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Netherlands judicial decisions involving questions of public international law, 2001–2002*
Published online by Cambridge University Press: 07 July 2009
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References
1. With note by P.E. Minderhoud; LJN No. AD6622 <www.rechtspraak.nl>.
2. 218 UNTS p. 265; Trb. 1954 No. 100; ETS No. 14.
3. For the text of Art. 3(1)(b), see below under ‘Held by the Court of Appeal of The Hague’.
4. Art. 1 reads: ‘Each of the Contracting Parties undertakes to ensure that nationals of the other Contracting Parties who are lawfully present in any part of its territory to which this Convention applies, and who are without sufficient resources, shall be entitled equally with its own nationals and on the same conditions to social and medical assistance […] provided by the legislation in force from time to time in that part of its territory’. Art. 11 reads: ‘(a) Residence by an alien in the territory of any of the Contracting Parties shall be considered lawful within the meaning of this Convention so long as there is in force in his case a permit or such other permission as is required by the laws and regulations of the country concerned to reside therein. Failure to renew any such permit, if due solely to the inadvertence of the person concerned, shall not cause him to cease to be entitled to assistance. (b) Lawful residence shall become unlawful from the date of any deportation order made out against the person concerned, unless a stay of execution is granted’.
5. 999 UNTS p. 171; ILM (1967) p. 368; Trb. 1969 No. 99. 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. ETS No. 78; Trb. 1976 No. 54. Art. 8(1) reads: ‘Unless otherwise specified in this Convention, persons who are resident in the territory of a Contracting Party and to whom the Convention is applicable shall have the same rights and obligations under the legislation of every Contracting Party as the nationals of such Party’.
7. Z.A. had been in the Netherlands since 1988. His application for a residence permit for urgent reasons of a humanitarian nature was dismissed on 18 July 1997. His application to the administrative authority for reconsideration was declared unfounded by the State Secretary for Justice on 20 July 1999. Z.A. then applied to the District Court of The Hague for judicial review. On 20 July the State Secretary announced that a postponement of expulsion had been granted pending this review. This was followed on 15 December 1999 by an announcement that the request for admission on the basis of the scheme for temporarily ‘tolerated illegal residents’ had been received and that he was permitted to remain in the Netherlands pending this request.
8. JV (1998) No. 184.
9. JV (1998) No. 198, with note by P.E. Minderhoud, KG (1998) No. 301, AB (1998) No. 428, with note by I. Sewandono, RSV Actueel (1998) No. 23, JB (1998) No. 268, with note by H.J. Simon, JAB (1998) No. 173, RV (1998) No. 82, with note by P.E. Minderhoud, and GV No. 14d-2; discussed by Joosten, E. in NAV (1998) p. 866.Google Scholar
10. RSV (2000) No. 81, JV (2000) No. 46, JABW (2000) No. 40, RV (2000), No. 80, with note by P.E. Minderhoud.
11. The judgment of the Court of Appeal prompted the Social Security Committee of the Municipality of The Hague to terminate the provision of benefit to Z.A. on 25 May 2000 (decision of 27 April 2000). Z.A. then applied to the President of the District Court of The Hague for a provisional injunction suspending the decision of the Committee pending the decision on appeal on his application for a residence permit (see above at n. 7). The President granted the application for the provisional injunction. Unlike the Court of Appeal of The Hague, he did not exclude the possibility that the Benefit Entitlement (Residence Status) Act would be deemed by the highest court to be contrary to the Social and Medical Assistance Convention. The suspension of the provision of benefit was therefore lifted again (judgment of 19 July 2000, RV (2000) No. 81, with note by P.E. Minderhoud). The reference to the highest court was a reference to the Central Appeals Court for the Public Service and for Social Security Matters, with which an appeal had indeed been lodged concerning the refusal of benefit in 1998. However, the Central Appeals Court stayed its decision until the Supreme Court had given judgment in the present case (see last paragraph in note to the judgment). The appeal by the Committee was withdrawn on 12 June 2002. In a comparable case the District Court of The Hague had in fact already concluded on 26 March 2001 that an application for benefit by an alien of Turkish nationality who was residing in the Netherlands under the provisions of Art. 1(b)(3) of the Aliens Act could no longer be based on the Social and Medical Assistance Convention (JV (2001) No. 127, JABW (2001)No. 112).
