ITEMID: 001-61077
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: GRANDCHAMBER
DATE: 2003
DOCNAME: CASE OF KLEYN AND OTHERS v. THE NETHERLANDS
IMPORTANCE: 1
CONCLUSION: No violation of Art. 6-1
JUDGES: Gaukur Jörundsson;Luzius Wildhaber;Nicolas Bratza;Paul Mahoney
TEXT: 12. Mr A.A. Kleyn was born in 1941 and lives in Asperen. He is a managing director of the limited liability company (besloten vennootschap met beperkte aansprakelijkheid) Kleijn Financierings- en Leasemaatschappij B.V. and of the limited liability company Exploitatiemaatschappij De Zeiving B.V. He is also part-owner of the restaurant “De Goudreinet”.
13. Mettler Toledo B.V. is a limited liability company. Its premises are located in Tiel.
Van Helden Reclame-Artikelen B.V. is a limited liability company. Its premises are located in Tiel. Its managing directors, Mr A. van Helden and Mrs C.H. van Helden-Schimmel, who were both born in 1946, live next to the company’s business premises.
Grasshopper Reclame is a registered partnership (vennootschap onder firma) established under Netherlands law. Its premises are located in Tiel. Its managing directors, Mr A. Hougee and Mrs O.L. Hougee-van Frankfoort, who were born in 1947 and 1948 respectively, live above the company’s business premises.
M.C. Gerritse B.V. is a limited liability company. Its premises are located in Tiel.
Texshop B.V. is a limited liability company. Its premises are located in Tiel.
Restaurant De Betuwe B.V. is a limited liability company. It operates a restaurant in Tiel.
Maasglas B.V. is a limited liability company. Its premises are located in Tiel.
Mr C.M. van Burk, who was born in 1953, operates a petrol station on the A15 motorway, near Meteren.
Kuwait Petroleum (Nederland) B.V. is a limited liability company established in Rotterdam. It owns the petrol station operated by Mr van Burk.
Sterk Technisch Adviesbureau B.V. is a limited liability company. Its premises are located in Spijk.
Kleijn Financierings- en Leasemaatschappij B.V. and Exploitatiemaatschappij De Zeiving B.V. are both limited liability companies and – together with Ms C.J.P. Kleijn, Ms P.M. Kleijn and Ms C.J. Kleijn, who were born in 1936, 1970 and 1978 respectively – are joint owners of a number of plots of land along the A15 motorway and part- owners of the restaurant “De Goudreinet” that is located on one of the plots.
14. Mr M.A.J.E. Raymakers and Mrs P.W.N. Raymakers-Spreeuwenberg, who were born in 1956 and 1959 respectively, live in Kerk-Avezaath.
15. Mr A.J.Th. Berndsen and Mrs B.A.G. Berndsen-Wezendonk were born in 1950 and 1952 respectively and live in Groessen.
Mr P. Bunschoten was born in 1955 and lives in Herveld.
Mr W.F. van Duyn was born in 1962 and lives in IJzendoorn.
Mr C.J. Hanhart was born in 1938 and lives in Tiel.
Mr J.H. Kardol was born in 1938 and lives in Meteren.
Mr C. de Kreij was born in 1948 and lives in Giessenburg.
Mr G.J. van Lent was born in 1944 and lives in Ochten.
Mrs G. van Lent-de Kroon was born in 1910 and lives in Echteld.
Mr S.J.B.A. Pompen was born in 1963 and lives in Tiel.
Takel- en Bergingsbedrijf Hanhart is a partnership (maatschap) of which Mr C.J. Hanhart and Mr S.J.B.A. Pompen are the partners. Its premises are located in Tiel.
Ms C.M.M. Wennekes was born in 1949 and lives in Herveld.
Mr M. Witvliet was born in 1944 and lives in Kesteren.
16. The territory of the Netherlands includes the estuaries of the Rhine, Maas and Schelde, all of which flow into the North Sea at or near the town of Rotterdam. These rivers have long been used for the transport of merchandise to and from a large part of the north-western and central European hinterland, and in particular the vast industrial area situated along the River Ruhr in Germany. Over the centuries this geographical situation has allowed the Netherlands to become one of Europe’s major transport hubs, with Rotterdam harbour and Schiphol Airport, near Amsterdam, developing into important transit points for goods.
17. In recent years worldwide economic growth, the opening of the borders between the European Union countries and the opening up to foreign trade of central and east European countries have led to an increase in the quantity of merchandise transported through the Netherlands and, consequently, in the volume of traffic.
18. Since the 1980s the volume of transport by inland waterways, rail and pipelines has largely remained stable. It is essentially road transport which has absorbed the increase. This is due to various factors, such as the greater availability and convenience of roads as compared to railways and waterways and the increased tendency of industry to have raw and unfinished materials delivered as and when needed instead of keeping stocks.
19. In the early 1990s the government decided on a policy of maintaining and further improving the competitiveness of Rotterdam harbour as Europe’s main entry and exit port, as compared to its major rivals, Hamburg, Antwerp, Le Havre, Marseilles and London. At the same time it was considered important to prevent, and if possible reduce, congestion of the roads and damage to the environment.
20. On 1 July 1991, in accordance with section 15 of the Council of State Act (Wet op de Raad van State) and upon a proposal of the Minister for Transport and Communications (Verkeer en Waterstaat) and the Minister for Housing, Planning and Environment Management (Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer), the Queen transmitted the Transport Infrastructure Planning Bill (Tracéwet) to the Council of State for an advisory opinion.
21. The Transport Infrastructure Planning Bill was intended to provide a legislative framework for the supra-regional planning of new major transport infrastructure (roads, railways, canals) and major modifications to existing transport infrastructure with a view to simplifying procedures for securing the cooperation of the provincial, regional and local authorities whose territories might be affected. An additional effect was intended to be the concentration of legal remedies in such a way that only one single appeal could be lodged with the Council of State against a decision of central government and all related decisions of subordinate authorities, obviating the need for a plurality of appeals before both the ordinary courts and the Council of State against decisions and plans of local authorities.
22. The Council of State transmitted its advisory opinion to the government on 9 December 1991. Its opening paragraph reads:
“The Council of State fully acknowledges the problems that the signatories to the Transport Infrastructure Planning Bill wish to resolve. It often concerns large, technically complex and expensive infrastructure projects. These must not only be balanced against diverse and weighty interests relating to traffic and transport, road safety, town and country planning and the environment, but in addition it is desirable to have the widest possible public support for these projects. The current decision-making procedure – entailing a non-statutory routing determination following which final decisions are only made in accordance with the town and country planning procedure, against which an appeal may be lodged with a judge – can take much time. Furthermore, where a number of provincial and municipal bodies are involved, the decision-making process is diffused over several regional and local zoning plans. The Council of State therefore shares the government’s concern about the outlined problems. It will examine hereafter whether, in its opinion, the proposals made will in practice sufficiently resolve the problems and whether the concomitant disadvantages are acceptable.”
23. In its opinion the Council of State noted, among other things, the absence of any binding time-limits for the administrative authorities. It expressed doubts as to whether the procedure under the new bill, if enacted, would be any shorter than the aggregate of separate procedures necessary hitherto. It also considered that the new bill created uncertainty at the lower levels of government (the provinces, the regional surface waterboards (waterschappen) and the municipalities) by bypassing the planning structures of those lower bodies; in addition, insufficient weight was given to the justifiable interests of individuals. It found that the considerable limitation of legal protection constituted an important objection to the new bill.
24. Point 8 of the advisory opinion reads:
“Having reached the end of the examination of the legal protection in the framework of this bill, from which it can be seen that the Council of State has serious objections to the removal of a routing determination [tracévaststelling] from general town and country planning considerations, it nevertheless wishes to point out that, when the Council of State leaves aside here the problem dealt with under point 2 (length of the decision-making process under the bill), those serious objections would be less weighty if the bill only related to routing determinations of such exceptional (supra)national importance that it must be clear to anyone that in the case in question the provincial, regional and local interests should yield to them. In that case, the routing plans [tracés] referred to in section 24b should be explicitly mentioned in the bill. It would be preferable to reconsider the bill in this sense.”
