GW Law School Public Law and Legal Theory Paper No.

2016-50
GW Legal Studies Research Paper No. 2016-50

Regulation and the courts: judicial review in

comparative perspective

Francesca Bignami

COMPARATIVE LAW AND REGULATION: UNDERSTANDING THE GLOBAL REGULATORY

PROCESS, Francesca Bignami & David Zaring eds., Edward Elgar, 2016

This paper can be downloaded free of charge from the Social Science Research
Network: [Link]

Electronic copy available at: [Link]

Regulation and the courts: judicial review in comparative
perspective

Francesca Bignami

Chapter 10 in: Comparative Law and Regulation: Understanding the Global Regulatory Process
(Francesca Bignami & David Zaring eds., Edward Elgar 2016)

INTRODUCTION

The public law of government intervention in economy and society has a long history that has
been driven by the politics of democratization and state formation and that has had profound
consequences for the legitimacy and effectiveness of the contemporary administrative state. In
large part, this public law has been identified with judicial review and the courts: on what grounds
will a court find the decisions of the political and administrative organs of the state to be
unlawful? At the same time, a considerable body of comparative scholarship has sought to
capture variation in judicial redress in different legal systems. The premise of much of the
comparative scholarship is that liberal societies can share roughly similar commitments to
principles such as the rule of law and fundamental rights but can seek to safeguard such principles
through different types of courts and legal doctrines. The thought is that, by appreciating the
differences, it is possible to obtain a better understanding of the legal and political operation of
government policymaking both at home and abroad and to engage in constructive thinking on
the proper design of law, courts, and the administrative state.
This chapter is designed as both a review of the comparative literature on judicial review
and as an original contribution to that literature. It presents two important contrasts that have
been drawn between systems of public law in western countries and proposes a third based on

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Bignami—Regulation and the Courts

my own research. The purpose is to develop a comparative blueprint that can help the reader
navigate public policymaking and the courts in different jurisdictions across the globe. While the
three classifications covered in this chapter overlap in certain respects, they are mostly
complementary, not competing, and therefore taken together they create a multi-dimensional
and fairly complete picture of the landscape of judicial review. Most of the discussion applies
broadly to the activities of the administrative state, not specifically to the regulatory function,
since the public law of most countries does not expressly draw such distinctions. Mindful,
however, of the larger purposes of this volume, the chapter also highlights the implications for
regulation where appropriate.
The chapter proceeds as follows. The next section presents one of the first and most
enduring contrasts that has been drawn between systems of public law and judicial review:
judicial review of administrative action by the ordinary courts in the English common law and by
a special body (Conseil d’Etat) connected to the executive branch in the French droit
administratif. Initially identified by the English scholar A.V. Dicey in the late nineteenth century,
the common law–droit administratif divide has since been re-examined and re-assessed by
several generations of comparative scholars (Dicey, 1885; Goodnow, 1893; Garner, 1924;
Schwartz, 1949; Mitchell, 1965; Brown and Garner, 1967; Breyer, 1993; Brown and Bell, 1998).
The following section turns to the difference between the litigious and formal American system
of law and public policy and the informal and discretionary European policy process. These
categories of difference are largely the brainchild of Robert Kagan and his theory of American
“adversarial legalism” (1991, 1994, 1997, 2001), although they have also been developed in
rational-choice scholarship on policymaking in the American presidential system of government
and European parliamentary systems (Moe and Caldwell, 1994; Epstein and O’Halloran, 1999:
242–44; Thies, 2001; Jensen and McGrath, 2011; Rose-Ackerman et al., 2015; Rose-Ackerman et
al., this volume). In the last section, I propose a third major contrast between systems of public
law in the regulatory domain: judicial review informed by theories of fundamental economic and
social rights in Europe, as illustrated by the doctrines of proportionality and equality, and judicial
review designed to promote a democratic and participatory administrative process in the United
States, what I call the “ballot-box democracy” paradigm of public law. I argue that this divide has

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Bignami—Regulation and the Courts

the potential to extend to other jurisdictions in light of the global diffusion of written
constitutions and constitutional courts (Ginsburg, 2008). In exploring the three classifications of
national systems of judicial review, each section examines their historical origins and draws out
their normative implications. Each section also considers the implications of these
classifications—developed in the more general context of the administrative state—specifically
for regulation, which is defined in the sense of this book as rule-based governance by specialized
administrative authorities under the supervision of the legislature, the political executive, and
the courts.
Before continuing, one point of clarification is in order. The first question that is likely to
come to mind is where this discussion of judicial review fits in the conventional breakdown of the
legal discipline―constitutional or administrative law? Although the distinction may seem
obvious, as it turns out, different jurisdictions and the different subfields themselves employ their
own criteria to delineate what law is covered. While constitutional lawyers tend to include
anything that is contained in a particular source of law, that is, the Constitution, administrative
lawyers focus on the law that is applied to a particular type of government institution, that is,
public administration. But the focus of this volume and chapter is neither a legal source nor a
government institution. Rather it is a particular domain of state activity, i.e., regulation, which
can involve both legislative and administrative action, and how courts intervene in that domain,
which can be based upon both constitutional and secondary sources of law. With the exception
of the next section, therefore, this chapter covers both constitutional and administrative law. The
next section on the early common law–droit administratif divide is the exception because it
focuses exclusively on administrative law. The reason for the early emphasis on administrative
law is fairly simple: until World War II, administrative law was the only form of litigated public
law in most western jurisdictions, and even after World War II, when constitutional courts were
established in a number of European countries, it was decades before a thick law and practice of
constitutional adjudication took hold (Stone, 1992: 225–53).

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Bignami—Regulation and the Courts

COMMON LAW VERSUS DROIT ADMINISTRATIF

In the annals of comparative public law, the difference between administrative litigation in the
common law and the droit administratif traditions is one of oldest and most enduring sources of
debate and scholarship. In the liberal model that took hold across Europe in the late nineteenth
century, the concept of the rule of law was central (Mannori and Sordi, 2001; Stolleis, 2001). The
existence of a private sphere of liberty, separate from public power, was to be guaranteed by a
system of government that respected the rule of law: individuals enjoyed rights independent of
the state, any state action had to be authorized by law, and citizens had to be able to go to the
courts to obtain relief against overreaching state action. Yet despite the spread of the political
philosophy of liberalism, there were fundamental differences in how the rule of law was
operationalized in England and France, two of the most powerful nation states of the time. As
the English scholar A.V. Dicey famously pointed out in Law of the Constitution (1885), France had
a separate system of justice for obtaining redress against government actors in which officials
had to be sued in a special court (Conseil d’Etat) and according to a special set of legal doctrines.
By contrast, government officials in England were held accountable to the law before the same
courts and under the same legal principles as private individuals. The common law model, in
Dicey’s analysis, was clearly the better guarantor of the rule of law and the rights of individuals
(Allison, 1996: 11; Lindseth, 2005). It was also a reflection of a deep-rooted, historical divide
between the limited government and liberty-driven tradition of the common law and the
absolutism of the Continent which, in Dicey’s view, prevailed even in the face of the political
transformations of the nineteenth century. In other words, the common law model was what a
contemporary comparativist might call the “better” law (Zweigert and Kötz, 1998: 47), not just
because of the niceties of legal forms, organization, and remedies but because it was the mark
of a superior legal tradition deeply committed to individual liberties, limited government, and
the rule of law.
The common law–droit administratif divide pronounced by Dicey has been both highly
influential and enormously controversial (Allison, 1996: 19–23). Perhaps the most widely
accepted aspect of Dicey’s analysis has been his view of the historical origins of the two models.

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Bignami—Regulation and the Courts

As with many other differences between the English common law and the law of continental
Europe, the timing of the centralization of state power appears to have been critical. Compared
with continental Europe, political power was consolidated in the hands of the monarchy
relatively early in England, in some accounts as far back as the Norman Conquest (Ertman, 1997).
This early state took the form of a centralized system of law and courts but a decentralized
administration that rested on local dignitaries serving on various lay bodies and as justices of the
peace, as the office would later be called (Lovell, 1962; Van Caenegem, 1998). Although
industrialization and other social and economic pressures produced significant growth in the
administrative capacity of the state, the early configuration of centralized, common law courts
and decentralized administration remains essential to understanding the institutions of the
British state (Cassese, 2010). This is particularly true with respect to the absence of a specialized
system of administrative justice. At various junctures, the common law bar successfully resisted
pressure to transfer power over public litigation from the common law courts to an alternative
set of courts that would have had exclusive jurisdiction over claims against public actors.1
In France, by contrast, the consolidation of state power occurred almost four centuries
later, at a time when it was both technologically possible and politically necessary to develop a
centralized administration and a special jurisdiction to hear complaints against that
administration. As has been recounted by others, the origins of the Conseil d’Etat can be found
in the Ancien Régime and absolutism (Mannori and Sordi, 2001; Zoller, 2008). During the 1600s
and 1700s, royal administrators in the provinces, known as intendants, acquired greater powers
and administrative capacity as the monarchy sought to assert control over the nobility and other
local elites. One major obstacle, however, to this form of centralized administration was the
regional courts (Parlements). Composed of local dignitaries, the Parlements used their powers to
refuse the registration of royal ordinances, thereby denying them effect, and to hear complaints
against the royal administrators. In response to this interference, the monarchy sought to give a
special, central body known as the King’s Council (Conseil du Roi) exclusive jurisdiction to hear
cases against the administration. The Parlements, however, persisted in asserting jurisdiction

1
Perhaps the best known episode is the defeat of the Star Chamber during the English Revolution (Mitchell, 1965:
96–97).

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Bignami—Regulation and the Courts

over claims against the intendants and conflict between the two sets of judicial authorities
continued until the Revolution.
After the Revolution, administrative disputes continued to be heard by a special
jurisdiction connected to the executive branch, but now without competition from the courts.
The decision to establish the Conseil d’Etat, in many respects the successor to the Conseil du Roi,
was the reflection of two powerful ideological threads running through the Revolution. The first
was the delegitimization of courts because of their association with the special privileges and
powerful local elites of the Ancien Régime. The second was the glorification of the general will
and the republican form of government and the desire to shield the political expression of the
general will, in the legislature and the administration, from the meddling of the courts. The oft-
repeated aphorism that “juger est encore administrer” (to judge is still to administer) expresses
the distinctive separation of powers doctrine espoused during the Revolution and afterwards:
the balance between the three powers was at greatest risk from the judicial branch and therefore
oversight of the administration could not be entrusted to the ordinary courts but had to be vested
in a special body connected to the executive. In sum, in both the Ancien Régime and the
Revolution, centralized administration and a specialized jurisdiction to oversee administration
were essential to the consolidation of political authority, at first in the name of absolute
monarchy and later in the name of republicanism.
The configuration of administrative justice has changed considerably since Dicey first
wrote but there are still important differences in how challenges to administrative action are
brought in England and France and, more broadly, the many jurisdictions that have been
influenced by the common law and droit administratif models.2 To understand these differences,
it is necessary to briefly trace the evolution of the two systems. When it was originally established
in 1804, the Conseil d’Etat resembled more closely an executive advisory body than a full-fledged
court. By the end of the nineteenth century, however, the reverse was the case: its procedure
had been judicialized, it had acquired mandatory jurisdiction over disputes brought against the
administration, its judgments had become final and were no longer styled as recommendations

2
Australia, New Zealand, India, Ireland, and the United States belong to the common law tradition while Belgium,
the Netherlands, Luxembourg, Italy, Greece, Turkey, Lebanon, Egypt, Columbia, Morocco, Algeria, and Senegal
belong to the droit administratif tradition (Bignami, 2011: 92).

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Bignami—Regulation and the Courts

to the head of state, and its members had, as a matter of custom, acquired independence from
the government (Brown and Bell, 1998: 47–50). In a set of developments that occurred
somewhat later, the English system of administrative justice became more specialized. Beginning
in the early 1900s, administrative tribunals were established within the bureaucracy to hear
individual claims in areas such as welfare policy and labor and employment law (Cane, 2009: 30).
Although tribunal decisions were technically subject to review by the common law courts, the
system of administrative tribunals was largely free-standing, with very little interference, even
on points of law, from the ordinary courts. Just as important, a number of changes have been
made to the common law system of access to justice, discovery, and remedies to facilitate
challenges against administrative authorities, resulting in a litigation model tailored specifically
to obtaining redress against public actors (Allison, 1996: 23–29).
Despite these transformations, there remain a couple of key differences that fall into
roughly two categories―organizational and doctrinal. On the organizational front, in the
common law, challenges against the state are heard in the last resort by judges with the same
training, professional experience, and institutional safeguards as all other members of the
judiciary. These judges hear a variety of cases and enjoy all the traditional guarantees of judicial
independence, namely life tenure and removal from office only for serious disciplinary reasons.
By contrast, in the droit administratif, administrative litigation is brought before the Conseil
d’Etat, which is composed of high-status executive branch officials who not only decide cases
(adjudicatory function) but also give advice on proposed legislation and administrative rules
(regulatory function) and who regularly rotate through important departments within the
government (Fromont, 2006: 121–22).3 Unlike the judiciary, the members of the Conseil d’Etat
do not enjoy a formal guarantee of permanence in office (inamovibilité), meaning that it is
theoretically possible (but practically unthinkable) that they can be transferred from one post to
another for any reason and not only in the case of misconduct. Training is different from the
personnel selection system for the judiciary. Recruits attend the same high-status institutions of
higher learning (grandes écoles) as other administrative and political elites, which are entirely

3
Since 1953, there has also existed a full-fledged system of lower administrative courts that are charged with hearing
administrative litigation in the first instance and on appeal, and that operate somewhat differently from the Conseil
d’Etat (Morand-Deviller, 2013: 48–53).

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Bignami—Regulation and the Courts

separate from the university system and the specialization school for judges. They are selected
for the Conseil d’Etat based on the final exam administered by the École Nationale
d’Administration, the last, sequentially, of these high-status educational institutions. In other
words, by virtue of their educational background and their career paths, the state officials that
adjudicate administrative disputes in France identify less with the career judiciary and more with
the upper echelons of the state administration.
On the doctrinal front, the French model is distinctive in the extent to which
administrative law, both substantive and procedural, has been explicitly and comprehensively
informed by the specific characteristics of the public sphere and the special prerogatives, duties,
and rights that apply in the face of state action. One crucial example of this doctrinal apparatus
is the concept of service public (Allison, 1996: 66–69; Brown and Bell, 1998: 129–34, 204, 230;
Morand-Deviller, 2013: 455–98). Service public (public service) serves as a doctrinal device for
allocating cases between the ordinary and the administrative court systems. In addition,
administrative action involving a public service is subject to a special set of defenses and
liabilities. The state is authorized to take whatever measures are necessary to ensure the
continuity of the public service and to adapt the service to changing circumstances, rendering
lawful administrative action which might otherwise be considered illegal or ultra vires. At the
same time, the administration is required to treat all users of the service equally and neutrally.
In the realm of government contracts, the administration is under a duty to compensate private
parties for losses caused by any unilateral modification of contracts in the interest of the public
service. In the common law tradition, the same outcomes might very well obtain in specific cases.
However, the notions of policy discretion, expertise, the public interest, arbitrariness, and
fairness that justify those outcomes have been developed separately, in different lines of cases
involving different types of administrative litigation, and have not evolved under the single
conceptual umbrella of service public.
Moving to the procedural principles that inform litigation in the French tradition, they too
reflect the distinctiveness of public law (Fromont, 2006: 164–68). To obtain access to
administrative courts, individuals are not required to allege a particularized harm since litigation
against the state is conceived as vindicating an “objective” interest in a republican system of

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government faithful to the rule of law rather than “subjective” rights in property and liberty. In
contrast to these quite generous rules on standing, remedies have traditionally been limited,
based on the same theory of litigation as a means of achieving the proper operation of the state
rather than individual justice. In the past, the Conseil d’Etat could either annul administrative
acts or could award damages in tort litigation but did not have the tools to afford injunctive relief
to individuals or to force recalcitrant administrative authorities to comply with its judgments.
Over the past decades, the administrative courts have obtained a much wider array of remedial
powers to address the gaps and injustices caused by this situation. Overall, however, French
procedure stands in contrast with common law procedure, where individual standing and legal
remedies are patterned on the principles of individual harm and redress characteristic of private
law litigation.
Like the doctrinal and organizational composition of the two systems, the normative
assessment of their relative merits has experienced a number of twists and turns over the
decades. Dicey was emphatic that the common law stood on the side of liberty and the droit
administratif on the side of authority. This position was fairly representative of nineteenth-
century politicians and scholars. For many continental reformers, the difference between the
common law and droit administratif represented a choice between liberalism and absolutism. In
the first part of the nineteenth century, most liberal thinkers in the German states advocated
that legal control over administration be vested in the ordinary courts responsible for civil and
criminal litigation (Stolleis, 2001: 215–18; Ledford, 2004: 208–11). Indeed, in the ultimately
unsuccessful Constitution of the German Empire of 1849, the older system of purely internal and
hierarchical review of administrative decisionmaking was rejected in favor of jurisdiction
exercised by the courts: “Justice under the auspices of the administration shall cease; courts are
to decide in all matters of violations of the law.” (Article 182) In 1865, liberal currents influential
at the founding of the unified Italian state succeeded in removing responsibility for administrative
adjudication from the Italian Council of State and vesting the power to decide individual
complaints in the ordinary courts (Mattarella, 2010: 1016).4 In the common law world, Dicey’s

4
In 1890, however, judicial powers were transferred back to the Council of State at least in part because of the
ineffectiveness of the ordinary courts in curbing the growing powers of state administration (Mattarella, 2010).

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Bignami—Regulation and the Courts

assessment remained influential well into the twentieth century (Allison, 1996: 23–27). For
example, the American legal scholar Bernard Schwartz wrote in 1949:

The absence of public-law concepts, in the Continental sense, rather than being a
defect of our jurisprudence is, thus, its great strength. It enables control over
Executive action to be maintained through the same institutions that administer
the normal law of the land, and on the same basic principles of justice. It prevents
the State from placing its own officials in a privileged position by refusing to accept
the assertion that different rules are applicable to their action. (151–52)

Even at the time that Dicey first pronounced the great divide, however, there were a
number of thinkers who questioned his assessment of the two systems. As early as 1893, the
American scholar Frank Goodnow noted in his comparative study on administrative law in France,
Germany, and the United States, “the great regard which the [French] administrative courts have
for private rights” (231). The American political scientist James Garner prefaced his exposition of
the French system in the Yale Law Journal by noting the “extremely liberal and progressive
character” (1924: 597) of French administrative law and speculated that “[i]f an American may
venture to criticize its [Conseil d’Etat’s] jurisprudence he would say that it has been too
progressive” (1924: 627). In his treatise Justice and Administrative Law (1928), the English public
law scholar William Robson wrote enthusiastically of the French system, praised the emerging
system of English administrative tribunals for their expertise and flexibility, and advocated
entrusting most appeals to specialized administrative courts that were quite obviously in the
mold of the droit administratif.
The debate on which of the two models is superior continues today. Some have come
down on the side of the common law based on the absence of a jurisdictional divide between
administrative and ordinary courts, thus avoiding expensive and lengthy litigation on the
appropriate forum for hearing claims against state actors (see generally Brown and Bell, 1998:
297–99). Harking back to the nineteenth-century liberty–authority dichotomy, the European
Court of Human Rights has recently questioned whether the institution of a Council of State

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satisfies the requirement of independence that is part of the right to a fair trial (Article 6 of the
European Convention on Human Rights). In this regard, the Court has criticized the practice of
mixing regulatory and adjudicatory functions in the Council of State.5 It has also sought to reduce
the institutional presence of the Commissaire du gouvernement, a member of the Council of State
who does not actually sit in judgment but is tasked with advising the judges on the correct
outcome of the case and whose role is conceived as informing the judges on the objective state
of the law (Bell, 2010).
Others, by contrast, have highlighted the virtues of the French model. In the 1960s and
1970s, the Scottish scholar J.D. Mitchell lamented the absence in the common law of a coherent
system of public law similar to what had developed in France and went so far as to state that the
great “tragedy” of the common law was that there was no general concept of “administrative
morality” (1965: 113). His criticism was based on a number of absurdities that had been
generated in the piecemeal and evolutionary process of seeking to extend the common law to
the administrative state. In the United States, the legal scholar and now Supreme Court Justice
Stephen Breyer has suggested that a central executive body similar to the Conseil d’Etat might
be the answer to improving the quality of federal regulation (1995: 70–72). In Breaking the
Vicious Circle, Breyer wrote an early account of the failure of federal regulation to adequately
prioritize in policy areas such as public health and consumer well-being and to develop coherent
and cost-effective strategies to tackle risk. His proposed solution, a centralized group of career
bureaucrats with the power to oversee the regulatory initiatives of federal agencies,
incorporated many of the key attributes of the Conseil d’Etat. Like the Conseil d’Etat, the
executive body would have the power to review and annul draft regulations, would be staffed by
officials recruited through a rigorous selection system with technical expertise in specific areas
of regulation, and would be built on a career model in which officials regularly rotated in and out
of regulatory agencies. These institutional features would all guarantee the prestige and technical
competence of the regulatory oversight body. Although Breyer mostly drew inspiration from the
regulatory function of the Conseil d’Etat, he also suggested that his proposed oversight body

5
Procola v. Luxembourg, 326 Eur. Ct. H.R. (ser. A) (1995).

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Bignami—Regulation and the Courts

would be well suited to adjudicate legal disputes over regulation and that it might eventually
supplant or even entirely replace the jurisdiction of the federal courts (Breyer, 1995: 72).
This is not the place to weigh in on a classic debate in the comparative law literature
which, as demonstrated above, has a long history and shows no sign of abating. It is clear,
however, that the two models have important consequences for cultures of judicial review in
France, the United Kingdom, and the many jurisdictions across the world that have been
influenced by the two legal traditions. They also have ramifications specifically for regulatory
governance. One of the most significant transformations of the administrative state that has
occurred with the rise of regulatory governance is the shift from direct state intervention in
important sectors of the economy to the reliance on rules to govern a competitive private market
and to achieve some of the same policy outcomes as direct management. These rules, unlike
most of the instruments used in state ownership and industrial policy, are formal and are subject
to legal challenges from the market and civil society actors governed by the rules. Such challenges
can be expected to operate somewhat differently in the common law and the droit administratif
traditions. One difference relates to access to justice. The procedural rules of the French
tradition, aimed at safeguarding the rule of law and the republican form of government, should
make it relatively easy and quick to obtain judicial review of administrative rules. By contrast, in
the common law model, the necessity of satisfying standing requirements analogous to those
applicable in private litigation should make judicial review less widely available and less
immediate.
In addition, the organizational attributes of the two systems of adjudication are likely to
influence how rules are scrutinized. As will be recalled, the regulatory and adjudicatory functions
are institutionally mixed in the French system. The members of the Conseil d’Etat have
significant, direct experience in the upper echelons of the administration. When they serve on
the Conseil d’Etat, they are called upon, at different points in their career, both to advise on
proposed laws and regulations, and to decide on challenges to regulations after they come into
effect. Although different sections are responsible for the regulatory and adjudicatory functions,
the voluminous file generated when the rule is proposed is generally also consulted if that same
rule is subsequently challenged (Latour, 2010). This combination of functions does not mean, as

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Dicey would have it, that the Conseil d’Etat is necessarily more deferential towards state
authority; indeed it might very well be less deferential because it has professional knowledge of
regulation and administrative agencies. It does suggest, however, that arguments on the
technical and legal substance that are not squarely raised at the time of the rulemaking, both
within the government and in the context of regulatory review by the Conseil d’Etat, are less
likely to be taken seriously on judicial review. By contrast, in the common law tradition, where
the judges that decide administrative cases are generally outsiders to the rulemaking process,
arguments that were peripheral in the rulemaking process may find greater acceptance at the
time of judicial review.

ADVERSARIAL VERSUS DISCRETIONARY POLICYMAKING

In the early 1990s, scholarly attention turned to a second major split in systems of judicial review
of government policymaking, this time not between England and France but between the United
States and Europe (and for some purposes, Japan). Reflecting on the experience in the 1960s
and 1970s with law and politics in advanced democracies, Robert Kagan developed the theory of
“adversarial legalism” (1991, 1994, 1997, 2001). To make his comparative argument, Kagan drew
on a number of cross-national studies in the law-and-society tradition that examined the
operation of the administrative state on the ground in Western Europe, Japan, and the United
States. He argued that policymaking and dispute resolution in the United States in virtually every
area of social and economic life was more lawyer-driven and court-dominated than in other
democracies, which instead relied more heavily on discretionary policymaking by bureaucrats
and politicians and hierarchical dispute resolution by judges.6 His theory applies across the board
to most areas of law but has special relevance for the law of the regulatory process. Kagan
demonstrated that American legislation is more vulnerable to legal challenges, involving
aggressive lawyering, novel theories of constitutional law, and activist courts. The American
system also relies more heavily on litigants and courts for regulatory implementation and

6
The difference in “regulatory styles” was also identified by David Vogel in an early monograph on environmental
policy (1986).

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Bignami—Regulation and the Courts

enforcement than other jurisdictions, which give bureaucracies greater powers and have
relatively restrictive rules on class actions and other procedural devices that can facilitate litigant
access to courts (see also Hensler, this volume). Rulemaking in American bureaucracies is more
proceduralized and lawyer-driven than in most other countries (see also Wagner, this volume;
Smismans, this volume). Enforcement by American administrative agencies is more legalistic and
punitive. And, most relevant for this chapter, the regulatory policies enacted by the political
branches and implemented by bureaucracies are more likely to be challenged in the courts and
defeated under theories of administrative and constitutional law than in other advanced
democracies.
Kagan’s explanation for the emergence of adversarial legalism rested both on historically
deep-rooted structural and ideological differences, as well as more recent events associated with
the post-material turn taken in most western democracies in the 1960s and 1970s. To simplify a
highly nuanced account, Kagan argued that adversarial legalism was brought on by a burst in
citizen demand for public interest regulation combined with a long-standing American culture of
distrust in the state and an institutional framework of small and divided government. In contrast
with Europe, the ambitious regulatory programs of the 1960s and 1970s operated in a context of
legal and institutional fragmentation. When the new programs were designed by Congress,
implementation was not delegated exclusively to a large state bureaucracy, as was the case in
many other democracies, but to a combination of federal administrative agencies, state and local
governments, and private attorneys general with the power to enforce regulation directly, in
court. To compensate for the policy slippage created by this fragmented arrangement, Congress
wrote laws that were highly detailed on both the substance and the procedure and that would
enable private litigants to sue the different government bodies in court to enforce their statutory
mandates, namely, to obtain judicial review. Thus the legal framework for adversarial legalism
was put into place. As the conceptual label indicates, Kagan’s normative assessment was fairly
negative. He suggested that the more informal, consensual, and administratively driven system
at work in Europe was just as effective or more so at delivering policy goods and guaranteeing
social welfare, but without the cost and uncertainty generated by the many layers of lawyers,
courts, and contestation characteristic of the American system.

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At roughly the same time as Kagan wrote, a number of political scientists working in the
rational-choice tradition came to focus on the administrative law component of adversarial
legalism (McCubbins et al., 1987, 1989; Epstein and O’Halloran, 1994, 1999; Huber and Shipan,
2002). This line of inquiry elaborates on why judicial review of agency policymaking can be so
demanding in the American system and has been influential in both political science and the law.
The premise of this rational-choice scholarship is that the relationship between legislatures and
administration can be conceived as a principal–agent relationship in which the legislature
(principal) has incentives to delegate the power of policy implementation to administration
(agent) but administration, in turn, has incentives to defect from the policy preferences of the
legislature. Legislators, therefore, build into the law a number of devices to control wayward
bureaucrats. The innovation of the leading proponents of this approach, Matthew McCubbins,
Roger Noll, and Barry Weingast (McNollgast), was to conceptualize control tools broadly to
include not only statutory commands and Congressional oversight but also administrative
procedure and judicial review. McNollgast argued that, notwithstanding the outcome-neutral
appearance of many administrative procedures, they were designed to entrench legislative
bargains and to ensure that the interests that had prevailed in the legislative process would do
so also in the administrative process. In their framework, procedural requirements related to
transparency, participation, and reason-giving within the bureaucracy, and the right to enforce
such requirements through judicial review, allowed the interest groups behind the enacting
coalition to monitor and influence, either directly or through their legislators, administrative
outcomes. McNollgast captured a wide array of procedural requirements, backed by judicial
review, some of which were relatively new, for instance specific reporting requirements written
into environmental legislation, and some of which were more general and of older vintage, such
as the rulemaking provisions of the Administrative Procedure Act. The vast majority of these
requirements, conceived in rational-choice theory as principal–agent control instruments, were
also among those blamed by Kagan for adversarial legalism.
Most of the rational-choice scholarship on regulatory design is focused specifically on the
United States and the relationship between federal administrative agencies and Congress. A few
scholars, however, have engaged in comparative analysis to highlight and explain the relative

15
Bignami—Regulation and the Courts

absence elsewhere of formal procedural safeguards in the regulatory process, together with a
reduced role for courts and judicial review (Moe and Caldwell, 1994; Epstein and O’Halloran,
1999: 242–44; Thies, 2001; Strøm 2003; Jensen and McGrath, 2011; Rose-Ackerman et al., 2015;
Rose-Ackerman et al., this volume). They focus on the different strategic incentives that exist in
the institutional context of American presidentialism—an important aspect of fragmented
American government—and parliamentarism, the form of government prevalent in Europe and
much of the rest of the world. In line with principal–agent theory, procedural constraints on
administrative action are conceptualized as a device for locking in political deals when policy
implementation is delegated to administrative actors. Although the accounts vary, they converge
on a couple of characteristics of parliamentary government that make procedural rights and
judicial review a less likely strategy of political control for legislatures. First, when the same
majority party or coalition of parties controls both the legislature and the government, the
likelihood of defection is lower: administrative agencies have fewer opportunities and face less
pressure to defect from the legislative bargain since they report only to one political principal
and not to the multiple principals of Congress and the President (especially problematic in
periods of divided government). Secondly, formalization is a costly mechanism for entrenching
political deals because it reduces administrative flexibility, imposes cumbersome and time-
consuming procedures, and introduces third-party monitors in the form of interest groups and
the courts which themselves may be a source of principal–agent slack. Thirdly, there exist
alternative, less costly forms of control in parliamentary systems, such as the political
appointment of ministers and junior ministers who can monitor the work of bureaucracies and
can, in the case of a multiparty coalition, ensure that the coalition agreement rather than any
one party in the coalition prevails in the administrative policymaking process. Fourthly, because
of the concentration of legislative power in the governing coalition or majority party,
administrative procedure operates as a relatively ineffective and therefore unlikely instrument
of control in parliamentary systems: even if a particular legislature did enact administrative
procedure, a subsequent legislature would be likely to quickly undo it, incentivized by the limited
benefits and extensive costs of procedure described above.

16
Bignami—Regulation and the Courts

Among those who have considered the ramifications of this institutional difference for
comparative public law, the work of Susan Rose-Ackerman is among the most significant. In an
earlier study on German and American environmental policy (1995: 125–33) and recent research
on policymaking procedure in a number of legal systems (Rose-Ackerman et al., 2015; Rose-
Ackerman et al., this volume), she has argued in favor of American rulemaking procedure and
judicial review. The normative argument closely dovetails the positive, rational-choice analysis:
in her theoretical account, transparency, participation, and reason-giving in the administrative
process, backed by judicial review, enable both legislators and citizens to oversee administrative
agencies and therefore render executive policymaking democratically accountable. At the same
time, Rose-Ackerman argues that procedure and judicial oversight ensure that bureaucrats will
make decisions in a technically competent fashion that comports with means–ends rationality.
Returning full circle to the more general differences traced by Robert Kagan between American
adversarial legalism and the European administrative state, it should be clear that Rose-
Ackerman departs significantly from his assessment of the two systems. In her analysis, the costs
associated with procedure and judicial review are outweighed by the benefits to democratic
accountability and policymaking competence.
To summarize, adversarial legalism and the institutional structure of presidentialism have
significant implications for the judicial review component of government policymaking in the
United States. As compared with other established democracies, policymaking within
administrative agencies is more formal, proceduralized, and adversarial. American bureaucrats
are more likely to be sued in court, both for having breached the onerous procedural
requirements and for having failed to satisfy the substantive standards of administrative
rationality. The difference applies precisely to the activities specifically associated with the
regulatory function—designing generally applicable rules that regulate liberalized markets. Other
administrative activities such as the mass adjudication of individual claims in the context of
welfare programs tend to be proceduralized and amenable to judicial review everywhere, driven
by the liberal commitment to fair procedure in individualized determinations. With the rising
prominence of regulation, making it an important form of governance not only in the United
States but also in the European Union and other parts of the world, some have suggested that

17
Bignami—Regulation and the Courts

rulemaking too will become adversarial everywhere (Kelemen, 2011; Kelemen, this volume).
Whether this is indeed the case is an open question that will continue to be the subject of debate
for some time to come (Bignami and Kelemen, forthcoming).

RIGHTS VERSUS DEMOCRACY

In recent years, a third divide between systems of judicial review of government policymaking
has become increasingly apparent. This is the contrast between judicial review based on theories
of fundamental economic and social rights, which is prevalent in European legal systems and, a
growing body of evidence suggests, jurisdictions in other parts of the globe; and judicial review
conceived as a handmaiden of the democratic process, which dominates in the United States. As
I have begun to elaborate elsewhere, outside of policing administrative actors for fidelity to
statutory mandates, American and European courts take fundamentally different approaches to
the judicial review of public policymaking (Bignami, 2011: 898–902; 2012: 148–60). While
European courts safeguard a wide range of liberties from the burdensome action of
policymakers, American courts seek to advance a particular vision of democracy in the
administrative process. In the rest of this section, I elaborate on the two theories of judicial
review, suggest an explanation for the different jurisprudential trajectories, and explore some of
the possible implications of the difference.
To begin with Europe, the most prominent example of judicial review driven by
fundamental rights is the principle of proportionality. It is associated with the same political
philosophy of liberalism discussed earlier in connection with the historical development of
administrative litigation. Proportionality’s origins are generally traced to nineteenth-century
Prussia and the gradual shift from absolutism to the rule of law or, in the language of the time,
the shift from “der Polizeistaat” to the “Rechtstaat” (Barak, 2012: 175). In Germany, as in much
of the rest of continental Europe, one of the defining elements of liberalism and the rule of law
was the recognition of a private sphere of liberty and property independent of the state (Stolleis,
2001). To safeguard that private sphere, it was critical that all government interferences with
property and liberty be authorized by law and that individuals be able to go to court if state

18
Bignami—Regulation and the Courts

officials exceeded the boundaries of that law. The rule of law, however, was also tied to the
identification of a set of rights guaranteed by natural law and judicial control designed to protect
those rights. This was especially apparent in the shifting terrain of the police power. Although
local authorities still operated under vague statutory provisions directing them to protect public
health and security, a fairly elaborate conceptual apparatus was developed in the law to limit
their powers and their intrusion upon liberty and property, including the principle of
proportionality.
Proportionality was used in Prussian courts and legal scholarship to curtail the type of
action, if any, that could be used by local authorities to protect public health and security.
Today’s legal scholarship generally defines proportionality as comprised of three elements:
whether the government action is capable of achieving the stated end (suitability); whether the
government action is necessary to achieve the stated end (necessity); and whether on balance
the benefits from the government action outweigh the burdens on individual rights (balancing or
proportionality stricto sensu) (Grimm, 2007).The first two elements in particular (suitability and
necessity) were apparent in Prussian law. As the leading administrative law scholar of the time,
Otto Mayer, explained:

The basis of the police power in natural law requires that the [protection of the
good order of the public thing] be in proportion to the disturbance; this defines
the extent of the action of the police. It should not be presumed that the law,
through general authorizations by virtue of which the authority of the police
operates, wished to permit such protection to exceed this natural limit. (1904: 29)

Thus, for instance, in a case decided in 1880, the Prussian Supreme Administrative Law Court
found against the police because they had banned all women likely to be prostitutes from
entering the home of a suspected pimp rather than resorting to the less intrusive surveillance
measures available to them (1904: 32). Although the third element of proportionality (balancing)
is harder to discern, there is evidence of the concept in the legal scholarship of the time. Again
referring to Otto Mayer, he argued that when public authorities exercised the police power they

19
Bignami—Regulation and the Courts

were bound to demonstrate that the beneficial effects of public action outweighed the burden
on private life (1904: 20–21n. 2). At issue in the particular case under consideration was a Berlin
ordinance forbidding the use of stove-pipe keys in homes, which according to Mayer constituted
an especially burdensome interference with the protected sphere of “private life.”
After World War II and the adoption of the German Basic Law, proportionality rapidly
became an overarching principle of both administrative law and constitutional law. In the 1950s,
the concept was elaborated by administrative law scholars to include the three elements of
suitability, necessity, and balancing, and came to be applied to all forms of administrative action
(von Krauss, 1955; Lerche, 1961). Soon thereafter, the concept migrated to constitutional law
with the judgment of the Federal Constitutional Court in the Pharmacy Case.7 This famous case
involved a challenge to a Bavarian statute that set down criteria for granting permits to
pharmacies, including economic viability and the potential harm to competitors. A pharmacy that
was denied a permit sued based on the constitutionally guaranteed right to choose and exercise
a profession. The Court, in holding for the pharmacy, assessed the liberty claim based on the
proportionality principle and in doing so provided the first clear endorsement of the principle in
constitutional law. In the judgments that immediately followed, it became clear that
proportionality would apply in any case involving rights and liberties. Since then, it has become
a cornerstone of constitutional law and has become one of the leading German legal exports to
the rest of the world (Barak, 2012: 182).
Given how prominent proportionality has become in constitutional law, it is easy to focus
on cases involving political and civil rights such as freedom of expression and race discrimination
and to lose sight of how the principle originated in the classic economic rights implicated by the
administrative state. Today it is still used in the economic domain. A couple of examples will
illustrate the point. The first is the German case that led to the adoption of proportionality in
European Union (EU) law. In Internationale Handelsgesellschaft, a German company failed to
export the quantities of maize stipulated in an export license it had obtained pursuant to an EU

7
Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] June 11, 1958, 7
Entscheidungen des Bundesverfassungsgerichts [BVerfGE] 377.

20
Bignami—Regulation and the Courts

Council regulation and, as a result, pursuant to the terms of the regulation, it forfeited the entire
amount of the deposit it had provided at the time it had obtained the license.8 The company
challenged the regulation before a German administrative court based on the rights of freedom
of action and economic freedom guaranteed under Articles 2(1) and 14 of the German Basic Law.
The German court referred the proportionality question to the Court of Justice, which recognized
for the first time that such liberties, along with the related proportionality principle, were part of
EU law. The Court of Justice then conducted the proportionality inquiry: it found that forfeiture
of the deposit was both suitable and necessary to the end of ensuring that the Commission was
properly informed of the overall volume of exports and imports, essential to regulating the
market in agricultural commodities. Turning to the balancing component of the test, namely
whether the burden on the individual right was disproportionate to the public benefits from the
policy, the Court found that since the amount of the deposit was minimal and there was a force
majeure exception to the forfeiture, the EU regulation satisfied proportionality stricto sensu.
Returning to the German Federal Constitutional Court, it has routinely acted to protect
the right of occupational freedom and the related proportionality principle at issue in the historic
Pharmacy Case. In a challenge brought by a candy manufacturer to a federal regulation banning
the sale of cocoa-like products because of the risk to consumers of confusing such sweets with
real chocolate, the Court found that the necessity prong had been violated because of the
availability of a less-restrictive measure—a labelling requirement—to prevent consumer
confusion.9 In another case, occupational freedom lost out to animal welfare.10 The Court found
that a farming regulation prescribing the minimum dimension of chicken coops was too favorable
to farmer rights and did not adequately guarantee the animal welfare interests protected under
the enabling statute. More recently, based on the same right of occupational freedom, the Court
struck down a law banning smoking in public restaurants because of the failure of the statutory
scheme to consistently promote the purported aim of protecting against smoke.11

8
Case 11/70, Internationale Handelsgesellschaft v. Einfuhr, 1970 E.C.R. 1125.
9
BVerfG, Jan. 16, 1980, 53 BVerfGE 135.
10
BVerfG, Apr. 13, 1999, 101 BVerfGE 1.
11
BVerfG, June 11, 2008, 121 BVerfGE 317.
21
Bignami—Regulation and the Courts

As has already been suggested, proportionality is not confined to German law, but has
become central to European law, in both national jurisdictions (Fromont, 2006: 255-61; Barak,
2012: 186–87; Rose-Ackerman et al., this volume) and the supranational European Union
(Tridimas, 2006: 136–241) and European Court of Human Rights (Letsas, 2006: 711). It has also
spread to legal systems outside of Europe, including Israel, Canada, South Africa, India, South
Korea, and Taiwan (Barak, 2012: 188–204; Huang and Law, this volume). Important for the
purposes of this chapter, it protects liberty from both legislative and administrative action, and
it extends to all types of rights, although with different levels of intensity, including civil, political,
and economic rights and even, in some cases, positive social and economic rights.
Another important example of how fundamental rights are used in European law to curb
government policymaking is the principle of equality. While German law is at the origin of
proportionality, the genealogy of equality is often traced to French law. In the jurisprudence of
the Conseil d’Etat on general principles of law (principes généraux du droit)―higher-law
principles rooted in political theories of liberalism and republicanism and enforced against
administration and the political executive—equality is one of the oldest and most fundamental
(Long et al., 2013: 418). The principle of equality is loosely linked to the Declaration of the Rights
of Man and of the Citizen of 1789, and was first recognized by the Conseil d’Etat in 1913 in the
Roubeau case.12 It applies to both policymaking and individual decisionmaking and has evolved
into a series of specific principles applicable to certain types of government activity: equality in
the operation of public services, 13 equality in taxation, 14 equality in bearing public burdens
(charges publiques),15 equal access to the civil service,16 equality between members of the civil
service, 17 sex equality, 18 equality between nationals and non-nationals in the domain of
fundamental rights, 19 equality between users of public services or state-owned property

12
CE May 9, 1913, Rec. Lebon 521.
13
CE Sect., Mar. 9, 1951, Rec. Lebon 151.
14
CE Sect., Feb. 4, 1944, Rec. Lebon 45.
15
CE Nov. 30, 1923, Rec. Lebon 789.
16
CE Ass., May 28, 1954, Rec. Lebon 308.
17
CE Sect., Oct. 26, 1979, Rec. Lebon 396.
18
CE Ass., July 3, 1936, Rec. Lebon 721.
19
CE Ass., Dec. 8, 1978, Rec. Lebon 493.

22
Bignami—Regulation and the Courts

(domaine public),20 and equal treatment under economic regulation.21 The principle is generally
formulated as the duty to treat equal situations equally and different situations differently and
requires that any difference in treatment be justified in light of the objectives of the enabling law
(Fromont, 2006: 254).
A couple of examples will illustrate the reach of the equality principle and how deeply it
cuts into the operation of the administrative state, including the regulatory function. In what is
generally recognized as the foundational case for equality in the area of public services, the
Conseil d’Etat annulled a decision of Radiodiffusion français (a public broadcasting service) in
which it refused to broadcast concerts organized by the Société des Concerts du Conservatoire.22
The Conseil d’Etat found that as the provider of a public service the broadcaster was bound by
the equality principle, that it had violated that principle by singling out Société des Concerts du
Conservatoire and refusing to broadcast its concerts, and that it was consequently liable in
damages. In 1985, a Paris police regulation restricting permits for sidewalk vendors to war
victims, persons with family, and needy persons was found to impermissibly discriminate against
other types of applicants. 23 The Conseil found that the “general interest, which is linked to the
social protection of persons so defined was not sufficiently important to entirely exclude all other
applicants.” In 2011, the Conseil annulled a provision of the highway code delegating the task of
automobile safety inspections to auto repair shops that were members of a national organization
on the grounds that it violated the principle of equality as between affiliated and independent
auto repair shops.24 Even more recently, the Conseil annulled a social security decree increasing
pension benefits for mineworkers which only applied to workers with a lengthy employment
history on the grounds that the ministry had failed to justify the difference between the two

20
CE Sect., Nov. 2, 1956, Rec. Lebon 403.
21
CE Oct. 26, 1949, Rec. Lebon 433.
22
CE Sect., Mar. 9, 1951, Rec. Lebon 151.
23
CE Sect., Dec. 18, 1985, Rec. Lebon 380. For a similar set of facts and legal arguments in a case decided by the
South Korean Constitutional Court, see Huang and Law (this volume).
24
Société Auto Bilan France, 6/1 SSR, 342498, Oct. 21, 2011, reported in Jurisprudence des
formations contentieuses du Conseil d’Etat, Oct. 2011, at 17.
23
Bignami—Regulation and the Courts

classes of mineworkers. 25 Of course, there are numerous instances in which the Conseil has
rejected equality claims, indeed probably more numerous than those in which it has upheld
them. For instance, in a case dating to 1983, the Conseil heard a challenge to a government
decree declaring a certain territory to be a natural reserve and regulating the use of the reserve.26
One of the complaints was that the government had impermissibly singled out certain areas of
the reserve for camping and bivouacing, to the exclusion of the rest, but the Conseil found that
difference in treatment was justified by the objective of nature protection.
As with proportionality, the equality principle made its way early on to the European
Court of Justice. It first appeared in the 1950s in cases challenging civil service decisions of the
EU institutions27 as well as High Authority decisions involving the differential treatment of coal
and steel producers and users. 28 Somewhat later, the principle emerged in challenges to
regulatory decisions in the common agricultural policy area which discriminated between
different types of producers.29 It is also common to the administrative law of the member states,
in particular the judicial review of administrative rules (Fromont, 2006: 253, 293), and to national
constitutional law (Baer, 2012; Kommers and Miller, 2012: 419–40), including French
constitutional law since the expansion of the Constitutional Council’s powers in the 1980s (Stone,
1992). Although there has been less attention to equality than to proportionality in the
comparative literature, it appears to operate as a cross-cutting principle in a number of
jurisdictions outside of Europe too (Huang and Law, this volume). In addition, similar to
proportionality and important for understanding judicial review in the context of the regulatory
state, equality is a principle applicable in both the administrative and legislative domains, and
generally protects against all forms of discrimination, including social and economic
classifications.

25
Syndicat national CFDT des mineurs et assimilés et du personnel du régime minier et autres,
1/6 SSR, 353703, 353707, 353781, Nov. 27, 2013, reported in Jurisprudence des formations
contentieuses du Conseil d’Etat, Nov. 2013, at 16.
26
CE Ass., May 19, 1983, Rec. Lebon 205.
See, e.g., Case 1/55, Kergall v. Common Assembly, 1955 E.C.R. 151, 169.
27
28
See, e.g., Case 8/57, Hauts Fourneaux et Aciéries Belges v. High Authority of the European Coal and Steel
Community, 1958 E.C.R. 245.
29
See, e.g., Case 114/76, Bela-Müle Josef Bergmann KG v. Grows-Farm GmbH, 1977 E.C.R. 1211.

24
Bignami—Regulation and the Courts

There are a number of other doctrines that are also designed to protect liberty in the
context of the contemporary administrative state. These are generally concerned with positive
rights such as government benefits and have been recognized in the primary law of constitutions
and in the court-generated principles of non-retroactivity, legal certainty, and legitimate
expectations (Kommers and Miller, 2012: 622–23; Bignami and Spivack, 2014). While the
constitutional law generally begins from the premise that individuals are entitled to a certain
minimum level of welfare from the state, the judge-made principles are designed to restrict
changes to government programs once they have been put into place by legislative and
administrative actors.
In the American system, by contrast, individual rights rarely form the basis for judicial
review of the market-regulating and welfare-distributing functions of the contemporary
administrative state. This is a product of the rigid hierarchy of fundamental rights which is
distinctive to the American system and which has been amply documented in scholarship on
comparative constitutional law (Mathews and Stone Sweet, 2011; Barak, 2012: 509–27).
Economic rights and classifications are part of the lowest tier of the hierarchy, which is afforded
only minimal, so-called “rational basis” judicial review; most commentators agree that, once a
case is slotted into the “rational basis” category, the outcome, in favor of the state and against
individual rights, is a foregone conclusion (Sunstein, 1985). As Aharon Barak explains, in contrast
with proportionality and equality, which are applied in every case to balance between the injury
to the fundamental right and the general interest that motivates state action, the American
approach seeks to balance in advance, through the constitutional hierarchy of rights (2012: 512).
Rights at the top of the hierarchy, such as the right to speech, require a very good justification
from the state before the interference will be considered permissible. Rights at the bottom of
the hierarchy, including economic rights, require virtually no justification at all to warrant state
interference. Therefore, cases involving rights such as the right to exercise a profession or
conduct a trade, which have a chance of success under the principles of proportionality and
equality, automatically fail under rational basis review.
The absence of fundamental rights from judicial review of the American administrative
state is also a function of the tendency of the Supreme Court, in contrast with other constitutional

25
Bignami—Regulation and the Courts

courts, to define the scope of rights narrowly and to refrain from creatively interpreting
constitutional text to recognize new rights (Currie, 1989). This has had an impact especially in the
domain of the welfare state: the Supreme Court has not recognized any positive social and
economic rights under the Constitution and there are few judge-made constraints on drastic
shifts in entitlement programs, either at the legislative or the administrative levels (Bignami and
Spivack, 2014). In other words, the hardship created by the revocation of government benefits
and other types of advantageous treatment is not tempered, as in certain European jurisdictions,
by positive constitutional rights and judicial doctrines such as legitimate expectations and legal
certainty.
As the literature on adversarial legalism and delegation demonstrates, American courts
do intervene in government policymaking. They do so, however, based on theories related to
the preservation of the democratic process, or what I call the “ballot-box democracy” paradigm
of public law. In reviewing legislative action, American courts police for fidelity to federalism and
the other structural guarantees of the Constitution; in reviewing administrative policymaking,
courts engage in what one leading administrative law scholar has labelled “proceduralized
rationality review” (Mashaw, 2012: 289). In the interest of space, this section will focus on the
latter form of review—judicial oversight of administrative actors when they engage in
policymaking. Proceduralized rationality review encompasses a number of doctrinal grounds of
review, both the procedural requirements analyzed in the previous section and in other chapters
in this volume (Wagner; Rose-Ackerman) and the substantive standard of “arbitrary and
capricious” review. Arbitrary and capricious review, also known as “hard-look review,” was
originally designed to capture instances of irrational agency action but evolved, in the early
1970s, into a highly demanding test (Breyer et al., 2002: 416; Schiller, this volume). 30 It was
layered over the long-standing appellate model of American judicial review (Merrill, 2011) in
which the factual record, policy analysis, and legal basis for the decision were to be developed
primarily by the administrative agency, conceived as analogous to a trial court. The result is that

30
As a matter of formal legal doctrine, there are a number of other tests that can apply in the context of judicial
review of the substance of agency policy decisions, but the arbitrary and capricious standard is by far the most
common, and indeed some argue that there is very little difference in how the different tests operate in practice
(Zaring, 2010).

26
Bignami—Regulation and the Courts

administrative agencies must demonstrate before the courts that, at the time the policy choice
was made, they considered and assessed all of the available legal and policy options and came to
a reasoned conclusion as to which policy would best accomplish the underlying goals of the
regulatory scheme.31
The rationale for proceduralized rationality review was tied to two distinct but related
elements of the democratic process. In the 1960s and 1970s, a burgeoning literature had brought
attention to what was believed to be the widespread “capture” of administrative agencies by
regulated industries (Olson, 1965; Stigler, 1971, 1974). The response was twofold. First, by
enforcing a demanding standard of rationality, courts would ensure that administrative agencies
promoted the goals of the legislature rather than the special interests of the regulated
community. As Judge Leventhal said in his seminal article on hard-look review, the objective was
to ensure that the agency “’has exercised a reasoned discretion with reasons that do not deviate
from or ignore the ascertainable legislative intent. . . . [The entire process] is conducted with an
awareness that agencies and courts together constitute a ‘partnership in furtherance of the
public interest’” (1974: 511). Secondly, by ensuring a fair and representative agency process that
largely mimicked the pluralist system of interest group competition in the legislature, public
interest groups such as consumers and environmental advocates would be heard from beginning
to end of the policymaking cycle. Surveying and synthesizing a wide range of developments in
the field of administrative law, Richard Stewart dubbed the emerging practice of judicial review
the “interest representation model”: the use of judicial review “to ensure more adequate
representation for all interests affected by agency decisions” (1975: 1669).
Before exploring the implication of these two models of judicial review specifically for
regulatory governance, it bears asking why they emerged in the first place. The comparative

31
European courts also require that administrative agencies give reasons for their policy choices. Such reasons,
however, can be advanced in the litigation and are not required to be developed in the context of the agency
rulemaking in response to the regulated parties (Allison, 1996: 207–34; Singh, 2001: 223–43). Therefore rationality
review is not as “proceduralized” (and as drawn out) as in the American case. Moreover, the notion of administrative
discretion, understood as a decisionmaking sphere legitimately left to bureaucracies and illegitimately usurped by
the inference of courts, is more robust in Germany and other European legal systems (Maurer, 2009: 133–64). As a
result, the reason-giving generally required in administrative law review—as opposed to review on constitutional
liberty grounds—is a relatively cursory explanation of how the policy choices made by the administrative authority
are consistent with the overall legal framework of the government program.

27
Bignami—Regulation and the Courts

analysis reveals two quite different theories of public law: one that explicitly calls upon
fundamental rights to theorize the relationship between courts and the administrative state and
the other that is rooted in a duty to protect a specific understanding of democracy in the
policymaking activities of bureaucracy. On the American side, the explanation rests in the
experience of courts in the early days of judicial review and democratic government and the
impact of that experience on the subsequent development of legal discourse and judicial
behavior. In what has become a standard narrative in American constitutional history, in the first
decades of the twentieth century, the Supreme Court came into direct confrontation with
popular politics and elected legislatures. At this time, it repeatedly struck Progressive and New
Deal legislation based on liberty and property rights and a narrow vision of the police power. In
Lochner (1905), the most famous of these cases, the Court struck a New York law regulating the
working hours of bakers as a violation of the Due Process Clause and the so-called “substantive”
guarantee of liberty under the Due Process Clause to enter freely into contracts of employment.32
The period was marked by clashes within the legal establishment between legal realists and
adherents to the “classical” school of thought (Horwitz, 1992) and by contrasting views, both
inside and the outside the Court, on the correctness of the Lochner line of cases. It was also a
period of intense conflict between the President and the Court. In what has become a notorious
episode in American constitutional history, Roosevelt sought to “pack” the Court with six
additional Justices who presumably would have ensured the constitutionality of the New Deal
agenda (Ackerman, 1998: 312–37).
While the Court-packing bill was ultimately defeated in the Senate, the Court shortly
thereafter reversed course and began upholding the ambitious regulatory programs of the New
Deal. In doing so, it abandoned several different doctrinal threads, including the substantive due
process jurisprudence of the Lochner era. 33 At the same time, the Court articulated a new
philosophy of judicial review. In Carolene Products, the Court easily dismissed a substantive due
process challenge to a federal statute prohibiting the sale of milk that had been compounded

32
Lochner v. New York, 198 U.S. 45 (1905).
33
The seminal case is West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937), in which the Court decided that the
minimum wage set down in a Washington state statute was constitutional.

