge based his decision on certain principles laid down in the Ordinance implementing the Act on Rents for Housing Accommodation. Annex IV to this Ordinance contains a list of particularly serious deficiencies, the so-called "absolute zero conditions" which could lead to a reduction of the rent to a minimum reasonable level. Point 4 of this Annex reads:         [Dutch]       "4.   Het nader onderzoek in het kader van de Interimwet       bodemsanering heeft aangegeven dat er sprake is van een zodanige       verontreiniging van de bodem onder of in de directe omgeving van       de woning, dat er ernstig gevaar voor de volksgezondheid of het       milieu bestaat."         [translation]       "4.   The further investigation in accordance with the Interim       Act on Soil Cleaning has shown the existence of such pollution       of the soil under or in the direct vicinity of the dwelling as       to constitute a serious threat to public health or environment."         The building concerned is located in an area where, following an indicative examination of the soil in 1985, the Central Environmental Management Service Rijnmond (Dienst Centraal Milieubeheer Rijnmond) carried out an investigation of the soil under the Interim Act on Soil Cleaning (Interimwet Bodemsanering). A report on the subsequent further investigation by the Central Environmental Management Service Rijnmond under the Interim Act on Soil Cleaning was completed in July 1990.         On the basis of the results of this investigation the Provincial Executive (Gedeputeerde Staten) of Zuid-Holland decided that the soil should be cleaned and, by letter of 1 November 1990, the Provincial Executive informed the inhabitants of the area about the pollution of the soil and about the decision of principle to undertake clean-up measures. On 26 March 1991 the Provincial Executive transmitted the final report on the soil investigation to the Mayor and Aldermen (Burgemeester en Wethouders) of Maassluis and informed them that "the Provincial Executive finds it desirable to carry out an investigation regarding the cleaning of the area". In a provincial soil cleaning programme for 1992 the area was indicated as being subject to the Interim Act on Soil Cleaning.         On this basis, the District Court judge found that this was a case where the soil is, or risks being, polluted to such an extent that there is a serious danger to public health or environment within the meaning of the second sentence of Section 2 para. 1 of the Interim Act on Soil Cleaning.         In the proceedings before the District Court judge, the applicant company, while referring to the findings in the report on the investigation of the soil of July 1990 - which stated, inter alia, that on the basis of the present information the pollution at issue would not lead to noticeable or measurable health damage -, had objected that no such danger to public health or environment in fact existed. It had further argued that the decision of the Provincial Executive under the Interim Act on Soil Cleaning should not automatically lead to the conclusion that there was a so-called "absolute zero condition" (absoluut nulpunt) as mentioned under point 4 of Annex IV of the Ordinance implementing the Act on Rents for Housing Accommodation.         However, the District Court judge held that it was not his task to determine directly or indirectly whether or not the Provincial Executive's decision was correct and well-founded and considered the existence of a serious threat to public health or environment to be a fact established by the Provincial Executive's decision that a soil cleaning operation should be carried out in this area.         The District Court judge subsequently found in favour of the tenant concerned by deciding to deduct the maximum number of 20 points for a particularly serious deficiency from the number of points the flat was assessed at under the residential accommodation point-rating system. He further set the rent at the minimum reasonable rent corresponding to the number of points thus determined, i.e. a rent of 399,75 Dutch guilders as from 1 May 1990.         Subsequently 269 other tenants of the applicant company have introduced proceedings in order to have their rents reduced in the same way.   The applicant company alleges that this will mean an annual loss of rent income amounting to about 1.300.000 Dutch guilders.         On 21 July 1992 the District Court judge of Schiedam, in another case between a tenant and an owner of a house in Maassluis, decided not to reduce the rent since the Provincial Executive had not yet taken a decision within the meaning of the second sentence of Section 2 para. 1 of the Interim Act on Soil Cleaning.   2.     Relevant domestic law         The Act on Rents for Housing Accommodation (Huurprijzenwet Woonruimte) lays down the rights and obligations between tenants and landlords in respect of the rents charged for housing accommodation. The aim of the system adopted in the Act on Rents for Housing Accommodation is that the rent should as far as possible reflect the quality of the housing accommodation.         