NGOs under European Convention on Human Rights / Tymofeyeva

The practice of the Court under Article 7 of the Convention is not generally substantial and is even more limited in respect of Article 34 NGOs. Therefore, this research will also study the principles of the Court introduced in its decisions concerning legal persons. 2.3.3 Decisions of the Court More often than in the judgment procedure, the Court has dealt with the punishment without law principle during the admissibility stage. Complaints under Article 7 of the Convention were at issue in the case of Het Financieele Dagblad B.V. v. Netherlands. 682 The applicant company, Het Financieele Dagblad B.V., a limited liability company incorporated under the law of the Netherlands, alleged that certain norms of the Dutch legislation had not been foreseeable. In particular, the company mentioned that they could not foresee that they might be considered the ‘employer’ of the newspaper boys within the meaning of the Foreign Nationals (Employment) Act. The applicant company published a daily newspaper, titled “Het Financieele Dagblad”, which was delivered to subscribers by newspaper boys. The Labour Inspectorate found that some of these newspaper boys did not have the country nationality and did not have permission to execute this work. As a result, the applicant company was fined. It appealed, but was not successful in the judicial proceedings at the domestic level. The company argued before the Court that the definition of an ‘employer’ could not be read so as to cover their situation. There was no formal relationship of employment between the applicant company and the newspaper boys. The company did not pay them and did not give them any orders or instructions. The Court, in the present case, made its own translation of the law in question and on this basis evaluated the position of the applicant. The Court observed that “on their application form, the applicant company translated the definition of an “employer” contained in section 1(1)(b)(1) of the Foreign Nationals (Employment) Act as follows: ‘the person who, in exercising an office, profession or business instructs another person to perform work’, whereas the Court, as set out above (paragraph 24), translates it as ‘the person who, in the exercise of an office, profession or business, has someone else performwork’. The Court considers its choice of words – ‘has someone else perform work’ – to be a more faithful reflection of the original Dutch ‘een ander arbeid laat verrichten’ than the applicant company’s”. In the view thereof, the Court came to conclusion that the application was manifestly ill-founded. The Court dealt with the foreseeability of a ‘criminal’ law in the case of Valico S.r.l. v. Italy. 683 The applicant company, in the course of a building construction moved the site of the building without having an agreement with municipality. It was fined for breach of planning permission. 684 The company instituted proceedings before domestic courts, but to no avail. It complained in front of the Court of a violation of Article 7 of the Convention, considering the imposition of the fine to be unpredictable.

682 Het Financieele Dagblad B. V. v. Netherlands (dec.), no. 577/1, 28 June 2011. 683 Valico S.r.l. v. Italy (dec.), no. 70074/01, ECHR 2006-III.

684 MEROLA, M. and WAELBROECK, D. F. Towards an optimal enforcement of competition rules in Europe : time for a review of Regulation 1/2003? : GCLC Annual Conference, 11-12 June 2009. Bruxelles: Bruylant, 2010, p. 478.

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