28
Bignami—Regulation and the Courts

with non-milk fats.34 (In fact, the legislation at issue in the case recalls the German chocolate
regulation mentioned earlier which, in contrast with the outcome in Carolene Products, was
struck by the German Constitutional Court based on the right of occupational freedom and the
proportionality principle.) The Supreme Court declared that, in cases involving “regulatory
legislation affecting ordinary commercial transactions,” it would generally assume a rational basis
that justified the use of the police power unless proven otherwise “in the light of the facts made
known or generally assumed.” 35 Thus the economic liberties that we have seen are routinely
litigated in European legal systems were dismissed as outside the power of courts with the
exception of egregious violations. By contrast, the Court indicated that it would engage in more
searching scrutiny in three categories of constitutional cases: (1) those which involved rights
specifically protected by the Bill of Rights; (2) restrictions on “those political processes which can
ordinarily be expected to bring about repeal of undesirable legislation” and associated rights such
as the right to vote and the right to speech; and (3) legislation curbing the rights of “discrete and
insular minorities . . . which tends seriously to curtail the operation of those political processes
ordinarily to be relied upon to protect minorities.”36 These types of claims were identified as
legitimate for judicial review because they were specifically identified in the text of the
Constitution or because they served to protect the democratic process.
This set of events, together with the dominant interpretation in the legal establishment,
has profoundly marked contemporary judicial review. Although the historiography has
undergone significant revision over the past 20 years (Gillman, 1993; Mayer, 2009), the prevailing
view at the time and to some extent still today is that the Lochner-era cases were driven not by
principled legal positions but by the conservative ideological preferences of the justices. In doing
so, the Supreme Court had illegitimately interfered with democracy and the will of the majority
as expressed by the directly elected bodies of government. It had imposed the politics of the nine
members of the Court on the nation. As a contemporary scholar, writing in 1942, put it:

34
U.S. v. Carolene Products, 304 U.S. 144 (1938).
35
Id. at 152.
36
Id. at 152n4.

29
Bignami—Regulation and the Courts

A considerable number of the decisions under the expanded version of due

process . . . undoubtedly are expressive of an extreme laissez-faire philosophy. . .
. [T]he economic and social individualism of the seventies [1870s] and eighties
[1880s] was created by that generation rather than inherited from the founders.
It was the creed of a minority which, like the Federalists of two generations before,
was fast losing out at the polls. (Wright, 1942: 255)

The new philosophy of judicial review laid down in Carolene Products both repudiated a
general mandate to safeguard liberty and identified a judicial mission linked to text and to the
democratic process. It is a crucial element of the “ballot-box democracy” paradigm of public law,
one of the four categories of public law presented in the Introduction to this volume. This theory
of judicial review can largely be seen as a device for rehabilitating the Supreme Court and refuting
charges of ideological partisanship and the “counter-majoritarian” difficulty (Bickel, 1962). It has
been tremendously influential in both the courts and in legal scholarship. For instance, based on
a close reading of the papers of the members of the Court, Elizabeth Bussiere has argued that in
the late 1960 and early 1970s, the progressive Warren Court stopped short of recognizing a right
to welfare—the kind of positive right that is recognized by some European courts―because of
the doctrinal legacy of Carolene Products and the double standard that had been created for
social and economic rights, on the one hand, and civil and political rights, on the other hand
(Bussiere, 1997: 99–101; 1999). To illustrate the approach taken by the academy, take the work
of the influential legal scholar John Hart Ely. In 1980, he famously defended the Warren Court’s
criminal procedure and social rights jurisprudence against charges of Lochner-style judicial
activism on the grounds that the Warren Court had been faithful to Carolene Products and had
sought to further “‘participational’ goals of broadened access to the process and bounty of
representative government” (1980: 75).
Returning specifically to courts and administration, procedural rationality review was
quite clearly informed by the larger constitutional context of Carolene Products. With the fading
of confidence in administrative expertise, the fear of regulatory capture, and the rise of new
social movements, courts were called upon in the 1960s to take a more active role in the

30
Bignami—Regulation and the Courts

regulatory process. Safeguarding a general sphere of liberty was anathema in legal discourse.
Instead, consistent with the democracy-enhancing theory of public law more generally, courts
responded with the interest representation model of the administrative process and the
requirement that in the course of the rulemaking proceeding agencies carefully articulate why
their policy choices further the statutory framework enacted by the legislature. Although
American judicial activism is common to both my analysis and the theory reviewed in the
previous section, the emphasis of the two accounts is somewhat different: in adversarial legalism
and rational-choice theory, the principal engine of judicial activism is Congressional legislation,
while in the present account it is legal doctrine and judicial philosophy.
On the European side, the historiography is not nearly as extensive. In contrast with the
United States, however, there appears to be significant continuity between the liberal theories
that animated late-nineteenth-century and early-twentieth-century public law and the theories
that inform contemporary public law. This is evident in the doctrinal histories of proportionality
and equality, both of which are traced to nineteenth-century and early-twentieth-century
sources. Why there is rupture in the American case and continuity in the European case is the
question. At least in part, the answer appears to rest in the different European experience of
courts and elected bodies in the early years of democracy and the institutional reputations that
emerged from those events. European public law has been deeply marked by the history of
authoritarianism and collaboration in the inter-war years and World War II (Linz and Stepan,
1978; Capoccia, 2005). In contrast with the United States, the experience of the new democracies
of the time demonstrated that elections and parliamentary regimes could give rise to immense
instability and could make way for authoritarian regimes. Such regimes were established not by
military coups but by formally democratic procedures that put into place dictators and that
abolished the political freedoms of the earlier democratic regime. The celebration of majoritarian
democracy and the directly elected branches, so apparent in post-Lochner jurisprudence, was at
odds with the European inter-war experience. A certain suspicion of democracy and an
awareness of the need to safeguard rights, even in the face of democratic procedures, is evident
across a number of areas of constitutional law, and has also influenced judicial review in the area
of social and economic policymaking (Shapiro and Stone Sweet, 1994; Capoccia, 2013).

31
Bignami—Regulation and the Courts

At the same time, courts emerged as a central feature of the European post-war
architecture. These were primarily newly established constitutional courts but also included pre-
existing administrative courts, both of which were cast as safeguarding a set of higher-level
principles, including an extensive set of individual liberties, in the operation of the political and
social order. Why public law courts took on this role is something of a puzzle. Courts, like
parliaments, did not sport a stellar record during the 1930s and 1940s. In many cases, the
ordinary courts and administrative courts were complicit in enforcing and in some cases
stretching the law to deprive Jews, Communists, and other groups of their private rights and, for
those employed in public administration, their civil service status (Fabre, 2001; Joerges and
Ghaleigh, 2003). In the republican ideology of the French Revolution, which was influential not
only in France but also much of the Continent, courts were regarded with suspicion and
parliaments were cast as the principal mouthpiece of the people and the general will. On the
other hand, even taking into account administrative courts, powers of judicial review in the inter-
war period were very limited, and therefore courts could not be tainted to the same extent as
parliaments by their involvement with authoritarian or collaborationist regimes. Setting aside
these questions, the fact remains that the political elites that emerged after World War II
regarded constitutional and administrative courts and liberty-driven supervision of all branches
of government as a fundamental safeguard for their newly established democratic orders.
To conclude this discussion of the two theories of judicial review, let us consider some of
their implications specifically for regulatory governance. To begin with, it is important to
acknowledge that proceduralized rationality and fundamental rights can overlap to some extent.
In other words, they can operate as what is known in comparative law scholarship as “functional
equivalents” (Zweigert and Kötz, 1998: 44). The types of claims that are advanced in European
litigation involving economic and social rights are often litigated and adjudicated in the context
of proceduralized rationality review in the American system. For instance, the claim that the
regulatory means adopted to accomplish the public purpose were inappropriate, familiar from
proportionality, or the claim that an agency unfairly burdened one group to the benefit of
another, familiar from equality, are often raised in American litigation alleging that the agency
rule was arbitrary and capricious or that the rulemaking procedure was inadequate. To illustrate,

32
Bignami—Regulation and the Courts

in the textbook case of Nova Scotia Food Products, the litigant (a whitefish processor) challenged
an agency rule requiring that all smoked fish be heated to high temperatures to protect against
food poisoning on the grounds that it was “arbitrary and capricious.”37 The litigant argued that
the temperature requirement was unnecessary to achieve food safety in the case of whitefish
since whitefish did not carry the same risk of botulism as other types of fish and the safety of
whitefish could be guaranteed through alternative means such as salting. The whitefish processor
also claimed that the agency had failed to take into account the special characteristics of
whitefish processors as compared with other types of processors and to treat them differently
as warranted by their different situations. The court of appeals did not reach the arbitrary and
capricious challenge but held in favor of the litigant on the related grounds that the agency
procedure was defective since it had failed to answer the litigant’s objections in the “concise
general statement of basis and purpose” at the conclusion of the rulemaking procedure. 38 In
other words, equality and the necessity component of proportionality, centerpieces of European
fundamental rights, were advanced and adjudicated in the context of American proceduralized
rationality review.
Even though there is a certain degree of functional equivalence, there are also important
respects in which the conceptual differences between the two types of judicial review give rise
to differences in legal practice. First, American proceduralized rationality review attaches great
importance to the formal status of the regulatory norm. If it is enacted by the legislature, then
the court cannot intervene because the ballot box and legislative politics are seen as the best
guarantor of a democratic policymaking process. If, on the other hand, the regulatory norm is
adopted by administrative authorities, then proceduralized rationality review applies. By
contrast, European liberty review applies equally to all types of state action, legislative and
administrative. Indeed, in systems which afford easy access to constitutional courts, the incentive
is to concentrate efforts on challenging the legislative framework, not the implementing rules.
Litigants often take this path because constitutional doctrine requires that parliamentary law—
not administrative rules—limit rights and any court victory striking law will be more durable given

37
U.S. v. Nova Scotia Food Products Corp., 417 F. Supp. 1364, 1372–74 (E.D.N.Y. 1976), rev’d, 568 F.2d 240, 245 (2d
Cir. 1977).
38
U.S. v. Nova Scotia Food Products Corp., 568 F.2d at 252–53.

33
Bignami—Regulation and the Courts

the political and practical hurdles to re-writing legislation. The overall result is that the legislative
component of regulatory governance is subject to more extensive judicial oversight in Europe.
German cases like the Pharmacy Case39 or the Smoking Ban Case40 would fail or, more likely,
never be brought in the American system.
The second notable difference produced by the two models of judicial review concerns
the way in which courts assess the reasoning of administrative agencies and the hardship
imposed by regulatory policies. In European legal thinking, when courts strike government
regulatory policies based on proportionality, equality, or any of the other doctrines mentioned
earlier, they are guaranteeing respect for the law, understood not in the statutory, positivist
sense but as the higher law of rights and duties fundamental to any liberal democratic order.
They are not, in the doctrinal discourse, interfering with administrative discretion, which is left
to the administration to carry out in line with the parliamentary will and the general interest and,
for the most part, falls outside of the purview of courts. This characterization of judicial review
stands in contrast with American legal thinking, which generally frames judicial decisions striking
agency policy decisions as policing the exercise of administrative discretion. Associated with this
conceptual difference is a difference in how cases are decided on judicial review. On the
European side, the tendency is to interfere in absurd cases in which the reasons are patently
flimsy or the hardship imposed on certain groups appears to be entirely out of proportion with
the overall purposes of the regulatory framework. On the American side, the emphasis is on
carefully scrutinizing every element of the case for administrative action—the empirical studies,
the interpretation of the enabling statute, and merits of the different policy options―to ensure
that it stands up to the many objections made by the participants in the administrative
proceeding. If, however, the policy survives this analysis then it is irrelevant whether the
government has unfairly singled out certain social or market actors and no amount of hardship
will lead to reversal of the regulatory outcome. Thus the types of cases that survive or fail judicial
review are likely to differ between the two systems.

39
BVerfG, June 11, 1958, 7 BVerfGE 377.
40
BVerfG, June 11, 2008, 121 BVerfGE 317.
34
Bignami—Regulation and the Courts

This comparative assessment of the types of challenges to regulatory policymaking that

are viable before the courts raises the question of how the difference is related to the contrast
presented in the previous section. In both classifications, the American system is contrasted with
European jurisdictions. But the adversarial legalism theory also posits American courts as
exceptionally powerful in the regulatory process: more legal challenges are brought to courts and
the courts are more activist in reviewing government policies. Do the forms of judicial review
presented in this section—proceduralized rationality versus fundamental rights— contribute to
this judicial activism? At first glance, the difference does not logically support such an outcome.
Because it affects the legislative component of regulatory schemes and because of the balancing
dimension of many of its doctrinal tests, the fundamental rights model could easily be construed
as giving courts more license to interfere with the regulatory process. Therefore, it may be
worthwhile revisiting some of the empirical claims of the adversarial legalism hypothesis. As
explained earlier, adversarial legalism is a sweeping concept that encompasses all aspects of the
regulatory state. It may be true that the fragmented American system outsources more
regulatory activities to private litigants and courts and therefore the system overall is more
litigious than European regulatory systems. But if Congress decides to delegate regulatory
policymaking to a classic bureaucracy then it may be that judicial intervention is as, or even more,
deferential than judicial intervention in European legal systems. To understand whether this is
the case, it will be necessary to conduct carefully designed comparisons of different policy areas
which take into account both constitutional and administrative law and which examine data
recent enough to capture the growing importance of constitutional litigation in Europe.
If, however, as some of the anecdotal evidence suggests, American courts are indeed
readier to strike regulatory policymaking than European courts, then it is plausible to suggest a
relationship between the doctrinal theory and levels of court activism. It may be that the
requirements of full public participation in the administrative process and comprehensive
analysis in line with a close reading of the statutory framework are more burdensome than the
fundamental rights paradigm of judicial review. Although rights affect all state action, including
legislation, the fact is that most regulatory statutes must be implemented by administrative
regulations. When those regulations are challenged in court, it might be that the exhaustive

35
Bignami—Regulation and the Courts

procedure and reason-giving required of American agencies is more burdensome than the
reasons required of European bodies to trump rights. If true, it bears underscoring the irony of
such an outcome: American doctrinal thinking on economic and social rights was driven by the
desire to prevent courts from striking regulatory programs but the democracy-enhancing
alternative (the ballot-box paradigm) may have served to legitimate even more judicial activism.
Again, to understand whether such a connection exists, it will be necessary to conduct carefully
designed comparative studies that capture the types of legal doctrines that are used by courts in
different jurisdictions to strike regulatory policymaking. It will also be necessary to take into
account the socio-legal insight that institutional and historical context, as well as or even more
so than positive law and doctrinal constructs, are important for understanding judicial behavior.
Without knowing whether and how the two theories of judicial review affect the level of
court activism, it is difficult to reach any conclusions regarding their relative merits. It is important
to note, however, that the normative question has become highly salient with the global diffusion
of regulatory governance (Levi-Faur, 2005) and public law (Ginsburg, 2008) and can only be
expected to become more so as the globalization process unfolds over time. The ramifications
and opportunities for learning are especially significant for newer democracies. There is a
growing trend in favor of empowering constitutional courts (Lamprea et al., this volume). Thus
new democracies are likely to follow the path of rights-driven judicial review. At the same time,
there is also good reason to think that the American model will serve as a source of transplants
to other jurisdictions (Yackee, this volume; Zaring, this volume). Whether and how these two
models will be combined and layered is an open question. At this stage, it suffices to note that
any lessons to be garnered from the United States and Europe should be informed by the relative
competence of courts, bureaucracies, and legislatures in their particular political and cultural
settings.

CONCLUSION

Judicial review of the administrative state has served as a fertile source of comparative law
scholarship for well over a century. In contrast with some areas of comparative law, which focus

36
Bignami—Regulation and the Courts

on similar functional needs across legal systems and seek to promote convergence, the literature
on judicial review has tended to focus on broad-brush differences between legal systems, the
historical origins of those differences, and how those differences can inform critical thinking on
the domestic practice of judicial review. This chapter has explored two of the most important
contrasts that have been drawn: between the common law and the droit administratif and
between a proceduralized and adversarial policy process and an informal and discretionary one.
It has also identified a third divide: between judicial review designed to safeguard the economic
and social rights most directly implicated by the administrative state and judicial review
dedicated to preserving democracy in the operation of the bureaucracy.
In addition to analyzing the differences and their historical origins, this chapter has drawn
out the consequences of the three classifications of judicial review specifically for the regulatory
function of the administrative state. It is helpful to summarize them here. The spread of
regulatory governance is associated with certain types of instruments and institutions of
government: the elaboration of formal rules to regulate private markets, the enforcement of the
rules against market actors, and the allocation of extensive powers to administrative authorities
to carry out the various tasks of regulatory governance. The differences in judicial review traced
in this chapter bite most at the rule-development as opposed to the rule-enforcement phase of
the policymaking cycle. Although it can be notoriously difficult to distinguish between the two,
as a general matter, the enforcement of rules, in contrast with rulemaking, requires
individualized fact-finding to determine whether the terms of the regulatory program are
applicable. The procedures followed by administrative authorities to find individualized facts and
the judicial review of such administrative determinations do not differ significantly among the
jurisdictions considered in this chapter (Bignami, 2004; cf. Asimow, 2015). These administrative
determinations—whether designed to culminate in a money fine, the granting or suspension of
a license, or something else―tend to be heavily proceduralized in view of due process rights and
the interest in reaching a fair and accurate determination. Judicial review of the outcome seeks
to guarantee respect for the various administrative procedures and to assess the plausibility of
the factual determinations made by the administrative authority. Even though there continues

37
Bignami—Regulation and the Courts

to be variation, especially between common law and droit administratif jurisdictions, their
practical implications have faded considerably over time.
Turning to the policymaking and rulemaking activities of the regulatory state, this chapter
has argued that there are indeed significant differences in judicial review. Although standing is
relatively easy to establish in the Conseil d’Etat, as compared with common law courts, it may be
more difficult to succeed on the merits of an individual challenge because of the Conseil d’Etat’s
involvement in both rulemaking and judicial review. In American adversarial legalism, the
policymaking process in bureaucracies is heavily proceduralized, and regulated parties and other
types of litigants frequently go to court to challenge both the procedure and the substantive
determinations of administrative agencies. By contrast, administrative authorities in European
jurisdictions are not significantly constrained by judicially enforced procedure when developing
new rules. Judicial review in Europe focuses on the burdens imposed by regulatory choices on
economic rights and, in some cases, social rights, and employs the legal doctrines of
proportionality and equality to assess the legitimacy of those burdens, whether imposed by the
legislature or the bureaucracy. In the United States, judicial review is driven by a concern for
safeguarding democracy when power is delegated to bureaucracies. It does so with legal
doctrines designed to ensure pluralist, participatory administrative process and comprehensive
administrative rationality tethered to the enabling legislation. These important differences serve
as a springboard for mapping judicial review and for understanding how courts across the world
intervene in the regulatory process.

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44
The "Conseil D'État" in France
Author(s): H. Berthélemy
Source: Journal of Comparative Legislation and International Law , 1930, Vol. 12, No. 1
(1930), pp. 23-32
Published by: Cambridge University Press on behalf of the British Institute of
International and Comparative Law

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THE "CONSEIL D'ETAT" IN FRANCE.'

[Contributed by PROFESSOR H. BERTHPLEMY, Dean of the F

Law, University of Paris.]

AMONG constitutional combinations, the Conseil d'Etat of F

one of the most original, and, according to the nearly un
opinion in France, the most favourable to good governm
English statesmen have been undoubtedly our masters
stitutional law. The ruling principle of our successive c
tions, -namely, the separation of powers, was first set
France by Montesquieu. He got the idea from Locke'
Locke had taken it from Aristotle. But this rule has bee
in France differently from England.
In England it is admitted that the power of maki
belongs to Parliament, the power of putting laws into
belongs to the king and to the judges. So, public departm
well as private business, are under the control of the same c
justice.
In France, ordinary justice is usually reserved (with important
exceptions) for private business. Public departments are inde-
pendent of the courts of justice to such an extent that some authors
consider that there are not only two powers in the State, but three :
legislative, executive and judicial.
We do not accept this way of analysing the facts. We teach
that there are only two powers, legislative and executive; but we
add that executive power is divided into two branches: adminis-
tration and justice; and we think that justice and administration
must be independent one of the other. This means that the officials
whose functions are to maintain order and peace in the country, and
to render us the services that we have a right to expect from the
State, must not interfere with the carrying out of justice; and
reciprocally, ordinary judges must not interfere (with important
and numerous exceptions) with the activity of our prefects. Let
1 A lecture delivered on May 30, 1929, before the Faculty of Laws of the
University of London.
23

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24 THE " CONSEIL D'UTAT" IN FRANCE.

each one govern in his own domain, is the motto of ou

organization.
Probably, the importance of our Conseil d'Etat with regard to its
management of public business, and the evolution of the institution
itself during the nineteenth century, explains the difference between
public law in our two countries. This makes the following question
doubly interesting: what was exactly the primitive Council of
State, and what has become of it under our successive forms of
government ?
The Conseil d'ltat of Napoleon.-The Conseil d'Etat owes its
creation to Napoleon, and to the Abb6 Si6yds, who suggested the
reform. It is the masterpiece of the consular and afterwards of
the imperial government. During the reign of Louis XIV there
existed an institution bearing the same name, but not having the
same r6le. The royal Council of State might be consulted by the
king on important political matters, as is the case to-day, if I am
not mistaken, with the Privy Council in England.
The chief business of Napoleon's Conseil d'Etat was the pre-
paration of laws.
The government undertook to make Written laws in accordance
with the different regional customs of France. During four centuries
these customs had been gradually drawn up; but, too varied and
numerous, they needed to be summarized, and a greater unity being
necessary, a code was universally demanded.
In those times no one thought that it was enough to have been
elected to be able to make laws. People who like dainty meals seek
clever cooks. Is it, then, more easy to make wise laws than to
prepare delicate dishes ?
Napoleon entrusted thirty picked lawyers with the preparation
of the texts, only leaving to the elected corps ldgislatif the right
of voting (or refusing to vote), no debating being allowed. This
corps l~gislatif has been compared to a meeting of mutes. Our
present parliament in no wise resembles it. The Conseil d'Etat
alone (controlled by another council which was called Tribunat,
and has not survived) examined, discussed, decided the proper form
of the articles, and so we have old codes that everyone can easily
understand. What a pity that the same cannot be said of our
modern laws ! The participation of the Conseil d'Etat in legislative
power was only a part of its r6le. It was, besides, entrusted with the
power to give the emperor advice when it was requested to do so;
namely, when it was necessary to complete laws by regulations in

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THE ".CONSEIL D'tAT" IN FRANCE. 25
order to make their application more easy, and also when litigations
arose between citizens and public officials.,
Comitd du Contentieux.-After i8o6 this last function developed
to a great extent, and requests became more and more frequent.
Then, it was decided that these requests should be drawn up by a
special body of barristers appointed for that purpose, called Avocats
au Conseil d'Etat.
Every request was the object of a careful examination by a
ComitM du Contentieux under the presidency of the Chief Justice.
Subsequently (and, in fact, always) in conformity with the
advice of the Comite) the emperor, by decrees, gave equitable
solutions to the requests. This was the beginning of what we call
la justice administrative.
The institution of the Comitl du Contentieux, though not re-
sembling the ordinary administration of justice, gave satisfaction
to public opinion. It was more expeditious and less costly; the
independence of the masters of the requests who counselled the
emperor, as well as the regular approval by the emperor of what
was suggested, appeared to be a sufficient guarantee of equity with
regard to the possible abuses or mistakes of public officers.
Ieforms of the Conseil d'ltatL-On account of the favourable
attitude of the public with regard to the maintaining of this system,
the Conseil d'.Etat, which at the fall of the imperial government lost
its legislative r61le, continued to exist as a giver of advice, especially
with regard to litigations. This function was reformed and perfected
during the reign of Louis-Philippe. It was agreed that it would be
expedient to give the examination of litigations between citizens and
officials the same guarantees as those given to private lawsuits.
It was decided that the Avocats au Conseil could plead before
the section du contentieux and explain verbally, with a statement
of claims and defences, the arguments already exposed in their
memorials. A master of request was entrusted with the role of the
Ministdrepublic.' Since these reforms were made, one thing only was
wanting to the Conseil d'Etat to be a perfect court of justice, the
power of deciding for itself, As a matter of fact, this was wanting
only in theory, the government always following in practice the
advice given by the Council.

1 Art. 52. Const. du 22 frimaire, An viii: "Sous la Direction du Ii Consul un

Conseil d'1Etat est chargi de rediger les projets, plans et reglements d'administration
publique et de rdsoudre les difficults qui s'dlMvent en matiere administrative."
2 There is no English equivalent for this term.

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26 THE "CONSEIL D'JITAT" IN FRANCE.

The last reform was made in 1848; the Council receiv

power of pronouncing judgments instead of giving advice.
This system, abandoned by Napoleon III, was re-est
in 1872 and became the present Conseil d'J8tat, the Suprem
of administrative justice. The arrits du Conseil have tak
place of the dicrets du contentieux.
Composition of the present Council.-The present Council
posed of thirty-five conseillers, thirty-seven maitres des re
forty auditeurs.
The conseillers decide, the maitres des requetes and audit
pare the judgments or the forms of advice.
The auditeurs are chosen by competition among the lic
droit. Three quarters of the maitres des requites ar
among the auditeurs. Two-thirds of the conseillers a
among the maitres des requites.
That a part of the conseillers or maitres des requdtes s
taken from outside the career cannot be criticized. The
which the ministers can dispose are given to superior o
(directeurs or prIfets). This permits a reasonable combi
practice and theory. The places of Conseillers d'JPtat are, h
so much sought after that a bad choice made by the gov
would cause a scandal, The control of public opinion in th
is the best guarantee.
Removability of Conuelers d'etat.-The Conseillers d't
when entrusted with rendering justice, are not irremov
apparent inferiority of administrative justice with regard to
tribunals has its explanation in the precedents referred
To render justice was not among the first functions of the i
The Conseillers d'Etat became judges in fact by the re
Louis-Philippe; legally, through the reforms of 1849 and
But they had already acquired so great a dignity in t
that irremoveability could not have added anything to t
pendence. There is no doubt that the Conseillers d'Etat,
with the Conseillers d la Cour de Cassation, are the most in
of the French judges, for, being in reality at the head of the
they have nothing to fear, but also nothing to expect
government.
We affirm that the writers who, because of the removea
the Conseillers d'Etat, have inferred that they were ser
shown themselves to be badly informed and extremely u
we regret to see among those authors one of the most

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THE " CONSEIL D'ETAT" IN FRANCE. 27
professors of England whose works are admired in France, P
fessor Dicey.
Functions of the Conseillers d'tat.--For working purposes,
Conseillers d'7tat are divided into sections. Four sections are
engaged in answering the demands for advice of the different
ministers. To these sections administratives belong the preparation
of the rtglements d'administration publique--i.e. rules and orders,
which are often necessary for the application of our laws.
More interesting is the function of the two sections called
sections du contentieux. They form the ordinary court of adminis-
trative justice, either in having the power of giving judgments,
or only in preparing the judgments given by the Assemblee du
Contentieux.
The chief fact is that this administrative court has jurisdiction
on all applications, claims, complaints of everyone asserting himself
to have been injured in the course of the public service.
We can obtain from the Conseil d'Etat the cancelling of all
irregular acts, or of acts accomplished by officials without authority,
or of acts constituting in themselves abuses or misappropriations
of power.
We can obtain from the State, by judgment of the Conseil
d'Eltat, compensation for every damage resulting from public
administration.
We can obtain modification of every administrative operation
illegally accomplished. You say: "The King can do no wrong."
With another meaning we can say: "The Republic can do no
wrong," since every wrong caused by an administrative act entitles
the victim to reparation or compensation by the Conseil d'Etat.
Erroneous Idea of French Administrative System.-I have referred
to our respect for the memory of Professor Dicey. It pains me to
have to temper my admiration because of Dicey's bad opinion of
our administrative system; it pains me still more because of the
influence that Dicey's error has had in England. Happily our
institutionsare, to-day, more justly appreciated. I find the proof
of it in an excellent work, the title of which is Public Authorities
and Legal Liability and the author Mr. Gleeson Robinson, with a
remarkable introductory chapter by Mr. Morgan. All through-
out the work is to be seen the most accurate knowledge of con-
tinental administrative law.
Nevertheless, there is a French proverb which says: II est
des morts qu'il faut tuer (There are corpses that must be killed);

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28 THE "CONSEIL D'ITAT" IN FRANCE.

such is the case with the prejudice existing that the

under the domination of a despotic and irresponsible b
Nothing is more contrary to the truth, not only in
century, but even for more than a hundred years.
I have often spoken to my students of England as
country where people form the highest conception of fr
But let me say, and let me prove, that if, as a matter
are less firmly liberal than yourselves, our legislation, com
the English, is more satisfactory in every respect.
Professor Dicey, to whom I offered, about thirty year

first edition of my Trait, de droit administratif, said

England, there is no droit administratif; we do not
it can be "; and smilingly he added: " we prefer no
fearing regulations which appear less as guarantees f
than privileges for officials." Never have I deplored m
to make myself understood in English so much as I
had to content myself with marking the pages in my
Professor Dicey might find the refutation of his er
he read the passage; perhaps he was shaken in his ide
he was not convinced.
Meaning of Expression "1Droit AOminbiutrtif." "We have no
droit administratif. .. ." But that is quite impossible. One
cannot say that if one understands what the expression exactly
means. Everywhere the government gives orders, injunctions,
prohibitions to citizens. Everywhere public officials are appointed
to render services to the public. Admirals, generals, sheriffs,
constables, policemen, give orders; postmen, public engineers,
schoolmasters, road-menders, render services. The activity of
H.M.'s ministers and of all the agents in public services is
never arbitrary. Every office within certain limits is competent,
no official may exceed the powers he holds by the law, every
official acting in his own capacity is obliged to observe special
proceedings, to take prescribed precautions in prescribed delays.
No one can make use of a power given in view of a determined aim
for another purpose.
All these sorts of regulations, limitations, restrictions, conditions
of form or of time imposed on officials in their functions have been
established for the safeguard of citizens, rarely for the advantage
of the services. All these rules make up the first half of adminis-
trative law. The second part, the most interesting because in that
matter we find not so much details of organization as principles

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THE "CONSEIL D'ETAT" IN FRANCE. 29
of justice, contains regulations of which the sole aim is to defen
citizens from possible abuses, mistakes or neglect on the part
public officials.
There is a maxim in England that no man is above the law
We may infer from this rule that two men, for the same offence,
should be sued before the same jurisdiction, and should be punished
by similar verdicts, and that is all. I insist on this point ; two m
who are guilty of the same offence. But it seems evident that t
same offence cannot be ascribed to a simple citizen as to an offic
acting in the sphere of his official capacity, since the simple citizen
has no administrative function, no official capacity.
Abuse of Legal Authority by Ofeicials.-At any rate, there is
one case which is beyond all possible doubt ; it is when the offic
misuses a legal authority. How can a simple citizen be blame
for misusing power which he has never possessed ?
According to the English "rule of law," save the sovereign,
every man, whether public officer, or private citizen, may be sued
or prosecuted in the ordinary courts. The mere fact that a ma
acted in an official capacity is not a defence.
Nay, the principle of giving equal treatment to officials an
private citizens is pushed much further: if a wrong has been do
by a subordinate who is subject to the orders of a superior and f
whose conduct that superior is politically responsible, that does not
render the superior liable for damages. Mr. Lawrence Lowell, i
his book on English government, gives this characteristic examp
He supposes a colonel gives an order to fire on a mob: " The soldier,
he says, "may conceivably have to choose between obeying and being
hanged for murder, or disobeying and being court-martialled a
shot. That is the risk of the business."
Who can reasonably acquiesce in such result ?
Moreover, it is admitted in England that in no case can the
Crown be liable for the torts or damages occasioned by the execution
of public services. "The King can do no wrong." This rule,
however, is extended to the ministers, and to judges (even to the
justices of the peace, and to the police officers, and to the Customs
and Excise officers, and, if I am not mistaken, the majority of
civil servants enjoy a considerable measure of statutory protection.
In that one must recognize privilege for officials, but injustice to
citizens. This does not exist in France.
The truth is that such immunity is unavoidable with rega
to the judiciary functions. We cannot criticize the rule th

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30 THE "CONSEIL D'ISTAT" IN FRANCE.
exonerates from liability all officers employed in the search for
criminals and delinquents. No profession, indeed, implies more
numerous risks of committing more dangerous mistakes.
Nevertheless, no one thinks of allowing a citizen who has been
wrongly prosecuted to prosecute reciprocally his prosecutor. It is
admitted in England as much as in France that such risks are
unavoidable. But I have just stated that similar immunity for
identical reasons (chiefly for the protection of the officials) was
extended in England to numerous agents in charge of adminis-
trative services.
Never, in France, has complete immunity been admitted for other
officials than the members of courts and tribunals. Formerly the
government of Bonaparte had put in the consular constitution
an article to the effect that no servant of the State could be
prosecuted even for personal fault committed in the service with
an authorization of the Council of State. It was not immunit
it was only precaution for the avoidance of unjust and vexati
prosecutions against officials. This institution was known un
the name of the garantie des fonctionnaires. Observe that th
was no privilege in favour of public agents. Without doubt,
authorization is needed to prosecute a simple citizen; but
could one conceive of prosecuting a citizen for an act commit
in his function, since he exercises no function at all ?
Moreover, we must add two remarks: If there was question
faults, torts and damages committed not by a state servant,
by a municipal or provincial agent, no authorization was neces
for claiming justice from the ordinary courts.
Secondly, it is sixty years since the law to which I have r
ferred has ceased to exist. The first decree of the governmen
M. Thiers after the fall of the second emperor abrogated
garantie des fonctionnaires and also all other dispositions of gene
or special laws having for their, aim the hindrance of the prosec
tion of public officials of every kind (that is the exact transla
into English of the decree passed September 19, 1870).
So, therefore, since 187o0, nothing has hindered the prosecuti
of any official for personal fault before the ordinary courts.
But what has been said only applies to the prosecution of offic
for personal faults, not for fautes de service. Between these
kinds of faults a fundamental difference is made in French legis
tion. This is clearly explained by Professor Morgan: "The fa
personnelle is an act or default accompanied by 'malice' in

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THE "CONSEIL D'1PTAT " IN FRANCE. 31
sense of an improper motive; and, where this feature is absent,
the act or default, although wrongful, is regarded as a faute de
service over which the administrative courts alone have jurisdiction."
We must add that, in practice, it is not always easy to discern
if a deed of which one complains constitutes a faute de service or a
faute personnelle. Should a difficulty arise on this point, it is
brought before the tribunal des conflits, composed of an equal number
of Conseillers d'J8tat and of Conseillers 4 la Cour de Cassation. The
only question to be decided is not if a compensation, or what
compensation, is to be allowed, but who is responsible for it, the
service or the servant ?

In every case, if there is proof of an illegal damage having been

committed, the citizen is certain to obtain compensation.
It must not be supposed that the citizen is less protected if the
State should be his debtor and the Council of State his judge, than
if the judge should be the ordinary tribunal and his debtor the
guilty state servant. It is quite the contrary. The conception of
the Council of State with regard to natural justice is much broader
than that of our civil jurisdictions.
Our tribunals, following the strict letter of our private law,
consider that responsibility is grounded on the idea of a fault.
See art. 1382: Tout fait de l'homme qui cause dommage d autrui
oblige celui par la faute duquel il est arrive' d le riparer : i.e. " Every
act of a man causing damage to another obliges the man by whose
fault the act is committed to repair it." If no fault is proved no
compensation is to be allowed. Should my window be broken by a
madman, I cannot sue the madman for compensation. The deed
is considered an accident, just as if I had been the victim of a
thunderbolt.

On the contrary, when the responsibility of the State is in

question the Council of State takes the risk into account, and not
the fault.

One finds frequently in the decisions of our Council of State this

remarkable dictum: Attendu que la responsabilite de l'Etat n'est ni
gindrale ni absolue, qu'elle a ses ragles propres qui varient suivant les
besoins des services, etc.: i.e. "Whereas the liability of the State
is neither general nor absolute, that it has its particular rules,
which vary according to the needs of the services," etc.
One might infer from these terms that the Council of State would
be inclined to be more indulgent in appreciating the liability of the
State than the tribunals in judging the responsibility of individuals.

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32 THE "CONSEIL D'ItTAT " IN FRANCE.
It is sufficient to be acquainted with the jurisprudence to recognize
that the supreme administrative court has pushed to the utmost
limits the duty of compensating whosoever can prove that he has
been injured, by any act whatsoever of an official of any kind and
in any sort of public service.
In conclusion, I shall be glad if what I have said has shown to
those who may still have doubts on the subject that administrative
law exists; that it constitutes an important branch of juridical
science, since good order in the State depends on it; that this
science has been brought in France to the highest degree of per-
fection; and that we are not to be pitied on that account, but
more justly to be envied. We must not forget that we owe these
advantages and guarantees of justice to the great institution
created by Napoleon, the Conseil d'Etat. Administrative law in
France has become, in English terms, a real equity.

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RADOVI _____________________________________ 35

Judicial Control of Administrative

Authorities in Europe:
Toward a Common Model*
Jean-Marie Woehrling**
UDK 351.94(4)
Prethodno znanstveno priopćenje (preliminary scientific report)
Primljeno 4. 4. 2006.
Prihvaćeno 24. 7. 2006.

The paper analyses thè most fundamental aspects of thè ju­

dicial control of administrative authorities in the different
European countries. Behind the diversity of philosophical
backgrounds and organisational models, there are common
references and similar tendencies in the évolution of judi­
cial review on public administrations, revealing a growing
européanisation of this issue. The choice of giving judicial
review of public bodies to specialized administrative courts

This paper has been prepared for the OECD Sigma Programme as part of a multi-
-country seminar on European Integration and Administrative Reform that took place in Budva,
Serbia and Montenegro, 4-6 December 2005. It is used here courtesy of Sigma. For further
HRVATSKA JAVNA UPRAVA

information, please contact Anke Freibert, Sigma Programme: Email: [Link]@oecd.

org. Tel: +33 1 45 24 13 99; Fax: + 33 1 45 24 13 05. This document has been produced with
the financial assistance of the European Union. The views expressed herein are those of the
authors and can in no way be taken to reflect the official opinion of the European Union,
and do not necessari!/ reflect the views of the OECD and its Member countries or of the
beneficiary countries participating in the Sigma Programme,
★* Jean-Marie Woehrling, Secretary General of the Central Commission for the
Navigation on the Rhine, fellow of the Ecole Nationale d Administration and former presi­
dent of the Administrative Court in Strasbourg, France (glavni tajnik Središnje komisije za
plovidbu Rajnom, nastavnik Državne škole za upravu i bivši predsjednik Upravnog suda u
Strasbourgs Francuska)
Jean-Marie Woehrling: Judicial Control of Administrative Authorities in Europe ...
HRVATSKA JAVNA UPRAVA, god. 6. (2006.), br. 3., str. 35-56
36

or leaving it by ordinary courts appears to be of secondar/

importance. What is really decisive to assess thè qualiiy of
administrative j ustice is how to combine thè protection of
»subjective rights« and the promotion of »objective legali­
ty« and how regulate the conditions of admissibility to the
courts (standing), define the scope of the control (acts and
actions that can be submitted) and guarantee the inten-
sity of vérification (the issue of »discretionary powers«).
Everywhere in Europe, there is an extension of the concept
of legality, which enlarges the framework of judicial con­
trol, a growing influence of the European Court of Human
Rights and the European Court of Justice and an increas-
ing process of exchange between judges and lawyers of dif­
ferent countries. All these exchanges have contributed to
thè emergence of a set of major principles of European
administrative law and to the emergence of a common Eu­
ropean model of judicial review in the field of administra­
tive action.
Key words: judicial control of administration, common Eu­
ropean model, European administrative law, good gover-
nance, legality, specialised and independent administrative
judges

A state based on the rule of law implies the capacity of citizens to

submit administrative actions to judicial control. Moreover, judicial
control appears to be an indispensable instrument to enhance the
quality of administrative action and ensure good governance. It is also
fundamental for international economic exchanges, since security of
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trade and investment dépends on public decision-making bodies being

subject to effective means of oversight and redress.
All European countries have now accepted this fundamental idea,
which has resulted in a reinforcement of the rôle of the courts in Con­
trolling public administration throughout Europe.
Even if this development is based on different traditions, an increas-
ingly solid framework of common principles is emerging. If there re-
mains a legitimate diversity in the foundations and models inspiring
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37

the national Systems of administrative justice in European States, a

significant convergence can be ascertained and major tendencies in
the development of forms of control are largely similar in the whole of
Europe.
To illustrate this évolution, three aspects of this question will be pre-
sented:
- The foundations of judicial control of the administration,
- The main models in the Organization of control of administra­
tion by the courts,
- Major tendencies in the development of judicial review of
public authorities.

I) Foundations of Judicial Control of the

Administration

Judicial control of administrative authorities is based on different con­

ceptions and traditions concerning:
- the objectives,
- the position,
- the philosophy
of this kind of control in relation to administrative action.

1) Two Objectives of Judicial Control of the Administration

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Europe has historically been divided between two conceptions of con­

trol of the administration by the courts:
- a »subjective« conception: Courts are responsible for establish-
ing the subjective rights of individuata who hâve been wronged by the
administration. This is thè idea of Rechtsschutz: developed especially
in Germanie countries and in Central Europe where the rôle of the
courts is to ensure judicial protection of individuata against the admin­
istration.
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- an »objective« conception: The courts control thè administration’s

respect for legality. The subject of appeal is thè objective legality and
thè regulär legai functioning of thè administration. This idea of judicial
control of administrative actions follows thè French tradition (inclu-
ding Belgium, Portugal, Greece, etc.).1
In thè context of objective legality, thè administration’s obligations
and constraints are first defined in order to then deduce thè rights
of individuals. Focusing on subjective rights, thè starting point is thè
citizen and thè définition of his/ her rights, so as to then deduce thè
conséquences imposed on thè administration.2
These two conceptions resuit in different rules of admissibility (locus
standi), rules of procedure and scope of control.3 However, nowadays
there is an ever increasing sensitivity to the complementary nature of
these two approaches, and the most evo Ived judicial Systems attempt
to combine them.

2) Position of Judicial Control in the Administrative Process

Administrative justice has been placed within one of two judicial Sys­
tems, depending on the historical context:
- Administrative justice as a branch of the general judicial System:
Administrative courts are above ail courts, with ail of the correspond-
ing characteristics (independence, impartiality, adversarial procedure,
legal expertise, decision-making based on law). This approach empha-
sizes the organic and functional séparation between administrative ac-

1 To cite a Portuguese jurist, Maria da Gloria Dias Garcia: »Administrative justice

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is not limited to the guarantee of citizens’ rights. Its justification also lies in the necessity
to defend the public interest and to guarantee a balance between individual rights and the
general interest.«
2 A third approach could perhaps be set apart, which characterises English law: The
starting point is the judge, with his/ her rules of procedure, powers and constraints, thereby
defining the rules of a fair process where each party has a chance.
3 In particular, under the »subjective« conception, the claimant must be able to invoke
a subjective right that has been violated. Respect for this right is itself subject to control by
the court. This control will be complete, however. In the objective System, simply beingable
to justify a legitimate interest suffices to daim the violation of a rule that does not affect a
subjective right. However, the control will be less thorough.
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tions and judicial control. This dimension of administrative justice has

been rigorously upheld by the precedent set by article 6 of thè Euro­
pean Convention on Human Rights.
- Administrative justice as a phase in the decision-making process of
the administration and as an instrument for justifying administrative
actions: According to a famous phrase of a French lawyer in the 19th
Century,4 »judging the administration is still part of the process of ad-
ministrating«. The objective sought is the best administrative decision.
Administrative procedure détermines criteria and behaviour, and the
judicial procedure is the extension of this procedure. In the event that
the administrative decision is annulled, a new administrative proce­
dure generally follows, with a view of correcting the error pointed out
by the court. No complete séparation therefore exists between the ad­
ministrative phase and the judicial phase: The two combined produce
»right decisions«.

3) Philosophy of Law: Two Systems

Across Europe two tendencies can be seen in the System of judicial

control of the administration:
- A »substantialist« tendency: The rôle of the judge is to find the »right
solution« corresponding to a »legal truth« and to guarantee its ap­
plication. This approach concentrâtes control over the content of the
contested decision. If the decision conforms to the right solution, it
must prevail, even if it is impaired by procédural flaws.5
- A »procédural« tendency: As neither the judge nor the administra­
tion really knows the right solution, it is necessary to simply verify
that the decision taken was »fair«; in other words, that it was made
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following an équitable procedure that permitted each party to voice its

opinion. This could be referred to as »procédural truth«.6

4 Henrion de Pansey (1742-1829).

5 This tendency is perceived especially in Germany.
6 This approach is typical of the United Kingdom.
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II) Different Options in thè Organisation of

Control of thè Administration by thè Courts

Judicial review of administrative decisions is organized in different

ways in European countries. To describe these various options, four
dimensions can be mentioned:
- institutional choices
- requirements concerning the capacity to take action
- extent and intensity of control
- procédural rules

1) Institutional Choices

The traditional choice which opposed the European countries was

between an administrative Jurisdiction that is auto no mous and one
that is integrated intő the judicial system: States that have set up a
specialised administrative jurisdiction have been placed in opposition
to those having maintained control of the administration through the
competency of common courts.
Developments over the past 20 years have shown that this opposition
did not necessarily correspond to an essential différence.
There are in fact two conceptions of specialised administrative juris­
diction:
♦ Spécialisation of certain courts within the judicial system in judicial
control of the administration; these courts nevertheless remain subject
to the same Statutes and principles as the rest of the judicial system.
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This conception is therefore one of a simple functional jurisdiction.

♦ Creation of an administrative jurisdiction that is fundamentally dif­
ferent in nature and organisation from judicial jurisdiction.
Besides, it is increasingly rare - even in countries maintaining the unity
of jurisdiction - not to have, in one form or another, specialised judges
responsible for administrative litigation (specialised chambers in com­
mon law courts, special administrative appeals commissions with ju-
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dicial functions,7 or other types of bodies specialised in administrative

liti gâtions).
The need for the spécialisation of judges in certain fields of public law
has been recognised nearly everywhere in the face of public law that
is increasingly detailed and complex. The practical details of this spé­
cialisation may vary from country to country.
The solution of specialised chambers within ordinary jurisdictions is
developing more and more (Netherlands, countries of Eastern Eu­
rope, Spain, etc.). It should be noted, however, that the existence of
a separate administrative Jurisdiction remains the best means of pro-
moting the development of a jurisprudence that is specifically adapted
to control the administration.
However, in countries where these separate administrative jurisdic­
tions exist, a process of rapprochement with ordinary jurisdictions has
taken place. These courts are expected to provide the same guaran-
tees of impartiality and independence: Administrative judges must be
authentic judges and not civil servants examining more or less formai
administrative complaints.
Finally, in no country all of the litigations concerning public adminis­
tration hâve been brought before specialised jurisdictions. Most often,
economic or patrimonial activities of the administration come under
ordinary jurisdictions. The définition of public law litigations is just
as varied. In particular, depending on thè country, measures relating
to social assistance or social security come under either administra­
tive liti gátion or private liti gátion. In recent years, the civil service has
sometimes been transferred from administrative jurisdictions to either
civil or labour jurisdictions.
In summary, the necessity of having judges specialized in thè control
of the administration is becoming more and more apparent, but they
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must remain real judges.

It is this quality of genuine jurisdiction, which is characterized by com-
pletely independent judges that must be emphasized today.

7 For example, in the United Kingdom, which for a long time had been against the
idea of autonomous administrative law, there are a large number of »administrative tri-
bunals«, quasi-judiciary commissions responsible for settling administrative litigations, and
now also an »administrative court« within the High Court.
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An independent and impartial court, according to thè criteria of thè

European Court of Human Rights, signifies:
- »objective« impartiality: The administration must have no
means of exerting influence on administrative judges; indi­
viduata and thè administration must be on completely equal
terms;
- »subjective« impartiality: Even if thè administration in effect
exerts no influence on judges, any appearance of a lack of neu-
trality constitutes in itself an infringement of impartiality.
Moreover, to guarantee thè independence of administrative judges,
special précautions must be taken concerning their nomination, pro­
motion, or any possible disciplinary sanctions they may be subject
to. In numerous European States, special bodies, independent of exe­
cutive power, have been created to assume responsibility for taking
these kinds of decisions. These »Superior Councils of Administrative
Jurisdiction« are usually composed of judges, members of parliament,
représentatives of supreme jurisdictions and of the Ministry of Justice,
and specially qualified persons (such as academies).

2) Paving the Way for Judicial Remedies; Wide or Narrow

Conditions of Admissibility

Besides the rules of admissibility of secondary importance (delays for

appeal, types of remedies, required assistance of a lawyer, exhaustion
of preliminary administrative appeals, etc.), the different European
Systems of judicial control of the administration can be distinguished
in terms of the requirements concerning the capacity to take action
(standing).
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- Some countries limit the right of appeal solely to those individuata

who are directly affected by the challenged decision or for whom the
contested public action infringes a personal right protected by law;8
- Other countries allow all individuata having a legitimate interest to
take action against an administrative decision, as this interest can at

8 Germanie States and countries of Central Europe.

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times be very faint.9 It can be legai or purely factual, economie or only

moral, etc.
The latter approach is rather clearly gaining ground. A restrictive con­
ception of thè right of appeal increases thè duty of control of admis-
sibility by the courts, without reducing considerably the number of
appeals. It does significantly reduce thè possibility of appeal by groups
representing collective interests (associations for the protection of the
environment, unions, etc.), which constitute precious allies in the ef­
fective control of certain decisions.
In practice, in terms of quantity, most appeals are made by individu­
ate who hâve been directly wronged. However, appeals submitted by
individuate who cannot put forward a personal right infringed (in par-
ticular appeals by associations) are often those which most help to
improve thè scope of judicial control of the administration and to best
promote the development of case law.

3) Scope of judicial control of administrative action: Extent

and intensity

Another fundamental aspect concerning the organisation of judicial

control of administrative authorities concerns thè scope of this con­
trol: What is controlled and how far is the control going?

a) Extent of Control: Actions and Behaviour of the Administration

that can be submitted to the Courts

The simple establishment of a System of judicial control of administrative

action does not suffice. The System must also effectively cover the scope
of activity of the administration and not include any significant gaps.
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Even if all European States have a System of judicial control of the ad­
ministration, many have maintained »no-control zones«, which must
be reduced. In fact, if the rule of law is to be promoted, it is not ac­
ceptable that in certain sectors the state can violate its own law with
impunity. Depending on the field, the law can undoubtedly be more

9 States influenced by French law.

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or less demanding and thè judge’s control more or less complete, but
respect for thè law must be ensured, and thè right of appeal before a
court must exist for ail public actions.
Developments in recent years hâve made it possible in most European
countries to reinforce thè extent of judicial control in thè following
areas:
- »Government Acts«: Some administrative decisions hâve remained
excluded from judicial control because of their »politicai« content or
because they concern the most important public powers of thè state.
This reason for exclusion of judicial control is increasingly being chal-
lenged10 once these decisions hâve an impact on legal situations.
- »Internal Measures of Order«: As opposed to government acts, in
some countries certain decisions on the internai management of the
administration do not come under the scrutiny of the courts as they
are judged to be too unimportant. However, once these decisions hâve
an effect on a third party, they must be subject to judicial control.
This concerns in particular decisions concerning prisoners or military
personnel.
- Regulatory measures or statutory instruments: These kinds of admini­
strative actions rather frequently undergo specific appeals processes,
but it would be incohérent to exclude them from judicial control when
these actions serve as a basis for individual decisions, which in turn are
subject to judicial control.
- Contractual actions, in particular public tenders: In some national
Systems, on the pretext that these actions come under private law and
interest only the parties to the contract, they hâve often been excluded
from judicial control, even in States that aim to place the administra­
tion completely under the law.* 11 Thanks to EU law, these actions hâve
been incorporated in a System of judicial control, whether they are
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litigations related to the conclusion or to the implémentation of con­

tractual actions.

10 See, for example, the Spanish law of 1 July 1998.

11 This was the case until recently for public tenders carried out by the German ad­
ministration.
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b) Intensity of Control: Judicial Control of thè Power of Assessment

accorded to the Administration (thè issue of »discretionary power«)

Apart from cases where the law sets out in detail the conditions of admin­
istrative activity (»bound compétence«), the lawoften leaves the adminis­
tration a more or less wide margin of opportunity. In all judicial Systems it
constitutes a complex issue of knowing the extent of control by the courts
over the use of this power to exercise discrétion. It is a delicate issue, as it
requires the combination of two contradictory concerns:
- reinforcing control over the use of this power, which can be a
source of arbitrary action;
- maintaining thè scope of manoeuvrability and expediency that
the law intended to grant the administration so as to ensure
sufficient flexibility.
To respond to this difficulty, diverse judicial Systems hâve developed
varied but similar arguments.
First of all, in each administrative situation it is necessary to define the
limits of discretionary power. A legal analysis reveals that discrétion does
not involve an interprétation of the law but only an assessment of the
facts. Even if the law uses »indeterminate legal concepts«, such as »public
security« or »immorality«, it is up to the judge to verify if the interpréta­
tion given to these concepts by the administration is correct; the interpré­
tation of legal concepts is a question of legality and not of opportunity.
- Moreover, the exercise of discrétion has to be analysed as an assess­
ment power; this power is set in the framework of a number of general
principles that limit its scope of application: the principles of equality,
proportionality, legitimate expectation, etc.
- Second, the évaluation of facts corresponding to the exercise of dis­
crétion must respect certain rules: The administrative authority must
be sure to gather ail pertinent facts and to disregard any that are ir­
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relevant. These facts must be brought to the attention of the parties

concerned, who can then discuss them (giving the reasons for the deci­
sion envisaged, fair hearing procedure). Finally, the different factual
elements of assessment must be weighed, with a view of respecting
their relative importance, as fixed by law.
- The administration must also be sure to take intő considération the
objectives and proper purposes set by the authority that has granted
it thè power of assessment. This power is to be used only to reach
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the goals for whích it has been established and no other; otherwise it
would constítute a »misuse of power«.
- The administration must also make a reai and complete use of its
power of assessment. It cannot maintain a position of principle or a
priori without examining thè particular circumstances of each case.
- Finally, if while respecting the above rules the administration is in
a position to make an assessment of the facts, it is up to the judge to
correct this assessment if it appears to be obviously excessive or un-
reasonable.
These rules concerning the exercise of discrétion, which are shared by
most European administrative jurisdictions, are more or less strictly
applied depending on the circumstances and thè country. They allow
for a rigorous control of the administration without depriving it of the
authority and scope of action it requires.

4) Rules of Judicial Procedure

The methods of examination of remedies or appeals presented to the

administrative judge are based on certain common general principles,
but also reflect divergent traditions:
- Common principles: These principles guarantee: the equality of the
parties12 in having the possibility of advancing their respective argu­
ments; the adversarial nature of the procedure (by which all parties
must be informed of all elements under debate and in particular the
arguments of the adversary); the possibility of responding to any ob­
jections that thè court may raise without consultation; and thè neutra­
li ty of thè jurisdiction in handling thè case.
- Divergent traditions: The role of the judge in handling thè case is un-
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derstood in various ways. In some countries, the judge is asked to take

an active part in seeking thè truth. He/she must direct the debates,
seek possible irregularities that may affect the action in question or,
on the contrary, seek arguments for justifying the validity of the action

12
The European Court mentions the idea of »égalité des armes«.
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(this kind of procedure is sometimes called »inquisitorial« or proce­

dure under thè direction of thè court).
Another conception consists of considering the judge as only a passive
arbitrator, who listens to the arguments of the parties without taking
an active part in the search for pertinent elements (procedure referred
to as adversarial, leaving the parties to determine the conduct of the
procedure).
Each of these methods has its advantages and disadvantages. The in­
quisitorial procedure is very demanding on the judge and risks making
him/her appear as lacking impartiality. The adversarial procedure re-
sults in the trial being won by the most skilful party and not necessarily
by the one who is in the right. Such a procedure places the judge in a
situation where he/she is incapable of pointing out the irregularity that
he/she alone has noticed. An active intervention of the judge may be
necessaryto counterbalance the inequality between the public admini­
stration and a private claimant.