25. The Council of State made a number of suggestions for improving the drafting of the bill before it was transmitted to Parliament. Its final conclusion reads:
“The Council of State advises you not to send this bill to the Lower House of the States General until the above observations have been taken into account.”
26. In their reply of 28 January 1992 the Minister for Transport and Communications and the Minister for Housing, Planning and Environment Management noted – as regards the doubts expressed by the Council of State as to whether the new procedure would be appreciably shorter than the former one – among other things that it might take a very long time to obtain the cooperation of the local authorities. It was also stated that the local authorities were involved in all stages of the procedure, being informed and consulted as the need arose; if it was necessary to compel their cooperation, this was done at the final stage, that of the routing decision. Legal protection of the justified interests of individuals was sufficiently guaranteed in the form of a single appeal, on legal grounds, against a routing decision.
27. As to the remarks made under point 8 of the advisory opinion of the Council of State, the ministerial response reads as follows:
“With the approval of the Council of Ministers (decision of 24 January 1992), we decided to include in the bill a separate regulation for large projects of national importance. In line with this, the transitory arrangement referred to in section 24b will be concentrated on the high-speed railway and the ‘Betuweroute’ [railway]. The original section 24b was included exclusively in view of these projects and can now be dropped, as a provision will be devoted to these projects. Since, with the inclusion of the special procedure for large projects and the above-indicated transitional arrangement, the bill will be further amended, we find it desirable to consult the Council of State on this. The amendments to the bill will therefore be submitted for advice to the Council of State in the form of a ministerial memorandum of amendments.”
28. The Minister for Transport and Communications made a number of changes to the bill in the light of the Council of State’s criticism. The amendments were submitted to the Council of State for advice on 6 February 1992.
29. In its advisory opinion of 8 May 1992, the Council of State considered, inter alia:
“... it desirable to indicate in section 24g that the notions ‘high-speed railway’ and ‘Betuweroute’ railway relate to specific [railway] connections between specifically named places.”
30. The ministerial reply of 19 May 1992 to this recommendation states:
“This advice has been followed. It is now indicated in section 24g that the high-speed railway relates to the Amsterdam-Rotterdam-Belgian border route, and the ‘Betuweroute’ [railway] to the Rotterdam-Zevenaar route.”
31. The government then submitted the bill to the Lower House (Tweede Kamer) of Parliament, together with the Council of State’s advisory opinion and the ministers’ comments. The Transport Infrastructure Planning Act eventually entered into force on 1 January 1994. It contains no specific mention of the high-speed railway or the Betuweroute railway, but does provide for a special procedure for projects of national importance.
32. An existing railway through the Betuwe region (the area circumscribed by the rivers Rhine, Lek and Waal) – known as the “Betuwe line” (Betuwelijn) – links the city of Rotterdam to the town of Elst. It was, and still is, mainly used for passenger traffic and is operated at a loss. As early as 1985 a government committee suggested converting it for use solely for the transport of goods, extending it as far as the town of Zevenaar and connecting it to the German railway system. A study commissioned by the Netherlands Railways (Nederlandse Spoorwegen – “the NS”) and published in 1991 concluded that the environmental impact would be unacceptable and that the capacity of such a railway line would be insufficient.
33. This led the government to reject that idea. Instead, the government decided to investigate the possibility of building a new railway through the Betuwe, to be known as the “Betuweroute”, along the A15 motorway. The NS was required to prepare an environmental impact report (milieu-effectrapportage).
34. On 16 April 1992 the Minister for Transport and Communications and the Minister for Housing, Planning and Environment Management together presented the first draft of the outline planning decision (Planologische Kernbeslissing) within the meaning of section 2a of the Town and Country Planning Act (Wet op de Ruimtelijke Ordening), which later became known as “Outline Planning Decision – Part 1”. The environmental impact report prepared by the NS was appended to this document. Pursuant to the then applicable section 2a of the Town and Country Planning Act, it was laid open for public inspection, notice of its publication being given through the Netherlands Government Gazette (Staatscourant) and the media. Anyone interested could then make his or her views known. The time-limit for doing so was 27 July 1992. More than 1,800 reactions were received.
35. On 31 August 1992 the Netherlands Minister for Transport and Communications signed an agreement with his German counterpart, the Federal Minister for Transport, for increased cooperation in the matter of cross-border railway communication. The agreement provided – subject to the conclusion of procedures prescribed by national law – for, inter alia, the building of a new railway from Rotterdam to the German border via Zevenaar. There were to be two border crossings, one at Oldenzaal/Bad Bentheim and the other at Venlo/Kaldenkirchen. The agreement also provided for corresponding measures to be taken on the German side and for a time frame.
36. On 18 April 1993 the government published a document entitled “Reacties op de Ontwerp Planologische Kernbeslissing Betuweroute” (Reactions to the Betuweroute Outline Planning Decision). It contained an overview of the reactions to Outline Planning Decision – Part 1 sent in by individuals and the results of further consultations and discussions with local government bodies, that is provinces, municipalities and regional surface waterboards. Advice obtained from the Netherlands-German Planning Board (Nederlands-Duitse Commissie voor de Ruimtelijke Ordening), the Environmental Impact Reports Board (Commissie milieu-effectrapportage), the Planning Advisory Board (Raad van Advies voor de Ruimtelijke Ordening) and the Traffic Infrastructure Consultation Body (Overlegorgaan Verkeersinfrastructuur) was also included in this document, which became known as Outline Planning Decision – Part 2.
37. On 18 May 1993 the government published their views on the Betuweroute project and transmitted it to the Lower House of Parliament for approval. This document became known as Outline Planning Decision – Part 3. After deliberations, the Lower House of Parliament sent Outline Planning Decision – Part 3 back to the government with its comments.
38. The government made certain modifications. The resulting document, which became known as Outline Planning Decision – Part 3A, was submitted to the Lower House of Parliament on 14 December 1993 for approval.
39. Outline Planning Decision – Part 3A was approved by the Lower House of Parliament on 22 December 1993 and, on 12 April 1994, by the Upper House (Eerste Kamer) of Parliament. It became known thereafter as Outline Planning Decision – Part 4 and came into force after its publication in the Netherlands Government Gazette on 27 May 1994.
40. Outline Planning Decision – Part 4 contained an explanatory memorandum setting out the need for the Betuweroute, as perceived by the government, and giving reasons for the choices made. It was stated that Rotterdam, the Netherlands’ main port, and Schiphol Airport, now served most of the European continent and that the increase in the volume of transport could not be absorbed by inland waterway traffic alone. Moreover, much of the European hinterland could not be reached by water. Road traffic could not be the only alternative, as it was relatively expensive, uneconomical over long distances and environmentally unfriendly. Furthermore, in much of eastern Europe the railway infrastructure was better developed and in a better state of repair than the roads.
41. Other European countries, including Germany, France and the Alpine countries, were investing heavily in railways in order to relieve the roads. Germany had undertaken to connect its railway system to the Betuweroute, and would give effect to this undertaking as soon as the decision to build the Betuweroute was taken. The transport policies developed by the European Economic Community also provided for the development of new railways.
42. The explanatory memorandum contained summaries of studies – additional to that undertaken by the NS in 1991 – that had been commissioned by the government, namely a study on the macro-economic and social effects by Knight Wendling and a micro-economic analysis by McKinsey. Both studies concluded that the Betuweroute would be profitable. They were scrutinised by the Central Planning Office (Centraal Planbureau). The results of this appraisal were also rendered in summary form. The government considered that although the conclusions of the Central Planning Office were rather more guarded, they too indicated that the project was viable.
43. Other alternatives were taken into consideration. These included increasing the capacity of an existing railway running from Rotterdam through the southern province of North Brabant to Venlo and from there into Germany (the “Brabantroute”), used mainly for passenger traffic, and making it more suitable for the transport of goods. This alternative was rejected on the ground that it would require building two extra tracks. Moreover, the urban density along the Brabant route being three to four times as high as that along the projected Betuweroute, this would cause severe and unacceptable problems.
