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Published online by Cambridge University Press: 07 July 2009
4. With note by F.J.L. Pennings (case number 269). On the same day the Supreme Court gave judgment in the same way in the comparable case of X. v. the Social Insurance Board (case number 267), RvdW (1996) No. 124, NJ (1996) No. 556, JB (1996) No. 185 with note by A.W. Heringa and RSV (1997) No. 77 with note by F.W.M. Keunen.
5. 999 UNTS p. 171; ILM (1967) p. 368; Trb. 1969 No. 100. Art. 26 reads: ‘All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.’
6. Art. 2, opening words and (g) reads: ‘Notwithstanding the provisions of paragraph 1 of Article 6 of the General Old Age Pensions Act, the following shall not be deemed to be an insured person within the meaning of the law: […] (g) a married woman resident in the Kingdom whose husband is not insured pursuant to Article 6, paragraph 2, of the General Old Age Pensions Act or pursuant to the provisions of this Article under (a), (b), (c), (d), (e) or (f).’
7. EC Directive 79/7, 19 December 1978, OJ (1979) No. L 6/24. Art. 4(1) reads: ‘The principle of equal treatment means that there shall be no discrimination whatsoever on the ground of sex either directly or indirectly by reference in particular to marital or family status, in particular as concerns:
— the scope of the schemes and the conditions of access thereto;
— the obligation to contribute and the calculation of contributions;…’
8. Cf., infra n. 7.
9. The findings of the Central Appeals Court completely agreed with those in the judgment of the same date in the case of the Social Insurance Board v. T.H./M.W.-U., see 26 NYIL (1995) pp. 334–335. W.-U., did not appeal in cassation against this judgment.
10. Under Art. 53(1) of the General Old Age Pension Act appeal in cassation lies to the Supreme Court only against judgments of the Central Appeals Court in so far as the infringement or wrong application concerns Arts. 1(2)-(5), 2, 3 and 6 of the General Old Age Pension Act. Art. 13 concerns the calculation of the General Old Age Pension Act amount. It stipulates among other things that a reduction of 2 per cent is applied for each calendar year that the pension claimant was not insured.
11. With note by P. Hazewindus and I.C. van der Vlies.
12. With note by F. Vlemminx. Also discussed in Sociaal Maandblad Arbeid (1997) p. 250.Google Scholar
13. Art. 10(1), opening words and (b), reads: ‘The benefits shall include at least (a) … (b) in cases of pregnancy and confinement and their consequences (i) pre-natal, confinement and post-natal care either by medical practitioners or by qualified midwives; and (ii) hospitalisation where necessary.’
14. Art. 49 reads: ‘1. In respect of pregnancy and confinement and their consequences, the maternity medical benefit shall be medical care as specified in paragraphs 2 and 3 of this Article. 2. The medical care shall include at least (a) pre-natal, confinement and post-natal care either by medical practitioners or by qualified midwives; and (b) hospitalisation where necessary. 3. The medical care specified in paragraph 2 of this Article shall be afforded with a view to maintaining, restoring or improving the health of the woman protected and her ability to work and to attend to her personal needs. 4. The institutions or Government departments administering the maternity medical benefit shall, by such means as may be deemed appropriate, encourage the women protected to avail themselves of the general health services placed at their disposal by the public authorities or by other bodies recognised by the public authorities.’
15. 210 UNTS p. 131, Trb.(1953) No. 69.
16. Art. 93 of the Constitution reads: ‘Provisions of treaties and of resolutions by international institutions which may be binding on all persons by virtue of their contents shall become binding after they have been published.’ Art. 94 of the Constitution reads: ‘Statutory regulations in force within the Kingdom shall not be applicable if such application is in conflict with provisions of treaties or of resolutions by international institutions that are binding on all persons.’
17. Stcrt. 1969, 50, as amended by Order of 27 March 1980, Stcrt. 1980, 64. Art. 3a provides that even where a woman is admitted to hospital for her confinement for medical reasons she must still pay a contribution towards the costs of maternity care.
18. 214 UNTS p. 321, Trb. (1953) No. 129.