5) Appeal or révision of judgments of administrative courts

There are different forms of appeal within the judicial System of con­
trol of administrative authorities. No general rule exists in this field.
Several countries had in the past only one instance of judicial control
of the administration. But this situation has become exceptional. In
most of the European countries, the number of instances has been
increased to two instances and often three, one instance of appeal
from the first judicial decision and one instance of révision from the
decision taken on appeal level. Sometimes, very important daims in-
teresting thè whole country go directly to the highest administrative
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court, but most decisions are subject to several instances.

The expérience of most European countries is that this solution is the
best to deal efficiently with an increasing number of complaints and to
grant the best quality of judicial control.
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III) Tendenđes in thè Development of Judicial

Control of thè Administration

1) Extension of thè Concept of Legality

In its original conception, the principle of legality signified the respect

of the administration (as a branch of the executive) for the law (passed
by parliament). The concept of legality, in its different national con­
ceptions (mie of law - Gesetzesvorbehalt), was therefore limited to the
compliance of the executive authority with the legislative framework.
This conception has since long ago revealed its limitations, especially
when the same politicai majority Controls executive actions and holds
legislative power.
Nowadays, in most European countries, the principle of legality has
a much larger scope. It signifies not only the administration’s respect
for the directions given by the legislator but also its observation of the
constitutional framework and respect for international (especially Eu­
ropean) norms. In this context, the administrative judge is not only the
guarantor of the administration’s respect for legislative rules but also
the judge of thè legislatori respect for constitutional rules and of the
compliance of national norms with EU law and international law.
It is therefore not uncommon for an administrative judge of a Eu­
ropean state to sanction the administration for having faithfully ap­
plied a lawthat is itself contraryto European law.13 This »paradigmatic
change« is no longer really contested, but its scope has not yet been
totally integrated intő a number of national judicial Systems of control
of the administration.
In a larger framework, thè control of legality also signifies control of a
set of superior principles. Administrative judges have often set down
general principles of administrative actions that are frequently given su­
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pra-legislative value: the principles of impartiality, non-discrimination,

proportionality, legitimate expectation (i.e. respect for the justifiable
expectations of individuate), etc.14 At the same time, administrative

13 This applies equally to the administrative judge with regard to respect £or the Euro­
pean Convention on Human Rights.
14 These principles are discussed below.
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courts hâve developed legal instruments that oblige thè administration

to respect its own rules, norms, and instructions.
The respect for the legality of administrative activity ensured by the
judge is therefore not limited to respect for legislative acts alone but
now includes conformity with a complex hierarchy of norms and a set
of fondamental values.

2) Européanisation of Judicial Control of the Administration

Previously, judicial control of the administration constituted one of
the legal sectors that was most affected by national politicai history
and least sensitive to trends in comparative law. Today, this sector has
also become an »open sector« for several reasons:
- International economic exchanges require - for the security of In­
vestments and trade - that the behaviour of public decision-making
bodies be subject to effective means of redress through appeal. If the
decisions of administrative authorities do not respect a minimum stan­
dard of legality, predictability and accountability, no state whatsoever
can hope to attract external entrepreneurs, who want to be given suf-
ficient legal guarantees.
-The body of European legal principles concerning judicial control of
public administrations has taken on an important rôle:
♦ The jurisprudence of the European Court of Human Rights has as-
sumed a very important rôle in the définition of minimum standards
for judicial control of the administration (resulting from a wide inter­
prétation of article 6 of the European Convention on Human Rights
with regard to penal matters and civil and politicai rights, the applica­
tion of article 13 on the right to effective remedy, as well as the appli­
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cation of thè principle of proportionality in thè control of limitations

on liberties, etc.). The Convention and the jurisprudence interpreting
it are - as a general rule15 - applied directly by national jurisdictions.
♦ The jurisprudence of the European Court of Justice has also had
a positive influence on the rapprochement of national traditions of

15 Sometimes with specific special clauses, as in the United Kingdom, where a special
law has been adopted.
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judicial control. It has a direct influence on EU Member States, and

an indirect influence on candidate countries. Admittedly, national ad­
ministrative and judicial bodies serve as instruments in thè application
of EU law in accordance with their own procedures. This procédural
autonomy is nevertheless limited by two factors: Effective implémen­
tation of EU law and équivalent conditions of implémentation. EU ju­
risprudence, in taking its inspiration from national laws, has borrowed
certain concepts or principles of national laws and applied them on
the EU level (principle of légitimate expectation, etc.). Several con-
tentious techniques applied by the Court of Justice (legal notion of
liability, control of discretionary power, etc.) resuit írom a synthesis of
different national traditions. In addition, there are some extraordinary
cases of alignment of internal law with solutions adopted by EU law.
♦ Various European institutions - Council of Europe, OECD (SIG­
MA), etc. - hâve played a rôle on the »doctrinal« level. These insti­
tutions develop recommendations and at times special conventions,
as well as diffuse numerous information documents or studies, defin-
ing »good practices«, common standards, recommended techniques,
etc.16 concerning the judicial control of administrative authorities.
- The process of exchange and influence between European coun­
tries has played a particularly important role in the reorganization of
the countries in Central and Eastern Europe following thè politicai
changes at the end of the 1980s. Nowadays, it is no longer rare for a
national jurisdiction of a European state, when examining a delicate
case, to refer to the law or the jurisprudence of other European States.
To adapt their législation and construct a System of judicial control of
the administration adapted to the current conception of a state based
on the rule of law, these countries hâve borrowed considerably from
the laws and doctrines of other European countries, thereby reinforc­
ing the process of intra-European rapprochement concerning the legal
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framework for judicial control of the administration.

16 Numerous European professional institutions of magistrates hâve been set up and

serve as a framework for exchanges, studies, training and comparison: European Association
of Supreme Administrative Jurisdictions, European Union of Associations of Magistrates,
European Academy of Magistrates of Trier (Germany), etc.
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3) Emergence of a Set of Major Principles of European

Administrative Law

Beyond thè special rules of implémentation at national level, judicial

control of thè administration in Europe has set down a number of ma­
jor principles that convey in concrete terms thè notion of a state based
on the rule of law. These principles constitute basic references for ail
European administrative law.

a) Pre-eminence of the rule of superior rank

This principle requires that each rule or decision applied by the ad­
ministration must be compatible with the rules of a superior value. In
the event of its incompatibility with these superior rules, the adminis­
trative authority must not apply it, and jurisdictions must sanction it.
The application of this principle, by recognizing the most important
rules, guarantees their stability and protection with regard to politicai
changes.

b) Subordination of individual decisions to general rules

This principle guarantees the predictability and absence of arbitrary
power in administrative actions, as well as the conformity of its actions
with defined and known objectives. This does not exclude, however,
adaptation for special cases. The general rules guiding individual ad­
ministrative actions must be fixed by parliament whenever they con-
cern rights and liberties.

c) Idea of legal security constitutes a special example of the preceding

principle
This idea results especially in the ban on applying rules or decisions
retroactively other than in the case of necessity in the general interest,
HRVATSKA JAVNA UPRAVA

as declared by the legislator.

d) Principle of legitimate expectation

An extension of judicial security, this principle requires the admini­
stration to respect its commitments or promises, but also takes into
account the justifiable expectations17 that the administration has given

17 UK case law refers to »legitimate expectation«.

Jean-Marie Woehrling: Judicial Control of Administrative Authorities in Europe ...
HRVATSKA JAVNA UPRAVA, god. 6. (2006.), br. 3., str. 35-56
52

to the general public or to individuate. The conséquence of this rule is

that the administration must in principle follow its own instructions.
Another result is the principle of respect of acquired rights and situa­
tions established under legitimate conditions.

e) Principle of equality
This principle must in fact be understood as a rule of non-discrimi-
nation for unjustifiable reasons, but also as an obligation for special
treatment in cases where it is necessary in order to guarantee genuine
equality.
The different treatment of similar situations therefore constitutes dis­
crimination, but also thè equal treatment of different situations. The
administration must avoid arbitrary power and unjustified différences
in the exercise of its power of assessment.

f) Principle of impartiality
Impartiality constitutes an extension of the principle of equality. How-
ever, it also signifies that public authorities must show themselves to
be neutral with regard to special interests and only seek to serve the
public interest.

g) Principle of proportionality
This principle constitutes the legal translation of thè idea of equity and
appropriateness:
- Public measures must be likely to ensure that the expected result will
be obtained. An obviously inappropriate measure taken to reach the
desired goal cannot be legal.
- A weighing of advantages and disadvantages of the measure must
be carried out. A measure that would have serious disadvantages and
reduced advantages cannot be justified. The idea of weighing18 the
HRVATSKA JAVNA UPRAVA

conséquences of a project is central to all planning law.19

- The administration must seek to minimize infringements of indi­
vidual interests that its action could entail. Unnecessary infringements

18 Abwägung in German.
19 On the judicial ievel, this idea is applied in its negative aspect: courts sanction the
absence of any weighing process or an obvious disequilibrium in the balance between advan­
tages and disadvantages of an action.
Jean-Marie Woehrling: Judicial Control of Administrative Authorities in Europe ...
HRVATSKA JAVNA UPRAVA, god. 6. (2006.), br. 3., str. 35-56
53

must be avoided. In particular, in thè case of police measures, it is

necessary to give priority to actions that permit thè attainment of thè
objective and are least strict for thè individuata concerned.

h) Principle of accountability/liability
The administration is accountable for its actions and liable for the
préjudiciai conséquences they could hâve. It is therefore obliged to
compensate the victims of a préjudiciai action if this préjudice:
- results from faulty behaviour of the administration;
- results from a violation of a rule or law; or
- adversely affects an individuai or a small group of persons,
whereas the préjudiciai action profits general interest.
The principle of public liability is therefore a conséquence of the prin­
ciple of the equality of citizens in the face of public power.

i) Principle of fairness
This principle implies respect for the adversarial nature of the pro­
cedure and for thè right of a fair hearing: Draft decisions that could
infringe the interests of an individuai must be brought to the attention
of the interested parties - except for special reasons - so that they can
make their observations known.

j) Rule of transparency:
Following the preceding principle, the administration must dissemi­
nate appropriate information on the decisions it will take or has taken
and ensure public access to administrative documents that are not
covered by legitimate secrecy.
HRVATSKA JAVNA UPRAVA

4) Integration of the objective of good governance in the

mechanisms of judicial review of administrative action

In many aspects, thè control performed by the courts is not adversarial

to the strength of administrative action. On the contrary, it can help to
increase the efficiency of public administration:
- Judicial review strengthens the quality of administrative decisions.
Jean-Marie Woehrling: Judicial Control of Administrative Authorities in Europe ...
HRVATSKA JAVNA UPRAVA, god. 6. (2006.), br. 3., str. 35-56
54

The rule of law is not only a guaranty for thè citizen; it is also a good
guideline for rational, upright, and efficient work of the administrative
bodies. The effectiveness of a review by independent courts commits
public servants to take decisions based on legal grounds that can be
justified before judges. If an illegal decision is set aside, it must not be
seen as a defeat for the public authority but as a désirable correction
of its action.
- Judicial review improves the legitimacy of public decisions.
Courts and administrative bodies are not adversaries. A lawsuit can
help public authorities to justify unpopulär decisions. Proceedings be­
fore the courts may be an opportunity to explain the grounds of a
contested decision.
- Judicial review can help to regularize illegal decisions.
The sole abolition of an administrative action is often insufficient as it
créâtes a legal void that is then difficult to fili. The judge can help to
overcome this void by indicating to the administration the path to fol-
low and the laws to be respected, and then by ordering the actions to
be taken. Thus in several countries, the powers of déclaration and in-
junction hâve been developed for thè benefit of administrative courts.
These powers permit them to go beyond the annulment of illegal de­
cisions and to re-establish administrative legality by indicating to the
administration how to draw the conséquences of an abolition.
Another tendency aims to permit a judge to correct on his/her own
the established irregularity. Following this logic, administrative courts
hâve developed procedures aimed not only at establishing legal irregu-
larities concerning administrative actions but also at rectifying the situ­
ation as much as possible instead of purely and simply annulling these
actions. Several techniques hâve been developed for this purpose:
HRVATSKA JAVNA UPRAVA

♦ The judge can accept or even invoke a substitution of reasons or legal

basis for an action that includes an irregularity in this respect. In other
words, in the course of the procedure he/she accepts the modification
of the factual or legal elements forming the basis of the decision under
attack.
♦ He/she can decide or order the correction of certain procédural er-
rors, for example by setting up complementary legal measures of in­
struction that could compensate for the established irregularities.
Jean-Marie Woehrling: Judicial Control of Administrative Authorities in Europe ...
HRVATSKA JAVNA UPRAVA, god. 6. (2006.), br. 3., str. 35-56
55

♦ The judge can be called on to intervene even before a decision is de-

finitively adopted to correct an ongoing procedure if there is a doubt
about its regularity.20
An other method consists of adjusting thè effects over time of the ju­
dicial quashing of an administrative decision (this concerns especially
regulatory actions). Instead of proceeding with a total abolition, it is
pronounced for the future - and even on a conditional basis if within
the prescribed time limit the administration does not take any correc­
tive action.21
- Judicial review can cope with time constraints.
It is fundamental to adapt the speed of judicial control to the request
of celerity which is today imposed to administrative and economic life.
To this aim, it is necessary to develop effective procedures of interim
relief and of interlocutory injunctions. Especially courts must be able
to decide with a large discrétion on the suspensive effect of the claim.
Moreover, in several countries, courts hâve been able to develop seve-
ral models of »fast track« procedures and caseload management in
view to regulate properly the flow of cases and to reduce delays in the
processing. The time taken to obtain a decision and the possibility to
get an interim protection before the final decision are decisive ele­
ments to evaluate the effectiveness of justice. Procédural instruments
allowing an early intervention of courts in the process of administra­
tive decision can help the administrative authorities to achieve better
decisions. HRVATSKA JAVNA UPRAVA

20 This kind of urgent procedure exists in France in the area of public procurement
and is called »référé précontractuel«.
21 Such techniques are applied by the EU judge, the German constitutional judge,
and more recently by the French State Council (Conseil d’Etat).
Jean-Marie Woehrling: Judicial Control of Administrative Authorities in Europe ...
,, HRVATSKA JAVNA UPRAVA, god. 6. (2006.), br. 3., str. 35-56
50 _________________________________________________________________________

SUDSKA KONTROLA UPRAVE U EUROPI:

PREMA ZAJEDNIČKOM MODELU

Sažetak

Sudska kontrola uprave pokazuje veliku raznovrsnost u različitim europskim

zemljama. Ipak, iza te raznovrsnosti stoje zajednička ishodišta i ograničen
broj organizacijskih modela. Glavnu tendenciju u razvoju sudskog nadzora
javne uprave predstavlja europeizacija.
Mogu se razlikovati dvije svrhe sudske kontrole uprave, zaštita subjektivnih
prava i zastupanje objektivne zakonitosti. Te su dvije svrhe u vezi s dva različita
koncepta upravnog sudovanja, kao dijela pravosudnog sustava ili kao faze (i
dijela) upravnog odlučivanja. Oni bi se mogli povezati i s dva različita pogle­
da na ulogu sudova, »supstancijalisticko« traženje pravog rješenja ili proce­
dúráim pristup koji ide za nepristranim ispitivanjem suprotnog stajališta.
Organizacijske varijante, od povjeravanja sudske kontrole djelovanja javno­
pravnih tijela specijaliziranim upravnim sudovima do njezina dodjeljivanja
redovitim sudovima, manje su važne, u usporedbi s tim temeljnim orijentaci­
jama. Gotovo se posvuda uviđa potreba za specijaliziranim i nezavisnim
upravnim sucima, čak i ako se praktični detalji te specijalizacije razlikuju
od zemlje do zemlje. Ono što je stvarno odlučujuće u ocjeni kvalitete up­
ravnog sudovanja tiče se uvjeta pristupa sudu, širine nadzora (akti i akcije
koje se mogu poduzeti) te intenziteta provjeravanja (pitanje širine ovlasti
odlučivanja). Ako se u različitim europskim zemljama na ta pitanja još
uvijek daju različiti odgovori, način njihova postavljanja je isti.
U Čitavoj je Europi primjetna opća tendencija prema daljnjem razvoju sudske
kontrole uprave. Pivo, posvuda se širi koncept zakonitosti, što širi i sudsku
kontrolu uprave. Nadalje, jaka je tendencija europeizacije te kontrole zbog
rastućeg utjecaja Europskog suda za ljudska prava i Europskog suda pravde,
ali i zbog kontakata i razmjene među sucima i pravnicima širom Europe. Svi
HRVATSKA JAVNA UPRAVA

ti kontakti pridonijeli su pojavi niza temeljnih načela europskog upravnog

prava, kao što su načelo razmjernosti ili načelo legitimnih očekivanja. Na
kraju, može se primijetiti opći trend integriranja svrhe dobre vladavine i up­
rave u mehanizme sudskog nadzora upravnih aktivnosti. Sudska kontrola nije
neprijateljska u odnosu na snagu javne uprave nego je baš može povećati.
Ključne riječi: sudska kontrola uprave, zajednički europski model, europ­
sko upravno pravo, dobra vladavina i uprava, zakonitost, specijalizirani i
nezavisni upravni suci
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WOEHRLING, JEAN-MARIE, "Judicial Control of Administrative Authorities in Europe: Toward a Common
Model", Hrvatska Javna Uprava, 6, (3), 2006, pp. 35-56.

I) FOUNDATIONS OF JUDICIAL CONTROL OF THE ADMINISTRATION

1) Two Objectives of Judicial Control of the Administration

Europe has historically been divided between two conceptions of control: a subjective
conception; an objective conception. Different rules of admissibility (locus standi), rules
of procedure and scope of control; however, nowadays, complementary and combined

2) Position of Judicial Control in the Administrative Process

- Administrative justice as a branch of the general judicial system: administrative courts

are above all courts (independence, impartiality, adversarial procedure, legal expertise,
decision-making based on law). Organic and functional separation between
administration and courts. Reference to article 6 of ECHR (see later) – OR,

- Administrative justice as a phase in the decision-making process of the administration

and as an instrument for justifying administrative actions; “judging the administration is
still part of administrating”

3) “Philosophy of Law”: Two Systems (or “tendencies”)

- A substantialist tendency: the role of the judge is to find the right solution; focus in the
content of the decision (identifies it with e.g. Germany);

- A procedural tendency: concentrates on procedural fairness, fair and equitable

procedure, with fair hearing, etc. (identifies it with e.g. UK)

II) DIFFERENT OPTIONS IN THE ORGANISATION OF CONTROL OF THE ADMINISTRATION BY THE COURTS

1) Institutional Choices

Separation of Administrative courts or not. In greater detail, there are “two conceptions
of specialised Administrative jurisdiction”:

- Specialisation of certain courts within the judicial system;

- Creation of an Administrative jurisdiction that is fundamentally different in

nature and organisation from judicial courts.

Besides, even in countries of unitary jurisdiction, increasinglly common to have some

form of specialised judges responsible for adm litigation (“specialised chambers in
common law courts, special Administrative appeals commissions with judicial functions”,
others)
Woerhling’s comment: separate adm jurisdiction is the best way to creat a jurisprudence
“specifically adapted” to control the administration

The public-private law divide is relevant for this purpose. Definition of the matters of
public law varies from system to system – the examples of social security, public
employment law.

Despite the differences, a common standard of conduct of the courts, even adm courts,
must be met: independence and impartiality, meaning “objective” impartiality and
“subjective” impartiality (see later on); the topic of governance of judges.

2) Paving the Way for Judicial Remedies: Wide or Narrow Conditions of Admissibility

Focus on subjective individual rights, or more faint “interests”; the latter gaining ground,
with a reference to defense of collective interests. It is interesting to connect this with
current issues of law (such as climate litigation)

3) Scope of judicial control of Administrative action: Extent and intensity

Extent of control: adm action that can be submitted to the courts. The topic of “no-
control zones” and their limitation, with examples: “government acts”, “internal
measures”, regulatory/statutory measures, contracts;

Intensity of control (discretion): separating vagueness from discretion; evaluation of facts

and taking into consideration all relevant interests; maintaining the balance between
accountability and flexibility; the issue of separation of powers is implicit.

4) Rules of Judicial Procedure

Certain common general principles, with divergent traditions:

Common: equality of parties, adversarial nature of procedure, responding to

objections;

Divergent: in some cases, a more inquisitorial position of the judge; others, a

more passive judge, relying more in the parties. Interesting point: does the
imbalance between the parties advise a more inquisitorial procedure as opposed
to civil ligitation?

5) Appeal or revision of judgments of Administrative courts

Most countries evolving to a double tier system

III) TENDENCIES IN THE DEVELOPMENT OF JUDICIAL CONTROL OF THE ADMINISTRATION

1) Extension of the concept of legality (principles, EU law)

2) Europeanisation of Judicial Control (International sphere, ECHR, ECJ – see later)
3) Emergence of major principles of European Adm Law (e.g. legitimate expectation, equality,
impartiality, proportionality, liability, transparency)
4) Integration of the objective of good governance in judicial review: it improves the quality of
adm decision; the legitimacy; it can “Help to regularize illegal decisions” (correction of
irregularities, supplementing decisions, preemptive decisions, limiting effects over time;
coping with time constraints (ínterim relief and interlocutory injunctions, suspensive Effect,
etc.)
ANNEX B – PORTUGUESE ADMINISTRATIVE JUSTICE – SCHEME OF LEGAL REMEDIES

I – PRINCIPAL REMEDIES (“MEIOS PRINCIPAIS”)

(leading to a final, autonomous, not temporary, ruling)

PRINCIPAL REMEDIES

NON URGENT URGENT

(they follow regular (summary evidence;

procedure: 78-96 shorter terms)
CPTA)

ADMINISTRATIVE ACTION 1. CLAIMS REGARDING ELECTIONS IN 4. ACCESS TO INFORMATION

ADM BODIES (98 CPTA) INJUNCTIONS (104 CPTA)
- allows for all kinds of requests included in the jurisdiction of Adm Courts – on this, see
article 4 of ETAF; however, the law specifies certain rules for 4 specific requests; mind 2. “MASS PROCEDURES” (99 CPTA) 5. INJUNCTION FOR THE PROTECTION
that several requests can be combined in a single law suit (4 CPTA) OF FUNDAMENTAL RIGHTS AND
1. SETTING ASIDE ADMINISTRATIVE DECISIONS (51 2. INJUNCTION FOR OBTAINING A DECISION DUE BY 3. REMEDIES FOR PUBLIC LIBERTIES (109 CPTA)
CPTA) LAW (66 CPTA) PROCUREMENT CONTRACTS (100
CPTA)
- as of 2004, no general requirement to - general respect for the “principe du
exhaust administrative complaints; general préalable”; works for both ommissions and NOTE: REFERENCE TO APPEALS
term for reacting 3 months, no term for refusal explicit decisions; explicit limitation to
- general right of appeal to the
serious breaches of the law discretion (71 CPTA)
second level courts;
3. SETTING ASIDE OR OBTAINING ADMINISTRATIVE 4. SETTING ASIDE OR DEMANDING PERFORMANCE OF CONTRACTS (77.º-A)
RULES (REGULATIONS) (72 CPTA) - limited appeals to the Supreme
- as of 2004, clear refusal of the idea of (public) contracts as “res Administrative Court
- limited standing; retroactive effects, but inter partes”; acknowledgment of rights of third parties to
possibility of limitation of effects setting aside or demanding performance of contracts - system of “uniform rulings” by
appeal
1
PORTUGUESE ADMINISTRATIVE JUSTICE – SCHEME OF LEGAL REMEDIES

II – INTERIM MEASURES

(leading to a preliminary, accessory, temporary, ruling)

ANY MEASURE NECESSARY TO OBTAIN FULL JUDICIAL PROTECTION (112 CPTA)

- i.e., no limitation of interim measures; they can be “conservation” or “anticipation” measures; some
examples are mentioned in article 112/2:

- suspension of an administrative decision;

- temporary admission to tests or exams;

- temporary regulation of a legal situation through injunction to make payments during the length of the
main proceedings;

- suspension of undergoing works; (…).

- some specific, traditional measures, enjoy specific legal regimes, namely, the suspension of administrative
decisions – 128 CPTA, with an innovative regime for temporary blocking of the decision, unless PA invokes an
overriding public interest

- Interim measures are granted if (120 CPTA): (i) it can be foreseen that the situation will make the final
decision useless and harm the claimant’s rights or interests; (ii) the court finds that there is a probability of
success in the main claim – criticism; (iii) a negative condition obliges the court to carry out a balancing
exercise between all relevant interests, public and private, and refuse the interim measures if

- the Court enjoys great length in replacing measures asked by the claimant by others which are deemed
proportional.

2
PORTUGUESE ADMINISTRATIVE JUSTICE – SCHEME OF LEGAL REMEDIES

III – ENFORCEMENT OF COURT RULINGS OR OTHER EXECUTABLE DECISIONS (SUCH AS ADMINISTRATIVE DECISIONS)

(remedies directed at obtaining full enforcement of executable decisions)

GENERAL STATEMENT OF THE DUTY TO EXECUTE DECISIONS AND THE CONSEQUENCES OF ITS BREACH

- civil liability; disciplinary infraction; voiding of unlawful decisions

- several autonomous forms of enforcement proceedings

- possibility of obtaining an extension of the effects of a ruling to someone who was not a
party to the law suit (161 CPTA)

- general possibility to invoke overriding public interest or impossibility

1. ENFORCEMENT OF RULINGS IMPLYING “FACERE” OR “DARE” OBLIGATIONS 2. ENFORCEMENT OF RULINGS TO PAY SPECIFIC SUMS (170)
(162 CPTA)
- possibility of the court determining the use of specific budgetary
- term for voluntary compliance funds

- astreintes 3. ENFORCEMENT OF RULINGS SETTING ASIDE ADM DECISIONS (173)

- possibility of the court replacing PA’s decision (167) - possibility of the court replacing PA’s decision (179)
- “irreplaceable adm conduct”: astreintes, injunctions (168) and
civil liability, and criminal offence

3
CONSEIL COUNCIL
DE L’EUROPE OF EUROPE

COUR EUROPÉENNE DES DROITS DE L’HOMME

EUROPEAN COURT OF HUMAN RIGHTS

COURT (GRAND CHAMBER)

CASE OF LOBO MACHADO v. PORTUGAL

(Application no. 15764/89)

JUDGMENT

STRASBOURG

20 February 1996
LOBO MACHADO v. PORTUGAL JUDGMENT 1

In the case of Lobo Machado v. Portugal 1,

The European Court of Human Rights, sitting, in accordance with
Rule 51 of Rules of Court A 2, as a Grand Chamber composed of the
following judges:
Mr R. RYSSDAL, President,
Mr R. BERNHARDT,
Mr R. MACDONALD,
Mr A. SPIELMANN,
Mr S.K. MARTENS,
Mrs E. PALM,
Mr I. FOIGHEL,
Mr R. PEKKANEN,
Mr A.N. LOIZOU,
Mr J.M. MORENILLA,
Mr F. BIGI,
Sir John FREELAND,
Mr M.A. LOPES ROCHA,
Mr L. WILDHABER,
Mr J. MAKARCZYK,
Mr D. GOTCHEV,
Mr K. JUNGWIERT,
Mr P. KURIS,
Mr U. LOHMUS,
and also of Mr H. PETZOLD, Registrar, and Mr P.J. MAHONEY, Deputy
Registrar,
Having deliberated in private on 1 September 1995 and 22 January 1996,
Delivers the following judgment, which was adopted on the last-
mentioned date:

PROCEDURE
1. The case was referred to the Court by the European Commission of
Human Rights ("the Commission") and by the Government of the
Portuguese Republic ("the Government") on 7 July and 5 September 1994,

1
The case is numbered 21/1994/468/549. The first number is the case's position on the list
of cases referred to the Court in the relevant year (second number). The last two numbers
indicate the case's position on the list of cases referred to the Court since its creation and on
the list of the corresponding originating applications to the Commission.
2
Rules A apply to all cases referred to the Court before the entry into force of
Protocol No. 9 (P9) (1 October 1994) and thereafter only to cases concerning States not
bound by that Protocol (P9). They correspond to the Rules that came into force on
1 January 1983, as amended several times subsequently.
2 LOBO MACHADO v. PORTUGAL JUDGMENT

within the three-month period laid down by Article 32 para. 1 and Article 47
(art. 32-1, art. 47) of the Convention for the Protection of Human Rights
and Fundamental Freedoms ("the Convention"). It originated in an
application (no. 15764/89) against Portugal lodged with the Commission
under Article 25 (art. 25) by a Portuguese national, Mr Pedro Lobo
Machado, on 2 November 1989.
The Commission’s request referred to Articles 44 and 48 (art. 44, art. 48)
and to the declaration whereby Portugal recognised the compulsory
jurisdiction of the Court (Article 46) (art. 46); the Government’s application
referred to Article 48 (art. 48). The object of the request and of the
application was to obtain a decision as to whether the facts of the case
disclosed a breach by the respondent State of its obligations under Article 6
(art. 6) of the Convention and Article 1 of Protocol No. 1 (P1-1).
2. In response to the enquiry made in accordance with Rule 33 para. 3
(d) of Rules of Court A, the applicant stated that he wished to take part in
the proceedings and designated the lawyer who would represent him
(Rule 30).
3. The Chamber to be constituted included ex officio Mr M.A. Lopes
Rocha, the elected judge of Portuguese nationality (Article 43 of the
Convention) (art. 43), and Mr R. Ryssdal, the President of the Court
(Rule 21 para. 3 (b)). On 18 July 1994, in the presence of the Registrar, the
President drew by lot the names of the other seven members, namely
Mr N. Valticos, Mr S.K. Martens, Mrs E. Palm, Mr I. Foighel, Mr F. Bigi,
Mr J. Makarczyk and Mr K. Jungwiert (Article 43 in fine of the Convention
and Rule 21 para. 4) (art. 43). Subsequently Mr A. Spielmann, substitute
judge, replaced Mr Valticos, who was unable to take part in the further
consideration of the case (Rules 22 para. 1 and 24 para. 1).
4. As President of the Chamber (Rule 21 para. 5), Mr Ryssdal, acting
through the Registrar, consulted the Agent of the Government, the
applicant’s lawyer and the Delegate of the Commission on the organisation
of the proceedings (Rules 37 para. 1 and 38). Pursuant to the order made in
consequence, the Registrar received the applicant’s memorial on
18 November 1994 and the Government’s memorial on 21 November. On
1 December the Secretary to the Commission informed the Registrar that
the Delegate would submit his observations at the hearing.
5. On 2 February 1995 the President decided in the interests of the
proper administration of justice that the instant case and the case of
Vermeulen v. Belgium (58/1994/505/587) should be heard on the same day.
Consequently, after consulting the Chamber, he decided to adjourn the
hearing in the instant case from 20 March 1995, the date originally
scheduled, to 30 August.
6. On 22 March 1995, under Rule 37 para. 2, the President decided to
grant a request from the Belgian Government to submit written observations
on certain aspects of the case. In a letter received at the registry on 18 April
LOBO MACHADO v. PORTUGAL JUDGMENT 3

1995 counsel for the applicant made comments on questions concerning the
scope of the aforementioned Government’s intervention as an amicus
curiae. On 24 May 1995 the Registrar received the observations.
7. Likewise on 24 May 1995 the Chamber relinquished jurisdiction in
favour of a Grand Chamber (Rule 51). In accordance with Rule 51
para. 2 (a) and (b), the President and the Vice-President (Mr Ryssdal and
Mr R. Bernhardt), together with the other members of the original Chamber,
became members of the Grand Chamber. On 8 June 1995, in the presence
of the Registrar, the President drew by lot the names of the additional
judges, namely Mr R. Macdonald, Mr R. Pekkanen, Mr A.N. Loizou,
Mr J.M. Morenilla, Sir John Freeland, Mr L. Wildhaber, Mr D. Gotchev,
Mr P. Kuris and Mr U. Lohmus.
8. In accordance with the decision of the President, who had given the
applicant’s lawyer leave to address the Court in Portuguese (Rule 27
para. 3), the hearing took place in public in the Human Rights Building,
Strasbourg, on 30 August 1995. The Court had held a preparatory meeting
beforehand.
9. There appeared before the Court:
(a) for the Government
Mr A. HENRIQUES GASPAR, Deputy Attorney-General
of the Republic, Agent,
Mr O. CASTELO PAULO, former President of the Employment
Division of the Supreme Court, Adviser;
(b) for the Commission
Mr H. DANELIUS, Delegate;
(c) for the applicant
Mr J. PIRES DE LIMA, advogado, Counsel,
Mr J.M. LEBRE DE FREITAS, Professor of Law
at the University of Lisbon, advogado,
Mr M. NOBRE DE GUSMÃO, advogado Advisers.
The Court heard addresses by Mr Danelius, Mr Pires de Lima, Mr Lebre
de Freitas, Mr Henriques Gaspar and Mr Castelo Paulo.

AS TO THE FACTS

I. CIRCUMSTANCES OF THE CASE

10. Mr Pedro Lobo Machado is a Portuguese national who lives in

Lisbon. In 1955 he joined the Sacor company as an engineer. Following its
nationalisation in 1975, Sacor was absorbed into Petrogal-Petróleos de
Portugal, EP ("Petrogal"), a State-owned concern. On 4 April 1989 Petrogal
4 LOBO MACHADO v. PORTUGAL JUDGMENT

became a public limited company, in which the State is still the majority
shareholder. In the meantime, on 1 January 1980, the applicant had retired.
11. On 5 February 1986 Mr Lobo Machado brought proceedings against
Petrogal in the Lisbon industrial tribunal; the company was represented by a
lawyer appointed by the chairman of its board of directors. Mr Lobo
Machado sought recognition of the occupational grade of "director-general"
instead of that of "director" which had been assigned to him by his
employer. As that classification had an effect on the amount of his
retirement pension, he also sought payment of the sums that, under the
collective labour agreement (acordo colectivo de trabalho), should have
been paid him since 1980.
12. The Lisbon industrial tribunal dismissed his claims in a judgment of
7 October 1987. That decision was upheld by the Lisbon Court of Appeal
in a judgment of 1 June 1988.
13. The applicant appealed to the Supreme Court (Supremo Tribunal de
Justiça).
14. After the parties had exchanged pleadings, the case file was sent to
the representative of the Attorney-General’s department at the Supreme
Court, a Deputy Attorney-General, on 20 February 1989. On 28 February
1989 that representative delivered an opinion in which he recommended that
the appeal should be dismissed, as follows:
"1. Seen.

2. The appellant reiterates the arguments already presented to the Court of Appeal
and seeks to have that court’s judgment and the one of the court of first instance set
aside and to have his action allowed. Those arguments, however, were duly
considered in the judgment appealed against, which is sufficient in itself as regards
the reasons given for it. No further consideration is therefore necessary.

3. I am consequently of the opinion that the appeal must be dismissed."

15. On 19 May 1989 the Supreme Court, sitting in private, considered
the appeal. Three judges, a registrar and the member of the Attorney-
General’s department were present at the deliberations. The parties had not
been asked to attend. At the end of the deliberations the court adopted a
judgment in which it dismissed the appeal and this was served on the
applicant on 22 May 1989.
LOBO MACHADO v. PORTUGAL JUDGMENT 5

II. RELEVANT DOMESTIC LAW

A. The Constitution

16. The independence and status of the Attorney-General’s department

are similar to those of the judiciary. In Article 221 paras. 1 and 2 of the
Constitution its functions are laid down as follows:
"1. The duties of the Attorney-General’s department are to represent the State, to
act as prosecuting authority and to uphold the democratic legal order and the
interests determined by law.

2. The Attorney-General’s department shall have its own status and shall be
autonomous, in accordance with law."

B. The Institutional Law governing the Attorney-General’s

department

17. Law no. 47/86 of 15 October 1986 defines the scope of the powers
of the Attorney-General’s department and lays down the manner in which it
is to intervene - as plaintiff or defendant or else in an "associated"
(acessória) capacity - in judicial proceedings. The following provisions are
relevant to the instant case:

Section 1

"By law, the Attorney-General’s department is the body responsible for representing
the State, acting as prosecuting authority and upholding the democratic legal order and
the interests assigned to it by law."

Section 3 (1)

"It shall be the duty of the Attorney-General’s department in particular to:

(a) represent the State ...;

(b) act as prosecuting authority;

(c) represent workers and their families in defence of their social rights;

(d) uphold the independence of the courts, within the limits of its
responsibilities, and ensure that the judicial function is discharged in accordance with
the Constitution and statute law;

(e) further the execution of court decisions in respect of which it is so

empowered;
6 LOBO MACHADO v. PORTUGAL JUDGMENT

(f) direct criminal investigations, even where they are carried out by other
bodies;

(g) promote and cooperate in campaigns for the prevention of crime;

(h) monitor the constitutionality of legislation;

(i) intervene in bankruptcy and insolvency proceedings and in any other

proceedings of public interest;

(j) act in an advisory capacity, as provided in this Law;

(l) supervise police proceedings;

(m) lodge appeals against decisions resulting from collusion between the parties
with the intention of evading the law or which have been given in breach of an express
statutory provision; and

(n) discharge all the other functions assigned to it by statute."

Section 5

"1. The Attorney-General’s department shall intervene in proceedings as plaintiff

or defendant:

(a) where it represents the State; ...

(d) where it represents workers and their families in defence of their social
rights;

...

4. The Attorney-General’s department shall intervene in proceedings in an

`associated’ capacity:

(a) where none of the cases provided for in subsection (1) applies and where the
parties concerned in the case are autonomous regions, local authorities, other public
entities, charities and other institutions promoting the public interest, persons lacking
legal capacity or missing persons; and

(b) in all other cases provided for by law."

Section 6

"1. Where the Attorney-General’s department intervenes in an `associated’

capacity, it shall watch over the interests entrusted to it by taking all necessary
measures.

2. The intervention shall be made in the manner laid down in procedural law."
LOBO MACHADO v. PORTUGAL JUDGMENT 7

Section 11 (2)

"[The Attorney-General’s department] shall be represented [in the supreme courts]

by Deputy Attorneys-General ..."

Section 59

"The Minister of Justice may:

(a) give specific instructions to the Attorney-General concerning civil cases in

which the State has an interest;

(b) authorise the Attorney-General’s department ... to admit the other side’s case,
conclude settlements or discontinue proceedings in civil cases to which the State is a
party;

..."

C. The Code of Civil Procedure

18. The relevant provisions of the Code of Civil Procedure, which are
also applicable to cases falling within the jurisdiction of the industrial
tribunals, are the following:

Article 20

"1. The State shall be represented by the Attorney-General’s department.

2. If the case concerns State property or State rights but the property is managed or
the rights exercised by autonomous bodies, the latter may instruct counsel, who shall
act conjointly with the Attorney-General’s department in the proceedings. In the
event of disagreement between the Attorney-General’s department and counsel, the
view of the Attorney-General’s department shall prevail."

Article 709

"1. After inspecting the case file, each judge shall append his signature and the
date, together with any comments. At the end of this process, the registry shall enter
the case in the court’s list.

2. On the day on which the court sits to adopt its judgment, the reporting judge
shall read out the draft judgment, after which each of the other judges shall vote in
the order in which they have inspected the case file. Where possible, a photocopy or
a manuscript or typescript copy of the draft judgment shall be distributed to the
presiding judge and the other judges of the court at the beginning of the sitting.

3. ..."
8 LOBO MACHADO v. PORTUGAL JUDGMENT

Article 752 para. 1

"Where the Attorney-General’s department must intervene [in proceedings], the

case file shall be sent to it [for observations] for a period of seven days, after which
the file ... shall be sent to the reporting judge and the other non-presiding judges for
the purposes of a final decision; the reporting judge may keep the file for fourteen
days and the other judges for seven days."
19. Under the Constitution and the Institutional Law governing the
Attorney-General’s department, the latter must intervene in all proceedings
in which the public interest (interesse público) is at stake.
In labour-law cases the practice of the Employment Division of the
Supreme Court is for the representative of the Attorney-General’s
department at that court (a Deputy Attorney-General) to be given the file so
that he can express an opinion on the merits of the appeal. As a general
rule, that representative also takes part in the sitting held to consider the
appeal.

D. The Code of Labour Procedure

20. The Government cited the following provisions of the Code of

Labour Procedure:

Article 8

"The representatives of the Attorney-General’s department must automatically

represent:

(a) workers and their families;

(b) ..."

Article 10

"Where a legal representative is appointed, the automatic representation by the

Attorney-General’s department shall cease, without prejudice to that department’s
intervention in an `associated’ capacity."

PROCEEDINGS BEFORE THE COMMISSION

21. Mr Lobo Machado applied to the Commission on 2 November
1989. Relying on Article 6 para. 1 (art. 6-1) of the Convention, he
complained, firstly, that there had been no fresh assessment by the Court of
Appeal of the evidence relating to facts held to have been established by the
court of first instance and no public hearing in either the Court of Appeal or
LOBO MACHADO v. PORTUGAL JUDGMENT 9

the Supreme Court; he further complained of the role assigned to the

Attorney-General’s department in the proceedings before the Supreme
Court, which he said had infringed his right to a fair trial by an independent
and impartial tribunal and had offended the principle of equality of arms.
He also alleged a breach of Article 1 of Protocol No. 1 (P1-1) on account of
the adverse financial consequences of the failure of his action.
22. On 29 November 1993 the Commission declared admissible the
complaints relating to the participation of the Attorney-General’s
department in the proceedings before the Supreme Court and the
infringement of the applicant’s right to the peaceful enjoyment of his
possessions. It declared the remainder of the application (no. 15764/89)
inadmissible. In its report of 19 May 1994 (Article 31) (art. 31), it
expressed the opinion by fourteen votes to nine that there had been a breach
of Article 6 para. 1 (art. 6-1) of the Convention and by twenty-two votes to
one that no separate issue arose under Article 1 of Protocol No. 1 (P1-1).
The full text of the Commission’s opinion and of the three separate opinions
contained in the report is reproduced as an annex to this judgment 3.

FINAL SUBMISSIONS BY THE GOVERNMENT TO THE

COURT
23. In their memorial the Government asked the Court "to hold that
there had been no violation of Article 6 para. 1 (art. 6-1) of the Convention".

AS TO THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1) OF THE

CONVENTION

24. Mr Lobo Machado alleged a breach of Article 6 para. 1 (art. 6-1) of

the Convention, which provides:
"In the determination of his civil rights and obligations ..., everyone is entitled to a
fair ... hearing ... by an independent and impartial tribunal ..."
He complained, firstly, that he had not been able, before the Supreme
Court had given judgment, to obtain a copy of the Attorney-General’s

3
For practical reasons this annex will appear only with the printed version of the judgment
(in Reports of Judgments and Decisions - 1996), but a copy of the Commission's report is
obtainable from the registry.
10 LOBO MACHADO v. PORTUGAL JUDGMENT

department’s written opinion or, therefore, to reply to it; and, secondly, that
the Attorney-General’s department had been represented at the Supreme
Court’s deliberations, held in private, although it had previously endorsed
the arguments of Petrogal. Its presence at the deliberations was thus, he
submitted, contrary to the principle of equality of arms and called the
court’s independence in question. Furthermore, as he had brought his action
against a State-owned concern, he was entitled to doubt the impartiality of
the Attorney-General’s department as a representative of the State in private
disputes of a pecuniary nature.
There was nothing, he continued, to justify the Deputy Attorney-
General’s being present at the deliberations. His role had not been to advise
the court or to ensure the consistency of its case-law. Nor, in the instant
case, was his presence explained by the need to uphold the public interest,
since he had taken the side of the employer.
The duties of the Portuguese Attorney-General’s department were such
that in the instant case its representative could have received instructions
from the Minister of Justice regarding his final submissions and his role
when the appeal was being considered by the Supreme Court. As a
consequence, it could not conceivably be said, as regards Portugal, that an
infringement of the principle of fairness in civil proceedings, by reason of
the non-adversarial intervention of the Attorney-General’s department, was
less serious than a comparable infringement in criminal proceedings.
25. The Commission shared this view for the most part and considered
that the principles laid down in the Borgers v. Belgium judgment of
30 October 1991 (Series A no. 214-B) applied mutatis mutandis in civil
proceedings. At the hearing its Delegate said that the breach arose from the
combination of the fact that Mr Lobo Machado had been unable to reply to
the written observations of the Attorney-General’s department and the fact
that a member of that department had been present at the deliberations.
26. The Government pointed out that the parties - the applicant and
Petrogal - had exercised their procedural rights on an equal footing through
their counsel. In such proceedings the Deputy Attorney-General, one of the
members of the Attorney-General’s department in the highest grade, could
not be equated with a party. Given the special features of the system of
intervention by the Attorney-General’s department at the Supreme Court in
employment cases, the considerations set out in the Borgers judgment were
not applicable in the instant case. The member of the Attorney-General’s
department in its capacity as an institution of the judicial system had no
other duty than to assist the court by giving a completely independent,
objective and impartial written opinion super partes on the legal issues
raised. In this way he contributed to ensuring good administration of
justice. The objective function of amicus curiae discharged by the Deputy
Attorney-General as a guarantor of the consistency of the Supreme Court’s
case-law and protector of the public interest in employment cases was
LOBO MACHADO v. PORTUGAL JUDGMENT 11

known to the public and especially to lawyers. It could not be said that
because he drew up an opinion based strictly on the law, the Deputy
Attorney-General became "objectively speaking" an "ally" or an "opponent"
(see the Borgers judgment previously cited, p. 32, para. 26). The fact that
one of the parties was a State-owned concern that had subsequently become
a public limited company in which the State was the majority shareholder
had no bearing on the assessment of whether the principle of a fair trial had
been complied with. Petrogal had its own organs. In cases such as the
instant one, section 59 of the Institutional Law governing the Attorney-
General’s department (see paragraph 17 above), which had been cited by the
applicant, did not authorise the Minister of Justice to give instructions
concerning the task of the Attorney-General’s department.
In the instant case, that department had confined itself to giving a brief
written opinion and had had no kind of say, whether advisory or any other,
in the process whereby the court reached its decision when sitting in private
(contrast the Borgers judgment previously cited).
27. The Belgian Government submitted (see paragraph 6 above) that the
fundamental differences between criminal and civil proceedings before a
supreme court dictated that the Borgers precedent (see the judgment
previously cited) should not be followed where civil proceedings were
concerned. At all events, the special features of each case and of the
relevant national law had to be taken into consideration so as to avoid
uniformly condemning, as being contrary to Article 6 para. 1 (art. 6-1), an
institution which both in Belgium and in Portugal had proved beneficial.
28. The Court notes, firstly, that the dispute in question related to social
rights and was between two clearly defined parties: the applicant, as
plaintiff, and Petrogal as defendant. In that context the duty of the Attorney-
General’s department at the Supreme Court is mainly to assist the court and
to help ensure that its case-law is consistent. Given that the rights were
social in nature, the department’s intervention in the proceedings was more
particularly justified for the purposes of upholding the public interest.
It must be observed, secondly, that Portuguese legislation gives no
indication as to how the representative of the Attorney-General’s
department attached to the Employment Division of the Supreme Court is to
perform his role when that division sits in private (contrast the Borgers
judgment previously cited, p. 28, para. 17, and p. 32, para. 28).
29. As in its judgment in the Borgers case (p. 32, para. 26), the Court
considers, however, that great importance must be attached to the part
actually played in the proceedings by the member of the Attorney-General’s
department, and more particularly to the content and effects of his
observations. These contain an opinion which derives its authority from that
of the Attorney-General’s department itself. Although it is objective and
reasoned in law, the opinion is nevertheless intended to advise and
accordingly influence the Supreme Court. In this connection, the
12 LOBO MACHADO v. PORTUGAL JUDGMENT

Government emphasised the importance of the department’s contribution to

ensuring the consistency of the court’s case-law and, more particularly in
the instant case, upholding the public interest.
30. In its judgment of 17 January 1970 in the Delcourt v. Belgium case
the Court noted in its reasons for holding that Article 6 para. 1 (art. 6-1) was
applicable that "the judgment of the Court of Cassation ... may rebound in
different degrees on the position of the person concerned" (Series A no. 11,
pp. 13-14, para. 25). It has reiterated that idea on several occasions (see,
mutatis mutandis, the following judgments: Pakelli v. Germany, 25 April
1983, Series A no. 64, p. 17, para. 36; Pham Hoang v. France, 25 September
1992, Series A no. 243, p. 23, para. 40; and Ruiz-Mateos v. Spain, 23 June
1993, Series A no. 262, p. 25, para. 63). The same applies in the instant
case, since the outcome of the appeal could have affected the amount of
Mr Lobo Machado’s retirement pension.
31. Regard being had, therefore, to what was at stake for the applicant
in the proceedings in the Supreme Court and to the nature of the Deputy
Attorney-General’s opinion, in which it was advocated that the appeal
should be dismissed (see paragraph 14 above), the fact that it was
impossible for Mr Lobo Machado to obtain a copy of it and reply to it
before judgment was given infringed his right to adversarial proceedings.
That right means in principle the opportunity for the parties to a criminal or
civil trial to have knowledge of and comment on all evidence adduced or
observations filed, even by an independent member of the national legal
service, with a view to influencing the court’s decision (see, among other
authorities and mutatis mutandis, the following judgments: Ruiz-Mateos,
previously cited, p. 25, para. 63; McMichael v. the United Kingdom,
24 February 1995, Series A no. 307-B, pp. 53-54, para. 80; and Kerojärvi
v. Finland, 19 July 1995, Series A no. 322, p. 16, para. 42).
The Court finds that this fact in itself amounts to a breach of Article 6
para. 1 (art. 6-1).
32. The breach in question was aggravated by the presence of the
Deputy Attorney-General at the Supreme Court’s private sitting. Even if he
had no kind of say, whether advisory or any other (see paragraphs 26 and 28
above), it afforded him, if only to outward appearances, an additional
opportunity to bolster his opinion in private, without fear of contradiction
(see the Borgers judgment previously cited, p. 32, para. 28).
The fact that his presence gave the Attorney-General’s department the
chance to contribute to maintaining the consistency of the case-law cannot
alter that finding, since having a member present is not the only means of
furthering that aim, as is shown by the practice of most other member States
of the Council of Europe.
There has therefore been a breach of Article 6 para. 1 (art. 6-1) in this
respect also.
LOBO MACHADO v. PORTUGAL JUDGMENT 13

33. These conclusions make it unnecessary for the Court to rule on the
complaint that the Supreme Court was neither impartial nor independent.

II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 (P1-

1)

34. Before the Commission the applicant alleged a violation of Article 1

of Protocol No. 1 (P1-1), but he did not reiterate that complaint before the
Court.
35. The Court does not consider that it must raise the issue of its own
motion.

III. APPLICATION OF ARTICLE 50 (ART. 50) OF THE

CONVENTION

36. Article 50 (art. 50) of the Convention provides:

"If the Court finds that a decision or a measure taken by a legal authority or any
other authority of a High Contracting Party is completely or partially in conflict with
the obligations arising from the ... Convention, and if the internal law of the said Party
allows only partial reparation to be made for the consequences of this decision or
measure, the decision of the Court shall, if necessary, afford just satisfaction to the
injured party."

A. Damage

37. Mr Lobo Machado said that quite apart from the effects of the
outcome of the proceedings on his professional life, the doubts about the
judicial system that had been raised by the instant case had impaired for
ever his confidence in democratic institutions. The non-pecuniary damage
sustained could not be less than 3,500,000 escudos (PTE).
38. The Government submitted that there was no causal link between
the breach and the alleged damage.
39. The Delegate of the Commission did not express an opinion.
40. The Court considers that the finding of a breach of Article 6 (art. 6)
constitutes in itself sufficient just satisfaction under this head.

B. Costs and expenses

41. The applicant also sought PTE 1,500,000 in respect of costs and
expenses incurred for his representation before the Convention institutions.
42. No view was expressed by either the Government or the Delegate of
the Commission.
14 LOBO MACHADO v. PORTUGAL JUDGMENT

43. The Court allows Mr Lobo Machado’s claim and therefore awards
him the sum sought, from which 21,724 French francs paid by the Council
of Europe by way of legal aid fall to be deducted.

C. Default interest

According to the information available to the Court, the statutory rate of

interest applicable in Portugal at the date of adoption of the present
judgment is 10% per annum.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Holds that there has been a breach of Article 6 para. 1 (art. 6-1) of the
Convention;

2. Holds that it is unnecessary to consider the case under Article 1 of

Protocol No. 1 (P1-1);

3. Holds that this judgment constitutes in itself sufficient just satisfaction

as to the alleged damage;

4. Holds

(a) that the respondent State is to pay the applicant, within three months,
1,500,000 (one million five hundred thousand) escudos, less
21,724 (twenty-one thousand seven hundred and twenty-four) French
francs, to be converted into escudos at the rate of exchange applicable at
the date of delivery of this judgment, for costs and expenses;

(b) that simple interest at an annual rate of 10% shall be payable on

these sums from the expiry of the above-mentioned three months until
settlement;

5. Dismisses the remainder of the claim for just satisfaction.

LOBO MACHADO v. PORTUGAL JUDGMENT 15

Done in English and in French, and delivered at a public hearing in the

Human Rights Building, Strasbourg, on 20 February 1996.

Rolv RYSSDAL
President

Herbert PETZOLD
Registrar

In accordance with Article 51 para. 2 (art. 51-2) of the Convention and

Rule 53 para. 2 of Rules of Court A, the concurring opinion of Mr Lopes
Rocha is annexed to this judgment.

R. R.
H. P.
16 LOBO MACHADO v. PORTUGAL JUDGMENT
CONCURRING OPINION OF JUDGE LOPES ROCHA

CONCURRING OPINION OF JUDGE LOPES ROCHA

(Translation)

I concur in the finding that there has been a breach of Article 6 para. 1
(art. 6-1) of the Convention, but I cannot agree with all of the reasons set
out in paragraphs 31 and 32 of the judgment.
As is clear from paragraph 14, the opinion of the Deputy Attorney-
General, which the plaintiff was unaware of, did not adduce any new
argument in support of dismissing the appeal. It did no more than point out
that the plaintiff’s arguments had already been considered in the Court of
Appeal’s judgment, which was sufficient in itself as regards the reasons
given for it, and that any further consideration was therefore unnecessary.
The fact, on its own, that it was impossible for the applicant to have
knowledge of the content of the Deputy Attorney-General’s opinion before
judgment was delivered and to reply to it does not suffice for it to be found
that there has been a breach of Article 6 para. 1 (art. 6-1) as is held in
paragraph 31.
The finding of a breach should, rather, be based on all the circumstances
of the case.
What must be assessed from the point of view of a breach of the right to
a fair hearing is the fact that the member of the Attorney-General’s
department attended the Supreme Court’s private sitting without the
plaintiff’s being able to be present, which afforded him an additional
opportunity to bolster his opinion in private without fear of contradiction.
Admittedly the member of the Attorney-General’s department was not a
"party" in the technical meaning of the term in procedural law. But his
intervention in support of the Court of Appeal’s decision, combined with
the fact of his presence at the Supreme Court’s sitting, even if he had no
kind of say, whether advisory or any other, must amount to a procedural
disadvantage for the plaintiff. The latter found himself in the position of
having to argue simultaneously against the opposing side and a public
entity, both united in denying the right that he was seeking to claim in the
Supreme Court; that situation reflected a manifest inequality and thus
infringed the right to a fair hearing, seeing that in law fairness is a concept
which takes account of the spirit of the law rather than the letter of it.
Furthermore, the concepts of fairness and equality are equipollent.
In short, the situation of inequality was incompatible with the
requirements of fair proceedings within the meaning of Article 6 para. 1
(art. 6-1) of the Convention.
CINQUIÈME SECTION

AFFAIRE CHAUDET c. FRANCE

(Requête no 49037/06)

ARRÊT

STRASBOURG

29 octobre 2009

DÉFINITIF

28/06/2010

Cet arrêt est devenu définitif en vertu de l'article 44 § 2 de la Convention. Il peut

subir des retouches de forme.
ARRÊT CHAUDET c. FRANCE 1

En l'affaire Chaudet c. France,

La Cour européenne des droits de l'homme (cinquième section), siégeant
en une chambre composée de :
Peer Lorenzen, président,
Renate Jaeger,
Jean-Paul Costa,
Rait Maruste,
Mark Villiger,
Isabelle Berro-Lefèvre,
Mirjana Lazarova Trajkovska, juges,
et de Claudia Westerdiek, greffière de section,
Après en avoir délibéré en chambre du conseil le 6 octobre 2009,
Rend l'arrêt que voici, adopté à cette date :

PROCÉDURE
1. A l'origine de l'affaire se trouve une requête (no 49037/06) dirigée
contre la République française et dont une ressortissante de cet Etat,
Mme Patricia Chaudet (« la requérante »), a saisi la Cour le 30 novembre
2006 en vertu de l'article 34 de la Convention de sauvegarde des droits de
l'homme et des libertés fondamentales (« la Convention »).
2. La requérante est représentée par Me C. Crepin, avocate à
Montpellier. Le gouvernement français (« le Gouvernement ») est
représenté par son agent, Mme E. Belliard, directrice des affaires juridiques
au ministère des Affaires étrangères.
3. La requérante allègue en particulier la violation de son droit à un
procès équitable garanti par l'article 6 § 1 de la Convention.
4. Le 31 août 2007, la Cour a décidé de communiquer la requête au
Gouvernement. Comme le permet l'article 29 § 3 de la Convention, il a en
outre été décidé que la chambre se prononcerait en même temps sur la
recevabilité et le fond.