Pursuant to Section 5 para. 1(a) of the Ordinance implementing the Act on Rents for Housing Accommodation the quality will be assessed on the basis of a housing accommodation point-rating system, which system is set out in Annex I to the Ordinance. Point 11 of Annex I contains rules for assessing the quality of housing accommodation in cases where there is a high nuisance level in the neighbourhood which has a negative influence on the enjoyment of the accommodation, such as, inter alia, traffic or industrial noise, serious deterioration of the neighbourhood or non-incidental pollution of the air or soil, which could affect the health of residents. If this is the case a maximum of 20 points can be deducted from the points awarded to the accommodation.         Annex IV to the Ordinance contains a list of particularly serious deficiencies, the so-called "absolute zero conditions", which are used in disputes concerning rent increases or reductions. The presence of such a "zero condition" makes a rent increase impossible and can lead to a reduction of the rent to the minimum reasonable level pertaining to the determined number of points of a particular accommodation. The minimum reasonable level of rent belonging to a given number of points is set on a yearly basis and can be found in Annex III to the Ordinance.         Under Section 17 of the Act on Rents for Housing Accommodation new tenants, within three months following the conclusion of a rent agreement, can request the Rent Board to assess whether the agreed rent is reasonable. Under Sections 20 and 23 of the Act both tenants and landlords can request the Rent Board to determine whether a proposed change of the rent is reasonable.         Both tenants and landlords can file an appeal against the Rent Board's decisions with the District Court. The District Court may fully review a decision of the Rent Board but, like the Rent Board, must observe the criteria for assessing whether the rent is reasonable as set out in the Ordinance, i.e. the point rating scale and the zero condition system. It is, however, within the discretion of the District Court to assess whether or not a specific soil pollution constitutes a serious health risk for tenants. No appeal lies against the decision of the District Court.   COMPLAINTS   1.     The applicant company complains under Article 6 para. 1 of the Convention that it did not receive an effective judicial review in the determination of its civil rights, as the District Court judge considered himself bound by the position taken by the Provincial Executive in respect of the soil pollution and its effects on public health and environment, thereby barring the applicant company from obtaining a judicial finding on an important part of its legal arguments.   2.     The applicant company complains under Article 13 of the Convention that it had no effective remedy against the decision of the Provincial Executive which affected its property rights.   3.     The applicant company complains under Article 1 of Protocol No. 1 that the rules about reduction of rent by reason of soil pollution are disproportionate and arbitrary. The fact that a drastic reduction of the rent takes place when the Provincial Executive has taken a decision about the danger caused by soil pollution, whereas, in the absence of such a decision, there is no such reduction, is based on an arbitrary distinction.   A number of other relevant factors are left out of account, and the applied criterion is inappropriate.   The applicant also submits that the financial burden of soil pollution is put on the property owner, irrespective of whether he has in any way caused the pollution.   4.     The applicant company complains under Article 14 of the Convention that, since there is no appeal against the decisions of the District Court judge, there can be a legal inequality which also appears from this case.   In fact, while the applicant had to suffer a substantial reduction of the rent income, another property owner in the same area was permitted by decision of a District Court judge to increase his rents, despite the fact that the pollution conditions were exactly the same.   The applicant further points out that there is a legal inequality in that the public authorities have access to a court in order to have a decision on the responsibility for soil pollution, whereas a property owner, in cases where those responsible for the pollution are unknown, will, without any judicial assessment of risks and responsibility, be obliged, as a result of a rent reduction, to compensate a large part of the damage.   5.     Finally, as regards Article 1 of the Protocol No. 1 in conjunction with Articles 14, 17 and 18 of the Convention, the applicant submits that the judgment of the District Court judge of Schiedam violates the principle of equality in that:         (a)   In one and the same area, the applicant suffered a rent       reduction to half of the rent whereas another property owner was       allowed to increase the rent;         (b)   in a similar case, the District Court judge of Amsterdam       found that there was no serious danger to public health;         (c)   the District Court judge did not take into account the       differences between owners of one family houses and owners of       apartment buildings insofar as the effects of soil pollution are       concerned.