CASE OF VAN DE HURK v. THE NETHERLANDS
Violation of Art. 6-1 (independent tribunal);No violation of Art. 6-1 (fair trial);Pecuniary damage - claim dismissed;Costs and expenses partial award - Convention proceedings
R. Pekkanen
6. The applicant is a Netherlands national born in 1945. He lives at Geffen in the province of Noord-Brabant, where he is a dairy farmer. 7. The applicant owned a cowshed in which there were originally 90 stands for milch cows and cows in calf as well as 63 stands for calves and heifers. In the years 1981, 1982 and 1983 the numbers of milch cows and cows in calf were 90, 96 and 102, respectively; the quantities of milk produced by the applicant in those years were 475,952, 445,571 and 488,026 kilograms. 8. After the Ordinance no. J 1731 on the Additional Levy (Beschikking Superheffing) of 18 April 1984, Staatscourant (Government Gazette) 79 -"the 1984 Ordinance"- was published on 19 April 1984, the applicant was allocated a reference quantity (that is a quantity of milk in excess of which an additional levy is payable - see paragraph 23 below) of 445,813 kilograms. 9. On 29 June 1984 the applicant filed a claim for a larger levy-free quantity of milk under Article 11 of the 1984 Ordinance (see paragraph 27 below) with the Head of the District Office of the Board for the Implementation of Agricultural Measures (districtsbureauhouder van de Stichting tot Uitvoering van Landbouwmaatregelen) of the province of Noord-Brabant. He stated that he had entered into obligations to invest in increasing the number of cow stands for milch cows and cows in calf as early as January 1984. These investments related to a new shed for heifers and bulls, the construction of which would release 40 stands in the existing shed for milch cows and cows in calf. The number of such stands would thus be raised from 90 to 130, an increase of more than 25%. The total cost of building the new shed and adapting the existing one came to more than NLG 100,000. 10. The Head of the District Office of the Board for the Implementation of Agricultural Measures forwarded the applicant’s claim to the Director of Agriculture and Food Supply (directeur voor de landbouw en voedselvoorziening) of the province of Noord-Brabant (see paragraph 28 below). The latter rejected it on 1 November 1984, on the ground that the applicant had failed to show "that it had always been his intention to increase the number of stands for milch cows as stated in his claim". 11. On 27 November 1984 the applicant filed an objection to this decision with the Minister of Agriculture and Fisheries (see paragraph 30 below), arguing at length that he had in fact been planning such an increase for a long time. 12. The Minister of Agriculture and Fisheries dismissed the applicant’s objection on 11 November 1985, on the ground that "it appeared from the facts and circumstances stated in the objection and from information obtained officially from other sources (ambtelijk overig ingewonnen informatie)" that the number of stands for milch cows and cows in calf had been increased from 118 to 130 (i.e. by 12 or approximately 10%). The increase thus fell well short of the minimum of 25% required by the 1984 Ordinance (see paragraph 27 below). 13. The applicant appealed to the Industrial Appeals Tribunal (College van Beroep voor het Bedrijfsleven) ("the Tribunal" - see paragraph 31 below) on 3 December 1985. He maintained that the number of stands had been increased by 40 and argued that the Minister had erred in considering that the cowshed had originally contained 118 stands. 14. In addition, by a letter which reached the registry of the Tribunal on 30 December 1986, Mr van de Hurk applied to the President of the Tribunal (see paragraph 35 below) for an interim measure to the effect that, pending the Tribunal’s judgment, he should not be required to pay the additional levy for 1984-85 and the following milk years and that he should be paid back the additional levy he had already paid in respect of milk production which had not exceeded the reference quantity claimed on the basis of 28 new stands. 15. After a public hearing, the President of the Tribunal, in a letter dated 10 February 1987, asked the Minister to indicate whether he was prepared to reconsider his decision. By a letter dated 3 April 1987 the Minister replied that he saw no reason to do so and that the interim measure requested by the applicant should be refused. The Minister discussed the question of the increase in the number of stands and maintained his previous position. He submitted in the alternative that the applicant’s investments referable to that increase fell short of the required minimum of NLG 100,000. The Minister estimated that the total investment had been worth NLG 176,608.27 and the price per square metre of the new shed had been NLG 197.23; calculating on the basis of the surface taken up in the old shed by the new stands for milch cows and cows in calf, he concluded that the amount involved in the increase had been NLG 48,406.65 at the most. 16. The applicant set out his objections in a letter dated 18 May 1987. He argued firstly that the Minister was estopped from using this argument, which had never been invoked as a reason for rejecting the applicant’s original claim; in the alternative, the Minister’s calculations were wrong. He claimed, with reference to a list of the costs concerned drawn up by his accountant, that his total investment had in fact been NLG 215,183.22, and criticised the method of calculation used by the Minister. In his view, 65% of the total investment was referable to cow stands in the new shed for heifers, of which 90% replaced similar stands in the old shed that were now to be used for milch cows and cows in calf; the sum relating to the relevant increase was therefore NLG 125,882. 