EN FAIT

I. LES CIRCONSTANCES DE L'ESPÈCE

5. La requérante est née en 1958 et réside à La Grande Motte.

6. La requérante fut recrutée en qualité d'hôtesse de l'air par une
compagnie aérienne en 1982. Entre 1997 et 2001, elle fut victime de
cinq accidents de travail en vol.
ARRÊT CHAUDET c. FRANCE 2

7. Par une décision en date du 5 juin 2002, la caisse primaire d'assurance

maladie de Paris alloua une rente à la requérante et fixa le taux d'incapacité
permanente de travail à 8 %.
8. Le 4 avril 2003, la Commission technique d'orientation et de
reclassement professionnel (COTOREP) lui reconnut la qualité de
travailleur handicapé classé en catégorie A pour une durée de cinq ans pour
la période comprise entre le 1er février 2003 et le 1er février 2008.
9. Dans sa séance du 30 avril 2003, le conseil médical de l'aéronautique
civile décida de déclarer la requérante inapte aux fonctions d'hôtesse de l'air,
sans motiver sa décision.
10. Par un courrier du 14 mai 2003, la requérante demanda au conseil
médical de l'aéronautique civile de transmettre les rapports d'expertise
médicale à son médecin traitant. Le 2 juin 2003, le conseil adressa audit
médecin les rapports sollicités.
11. Par une deuxième décision, du 12 mai 2004, le conseil déclara la
requérante définitivement inapte aux fonctions d'hôtesse de l'air.
12. La requérante saisit à nouveau le conseil médical de l'aéronautique
civile afin de faire constater que l'affection ayant motivé son inaptitude
définitive à exercer sa profession était imputable au service aérien.
13. Par une décision du 25 octobre 2004, le conseil médical de
l'aéronautique civile déclara que l'affection ayant motivé l'inaptitude
définitive de la requérante à exercer sa profession de navigante n'était pas
imputable au service. La décision était rédigée comme suit :
« Le Conseil médical de l'aéronautique civile,
- Vu l'article D-424-2 3o et 4o du code de l'aviation civile ;
- Vu la décision d'inaptitude définitive à exercer la profession de CSS Hôtesse de
l'air qu'il a prise le 12 mai 2004 (...) vis-à-vis de Madame Chaudet Patricia, née le
15 décembre 1958 ;
- Vu la demande formulée par l'intéressée ;
- Après avoir examiné le dossier médical de madame Chaudet Patricia dans sa
séance du 20 octobre 2004 ;
Décide
Article unique
L'affection qui a motivé l'inaptitude définitive de Madame Chaudet Patricia, CSS
Hôtesse de l'air, à exercer sa profession de navigante est déclarée non imputable au
service aérien. »
14. Par un courrier du 10 novembre 2004, elle sollicita auprès du conseil
médical une copie du rapport d'expertise médicale du professeur D. Ce
rapport fut envoyé à son médecin traitant le 23 novembre 2004.
15. La requérante forma un recours devant le Conseil d'Etat contre la
décision du 25 octobre 2004. Elle forma également une demande de recours
ARRÊT CHAUDET c. FRANCE 3

gracieux devant le conseil médical de l'aéronautique civile, lequel statua à

nouveau le 17 février 2005, confirmant sa décision.
16. A l'appui de son recours devant le Conseil d'Etat, la requérante
soutint que la décision du conseil médical avait été rendue à l'issue d'une
procédure irrégulière, qu'elle découlait d'une erreur manifeste d'appréciation
et était insuffisamment motivée. Elle estimait en effet que cette décision, la
privant du droit à percevoir une indemnité, entrait dans le champ
d'application de l'alinéa 8 de l'article 1er de la loi du 11 juillet 1979 en vertu
duquel les décisions individuelles défavorables, qui refusent un avantage
dont l'attribution constitue un droit pour les personnes remplissant les
conditions légales pour l'obtenir, doivent être motivées.
17. Dans ses conclusions relatives à cette affaire, le commissaire du
gouvernement souligna, quant au moyen tiré du défaut de motivation, qu'il
s'agissait d'une question nouvelle dont le Conseil d'Etat n'avait pas encore
eu à connaître, eu égard aux nouvelles attributions du conseil médical de
l'aéronautique civile résultant d'un décret du 31 août 2004. Il rappela que
même si au regard du champ d'application de la loi du 11 juillet 1979, « la
décision litigieuse doit en principe être motivée », il proposa aux juges que
le moyen tiré du défaut de motivation soit rejeté en l'espèce puisque « la
motivation aurait conduit à porter atteinte au secret médical ».
18. Par un arrêt du 15 mai 2006, le Conseil d'Etat rejeta le recours de la
requérante :
« Sur la légalité externe de la décision attaquée :
Considérant que, contrairement aux affirmations de Mme Chaudet, il ressort des
pièces du dossier, d'une part, que la condition de quorum posée par l'article D. 424-4
du code de l'aviation civile, était remplie lors de la séance du conseil médical de
l'aéronautique civile au cours de laquelle son cas a été étudié et, d'autre part, qu'elle a
été convoquée à cette séance et prévenue qu'elle pouvait s'y faire assister d'un
médecin ; qu'ainsi, le moyen tiré de ce que la décision litigieuse aurait été prise au
terme d'une procédure irrégulière manque en fait ;
Considérant que la décision attaquée du conseil médical de l'aéronautique civile a
été prise dans le cadre d'attributions imposant à ce conseil, en vertu des
articles R. 4127-4 et R. 4127-104 du code de la santé publique, de ne fournir à
l'administration ou à l'organisme employeur pour tenir compte du secret professionnel
institué par la loi, que ses conclusions sur le plan administratif sans indiquer les
raisons médicales qui les motivent ; qu'ainsi, et conformément au deuxième alinéa de
l'article 4 de la loi du 11 juillet 1979 relative à la motivation des actes administratifs et
à l'amélioration des relations entre l'administration et le public, aux termes duquel
« les dispositions de la présente loi ne dérogent pas aux textes législatifs interdisant la
divulgation ou la publication de faits couverts par le secret », la décision attaquée
concernant Mme Chaudet qui est relative à l'imputabilité au service aérien de
l'affection qu'elle invoque et qui est exclusivement fondée sur des motifs d'ordre
médical, n'avait pas à être motivée ;
Sur la légalité interne de la décision attaquée :
Considérant que si Mme Chaudet fait valoir que l'affection qui a causé son
inaptitude définitive à l'exercice de la profession d'hôtesse de l'air, est la conséquence
ARRÊT CHAUDET c. FRANCE 4

d'accidents du travail dont elle a été victime lors de turbulences en vol, il ne ressort
pas des pièces du dossier que cette affection ait pour origine le service aérien effectué
par l'intéressée en sa qualité de membre du personnel navigant ;
Considérant qu'il résulte de ce qui précède, que Mme Chaudet n'est pas fondée à
demander l'annulation de la décision par laquelle le conseil médical de l'aéronautique
civile a déclaré non imputable au service son inaptitude définitive à exercer la
profession d'hôtesse de l'air ; (...) »

II. LE DROIT ET LA PRATIQUE INTERNES PERTINENTS

19. Le conseil médical de l'aéronautique civile est un organisme

collégial à compétence nationale dont l'existence, la composition, les
attributions et les modalités de fonctionnement figurent dans le code de
l'aviation civile. Il dépend du ministère des Transports, direction générale de
l'aviation civile. Le conseil comprend 19 membres : un président et un vice-
président, docteurs en médecine, et dix-sept médecins nommés par arrêté du
ministre des Transports dont deux sur proposition du ministre de la Défense
et un sur proposition du ministre de la Santé. Les autres médecins
appartiennent à différentes disciplines de la médecine. Tous ont une
compétence obligatoire en médecine aéronautique à l'exception de celui
proposé par le ministre de la Santé. Un certain nombre de ces praticiens ont
l'expérience aéronautique que leur confère la pratique du pilotage.
20. Le conseil médical de l'aéronautique civile est chargé des fonctions
suivantes : il étudie et il coordonne toutes les questions d'ordre
physiologique, médical, médico-social et d'hygiène intéressant
l'aéronautique civile, notamment en ce qui concerne le personnel navigant,
les passagers et d'une façon générale le contrôle sanitaire. Il se prononce sur
le caractère définitif des inaptitudes médicales déclarées à l'égard des
navigants professionnels par les différents centres d'expertise médicale.
Depuis un décret du 31 août 2004, qui a modifié l'article D. 424-2 du
code de l'aviation civile, le conseil médical de l'aéronautique civile prend
désormais de véritables décisions en matière d'imputabilité d'un accident au
service. Auparavant, il ne prenait de décisions que pour la phase préalable,
pour déclarer une personne inapte. Mais, pour la décision d'imputabilité au
service, c'est le ministre qui était compétent, et le conseil médical ne rendait
qu'un avis.
Enfin, le conseil médical de l'aéronautique civile reçoit et examine :
a) Les appels interjetés par les candidats aux fonctions réservées au
personnel navigant professionnel et les titulaires d'une licence du personnel
navigant déclarés médicalement inaptes au titre de l'aéronautique civile, par
un centre d'expertise médicale du personnel navigant ou un médecin agréé ;
b) Les appels interjetés par les employeurs qui estimeraient devoir
contester les décisions prononcées par les autorités médicales compétentes
en matière d'aptitude à une fonction du personnel navigant professionnel ;
ARRÊT CHAUDET c. FRANCE 5

c) Les demandes formulées par les médecins chefs des centres

d'expertise médicale du personnel navigant (pour les navigants
professionnels) et par les médecins examinateurs agréés (pour les navigants
non professionnels) qui, en présence d'un cas litigieux ou non prévu par les
règlements d'aptitude physique et mentale en vigueur, estimeraient devoir
prendre l'avis du conseil médical de l'aéronautique civile avant de formuler
une décision d'aptitude à une fonction du personnel navigant de
l'aéronautique ;
d) Toute demande de dérogation aux conditions d'aptitude médicale
prévues par les règlements en vigueur en ce qui concerne le personnel
navigant (professionnel et non professionnel).
21. Tout navigant qui ne se trouverait pas satisfait d'une décision du
conseil médical de l'aéronautique civile peut demander un réexamen de son
dossier, à condition qu'il soit formulé dans les conditions réglementaires et
que la demande présentée apporte des éléments nouveaux.
Afin de respecter le secret médical, le conseil médical de l'aéronautique
civile se réunit en séance plénière à huis clos.
Le conseil médical de l'aéronautique civile ne peut délibérer que si cinq
de ses membres ayant voix délibérative sont présents et les membres ne
peuvent prendre part aux délibérations portant sur l'examen des cas
individuels dont ils ont déjà eu à connaître à l'occasion de leur activité
extérieure au conseil.
Les navigants professionnels qui ont formulé une demande d'imputabilité
au service aérien peuvent venir en personne, se faire représenter ou assister
par un médecin de leur choix. L'article D. 424-6 du code de l'aviation civile
énonce notamment, en son troisième alinéa, que :
« (...) les intéressés sont informés de la tenue des séances ; ils peuvent venir en
personne et se faire assister ou se faire représenter devant le conseil par un médecin de
leur choix. Ce médecin a accès au dossier. Dans les autres affaires, le président peut
convoquer les intéressés à la séance du conseil médical. »
22. Les dispositions régissant les incapacités du personnel navigant et
leurs conséquences financières figurent aux articles L. 424-1 à L. 424-7 du
code de l'aviation civile. Ces articles fixent, notamment, les conditions dans
lesquelles le personnel navigant peut recevoir une indemnité en cas
d'inaptitude permanente à exercer la profession de navigant.

Article L. 424-5
« Lorsqu'un accident aérien survenu en service ou lorsqu'une maladie imputable au
service et reconnue comme telle par le conseil médical de l'aéronautique civile ont
entraîné le décès ou une incapacité permanente totale au sens de la législation relative
à la réparation des accidents du travail, une indemnité en capital sera versée (...) »
ARRÊT CHAUDET c. FRANCE 6

Article L. 424-6
« Si l'incapacité résultant des causes prévues à l'article précédent entraîne seulement
l'inaptitude permanente à exercer la profession de navigant, la caisse de retraites verse
à l'intéressé une somme en capital (...) »
23. L'obligation des médecins composant ledit conseil de respecter le
secret médical résulte des articles R. 4127-4 et R. 4127-104 du code de la
santé publique. Ce dernier dispose comme suit :
« Le médecin chargé du contrôle est tenu au secret envers l'administration ou
l'organisme qui fait appel à ses services. Il ne peut et ne doit lui fournir que ses
conclusions sur le plan administratif, sans indiquer les raisons d'ordre médical qui les
motivent.
Les renseignements médicaux nominatifs ou indirectement nominatifs contenus
dans les dossiers établis par ce médecin ne peuvent être communiqués ni aux
personnes étrangères au service médical ni à un autre organisme. »
24. Par un arrêt du 25 novembre 2005, le Conseil d'Etat précisa l'étendue
de ses attributions lorsqu'il statuait dans le cadre d'un recours contre une
décision du conseil médical de l'aéronautique civile. Il estima que :
« Considérant que s'il appartient au Conseil d'Etat statuant au contentieux d'exercer,
en tant que juge de l'excès de pouvoir, son contrôle sur la légalité des décisions prises
par le conseil médical de l'aéronautique civile, il ne dispose cependant pas à leur égard
des pouvoirs d'un juge de pleine juridiction dont la décision se substituerait à celle
arrêtée par le conseil médical ; qu'ainsi, M. A n'est pas recevable à demander au
Conseil d'Etat de déclarer son inaptitude définitive aux fonctions de personnel
navigant ; (...) »

EN DROIT

I. SUR LES VIOLATIONS ALLÉGUÉES DE L'ARTICLE 6 § 1 DE LA

CONVENTION

25. La requérante dénonce plusieurs violations de l'article 6 § 1 de la

Convention, lequel est ainsi libellé :
« Toute personne a droit à ce que sa cause soit entendue équitablement (...) par un
tribunal indépendant et impartial, établi par la loi, qui décidera (...) des contestations
sur ses droits et obligations de caractère civil (...) »

A. Sur l'applicabilité de l'article 6 § 1 de la Convention

26. Le Gouvernement considère que la requête est incompatible ratione

materiae avec les dispositions de la Convention dans la mesure où l'article 6
de la Convention n'était pas applicable à la procédure suivie en l'espèce. Se
fondant sur la jurisprudence Masson et Van Zon c. Pays-Bas, (28 septembre
ARRÊT CHAUDET c. FRANCE 7

1995, § 44, série A no 327-A), il estime que la requérante n'était pas titulaire
d'un « droit » à caractère civil au sens de l'article 6 § 1 de la Convention.
Selon lui, l'octroi de l'indemnité prévue à l'article L. 424-5 du code de
l'aviation civile ne constitue un droit pour l'intéressé que lorsque l'accident
ou la maladie est déclaré imputable au service. Or, en l'espèce, la requérante
ne remplissait pas les conditions légales pour prétendre à une telle
indemnité puisque l'imputabilité de son affection au service aérien n'a pas
été reconnue par le conseil médical de l'aéronautique civile.
27. Par ailleurs, le Gouvernement estime que l'article 6 § 1 ne saurait
s'appliquer à la procédure devant le conseil médical de l'aéronautique civile,
celui-ci ne pouvant être regardé comme un « tribunal » au sens de l'article 6
§ 1 de la Convention. Il rappelle que « seul mérite l'appellation de
« tribunal » au sens de l'article 6 § 1 un organe jouissant de la plénitude de
juridiction et répondant à une série d'exigences telles que l'indépendance à
l'égard de l'exécutif comme des parties en cause ». Or, il souligne que le
conseil médical de l'aéronautique civile est un organisme à compétence
nationale qui dépend de la direction générale de l'aviation civile du
ministère des Transports et dont le fonctionnement et les compétences sont
régis par le code de l'aviation civile. Il précise aussi que ses membres,
docteurs en médecine, sont désignés par arrêté du ministre des Transports,
et que ses décisions sont susceptibles d'un recours pour excès de pouvoir
devant le Conseil d'Etat.
28. La requérante soutient que l'article 6 § 1 de la Convention est
applicable en l'espèce, l'octroi de l'indemnité qu'elle réclamait constituant un
« droit à caractère civil » au sens de la jurisprudence de la Cour. La
requérante fait valoir l'importance de l'issue de la procédure à son égard et
les conséquences sur ses droits pécuniaires engendrée par la décision du
conseil médical de l'aéronautique civile. Quant à l'allégation du
Gouvernement selon laquelle elle ne bénéficiait pas d'un droit de recevoir
une indemnité, la requérante souligne qu'il s'agissait précisément de l'objet
de la « contestation » portée à la connaissance des juridictions internes.
29. La Cour rappelle que, pour savoir s'il existait une « contestation »
sur un « droit » de nature à faire jouer l'article 6 § 1, elle doit d'abord
examiner si un « droit » à indemnisation pouvait, de manière défendable,
passer pour reconnu en droit interne. Il doit s'agir d'une contestation réelle et
sérieuse ; elle peut concerner aussi bien l'existence même d'un droit que son
étendue ou ses modalités d'exercice. L'issue de la procédure doit être
directement déterminante pour le droit en question, l'article 6 § 1 ne se
contentant pas, pour entrer en jeu, « d'un lien ténu ni de répercussions
lointaines » (voir, parmi d'autres, König c. Allemagne, 28 juin 1978, §§ 88 à
91, série A no 27).
30. La Cour relève que la demande de la requérante tendant à recevoir
une indemnité s'appuyait sur les dispositions des articles L. 424-5 et
L. 424-6 du code de l'aviation civile. Ces articles prévoient, pour le
ARRÊT CHAUDET c. FRANCE 8

personnel navigant, le versement d'indemnités en cas d'accident ou de

maladie imputable au service. La contestation portait donc sur l'existence
même d'un droit que l'on pouvait dire, d'une façon défendable, reconnu dans
la législation interne (voir notamment Kraska c. Suisse, 19 avril 1993, § 24,
série A no 254-B). En outre, elle était réelle et sérieuse : la requérante
pouvait de manière défendable prétendre avoir droit, en vertu de la
législation française, à une indemnité, à la suite de la décision du conseil
médical de l'aéronautique civile l'ayant déclarée inapte définitivement à ses
fonctions d'hôtesse de l'air. Le droit réclamé étant de nature civile, et l'issue
du litige directement déterminante pour le droit de l'intéressée à se voir
indemniser en raison de son inaptitude à travailler, la Cour est d'avis que
l'article 6 § 1 s'applique en l'espèce.
31. Puisque la « contestation » des décisions refusant la demande de la
requérante portait sur un « droit de caractère civil », celle-ci avait droit à
l'examen de sa cause par « un tribunal » réunissant les conditions de l'article
6 § 1 (mutatis mutandis, Albert et Le Compte c. Belgique, 10 février 1983, §
29, série A no 58). La Cour conclut à l'applicabilité de l'article 6 § 1 dans la
présente espèce.
32. La Cour constate que ce grief n'est pas manifestement mal fondé au
sens de l'article 35 § 3 de la Convention. Elle relève par ailleurs qu'il ne se
heurte à aucun autre motif d'irrecevabilité. Il convient donc de le déclarer
recevable.

B. Sur l'observation de l'article 6 § 1 de la Convention

33. La requérante se plaint de l'absence d'équité de la procédure devant

le conseil médical de l'aéronautique civile et de la participation du
commissaire du gouvernement au délibéré de la formation de jugement du
Conseil d'Etat.

1. Quant aux griefs tirés du défaut d'équité de la procédure devant le

conseil médical de l'aéronautique civile
34. La requérante se plaint du défaut de motivation de la décision du
conseil médical et estime que le secret professionnel ne peut faire obstacle à
l'exigence de motivation, élément essentiel du procès équitable. Elle
soutient également ne jamais avoir eu accès aux pièces composant le dossier
ayant fondé la décision du conseil médical du 25 octobre 2004. Eu égard à
la décision prise par le conseil médical, elle dit avoir de sérieux doutes
quant au fait que toutes les pièces qu'elle a transmises aient été ajoutées au
dossier. A cet égard, elle dit ne pas avoir pu consulter le rapport d'expertise
médical du professeur D. avant la séance du 25 octobre 2004.
35. Le Gouvernement rappelle que, selon le droit et la jurisprudence
internes, les médecins composant le conseil médical de l'aéronautique civile
ont l'obligation de respecter le secret professionnel. Il expose que la
ARRÊT CHAUDET c. FRANCE 9

requérante a pu défendre sa cause devant le Conseil d'Etat, qui, statuant en

l'espèce en premier et dernier ressort, a examiné au fond les moyens
soulevés par la requérante. Les rapports médicaux ont tous été produits
devant lui et discutés par les parties. Le Gouvernement en conclut que les
exigences de l'article 6 § 1 ont été respectées eu égard au contrôle
juridictionnel du Conseil d'Etat sur la décision du conseil médical.
36. La Cour ne croit pas indispensable de rechercher si le conseil
médical de l'aéronautique civile répondait aux exigences de l'article 6 § 1.
En revanche, elle doit s'assurer que devant le Conseil d'Etat, la requérante
jouissait d'un droit à un tribunal et à une solution juridictionnelle du litige,
tant pour les points de fait que pour les questions de droit (voir Le Compte,
Van Leuven et De Meyere c. Belgique, 23 juin 1981, § 51, série A no 43, et
Albert et Le Compte, précité, § 29). Partant, l'article 6 § 1 ne s'est trouvé
respecté que si le Conseil d'Etat répondait à ces exigences.
37. La Cour constate que la cause de la requérante a été examinée par le
Conseil d'Etat. Elle relève que, en l'espèce, la haute juridiction
administrative, statuait dans le cadre d'un recours pour excès de pouvoir, en
premier et dernier ressort. Même si elle ne jouissait pas, en l'espèce, de la
« plénitude de juridiction », ce qui aurait pour effet de substituer sa décision
à celle du conseil médical de l'aéronautique civile (paragraphe 24 ci-dessus),
il ressort du dossier qu'elle a pu examiner tous les moyens soulevés par la
requérante, en fait comme en droit, et apprécier toutes les pièces de son
dossier médical, au vu des conclusions de l'ensemble des rapports médicaux
discutées devant elles par les parties (voir, en ce sens, Reynaud Escarrat
c France, no 22108/93, décision de la Commission du 28 février 1996).
38. La Cour en conclut que la cause de la requérante a été examinée
dans le respect des exigences posées à l'article 6 § 1. Partant, il n'y a pas eu
violation de l'article 6 § 1.

2. Quant au grief tiré de la participation du commissaire du

Gouvernement au délibéré de la formation de jugement du Conseil
d'Etat

a) Sur la recevabilité
39. La Cour constate que ce grief n'est pas manifestement mal fondé au
sens de l'article 35 § 3 de la Convention. Elle relève par ailleurs qu'il ne se
heurte à aucun autre motif d'irrecevabilité. Il convient donc de le déclarer
recevable.

b) Sur le fond
40. La requérante se plaint de la participation du commissaire du
Gouvernement au délibéré de la formation de jugement du Conseil d'Etat.
ARRÊT CHAUDET c. FRANCE 10

41. Le Gouvernement, au vu de l'arrêt Martinie c. France ([GC],

no 58675/00, 12 avril 2006), décide de s'en remettre à la sagesse de la Cour
sur ce point.
42. La Cour rappelle que, dans l'arrêt Martinie précité (§§ 53-54), la
Grande Chambre a conclu à la violation de l'article 6 § 1 de la Convention
du fait de la présence du commissaire du gouvernement au délibéré de la
formation de jugement du Conseil d'Etat dans le cadre d'une procédure de
non-admission d'un pourvoi. La Cour considère que la présente affaire ne
présente pas d'éléments susceptibles de la distinguer de l'espèce Martinie
(voir également Cosson c. France, no 38498/03, §§ 32-33, 18 juillet 2006).
43. Partant, il y eu violation de l'article 6 § 1.

II. SUR LES AUTRES GRIEFS

44. La requérante dénonce également la motivation lacunaire de l'arrêt

du Conseil d'Etat. Soulevé à l'occasion de ses observations en réponse du
12 mars 2008, ce grief a été formulé plus de six mois après la date de la
dernière décision interne définitive.
Il doit donc être rejeté en application de l'article 35 §§ 1 et 4 de la
Convention.
45. La requérante estime par ailleurs que les défaillances de la procédure
dans son ensemble ont eu des conséquences financières et psychologiques
qui portent une atteinte grave à sa vie privée et familiale. Elle invoque
l'article 8 de la Convention, aux termes duquel :
« 1. Toute personne a droit au respect de sa vie privée et familiale (...).
2. Il ne peut y avoir ingérence d'une autorité publique dans l'exercice de ce droit que
pour autant que cette ingérence est prévue par la loi et qu'elle constitue une mesure
qui, dans une société démocratique, est nécessaire à la sécurité nationale, à la sûreté
publique, au bien-être économique du pays, à la défense de l'ordre et à la prévention
des infractions pénales, à la protection de la santé ou de la morale, ou à la protection
des droits et libertés d'autrui. »
La Cour rappelle qu'aux termes de l'article 35 § 1 de la Convention, il
faut que l'intéressé ait soulevé devant les autorités nationales « dans les
conditions et délais prescrits par le droit interne » les griefs qu'il entend
formuler par la suite à Strasbourg (Cardot c. France, 19 mars 1991, § 34,
série A no 200 ; et Fressoz et Roire c. France [GC], no 29183/95, §§ 36-37,
CEDH 1999-I). Or, en l'espèce, dans la mesure où la requérante n'a pas
soulevé ce grief devant le Conseil d'Etat, elle n'a pas placé les juridictions
internes en mesure d'apprécier son grief tiré de l'article 8.
Il s'ensuit que ce grief doit être rejeté pour non-épuisement des voies de
recours internes, en application de l'article 35 §§ 1 et 4 de la Convention.
46. Invoquant le nécessaire respect dû à ses biens, la requérante allègue
que l'iniquité de la procédure suivie l'a privée du droit de « gagner sa vie par
ARRÊT CHAUDET c. FRANCE 11

le travail ». Elle invoque à cet égard l'article 1 du Protocole no 1, qui se lit

ainsi :
« Toute personne physique ou morale a droit au respect de ses biens. Nul ne peut
être privé de sa propriété que pour cause d'utilité publique et dans les conditions
prévues par la loi et les principes généraux du droit international.
Les dispositions précédentes ne portent pas atteinte au droit que possèdent les Etats
de mettre en vigueur les lois qu'ils jugent nécessaires pour réglementer l'usage des
biens conformément à l'intérêt général ou pour assurer le paiement des impôts ou
d'autres contributions ou des amendes. »
La Cour note que la requérante ne remplissait pas les conditions pour
obtenir l'indemnité prévue par l'article L. 424-5 du code de l'aviation civile.
Dès lors, elle ne peut se prétendre titulaire d'un droit à indemnité, ni
d'une espérance légitime à l'obtenir, susceptible d'être protégé par l'article 1
du Protocole no 1.
Il s'ensuit que ce grief est incompatible ratione materiae avec les
dispositions de la Convention, conformément à l'article 35 § 3 de la
Convention, et doit être rejeté en application de l'article 35 § 4 de la
Convention.

III. SUR L'APPLICATION DE L'ARTICLE 41 DE LA CONVENTION

47. Aux termes de l'article 41 de la Convention,

« Si la Cour déclare qu'il y a eu violation de la Convention ou de ses Protocoles, et
si le droit interne de la Haute Partie contractante ne permet d'effacer
qu'imparfaitement les conséquences de cette violation, la Cour accorde à la partie
lésée, s'il y a lieu, une satisfaction équitable. »

A. Dommage

48. La requérante réclame 325 458 euros (EUR) au titre du préjudice

matériel et 325 458 EUR au titre du préjudice moral qu'elle aurait subi.
49. Le Gouvernement considère ces sommes manifestement excessives
et sans lien avec les violations alléguées. A cet égard, il invite la Cour à
« juger que le constat de violation vaut satisfaction équitable ».
50. La Cour n'aperçoit pas de lien de causalité entre la violation
constatée et le dommage matériel allégué et rejette cette demande.
S'agissant du dommage moral, la Cour estime, conformément à une
jurisprudence constante relative à ce type de violation, qu'il se trouve
suffisamment réparé par le constat de violation de l'article 6 § 1 de la
Convention auquel elle parvient (voir Martinie, précité, § 59).
ARRÊT CHAUDET c. FRANCE 12

B. Frais et dépens

51. La requérante demande également 2 990 EUR pour les frais et

dépens engagés devant les juridictions internes et 2 392 EUR pour ceux
engagés devant la Cour.
52. Le Gouvernement estime ce montant excessif et propose de lui
allouer une somme d'un montant raisonnable, dans la limite de 1 500 EUR,
au titre des seuls frais encourus devant la Cour.
53. La Cour estime tout d'abord qu'il convient d'exclure le
remboursement des frais se rapportant à la procédure devant les juridictions
internes, la requérante n'ayant engagé aucune dépense afin de prévenir ou
faire corriger par ces mêmes juridictions la violation de la Convention
finalement constatée par la Cour.
54. Ensuite, quant aux frais engagés devant elle, la Cour rappelle qu'un
requérant ne peut obtenir le remboursement de ses frais et dépens que dans
la mesure où se trouvent établis leur réalité, leur nécessité et le caractère
raisonnable de leur taux. La requérante produit une note d'honoraires de
2 392 EUR.
55. En l'espèce, compte tenu des éléments en sa possession et des
critères susmentionnés, et compte tenu du fait que les griefs de la requérante
n'ont été que partiellement accueillis, la Cour juge la demande de la
requérante excessive et, statuant en équité, décide de lui allouer la somme
de 1 500 EUR.

C. Intérêts moratoires

56. La Cour juge approprié de calquer le taux des intérêts moratoires sur
le taux d'intérêt de la facilité de prêt marginal de la Banque centrale
européenne majoré de trois points de pourcentage.

PAR CES MOTIFS, LA COUR, À L'UNANIMITÉ,

1. Déclare recevables les griefs tirés de la présence du commissaire du
gouvernement au délibéré de la formation de jugement du Conseil d'Etat
et de l'iniquité de la procédure devant le conseil médical de
l'aéronautique civile, et la requête irrecevable pour le surplus ;

2. Dit qu'il y a eu violation de l'article 6 § 1 de la Convention concernant le

grief tiré de la présence du commissaire du gouvernement au délibéré de
la formation de jugement du Conseil d'Etat ;
ARRÊT CHAUDET c. FRANCE 13

3. Dit qu'il n'y a pas eu violation de l'article 6 § 1 de la Convention

concernant le grief tiré de l'iniquité de la procédure devant le conseil
médical de l'aéronautique civile ;

4. Dit que le constat de violation de l'article 6 § 1 de la Convention relatif à

la présence du commissaire du gouvernement au délibéré du Conseil
d'Etat fournit en soi une satisfaction équitable suffisante pour le
dommage subi par la requérante ;

5. Dit
a) que l'Etat défendeur doit verser à la requérante, dans les trois mois à
compter du jour où l'arrêt sera devenu définitif conformément à
l'article 44 § 2 de la Convention, 1 500 EUR (mille cinq cents euros)
pour frais et dépens, plus tout montant pouvant être dû à titre d'impôt par
la requérante;
b) qu'à compter de l'expiration dudit délai et jusqu'au versement, ce
montant sera à majorer d'un intérêt simple à un taux égal à celui de la
facilité de prêt marginal de la Banque centrale européenne applicable
pendant cette période, augmenté de trois points de pourcentage ;

6. Rejette la demande de satisfaction équitable pour le surplus.

Fait en français, puis communiqué par écrit le 29 octobre 2009, en

application de l'article 77 §§ 2 et 3 du règlement.

Claudia Westerdiek Peer Lorenzen

Greffière Président
CONSEIL COUNCIL
DE L’EUROPE OF EUROPE

COUR EUROPÉENNE DES DROITS DE L’HOMME

EUROPEAN COURT OF HUMAN RIGHTS

SECOND SECTION

CASE OF CHEVROL v. FRANCE

(Application no. 49636/99)

JUDGMENT

STRASBOURG

13 February 2003

FINAL
13/05/2003
CHEVROL v. FRANCE JUDGMENT 1

In the case of Chevrol v. France,

The European Court of Human Rights (Second Section), sitting as a
Chamber composed of:
Mr A.B. BAKA, President,
Mr J.-P. COSTA,
Mr GAUKUR JÖRUNDSSON,
Mr L. LOUCAIDES,
Mr C. BÎRSAN,
Mr M. UGREKHELIDZE,
Mrs A. MULARONI, judges,
and Mr T.L. EARLY, Deputy Section Registrar,
Having deliberated in private on 22 October 2002 and 28 January 2003,
Delivers the following judgment, which was adopted on the last-
mentioned date:

PROCEDURE
1. The case originated in an application (no. 49636/99) against the
French Republic lodged with the European Commission of Human Rights
(“the Commission”) under former Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the Convention”)
by a French national, Mrs Yamina Chevrol (“the applicant”), on 4 March
1996.
2. The applicant alleged, in particular, that the Conseil d'Etat's referral to
the Minister for Foreign Affairs of a preliminary question as to whether the
condition of reciprocity had been satisfied in respect of an international
treaty – a Government Declaration of 19 March 1962 forming part of the
“Evian Accords” – and the fact that the minister's assessment was binding
on the court and was not open to challenge by applicants amounted to
interference by the executive which was incompatible with the notion of an
independent “tribunal” with full jurisdiction as guaranteed by Article 6 § 1
of the Convention.
3. The application was transmitted to the Court on 1 November 1998,
when Protocol No. 11 to the Convention came into force (Article 5 § 2 of
Protocol No. 11).
4. The application was allocated to the First Section of the Court
(Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that
would consider the case (Article 27 § 1 of the Convention) was constituted
as provided in Rule 26 § 1.
2 CHEVROL v. FRANCE JUDGMENT

5. On 1 November 2001 the Court changed the composition of its

Sections (Rule 25 § 1). This case was assigned to the newly composed
Second Section (Rule 52 § 1).
6. In a decision of 4 June 2002 the Chamber declared the application
admissible and considered that a hearing on the merits was necessary.
7. On 17 October 2002, the Chamber asked the parties to reply during
the hearing to further questions as to whether the applicant was a “victim”
within the meaning of Article 34 of the Convention and whether Article 6
§ 1 of the Convention was applicable to the proceedings in issue.
8. The hearing took place in public in the Human Rights Building,
Strasbourg, on 22 October 2002 (Rule 59 § 2).

There appeared before the Court:

(a) for the Government

Mr A. BUCHET, Head of the Human Rights Section,
Legal Affairs Department, Ministry of Foreign Affairs, Agent,
Ms B. JARREAU, Administrative Court judge,
on secondment to the Human Rights Section,
Legal Affairs Department, Ministry of Foreign Affairs, Counsel;

(b) for the applicant

Mr B. TABAKA, knowledge manager specialising
in administrative law, Landwell & Partners, Paris, Counsel.

9. The applicant attended the hearing. The Court heard addresses by

Mr Tabaka and Mr Buchet and also their replies to questions from its
individual members.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

10. On 17 February 1987 the applicant, who had qualified as a doctor in

Algeria in 1969 after graduating in medicine from the University of Algiers,
applied to the Bouches-du-Rhône département council of the ordre des
médecins (Medical Association) for registration as a member of the ordre.
11. The département council refused her application on the ground that,
although she was French, she did not have a French medical qualification.
The applicant subsequently made eleven unsuccessful applications to the
CHEVROL v. FRANCE JUDGMENT 3

Minister for Health for authorisation under Article L. 356, point (2), third
paragraph, of the Public Health Code.
12. On 1 June 1995 the applicant again applied to the département
council, relying on the Government Declarations of 19 March 1962 on
Algeria, known as the “Evian Accords”, and in particular on the
Government Declaration on Cultural Cooperation between France and
Algeria (“the 1962 Government Declaration”), of which Article 5 of Part I
provides:
“Academic diplomas and qualifications obtained in Algeria and France under the
same conditions as regards curriculum, attendance and examinations shall be
automatically valid in both countries.”
13. Her application was rejected on 16 June 1995 by the Bouches-du-
Rhône département council of the ordre des médecins, which refused to
register her.
14. The applicant appealed against that decision to the Provence-Alpes-
Côte d'Azur-Corse regional council of the ordre des médecins. In a decision
of 17 December 1995 the regional council upheld the decision to refuse her
registration.
15. On 13 February 1996 the applicant applied to the disciplinary section
of the National Council of the ordre des médecins. In a decision of
20 March 1996 the disciplinary section refused her application on the
ground, inter alia, that the terms of Article 5 of the 1962 Government
Declarations could not by themselves confer the right to practise medicine
in France on all those who had obtained medical qualifications in Algeria
after that date, and therefore could not be used in support of an application
for registration.
16. On 3 June 1996 the applicant applied to the Conseil d'Etat for
judicial review of that decision.
17. On 29 October 1998, at the request of the Conseil d'Etat, the Legal
Affairs Department of the Ministry of Foreign Affairs submitted
observations on the applicant's application. It stated:
“This application calls for the following observations on my part, which, as you
requested, concern the provisions of Article 5 of the Government Declaration of
19 March 1962 on Cultural Cooperation between France and Algeria, one of the
declarations making up the 'Evian Accords'. ...

1. Nature of the provisions

The Conseil d'Etat, acting in its judicial capacity, has already had occasion to rule
on the nature of the provisions of the 'Evian Accords'. Agreeing with the Department's
position, it held that the Accords constituted an international treaty (see the Conseil
d'Etat's Moraly judgment of 31 January 1969, Recueil des arrêts du Conseil d'Etat
[Reports of the judgments of the Conseil d'Etat], 1969, p. 50).
4 CHEVROL v. FRANCE JUDGMENT

2. Applicability of the provisions

The Government Declarations of 19 March 1962 were approved in a referendum

held on 8 April 1962 and were subsequently published in the Official Gazette on
20 April 1962. They came into force on 3 July 1962 following an exchange of letters
between the President of the French Republic and the Chairman of the Provisional
Executive of the Algerian State.

Since no measures have been taken to suspend their application or to revise their
content, the provisions in question must be regarded as having been in force on
17 December 1995 and 20 March 1996, when the impugned decisions ... were taken.

However, the reciprocity requirement in Article 55 of the Constitution cannot be

regarded as having been satisfied at that time, since those provisions had not been
applied by the Algerian authorities in respect of applications by French nationals with
qualifications obtained in France. Consequently, they cannot be applied to the facts of
the present case.

3. In the alternative, the scope of the provisions

Article 5 § 1 of the Declaration ... lays down the principle that French and Algerian
qualifications are automatically equivalent, without there being any need for
implementing regulations, provided that the curricula followed are similar.

Regard being had, in particular, to the precision of their content and the lack of any
reference to implementing measures, the provisions in issue appear to be directly
effective.

However, they cannot be regarded as establishing an unconditional right for anyone

having obtained medical qualifications in Algeria to be registered as a member of the
French ordre des médecins. In assessing candidates for registration as a member of the
national ordre, reference should be made to the domestic legislation in force, in
particular Articles L. 356 et seq. of the Public Health Code, the requirements of which,
in the case of foreign nationals, go beyond the production of a French medical degree
or a recognised equivalent qualification, as candidates must also undergo professional
aptitude tests.”
18. After being apprised of those observations, the applicant produced to
the Conseil d'Etat declarations from various Algerian authorities certifying
that qualifications obtained in France by French practitioners were
recognised as being automatically valid in Algeria.
19. In a judgment of 9 April 1999 the Conseil d'Etat, acting in its
judicial capacity, did not follow the submissions of the Government
Commissioner, Mr Rémy Schwartz, and dismissed the application in the
following terms:
CHEVROL v. FRANCE JUDGMENT 5

“...

As regards the argument based on Article 5 of the Government Declaration of

19 March 1962 on Cultural Cooperation between France and Algeria:

...

Article 55 of the Constitution of 4 October 1958 provides: 'Treaties or agreements

that have been lawfully ratified or approved shall, upon publication, prevail over Acts
of Parliament, subject, in respect of each agreement or treaty, to its application by the
other party.' It is not for the administrative courts to determine whether and to what
extent the manner in which a treaty or agreement is applied by the other party is
capable of depriving the instrument's provisions of the authority conferred on them by
the Constitution. In observations produced on 2 November 1998 the Minister for
Foreign Affairs stated that the aforementioned provisions of Article 5 of the
Declaration on Cultural Cooperation between France and Algeria could not be
regarded as having been in force on the date of the decision complained of, seeing that
on that date the reciprocity requirement laid down in Article 55 of the Constitution had
not been satisfied. [The applicant] is accordingly not entitled to rely on those
provisions.

As regards the other arguments:

...

Although [the applicant] submits that the disciplinary section of the National
Council of the ordre des médecins infringed the Council of the European
Communities' Directive of 21 December 1988 on the recognition of diplomas, she has
not produced any information from which it may be ascertained whether that argument
is well-founded. The Council of the European Communities' Recommendation of
21 December 1988 does not impose on the member States any obligations on which
[the applicant] could rely.

As [the applicant] was unable to show either that she had obtained the French
qualification for practising as a doctor or any of the qualifications listed in
Article L. 356-2 of the Public Health Code or that she had been granted the special
ministerial authorisation provided for in Article L. 356 ... for persons with foreign
qualifications, she could not expect to be registered. Consequently, her argument that
the disciplinary section did not take into account her ability and her clinical and
academic experience is irrelevant.

...”
20. In a ministerial order of 22 January 1999, published in the French
Official Gazette on 30 January 1999, the applicant was authorised to
practise as a doctor in France with effect from 1997, under Article L. 356,
point (2), third paragraph, of the Public Health Code. On the basis of that
order, in a decision of 12 April 1999, the Bouches-du-Rhône département
council of the ordre des médecins registered the applicant as a member of
the ordre. On 9 August 1999 it recognised the applicant's abilities as an
orthopaedic surgeon by designating her as a doctor specialising in
6 CHEVROL v. FRANCE JUDGMENT

orthopaedic surgery, on the basis of her qualifications and professional

experience.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. The Constitution

Article 55 of the Constitution provides:

“Treaties or agreements that have been lawfully ratified or approved shall, upon
publication, prevail over Acts of Parliament, subject, in respect of each agreement or
treaty, to its application by the other party.”

B. The Public Health Code (as in force at the relevant time)

21. Anyone wishing to practise as a doctor in France must satisfy certain

conditions laid down in Articles L. 356, L. 356-1 and L. 356-2 of the Public
Health Code. The two fundamental requirements are possession of certain
qualifications referred to in Article L. 356-2 or of a special status
(Article L. 356, point (2), first and second paragraphs), and nationality
(Article L. 356, point (2), second paragraph). A third condition is
registration as a member of the ordre des médecins (Article L. 356,
point (3)).
22. It follows from those provisions that anyone who has a “diploma,
certificate or other qualification referred to in Article L. 356-2” and is a
“French national or a national of one of the member States of the European
Economic Community, of one of the other States Parties to the Agreement
on the European Economic Area, of Morocco or of Tunisia ...”
automatically qualifies for registration as a member of the ordre.
Article L. 356-2 refers to the following qualifications for practising as a
doctor: “either the French State degree of Doctor of Medicine ... or, if the
person concerned is a national of a member State of the European Economic
Community or of another State Party to the Agreement on the European
Economic Area, a degree, certificate or other medical qualification issued
by one of those States ...”.
23. The Minister for Health may also, after obtaining the opinion of a
committee, authorise other persons on an individual basis to practise
medicine (Article L. 356, point (2), third paragraph), including French
nationals who do not possess the qualifications referred to in
Article L. 356-2. The maximum number of persons who may be granted
such authorisation is set every year “by order of the Minister for Health,
with the agreement of the aforementioned committee, regard being had to
the arrangement under which they intend to practise”.
CHEVROL v. FRANCE JUDGMENT 7

C. Case-law concerning international treaties

1. The Conseil d'Etat's position

24. For a long time the Conseil d'Etat regarded the interpretation of an
international treaty containing ambiguous or unclear provisions as a matter
outside its jurisdiction because it deemed such interpretation to be a
prerogative act that could not be dissociated from international relations and
was not open to challenge in the courts (a position maintained since Veuve
Murat, Comtesse de Lipona, judgment of 23 July 1823, Recueil des arrêts
du Conseil d'Etat, p. 45). When confronted with provisions that it
considered insufficiently clear, it relied on the official interpretation given
by the Minister for Foreign Affairs (see also Karl et Toto Samé, judgment of
3 July 1931, Sirey 1932, III, p. 129, together with the submissions of
Mr Ettori and the commentary by Mr Rousseau). Since the Conseil d'Etat's
judgment of 29 June 1990 in GISTI, the practice of referring a preliminary
question to the minister has been discontinued and the Conseil d'Etat now
interprets international agreements itself; if it seeks the opinion of the
executive, it does not regard itself as bound by it (see GISTI, judgment of
29 June 1990, Recueil des arrêts du Conseil d'Etat, p. 171, and the Court's
judgment in Beaumartin v. France (24 November 1994, Series A no. 296-
B) concerning a ruling given before the Conseil d'Etat had altered its
position).
25. With regard to the Government Declarations of 19 March 1962, the
Conseil d'Etat ruled in a judgment of 31 January 1969 (Société Moraly et
Société Maisons Moraly, Recueil Lebon, p. 51) that they should be regarded
as constituting an international treaty. It so held after referring a preliminary
question to the Minister for Foreign Affairs as to the interpretation of the
Declarations' scope. The Conseil d'Etat maintained that position even after
discontinuing the practice of referring preliminary questions on the
interpretation of an international treaty (see, for example, Teytaud, judgment
of 25 November 1998, case no. 182302).
26. However, the change in position resulting from GISTI has not been
transposed to the context of applying the reciprocity clause in Article 55 of
the Constitution. The Conseil d'Etat has taken the view that it is not its task
to assess whether and to what extent the manner in which a treaty or
agreement is applied by the other party is capable of depriving the
instrument's provisions of the authority conferred on them by the
Constitution (see Rekhou and ministre du Budget contre Mme Veuve Bellil,
29 May 1981, Recueil Lebon, p. 220, judgments of the full court, and
ministre du Budget contre Nguyen Van Giao, judgment of 27 February
1987, Recueil Lebon, p. 77). Those judgments and the one in the instant
case are the only ones in which the Conseil d'Etat has ruled on the manner
in which the reciprocity clause is to be applied and on the continuation of
8 CHEVROL v. FRANCE JUDGMENT

the practice of referring preliminary questions to the Minister for Foreign

Affairs.

2. The Court of Cassation's position

27. When dealing with issues relating to reciprocity, the Court of
Cassation initially adopted the same solution as that advocated by the
Conseil d'Etat (Court of Cassation, Criminal Division, 29 June 1972, Males,
Bulletin criminel no. 227). It subsequently held that in the absence of any
measures by the government to denounce a treaty or suspend its application
(such as publication in the Official Gazette of a memorandum by the
Minister for Foreign Affairs), it was not for the courts to review compliance
with the condition of reciprocity in inter-State relations as laid down in
Article 55 of the Constitution (Court of Cassation, Civil Division (Cass.
civ.) I, 6 March 1984, Mme Kappy, épouse Lisak, Revue générale de droit
international public 1985, p. 538). That position has been maintained ever
since (Cass. civ. I, 16 February 1994, ordre des avocats près la cour d'appel
de Paris contre Aït Kaci, Bulletin de la Cour de cassation (Bull. cass.) no.
65, and Cass. civ. I, 23 March 1994, N'Guyen Duy Thong contre Conseil de
l'ordre des avocats de la Seine-Saint-Denis, Bull. cass. no. 105).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

28. Relying on Article 6 § 1 of the Convention, the applicant complained

that her right to a fair hearing had been infringed on account of the
interference by the executive with the Conseil d'Etat's judicial powers. She
argued that the minister's involvement had been decisive for the outcome of
the legal proceedings and had not been open to challenge on her part.
29. The relevant parts of Article 6 § 1 of the Convention provide:
“In the determination of his civil rights and obligations ..., everyone is entitled to a
fair ... hearing ... by an independent and impartial tribunal established by law.”

A. Whether the applicant can claim to be a “victim”

30. On 12 April 1999, three days after the Conseil d'Etat had given
judgment, the Bouches-du-Rhône département council of the ordre des
médecins registered the applicant as a member with effect from 1997,
thereby entitling her to practise medicine in France. The first issue to be
CHEVROL v. FRANCE JUDGMENT 9

considered, therefore, is whether the applicant is a “victim” within the

meaning of Article 34 of the Convention.
31. The applicant maintained that she was still a “victim” of the alleged
violation of the Convention. Relying on the Court's case-law (see Lüdi
v. Switzerland, judgment of 15 June 1992, Series A no. 238, p. 18, § 34),
she pointed out that a favourable decision or measure was not in principle
sufficient to deprive applicants of their status as a “victim” unless the
national authorities had acknowledged, either expressly or in substance, and
then afforded redress for, the breach of the Convention. In her submission,
France had not afforded full redress for the consequences, particularly the
financial ones, of the failure to recognise her medical qualifications. She
stated that between 1 August 1986, the date on which she had arrived in
France, and 1999 she had not been able to perform any surgery because she
had not been authorised to practise. Even when she had obtained
authorisation in 1999, her age (she was 57 years old at the time) and the fact
that she had not practised for thirteen years had meant that she was unable
to set up her own practice or join a team of surgeons. She had only been
able to obtain a “possibly renewable” temporary contract which, in her
opinion, was not commensurate with her professional abilities and
references. She considered that her career had been brought to a standstill in
1986 and that her registration as a member of the ordre in 1999 had not
redressed the situation. She added that her complaints concerned not only
the fact that she had been unable to practise medicine, but also the fact that
her case had been heard by a tribunal that had not been independent and
impartial in that the assessment of a fundamental point of law had been
referred to the Minister for Foreign Affairs. She accordingly considered that
she could claim to be a “victim”.
32. The Government disputed that argument. They submitted that,
further to the ministerial order of 22 January 1999, the applicant had had the
possibility of working as a doctor in private practice since 12 April 1999.
As a result, the only adverse consequence mentioned by the applicant,
namely her being unable to practise as a doctor, had ceased to exist on
12 April 1999.
33. The Government accordingly inferred that the ministerial order of
22 January 1999 satisfied the requirements of the Court's case-law
concerning loss of victim status, although they were aware that the Court
had a fairly broad conception of the notion of “victim” (see Amuur
v. France, judgment of 25 June 1996, Reports of Judgments and Decisions
1996-III, p. 846, § 36, and Association Ekin v. France, no. 39288/98, §§ 37-
38, ECHR 2001-VIII) and that it had difficulty in accepting that a person
could cease to be a victim during the course of the proceedings. They
argued that although the order in issue had not on the face of it had a direct
link with the alleged violation since it had not concerned the requirements
of a fair hearing, which the applicant alleged had been infringed, it had
10 CHEVROL v. FRANCE JUDGMENT

nonetheless settled the dispute finally and unequivocally in the applicant's

favour by authorising her to practise as a doctor.
34. The notion of victim should not, the Government added, be
construed in a formalistic manner; the fundamental aim should be to ensure
that, in substance, the alleged violation had genuinely and totally ceased to
exist. That had been the case in this instance as the applicant had been
authorised to practise as a doctor and did not risk having that entitlement
challenged. She was therefore no longer suffering the adverse consequences
of the domestic decision, and the dispute that had given rise to the
proceedings whose fairness she was contesting had now been finally settled.
35. The Government argued that treating the applicant as a “victim”
would amount to considering that a person could continue to complain of
the unfairness of proceedings even if their outcome had been favourable.
They submitted in conclusion that the applicant could not claim that she was
still a “victim” since, although her application to the Conseil d'Etat had
been dismissed on 9 April 1999, three days later she had been able to
practise as a doctor and thus exercise the right she had claimed in that court.
36. The Court observes that it has repeatedly held that the word “victim”
in the context of Article 34 of the Convention (Article 25 before
1 November 1998) “denotes the person directly affected by the act or
omission in issue ...”. Consequently, a decision or measure favourable to the
applicant is not in principle sufficient to deprive him of his status as a
“victim” unless “the national authorities have acknowledged, either
expressly or in substance, and then afforded redress for, the breach of the
Convention” (see, among other authorities, Eckle v. Germany, judgment of
15 July 1982, Series A no. 51, pp. 30-32, §§ 66 and 69; Inze v. Austria,
judgment of 28 October 1987, Series A no. 126, p. 16, § 32; Association
Ekin v. France (dec.), no. 39288/98, 18 January 2000, and the judgment in
the same case, cited above, §§ 37-38).
37. In so far as the applicant alleged a violation of Article 6 § 1 of the
Convention, the Court must determine whether the national authorities
acknowledged any such violation and, if so, afforded redress for it.
38. In the instant case the Court notes that from 17 February 1987
onwards the applicant sought permission to practise as a doctor in France,
firstly from the council of the ordre des médecins and subsequently, on
eleven occasions, from the Minister for Health. Concurrently, in 1995 the
applicant instituted proceedings before the council of the ordre on the basis
of Article 5 of the 1962 Government Declaration. The Court observes that
the outcome of those proceedings was unfavourable to the applicant, since
they ended when the Conseil d'Etat gave judgment on 9 April 1999,
dismissing her application. The applicant's complaint before the Court
concerns the alleged unfairness of those proceedings.
39. Following twelve refusals, the applicant was finally authorised to
practise as a doctor by the ministerial order of 22 January 1999, with effect
CHEVROL v. FRANCE JUDGMENT 11

from 1997. The order was made under Article L. 356, point (2),
paragraph 3, of the Public Health Code, which provides for a procedure
whereby certain persons who do not satisfy the usual requirements for
practising medicine may be authorised on an individual basis to do so (see
paragraphs 21-23 above).
40. The Court notes that the ministerial order was published in the
Official Gazette (no. 25, 30 January 1999, p. 1582) in connection with
notices of appointments. The order merely mentions the names of persons
who have been authorised to practise medicine in France. As the order was
made prior to the Conseil d'Etat's judgment, it clearly could not have
referred to the manner in which Article 6 § 1 of the Convention was applied
in that judgment, or a fortiori have acknowledged, if appropriate, that there
had been a violation of that provision. As to the fact that, on the basis of that
order, the applicant was registered as a member of the ordre on 12 April
1999, three days after the Conseil d'Etat's judgment, the Conseil d'Etat does
not appear to have been influenced either way by the order. The Court lastly
notes that, far from holding that it was not necessary to rule on the
applicant's application, the Conseil d'Etat dismissed it on logical grounds,
thereby indicating that the dispute had not been resolved in spite of the
order of 22 January 1999.
41. It follows from the foregoing that none of the relevant authorities
acknowledged explicitly, or even implicitly, that there had been a violation
of Article 6 § 1 of the Convention. Furthermore, the fact that the applicant
was authorised to practise medicine in France did not remove in substance
the alleged unfairness of the proceedings in the Conseil d'Etat on account of
the referral of a preliminary question to the Minister for Foreign Affairs.
42. The fact that the applicant was authorised to practise medicine in
France may, at best, be deemed to constitute redress. However, the applicant
did not receive such authorisation until 1999, with effect from 1997,
whereas the proceedings complained of had been instituted in 1995.
Consequently, even supposing that redress was afforded, it was only partial.
43. In short, as the national authorities did not acknowledge, either
expressly or in substance, or afford full redress for, the violation alleged by
the applicant, she may still claim to be a “victim” within the meaning of
Article 34 of the Convention.

