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You are here: BAILII >> Databases >> European Court of Human Rights >> TERRA WONINGEN B.V. v. THE NETHERLANDS - 20641/92 [1996] ECHR 66 (17 December 1996)
URL: http://www.bailii.org/eu/cases/ECHR/1996/66.html
Cite as: [1996] ECHR 66, (1997) 24 EHRR 456
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In the case of Terra Woningen B.V. v. the Netherlands (1),
The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of
Human Rights and Fundamental Freedoms ("the Convention") and the
relevant provisions of Rules of Court B (2), as a Chamber composed of
the following judges:
Mr R. Bernhardt, President,
Mr Thór Vilhjálmsson,
Mr F. Gölcüklü,
Mr L.-E. Pettiti,
Mr B. Walsh,
Mr J. De Meyer,
Mr N. Valticos,
Mr S.K. Martens,
Mr B. Repik,
and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy
Registrar,
Having deliberated in private on 25 April and 28 November 1996,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
1. The case is numbered 49/1995/555/641. The first number is the
case's position on the list of cases referred to the Court in the
relevant year (second number). The last two numbers indicate the
case's position on the list of cases referred to the Court since its
creation and on the list of the corresponding originating applications
to the Commission.
2. Rules of Court B, which came into force on 2 October 1994, apply
to all cases concerning the States bound by Protocol No. 9 (P9).
________________
PROCEDURE
1. The case was referred to the Court by the European Commission
of Human Rights ("the Commission") on 29 May 1995, within the
three-month period laid down by Article 32 para. 1 and Article 47 of
the Convention (art. 32-1, art. 47). It originated in an application
(no. 20641/92) against the Kingdom of the Netherlands lodged with the
Commission under Article 25 (art. 25) on 9 September 1992 by a limited
liability company possessing legal personality under Netherlands law,
Terra Woningen B.V.
The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby the Netherlands
recognised the compulsory jurisdiction of the Court (Article 46)
(art. 46). The object of the request was to obtain a decision as to
whether the facts of the case disclosed a breach by the respondent
State of its obligations under Articles 6 para. 1 and 13 of the
Convention (art. 6-1, art. 13).
2. In response to the enquiry made in accordance with
Rule 35 para. 3 (d) of Rules of Court B, the applicant company stated
that they wished to take part in the proceedings and designated the
lawyer who would represent them (Rule 31).
3. The Chamber to be constituted included ex officio
Mr S.K. Martens, the elected judge of Netherlands nationality
(Article 43 of the Convention) (art. 43), and Mr R. Bernhardt, the
Vice-President of the Court (Rule 21 para. 4 (b)). On 8 June 1995, in
the presence of the Registrar, the President of the Court,
Mr R. Ryssdal, drew by lot the names of the other seven members, namely
Mr Thór Vilhjálmsson, Mr F. Gölcüklü, Mr L.-E. Pettiti, Mr B. Walsh,
Mr J. De Meyer, Mr N. Valticos and Mr B. Repik (Article 43 in fine of
the Convention and Rule 21 para. 5) (art. 43).
4. As President of the Chamber (Rule 21 para. 6), Mr Bernhardt,
acting through the Registrar, consulted the Agent of the
Netherlands Government ("the Government"), the applicant company's
lawyer and the Delegate of the Commission on the organisation of the
proceedings (Rules 39 para. 1 and 40). Pursuant to the order made in
consequence, the Registrar received the Government's memorial on
5 December 1995 and the applicant company's memorial on 8 December.
The Delegate of the Commission did not submit any observations in
writing.
5. On 22 January and 1 February 1996 the registry received certain
documents which the Registrar had sought from the applicant company and
the Government on the President's instructions.
6. In accordance with the decision of the President, the hearing
took place in public in the Human Rights Building, Strasbourg, on
22 April 1996. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr H. von Hebel, Agent,
Mr J.L. de Wijkerslooth de Weerdesteijn,
Landsadvocaat, Counsel,
Mr W.J.A. Vellekoop,
Ms M. Luursema, Advisers;
(b) for the Commission
Mr H.G. Schermers, Delegate;
(c) for the applicant company
Mr W.P.M. Weerdesteijn, advocaat en procureur, Counsel,
Mr E.A. Alkema, Adviser.
The Court heard addresses by Mr Schermers, Mr Weerdesteijn,
Mr Alkema and Mr de Wijkerslooth de Weerdesteijn.
AS TO THE FACTS
I. Particular circumstances of the case
A. Background
7. The applicant company have their registered office in
The Hague. Their business includes the development of real property.
8. The company owns 288 flats in six adjacent blocks situated on
the Merellaan in Maassluis, in a neighbourhood known as the
Noord-Nieuwlandsepolder-zuid. These blocks of flats were built around
1970 on land which, between 1961 and 1967, was levelled up to a height
of 3-4 metres above normal Amsterdam level (Normaal Amsterdams Peil)
with silt dredged up from various docks of the nearby port of
Rotterdam.
9. In 1985 it was reported that a smell of mineral oil had been
noticed in a garden in the Noord-Nieuwlandsepolder-zuid during digging.
This and a survey by Rotterdam's Department of Works of places where
harbour silt had been discharged led the
Rhine Estuary Regional Authority (Openbaar Lichaam Rijnmond - a now
defunct administrative body which used to exercise within the
Rhine estuary region authority transferred to it from the
Provincial Executive (Gedeputeerde Staten)) to include the
neighbourhood in its 1985 programme of measures to be taken under the
Soil Cleaning (Temporary Provisions) Act (Interimwet Bodemsanering -
see paragraph 29 below) and order the Rhine Estuary Central Department
for Environmental Protection (Dienst Centraal Milieubeheer Rijnmond)
to undertake an exploratory inspection (oriënterend onderzoek -
see paragraph 32 below) of the neighbourhood. The findings were such
that in 1986 the Public Health Inspectorate (Inspectie Volksgezondheid)
advised the local residents not to eat fruit and vegetables grown in
their own gardens or allotments. The Provincial Executive of the
province of South Holland ordered a further inspection (nader onderzoek
- see paragraph 32 below) in December 1986.
In July 1990 the Rhine Estuary Central Department for
Environmental Protection submitted a report on its further inspection.
It found that pollution caused by the heavy metals arsenic and mercury
and by "drins" (a group of compounds used as insecticides), especially
dieldrin and isodrin, was severe in places; where it occurred, it was
generally present up to surface level. There were also moderate
cadmium and lead pollution levels. The report noted that no covering
layer of clean soil had been applied. The chapter headed "Findings"
("Conclusies") included the following:
"It can be said that the additional concentration of chemicals
as a result of the pollution of the soil is undesirable but
not, given present (relatively limited) scientific knowledge,
that it will cause noticeable or measurable harm to health."
