AS TO THE ADMISSIBILITY OF
Application no. 62023/00
by EMESA SUGAR N.V.
against the Netherlands
The European Court of Human Rights (Third Section), sitting on 13 January 2005 as a Chamber composed of:
Mr B.M. Zupančič, President,
Mr J. Hedigan,
Mr L. Caflisch,
Mr C. Bîrsan,
Mrs A. Gyulumyan,
Ms R. Jaeger,
Mr E. Myjer, judges,
and Mr V. Berger, Section Registrar,
Having regard to the above application lodged on 3 August 2000,
Having regard to the decision taken by virtue of Article 36 § 2 of the Convention to admit as a third party the European Commission,
Having regard to the observations submitted by the respondent Government, the applicant company and the European Commission,
Having deliberated, decides as follows:
The applicant, Emesa Sugar N.V., is a public limited company, having its registered seat in Oranjestad (Aruba). It is represented before the Court by Mr G. van der Wal and Mr P. Kreijger, who are both lawyers practising in Brussels. The respondent Government are represented by their Agent, Mr R.A.A. Böcker, of the Ministry of Foreign Affairs. The European Commission is represented by Messrs G. Marenco and C. Ladenburger, and Mrs S. Fries.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant company's activities include the operation of a sugar factory on Aruba and the export of sugar to the European Communities (EC). Since Aruba produces no sugar, the sugar is bought from cane sugar refineries in Trinidad and Tobago. After purchase, the sugar is transported to Aruba, where it is cleaned, milled and packed.
The applicant company operates within the legal framework of the European Council Decision 91/482/EEC of 25 July 1991. This Council Decision is based on Part IV of the EC Treaty, relating to the association of overseas countries and territories with the EC. Aruba is one of these “overseas countries and territories” (“OCT”). Part IV of the EC Treaty provides the basis for the abolition of customs duties on goods originating from OCTs when imported into the EC. In accordance with Article 187 of the EC Treaty, the details of and the procedure for the association of the OCTs with the EC are set out in an Implementing Convention.
Since 1964, there have been several successive Implementing Conventions. The European Council Decision 91/482/EEC is the sixth Implementing Convention. The original version of the sixth Implementing Convention provided for the possibility of importing goods originating from the OCT to the EC free of customs duties or charges. Goods were considered to be of OCT origin not only when they were wholly obtained within the OCT concerned, but also if they were obtained from one of the ACP (Africa, Caribbean, Pacific) States or the EC and underwent work or processing in the OCT.
The sixth Implementing Convention was amended at mid-term by the European Council Decision 97/803/EEC of 24 November 1997. This amendment severely impeded the commercial operations of the applicant company, since it limited the levy free imports of sugar of ACP/OCT origin within the EC to 3,000 tonnes per year.
Following the adoption of the European Council Decision 97/803/EEC, the applicant company instituted summary injunction proceedings (kort geding) before the President of the Regional Court (arrondissementsrechtbank) of The Hague seeking an interim order prohibiting:
(i) the Netherlands State from charging import duties on sugar originating in the OCTs from where the applicant company proposed importation;
(ii) the Central Board for Agricultural Products (Hoofdproductschap voor Akkerbouwproducten) from refusing to grant the applicant company import licences; and
(iii) the Aruba authorities from refusing to grant the applicant company movement certificates EUR-1 for sugar produced by it in Aruba, where such certificates were not withheld under European Council Decision 91/482/EEC before it was amended by the European Council Decision 97/803/EEC.
On 19 December 1997 the President of the Regional Court of The Hague declined jurisdiction to hear the applicant company's claims against the Netherlands State and the Central Board for Agricultural Products, as the Industrial Appeals Tribunal (College van Beroep voor het Bedrijfsleven) was the competent judicial body for claims concerning import levies, agricultural levies and/or import licences. As to the applicant company's claim against the authorities of Aruba, the President decided to refer a number of questions to the Court of Justice of the European Communities (ECJ) for a preliminary ruling, within the meaning of (former) Article 177 of the EC Treaty, on the validity of Council Decision 97/803EC of 24 November 1994 and, pending the outcome of the proceedings before the ECJ, provisionally granted the interim measure sought by the applicant company against the authorities of Aruba.
A hearing was held before the ECJ on 16 March 1999 and, on 1 June 1999, the Advocate General to the ECJ presented his Opinion. Under Article 18 of the AC Statute of the ECJ and Article 59 of the Rules of Procedure of the ECJ, the submission of the Opinion of the Advocate General brought the oral proceedings before the ECJ to an end.
