We Beatrix, by the grace of God, Queen of the Netherlands, Princess of Orange-Nassau, etc. etc. etc.
On the recommendation of Our Minister of Justice dated 2 June 1994,
Public Law Legislation Department no. 438577/94/6;
Having regard to Section 21, subsection (1) of the Equal Treatment Act; Having heard the opinion of the Council of State dated 18 July 1994, No. W03.94.0322); Having seen Our Minister's report to the Queen dated 20 July 1994, Public Law Legislation Department no. 449747/94/6;
Have approved and decreed:
CHAPTER 1. GENERAL PROVISIONS
Article 1
For the purposes of this decree the following definitions apply:
a. the Act: the Equal Treatment Act;
b. Commission: the Equal Treatment Commission, referred to in Section 11(1) of the Act;
c. division: one commissioner or a number of commissioners or substitute commissioners designated pursuant to Section 11(2) of the Act from the Commission, charged with investigating cases and issuing opinions;
d. chairman: the chairman of the Commission;
e. secretary: the secretary of the Commission;
f. petition: a written petition, referred to in Section 12(1) of the Act;
g. petitioner: a person who has filed a petition, as referred to in Section 12(2) of the Act;
h. respondent: a party alleged to have discriminated in the manner referred to in the Act, the Equal Treatment (Men and Women) Act or Section 1637ij of the Dutch Civil Code;
i. person involved: a person referred to in Section 12(3) of the Act, who has not expressed in writing that he has reservations about his involvement in an investigation.
Article 2
1. The rules pertaining to the procedures of the Commission also apply to the procedures of divisions.
2. The person constituting a single-commissioner division and the chairman of a multiple-commissioner division have the powers assigned to and the obligations imposed on the chairman.
Article 3
1. On the request of a party or a person involved individual commissioners handling a case may be challenged on the grounds of facts or circumstances which might affect his impartiality as a commissioner.
2. On the same grounds referred to in the preceding paragraph individual commissioners handling a case may request to be excused.
3. Sections 8:16 through 8:20 of the General Administrative Law Act shall apply mutatis mutandis on the understanding that if there is no multiple-commissioner division or no other multiple-commissioner division or if the Commission deals with the case in plenary, the request will be decided by the other members of the Commission.
Article 4
The Commission may grant derogations from the time-limits referred to in chapter 2, provided that disposal of the request within a reasonable period is still ensured.
CHAPTER 2. INVESTIGATION AND ASSESSMENT PROCEDURES
Division 1. Bringing a case before the Commission
Article 5
1. A petition shall contain:
- the name and address of the petitioner;
- the name and address of the respondent, if any and where possible;
- a description of the discrimination alleged to have occurred or to be occurring as referred to in the Act, the Equal Treatment (Men and Women) Act or Section 1637ij of the Dutch Civil Code.
2. A petition filed by a petitioner referred to in Section 12(2)(e) of the Act shall furthermore show that the petitioner can be considered an association or foundation which in accordance with its articles represents the interests of those whose protection is the objective of the Act, the Equal Treatment (Men and Women) Act or Section 1637ij of the Dutch Civil Code.
3. The Commission shall cause the date of receipt to be endorsed on the petition and acknowledgement of receipt to be sent to the petitioner. Unless the contrary is proved, this date is considered the filing date of the petition.
Article 6
If the petition does not satisfy the requirements laid down in Article 5(1) or (2), the Commission may decide not to investigate the case, provided that the applicant has had the opportunity to correct the omission within a stipulated period.
Article 7
1. If the petition has been filed by a petitioner referred to in Section 12(2) sub (d) or (e) of the Act and the petition mentions persons alleged to have been wronged, the Commission shall send a copy of the petition to said persons stating that the Commission intends to institute an investigation in response to the petition which will also involve them, and asking them whether they have reservations about such involvement.
2. The Commission shall set a time-limit for the answer, and during this period the persons referred to in the first paragraph will not be involved in the investigation.
3. If a person informs the Commission in writing within the time-limit set by the Commission that he has reservations about his involvement in the investigation, this person shall not be involved in the investigation.