(p. 139)
The final chapter, headed "Recommendations", stated that in
unfavourable circumstances young children, if exposed to the pollution
found, might absorb more than the acceptable daily intake (ADI) of the
pollutants concerned and that in many places the quantity of "drins"
in the actual contact zone exceeded concentration level C given in the
assessment tables of the Soil Cleaning Guidelines (see paragraph 31
below). It was therefore recommended that an inspection should be
carried out with a view to possibly cleaning the soil
(saneringsonderzoek - see paragraph 32 below) and determining
"how the detrimental effects of the soil pollution on
public health and the environment can be eliminated, so as to
achieve a result acceptable from the point of view of
environmental hygiene" (p. 141).
10. In a letter of 1 November 1990 the Provincial Executive
informed the local residents that the further inspection had led them
to conclude that further soil cleaning measures were necessary. The
letter referred to the "undesirable situation" caused by the presence
of pollutants and their proximity to the surface and reiterated the
advice to residents not to eat fruit and vegetables from their gardens.
The letter went on to state that the Provincial Executive had decided
in principle to have the soil cleaned.
The draft of the decision was made available for public
inspection for four weeks from 5 November 1990 (see paragraph 33
below).
11. In a letter dated 26 March 1991 the Provincial Executive
informed the municipal authorities of Maassluis that it had decided to
order an inspection with a view to possibly cleaning the soil.
The Provincial Executive's implementation programme
(uitvoeringsprogramma) for soil cleaning from 1992 onwards
(see paragraph 32 below) included the Noord-Nieuwlandsepolder-zuid.
B. Proceedings before the Rent Board (Huurcommissie)
12. On 18 April 1990 the applicant company let a third-floor flat
in one of their blocks in the Merellaan to a Mr W. as from 1 May 1990.
The agreed rent was 790.25 Netherlands guilders (NLG) a month.
13. On 9 July 1990 Mr W. applied to the Rent Board in Schiedam for
a ruling as to the fairness of the rent (section 17 (1) of the
Rents for Housing Accommodation (Huurprijzenwet Woonruimte) Act -
see paragraph 21 below).
A report established by a Rent Board inspector on
1 October 1990 stated that there was neither serious overdue
maintenance nor any "absolute or relative zero condition", i.e. ground
for reducing the rent to the legal minimum (absolute of relatieve
nulpunten). In the inspector's view, the standard of the flat should
be assessed at 132 points under the applicable point-rating system
(see paragraphs 25-26 below).
At the hearing before the Rent Board on 30 January 1991 Mr W.
submitted a copy of the Provincial Executive's letter of
1 November 1990 (see paragraph 10 above) but did not contest the
inspector's findings.
14. The Rent Board gave its ruling on 17 April 1991. It found that
in view of factual circumstances relied on by the applicant company but
overlooked by the inspector the standard of the flat should be assessed
at 134 points. On that basis it concluded that the agreed rent was not
fair and assessed the fair rent at NLG 783.07. It does not appear from
the ruling that account was taken of the Provincial Executive's letter.
C. Proceedings in the District Court (kantonrechter)
15. On 24 June 1991 the applicant company applied to the
District Court of Schiedam for a binding decision (see paragraph 22
below). They contested certain factual assumptions made by the
Rent Board in regard to noise levels and argued that the Rent Board had
made a miscalculation; the correct standard rating of the flat should
be 142 points. On that basis they sought an order to set the rent at
NLG 832.14 or, in the alternative, at the sum originally agreed
(NLG 790.25).
16. In the course of the ensuing proceedings, Mr W. argued that
there was an "objectionable situation" (hinderlijke situatie) that
justified reducing the points rating by 20 points and setting the rent
at the legal minimum, NLG 395 (point 4 of Schedule IV to the
Housing Rents Ordinance (Besluit huurprijzen woonruimte) -
see paragraph 28 below). He submitted the following documents:
(a) a copy of the Provincial Executive's letter of 1 November 1990
(see paragraph 10 above);
(b) a copy of a decision given by the Rotterdam District Court on
4 June 1991 in a different but similar case concerning a flat in
Rotterdam;
(c) a copy of the letter of 26 March 1991 from the
Provincial Executive to the municipal authorities of Maassluis
(see paragraph 11 above);
(d) the Provincial Executive's implementation programme for
soil cleaning from 1992 onwards (see paragraph 11 above).
The applicant company, besides adducing further argument in
support of their factual allegations, argued, inter alia, that the
soil pollution should not be taken into account. Relying on the
passage from the report of the further inspection quoted at
paragraph 9 above, they said that it did not appear from the report
that there was "pollution of the soil under or in the immediate
vicinity of the accommodation such as to cause serious danger to
public health or the environment". In addition, the pollution found
could not affect the standard of a third-floor flat without a garden.
All things considered, there was no reason to deduct any points at all
on this ground.
17. The District Court gave its decision on 10 March 1992,
assessing the standard of the flat at 123 points and setting the rent
at NLG 399.75 with effect from 1 May 1990. Having regard to the fact
that, after a further inspection as provided for by the
Soil Cleaning (Temporary Provisions) Act, the Provincial Executive had
designated the area as one where soil cleaning was required, and had
set it down in its annual soil-cleaning programme for 1992 as a site
to be dealt with in accordance with that Act, the court found it
established that there was an "objectionable situation" that justified
reducing the points rating by 20 points and setting the rent at the
legal minimum. Referring to its own precedent of 5 June 1990
(see paragraph 38 below), it dismissed the applicant company's
arguments that are summarised in the preceding paragraph. It did so
in the following terms:
"8.3. ... we consider that it is not for us to go into the
question whether the Provincial Executive acted correctly in
making the decision pursuant to section 2 (1), second sentence,
of the Soil Cleaning (Temporary Provisions) Act, or whether
that decision was well-founded. We should not even address
such questions indirectly by weighing the findings of the
investigation (on a case-by-case basis) when determining
whether the (absolute) zero condition, as formulated under
point 4 of Schedule IV to the Ordinance implementing the
Rents for Housing Accommodation Act ..., is satisfied.
8.4. The `serious danger etc.' in the polder is necessarily
implied by the decision of the Provincial Executive to
designate the site as one where soil cleaning is required
[saneringsgeval]; consequently, it is also established that the
absolute zero condition (which is formulated in identical
terms) is satisfied.
8.5. It makes no difference in this connection that the
accommodation in question is a third-floor flat without a
garden of its own. The pollution is present `in the immediate
vicinity' of the accommodation. The [applicant company] have
acknowledged that this expression is - justifiably - construed
broadly in the relevant case-law."