B. Applicability of Article 6 § 1 of the Convention

44. According to the Court's settled case-law, Article 6 § 1 of the

Convention is applicable only if there is a genuine and serious dispute (see
Sporrong and Lönnroth v. Sweden, judgment of 23 September 1982,
Series A no. 52, p. 30, § 81) over “civil rights and obligations”. The dispute
may relate not only to the actual existence of a right but also to its scope and
the manner of its exercise (see, among other authorities, Zander v. Sweden,
12 CHEVROL v. FRANCE JUDGMENT

judgment of 25 November 1993, Series A no. 279-B, p. 38, § 22), and the
outcome of the proceedings must be directly decisive for the right in
question, mere tenuous connections or remote consequences not being
sufficient to bring Article 6 § 1 into play (see, among other authorities,
Masson and Van Zon v. the Netherlands, judgment of 28 September 1995,
Series A no. 327-A, p. 17, § 44, and Fayed v. the United Kingdom,
judgment of 21 September 1994, Series A no. 294-B, pp. 45-46, § 56). The
Court must therefore determine whether Article 6 of the Convention applies
to the proceedings instituted before the council of the ordre in 1995.
45. The applicant pointed out that the two fundamental requirements for
practising medicine in France were, firstly, possession of certain
qualifications or of a special status and, secondly, nationality
(Article L. 356, point (2), first and second paragraphs, of the Public Health
Code). She submitted that she had relied on Article 5 of the 1962
Government Declaration, which provided that academic diplomas and
qualifications obtained in Algeria and France were automatically valid in
both countries. Pursuant to that provision, she had been entitled to claim
that she satisfied the two requirements laid down in the Public Health Code
and, consequently, to practise as a doctor in France. Her position in the
proceedings in issue could therefore not be compared with that examined in
Delord v. France ((dec.), no. 63548/00, 25 April 2002), in which the
applicant's application for registration had been based on Article L. 356,
point (2), third paragraph. The applicant submitted in conclusion that
Article 6 § 1 of the Convention was applicable in her case.
46. In the Government's submission, however, Article 6 of the
Convention was not applicable to the proceedings instituted by the applicant
in the administrative courts. They argued that in the instant case there had
been neither a “contestation” (dispute) within the meaning of Article 6 § 1
nor a right which could be said, at least on arguable grounds, to be
recognised in domestic law
47. In support of that argument they pointed out, in the first place, that,
according to the Court's case-law (see Van Marle v. the Netherlands,
judgment of 26 June 1986, Series A no. 101, pp. 11-12, §§ 32-38, and San
Juan v. France (dec.), no. 43956/98, ECHR 2002-III), proceedings for
admission to a profession were not covered by Article 6 where they entailed
an assessment of the knowledge and experience required for carrying on the
profession. The Government argued that that position could be transposed to
the instant case since, even if the dispute had not directly concerned the
assessment of the applicant's knowledge, it had concerned academic
qualifications. If the Franco-Algerian accord had been held to be applicable,
it would have triggered an assessment of the conditions in which the
applicant had obtained her qualifications. An issue of that kind could not,
the Government submitted, form the basis of a “contestation” within the
meaning of Article 6 § 1 of the Convention.
CHEVROL v. FRANCE JUDGMENT 13

48. Secondly, the Government observed that the dispute concerned the
validity of a university degree, which was one of the prerequisites for
practising as a doctor in France. In the Government's submission, the right
to practise medicine in France was not a right which could be said, on
arguable grounds, to be recognised in domestic law. They observed that in a
case very similar to the present one (see Delord, cited above), the Court had
held that the applicant could not claim a right to practise as a doctor in
France. The Government acknowledged that, unlike the instant case, that
case had been based on Article L. 356, point (2), third paragraph, of the
Public Health Code and not on Article 5 of the 1962 Government
Declaration. They nevertheless maintained that the case was transposable to
the instant one. If the 1962 Government Declaration had been applicable, it
would not have conferred on the applicant a right to practise medicine. She
would have remained subject to the individual ministerial authorisation
procedure, which operated on the basis of a quota fixed annually. It
followed, in the Government's submission, that, as in the Delord case,
Article 6 of the Convention did not apply in the instant case.
49. The Court reiterates that, according to its case-law, “Article 6 § 1
extends to 'contestations' (disputes) over (civil) 'rights' which can be said, at
least on arguable grounds, to be recognised under domestic law, irrespective
of whether they are also protected under the Convention” (see, among other
authorities, Editions Périscope v. France, judgment of 26 March 1992,
Series A no 234-B, p. 64, § 35, and Zander, cited above). Furthermore,
“where legislation lays down conditions for the admission to a profession
and a candidate for admission satisfies those conditions, he has a right to be
admitted to that profession” (see De Moor v. Belgium, judgment of 23 June
1994, Series A no. 292-A, p. 15, § 43).
50. The Court notes at the outset that the dispute did not in any way
concern an assessment of whether the applicant had the necessary
knowledge and experience to practise as a doctor, and her qualifications
were, moreover, not disputed by the Government. The disagreement related
to the application of Article 5 of the 1962 Government Declaration.
51. The Court notes that the applicant was demanding access to the
medical profession in accordance with the conditions laid down in
Article L. 356, points (1) and (2), of the Public Health Code and that the
disagreement does indeed concern the application of Article 5 of the
Government Declaration of 19 March 1962 on Cultural Cooperation
between France and Algeria, which, like all international treaties or
agreements, is subject to a reciprocity requirement in France.
52. Under the provisions of the Public Health Code, access to the
medical profession in France is subject to two requirements: possession of
certain degrees or other qualifications, and nationality (Article L. 356,
points (1) and (2), first paragraph). Persons satisfying both those
requirements qualify directly for registration as members of the ordre des
14 CHEVROL v. FRANCE JUDGMENT

médecins and are entitled to practise medicine in France (Article L. 356,

point (3)); there is no upper limit on the number of registrations.
53. Furthermore, Article L. 356, point (2), third paragraph, of the Public
Health Code provides that the Minister for Health may, on an individual
basis and subject to an annual limit, authorise practitioners who do not
satisfy the statutory nationality and qualification requirements to practise
medicine. This is indisputably a special procedure distinct from the
preceding one.
54. Following a number of unsuccessful applications, the applicant tried
a different approach in 1995, not relying on Article L. 356, point (2), third
paragraph, but arguing that, pursuant to Article 5 of the 1962 Government
Declaration, she satisfied the requirements for direct registration as a
member of the ordre. Having satisfied the nationality requirement, she
maintained that she would also satisfy the second requirement if her
qualification were recognised as equivalent on the basis of an international
treaty.
55. The Court notes that, as the 1962 Government Declaration is to be
regarded as an international treaty according to the Conseil d'Etat's case-law
(see paragraph 25 above), its provisions in principle prevail over domestic
legislation. It follows that the applicant could reasonably argue that if
Article 5 of the 1962 Government Declaration had been regarded as being in
force, the degree she had obtained in Algeria in 1969 should have been
recognised as being automatically valid in France, thus enabling her to
satisfy the qualification requirement laid down in the Public Health Code.
She would then have been entitled to be registered directly as a member of
the ordre and to practise medicine in France. In those circumstances, and
having regard to the wording of Article L. 356 of the Public Health Code,
the Court considers that the applicant could claim on arguable grounds that
French law afforded her the right to be registered as a member of the ordre
des médecins and hence to practise medicine in France.
56. Consequently, Article 6 § 1 of the Convention is applicable.

C. Compliance with Article 6 § 1 of the Convention

57. The applicant noted that the facts of the instant case were similar to
those in Beaumartin, cited above. The Conseil d'Etat had asked the Minister
for Foreign Affairs to give a unilateral opinion not open to challenge on the
applicability of an international treaty in France. It had done so despite the
fact that the issue of the application of the “Evian Accords” had been
decisive for the outcome of the legal proceedings.
58. In the applicant's submission, the Conseil d'Etat's continuing practice
of referring preliminary questions to the minister was a traditional
arrangement which was no longer appropriate today. She contended that a
distinction should be made between prerogative acts, which were not
CHEVROL v. FRANCE JUDGMENT 15

subject to judicial review, and other measures having a bearing on

international relations, which fell outside the scope of prerogative acts and
were to be classified as decisions open to challenge. Such measures
included, for example, extradition decisions relating to the residence of
aliens, in which the administrative courts were intervening more and more
and were thus being required to assess the conduct of foreign States. They
also included the assessment of the applicability of international treaties
within the territory of France. In the current legal context, a decision not to
recognise the applicability of an international treaty could no longer be
taken unilaterally and in isolation, in the applicant's submission, without
regard to the conventions and rules governing the international community.
Such an assessment was a judicial rather than a merely political matter and
should thus be the task of the courts.
59. Furthermore, the applicant argued, the fact that the Minister for
Foreign Affairs' assessment as to whether the international treaty in question
had been applied was binding on the court, which drew automatic inferences
from it, was incompatible with judicial independence. Such a system meant
that the minister was at once a party to the proceedings and the decision-
making authority. That had been true in the applicant's case in that, although
her dispute had not been directly with the Minister for Foreign Affairs but
with the Minister for Health, that difference was irrelevant because the
Minister for Foreign Affairs had been asked to give his opinion on a legal
situation that involved the entire government.
60. In the applicant's submission, her right to a “tribunal” within the
meaning of Article 6 § 1 of the Convention had been infringed in that she
had not had access to an authority with jurisdiction to examine all questions
of fact and law relevant to the dispute. She pointed out that she had
attempted to produce various pieces of evidence to show that the “Evian
Accords” had been applied by the Algerian government. However, that
evidence had not been taken into account. She emphasised that as soon as
she had had knowledge of the Minister for Foreign Affairs' observations,
she had produced to the Conseil d'Etat several declarations from Algerian
ministries recognising the equivalence of qualifications and confirming that
the Doctor of Medicine degree awarded by French universities was
equivalent to that awarded by Algerian universities. In support of her
argument that the reciprocity requirement had been satisfied, she had also
cited twenty-seven orders made by the French Ministry of Education
between 1963 and 1973 – ten of which concerned medical degrees – in
which 843 degrees or other qualifications awarded by the University of
Algiers for the 1962/63 and 1971/72 academic years had been recognised as
being automatically valid within French territory, pursuant to the
Government Declarations of 19 March 1962 on Algeria. In the applicant's
submission, there had been a need for a discussion of this evidence, which
could have led to a different outcome.
16 CHEVROL v. FRANCE JUDGMENT

61. Lastly, the applicant considered that the position adopted in

Beaumartin, cited above, should be extended to the examination of the
reciprocity of an international treaty. She observed in that connection that
judicial functions necessarily included determining the rules applicable to a
particular dispute. It was for the courts to identify the body of legal
provisions that would apply in a particular case. That meant that they would
be required to apply rules of both domestic and international law.
Adjudication entailed assessing, above all, the evidence adduced by the
parties, but also all the other circumstances of the case and, in particular, the
applicable rules. Thus, if the court needed to have recourse to the Minister
for Foreign Affairs, it was under an obligation to make an assessment of the
reply it received and could not consider itself to be bound by the reply given
by the executive when the outcome of the case might depend on it.
Otherwise, the court would not be assessing the factual and legal issues
before it and therefore did not have full jurisdiction. Although it was
entitled to have recourse to the Minister for Foreign Affairs, in rather the
same way as it might have recourse to an expert, it should not in any
circumstances refrain from examining the minister's clarifications. In
relieving itself of its duties, as it had done, by referring a preliminary
question, the Conseil d'Etat was declining full jurisdiction and was no
longer, in the applicant's submission, an independent and impartial tribunal
within the meaning of the Convention.
62. Relying on Beaumartin, cited above, the Government noted that the
Court had held that, in order to satisfy the requirements of Article 6 § 1 of
the Convention, a court had to have full jurisdiction and be independent of
the parties to the proceedings and the executive.
63. The principle that a court should exercise full jurisdiction required it
not to abandon any of the elements of its judicial function. The court's
independence from the parties and the executive meant that, where it was
dealing with a dispute that came within its jurisdiction, it could not have the
solution dictated to it by one of the parties or by a representative of the
executive. According to the Court's conclusion in Beaumartin, matters
concerning the interpretation of rules of international law came within the
courts' jurisdiction. The point in issue, therefore, was whether the court's
full exercise of its jurisdiction also required it to examine whether
international agreements had been applied on a reciprocal basis.
64. In the instant case the Government identified two questions to be
resolved:
(1) Was the assessment of a foreign State's application of an
international agreement an essential component of the judicial function?
And
(2) Could the courts legitimately rely on a government representative's
assessment of that precise issue?
CHEVROL v. FRANCE JUDGMENT 17

65. In the Government's submission, the assessment of the reciprocity

requirement in Article 55 of the Constitution could not be regarded as a
natural component of the judicial function. They maintained that the
applicant's argument was based on the application to her case of the Court's
conclusion in Beaumartin but was flawed because the task of interpreting a
rule of international law could not be equated to the assessment of whether
the reciprocity requirement had been satisfied. It did not belong to the
normal functions of a court.
66. Admittedly, interpreting legal rules was one of the fundamental tasks
of a court, which it could not abandon without “mutilating” its judicial
function. There was no practical reason why a court should not interpret a
rule of international law, since interpretation was an intellectual process for
which it was just as well qualified as the administrative authority that had
negotiated the international undertaking in question. The court's technical
expertise in the matter could not be taken to be inferior to that of the
administrative authority and the latter could, where necessary, inform the
court of what the parties' intentions had been when the international
undertaking had been negotiated and concluded.
67. That was not so, the Government submitted, when it came to
assessing the reciprocity requirement in Article 55 of the Constitution. Such
an assessment entailed examining retrospectively whether or not an
international undertaking had been applicable, on the basis of information
about a foreign State's conduct. A process of that kind was alien to the
normal role of a court for several reasons.
68. Firstly, regard should be had to the nature of a process that consisted
in passing judgment on a foreign State's conduct. The French courts
exercised jurisdiction in respect of foreign authorities only in exceptional
cases concerning issues of territorial jurisdiction. The courts, moreover,
deliberately limited their review of measures which they considered
indissociable from the conduct of international relations (see Association
Greenpeace – France, judgment of 29 September 1995, Conseil d'Etat, full
court, Recueil des arrêts du Conseil d'Etat, p. 347). In that context, the
Government considered that the assessment of the conduct of a foreign State
was more naturally a task for the diplomatic authorities than for the courts.
69. Secondly, the particular feature of the assessment of reciprocity was
that its effects were comparable to those produced by the unilateral
suspension of an undertaking. Where the minister concluded that an
international treaty had not been applied by another party at the material
time, this resulted in the treaty's being regarded retrospectively as having
been inapplicable at that time. The validity of the international undertaking
entered into by the French State was therefore called into question, in the
same way as if the French authorities had unilaterally decided to suspend it.
This undoubtedly had a direct impact on France's foreign policy. The State
in question could challenge the interpretation of its conduct and envisage
18 CHEVROL v. FRANCE JUDGMENT

retaliatory measures. In terms of its effects, therefore, the assessment of

reciprocity also fell within the sphere of diplomatic relations. Furthermore,
the reason why the administrative courts refused to deal with such
questions, in the Government's submission, was that they considered that
they would otherwise be infringing the principle of the separation of
powers. A State's foreign policy manifestly fell within the province of its
sovereign powers and fundamental prerogatives, which were outside the
scope of Article 6 of the Convention.
70. The Government added that the court would no doubt have
considerable practical difficulties in gathering reliable information itself,
whereas the Minister for Foreign Affairs appeared better placed to do so by
making use of the diplomatic network at his disposal. Furthermore, the
current system of referring questions to the minister made it possible to
obtain a reply quickly and to avoid discrepancies between different courts'
interpretations of the same question, which would be particularly
undesirable in such matters.
71. Lastly, the Government submitted that the parallel drawn by the
applicant with proceedings concerning aliens was not persuasive, since such
proceedings, which were a fundamental aspect of international human rights
law, did not require reciprocity and entailed a full judicial review. In those
proceedings, the courts dealt merely with individual cases that did not
fundamentally call into question France's diplomatic relations, unlike in the
case of a decision on a foreign State's application of an agreement of general
scope.
72. Seeing that the assessment of the reciprocity requirement was
outside the courts' ordinary jurisdiction, the fact that the courts relied on the
minister's assessment on that point could not be considered contrary to
Article 6 § 1 of the Convention. The Government therefore argued that the
second question should be replied to in the affirmative.
73. Although the Court's case-law required the courts to be independent
of the executive in discharging their normal duties, it did not require their
power of review to extend to aspects of the case that were outside their
jurisdiction. Contrary to the position in Beaumartin, the Conseil d'Etat had
not had to find a solution to a “legal problem” before it in the instant case. It
had exercised full jurisdiction in respect of the other points in dispute in the
case before it. For that reason, the Government considered that the
precedent established in Beaumartin, cited above, could certainly not be
applied to the instant case.
74. Even supposing that the Court were to find that the referral of a
preliminary question to the Minister for Foreign Affairs amounted to a
restriction of the right of access to a court, the Government submitted that
that practice pursued a legitimate aim, that of ensuring compliance with the
principle of the separation of powers, which was essential to the functioning
of a democracy and could not be called into question.
CHEVROL v. FRANCE JUDGMENT 19

75. The Government submitted in conclusion that the fact that the
Conseil d'Etat had relied on the Minister for Foreign Affairs' assessment of
the reciprocity requirement in Article 55 of the Constitution could not
amount to a violation of Article 6 § 1 of the Convention.
76. The Court reiterates at the outset that only an institution that has full
jurisdiction and satisfies a number of requirements, such as independence of
the executive and also of the parties, merits the designation “tribunal”
within the meaning of Article 6 § 1 (see, among other authorities, Ringeisen
v. Austria, judgment of 16 July 1971, Series A no. 13, p. 39, § 95; Le
Compte, Van Leuven and De Meyere v. Belgium, judgment of 23 June 1981,
Series A no. 43, p. 24, § 55; Belilos v. Switzerland, judgment of 29 April
1988, Series A no. 132, p. 29, § 64; and, above all, Beaumartin, cited above,
pp. 62-63, §§ 38-39).
77. It further reiterates that for the determination of civil rights and
obligations by a “tribunal” to satisfy Article 6 § 1, the “tribunal” in question
must have jurisdiction to examine all questions of fact and law relevant to
the dispute before it (see, inter alia and mutatis mutandis, Le Compte, Van
Leuven and De Meyere, cited above, p. 23, § 51 (b); Fischer v. Austria,
judgment of 26 April 1995, Series A no. 312, p. 17, § 29; and Terra
Woningen B.V. v. the Netherlands, judgment of 17 December 1996, Reports
1996-VI, pp. 2122-23, § 52).
78. The Court observes that the Conseil d'Etat's practice of referring
preliminary questions for interpretation means that, when the administrative
court is called upon to give a ruling on the conditions governing the
application of the reciprocity clause in Article 55 of the French Constitution,
it is obliged to ask the Minister for Foreign Affairs to clarify whether the
treaty in issue has been applied on a reciprocal basis and to draw the
necessary consequences, and it must then abide by his interpretation in all
circumstances. The Government conceded this.
79. It observes that although, following a change in the case-law, that
practice is no longer employed in the interpretation of international treaties
(see paragraph 24 above), it is still used where the reciprocity clause is
concerned.
80. The Court accepts that the application to the instant case of its
conclusion in Beaumartin, as called for by the applicant, is by no means
automatic, since the assessment of the applicability of treaties is different
from the interpretation of treaties, being, in particular, more of a factual than
a purely legal nature. The Court considers it beyond doubt that, in order to
determine whether or not, in a particular case, the treaty has been applied by
the other contracting State, the courts may be required to consult the
Ministry of Foreign Affairs, which, by its very nature, will be likely to
possess information about that State's application of the treaty.
81. However, the Court notes that in the instant case the Conseil d'Etat,
in accordance with its own case-law, relied entirely on a representative of
20 CHEVROL v. FRANCE JUDGMENT

the executive for a solution to the problem before it, concerning the
applicability of treaties. It dismissed the applicant's application purely on
the ground that the Minister for Foreign Affairs had stated that Article 5 of
the 1962 Government Declaration could not be regarded as having been in
force on the relevant date, as it had not been applied by Algeria. However,
even if consultation of the minister by the Conseil d'Etat may appear
necessary in order to assess whether the reciprocity requirement has been
satisfied, that court's current practice of referring a preliminary question for
interpretation, as in the instant case, obliges it to abide by the opinion of the
minister – an external authority who is also a representative of the executive
– without subjecting that opinion to any criticism or discussion by the
parties.
82. The Court observes, in addition, that the minister's involvement,
which was decisive for the outcome of the legal proceedings, was not open
to challenge by the applicant, who was, moreover, not afforded any
opportunity to give her opinion on the use of the referral procedure or the
wording of the question, or to have the basis of her own reply to the
question examined, or to submit a reply to the minister, which might have
been helpful or even decisive in the eyes of the court. In fact, when the
applicant was apprised of the Minister for Foreign Affairs' observations, she
produced to the Conseil d'Etat several pieces of factual evidence to show
that the 1962 Government Declaration had indeed been applied by the
Algerian government. These included statements from Algerian ministries
certifying that medical qualifications obtained in France were recognised as
being equivalent in Algeria. However, the Conseil d'Etat did not even
consider that evidence and was therefore unwilling to assess whether it was
well-founded. That is clear from the judgment delivered on 9 April 1999, in
which the Conseil d'Etat held that it was not its task to assess whether
Algeria had implemented the 1962 Government Declaration or to draw its
own inferences in the event that the declaration had not been applied; it
based its decision solely on the opinion of the Minister for Foreign Affairs.
In so doing, the Conseil d'Etat considered itself to be bound by the opinion,
thereby voluntarily depriving itself of the power to examine and take into
account factual evidence that could have been crucial for the practical
resolution of the dispute before it.
83. That being so, the applicant cannot be considered to have had access
to a tribunal which had, or had accepted, sufficient jurisdiction to examine
all the factual and legal issues relevant to the determination of the dispute
(see, among other authorities, Terra Woningen B.V., cited above, p. 2123,
§ 54).
84. There has accordingly been a violation of Article 6 § 1 of the
Convention in that the applicant's case was not heard by a “tribunal” with
full jurisdiction.
CHEVROL v. FRANCE JUDGMENT 21

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

85. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols
thereto, and if the internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford just satisfaction to
the injured party.”

A. Damage

86. Before the Court, the applicant sought an award of 3,338,494 euros
(EUR), corresponding to the total income which, in her submission, she had
been unable to receive between 1987 and 2001 on account of the Conseil
d'Etat's failure to accept full jurisdiction. She also claimed EUR 100,000 in
respect of the non-pecuniary damage resulting from the dispute, which had
lasted more than ten years, and from the fact that she had been prohibited
from practising her profession from 1987 to 1999 and had therefore had her
career destroyed. She added that she had also sustained non-pecuniary
damage in that it had been impossible for her to assert her rights because she
had not been allowed to adduce evidence of the reciprocal application of the
“Evian Accords”.
87. The Government argued that her claims were manifestly excessive
for two reasons. Firstly, they pointed out that, as was clear from its case-law
(see Beaumartin, cited above, p. 64, § 44), the Court could not speculate as
to the conclusions which the Conseil d'Etat would have reached if it had not
sought an assessment by the Minister for Foreign Affairs as to whether
Article 5 of the 1962 Government Declaration satisfied the reciprocity
requirement. As in Beaumartin, although the applicant was seeking
compensation for loss of opportunity, the Court should, in the Government's
submission, make an award in respect of non-pecuniary damage only.
Secondly, the Government observed that the applicant's claims for damages
covered the period from 1987 to 2001, whereas she had not relied on the
1962 Government Declaration until 1995 and had been authorised to
practise as a doctor from 12 April 1999 onwards. The Government
considered that an award of EUR 17,000 would make good the non-
pecuniary damage sustained by the applicant.
88. The Court notes at the outset that, as the Government submitted, it
was not until 1995 that the applicant relied on the 1962 Government
Declaration. Moreover, she was authorised to practise as a doctor in 1999.
Even taking into account the applicant's difficulties since 1999 in finding
employment at a level commensurate with her qualifications, the Court
finds that only a period of approximately four years may be taken into
consideration.
22 CHEVROL v. FRANCE JUDGMENT

89. In any event, the Court cannot speculate as to the conclusions which
the Conseil d'Etat would have reached if it had not based its decision solely
on the minister's interpretation of the reciprocity requirement in relation to
Article 5 of the Government Declaration of 19 March 1962 on Cultural
Cooperation between France and Algeria. It considers, however, that the
applicant must have suffered non-pecuniary damage, for which the finding
of a violation in this judgment does not constitute sufficient reparation.
Observing that the sum proposed by the Government under this head is
reasonable, the Court, ruling on an equitable basis, awards the applicant
EUR 17,000 for non-pecuniary damage.

B. Costs and expenses

90. The applicant did not make a claim in respect of costs and expenses.
The Court sees no particular reason to order the State to award her anything
under this head.

C. Default interest

91. 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

1. Holds by six votes to one that the applicant can claim to be a “victim”
within the meaning of Article 34 of the Convention;

2. Holds by six votes to one that Article 6 § 1 of the Convention is

applicable in the instant case;

3. Holds by six votes to one that there has been a violation of Article 6 § 1
of the Convention in that the applicant's case was not heard by a
“tribunal” having full jurisdiction;

4. Holds by six votes to one

(a) that the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 17,000 (seventeen thousand
euros) in respect of non-pecuniary damage;
(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
CHEVROL v. FRANCE JUDGMENT 23

equal to the marginal lending rate of the European Central Bank during
the default period plus three percentage points;

5. Dismisses unanimously the remainder of the applicant's claim for just

satisfaction.

Done in French, and notified in writing on 13 February 2003, pursuant to

Rule 77 §§ 2 and 3 of the Rules of Court.

Lawrence EARLY András BAKA

Deputy Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of

the Rules of Court, the dissenting opinion of Mrs Mularoni is annexed to
this judgment.

A.B.B.
T.L.E.
24 CHEVROL v. FRANCE JUDGMENT

DISSENTING OPINION OF JUDGE MULARONI

(Translation)

I am unable to agree with the conclusions reached by my colleagues in

the present case.

1. Whether the applicant is a “victim”

Mrs Chevrol, a French national, qualified as a doctor in Algeria in 1969
after graduating in medicine from the University of Algiers. On 17 February
1987 she applied for the first time to the Bouches-du-Rhône département
council of the ordre des médecins for registration as a member of the ordre.
The département council refused her application on the ground that,
although she was French, she did not have the appropriate French medical
qualification and was therefore required to apply under Article L. 356,
point (2), of the Public Health Code (in force until 22 June 2000), which
provided that the Minister for Health could, on an individual basis and
subject to an annual limit, authorise practitioners who did not satisfy the
statutory nationality and qualification requirements to practise medicine.
The applicant made some ten unsuccessful applications to the Minister for
Health for such authorisation.
On 1 June 1995 the applicant submitted a further application to the
département council, relying for the first time on the Government
Declarations of 19 March 1962 on Algeria (the “Evian Accords”), and, in
particular, on the Government Declaration on Cultural Cooperation between
France and Algeria, of which Article 5 of Part I provides: “Academic
diplomas and qualifications obtained in Algeria and France under the same
conditions as regards curriculum, attendance and examinations shall be
automatically valid in both countries.” Her application was refused on 16
June 1995. On 13 February 1996 the applicant applied to the disciplinary
section of the National Council of the ordre des médecins, asking it to set
aside the decision of 17 December 1995 in which the Provence-Alpes-Côte
d'Azur-Corse regional council had rejected her application to set aside the
Bouches-du-Rhône département council's refusal to register her. In a
decision of 20 March 1996 the disciplinary section of the National Council
of the ordre des médecins refused her application. On 3 June 1996 the
applicant applied to the Conseil d'Etat for judicial review of that decision. In
a judgment of 9 April 1999 the Conseil d'Etat refused the application,
considering itself to be bound by the declaration of the Minister for Foreign
Affairs to the effect that the provisions of Article 5 of the “Evian Accords”
could not be regarded as having been in force on the date of the decision
complained of, seeing that on that date the reciprocity requirement in Article
55 of the Constitution had not been satisfied and that, accordingly, the
applicant was not entitled to rely on those provisions.
CHEVROL v. FRANCE JUDGMENT – 25
DISSENTING OPINION OF JUDGE MULARONI

In the meantime, in a ministerial order of 22 January 1999 (published in

the French Official Gazette on 30 January 1999) the applicant had been
authorised to practise as a doctor in France, pursuant to Article L. 356,
point (2), of the Public Health Code. She applied to the Bouches-du-Rhône
département council of the ordre des médecins for registration as a member
of the ordre. In a decision of 12 April 1999 the Bouches-du-Rhône
département council registered the applicant. On 9 August 1999 the same
body recognised the applicant's abilities as an orthopaedic surgeon by
designating her as a doctor specialising in orthopaedic surgery, on the basis
of her qualifications and professional experience.
By January 1999, and hence before the Conseil d'Etat had given
judgment (on 9 April 1999), the applicant had obtained satisfaction, and
from that point onwards, in my opinion, she had no further cause of action,
having resolved the matter at domestic level.
I consider that she was never a “victim” within the meaning of Article 34
of the Convention, as her case was settled at national level before she had
exhausted domestic remedies; at the time when she lodged her application
with the Commission (4 March 1996), she had not exhausted domestic
remedies, and by the time the application was registered (24 June 1999), she
was no longer a “victim”.
I am aware of the Court's case-law to the effect that a decision or
measure favourable to the applicant is not in principle sufficient to deprive
him of his status as a “victim” unless the national authorities have
acknowledged, either expressly or in substance, and then afforded redress
for, the breach of the Convention (see, among other authorities, Lüdi
v. Switzerland, judgment of 15 June 1992, Series A no. 238, p. 18, § 34).
However, I consider that that case-law does not apply in the instant case,
in which the applicant, relying on Article 6 § 1 of the Convention,
complained of a violation of her right to a fair hearing.
I would observe that in cases concerning, for example, the unfairness of
criminal proceedings following which the applicant is nonetheless acquitted,
the terms used by the Court to reject the application are usually the
following: “The Court reiterates that an applicant who is acquitted or is not
committed for trial can no longer claim to be a 'victim', within the meaning
of Article 34 of the Convention, on account of the unfairness of the
proceedings.”
In civil proceedings, I would also note, for example, that where an
applicant, after lodging his application with the Court, is refunded an
amount determined by the national courts, the Court will simply dismiss
complaints under Article 6 § 1 of the Convention on the ground that the
applicant is no longer a “victim”, referring to its settled case-law to the
effect that an applicant who obtains redress at domestic level for the alleged
violation can no longer claim to be a “victim” of a violation of the rights set
forth in the Convention.
26 CHEVROL v. FRANCE JUDGMENT –
DISSENTING OPINION OF JUDGE MULARONI

I consider that the Court should have adopted a similar approach in this
case.
In my opinion, the Court's concern has always been to ensure that, in
substance, the alleged violation has genuinely and totally ceased to exist and
that there is no danger of its recurring (for the applicant, of course). In the
instant case, the applicant was authorised to practise as a doctor. She was no
longer adversely affected by the domestic decision complained of.
In my opinion, therefore, the applicant is not a “victim” within the
meaning of the Convention.

2. Applicability of Article 6 § 1 of the Convention

The case concerns proceedings for registration as a member of the ordre
des médecins.
The Court's recent inadmissibility decision of 25 April 2002 in Delord
v. France (application no. 63548/00) related to Article L. 356, point (2),
third paragraph, of the Public Health Code referred to above, which
provided that the Minister for Health could, on an individual basis and
subject to an annual limit, authorise practitioners who did not satisfy the
statutory nationality and qualification requirements to practise medicine.
The Court considered that Mrs Delord could not claim a right to practise as
a doctor in France.
Admittedly, Mrs Delord's application was not based on Article 5 of the
1962 Government Declaration, but I wonder whether the present case
merited a different conclusion as to the applicability of Article 6 § 1 of the
Convention.
It seems to me that the Court has hitherto always maintained that initial
registration as a member of the ordre is not a right guaranteed by the
Convention and has accordingly found Article 6 § 1 of the Convention to be
inapplicable to disputes of this kind.
It also seems to me that in such cases the Court has never made a
distinction between the nature of the authorities (judicial or otherwise)
called upon to determine the matter at domestic level. In the recent
inadmissibility decision of 28 February 2002 in San Juan v. France ((dec.),
no. 43956/98, ECHR 2002-III), which reaffirmed the position adopted in
Van Marle and Others v. the Netherlands (judgment of 26 June 1986,
Series A no. 101), the Court held that “the question whether the Board of
Appeal ruled on matters susceptible to judicial assessment was decisive for
the applicability of Article 6 § 1, irrespective of whether the Board itself had
judicial status”. It concluded: “An assessment of this kind, evaluating
knowledge and experience for carrying on a profession under a particular
title, is akin to a school or university examination and is so far removed
from the exercise of the normal judicial function that the safeguards in
Article 6 cannot be taken to cover resultant disagreements.”
CHEVROL v. FRANCE JUDGMENT – 27
DISSENTING OPINION OF JUDGE MULARONI

It is true that in De Moor v. Belgium (judgment of 23 June 1994, Series A

no. 292-A) the Court held that Article 6 § 1 was applicable and had been
infringed, observing: “Where legislation lays down conditions for the
admission to a profession and a candidate for admission satisfies those
conditions, he has a right to be admitted to that profession.” But that case
concerned a Belgian applicant who had obtained a law degree in Belgium
and was applying for enrolment on the list of pupil advocates in Hasselt
(Belgium), having obtained a favourable opinion from the Chairman of the
National Bar Association.
I wonder whether it is desirable to extend that approach to the present
case, bearing in mind, firstly, the fact that the applicant did not have a
French qualification, and, secondly, the wording of Article 5 of Part I of the
“Evian Accords”, which provides: “Academic diplomas and qualifications
obtained in Algeria and France under the same conditions as regards
curriculum, attendance and examinations shall be automatically valid in
both countries.” One very important requirement must first be verified for
each qualification, namely whether the conditions were the same in terms of
curriculum, attendance and examinations, and authorisation must then be
obtained from the minister, subject to an annual quota, in accordance with
the procedure laid down in Article L. 356, point (2), of the Public Health
Code. That interpretation follows from the wording of Article L. 356, point
(2); it was confirmed at the hearing by the Government's representative and
was not contested by the applicant. It therefore seems to me that the
circumstances of the present case are not very different from those in
Delord.
I consider that Mrs Chevrol did not have a genuine civil right protected
by the Convention, in the sense that the recognition of diplomas and
qualifications obtained abroad and, consequently, the right to practise
medicine in France remained subject to conditions. I feel that extending the
applicability of Article 6 § 1 to this case amounts in fact to acknowledging
that the Court has jurisdiction to deal with the highly sensitive issue of the
refusal by a State Party to the Convention to recognise any professional
qualifications and diplomas obtained in another country, irrespective of
whether that country is a party to the Convention.
I therefore consider that Article 6 § 1 is not applicable in the present case.

3. The merits
I am unable to agree with my colleagues' findings on the merits either.
Admittedly, the question of interpreting treaties does appear to have
evolved over the years (in the past, this was the task of the political
authorities, not only in France, until the Conseil d'Etat's GISTI judgment of
29 June 1990, but in almost every country; the matter formed the subject of
the Court's Beaumartin v. France judgment of 24 November 1994, Series A
no. 296-B). I can understand that, in the light of such developments, it might
28 CHEVROL v. FRANCE JUDGMENT –
DISSENTING OPINION OF JUDGE MULARONI

be felt that the time has come to hold that even the referral of a preliminary
question to the Minister for Foreign Affairs for an assessment of reciprocity
in respect of the other contracting party, the minister's reply being binding
on the judge dealing with the case, is in breach of Article 6 of the
Convention.
However, I consider that approach inappropriate for the following
reasons.
Article 55 of the French Constitution provides that treaties or agreements
that have been lawfully ratified or approved are, upon publication, to prevail
over Acts of Parliament, “subject ... to [their] application by the other
party”. To assess whether the reciprocity requirement has been satisfied and
to draw the necessary inferences, the court submits a preliminary question to
the Minister for Foreign Affairs. It is bound by the minister's reply.
The practice of referring preliminary questions is guided by a concern not
to interfere with international relations, in the same way that prerogative
acts in the context of international relations are not open to challenge in the
courts.
The system of referring preliminary questions has traditionally been used
in two fields: interpreting treaties and assessing reciprocity.
In the first field, the interpretation of an ambiguous or unclear treaty, the
Court called into question the referral system – which had, however, been
discontinued at national level even before the Court's judgment (see the
GISTI decision of 29 June 1990, Conseil d'Etat, full court) – and found
against France in Beaumartin (cited above).
In my opinion, there are a number of reasons why the Beaumartin
precedent should not be applied to the present case.
I consider that, while the interpretation of a treaty is a legal issue, the
assessment of the reciprocity of an international treaty is an essentially
political issue.
Furthermore, the parties only rarely have enough evidence of the
situation in a foreign State, being unable to conduct the necessary
investigations. It follows that a review of the factual data obtained, a task
which may well be incumbent on the court, will in reality remain theoretical.
The assessment of the reciprocity requirement in Article 55 of the French
Constitution entails examining whether or not an international undertaking
has been applied on the basis of information about a foreign State's conduct,
a process alien to the role of a court. The assessment of the conduct of a
foreign State is more naturally a task for the diplomatic authorities than for
the courts.
I would add that it is apparent from the Court's case-law that the right to
a tribunal is not absolute but may be regulated by the Contracting States
(see, among other authorities, Levages Prestations Services v. France,
judgment of 23 October 1996, Reports of Judgments and Decisions 1996-V,
p. 1543, § 40).
CHEVROL v. FRANCE JUDGMENT – 29
DISSENTING OPINION OF JUDGE MULARONI

Even if one were to conclude that the right of access to a court had been
restricted in the present case, that restriction in my opinion pursued a
legitimate aim, that of observing the principle of the separation of powers.
That is why I consider that the Conseil d'Etat was entitled, without
breaching the duty of independence imposed on it by, inter alia, Article 6
§ 1 of the Convention, to consider itself to be bound by the opinion of the
Minister for Foreign Affairs as to whether Algeria had implemented the
“Evian Accords”.
I therefore consider that Article 6 § 1 of the Convention was not breached
in the present case.
CONSEIL COUNCIL
DE L’EUROPE OF EUROPE

COUR EUROPÉENNE DES DROITS DE L’HOMME

EUROPEAN COURT OF HUMAN RIGHTS

THIRD SECTION

CASE OF SACILOR LORMINES v. FRANCE

(Application no. 65411/01)

JUDGMENT

STRASBOURG

9 November 2006

This judgment is final but it may be subject to editorial revision.

SACILOR LORMINES v. FRANCE JUDGMENT 1

In the case of Sacilor Lormines v. France,

The European Court of Human Rights (Third Section), sitting as a
Chamber composed of:
Mr B.M. ZUPANČIČ, President,
Mr C. BÎRSAN,
Mr V. ZAGREBELSKY,
Mrs A. GYULUMYAN,
Mr E. MYJER,
Mr DAVID THÓR BJÖRGVINSSON, judges,
Mr M. LONG, ad hoc judge,
and Mr V. BERGER, Section Registrar,
Having deliberated in private on 12 May 2005 and on 11 July and
12 October 2006,
Delivers the following judgment, which was adopted on the
last-mentioned date:

PROCEDURE
1. The case originated in an application (no. 65411/01) against the
French Republic lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a company incorporated in that State, Société des Mines de
Sacilor Lormines (“the applicant”), on 18 October 2000.
2. The applicant was represented by Mr Schmitt, a lawyer practising in
Strasbourg. The French Government (“the Government”) were represented
by their Agent, Ms E. Belliard, Director of Legal Affairs, Ministry of
Foreign Affairs.
3. The applicant company alleged, in particular, that the proceedings
before the Conseil d'Etat had been unfair, on the grounds that it was not an
independent and impartial tribunal and that the Government Commissioner
(Commissaire du Gouvernement) had participated in or attended the
deliberation. It also complained about the length of the various proceedings,
relying on Article 6 § 1 of the Convention.
4. The application was allocated to the Court's Third Section
(Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that
would consider the case (Article 27 § 1 of the Convention) was constituted
as provided in Rule 26 § 1. Following the withdrawal of Mr Costa, the
judge elected in respect of France (Rule 28), the Government appointed
Mr Marceau Long to sit as an ad hoc judge.
5. In a decision of 12 May 2005, the Court declared the application
partly admissible. In a decision of 17 November 2005 it adjourned the
2 SACILOR LORMINES v. FRANCE JUDGMENT

examination of the case pending the decision that was to be taken by the
Grand Chamber in the case of Martinie v. France (no. 58675/00).
6. The applicant and the Government each filed further written
observations (Rule 59 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

7. The applicant is a limited company (société anonyme), which, in

accordance with a resolution of its general meeting of 3 March 2000, is in
voluntary liquidation. It was represented by its liquidator Mr Jean-Luc
Sauvage, who was appointed by a decision of the Nanterre Commercial
Court dated 6 March 2000.

A. Background to the case

8. The company Société des Mines de Sacilor Lormines, a sub-

subsidiary of Usinor, was set up in 1978 to take over, by virtue of a transfer
decree of 28 March 1979, the concessions and leases of the Sacilor iron-ore
mines in Lorraine.
9. The applicant subsequently took over other concessions, in particular
those of the company Société des Mines du Nord-Est and its subsidiary
Société de Droitaumont-Giraumont. It thus held a total of 63 iron-ore
mining concessions in Lorraine on the date when it announced that it was to
shut down its mining operations. Iron-ore mining had been in constant
decline since 1963. The company was forced to discontinue its mining
activity because worldwide competition meant that it was no longer
profitable to mine iron-ore in Lorraine. The applicant company's iron-ore
production had thus fallen from 13,940,000 tonnes in 1978 to 4,300,000
tonnes in 1991. As the demand for the applicant company's phosphoric pig
iron had slowly dwindled away, it decided in 1991 to halt production. The
closure of the various pits was staggered between 30 June 1992 and 31 July
1993. The applicant company had to stop all extraction operations in July
1993. It underwent privatisation in 1995 and in 1997.
10. With a view to the complete cessation of its activity, the applicant
company initiated the appropriate procedures for the abandonment and
renunciation of its concessions. The abandonment procedure, for the
purpose of decommissioning and stabilising disused mining installations,
entails the implementation of an order (arrêté) in which the requisite
abandonment operations are stipulated by the prefect having territorial
SACILOR LORMINES v. FRANCE JUDGMENT 3

jurisdiction. It ends when the authorities are able to confirm that the
requirements have been fulfilled. The renunciation procedure terminates the
concession with the result that its holder is no longer bound by the special
mining regulations and is released from the presumption of liability in
respect of any damage which occurs above ground. At the time when the
cessation of the company's operations was announced, the abandonment and
renunciation procedures were governed by Articles 83 and 84 of the Mining
Code and by Decree no. 80-330 of 7 May 1980 concerning mining and
quarrying regulations. Law no. 94-588 of 15 July 1994, amending certain
provisions of the Mining Code, repealed Articles 83 and 84 and replaced
them by Articles 79 and 84. Decree no. 95-696 of 9 May 1995, issued after
consultation of the Conseil d'Etat, pertaining to the opening of mines and
mining regulations, was adopted for the implementation of those provisions.
Lastly, Law no. 99-245 of 30 March 1999 concerning liability for damage
resulting from mining and the prevention of mining-related risks after
discontinuance, brought about further amendments to mining law (see
paragraphs 29 to 33 below).
11. Numerous regulatory measures (over twenty) were taken in this
connection against the applicant company, which challenged them all in the
Administrative Courts of Strasbourg and Nancy. The applicant company
also lodged numerous appeals seeking the annulment of refusals by the
Minister responsible for mining to accept its renunciation of a number of
concessions; it requested that the Minister be ordered to accept the
renunciation of those concessions and sought compensation for the loss it
had sustained as a result of the refusals.

B. Inter-prefectoral orders of 26 May and 18 July 1997 laying down

regulatory measures in the mining sector

12. The inter-prefectoral order (prefectures of the Lorraine region, the

département of Moselle and the département of Meurthe-et-Moselle) of
26 May 1997, laying down regulatory measures in the mining sector,
imposed certain obligations on the applicant company:
...
“It is hereby decided as follows:

Article 1: The company Lormines ... shall be required, in a prompt manner, to

appoint a panel of three specialists from outside the company, having submitted the
composition of the panel for the prior approval of the prefects, and having regard to
the opinion of the Regional Director for Industry, Research and the Environment of
Lorraine, to carry out the following assignment:

- analysis of the parts of the mining installations referred to in the penultimate

paragraph of the preamble, located between elevations NGF 115 and 172 in the
municipalities (communes) of Auboue, Briey, Homecourt, Joeuf and Moutiers
4 SACILOR LORMINES v. FRANCE JUDGMENT

(Meurthe-et-Moselle), Moyeuvre-Petite, Moyeuvre-Grande, Roncourt, Sainte-Marie-

aux-Chênes and Saint-Privat-la-Montagne (Moselle);

- classification of the parts of the mining installations thus enumerated according to

the presence of both aggravating instability factors and vulnerability related to the
type of dwelling at risk.

The company Lormines shall make available to the specialists any technical
documents and archives in its possession concerning the operations in question. The
company shall transmit to the prefect, within a period of ten days after the notification
of the present order, the report issued by the said specialists on the completion of their
assignment.

Article 2: The company Lormines ... shall take all necessary measures to ensure the
permanent availability of an adequate and sufficiently large network of surveyors, in
order to be in a position to implement, upon the request of the prefects, any
monitoring and observation measures that may be required by the situation.”
Moreover, in an order of 18 July 1997, the prefects of Moselle and
Meurthe-et-Moselle imposed the following on the applicant company:
...
“Having regard to the urgency;

Acknowledging the report of the experts appointed by the company Sacilor

Lormines in accordance with the above-mentioned prefectoral order;

Recognising that, in the light of current knowledge, the appearance of cracks in

buildings may be a preliminary indication of subsidence;

Upon the proposal of the Regional Director for Industry, Research and the
Environment of Lorraine;

It is hereby decided as follows:

Article 1

The company Lormines ... shall take all necessary measures to ensure the permanent
availability of an adequate and sufficiently large network of building experts, so that it
is able to carry out, promptly and upon the request of the prefects, analysis of the
cracks in buildings in the “yellow”, “orange” and “red” zones, the lower parts of
buildings included, within the perimeter of the iron-ore mining concessions held by
the company Lormines ... in the municipalities of Auboue, Briey, Homecourt, Joeuf
and Moutiers (Meurthe-et-Moselle), Moyeuvre-Petite, Moyeuvre-Grande, Roncourt,
Sainte-Marie-aux-Chênes and Saint Privat (Moselle);

The assessments carried out by those experts shall be reported in writing to the
prefects concerned, in the appropriate time-frame and form such as to be compatible
with the triggering of the alert procedure, should that prove necessary, or within 48
hours in other cases.

...”
SACILOR LORMINES v. FRANCE JUDGMENT 5

13. In letters of 2 July and 17 September 1997 the applicant company

lodged administrative appeals with the Minister for Economic Affairs,
Finance and Industry, requesting that he rescind the orders of 26 May and
18 July 1997 and seeking the reimbursement of the sums incurred in order
to meet the requirements of those orders. The applicant company claimed
that the order had failed to take account of the fact that it no longer operated
the mines at issue and that the sites referred to in the order had undergone
an abandonment and renunciation procedure.
14. On 29 September 1997, acting upon an application from the
Secretary of State for Industry, the Public Works Division of the Conseil
d'Etat, under the presidency of Mr Le Vert, the reporting judge being Mr de
la Verpillière, gave an advisory opinion concerning the “work of stabilising
and rehabilitating the sites of disused mines – Powers of the authority vis-à-
vis the mine operator – application of the Law of 15 July 1994”. ... That
opinion was published in the annual report of the Conseil d'Etat for the year
1998 and reads as follows:
“The Conseil d'Etat (Public Works Division), has been called upon by the Secretary
of State for Industry to answer the following questions:

1. Does not the immediate application of the new Article 84 of the Mining Code
impair the established rights of the holders of mining concessions or licences, in so far
as work commenced prior to this legislation is at issue? Should or could a limit be set
on the regulatory obligations that may be imposed on them, since the objectives now
enshrined in the mining regulations were clearly not envisaged when the operations
were first started?

2. Should the principle of the proportionality of acts of the administrative authorities

be construed as requiring the prefect to take account of the human, financial or
technical means available to the operator when he imposes specific measures on the
latter?

To what extent, should it prove impossible for the mine operator to implement the
prefect's instructions, would the obligations thus imposed be assumed by the State and
then performed and financed by the latter?

3. Could the possible extension introduced by the use of the term “measures” rather
than “work” in Article 84 of the Mining Code lead to the imposition of other
requirements, apart from those whose result is attainable within a period that is
consistent with the need to bring an end to the special mining regulations, for example
a pumping requirement, which could only be fulfilled in the long term, or in a period
that would be difficult to foresee?

In the latter case, is there not a contradiction with Articles 46 and 49 § 2 of the
decree of 9 May 1995, which seem, at least implicitly and for mines operated
normally, to limit the imposition of mining regulations to the term of the mining
concession?
6 SACILOR LORMINES v. FRANCE JUDGMENT

Moreover, should the prefect confine himself to physical measures or is he entitled

to impose financial measures such as payment to an organisation by way of
performance?

4. Would it be feasible to arrange for part of the obligations imposed under mining
regulations (for example those concerning the pumping of water or maintenance of
equipment) to be assigned to a third party (company, consortium of public institutions,
etc.)? Could the formal confirmation be issued once the prefect is able to observe that
the operator has set up a structure providing for the performance of its obligations –
or, on the contrary, can it only be issued once it has been observed that the prescribed
measures have actually been carried out or completed?

5. In matters of ordre public (public policy), is the court entitled, and on the basis of
what criteria, to consider that section 17 of the Law of 15 July 1994 has an immediate
effect on contracts in progress? Would it be possible, if necessary, in the light of the
Constitution, to enact legislation giving retrospective effect to the abovementioned
section 17?

6. On the basis of what criteria is the court entitled to rule out the application of a
clause releasing the mine operator from liability in respect of damage caused by its
mining activity, in the event of transfer of ownership? In particular, is the court
entitled to find such a clause null and void when the foreseeable or inevitable nature
of the damage has been established? In such cases, is it necessary to prove that the
operator was aware of the risk or does the existence of the risk suffice, in so far as the
operator should have been aware of it? Moreover, may the seriousness of the damage
be taken into account in the court's interpretation of the validity of such clauses?

[The Conseil d'Etat] is minded to answer the foregoing questions as follows:

1. As to the mining abandonment procedure (Article 84 of the Mining Code):

(a) A new legal rule will not apply to legal situations which have already become
final on the date it enters into force. Accordingly, the abandonment of mining
operations which began before the entry into force of the Law of 15 July 1994 will not
be governed by the new Article 84 of the Mining Code, introduced by the said Law, if
on that date the particulars of the work required for the stabilising and rehabilitation of
the site have been irrevocably decided, pursuant to the former Article 83 of the
Mining Code and to Articles 22 to 29 of Decree no. 80-330 of 7 May 1980, by the
acceptance of the declaration of relinquishment or abandonment submitted by the
operator, or by virtue of a prefectoral order prescribing the work to be carried out. In
other cases the new Article 84 will be applicable, and it will of course govern the
abandonment of mining work started after 15 July 1994.

(b) The principle of the “proportionality of acts of the administrative authorities”

entails that the authorities require the operator to take only those measures that are
necessary in order to fulfil the objectives and preserve the interests enumerated in
Articles 79 and 84 of the Mining Code. In assessing what is necessary, the authorities
are not bound by the human, financial or technical capacities of the operator.

(c) The authorities have an obligation to ensure compliance with the measures that
they have prescribed pursuant to the abovementioned provisions. In the event of any
failure to act on the part of the operator, for any reason whatsoever, they must assume
their powers of substitution under the eighth and ninth paragraphs of Article 84.
SACILOR LORMINES v. FRANCE JUDGMENT 7

Failing that, the State's responsibility may be totally or partially engaged in the event
of non-performance.

(d) It follows from all the provisions of Article 84 of the Mining Code that, unless
otherwise agreed by the operator, the authorities cannot impose measures without
fixing a time-limit. The performance of such measures cannot be required to continue
in the long term, after the mining concession has expired, except in the case provided
for under Article 48 of the decree of 9 May 1995.

(e) In order to obtain formal confirmation, the operator must have performed the
prescribed measures itself and is not entitled to have them performed by a third party,
even if it provides that party with the requisite financial means.

2. As to the validity of clauses in property transfer agreements which exclude the

liability of the mining or prospecting company (section 17 of the Law of 15 July
1994):

(a) Subject to the independent findings of the competent courts, it would appear that
section 17 of the Law of 15 July 1994, which renders null and void on public policy
grounds any clause, in property transfer agreements between mining companies and
local authorities or natural persons outside the profession, which excludes the liability
of the company for any damage related to its mining activity, does not apply to
agreements entered into before the entry into force of the said Law. Unless retroactive
effect is expressly stipulated by the legislature, a new law will not affect the terms and
conditions of an agreement that has become final prior to the entry into force of that
law.

(b) Except in penal matters, the principle of non-retrospectivity of laws is not

binding on the legislature, which may therefore decide to give retrospective effect to
section 17 of the Law of 15 July 1994.

(c) It is not possible to give a general answer to the question concerning the
possibility for the court to rule out the application of clauses releasing the vendor from
liability. It will be for the competent courts to assess such clauses on a case-by-case
basis in the light of Article 1643 of the Civil Code.”
15. On 31 December 1997 and 17 March 1998 the applicant company
applied to the Conseil d'Etat for a judgment declaring ultra vires and
annulling the above-mentioned prefectoral orders and the implied decisions
of 3 November 1997 and 18 January 1998 by which the Minister had
refused to withdraw those orders. The applicant company sought the
reimbursement of the expenses that it had paid out for the implementation of
those orders. It claimed, in particular, that it was for the authorities to bear
the cost of missions for the monitoring and verification of the measures that
they themselves had imposed on the operator for the closure of the mines.
Moreover, it argued that it no longer operated the mines at issue since 1993
and that, having complied with the requirements laid down by the prefect
with regard to the abandonment of mining operations, it had been released
from its obligations as concession-holder. In this connection it pointed out
that for two concessions the renunciation had been accepted (Valleroy and
8 SACILOR LORMINES v. FRANCE JUDGMENT

Moutiers), whilst in the other cases, the abandonment had become effective
after the completion of the work prescribed by the prefect in 1995 and 1996
or was still in progress. It lastly considered that, in respect of the former
concessions in question, the declarations of abandonment and applications
for renunciation had been filed with the prefecture before the entry into
force of the Law of 15 July 1994 (see paragraph 31 below) amending
certain provisions of the Mining Code and that those concessions could only
therefore fall within the statutory and regulatory framework that existed
prior to the entry into force of that Law (former Articles 83 and 84 of the
Mining Code, see paragraph 29 below).
16. On 21 March 2000 the President of the Judicial Division of the
Conseil d'Etat wrote to the director of legal affairs of the competent
ministry to express his concern about the ministry's shortcomings in the
preparation of judicial cases which had been set down on a list of the
Conseil d'Etat for hearing on 20 March 2000 and which had had to be struck
out at the very last minute on account of belated production by the ministry.
He gave the following explanations:
“As regards case no. 192947, you were notified of it on 9 March 1998. In the
absence of any response on your part, you were again invited to adduce your
observations on 16 July, 27 August and 29 September 1998 and on 8 April 1999.