19. Art. 4 of the ILO Convention 103 was of particular importance in this case. Art. 4 reads: ‘1. While absent from work on maternity leave in accordance with the provisions of Article 3, the woman shall be entitled to receive cash and medical benefits. […] 3. Medical benefits shall include pre-natal, confinement and post-natal care by qualified midwives or medical practitioners as well as hospitalisation care where necessary; freedom of choice of doctor and freedom of choice between a public and private hospital shall be respected. 4. The cash and medical benefits shall be provided either by means of compulsory social insurance or by means of public funds; in either case they shall be provided as a matter of right to all women who comply with the prescribed conditions.’
20. European Code of Social Security, ETS No. 48, Trb. (1965) No. 4.
21. Note by C.A. Groenendijk. Discussed by van Hoek, A.A.H. in Sociaal Recht (1997) pp. 353–359Google Scholar and by Wentholdt, K. in NJCM-Bulletin (1998) pp. 449–450.Google Scholar
22. Art. 3(1) of the collective agreement reads: ‘The pay and terms of employment agreed between the bona fide trade union organisations established in the country of residence and the employer shall apply to employees resident in the Philippines, Indonesia and any other countries specified by collective agreement. In the absence of a bona fide trade union organisation the pay and terms of employment shall be agreed direct between the Vereniging van Werkgevers in de Handelsvaart (Association of Employers in the Merchant Marine, VWH) and the Federation of Employees in the Shipping Industry (FWZ). The pay and terms of employment must at least fulfil the international conventions, recommendations and agreements. The other pay and conditions of employment mentioned in this collective agreement are not applicable to this category of employee.’
23. Art. 1 of the Equal Treatment Act provides that discrimination should be deemed to include discrimination between persons on the grounds of nationality in a political sense. Discrimination is taken to mean both direct and indirect discrimination. Indirect discrimination on the basis (in this case) of nationality is discrimination on the basis of a criterion other than nationality which results in direct discrimination on the basis of nationality. Art. 5, para. 1(d), of the Equal Treatment Act, in conjunction with Art. 1 of the same Act, prohibits discrimination on the basis of nationality in, inter alia, conditions of employment. See 28 NYIL (1997) p. 308.
24. Art. 2, para. 5(a), of the Equal Treatment Act provides that the prohibition of discrimination on the basis of nationality as contained in the Equal Treatment Act does not apply if the discrimination is based on generally binding regulations or written or unwritten rules of international law.
25. Art. 2, para. 1, of the Equal Treatment Act provides that the prohibition of discrimination contained in the Equal Treatment Act does not apply to indirect discrimination that is objectively justified.
26. It should be noted that the text in square brackets is the text of footnotes included by the Commission in its ruling.
27. With note by R. Fernhout, discussed by van Mansfeld, P. in NAV (1996) p. 782.Google Scholar
28. 89 UNTS p. 137; Trb. 1951 No. 131, amended by protocol of 31 Januaiy 1967, 606 UNTS p. 267; Trb. 1967 No. 76. Art. 35(1) reads: ‘1. The Contracting States undertake to cooperate with the Office of the United Nations High Commissioner for Refugees, or any other agency of the United Nations which may succeed it, in the exercise of its functions, and shall in particular facilitate its duty of supervising the application of the provisions of this Convention.’
29. According to Van Mansfeld, op. cit. n. 27, p. 783.
30. It is not entirely clear whether the intervention referred to here is the same as that mentioned in the statement of the Dutch UNHCR representative mentioned by Van Mansfeld, op. cit. n. 27, at p. 782, which read: ‘Mr […] was accepted by UNHCR on 5/5//93 as a refugee in need of international protection’. The doubt exists because the date of this recognition differs from that mentioned in the following paragraph of the present judgment. The earlier date also appears in the communication of the Cairo office of UNHCR quoted by Van Mansfeld: ‘Mr […] was recognised as a refugee on 5/5/93 and was receiving assistance from our implementing partner until June 1994.’
31. This is a reference to finding 11.
32. Summarised in NIPR (1996) No. 283.
33. OJ (1978) No. L 304, 8 ILM (1969) p. 229, Trb. (1969) No. 101. Art. 5(3) reads: ‘A defendant domiciled in the territory of a Contracting State may be sued in another Contracting State: […] (3) in cases of torts or quasi torts before the court of the place where the injury occurred.’
