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Published online by Cambridge University Press: 07 July 2009
1. With note by H.Ph.J.A.M. Hennekens. Discussed by Versteeg, A.J.H.W.M. in ‘De rechtbank voor sociale grondrechten’ [The court for fundamental social rights], Tijdschrift voor Openbaar Bestuur (1987) pp. 131–135.Google Scholar
2. ILM (1967) p. 360; Trb. 1969 No. 100. Art. 7 reads: ‘The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favourable conditions of work, which ensure, in particular: (a) Remuneration which provides all workers, as a minimum, with: (i) fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work’.
3. NJCM-Bulletin (1984) p. 245Google Scholar with note by Heringa, A.W., Tijdschrift voor Ambtenarenrecht (1984) No. 97Google Scholar. Discussed by Heringa, A.W. in ‘Equal Remuneration as a Self-Executing Social Right’, SIM Newsletter No. 8 (1984) pp. 10–15.Google Scholar
4. Art. 94 reads: ‘Statutory regulations in force within the Kingdom shall not be applicable if such application is in conflict with provisions of treaties that are binding on all persons or of resolutions by international institutions’.
5. The Public Service Tribunal took the same view (see supra n. 3), and referred in this connection to, inter alia, the judgment of the Central Appeals Court of 1 November 1983, 16 NYIL (1985) p. 501.
6. The Public Service Tribunal (see supra n. 3) wished in any event to accord direct effect to international provisions if their tenor corresponded to what was already guaranteed within the context of the national legal order. Art. 7(a)(i) can therefore be invoked as self-executing if an equality already achieved on the basis of equal value is violated. The Court held that this had occurred in the present case.
In the case of G.J.A.M. v. Bestuur van de Nieuwe Algemene Bedrijfsvereniging, the Social Security Tribunal at Groningen took a different view. The Tribunal held that, judged by the yardstick of the legal standards laid down in Article 26 of the International Covenant on Civil and Political Rights and Articles 2(2) and 3 of the International Covenant on Economic, Social and Cultural Rights, there had been unequal treatment in the case in question by reason of a criterion connected directly with status and/or sex. It considered that this finding was important even though these supranational provisions do not have direct effect. The provisions could nonetheless be accorded effect in law, in particular through the interpretation of the provisions of national legislation. The Tribunal interpreted the relevant provisions of national law (i.e., the Equal Benefit Rights Act) in such a way that they could not conflict with the prohibition on discrimination (judgment of 2 May 1985, NCJM-Bulletin (1985) p. 546Google Scholar, with note by A.W. Heringa).
7. Note by H.Ph.J.A.M. Hennekens.
8. Note by A.W. Heringa.
9. Note by W.M. Levelt-Overmars, summarised in NJB (1987) p. 978 (No. 20).
10. Stb. 1972 No. 669; Art. 7(4) reads: ‘An allowance shall not be granted to a female victim of persecution who is married, unless the family to which she belongs would have depended for its existence entirely or largely on her income if she had not suffered persecution’.
Art. 34(2)(a) reads: ‘The allowance referred to in section 3 of chapter II shall end: (a) on the marriage of a female claimant, with effect from the first day of the third month following that in which the marriage took place, unless the provisions of article 7, paragraph 4, are applicable’.
11. ILM (1967) p. 368; Trb. 1969 No. 100. For the text of Art. 26, see under Held infra.
12. 79/7, OJ (1979) No. L 6/24.
13. The Court used the Dutch translation.
14. Art. 2 reads: ‘(1) Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. (2) Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such legislative or other measures as may be necessary to give effect to the rights recognized in the present Covenant’.
15. Cf., the judgment of 1 November 1983, 16 NYIL (1985) pp. 501–504 on p. 504. The finding by the Central Appeals Court in that judgment, namely that Art. 26 was irrelevant to social security law, was later rejected by the UN Human Rights Committee in a decision of 9 April 1987 on an appeal by S.W.M.B. (NJCM-Bulletin (1987) p. 377, with note by T. Zwart on p. 389 and A.W. Heringa on p. 405, RSV (1987) No. 245 with note by W.M. Levelt-Overmars under No. 246).
16. This finding was in line with the view taken by the Court of Justice of the European Communities in its judgment of 4 December 1986 in the case of the State of the Netherlands v. the Netherlands Trade Union Federation (FNV) (71/85) regarding the question of the moment at which Art. 4(1) of Directive 79/7 took direct effect. The Court of Justice held: ‘(1) Where no measures have been adopted to implement Council Directive 79/7/EEC, Article 4(1) thereof, which prohibits all discrimination on grounds of sex in matters of social security, could be relied on as from 23 December 1984 in order to preclude the application of any national provision inconsistent with that article. In the absence of measures implementing that article women are entitled to be treated in the same manner, and to have the same rules applied to them, as men who are in the same situation, since, where the directive has not been implemented, those rules remain the only valid point of reference. (2) A Member State may not invoke its discretion with regard to the choice of methods for implementing the principle of equal treatment in the field of social security laid down in Directive 79/7/EEC in order to deny all effect to Article 4(1) thereof, which may be invoked in legal proceedings even though the said directive has not been implemented in its entirety’. (NJCM-Bulletin (1987) p. 392, with note by A.W. Heringa on p. 405, RSV (1987) No. 95 with note by A.W. Govers, NJ (1987) No. 846 with note by P.A. Stein, discussed by A.W. Heringa in Staatkundig Jaarboek (1987) pp. 187–196). This preliminary ruling was requested by the Court of Appeal in The Hague in its judgment of 13 March 1985 (NJ (1985) No. 263, discussed by Heringa, A.W. in NJCM-Bulletin (1985) pp. 290–302Google Scholar, discussed in RMT (1985) p. 421). In this judgment the Court of Appeal overturned the judgment of the Hague District Court in which the District Court had ordered the State to introduce a Bill to amend Art. 13(1)(b) of the Unemployment Benefits Act [Wet Werkloosheidsvoorziening] before 1 March 1985. The District Court had held that this Article was in breach of Art. 4 of the Directive (judgment of 17 January 1985), AB (1985) No. 154, NJ (1985) No. 262, KG (1985) No. 35, discussed by J. van Wouw in NJB (1985) pp. 180–185, S. Préchal on pp. 584–586 and Van Wouw on pp. 587–588; also discussed by H.G. Schermers in AA (1986) p. 375). However, the Hague Court of Appeal held that the District Court was not competent to give such an order to Parliament. The Court of Appeal then applied to the Court of Justice of the European Communities with the above-mentioned preliminary question.