12. However, in a judgment given on 26 June 2001 the Central Appeals Court for the Public Service and Social Security Matters held in six consolidated cases that the refusal of child allowance to a Turkish alien on the basis of the Benefit Entitlement (Residence Status) Act constituted discrimination within the meaning of Art. 26. It considered that a justification did exist for this distinction in the case of Turkish nationals who requested admission after 1 July 1998. It did not, however, believe that this justification existed in respect of Turkish nationals who were insured before 1 July 1998. Similarly, the Central Appeals Court held that the Benefit Entitlement (Residence Status) Act was not contrary to the rules on equal treatment by nationality of Order 3/80 of the EC-Turkey Association Council of 19 September 1980 or with Art. 41(1) of the 1976 cooperation agreement between the EC and Morocco. Finally, the Central Appeals Court considered that it would arrive at the same conclusion on the basis of Art. 14 of the European Convention on Human Rights and Art. 1 of Protocol 1 to the Convention. (JV (2001) No. 2004 with note by P.E. Minderhoud, RSV (2001) No. 216, with note by F.W.M. Keunen, AB (2001) No. 244 with note by F.J.L. Pennings, RV (2001) No. 83, with note by Minderhoud, P.E., NCJM-Bulletin (2001) p. 754Google Scholar, with note by F.J.L. Pennings, AB kort (2001) No. 411, JABW (2001) No. 122. See also Pennings, F.J.L., ‘De Koppelingswet en internationale verdragen: een gespannen verhouding’ (The Benefit Entitlement (Residence Status) Act and international treaties: a tense relationship), NCJM-Bulletin (2001), pp. 709–722).Google Scholar
13. By Order of 9 October 1998 the State Secretary for Justice had excluded two groups of asylum-seekers from the reception provided for under the responsibility of the Central Reception Organisation for Asylum-Seekers, namely asylum-seekers whose first application had been definitely rejected and who had submitted a fresh application (repeat applicants) and asylum-seekers whose application for asylum should be dealt with by another Member State of the EU under the Dublin Convention of 1995. The District Court of The Hague was asked to rule on whether this Order was not contrary to Articles 1 and 11 of the European Convention on Social and Medical Assistance in the case of Turkish asylum-seekers. Referring to the judgment of the District Court of 7 October 1998, it did indeed hold that it was incompatible (judgment of 12 January 1999, JV (2001) No. 64). After the above-mentioned judgment of the Court of Appeal of The Hague of 20 January 2000 the Order once again became effective in relation to the Turkish asylum-seekers too (cf, J. de Poorte in NAV (2000) p. 530 and P.E. Minderhoud in the note under RV (2000) No. 81). In its judgment of 17 January 2001 the District Court of The Hague did indeed hold that a request by a Turkish Dublin claimant for reception by the Central Reception Organisation for Asylum-Seekers could not be based on the European Convention on Social and Medical Assistance (JV (2001) No. 95), but on 23 January 2001 the President of the District Court of Arnhem did grant a request by a Turkish Dublin claimant for reception by the Central Reception Organisation for Asylum-Seekers based on the Convention (JV (2000) No. 96). The president repeated this in a judgment of 18 June 2001. Finally, the Administrative Law Division of the Council of State held on appeal on 17 October 2001 that a Turkish Dublin claimant who was present in the Netherlands pursuant to Art. 8(f) of the Aliens Act 2000 could not invoke the European Convention on Social and Medical Assistance (JV (2001) No. 326, RV (2001) No. 85, with note by P.E. Minderhoud, AB (2001) No. 371, with note by I. Sewandono). For the sake of completeness, it should also be noted here that the District Court of The Hague stated in its judgment of 6 September 2000 that it did not wish to review the Order in the light of Art. 11(1) of the International Covenant on Economic, Social and Cultural Rights, Arts. 22, 26(1), 27(1) and 28 of the Convention on the Rights of the Child or Art. 12(1) of the UN Convention on the Elimination of All Forms of Discrimination against Women as none of these provisions had direct effect (JV (2000) No. 224, with note by K.M. Zwaan and J.W.A. Fleuren).