The applicant company's request of 11 June 1999 to be allowed to respond to the Opinion was rejected by the ECJ in an order of 4 February 2000. The ECJ held inter alia:
“2. The EC Statute of the Court of Justice and the Rules of Procedure of the Court make no provision for the parties to submit observations in response to the Advocate General's Opinion.
3. However, Emesa relies on the case-law of the European Court of Human Rights concerning the scope of Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter 'the Convention'), and in particular on the judgment of 20 February 1996 in Vermeulen v Belgium (Reports of Judgments and Decisions, 1996-I, p. 224).
8. As the Court has consistently held, fundamental rights form an integral part of the general principles of law, the observance of which it ensures (see, in particular, Opinion 2/94 of 28 March 1996  ECR I-1759, paragraph 33). For that purpose, the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have cooperated or of which they are signatories. The Convention has special significance in that respect (see, in particular, Case C-260/89 ERT  ECR I-2925, paragraph 41).
9. Moreover, those principles have been incorporated in Article 6(2) of the Treaty on European Union, according to which 'The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law'. According to Article 46(d) of the Treaty on European Union, the Court is to ensure that this provision is applied 'with regard to action of the institutions, in so far as [it] has jurisdiction under the Treaties establishing the European Communities and under [the] Treaty [on European Union]'.
10. It is also appropriate to recall the status and role of the Advocate General within the judicial system established by the EC Treaty and by the EC Statute of the Court of Justice, as set out in detail in the Court's Rules of Procedure.
11. In accordance with Articles 221 and 222 of the EC Treaty, the Court of Justice consists of Judges and is assisted by Advocates General. Article 223 lays down identical conditions and the same procedure for appointing both judges and Advocates General. In addition, it is clear from Title I of the EC Statute of the Court of Justice, which, in law, is equal in rank to the Treaty itself, that the Advocates General have the same status as the Judges, particularly so far as concerns immunity and the grounds on which they may be deprived of their office, which guarantees their full impartiality and total independence.
12. Moreover, the Advocates General, none of whom is subordinate to any other, are not public prosecutors nor are they subject to any authority, in contrast to the manner in which the administration of justice is organised in certain Member States. They are not entrusted with the defence of any particular interest in the exercise of their duties.
13. The role of the Advocate General must be viewed in that context. In accordance with Article 222 of the EC Treaty, his duty is to make, in open court, acting with complete impartiality and independence, reasoned submissions on cases brought before the Court of Justice, in order to assist the Court in the performance of the task assigned to it, which is to ensure that, in the interpretation and application of the Treaty, the law is observed.
14. Under Article 18 of the EC Statute of the Court of Justice and Article 59 of the Rules of Procedure of the Court, the Opinion of the Advocate General brings the oral procedure to an end. It does not form part of the proceedings between the parties, but rather opens the stage of deliberation by the Court. It is not therefore an opinion addressed to the judges or to the parties which stems from an authority outside the Court or which 'derives its authority from that of the Procureur Général's department [in the French version, "ministère public"]' (judgment in Vermeulen v Belgium, cited above, paragraph 31). Rather, it constitutes the individual reasoned opinion, expressed in open court, of a Member of the Court of Justice itself.
15. The Advocate General thus takes part, publicly and individually, in the process by which the Court reaches its judgment, and therefore in carrying out the judicial function entrusted to it. Furthermore, the Opinion is published together with the Court's judgment.
16. Having regard to both the organic and the functional link between the Advocate General and the Court, referred to in paragraphs 10 to 15 of this order, the aforesaid case-law of the European Court of Human Rights does not appear to be transposable to the Opinion of the Court's Advocates General.
17. Moreover, given the special constraints inherent in Community judicial procedure, connected in particular with its language regime, to confer on the parties the right to submit observations in response to the Opinion of the Advocate General, with a corresponding right for the other parties (and, in preliminary ruling proceedings, which constitute the majority of cases brought before the Court, all the Member States, the Commission and the other institutions concerned) to reply to those observations, would cause serious difficulties and considerably extend the length of the procedure.