17. In its judgment of 11 June 1987 in the case of D.v.R. v. Raad van Arbeid [Employment Board] at Middelburg, Rotterdam Social Security Tribunal used an even more direct method to determine the moment when Art. 26 took direct effect, having been influenced in this connection by the decision of the Human Rights Committee referred to above in n. 15. The Tribunal held that Art. 26 should be deemed to have direct effect no later than on 11 March 1985, i.e., six years after the Convention came into effect. It derived the period of six years from EC Directive 79/7. Since the legislature had failed to incorporate the principle of non-discrimination under Art. 26 in the provisions of the General Widows and Orphans Act [Algemene Weduwen en Wezen Wet] in any way, the courts could not simply refer to the very same legislation (cf., however, HR 12 October 1984, 17 NYIL (1986) p. 251). The Tribunal therefore accorded the same rights to men as the law now granted solely to women. (NJCM-Bulletin (1987) p. 470, with note by A.W. Heringa, RSV (1987) No. 247).
18. Partially reproduced in NIPR (1987) No. 387. Discussed by op de Woerd, M. in Ambassade personeel CD: ‘Carrière Déplorable’ [Embassy staff CD ‘Carriére Déplorable’], RCB Info No. 18 (1987) pp. 15–16 and 18Google Scholar, and by de Muralt, R.W.G. in ‘De Nederlandse rechtspraak m.b.t. buitenlandse ambassades en consulaten’ [Dutch judicial decisions on foreign embassies and consulates], NJB (1987) pp. 1191–1194.Google Scholar
19. For subsequent developments in this case, see below pp. 439–443.
20. Art. 125(b) reads: ‘The petitioning party may at his discretion file a petition at the registry of the Sub-District Court in whose area the employment is normally performed or in whose area the other party has his place of residence and may request the Sub-District Court in the said petition to set a date on which the case will be heard in court’.
21. Art. 14 reads: ‘Any person who maintains an office or branch also has residence in the place concerned in respect of all matters concerning such an office or branch’. In the case of H. Minkenberg v. the Federal Republic of Germany, the District Court at ‘s-Hertogenbosch held that the Federal Republic could also be deemed to be resident in the Netherlands under Art. 14 of the Civil Code, since it had an office or branch within the meaning of that article at the address where the summons was served (Budel army camp) (judgment of 17 January 1986, Institute's Collection No. 2617).
22. Art. 2(1) reads: ‘This Order is not applicable to the employment of persons in the service of a public body …’
23. Arts. 92 and 94 of the Code of Civil Procedure relate to the nullity of the summons.
24. Art. 13a reads: ‘The judicial jurisdiction of the courts and the execution of court decisions and of legal instruments drawn up by legally authorised officials [authentieke akte] are subject to the exceptions acknowledged under international law’.
25. The Hague Court of Appeal, 28 November 1968, 1 NYIL (1970) p. 225, ILM (1970) p. 152.
26. 5 NYIL (1974) pp. 290–296, 65 ILR p. 360.
27. In the case of H. 't Hooft v. the Republic of France, the Sub-District Court deemed itself competent to take cognizance of an employment dispute between H., who had Dutch nationality and worked at the French Embassy in The Hague, and the Republic of France. The Court then held that Dutch law was applicable, since the agreement was concluded in the Netherlands with a Dutch national who was not a member of the diplomatic corps and who performed work of a purely private law nature (judgment of 10 January 1986, Institute's Collection No. 2516). In the case of M.D.D.A. v. the Australian Embassy, The Hague Sub-District Court also rejected a claim by the Embassy to immunity in respect of a dispute with a Portuguese butler who had no diplomatic or civil service status (judgment of 3 March 1986). This default judgment, in which A.'s dismissal was held to be unlawful, was subsequently quashed when it transpired that A. had been employed as a butler not by the embassy but by the ambassador personally. The ambassador could not be deemed to be involved in law and the Australian Embassy had no persona standi in judicio since it was not a body having legal personality (judgment of 1 September 1986, partly reproduced in NIPR (1987) No. 137).
28. The judgment of the Rotterdam Sub-District Court is reported in 10 NYIL (1979) pp. 442–444.
29. Note by B. de Waard. Discussed by R.W.G. de Muralt loc.cit. n. 18 and by Teekens, M. in ‘De gerechtsdeurwaarder en het volkenrecht’ [The court bailiff and international law], De Gerechtsdeurwaarder (1987) pp. 218–223.Google Scholar
30. Art. 13(4) reads: ‘The bailiff shall be bound to refuse the service of a notification where he has been given notice by or on behalf of Our Minister [i.e., the Minister of Justice] that the service of a notification would be contrary to the obligations of the State under international law. Such refusal shall not entailliability on the part of the parties involved’.
31. 500 UNTS p. 95; Trb. 1962 Nos. 101 and 159.
32. 596 UNTS p. 261; Trb. 1965 No. 40.
33. Cf., supra pp. 435–438.
34. Art. 80 reads: ‘Pending appeal, a decision may, at the request of the interested person, be stayed, in whole or in part, on the ground that execution of the decision would result in harm disproportionate to the interest served by immediate execution of the decision. Provisional measures to prevent such harm are also possible at his request’.
35. For the text of Art. 13a, see supra n. 24.
36. Cf., 5 NYIL (1974) pp. 290–296, 65 ILR p. 360.
37. In the case of Alida Garcia v. Modesto Junior Oduber, the Aruban court of first instance held that since a provision such as Art. 13(4) of the Bailiffs' Regulations did not exist in Aruba, the bailiff should make enquiries to ensure that the assets subject to execution were not intended for use in the public service. If it were confirmed by a foreign State that they were for such use or if such State were not to make any statement on this point, he should refrain from execution since he would be unable to ensure that he was acting in accordance with the obligation to which he was subject under international law. The bailiff was therefore entitled to inform Garcia that he had to refuse to issue a notification in execution of the judgment whereby his dismissal by the Consul-General of Venezuela had been declared void insofar as it related to assets of the Republic of Venezuela (judgment of 19 August 1987, NIPR (1987) No. 476). In an interlocutory judgment in the dismissal proceedings, the Court held that it followed from Art. 43 of the Vienna Convention on consular relations that no notifications could be issued by a bailiff against the Consul-General in respect of the employment dispute. Although it was true that the Convention did not apply between the Netherlands and Venezuela, the contents of the Convention had to be regarded as the establishment of customary international law (judgment of 14 January 1986, NIPR (1988) No. 165). The dismissal was held to be void by the Court on 17 September 1986.
38. According to De Muralt loc.cit. n. 18 p. 1192, the Turkish Embassy eventually complied with judgment. The appeal to the Judicial Division was then withdrawn on 27 March 1987.
39. Partially reproduced in NIPR (1987) No. 267.
40. 8 NYIL (1977) pp. 251–252, 65 ILR p. 368.
41. 14 NYIL (1983) pp. 378–379.