18. The applicant company did not lodge an appeal against this
decision (see paragraph 23 below).
II. Relevant domestic law and practice
19. The following is a statement of the relevant domestic law and
practice as they stood at the time of the events complained of.
A. The Rents for Housing Accommodation (Huurprijzenwet woonruimte)
Act
1. General substantive and procedural provisions
20. Rents for certain categories of housing accommodation are
determined by the Minister for Housing, Planning and Environment
Protection. With regard to all other housing accommodation, landlords
and tenants of housing accommodation are in principle free to agree a
rent between themselves (section 3 of the
Rents for Housing Accommodation Act).
21. However, section 17 (1) entitles both the landlord and the
tenant, within three months of entering into the tenancy agreement, to
apply to the Rent Board for a ruling on the fairness of the agreed
rent.
22. Parties are deemed to have agreed the rent found by the
Rent Board to be fair unless within two months one of them applies to
the District Court for a different decision (section 17 (8)).
23. By section 28 (3) of the Rents for Housing Accommodation Act,
no appeal lies against the decision of the District Court other than
an appeal on points of law "in the interests of the law"
(cassatie "in het belang der wet" - see paragraph 37 below).
2. Assessment of the fairness of the rent
24. Detailed substantive provisions for the implementation of the
Rents for Housing Accommodation Act are to be found in the
Housing Rents Ordinance ("the Ordinance"). The Ordinance is binding
on the Rent Board and the District Court (sections 15 (1) and 28 (1)
of the Rents for Housing Accommodation Act).
25. According to section 5 (1) (a) of the Ordinance, the fairness
of the rent for self-contained accommodation (zelfstandige woonruimte)
such as the flat let to Mr W. by the applicant company must be assessed
in accordance with the point-rating system set out in Schedule I to the
Ordinance.
26. Under Schedule I, points are awarded for features relating to
the standard of the accommodation itself - such as the type of dwelling
(house or flat), the size of the rooms, bathroom facilities and the
standard of heating installations - and for features relating to the
surroundings (such as the proximity of public transport, schools and
shops). Up to thirty points are deducted for the age of the
accommodation and up to twenty for "objectionable situations" (such as
persistent noise or pollution).
The "zero condition" system is succinctly explained in the
explanatory memorandum to the Ordinance as follows:
"In the Government's view, certain deficiencies of a technical
or residential nature [technische en woontechnische gebreken]
are so serious that they ipso facto stand in the way of
rent increases. Section 6 (3) refers in this connection to the
serious deficiencies listed in Schedule IV to this Ordinance.
These deficiencies are commonly referred to as `zero
conditions'. If there is such a deficiency, the Rent Board
need not assess the seriousness of the situation [hinder] but
must find without more ado that it is not reasonable to raise
the rent. It must so hold even if the tenant does not
explicitly rely on this deficiency.
The presence of a deficiency of the type referred to is
considered unacceptable in view of the danger it presents. The
deficiency ought therefore to be cured as soon as possible or
the accommodation ought no longer to be occupied. However, as
long as the accommodation continues to be occupied despite the
unacceptable situation, it is not fair to raise the rent."
27. The range within which the rent is fair is calculated according
to the resultant points rating. As a rule, the rent determined by the
Rent Board and by the District Court will be at the higher end of the
range (section 7 (1) of the Ordinance); however, the rent may be
reduced if one of the "very serious deficiencies" or "absolute zero
conditions" set out in Schedule IV to the Ordinance is established.
28. Schedule IV originally listed deficiencies relating to the
accommodation itself, such as lack of a flush lavatory or
cooking facilities, lack of main drainage, or gas pipes or
electricity cables so dangerous that the public utility companies were
not prepared to supply gas or electricity. Another such "absolute zero
condition" was if accommodation was in such a poor state of repair that
it was unsafe and therefore unfit for habitation. As of 1 July 1986,
and without any separate explanatory memorandum, a fourth point was
added to Schedule IV:
"The further inspection under the Soil Cleaning (Temporary
Provisions) Act has indicated pollution of the soil under or
in the immediate vicinity of the accommodation such as to cause
serious danger to public health or the environment."
B. The Soil Cleaning (Temporary Provisions) Act and the
Soil Cleaning Guidelines (Leidraad Bodemsanering)
1. Administrative preliminaries to soil cleaning
29. In 1982, partly owing to the discovery in 1980 of cases of very
extensive soil pollution, the Soil Cleaning (Temporary Provisions) Act
(of 29 December 1982) was enacted. It entered into force on
15 April 1983. Its purpose was to set rules "aimed at eliminating
within a short time or preventing soil pollution and its harmful
effects where existing or potential pollution of the soil is such that
there is a serious danger to public health or the environment".
Section 2 (1) of this Act provided as follows:
"Over a period of five consecutive years, the
Provincial Executive shall each year draw up a programme for
cleaning polluted soil. The programme shall indicate the cases
within the territory of the province in which existing or
potential pollution of the soil is such that there is a serious
danger to public health or to the environment. The programme
shall also indicate the cases in respect of which it must be
determined whether such circumstances apply."
30. An explanation of various expressions used in the interim Act
and directions as to the manner in which the Act was to be implemented
were given in the Soil Cleaning Guidelines.
31. According to the Soil Cleaning Guidelines, in the
seventh revised version (December 1991), the possible danger had to be
assessed as follows:
"During the parliamentary discussions of the bill [which
eventually entered into force as the interim Act] this
criterion was given the following construction. Direct and
frequent contact between human beings or plant or animal life
and the pollutants must either be present or imminent and it
must be either certain or likely that such contact will be
potentially detrimental to public health or the environment.
On this construction, stress must be laid on the imminence of
such contact and the probability of such detrimental effects.
The expression `serious danger' therefore indicates an
unacceptably increased risk rather than an acute threat ...
[Part II of the Guidelines] mentions three aspects which fall
to be considered, namely the nature and concentration of the
pollutants, the local pollution situation and the use made of
the soil. The nature and concentration of the pollutants give
an impression of the extent of the pollution and its possible
effects. The local pollution situation gives an idea of the
extent to which spreading or contact may occur. The use of the
soil determines the likelihood of exposure to the pollutants
and the resulting risks. A consideration of these three
aspects taken together [integrale afweging] must lead to an
answer to the question whether cleaning is at all necessary or
required as a matter of urgency ..." (paragraph 1.6 of Part I
of the Soil Cleaning Guidelines)
To assist in assessing the nature and concentration of the
pollution, tables were drawn up listing the concentrations of various
pollutants which, if exceeded, made action necessary. Concentration
level A was the reference level below which no action was required.