14. LJN No. AD8168 <www.rechtspraak.nl>.
15. Trb. 1994 No. 235, Annex 1C came into force for the Netherlands on 1 January 1996. Art. 50 reads: ‘1. The judicial authorities shall have the authority to order prompt and effective provisional measures: (a) to prevent an infringement of any intellectual property right from occurring, and in particular to prevent the entry into the channels of commerce in their jurisdiction of goods, including imported goods immediately after customs clearance; (b) to preserve relevant evidence in regard to the alleged infringement. 2. The judicial authorities shall have the authority to adopt provisional measures inaudita altera parte where appropriate, in particular where any delay is likely to cause irreparable harm to the right holder, or where there is a demonstrable risk of evidence being destroyed … 4. Where provisional measures have been adopted inauditu altera parte, the parties affected shall be given notice, without delay after the execution of the measures at the latest. A review, including a right to be heard, shall take place upon request of the defendant with a view to deciding, within a reasonable period after the notification of the measures, whether these measures shall be modified, revoked or confirmed … 6. Without prejudice to paragraph 4, provisional measures taken on the basis of paragraphs 1 and 2 shall, upon request by the defendant, be revoked or otherwise cease to have effect, if proceedings leading to a decision on the merits of the case are not initiated within a reasonable period, to be determined by the judicial authority ordering the measures where a Member's law so permits or, in the absence of such a determination, not to exceed 20 working days or 31 calendar days, whichever is the longer …’
16. RvdW (1999) No. 45, NJ (2000) No. 36, with note by D.W.F. Verkade.
17. Case C-89/99, ECR (2001) p. 1–5851, NJ (2002) No. 90 with note by Verkade, D.W.F., IER (2001) No. 59Google Scholar with note by the Editors; discussed by Lavranos, N. in 29 Legal Issues of Economic Integration (2002) pp. 323–333.CrossRefGoogle Scholar
18. The Procurator General observed in his opinion that the Supreme Court had already referred this question in an earlier case to the Court of Justice in its judgment of 30 October 1998 in the case of Assco Geruste and R. van Dijk v. Wilhelm Layher GmbH and Layher BV, NJ (1999) No. 84, RvdW (1998) No. 199 and NJB (1998) p. 1928 (No. 199C). The Court of Justice had answered the question in the same way as in the present case, i.e., the Court of Justice had in general held that ‘the provisions of TRIPs […] are not as such to create rights upon which individuals may rely directly before the courts by virtue of Community law’ (ground 44 of the judgment). The Court of Justice continued in the same vein as in answer 2 in the present case as regards the situation in which Community had already legislated (ground 47 of the judgment). The Court of Justice then held in finding of law 48 that ‘in a field in respect of which the Community has not yet legislated and which consequently falls within the competence of the Member States, the protection of intellectual property rights, and measures adopted for that purpose by the judicial authorities, do not fall within the scope of Community law. Accordingly, Community law neither requires nor forbids that the legal order of a Member State should accord to individuals the right to rely directly on the rule laid down by Art. 50(6) of TRIPs or that it should oblige the courts to apply that rule of their own motion’ (judgment of 14 December 2000, case C-392/98 and C-300/98 (joined cases of Assco v. Layher and Dior v. Tuk), ECR (2000) p. 1–11307, NJ (2001) No. 403, discussed, inter alia, in 95 AJIL (2001) p. 661 and by Kellog, M.W. in ‘Art. 50 lid 6 TRIPS: vluchten kan niet meer’ [Art 50(6) TRIPs: there's no way out], IER (2001) pp. 151–156.Google Scholar
The Court of Justice based its ruling in the joined Assco - Dior cases regarding the situation in which the Community had already legislated (ground 47 of the judgment) on that which it had already formulated in ground 28 of its judgment in the Hermes case (judgment of 16 June 1998, C-53/96, ECR (1998) p. I-3603, NJ (1999) No. 240, with notes by Verkade, D.W.F., Snijders, H.J. and Alkema, E.A., NIPR (1998) No. 309Google Scholar, also discussed in BYIL 1998) pp. 411–412. In this judgment the Court of Justice also held that the Dutch interim decision should be regarded as a provisional measure as referred to in Art. 50 of TRIPs. The Court of Justice did not at that time express a view on the direct effect of Art. 50. The judgments of the Court of Justice have also been discussed in Direct Effect. Rethinking a Classic of EC Legal Doctrine, by D.O.A. Edwards (p. 9), J. Wouters and D. van Eeckhoutte (pp. 219–223) and P.J. Kuiper (pp. 259–260), (Groningen: Europa Law Publishing, 2002).