42. Art. 4 of the USSR Regulations governing the State Shipping Line.
43. A similar problem arose in the case of Atlantic Algemene Verzekeringsmaatschappij v. USSR. The legitimate holder of the bills of lading had discovered a discrepancy between the quantity of gas oil said to have been loaded at Klaipeda (USSR) and the quantity unloaded in Rotterdam. Atlantic and other insurers had paid damages of US$ 7330.77 to the holder, which was the value of the missing gas oil. On 19 July 1978, Atlantic summonsed the USSR before Rotterdam District Court, claiming payment of this sum, partly for subrogation and partly for assignment. The USSR contested the claim, pleading immunity from jurisdiction. It also advanced the argument that at the time of carriage it did not own or operate the Eizhenberg. Instead, the ship was operated by the Latvian Shipping Company, which was a legal person in its own right under Russian law. Hence the USSR was not involved in this transport and the claim should therefore be refused. The District Court dismissed the plea of immunity and directed the USSR to prove its submissions (judgment of 4 March 1983, Institute's Collection No. 1926). By judgment of 12 April 1985 the District Court held that the USSR had still not succeeded in proving its submissions (partially reproduced in NIPR (1985) No. 428). The case was taken off the case list in 1986.
44. Art. 95 reads: ‘Rules regarding the publication of treaties and decisions by international institutions shall be laid down by Act of Parliament’.
45. Art. 4(d) reads: ‘The provision of information … shall also not take place if and insofar as the interest thereby served does not outweigh the following interests …(d) the relations of the Netherlands with other countries …’
46. Art. 107 reads: ‘Pending the examination, a decision which is the subject of a dispute to be decided by the Division or against which a notice of objection has been lodged pursuant to Art. 7, para 2, of the Administrative Decisions Appeals Act may, at the request of the interested party, be suspended in whole or in part by the President on the ground that implementation of the decision would mean that such party would suffer harm disproportionate to the interest that would be served by immediate implementation of the decision. A provisional measure may also be made at his request in order to prevent disproportionate harm as referred to in the first sentence’.
47. TD/TIN/6/14 (1982); Trb. 1982 No. 130. Art. 19(2) reads: ‘The Council shall, as soon as possible after the end of each financial year, publish the independently audited Administrative and Buffer Stock Accounts, provided that such Buffer Stock Accounts shall not be published earlier than three months after the end of the financial year to which they relate’.
Art. 27(6) reads: ‘The Council shall publish without delay any revised floor and ceiling prices, including any provisional or revised price determined under article 31’.
48. Rule 16 reads: ‘All sessions and meetings of the Council shall be private unless the Council decides that all or part of any session or meeting shall be public. Statements made in and documents presented to the private sessions and meetings shall be confidential’.
Rule 19 reads: ‘(a) Minutes of sessions of the Council shall consist of a summary record of the proceedings, provided that written statements handed in by a participant during the course of a session shall be recorded in full if the participant so requests, (b) A draft, in the working languages, of the minutes of a session of the Council shall be sent by the Executive Chairman as soon as possible after the session to those who have attended the session with a request that amendments be notified within twenty-one days from the date of despatch. The amended minutes, in the official languages, shall then be sent as the record of the session to the persons designated in accordance with the provisions of Rule No. 1. (c) The minutes of a session of the Council shall be accepted as a true record of the proceedings only when approved by the Council, (d) All records of the proceedings of the Council shall be treated as confidential, both by the recipients of such records and the issuing body, unless the Council decides otherwise and shall be so marked’.
49. Rule 12 reads: ‘(a) Within a period of fifteen days following the end of each quarter the Manager shall forward to the designated persons of the Members a statement in a form approved by the Council of his operations relating to the quarter immediately preceding the quarter which has just ended, (b) The delegates and designated persons receiving the quarterly statements under this Rule and persons to whom they communicate statements shall maintain the confidential character of the contents and shall give such statements no publicity whatever, (c) No officer of the Council shall provide any further information on the buffer stock in whatever form, explicit or implicit, except in sessions of the Council or in meetings to which all the delegates of the Members have been invited, and then only if the Council or such meeting agrees disclosure to be advisable.’.
Rule 13 reads: ‘At the same time as the information is issued under Rule No. 12(a) and in a form approved by the Council, the Executive Chairman may notify the press of the tonnage of tin metal reported under Rule No. 12(a) to be held in the buffer stock.’.
50. Cf., McFadden, F.J., ‘The Collapse of Tin; Restructuring a Failed Commodity Agreement’, 48 AJIL (1986) pp. 811–830CrossRefGoogle Scholar; Herdegen, M., ‘Bemerkungen zur Zwangsliquidation und zum Haftungsdurchgriff bei internationalen Organisationen’ [The Compulsory Liquidation of International Organisations and the Liability of the Member States: Some Observations], 48 ZaöRV (1987) pp. 537–558Google Scholar, and by the same author, ‘The Insolvency of International Organizations and the Legal Position of Creditors: Some Observations in the Light of the International Tin Council Crisis’, 35 NILR (1988) pp. 135–144.Google Scholar
51. Art. 77 reads: ‘(1) The written documents and items of evidence relating to the case and in the possession of the Division shall be deposited at the Registry of the Council of State or at such other place as the President may determine, notice of which will be given to the interested parties … (2) If the President decides that the procedure referred to in paragraph 1 is not necessary in respect of one or more of the documents, notice of the deposit shall be given only to the party who opposes the person lodging the documents. If the person lodging the documents has indicated that there are serious objections to the opposite party taking cognizance of the documents, the contents of such documents may be taken cognizance of by the Division only if the opposite party has indicated that he has no objection to the same’.
52. Art. 11 reads: ‘(1) If the appeal relates to a decision of the central government which is not given by us or given on appeal and which does not entail the approval of another decision or the refusal of such approval, the President of the Division shall forward the notice of appeal to such of Our Ministers as is involved, inviting him to declare in writing within fourteen days whether the notice of appeal will be treated as a notice of objection and handled as such. When forwarding the invitation, the President shall at the same time give notice thereof to the complainant’.
53. The Minister subsequently treated the request as a notice of objection.
54. Note by G.R. de Groot, partly reproduced in NJB (1986) p. 290 No. 42 and NIPR (1987) No. 206.
55. Art. 7 reads: ‘Dutch nationality is lost: (1) by naturalisation in another country or, in the case of a minor, by acquiring another nationality through the naturalisation in another country of either the father or the mother, in accordance with the distinctions made in Art. 1, para. 1, at (a) and (c), or Art. 1bis’.
56. Art. 10 reads: ‘A child which has lost Dutch nationality in accordance with Art. 7(1) shall recover such nationality when it reaches the age of majority within the meaning of Dutch law, provided that it gives notice of its intention to recover such nationality to the authority referred to in Art. 12(a) within one year thereafter’.
57. Art. 12a reads: ‘The notices to be sent in accordance with this Act may be sent: in the Netherlands to the burgomasters, … abroad, to the Dutch diplomatic and consular officials’.