Concentration level B was the level indicating the need for a further
inspection. Concentration level C necessitated an inspection with a
view to possibly cleaning the soil as a matter of urgency.
32. The stages in the preliminaries to soil cleaning, as they
appeared from the Guidelines, were the following:
(a) preliminary measures, not laid down in the soil-cleaning
programme:
(i) a survey of the places where soil pollution might
be expected (inventarisatie). This might be based on
complaints from individuals, as in the present case
(see paragraph 9 above), an inspection of documents relating
to land use or dumping, reports submitted by municipalities,
or any other relevant information;
(ii) an exploratory inspection, the purpose of which was
to gain a general idea of the nature, location and
concentration of pollutants. This inspection was a limited
one;
(b) further measures, laid down in the soil cleaning
programme:
(iii) a further inspection, more extensive than the
exploratory one, to obtain information which would make it
possible to assess the dangers to public health and the
environment, and hence to judge the necessity and urgency of
cleaning the soil;
(iv) an inspection with a view to possibly cleaning the
soil, the purpose of which was to enable a decision to be made
on the necessary measures in the light of the budgetary and
technical possibilities;
(v) the drawing up of a plan for actually cleaning the
soil.
2. Objections to the soil-cleaning programme
33. Section 5 of the Soil Cleaning (Temporary Provisions) Act
provided as follows:
"1. Before finally adopting a cleaning programme, the
Provincial Executive shall make the draft available for
public inspection with the reports of the inspections on which
it is based. They shall at the same time send the draft to the
Provincial Council [Provinciale Staten], the municipalities in
their province and the Inspector [of Public Health].
2. Before doing so, they shall give notice of the fact of
making the draft available for public inspection in the
Government Bulletin [Nederlandse Staatscourant] and in one or
more daily papers or newspapers distributed in the province.
These announcements shall also mention that members of the
public are entitled to lodge objections in accordance with
subsection (4) below.
3. For a period of one month from the day on which the draft
of a programme is made available for public inspection, anyone
may inspect free of charge the documents thus made available.
4. During the period referred to in subsection (3) above,
anyone may lodge written objections to the draft, stating their
reasons, with the Provincial Executive."
34. Paragraph 2.2.7 of Part I of the Soil Cleaning Guidelines made
it clear that the final programme had to set out the
Provincial Executive's views on any objections received and that such
objections were to be appended to the final programme. Although the
Act did not provide for any form of appeal against the adoption of the
programme, the objections were brought to the attention of the
Minister, who was empowered to modify the provincial programme in a
reasoned decision.
35. The Soil Cleaning (Temporary Provisions) Act was significantly
amended by the Act of 2 July 1992. A number of its provisions,
including sections 2 and 5, were repealed.
The interim Act as a whole was repealed by the Act of
10 May 1994 (Official Gazette (Staatsblad) 1994, no. 331), its
provisions being incorporated into the Soil Protection Act
(Wet bodembescherming).
C. The Judicial Organisation Act (Wet op de rechterlijke
organisatie)
36. Section 100 of the Judicial Organisation Act provides as
follows:
"1. Except for an appeal on points of law [filed by the
Procurator-General with the Supreme Court] `in the interests
of the law', an appeal on points of law against a judgment
delivered by a district court in a civil case shall be allowed
only:
1. on the ground that the judgment did not state the
reasons on which it was based;
2. on the ground that the judgment was not delivered
in public;
3. on the ground of want of competence;
4. on the ground that the district court exceeded its
jurisdiction.
2. Except for an appeal on points of law `in the interests
of the law', appeals on points of law against a decision
[beschikking] delivered [following proceedings in camera where
that is required by law] by a district court in a civil case
shall be allowed only on the grounds set out in paragraphs 1, 3
and 4 of subsection (1) above."
37. An appeal on points of law "in the interests of the law" may
be lodged with the Supreme Court (Hoge Raad) by its Procurator-General
(procureur-generaal) at his discretion and does not affect the parties'
rights and obligations as determined in the judgment or decision
appealed against (sections 95 and 98 of the Judicial Organisation Act).
D. Domestic case-law
38. As mentioned in paragraph 28 above, no explanation was given
for introducing point 4 of Schedule IV to the Ordinance. This
situation has contributed to uncertainty as to how that provision is
to be construed.
The first problem relates to the construction of the expression
"under or in the immediate vicinity of the accommodation". It is
usually assumed in legal writing and the relevant case-law that this
expression should be interpreted broadly.
The second problem relates to the question that was also at
issue in the instant case: whether courts should themselves decide
whether the "further inspection under the Soil Cleaning (Temporary
Provisions) Act" justifies the conclusion that "pollution of the soil"
is "such as to cause serious danger to public health or the
environment", or alternatively assume that such serious danger is
present when the competent authorities have decided on the basis of a
further inspection in a particular case that soil cleaning measures are
required.
There is a difference of opinion on the latter point. A number
of district courts have adopted the first view - see the following
decisions: Amsterdam District Court, 14 December 1990,
Woonrecht (Housing Law Reports) 1991, nos. 23 and 24;
Zaandam District Court, 26 September 1991, Woonrecht 1991, no. 63.
Others have adopted the alternative view - see the following decisions:
Dordrecht District Court, 23 March 1989, Nederlandse Jurisprudentie
(Netherlands Law Reports - NJ) 1989, no. 874, Woonrecht 1990, no. 1;
Schiedam District Court, 5 June 1990, Woonrecht 1990, no. 87;
Rotterdam District Court, 5 June 1990, Woonrecht 1990, no. 88;
Zutphen District Court, 22 December 1992, Woonrecht 1992, no. 30;
Assen District Court, 30 August 1993, Woonrecht 1993, no. 80.
It would appear that the latter view is also that of the
Deputy Minister (Staatssecretaris) for Housing, Planning and
Environment Protection (who sets the rents for certain categories of
housing accommodation and in so doing has regard to Schedule IV to the
Ordinance), in the light of his letter of 15 June 1990, published in
Woonrecht 1990 at p. 212. This letter includes the following
statement:
"Your view is that one may conclude from the drafting history
and the wording of the fourth absolute zero condition in
Schedule IV that this condition should always apply
automatically in those cases in which the Provincial Executive
has decided that the situation is as set out in section 2 (1),
second sentence, of the Soil Cleaning (Temporary Provisions)
Act. I can agree with your conclusion, while pointing out that
the area in question should have been included in the
soil-cleaning programme on the basis of the findings of a
further inspection."
