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CASE OF
EL MAJJAOUI & STICHTING TOUBA MOSKEE v. THE NETHERLANDS
(Application
no. 25525/03)
JUDGMENT
(Strike
out)
STRASBOURG
20
December 2007
This
judgment is final but may be subject to editorial revision.
In the case of El Majjaoui & Stichting Touba Moskee v. the
Netherlands,
The
European Court of Human Rights, sitting as a Grand Chamber composed
of:
Mr J.-P. Costa, President,
Mr C.L.
Rozakis,
Sir Nicolas Bratza,
Mr B.M.
Zupančič,
Mr P. Lorenzen,
Mrs F. Tulkens,
Mr I. Cabral Barreto,
Mr C. Bîrsan,
Mrs N. Vajić,
Mrs M.
Tsatsa-Nikolovska,
Mr V. Zagrebelsky,
Mrs E. Steiner,
Mr S.
Pavlovschi,
Mrs A. Gyulumyan,
Mrs L. Mijović,
Mr E.
Myjer,
Mr David Thór Björgvinsson, judges,
and Mr V. Berger, Jurisconsult,
Having
deliberated in private on 13 June and 28 November 2007,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
- The
case originated in an application (no. 25525/03) against the Kingdom
of the Netherlands lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Moroccan national, Mr
Lamaiz El Majjaoui (“the applicant”), and a foundation
with legal personality under Netherlands law, Stichting Touba Moskee
(“the applicant foundation”), on 18 August 2003. Where
the text of this judgment concerns the applicant and the application
foundation jointly, they will be referred to as “the
applicants”.
- The
applicants were represented first by Mr J.A. Platteeuw, succeeded by
Mr F.R. Heijstek, both lawyers practising at the same law firm in
Middelburg. The Dutch Government (“the Government”) were
represented by their Agent, Ms J. Schukking, of the Ministry of
Foreign Affairs.
- The
applicants alleged that the refusal to issue a work permit to the
applicant in order for him to work as imam for the application
foundation constituted an unjustified interference with their right
to freedom of religion as guaranteed by Article 9 of the Convention
and was also in violation of Article 18 of the Convention.
- The
application was allocated to the Third Section of the Court (Rule 52
§ 1 of the Rules of Court). On 14 February 2006 it was
declared admissible by a Chamber of that Section composed of the
following judges: Mr B.M. Zupančič, Mr J. Hedigan, Mr C.
Bîrsan, Mrs M. Tsatsa-Nikolovska, Mr V. Zagrebelsky, Mr E.
Myjer and Mr David Thór Björgvinsson, and also of Mr V.
Berger, Section Registrar. On 7 December 2006 the Chamber, excluding
Mrs Tsatsa-Nikolovska but including Mrs A. Gyulumyan,
relinquished jurisdiction in favour of the Grand Chamber, neither of
the parties having objected to relinquishment (Article 30 of the
Convention and Rule 72).
- The
composition of the Grand Chamber was determined according to the
provisions of Article 27 §§ 2 and 3 of the Convention and
Rule 24 of the Rules of Court.
- The
applicants and the Government each filed a memorial on the merits.
- A
hearing took place in public in the Human Rights Building,
Strasbourg, on 13 June 2007 (Rule 59 § 3).
There appeared before the Court:
(a) for the Government
Ms J.
Schukking, Agent,
Ms N. Hoogstrate,
Ms L.J.A. van
Amersfoort, Advisers;
(b) for the applicants
Mr F.
Heijstek, Counsel,
Mr M. Krijger, Adviser,
Mr L.
El Majjaoui, Applicant,
Mr M. Bouzambou, Chairman of
the applicant foundation,
Mr F. Bouzambou, Employee of the
applicant foundation.
The
Court heard addresses by Mr Heijstek and Ms Schukking as well as
their replies to questions put by judges.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Facts as submitted by the parties
- The applicant was born in 1965 and lives in Flushing.