58. He submitted an application for a residence permit, which was then granted to him.
59. Art. 43 reads: ‘(1) Any person who is refused admission to the Netherlands or is subjected to a measure that can be applied only to aliens may, if claiming Dutch nationality, appeal to the Supreme Court of the Netherlands by means of a petition signed by a lawyer unless the law provides for a different procedure for obtaining a judicial decision’. For Art. 43, cf., Swart, A.H.J., ‘The Dutch Law on Aliens’, in International Law in the Netherlands, Vol. Ill (1980) p. 104.Google Scholar
60. Cf., 5 NYIL (1974) p. 203.
61. A statistical survey of decisions of the Judicial Division of the Council of State and the ordinary courts during 1986–1987 which involved the admittance of aliens is included in the Explanatory Memorandum to the Draft Budget of the Ministry of Justice for 1988 (Bijl. Hand.II 1987/1988–20200 VI No. 3 pp. 53–55).
62. Note by W. Jansen.
63. Note by C.A. Groenendijk.
64. Note by J.H. Smits; summarised in NJB (1986) p. 896 No. 30; discussed by R. Cornelissen in SEW (1986) p. 812.
65. 1140 UNTS p. 253; Trb. 1977 No. 156. Art. 7 reads: (1) Subject to the provisions of Arts. 8 to 10, a person employed in the territory of one of the Contracting Parties shall be subject to the legislation of that Party, even if he is resident in the territory of the other Party, or if the principal place of business of the enterprise which employs him, or his employer's domicile, is in the territory of the other Party. (2) If, as a result of the preceding paragraph, an employed person is subject to the legislation of one of the Contracting Parties in whose territory he does not reside, that legislation shall apply to him as if he resided in the territory of that Party’.
Art. 8(a) reads: ‘The principle laid down in Art. 7 shall be subject to the following exceptions: (a) a person employed in the territory of one of the Contracting Parties by an enterprise for which he normally works and who is assigned to the territory of the other Contracting Party by that enterprise in order to work there on its behalf shall remain subject for the entire period of his assignment to the legislation of the first-mentioned Party, as though he continued to be employed in its territory’.
66. Art. 6(1) reads: ‘(1) Except in respect of invalidity, old-age and survivors’ benefits which shall be paid in accordance with the provision of title III, chapter 2, this Convention shall not confer or maintain any right to receive more than one benefit of the same nature or more than one benefit relating to the same compulsory insurance period’.
Art. 34(4) reads: ‘(4) Where, over the same period, entitlement to family allowances exists for the same child under the legislations of both Contracting Parties, only the family allowance to which entitlement exists under the legislation of the Contracting Party in whose territory the child is resident or being raised shall be paid’.
67. Stb. 1976 No. 557. Art. 2(1)(K) provides that contrary to the provisions of Art. 6 of the Family Allowance Act a married woman resident within the Kingdom of the Netherlands shall not be treated as an insured person if her husband is a resident of the Netherlands but, under a social security agreement or scheme which is in force between the Netherlands and one or more foreign powers, is not insured under the General Old Age Pensions Act [Algemene Ouderdomswet], the General Widows and Orphans Act [Algemene Weduwen en Wezenwet], the Family Allowance Act, the Exceptional Medical Expenses (Compensation) Act [Algemene Wet Bijzondere Ziektekosten] and the General Disablement Benefits Act [Algemene Arbeidsongeschiktheidswet].
68. Art. 6 reads: ‘(1) A person who has reached the age of 15 years shall be insured in accordance with the provisions of this Act if he: (a) is a resident (of the Netherlands) … (3) The provisions of paragraph 1 may be derogated from by or pursuant to an order in council … (e) in respect of the spouses of residents who are not insured under this Act pursuant to a social security agreement or scheme which is in force between the Netherlands and one or more foreign powers’.
69. Rondzending Werkgroep Rechtsbijstand in Vreemdelingenzaken (1984) No. D 62Google Scholar, with note by A. Kruyt; Rechtspraak Vreemdelingenrecht (1984) No. 92 with note by C.A. Groenendijk; RSV (1985) No. 178.
70. In the comparable case of Raad van Arbeid [Employment Board] te's-Hertogenbosch v. D.L., the Central Appeals Court did not arrive at this answer since it was not possible to speak of an assignment within the meaning of Art. 8(a) of the Convention. L. had for many years worked in the (regular) employment of Dutch enterprises without any real interruption, prior to entering the service of an Yugoslav enterprise in the Netherlands. To be able to treat him as an employee in the above-mentioned sense, it would be necessary to place an interpretation on Art. 8(a) which considerably stretched the sense of the wording used. Such an interpretation would be even less acceptable since Art. 8 in fact consists of exceptions to a general rule. Moreover, it would be difficult to maintain in his case that after his contracts of service in the Netherlands with Dutch employers had been governed by Dutch legislation, Yugoslav legislation had remained applicable to him from the time that he entered the service of M. in the Netherlands. The fact that a permit for an assignment was provided did not alter this (judgment of 12 July 1985, Institute's Collection No. 2634). On 25 June 1986 the Supreme Court upheld the judgment of the Central Appeals Court (RSV (1987) No. 27, discussed by W. Jansen in Migrantenrecht (1986) No. 65).
71. Summarised in NJB (1987) p. 950 (No. 17).
72. Note by C.A. Groenendijk.
73. See under Held infra.
74. 919 UNTS p. 49; Trb. 1972 No. 34. For the text of Art. 27, see under Held infra.
75. 15 UNTS p. 35; Stb. 1948 No. I 283; Art. 22 reads: ‘Each of the Members agrees to make an annual report to the International Labour Office on the measures which it has taken to give effect to the provisions of Conventions to which it is a party. These reports shall be made in such a form and shall contain such particulars as the Governing Body may request’.
76. Trb. 1980 No. 164. Art. 9 reads: ‘After Article 34 of the Convention, an Article 34bis is inserted, reading: “Article 34 bis: A Turkish worker who has moved to the Netherlands is entitled, as long as he is in the Netherlands, to unemployment benefits under Dutch legislation, provided that he: (a) satisfies the conditions imposed by the said legislation, taking into account the aggregation of periods referred to in the previous Article; (b) is accepted for employment in accordance with the provisions of the legislation concerning the employment of foreign workers”.
77. 14 NYIL (1983) p. 430.
78. Although the decision refusing a residence permit had already been quashed by the Judicial Division of the Council of State for want of reasons, H.'s entitlement to residence had still not been finally settled.
79. Art. 21(1) of the Unemployment Insurance Act reads: ‘Without prejudice to other provisions of this Act or provisions made pursuant to it, an employee who on a given day is involuntarily unemployed, whether wholly or partly, either because he has been dismissed from his previous employment or otherwise, shall be entitled to benefit under this Act for that day, insofar as his last employer is not under an obligation to continue to pay him in full during the unemployment…’.