18. Admittedly, constraints inherent in the manner in which the administration of justice is organised within the Community cannot justify infringing a fundamental right to adversarial procedure. However, no such situation arises in that, with a view to the very purpose of adversarial procedure, which is to prevent the Court from being influenced by arguments which the parties have been unable to discuss, the Court may of its own motion, on a proposal from the Advocate General or at the request of the parties, reopen the oral procedure, in accordance with Article 61 of its Rules of Procedure, if it considers that it lacks sufficient information, or that the case must be dealt with on the basis of an argument which has not been debated between the parties (see, in particular, with regard to the reopening of the oral procedure, the order of 22 January 1992 in Case C-163/90 Legros and Others, not published in the ECR, and the judgment of 16 July 1992 in Case C-163/90 Legros and Others  ECR I-4625; the order of 9 December 1992 in Case C-2/91 Meng, not published in the ECR, and the judgment of 17 November 1993 in Case C-2/91 Meng  ECR I-5751; the order of 13 December 1994 in Case C-312/93 Peterbroeck, not published in the ECR, and the judgment of 14 December 1995 in Case C-312/93 Peterbroeck  ECR I-4599; the order of 23 September 1998 in Case C-262/96 Sürül, not published in the ECR, and the judgment of 4 May 1999 in Case C-262/96 Sürül  ECR I-2685; and the order of 17 September 1998 in Case C-35/98 Verkooijen, not published in the ECR).
19. In the instant case, however, Emesa's application does not relate to the reopening of the oral procedure, nor does it rely on any specific factor indicating that it would be either useful or necessary to do so.
20. Emesa's application for leave to submit written observations in response to the Advocate General's Opinion must therefore be dismissed.”
By a judgment of 8 February 2000, the ECJ gave the requested preliminary ruling in which it upheld the validity of Council Decision 97/803EC of 24 November 1994.
The summary injunction proceedings before the President of the Regional Court of The Hague were subsequently discontinued.
The applicant company, relying on the Court's findings in the cases of Vermeulen v. Belgium (judgment of 20 February 1996, Reports of judgments and decisions 1996-I, p. 234, § 33), Van Orshoven v. Belgium (judgment of 25 June 1996, Reports 1996-III, p. 1051, §§ 40-42), J.J. v. the Netherlands (judgment of 27 March 1998, Reports 1998-II, p. 613, § 43) and K.D.B. v. the Netherlands (judgment of 27 March 1998, Reports 1998-II, p. 631, § 44), complained under Article 6 § 1 of the Convention that it had been deprived of a fair hearing in that, in the proceedings before the Court of Justice of the European Communities on a request for a preliminary ruling from the President of the Hague Regional Court, it had not been allowed to respond to the Opinion of the Advocate General to the Court of Justice of the European Communities. It argued that the national judiciary was obliged to respect and follow a preliminary ruling of the ECJ and that non-compliance with that obligation could lead to an action against the EC Member State concerned under Articles 226-228 of the EC Treaty for non-compliance with the obligations under the EC Treaty.
The applicant company claimed that in the proceedings at issue it had been deprived of its right to a fair hearing as guaranteed by Article 6 § 1 of the Convention, in that it had not been allowed to respond to the Opinion of the Advocate General to the ECJ.
Article 6 § 1 provides, so far as relevant, as follows:
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...”
A. The submissions of the respondent Government
The Government submitted, firstly, that they could not be held responsible for the alleged violation, since it concerned an act by the ECJ, an organ of the European Communities (EC). Relying on the case-law of the former European Commission of Human Rights to the effect that an application could not be made against the European Communities (CFDT v. the European Communities and their Member States, application no. 8030/77, Commission decision of 10 July 1978, Decisions and Reports (DR) 13, p. 231), the Government considered that the application should be rejected as being incompatible ratione personae.
In the event of the Court finding that a respondent State could, in principle, be held responsible for an act of an EC organ, the Government submitted, in the alternative, that the EC's legal order in any event ensured respect for human rights. Consequently, the principle of subsidiarity should exclude a review by the Court of the acts concerned. They referred in this respect to the case of M. & Co. v. Germany (application no. 13258/87, Commission decision of 9 February 1990, DR 64, p. 138), in which the European Commission of Human Rights accepted that it was permissible for States to transfer powers to international organisations provided that, within the organisation, fundamental rights received equivalent protection. The Commission found that the EC, through declarations and the existing case-law of the ECJ, secured fundamental rights and provided for control of their observance. The Government pointed out that, since that decision, the human-rights safeguards in the Community's legal order had been further strengthened. Since the entry into force of the Maastricht Treaty on 1 November 1993, the EC protection of human rights had a treaty basis. The protection had been confirmed in Article 6 § 2 of the Treaty of Amsterdam of 2 October 1997, which read:
“The [European] Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law.”