The applicant foundation, also based in Flushing, operates a mosque
in Flushing serving Muslim believers belonging to the local Moroccan
community.
- On
2 December 1999 the applicant foundation applied, via the District
Employment Services Authority (Regionaal Bureau voor de
Arbeidsvoorziening), for a work permit
(tewerkstellingsvergunning) under the Foreign Nationals
(Employment) Act (Wet Arbeid Vreemdelingen), which would allow
it to appoint the applicant as its imam.
- On
30 October 2000 the General Directors of the Employment Services
Authority (Algemene Directie voor de Arbeidsvoorzieningen), to
whom the application had been forwarded, gave a decision refusing
such a permit. It was considered that since the job vacancy had not
been reported, it had to be assumed that there was an adequate supply
of priority labour (i.e. nationals of member States of the European
Union or the European Economic Area, or others with equivalent status
as regards residence and the right to work, possessing the requisite
qualifications). In addition, it had not been shown that the
applicant would earn the statutory minimum wage. Furthermore, it had
not been demonstrated that the applicant foundation had made
sufficient efforts to fill the position with priority labour
available on the labour market, for example by advertising the
position in the local and national press.
- The
applicants lodged an objection with the General Directors of the
Employment Services Authority on 29 November 2000. It was stated,
among other things, that the applicant had already been admitted to
the Netherlands in November 1998, so that section 8 (1) (d) of the
Foreign Nationals (Employment) Act did not apply to him, and that it
was well known that there was a severe shortage of imams in the
Netherlands.
- The
General Directors of the Employment Services Authority gave their
decision on 19 September 2001. It was found that the applicant
foundation had not investigated the labour market at the time when
the application for a work permit was made, and that moreover the
vacant position had not been reported to the Employment Services
Organisation (Arbeidsvoorzieningsorganisatie) at least five
weeks before the date of the application. The applicant had
previously been admitted to the country to work as a teacher of
religion, not as an imam, and although the applicants had submitted a
draft contract of employment naming a sufficient monthly wage it was
not stated that this wage was linked to the statutory index. The
information supplied by the applicants as to the alleged shortage of
suitably qualified persons on the Netherlands and European Union
labour markets was not persuasive. Finally, two training
establishments for imams existed in the Netherlands; it had not been
shown that the applicant foundation had tried to recruit its imam
from one of these.
- The
applicant appealed to the Regional Court (arrondissementsrechtbank)
of The Hague on 16 October 2001 and submitted his grounds of appeal
on 29 November 2001. So did the applicant foundation, as a “third
party” with an interest in the decision. It was stated, among
other things, that already in September or October 1999 the applicant
foundation had made unsuccessful attempts to find a suitable imam
through the Labour Exchange (Arbeidsbureau). Given the
unreasonable length of time taken up by the pending proceedings (by
this time, nearly two years already) and in the absence of any other
candidate for the position, the applicant had in the meantime started
work as the imam of the applicant foundation's mosque, to the
satisfaction of all concerned. Moreover, the applicants submitted
that, at the time the decision on the objection was taken, a policy
had been in force of not applying the requirement relating to the
reporting of a vacancy for a minister of religion; a failure on the
part of the applicant foundation – if failure there was –
ought therefore not to have been held against it. It was also argued
that the decision of 19 September 2001 violated Article 9 of the
Convention.
- Having
held a hearing on 30 August 2002, the Regional Court gave its
decision on 11 October 2002. The Regional Court
repeated the findings of the General Directors of the Employment
Services Authority – which had meanwhile been replaced by the
Central Organisation for Work and Income (Centrale
Organisatie voor Werk en Inkomen)
– that the applicant foundation had not sufficiently
investigated the availability of suitable alternative candidates,
that the vacancy had not been reported to the Employment Services
Organisation at least five weeks before a work permit was applied
for, and – notwithstanding the submission of a bank statement
and proof of payment in kind (viz. free housing) – that it had
not been demonstrated that the applicant was entitled to the
statutory minimum wage. Whether or not the failure to report the
vacancy could have been used as an independent ground for the refusal
of the work permit, the fact remained that that failure contributed
to the conclusion that the applicant foundation had in any event not
sufficiently investigated the availability of alternative candidates.