80. The Court used the Dutch text.
81. Convention ensuring benefit or allowances to the involuntarily unemployed, 40 UNTS p. 45, Trb. 1965 No. 88.
82. The President of the Court submitted various questions to Prof. H. Meijers, who was then professor of international law at the University of Amsterdam. Prof. Meijers replied to these questions by letter of 3 October 1984.
83. Judgment of 25 June 1986, see supra pp. 452–454.
84. Note by J.J. Bolten, summarised in WRvS (1986) No. 2.199.
85. 189 UNTS p. 137; Trb. 1951 No. 131 amended by Protocol of 31 January 1967, 606 UNTS p. 267; Trb. 1967 No. 76. Art. 1(A) reads: ‘For the purposes of the present Convention the term “refugee” shall apply to any person who … (2) … owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country;…’.
86. Under Art. 34(2) of the Aliens Act, which provides that an application for review is deemed to have been refused if no decision has been taken on it within three months of the date of the application.
87. For similar criticism by the Division of the restrictive interpretation of Art. 1(A)(2), see the Division's judgment of 7 June 1985 in the case of T.T. v. State Secretary for Justice, Rechtspraak Vreemdelingenrecht (1985) No. 1, Rondzending van de Werkgroep Rechtsbijstand in Vreemdelingenzaken (1985) p. 273Google Scholar with note by D. Bomans, Gids Vreemdelingenrecht No. D 12–117 and AROB tB/S jur III No. 621 with note by W.L.J. Voogt.
88. Note by A.H.J. Swart, summarised in DD (1987) No. 104 II.
89. Stb. 1899 No. 15. For the text of Art. VI, see under Held infra.
90. Art. 11(1) reads: ‘Extradition shall not be granted for criminal offences of a political nature, including offences with political connections’.
91. 8 ILM (1969) p. 679; Trb. 1972 No. 51.
92. The Anglo-Dutch Treaty used the so-called enumeration system.
93. Art. II (last paragraph) reads: ‘Extradition may also be granted, at the discretion of the State applied to, in respect of any other crime for which, according to the laws of both the Contracting Parties for the time being in force, the grant can be made’.
94. Art. XIII reads: ‘The extradition shall not take place unless the evidence be found sufficient, according to the laws of the State applied to, either to justify the committal of the prisoner for trial, if the crime had been committed in the territory of the said State, or to prove that the prisoner is the identical person convicted by the courts of the State which makes the requisition, and that the crime of which he has been convicted is one in respect of which extradition could, at the time of such conviction, have been granted by the State applied to. The fugitive criminal shall not be surrendered until the expiration of fifteen days from the date of his being committed to prison to await his surrendery’.
95. 213 UNTS p. 221; ETS No. 5; Trb. 1951 No. 154. Art. 3 reads: ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment’.
96. Art. 6(1) reads: ‘(1) 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. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles appeal or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice’.
97. Art. 25 reads: ‘(1) The Commission may receive petitions addressed to the Secretary General of the Council of Europe from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the Rights set forth in this Convention, provided that the High Contracting Party against which the complaint has been lodged has declared that it recognises the competence of the Commission to receive such petitions. Those of the High Contracting Parties who have made such a declaration undertake not to hinder in any way the effective exercise of this right’.
98. McF. was also convicted by the Commission for his membership of the proscribed Irish Republican Army, but extradition was not requested for this offence.
99. At the same time the extradition was requested of G.K., who was also born in Belfast. In addition to the offences committed during the same escape from the Maze Prison, he had also committed bomb attacks, but these had not caused any fatalities.
100. According to the District Court, Art. 1 of the European Convention on the Suppression of Terrorism (ILM (1976) p. 1272, Trb. 1977 No. 63, ETS No. 90) did not prevent these offences from being regarded as political offences, since none of the cases referred to in Art. 1(a) to (f) had occurred.
101. Summarised in DD (1986) p. 608. The District Court held on the same day that the request for the extradition of G.K. was inadmissible (see supra n. 99).
102. NJ (1987) No. 256, with note by A.H.J. Swart. In the case of G.K. (see supra n. 99), the Public Prosecutor appealed in cassation and the Supreme Court quashed the judgment of the District Court on the same day (NJ (1987) No. 255).
103. On the same day the Supreme Court declared the request for the extradition of G.K. to be admissible for the same offence (NJ (1987) No. 257). For the further course of the proceedings relating to the extradition of both men, see infra pp. 470–474.
104. The District Court held that extradition could not be permitted for the commission of a bomb attack, since at the time of the conviction, i.e., 24 May 1976, extradition for these offences would not have been possible under British law and the principle of reciprocity contained in Art. II, last sentence, of the Treaty had not been met.
105. The Supreme Court used the Dutch text.
106. The offences committed during the escape from the Maze Prison.
107. The murder of the five people.
108. Art. 157 of the Criminal Code relates to arson and causing explosions.
109. Art. 5(1) reads: ‘Extradition shall be allowed only for the purpose of: (a) a criminal investigation instituted by the authorities of the requesting State because of a suspicion that the person claimed is guilty of an offence for which, according to the law of both the requesting State and the Netherlands, a custodial sentence of one year or more can be imposed; (b) executing a custodial sentence of four months or more to be served by the person claimed in the territory of the requesting State in respect of an offence as referred to under (a);…’
Art. 5(2) reads: ‘For the purposes of the preceding subsection, an offence punishable under the law of the Netherlands shall be taken to include an offence violating the legal order of the requesting State if the same violation of the Dutch legal order would be punishable under the law of the Netherlands’.
110. Of 1 July 1986.
111. The unlawful imprisonment of the prison officers.
112. Art. 96(2)(2) provides that it is an offence, with a view to preparing or furthering one of the offences described in Arts. 92–95a (against the security of the State), to supply oneself or another person with the opportunity, means or information to commit such an offence.
113. The Supreme Court had rejected this defence earlier in the judgment of 1 July 1986. The Supreme Court added in this judgment that this was not altered by the fact that the Extradition Treaty predated the European Convention, because this fact did not affect the confidence created by the accession of the requesting State to the European Convention and the issue by that State of the declaration. Cf., a previous application of this principle of confidence by the Supreme Court in 16 NYIL (1985) pp. 488–489 and 17 NYIL (1986) pp. 280–284.
114. Art. 26 reads: ‘The Commission may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.’.
115. See supra nn. 95 and 96.
116. See supra n. 97.
117. See supra pp. 462–470, see also supra pp. 322–324.
118. Trb. 1982 No. 188; Trb. 1985 No. 68, Dutch translation. Art. 36 reads: ‘The Commission, or where it is not in session, the President may indicate to the parties any interim measure the adoption of which seems desirable in the interests of the parties or the proper conduct of the proceedings before it’.
Art. 41 reads: ‘In cases of urgency, the Secretary of the Commission may, without prejudice to the taking of any other procedural steps, inform a High Contracting Party concerned in an application, by any available means, of the introduction of the application and of a summary of its objects’. Cf., earlier cases concerning Art. 36: 18 NYIL (1987) pp. 414–417.