In a case in which the Judicial Division (Afdeling Rechtspraak)
of the Raad van State had to consider a rent decision of the
Secretary of State in which point 4 of Schedule IV had been applied to
accommodation in the Steendijkpolder in Maassluis (see next paragraph),
it held that the Secretary of State "[had] not erred in considering it
relevant that the Provincial Executive of the province of
South Holland, in applying section 2 of the Soil Cleaning (Temporary
Provisions) Act, [had] established on the basis of the report of the
further inspection that there was a serious danger as referred to
above" (judgment of 1 November 1991, Woonrecht 1991, no. 32).
39. As indicated in the previous paragraph, a number of the
above-mentioned decisions and judgments relate to the Steendijkpolder,
a polder adjoining the Noord-Nieuwlandsepolder-zuid which the
municipal authorities of Maassluis had had levelled up with polluted
harbour silt and then sold as building land. Point 4 of Schedule IV
has consistently been held to be applicable to rents in that area:
see the Schiedam District Court's decision of 5 June 1990,
Woonrecht 1990, no. 87, and the judgment of the Judicial Division of
the Raad van State of 1 November 1991, Woonrecht 1991, no. 32.
Mention may be made in passing of a judgment of
the Hague Court of Appeal which seems also to adopt the alternative
view. In its judgments of 6 December 1990 (cases nos. 14,668, 14,669
and 14,670, cited in the report of the Supreme Court's judgment of
9 October 1992, NJ 1994, no. 286), the Hague Court of Appeal
established that the municipality (gemeente) of Maassluis was liable
in tort for the sale of the Steendijkpolder as building land. The
Court of Appeal's reasoning included the following:
"With regard to the liability of [the municipality of]
Maassluis, the Court of Appeal notes first of all that as the
Government [rijksoverheid] has decided in accordance with
section 2 et seq. of the Soil Cleaning (Temporary Provisions)
Act that the soil should be cleaned, it must be held to have
been established that there is in the present case a `serious
danger to public health or to the environment' within the
meaning of that Act (section 2 (1))."
No submissions challenging this reasoning were made in the
ensuing appeals on points of law. In any event, the Supreme Court in
its above-mentioned judgment of 9 October 1992 held the appeals to be
unfounded and so allowed the judgment of the Court of Appeal to stand.
PROCEEDINGS BEFORE THE COMMISSION
40. In their application (no. 20641/92) to the Commission of
9 September 1992 the applicant company alleged a violation of
Article 6 para. 1 of the Convention (art. 6-1) in that they had not had
the benefit of effective judicial review in the determination of their
civil rights as the District Court had considered itself bound by the
Provincial Executive's finding in respect of the soil pollution and its
effects on public health and the environment and had thus denied them
a judicial ruling on an important part of their case. They also
claimed under Article 13 of the Convention (art. 13) that they had had
no effective remedy against the decision of the Provincial Executive,
which affected their property rights. In addition, they alleged
violations of Article 1 of Protocol No. 1 (P1-1), of Article 14 of the
Convention taken both alone and together with Article 1 of
Protocol No. 1 (art. 14, art. 14+P1-1) and of Articles 17 and 18 of the
Convention taken together with Article 1 of Protocol No. 1
(art. 17+P1-1, art. 18+P1-1).
41. On 5 July 1994 the Commission declared the application
admissible in so far as it concerned Article 6 para. 1 and Article 13
of the Convention (art. 6-1, art. 13) and inadmissible as to the
remainder.
In its report of 5 April 1995 (Article 31) (art. 31), it
expressed the opinion by twelve votes to one that there had been a
violation of Article 6 para. 1 (art. 6-1) and that it was not necessary
to examine whether there had also been a violation of Article 13
(art. 13). The full text of the Commission's opinion and of the
dissenting opinion contained in the report is reproduced as an annex
to this judgment (1).
_______________
Note by the Registrar
1. For practical reasons this annex will appear only with the printed
version of the judgment (in Reports of Judgments and
Decisions 1996-VI), but a copy of the Commission's report is obtainable
from the registry.
_______________
FINAL SUBMISSIONS TO THE COURT
42. The Government concluded their memorial by expressing the
opinion that there had been no violation of the applicant company's
right to access to court, as guaranteed by Article 6 para. 1
(art. 6-1), nor of Article 13 (art. 13).
43. The applicant company, in their memorial, submitted that there
had been a violation of Article 6 para. 1 (art. 6-1). They also
requested the Court to "declare admissible" their complaints under
Article 1 of Protocol No. 1 taken together with Articles 14, 17 and 18
of the Convention (art. 14+P1-1, art. 17+P1-1, art. 18+P1-1) and find
that these provisions (art. 14+P1-1, art. 17+P1-1, art. 18+P1-1) had
been violated, and to award them just satisfaction.
AS TO THE LAW
I. SCOPE OF THE CASE BEFORE THE COURT
44. In their memorial and again at the hearing, the applicant
company requested the Court also to consider those of their complaints
which the Commission had declared inadmissible, namely their
allegations of violation of Article 1 of Protocol No. 1 taken together
with Articles 14, 17 and 18 of the Convention (art. 14+P1-1,
art. 17+P1-1, art. 18+P1-1). In their contention, these were based on
the same facts declared admissible in the context of Article 6
para. 1 (art. 6-1).
45. As the Court has frequently held, the compass of the case
before it is delimited by the Commission's decision on admissibility.
In the present case, the application as declared admissible
relates solely to an alleged deficiency of a procedural nature.
Whether or not the outcome of the proceedings in question was affected
by this alleged deficiency, the scope of the case before the Court does
not extend to the substance of the issues involved.
Accordingly, the Court finds that it has no jurisdiction to
examine the complaints which the Commission declared inadmissible
(see the Masson and Van Zon v. the Netherlands judgment of
28 September 1995, Series A no. 327-A, p. 16, paras. 39-40).
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION (art. 6)
46. The applicant company complained that they had not had access
to a tribunal possessing jurisdiction to make an assessment of the
relevance of the soil pollution (see paragraph 16 above). They alleged
a violation of Article 6 para. 1 of the Convention (art. 6-1), which
provides:
"In the determination of his civil rights and obligations ...,
everyone is entitled to a fair ... hearing ... by [a] tribunal
..."
The Government contested this allegation, whereas the
Commission accepted it.
A. The Government's preliminary objection
47. In their memorial and again at the Court's hearing, the
Government, relying particularly on the Court's judgment in the case
of British-American Tobacco Company Ltd v. the Netherlands (judgment
of 20 November 1995, Series A no. 331), stated that it would have been
open to the applicant company to file an appeal on points of law to the
Supreme Court. Quoting a judgment of that court of 29 March 1986,
(NJ 1986, no. 242) they stated that a statutory bar on appeals on
points of law had to be set aside if it appeared that the court below
had failed to observe fundamental principles of fair procedure as
guaranteed by Article 6 of the Convention (art. 6).