As to Article 9 of the Convention, the Regional Court found that any
interference that might have occurred was prescribed by law and
necessary in a democratic society for the protection of public order
– an expression construed by the Regional Court as encompassing
the labour market.
- The
applicant and the applicant foundation each lodged appeals with the
Administrative Jurisdiction Division of the Council of State
(Afdeling Bestuursrechtspraak van de Raad van State) on 27
November 2002. They alleged that the Regional Court had erred in
finding that the vacancy for a qualified imam had not been duly
reported to the Employment Services Organisation. Prior to the
application for a work permit, efforts had been made to find an imam
with residence rights through the informal circuit, as was customary
in the case of Moroccan imams. It was only after the Labour Exchange
had failed to produce a suitable candidate that the applicant's name
had been put forward and a work permit applied for. The applicant was
being paid the statutory after-tax minimum wage, but the tax
authorities were refusing to accept payment of the various
withholding taxes and social-security contributions. Of the two
institutions in the Netherlands which trained imams, one had ceased
its activities because it was not recognised by the muslim community
in the Netherlands and the other did not train imams capable of
functioning within Moroccan religious communities. Finally, the
applicant foundation invoked Article 9 of the Convention.
- Having
held a hearing on 17 February 2003, the Administrative Jurisdiction
Division gave its decision on 28 February 2003. The applicants were
held not to have corroborated with documentary evidence their
allegation that the applicant foundation had sought to find a
suitably qualified imam prior to lodging the application for a work
permit, nor had they shown sufficient diligence in trying to find
priority labour available on the labour market to fill the vacancy.
The applicants' statement that it would have been pointless for the
applicant foundation to approach the one remaining training institute
for imams operating in the Netherlands was also found to be
unsubstantiated. Article 9 of the Convention could not be construed
as entitling a religious community to employ as a teacher and
minister of religion a foreign national who did not meet statutory
requirements set for the purpose of preserving peace and public
order.
- Following
the issuing of an expulsion order, the applicant returned to Morocco
on 4 August 2005.
B. Developments subsequent to the Chamber's decision to
relinquish jurisdiction in favour of the Grand Chamber
- In
a letter of 21 February 2007 the Government informed the Court that
on 27 January 2006 the applicant foundation had lodged a new
application for a work permit on behalf of the applicant. This
application had been successful and on 3 March 2006 a work permit had
been issued, valid until 6 March 2009, as the applicant
foundation had established that the conditions of sections 8 and 9 of
the Foreign Nationals (Employment) Act had been fulfilled: the
applicant foundation had showed evidence of having made sufficient
efforts to fill the position with priority labour and of having
reported the availability of the position to the Employment Services
Organisation at least five weeks before the new application for the
work permit was lodged, and had submitted an employment contract
showing that the applicant's wages met the minimum wage requirement.
In addition, on 16 November 2006 the applicant had been granted a
temporary residence permit, also valid until 6 March 2009.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Foreign Nationals (Employment) Act
- Relevant
sections of the Foreign Nationals (Employment) Act provide as
follows:
Section 2
“1. It is forbidden for an employer to
employ a foreign national in the Netherlands without a work permit.
...”
Section 8
“1. A work permit shall be refused:
a. if, for the position (arbeidsplaats)
concerned, there is a supply of priority labour available on the
labour market;
b. if the position is one whose availability
has not been reported to the Employment Services Organisation at
least five weeks before the application was lodged;
...
d. if the foreign national concerned is one
who has not been admitted [to the country] before, and who does not
earn, from the work concerned, for a period of one month a sum equal
to the minimum wage ...”
Section 9
“A work permit may be refused:
a. if the employer cannot show evidence of
sufficient efforts to fill the position with priority labour
available on the labour market;
...”