4. The Commission shall inform the petitioner and the respondent of the fact that the investigation will not relate to any persons referred to in paragraph 3.
5. If subsequently, in the course of the investigation or at the hearing, a person referred to in the first paragraph informs the Commission in writing that he has reservations about his involvement in the investigation, said person shall henceforth be left out of the investigation and the opinion.
Article 8
1. The Commission will take up petitions unless Section 14 of the Act or Article 6 of this Decree is applicable.
Division 3. The investigation
Article 9
1. As soon as possible after receiving a petition the Commission informs the petitioner of the fact that the petition will be taken up.
2. The Commission sends the respondent a copy of the petition. At the same time the Commission may ask questions and demand that documents as referred to in Section 19(1) of the Act be submitted.
3. The petitioner, the respondent and persons involved shall be informed of the further course of the proceedings and of the composition of the division if the Commission refers the handling of a case to a division.
Article 10
1. Within four weeks from the date on which he was sent the petition the respondent shall send the Commission a defence stating his view and the grounds on which it is based and shall provide the answers to the questions put to him and send in the requested documents.
2. A copy of the defence shall be sent to the petitioner as soon as possible.
Article 11
The Commission may request the parties and others to provide further written information and to send in documents in their possession within a period to be set by the Commission.
Article 12
The Commission may summon the parties and others to appear in person or represented by an authorized agent to be interviewed for the purpose of providing information. If not all the parties are summoned, the parties who have not been summoned shall be given the opportunity to attend the interview and to give explanations concerning the case.
Article 13
The Commission may appoint one or more experts to institute an investigation and may request the experts to issue a report within a period to be set by the Commission.
Article 14
1. The Commission may carry out an investigation on the spot.
2. The Commission may, to the extent reasonably necessary to discharge its duties, access any and all locations with the exception of dwellings without the occupier's permission.
Article 15
Reports shall be drawn up of any interviews of persons referred to in Article 12 and of the findings on any investigation on the spot referred to in Article 14.
Article 16
Prior to the hearing the Commission shall send the parties copies of all documents on which it will base its decision.
Division 4.The hearing
Article 17
1. The hearings of the Commission are open to the public.
2. The Commission may decide on its own initiative or on the request of a party to hold a closed hearing, if there is serious cause to do so.
3. Said cause shall be stated in the report of the hearing.
Article 18
1. After closing the investigation referred to in division 3, the Commission summons the parties to the hearing or gives them the opportunity to give further, oral explanations of the positions they have taken.
2. The Commission shall set the place, date and time of the hearing at least three weeks in advance and cause the parties and persons involved to be notified thereof. The date shall be set within a reasonable time after the written procedure or the further investigation.
Article 19
1. Prior to the hearing all documents relating to the handling of the case shall be made available at the secretariat of the Commission for inspection by the parties and persons involved for at least one week.
2. Notice of the fact that the documents are available for inspection shall be given simultaneously with the notice of the hearing.
Article 20
1. The Commission may call witnesses and experts to the hearing to provide information. The parties will be informed of the Commission's intention to do so prior to the hearing.
2. The Commission may appoint interpreters.
3. The parties to and persons involved in the case may bring along witnesses and experts to the hearing for the purpose of having them heard by the Commission.
4. If a party or person involved wishes to use the right mentioned in paragraph 3, this is permitted only if they have stated the names and capacities of the witnesses or experts to the Commission and to the other party at least one week before the hearing.
Article 21
1. The hearing is opened, chaired and closed by the chairman.
2. The parties may put questions to each other through the intermediary of the chairman. Both the chairman and the other commissioners may examine the parties.
3. Witnesses and experts may be examined by the chairman and the other commissioners, and by the parties through the intermediary of the chairman.
4. The Commission may examine witnesses in the absence of other witnesses who have not been examined yet.
Article 22
1. On its own initiative or on the request of one of the parties the Commission may decide for serious cause to hear the parties in each other's absence or to hear witnesses in the absence of the parties.