The Government argued that, if an act of a member State in execution of EC law could not be challenged in proceedings before the Strasbourg court as had been held in the case of M. & Co. v. Germany, that rule applied with even greater force to the acts of EC institutions. They considered that, for this reason, the application was also incompatible ratione materiae.
In the further alternative, the Government submitted that the facts complained of fell outside the scope of Article 6 of the Convention. Firstly because, according to the Court's finding in the case of Apis a.s. v. Slovakia ((dec.), no. 39754/98, 10 January 2000), summary injunction proceedings aimed at obtaining an interim measure do not amount to a determination of civil rights and obligations or of a criminal charge within the meaning of Article 6 § 1 of the Convention. Secondly, the proceedings in the present case concerned the question whether or not the applicant company was obliged to pay custom duties, whereas in its judgment of 12 July 2001 in the case of Ferrazini v. Italy ([GC], no. 44759/98, § 29, ECHR 2001-VII) and its judgment of 23 July 2002 in the case of Västberga Taxi Aktiebolag and Vulic v. Sweden (no. 36985/97, § 75) the Court held that proceedings on tax disputes fell outside the scope of “civil rights and obligations” under Article 6 § 1 of the Convention. As the proceedings in which the President of the Regional Court had sought a preliminary ruling from the ECJ were solely concerned with the question whether the applicant company was obliged to pay customs duties, the Government were of the opinion that, on those grounds also, the application was incompatible ratione materiae.
Other objections to admissibility raised by the Government were, firstly, that the applicant company had failed to exhaust domestic remedies as the summary injunction proceedings before the President of the Regional Court were apparently discontinued after the ECJ had handed down its preliminary ruling which meant that the applicant company had not even completed the domestic proceedings at first instance, and, secondly, that Article 6 § 1 of the Convention could not be regarded as applying to proceedings before the ECJ on a request by a domestic court for a preliminary ruling as in such proceedings the ECJ could only give an authoritative interpretation of EC law without applying such interpretation to the particular facts of the underlying case, which remained the task of the national judge who had requested the preliminary ruling. The Government lastly contended that, if the Court were to accept to examine the merits of the case, the refusal of the applicant company's request to respond to the Opinion of the Advocate General to the ECJ did not infringe the fairness of the proceedings taken as a whole.
B. The submissions of the applicant company
Pointing out that its application was not directed against the EC but solely against the Netherlands, the applicant company submitted that an EC Member State could not be allowed to escape the judicial control system of the Convention by delegating powers to EC institutions. Relying on the findings of the European Commission of Human Rights in the case of Tete v. France (no. 11123/84, Commission decision of 9 December 1987, Decisions and Reports (DR) 54, p. 52) the applicant company argued that violations that emanated from such a transfer of power remained within the scope of responsibility of the transferring Member State. The applicant company distinguished the case of the CFDT v. France (cited above) as, firstly, the conclusion reached in that case had been based on its particular circumstances and, secondly, the application in that case had been brought against all EC Member States and so could be interpreted as an indirect application against the Council of the EC, whereas in the instant case the individual responsibility of only one Member State, the Netherlands, was invoked.
The applicant company further argued that the aforementioned case of M. and Co. v. Germany could not be considered as a precedent for situations in which States had violated the rights and freedoms protected by the Convention, in that the equivalent protection tests constituted an overall test that merely ascertained whether a particular organisation provided, in general terms, equivalent protection of fundamental rights, but which did not work on a case-by-case approach. Such a general approach would imply that the Court would be unable to examine any act of any international organisation as long as that organisation provided a theoretically equivalent protection of fundamental rights. The fact that the EC theoretically provided for an efficient protection of fundamental rights under the Convention did not mean that those rights were effectively protected. Moreover, the principle introduced in the case of M. and Co. v. Germany was that an application under the Convention could not be directed against the EC. That principle could not, however, be interpreted as excluding applications concerning the acts of EC institutions.
As to the question whether the proceedings complained of fell within the scope of Article 6 of the Convention, the applicant company submitted that the ECJ, in giving a binding interpretation on a point of EC law raised by the referring domestic judge, determined civil rights and obligations within the meaning of Article 6 of the Convention. In its opinion, the rights of subjects falling within the jurisdiction of a High Contracting Party to the Convention were at stake, which automatically implied that civil rights were at stake.