B. Practice
- From
1 February until 31 December 2001 the Central Organisation for Work
and Income followed a policy of not applying section 8 (1) (b) of the
Foreign Nationals (Employment) Act to ministers of religion.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 9 AND 18 OF THE
CONVENTION
- The
applicants claimed that they were victims of a violation of their
rights under Articles 9 and 18 of the Convention, the relevant parts
of which provide:
Article 9
“1. Everyone has the right to freedom
of ... religion; this right includes ... freedom, either alone or in
community with others and in public or private, to manifest his
religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one's religion or
beliefs shall be subject only to such limitations as are prescribed
by law and are necessary in a democratic society in the interests of
public safety, for the protection of public order, health or morals,
or for the protection of the rights and freedoms of others.”
Article 18
“The restrictions permitted under [the] Convention
to the said rights and freedoms shall not be applied for any purpose
other than those for which they have been prescribed.”
- During
the proceedings before the Grand Chamber the Government raised an
objection, submitting that, in view of intervening developments (see
paragraph 17 above), the applicants could no longer claim to be
“victims” within the meaning of Article 34 of the
Convention. Moreover, since the matter had been effectively resolved,
the application should be struck out of the Court's list of cases in
accordance with Article 37 § 1 (b) of the Convention.
A. The parties' submissions
1. The applicants
- The
applicants submitted that the legislation at issue – making the
issuing of a work permit to a minister of religion dependent on the
fulfilment of certain requirements – as well as the application
of that legislation to their particular case contravened their
Convention rights guaranteed by Articles 9 and 18.
- They
submitted that they could still claim to be “victims” of
the alleged violations and opposed the striking-out of the
application. They were of the opinion that the work permit that had
been granted could not erase the fact that sections 8 and 9 of the
Foreign Nationals (Employment) Act were incompatible with Articles 9
and 18 of the Convention. The initial refusal of a work permit, based
on those provisions, had resulted in the applicant foundation being
forced to terminate the applicant's contract of employment on 28
February 2003, the date on which the Administrative Jurisdiction
Division of the Council of State had upheld that refusal. Even though
the applicant had stayed on in the Netherlands for some time after
that and lived off gifts from the community, he had effectively been
deprived of his work as an imam, and the local Moroccan community had
been deprived of an imam, until the work permit was finally issued.
Moreover, the breaches of the Convention had not been acknowledged
and neither had any redress been offered, both being conditions
which, according to the Court's case-law, had to be met before a
decision or measure favourable to the applicants could divest them of
their “victim” status (see Eckle v. Germany,
judgment of 15 July 1982, Series A no. 51, pp. 30-31, § 66).
2. The Government
- In
view of the fact that the applicant had now been issued a work
permit, the Government argued that the applicants could not still be
considered “victims” within the meaning of Article 34 of
the Convention, for two reasons. Firstly, the applicant,
notwithstanding the absence of the required permits, had apparently
worked for the applicant foundation as an imam until his departure
from the Netherlands at the beginning of August 2005. Secondly, and
as far as the eight-month period during which the applicant did not
work for the applicant foundation was concerned, the Government
submitted that victim status could not arise as a result of
individuals failing to complete certain formalities in time. The
situation that had arisen was entirely the result of negligence on
the part of the applicants and they were thus not victims of acts or
omissions by the authorities.
- The
Government further argued that the case had, in any event, been
resolved and requested the Court to strike it out of its list of
cases in accordance with Article 37 § 1 (b) of the Convention.
B. The Court's assessment
- After
the Chamber's decision to relinquish jurisdiction in favour of the
Grand Chamber (7 December 2006), the Government brought a new fact to
the attention of the Court: the applicant foundation had lodged
another application for a work permit on 27 January 2006, which
application had been successful and had resulted in such a permit
being issued to the applicant on 3 March 2006. The Court observes
that the applicants did not see fit to apprise it of this
development. The Government argued that, with the applicant now being
allowed to work as imam for the applicant foundation, the applicants
could no longer claim to be “victims” within the meaning
of Article 34 of the Convention.
