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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: (1997) 24 EHRR 456, [1996] ECHR 66

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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.



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