34. Van der Schelling appealed against this judgment. It was not until 6 June 1996 that the Court of Appeal of Amsterdam dismissed the request of the City of Paris for the provision of security by Van der Schelling (NIPR (1997) No. 240). The Court of Appeal then quashed the judgment of the District Court on 28 November 1996. Although the Court of Appeal too was of the opinion that the City of Paris could not claim immunity, it differed from the President of the District Court in holding that the injury within the meaning of Art. 5(3) occurred at the place where it manifested itself, namely in Amsterdam where Christie's refused to conduct the auction as a result of the letter, thereby causing Van der Schelling injury (NIPR (1998) No. 122).
35. Summarised and commented upon by Barnhoorn, L.A.N.M. in NILR (1998) pp. 253–261Google Scholar; summarised in NIPR (1998) No. 113.
36. Under Art. 4(8) service takes place at the office of the Public Prosecutor. He then makes use of the services of the Ministry of Foreign Affairs (diplomatic channel). In addition, a copy of the writ is sent direct to the person concerned by registered mail.
37. 658 UNTS p. 163; Trb. 1966 NO. 191.
38. Art. 1:14 provides that when a legal person has an office (kantoor) or branch (filiaal) in the Netherlands, this branch or office will be considered to be its residence with respect to questions relating to that branch or office.
39. For the text of Art. 81(1) see under Held.
40. Art. 94 reads: ‘If the defendant enters an appearance in answer to the writ of summons or, after a default judgment has been given against him, enters an objection, and in either case claims that the writ of summons is null and void, the court shall reject this motion if the defect is judged to be of such a nature that the interests of the defendant have not been prejudiced by it.’
41. For the text of Art. 2, see infra under Held.
42. For the text of Art. 6, see infra under Held.
43. Discussed by Bruin, R. in ‘Geen overheid, geen staatsaansprakelijkheid, geen vluchtelingschap’ (No government, no State liability, no refugee status), NAV (1997) pp. 359–364Google Scholar and by Vermeulen, B.P. in ‘Vervolging zonder overheid’ (Prosecution without government), NAV (1998) pp. 545–550.Google Scholar
44. Note by T. Spijkerboer.
45. 189 UNTS p. 137; Trb. 1951 No. 131, amended by Protocol of 31 January 1967, 606 UNTS p. 267; Trb. 1967 No. 76.
46. OJ (1996) No. L 63/2.
47. The respondent had by this time granted X. an unrestricted residence permit on humanitarian grounds by letter of 29 March 1994.
48. Art. 1(A), at 2, of the 1951 Convention relating to the Status of Refugees reads: ‘The term refugee shall apply to any person who […] (2) as a result of events occurring before 1 January 1951 and 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; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, unwilling to return to it.’
49. Art. 15, para. 1, of the Aliens Act reads: ‘Aliens originating from a country where they have a well-founded fear of persecution because of their religious or political opinion or their nationality, or because they belong to a certain race or to a certain social group, may request Our Minister to grant them admission as a refugee.’
50. Cf., 28 NYIL (1997) pp. 353–354.
51. In a similar judgment of the Administrative Law Division of the Council of State of 21 March 1997, NAV (1997) p. 405, regarding a dispute between X., who was of Afghan nationality, and the State Secretary for Justice, it was held as follows: ‘There has been no evidence that the situation in Afghanistan differs from that in Somalia to such an extent that the criteria provided for Somalia as regards the definition of the term government structure may not be applied to Afghanistan.’ Applying this criteria for the purpose of its review, the Judicial Division came to the conclusion that it had to be assumed that every form of actual government authority was absent in Afghanistan at the time of the disputed decision (5 July 1993). This conclusion led to the finding that the State Secretary was right not to have treated X. as a refugee within the meaning of the Refugees Convention and the Aliens Act.
In the judgment of the Administrative Law Division of the Council of State of 23 April 1997, Institute's Collection No. 4353, regarding a dispute between M. Maluba, who was of Liberian nationality, and the State Secretary for Justice, it was held that the Division had insufficient evidence for the time being to hold that there was a complete lack of government authority in Liberia at the time of the disputed decision (29 December 1992).