44. Alternatives not involving railways, which had been suggested after Outline Planning Decision – Part 1 had been laid open for public inspection, were discarded in view of the need to connect to the existing railway infrastructure in the rest of Europe. The importance of inland navigation was nonetheless recognised, and it was stated that in both the Netherlands and Germany inland port facilities were undergoing further development.
45. Alternative methods of constructing the railway had been suggested in the wake of Outline Planning Decision – Part 1. Many of those who had stated their views on the matter had expressed a preference for an underground tunnel or for open tracks sunk below ground level. These were considered, but rejected as the cost would be prohibitive. A traditional construction was chosen consisting of rail tracks resting on a sand base and located mostly at ground level, a raised or lowered track being envisaged only for locations where such was called for by considerations of safety or environmental impact. Similarly, conventional rather than innovative technology was chosen.
46. Outline Planning Decision – Part 4 provided for a twin-track railway. Its location was fixed as far as possible within a horizontal band of 100 m. Within this band limited adjustment to local conditions would be possible, it being understood that any additional features such as drainage ditches or other traffic infrastructure might have to be located outside it. The actual route was set out in sketch plans, with reasons being given for the choices made and for the rejection of alternatives.
47. Consideration was given to possible harmful effects. Thus, although under the legislation in force (Article 7 of the Railway Noise Ordinance – Besluit geluidhinder spoorwegen) the maximum permissible noise level was 60 decibel ampere (dBA) on the outside walls of residential buildings, a “preferential noise level” of 57 dBA would be applied in anticipation of stricter standards which were expected to come into force in 2000. Where it appeared in practice that this could not be achieved, noise levels would be reduced by means of screens. Exceptionally, noise levels of up to 70 dBA might be tolerated at specific locations, but even there they were not to exceed 37 dBA inside residential buildings with the windows closed and ventilation apertures open. Although there might be an accumulation of noise from the A15 motorway and the Betuweroute railway, it was considered that the railway would contribute less noise than the louder motorway traffic, so that it would be possible, by screening and other measures, to reduce the combined noise levels to 60 dBA.
48. Some 150 residential buildings were found to be located within 50 m of the projected railway track. It was estimated that approximately one quarter of these were so close to the projected track that noise levels would compel the termination of their residential function. Studies had also been conducted regarding the vibration likely to be caused and the standards to be applied on this point. Further studies would be undertaken with a view to taking constructive measures aimed at reducing vibration levels.
49. The danger that might be result from the operation of the Betuweroute railway was also considered, although not in detail. It was intended to build the railway so that the “individual risk” would be no greater than 10-6 near residential areas. The “group risks” would be kept “as low as reasonably achievable”. Specific measures would be set out in the routing decision.
50. There had been an audit of the costs of the project as proposed by the government, which, as was estimated at 1993 cost levels, would amount to a total of 7,138,000,000 Netherlands guilders (NLG). Of this sum a portion of NLG 1,975,000,000 would be paid out of the State budget. The remaining NLG 5,163,000,000 would be raised from other sources, such as the financial markets, windfall profits from the sale of natural gas and funds supplied by the EEC. The total figure included a sum of NLG 750,000,000 occasioned by changes imposed by the Lower House of Parliament and NLG 375,000,000 required to meet objections and special requests made by individuals and local authorities.
51. A new government took office on 22 August 1994, which in pursuance of agreements reached between the coalition parties reconsidered the Betuweroute plan in its entirety. After obtaining the views of a parliamentary committee (the “Hermans Committee”), the new government decided that the plan should go ahead. Its views were made public in a letter sent by the Minister for Transport and Communications and the Minister for Housing, Planning and Environment Management to the Lower House of Parliament on 21 April 1995. On 29 June 1995 the Lower House of Parliament endorsed the government’s views.
52. In accordance with the procedure for projects of national importance under the Transport Infrastructure Planning Act which had come into force on 1 January 1994, a preliminary draft of the routing decision – containing the determination of the exact routing of the planned railway – was laid open for public inspection in June 1994, together with an addition to the environmental impact report and a survey of expected noise levels. Some 5,500 reactions were received from individuals, nongovernmental organisations and local-government bodies. These led to modifications, which were incorporated into the draft routing decision.
53. The draft routing decision was published on 4 March 1996 and laid open for public inspection until 29 April 1996. More than 600 reactions were received from individuals and local-government bodies. Changes were considered, and eventually incorporated into the final routing decision, in so far as they did not affect the projected route, did not require additional expenditure and did not affect the interests of other parties. Changes made included, for certain locations, noise-reduction measures in addition to those foreseen in Outline Planning Decision – Part 4.
54. The routing decision was finalised on 26 November 1996 by the Minister for Transport and Communications in agreement with the Minister for Housing, Planning and Environment Management. It covered most of the projected track of the new Betuweroute railway, with the exception of a number of locations – not concerned by the present case – for which further planning was required.
55. The routing decision comprises twenty-four Articles, creating a legal framework for the measures required, and a set of detailed maps with explanations. In its published form it is accompanied by an extensive explanatory part setting out the outline of the choices made.
56. A series of tests had been carried out from which it appeared that goods trains made rather more noise than had initially been estimated. It was stated that a reduction of noise levels was expected from modifications to the rolling stock (reduction at source). However, in case these should not be sufficient, screens would be erected where necessary regardless of the expected reductions at source. Further reductions were expected from the use of modern concrete sleepers instead of the conventional wooden ones on which the initial noise level assessments had been based. Finally, if the noise levels still turned out to be too high in practice, other measures would be considered, such as further modifications to rolling stock, avoiding operations at night and lowering maximum speeds. The standards to be applied, including those with regard to the accumulation of noise caused by the new railway and the A15 motorway, were those set out in Outline Planning Decision – Part 4. Stricter standards would be applied in the vicinity of sensitive locations such as hospitals and schools and certain designated rural areas (stiltegebieden – “silent areas”). The residential function of buildings where the noise levels would be excessive would have to be terminated. A detailed report setting out the noise levels for each municipality was appended to the routing decision.
57. Compensating measures for the preservation of the environment and the existing landscape were to include, among other things, the provision of culverts (to enable wildlife and cattle to cross underneath the railway) and of appropriate vegetation. Special measures were also envisaged for the protection of any known archaeological sites.
58. Consideration was also given to special measures required by the nature of the subsoil, which provided less support in the western part of the country than in the east; hence the need for additional supporting shoulders in certain areas. The need, at some locations, for cleaning polluted soil was noted.
59. Indications were given of how noise reduction screens, bridges and viaducts were to be built, and of how the railway would be sunk below ground level where this was unavoidable, an important objective being to limit the railway’s visual and environmental impact while maintaining its visual unity and continuity. Where the Betuweroute crossed existing traffic infrastructure – roads, existing railways, cycle paths – safety was the main consideration. Changes to existing ditches and waterways were unavoidable. Construction details of the electrical installations would, however, depend on the final decision on the electrical system to be used, which would be taken at a later date.
60. A total of 173 appeals against Outline Planning Decision – Part 3A were lodged with the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State, many jointly by a plurality of appellants. With the exception of the applicants Mr and Mrs Raymakers (no. 43147/98), who only raised objections of a general nature to Outline Planning Decision – Part 3A, all applicants in the present case submitted specific complaints about the proposed route of the railway in so far as their respective interests would be affected.
61. The bench of the Administrative Jurisdiction Division dealing with the appeals was composed of three ordinary councillors (Staatsraden) of the Council of State, namely Mr J. de Vries (President), Mr R. Cleton and Mr R.H. Lauwaars (members). Mr de Vries had been appointed Ordinary Councillor in 1982. Mr Cleton and Mr Lauwaars had been appointed ordinary councillors in 1992 and 1994 respectively.
62. On 31 January 1997, after sixteen hearings held between July and September 1996, the Administrative Jurisdiction Division delivered its decision. It rejected all the complaints of a general nature.
63. As to the specific complaints, it noted that Outline Planning Decision – Part 3A was not yet final as regards the definitive route of the railway. It therefore limited the scope of its review, for each separate location, to the question whether the government could reasonably have set the band as it had and, if so, whether it could reasonably have considered that an acceptable route was possible within the band specified or that, in view of possible measures to be taken, the interests of the affected appellants had been adequately taken into account. It reserved its opinion on the definitive location of the railway, which was to be the subject of the routing decision.