17. On 7 July 1987 the President of the Tribunal gave a decision refusing the interim measure requested, holding that it was not prima facie likely that the Tribunal itself would overturn the Minister’s decision. In his view, the Minister had not erred in rejecting the applicant’s claim. The President did not find it necessary to address the question of the increase in the number of stands for milch cows and cows in calf, since he accepted the Minister’s alternative argument concerning the applicant’s investment. He rejected the applicant’s submission that the Minister was estopped from relying on that ground, holding that section 51 of the 1954 Industrial Appeals Act (Wet administratieve rechtspraak bedrijfsorganisatie, Staatsblad (Official Bulletin) 1954, 416, as amended - "the 1954 Act") entitled him to supplement his arguments while the applicant had not only had sufficient possibility of replying to the Minister’s alternative submission but had in fact done so. Accepting the method of calculation used by the Minister and the total investment submitted by the applicant, the President arrived at a figure of NLG 55,440 referable to the increase in the number of stands in the old cowshed, and that figure was insufficient. 18. By a letter of 25 September 1987 to the registrar of the Tribunal the applicant stated that he wished to continue the proceedings. Commenting on the President’s decision, he discussed extensively his own method of calculation. Like the Minister, he took as his starting-point the investment involved in building the new shed for heifers. Starting from the figure which he gave before the President - NLG 215,183.22 (see paragraph 16 above) - he calculated a price per square metre of NLG 240. On that basis he arrived at a figure of NLG 125,882 for the investment referable to the increase in the number of cow stands for milch cows and cows in calf in the existing cowshed. In the alternative, if the Minister’s calculations were to be followed, he submitted that the Minister had based them on incorrect premises; if applied correctly, the Minister’s method resulted in a figure referable to the extension of stands for milch cows and cows in calf of NLG 91,200, which was sufficient since the applicant had carried out the physical work involved in building the new cowshed himself (see paragraph 27 below). 19. The Minister filed a written statement in reply on 21 November 1988. A public hearing was held on 19 April 1989, during which the applicant again contested the Minister’s method of calculation and argued that, should the Tribunal accept it nevertheless, the price per square metre calculated by the Minister was in any case too low; it was not NLG 240 - the Minister’s figure - but NLG 342.85. 20. The Tribunal delivered its judgment on the merits on 16 June 1989. Adopting the same approach as the President, it did not decide whether the increase in the number of cow stands had been sufficient; indeed, it explicitly declined to address this point. It likewise accepted the Minister’s method of calculation; applying it to the figures submitted by the applicant in response to the decision of its President (a price per square metre of NLG 240, the new stands covering a surface of 330 square metres), the Tribunal arrived at an investment of NLG 79,200 referable to the increase in the number of stands. The Tribunal refused to consider the price per square metre put forward by the applicant at the hearing, on grounds of belatedness, holding: "The applicant’s statement first made at the hearing to the effect that the price per square metre is in reality NLG 342.85 will not be taken into account in reviewing the decision appealed against, in view of the rule laid down in Article 6 para. 2 of the Ordinance, amongst other things." Accordingly, concluding that the applicant’s investments fell short of the minimum required, the Tribunal rejected the applicant’s appeal. 21. There had been surpluses of milk and milk products for some considerable time. By 1984, according to the preamble of Council Regulation (EEC) no. 856/84, "quantities of milk delivered [were] increasing at a rate such that disposal of surpluses [was] imposing financial burdens and market difficulties which [jeopardised] the very future of the common agricultural policy". 22. Amending an earlier regulation which had not proved sufficiently effective, Council Regulation (EEC) no. 856/84 (OJ (Official Journal) no. L 90 of 1 April 1984, p. 10) was adopted by the Council of the European Communities in response to these structural surpluses. 