48. The Government's argument amounts to a preliminary objection
of non-exhaustion of domestic remedies.
49. This objection was formulated for the first time before the
Court. Yet there was nothing to preclude the Government from doing so
at the stage of the Commission's examination of the admissibility of
the application. There is therefore estoppel.
B. As to the merits
1. Applicability of Article 6 para. 1 (art. 6-1)
50. It was not contested that the rent-determination proceedings
in question constituted the "determination of civil rights and
obligations".
The Court, for its part, sees no reason to hold otherwise.
Article 6 para. 1 (art. 6-1) is therefore applicable.
2. Compliance with Article 6 para. 1 (art. 6-1)
51. The applicant company relied on the fact that the
District Court had held that the decision of the Provincial Executive
to include the Noord-Nieuwlandsepolder-zuid in its implementation
programme for soil cleaning in itself amounted to proof that the
legal provision triggering the application of the minimum rent
provision was satisfied (see paragraph 17 above). The District Court
had not itself examined the report of the further inspection, although,
in the applicant company's contention, it did not appear from that
report that the pollution found in any way affected the standard of the
flat let to Mr W.
The Government relied on the argument already outlined in
paragraph 47 above.
The Commission considered that the District Court had refused
to make an independent assessment of the issue that was at the heart
of the dispute. In so doing it had denied the applicant company
effective judicial review of the substance of their claims.
52. The Court recalls that for the determination of civil rights
and obligations by a "tribunal" to satisfy Article 6 para. 1
(art. 6-1), it is required that the "tribunal" in question have
jurisdiction to examine all questions of fact and law relevant to the
dispute before it (see, inter alia and mutatis mutandis, the
Le Compte, Van Leuven and De Meyere v. Belgium judgment of
23 June 1981, Series A no. 43, p. 23, para. 51 under (b); the Fischer
v. Austria judgment of 26 April 1995, Series A no. 312, p. 17,
para. 29; the British-American Tobacco Company Ltd judgment cited
above, p. 25, para. 78; the Bryan v. the United Kingdom judgment of
22 November 1995, Series A no. 335-A, p. 17, paras. 44-45).
53. As noted above (see paragraph 38), there was uncertainty at the
relevant time as to whether district courts should themselves decide
whether the "further inspection under the Soil Cleaning (Temporary
Provisions) Act" justified the conclusion that "pollution of the soil"
was "such as to cause serious danger to public health or the
environment", or in the alternative accept without question or
examination of their own the determination by the competent authorities
that soil-cleaning measures were required. However, the
Schiedam District Court, in its judgment in the present case, held that
such risk was "necessarily implied" by the Provincial Executive's
decision.
54. In so doing the Schiedam District Court, a "tribunal"
satisfying the requirements of Article 6 para. 1 (art. 6-1) (as was not
contested), deprived itself of jurisdiction to examine facts which were
crucial for the determination of the dispute.
55. In these circumstances the applicant company cannot be
considered to have had access to a tribunal invested with sufficient
jurisdiction to decide the case before it. There has accordingly been
a violation of Article 6 para. 1 (art. 6-1).
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION (art. 13)
56. The applicant company alleged that, contrary to Article 13 of
the Convention (art. 13), they had had no effective remedy against the
decision of the Provincial Executive that soil-cleaning measures were
required, a decision which affected the peaceful enjoyment of their
possessions.
Article 13 provides as follows:
"Everyone whose rights and freedoms as set forth in [the]
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."
57. It was not argued before the Court that in the present case a
violation of this provision (art. 13) might be found in the absence of
a violation of Article 6 para. 1 (art. 6-1). In any event, in view of
its conclusion as to Article 6 para. 1 (art. 6-1), the Court does not
find it necessary to examine this allegation.
IV. APPLICATION OF ARTICLE 50 OF THE CONVENTION (art. 50)
58. Article 50 of the Convention (art. 50) provides as follows:
"If the Court finds that a decision or a measure taken by a
legal authority or any other authority of a High Contracting
Party is completely or partially in conflict with the
obligations arising from the ... Convention, and if the
internal law of the said Party allows only partial reparation
to be made for the consequences of this decision or measure,
the decision of the Court shall, if necessary, afford just
satisfaction to the injured party."
A. Damage
59. The applicant company claimed NLG 56,200 for loss of rent from
the flat in question over ten years as from 1 May 1990.
60. The Government and the Commission concurred in stating that it
was far from clear that the decision of the District Court would have
been any different had the violation in question not taken place.
61. The Court agrees with the Government and the Commission. No
causal link between the violation found and the damage allegedly
suffered having been established, no award can be made under this head.
B. Costs and expenses
62. The applicant company claimed a lump sum of NLG 75,000 for
costs and expenses incurred in the domestic proceedings and in
Strasbourg. They did not specify their claim.
63. In the opinion of the Government, with which the Commission
largely agreed, the costs incurred in the domestic proceedings were
"ineligible for compensation". As far as the Strasbourg proceedings
were concerned, they considered NLG 20,000 "a generous sum in
compensation".
64. The Court considers that no award can be made in respect of the
costs and expenses incurred in the domestic proceedings for the same
reasons set out in paragraph 61 above. For costs and expenses incurred
in the Strasbourg proceedings, the Court awards NLG 30,000 plus any
value-added tax that may be payable.
C. Default interest
65. According to the information available to the Court, the
statutory rate of interest applicable in the Netherlands at the date
of adoption of the present judgment is 5% per annum.
FOR THESE REASONS, THE COURT
1. Holds by eight votes to one that it has no jurisdiction to rule
on the allegations of violation of Article 1 of Protocol No. 1
taken together with Articles 14, 17 and 18 of the Convention
(art. 14+P1-1, art. 17+P1-1, art. 18+P1-1);
2. Dismisses unanimously the Government's preliminary objection;
3. Holds by five votes to four that there has been a violation of
Article 6 para. 1 of the Convention (art. 6-1);
4. Holds unanimously that it is not necessary to examine the
applicant company's allegation of a violation of Article 13 of
the Convention (art. 13);
5. Holds unanimously
(a) that the respondent State is to pay to the applicant
company, within three months,
30,000 (thirty thousand) Netherlands guilders, plus any
value-added tax that may be payable;
(b) that simple interest at an annual rate of 5% shall be
payable from the expiry of the above-mentioned three months
until settlement;
6. Dismisses unanimously the remainder of the claim for just
satisfaction.