2. Said serious cause shall be recorded in the report of the hearing.
3. The absent party shall be informed by the Commission of what was stated in its absence and be given the opportunity to comment thereon.
Article 23
The Commission may suspend the examination at the hearing. When doing so, it may direct that the investigation referred to in Articles 11 through 14 be resumed.
Article 24
1. A report shall be drawn up of everything that happens in relation to the case at the hearing.
2. The report shall be signed by the chairman and the secretary.
Section 5. The proceedings in camera
Article 25
The deliberations of the Commission are held in camera.
Article 26
1. The Commission may decide to reopen the investigation.
2. It shall inform the parties of the decision to reopen the investigation as soon as possible after deliberating on the case.
Section 6. The opinion
Article 27
1. The Commission shall adopt an opinion within eight weeks of the hearing.
2. The opinion of the Commission shall be based exclusively on what has been put forward at the hearing and the documents in respect of which Article 19 has been applied.
3. The opinion shall state the names of the commissioners who have pronounced it.
4. The opinion shall be signed by the chairman and the secretary.
Article 28
The opinions of the Commission, which may be accompanied by recommendations, are public. For privacy protection purposes the Commission may omit the names of the persons concerned from copies of opinions to be released to others than the parties.
Section 7. Accelerated procedure
Article 29
1. If a case is urgent, the Commission may decide that it will be dealt with under the accelerated procedure.
2. If the Commission decides that a case will be dealt with under the accelerated procedure, it shall also fix the date on which the hearing will take place as soon as possible and notify it to the parties without delay. Derogation from the three-week period mentioned in Article 18(2) above is permitted.
3. A copy of the petition shall be sent to the respondent with the request to file a defence no later than one week before the hearing. After receiving the defence, the Commission shall send the petitioner a copy. Article 7 and division 3 of this Decree apply mutatis mutandis insofar as possible.
4. Article 19 of this Decree applies mutatis mutandis except that the documents will be available for inspection for two days.
Article 30
If in the course of handling the case it becomes clear to the Commission that it is not sufficiently urgent to justify accelerated proceedings or that the case needs to be handled under the normal procedure, it will direct that the case shall be handled under the normal procedure.
Section 8. Simplified procedure
Article 31
1. If a petition relating to the Act, the Equal Treatment (Men and Women) Act or Section 1637ij of the Dutch Civil Code founds a presumption of manifest discrimination, the Commission may, upon taking up the case, decide to use the simplified procedure.
2. The Commission will pronounce its opinion after it has given the respondent the opportunity to respond to the petition within two weeks after being sent the petition.
3. If the defence gives the Commission cause to doubt the manifest nature of the discrimination, it shall direct that the case shall be handled under the normal procedure.
CHAPTER 4. FINAL PROVISIONS
Article 32
If the Commission conducts an investigation on its own initiative as referred to in Section 12(1), second sentence, of the Act, then Article 7 and Articles 9 through 28 apply mutatis mutandis.
Article 33
This Decree comes into force on the day on which the Equal Treatment Act comes into effect.
Article 34
This Decree may be cited as: Equal Treatment Commission (Procedures) Decree.
We hereby order and command that this Decree and the accompanying Explanatory Memorandum be published in the Bulletin of Acts and Decrees.
The Hague, 29 July 1994
Beatrix
The Minister of Justice,
A. Kosto
Issued on the sixteenth of August 1994
The Minister of Justice,
A. Kosto
EXPLANATORY MEMORANDUM GENERAL PART
The Equal Treatment Act (hereinafter referred to as: "the Act") provides in Section 21(1) that further rules concerning the working methods of the Commission shall be laid down by general administrative order. The Act provides expressly that in any event rules must be laid down concerning the manner in which cases are to be dealt with, hearing both parties, the public conduct of hearings and the publication of its opinion as referred to in section 13, subsection.
The present Equal Treatment Commission (Procedures) Decree implements this provision.
The legislature considered it highly important that persons who believe they have been discriminated against can apply in a simple manner to an independent government agency charged with the supervision of compliance with the Act. This was the basic principle underlying the establishment of the Equal Treatment Commission. The positive experience gained with the Equal Employment Opportunities Commission played an important role in the decision to establish the Commission.