- As
pointed out by the applicants, the Court held in the aforementioned
Eckle judgment that a decision or measure favourable to the
applicant was not sufficient to deprive him of his status as a
“victim” unless the national authorities acknowledged,
either expressly or in substance, and then afforded redress for, the
breach of the Convention (see also Amuur v. France,
judgment of 25 June 1996, Reports 1996-III, p. 846, § 36;
Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI;
Labita v. Italy [GC], no. 26772/95, § 142, ECHR
2000-IV; and Ilaşcu and Others v. Moldova and Russia (dec.)
[GC], no. 48787/99, 4 July 2001). However, the Court's
case-law also shows that it will examine events that have occurred
subsequent to the lodging of an application with a view to
determining whether the case should be struck out of its list on one
or more of the grounds set out in Article 37 of the Convention,
notwithstanding the fact that the applicant can still claim “victim”
status (see Pisano v. Italy (striking out) [GC], no. 36732/97,
§ 39, 24 October 2002), or even irrespective of the question
whether the applicant can still claim such status (see Sisojeva
and Others v. Latvia (striking out) [GC], no. 60654/00, §
96, ECHR 2007-...; Association SOS Attentats and De Boëry v.
France (dec.) [GC], no. 76642/01, § 41, ECHR 2006-...).
- Indeed,
in the instant case, the Court does not consider it necessary to
reach a conclusion on the question whether the applicants can still
claim to be “victims” of a violation of Articles 9 and 18
of the Convention. In the light of the new developments brought to
its attention since 21 February 2007 (see paragraph 18 above), the
Court considers that, for the reasons set out below, there is no
objective justification for continuing to examine these complaints
and that it is thus appropriate to apply Article 37 § 1 of the
Convention, which provides as follows:
“The Court may at any stage of the proceedings
decide to strike an application out of its list of cases where the
circumstances lead to the conclusion that
(a) the applicant does not intend to pursue
his application; or
(b) the matter has been resolved; or
(c) for any other reason established by the
Court, it is no longer justified to continue the examination of the
application.
However, the Court shall continue the examination of the
application if respect for human rights as defined in the Convention
and the Protocols thereto so requires.”
- In
order to ascertain whether Article 37 § 1 (b) applies to the
present case, the Court must answer two questions in turn: first,
whether the circumstances complained of directly by the applicants
still obtain and, second, whether the effects of a possible violation
of the Convention on account of those circumstances have also been
redressed (see Pisano, cited above, § 42, Sisojeva and
Others, cited above, § 97). In the present case, that
entails first of all establishing whether the refusal to allow the
applicant to work as imam of the mosque operated by the applicant
foundation persists; after that, the Court must consider whether the
measures taken by the authorities constitute sufficient redress for
the applicants' complaint.
- As
to the first question, it is not in doubt that there is no longer any
question of the applicant being prevented from working as imam of the
mosque operated by the applicant foundation and of the foundation not
being allowed to employ him in that capacity.
- As regards the second question, the Court considers
that the mere fact that the applicant foundation had to comply with
certain requirements before it was able to employ the applicant does
not as such raise an issue under Article 9. The Court agrees with the
former Commission that that provision does not guarantee foreign
nationals a right to obtain a residence permit for the purposes of
taking up employment in a Contracting State, even if the employer is
a religious association (see Hüsnü Öz v. Germany,
no. 32168/96, Commission decision of 3 December 1996). After all, the
Convention does not lay down for the Contracting States any given
manner for ensuring within their internal law the effective
implementation of the Convention. The choice as to the most
appropriate means of achieving this is in principle a matter for the
domestic authorities, who are in continuous contact with the vital
forces of their countries and are better placed to assess the
possibilities and resources afforded by their respective domestic
legal systems (see Swedish Engine Drivers' Union v. Sweden,
judgment of 6 February 1976, Series A no. 20, p. 18, §
50; Chapman v. the United Kingdom [GC], no. 27238/95, §
91, ECHR 2001-I; and Sisojeva and Others, cited above, §
90).