Done in English and in French, and delivered at a
public hearing in the Human Rights building, Strasbourg, on
17 December 1996.
Signed: Rudolf BERNHARDT
President
Signed: Herbert PETZOLD
Registrar
In accordance with Article 51 para. 2 of the Convention
(art. 51-2) and Rule 55 para. 2 of Rules of Court B, the following
separate opinions are annexed to this judgment:
(a) partly dissenting opinion of Mr De Meyer;
(b) dissenting opinion of Mr Martens, joined by Mr Gölcüklü,
Mr Pettiti and Mr Valticos.
Initialled: R. B.
Initialled: H. P.
PARTLY DISSENTING OPINION OF JUDGE DE MEYER
(CONCERNING ARTICLE 1 OF PROTOCOL No. 1 (P1-1))
(Translation)
I do not think that the Court has "no jurisdiction to examine
the complaints which the Commission declared inadmissible" (1).
_______________
1. See paragraph 45 of the judgment; see also on this subject my
dissenting opinion in the case of W. v. the United Kingdom, judgment
of 8 July 1987, Series A no. 121, p. 42.
_______________
In the present case the facts established by the Commission
constituted an infringement of both the applicant company's right "to
the peaceful enjoyment" of their possessions (2) and their right of
"access to a tribunal invested with sufficient jurisdiction to decide
the case before it" (3).
_______________
2. Article 1 of Protocol No. 1 (P1-1).
3. See paragraph 55 of the judgment.
_______________
Although the "deficiency of a procedural nature" that the Court
found to have occurred did not necessarily affect "the outcome of the
proceedings in question" (4), it is very artificial to separate these
two aspects of the case. Depriving someone of the possibility of
asserting a right in a court of law simultaneously infringes the right
itself.
_______________
4. See paragraph 45 of the judgment.
_______________
DISSENTING OPINION OF JUDGE MARTENS, JOINED BY
JUDGES GÖLCÜKLÜ, PETTITI AND VALTICOS
1. To my regret I am unable to agree with the Court's judgment.
I.
2. Unlike the majority, I find that the applicant company had
access to a court - the Schiedam District Court - which was fully
competent to decide all questions of fact and of law which were
material under the relevant substantive norm - point 4 of Schedule IV
(see paragraph 27 of the judgment) - as construed by that court.
3. Admittedly the District Court refused to examine an issue
raised by the applicant company in their defence. However, contrary
to what the Court seems to suggest (see paragraph 53 in fine and
paragraph 54 of its judgment), the District Court did not base its
refusal on the finding that it lacked competence to decide that issue,
but on the finding that the issue was immaterial for determining the
maximum rent allowed.
4. Thus, what the Court qualifies as "facts which were crucial for
the determination of the issue" was found to be immaterial for that
determination by the District Court. This demonstrates that the
question in the present case is one of (interpretation of) substantive
national law and not one of access to a court or of fair process. Or,
to put it another way, not a question under Article 6 (art. 6) but, at
most, a question under Article 1 of Protocol No. 1 (P1-1).
II.
5. In order to elucidate this proposition, let me first make some
general remarks on the characteristics of the relevant legislation.
Under this legislation (see paragraphs 20 to 28 of the
judgment) landlords and tenants are in principle free to agree a rent,
but in practice housing rents are subject to a rather strict
administrative price-control regime. Whether the rent agreed upon is
to be corrected either by the Rent Board or by the District Court
essentially depends on the quality of the housing accommodation in
question. There are detailed, substantive provisions for rating that
quality. These provisions all contain norms of the very simple,
classic type: if A, then B - the A always being plain, straightforward
facts concerning the accommodation. These provisions thus leave
practically no room for judicial assessment.
The rationale for using this type of norm is obvious: the
system is designed to be applied throughout the Netherlands, by petty
officials - the local rent boards - who will have to deal with a great
many cases a year, in simple and inexpensive proceedings, which should
not require legal assistance; yet the system should yield results that
are consistent all over the country.
These characteristics are highlighted by the fact that,
although there is a form of judicial review of the Rent Board's
decision, that review lies only to the District Court - the lowest
civil court in the hierarchy, the only one where legal assistance is
not required - the legislature having denied the parties any
possibility of appeal from the decisions of that court.
III.
6. Against this background let me try to elucidate the
proposition advanced above in paragraph 4 by means of an example taken
from point 1 of Schedule IV, which gives a list of quite serious
deficiencies relating to the accommodation, deficiencies which, if
established, entail compulsory reduction of the rent to the
minimum level (see paragraphs 25 and 26 of the judgment).
One of these deficiencies is:
"the gas pipes or electricity cables are so dangerous that the
public utility company is no longer prepared to supply gas or
electricity."
Suppose that a tenant, relying on the public utility company's
having cut the gas supply on the ground that the pipes are dangerous,
requests that the District Court accordingly reduce his rent to the
minimum level. Suppose further that the landlord does not deny that
that company has decided to cut the gas supply on this ground, but
argues that this fact does not justify a rent reduction since the
company acted on an erroneous assessment of the dangerousness of the
pipes. Suppose, finally, that the District Court rules that it will
not go into the issue of the actual justification of the decision taken
by the public utility company (which is not a party to the
proceedings); making it clear that in its opinion the wording of
point 1 of Schedule IV demonstrates that the mere fact that the
public utility company has cut the gas supply on the ground that it
judges the pipes dangerous constitutes a "deficiency" which entails
compulsory reduction of the rent to the legal minimum and that,
consequently, the question whether or not the public utility company's
judgment on the pipes was correct is immaterial and therefore does not
fall to be decided.
In this fictitious case too, the correctness or not of the
public company's verdict on the pipes is "crucial" to the landlord's
line of argument, but here also the District Court refuses to give the
ruling sought on this issue on the ground that it is immaterial under
the substantive rule as construed by that court on the basis of its
wording and (I would add) in conformity with the characteristics of the
relevant legislation as a whole (see paragraph 5 above).
Such refusal does not constitute a violation of Article 6
(art. 6). Article 6 (art. 6) does not imply an obligation to decide
whatever issues may be raised by one or other of the parties. Issues
which are irrelevant need not be decided (see, a contrario, the
Ruiz Torija v. Spain judgment of 9 December 1994, Series A no. 303-A,
p. 12, para. 30). Nor does Article 6 (art. 6) enable the
Convention organs to review the domestic courts'interpretation of
substantive rules of their national law, not even when any such
interpretation carries the implication that a certain issue raised in
proceedings coming under Article 6 (art. 6) is immaterial.
IV.