For the purpose of carrying out its task to help enforce the Act the Commission has been assigned a number of duties and powers. Apart from its other tasks its first and foremost duty is to investigate and assess whether a specific conduct conflicts with the Act, the Equal Treatment (Men and Women) Act or Section 1637ij of the Civil Code. In this respect the legislature intends the Commission to constitute an attractive and easily accessible alternative for judicial decisions. For example, obtaining an opinion of the Commission will usually entail considerably lower costs for the parties involved without the risk of being ordered to pay costs. The low cost for the parties is connected with the fact that there is no mandatory legal representation and that no administrative or court fees are charged and furthermore with the relative expedition with which proceedings before the Commission can be brought to an end.
On the one hand this decree wishes to avoid having a negative effect on the easy accessibility - also in the Commission's procedures - of the remedy, while on the other hand - this is self-evident - the prescribed procedures must be such as to safeguard in particular the parties' rights to hear and be heard.
The Rules of Procedure of the Equal Employment Opportunities Commission were taken as the starting-point for drafting this decree. In practice, so it has appeared, these existing Rules of Procedure have generally worked satisfactorily.
Nevertheless there are important differences between the present decree and the Rules of Procedure just mentioned. These are due among other things to the fact that in the case of the new Commission the further rules concerning working methods will be laid down by general administrative order, while said Rules of Procedure were laid down by the Equal Employment Opportunities Commission itself. To give an example: the Rules of Procedure provide that the Commission must establish divisions. Since the Act leaves the power to form divisions to the Commission itself (Section 11(2)), the present decree cannot provide that divisions must be established nor may it regulate the division of tasks between the plenary Commission and divisions. This will have to be done by the Commission itself. Obviously, the decree allows for the possibility that the Commission will in fact establish divisions.
In this decree, duties and powers are in virtually all cases assigned to the Commission as such, with just a few exceptions. It is the responsibility of the Commission to consider the extent to which certain aspects of its responsibilities will be entrusted by way of delegation to e.g. the chairman or the secretary.
Furthermore - this is self-evident - the General Administrative Law Act which came into force on 1 January 1994 has left its traces in this decree.
In this connection it is pointed out that the Equal Treatment Commission is an administrative body within the meaning of Section 1:1 of the General Administrative Law Act and that this Act is applicable to the Commission subject to the exception to be mentioned below.
Pursuant to the third Act amending the General Administrative Law Act (Stb. 1993, 690) no appeal to the courts lies against the decisions of the Commission. Said amendment act has placed Chapter 2 of the Equal Treatment Act, which pertains to the Commission, in the Schedule referred to in Section 8:5 of the General Administrative Law Act, except for some Sections which are irrelevant here. This means that no objection or appeal can be lodged against decisions of the Commission pursuant to the General Administrative Law Act although these would otherwise have qualified for such objection or appeal. This refers in particular to decisions not to conduct an investigation. It would be rather useless for a petitioner to appeal a decision not to conduct an investigation to the district court, since a petitioner who disagrees with a decision which has turned out negatively for him can also take the case to court in regular proceedings.
The present decree lays down rules for the procedures followed by the Commission in discharging its investigative and assessment tasks (Articles 12 and 13 of the Act). The legislature sees no cause to lay down further rules regarding the power to commence court proceedings as embodied in Section 15 of the Act. The prerequisites which the General Administrative Law Act sets in this respect are clear and it may be left to the Commission itself to decide, for example, how to ascertain whether or not the person affected by the conduct objects to court proceedings.
INDIVIDUAL ARTICLES
Article 1
Article 1 gives a number of definitions. Most of these are self-evident.
The definition of a division (sub (c)) allows for the possibility that the Commission may decide to establish not only multiple-commissioner divisions, as is presently the case, but also divisions consisting of a single commissioner.
