Information Note on the Court’s case-law 248
Stichting Landgoed Steenbergen and Others v. the Netherlands – 19732/17
Judgment 16.2.2021 [Section IV]
Access to court
Adequate notification solely by electronic means of (draft) administrative decision potentially directly affecting third parties : no violation
Facts – The applicants’ premises and land are located in close proximity to a motocross track. The Provincial Executive published a notification of a draft decision and decision to extend the opening hours of the track on its website, which the applicants did not see in time. They subsequently lodged an appeal against the decision, after the fixed time-limit for doing so had expired, which was declared inadmissible.
Law – Article 6 § 1:
Where an appeal lay against a decision by an administrative authority which might be to the detriment of directly affected third parties, a system needed to be in place enabling those parties to take cognisance of such a decision in a timely fashion. That required that the decision be made available in a pre-determined and publicised manner that was easily accessible to all potentially directly affected third parties. Provided sufficient safeguards were in place to achieve such accessibility, it fell in principle within the State’s margin of appreciation to opt for a system of publication solely by electronic means.
In the present case, the Provincial Executive’s use of electronic means for publishing notifications had been sufficiently coherent and clear for the purpose of allowing third parties to become aware of decisions that could potentially directly affect them. At the relevant time, a statutory provision within an ordinance had provided for the possibility of notifying the Provincial Executive’s (draft) decisions solely by electronic means. The notification of the adoption of the ordinance had been published in the Official Gazette and the text of the ordinance had been published in the Provincial Bulletin and website. Moreover, that provision had codified a practice which had been in place since 2011, and to which the attention of the public had been drawn by means of advertisements in local newspapers at the time.
The text of the ordinance had not explicitly indicated where notifications were to be published online; however, its explanatory notes had stated that notifications could be published on the Gelderland provincial website and notifications of the type at issue had been published on that website until 2016. The domestic court had found it sufficiently established that the impugned notifications had been published on that website. While that was disputed by the applicants, the Court could not question this assessment in the absence of clear evidence of arbitrariness.
Electronic communication between the administrative authorities and citizens might contribute to the aim of a more accessible and better functioning administration. Under Dutch law, notifications addressed to specific individuals might only be published solely by electronic means when the individuals concerned had indicated that they could be adequately reached in that manner. Given that decisions of administrative authorities might, in addition, potentially concern a large number of interested parties who it might not be possible to identify in advance, their electronic notification might enable a large proportion of the general public to become acquainted with those decisions. In that regard, Dutch law specified that restricting the publication of notifications, not addressed to specific individuals, exclusively by electronic means was only permitted when a statutory basis existed for it.
The impugned practice ran the risk of not reaching citizens who did not have access to the Internet or who were computer illiterate. However, it could not be overlooked that in 2013, the Internet penetration rate in the Netherlands had been high. Moreover, there was no indication that the applicants had been unable to find the (draft) decisions online due to, for example, a lack of access to a computer or the Internet or computer illiteracy. In those circumstances, publishing the notifications in a free local newspaper would not have provided better safeguards of reaching potentially affected parties. It had not been unrealistic to expect the applicants to consult the provincial website regularly for notifications of (draft) decisions that might affect them.
The system of electronic publication used by the Provincial Executive had therefore constituted a coherent system that had struck a fair balance between the interests of the community as a whole in having a more modern and efficient administration and the applicants. There was no indication that the applicants had not been afforded a clear, practical and effective opportunity to comment on the draft decision and to challenge the decision given by the Provincial Executive. In light of all the circumstances and the safeguards identified, the national authorities had not exceeded the margin of appreciation afforded to the State and the applicants had not suffered a disproportionate restriction of their right to access of court.
Conclusion: no violation (unanimously).
(See also Zavodnik v. Slovenia, 53723/13, 21 May 2015, Legal Summary)