7. Moving from this fictitious case to the actual case before the
Court, the deficiency which, if established, entails
compulsory reduction of the rent to the minimum level reads (point 4
of Schedule IV, see paragraph 28 of the judgment):
"the further inspection under the Soil Cleaning (Temporary
Provisions) Act has indicated pollution of the soil under or
in the immediate vicinity of the accommodation such as to cause
serious danger to public health or the environment".
The tenant in the domestic proceedings
(a) submitted that "the accommodation" (his flat) was situated in
an area (the Noord-Nieuwlandsepolder-zuid) which had, already since
1985, been reputed to be polluted and, consequently, had been inspected
under the Soil Cleaning (Temporary Provisions) Act (SCTP);
(b) submitted that a "further inspection" under that Act had
indicated that the area was so polluted "as to cause serious danger to
public health or the environment" and requested that the District Court
accordingly reduce his rent to the minimum level.
In support of his submission under (b) above, the tenant
produced a letter from the competent authorities under the SCTP which
showed that "the further inspection had led them to conclude that
further soil-cleaning measures were necessary" in the area
(see paragraph 10 of the judgment).
The landlord - the applicant company - did not deny allegation
(a) or that there had been a "further inspection" which had led the
competent authorities to mandate the next step under the SCTP. The
landlord's argument was rather that the latter fact did not justify a
rent reduction since those authorities had acted on an erroneous
assessment of the dangerousness of the pollution: the landlord
contended that the report of the "further inspection" had made it clear
that the pollution was not such "as to cause serious danger to public
health or the environment".
The Schiedam District Court construed point 4 of Schedule IV
as meaning that the mere fact that the "further inspection" had led the
competent authorities under the SCTP to mandate the next step under
that Act - that is to designate the site as one where soil cleaning was
required (saneringsgeval) (see paragraph 17 of the judgment) -
constituted a "deficiency" which entailed compulsory reduction of the
rent to the legal minimum; and that, consequently, the question whether
or not the authorities' judgment on the dangerousness of the pollution
was correct, far from being "crucial", was immaterial in the
rent-control proceedings and therefore not an issue to be decided in
those proceedings.
In this actual case, too, the conclusion cannot be other than
that reached under section III above, namely that the District Court's
refusal to go into the issue pleaded by the defendant landlord does not
constitute a violation of Article 6 (art. 6) since Article 6 (art. 6)
implies neither an obligation to decide whatever issues may be raised
by one or other of the parties nor a yardstick to gauge a
domestic court's interpretation of a substantive rule of national law
to the effect that a certain issue is immaterial for the decision to
be given.
V.
8. The analysis of the present case set out in section IV confirms
what is said in paragraphs 2 and 3 above, notably my proposition that
the question in the present case is primarily one of substantive
(national) law or, to be more precise, a question of interpretation of
substantive (national) law. As I have, I hope, demonstrated, the crux
of the matter is the District Court's interpretation of point 4 of
Schedule IV.
Normally it is for the domestic courts to interpret
national law, but since the European Court of Human Rights reserves
itself a certain power of review, notably as to the reasonableness of
such interpretations (see, for example, the Casado Coca v. Spain
judgment of 24 February 1994, Series A no. 285-A, p. 18, para. 43, and
the Bulut v. Austria judgment of 22 February 1996, Reports of Judgments
and Decisions 1996-II, pp. 355-56, para. 29), I will conclude with a
few remarks on the District Court's interpretation, or rather on the
interpretation adopted by various other district courts which in the
present case was followed by the Schiedam District Court
(see paragraph 38 of the Court's judgment).
9. A first point to make is that this interpretation is in harmony
with the text of the norm (see paragraph 7 above): that text does not
specify how or in what manner it should be established that "the
further inspection" has indicated the required degree of pollution.
In particular, the text does not refer to the report of the experts who
have conducted "the further inspection". Thus, the district courts in
question were free to establish that "the further inspection" had
indicated the required degree of pollution by deeming the opinion of
the competent authorities to be decisive in this respect.
Secondly, these district courts had good grounds for doing so.
The "further inspection" is only one of the stages in the preliminaries
to soil cleaning under the SCTP (see paragraph 32 of the judgment) and
under that Act the competent authorities are allowed to authorise the
next stage only if they are satisfied that the "further inspection" has
(sufficiently) indicated a pollution of the soil in the relevant area
"such as to cause serious danger to public health or the environment".
Consequently, for the purposes of applying point 4 of Schedule IV the
fact that the competent authorities have authorised the next stage may
very well be taken as establishing that "the further inspection under
the Soil Cleaning (Temporary Provisions) Act has [indeed] indicated
pollution of the soil under or in the immediate vicinity of the
accommodation such as to cause serious danger to public health or the
environment".
Thirdly, this interpretation brings the application of point 4
of Schedule IV into line with that of the other points of that Schedule
(see paragraph 5 above). It does so by reducing that application to
a simple question of fact: what did the competent authorities under the
SCTP do when they were confronted with the results of the "further
inspection"? It avoids, moreover, difficult technical debates which
would become unavoidable if the rent boards and the district courts had
to decide themselves whether or not the report of the experts who
conducted "the further inspection" sufficiently indicated the required
degree of soil pollution: such debates are not consonant with the
character of the proceedings in question as set out in paragraph 5
above.
In sum, this interpretation - which seems to be that of the
competent Minister, which is followed by what I believe is a majority
of district courts, and which also appears to be supported by the
Judicial Division of the Raad van State (see paragraph 38 of the
judgment) - is reasonable and should therefore have been taken into
account by the European Court. It is this interpretation of point 4
of Schedule IV which underlies the decision of the
Schiedam District Court in the case before us: its wording makes that
perfectly clear (see paragraph 17 of the judgment).
VI.
10. In paragraph 4 above I said that the question in the
present case is not one under Article 6 (art. 6) but, at most, one
under Article 1 of Protocol No. 1 (P1-1). I think that I have
sufficiently elucidated the first part of that proposition. I will
therefore end this opinion by making a short remark on the last part
of the proposition.
Under the above-discussed interpretation of point 4 of
Schedule IV the decision of the competent authorities under the SCTP
indirectly has consequences for the rent, since under this
interpretation the mere fact that those authorities have decided to
take further cleaning measures involves so serious a "deficiency" that
the rent cannot but be the minimum rent allowed. Under that
interpretation the landlords cannot contest that decision in the
rent proceedings. It is, however, far from certain that landlords have
the possibility of bringing administrative proceedings against the
competent authorities under the SCTP in order to challenge their
decision. It might, therefore, be argued that the relevant rule of
substantive national law lays a disproportionate burden on landlords
and, consequently, is incompatible with Article 1 of Protocol No. 1
(P1-1). However, that complaint was not before the Court, since the
Commission ruled that it was manifestly ill-founded and therefore
declared it inadmissible.