52. 213 UNTS p. 221; Trb. (1951) No. 154; ETS No. 5. Art. 3 reads: ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’
53. Discussed by Hoogenberk, N. in NAV (1997) p. 336.Google Scholar
54. Art 4(1) reads: ‘No one shall be held in slavery or servitude’. Art. 5(1) reads: ‘Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law…’
55. Art. 8(1) reads: ‘No one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited.’
56. According to X., this was the incident that prompted him to escape. On 28 June 1993 a sheep strayed away from the flock. While X. was chasing it, another sheep was hit by a car. When the flock returned and Moctar saw that one of his sheep was missing, he threatened to kill X. if he did not bring back the sheep. X. then fled to his uncle. He heard later from his uncle that his mother had been arrested because Moctar had laid a complaint against here for her having helped X. to escape. X. has heard nothing more from his mother. After ten days he left his uncle and travelled by ship to Belgium and then by train to the Netherlands.
57. From the 1990 volume.
58. For the text of Art. 2(1)(f). see under Held.
59. For the text of Art. 11(2), see under Held.
60. 500 UNTS p.95, Trb. 1962 No. 101. For the text of Art. 37(2), see under Held.
61. Art. 33(1) reads: ‘Subject to the provisions of paragraph 3 of this Article, a diplomatic agent shall, with respect to services rendered for the sending State, be exempt from social security provisions which may be in force in the receiving State.’
62. The text used here by the Central Appeals Court is in fact not the text of the Royal Decree of 1976 but the text of the latest amendment to the Royal Decree of 1976 effected by the Royal Decree of 20 August 1984 referred to below.
63. Cf., with regard to the ‘C’ status, Geesteranus, G.W. Maas, ‘The Netherlands and the Status of Diplomatic, Consular and International Officials’, in International Law in the Netherlands, Vol. II, (Alphen aan de Rijn, Sijthoff & Noordhoff 1980) pp. 252 et seq.Google Scholar
64. Note by T.M. Schalken. Summarised in DD (1997) No. 118-II and NJB-katern (1997) p. 262 (No. 19), discussed in NJCM-Bulletin (1997) p. 146.
65. ILM (1984) p. 1027, Trb. (1985) No. 69. For the text of Art. 3(1), see infra under Held.
66. Art. 3(2) reads: ‘For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.’
67. Art. 1 reads: ‘The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.’ Art. 2 reads: ‘Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law …’
68. 359 UNTS p. 273, Trb. 1965 No. 9. Art. 3 reads: ‘1. Extradition shall not be granted if the offence in respect of which it is requested is regarded by the requested Party as a political offence or as an offence connected with a political offence.
2. The same rule shall apply if the requested Party has substantial grounds for believing that a request for extradition for an ordinary criminal offence has been made for the purpose of prosecuting or punishing a person on account of his race, religion, nationality or political opinion, or that the person's position may be prejudiced for any of these reasons.’
69. NJ (1997) No. 533. Summarised in DD (1997) No. 118-II and NJCM-Bulletin (1997) p. 143.
70. Advocate General Machielse notes in his opinion that accompanies the judgment that it was evident from the annexes to counsels' speeches that the examination report of the forensic medical examiner was dated 11 September 1989, the acquittal judgment was dated 10 November 1992 and the judgment of the Turkish Supreme Court quashing the earlier judgment on account of insufficient examination was dated 11 May 1993.
71. ETS No. 126. Art. 10(2) reads: ‘If the Party fails to co-operate or refuses to improve the situation in the light of the Committee's recommendations, the Committee may decide, after the Party has had an opportunity to make known its views, by a majority of two-thirds of its members to make a public statement on the matter.’
72. Section 21 of the Public Statement on Turkey of 15 December 1992, NJCM-Bulletin (1993) p. 182, discussed by Lawson, R.A. in ‘Foltering in Turkije: publieke verklaring van het Europees Martelingencomite’ (Torture in Turkey: public statement of the European Committee on Torture), NJCM-Bulletin (1993) pp. 175–182Google Scholar, and by Kuyper, M., ‘Foltering in Turkije: de publieke verklaring van het CPT’ (Torture in Turkey: public statement of the CPT), AA (1994) pp. 584–591.Google Scholar
73. Art. 8 reads: ‘If the offence in respect of which extradition is requested carries the death penalty under the law of the requesting State, the person claimed shall not be extradited unless in our Minister's opinion there is an adequate guarantee that this penalty, if a sentence to this effect should follow, will not be carried out.’