19. It is clear that the Supreme Court implicitly adopted the findings of the Court of Justice regarding the direct effect. In its judgment of 20 March 2001 the Supreme Court explicitly quoted from the Assco - Dior judgments of the Court of Appeal (see above at n. 5), thereby rejecting an application based on the WTO Agreement on the application of sanitary and phytosanitary measures (NJ (2001) No. 411, NJB (2001) p. 777 (No. 83), LJN No. AB0605). As regards the national completion of the Assco - Dior cases themselves, the Supreme Court no longer had any opportunity to express a view on this issue. In the Dior case the question was no longer raised before the Supreme Court (judgment of 27 September 2002, LJN No. AE4433). The Assco case was cancelled on 22 November 2002.
20. Note by P.J. Boon. LJN No. AA8448 <www.rechtspraak.nl>. Partially reproduced in NJB (2000) p. 2194 (No. 236C) and in NTBR (2001) p. 161 with note by G.E. Maanen. Discussed by de Haan, J. in ‘Een restrictief toelatingsbeleid t.a.v. Antillianen’ [A restrictive admission policy towards Antillians], NJB (2001) pp. 583–585.Google Scholar
21. P.B. 1966 No. 17, last amended in P.B. 1997 No. 237. For a description of the relevant restrictions see under Facts.
22. Art. 12 reads: ’1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence … 4. No one shall be arbitrarily deprived of the right to enter his own country’.
23. ETS No. 46; Trb. 1964 No. 15. Art. 2(1) reads: ‘Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence’. Art. 3(2) reads: ‘No one shall be deprived of the right to enter the territory of the state of which he is a national’.
24. Art. 2(2) reads: ‘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.’
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.’
25. 993 UNTS p. 3; ILM (1967) p. 360; Trb. 1969 No. 100. Art. 2(2) reads: ‘The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.’
Art. 6(1) reads: ‘The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.’
26. 213 UNTS p. 221; ETS No. 5; Trb. 1951 No. 154. Art. 14 reads: ‘The enjoyment of the rights and freedoms set forth in the Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.’
27. TAR-Justitia (1999) p. 159.
28. He argued there that the interpretation which the Joint Court of Appeal had put on the relevant articles of the Convention was not incorrect in view of the reservations made by the Netherlands. The Joint Court of Appeal held, among other things, as follows. ‘The Kingdom of the Netherlands consists constitutionally of more than one country. In the context of the rights in question the territory of these countries should be regarded as separate territory. As regards Art. 2 and Art. 3(2) of Protocol No. 4 to the European Convention for the Protection of Human Rights and Fundamental Freedoms express provision is made to this in Art. 5(4) of this Protocol; see also Art. 2 of the Act approving the Convention of 10 March 1982 and the Dutch declaration on the occasion of the ratification of the Protocol. As regards Art. 12 of the International Covenant on Civil and Political Rights the Kingdom of the Netherlands has made a reservation and declaration to this effect. The Government of the Kingdom wished to put beyond doubt that Art. 12 of the International Covenant on Civil and Political Rights did not mean that lawful residence in one country of the Kingdom would confer entitlement to admission to the other (op. cit. p. 40).’
29. Note by L. van Bergen and H. den Haan.
30. Note by A.B. Terlouw.
31. Note by H. Battjes.
32. 189 UNTS p. 137; Trb. 1951 No. 131, amended by Protocol of 31 January 1967. 606 UNTS p. 267; Trb. 1967 No. 76. Art. 1A(2) 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 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.’