64. One group of general complaints addressed, inter alia, the assessment made by the government of the need for a new railway. These were rejected with reference to government policy aimed at maintaining and strengthening the position of the Netherlands as a European hub for transport and distribution. The Administrative Jurisdiction Division concluded that the government’s assessment of the need to construct the railway did not appear incorrect or unreasonable.
65. Another group of general complaints challenged the government’s estimates of the railway’s macro-economic effects and its profitability and the financial calculations underlying the government’s plans. These were rejected on the ground that the said estimates did not appear incorrect or unreasonable in view of the expert reports which the government had commissioned.
66. A further group of general complaints challenged the government’s failure to choose the most environmentally friendly alternative. The Administrative Jurisdiction Division held that the government could reasonably have come to the decision – having weighed alternatives and decided to give priority to human interests – to choose the most cost-effective solution and to use only proven technology. Where specific problems were alleged to arise, these would be dealt with separately. General complaints concerning expected noise and vibration levels, risk assessments, deprivation of property and the likelihood of damage were rejected as being either unfounded on the facts or premature given that these problems would be addressed for specific locations in the routing decision.
67. Specific complaints of twenty-two appellants were accepted as being well-founded, which led to parts of Outline Planning Decision – Part 3A (and therefore Outline Planning Decision – Part 4) being annulled. None of those twenty-two appellants are applicants in the present case.
68. As regards the specific complaints which were rejected, the Administrative Jurisdiction Division held either that it could not be established in advance of the routing decision that the railway could not be located within the band in such a way as to meet the objections, or that the appellants’ objections could not be met in another way, for instance by relocating business premises or offering financial compensation.
69. The decision ran to 292 pages, to which maps were appended indicating locations in respect of which parts of Outline Planning Decision – Part 3A were annulled.
70. In total 147 appeals were lodged with the Administrative Jurisdiction Division against the Betuweroute Routing Decision. Many of these appeals were introduced by a plurality of appellants, including the applicants in the present case. As was the case in the appeals against Outline Planning Decision – Part 3A, a large number of appellants made complaints of a general nature dealing with such matters as the procedure followed. Some challenged the government’s refusal to consider modifications of the routing decision unless the objections put forward were of a very serious nature. Others questioned the need or desirability for building the railway at all or objected to the procedure for assessing expected noise levels.
71. The composition of the bench of the Administrative Jurisdiction Division dealing with the appeals against the routing decision was the same as the bench that had determined the appeals against Outline Planning Decision – Part 3A (see paragraph 61 above). It commenced its examination of the appeals on 18 November 1997.
72. In the course of a public hearing held on 2 December 1997, Mr and Mrs Raymakers challenged the entire membership of the Administrative Jurisdiction Division and, in the alternative, all the councillors of that Division with the exception of the extraordinary councillors (Staatsraden in buitengewone dienst), and in the further alternative, the councillors sitting on the case, on the ground of lack of impartiality. They argued that, since the Plenary Council of State (Volle Raad) was involved in advising the government on proposed legislation, it was inconsistent with Article 6 of the Convention that members of that body should subsequently decide in a judicial capacity on the application of legislation once it had been adopted.
73. A hearing on this challenge was held on 9 December 1997 before a special Chamber of three members of the Administrative Jurisdiction Division who were not involved in hearing the appeal, that is Mr E. Korthals Altes (President), Mr A.G. van Galen and Mr C. de Gooyer (members), all of whom were extraordinary councillors of the Council of State.
74. Mr and Mrs Raymakers cited the European Court’s judgment of 28 September 1995 in Procola v. Luxembourg (Series A no. 326). They noted similarities between the organisation and functioning of the Netherlands Council of State and the Luxembourg Conseil d’Etat and quoted several comments published in the legal press by learned authors.
75. Given that the Council of State’s advice on the introduction of the Transport Infrastructure Planning Act had been worded “in generally positive terms” and therefore conflicted with these applicants’ own interest in maintaining the status quo, they considered that that advice had been contrary to their own position in their appeal. The Administrative Jurisdiction Division was therefore not an “impartial tribunal”. These applicants therefore asked the special Chamber to rule that the Administrative Jurisdiction Division should decline to make any decision in the case.
76. On 10 December 1997 the special Chamber of the Administrative Jurisdiction Division gave its decision. It held that, under section 8(15) of the General Administrative Law Act (Algemene Wet Bestuursrecht), a challenge could only be directed against judges who were dealing with the case of the party concerned. As to the challenge of the entire membership of the Administrative Jurisdiction Division, it was pointed out that if the Administrative Law Act had provided otherwise, no member of such a tribunal would in fact be in a position to entertain the challenge. Consequently, in so far as the applicants’ challenge was directed against members of the Administrative Jurisdiction Division who were not involved in hearing the applicants’ appeal, it was inadmissible. The challenge directed against the members who were so involved was rejected in the following terms:
“The Division considers that under section 8(15) of the General Administrative Law Act each of the members who decide a case can be removed from it [gewraakt] on the application of a party on the grounds of facts or circumstances by which judicial impartiality might be impaired. The Division deduces therefrom that only a lack of impartiality on the part of a judge can lead to his removal from a case. Neither the wording nor the drafting history of that provision offers support for the contention that a lack of independence of the tribunal to which a judge belongs can constitute grounds for that judge’s removal from a case. For this reason alone the appellants’ submissions at the hearing cannot lead to their application being granted.
As to the appellants’ reliance on Procola, the Division considers that the appeal lodged by the appellants with the Division does not raise questions on which the Council of State has, in advisory opinions on the legislation that is at issue in this appeal, expressed itself in a way contrary to the position taken by the appellants in their appeal. There is therefore no reason to fear that the members of the Council of State who are charged with deciding the appeal will consider themselves bound by any position adopted by the Council of State in the relevant advisory opinions.”
77. The hearing on the merits was resumed on 25 February 1998 and, on 28 May 1998, the Administrative Jurisdiction Division delivered its decision, which ran to 354 pages.
78. General complaints relating to the refusal of the government to consider modifications to the routing decision unless the objections put forward were of a very serious nature were dismissed on the ground that this was not unreasonable per se; it was more appropriate to consider the objections in question individually. General complaints relating to the necessity or desirability of building the railway at all – including complaints about the environmental impact report – were also dismissed. These had already been considered as part of the appeals against Outline Planning Decision – Part 3A. The question was no longer whether the building of the Betuweroute was acceptable, but only whether, in coming to the routing decision, the government could reasonably have decided as it had.
79. The complaint made by several appellants that the routing decision was taken before the appeals against the outline planning decision had been determined was rejected by the Administrative Jurisdiction Division. It held that, under section 24(5) of the Transport Infrastructure Planning Act, the period for lodging an appeal against decisions taken in an outline planning decision and against the routing decision based thereon started to run simultaneously and that, therefore, it was normal that a routing decision was already taken before the outline planning decision had become final. It further considered that it did not follow from the Transport Infrastructure Planning Act that where, like in the present case, a separate appeal lay against an outline planning decision, no routing decision could be taken before the outline planning decision had become final. The mere fact that the time-limits for appealing started to run independently did not, according to the Administrative Jurisdiction Division, alter the tenor of section 24(5) of the Transport Infrastructure Planning Act that no final outline planning decision was required for a routing decision to be taken on the basis of that decision.
80. As to noise levels, the various complaints were to be considered individually. General complaints concerning the determination of acceptable noise levels could not be entertained. Reasonable standards had been set by law, and actual noise would be monitored once the railway was in use. The safety studies were not held to have been insufficient. It was noted that there had been an additional study made in respect of areas where the concentration of the population, and therefore the group risk, was greatest. Moreover, the government had specified additional safety measures for these areas in its statement of defence, as well as specific ways of operating the railway so as to minimise the dangers attending the transport of dangerous goods. As to the individual risk, the routing decision provided that new development which would increase it within 30 m from the centre line of the track would be prevented; this made it unlikely that the individual risk would be increased further away from the track. Other objections relating to safety considerations would be dealt with on an individual basis.