- Since
a work permit has been granted and the applicant is now lawfully
employed by the applicant foundation, the Court considers, in the
light of all the relevant circumstances of the case, that their
complaints have been adequately and sufficiently remedied (see,
mutatis mutandis, Sisojeva and Others, cited above, §
102).
- Having
regard to the above, the Court finds that both conditions for the
application of Article 37 § 1 (b) of the Convention are met. The
matter giving rise to the applicants' complaints can therefore now be
considered to be “resolved” within the meaning of Article
37 § 1 (b). Finally, no particular reason relating to respect
for human rights as defined in the Convention requires the Court to
continue its examination of the application under Article 37 § 1
in fine.
- Accordingly,
the application should be struck out of the Court's list of cases.
II. APPLICATION OF RULE 43 § 4 OF THE RULES OF COURT
- Rule
43 § 4 of the Rules of Court provides:
“When an application has been struck out, the
costs shall be at the discretion of the Court. ...”
- The
applicants, in their claims under Article 41 of the Convention,
sought reimbursement of costs and expenses incurred in attempting to
forestall and/or secure redress for the alleged violations of the
Convention both through the domestic legal system and in the
proceedings before the Court to a total amount of 59,881.36 euros
(EUR). In so far as can be ascertained from the documents submitted,
the sum claimed in respect of the Strasbourg proceedings amounted to
EUR 27,590.66 for the first applicant and EUR 19,091.79 for the
applicant foundation, that is a total of EUR 46,682.45
- The
Government considered that the costs claimed for legal representation
seemed excessive.
- The
Court reiterates that the general principles governing reimbursement
of costs under Rule 43 § 4 are essentially the same as under
Article 41 of the Convention (see Pisano, cited above, §§
53-54). In other words, in order to be reimbursed, the costs must
relate to the alleged violation or violations and be reasonable as to
quantum. Furthermore, under Rule 60 § 2 of the Rules of Court,
itemised particulars of any claim made under Article 41 of the
Convention must be submitted, together with the relevant supporting
documents or vouchers, failing which the Court may reject the claim
in whole or in part (see, for example, Lavents v. Latvia,
no. 58442/00, § 154, 28 November 2002).
- In
addition, it is clear from the structure of Rule 43 § 4 that,
when the Grand Chamber makes a decision on the award of expenses, it
must do so with reference to the entire proceedings before the Court
(see Sisojeva and Others, cited above, § 133). However,
in the present case the Court notes that when the decision to
relinquish jurisdiction was taken – on 7 December 2006 –,
the applicant had already been in possession of a work permit for
some nine months.
- Having
regard to the information in its possession and to the criteria set
out above, the Court considers it reasonable to award the applicants
jointly EUR 5,000 for costs and expenses.
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank to
which should be added three percentage points.
FOR THESE REASONS, THE COURT
- By fourteen votes to three holds that the matter
giving rise to the applicants' complaints has been resolved and
decides to strike the application out of its list of cases;
- Holds unanimously
(a) that the respondent State is to pay the applicants
jointly, within three months, EUR 5,000 (five thousand euros) for
costs and expenses, plus any tax that may be chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points.
Done in English and in French, and delivered at a public hearing in
the Human Rights Building, Strasbourg, on 20 December 2007.
Vincent Berger Jean-Paul Costa
Jurisconsult President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the joint dissenting opinion of Mr
Zupančič, Mr Zagrebelsky and Mr Myjer is annexed to
this judgment.
J.-P.C.
V.B.
JOINT DISSENTING OPINION OF JUDGES ZUPANČIČ,
ZAGREBELSKY AND MYJER
1. We
did not vote with the majority to strike the application out of the
Court's list of cases. In our opinion the result of this case –
as far as the applicant foundation (Stichting Touba Moskee) is
concerned – shows that an extensive application of the criteria
established in paragraph 97 of the judgment in the case of Sisojeva
and Others v. Latvia ((striking out) [GC], no. 60654/00, ECHR
2007-...) may lead to an undesirable outcome.