23. The Council of the European Communities decided that for an initial period of five years the quantity of milk every dairy farmer would be allowed to produce should be limited to a fixed amount (the "reference quantity"). To this end they introduced a system under which dairy farmers had to pay a penalty or "additional levy" on milk delivered in excess of their allotted quantities. It was left to the States themselves to share out their guaranteed quantities within their jurisdictions according to a formula prescribed by Council Regulation (EEC) no. 857/84 (OJ no. L 90 of 1 April 1984, p. 13). 24. Under Article 189 of the EEC Treaty, Council Regulations (EEC) no. 856/84 and (EEC) no. 857/84 were binding in their entirety and directly applicable in all member States of the European Communities. They entered into force on 1 April 1984. 25. Under section 13 paras. 1-2 of the Agriculture Act (Landbouwwet), the Minister of Agriculture, Nature Conservancy and Fisheries (minister voor landbouw, natuurbeheer en visserij) is empowered to issue an ordinance (beschikking) imposing a levy on the production, supply and processing of agricultural produce. Such an ordinance may be adopted, inter alia, to give effect to regulations, guidelines, decisions and recommendations of the EEC in so far as they relate to its common agricultural policy. 26. Council Regulations (EEC) no. 856/84 and (EEC) no. 857/84 were implemented by the 1984 Ordinance. This Ordinance was given retroactive effect to 1 April 1984, that being the date of entry into force of the EEC regulations. 27. Dairy farmers who had assumed obligations in connection with investments (investeringsverplichtingen) after 1 September 1981 but before 1 March 1984 could claim a larger reference quantity, calculated according to a formula given in the 1984 Ordinance, if certain conditions were fulfilled. Such an increased reference quantity was available, inter alia, to dairy farmers who could prove that they had entered into financial obligations to increase the number of their cow stands (for milch cows or cows in calf) by at least 25% to more than 60 (Article 11 of the 1984 Ordinance). The amount required to be invested was at least NLG 100,000, or 90% of that figure if the farmer could prove that he himself had contributed sufficiently to the physical work involved to make up the difference. 28. A person claiming an increased reference quantity on the basis of Article 11 of the 1984 Ordinance had until 1 August 1984 to file his claim with the Head of the District Office of the Board for the Implementation of Agricultural Measures, who would forward it to the provincial Director of Agriculture and Food Supply (Articles 6 para. 1, 7 para. 1 of the 1984 Ordinance). The Director gave a decision after consulting an advisory panel. 29. Such a claim had to be accompanied by a statement setting out the arguments and documentary evidence. According to Article 6 para. 2 of the 1984 Ordinance: "A claim as referred to in the first paragraph shall be reasoned. It shall include a statement supported by evidence as to the various grounds of the claim referred to in Articles 11, 11b, 11c, 12 and 13. The claim shall not be admissible if ... the rules laid down in this paragraph have not been complied with." 30. In the event of his claim being rejected, the claimant had thirty days within which to file an objection (bezwaarschrift) to the Director’s decision with the Minister (Article 7 paras. 2-3 of the 1984 Ordinance). 31. An appeal against the decision of the Minister lay within thirty days to the Tribunal (section 46 of the Agriculture Act). 32. The Tribunal is a judicial body set up under the 1954 Act. It was instituted initially to hear appeals against decisions and acts by various economic regulatory bodies, but gradually its jurisdiction has been extended to include certain decisions of central government and other independent government bodies under specialist legislation. According to the "Guidelines for making provision for appeals to the Industrial Appeals Tribunal" (Richtlijnen voor het openstellen van beroep op het College van Beroep voor het Bedrijfsleven) of 24 June 1986, Government Gazette 1986, 124, the Tribunal should in principle be the competent court with regard to "legislation of a socio-economic nature". Section 5 of the 1954 Act gave the Tribunal competence to review such acts and decisions for compliance with legislation of a general nature and general principles of good governance (algemene beginselen van behoorlijk bestuur), to check whether there had been any abuse of authority and to determine whether in weighing up the interests at stake, the government body concerned had acted reasonably in deciding as it had. 33. The judges of the Tribunal are appointed for life by the Crown. They must have the same qualifications as Court of Appeal judges (section 9 of the 1954 Act). They take the same oath and receive the same salary as Court of Appeal judges and are subject to the same rules and procedure as regards supervision and dismissal (sections 11 and 12 of the 1954 Act). Tribunal judges may not have any other official position, nor may they hold any position in private enterprise or in any association of employers or employees (section 10 of the 1954 Act). 