81. As to vibration levels, the Administrative Jurisdiction Division held that the government could not be found to have acted unreasonably by basing its assessments on an industrial standard (DIN 4150) rather than a different standard suggested by certain appellants. Nor was the assessment of the likely nuisance caused by vibration unreasonable per se. Moreover, the government had undertaken to provide active monitoring (that is, to measure vibration levels of its own motion) in all residential buildings located within 50 m of the railway once it was in use, and passive monitoring (that is, to measure vibration levels after complaints were received) in residential buildings located 50 to 100 m from the railway. The government would then deal with unacceptable nuisance on a case-by-case basis. Specific problems raised by appellants would be dealt with individually.
82. With regard to general complaints about the arrangements for compensating damage, the Administrative Jurisdiction Division referred generally to the relevant provisions of the routing decision. It further noted that legal remedies were available against any specific decisions taken in this regard. It could therefore not yet be assumed at this stage that acceptable arrangements in respect of damage were not possible.
83. As to the appeal lodged by Mettler Toledo B.V. (no. 39651/98), whose extremely accurate device for calibrating scales was stated to be particularly sensitive to vibration, the Administrative Jurisdiction Division noted that studies were still ongoing as to whether the vibration likely to be caused by the railway would unduly interfere with that company’s business. That being so, Mettler Toledo B.V.’s claims could not be dismissed as unfounded; to that extent, the appeal was allowed.
84. Sterk Technisch Adviesbureau B.V. (no. 39651/98), whose premises would have to be relocated, complained that no sufficient clarity had been provided as to whether a new location of equivalent quality would be made available. The Administrative Jurisdiction Division held this complaint to be well-founded. This made it unnecessary to go into other specific complaints made by this applicant.
85. With regard to a complaint submitted jointly by Mr A.A. Kleyn (no. 39343/98) and Kleijn Financierings- en Leasemaatschappij B.V., Exploitatiemaatschappij De Zeiving B.V., Ms C.J.P. Kleijn, Ms P.M. Kleijn and Ms C.J. Kleijn (no. 39651/98) in respect of the restaurant “De Goudreinet” which they owned and the flat inhabited by Mr A.A. Kleyn, the Administrative Jurisdiction Division found that no investigation had been undertaken as to whether it would be possible for these to continue in use. To that extent the complaint was therefore well-founded. The remainder of their appeal was dismissed.
86. As regards the appeal lodged by Mr M. Witvliet (no. 46664/99), the Administrative Jurisdiction Division rejected the objections to a possible expropriation, holding that such objections could be raised in the specific procedure set out in the Expropriation Act (Onteigeningswet). As to his complaint about nuisance from noise in a particular area, it was held that this element had been insufficiently examined. To that extent, his appeal was well-founded. The remainder was rejected.
87. The Administrative Jurisdiction Division rejected the appeals lodged by the other individual applicants and applicant companies.
88. In so far as the appeals were considered well-founded, the Administrative Jurisdiction Division annulled the routing decision and made an award in respect of costs.
89. In a letter to the Lower House of Parliament of 13 July 1998 the Minister for Transport and Communications, writing also on behalf of the Minister for Housing, Planning and Environment Management, observed that the decision of the Administrative Jurisdiction Division left 95% of the routing decision intact. It was therefore not necessary either to undertake a radical review of the project or to interrupt the building work. It was expected that the Betuweroute railway would be operational by 2005.
90. In so far as minor parts of the routing decision had been annulled, the reason therefor had merely been that insufficient information had been obtained as to whether the interests of the appellants could be safeguarded. In so far as relevant to the present case, the minister expected that in all but one or two cases changes to the original routing decision would prove unnecessary.
91. New partial routing decisions were taken in the course of 1998. An appeal lodged by Mettler Toledo B.V. was declared inadmissible by the Administrative Jurisdiction Division on 16 April 1999. The appeal lodged by Sterk Technisch Adviesbureau B.V. was dismissed by the Administrative Jurisdiction Division on 25 October 1999. The appeals lodged by Kleijn Financierings- en Leasemaatschappij B.V., Exploitatiemaatschappij De Zeiving B.V., Ms C.J.P. Kleijn, Ms P.M. Kleijn, Ms C.J. Kleijn and Mr A.A. Kleyn were dismissed by the Administrative Jurisdiction Division on 25 July 2000. Mr Witvliet apparently did not lodge an appeal against any of the 1998 routing decisions.
92. In response to suggestions made in the media to reconsider the Betuweroute project, the Minister for Transport and Communications sent a note (Notitie Betuweroute) to the Lower House of Parliament on 6 November 1998. In this note the minister restated the considerations which had led to the decision of 1995 to allow the project to go ahead. She also expressed the view that no new information had become available since the reconsideration of 1995 which would tend to undermine earlier assumptions as to the viability and desirability of the project. On the contrary, developments had been such as to endorse these.
93. On 13 April 1999 the Stichting Duurzame Mobiliteit (Durable Mobility Foundation) – one of the appellants against the routing decision but not one of the applicants in the present case – lodged a request for revision (herziening) of the decisions of 31 January 1997 and 28 May 1998 with the Administrative Jurisdiction Division. This appellant argued that the government had either been insufficiently aware of certain relevant factual information at the time when it finalised Outline Planning Decision – Part 3A or had failed to consider this information.
94. In a decision of 9 March 2000 the Administrative Jurisdiction Division refused to revise its decisions. It found that the information in question was not of such a nature as to justify reopening the proceedings.
95. From August 1999 until February 2000 the Chamber of Audit (Algemene Rekenkamer) undertook a study of the Betuweroute decision-making process. It published its report on 22 June 2000 under the title “Beleidsinformatie Betuweroute” (Betuweroute Policy Information).
96. The purpose of the report was to provide guidance for the quality and use of information relied on by the government to ground future policy decisions relating to large infrastructure projects. The central questions were whether the quality of the information relied on in taking Betuweroute policy decisions was assured and whether this information had been used in a responsible way in the preparation of the decision-making process. Developments subsequent to the reconsideration of 1995 were taken into account.
97. The Chamber of Audit found that in the initial stages an adequate analysis of the problems to be solved had not been made. The decision-making process had related one-sidedly to the solution chosen, namely the construction of the Betuweroute railway, it having been decided at the outset that that was beneficial for the national economy and the environment; an expert analysis of the information on which the outline planning decision was based had not been sought.
98. Predictions concerning the expected volume of transport through the Netherlands were considered imprecise and unreliable. The predictions eventually relied on appeared overly optimistic; also, in some cases, it was not clear on what considerations the preference for particular predictions over others was based. Uncertainty remained, inter alia, as to the capacity of the German railway system to absorb the increased volume of goods traffic. The increasing competitiveness of inland navigation had not been considered, nor had the slow progress in some European countries (for example, Belgium and France) of the liberalisation of rail transport. Nor had account been taken of the possible effects of levies on road transport as against the passing on of the costs of railway infrastructure to shippers, the latter possibility being envisaged in a policy proposal of the European Commission.
99. Alternatives to the Betuweroute had not been sufficiently explored. The Chamber of Audit criticised the way in which the use of the existing railway infrastructure in the Netherlands and waterborne inland and coastal transport had been considered in isolation rather than in combination. A thorough analysis of the possibilities of optimising existing east-west transport, including existing railway infrastructure, was lacking. Possible future developments in inland waterway traffic, which already accounted for a greater volume of transport than Netherlands railways, had not been looked into.
100. The assumed environmental benefit had also been misstated. The information concerning the environmental impact of alternatives to the Betuweroute railway had been inadequate and had been used in a selective way. Attention had been focused on the immediate reduction of energy use and noxious emissions without taking into account technical developments such as the increased use of cleaner and more economical engines in alternative transport; insufficient information had been provided concerning such matters as nuisance levels, external safety or soil and groundwater pollution attending alternative choices.