Pursuant to Section 12 of the Act, in addition to the person who believes he has suffered discrimination, there are also other persons who may request the Commission to conduct an investigation. This opportunity is afforded to the works council of the company or the civil service joint consultative committee of the branch of service, as the case may be, in which the discrimination is alleged to occurs (Section 12(2)(e)) and to an association or foundation which pursuant to its articles represents the interests of the persons whose protection is the objective of the Equal Treatment Act etc. (Section 12(2)(e)). If a petition filed by any of the aforementioned institutions names persons allegedly disadvantaged, the Commission must inform these persons of its intention to conduct an investigation. The Commission may not involve persons in the investigation if they have stated in writing that they have reservations about such involvement. The definition of the term "person involved" refers to persons who have not expressed such reservations.
Article 2
As stated above, it rests with the Commission to decide whether or not to establish divisions from its midst to perform its task. This decree lays down further rules for the working methods of the Commission. The first paragraph of this Article declares the provisions embodied in this decree also applicable to the procedures of any division. Legal certainty and clarity require that the same procedures are followed irrespective of the fact whether a case is handled by the plenary Commission or a division formed from amongst its members.
The second paragraph then provides that a commissioner forming a single-commissioner division and the chairman of a multiple-commissioner division have the same powers and obligations which the chairman of the Commission has pursuant to this decree. See in this connection Articles 21 and 24 of this decree.
Article 3
If a party or person involved holds that facts or circumstances exist which may prevent a commissioner from forming an impartial opinion, such party or person involved must be able to challenge the commissioner in question. This principle is embodied in the first paragraph. On the same grounds a commissioner must be able to request to be excused, so the second paragraph provides.
Paragraph 3 then declares Articles 8:16 through 8:20 of the General Administrative Law Act applicable mutatis mutandis. One of the reasons to opt for a system of challenge and recusal similar to that of the General Administrative Law Act is the fact that Section 16(4) of the Act, which relates to the supervision of the commissioners, follows the arrangement applying to the judiciary.
Briefly stated the challenge procedure is as follows.
Parties and persons involved must substantiate their petition challenging a commissioner with reasons and initially make it in writing. If parties or witnesses have been interviewed in the course of the investigation, the challenge may also be made orally. The same applies after the Commission has commenced examining the case at the hearing. If a commissioner is challenged at the hearing, the hearing will be stayed.
If the case is investigated by a division, the challenge will be dealt with in another - multiple-commissioner - division of which the challenged commissioner is not a member. If there is no (other) multiple-commissioner division or if the case is investigated by the plenary Commission, the other commissioners will deal with the challenge. The challenger and the commissioner challenged are given the opportunity to be heard. This may or may not be done in each other's absence. A - reasoned - decision must be given on the challenge as soon as possible.
The procedure for dealing with a request for recusal proceeds along similar lines. Such a request must initially also be filed in writing. It may be made orally after the examination at the hearing has commenced or after the Commission has started interviewing parties or witnesses in the investigation prior to the hearing. A request for recusal is dealt with either by a multiple-commissioner division of which the commissioner in question is not a member, or by the plenary Commission. A decision must be given on the request as soon as possible.
For the record it is furthermore observed that no remedies are available against decisions on a challenge or a request for recusal.
Article 4
Various Articles of chapter 2 mention time-limits. Article 13(2), for example, refers to the time-limit for filing the defence. Circumstances may occur which make it advisable to derogate from the time-limits mentioned in the decree. For a procedure before the Commission, which is characterized by its easy accessibility and relatively informal nature, such an occasional derogation need not meet with objections.
This Article grants the Commission this power, subject to the condition however that the disposal of the petition within a reasonable period is still ensured.
Articles 5 and 6
Except for investigations on the Commission's own initiative, investigations by the Commission are commenced by a written petition.
Article 5(1) lays down the elements which the petition must - in any case - contain.
If a petition is filed in accordance with Section 12(2)(e) of the Act by an association or foundation which pursuant to its articles promotes the interests of the persons for whose protection the Act etc. intend to provide, this association or foundation must prove that it can be considered such an organization.