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 9 September 1992 and registered on 16 September 1992.         On 8 January 1993 the Commission decided to communicate the application to the Netherlands Government and invite them to submit written observations on the admissibility and merits of the application.         The Government's observations were submitted on 2 April 1993. The applicant company's observations in reply were submitted on 10 August 1993.   THE LAW   1.     The applicant company complains under Article 6 para. 1 (Art. 6-1) of the Convention that it did not receive an effective judicial review in the proceedings before the District Court judge concerning a rent dispute.         Article 6 para. 1 (Art. 6-1), insofar as relevant, provides:         "In the determination of his civil rights and obligations       (...), everyone is entitled to a fair (...) hearing (...)       by an independent and impartial tribunal (...)."         The Government submit that in the proceedings at issue the District Court is fully competent to make its own independent assessment of the question whether or not the soil is polluted to such an extent that this amounts to a serious danger to public health or environment. The District Court, in making this assessment, may rely on the results of the soil investigation by the competent administrative authorities. It appears from Dutch case-law that District Courts do not necessarily follow the findings by the administrative authorities in respect of the effects of soil pollution on public health and environment.         The Government further submit that in the present case the District Court judge apparently found that it was not necessary to examine whether the Provincial Executive had taken its decision on good grounds, in view of the results of the soil investigations and the decision to include the area in a soil cleaning programme.         The applicant company submits that in the present proceedings the District Court judge failed to make an assessment of his own as to the factual effects of the soil pollution, as he considered himself bound by the position taken by the Provincial Executive in respect of the soil pollution and its effects on public health and environment, thereby barring the applicant company from obtaining a judicial finding on an important part of its legal arguments, since the District Court judge failed to determine whether or not the soil pollution at issue in fact constituted a threat to the public health or environment of the residents in the area concerned which is a decisive element in the determination of the rent the applicant company can charge its tenants.         The Commission observes that the applicability of Article 6 para. 1 (Art. 6-1) to the proceedings at issue is not disputed between the parties. Noting that the proceedings were decisive for the rent the applicant company could charge its tenants, the Commission finds that the proceedings involved a determination of the applicant company's civil rights within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.         After a preliminary examination of the substance of the present complaint in the light of the parties' submissions, the Commission considers that it raises questions of fact and law of such complexity that its determination requires an examination of the merits. The application cannot, therefore, be declared inadmissible 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.   2.     The applicant company further complains of a violation of Article 13 (Art. 13) of the Convention, which provides:         "Everyone whose rights and freedoms as set forth in this       Convention are violated shall have an effective remedy       before a national authority notwithstanding that the       violation has been committed by persons acting in an       official capacity."         The applicant company submits that the fact that the District Court judge considered himself bound by the position taken by the Provincial Executive meant that there was no effective remedy against the decision of the Provincial Executive   as regards the protection of its property.         The Commission observes that this complaint cannot be separated from the above complaint under Article 6 para. 1 (Art. 6-1) of the Convention, the issues being closely interrelated. It, therefore, considers that this complaint cannot be declared inadmissible 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.   3.     The applicant further alleges a violation of Article 1 of Protocol No. 1 (P1-1) to the Convention. It argues that the rules about reduction of rent on the basis of soil pollution are disproportionate and arbitrary, since on the basis of an arbitrary finding by administrative authorities landlords are burdened with the financial consequences of soil pollution.         Article 1 of Protocol No. 1 (P1-1) provides as follows:         "Every natural or legal person is entitled to the peaceful       enjoyment of his possessions. No one shall be deprived of his       possessions except in the public interest and subject to the       conditions provided for by law and by the general principles of       international law.         