Netherlands, District Court of The Hague, 23 November 2016 4307648-RL EXPL 15-21879

Identification of the case

• Right to an effective remedy and to a fair trial (art. 47 CFREU)

• Supreme Court of the Netherlands, judgment of 28 March 2014, ECLI:NL:HR:2014:736
• Dutch Implementation Act Regulation European Small Claims Procedure (Uitvoeringswet Verordening Europese procedure voor geringe vorderingen)

• Regulation 861/2007 establishing a European Small Claims Procedure
• Regulation 261/2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights
• CJEU 30 September 2003, C-224/01 (Köbler)
• CJEU 16 July 2009, C-385/07 (Der Grüne Punkt)
• CJEU 26 November 2013, C-58/12 (Groupe Gascogne)

Summary of the case

Ms. W. had claimed a compensation of EUR 250 from KLM for a flight between Berlin and Amsterdam that had been delayed for more than 3 hours. When KLM refused to pay, she started a Small Claims Procedure against KLM before the District Court of Amsterdam on 8 January 2014. The claim was awarded in a decision of 29 September 2014. Ms. W. subsequently claimed an amount of EUR 500 from the State of the Netherlands in damages for the violation of her right to adjudication within a reasonable time. The time period for giving a decision in Article 7 of Regulation 861/2007 had been exceeded by 80 days, which was contrary to the Regulation’s aim to speed up litigation concerning small claims in cross-border cases, urging the courts to act as soon as possible. The basis of the claim was a wrongful act under Dutch law.

• Civil judicial enforcement

The District Court of The Hague held that there is no general rule or principle of EU law that entails that a time period prescribed by EU law is always a strict deadline, nor that the right to a reasonable time is violated if the time period is not observed by the court. A failure to observe the time period is not sanctioned by Regulation 861/2007. The Regulation seeks to promote fundamental rights; thus, the District Court found that the claim should be assessed on the basis of Article 47(2) of the Charter. It referred to the CJEU’s case law (Der Grüne Punkt, Groupe Gascogne) to conclude that the specific circumstances of the case must be taken into account, such as the complexity of the case and the behaviour of the parties. The mere fact that a prescribed time period has not been observed does not mean in itself that the right to adjudication within a reasonable time has been violated. The District Court put Article 47(2) of the Charter on a par with Article 6 ECHR, and stated that there was no reason to assume that the CJEU interprets ‘reasonable time’ differently than the ECtHR.

The District Court subsequently considered that the entire proceedings had lasted for 8 months and 3 weeks, that the parties had submitted relatively lengthy documents elaborating on their respective positions, and that, although the case was not extremely complicated, it was not very simple either. In any case, it had been more complicated than usual; there was no precedent for the matter at issue. Therefore, although the proceedings had lasted (too) long, the reasonable time had not been exceeded.

According to the District Court, Dutch law did not provide a higher level of protection than EU law. It also held that the mere fact that the prescribed time period had not been observed was not sufficient to conclude that there was a ‘sufficiently serious breach’ of EU law (cf. Köbler). This would require that the reasonable time within the meaning of Article 47(2) of the Charter had been exceeded, and that was not the case. Thus, there was no basis for Member State liability.

Role of the Charter and role of the general principles on enforcement

The judgment found the case to be inside the scope of application of the Charter, because the original proceedings had concerned a European Small Claims Procedure.

• Explicit reference to Art. 47, CFREU (right to an effective remedy and a fair trial)
• Right to an effective remedy before a tribunal
• Explicit reference to Art. 6 ECHR

The judgment found Article 47(2) of the Charter to have the same scope as Article 6(1) ECHR. The District Court referred in this respect to the Explanations to the Charter, to Article 52(3) of the Charter and to Der Grüne Punkt (C-385/07), paras. 177-179.

Elements of judicial dialogue

• Dialogue among same level national courts within the same Member State

• Direct dialogue between CJEU/ECtHR and National court (out of preliminary reference procedure)

• CJEU C-224/01, Köbler
• CJEU C-385/07, Der Grüne Punkt
• CJEU C-58/12, Groupe Gascogne

Horizontal Judicial Interaction: The District Court referred to a Supreme Court judgment of 28 March 2014 (ECLI:NL:HR:2014:736) as support for its conclusion that the national assessment standard for ‘reasonable time’ is based on the case law of the ECtHR. The District Court’s conclusion that Dutch law does not provide a higher level of protection than EU law appears to be correct. It has even been argued in Dutch legal literature that this Supreme Court judgment is not ‘Strasbourg-proof’. It has also been argued that the Dutch criteria for State liability for national courts in cases falling outside the scope of EU law are more strict than Köbler.

Vertical Judicial Interaction: 

The District Court cited the three CJEU judgments mentioned above. Der Grüne Punkt (paras. 181-182) and Groupe Gascogne (paras. 85-86), however, relate to proceedings before the Court in First Instance/General Court respectively between a private party and the Commission. They do not relate to civil proceedings before a national court. Interestingly, the District Court saw no reason for a preliminary reference to the CJEU, as was requested by Ms. W.

In addition, the District Court gave its own interpretation of the Köbler criteria where it held that a sufficiently serious breach would require that the reasonable time within the meaning of Article 47(2) of the Charter had been exceeded, not merely the time period in Article 7 of Regulation 861/2007.

The District Court used Article 47(2) of the Charter as the assessment standard for ‘reasonable time’ in the context of a European Small Claims Procedure.

Additional notes on the decision

See the previous comment on vertical judicial interaction. The District Court appears to cite the CJEU’s case law correctly. In both Der Grüne Punkt and Groupe Gascogne, the length of the proceedings could not be justified by any particular circumstances of the case.

The District Court does not address Ms. W.’s argument that the general principles of equivalence and effectiveness in EU law and the effet utile of Regulation 861/2007 require a sanction for the non-observation of the prescribed time period. Ms. W. argued that the small amount of the claim should not play a role, precisely because it already concerned a Small Claims Procedure. In this respect, District Court’s observation that the original case concerned compensation for a delayed flight is curious. The Court seems to imply that this means the case was not of great importance, but it did concern a matter falling within the scope of EU law (Regulation 261/2004). To use this as an argument against Ms. W. would be questionable from the perspective of effective judicial protection.

The District Court explicitly referred to Article 52(3) of the Charter to support its conclusion that Article 47(2) of the Charter and Article 6(1) ECHR correspond. It considered that both the CJEU and the ECtHR use the same assessment standard, and that there is no indication that Article 7 of Regulation 861/2007 has been intended to offer a higher level of protection than Article 6 ECHR.