119. On 3 December the European Commission of Human Rights rejected the complaint. On the very same day, the plaintiffs were extradited to the United Kingdom. Cf., also Rousseau, Ch., ‘Chronique des faits internationaux’, RGDIP (1987) p. 628.Google Scholar
120. As regards the function of this opinion, cf., Kuyper, J.R.H., ‘The Netherlands Law of Extradition’, in International Law in the Netherlands, Vol. II (1979) p. 238.Google Scholar
121. As regards the discretion allowed to the State in this matter, cf., the judgments mentioned in 17 NYIL (1987) pp. 299–301 and n. 127.
122. Note by A.H.J. Swart.
123. See supra n. 95.
124. Cf., 13 NYIL (1982) pp. 341–342.
125. KG (1986) No. 255, Nieuwsbrief Asiel- en Vluchtelingenrecht (1986) p. 361Google Scholar. Summarised and discussed by Steenbergen, H. in NJCM-Bulletin (1986) p. 518.Google Scholar
126. The judgment of the District Court contains the following passage on this subject: ‘Early this year the defendant instituted an investigation with the criminal justice authorities in Yugoslavia in order to ascertain whether the plaintiff could expect to be prosecuted there. These authorities then asked to be informed about the offences for which the plaintiff was convicted in the Netherlands and, after receiving an abstract of the judgment of the Amsterdam Court of Appeal of 10 December 1976 in which the plaintiff was sentenced to 13 years’ imprisonment for manslaughter, attempted manslaughter, repeated manslaughter and the use of threats against a person's life, as a single crime, they reported by telex of 29 April 1986 that there were at present no grounds for instituting criminal proceedings against the plaintiff which might result in the death penalty'.
127. Cf., supra n. 124.
128. Discussed at p. 428.
129. Note by J.J. Bolten.
130. Note by A.H.J. Swart; summarised in NJB (1987) No. 129).
131. Cf., infra n. 134.
132. Cf., 16 NYIL (1985) p. 494 and 17 NYIL (1986) pp. 270–271.
133. Rechtspraak Vreemdelingenrecht (1985) No. 10, KG (1985) No. 293.
134. The Supreme Court held there as follows: ‘I. submitted an Asylantrag in the Federal Republic of Germany, but withdrew it before a decision had been taken on it; a second Asylantrag submitted immediately afterwards was refused by a judgment of 22 December 1983 on the ground that it was offensichtlich unbegründet; in this judgment, I. was given notice to leave the Federal Republic within one month of service of the notice, failing which he would be expelled to Turkey; the appeal lodged by I. against this judgment was dismissed by the Beschluss of the Verwaltungsgericht Karlsruhe of 14 February 1984, which has been filed in this case and in which detailed reasons were given why I. did not, in the opinion of the court, qualify for the status of refugee. I. did not appeal against this Beschluss…’
135. For the importance of recognition as a refugee by a foreign authority, cf., 18 NYIL (1987) pp. 367–370.
136. The case was not dealt with by The Hague Court of Appeal since I. subsequently married a Dutch woman and acquired a residence permit on this basis.
137. With note by A.C. ‘t Hart; summarised and discussed by A.H.J. Swart in AA (1987) pp. 786.
138. Art. 184 reads: ‘Any person who intentionally fails to comply with an order given or a claim made pursuant to statutory regulation by an official charged with exercising any form of supervision or by an official instructed or authorised to detect or investigate criminal offences and any person who intentionally prevents, hinders or frustrates any act done by one of these officials to implement any regulation shall be liable to a term of imprisonment not exceeding three months or a fine of the second category’.
139. In order to determine the position of the vessel, the Court of Appeal relied on a statement by an expert witness (of Dutch nationality) which reads as follows: ‘I have indicated on this map, which I hereby lodge with the Court of Appeal and which is part of the Norwegian North Sea Fisheries Chart L(D7)5604 and shows the border between the Danish and Norwegian zones of the continental shelf, the positions of the Linquenda, on the basis of the positions fixed by the Norwegian navy and the Linquenda, on 17 April 1982 between 10.10 hrs. and 11.35 hrs. On the basis of the information at my disposal, I conclude that the Linquenda was then in the Norwegian zone’. The Court also relied on a copy of the deck log of the Norwegian naval vessel which reads: ‘At 10.10 hrs. an inspector was put aboard the Dutch trawler Linquenda UK368 to make an inspection. The satellite position was N5649.4 EO540.4 and the Decca 7B.AB.9-J38.8-A57.2. The Decca was read off on the Linquenda at 11.10 hrs., J39.0-A56.0. Weather: North 7 (stiff gale)’. See also the map on p. 484.
140. Since the Court of Appeal made express reference to the nationality of the Linquenda (i.e., Dutch), ‘t Hart and Swart concluded (loc.cit n. 137) that it had based its jurisdiction on Art. 3 of the Criminal Code, which declares that Dutch criminal law ‘is applicable to any person who commits a criminal offence on board a Dutch vessel outside the Netherlands’, and not on the personality principle of Art. 5(1)(2) of the Criminal Code, which declares that Dutch criminal law is applicable to Dutch nationals who commit outside the Netherlands an offence regarded as an indictable offence in Dutch criminal law and punishable under the law of the country where it was committed’.
141. Institute's Collection No. R 2630.
142. Art. 12 reads: ‘…The person responsible on board shall receive Norwegian inspectors and shall allow them to remain on board during fishing operations within the zone. The inspectors shall be provided with the necessary food and accommodation at the vessel's expense during their stay on board. Upon inspection, the person responsible shall furnish all necessary assistance and information, produce documents, including logbooks, allow copies of documents, etc., to be taken, confirm such copies as true copies, permit annotations concerning violations to be entered into the catch logbook. The person responsible shall also produce such other relevant objects as the inspector deems necessary to ascertain that the applicable rules and regulations are being observed. The inspector shall have access to storage space for fish and fish products. The person responsible on board the vessel shall allow the inspector to make use of radio and telex facilities and assist the inspector to enable the latter to send messages. The inspector is empowered to order the person responsible to haul in the trawl if the inspector considers this necessary in the course of his duties …’
Art. 15 reads: ‘Anyone wilfully or negligently violating the provisions of these regulations or of provisions issued in pursuance thereof or who aids and abets therein shall be punished by fines. Attempted violations shall be similarly punished. In respect of violations of these regulations, vessels used in the violation together with accessory equipment, catches and gear which are on board may be confiscated irrespective of who is the owner. In lieu of confiscating the above, the value thereof may be impounded in whole or in part from the offender himself or from the person on whose behalf he has acted or from the owner. It may be decided that mortgage or other rights in the objects confiscated shall lapse either in whole or in part. The provisions in para. 37(c) of the General Civil Penal Code shall apply correspondingly. In respect of violations of the provisions of the Act relating to the Economic Zone of Norway of 17 December 1976, and these regulations, together with Norwegian legislation concerning the conduct of fishing operations, vessels may be arrested and seized in accordance with the Norwegian rules on criminal procedure …’ For the Act of 19 December 1976 relating to the economic zone of Norway, see New Directions on the Law of the Sea, Vol. V (1977) p. 341 and ST/LEG/SER.B/19, p. 241.Google Scholar
143. On 5 October 1987 the Court of Appeal sentenced K. to a term of imprisonment of two months suspended for two years and a fine of Df1. 1,000 or, alternatively, 30 days’ detention.