The preceding provisions shall not, however, in any way impair       the right of a State to enforce such laws as it deems necessary       to control the use of property in accordance with the general       interest or to secure the payment of taxes or other contributions       or penalties."         The Government, referring to the Contracting State's wide margin of appreciation in the field of housing and the necessity felt to offer tenants sufficient legal protection in the field of rent levels, submit that serious pollution of the soil in the area of a building can affect a tenant's enjoyment of rented accommodation, which element plays a key role in the Dutch housing accommodation point-rating system for rented accommodation. Although in general neither the tenant nor the landlord is to blame for serious soil pollution, the legislator considered that a landlord, who in his relation with the tenant can be regarded as an entrepreneur, takes certain more or less predictable risks. Moreover, a landlord can claim compensation for the devaluation of his property or diminished exploitation profits from those responsible for the soil pollution, or from the municipality that has allowed building on the soil, whereas the tenant has only the possibility of obtaining compensation by means of a rent reduction.         The applicant company argues that the application of the rules about reduction of rent by reason of soil pollution is disproportionate and arbitrary and, therefore, not compatible with the second paragraph of Article 1 of Protocol No. 1 (P1-1). It submits that, although the Act on Rents for Housing Accommodation and the Interim Act on Soil Cleaning have different aims, the same criterion "serious danger to public health or the environment" is applied in the same way in both regulations. According to the applicant company the application of this criterion is inappropriate for the determination of the rent. Regardless of the kind of soil pollution and the particular housing situation, the effects on the rent are the same, whereas the financial risks for the soil pollution are to a great extent borne by the landlords.         The applicant company further submits that the drastic reduction of the rent at issue is based on an arbitrary distinction, since it takes place when the Provincial Executive has taken a decision about the danger caused by soil pollution whereas, in the absence of such a decision, there is no such reduction and, moreover, no distinction is made between serious and less serious cases of soil pollution.         The Commission notes that the rules at issue have not removed the applicant company's interest in, or title to, the property concerned but merely restrict the applicant company's freedom to ask for an increase of rent or to maintain the rent at the initially agreed level. The Commission finds that a restriction of this kind amounts to a control of the use of property within the meaning of the second paragraph of Article 1 of Protocol No. 1 (P1-1) (cf. No. 8003/77, Dec. 3.10.79, D.R. 17 p. 80 and No. 16756/90, Dec. 12.1.91, D.R. 68 p. 312). The Commission has therefore examined whether this control is lawful, is in accordance with the general interest and pursues a legitimate aim in a proportionate manner (Eur. Court H.R., Tre Traktörer AB judgment of 7 July 1989, Series A no. 159, pp. 22-24, paras. 56-63).         The Commission notes that the restriction imposed is based on the Act on Rents for Housing Accommodation, the Ordinance implementing the Act on Rents for Housing Accommodation and the Annexes to the Ordinance. The lawfulness of the District Court judge's decision is not disputed between the parties and the Commission finds no reason to doubt that this decision was lawful.         The Commission recalls the case-law of the Convention organs which recognises that State intervention in socio-economic matters, such as housing, is often necessary in securing social justice and public benefit. In implementing social and economic policies, the margin of appreciation available to a legislature or to the public authorities is necessarily a wide one under Article 1 of the Protocol (P1-1), both with regard to the existence of a problem of public concern warranting measures of control and as to the choice of such measures (cf. Eur. Court H.R. James and others judgment of 21 February 1986, Series A no. 98, p. 32, para. 46, and Mellacher and others judgment of 19 December 1989, Series A No. 169, p. 26, para. 45).         In the present case the Commission finds that the decision complained of pursues a legitimate aim in the general interest, i.e. the aim of protecting the interests of tenants. As to the proportionality of the interference the Commission notes that the applicant company remains owner of the property, which it is free to dispose of, that it continues to receive rent from the tenants, that it is, in principle, free to claim damages for the financial consequences of the soil pollution from either the responsible polluter or the municipality and that, once the soil has been cleaned, the applicant company can increase the rent up to a reasonable level since the reason for the rent deduction will then have disappeared.         