33. Art. 15 reads: ‘(1) 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. (2) Admission may be refused only for important reasons in the public interest if such refusal would force the alien to proceed forthwith to a country as defined in paragraph 1.’
34. Mentioned in 31 NYIL (2000) p. 277.
35. X. was admitted as refugee and married in the Netherlands in 1995 with Z.
36. Trb. 1990 No. 11. Art. 12, Territorial application of the Agreement, reads: ‘With regard to the Kingdom of the Netherlands this agreement shall apply to the territory of the Kingdom of the Netherlands in Europe.’
37. The SEC is the competent authority pursuant to Art. 1 of the Agreement and the Securities Board pursuant to Order of the Minister of Finance of 8 December 1995, Stb. 1995 No. 624.
38. ING appealed in cassation against this judgment to the Supreme Court. However, as ING failed to enter the case in the cause list and submitted the amending writ too late, the Supreme Court refused to grant judgment in default against the Securities Board, which had not entered an appearance, and then declared that the appeal was terminated (judgment of 13 October 2000, LJN No. AA7483).
39. Note by Y. Buruma; LJN No. ZD2712 <www.rechtspraak.nl>.
40. 28 ILM (1989) p. 493; Trb. 1989 No. 97. For the text of Art. 17(3) see under Held.
41. ORCTIS is the Central Anti-Drug Trafficking Agency.
42. The Supreme Court used the Dutch translation.
43. In his opinion the Procurator General inferred from the documents that the British authorities had given written consent to the Dutch authorities to board the vessel in international waters for the purpose of carrying out an arrest and also that the British authorities had participated with the Dutch and French authorities in monitoring the ship when it returned from Morocco. In his opinion, this could be said to constitute a tacit consent for the use of the tracking beacon at sea.
44. Note by A.R. Bloembergen.
45. Note by G.E. van Maanen.
46. Note by H.P.J.A.M. Hennekens; summarised and discussed by van Maanen, G.E. in NTBR (2000) p. 407Google Scholar; see also LJN No. AA5860.
47. Note by P.J.J. van Buuren.
48. The 15-metre-tall windmill was placed on a 37.5-metre foundation pile anchored in the seabed. The windmill was to be used to take measurements of wind speed and wind direction. The foundation pile would also be used to measure wave action and energy.
49. JM (2001) No. 128, with note by C. Lambers. Discussed by Ree, P. v.d. in ‘De “civilisering” van de Noordzee: deel II’ (The “civilising” of the North Sea: part II), JM (2002) pp. 725–731 at pp. 725–726.Google Scholar
50. Stb. 1996 No. 645, last amended by Act of 15 November 2000, Stb. 2000 No. 510. This is presumably a reference to Art. 2. Under Art. 2 of the Act a licence is necessary for the establishment of works in waters managed by the central government. For this purpose waters include the territorial sea and, as in the present case, the exclusive economic zone. The Netherlands announced an exclusive economic zone by Act of 27 May 1999. This Act took effect on 28 April 2000, cf., 31 NYIL (2000) pp. 248–249, and also 32 NYIL (2001) pp. 229–230.
51. The President of the Trade and Industry Appeals Tribunal had dismissed on 26 September 2001 an application by Greenpeace for an interim injunction staying the effect of the decisions of the Minister of 10 and 11 July. It was evident from the judgment that it had not been until 25 July that Greenpeace had submitted an application for a licence under Art. 2 of the Rijkswaterstaat Works Management Act for the relevant windmill and subsequently for a wind park. The President considered, in particular, that it had not been shown that the site in dispute was the only suitable site for the placement of windmills. Nor had it been shown that as a result of the decision concerned that there had been interference with fundamental oceanographic or other scientific research as referred to in Art. 5 of the Convention on the Continental Shelf of 1958 (JM (2002) No. 12, with note by C. Lambers, LJN No. AD 4782, <www.rechtspraak.nl>).
52. 499 UNTS p. 311; Trb. 1959 No. 126. Art. 5(1) reads: ‘The exploration of the Continental shelf and the exploitation of its natural resources must not result in any unjustifiable interference with navigation, fishing or the conservation of the living resources of the sea, nor result in any interference with fundamental oceanographic or other scientific research carried out with the intention of open publication.’