101. A positive feature of the process, given especially the public discussion which had arisen, was that the project had been reconsidered in its entirety in 1995 and that the arguments in favour had been presented anew in 1998 (the Betuweroute Note – see paragraph 92 above). However, the information available at those times and the way in which it had been used was open to criticism.
102. The draft of the report was transmitted in its entirety to the government. The Minister for Transport and Communications, in a reaction submitted also on behalf of the Minister for Housing, Planning and Environment Management, expressed broad agreement with the report although some of the individual findings were contested. The conclusions of the Chamber of Audit were accepted for future reference.
103. Parts of the draft report were transmitted to the NS Railway Infrastructure Division and to Railned, the Netherlands government entity which operated the railway system. The Railway Infrastructure Division disagreed with certain findings of the Chamber of Audit with regard to environmental impact estimates. Railned called into question some of the findings of the Chamber of Audit with regard to the predicted increase in the volume of rail transport.
104. The full report, including the reactions, was transmitted to the Lower House of Parliament (parliamentary year 1999-2000, 27 195, nos. 12).
105. Section 2a of the Town and Country Planning Act empowers the Minister for Housing, Planning and Environment Management together with the other ministers concerned in each case to prepare plans, known as outline planning decisions, for particular aspects of national planning policy (section 2a(1)). At the relevant time (that is before 1 January 1994) the draft for such a plan was required to be laid open for public inspection for a period of between one and three months, an announcement being made beforehand in the Netherlands Government Gazette and the local media. Anyone minded to do so could submit their views for a period of one month after the end of the inspection period (section 2a(2)). The draft was transmitted to the Lower House of Parliament for information at the time of its being laid open for public inspection (section 2a(5)).
106. The ministers were required to consult the authorities of the provinces, regional surface waterboards, municipalities and any other public-law entities, as appropriate, about the draft (section 2a(3)). The advice of the Planning Advisory Board had to be sought (section 2a(4)).
107. The ministers were then required to transmit the outline planning decision – which by this time no longer had the status of a draft – to the Lower House for approval. The plan had to be accompanied by a general statement setting out the way in which any views submitted by interested parties, the results of consultations with lower government bodies and the advice of the Planning Advisory Board had been taken into account (section 2a(6)).
108. The Lower House was entitled to send the outline planning decision back to the ministers concerned for modification before deciding whether or not to approve it. Thereafter it could withhold its approval of all or part of the plan (section 2a(7)).
109. The Lower House then transmitted the outline planning decision, as approved by it, to the Upper House of Parliament. The latter House could decide to approve it or not, but could not amend it (section 2a(8)). If approved by the Upper House, the outline planning decision came into force (section 2a(7)). Once it was in force, the outline planning decision was published in the Official Bulletin and the local media (section 2a(9)).
110. Although there is no specific provision for any appeal to an administrative tribunal against an outline planning decision, the Administrative Jurisdiction Division of the Council of State held in its decision of 31 January 1997 – that is the decision on the appeals against the outline planning decision in the present case (see paragraphs 62-69 above) – that the decisive moment for lodging an appeal was when the ministers resubmitted the outline planning decision to the Lower House of Parliament after the latter had given them the opportunity to modify it (that is, for the purposes of the present case, Outline Planning Decision – Part 3A).
111. Since 1 January 1994 it is provided that, in so far as an outline planning decision contains policy decisions about major projects of national importance, all further planning relating to such projects is subject to the limitations set out in these policy decisions (section 39).
112. The Transport Infrastructure Planning Act, as in force since 1 January 1994, requires the Minister for Transport and Communications to consult the local and regional authorities whose territories may be affected and, in the case of a railway project, the prospective exploiter of the railway before drawing up a draft routing decision (section 6). This draft is then transmitted to them, after which they have the opportunity to comment (sections 11(1), 12(1) and (2), and section 13).
113. The minister then draws up a final routing decision and may if necessary require the local and regional authorities to modify their own local and zoning plans (section 15(1)-(3)). The routing decision is transmitted to Parliament with an explanatory statement (section 16(1)). Non-binding time-limits are set for the various stages of the procedure.
114. Anyone with an interest may lodge an appeal against the routing decision with the Administrative Jurisdiction Division of the Council of State (section 15(4)).
115. Chapter V of the Transport Infrastructure Planning Act contains special provisions governing the procedure relating to major projects of national importance. This procedure is to be followed if an outline planning decision is in force (section 21). In such cases the outline planning decision is to form the basis of, and be transformed into, a draft routing decision (section 22). If changes to the draft routing decision appear necessary in view of observations received from interested parties or local-government bodies, then these changes are to remain within the limits drawn by the outline planning decision (section 23(1)).
116. The Minister for Transport and Communications, together with the Minister for Housing, Planning and Environment Management, then draws up a final routing decision and may, if necessary, require the local and regional authorities to modify their own local and zoning plans (section 24(1)-(3)).
117. Anyone with an interest may appeal against the final routing decision to the Administrative Jurisdiction Division of the Council of State (section 24(4)). No separate appeal lies against the outline planning decision if it is followed within one year from its entry into force by a final routing decision (section 24(5)).
118. The Council of State was established by Emperor Charles V in 1531 in order to assist and advise his sister, Mary of Hungary, whom he had appointed regent (landvoogdes) of the Low Countries to rule on his behalf.
119. Following the Low Countries’ secession from Spain in 1581 and in the course of the subsequent establishment of the independent Republic of the Seven United Netherlands Provinces, which was formalised in 1648 by the Treaty of Westphalia, the Council of State developed into a body that, together with the Stadtholder (Stadhouder), was charged with daily government. The control over their governance was exercised by the representatives of the United Provinces sitting in the States General (Staten-Generaal).
120. The Council of State was abolished in 1795, when France occupied the Republic. Napoleon transformed the Republic into the Kingdom of Holland in 1806 and, in 1810, incorporated it into the French Empire. In 1805 the Council of State had been reinstated as an advisory body to the Grand Pensionary (Raadpensionaris), who was appointed by the legislative body to head the then executive. The Council of State exercised this function until 1810. The Kingdom of the Netherlands regained independence in 1813. According to the 1815 Netherlands Constitution (Grondwet), the monarch had an obligation to consult the Council of State before legislative acts and measures of internal administration were enacted. The monarch was further free to consult the Council of State on other matters.
121. A further function of the Council of State was introduced in 1861, namely that of hearing administrative disputes in which an appeal had been lodged with the Crown (Kroonberoep) and advising the Crown, consisting of the inviolable monarch and the responsible minister or ministers, on the ruling to be given by the Crown on the appeal. The Crown was free to depart from this advice. For the exercise of this function, the Administrative Litigation Division of the Council of State (Afdeling voor Geschillen van Bestuur van de Raad van State) was created.
122. On 1 July 1976 the Act on Administrative Jurisdiction as to Decisions of the Administration (Wet administrative rechtspraak overheidsbeschikkingen – “the AROB Act”) came into force, which provided for an administrative appeal procedure in statutorily defined categories of administrative disputes not eligible for an appeal to the Crown. The final decision on such disputes was to be taken by a newly established Division of the Council of State, that is the Judicial Division of the Council of State (Afdeling Rechtspraak van de Raad van State).
123. In order to give effect to the Court’s judgment of 23 October 1985 in Benthem v. the Netherlands (Series A no. 97), in which it was found that the Crown could not be regarded as a tribunal within the meaning of Article 6 § 1 of the Convention, the Interim Act on Crown Appeals (Tijdelijke Wet Kroongeschillen) was passed on 18 June 1987. It entered into force on 1 January 1988 and was to remain in force for five years. Under the provisions of this Act, the Administrative Litigation Division of the Council of State was to determine all disputes which formerly were to be decided by the Crown. The function of the Judicial Division of the Council of State was not affected by this Act.
124. On 1 January 1994 the General Administrative Law Act (Algemene Wet Bestuursrecht), laying down new uniform rules of administrative procedure, entered into force. On the same date the Interim Act on Crown Appeals and the AROB Act were repealed. The functions of both the Administrative Litigation Division and the Judicial Division, which thereby became defunct, were vested in a new division of the Council of State, the Administrative Jurisdiction Division (Afdeling bestuursrechtspraak).