In these circumstances, the Commission finds that, bearing in mind the wide margin of appreciation afforded to Contracting States in regulating housing problems, the control of the use can be considered to be justified within the meaning of the second paragraph of Article 1 of Protocol No. 1 (P1-1) to the Convention.         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.   4.     The applicant further alleges a violation of Article 14 (Art. 14) of the Convention which, insofar as relevant, reads:         "The enjoyment of the rights and freedoms set forth in this       Convention shall be secured without discrimination on any       ground such as (...) property (...) or other status".         The applicant company complains under Article 14 in conjunction with Article 6 (Art. 14+6) of the Convention in the first place that, since there is no appeal against the decision of the District Court judge, there can be a legal inequality which also appears from this case. Secondly the applicant complains under Article 14 in conjunction with Article 6 (Art. 14+6) of the Convention that there is a legal inequality in that the public authorities have access to a court in order to obtain a decision on the responsibility for soil pollution, whereas a landlord, in cases where those responsible for the pollution are unknown, has no such possibility to obtain compensation for the damage of the soil pollution. In the third place the applicant complains under Article 14 in conjunction with Article 1 of Protocol No. 1 (Art. 14+P1-1) that another owner of real estate in the same area was allowed to increase the rent, whereas the applicant suffered a rent reduction by 50%.         The Commission recalls that Article 14 (Art. 14) of the Convention has no independent existence, but supplements the other provisions of the Convention and the Protocols. Article 14 (Art. 14) safeguards individuals placed in similar situations from discrimination in the enjoyment of the rights set forth in those other provisions (cf.No.10491/83, Dec. 3.12.86, D.R. 51 p. 41, at p. 50).   a.     As regards the first complaint under Article 14 (Art. 14) the Commission notes that the applicant company essentially complains of the lack of an appeal against the decision of the District Court judge.         However, according to well-established case-law, Article 6 (Art. 6) of the Convention does not guarantee the right to appeal (cf. Eur. Court H.R., De Cubber judgment of 26 October 1984, Series A no. 86, p. 18, para. 32; No. 12323/86, Dec. 13.7.88, D.R. 57 p. 155).         It follows that this part of the complaint must be rejected as being incompatible ratione materiae with the Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   b.     As regards the second complaint under Article 14 (Art. 14) the Commission notes that the applicant seeks to compare the situation of an administrative authority in the case of a known soil polluter with the situation of a private landlord in the case of an unknown soil polluter in respect of the "right to a court" of which the right of access is one aspect (cf Eur. Court H.R. Ashingdane judgment of 28 May 1985, Series A No. 93, p. 24, para. 55). However, the Commission is of the opinion that these two situations cannot be regarded as comparable for the purposes of Article 14 (Art. 14) of the Convention.         It follows that this part of the complaint is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   c.     As regards the third complaint under Article 14 (Art. 14), the Commission notes that in the other case, referred to by the applicant company, in which the rent was not reduced the District Court judge, contrary to the situation in the applicant company's case, decided not to reduce the rent since the Provincial Executive had not yet taken a decision within the meaning of the second sentence of Section 2 para. 1 of the Interim Act on Soil Cleaning. In these circumstances the Commission finds, recalling that it cannot examine alleged errors of fact and law   committed by domestic courts, that these two situations cannot be regarded as comparable for the purposes of Article 14 (Art. 14) of the Convention.         It follows that this part of the complaint is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   5.     Finally, the applicant company alleges violations of Article 1 of Protocol No. 1 in conjunction with the Articles 17 and 18 (P1-1+Art. 17+18) of the Convention.         The Commission has examined these complaints and, insofar as the matters complained of have been substantiated, finds that they do not disclose any appearance of a violation of the provisions invoked.         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.         For these reasons, the Commission, by a majority,         DECLARES ADMISSIBLE, without prejudging the merits of the case, the applicant company's complaints under Article 6 para. 1 (Art. 6-1) and Article 13 (Art. 13) of the Convention;         and unanimously,         DECLARES INADMISSIBLE the remainder of the application.   Secretary to the Second Chamber        President of the Second Chamber           (K. ROGGE)                            (S. TRECHSEL)