If a petitioner has not or not properly complied with the provisions of Article 5, the Commission may decide not to institute an investigation provided that it has given the applicant an opportunity to correct the omission within a stipulated period. It is not mandatory for the Commission to make this decision. It stands to reason that the nature of the omission will be a factor in its decision-making on this point.
Article 7
This Article refers to cases where the petition is not filed by the party allegedly disadvantaged by the challenged discrimination, but by a works council as referred to in Section 12(2)(d) or an association or foundation as referred to in Section 12(2)(e) of the Act.
If such a petition names persons alleged to have been disadvantaged, then pursuant to Section 12(3) of the Act the Commission may not involve these persons in the investigation and opinion if they have declared in writing that they have reservations about such involvement.
The Commission must inform said persons in writing that it intends to institute an investigation and must set them a time-limit for stating that they do not wish to be involved in the investigation. If they have not replied within the specified time-limit or if they communicate that they have no reservation about their involvement, then the Commission may involve them in the investigation and the opinion. As was explained above, the term "parties involved" is used to refer to such persons.
It cannot be ruled out that in the course of the investigation or at the hearing a person involved wishes to reconsider his earlier decision not to express reservations. If he then expresses his reservations in writing, he will henceforth be left out of the investigation and the opinion.
Article 8
The Commission will take up petitions, unless it decides not to institute an investigation in accordance with Section 14 of the Act or Article 6 of this decree. Pursuant to said section of law the Commission will not institute an investigation if the petition is manifestly unfounded, if the interest of the petitioner or the importance of the behaviour concerned is manifestly insufficient or if the period of time which has elapsed since the discrimination in question took place is such that an investigation can no longer reasonably be conducted. It is left to the Commission to determine how it arrives at the decision on this matter. It is also left to the Commission to develop, where necessary, more specific criteria for use in taking such a decision.
Articles 9 and 10
The investigation commences with a written procedure. The respondent receives a copy of the petition. The Commission's role in the investigation is not passive but active. This manifests itself, for example, in the possibility for the Commission, when sending a copy of the petition to the respondent, to ask the respondent questions which have arisen in the Commission and to which it wishes to receive the respondent's answers. Article 10(1) sets the term within which the respondent must react at four weeks.
In this connection attention is also drawn to Section 19 of the Act. Pursuant to Section 19(1) the Commission and the persons referred to in Section 17 of the Act who are designated by the Commission for such purpose may call for all the information and documents which may reasonably be considered necessary for the performance of its duties. Pursuant to subsection (2) of this Section everyone shall be obliged, unless they are exempt on the grounds of official or professional confidentiality, to provide the information and documents required in full and in accordance with the truth. Non-observance of this obligation is punishable under Section 184 of the Penal Code. The obligation does not apply if, in this way, a person would expose himself or any relative by blood or affinity in the direct line or in the collateral line of the second or third degree, or his spouse or former spouse to the risk of conviction for a serious offence. This provision, which links up with Section 191(4) of the Code of Civil Procedure, has been included because no-one may be forced to cooperate towards his own conviction or the conviction of his relatives by blood or affinity.
Articles 11-15
After it has received the defence the Commission has two options. It may come to the conclusion that based on the petition, the defence and the answers to any questions it has asked or the documents furnished the facts are sufficiently clear and all necessary information is available. The investigation may then be continued at the hearing.
If on the other hand the Commission holds that the facts are not yet sufficiently clear or that further information is required, it may conduct another investigation. It has several possibilities for doing so which are mentioned successively in Article 11 (submission of further written information), Article 12 (interviewing the parties or other persons), Article 13 (appointment of one or more experts) and Article 14 (investigation on the spot). These possibilities are self-evident.
Attention is further drawn to Article 15 which provides that reports must be drawn up of interviews with persons as referred to in Article 12 and of the findings of investigations on the spot as referred to in Article 14. It seems advisable to leave it to the Commission to decide whether it will give the other party or the parties, respectively, the opportunity to be present at such interviews or investigations on the spot. In order to do justice to the principle of "hearing both parties" the findings must in any case be made known to the other party or to the parties.
Article 16
In order to enable the parties to inspect all documents on the basis of which the Commission will decide the case, copies will be sent to the parties before the hearing.