Art. 10 reads: ‘(1) Extradition shall not be allowed in cases in which in Our Minister's opinion there are good grounds for believing that if the request is granted the person claimed will be prosecuted, punished or otherwise suffer on account of his religious or political convictions, nationality, race or the population group to which he belongs. (2) Extradition shall not be allowed in cases in which in Our Minister's opinion its consequences would cause exceptional hardship to the person claimed on account of his youth, old age or ill-health.’
74. Under Art. 95 of the Judicial Organisation Act, the Procurator-General of the Supreme Court may ‘in the interests of the law’ appeal in cassation to the Supreme Court against decrees and decisions of Courts of Appeal, District Courts and Sub-District Courts (known as ‘cassation in the interests of the law’). The aim of such an appeal is to ensure the uniform application of the law. Such a decision of the Supreme Court does not affect the rights of the parties in the particular case (Art. 98 of the Judicial Organisation Act).
75. Note by de Boer, Th.M., discussed by Jordens-Cotran, L. in NJB (1997) pp. 682–683Google Scholar, partly mentioned in FJR (1997) No. 6.
76. Note by A.V.M. Struycken.
77. Stb. 1904, 121. Art 6 reads: ‘Sera reconnu partout comme valable, quant à la forme, le mariage cétébré devant un agent diplomatique ou consulaire, conformément à sa législation, si aucune des parties contractantes n'est ressortissante de l'Etat où le mariage a été célébré et si cet Etat ne s'y oppose pas, il ne peut pas s'y opposer quand il s'agit d'un mariage qui, à raison d'un mariage antérieur ou d'un obstacle d'ordre religieux, serait contraire à ses lois. La réserve du second alinéa de l'article 5 est applicable aux mariages diplomatiques or consulaires.’
78. ILM (1977) p. 18, Trb. (1987) No. 137. Art. 9(2) reads: ‘A marriage celebrated by a diplomatic agent or consular official in accordance with his law shall be similarly considered valid in all Contracting States, provided that the celebration is not prohibited by the State of celebration.’
79. Act of 7 September 1989, Stb. 392. For the text of Art. 4, see under Held.
80. Art. 8(1) reads:‘Everyone has the right to respect for his private and family life, his home and his correspondence.’
Art. 12 reads: ‘Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.’
81. District Court of's-Hertogenbosch, 20 November 1995, NIPR (1996) No. 72.
82. Partly mentioned in FJR (1997) p. 100 and NJB Katern (1997) p. 497 (No. 56C).
83. Note by P. Vlas.
84. Note by Th.M. de Boer
85. 1021 UNTS p. 209, Trb. (1974) No. 86. Art. 8 reads: ‘Notwithstanding the provisions of Articles 4 to 6, the law applied to a divorce shall, in a Contracting State in which the divorce is granted or recognised, govern the maintenance obligations between the divorced spouses and the revision of decisions relating to those obligations. The preceding paragraphs shall apply also in the case of a legal separation and in the case of a marriage which has been declared void or annulled.’
86. 1155 UNTS p. 331, ILM (1969) p. 679, Trb. (1972) No. 51. Art. 31 reads: ‘General rule of interpretation 1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. 3. There shall be taken into account, together with the context: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which established the agreement of the parties regarding its interpretation; (c) and relevant rules of international law applicable in the relations between the parties. 4. A special meaning shall be given to a term if it is established that the parties so intended.’ Art. 32 reads: ‘Supplementary measures of interpretation. Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31 (a) leaves the meaning ambiguous or obscure, or (b) leads to a result which is manifestly absurd or unreasonable.’
87. Judgment of 26 July 1993, NIPR (1993) No. 426.
88. Judgment of 23 December 1994 and 29 September 1995, NIPR (1997) No. 70.
89. With note by C.W. Backes.
90. The implementing regulations date from 1994.
91. The Forestry Act dates from 1961.
92. In his note Backes mentions that the President of the Administrative Disputes Division ofthe Council of State had held in a similar case before the Interim Measures Act came into effect that account did have to be taken of the injurious effects of livestock farming on that same forestland in Germany (judgment of 20 February 1985, Tijdschrift voor Milieu en Recht (1986) p. 19 with note by Jurgens).