144. Stc. 1984 No. 254.
145. Regulation dated 19 December 1984, OJ (1985) No. L/l.
146. 21 ILM (1982) p. 1261; Trb. 1983 No. 83; Art. 62(2) reads: ‘The coastal State shall determine its capacity to harvest the living resources of the exclusive economic zone. Where the coastal State does not have the capacity to harvest the entire allowable catch, it shall, through agreements or other arrangements and pursuant to the terms, conditions, laws and regulations referred to in paragraph 4, give other States access to the surplus of the allowable catch, having particular regard to the provisions of Arts. 69 and 70, especially in relation to the developing States mentioned therein’.
147. Art. 5(1) reads: ‘(1) Member States may exchange all or part of the quotas in respect of a species or group of species allocated to them under Art. 4 provided that prior notice is given to the Commission’.
148. Regulation dated 25 January 1983, OJ (1983) No. L 24/1. Art. 4(1) reads: ‘The volume of the catches available to the Community referred to in Art. 3 shall be distributed between the Member States in a manner which assures each Member State relative stability of fishing activities for each of the stocks considered’.
149. The definition of the ICES areas referred to is given in the Commission communication published in OJ (1982) No. C 140/3.
150. Art. 7(1) reads: ‘It is permissible to fish for sole and plaice in sub-area IV and division Ila respectively and to land sole and plaice caught in sub-area IV and division Ila respectively only if a document as referred to in Art. 9, which has not yet lost its validity, is present on board the vessel used for the said fishing or by which the said catch is landed’.
Art. 8 reads: ‘It is forbidden to fish with a vessel for sole and plaice in sub-area IV and division Ila and then to land the same if the amount in question exceeds a quantity equal to the quota fixed for sole and plaice for that vessel and as recorded in the document referred to in Art. 9’.
151. Art. 28 reads: ‘If there are serious objections against the suspect and the interests which are protected by the regulations that are believed to have been violated require immediate intervention, the public prosecutor shall be competent in all matters relating to economic offences, with the exception of those referred to in Article 6(3) as long as the proceedings at the trial have not yet started, to serve notice on the suspect ordering him by way of provisional measure: (a) to refrain from certain acts’.
152. The total Dutch quota of plaice was exhausted on 29 November 1985. From 30 November onwards, all Dutch fishermen were banned from fishing for plaice in the relevant areas.
153. Stc. 1984 No. 254.
154. Art. 3 reads: ‘The allocation among the Member States of the share available to the Community of the TACs mentioned in Art. 2 is hereby fixed in Annex II’.
155. Art. 3(1) Exemption: ‘reads shall be granted from the prohibition referred to in Art. 2 insofar as it relates to the catch by the Dutch fishing fleet in its entirety of the quantity per fish species and per division or sector and for the period referred to in Annex 3, subject to the provisions of Art. 4’.
156. Regulation of 25 January 1982, OJ (1982) No. L 24/30.
157. OJ (1981) No. C 105/1. Council Resolution on certain external aspects of the creation of a 200 mile fishing zone in the Community with effect from 1 January 1977.
158. 298 UNTS p. 11; Trb. 1957 No. 74; Guide to EEC Legislation, Vol. 3 (1983) p. 2267Google Scholar. Art. 39 reads: ‘(1) The objectives of the common agricultural policy shall be: (a) to increase agricultural productivity by promoting technical progress and by ensuring the rational development of agricultural production and the optimum utilisation of the factors of production, in particular labour; (b) thus to ensure a fair standard of living for the agricultural community, in particular by increasing the individual earnings or persons engaged in agriculture; (c) to stabilise markets; (d) to assure the availability of supplies; (e) to ensure that supplies reach consumers at reasonable prices. (2) In working out the common agricultural policy and the special methods for its application, account shall be taken of: (a) the particular nature of agricultural activity, which results from the social structure of agriculture and from structural and natural disparities between the various agricultural regions; (b) the need to effect the appropriate adjustments by degrees; (c) the fact that in the Member States agriculture constitutes a sector closely linked with the economy as a whole’.
Art. 40 reads: ‘(1) Member States shall develop the common agricultural policy by degrees during the transitional period and shall bring it into force by the end of that period at the latest. (2) In order to attain the objectives set out in Art. 39 a common organisation of agricultural markets shall be established. This organisation shall take one of the following forms, depending on the product concerned: (a) common rules on competition; (b) compulsory coordination of the various national markets organisations; (c) a European market organisation. (3) The common organisation established in accordance with paragraph 2 may include all measures required to attain the objectives set out in Art. 39, in particular regulation prices, aids for the production and marketing of the various products, storage and carry-over arrangements and common machinery for stabilising imports or exports. The common organisation shall be limited to pursuit of the objectives set out in Art. 39 and shall exclude any discrimination between producers or consumers within the Community. Any common price policy shall be based on common criteria and uniform methods of calculation. (4) In order to enable the common organisation referred to in paragraph 2 to attain its objectives, one or more agricultural guidance and guarantee funds may be set up’.
159. Art. 7 reads: ‘Within the scope of application of this treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited. The Council may, on a proposal from the Commission and after consulting the Assembly, adopt, by a qualified majority, rules designed to prohibit such discrimination’.
Art. 30 reads: ‘Quantitative restrictions on imports and all measures having equivalent effect shall, without prejudice to the following provisions, be prohibited between Member States’.
160. The Court of Justice gave judgment on 16 June 1987 (case 46/86), AB (1987) No. 521, with note by de Ru, H.J. (discussed by J. Korte and W.J.J. Los in ‘EEG-vangstquota en de Nederlandse visserij’ [EEC catch quotas and the Dutch fishing industry] Nederlands Juristenblad (1988) pp. 625–629)Google Scholar. The Court of Justice held that no evidence of facts or circumstances had been adduced which could undermine the validity of Regulation No. 1/85. Zwolle District Court adopted this view and held that the national decision implementing the Regulation had a sound legal basis in the Regulation and was therefore binding. The District Court then dismissed the application, holding that it was no longer actionable since the provisional measure was no longer effective, given that the order had ceased to have effect on 1 January 1986 (judgment of 2 July 1987). The District Court then sentenced R. to a penalty of Df1. 5,000 by a judgment of 20 July 1987.