Article 17
Articles 17 through 24 deal with the hearings of the Commission and the procedure at the hearings.
Article 17(1) lays down the basic principle that the hearings of the Commission are open to the public. Paragraph (2) provides, since this possibility is mandatory, that the Commission may decide either on its own initiative or on request to hold a closed hearing. The Commission may only decide to do so if it considers this necessary for serious reasons. It is the responsibility of the Commission to decide whether such reasons exist. Pursuant to the third paragraph these reasons must be stated in the report of the hearing.
Article 18
One of the reasons for holding a hearing is that it gives the parties an opportunity to explain their positions once again, orally. In order to give the parties the opportunity to prepare themselves there should be a certain amount of time between the date for which the hearing is set and the day when the parties are notified of this date. Pursuant to Article 18(2) the Commission will determine place, date and time of the hearing at least three weeks in advance. This time span must be considered sufficient to give the parties the opportunity, as stated above, to prepare themselves.
Article 19
The requirement that all documents relating to the assessment of the case must be made available for inspection by the parties and persons involved is particularly important for the latter category. The parties are sent the documents based on which the Commission will decide the case.
Article 20
Not only during the investigation conducted prior to the hearing but also at the hearing itself the Commission must be able to obtain information from witnesses or experts. If the Commission intends to do so, it stands to reason that the Commission informs the parties of this intention. The parties and persons involved must likewise have the opportunity to have their positions further substantiated by witnesses or experts called by themselves. To safeguard a proper procedure at the hearing, they must state the names and capacities of the witnesses or experts to the Commission and the other party at least one week before the hearing.
Articles 21 and 22
These Articles chiefly lay down rules for the procedure for examining parties, witnesses and experts. These may be questioned by the chairman and the other commissioners. In addition. the parties may also question each other as well as the witnesses and experts. To safeguard due process as much as possible, questioning by the parties is effected through the intermediary of the chairman. For witness statements to be unprejudiced it may be important that witnesses, before being examined themselves, are not present at the examination of other witnesses. Article 21(4) refers to the possibility for the Commission to achieve this.
There may be circumstances which make it advisable for the Commission to examine the parties in the absence of the other party or to examine witnesses in the absence of the parties. Article 22(1) provides for this possibility. The Commission may decide to do so on its own initiative or on the request of one of the parties. The Commission may take such a decision only for serious reasons. The Commission sees to it that these reasons are recorded in the report of the hearing.
In connection with the principle of hearing both sides the absent party must be informed of the allegations made in its absence. Furthermore, so Article 22(3) provides, this party must be given the opportunity to comment on these allegations.
Article 23
It may happen that at the hearing the Commission comes to the conclusion, for example because of a witness statement, that there are points which are unclear and cannot be clarified without further investigation or a further exchange of documents. Article 27 gives the Commission power to stay the examination at the hearing and to resume the investigation referred to in Articles 11 through 14. The stayed proceedings will be resumed when the desired clarity has been obtained.
Article 24
It is self-evident that a report will be drawn up of everything that happens in relation to the case at the hearing. It is sufficient for the report, which is signed by the chairman and the secretary, to give a concise account of proceedings.
Article 25
After the chairman has closed the hearing, the Commission continues handling the case in camera. The Commission's deliberations in camera are not open to the public.
Article 26
Even when the case is being deliberated in camera, that is: after the hearing was closed, the Commission may still come to the conclusion that there are still points which are unclear and cannot be clarified without further investigation, whether or not at a hearing. Article 26(1) gives the Commission the possibility to reopen the investigation. If it is an investigation as referred to in Articles 11 through 14, it will not be necessary to hold another hearing, provided that the Commission has ensured that both parties have had the opportunity to comment on the result of the further investigation. If this is not the case, it seems proper to hold a second hearing.
Naturally, the parties will be informed as soon as possible of the decision to reopen the investigation.
Article 27
If the Commission considers the case to have been sufficiently investigated, it determines its opinion.
Article 27(1) prescribes a time-limit of eight weeks.