34. The proceedings before the Tribunal are public. At the material time, they normally comprised written proceedings (an application filed by an appellant, a memorial in reply submitted by the government body concerned, and possibly - if the President consented - additional memorials) followed by an oral hearing (sections 29 et seq. of the 1954 Act). Section 51 allowed both the government body and the applicant to "alter their claim or their defence and the grounds advanced in support, until the close of the hearing, unless the Tribunal [was] of the opinion that such a change place[d] the opponent at an unreasonable disadvantage". 35. Under section 65 of the 1954 Act the applicant could apply for interim measures to the President of the Tribunal. He could do so both before and after filing an appeal on the merits. The President would give a decision as soon as possible, having heard the government body concerned or at least offered it the opportunity to be heard. 36. The Tribunal, against whose judgment there was no further appeal, was empowered to overrule the decision appealed against and to provide for the consequences of such reversal; in particular, it could order the government body concerned to make, retract or alter a decision or to act or refrain from acting in a certain way. The judgment might include an order to pay a penalty in the event of non-compliance (section 58 of the 1954 Act). The Tribunal could also order the body to pay compensation for any damage suffered by the appellant as a result of the decision or act appealed against (section 60). To the extent that the judgment ordered payment of a sum of money, it could be executed in accordance with the rules pertaining to the execution of judgments of the courts in civil cases (section 62). 37. Sections 74 and 75 of the 1954 Act provided as follows: "1. If in Our opinion the consequences of a judgment [i.e. of the Industrial Appeals Tribunal] are contrary to the general interest, We may, on the recommendation of those of Our ministers whom it concerns, decide that it shall not be followed or shall not be followed in its entirety. 2. Pending the taking of a decision under the preceding paragraph, We may, on the recommendation of those of Our ministers whom it concerns, suspend the judgment in whole or in part for a length of time to be determined by Us. Even after prolongation, suspension may not be for longer than one year. 3. A decision as referred to in the first paragraph may only be taken within two months of the judgment or, if the judgment is suspended within that period, within the length of time determined for the suspension. A decision as referred to in the second paragraph may only be taken within two months of the judgment. 4. Our decisions shall be published in the Official Bulletin. 5. The first two paragraphs shall not apply in so far as the decision awards compensation or partial compensation or orders the payment of costs. 6. ..." "1. If We decide that the judgment shall not be followed or shall not be followed in its entirety, the Industrial Appeals Tribunal may, at the request of the person concerned, retry the case taking due notice of Our Decision or order the government body concerned to pay compensation for all or part of the damage suffered by the appellant as a consequence of the fact that the judgment is not followed or not followed in its entirety. 2-4. ..." The expressions "We", "Our" and "Us" in the above sections referred to the fact that the decisions under section 74 took the form of a royal decree (Koninklijk besluit), that is a decree signed by the Monarch and the Minister responsible. Since such a decree can only be adopted on the initiative and the (political) responsibility of a Minister, it was effectively the Minister who had the power to issue a decision under section 74 paras. 1-2. Following customary Netherlands terminology, the present judgment will refer to the Monarch and the Minister together as "the Crown". 38. No use was ever made of the powers under sections 74 and 75 of the 1954 Act. The above-mentioned Guidelines (see paragraph 32 above) stated explicitly that new laws conferring jurisdiction on the Tribunal should declare the 1954 Act applicable except for sections 74 and 75. Before the Guidelines were drawn up, the Minister of Justice replied as follows to a question from the Council of State (Raad van State): "In my opinion, it is in principle never necessary to declare sections 74 and 75 applicable by analogy. At the time, these two provisions were included in the Act as a matter of prudence, which may be explained by the circumstance that more than thirty years ago the legislature had little idea of the way in which administrative judicial procedure would develop. No use has ever been made of the Crown’s powers under section 74. One might even venture to suggest that the scheme of sections 74 and 75 has become a dead letter." (Kamerstukken (Parliamentary Documents) II 1984-1985, 18798, A-C, p. 10) 39. The 1954 Act remained in force until 1 January 1994. On that date a General Administrative Code (Algemene Wet Bestuursrecht) came into force, laying down new uniform rules of administrative-law procedure. At the same time the 1954 Act was replaced by the Industrial Organisation (Administrative Jurisdiction) Act (Wet bestuursrechtspraak bedrijfsorganisatie). Under section 19 of that Act, the new uniform rules laid down in the General Administrative Code also govern the procedure of the Tribunal. There is no provision in either the Code or the Act empowering any executive authority to interfere with the binding force of a judgment.