161. Note by W. Fleuren; summarised in WRvS (1987) No. 2.62.
162. Protocol 1953-II-12. For the term Rhine Boatmen's Certificates, see under Held infra.
163. De Martens NRG Vol. 20, p. 355; Trb. 1955 No. 161.
164. In addition, S. requested the President of the Judicial Division to order by way of provisional measure under Art. 80 of the Council of State Act that he be granted the Rhine Boatman's passport stamp. On 9 May 1984, the President dismissed this application on virtually the same grounds as referred to under Held infra (Rechtspraak Vreemdelingenrecht (1984) No. 51; summarised in WRvS (1984) No. R 266). A judgment which is almost identical was given on the same day by the President in the case of A.T.M. and F.A. Kriesels Scheepvaartbedrijf BV v. Minister for Foreign Affairs, published in KG (1984) No. 275.
165. This is a translation from the three languages of the authentic document, viz., Dutch, French and German.
166. Note by J. van der Meer (English translation of the judgment on p. 23); partially summarised in Tijdschrift voor Milieu en Recht (1987) pp. 206–209Google Scholar and in NIPR (1986) No. 464; referred to by Rousseau, loc.cit. n. 119, p. 149.
167. ILM (1977) p. 265; Trb. 1977 No. 33.
168. 15 NYIL (1984) pp. 471–484.
169. 11 NYIL (1980) p. 329.
170. Cf., 15 NYIL (1984) p. 473, n. 168.
171. 76/161, OJ (1976) No. L 31 p. 1.
172. An appeal in cassation to the Supreme Court has been lodged against the judgment of the Court of Appeal.
173. Stb. 1954 No. 596. NTIR (1958) p. 107. Art. 37 reads: ‘(1) The Netherlands, the Netherlands Antilles and Aruba shall consult each other as much as possible with regard to all matters in which the interests of at least two countries are involved. For this purpose special representatives may be appointed and common Organs created. (2) Matters referred to in this Article include among others: … (f) matters relating to aviation, including the policy with regard to unscheduled air transport’.
174. Stb. 1985 No. 542; Pb (1985) No. 88.
175. Art. 40 reads: ‘Judgments of courts in the Netherlands, the Netherlands Antilles or Aruba and orders issued by them, as well as certified copies of authentic acts issued by them, may be enforced throughout the Kingdom, with due observance of the legislation in the Country where enforcement is effected’.
176. Art. 40 reads: ‘Justice shall be pronounced in the countries in the name of the King’. Art. 41 reads: ‘(1) The administration of justice shall be performed only by the judges designated by or pursuant to this Cooperation Arrangement. (2) Every intervention in legal proceedings is prohibited’.
177. Stb. 1985 No. 542.
178. Cf., 15 NYIL (1984) pp. 273–274, 17 NYIL (1986) pp. 128–130 and 18 NYIL (1987) p. 250.
179. KG (1986) No. 304; Tijdschrift voor Antilliaans Recht – Justicia (1987) p. 90.Google Scholar
180. 1 NYIL (1970) p. 232.
181. Note by F.H. van den Burg. Summarised in NJB (1987) p. 282 (No. 49).
182. Note by N.S.J. Koeman.
182a. Note by M. Scheltema.
183. ECHR, Series A, vol. 97, NJ (1986) No. 102 with note by E.A. Alkema, AB (1986) No. 1 with note by Hirsch Ballin, E.M.H., Tijdschrift voor Milieu en Recht (1985) p. 352Google Scholar, with note by Samkalden, D., NJCM-Bulletin (1983) p. 669Google Scholar, with note by W. Konijnenbelt on pp. 353–360, AA (1985) pp. 128–136, with note by L. Mulder.
184. For the text of Art. 6(1) see supra n. 96.
185. However, Art. 6(1) was invoked in the case of Het Oude Ambacht BV v. Openbaar Lichaam Rijnmond. Rotterdam District Court held, however, that the decision of the authorities in that case differed from that in the Benthem case since it did not terminate unavoidably the possibilities of continuing the business. It was not certain, therefore, whether the European Court would consider Art. 6(1) to be applicable. The District Court thus held that it was not competent to hear the case (judgment of 23 January 1986, KG (1986) No. 97, AB (1986) No. 177, Tijdschrift voor Milieu en Recht (1986) p. 150Google Scholar, with note by P.W.A. Gerritzen-Rode).
In the judgment of 12 December 1986 in the case of W. Dekker v. the Municipality of Barneveld, the Supreme Court held that the Benthem judgment did not prevent recourse to the provisional measure procedure under Art. 60(a)(1) of the Council of State Act in cases heard by the President of the Administrative Disputes Division of the Council of State. The President of the District Court could be involved as interlocutory injunction judge in addition only if the provisions of Art. 6(1) of the Convention could be invoked, but only after the Crown procedure (RvdW (1987) No. 6; AB (1987) No. 151, with note by F.H. van den Burg; NJ (1987) No. 381 with note by M. Scheltema; Bouwrecht (1987) p. 230Google Scholar with note by N.S.J. Koeman; discussed by de Jong, B.F. in Tijdschrift voor Openbaar Bestuur (1987) pp. 165–167Google Scholar; summarised in De Gerechtsdeurwaarder (1987) p. 95)Google Scholar. However, Arnhem Court of Appeal considered this state of affairs to be less than satisfactory because it did not enable rapid measures to be taken (judgment of 17 February 1986, KG (1986) No. 138, AB (1986) No. 265, case of Mefigro Gendt en Wiod v. the Municipality of Ghent).
The President of the Judicial Division of the Council of State held in a judgment of 4 December 1986 in the case of the Burgomaster and Aldermen of Oldebroek v. Executive Board of the North Veluwe Water Corporation that it was wrong to resort to using the procedure according to the Administrative Decisions Appeals Act as long as the matter could be submitted to the civil courts (WRvS (1986) No. R. 180, Bouwrecht (1987) p. 383)Google Scholar. The civil court hearing a compulsory purchase case should also take precedence over the Judicial Division of the Council of State Gudgment of 28 April 1987, AB (1987) No. 492, Bouwrecht (1987) p. 600)Google Scholar. For the statutory solution to the problem caused by the Benthem case concerning appeals to the Crown, see van Dijk, P., ‘The Benthem Case and its Aftermath in the Netherlands’, 34 NILR (1987) pp. 5–24CrossRefGoogle Scholar. The new Temporary Crown Disputes Act [Tijdelijke Wet Kroongeschillen] came into force on 1 January 1988.
186. Stb. 1963 No. 28. See 10 NYIL (1979) pp. 321–333, 12 NYIL (1981) pp. 293–294 and 13 NYIL (1982) pp. 270–271.
187. Stb. 1981 No. 118, 13 NYIL (1982) pp. 314–315.
188. The District Court inferred this from a previous refusal of Bayer to deliver the substance to Melchemie for this reason and a telephone message to the same effect from the Dutch Ministry of Foreign Affairs.