Paragraph (2) stipulates that this opinion must be based exclusively on what has been alleged at the hearing and the documents in respect of which Article 23 has been applied. This means that the opinion will be based exclusively on that which both parties - and the persons involved - knew or could have known.
Pursuant to Section 13(1) of the Act the opinion is forwarded in writing and with reasons to the petitioner, the respondent and the persons involved.
Article 28
The opinion of the Commission and the recommendations referred to in Section 13(2) of the Act are open to the public. For privacy protection purposes the Commission may omit the names of the persons concerned from copies of the opinion to be released to others than the parties to the case. This was the usual procedure followed in publishing the opinions of the Equal Employment Opportunities Commission. The collections of the opinions of this Commission had a subject register indicating who filed the petition and in which sector the case took place. It is left to the discretion of the Commission how to act in this respect in individual cases.
Articles 29 en 30
Although the procedures of the Commission are aimed at a reasonably expeditious completion of investigations, situations may occur in which it is important that the Commission issue a decision without delay and in which the normal procedure would take too much time. This may occur, for example, when the petitioner believes that he threatens to become the victim of unlawful discrimination in a selection or dismissal procedure. A respondent, however, may also be in a situation in which he has an interest in the case being settled promptly.
Article 29 provides an accelerated procedure for such cases. Although this is not a precondition, the initiative for the accelerated procedure will generally come from one of the parties. It is at the discretion of the Commission to determine whether the case is so urgent as to call for accelerated proceedings (para. (1)).
An essential feature of the accelerated procedure is that the date for the hearing is fixed immediately (para. (2)). In fixing this date the Commission is not bound by the three-week time-limit of Article 18(2).
The time-limit for filing a defence is likewise different. The defence must have been received by the Commission one week before the hearing at the latest (para. (3)). The period during which the documents must be available at the secretariat for inspection may also be shorter. Instead of the minimum term of one week prescribed by Article 19, inspection during two days is sufficient in the accelerated procedure.
It may happen that the Commission, after deciding to deal with a case under the accelerated procedure, comes to the conclusion after all that the case is not sufficiently urgent to justify an accelerated procedure or that the case needs to be dealt with under the normal procedure. This may happen in reaction to the defence or the examination of the case at the hearing. The defence may, for example, show that the issue is complex and that a more or less extensive investigation or an expert opinion is required to be able to assess the case properly. Upon further inquiry the case may also prove to lack sufficient urgency. The Commission may still direct, then, that the case will be handled under the normal procedure.
Article 31
It is not the urgent nature but the obviousness of the case which constitutes the ground for the simplified procedure embodied in this Article. If the Commission, when taking up a petition, suspects that manifest discrimination has occurred, it may decide to apply the simplified procedure (para. (1)). The Equal Employment Opportunities Commission developed this procedure and included it in its Rules of Procedure after practical experience had shown that a need was felt for such a procedure. In particular the numerous petitions concerning employment advertisements caused this Commission to introduce the simplified procedure in those days.
Briefly stated the procedure is that the Commission issues an opinion after the respondent has been given the opportunity to file his defence, and that contrary to the normal procedure and the accelerated procedure no hearing is held (para. (2)). The time-limit for filing the defence is reduced to two weeks.
On the basis of the defence the Commission may go back on its initial view that it is a case of manifest discrimination. If it does so, it will as yet direct that the case will be dealt with under the normal procedure, including the examination at a hearing therefore.
Article 32
Pursuant to Section 12(1), second sentence, of the Act, the Commission may investigate on its own initiative, that is: not based on a petition, whether there is systematic discrimination within the meaning of the Equal Treatment Act etc. in the public service or within one or more sectors of society. The relevant provisions of this decree apply mutatis mutandis to such an investigation and the opinion to be issued.
Article 33
Unless an earlier date of entry into force is laid down by Royal Decree, the Equal Treatment Act and this Decree shall enter into force on 1 September 1994.
The Minister of Justice,
A. Kosto
By virtue of Section 25a, subsection 5 read with subsection 4 sub b, of the Council of State Act the opinion of the Council of State is not published.