53. The windmill and the foundation pile were removed by Takmarine, a specialised offshore company, on the instructions of Greenpeace on 31 July.
54. Note by D.W.F. Verkade. According to Verkade, this was the first time that the Supreme Court had submitted questions about the interpretation of the Benelux Uniform Law on Trade Marks in the light of the First Directive directly to the European Court of Justice and not first to the Benelux Court of Justice or simultaneously to the Benelux Court of Justice and the European Court of Justice. The Supreme Court had done this most recently in its judgment of 7 February 1997 in the case of BMW v. R.K. Deenik (NJ (1997) No. 314 with note by D.W.F. Verkade), i.e., in the case of the European Court it concentrated the questions on interpretation of the Directive and in the case of the Benelux Court of Justice it concentrated on questions relating to the Benelux Uniform Law on Trade Marks. The Benelux Court of Justice then stayed its decision until the European Court had given judgment. The European Court gave judgment on 23 February 1999 (case C-63/97, ECR (1998) p. I-3603, NJ (2001) No. 134, with note by J.H. Spoor). The Benelux Court of Justice adopted the finding of the European Court to the effect that the Benelux Uniform Law should be interpreted in accordance with the Directive and gave judgment on 25 September 2000 (RvdW (2000) No. 201, NJ (2001) No. 245). The Supreme Court had made a similar split reference previously in the case of Dior v. Evora (judgment of 20 October 1995, NJ (1996) No. 682, with note by Spoor, J.H., AA (1997) p. 640Google Scholar with note by H. Cohen Jehoram). This then resulted in judgments of the European Court of 4 November 1997 (C-337/95, NJ (2001) No. 132) and of the Benelux Court of Justice of 16 December 1998 (NJ (2001) No. 133).
In the Biomild case the Supreme Court referred questions for a preliminary ruling only to the Benelux Court of Justice (judgment of 19 June 1998, NJ (1999) No. 68 with note by D.F.W. Verkade). In its turn the Benelux Court of Justice then referred questions to the European Court (judgment of 26 June 2000, RvdW (2000) No. 171 C, NJ (2000) No. 551, with note by D.W.F. Verkade).
55. Trb. 1962 No. 58; BT V-I; 704 UNTS p. 301. Art. 5(3) (old) reads: ‘The right to the mark shall lapse: […] where, without reasonable cause, no normal use has been made of the mark in Benelux territory, either by the proprietor or by a licensee, within the three years following the deposit or during an uninterrupted period of five years; in case of legal action, the court may place the whole or a part of the burden of proof of use on the proprietor of the mark; however, non-use more than six years prior to the date of the summons must be proved by the person alleging it.’
56. OJ (1989) p. L 40. Art. 12(1) reads: ‘A trademark shall be liable to revocation if, within a continuous period of five years, it has not been put to genuine use in the Member State in connection with the goods or services in respect of which it is registered, and there are no proper reasons for non-use; however, no person may claim that the proprietor's rights in a trademark should be revoked where, during the interval between expiry of the five-year period and filing of the application for revocation, genuine use of the trademark has been started or resumed; the commencement or resumption of use within a period of three months preceding the filing of the application for revocation which began at the earliest on expiry of the continuous period of five years of the non-use, shall, however, be disregarded where preparations for the commencement or resumption occur only after the proprietor becomes aware that the application for revocation may be filed.’
57. LJN No. AA9865 <www.rechstpraak.nl>.
58. See 23 NYIL (1992) pp. 388–392. See also 32 NYIL (2001) pp. 197–201.
59. Note by T. Koopmans. LJN No. ZC3693 <www.rechtspraak.nl>.
60. Note by F.F. Langemeijer.
61. Advisory Opinion on Legality of the Threat or Use of Nuclear Weapons, ICJ Rep., 1996, pp. 261–263Google Scholar. For the considerations, see under Held.
62. As summarised by the Supreme Court in its judgment in finding of law 1. The Roman figures have been added by the editor.
63. ICJ Rep. (1996) p. 266. The Court used a Dutch translation.
64. The Court used a Dutch translation.
65. 249 UNTS p. 240; Trb. 1955 No. 47.