Since a case has to be heard even if the authority fails to reply, the case was
entrusted to a reporting judge, examined at the preparatory stage, transmitted to a
Government Commissioner and set down for hearing on 20 March, with notice of the
hearing being issued on 13 March 2000.

It was not until after that notice of hearing that you produced observations which
were received by facsimile in the Conseil d'Etat on 18 March.

As the principle of adversarial proceedings required that your observations be

communicated to the applicant company, the striking-out of the case was inevitable.
This also happened, with a few minor differences, in case no. 194925. Such a situation
is difficult to accept. For the purposes of preparing the case properly the judge sets
time-limits for the parties. In some cases, if requested, an extension of the time-limit
may be granted.

In the present case, however, it was only after two years and in spite of a number of
reminders that you filed your observations, and you did so after the case had been set
down for hearing, placing the Conseil d'Etat before the fait accompli and obliging it to
strike out the case.

In 1998 the Prime Minister adopted specific measures to ensure the defence of the
State in good conditions and the proper operation of judicial proceedings. It is
regrettable that in this case his instructions were disregarded so patently.”
17. In a judgment of 19 May 2000 (nos. 192947 and 194925), notified
on 20 June 2000, the Conseil d'Etat, after joining the two cases, ruled as
follows:
SACILOR LORMINES v. FRANCE JUDGMENT 9

“... Under the first paragraph of Article 34 of the ... decree [of 9 May 1995
pertaining to the opening of mines and mining regulations]: 'The prefect shall decide,
by way of an arrêté (order), on regulations applicable to mining. Except in cases of
urgency or imminent danger he shall first invite the mine operator to submit its
observations and shall set a time-limit for that purpose'. In view of the seriousness of
the subsidence which occurred on 14 October 1996, 18 November 1996 and 15 March
1997 above various mines that had been operated by the company Société des Mines
de Sacilor Lormines and having regard to the report filed on 20 May 1997 by the
scientific advisory board set up on 25 March 1997 for that purpose, the prefects of
Moselle and Meurthe-et-Moselle were legally entitled to issue the urgent order of 26
May 1997 requiring the applicant company to entrust to a panel of experts the analysis
and risk assessment of a number of mining sites, and to have a network of surveyors
permanently available in order to carry out the requisite supervisory measures. They
were also entitled, on account of the urgency, without consulting the mine operator
and as soon as the report had been issued by the experts appointed in the order of
26 May 1997, to require the company, in the order of 18 July 1997, to ensure that a
network of building experts was permanently available. Accordingly, the arguments to
the effect that those orders were issued without complying with the lawful procedure,
in breach of the provisions of Article 34 of the decree of 9 May 1995, cannot be
upheld.

Article 79 of the Mining Code, in the version deriving from the Law of 15 July
1994, reads as follows: 'prospecting and mining work shall comply with the
restrictions and obligations pertaining to ... / public health and safety, ... [and] to the
solidity of public or private edifices ... / When the interests mentioned in the previous
paragraph are put at risk by such work, the administrative authority may require the
prospector or mine operator to take any measures for the purposes of ensuring the
protection of those interests within a given time-limit'. The last paragraph of
Article 84 of the Mining Code, which lays down the rules governing the
discontinuance of mining operations, provides as follows: 'When the measures
provided for by the present Article, or those prescribed by the administrative authority
pursuant to the present Article, have been executed, the administrative authority shall
issue the prospector or operator with its formal confirmation of completion ...'.
Article 49 of the decree of 9 May 1995 provides: 'the administrative supervision and
the mining regulations shall cease to take effect on the date that the operator is issued
with formal confirmation that the work has been completed ... / However, the prefect
shall be empowered ... to take ... any measures that may be rendered necessary by
incidents or accidents that can be attributed to former mining work, when such events
are capable of damaging the interests protected by Article 79 of the Mining Code,
until the expiry of the mining concession'.

First, contrary to what has been contended, the Law of 15 July 1994 entered into
force as soon as it was published; subsequently, and notwithstanding the fact that the
applications for abandonment of operations were submitted before the entry into force
of that Law, the prefects of Moselle and Meurthe-et-Moselle legally implemented it.

Secondly, it follows from the combination of the provisions cited above that the
completion by the operator of the work prescribed by the administrative authority for
the purposes of closing a mine does not suffice to exonerate if from all liability unless
and until it has been issued with formal confirmation of completion and, as regards
any incidents and accidents that may interfere with the protection of the interests
provided for under Article 79 of the Mining Code, for as long as the operator holds
the mining concession. It follows from the documents in the case file that, with the
10 SACILOR LORMINES v. FRANCE JUDGMENT

exception of the concessions of Valleroy and Moutiers, the prefects of Moselle and
Meurthe-et-Moselle had not issued formal confirmation of the completion of work in
respect of the mines abandoned by [the applicant company], nor had they accepted the
proposed renunciation of the concessions concerned. Subsequently, the prefects ...
were lawfully entitled, except in respect of those parts of the municipalities that were
located above the Valleroy and Moutiers concessions, to impose on the operator the
necessary measures to prevent repetition of subsidence.

Under Articles 79 and 84 of the Mining Code, the administrative authorities are
entitled to require the operator to take any measures for the purposes of guaranteeing
public health and safety and the solidity of edifices, as provided for in Article 79 of
the Code. These measures may consist both in studies for the assessment and
enumeration of risks and in work to prevent or put an end to incidents.

It is hereby decided as follows:

Article 1: The implied decisions of 3 November 1997 and 18 January 1998 of the
Minister for Economic Affairs, Finance and Industry and the orders of 26 May 1997
and 18 July 1997 are annulled in so far as they imposed on the [applicant company]
measures of prevention, supervision and verification in respect of the areas of the
municipalities located above the concessions of Valleroy and Moutiers of which the
renunciation had been accepted by the authority.

Article 2: The State shall reimburse to Société des Mines de Sacilor Lormines, with
interest, the sums pertaining to the sites in respect of which the decisions of the
Minister are annulled by the present decision;

Article 3: The State shall pay to Société des Mines de Sacilor Lormines the sum of
20,000 francs under section 75-I of the Law of 10 July 1991.

...

After deliberation on 26 April 2000 in the presence of: Mrs Aubin, Deputy President
of the Judicial Division, presiding; Mrs Moreau, Mr Durand-Viel, Section Presidents;
Mr Dulong, Mr Pêcheur, Mr Levis, Senior Members of the Conseil d'Etat; and Miss
Bonnat, Auditeur-rapporteur.”
18. By a decree of 26 May 2000, the President of the Republic appointed
Mr Pêcheur, a member of the Conseil d'Etat who had sat in the deliberation
of 26 April 2000, to the post of Secretary General of the Ministry for
Economic Affairs, Finance and Industry.
19. On 17 January 2001 the applicant company brought proceedings in
the Paris Administrative Court seeking the annulment of the implied
decision of rejection resulting from the failure by the Minister for Economic
Affairs to respond to its request for payment of the sum of 20,000 francs
pursuant to Article 3 of the judgment of the Conseil d'Etat of 19 May 2000.
By an order of 28 February 2001, the president of the Administrative Court
transmitted the application to the Conseil d'Etat.
SACILOR LORMINES v. FRANCE JUDGMENT 11

20. Concurrently, the applicant company requested the Conseil d'Etat to

order the State to pay a coercive fine of 2,000 francs per day to guarantee
execution of the entire decision of 19 May 2000.
21. In a judgment of 5 April 2002 (nos. 229499 and 231060), notified on
23 May 2002, the Conseil d'Etat found that the execution in question was
incomplete:
“... the Minister for Economic Affairs, Finance and Industry ... ordered, on 23 July
2001, the payment of the sum of 71,745.60 francs for the reimbursement of the
expenses incurred on the sites in respect of which the Minister's decisions had been
annulled by the judgment of 19 May 2000. It follows from a calculation note
produced by the authority that this sum consists of an indemnity of 66,000 francs,
being the capital, which has not been disputed, and interest amounting to 5,745.60
francs. As regards the interest .... [it] should have run not from 19 May 2000, the date
of the decision in which payment was ordered, but from the date on which [the
applicant company] had actually paid the invoice of 31 October 1997 issued by the
National Institute for the Industrial Environment and Risks. In view of the foregoing,
[the applicant company] is justified in arguing that the judgment of 19 May 2000 has
not been fully executed.

In the circumstances of the case it is appropriate to require the State ... to take,
within a period of two months from notification of the present decision, as regards the
start date for calculation of interest at the statutory rate, the necessary measures in
order to ensure full execution of Article 2 of the judgment of 19 May 2000, and to
order it to pay a coercive fine of 10 euros per day from the expiry of the said period if
it has not by then fulfilled the said obligation.

...

After deliberation on 15 March 2002 in the presence of: Mr Labetoulle, President of

the Judicial Division, presiding; Mr Durand-Viel, Mr Bonichot, Section Presidents;
Mr Dulong, Mr Hoss, Mr Levis, Mr de Froment, Senior Members of the Conseil
d'Etat; Mr Thiellay, Maître des Requêtes and Miss Vialettes, Auditeur-rapporteur.”

C. Inter-prefectoral order of 24 July 1998

22. Further to the above-mentioned orders of 26 May and 18 July 1997

and other orders of 12 August 1997 requiring the analysis of the parts of
mining installations that were located in several municipalities which had
not been covered by the expert's report prescribed by the inter-prefectoral
order of 26 May 1997, and the classification of the parts of mining
installations thus enumerated according to the presence of both aggravating
instability factors and vulnerability related to the types of dwelling, the
prefects of Moselle, Meurthe-et-Moselle and Meuse made an order dated 24
July 1998 containing the following requirements:
“ ...

Article 1
12 SACILOR LORMINES v. FRANCE JUDGMENT

The company Lormines ... shall take all necessary measures, promptly and at the
request of the prefects for the places concerned, to carry out an analysis of cracks in
buildings or facilities located within the “yellow, orange and red” zones, which are
indicated as being at risk from significant soil movements in the maps issued showing
degrees of potential delayed subsidence, and which are situated within the ground
areas of the iron-ore mining concessions held by the company Lormines on parts of
the départements of Moselle, Meurthe-et-Moselle and Meuse.

The assessments shall be reported in writing to the prefects concerned, in the

appropriate time-frame and form such as to be compatible with the triggering of the
alert procedure, should that prove necessary, or within 48 hours in other cases.

...”
23. The applicant company was unable to execute this order (non-
execution at Moyeuvre-Grande) and execution was thus initiated by the
State at the company's expense. In respect of this execution the applicant
company was required to pay the sum of 18,572 francs, by a payment order
of 7 February 2000 which it disputed before the Strasbourg Administrative
Court.
24. On 17 September 1998 the applicant company lodged with the
Conseil d'Etat an application seeking the annulment of the inter-prefectoral
order of 24 July 1998, for being ultra vires, and sought a stay of execution
of that order.
25. On 23 March 1999 the company applied to the Conseil d'Etat
seeking the annulment of the implied decision of rejection resulting from
the Minister's failure to reply to its request for the withdrawal of the inter-
prefectoral order of 24 July 1998 and for payment by the State of an
indemnity of 450,455 francs to compensate for the expenses it had incurred
in implementing the impugned order.
26. In its submissions of 21 February 2001 the applicant company asked
to receive, prior to the hearing, copies of the mining-related opinions given
by the administrative divisions of the Conseil d'Etat over the previous few
years, as well as the submissions of the Government Commissioner.
27. On 25 April 2001 the applicant company stated that it did not wish
to maintain its requests for the withdrawal of the Government
Commissioner and for disqualification of the section of the Conseil d'Etat to
which the case had been assigned.
28. In a judgment of 5 April 2002 (nos. 199686 and 205909), the
Conseil d'Etat (with the same bench as for the above-mentioned judgment
of 5 April 2002, nos. 229499 and 231060), after joining the two
applications, dismissed the applicant company's clams:
...
“...
Concerning the submissions seeking the annulment of the inter-prefectoral order of
24 July 1998 laying down regulatory measures in the mining sector and the implied
SACILOR LORMINES v. FRANCE JUDGMENT 13

decision of rejection by the Minister for Economic Affairs, Finance and Industry
further to an administrative appeal against that order:

... Fifthly, Article 79 of the Mining Code, in the version deriving from the Law of
15 July 1994, reads as follows: 'Prospecting and mining work shall comply with the
restrictions and obligations pertaining to ... / public health and safety, ... [and] to the
solidity of public or private edifices ... : When the interests mentioned in the previous
paragraph are put at risk by such work, the administrative authority may require the
prospector or mine operator to take any measures for the purposes of ensuring the
protection of those interests within a given time-limit'. The last paragraph of
Article 84 of the Mining Code, which lays down the rules governing the
discontinuance of mining operations, provides as follows: 'When the measures
provided for by the present article, or those prescribed by the administrative authority
pursuant to the present article, have been executed, the administrative authority shall
issue the prospector or operator with its formal confirmation ...'. Article 49 of the
decree of 9 May 1995 provides: 'The administrative supervision and the mining
regulations shall cease to take effect on the date that the operator is issued with formal
confirmation that the work has been completed ... / However, the prefect shall be
empowered ... to take ... any measures that may be rendered necessary by incidents or
accidents that can be attributed to former mining work, when such events are capable
of damaging the interests protected by Article 79 of the Mining Code, until the expiry
of the mining concession'. Article 119-4 of the Mining Code provides: 'renunciation,
whether total or partial, of rights to mine or quarry prospecting or exploration shall
become final only after being accepted by the minister responsible for mining'. Article
34 of the decree of 19 April 1995 provides: 'Applications for renunciation of a mining
concession shall be lodged with the minister responsible for mining. / ... Acceptance
of renunciation shall be given in an order of the minister responsible for mining'.

Contrary to what has been contended, the Law of 15 July 1994 entered into force as
soon as it was published and was to be applied to all mining concessions currently
valid at that date. Subsequently, and notwithstanding the fact that the applications for
abandonment of work and renunciation of concessions were apparently submitted
before the entry into force of that Law, the prefects of Moselle, Meuse and Meurthe-
et-Moselle legally implemented it. The applicant company cannot, in any event,
appropriately rely on an argument based on a breach of the principles of legitimate
expectation and legal certainty when the order appealed against was not made for the
purposes of implementing European Community law.

Moreover, it follows from the combination of the provisions cited above that the
completion by the operator of the work prescribed by the administrative authority for
the purposes of closing a mine does not suffice to release it from all liability unless
and until it has been issued with formal confirmation of that completion. In addition,
when, as in the present case, any incidents or accidents occur, such as subsidence
capable of undermining the solidity of public or private edifices, the prefect remains
empowered to intervene, even if he has already issued formal confirmation of
completion of the work required for the closure of the mine, for as long as the
operator holds the mining concession. It follows from the documents in the case file
that, whilst some of the mines enumerated in Article 2 of the order appealed had been
the subject of an abandonment procedure, as had been confirmed by the Regional
Director for Industry, Research and the Environment, none of the corresponding
concessions, at the date of the order appealed, had expired or had been the subject of a
renunciation procedure accepted by the minister, such express acceptance alone being
capable, contrary to what has been argued in a new memorial filed the day before the
14 SACILOR LORMINES v. FRANCE JUDGMENT

hearing, regardless of the date of that acceptance, of giving full effect to any
renunciation. Accordingly, the prefects of Moselle, Meuse and Meurthe-et-Moselle
were lawfully entitled to require the operator to take the necessary measures to
prevent repetition of land subsidence.

Sixthly, in accordance with Articles 79 and 84 of the Mining Code, the

administrative authorities are entitled to require the operator to take any measures that
may be required for the protection of the objectives of public health and safety and the
solidity of edifices, as provided under Article 79 of that Code. Those measures may
consist both of studies for the purpose of analysing and enumerating the risks of
incidents and of work for the purposes of prevention or remediation.

...

The company Société des Mines de Sacilor Lormines is not justified in seeking the
annulment of the inter-prefectoral order of 24 July 1998 and the Minister's implied
decision of rejection ...”

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Mining regulations and successive reforms of mining law

29. In 1991, when the discontinuance of the applicant company's mining

operations was announced, the procedures of abandonment and renunciation
were governed by Articles 83 and 84 of the Mining Code and Decree
no. 80-330 of 7 May 1980 concerning mining and quarrying regulations.
Article 83 of the Mining Code stipulated at the time as follows:
“When operations are abandoned on the expiry of a concession or of a prospecting
or operating licence, or, in the case of segment-based operations, at the end of the
operations in each segment, the holder of the concession or licence shall be required
to carry out work for the purpose of protecting the interests mentioned in Article 84,
as stipulated by the prefect on the proposal of the mining service after consultation of
the municipal council for the locality concerned. The rehabilitation, in particular for
agricultural purposes, of the sites and places affected by the work and by installations
of any kind that have been erected for operations and prospecting, may be prescribed;
this shall be mandatory in the case of quarries. These provisions shall be applicable to
the work provided for in Article 80.

In the event of failure to carry out the prescribed work, it shall be completed on the
initiative of the authorities and at the expense of the concession-holder or offender.

Municipalities and départements shall have a right of pre-emption in the event of the
sale of disused quarries that have been operated on their territories.”
Article 84 of the Mining Code provided as follows:
“If work related to mine prospecting or operating is capable of undermining public
health and safety, essential features of the surrounding environment, whether land or
sea, the conservation of the mine or another mine, the security, health and safety of
SACILOR LORMINES v. FRANCE JUDGMENT 15

mine workers, the conservation of communication routes, the solidity of public or

private edifices, or the use, flow or quality of water of any kind, provision shall be
made by the prefect, if need be of his own motion and at the expense of the prospector
or operator.”
30. Section 17 of the Water Act (Law no. 92-3) of 3 January 1992
amended Article 83 of the Mining Code by inserting, after its first
paragraph, two paragraphs which read as follows:
“In all cases, the holder of the concession or licence shall make an assessment of the
cumulative effects of the work on the presence, accumulation, emergence, volume,
drainage and quality of water of any kind, shall assess the foreseeable consequences
of the abandonment of the work or of the operations for the situation thus created and
for the uses of the water, and shall indicate the remedial measures envisaged.

After consulting the local authorities concerned and hearing representations from the
concession or licence holder, the prefect shall prescribe the work required of the
holder in order to restore to their previous state, preserve in their current state or adapt
as needed, the essential characteristics of the aquatic environment and the hydraulic
conditions for the purposes of fulfilling the objectives provided for in section 1 of the
Water Act (Law no. 92-3) of 3 January 1992.”
In addition, the second paragraph of Article 83 of the Mining Code was
supplemented by a sentence which read as follows:
“Payment into the hands of a public accountant of the sums necessary for the
performance of the work imposed in accordance with the previous paragraph may be
demanded under the conditions provided for in section 17 of the above-mentioned
Law no. 92-3 of 3 January 1992.”
31. Subsequently, Law no. 94-588 of 15 July 1994, amending certain
provisions of the Mining Code, removed those two provisions and replaced
them by Articles 79 and 84 as follows:
Article 79

“Prospecting and mining work shall comply with the restrictions and obligations
pertaining to the health and safety of workers, public health and safety, the essential
features of the surrounding environment, whether land or sea, the solidity of public or
private edifices, the conservation of communication routes, the mine and other mines,
and more generally archaeological interests and the interests enumerated in the
provisions of section 1 of the Historic Monuments Act of 31 December 1913,
section 4 of the Law of 2 May 1930 reorganising the protection of natural monuments
and sites of an artistic, historical, scientific, legendary or picturesque nature, section 1
of Law no. 76-629 of 10 July 1976 concerning the protection of nature, section 2 of
the Water Act (Law no. 92-3) of 3 January 1992, as well as to the agricultural interests
attaching to sites and places affected by such work and by mining installations.

When the interests mentioned in the previous paragraph are put at risk by such
work, the administrative authority may require the prospector or mine operator to take
any measures for the purposes of ensuring the protection of those interests within a
given time-limit.
16 SACILOR LORMINES v. FRANCE JUDGMENT

In the event of failure to fulfil these obligations by the expiry of the allotted period,
the administrative authority shall take the initiative of having the prescribed measures
executed, at the expense of the prospector or operator.”

Article 84

“If appropriate, at the end of each segment of work and, at the latest, when the
operations are discontinued and the work halted, the prospector or operator shall give
notice of the measures that he intends to take in order to protect the interests
mentioned in Article 79, for the purpose of putting an end, in general terms, to any
adverse effects, disorder or disturbances of any kind that may be generated by the said
activities and to make provision, if appropriate, for the possible resumption of
operations.

In all cases, the prospector or operator shall make an assessment of the effects of the
work on the presence, accumulation, emergence, volume, drainage and quality of
water of any kind, shall assess the consequences of the discontinuance of the work or
of the operations for the situation thus created and for the uses of the water, and shall
indicate the remedial measures envisaged.

The declaration shall be made no later than the date of expiry of the mining
concession.

Failing that, the administrative authority shall remain empowered after the said date
to prescribe the necessary measures.

Having regard to that declaration, and after consulting the municipal councils of the
localities concerned and hearing representations from the prospector or operator, the
administrative authority shall prescribe, as necessary, any requisite measures taken
and conditions of execution that have not been sufficiently indicated or that have been
omitted by the declarant ...

Any failure to take the measures provided for in the present article shall result in
their execution on the initiative of the authorities, at the expense of the prospector or
operator.

Payment into the hands of a public accountant of the sums necessary for that
execution may be demanded and, if necessary, collected in the manner of debts other
than those related to taxation or State property.

When the measures provided for by the present article, or those prescribed by the
administrative authority under the present article, have been executed, the
administrative authority shall issue the prospector or operator with its formal
confirmation.

That formality shall put an end to the supervision of the mines, as provided for in
Article 77.

However, as regards the activities governed by the present Code, the administrative
authority may intervene, in the context of the provisions of Article 79, until the expiry
of the mining concession.”
SACILOR LORMINES v. FRANCE JUDGMENT 17

32. Decree no. 95-696 of 9 May 1995, issued after consultation of the
Conseil d'Etat, pertaining to the opening of mines and mining regulations,
was adopted for the implementation of those provisions. Article 47,
paragraph 3, and Article 49 of that decree provide as follows:
Article 47, paragraph 3

“After arranging for verification of the measures taken by the operator, and if
appropriate indicating their compliance or prescribing additional measures, the prefect
shall issue formal confirmation, by way of an order (arrêté), of the final
discontinuance of the work and the decommissioning of the installations.”

Article 49

“The administrative supervision and the mining regulations shall cease to take effect
on the date that the operator is issued with formal confirmation that the work has been
carried out, or when the work executed on the initiative of the authority has been
completed.

However, the prefect shall be empowered, except in cases where activities other
than those covered by the Mining Code are substituted in the place of the discontinued
work or decommissioned installations, to take, in the context of the present part
hereof, any measures that may be rendered necessary by incidents or accidents
attributable to former mining work, when such events are capable of damaging the
interests protected by Article 79 of the Mining Code, until the expiry of the mining
concession.”
Article 34 of Decree no. 95-427 of 19 April 1995 pertaining to mining
concessions provided as follows:
“Applications for renunciation of a mining concession shall be lodged with the
minister responsible for mining.

They shall be processed, depending on each case, as stipulated in Articles 26 and 27

above.

Acceptance of renunciation shall be subject, if appropriate, to the prior execution of

the prescribed regulatory measures. Subject to this proviso, it shall be automatic in the
event of total renunciation. Acceptance of renunciation shall be given in an order of
the minister responsible for mining.”
33. Lastly, under Law no. 99-245 of 30 March 1999 concerning liability
for damage resulting from mining and the prevention of mining-related risks
after discontinuance, the presumption of mining liability has been extended
in so far as the permanent liability of the former concession-holder is now
presumed. The said Law further imposes an obligation on the former mine
operator to pay an equalising contribution to the financing of public
expenses for a period of ten years. Article 75-1 of the Mining Code now
provides as follows:
18 SACILOR LORMINES v. FRANCE JUDGMENT

“The prospector or operator, or failing that the holder of the mining concession,
shall be liable for any damage caused by its activity. It may, however, be released
from liability if it can adduce evidence of an external cause. Such liability shall not be
confined to the area covered by the mining concession, nor to the term of validity of
that concession. In the event of the disappearance or default of the liable party, the
State shall stand surety for the reparation of the damage mentioned in the first
paragraph; it shall be subrogated to the rights of the victim against the liable party.”

B. The Conseil d'Etat

1. Provisions governing status

34. The relevant domestic law and practice are partly described in Kress
v. France ([GC], no. 39594/98, ECHR 2001-VI), and the status of members
of the administrative courts is dealt with in some detail in paragraphs 31 to
37 of that judgment. The provisions governing their status are laid down in
Book 1 of the Administrative Courts Code, Title III of which specifically
concerns the Conseil d'Etat. Under that Title, Chapter 1, which is headed
“General Provisions”, provides as follows:
Article L. 131-1

“The status of members of the Conseil d'Etat shall be governed by the present Book,
and, in so far as they are not in contradiction therewith, by the provisions governing
the civil service.”

Article L. 131-2

“No member of the Conseil d'Etat shall be entitled, in support of a political activity,
to invoke his or her membership of the Conseil d'Etat.”

Article L. 131-3

“All members of the Conseil d'Etat, whether serving in the Conseil or assigned to
external duties, shall avoid expressing views of a political nature that are incompatible
with the duty of discretion inherent in their functions.”
Chapter 3 under the same Title is headed “Appointments” and codifies
the rules concerning the recruitment of members of the Conseil d'Etat
described in the Kress judgment (§ 33). Articles L. 133-1, 133-2 and 133-3
restate that the Vice-President of the Conseil d'Etat, the division presidents
and the senior members (conseillers d'Etat, who have to be at least 45 years
of age) are appointed by a decree adopted in Cabinet, on the proposal of the
Minister of Justice. Article L 133-7 concerns appointments directly from
outside and reads as follows:
SACILOR LORMINES v. FRANCE JUDGMENT 19

“Direct appointments from outside to positions of senior member (conseiller d'Etat)

and of maître des requêtes may be made only after the opinion of the Vice-President
of the Conseil d'Etat has been obtained.

That opinion shall take into account the previous functions performed by the
nominee, his or her experience, and the requirements of the institution, as reported on
an annual basis by the Vice-President of the Conseil d'Etat; the substance of that
opinion in respect of appointments made shall be published in the Official Gazette at
the same time as the notice of appointment.

The opinion of the Vice-President shall be transmitted to the person concerned, at

his or her request. ...”
Chapter 6 under the same Title is headed “Discipline” and stipulates in
Article L. 136-2 that disciplinary measures are taken by the authority
responsible for making appointments upon the proposal of the Minister of
Justice, after obtaining the opinion of the advisory board. However,
warnings and reprimands may be issued, without consulting the advisory
board, by the Vice-President of the Conseil d'Etat.
The regulatory provisions concerning the status of members of the
Conseil d'Etat are to be found in Articles R 131-1 et seq. of the
Administrative Courts Code.

2. Functions
35. The relevant provisions of the Administrative Courts Code
concerning the judicial, administrative and legislative functions of the
Conseil d'Etat read as follows:
Article L. 111-1

“The Conseil d'Etat is the supreme administrative court. It shall rule independently
on appeals on points of law lodged against last-instance decisions by the various
administrative courts, and on appeals falling within its first-instance jurisdiction or
jurisdiction to hear full appeals.”

Article L. 112-1

“The Conseil d'Etat shall participate in the preparation of Acts (lois) and Ordinances
(ordonnances). Draft texts emanating from the Government shall be referred to it by
the Prime Minister. The Conseil d'Etat shall give its opinion on draft decrees and on
any other draft texts in respect of which its intervention is required by constitutional,
legislative or regulatory provisions, or which are submitted to it by the Government.
When a draft text is submitted to it, the Conseil d'Etat shall give its opinion and
propose any amendments that it may deem necessary. In addition, it shall prepare and
draft texts in response to specific requests.”
20 SACILOR LORMINES v. FRANCE JUDGMENT

Article L. 112-2

“The Conseil d'Etat may be consulted by the Prime Minister or ministers on any
difficulties that may arise in administrative matters.”

Article L. 112-3

“The Conseil d'Etat shall be entitled, of its own motion, to draw to the attention of
the executive any reforms of a legislative, regulatory or administrative nature that it
may deem to be in the public interest.”

Article L. 112-4

“The Vice-President of the Conseil d'Etat may, at the request of the Prime Minister
or a minister, appoint a member of the Conseil d'Etat to carry out a fact-finding
mission. The Vice-President may, at the request of ministers, appoint a member of the
Conseil d'Etat to assist their officials in drafting specific texts.”

3. Organisation
36. The relevant provisions of the Administrative Courts Code
concerning the organisation and functioning of the Conseil d'Etat are as
follows:
Article L. 121-1

“The presidency of the Conseil d'Etat shall be held by the Vice-President. The
General Assembly of the Conseil d'Etat may be presided over by the Prime Minister,
and, in his absence, by the Minister of Justice.”

Article L. 121-3

“The Conseil d'Etat shall consist of a Judicial Division and administrative

divisions.”

Article R. 121-3

“Senior members (conseillers d'Etat) in permanent service shall be assigned to an

administrative division or to the Judicial Division, or simultaneously to an
administrative division and the Judicial Division, or simultaneously to the Report and
Research Division and another administrative division, or to three divisions including
the Judicial Division and the Report and Research Division. The deputy presidents
and the presidents of sections of the Judicial Division shall be assigned solely to that
Division; they may however be assigned to the Report and Research Division.”

Article R. 121-4

“The maîtres des requêtes and auditeurs shall be assigned both to an administrative
division and to the Judicial Division. However, (a) the maîtres des requêtes and
SACILOR LORMINES v. FRANCE JUDGMENT 21

auditeurs responsible for running the documentation centre may, as appropriate, be

assigned only to the Judicial Division or only to an administrative division; (b) the
maîtres des requêtes and auditeurs who have served for less than three years in the
Conseil d'Etat shall be assigned only to the Judicial Division.”

Article R. 121-5

“The assigning of a member of the Conseil d'Etat to an administrative division shall

entail, in addition to his or her contribution to the work of that division, his or her
participation in the performance of the administrative activities referred to under
Title III, Chapter 7, of the present Book.”

Article R. 123-2

“The Conseil d'Etat shall consist of five administrative divisions:

Interior, Finance, Public Works, Social, and Report and Research.”

Article R. 123-3

“Cases originating from the various ministries shall be distributed between the first
four of those divisions in accordance with the provisions of an order of the Prime
Minister and of the Minister of Justice.

All cases involving a particular ministry shall be referred to the same division.

However, the examination of certain categories of cases, in particular those

concerning the civil service, may be assigned to a specific division, regardless of the
ministry from which they originate.”
...

THE LAW

I. ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE

CONVENTION

38. The applicant alleged that there had been a number of violations of
Article 6 § 1 of the Convention, which provides as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a
fair ... hearing within a reasonable time by an independent and impartial tribunal
established by law.”
22 SACILOR LORMINES v. FRANCE JUDGMENT

A. The independence and impartiality of the Conseil d'Etat

39. The applicant company argued firstly that the Conseil d'Etat was not
independent or impartial on account of the plurality of its functions, but also
as a result of the appointment and status of its members. In particular, the
applicant explained that the Conseil d'Etat had fully participated in the
legislative reforms of mining law and that it could not be independent or
impartial with regard to questions concerning the implementation of those
reforms. The applicant further stated that this lack of independence and
impartiality was illustrated by the fact that, on 26 May 2000, one of the
members of the bench which delivered the judgment of 19 May 2000 had
been appointed to the post of Secretary General in the ministry responsible
for mining. Secondly, the applicant company complained that the Conseil
d'Etat had consecutively exercised advisory and judicial functions,
explaining that the Public Works Division had issued an advisory opinion in
response to a request from the Secretary of State for Industry concerning
various questions of mining law, whilst it had also been requested to rule on
an administrative appeal against the order of 18 May 1997, and that the
Judicial Division had then simply adopted the findings of the administrative
division. The applicant company thus concluded that the Conseil d'Etat, in
its judgments of 19 May 2000 and 5 April 2002, had not given an
independent and impartial ruling.

1. The parties' submissions

(a) The independence and impartiality of the members of the Conseil d'Etat

(i) The applicant company

40. The applicant company drew attention to the growing importance in
the Court's case-law of the notion of separation of powers between the
executive and the judiciary (see Stafford v. the United Kingdom [GC],
no. 46295/99, § 78, ECHR 2002-IV, and Kleyn and Others v. the
Netherlands [GC], nos. 39343/98, 39651/98, 43147/98 and 46664/99,
ECHR 2003-VI), particularly in connection with proceedings between a
litigant and executive authorities. The applicant company observed that the
Conseil d'Etat concurrently exercised a number of functions – legislative,
regulatory, administrative, judicial and that of adviser to the Government –
and that it had been confronted with the exercise of all those functions.
41. Firstly, the Conseil d'Etat had been involved in the drafting of a
number of bills, in accordance with Article 39 of the Constitution, which
had resulted in major amendments to the Mining Code, and the applicant
company considered that it had been particularly penalised by the new
Article 84 of the Mining Code, stemming from the 1994 reform and
enshrined in the Law of 30 March 1999. The function in question was
SACILOR LORMINES v. FRANCE JUDGMENT 23

exercised by the largest formation, the General Assembly, made up at least

of the six division presidents and thirty-five senior members (conseillers
d'Etat). The applicant pointed out that it was not disputed by the
Government that the members of the benches which delivered the
judgments of 19 May 2000 and 5 April 2002 had also participated in the
work of the administrative arm which prepared those legislative reforms. In
the applicant's submission, it was realistic and pragmatic to consider that the
position adopted by the administrative arm would inevitably have
influenced the Judicial Division. The Conseil d'Etat could not be privy to
government secrets and then rule as an independent and impartial tribunal
on appeals against administrative decisions taken by the executive on the
basis of legislation that it had helped to prepare. An institution which
exercised a legislative function and prepared enactments that drastically
amended the Mining Code, thereby imposing unforeseeable constraints and
excessive burdens on the holders of mining concessions, could not then rule
as an independent and impartial tribunal on questions concerning the
implementation of such reforms. This was also the case where the
institution intervened in secondary legislation: it considered itself to be the
co-author of government decrees, as was apparent from legal writings and
confirmed by the case-law of the Conseil d'Etat itself, since, where it had
not been properly consulted, a decree would be set aside because of
disregard for the “authority exercised by the Conseil d'Etat jointly with the
Government” (see Conseil d'Etat, full court, 9 June 1978, SCI Boulevard
Arago, Recueil, p. 237). Given the close relationship between the
Government and the Conseil d'Etat, the applicant considered that the lack of
independence and impartiality verged on failure to comply with the
separation of powers (see McGonnell v. the United Kingdom, no. 28488/95,
ECHR 2000-II) and went far beyond the basic lack of impartiality identified
in Procola v. Luxembourg (judgment of 28 September 1995, Series A
no. 326). In the present case, the Conseil d'Etat had itself decided, jointly
with the French Government, on the regulatory measures applying to the
legislation that it had prepared.
42. The applicant company argued that its foregoing analysis was
confirmed by an examination of the careers of members of the Conseil
d'Etat. Within the Conseil d'Etat there was no group of civil servants acting
exclusively in a judicial capacity. During their careers, members of the
Conseil d'Etat held other senior positions in the civil service. Decree no. 63-
766 of 30 July 1963 concerning the organisation and functioning of the
Conseil d'Etat provided for an intermingling of its members between the
administrative divisions and the Judicial Division. This principle of
operation meant that a litigant could not be guaranteed a truly independent
judge. Thus, in the present case, Mr Bernard Pêcheur, a senior member of
the Conseil d'Etat who sat on the bench which delivered the judgment of
19 May 2000, had been appointed, by a decree of 26 May 2000, to the post
24 SACILOR LORMINES v. FRANCE JUDGMENT

of Secretary General in the Ministry for Economic Affairs, Finance and

Industry, the very ministry which bore responsibility for mining policy, at a
time when the judgment had not even been notified. In the applicant's
submission, such a practice by the Government was likely to cast serious
doubt on the independence of the Conseil d'Etat when ruling in its judicial
capacity, thus undermining the necessary confidence that justice should
inspire in the public. It could be inferred that, while the deliberation was in
progress, one of the members of the bench had been under consideration for
appointment to a particularly senior position in the ministry against which
the concession-holder had brought proceedings. There had thus been a lack
of separation between the executive and the Conseil d'Etat – a situation
which, to be sure, constituted one of the essential features of the institution.
The problem stemmed from the absence of any statutory definition of a
status capable of guaranteeing the independence and impartiality of the
members of the Conseil d'Etat when acting in their judicial capacity. That
shortcoming constituted in itself a violation of Article 6 § 1 of the
Convention (see Coëme and Others v. Belgium, nos. 32492/96, 32547/96,
32548/96, 33209/96 and 33210/96, § 98, ECHR 2000-VII).
43. Similarly, the applicant company asserted that the members of the
Conseil d'Etat were not members of the national legal service (magistrats);
they were appointed by the Cabinet and the only condition for appointment
of senior members of the Conseil d'Etat was a minimum age of 45, without
there being any particular requirement of competence in legal matters,
unlike in the Conseil d'Etat of Luxembourg, whose mode of operation had
been criticised by the European Court (see Procola, cited above). The
applicant company argued that, generally speaking, members of the Conseil
d'Etat were not protected by any particular safeguards against extraneous
pressure.
(ii) The Government
44. The Government replied that the independence of the administrative
court was guaranteed at the highest level in the hierarchy of domestic
norms, the Constitutional Council having recognised it in 1980 as a
constitutional principle by nature. As regards the members of the Conseil
d'Etat, they enjoyed a status enshrined in legislative and regulatory
provisions of the Administrative Courts Code which were underpinned by a
strong tradition of independence. The Government referred to the
guarantees of independence inherent in the status of the members of the
French Conseil d'Etat, as described by the Court in the above-mentioned
Kress judgment. They submitted that this status entailed sound safeguards
that could be compared to those of the Council of State in the Netherlands,
which the Court had examined in connection with the right to be heard by
an independent tribunal in its above-mentioned Kleyn and Others judgment.
In that judgment the Court held that “in the absence of any indication of a
SACILOR LORMINES v. FRANCE JUDGMENT 25

lack of sufficient and adequate safeguards against possible extraneous

pressure, [it had] found nothing in the applicants' submissions that could
substantiate their concerns as to the independence of the Council of State
and its members”. Mutatis mutandis, the Government requested the Court to
apply this case-law to the question of the status of member of the French
Conseil d'Etat.
45. As regards the appointment of Mr Pêcheur, a senior member of the
Conseil d'Etat, to duties in the Ministry for Economic Affairs and Finance,
the Government did not consider that this revealed any lack of
independence or impartiality on the part of the Conseil d'Etat. They firstly
pointed out that “the personal impartiality of a judge [had to] be presumed
until there [was] proof to the contrary” (see Morel v. France, no. 34130/96,
§ 41, ECHR 2000-VI). They explained, moreover, that the member in
question was admitted to the Conseil d'Etat in 1985 and that he had initially
acquired considerable experience within the administrative Finance
Division, then as a member of the sixth section of the Conseil d'Etat
responsible for supervising financial-market authorities, public finance
courts, planning law and environmental matters. It was solely on the basis
of this judge's experience that the new Minister for Economic Affairs,
Finance and Industry proposed to the President of the Republic, in April
2000, that he be appointed to the newly-created post of Secretary General in
the ministry concerned. The Government added that the process of judicial
review in the Conseil d'Etat comprised a series of individual examinations
(by the reporting judge, reviser, Government Commissioner and the
president of the bench) and collegiate examinations (preparatory stage and
judgment stage) which were spread over a period of time. Thus, in view of
the safeguards arising from the actual organisation of this process and the
secrecy of the voting in deliberations, a connection between the collegiate
resolution of a dispute and the subsequent assignment of one of the
members of the bench to a post outside the Conseil d'Etat could not be
regarded as a factor capable of influencing the opinions of persons
participating in that resolution. Lastly, and more generally, the Government
claimed that the participation of members of the Conseil d'Etat in other
public-service duties, far from undermining the independence or
impartiality of the Conseil d'Etat, in fact enhanced its capacity for
supervision of the executive as it gave its members precise knowledge of the
workings of the civil service.
46. As to the advisory function of the Conseil d'Etat, in particular when
consultation was mandatory, it consisted mainly in a preliminary review by
which it ensured that any defects in legislative texts submitted to it would be
removed prior to adoption. This function therefore provided an important
safeguard for everyone to whom the proposed texts would be applicable.
Moreover, it could not be inferred from the advisory role of the Conseil
d'Etat that it was itself the author of the primary or secondary legislation
26 SACILOR LORMINES v. FRANCE JUDGMENT

submitted to it for consideration. The Government pointed out that the SCI
Arago precedent cited by the applicant company was no longer relevant and
that more recent decisions had omitted reference to authority being
exercised by the Conseil d'Etat jointly with the Government. The lack of
proper consultation of the Conseil d'Etat, when mandatory, vitiated the very
authority of the text's author (see Conseil d'Etat, full court, 15 April 1996,
Union nationale des pharmacies et autres, Recueil, p. 127), thus
maintaining the possibility for this ground to be raised proprio motu without
any need to treat the Conseil d'Etat as a co-author of the text, which it was
not. That position was consonant with two fundamental constitutional
principles in a State upholding the rule of law: the independence of the
judiciary and the separation of powers.
(b) The duality of the advisory and judicial functions of the Conseil d'Etat and
the significance of the opinion of 29 September 1997

(i) The applicant company

47. As regards the opinion given on 29 September 1997 by the Public
Works Division, the applicant company considered that its analysis, in
particular concerning the extent of the administrative measures that could be
imposed on holders of mining concessions, had been espoused by the
Judicial Division in its judgments of 19 May 2000 and 5 April 2002. The
applicant explained that the legal questions raised in that opinion coincided
with those addressed by the Conseil d'Etat in its judicial capacity, with
regard in particular to the interpretation of the Law of 15 July 1994 and the
new Article 84 (of the Mining Code) which it had created. The applicant
disputed the Government's argument as to the notion of a purely legal
question, because such questions always related to factual situations.
Moreover, according to the case-law of the administrative courts of appeal,
a court which gave an opinion on a purely legal question put to it by a
prefect (a similar procedure to that in which ministers sought an opinion on
a legal question from the Conseil d'Etat) could not subsequently rule on an
appeal concerning that same legal question (see Administrative Court of
Appeal, 23 March 1999, Sarran; Administrative Court of Appeal, 4 March
2003, département of Deux-Sèvres).
48. The applicant company argued on this basis that the fact of having
addressed a certain legal question in an advisory capacity, as advisor to the
public authorities, precluded the possibility of subsequently ruling on claims
in which that legal question was called into question. It considered that the
Court's case-law was clear on that point (see Procola and McGonnell, both
cited above).
49. The applicant company added that it had had no chance of winning
its case since “conventionally ... a judicial bench [was] not entitled to take a
contrary legal position to that of the administrative divisions except at its
SACILOR LORMINES v. FRANCE JUDGMENT 27

highest level, when sitting as a Judicial Assembly” (Le Conseil d'Etat, Notes
et études documentaires, 1988, La Documentation française, p. 78). This
situation had moreover been implicitly confirmed by the Government
because they had cited a judgment of 30 June 2000 in which it was precisely
the Judicial Assembly that had set aside the provision of a decree issued
after consultation of the Conseil d'Etat.
In the applicant's submission, the Government had not shown that the
convention whereby the Judicial Assembly alone could depart from the
solution adopted by an administrative division was no longer applicable at
the time of the judgments of 19 May 2000 and 5 April 2002, because on that
point they had only cited judgments of 2003 and 2005.
50. For the applicant company, the publication of the impugned opinion
in the public annual report of the Conseil d'Etat for 1998 constituted an
aggravating factor in the lack of impartiality and independence of the
Conseil d'Etat when ruling in its judicial capacity. It referred in this
connection to the Conseil d'Etat's finding that the Court of Audit could not
lawfully give a judicial ruling, for lack of impartiality, when it had
previously referred in its public report to the underlying subject-matter (see
Conseil d'Etat, full court, Société Labor Métal, 23 February 2000). Whether
a factual or a legal question, once it had been mentioned in a public report
without any judicial formalities having been observed, in particular the
adversarial principle, it was difficult to see how the question could
subsequently be adjudicated by the institution which had published the
report without breaching the obligations of independence and impartiality.
51. Lastly, the applicant company was of the opinion that the
circumstances of the Kleyn and Others judgment were different from those
of the present case, where the Conseil d'Etat had participated in the
preparation of laws amending the Mining Code, in the context of its mine
closures, and in the imposition of regulatory measures for the
implementation of that legislation. One of the members of the judicial bench
had been appointed to the post of Secretary General at the Ministry for
Economic Affairs, Finance and Industry, and the Public Works Division had
issued an advisory opinion, as requested by the Minister, which directly
concerned the measures of mining administration that could be imposed on
holders of mining concessions upon the termination of their activity. The
applicant company concluded that the Conseil d'Etat had thus become the
co-author of mining policy and the Government's advisor in the drafting,
implementation and interpretation of the texts arising from that policy. As a
result, the Conseil d'Etat had not been an independent and impartial tribunal
and the Government could not argue that the various functions of the
Conseil d'Etat were inseverable because, by virtue of the principle of the
separation of powers, a judicial body was to act first and foremost as a
judicial body, without assuming additional functions of a different nature.
28 SACILOR LORMINES v. FRANCE JUDGMENT

(ii) The Government

52. Concerning the consecutive exercise of advisory and judicial
functions by the Conseil d'Etat, the Government pointed out that the Court
assessed the right to an impartial tribunal by applying two tests, first seeking
to ascertain the personal conviction of a particular judge, which was not at
issue in the present case, and second, verifying that the court afforded
sufficient safeguards to exclude any legitimate doubt as to its impartiality.
53. In this connection the Government principally emphasised that the
impugned opinions given by the administrative divisions of the Conseil
d'Etat, and cited in support of the complaint, only concerned the texts of
primary and secondary legislation under which the decisions which gave
rise to the dispute had been taken, not the impugned administrative orders.
In those circumstances, and since it had not been argued that the advisory
divisions had been called upon to examine the actual decisions taken against
the applicant company and forming the subject-matter of the dispute, the
applicant was not entitled to complain that it had been affected by a lack of
impartiality on the part of the Conseil d'Etat.
54. In the alternative, the Government pointed out that neither the
Procola judgment nor the Kleyn judgment had ruled out the idea that a
single institution could exercise both advisory and judicial functions. As
regards the French Conseil d'Etat, they explained that the role of the
administrative divisions was to act as legal advisor to the Government
(being competent to give an opinion on bills and certain decrees, and to
respond to requests from the Government for an opinion on a difficult point
of law or on the legal framework of decisions that the Government had to
take). Through its opinions, the Conseil d'Etat in fact sought to prevent any
illegality that, in any event, a court would only be able to condemn
subsequently, once the administrative decisions had been taken and perhaps
also implemented. The aim of such prior scrutiny of legality was to improve
the quality of the decision and it was also a guarantee of greater stability in
the legal rule.
55. In the Government's submission, the exercise by the Conseil d'Etat
of advisory functions and the simultaneous assignment of its members to the
two missions presented numerous advantages which did not call into
question the impartiality of the institution.
56. In cases where the advisory opinions concerned purely legal
questions, that is so say where the Conseil d'Etat was called upon to give an
opinion on draft laws or decrees, as in the situation complained of by the
applicant company, the compatibility of the subsequent judicial procedure
could not be called into question. A member of the Conseil d'Etat who gave
an opinion was no less independent and no more biased in favour of the
authorities than a member who deliberated in a judicial capacity, as the
unity of status was a guarantee of independence in the opinions given by the
administrative divisions. The opinion would moreover lose any usefulness
SACILOR LORMINES v. FRANCE JUDGMENT 29

in the eyes of the Government if it were not given by an independent and

impartial body. In addition, Article 6 § 1 of the Convention did not prevent
judges who had previously ruled once on a legal question from hearing any
other dispute that raised the same question. This represented a guarantee of
legal certainty.
57. Furthermore, the Government contended that the Judicial Division
never considered itself bound by the content of the opinions given by the
administrative divisions, and the case-law regularly provided examples of
the annulment of acts further to an opinion by the Conseil d'Etat (see, for
example, Conseil d'Etat, 30 June 2000, Ligue française pour la défense des
droits de l'homme et du citoyen, Recueil, p. 253). The Government therefore
considered that the submission of the same legal question first to an
advisory division of the Conseil d'Etat and then to its Judicial Division
could not give rise, in view of the independence of both types of division, to
any objective doubt in the mind of an applicant that might undermine the
impartiality of the court in question. The examination of such questions
differed significantly between the context of the advisory function and that
of the judicial function, and a difference of position between the two could
not be seen as the overruling of one by the other. The Government quoted
the President of the Judicial Division of the Conseil d'Etat from 1967 to
1976 who had stated that “the adversarial judicial procedure [brought] out
more clearly all the aspects of a question that the unilateral procedure before
the administrative divisions [did] not always reveal”.
58. Lastly, the Government argued, with regard to the publication of the
opinion of 29 September 1997 in the annual report of the Conseil d'Etat,
that the position taken by its members in the advisory opinion did not
concern the facts of the case which the applicant company had brought
against the authorities, but rather a purely legal question (which
distinguished the case from that of Société Labor Metal, cited above);
unless it were to be rendered impossible for justice itself to be done, the
taking of such a position could not be regarded as undermining the
objectively impartial nature of the court.