The applicant company further refuted the respondent Government's argument that domestic remedies would not have been exhausted. It submitted that there were no legal remedies available at the domestic or EC level capable of redressing the violation of Article 6 of the Convention complained of, that is the fact that it was impossible to respond to the Opinion of the Advocate General to the ECJ, as the domestic judge had to accept the binding force of the ECJ preliminary ruling.
C. Third party submissions of the European Commission
The European Commission submitted that the application was not directed against any act of the Netherlands, but exclusively an act of a Community institution, namely an Order issued by the ECJ on 4 February 2000. It supported the respondent Government's argument that, on that basis, the application should be rejected as incompatible ratione personae.
The European Commission made further submissions on the way in which fundamental rights were observed and applied by the Community institutions and considered in agreement with the respondent Government that, in the alternative, the application could be rejected as incompatible ratione materiae since equivalent protection of Convention rights existed within the EC legal order. It also considered that the applicant company had failed to comply with the requirement of exhaustion of domestic remedies under Article 35 § 1 of the Convention, in that the ECJ never decided the case before the national court but instead gave a reply to a question about EC law. The preliminary ruling procedure was conceived as a dialogue between judges at the national and the Community level on a question of interpretation of EC law. A preliminary reference to the ECJ had to be seen as an integral part of the main proceedings at the national level. Consequently, any question of compliance with the Convention could be analysed, if at all, only at the end of the national proceedings as a whole and having regard to their final outcome.
The European Commission further agreed with the respondent Government that Article 6 of the Convention was not applicable to the proceedings at issue. Firstly because the main proceedings at the domestic level concerned customs duties, that is to say a classical form of taxation, and – secondly – because the national proceedings were summary injunction proceedings aimed at obtaining interim relief and thus did not entail a final determination of the parties' rights and obligations.
D. The Court's assessment
The Court notes that the Government argued at the outset that they could not be held responsible for the alleged violation, given that it concerned an act by the ECJ; consequently, the application should be rejected for being incompatible ratione personae with the provisions of the Convention. However, the Court does not find it necessary to deal with this question, since, in the particular circumstances of the present case, it considers it more appropriate to determine first whether the proceedings at issue concerned a “dispute” about “civil rights and obligations” within the meaning of Article 6 § 1 of the Convention.
It reiterates that the concept of “civil rights and obligations” cannot be interpreted solely by reference to the domestic law of the respondent State concerned. The Court has on several occasions affirmed the principle that this concept is “autonomous”, within the meaning of Article 6 § 1. Pecuniary interests are certainly at stake in proceedings concerning a dispute about the question whether or not customs duties or charges are due for imported goods, but merely showing that a dispute is “pecuniary” in nature is not in itself sufficient to attract the applicability of Article 6 § 1 under its “civil” head, as rights and obligations existing for an individual are not necessarily civil in nature. As customs duties or charges for imported goods must be regarded as falling within the realm of taxation and as tax matters still form part of the hard core of public-authority prerogatives, with the public nature of the relationship between the taxpayer and the community remaining predominant, the Court considers that tax disputes, including disputes about the determination of import duties or charges, fall outside the scope of civil rights and obligations, despite the pecuniary effects which they necessarily produce for the taxpayer (see, mutatis mutandis, Ferrazzini v. Italy [GC], no. 44759/98, §§ 24-31, ECHR 2001-VII, and Västberga Taxi Aktiebolag and Vulic v. Sweden (no. 36985/97, § 75, 23 July 2002).
As the subject matter of the summary injunction proceedings taken by the applicant company before the Regional Court of The Hague solely concerned the question whether or not it was entitled to import in the EU its sugar produce free of customs duties or charges, it follows that these proceedings do not fall under the civil limb of Article 6.
As the present case does not have any criminal connotation, it does not fall under the criminal limb of Article 6 either. Consequently, the facts of the case fall outside the scope of Article 6 of the Convention.
Having reached this finding, the Court does not find it necessary to determine the other admissibility issues raised.
It follows that the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
For these reasons, the Court unanimously
Declares the application inadmissible.
Vincent Berger Boštjan M. Zupančič
EMESA SUGAR N.V. v. THE NETHERLANDS DECISION
EMESA SUGAR N.V. v. THE NETHERLANDS DECISION