66. NIPR (1999) No. 159; NJ kort (1999) No. 37.
67. The Court of Appeal used the Dutch translation.
68. The Church appealed in cassation to the Supreme Court, but this was cancelled on 14 December 2002.
69. Note by J.M. Reijntjes. LJN No. AD4727 <www.rechtspraak.nl>. Summarised and discussed by Myjer, E. in NJCM-Bulletin (2001) pp. 1046–1049.Google Scholar
70. Art. 7 reads: ‘Mutual legal assistance […] 7. Paragraphs 8 to 19 of this Article shall apply to requests made pursuant to this Article if the Parties in question are not bound by a treaty of mutual legal assistance. If these Parties are bound by such a treaty, the corresponding provisions of that treaty shall apply unless the Parties agreed to apply paragraphs 8 to 19 of this article in lieu thereof. […] 18. A witness, expert or other person who consents to give evidence in a proceeding or to assist in an investigation, prosecution or judicial proceeding in the territory of the requesting Party, shall not be prosecuted, detained, punished or subjected to any other restriction of his personal liberty in that territory in respect of acts, omissions or convictions prior to his departure from the territory of the requested Party. Such safe conduct shall cease when the witness, expert or other person having had, for a period of fifteen consecutive days, or for any period agreed upon by the Parties, from the date on which he has been officially informed that his presence is no longer required by the judicial authorities, an opportunity of leaving, has nevertheless remained voluntarily in the territory, or, having left it, has returned of his own free will.’
71. Art. 6 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. […] 3. Everyone charged with a criminal offence has been following minimum rights: […] (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; […]’.
72. For the text of Art. 269(1) see under Held.
73. Bouterse was chairman of the National Military Council of Suriname and as such de facto leader of the Republic from 25 February 1980 to 25 January 1988. In 1980 and 1982 he even took on the role of President for a few days.
74. LJN No. AA6305 <www.rechtspraak.nl>. For a discussion of some of the interim decisions see NJCM-Bulletin (2000) p. 789.
75. 1292 UNTS p. 31; Trb. 1976 No. 143.
76. Trb. 1993 No. 87.
77. 616 UNTS p. 79.
78. Art. 35 reads: ‘1. A witness or expert, whatever his nationality, appearing on a summons before the judicial authorities of the requesting Party shall not be prosecuted or detained or subjected to any other restriction of his personal liberty in the territory of that Party in respect of acts or convictions anterior to his departure from the territory of the requested Party. 2. A person, whatever his nationality, summoned before the judicial authorities of the requesting Party to answer for acts forming the subject of proceedings against him shall not be prosecuted or detained or subjected to any other restriction of his personal liberty for acts or convictions anterior to his departure from the territory of the requested Party and not specified in the summons. 3. The immunity provided for in this article shall cease when the witness or expert or prosecuted person, having had for a period of 15 consecutive days from the date when his presence is no longer required by the judicial authorities an opportunity of leaving, has nevertheless remained in the territory, or, having left it, has returned’.
79. LJN No. AB3001 <www.rechtspraak.nl>.
80. Art. 2a(4) reads: ‘If there are indications that certain goods, which may be used for both civil and military purposes and which are subject to an export prohibition without an authorisation of Our Minister for Economic Affairs, are or may be intended for use in connection with the development, production, handling, operation, maintenance, storage, detection, identification or dissemination of chemical, biological or nuclear weapons or the development, production, maintenance or storage of missiles capable of delivering such weapons to a target, Our above-mentioned Minister may determine by decision that the export of goods without authorisation is prohibited.’
81. OJ (1994) No. L 367/1 and 8.
82. According to the Minister, the compressor was intended for J, a state enterprise. J. was said to be closely linked to I, which was working under the direction of K on the development and production of weapons of mass destruction and ballistic missiles. J. had placed the order for the delivery with F/G. A. had taken over the contract for the delivery from F/G. The Minister had also noted that F. sold almost all its goods to companies in Pakistan and in particular to I. F. was evidently anxious to prevent as far as possible disclosure from its records of who had ordered the goods and to whom they had been delivered.