2. The Court's assessment

(a) General principles

59. In order to establish whether a tribunal can be considered
“independent” within the meaning of Article 6 § 1, regard must be had, inter
alia, to the manner of appointment of its members and their term of office,
the existence of safeguards against extraneous pressure and the question
whether the body presents an appearance of independence (see Findlay v.
the United Kingdom, judgment of 25 February 1997, Reports of Judgments
and Decisions 1997-I, p. 281, § 73, and Brudnicka and Others v. Poland,
no. 54723/00, § 38, ECHR 2005-II). As to the question of independence
30 SACILOR LORMINES v. FRANCE JUDGMENT

being defined as the separation of powers between the executive and the
judiciary, neither Article 6 nor any other provision of the Convention
requires States to comply with any theoretical constitutional concepts
regarding the permissible limits of the powers' interaction (see Kleyn and
Others, cited above, § 193). The Court would however emphasise that the
notion of the separation of powers between the political organs of
government and the judiciary has assumed growing importance in its case-
law (see Stafford v. the United Kingdom [GC], no. 46295/99, § 78, ECHR
2002-IV).
60. There are two aspects to the requirement of impartiality. First, the
tribunal must be subjectively free of personal prejudice or bias. Secondly, it
must also be impartial from an objective viewpoint, that is, it must offer
sufficient guarantees to exclude any legitimate doubt in this respect. Under
the objective test, it must be determined whether, quite apart from the
judges' personal conduct, there are ascertainable facts which may raise
doubts as to their impartiality. In this respect even appearances may be of a
certain importance. What is at stake is the confidence which the courts in a
democratic society must inspire in the public and above all in the parties to
proceedings (see Kleyn and Others, cited above, § 191).
61. In “civil matters”, the mere fact that a judge has already taken pre-
trial decisions cannot by itself be regarded as justifying concerns about his
impartiality. What matters is the scope of the measures taken by the judge
before the trial. Likewise, the fact that the judge has detailed knowledge of
the case file does not entail any prejudice on his part that would prevent his
being regarded as impartial when the decision on the merits is taken. Nor
does a preliminary analysis of the available information mean that the final
analysis has been prejudged. What is important is for that analysis to be
carried out when judgment is delivered and to be based on the evidence
produced and argument heard at the hearing (see Morel, cited above, § 45,
and Didier v. France (dec.), no. 58188/00, 27 August 2002).
62. The concepts of independence and objective impartiality are closely
linked and the Court will accordingly consider both issues together as they
relate to the present case (see Findlay, cited above, § 73, and Kleyn and
Others, cited above, § 192). The Court will then address the question
whether, in the circumstances of the case, the Conseil d'Etat had the
requisite “appearance” of independence, or the requisite “objective”
impartiality (ibid., § 193).
63. Lastly, it should be borne in mind that in deciding whether in a given
case there is a legitimate reason to fear that these requirements have not
been met, the standpoint of a party is important but not decisive. What is
decisive is whether the fear of the party concerned can be held objectively
justified (see, mutatis mutandis, Hauschildt v. Denmark, judgment of
24 May 1989, Series A no. 154, § 48).
SACILOR LORMINES v. FRANCE JUDGMENT 31

(b) Application to the present case

64. The Court notes that the applicant's fear of a lack of structural
impartiality on the part of the Conseil d'Etat is based above all on an
infringement of the principle of the separation of powers between the
executive and the judiciary.
65. The Court observes that the status of the members of the
administrative courts has been described in the Kress judgment (cited
above) and is now provided for in Articles L. 131-1 and R. 131-1 of the
Administrative Courts Code (see paragraph 34 above). The members are
governed by the general rules on the civil service. They are recruited in one
of two ways: through competitive examination or directly from outside (au
tour extérieur). About one third of the members of the Conseil d'Etat are on
release, engaged in outside activities. As regards the practice of recruiting
directly from outside, the President of the Republic is empowered to appoint
one third of the senior members (conseillers d'Etat), subject to a minimum
age of forty-five (the prior opinion of the Vice-President of the Conseil
d'Etat is required in such cases). Even though there is no written provision
guaranteeing the irremovability of members of the Conseil d'Etat, that
guarantee exists in practice, in the same way as their independence is
guaranteed by longstanding conventions such as internal management by
the Executive Committee (bureau) of the Conseil d'Etat, without outside
interference (its members are not subject to the authority of the Minister of
Justice, unlike the members of the public prosecution service), and
promotion based on seniority, a practice which guarantees independence
vis-à-vis both the political authorities and the authorities of the Conseil
d'Etat themselves (ibid., §§ 31-35). Mention should also be made of the
duty of discretion imposed on members of the Conseil d'Etat in their action
and public representations (Article L. 131-3 of the Administrative Courts
Code, see paragraph 34 above).
66. The Court notes that the particular status of the Conseil d'Etat
among French institutions connects it organically to the executive.
However, it is of the opinion that this situation is not sufficient to justify the
argument that the Conseil d'Etat lacks independence. As the Court has
already found in the Kress judgment, for other purposes, the specific nature
of this institution does not preclude the existence of guarantees as to its
members' independence (ibid., §§ 31-37 and 71).
67. Furthermore, the Court reiterates that the very fact that legal officers
are appointed by a member of the executive, or in some cases by
Parliament, does not render them subordinate to the authorities if, once
appointed, they receive no pressure or instructions in the performance of
their judicial duties (see Campbell and Fell v. the United Kingdom,
judgment of 28 June 1984, Series A no. 80, § 79; Loyen v. France (dec.),
no. 46022/99, 27 April 2000; and Filippini v. San Marino (dec.),
no. 10526/02, 26 August 2003). Similarly, whilst the irremovability of
32 SACILOR LORMINES v. FRANCE JUDGMENT

judges during their term of office must in general be considered as a

corollary of their independence, the absence of a formal recognition of this
irremovability in the law does not in itself imply lack of independence
provided that it is recognised in fact and that the other necessary guarantees
are present (see Campbell and Fell, cited above, § 80). It can be seen from
the provisions of the Administrative Courts Code and from practice that this
is indeed the case.
68. Whilst the Court thus has no cause, in general, to call into question
the manner in which members of the Conseil d'Etat are appointed or the
organisation of their career, it nevertheless remains for it to assess whether,
in the present case, the Judicial Division possessed the “appearance of
independence” required by the Court's case-law in terms of safeguards
against extraneous pressure (see paragraph 59 above). In this connection,
the applicant company claimed that the appointment of a senior member,
who had participated in the deliberation of 26 April 2000, to the post of
Secretary General of the Ministry for Economic Affairs, Finance and
Industry (see paragraph 18 above), was capable of casting serious doubt on
the independence of the bench of the Conseil d'Etat which delivered the
judgment of 19 May 2000 (see paragraph 17 above).
69. The Court observes that the appointment of the senior member of the
Conseil d'Etat in question was subsequent to its deliberation on 26 April
2000 in which he had sat. However, it takes note of the Government's
statement that discussions concerning the appointment to a newly created
post were already underway in April 2000 and had probably begun at least a
certain time before the deliberation in view of the importance of the vacancy
to be filled. The Court finds it likely that those discussions would have
continued until a few days before the appointment decree was signed on
26 May 2000. It is of the opinion that the impugned appointment was
capable of casting doubt on the impartiality of the Conseil d'Etat. At the
time of the deliberation in question, or even perhaps well before, one of the
members of the bench had been under consideration for appointment to a
senior position in the very ministry with which the applicant had a large
number of significant disputes (see paragraph 11 above). The Court thus
finds that the said member could not have the appearance of neutrality vis-à-
vis the applicant company, given the lack of safeguards against possible
extraneous influence, since his appointment was already envisaged at the
time he sat in his judicial capacity in April 2000. The applicant company, in
the Court's opinion, thus had objectively justified misgivings ex post facto
about the independence and impartiality of the bench on which the member
in question had sat.
The Court therefore considers that there has been a violation of
Article 6 § 1 of the Convention.
70. There remains the question of the independence and impartiality of
the Conseil d'Etat having regard to the concurrent exercise of judicial and
SACILOR LORMINES v. FRANCE JUDGMENT 33

administrative functions as provided for in Article L. 112-1 et seq. of the

Administrative Courts Code (see paragraph 35 above).
71. As to the participation of the Conseil d'Etat, through its advisory
opinions – which are not, however, binding on it – in the preparation of all
draft legislation concerning mining policy and of implementing decrees,
since the end of the mining activities in question, the Court acknowledges
that such participation raises a purely structural question since, if the
mandatory consultation of the Conseil d'Etat is dispensed with, the
administrative court itself will not fail to declare the act void for
incompétence (lack of authority), on grounds of public policy (moyen
d'ordre public). However, the Court reiterates that the Convention does not
require States to comply with any theoretical constitutional concepts
regarding the permissible limits of interaction between the powers of the
executive and the judiciary (see Kleyn and Others, cited above, § 193). As
in the case of the Council of State in the Netherlands, there is no cause to
apply a particular constitutional law theory to the situation of the French
Conseil d'Etat and to rule in abstracto on the organic and functional
compatibility with Article 6 § 1 of the consultation of the Conseil d'Etat
with regard to draft legislation and implementing decrees. The Court
reiterates that the principle of the separation of powers is not decisive in the
abstract (see Pabla Ky v. Finland, no. 47221/99, § 34, ECHR 2004-V). The
Court must ascertain only whether the opinion given by the Public Works
Division on 29 September 1997 in any way prejudged the findings of the
Judicial Division of the Conseil d'Etat on 19 May 2000 and 5 April 2002,
thus casting doubt on the “objective” impartiality of the bench on account of
the consecutive exercise of advisory and judicial functions in the present
case.
72. The Court first observes that the questions raised in the advisory
opinion concerning the “work of stabilising and rehabilitating the sites of
disused mines”, following the entry into force of the Law of 15 July 1994
amending certain provisions of the Mining Code, and in the proceedings
concerning the inter-prefectoral orders of 26 May and 18 July 1997
providing for regulatory measures in the mining sector, cannot be regarded
as totally identical “decisions”. Nor is there any evidence in the case file
that the members of the judicial bench had previously participated in the
adoption of the opinion of 29 September 1997. The Court infers from this
that the present circumstances are different from those of the Procola case.
73. The issue is whether the questions submitted to the Public Works
Division and the disputes examined by the Judicial Division can be regarded
as involving the “same case” or “same decision” (see Kleyn and Others,
cited above, § 200), or as “analogous issues” (see Morel, cited above, § 47).
In the Kleyn and Others case, the French Government, intervening as a
third-party, considered that “the fact that the same point of law [had been]
submitted successively to the Conseil d'Etat in its advisory capacity and its
34 SACILOR LORMINES v. FRANCE JUDGMENT

judicial capacity did not as such constitute a ground, given its independence
in both capacities, for an objective doubt in the mind of an appellant that
could undermine the impartiality of the Judicial Division. The impartiality
of a body where advisory and judicial responsibilities coexisted did not pose
a problem where an advisory opinion concerned merely a point of law.
Where it concerned a question of fact, the assessment of the question
whether an appellant could have objectively justified fears of bias depended
on the merits of each case” (see Kleyn and Others, cited above, § 189). The
Government has reiterated that view. The applicant company has replied
that legal questions always relate to a factual situation and that, in the
present case, those raised in the opinion coincided with those raised in the
litigation.
74. The Court observes that the advisory opinion of 29 September 1997
concerned the interpretation and application of the Law of 15 July 1994 at
the time, the question of the extent of the administrative authorities' powers
vis-à-vis mining companies, and the sharing of responsibility between those
companies and the State as regards the prevention of mining-related risks.
The litigation in question consisted in examining whether mining regulatory
measures could still be imposed on the applicant company since it had
claimed that declarations of abandonment and applications for renunciation
had been made in respect of its concessions. Without denying the existence
of a relationship between the legal questions raised in the opinion of
29 September 1997 and those arising in the litigation brought by the
applicant company, the Court is unable to find that the issues involved in
the opinion, having been addressed in a general and abstract manner,
entailed any bias on the part of the members of the Judicial Division when
they came to examine, three years later, the issues concerning the applicant
company's concrete interests in the management of the termination of its
mining operations, its disused mines being numerous and in different legal
situations. Under those circumstances, the advisory opinion and the
subsequent proceedings involving appeals against the inter-prefectoral
orders providing for regulatory measures in the mining sector cannot be
regarded as representing the “same case” or the “same decision” (see,
mutatis mutandis, Kleyn and Others, cited above, §§ 200 and 201). For this
reason neither the request referred to the administrative division by the
minister with whom the appeals had been lodged, nor the publication of the
opinion in the 1998 public report of the Conseil d'Etat, were capable of
arousing objectively justified fears on the part of the applicant company.
In conclusion, the consecutive exercise by the Conseil d'Etat of judicial
and administrative functions has not, in the present case, entailed a violation
of Article 6 § 1 of the Convention.
...
SACILOR LORMINES v. FRANCE JUDGMENT 35

FOR THESE REASONS, THE COURT

1. Holds by four votes to three that there has been a violation of
Article 6 § 1 of the Convention, in so far as it secures the right to an
independent and impartial tribunal, on account of the applicant
company's objectively justified misgivings about the bench of the
Conseil d'Etat which delivered the judgment of 19 May 2000;

2. Holds unanimously that there has been no violation of Article 6 § 1 of

the Convention, in so far as it secures the right to an independent and
impartial tribunal, on account of the consecutive exercise by the Conseil
d'Etat, in the present case, of its judicial and advisory functions;

...

Done in French, and notified in writing on 9 November 2006, pursuant to

Rule 77 §§ 2 and 3 of the Rules of Court.

Vincent BERGER Boštjan M. ZUPANČIČ

Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of

the Rules of Court, the joint partly dissenting opinion of Judges Zupančič,
Bîrsan and Long is annexed to this judgment.

B.M.Z*.
V.B.*.
36 SACILOR LORMINES v. FRANCE JUDGMENT

JOINT PARTLY DISSENTING OPINION OF JUDGES

ZUPANČIČ, BÎRSAN AND LONG
(Translation)

It is with great regret that we are unable to agree with the first operative
paragraph of the judgment which reads: “there has been a violation of
Article 6 § 1 of the Convention, in so far as it secures the right to an
independent and impartial tribunal, on account of the applicant company's
objectively justified misgivings about the bench of the Conseil d'Etat which
delivered the judgment of 19 May 2000”.
The applicant company argued, among other things, that the Conseil
d'Etat was not an independent and impartial tribunal on account, first, of the
plurality of its functions and, second, of the manner of appointment and the
status of its members, as illustrated in the present case by the appointment,
on 26 May 2000, of one of the members of the bench which delivered the
impugned judgment of 19 May 2000 to the post of Secretary General at the
ministry responsible for mining, when the company's activities, which had
given rise to its litigation against the Government, fell within the purview of
that very ministry.
Whilst, on the first point, the Court arrived at the conclusion that the
successive exercise by the Conseil d'Etat of its administrative functions and
judicial jurisdiction was not capable of entailing a violation of Article 6 § 1
of the Convention, thus adhering to the Kleyn v. the Netherlands case-law –
a conclusion with which we fully agree – on the second point, by contrast,
the majority in the Chamber found a violation of that same provision.
Admittedly, on that second point, the Court, not departing from its settled
case-law in such matters, did not wish to call into question, generally
speaking, the method of appointment of members of the Conseil d'Etat or
the organisation of their careers. That being said, in so far as the applicant
company had argued that the appointment of a member of the judicial bench
to the post of Secretary General of the Ministry for Economic Affairs,
Finance and Industry had been such as to cast “serious doubt” upon the
independence of the Conseil d'Etat in its decision of 19 May 2000, the
Court had to examine whether in the present case the supreme
administrative court of France had presented the “appearance of
independence” required by the Court's case-law, having regard to the
“existence of safeguards against extraneous pressure” (paragraph 59 of the
judgment).
In this connection, the majority in the Chamber took, as the starting-point
of their reasoning, an undeniable fact: the appointment in question post-
dated the deliberation of the Conseil d'Etat of 26 April 2000. However, they
bore in mind, as the Government had indicated, that discussions concerning
the appointment were apparently “already underway” in April 2000, and
2 SACILOR LORMINES v. FRANCE JUDGMENT – JOINT PARTLY DISSENTING OPINION
OF JUDGES ZUPANČIČ, BÎRSAN AND LONG

had thus begun “probably” at least a certain time before the deliberation of
the judicial bench. Accordingly, agreeing with the applicant company, the
majority were of the opinion that the impugned appointment was “likely to
cast doubt on the impartiality of the Conseil d'Etat”. They consider that, in
view of the fact that during the deliberation, “or even perhaps well before” –
and we emphasise that point – one of the members of the judicial bench had
been under consideration for appointment to a senior position in the
ministry which was its opponent in a large number of major disputes, he
could not appear as a neutral figure in the eyes of the applicant company.
The majority considered that in the circumstances the company had no
safeguards “against possible extraneous influence” on account of the
impugned appointment “at the time he exercised his judicial function in
April”, and that this was capable of giving rise to “objectively justified
misgivings ex post facto about the independence and impartiality of the
bench on which the member in question had sat” (paragraph 69).
In fact, the point on which we disagree with the majority concerns the
application to the situation at issue of the notions of independence and
objective impartiality, which in the circumstances of the case are closely
linked (paragraph 62). In this connection, the Court has constantly held that
the objective test consists in determining whether, irrespective of the judge's
personal conduct, there are ascertainable facts which may raise doubts as to
his impartiality. In this respect even appearances may be of a certain
importance. What is at stake is the confidence which the courts in a
democratic society must inspire in the public. Accordingly, any judge in
respect of whom there is a legitimate reason to fear a lack of impartiality
must withdraw. In deciding whether in a given case there is a legitimate
reason to fear that a particular judge lacks impartiality, the standpoint of a
party is important but not decisive. What is decisive is whether this fear can
be held to be objectively justified (see, among other authorities, Castillo
Algar v. Spain, judgment of 28 October 1998, Reports 1998-VIII, § 45, and
Morel v. France, no. 34130/96, § 42, ECHR 2000-VI). Similarly, the Court
has held with equal consistency that a judge's final analysis in a given case
is carried out when judgment is delivered and is based on the evidence
produced and argument heard at the hearing (see, for example, Hauschildt
v. Denmark, judgment of 24 May 1989, Series A no. 154, § 50; Nortier
v. the Netherlands, judgment of 24 August 1993, Series A no. 267, § 332;
Saraiva de Carvalho v. Portugal, judgment of 22 April 1994, Series A
no. 286-B, § 35; and Morel, cited above, § 45).
How then does this apply to the present case? First, we consider that the
applicant company did not produce any evidence to suggest that the
guarantees of independence of members of the supreme French
administrative court, as emphasised by the Court in Kress v. France (§§ 31-
37 and 71), could be called into question in the present case. On the
contrary, as the present judgment points out, the position of the Conseil
SACILOR LORMINES v. FRANCE JUDGMENT – JOINT PARTLY DISSENTING OPINION 3
OF JUDGES ZUPANČIČ, BÎRSAN AND LONG

d'Etat among French institutions does not preclude the existence of

guarantees as to its independence (paragraph 66). Secondly, we consider
that, appearances notwithstanding, the appointment of the member of the
Conseil d'Etat in question cannot in itself undermine the finding concerning
the general judicial practice of the Conseil d'Etat for the simple reason –
which is not in dispute and indeed unquestionable – that it took place after
the member had exercised his judicial function. In addition, the applicant
company failed to show how that appointment could have aroused suspicion
of a link between the member of the Conseil d'Etat and the other party in
the proceedings, or could have revealed the existence of any extraneous
influence on the performance of his duties. In our opinion, the factors on
which the majority have based their finding of a violation of Article 6 § 1 of
the Convention in this respect – that is to say the fact that discussions
concerning the appointment were said to have begun “probably” at least a
certain time before the deliberation, in view of the importance of the
vacancy to be filled, “or even perhaps well before”, and that those
discussions concerned a member of the bench who was under consideration
for a senior post in the ministry against which the applicant company had
brought proceedings – appear to us to amount to pure conjecture.
Appearances have their own limits and have to be based on objective facts,
which we consider not to be the case here. In conclusion, it would have been
better for the Court, in a case where it did have the opportunity to do so, to
have set limits on an extreme attachment to the theory of appearances – a
theory that could result in a form of general suspicion and, in the end,
generate legal insecurity.
GRAND CHAMBER

CASE OF DENISOV v. UKRAINE

(Application no. 76639/11)

JUDGMENT

STRASBOURG

25 September 2018

This judgment is final but it may be subject to editorial revision.

DENISOV v. UKRAINE JUDGMENT 1

In the case of Denisov v. Ukraine,

The European Court of Human Rights, sitting as a Grand Chamber
composed of:
Guido Raimondi, President,
Angelika Nußberger,
Linos-Alexandre Sicilianos,
Ganna Yudkivska,
Helena Jäderblom,
Robert Spano,
Vincent A. De Gaetano,
Erik Møse,
André Potocki,
Yonko Grozev,
Carlo Ranzoni,
Mārtiņš Mits,
Gabriele Kucsko-Stadlmayer,
Alena Poláčková,
Georgios A. Serghides,
Marko Bošnjak,
Péter Paczolay, judges,
and Françoise Elens-Passos, Deputy Registrar,
Having deliberated in private on 18 October 2017 and 13 June 2018,
Delivers the following judgment, which was adopted on that date:

PROCEDURE
1. The case originated in an application (no. 76639/11) against Ukraine
lodged with the Court under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”) by a
Ukrainian national, Mr Anatoliy Oleksiyovych Denisov (“the applicant”),
on 8 December 2011.
2. The applicant was represented by Ms J. Gavron and Mr A. Halban,
lawyers practising in London. The Ukrainian Government (“the
Government”) were represented by their Agent, Mr I. Lishchyna.
3. The applicant alleged, in particular, that his dismissal from the
position of president of a court of appeal had not been carried out in
conformity with Article 6 § 1 of the Convention and constituted an unlawful
and disproportionate interference with his private life, contrary to Article 8
of the Convention.
4. On 15 January 2014 the Government were given notice of the
application.
2 DENISOV v. UKRAINE JUDGMENT

5. On 25 April 2017, after having consulted the parties, a Chamber of

the Fifth Section of the Court, composed of Angelika Nußberger, President,
Erik Møse, Ganna Yudkivska, André Potocki, Yonko Grozev,
Carlo Ranzoni, Mārtiņš Mits, judges, and Milan Blaško, Deputy Section
Registrar, decided to relinquish jurisdiction in favour of the Grand Chamber
in the above case, neither of the parties having objected to such
relinquishment (Article 30 of the Convention and Rule 72 of the Rules of
Court).
6. The composition of the Grand Chamber was determined according to
the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24.
7. The applicant and the Government each filed written observations on
the admissibility and merits of the application. In addition, third-party
comments were received from the International Commission of Jurists,
which had been given leave by the President to intervene in the written
procedure (Article 36 § 2 of the Convention and Rule 44 § 3).
8. A hearing took place in public in the Human Rights Building,
Strasbourg, on 18 October 2017.
There appeared before the Court:

(a) for the Government

Mr I. LISHCHYNA, Agent,
Ms O. DAVYDCHUK, Office of the Government Agent,
Ministry of Justice,
Ms N. RYBACHOK, Office of the Government Agent,
Ministry of Justice, Advisers;

(b) for the applicant

Ms J. GAVRON,
Mr A. HALBAN, Counsel.

The Court heard addresses by Mr Lishchyna, Ms Gavron and Mr Halban

and their replies to the questions from its members.
9. At the Court’s request, the applicant, in a letter of 24 November 2017,
amended his claims for costs and expenses to take into account the
proceedings before the Grand Chamber. The Government submitted their
comments on his revised claims on 11 December 2017.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

10. The applicant was born on 6 July 1948 and lives in Kyiv.
DENISOV v. UKRAINE JUDGMENT 3

11. The applicant’s judicial career started in 1976, when he was first
elected to the post of judge of a district court. During his judicial career the
applicant held the position of president in several courts.
12. On 22 December 2005 the applicant was elected to the post of judge
of the Kyiv Administrative Court of Appeal by the Ukrainian Parliament.
13. On 10 November 2006 the applicant was appointed, by the President
of Ukraine, as acting president of the Kyiv Administrative Court of Appeal.
On 6 February 2009 he was appointed president of that court by the Council
of Judges of Ukraine (a body of judicial self-governance). He was appointed
for a five-year term, it being understood that he would reach the retirement
age in July 2013, before the end of that term.

A. Preliminary inquiry into the applicant’s performance as president

of the court

14. In February 2011 the Council of Administrative Court Judges

(another body of judicial self-governance) decided, among other issues, to
review the functioning of the Kyiv Administrative Court of Appeal. The
review was carried out in February and March 2011 and concerned the years
2009 and 2010, as well as the period between January and February 2011.
15. On 24 May 2011 the Council of Administrative Court Judges,
chaired by Judge K., made a submission to the High Council of Justice (“the
HCJ”) proposing the applicant’s dismissal from the position of president of
the Kyiv Administrative Court of Appeal for failure to perform his
administrative duties properly. The proposal was based on the results of the
aforementioned review.

B. Proceedings before the HCJ

16. The HCJ scheduled hearings on 30 and 31 May 2011 and the
applicant was invited to attend them. However, in view of information
received from the Kyiv Administrative Court of Appeal on 27 May 2011
that the applicant was on annual leave until 8 July 2011, the HCJ adjourned
the examination of the case. It sent the applicant a summons for the next
hearing, which was scheduled on 14 June 2011. In reply, the Kyiv
Administrative Court of Appeal informed the HCJ once again that the
applicant was on holiday until 8 July 2011.
17. On 14 June 2011 the HCJ examined the case in the applicant’s
absence and decided to dismiss him from the post of president of the court,
relying on section 20 of the Judiciary and Status of Judges Act and section
32-1 of the High Council of Justice Act. The HCJ noted that “significant
shortcomings, omissions and errors, and grave violations of the foundations
of the organisation and administration of justice set forth by law [had] been
found in the organisation of the work of the Kyiv Administrative Court of
4 DENISOV v. UKRAINE JUDGMENT

Appeal”. It stated that “the improper organisation of the court’s work was
the result of the failure by the president of the court, Mr A. Denisov, to
comply with the provisions of the applicable laws concerning the fulfilment
of his administrative duties”. It also found that “administrative documents
issued by Mr A. Denisov regarding the distribution of duties between the
vice-presidents of the court, the setting-up of court chambers and panels and
the distribution of cases among judges, as well as personnel-related and
other documents in certain cases, [violated] the provisions of [the domestic
legislation]”. It lastly stated that the applicant’s failures as president of the
court involved a “lack of proper planning, control and effective use of
human resources”.
18. The decision was voted on by the HCJ, whose members present on
that occasion included Judge K., the Prosecutor General and other judicial
and non-judicial members. Out of the eighteen members present, eight were
judges. Fourteen votes were cast in favour of the applicant’s dismissal.
19. According to the applicant, the composition of the HCJ in his case
included two members who on earlier occasions had initiated proceedings
for his dismissal from the post of judge for an alleged “breach of oath”.
Furthermore, the applicant alleged that the President of the HCJ and another
member of the HCJ had previously communicated with him, attempting –
albeit without success – to influence him in the course of his professional
activities.
20. On 17 June 2011 the President of the HCJ asked the Kyiv
Administrative Court of Appeal to ensure that the HCJ’s decision on the
applicant’s dismissal was executed and that information about its execution
was provided to the HCJ immediately. On 23 June 2011 the applicant was
dismissed from his administrative position, remaining in office as a judge of
the same court.

C. Proceedings before the Higher Administrative Court

21. The applicant challenged the decision of the HCJ before the Higher
Administrative Court (“the HAC”), arguing that the decision on his
dismissal was unlawful and unfounded. In his claim the applicant submitted
that the HCJ had failed to comply with the requirements of an independent
and impartial tribunal. He emphasised that those requirements were part of
the procedural safeguards provided for by Article 6 of the Convention,
which was applicable to his case in its civil limb because the impugned
decision had substantially affected his right to work and his professional
dignity. The applicant further argued that his right to participate in the
hearings had not been secured. He alleged that the decision of the HCJ was
worded in general terms and that it did not refer to any specific facts or
indicate a specific time when those facts had taken place. The applicant then
asked the HAC to take into account the fact that his judicial career had
DENISOV v. UKRAINE JUDGMENT 5

exceeded thirty-five years, that he had held positions of president at several

courts for twenty-five years, that he had been given awards for his judicial
service and that during the initial period of his presidency of the Kyiv
Administrative Court of Appeal that court had moved from a demolished
military barracks to premises in the city centre with proper equipment and a
sufficient number of hearing rooms.
22. The applicant also claimed compensation for the pecuniary damage
caused by the ensuing reduction in his remuneration, which, at the date of
the claim, had amounted to 4,034.33 Ukrainian hryvnias (UAH) 1 in relation
to the period which had elapsed in July and August 2011.
23. On 25 August 2011 the HAC held a hearing in the presence of the
applicant and decided to dismiss his claim in respect of pecuniary damage
without considering it. The HAC adopted a decision to that effect, stating
that it had no jurisdiction to determine that issue.
24. On 11 October 2011 the HAC rejected the applicant’s claim
concerning his dismissal from the administrative position as
unsubstantiated. In its decision the HAC specified, in particular, that it had
competence to review whether the impugned decision had been taken
lawfully, reasonably, proportionately and, among other requirements,
impartially. The HAC stated that the applicant had not contested the facts
forming the grounds for his dismissal and therefore those facts had been
taken as established. The HAC then reiterated the failings attributed to the
applicant and concluded that the HCJ’s decision had been lawful and that
the applicant’s right to participate in the proceedings in person had not been
violated because the HCJ had taken all the necessary measures to inform
him about the hearings and the applicant had not had any valid reason for
being absent from the hearings. The HAC found that the HCJ had acted in
accordance with the Constitution, the Judiciary and Status of Judges Act
and the High Council of Justice Act. It had also complied with the Rules of
the HCJ, which provided that one of the grounds for the dismissal of a judge
from an administrative position was a “breach of official duties”. In
conclusion, the HAC stated that the HCJ had not violated the Constitution
or the laws of Ukraine.
25. Following his dismissal from the position of president of the Kyiv
Administrative Court of Appeal, the applicant continued to work as a
regular judge in the same court until 20 June 2013, when Parliament
dismissed him from the post of judge after he had tendered a statement of
resignation.

1. About 345 euros at the relevant time

6 DENISOV v. UKRAINE JUDGMENT

II. RELEVANT DOMESTIC LAW

A. Constitution of 28 June 1996 as worded at the relevant time

26. The relevant provisions of the Constitution read as follows at the

relevant time:
Article 6
“The State power in Ukraine is exercised on the basis of its separation into
legislative, executive and judicial branches. ...”

Article 126
“... A judge shall be dismissed from office by the body which elected or appointed
him or her in the event of:
...
(2) the judge’s attainment of the age of sixty-five ...;”

Article 131
“The High Council of Justice shall operate in Ukraine. Its tasks shall comprise:
(1) making submissions on the appointment or dismissal of judges;
(2) adopting decisions with regard to the violation by judges and prosecutors of the
requirements concerning judicial incompatibility;
(3) conducting disciplinary proceedings in respect of judges of the Supreme Court
and judges of higher specialised courts, and considering complaints against decisions
imposing disciplinary liability on judges of courts of appeal and local courts and on
prosecutors.
The High Council of Justice shall consist of twenty members. The Parliament of
Ukraine, the President of Ukraine, the Assembly of Judges of Ukraine, the Assembly
of Advocates of Ukraine, and the Assembly of Representatives of Higher Legal
Educational Establishments and Scientific Institutions, shall each appoint three
members to the High Council of Justice, and the All-Ukrainian Conference of
Prosecutors shall appoint two members to the High Council of Justice.
The President of the Supreme Court, the Minister of Justice and the Prosecutor
General shall be ex officio members of the High Council of Justice.”

B. Code of Administrative Justice of 6 July 2005 as worded at the

relevant time

27. The relevant provisions of the Code read as follows at the relevant
time:
Article 161 – Questions to be determined by a court when deciding on a case
“1. When deciding on a case, a court shall determine:
DENISOV v. UKRAINE JUDGMENT 7

(1) whether the circumstances referred to in the claim and objections took place and
what evidence substantiates these circumstances;
(2) whether there is any other factual information relevant to the case and evidence
in support of that information;
(3) which provision of law is to be applied to the legal relations in dispute;
...”

Article 171-1 – Proceedings in cases concerning acts, actions or omissions of the

Parliament of Ukraine, the President of Ukraine, the High Council of Justice and the
High Qualification Commission of Judges
“1. The rules set down in this Article shall apply to proceedings in administrative
cases concerning:
...
(2) acts of the High Council of Justice; ...
2. Acts, actions or omissions of the Parliament of Ukraine, the President of Ukraine,
the High Council of Justice and the High Qualification Commission of Judges may be
challenged before the Higher Administrative Court. For this purpose a separate
chamber shall be set up in the Higher Administrative Court.
...
5. Following the consideration of the case, the Higher Administrative Court may:
(1) declare the act of the Parliament of Ukraine, the President of Ukraine, the High
Council of Justice or the High Qualification Commission of Judges unlawful in full or
in part;
(2) declare the actions or omissions of the Parliament of Ukraine, the President of
Ukraine, the High Council of Justice or the High Qualification Commission of Judges
unlawful and oblige [it or them] to take certain actions. ...”

C. The Judiciary and Status of Judges Act of 7 July 2010 (in force at
the relevant time)

28. The relevant provisions of this Act read as follows at the relevant
time:
Section 20 – Procedure for appointing judges to administrative positions
“1. The administrative positions in a court are the positions of president and deputy
president(s) of the court.
2. The president of ... the court of appeal ... [appointed for a five-year term from
among the judges of the same court] may be dismissed from that position by the High
Council of Justice on an application by the relevant council of judges.
...
6. The dismissal of a judge from an administrative position shall not entail removal
from his or her judicial post. ...”
8 DENISOV v. UKRAINE JUDGMENT

Section 29 – President of the court of appeal

“1. The president of the court of appeal shall:
(1) represent the court as a body of State power in relations with other State bodies,
local self-government bodies, natural persons and legal entities;
(2) determine the administrative powers of the deputy presidents of the court of
appeal;
(3) monitor the efficiency of the non-judicial staff at the court, and make proposals
to the Head of the State Judicial Administration of Ukraine regarding the appointment
of the head and deputy head of the non-judicial staff at the court, their dismissal from
office and any incentives or disciplinary measures to be applied in respect of them in
accordance with the law;
(4) issue relevant orders on the basis of decisions on the election or dismissal of a
judge;
(5) notify, within ten days, the High Qualification Commission of Judges of Ukraine
about available vacancies at the court of appeal;
(6) ensure the implementation of decisions taken at meetings of judges of the court
of appeal;
(7) oversee the collection and analysis of judicial statistics, organise the examination
and summarising of judicial practice, and provide information and analytical support
to judges in order to improve the quality of justice;
(8) ensure the ongoing training requirements for judges of the court of appeal;
(9) exercise other powers envisaged by law.”

Section 113 – Objectives of judicial self-governance

“1. Judicial self-governance shall be established in Ukraine as a means of
independent collective resolution by judges of issues relating to the internal activity of
the courts. ...”

Section 114 – Organisational forms of judicial self-governance

“1. The organisational forms of judicial self-governance shall be the meetings of
judges, the councils of judges, the conferences of judges, and the Assembly of Judges
of Ukraine. ...”

Section 115 – Meetings of judges

“... 2. Meetings of judges [of a court] shall be convened by the president of the court
on his own initiative or at the request of at least one-third of the judicial staff of the
court. ...”

Section 122 – Councils of judges

“1. In the period between conferences of judges the functions of judicial self-
governance shall be performed by the relevant council of judges. ...
3. The council of judges shall be composed of eleven judges ...
6. The council of judges shall:
DENISOV v. UKRAINE JUDGMENT 9

(1) oversee the organisation of the functioning of the relevant courts, examine
reports on those issues by presidents of courts ...;
...
(3) make submissions to the High Council of Justice on the appointment of judges to
administrative positions at the courts and their dismissal from such positions; ...”

D. The High Council of Justice Act of 15 January 1998 (in force at

the relevant time)

29. The relevant provisions of this law read as follows at the material
time:
Section 3 – Powers of the High Council of Justice
“ The High Council of Justice shall:
...
(1-1) following the submission of a proposal by the relevant council of judges, ...
dismiss judges from the positions of president and deputy president of courts ...;
...”

Section 32-1 – Dismissal of judges from the positions of president and deputy
president of a court
“... The question of dismissing the president or deputy president of a court shall be
examined at a hearing of the High Council of Justice, following the submission of a
proposal by the relevant specialised council of judges. The president or deputy
president of the court concerned shall be invited to attend the hearing. If the president
or deputy president of the court cannot participate in the hearing for a valid reason, he
or she shall be entitled to make written submissions, which shall be included in the
case file. The written submissions by the judge shall be read out at the hearing before
the High Council of Justice. A second failure on the part of the president or deputy
president of the court to attend a hearing shall be grounds for considering the case in
his or her absence.
A decision of the High Council of Justice to dismiss the president or deputy
president of a court shall be taken by a majority of the constitutional composition of
the High Council of Justice.”
30. Other relevant provisions of this Act can be found in the judgment in
the case of Oleksandr Volkov v. Ukraine (no. 21722/11, §§ 65-71, ECHR
2013).

E. Rules of the HCJ of 4 October 2010 (in force at the relevant time)

31. Paragraph 3.2 (1) of the Rules provided that a judge could be
dismissed from the position of president or deputy president of a court by
the HCJ following the submission of a proposal by the relevant council of
judges.
10 DENISOV v. UKRAINE JUDGMENT

32. Paragraph 3.2 (2) of the Rules provided the following grounds for
the dismissal of a judge from an administrative position: (i) dismissal from
the judiciary; (ii) submission of a statement of resignation from the
administrative position; (iii) expiry of the period of appointment to the
administrative position; (iv) transfer of the judge to another court;
(v) breach of official duties.

III. RELEVANT INTERNATIONAL MATERIALS

33. The relevant extracts from the European Charter on the statute for
judges (Department of Legal Affairs of the Council of Europe, 8-10 July
1998, DAJ/DOC (98)23) read:
“1. General Principles
...
1.3. In respect of every decision affecting the selection, recruitment, appointment,
career progress or termination of office of a judge, the statute envisages the
intervention of an authority independent of the executive and legislative powers
within which at least one half of those who sit are judges elected by their peers
following methods guaranteeing the widest representation of the judiciary.
...
5. Liability
5.1. The dereliction by a judge of one of the duties expressly defined by the statute,
may only give rise to a sanction upon the decision, following the proposal, the
recommendation, or with the agreement of a tribunal or authority composed at least as
to one half of elected judges, within the framework of proceedings of a character
involving the full hearing of the parties, in which the judge proceeded against must be
entitled to representation. The scale of sanctions which may be imposed is set out in
the statute, and their imposition is subject to the principle of proportionality. The
decision of an executive authority, of a tribunal, or of an authority pronouncing a
sanction, as envisaged herein, is open to an appeal to a higher judicial authority.”
34. In the conclusions to its “Report on the Independence of the Judicial
System, Part I: The Independence of Judges”, adopted at its 82nd plenary
session on 12 and 13 March 2010 (CDL-AD(2010)004), the Venice
Commission found as follows:
“82. The following standards should be respected by states in order to ensure
internal and external judicial independence:
...
4. It is an appropriate method for guaranteeing the independence of the judiciary that
an independent judicial council have decisive influence on decisions on the
appointment and career of judges. While respecting the variety of legal systems
existing, the Venice Commission recommends that states not yet having done so
consider the establishment of an independent judicial council. In all cases the council
should have a pluralistic composition, with a substantial part if not the majority of the
DENISOV v. UKRAINE JUDGMENT 11

members being judges. With the exception of ex-officio members these judges should
be elected or appointed by their peers.
...
6. Judicial councils, or disciplinary courts, should have a decisive influence in
disciplinary proceedings. The possibility of an appeal to a court against decisions of
disciplinary bodies should be provided for. ...”
35. The relevant parts of Recommendation CM/Rec(2010)12 of the
Committee of Ministers to member States on judges: independence,
efficiency and responsibilities (adopted by the Committee of Ministers on
17 November 2010 at the 1098th meeting of the Ministers’ Deputies) read
as follows:
“Chapter IV – Councils for the judiciary
26. Councils for the judiciary are independent bodies, established by law or under
the constitution, that seek to safeguard the independence of the judiciary and of
individual judges and thereby to promote the efficient functioning of the judicial
system.
27. Not less than half the members of such councils should be judges chosen by
their peers from all levels of the judiciary and with respect for pluralism inside the
judiciary.
28. Councils for the judiciary should demonstrate the highest degree of transparency
towards judges and society by developing pre-established procedures and reasoned
decisions.
...
Chapter VI – Status of the judge
Selection and career
...
46. The authority taking decisions on the selection and career of judges should be
independent of the executive and legislative powers. With a view to guaranteeing its
independence, at least half of the members of the authority should be judges chosen
by their peers.
47. However, where the constitutional or other legal provisions prescribe that the
head of state, the government or the legislative power take decisions concerning the
selection and career of judges, an independent and competent authority drawn in
substantial part from the judiciary (without prejudice to the rules applicable to
councils for the judiciary contained in Chapter IV) should be authorised to make
recommendations or express opinions which the relevant appointing authority follows
in practice.
48. The membership of the independent authorities referred to in paragraphs 46 and
47 should ensure the widest possible representation. Their procedures should be
transparent with reasons for decisions being made available to applicants on request.
...
Chapter VII – Duties and responsibilities
...
12 DENISOV v. UKRAINE JUDGMENT

Liability and disciplinary proceedings

...
69. Disciplinary proceedings may follow where judges fail to carry out their duties
in an efficient and proper manner. Such proceedings should be conducted by an
independent authority or a court with all the guarantees of a fair trial and provide the
judge with the right to challenge the decision and sanction. Disciplinary sanctions
should be proportionate.”
36. The Consultative Council of European Judges, at its 11th plenary
meeting (17-19 November 2010), adopted a Magna Carta of Judges
(Fundamental Principles) summarising and codifying the main conclusions
of the Opinions it had already adopted. The section entitled “Body in charge
of guaranteeing independence” reads as follows:
“13. To ensure independence of judges, each State shall create a Council for the
Judiciary or another specific body, itself independent from legislative and executive
powers, endowed with broad competences for all questions concerning their status as
well as the organisation, the functioning and the image of judicial institutions. The
Council shall be composed either of judges exclusively or of a substantial majority of
judges elected by their peers. The Council for the Judiciary shall be accountable for its
activities and decisions.”
37. Further relevant international texts can be found in Baka v. Hungary
[GC] (no. 20261/12, §§ 72-73 and 82-86, ECHR 2016).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

AS REGARDS THE PRINCIPLES OF AN INDEPENDENT AND
IMPARTIAL TRIBUNAL

38. The applicant complained under Article 6 § 1 of the Convention that

the proceedings before the HCJ and the HAC concerning his removal from
the position of president of the Kyiv Administrative Court of Appeal had
not been compatible with the requirements of independence and
impartiality. He complained, in addition, that the HAC had not provided a
sufficient review of his case, thereby impairing his right of access to a court.
39. The relevant part of Article 6 § 1 reads as follows:
“In the determination of his civil rights and obligations or of any criminal charge
against him, everyone is entitled to a fair ... hearing ... by an independent and
impartial tribunal established by law.”
DENISOV v. UKRAINE JUDGMENT 13

A. Admissibility

1. The parties’ submissions

40. Relying on the principles developed in Vilho Eskelinen and Others
v. Finland ([GC], no. 63235/00, § 62, ECHR 2007-II), the applicant
submitted that Article 6 § 1 of the Convention applied to his case under the
civil limb. The national law did not expressly exclude access to court: his
case had been examined by the HCJ performing a judicial function, and had
subsequently been reviewed by the HAC, an ordinary court within the
domestic judicial system. Therefore, the domestic law did not exclude
access to a court for cases of this kind and the first limb of the test set out in
Vilho Eskelinen and Others was not satisfied. Furthermore, the applicant’s
dismissal from his administrative position had caused him pecuniary loss,
by way of a reduction in his salary, as well as non-pecuniary loss in view of
his demotion in status. In his original application form the applicant
submitted that Article 6 was also applicable under the “criminal” limb.
However, in his submissions before the Grand Chamber he stated that the
applicability of Article 6 was limited to its civil aspect.
41. The Government submitted that the civil limb of Article 6 was not
applicable since there was no “civil” right at issue. The dispute had been
entirely within the sphere of public law and the claim submitted by the
applicant in respect of pecuniary damage concerned a small amount (see
paragraph 22 above), which had not constituted a significant disadvantage
for him. On those grounds the Government submitted that the complaint
was incompatible ratione materiae with the Convention.

2. Third-party intervener
42. The third party, the International Commission of Jurists, submitted
that the principle of independence of the judiciary necessarily implied
security of tenure in the office of court president. In order to ensure such
security of tenure and to maintain both the independence of individual court
presidents and their capacity to uphold the independence of judges in their
courts, proceedings for removal from the position of court president had to
provide the same guarantees of independence and fairness as those for
removal from the office of judge. The third party contended that the
applicability of Article 6 in the present case had to be determined on the
basis of the Vilho Eskelinen test, which had been applied by the Court in
cases concerning judges including Baka (cited above).

3. The Court’s assessment

43. It is common ground between the parties that Article 6 § 1 is not
applicable under its criminal limb. Indeed, the proceedings at issue did not
relate to the determination of a criminal charge, and for this reason the
14 DENISOV v. UKRAINE JUDGMENT

criminal limb does not apply (see, mutatis mutandis, Oleksandr Volkov,
cited above, §§ 93-95).
(a) The general requirements for the applicability of the civil limb of Article
6§1

(i) The relevant principles

44. For Article 6 § 1 in its “civil” limb to be applicable, there must be a
“dispute” regarding a “right” which can be said, at least on arguable
grounds, to be recognised under domestic law, irrespective of whether it is
protected under the Convention. The dispute must be genuine and serious; it
may relate not only to the actual existence of a right but also to its scope and
the manner of its exercise; and, finally, the result of the proceedings must be
directly decisive for the right in question, mere tenuous connections or
remote consequences not being sufficient to bring Article 6 § 1 into play
(see, among many other authorities, Boulois v. Luxembourg [GC],
no. 37575/04, § 90, ECHR 2012; Bochan v. Ukraine (no. 2) [GC],
no. 22251/08, § 42, ECHR 2015; Lupeni Greek Catholic Parish and Others
v. Romania [GC], no. 76943/11, § 71, ECHR 2016; and Regner v. the Czech
Republic GC, no. 35289/11, § 99, ECHR 2017).
45. Article 6 § 1 does not guarantee any particular content for (civil)
“rights and obligations” in the substantive law of the Contracting States: the
Court may not create by way of interpretation of Article 6 § 1 a substantive
right which has no legal basis in the State concerned (see, for example,
Roche v. the United Kingdom [GC], no. 32555/96, § 117, ECHR 2005-X).
The starting-point must be the provisions of the relevant domestic law and
their interpretation by the domestic courts (ibid., § 120; see also Károly
Nagy v. Hungary [GC], no. 56665/09, § 62, ECHR 2017, and Regner, cited
above, § 100). The Court would need strong reasons to differ from the
conclusions reached by the superior national courts by finding, contrary to
their view, that there was arguably a right recognised by domestic law (see
Károly Nagy, cited above, § 62).
46. Although there is in principle no right under the Convention to hold
a public post entailing the administration of justice (see
Dzhidzheva-Trendafilova v. Bulgaria (dec.), no. 12628/09, § 38, 9 October
2012, and Harabin v. Slovakia (dec.), no. 62584/00, 29 June 2004), such a
right may exist at the domestic level. In Regner (cited above) the Court
reiterated that there can be no doubt about the fact that there is a right within
the meaning of Article 6 § 1 where a substantive right recognised in
domestic law is accompanied by a procedural right to have that right
enforced through the courts. The mere fact that the wording of a legal
provision affords an element of discretion does not in itself rule out the
existence of a right. Indeed, Article 6 applies where the judicial proceedings
concern a discretionary decision resulting in interference in an applicant’s
DENISOV v. UKRAINE JUDGMENT 15

rights (ibid., § 102). In some cases, national law, while not necessarily
recognizing that an individual has a subjective right, confers the right to a
lawful procedure for examination of his or her claim, involving matters such
as ruling whether a decision was arbitrary or ultra vires or whether there
were procedural irregularities. This is the case regarding certain decisions
where the authorities have a purely discretionary power to grant or refuse an
advantage or privilege, with the law conferring on the person concerned the
right to apply to the courts, which, where they find that the decision was
unlawful, may set it aside. In such a case Article 6 § 1 of the Convention is
applicable, on condition that the advantage or privilege, once granted, gives
rise to a civil right (ibid., § 105). While access to employment and to the
functions performed may constitute in principle a privilege that cannot be
legally enforced, this is not the case regarding the continuation of an
employment relationship or the conditions in which it is exercised (ibid.,
§ 117). In Baka, for instance, the Court recognised the right of the President
of the Supreme Court to serve his full term of six years under Hungarian
law (see Baka, cited above, §§ 107-11).
(ii) Application of these principles to the present case
47. Applying these principles to the present case, the Court observes,
first of all, that there was a “dispute” concerning the exercise of the right to
hold the position of president of a court. As regards the issue of whether
such a “right” could be said, at least on arguable grounds, to be recognised
in domestic law, it has to be noted that the applicant was appointed to the
position of president of the Kyiv Administrative Court of Appeal for a
five-year term (see paragraph 13 above) and his appointment for such tenure
was not disputed at the domestic level. The applicant was provided with
specific remuneration for his service as president of the court and his
dismissal from this position was subject to certain substantive and
procedural conditions. In the light of the above, and given that there was no
dispute between the parties as to the existence of the right in question, there
is no ground for considering that the applicant’s right to serve in that
administrative position was not recognised under domestic law. Despite his
appointment for a five-year period, the applicant’s right to hold the position
of president of the court was limited in time by the fact that he was due to
reach the retirement age in 2013, before the expiry of that period (see
Article 126 of the Constitution cited in paragraph 26 above).
48. The Court further observes that the dispute was “genuine” as the
parties differed as to whether the applicant could continue to hold his
administrative position. Moreover, the dispute was “serious”, having regard
to the role of the president of a court (see section 29 of the Judiciary and
Status of Judges Act, cited in paragraph 28 above) and to the direct
pecuniary consequences for the applicant resulting from his removal from
that administrative position. In that regard the Government’s argument that
16 DENISOV v. UKRAINE JUDGMENT

the reduction in salary was insignificant for the applicant is not convincing.
The applicant’s calculation of pecuniary damage in his domestic claim was
limited only to the short period (see paragraph 22 above) which had elapsed
at that stage, because the principal purpose of the claim was to secure his
reinstatement in the position of president of the court. However, the
pecuniary consequences were not insignificant from the perspective of the
whole period which remained for the applicant to serve as president.
49. Lastly, the dispute was “directly decisive” for the right at issue
because it resulted in the premature termination of the applicant’s exercise
of that right.
(b) As to the “civil” nature of the right in dispute
50. The Government contested the applicability of Article 6, arguing that
the dispute was in the area of public law and that, consequently, there was
no “civil” right at issue.
(i) The relevant principles
51. In this connection it has to be noted that the scope of the “civil”
concept in Article 6 is not limited by the immediate subject matter of the
dispute. Instead, the Court has developed a wider approach, according to
which the “civil” limb has covered cases which might not initially appear to
concern a civil right but which may have direct and significant
repercussions on a private pecuniary or non-pecuniary right belonging to an
individual. Through this approach, the civil limb of Article 6 has been
applied to a variety of disputes which may have been classified in domestic
law as public-law disputes. These examples include disciplinary
proceedings concerning the right to practise a profession (see Le Compte,
Van Leuven and De Meyere v. Belgium, 23 June 1981, §§ 47 and 48,
Series A no. 43, and Philis v. Greece (no. 2), 27 June 1997, § 45, Reports of
Judgments and Decisions 1997-IV), disputes involving the right to a healthy
environment (see Taşkın and Others v. Turkey, no. 46117/99, § 133, ECHR
2004-X), prisoners’ detention arrangements (see Ganci v. Italy,
no. 41576/98, § 25, ECHR 2003-XI, and Enea v. Italy [GC], no. 74912/01,
§ 103, ECHR 2009), the right of access to investigation documents (see
Savitskyy v. Ukraine, no. 38773/05, §§ 143-45, 26 July 2012), disputes
regarding the non-inclusion of a conviction in a criminal record (see
Alexandre v. Portugal, no. 33197/09, §§ 54 and 55, 20 November 2012),
proceedings for the application of a non-custodial preventive measure (see
De Tommaso v. Italy [GC], no. 43395/09, § 154, ECHR 2017 (extracts)),
and the revocation of a civil servant’s security clearance within the Ministry
of Defence (see Regner, cited above, §§ 113-27).
52. Besides the above-mentioned development of the case-law, the
scope of the “civil” limb has been substantially extended in relation to
public-employment disputes, a field which is directly relevant to the present
DENISOV v. UKRAINE JUDGMENT 17

case. In Vilho Eskelinen and Others (cited above) the Court, having regard
to the existing state of affairs in the Contracting States and in view of non-
discrimination considerations in relation to civil servants as compared to
private employees, established a presumption that Article 6 applied to
“ordinary labour disputes” between a civil servant and the State and that it
would be for the respondent Government to show that a civil servant did not
have a right of access to a court under national law and that this exclusion of
the rights under Article 6 was justified (ibid., § 62). On the basis of the
principles set out in Vilho Eskelinen and Others, Article 6 has been applied
to employment disputes involving judges who were dismissed from judicial
office (see, for example, Oleksandr Volkov, cited above, §§ 91 and 96;
Kulykov and Others v. Ukraine, nos. 5114/09 and 17 others, §§ 118 and
132, 19 January 2017; Sturua v. Georgia, no. 45729/05, § 27, 28 March
2017; and Kamenos v. Cyprus, no. 147/07, § 88, 31 October 2017), removed
from an administrative position without the termination of their duties as a
judge (see Baka, cited above, §§ 34 and 107-11) or suspended from judicial
office (see Paluda v. Slovakia, no. 33392/12, § 34, 23 May 2017). It has
also been applied to employment disputes involving civil servants who had
lost a remote-area allowance which had been added to their salaries as a
bonus (see Vilho Eskelinen, cited above, §§ 40 and 41) or who had been
transferred to another office or post against their will, resulting in a decrease
in salary (see Zalli v. Albania, no. 52531/07, 8 February 2011, and
Ohneberg v. Austria, no. 10781/08, 18 September 2012). Furthermore, in
Bayer v. Germany (no. 8453/04, 16 July 2009), which concerned the
removal from office of a State-employed bailiff following disciplinary
proceedings, the Court held that disputes about “salaries, allowances or
similar entitlements” were only non-exhaustive examples of “ordinary
labour disputes” to which Article 6 should in principle apply under the
Vilho Eskelinen test (ibid., § 38; see also Regner, cited above, § 108).
(ii) Application of these principles to the present case
53. In the light of the above principles, the Government’s argument that
the civil limb of Article 6 § 1 is not applicable for the sole reason that the
applicant’s dispute falls within the field of public law and there is no “civil”
right at stake is not convincing. As shown above, a public-law dispute may
bring the civil limb into play if the private-law aspects predominate over the
public-law ones in view of the direct consequences for a civil pecuniary or
non-pecuniary right. Furthermore, the Court follows the criteria set out in
Vilho Eskelinen and Others and applies a general presumption that such
direct consequences for civil rights exist in “ordinary labour disputes”
involving members of the public service, including judges (ibid., § 62 and
Baka, cited above, § 104).
54. Indeed, the present case concerned an “ordinary labour dispute”
given that it essentially affected (i) the scope of the work which the
18 DENISOV v. UKRAINE JUDGMENT

applicant was required to perform as an employee and (ii) his remuneration

as part of his employment relationship (compare Ohneberg, cited above,
§ 25). Having regard to these two aspects, there is no reason to conclude
that there was no “civil” element in the applicant’s dispute or that such an
element was insufficiently significant to bring the “civil” limb of Article 6
into play.
55. Applying the Vilho Eskelinen test further, it is not disputed that
domestic law provides for access to a court in the case of claims concerning
dismissal from administrative positions in the judiciary. Accordingly,
Article 6 applies under its civil head.
56. It follows that the Government’s preliminary objection as to the
applicability of Article 6 § 1 of the Convention must be dismissed.
57. The Court further notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It is
not inadmissible on any other grounds. It must therefore be declared
admissible.

B. Merits

1. The parties’ submissions

58. The applicant submitted that the HCJ did not constitute an
“independent and impartial tribunal” owing to the manner of its
composition, the subordination of its members to other State bodies and the
lack of objective impartiality and the existence of personal bias on the part
of some of its members. Furthermore, the obligation to provide an
“independent and impartial tribunal” had not been satisfied by the HAC
either.
59. The Government submitted that the requirements of Article 6 § 1
had been met and that there was no indication of bias on the part of the
national authorities. They emphasised that the HAC’s judgment had been
based on the parties’ submissions and had included sufficient reasons.