125. The Council of State is presided over by the monarch and consists of a vice-president and up to 28 ordinary councillors (Staatsraden) (section 1 of the Council of State Act (Wet op de Raad van State)) and 55 extraordinary councillors (Staatsraden in buitengewone dienst) (section 4, as worded since 1 April 2001; prior to this date the maximum number of extraordinary councillors was 25). At present, the Council of State is composed of 27 ordinary councillors and 27 extraordinary councillors.
126. All councillors are appointed by royal decree (Koninklijk Besluit) following nomination by the Minister of the Interior and Kingdom Relations in agreement with the Minister for Justice. Appointments are for life, the age of retirement being 70 (sections 3 and 4). Extraordinary councillors submit proposals for the number of hours they wish to work, and their number is subsequently determined for five-year periods by royal decree.
127. Any candidate for membership of the Council of State is required to be a Netherlands national and to be at least 35 years old (section 5). In the appointment of ordinary councillors, care is taken to ensure that the composition of the Plenary Council of State (Volle Raad), which solely consists of ordinary councillors, reflects political and social opinion in the proportions represented in the Houses of Parliament (Staten-Generaal). However, membership of a political party is not a formal or material criterion.
128. Ordinary councillors are appointed primarily on the basis of their knowledge and experience, whether in a specific field or in relation to public administration and administrative law in general. They are mainly selected from the circle of politicians, governors, high-level civil servants, judges and academics. Extraordinary councillors are mainly selected from the judiciary on the strength of their specific judicial knowledge and experience.
129. Section 7(1) of the Council of State Act sets out the posts, offices and professional activities that are incompatible with being vice-president of the Council of State and with being an ordinary councillor. These categories are extended in section 7(2) of this Act with regard to the extraordinary councillors. This provision reads:
“The vice-president, ordinary councillors and extraordinary councillors shall not hold any post the exercise of which is undesirable with a view to the proper discharge of their office, the preservation of their impartiality and independence, or the confidence therein.”
130. Pursuant to section 7(3), the vice-president renders public any other positions held by members of the Council of State. This information is published in the Netherlands Government Gazette and posted on the Council of State’s official website.
131. As required by Article 73 of the Constitution, before the government submits to Parliament a bill for adoption, draft delegated legislation or a proposal to approve or denounce a treaty, it must seek the advisory opinion of the Council of State (section 15 of the Council of State Act).
132. In cases where proposed legislation does not originate from the government but from one or more members of the Lower House of Parliament, the Lower House will seek the advisory opinion of the Council of State (Article 15a).
133. For the purposes of delivering advisory opinions, the ordinary councillors are divided into five Sections, grouped by ministries. A bill is first scrutinised by officials, who set out their findings in a memorandum. The bill and this memorandum are subsequently transmitted to a rapporteur, who prepares a draft advisory opinion. This draft is then discussed in the Section concerned. It will subsequently be submitted to the Plenary Council of State for examination and adoption.
134. The Council of State examines draft legislation and explanatory memoranda in the light of a large number of criteria bearing on policy, points of law and technical legislative requirements. These criteria include compatibility with human rights conventions, European law, the Constitution, the Charter for the Kingdom of the Netherlands (Statuut voor het Koninkrijk der Nederlanden), general legislation and unwritten legal principles, as well as existing law and general regulations on the structure, formulation and presentation of bills and explanatory memoranda. It further examines the anticipated effectiveness, efficiency, feasibility and enforceability of the proposed regulations, the degree of compliance to be expected, as well as the internal consistency of the legislation, the legal certainty it provides and the quality of legal protection.
135. The Plenary Council of State, which is composed solely of the ordinary councillors, adopts the advisory opinions of the Council of State. The extraordinary councillors are not involved in the advisory function of the Council of State. It is further standing practice that the meetings of the Plenary Council of State are not attended by the extraordinary councillors.
136. The Administrative Jurisdiction Division of the Council of State is entrusted with adjudicating administrative disputes, including applications for provisional relief, where the law so provides (section 26 of the Council of State Act). Its cases are heard in accordance with the provisions of the General Administrative Law Act and the relevant provisions of the Council of State Act.
137. The Administrative Jurisdiction Division consists of all the ordinary councillors of the Council of State (not its vice-president) and all the extraordinary councillors. They all hold this position for life until their retirement at the age of 70. Among them a president of the Division is appointed by royal decree, also for life.
138. The president manages the work of the Administrative Jurisdiction Division and decides on the composition of its four Chambers. The first Chamber deals with cases involving town and country planning, the second Chamber with environment cases, the third Chamber with general appeals and the fourth Chamber with appeals in cases concerning aliens. The first two Chambers administer justice at first and sole instance, whereas the third and fourth Chambers hear appeals against judgments given by lower administrative courts. Cases before the Administrative Jurisdiction Division are dealt with by either a three-judge bench or a single judge.
139. With a view to guaranteeing the impartial administration of justice, the Administrative Jurisdiction Division has adopted certain principles, namely that a member who has been involved in an application for provisional relief will not be involved in hearing the proceedings on the merits; if an appeal is dealt with in simplified proceedings (that is without an oral hearing), any objection (verzet) will not be heard by the member who gave the original judgment, and every member must be alert to any conflict of interest and, in case of any reasonable doubts, either withdraw from a case or acquiesce in a challenge to his or her impartiality.
140. Partly to facilitate this, and well in advance of hearings, members of the Administrative Jurisdiction Division assigned to a particular case are sent copies of the principal documents in the case, together with a list of parties involved and their legal counsel. In this way, each member can verify whether there are reasons for withdrawing from the case on grounds of, for instance, a previous position, kinship or any other relation between a member of the Administrative Jurisdiction Division and a party or legal representative.
141. From the above description it follows that some members of the Administrative Jurisdiction Division combine the judicial function with the advisory function, namely the ordinary councillors of the Council of State, while the extraordinary councillors perform only a judicial function within the Council of State.
142. In a memorandum appended to a letter dated 12 February 1998 to the Chairman of the Lower House, the Minister for Justice and the Minister of the Interior informed the Lower House that, in view of Procola (Series A no. 326) and given the fact that there was not yet communis opinio about its precise scope and its possible consequences for the Netherlands, the Council of State had adopted a provisional practice in anticipation of further clarification by the European Court of Human Rights in its future case-law (Lower House parliamentary documents 1997-98, 25 425, no. 3).
143. The dual function of the Council of State was subsequently debated at length in Parliament, which accepted the position taken by the government.
144. In parliamentary budget discussions held in 2000, the government confirmed its above position. In reply to a question put in the Lower House on the advisory and judicial functions of the Council of State in relation to the independence of the administration of justice, the government stated that, after Procola, the Council of State had adapted its internal working methods and that, referring to the contents of the Minister for Justice’s letter of 12 February 1998, these adaptations were of such a nature that so-called “Procola risks” were as good as excluded and that in this light the independent administration of justice was guaranteed (Lower House parliamentary documents 2000-01, 27 400 II, no. 3).
145. The practice adopted by the Council of State was further set out in the Annual Report 2000 of the Council of State. The relevant section reads as follows:
“Since it is as yet unclear how the European Court of Human Rights will decide on the combination of functions within the Netherlands Council of State and the effect thereof on objective independence and impartiality, or what criteria the European Court of Human Rights will apply in this respect and what boundaries will be drawn, the Administrative Jurisdiction Division has for the time being chosen criteria and determined boundaries itself. Also, the Council of State and its Administrative Jurisdiction Division consider it important that justice is also seen to be done. The procedure opted for in this connection, and about which the Ministers for Justice and of the Interior have already made announcements to the Lower House (Lower House parliamentary documents 1997-98, 25 425, no. 3), amounts to the following:
If in an appeal which has been lodged in time with the Administrative Jurisdiction Division, the lawfulness is disputed of a legal provision which has previously been applied in the case or of another regulation concerning an aspect – for example incompatibility with European law – in respect of which the Council of State has in the past explicitly expressed an opinion in its advice on the proposed provision, and if a party has voiced doubts as to the independence and impartiality of the bench dealing with the appeal, the composition of this bench will be changed so as to ensure that only members who have not participated in the advice sit on this bench. For this are in any event eligible the extraordinary councillors, who are not involved in the advisory function, and those ordinary councillors appointed after the giving of the advice and those ordinary councillors in respect of whom it is objectively certain that they have not participated in the adoption of the advice in the Plenary Council of State. In such a situation, this will – thanks to this way of proceeding in the Division – therefore prevent appellants as far as possible from relying on Procola in a challenge or otherwise.”