- We
can accept that the position of Mr El Majjaoui may be compared with
that of the applicants in the Sisojeva case. As far as this applicant
is concerned the case is essentially about the admission of a foreign
national to the domestic labour market. According to the standard
case-law, the Contracting States have a legitimate interest in
controlling the entry, residence and expulsion of aliens. Article 9
of the Convention does not as such guarantee foreign nationals a
right to obtain a residence permit for the purposes of taking up
employment, even if the employer is a religious association (see,
mutatis mutandis, Hüsnü Öz v. Germany, no.
32168/96, Commission decision of 3 December 1996). We agree with the
conclusion of the majority that since he is now allowed to stay in
The Netherlands and a work permit has been issued, the matter giving
rise to his complaints may be considered to have been resolved within
the meaning of Article 37 § 1 (b).
- We
have, however, serious doubts that the same can be said about the
applicant foundation. Is the fact that Mr El Majjaoui was eventually
issued a work permit enough to conclude that this was adequate and
sufficient to remedy or resolve the initial complaint of the
applicant foundation? The case of the applicant foundation should, in
our opinion, not be considered solely as one involving the admission
of a foreign national to the domestic labour market. In certain
circumstances a measure which results in a religious community being
prevented from appointing the minister of religion of its choice may
constitute an interference with that community's rights under Article
9, even if the minister concerned is a foreign national. And looking
at the facts of this case it is clear that between 28 February 2003
(the date on which the Administrative Jurisdiction Division of the
Council of State upheld the refusal to issue a work permit to the
applicant) and 3 March 2006 (the date on which a work permit was
issued) the applicant foundation – and the local Moroccan
community – were effectively deprived of the services of the
imam they had sought to employ. Is it acceptable to simply disregard
what happened in the past and conclude that everything has now been
remedied and resolved?
- It is not unrealistic to think that the Chamber
relinquished jurisdiction to the Grand Chamber so that it would
determine the issue whether it was acceptable from the standpoint of
Article 9 for a Contracting State to apply the same requirements for
the delivery of a work permit to a foreign national who is invited to
work as a religious minister as to foreign nationals who work in
other professions. Is it permissible under Article 9 that a
Contracting State, which according to the Court's abundant case-law
has the duty of neutrality as regards the regulation of religious
groups, should require that the foreign national who is to be
appointed as a religious minister must earn the statutory minimum
wage (see in respect of The Netherlands: Ineke Hendrickx and Tessel
de Lange, Toelating van vreemdelingen voor verblijf bij religieuze
organisaties (“Admission of aliens for the purpose of
residence with religious organisations”), Wolf Legal
Publishers, Centrum voor Migratierecht, WODC Ministerie van Justitie
2004)? And does Article 9 stand in the way of a Contracting State
requiring, as far as religious ministers are concerned, that an
employer first make sufficient efforts to fill the post by recourse
to the domestic labour market, for example by advertising the
position in the local and national press? Can such a requirement be
considered legitimate when regard is had to the fact that in the
choice of a religious minister/pastor/rabbi/imam much will depend on
whether the religious community would have confidence in the person
concerned? The answer given by the majority in paragraph 32 (“The
Court considers that the mere fact that the applicant foundation had
to comply with certain requirements before it was able to employ the
applicant does not as such raise an issue under Article 9”)
does little to clarify these issues.
- We have no difficulty in accepting that some
requirements should be complied with even in such cases. And it is
also clear that the restrictions laid down in paragraph 2 of Article
9 may apply. From the standpoint of Article 9 the central issue in
the present case calls for an examination of the legitimacy of the
requirements imposed and a determination of those conditions which
are objectionable. In our opinion the Court should have examined the
merits and should have tried to give a clearer answer to these
questions.