146. Members of the Administrative Jurisdiction Division to whom a case has been assigned may be challenged by any of the parties on the grounds of facts or circumstances which may affect their judicial impartiality (section 8(15) of the General Administrative Law Act taken together with section 36 of the Council of State Act).
147. The challenge will be examined as soon as possible by a Chamber composed of three members of the Council of State, which shall not include the councillor(s) challenged. The challenging party and the councillor(s) challenged are offered the opportunity to be heard. A reasoned decision shall be given as soon as possible, against which no appeal lies (section 8(18) of the General Administrative Law Act taken together with section 36 of the Council of State Act).
148. In the case-law developed by the Administrative Jurisdiction Division in relation to challenges based on the Council of State’s combined advisory and judicial functions in the light of Article 6 of the Convention, decisive importance is attached to the question whether or not the challenged councillor was involved in advising on the disputed legislation and whether the substance of the appeal concerns a point that was explicitly addressed in the advisory opinion given by the Council of State.
149. The Administrative Jurisdiction Division initially took as one of its criteria the degree to which members of the bench hearing the appeal had contributed to the advisory opinion. This criterion was dropped in later caselaw, as this information is not accessible to the general public and therefore the parties. The key questions remain whether the challenged member of the bench belonged to the Plenary Council of State at the time when the advisory opinion was given and whether any position was adopted in the advisory opinion that is opposed by the party that has lodged the challenge. Only in cases where these questions can be answered in the affirmative is it accepted that a party has justified grounds to fear that the councillor concerned is biased in respect of the subject of the dispute (see Administrative Jurisdiction Division, case no. E10.95.0026/W, judgment of 9 October 1997, and case no. EO1.96.0532/W, judgment of 10 December 1997, Jurisprudentie Bestuursrecht 1998/28).
150. The rejection of a challenge does not however preclude the possibility that members of the bench concerned subsequently decide to withdraw from the case in view of the substance of the appeal (see Administrative Jurisdiction Division, case no. E03.96.0765/1, Jurisprudentie Bestuursrecht 2001/72).
151. Since Procola was published, it has been relied on in ten challenges lodged before the Administrative Jurisdiction Division. All of these challenges have been rejected, either because members assigned to the appeal were not involved in the previous advisory opinions on the statutory provisions concerned, or because the points of law put to the Administrative Jurisdiction Division by the party having lodged the challenge were so remote from the previous advisory opinion that the fear of bias was found to be unjustified.
152. In an appeal in cassation lodged with the Supreme Court (Hoge Raad) against a judgment of 29 March 1999 of the Arnhem Regional Court (Arrondissementsrechtbank) in expropriation proceedings in connection with the construction of the Betuweroute railway, the appellant argued that the Regional Court, by confining itself to referring to the administrative procedures already pursued before the Administrative Jurisdiction Division, had neglected to rule on the legality and necessity of the expropriation and, in particular, that the Regional Court had failed to investigate technical alternatives such as tunnelling, which would make expropriation unnecessary. In this connection, referring to the Court’s judgment in Procola (cited above), he argued that the Council of State’s “structural impartiality” was in doubt and that it followed from this that he was entitled to have these issues reviewed by the ordinary courts.
153. In its judgment of 16 February 2000, the Supreme Court rejected these arguments. It agreed with the Regional Court that issues such as the necessity of building the railway at all and the choice of technical and routing alternatives were matters to be dealt with in administrative proceedings under the Town and Country Planning Act and the Transport Infrastructure Planning Act and not in expropriation proceedings. As to the appellant’s point concerning the impartiality of the Council of State, the Supreme Court held as follows:
“3.2. [The appellant] has submitted before the Regional Court – in so far as still relevant – in objection to the expropriation:
...
(b) As the Council of State (as a whole, therefore including the Administrative Jurisdiction Division) has been involved in the enactment of the Transport Infrastructure Planning Act and in this respect, as an advisory organ, has issued a generally positive advice, the Council of State cannot be regarded as a structurally impartial tribunal within the meaning of Article 6 of the Convention;
...
3.4.5.1. In Part Ib of the cassation plea, which concerns the objection set out in 3.2 under (b) and with reference to the judgment of the European Court ... in Procola v. Luxembourg, the argument is repeated that was unsuccessfully raised before the Regional Court, namely that the royal decree must be reviewed in its entirety as doubts may arise as to the structural impartiality of the Council of State as a judicial body where members of the Council of State have subsequently advised about the Transport Infrastructure Planning Act and administer justice on a decision that has been taken on the basis of this Act.
3.4.5.2. However, the argument overlooks the point that the mere fact that advice was heard from the Council of State, in accordance with the statutory provisions concerned, about the bill that eventually led to the Transport Infrastructure Planning Act does not warrant the conclusion that fears as to the impartiality of the Administrative Jurisdiction Division of the Council of State, which had to judicially determine objections against the routing decision, are objectively justified. Part Ib of the cassation plea must therefore be dismissed.”
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-85519
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: ZDRAHALOVA v. THE CZECH REPUBLIC
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova
TEXT: The applicant, Mrs Věra Zdráhalová, is a Czech national who was born in 1939 and lives in Kuřim. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1988 a certain C. repaired the applicant’s weekend cottage, for which the applicant paid him CZK 54,800 (EUR 2,113). However, this did not correspond to the real extent of the work C. had carried out. On the applicant’s criminal complaint, the police started to investigate the case. However, they closed it on 3 January 1990, as C. was subject to a presidential amnesty.
On 25 January 1990 the applicant brought a civil action for damages against C., seeking payment of CZK 20,000 (EUR 771).
In a judgment of 13 March 1998 the District Court ordered C. to pay the applicant CZK 20,397 (EUR 786) with interest and dismissed the remainder of the applicant’s action. On 15 April and 22 May 1998 respectively, the applicant and C. appealed.
On 30 January 2002 the Regional Court partly dismissed and partly granted the applicant’s appeal and sent the relevant part of the case back to the District Court.
At a hearing held before the District Court on 13 November 2002 the applicant unsuccessfully requested the court to order a new expert opinion. At the end of the hearing the court delivered a judgment by which it rejected the remaining part of the applicant’s action for damages. The applicant was ordered to pay court fees.
In a judgment of 23 June 2003 the Regional Court upheld the merits of the District Court’s judgment.
On 8 September 2003 the Regional Court’s judgment was served on the applicant who, on 13 October 2003, was informed that the judgments had not yet become enforceable, as it was not possible to deliver the Regional Court’s judgment to C. According to the Government, the judgment became final on 28 October 2003.
On 31 July 2006 the applicant applied for compensation pursuant to Act no. 82/1998 as amended. She claimed CZK 558,042 (EUR 21,516) in respect of pecuniary damage, CZK 600,000 (EUR 23,134) in respect of non-pecuniary damage and CZK 26,075 (EUR 967) in respect of court fees.
In a letter of 28 December 2006 the Ministry of Justice informed the applicant that her application had been accepted, that it had been found that her right to a determination of their civil claim within a reasonable time had been violated and that she had been awarded a sum of CZK 156,000 (EUR 6,015) in respect of non-pecuniary damage she might have sustained and CZK 15,000 (EUR 578) in respect of court fees. The Ministry refused, however, the applicant’s claim regarding compensation for pecuniary damage.
On 12 January 2007 the applicant informed the Registry that she did not intend to turn to a court under section 15(2) of Act no. 82/1998 as amended.
The relevant domestic law and practice concerning remedies for the allegedly excessive length of judicial proceedings are set out in the Court’s decision in the case of Vokurka v. Czech Republic, no. 40552/02 (dec.), §§ 11-24, 16 October 2007).