2. The Court’s assessment

(a) General principles relating to the requirements of an “independent and
impartial tribunal” at the stages of the determination and the review of the
case
60. In determining whether a body could be considered “independent”-in
particular, from the executive and the parties to the case-the Court has in
previous cases had regard to such factors as the manner of appointment of
the body’s members, the duration of their term of office, the existence of
guarantees against outside pressures and the question whether the body
presents an appearance of independence (see Maktouf and Damjanović
DENISOV v. UKRAINE JUDGMENT 19

v. Bosnia and Herzegovina [GC], nos. 2312/08 and 34179/08, § 49, ECHR
2013 (extracts), with further references therein).
61. As a rule, impartiality denotes the absence of prejudice or bias.
According to the Court’s settled case-law, the existence of impartiality for
the purposes of Article 6 § 1 must be determined according to (i) a
subjective test, where regard must be had to the personal conviction and
behaviour of a particular judge – that is, whether the judge held any
personal prejudice or bias in a given case; and (ii) an objective test, that is to
say, by ascertaining whether, quite apart from the personal conduct of any
of its members, the tribunal itself and, among other aspects, its composition,
offered sufficient guarantees to exclude any legitimate doubt in respect of
its impartiality (see, among other authorities, Micallef v. Malta [GC],
no. 17056/06, § 93, ECHR 2009, with further references).
62. However, there is no watertight division between subjective and
objective impartiality, as the conduct of a judge may not only prompt
objectively held misgivings as to the tribunal’s impartiality from the point
of view of the external observer (the objective test) but may also go to the
issue of the judges’ personal conviction (the subjective test) (see Kyprianou
v. Cyprus [GC], no. 73797/01, § 119, ECHR 2005-XIII). Thus, in some
cases where it may be difficult to procure evidence with which to rebut the
presumption of the judge’s subjective impartiality, the requirement of
objective impartiality provides a further important guarantee (see Pullar
v. the United Kingdom, 10 June 1996, § 32, Reports 1996-III).
63. In this respect, even appearances may be of a certain importance, or
in other words, “justice must not only be done, it must also be seen to be
done”. What is at stake is the confidence which the courts in a democratic
society must inspire in the public (see Morice v. France [GC],
no. 29369/10, § 78, ECHR 2015).
64. Finally, the concepts of independence and objective impartiality are
closely linked and, depending on the circumstances, may require joint
examination (see, for example, Cooper v. the United Kingdom [GC],
no. 48843/99, § 104, ECHR 2003-XII).
65. According to the Court’s case-law, even where an adjudicatory body
determining disputes over “civil rights and obligations” does not comply
with Article 6 § 1 in some respect, no violation of the Convention can be
found if the proceedings before that body are “subject to subsequent control
by a judicial body that has full jurisdiction and does provide the guarantees
of Article 6 § 1” (see Albert and Le Compte v. Belgium, 10 February 1983,
§ 29, Series A no. 58, and Tsfayo v. the United Kingdom, no. 60860/00,
§ 42, 14 November 2006).
20 DENISOV v. UKRAINE JUDGMENT

(b) Application of those principles to the present case

(i) Approach to examining the complaint

66. The issue of the applicant’s performance in the position of president
of the Kyiv Administrative Court of Appeal was initially raised by the
Council of Administrative Court Judges, which, having conducted its
inquiry, decided to submit a proposal to the HCJ for the applicant’s
dismissal from his administrative position. The issue was then examined by
the HCJ, which was not bound by the initial proposal from the Council of
Administrative Court Judges. On the contrary, the HCJ was empowered to
carry out its own assessment of the facts, provide its own legal
characterisation of the matter and adopt a binding decision after holding a
hearing and assessing the evidence. In the present case the examination of
the issue by the HCJ ended with a decision to dismiss the applicant and that
decision was executed shortly after its adoption (see paragraph 20 above).
Subsequently, following its execution, the decision of the HCJ was
reviewed by the HAC.
67. The above-mentioned features of the domestic proceedings suggest
that the Council of Administrative Court Judges played a preliminary
investigative role in the case. This part of the case is not being challenged
by the applicant, who focuses his complaint on the alleged unfairness of the
proceedings before the HCJ and the HAC and the lack of a “sufficient
review” by the latter. In these circumstances the Court must examine
whether the HCJ and the HAC satisfied the requirements of Article 6 § 1 of
the Convention. However, if the HCJ did not meet those requirements, an
issue under Article 6 would arise only if the HAC failed to provide a
“sufficient review” in compliance with Article 6 (compare Le Compte,
Van Leuven and De Meyere, cited above, §§ 51 and 54, and
Oleksandr Volkov, cited above, §§ 108, 123 and 130). Accordingly, in the
present case the Court is called upon to examine firstly whether the
requirements of an “independent and impartial tribunal” were complied with
by the HCJ. Secondly, if those requirements were not satisfied at that stage,
it is necessary to determine whether the review of the case by the HAC was
“sufficient” to remedy the shortcomings identified. Thirdly, it has to be
established whether the HAC itself complied with the requirements of
independence and impartiality.
(ii) Proceedings before the HCJ
68. In its Oleksandr Volkov judgment (cited above) the Court set out a
number of criteria for examining whether the HCJ as a disciplinary body of
judges complied with the requirements of independence and impartiality. In
doing so, the Court relied on its previous case-law and took into account
relevant international texts, notably the opinions and recommendations of
other bodies of the Council of Europe. First, it emphasised the need for
DENISOV v. UKRAINE JUDGMENT 21

substantial representation of judges within such a body, specifying that

where at least half of the membership of a tribunal was composed of judges,
including the chairman with a casting vote, this would be a strong indicator
of impartiality (ibid., § 109). Second, in view of the importance of reducing
the influence of political organs on the composition of the disciplinary
body, it was relevant to assess the manner in which judges were appointed
to that body, having regard to the authorities which delegated them and the
role of the judicial community in that process (ibid., § 112). Third, it was
relevant to establish whether the members of the disciplinary body worked
on a full-time basis or continued to work and receive a salary outside; given
that the latter case would inevitably involve their material, hierarchical and
administrative dependence on their primary employers, this would endanger
their independence and impartiality (ibid., § 113). Fourth, attention had to
be paid to the participation of representatives of the prosecution authorities
in the composition of the disciplinary body for judges; the inclusion of the
Prosecutor General ex officio and the other members delegated by the
prosecution authorities raised concerns as to the impartiality of the
disciplinary body of judges in view of the functional role of prosecutors in
domestic judicial proceedings (ibid., § 114). Fifth, where the members of
the disciplinary body played a role in the preliminary inquiry in a
disciplinary case and subsequently participated in the determination of the
same case by the disciplinary body, such a duplication of functions could
cast objective doubt on the impartiality of those members (ibid., § 115).
69. The Court found in Oleksandr Volkov that the composition of the
HCJ, as provided for by the Constitution, had disclosed a number of
structural shortcomings which had compromised the requirements of
independence and impartiality. Under these constitutional rules, the majority
of the HCJ had consisted of non-judicial staff appointed directly by the
executive and the legislative authorities, with the Minister of Justice and the
Prosecutor General being ex officio members. The decision to dismiss the
applicant in Oleksandr Volkov had been taken by sixteen members of the
HCJ, only three of whom were judges. Furthermore, only four out of the
twenty members of the HCJ worked there on a full-time basis, while the
other members continued to work and receive a salary outside the HCJ. The
membership and presence of the Prosecutor General and other
representatives of the prosecution system within the HCJ raised further
concerns in terms of impartiality, given the functional role of the
prosecutor’s office in domestic court proceedings. Moreover, there were
two members of the HCJ who had brought disciplinary charges against the
applicant, based on the results of their own preliminary inquiries, and
subsequently decided on the merits of his case (ibid., §§ 110-15).
70. Those findings are entirely pertinent to the present application. The
HCJ was formed and functioned under the same constitutional rules as in
Oleksandr Volkov. Therefore, the same concerns arise as regards the
22 DENISOV v. UKRAINE JUDGMENT

compliance of the proceedings before the HCJ with the standards of

independence and impartiality. The applicant’s case was heard and
determined by eighteen members of the HCJ, of whom only eight were
judges. The non-judicial members therefore constituted a majority capable
of determining the outcome of the proceedings. Moreover, there remained
issues both with the manner in which the judicial members were delegated
to the HCJ by the executive and legislative authorities, limiting the number
of judges in the HCJ elected by their peers, and also with the fact that the
majority of the HCJ’s members were not employed there full time and that
the Prosecutor General was a member.
71. Furthermore, as regards the applicant’s allegations, set out in detail
before the Court, that certain members of the HCJ had shown personal bias
in his case, it cannot be overlooked that Judge K., who was a member of the
HCJ, had initially, in his capacity as chairman of the Council of
Administrative Court Judges, played a role in the preliminary inquiry of the
applicant’s case and in making the proposal to the HCJ for his dismissal
(see paragraphs 15 and 18 above). This preliminary involvement cast
objective doubt on Judge K.’s impartiality when he subsequently took part
in the decision of the HCJ on the merits of the applicant’s case (compare
Oleksandr Volkov, cited above, § 115; Poposki and Duma v. the former
Yugoslav Republic of Macedonia, nos. 69916/10 and 36531/11, § 48,
7 January 2016; and Sturua, cited above, § 35).
72. The above considerations are sufficient for the Court to conclude
that the proceedings before the HCJ lacked the guarantees of independence
and impartiality in view of the structural deficiencies and the appearance of
personal bias.
(iii) Whether the examination by the HAC provided a sufficient review
73. In order to determine firstly whether a second-level tribunal had “full
jurisdiction”, or provided “sufficiency of review” to remedy a lack of
independence and impartiality at first instance, the Court has considered that
it is necessary to have regard to such factors as the subject matter of the
decision appealed against, the manner in which that decision was arrived at
and the content of the dispute, including the desired and actual grounds of
appeal (see Bryan v. the United Kingdom, 22 November 1995, §§ 44-47,
Series A no. 335-A, and Tsfayo, cited above, § 43).
74. In Oleksandr Volkov the Court specifically found that the HAC had
not provided a sufficient review of a case concerning a judge’s dismissal
from office. Firstly, the Court observed that the HAC had powers to declare
the impugned decisions unlawful, but that it was unable to quash them and
take any further appropriate steps if deemed necessary. Even though no
legal consequences arose from a decision being declared unlawful, the
HAC’s inability to quash the impugned decision, together with the absence
of rules as to the further progress of the disciplinary proceedings (in
DENISOV v. UKRAINE JUDGMENT 23

particular, the steps that had to be taken by the authorities involved after the
impugned decisions had been declared unlawful and the time-limits for
those steps to be taken), produced serious uncertainty about the real legal
consequences of such judicial declarations. Judicial practice suggested,
moreover, that there was no automatic reinstatement in the event of a
positive declaration by the HAC, because the judges concerned had to
institute new proceedings for reinstatement (ibid., §§ 125 and 126). The
Court also examined the manner and the actual scope of the HAC’s review
and concluded that these were likewise inappropriate to provide a
“sufficient review” (ibid., §§ 127 and 128).
75. The above considerations are equally pertinent to the present case. In
reviewing the HCJ’s decision, which had immediate effect, the HAC was
acting within the same legal framework with the same limited powers and
uncertainties as to the eventual legal consequences.
76. Moreover, looking into the content of the dispute at stake in the
present case, there are serious mismatches between the advanced and actual
grounds of review. Firstly, in its decision the HAC considered that the
applicant had not contested the facts forming the grounds for his dismissal
and therefore those facts were taken as established. This conclusion is not
consistent with the grounds of the applicant’s claim before the HAC, in
which he clearly contested those facts. The applicant argued in particular
that the findings of the HCJ were too general and that in order to
substantiate its conclusions the HCJ should have referred to the specific
circumstances and their time frame.
77. Secondly, the HAC made no genuine attempt to examine another
important argument by the applicant alleging a lack of independence and
impartiality in the proceedings before the HCJ (see paragraph 21 above).
Having mentioned its competence to review whether the impugned decision
had been taken in a manner compatible with a number of criteria, notably
the requirement of impartiality, the HAC reached a general conclusion that
the HCJ had not violated the Constitution or the laws of Ukraine. However,
the HAC failed to assess whether the proceedings before the HCJ had
complied with the principles of independence and impartiality. It provided
no reasons in that regard.
78. Therefore, the review of the applicant’s case by the HAC was not
sufficient. Accordingly, it was unable to remedy the defects regarding
procedural fairness resulting from the proceedings before the HCJ.
(iv) Whether the HAC complied with standards of independence and impartiality
79. As to the guarantees of independence and impartiality under
Article 6 § 1 to be provided by the reviewing judicial body, such a review
was performed in the present case by the judges of the HAC, who were also
under the disciplinary jurisdiction of the HCJ. This means that those judges
could also be the subject of disciplinary proceedings before the HCJ. The
24 DENISOV v. UKRAINE JUDGMENT

fact that judges of the HAC were subject to disciplinary law and were bound
by rules of judicial discipline and ethics is not in itself a reason to put in
doubt their independence and impartiality in relation to the authority
empowered to implement disciplinary rules. The question of compliance
with the fundamental guarantees of independence and impartiality may
arise, however, if the structure and functioning of the disciplinary body
raises serious issues in this regard. The present case does indeed disclose
serious issues of this kind on the part of the HCJ, in particular structural
deficiencies and the appearance of personal bias (see paragraphs 70-72
above). Secondly, the HCJ was not merely a disciplinary authority; it was in
reality an authority with extensive powers with respect to the careers of
judges (appointment, disciplining and dismissal). On the basis of those
factors and having regard to the specific context of the Ukrainian system at
the time, the Court, in the light of Oleksandr Volkov (cited above, § 130),
finds that the judges of the HAC considering the applicant’s case, in which
the HCJ participated, were not able to demonstrate the “independence and
impartiality” required by Article 6 of the Convention.
80. It follows that the judicial review by the HAC in the present case did
not comply with the requirement of independence and impartiality.
(v) Conclusion
81. Accordingly, the HCJ failed to ensure an independent and impartial
examination of the applicant’s case, and the subsequent review of his case
by the HAC did not put those defects right.
82. There has therefore been a violation of Article 6 § 1 of the
Convention.

II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

83. The applicant complained under Article 8 of the Convention that his
right to respect for his private life had been violated by his dismissal from
the position of president of the Kyiv Administrative Court of Appeal.
84. The relevant parts of Article 8 of the Convention provide as follows:
“1. Everyone has the right to respect for his private ... life ...
2. There shall be no interference by a public authority with the exercise of this
right except such as is in accordance with the law and is necessary in a democratic
society in the interests of national security, public safety or the economic well-being
of the country, for the prevention of disorder or crime, for the protection of health or
morals, or for the protection of the rights and freedoms of others.”
DENISOV v. UKRAINE JUDGMENT 25

A. The parties’ submissions

1. The applicant
85. The applicant submitted that his right to respect for his private life
was engaged because his career, reputation and social and professional
relationships had been irreparably damaged. Furthermore, his material well-
being had been affected given the reduction in his salary and in the
prospective pension benefits. In support of his contention, the applicant
relied on Erményi v. Hungary (no. 22254/14, §§ 30 and 31, 22 November
2016), in which the termination of the applicant’s mandate as
Vice-President of the Supreme Court was found to have interfered with his
right to respect for his private life.
86. As regards reputation, the applicant argued that the position of
president of a court of appeal was prestigious and powerful. As he had
occupied positions as president of several courts over a period of twenty-
five years, the position from which he had been dismissed represented the
apex of his legal career and the culmination of decades of personal
dedication and professional commitment. His dismissal from that position
had damaged his peers’ perceptions of his personal authority and
competence. Furthermore, the reason for his dismissal, namely breaches of
laws relating to the organisation of the justice process, had affected his
professional standing generally and his future career and promotion
prospects. This was particularly relevant in view of the fact that the
information about his dismissal had been widely disseminated. In the
context of his allegation of serious damage to his reputation, the applicant
contended that the interests of his children as trained lawyers had been
affected by his wrongful dismissal.
87. The applicant further submitted, as to the merits of his complaint,
that the interference with his right to respect for his private life had not been
“in accordance with the law” as the applicable law was too vague and did
not provide for procedural safeguards to prevent its arbitrary application. He
then submitted that his dismissal had been disproportionate in the
circumstances as the manner in which he had been dismissed had not given
him any opportunity to remedy his alleged managerial failings.

2. The Government
88. The Government submitted that the right to exercise administrative
functions in a court did not fall within the ambit of Article 8 of the
Convention. In contrast to the cases of Oleksandr Volkov (cited above) and
Özpınar v. Turkey (no. 20999/04, 19 October 2010), the applicant in the
present case had not been removed from judicial office. Given this
important distinction, the complaint was incompatible ratione materiae with
the Convention.
26 DENISOV v. UKRAINE JUDGMENT

89. The Government further contended that even assuming that Article 8
was applicable, the applicant’s removal from his administrative position had
had very little impact on his private life. The applicant had probably
changed office in the same court building and had received a slightly lower
salary. Therefore, he had not suffered a “significant disadvantage” and the
complaint had to be declared inadmissible under Article 35 §§ 3 (b) and 4 of
the Convention.
90. As to the merits, the Government submitted that, unlike in the case
of Oleksandr Volkov, the applicable domestic law had been sufficiently
clear and foreseeable as to its application; the interference had pursued the
legitimate aims of public safety, the economic well-being of the country, the
prevention of disorder or crime and the protection of the rights of others.
They submitted that the applicant’s operational failings had threatened the
proper administration of justice in the Kyiv Administrative Court of Appeal,
which covered several regions of the country. The interference had been
necessary in the circumstances in order to achieve the above-mentioned
legitimate aims.

B. The third-party intervener

91. The third party submitted that the issue of the applicability of Article
8 of the Convention had to be determined with regard to the fact that the
position of court president always implied a leadership role in the judiciary
and that removal from that position engaged the individual’s private life. In
particular, such removal affected the professional relationships of the
individual concerned, as well as his reputation and standing.

C. The Court’s assessment

Admissibility
(a) Preliminary remarks
92. The Court notes that the present case concerns an employment-
related dispute between an individual and a State. The decision to dismiss
the applicant was taken by a State authority. In the assessment of whether or
not a private-life issue under Article 8 of the Convention is raised in such a
case, there is a strong tie between the questions of applicability and the
merits. Once a measure is found to have seriously affected the applicant’s
private life, that conclusion means that the complaint is compatible ratione
materiae with the Convention and, at the same time, that the measure
constituted an “interference” with the “right to respect for private life” for
the purpose of the three-limb merits test under Article 8 (assessment of the
lawfulness, the legitimate aim and the necessity of such “interference”).
DENISOV v. UKRAINE JUDGMENT 27

Therefore, the questions of applicability and the existence of “interference”

are inextricably linked in these categories of complaints.
93. In previous cases the Court has taken up this matter either at the
stage of admissibility (see, for example, Bigaeva v. Greece, no. 26713/05,
§§ 22-25, 28 May 2009; Gillberg v. Sweden [GC], no. 41723/06, §§ 64-74,
3 April 2012; and Fernández Martínez v. Spain [GC], no. 56030/07,
§§ 109-13, ECHR 2014 (extracts)) or at the stage of the merits (see
Sidabras and Džiautas v. Lithuania, nos. 55480/00 and 59330/00, §§ 42-50,
ECHR 2004-VIII; Campagnano v. Italy, no. 77955/01, §§ 53 and 54, ECHR
2006-IV; Özpınar, cited above, §§ 43-48; Sodan v. Turkey, no. 18650/05,
§§ 43-50, 2 February 2016; and Şahin Kuş v. Turkey, no. 33160/04,
§§ 34-37, 7 June 2016). This divergent practice cannot be justified in terms
of consistency. As the question of applicability is an issue of the Court’s
jurisdiction ratione materiae, the general rule of dealing with applications
should be respected and the relevant analysis should be carried out at the
admissibility stage unless there is a particular reason to join this question to
the merits. No such particular reason exists in the present case and the issue
of the applicability of Article 8 falls to be examined at the admissibility
stage.
94. The Court therefore has to examine whether Article 8 of the
Convention is applicable to the present case, and accordingly whether it has
jurisdiction ratione materiae to examine the relevant complaint on the
merits.
(b) General principles

(i) “Private life” as a broad term

95. The concept of “private life” is a broad term not susceptible to
exhaustive definition. It covers the physical and psychological integrity of a
person. It can therefore embrace multiple aspects of the person’s physical
and social identity. Article 8 protects in addition a right to personal
development, and the right to establish and develop relationships with other
human beings and the outside world (see S. and Marper v. the United
Kingdom [GC], nos. 30562/04 and 30566/04, § 66, ECHR 2008; Gillberg,
cited above, § 66; and Bărbulescu v. Romania [GC], no. 61496/08, § 70,
ECHR 2017 (extracts), with further references therein).
96. Therefore, it would be too restrictive to limit the notion of “private
life” to an “inner circle” in which the individual may live his own personal
life as he chooses and to exclude therefrom entirely the outside world not
encompassed within that circle (see Fernández Martínez, cited above,
§ 109).
28 DENISOV v. UKRAINE JUDGMENT

(ii) Right to respect for reputation

97. Alongside this development in the case-law, the Court has been
called upon to determine whether the notion of “private life” should cover a
right to respect for reputation, which is not expressly mentioned in
Article 8. In Pfeifer v. Austria (no. 12556/03, § 35, 15 November 2007) the
Court, having regard to its case-law, found that a person’s reputation, even
if that person was criticised in the context of a public debate, formed part of
his or her personal identity and psychological integrity and therefore also
fell within the scope of his or her “private life”.
98. However, it is important to stress that Article 8 cannot be relied on in
order to complain of a loss of reputation which is the foreseeable
consequence of one’s own actions, such as, for example, the commission of
a criminal offence (see Sidabras and Džiautas, cited above, § 49, and
Axel Springer AG v. Germany [GC], no. 39954/08, § 83, 7 February 2012).
In Gillberg (cited above) the Grand Chamber did not limit this rule to
reputational damage and expanded it to a wider principle that any personal,
social, psychological and economic suffering could be foreseeable
consequences of the commission of a criminal offence and could not
therefore be relied on in order to complain that a criminal conviction in
itself amounted to an interference with the right to respect for “private life”
(ibid., § 68). This extended principle should cover not only criminal
offences but also other misconduct entailing a measure of legal
responsibility with foreseeable negative effects on “private life”.
99. On the basis of this case-law, the Court has applied Article 8 to the
exercise of professional functions in a number of cases.
(iii) “Private life” in employment-related scenarios
100. Whereas no general right to employment, nor a right of access to
the civil service or a right to choose a particular profession, can be derived
from Article 8, the notion of “private life”, as a broad term, does not
exclude in principle activities of a professional or business nature. It is, after
all, in the course of their working lives that the majority of people have a
significant opportunity to develop relationships with the outside world (see
Niemietz v. Germany, 16 December 1992, § 29, Series A no. 251-B;
Oleksandr Volkov, cited above, § 165; and Bărbulescu, cited above, § 71).
Professional life is therefore part of the zone of interaction between a person
and others which, even in a public context, may, under certain
circumstances, fall within the scope of “private life” (see
Fernández Martínez, cited above, § 110).
101. Within the employment-related scenarios involving Article 8, the
Court has dealt with different types of cases. In particular, it has dealt with
discharge from military service (see Smith and Grady v. the United
Kingdom, nos. 33985/96 and 33986/96, ECHR 1999-VI), dismissal from
judicial office (see Özpınar, cited above; Oleksandr Volkov, cited above;
DENISOV v. UKRAINE JUDGMENT 29

and Kulykov and Others, cited above), removal from administrative

functions in the judiciary (see Erményi, cited above), and transfers between
posts in the public service (see Sodan, cited above). Other types of cases
have concerned restrictions on access to employment in the public service
(see Naidin v. Romania, no. 38162/07, 21 October 2014), loss of
employment outside the public service (see Obst v. Germany, no. 425/03,
23 September 2010; Schüth v. Germany, no. 1620/03, ECHR 2010;
Fernández Martínez, cited above; Şahin Kuş, cited above; and Bărbulescu,
cited above), and restrictions on access to a profession in the private sector
(see Sidabras and Džiautas, cited above; Campagnano, cited above; and
Bigaeva, cited above).
102. In the cases falling into the above-mentioned category, the Court
applies the concept of “private life” on the basis of two different
approaches: (α) identification of the “private life” issue as the reason for the
dispute (reason-based approach) and (β) deriving the “private life” issue
from the consequences of the impugned measure (consequence-based
approach).
(α) Reason-based approach
103. Complaints concerning the exercise of professional functions have
been found to fall within the ambit of “private life” when factors relating to
private life were regarded as qualifying criteria for the function in question
and when the impugned measure was based on reasons encroaching upon
the individual’s freedom of choice in the sphere of private life.
104. Thus, in the area of public service, where measures taken by State
authorities were contested, the Court has found, for example, that
investigations by the military police into the applicants’ homosexuality and
their consequent administrative discharge on the sole ground of their sexual
orientation directly interfered with their right to respect for private life
(see Smith and Grady, cited above, § 71). In Özpınar (cited above),
proceedings for the applicant’s dismissal as a judge fell under Article 8 of
the Convention because they concerned not only her professional
performance but also targeted aspects of her private life, in particular her
close private relationships, the clothes and make-up she wore and the fact
that she lived separately from her mother (ibid., §§ 43 and 47). In another
case the applicant’s transfer to a less important post within the public
service raised an issue under “private life” given that such a measure
amounted to a disguised penalty and had been prompted by reasons relating
to the applicant’s beliefs and his wife’s clothing (see Sodan, cited above,
§§ 47-49).
105. The Court has applied similar logic from the standpoint of the
positive obligations to carry out a careful balancing exercise between the
private interests of employees and those of a non-governmental employer
when the reasons for the dismissal related directly to the applicants’ conduct
30 DENISOV v. UKRAINE JUDGMENT

in their private life, such as an extramarital relationship (see Obst, cited

above, §§ 43 et seq.) or living with a new partner after separation (see
Schüth, cited above, §§ 57 et seq.). Where a private company dismissed an
employee on the basis of monitoring of his correspondence by his employer
in the workplace, such a measure fell within the ambit of Article 8 in so far
as it concerned the “correspondence” and because it encroached upon the
reasonable possibility of enjoying any “private life” in the workplace (see
Bărbulescu, cited above, §§ 81 and 127).
106. As can be seen from these examples, the underlying reasons for the
impugned measure affecting professional life may be linked to the
individual’s private life and these reasons themselves may render Article 8
applicable.
(β) Consequence-based approach
107. When the reasons for imposing a measure affecting an individual’s
professional life are not linked to the individual’s private life, an issue under
Article 8 may still arise in so far as the impugned measure has or may have
serious negative effects on the individual’s private life. In this connection
the Court has taken into account negative consequences as regards
(i) impact on the individual’s “inner circle”, in particular where there are
serious material consequences, (ii) the individual’s opportunities “to
establish and develop relationships with others”, and (iii) the impact on the
individual’s reputation.
108. On the basis of that approach, the Court has found that the
dismissal of a judge on the grounds of a violation of his professional duties
amounting to a breach of the judicial oath affected a wide range of his
professional and other relationships. The dismissal also had a negative
impact on the applicant’s “inner circle” in view of his loss of earnings, and
it also affected his reputation (see Oleksandr Volkov, cited above, § 166).
The refusal to allow an applicant who was a foreigner to sit for the Bar
examinations in Greece fell within the scope of Article 8 because it affected
her personal choice as to the way she wished to pursue her professional and
private life (see Bigaeva, cited above, §§ 24 and 25). The entry of an
applicant’s name in the bankruptcy register entailed a series of legal
restrictions on the exercise of her professional activities and civil rights. It
therefore affected the applicant’s opportunities to develop relationships with
the outside world and fell within the sphere of her private life (see
Campagnano, cited above, § 54). A far-reaching ban on taking up private-
sector employment has also been found to affect “private life” (see Sidabras
and Džiautas, cited above, § 47).
109. Where no reason-based approach justifies the applicability of
Article 8, an analysis of the effects of the impugned measure on the above-
mentioned aspects of private life is necessary to conclude that the complaint
falls within the scope of “private life”. Nevertheless, this division does not
DENISOV v. UKRAINE JUDGMENT 31

preclude cases in which the Court may find it appropriate to employ both
approaches in combination, examining whether there is a private-life issue
in the underpinning reasons for the impugned measure and, in addition,
analysing the consequences of the measure (see Fernández Martínez, cited
above, §§ 110-12).
(iv) Minimum level of severity of the alleged violation
110. In cases where the Court employs the consequence-based approach,
the analysis of the seriousness of the impugned measure’s effects occupies
an important place. The Court has addressed the issue of the seriousness or
severity of the alleged violation in several contexts. Notably, it has done so
when assessing the “significant disadvantage” under Article 35 § 3 (b) of
the Convention as an explicit admissibility requirement for the whole
system of the Convention rights (see, for example, Giusti v. Italy,
no. 13175/03, § 34, 18 October 2011; Gagliano Giorgi v. Italy,
no. 23563/07, § 56, ECHR 2012 (extracts); and El Kaada v. Germany,
no. 2130/10, § 41, 12 November 2015). The Court has also consistently
applied a threshold of severity in cases concerning Article 3 of the
Convention (see, for example, Jalloh v. Germany [GC], no. 54810/00, § 67,
ECHR 2006-IX; Gäfgen v. Germany [GC], no. 22978/05, § 88, ECHR
2010; and Bouyid v. Belgium [GC], no. 23380/09, § 86, ECHR 2015).
111. The concept of threshold of severity has been specifically examined
under Article 8. In environmental cases, in particular, an arguable claim
under Article 8 may arise where an environmental hazard attains a level of
severity resulting in significant impairment of the applicant’s ability to
enjoy his or her home or private or family life. The Court has ruled that the
assessment of this minimum level in such cases is relative and depends on
all the circumstances of the case, such as the intensity and duration of the
nuisance and its physical or mental effects on the individual’s health or
quality of life (see Fadeyeva v. Russia, no. 55723/00, §§ 68 and 69, ECHR
2005-IV; Dubetska and Others v. Ukraine, no. 30499/03, § 105,
10 February 2011; and Grimkovskaya v. Ukraine, no. 38182/03, § 58,
21 July 2011). This approach has also been applied in nuisance cases under
Article 8 with close similarities to the environmental cases mentioned above
(see Borysiewicz v. Poland, no. 71146/01, § 51, 1 July 2008, and Udovičić
v. Croatia, no. 27310/09, § 137, 24 April 2014).
112. In addition, the Court has ruled that an attack on a person’s
reputation must attain a certain level of seriousness and be made in a
manner causing prejudice to personal enjoyment of the right to respect for
private life (see A. v. Norway, no. 28070/06, §§ 63-64, 9 April 2009;
Polanco Torres and Movilla Polanco v. Spain, no. 34147/06, §§ 40 and 44,
21 September 2010; Axel Springer AG, cited above, § 83; Delfi AS
v. Estonia [GC], no. 64569/09, § 137, ECHR 2015; and Bédat
v. Switzerland [GC], no. 56925/08, § 72, ECHR 2016). This requirement
32 DENISOV v. UKRAINE JUDGMENT

covers social reputation in general as well as professional reputation in

particular (for the latter, see Medžlis Islamske Zajednice Brčko and Others
v. Bosnia and Herzegovina [GC], nos. 17224/11, §§ 76 and 105-06, ECHR
2017).
113. In the recent case of Erményi the Court found that the applicant’s
dismissal from the administrative position of Vice-President of the Supreme
Court constituted an interference with his right to respect for private life
(see Erményi, cited above, § 31). Even though the Court did not elaborate
on this point, in the absence of the parties’ submissions in that regard, it
implied that the impugned measure had seriously affected the applicant’s
private life. That finding cannot be read as presuming that the applicant’s
dismissal had “automatically” generated an issue in the sphere of private
life. In that regard the Court reiterates that the threshold of severity occupies
an important place in cases where the existence of a private-life issue is
examined according to the consequence-based approach.
114. It is thus an intrinsic feature of the consequence-based approach
within Article 8 that convincing evidence showing that the threshold of
severity was attained has to be submitted by the applicant. As the Grand
Chamber has held, applicants are obliged to identify and explain the
concrete repercussions on their private life and the nature and extent of their
suffering, and to substantiate such allegations in a proper way (see Gillberg,
cited above, §§ 70-73). According to the requirement of exhaustion of
domestic remedies, such allegations have to be sufficiently raised at the
domestic level.
(v) Conclusions: the scope of Article 8 in employment-related disputes
115. The Court concludes from the above case-law that employment-
related disputes are not per se excluded from the scope of “private life”
within the meaning of Article 8 of the Convention. There are some typical
aspects of private life which may be affected in such disputes by dismissal,
demotion, non-admission to a profession or other similarly unfavourable
measures. These aspects include (i) the applicant’s “inner circle”, (ii) the
applicant’s opportunity to establish and develop relationships with others,
and (iii) the applicant’s social and professional reputation. There are two
ways in which a private-life issue would usually arise in such a dispute:
either because of the underlying reasons for the impugned measure (in that
event the Court employs the reason-based approach) or – in certain cases –
because of the consequences for private life (in that event the Court employs
the consequence-based approach).
116. If the consequence-based approach is at stake, the threshold of
severity with respect to all the above-mentioned aspects assumes crucial
importance. It is for the applicant to show convincingly that the threshold
was attained in his or her case. The applicant has to present evidence
substantiating consequences of the impugned measure. The Court will only
DENISOV v. UKRAINE JUDGMENT 33

accept that Article 8 is applicable where these consequences are very

serious and affect his or her private life to a very significant degree.
117. The Court has established criteria for assessing the severity or
seriousness of alleged violations in different regulatory contexts. An
applicant’s suffering is to be assessed by comparing his or her life before
and after the measure in question. The Court further considers that in
determining the seriousness of the consequences in employment-related
cases it is appropriate to assess the subjective perceptions claimed by the
applicant against the background of the objective circumstances existing in
the particular case. This analysis would have to cover both the material and
the non-material impact of the alleged measure. However, it remains for the
applicant to define and substantiate the nature and extent of his or her
suffering, which should have a causal connection with the impugned
measure. Having regard to the rule of exhaustion of domestic remedies, the
essential elements of such allegations must be sufficiently raised before the
domestic authorities dealing with the matter.
(c) Application of the general principles to the present case
118. In the present case the Court is required to answer the question
whether the applicant’s dismissal from the position of president of a court of
appeal, without his removal from the post of judge, affected his private life,
thus rendering Article 8 applicable.
119. The Court will first examine the way in which a private-life issue
could arise in the present employment dispute: whether because of the
underlying reasons for the applicant’s dismissal or because of the
consequences for his private life.
120. The explicit reasons for the applicant’s dismissal from the position
of president of the Kyiv Administrative Court of Appeal were strictly
limited to his performance in the public arena, namely his alleged
managerial failings, which were said to undermine the proper functioning of
the court. Those reasons related only to the applicant’s administrative tasks
in the workplace and had no connection to his private life. In the absence of
any such issues in the reasons given for his dismissal, it has to be
determined whether, according to the evidence and the substantiated
allegations put forward by the applicant, the measure had serious negative
consequences for the aspects constituting his “private life”, namely (i) his
“inner circle”, (ii) his opportunities to establish and develop relationships
with others, or (iii) his reputation.
121. When it comes to the consequences of the applicant’s dismissal, the
first question which arises is whether there can be any scope for an issue
under Article 8 in the light of the Gillberg exclusionary principle (see
paragraph 98 above). According to that principle, where the negative effects
complained of are limited to the consequences of the unlawful conduct
which were foreseeable by the applicant, Article 8 cannot be relied upon to
34 DENISOV v. UKRAINE JUDGMENT

allege that such negative effects encroach upon private life. It has to be
noted that in Gillberg the fact of the applicant’s unlawful conduct was
largely undisputed (see Gillberg, cited above, § 71), whereas in the present
case the applicant contested the very existence of any misconduct, thus
implying that the measure involving his legal liability – his dismissal –
could not have been a foreseeable consequence of his conduct in the
position of president of a court of appeal. In these circumstances the present
case is distinguishable from Gillberg and the Court cannot follow this
approach.
122. As to the consequences of the applicant’s dismissal for his “inner
circle”, he contended that his removal had resulted in a reduction in his
salary and in his prospective pension benefits. This argument has to be
viewed as relating to the worsening of the material well-being of the
applicant and his family. Even though the pecuniary element of the dispute
has been considered significant for the purpose of the applicability of
Article 6 under its civil head, this conclusion does not automatically bring
the issue within the scope of Article 8 of the Convention. In the present case
the applicant has not provided any evidence to suggest that the ensuing
reduction in his monthly remuneration (see paragraph 22 above) seriously
affected the “inner circle” of his private life. In the absence of such
evidence, it would be speculative to assume the contrary. There are no other
indications that the “inner circle” of the applicant’s private life was affected
by the impugned measure.
123. As to establishing and maintaining relationships with others, the
applicant’s dismissal from the position of president of the Kyiv
Administrative Court of Appeal did not result in his removal from his
profession. He continued to work as an ordinary judge and he remained at
the same court alongside his colleagues. The applicant did not put forward
any other allegations in this respect. It follows that, even if his opportunities
to establish and maintain relationships, including those of a professional
nature, might have been affected, there are no factual grounds for
concluding that such effects were substantial. After all, it appears
inappropriate to measure the extent and quality of relationships in private
life in terms of administrative positions and roles.
124. The question remains whether or not the impugned measure
encroached upon the applicant’s reputation in such a way that it seriously
affected his esteem among others, with the result that it has a serious impact
on his interaction with society. The Court will look at this issue in terms of
professional and social reputation.
125. As regards the applicant’s professional reputation, the Court notes
that his principal professional function was that of a judge. The profession
of judge required him to possess specific knowledge, educational
qualifications, skills and experience. In recompense for his service in this
capacity, the applicant was paid the predominant part of his salary. At the
DENISOV v. UKRAINE JUDGMENT 35

same time, the successful performance of a presidential or administrative

function in a court is not, strictly speaking, a characteristic of the judicial
profession. Therefore, in objective terms, the judicial function constituted
the applicant’s fundamental professional role. His position as president of a
court, however important and prestigious it might be in the judicial sphere
and however it might have been subjectively perceived and valued by the
applicant, did not relate to the principal sphere of his professional activity.
126. In the proceedings at issue, at no point did the domestic authorities
examine the applicant’s performance as a judge or express any opinion as to
his judicial competence and professionalism. The decisions in the
applicant’s case concerned only his managerial skills, while his professional
role as a judge was not touched upon. This limited area of scrutiny and
criticism cannot be regarded as relating to the core of the applicant’s
professional reputation. In that regard the present case differs in substance
from Oleksandr Volkov (cited above), in which the applicant was criticised
and received a disciplinary sanction for his performance as a judge.
127. Next, the Court takes note of the applicant’s argument that, after he
had occupied positions as president of a court over a period of
twenty-five years, the position of president of the Kyiv Administrative
Court of Appeal had represented the apex of his legal career and his
dismissal had undermined his peers’ opinion of his competence. However,
the applicant did not specify how this alleged loss of esteem, even assuming
that it affected the core of his professional reputation, had caused him
serious prejudice in his professional environment. In any event, the Court
does not have sufficient material to conclude that the alleged loss of esteem
reached the high degree of seriousness required by Article 8 of the
Convention, as discussed in paragraphs 116 and 117 above.
128. In particular, the applicant did not substantiate how his dismissal
from his position had affected his further career as a judge. The Court notes
that the applicant’s dismissal did not preclude his reappointment, even
though this latter consideration may have been purely theoretical, because
of his advanced age. In any event, the measure did not have a significant
effect as to its duration because it was limited by the applicant’s remaining
period of service in the judiciary before he was due to reach the retirement
age, about two years later (see Article 125 of the Constitution cited in
paragraph 26 above).
129. As regards social reputation in general, the criticism by the
authorities did not affect a wider ethical aspect of the applicant’s personality
and character. Even though the applicant’s dismissal was based on the
findings of breaches of official duties in the administration of justice, it did
not contain any accusation of intentional misconduct or criminal behaviour.
The applicant’s moral values were not called into question and no
reproaches of this nature can be identified in the impugned decisions
36 DENISOV v. UKRAINE JUDGMENT

(contrast Lekavičienė v. Lithuania, no. 48427/09, 27 June 2017, and

Jankauskas v. Lithuania (no. 2), no. 50446/09, 27 June 2017).
130. The applicant’s contention that the decision on his dismissal had
been disseminated in the mass media and had become known to an
unidentified number of persons cannot, as such, demonstrate substantial
damage to his professional and social reputation. Moreover, the applicant
failed to substantiate this allegation by providing specific details concerning
the persons responsible for publishing such information, the coverage it
received and its impact.
131. Finally, there is no support in the file for the applicant’s allegation
that the damage to his reputation was serious in view of the harm caused to
the interests of his children and that this harm negatively affected his private
life. This allegation has not been raised at domestic level and it has not been
substantiated in the proceedings before the Court.
132. The applicant did not put forward, either before the Court or in the
domestic proceedings, any other specific personal circumstances indicating
that the measure had had a serious impact on his private life.
133. Accordingly, measuring the applicant’s subjective perceptions
against the objective background and assessing the material and
non-material impact of his dismissal on the basis of the evidence presented
before the Court, it has to be concluded that the dismissal had limited
negative effects on the applicant’s private life and did not cross the
threshold of seriousness for an issue to be raised under Article 8 of the
Convention.
134. Given that neither the reasons for the applicant’s dismissal were
linked to nor that the consequences of that measure affected his “private
life” within the meaning of Article 8, the Court finds that this Article is not
applicable. The Government’s objection in this respect should therefore be
upheld and the complaint must be dismissed as incompatible ratione
materiae with the Convention pursuant to Article 35 §§ 3 (a) and 4. In the
light of this conclusion, it is not necessary to rule on the Government’s
second objection, based on Article 35 § 3 (b) of the Convention.

III. ALLEGED VIOLATIONS OF ARTICLE 18 OF THE CONVENTION

AND ARTICLE 1 OF PROTOCOL No. 1

135. The applicant asserted before the Grand Chamber that his dismissal
from the position of president of the Kyiv Administrative Court of Appeal
had pursued ulterior political purposes, in breach of Article 18 of the
Convention. He further complained of a violation of his pecuniary rights
under Article 1 of Protocol No. 1 because he had been precluded from
receiving a higher salary and higher retirement benefits. Those Articles
provide:
DENISOV v. UKRAINE JUDGMENT 37

Article 18
“The restrictions permitted under this Convention to the said rights and freedoms
shall not be applied for any purpose other than those for which they have been
prescribed.”

Article 1 of Protocol No. 1

“Every natural or legal person is entitled to the peaceful enjoyment of his
possessions. No one shall be deprived of his possessions except in the public interest
and subject to the conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way impair the right of a State
to enforce such laws as it deems necessary to control the use of property in
accordance with the general interest or to secure the payment of taxes or other
contributions or penalties.”
136. The Court notes that the applicant’s complaint under Article 18 of
the Convention was raised for the first time in 2017, in the applicant’s
submissions to the Grand Chamber. The complaint was therefore lodged
outside the six-month time-limit and must be declared inadmissible in
accordance with Article 35 §§ 1 and 4 of the Convention.
137. As to the applicant’s complaint under Article 1 of Protocol No. 1,
this Article applies only to a person’s existing possessions and does not
create a right to acquire property (see Stummer v. Austria [GC],
no. 37452/02, § 82, ECHR 2011). Future income cannot be considered to
constitute “possessions” unless it has already been earned or is definitely
payable (see Erkan v. Turkey (dec.), no. 29840/03, 24 March 2005, and
Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 64, ECHR 2007-I).
The applicant’s dismissal from the post of court president precluded him
from receiving a higher salary in that position and applying for higher
retirement benefits at a later stage. However, this additional income has not
actually been earned. Neither can it be argued that it was definitely payable.
In these circumstances, this complaint is incompatible ratione materiae with
the provisions of the Convention and the Protocols thereto and must be
rejected in accordance with Article 35 §§ 3 (a) and 4.

IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

138. The applicant complained under Article 6 § 1 of the Convention

that the principles of equality of arms, legal certainty and a “tribunal
established by law” had been breached and that the requirement for
decisions to contain proper reasons had not been complied with. Relying on
Article 13 of the Convention, the applicant alleged that there had been no
effective remedy in his case.
139. Having regard to the facts of the case and the above findings under
Article 6 § 1 of the Convention as regards the principles of an independent
38 DENISOV v. UKRAINE JUDGMENT

and impartial tribunal, the Court considers that the main legal questions
under the Convention have been determined. It follows that there is no need
to give a separate ruling on the admissibility and merits of the remaining
complaints (see, among other authorities, Varnava and Others v. Turkey
[GC], nos. 16064/90 and 8 others, §§ 210-11, ECHR 2009, and Centre for
Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC],
no. 47848/08, § 156, ECHR 2014, with further references).

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

140. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols
thereto, and if the internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford just satisfaction to
the injured party.”

A. Damage

141. The applicant initially submitted a claim in respect of pecuniary

damage, which he subsequently withdrew in a letter of 24 November 2017.
The applicant also claimed 10,000 euros (EUR) in respect of non-pecuniary
damage.
142. The Government submitted that the claim for non-pecuniary
damage was unfounded.
143. The Court considers that the applicant must have sustained non-
pecuniary damage which the finding of a violation of the Convention in this
judgment does not suffice to remedy. Ruling on an equitable basis, it awards
the applicant EUR 3,000 in respect of non-pecuniary damage.

B. Costs and expenses

144. In the Chamber proceedings, Mr Denisov and eleven other

applicants claimed jointly 15,691.97 pounds sterling (GBP) in respect of
costs and expenses. Subsequently, the application by Mr Denisov was dealt
with separately, following relinquishment of jurisdiction in favour of the
Grand Chamber. Before the Grand Chamber, Mr Denisov, who was
represented by two lawyers, claimed GBP 33,600 in respect of legal fees,
GBP 1,418.98 and EUR 2,499.79 in respect of administrative and
translation costs and other disbursements, and GBP 712, EUR 630.20 and
UAH 8,867 in respect of travel expenses, including the applicant’s personal
appearance at the hearing before the Court. The applicant asked for the
award for costs and expenses to be paid into the UK bank account
designated by his representatives.
DENISOV v. UKRAINE JUDGMENT 39

145. The Government submitted that the claims were excessive and not
sufficiently substantiated. They argued in particular that the claims for legal
fees had been exaggerated and the translation costs had not been necessarily
incurred. Accordingly, the award under this head had to be decreased
substantially if a violation of the Convention were found.
146. According to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been shown
that these have been actually and necessarily incurred and are reasonable as
to quantum. Furthermore, costs and expenses are only recoverable to the
extent that they relate to the violation found (see Murray v. the Netherlands
[GC], no. 10511/10, § 134, ECHR 2016). In this regard the Court notes that
the applicant’s complaints were only partially successful and that a
substantial portion of his pleadings concerned an inadmissible part of the
application. In such circumstances the Court may find it appropriate to
reduce the award in respect of costs and expenses (see, for example, Bykov
v. Russia [GC], no. 4378/02, § 114, 10 March 2009, and Bayatyan
v. Armenia [GC], no. 23459/03, § 135, ECHR 2011).
147. The Court further notes that the personal appearance of the
applicant before the Grand Chamber was not required and it could be
doubted if the costs and expenses in this regard were incurred necessarily
(compare Martinie v. France [GC], no. 58675/00, § 62, ECHR 2006-VI).
Nevertheless, taking into account the previous case-law (see, in particular,
Folgerø and Others v. Norway [GC], no. 15472/02, § 112, ECHR 2007-III,
Söderman v. Sweden [GC], no. 5786/08, § 126, ECHR 2013, and Jeunesse
v. the Netherlands [GC], no. 12738/10, § 135, 3 October 2014), the Court
accepts that the costs and expenses connected with the applicant’s
participation in the hearing before the Grand Chamber may be granted
inasmuch as they are reasonable and properly substantiated.
148. In the light of the above considerations, regard being had to the
documents in its possession and the above criteria, the Court considers it
reasonable to award the sum of EUR 3,000 covering costs under all heads.
As requested, the amount awarded is to be paid directly into the bank
account designated by the applicant’s representatives (see, for example,
Hristovi v. Bulgaria, no. 42697/05, § 109, 11 October 2011, and
Singartiyski and Others v. Bulgaria, no. 48284/07, § 54, 18 October 2011).

C. Default interest

149. The Court considers it appropriate that the default interest rate
should be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.
40 DENISOV v. UKRAINE JUDGMENT

FOR THESE REASONS, THE COURT,

1. Declares admissible, unanimously, the complaint under Article 6 § 1 of
the Convention as regards the principles of an independent and impartial
tribunal;

2. Declares inadmissible, by a majority, the complaint under Article 8 of

the Convention;

3. Declares inadmissible, unanimously, the complaints under Article 18 of

the Convention and Article 1 of Protocol No. 1 to the Convention;

4. Holds, unanimously, that there has been a violation of Article 6 § 1 of

the Convention as regards the principles of an independent and impartial
tribunal;

5. Holds, unanimously, that it is not necessary to examine the admissibility

and merits of the remaining complaints;

6. Holds, unanimously,
(a) that the respondent State is to pay the applicant, within three
months, the following amounts, to be converted into the currency of the
respondent State at the rate applicable at the date of settlement:
(i) EUR 3,000 (three thousand euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(ii) EUR 3,000 (three thousand euros), plus any tax that may be
chargeable to the applicant, in respect of costs and expenses, this
amount to be paid into the bank account designated by the
applicant’s representatives, this amount to be paid into the bank
account designated by the applicant’s representatives;
(b) that from the expiry of the above-mentioned three months until
settlement simple interest shall be payable on the above amounts at a
rate equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;

7. Dismisses, by sixteen votes to one, the remainder of the applicant’s claim

for just satisfaction.

Done in English and in French, and delivered at a public hearing in the

Human Rights Building, Strasbourg, on 25 September 2018.

Françoise Elens-Passos Guido Raimondi

Deputy Registrar President
JUDGMENT OF 19. 6. 1990 —CASE C-213/89

JUDGMENT OF THE COURT

19 June 1990 *

In Case C-213/89

REFERENCE to the Court under Article 177 of the EEC Treaty by the House of
Lords for a preliminary ruling in the proceedings pending before that court in the
case of

The Queen

Secretary of State for Transport, ex parte: Factortame Ltd and Others,

on the interpretation of Community law with regard to the extent of the power of
national courts to grant interim relief where rights claimed under Community law
are at issue,

THE COURT

composed of: O. Due, President, Sir Gordon Slynn, C. N. Kakouris, F. A.

Schockweiler, M. Zuleeg (Presidents of Chambers), G. F. Mancini, R. Joliét, J. C.
Moitinho de Almeida, G. C. Rodríguez Iglesias, F. Grévisse and M. Diez de
Velasco, Judges,

Advocate General: G. Tesauro

Registrar: H. A. Rühi, Principal Administrator

after considering the written observations submitted on behalf of

* Language of the case: English.

I - 2466
FACTORTAME AND OTHERS

the United Kingdom, by T. J. G. Pratt, Principal Assistant Treasury Solicitor,

acting as Agent, assisted by Sir Nicholas Lyell, Q C , Solicitor-General, Mr
Christopher Bellamy, QC, and Mr Christopher Vajda, barrister,

Ireland, by Louis J. Dockery, Chief State Solicitor, acting as Agent, assisted by

James O'Reilly, SC,

Factortame Ltd and Others, by David Vaughan Q C , Gerald Barling, barrister,

David Anderson, barrister, and Stephen Swabey, solicitor, of Thomas
Cooper & Stibbard,

the Commission, by Mr Götz zur Hausen, Legal Adviser, and Peter Oliver, a
member of its Legal Department, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral argument presented at the hearing on 5 April 1990 by the
United Kingdom, Factortame Ltd and Others, Rawlings (Trawling) Ltd., the latter
represented by N . Forwood, QC, and by the Commission,

after hearing the Opinion of the Advocate General delivered at the sitting on
17 May 1990,

gives the following

Judgment

1 By a judgment of 18 May 1989, which was received at the Court on 10 July 1989,
the House of Lords referred to the Court of Justice for a preliminary ruling under
Article 177 of the EEC Treaty two questions on the interpretation of Community
law. Those questions concern the extent of the power of national courts to grant
interim relief where rights claimed under Community law are at issue.

I - 2467
JUDGMENT OF 19. 6. 1990 —CASE C-213/89

2 The questions were raised in proceedings brought against the Secretary of State
for Transport by Factortame Ltd and other companies incorporated under the laws
of the United Kingdom, and also the directors and shareholders of those
companies, most of whom are Spanish nationals (hereinafter together referred to
as the 'appellants in the main proceedings').

3 The companies in question are the owners or operators of 95 fishing vessels which
were registered in the register of British vessels under the Merchant Shipping Act
1894. Of those vessels, 53 were originally registered in Spain and flew the Spanish
flag, but on various dates as from 1980 they were registered in the British register.
The remaining 42 vessels have always been registered in the United Kingdom, but
were purchased by the companies in question on various dates, mainly since 1983.

4 The statutory system governing the registration of British fishing vessels was
radically altered by Part II of the Merchant Shipping Act 1988 and the Merchant
Shipping (Registration of Fishing Vessels) Regulations 1988 (SI 1988, N o 1926). It
is common ground that the United Kingdom amended the previous legislation in
order to put a stop to the practice known as 'quota hopping' whereby, according
to the United Kingdom, its fishing quotas are 'plundered' by vessels flying the
British flag but lacking any genuine link with the United Kingdom.

s The 1988 Act provided for the establishment of a new register in which henceforth
all British fishing vessels were to be registered, including those which were already
registered in the old general register maintained under the 1894 Act. However,
only fishing vessels fulfilling the conditions laid down in Section 14 of the 1988
Act may be registered in the new register.

I - 2468
FACTORTAME AND OTHERS

Paragraph 1 of that section provides that, subject to dispensations to be

determined by the Secretary of Sute for Transport, a fishing vessel is eligible to be
registered in the new register only if:

'(a) the vessel is British-owned,

(b) the vessel is managed, and its operations are directed and controlled, from
within the United Kingdom and;

(c) any charterer, manager or operator of the vessel is a qualified person or

company'.

According to Section 14(2), a fishing vessel is deemed to be British-owned if the

legal title to the vessel is vested wholly in one or more qualified persons or
companies and if the vessel is beneficially owned by one or more qualified
companies or, as to not less than 7 5 % , by one or more qualified persons.
According to Section 14(7) 'qualified person' means a person who is a British
citizen resident and domiciled in the United Kingdom and 'qualified company'
means a company incorporated in the United Kingdom and having its principle
place of business there, at least 7 5 % of its shares being owned by one or more
qualified persons or companies and at least 7 5 % of its directors being qualified
persons.

' The 1988 Act and the 1988 Regulations entered into force on 1 December 1988.
However, under Section 13 of the 1988 Act, the validity of registrations effected
under the previous Act was extended for a transitional period until 31 March 1989.

s On 4 August 1989 the Commission brought an action before the Court under
Article 169 of the EEC Treaty for a declaration that, by imposing the nationality
requirements laid down in Section 14 of the 1988 Act, the United Kingdom had
failed to fulfil its obligations under Articles 7, 52 and 221 of the EEC Treaty. That
action is the subject of Case 246/89, now pending before the Court. In a separate
document, lodged at the Court Registry on the same date, the Commission applied

I - 2469
JUDGMENT OF 19. 6. 1990 —CASE C-213/89

to the Court for an interim order requiring the United Kingdom to suspend the
application of those nationality requirements as regards the nationals of other
Member States and in respect of fishing vessels which until 31 March 1989 were
carrying on a fishing activity under the British flag and under a British fishing
licence. By an order of 10 October 1989 in Case 246/89 R Commission v United
Kingdom [1989] ECR 3125, the President of the Court granted that application.
Pursuant to that order, the United Kingdom made an Order in Council amending
Section 14 of the 1988 Act with effect from 2 November 1989.

9 At the time of the institution of the proceedings in which the appeal arises, the 95
fishing vessels of the appellants in the main proceedings failed to satisfy one or
more of the conditions for registration under Section 14 of the 1988 Act and thus
could not be registered in the new register.

io Since those vessels were to be deprived of the right to engage in fishing as from 1
April 1989, the companies in question, by means of an application for judicial
review, challenged the compatibility of Part II of the 1988 Act with Community
law. They also applied for the grant of interim relief until such time as final
judgment was given on their application for judicial review.

n In its judgment of 10 March 1989, the Divisional Court of the Queen's Bench
Division : (i) decided to stay the proceedings and to make a reference under Article
177 of the EEC Treaty for a preliminary ruling on the issues of Community law
raised in the proceedings; and (ii) ordered that, by way of interim relief, the
application of Part II of the 1988 Act and the 1988 Regulations should be
suspended as regards the applicants.

1 2 O n 13 March 1989, the Secretary of State for Transport appealed against the
Divisional Court's order granting interim relief. By judgment of 22 March 1989,
the Court of Appeal held that under national law the courts had no power to
suspend, by way of interim relief, the application of Acts of Parliament. It
therefore set aside the order of the Divisional Court.

I - 2470
FACTORTAME AND OTHERS

3 The House of Lords, before which the matter was brought, gave its abovemen-
tioned judgment of 18 May 1989. In its judgment it found in the first place that
the claims by the appellants in the main proceedings that they would suffer irrep-
arable damage if the interim relief which they sought were not granted and they
were successful in the main proceedings were well founded. However, it held that,
under national law, the English courts had no power to grant interim relief in a
case such as the one before it. More specifically, it held that the grant of such
relief was precluded by the old common-law rule that an interim injunction may
not be granted against the Crown, that is to say against the government, in
conjunction with the presumption that an Act of Parliament is in conformity with
Community law until such time as a decision on its compatibility with that law has
been given.

H The House of Lords then turned to the question whether, notwithstanding that
rule of national law, English courts had the power, under Community law, to
grant an interim injunction against the Crown.

is Consequently, taking the view that the dispute raised an issue concerning the
interpretation of Community law, the House of Lords decided, pursuant to Article
177 of the EEC Treaty, to stay the proceedings until the Court of Justice had
given a preliminary ruling on the following questions:

'(1) Where

(i) a party before the national court claims to be entitled to rights under
Community law having direct effect in national law (the "rights
claimed"),

(ii) a national measure in clear terms will, if applied, automatically deprive

that party of the rights claimed,

I-2471
JUDGMENT OF 19. 6. 1990 —CASE C-213/89

(iii) there are serious arguments both for and against the existence of the
rights claimed and the national court has sought a preliminary ruling
under Article 177 as to whether or not the rights claimed exist,

(iv) the national law presumes the national measure in question to be

compatible with Community law unless and until it is declared incom-
patible,

(v) the national court has no power to give interim protection to the rights
claimed by suspending the application of the national measure pending
the preliminary ruling,

(vi) if the preliminary ruling is in the event in favour of the rights claimed,
the party entitled to those rights is likely to have suffered irremediable
damage unless given such interim protection,

does Community law either

(a) oblige the national court to grant such interim protection of the rights
claimed; or

(b) give the Court power to grant such interim protection of the rights
claimed?

(2) If Question 1(a) is answered in the negative and Question 1(b) in the
affirmative, what are the criteria to be applied in deciding whether or not to
grant such interim protection of the rights claimed?'

i6 Reference is made to the Report for the Hearing for a fuller account of the facts
in the proceedings before the national court, the course of the procedure before
and the observations submitted to the Court of Justice, which are mentioned or
discussed hereinafter only in so far as is necessary for the reasoning of the Court.

I - 2472
FACTORTAME AND OTHERS

i7 It is clear from the information before the Court, and in particular from the
judgment making the reference and, as described above, the course taken by the
proceedings in the national courts before which the case came at first and second
instance, that the preliminary question raised by the House of Lords seeks essen-
tially to ascertain whether a national court which, in a case before it concerning
Community law, considers that the sole obstacle which precludes it from granting
interim relief is a rule of national law, must disappty that rule.

18 For the purpose of replying to that question, it is necessary to point out that in its
judgment of 9 March 1978 in Case 106/77 Amministrazione delle finanze dello
Stato v Simmenthal SpA [1978] ECR 629 the Court held that directly applicable
rules of Community law 'must be fully and uniformly applied in all the Member
States from the date of their entry into force and for so long as they continue in
force' (paragraph 14) and that 'in accordance with the principle of the precedence
of Community law, the relationship between provisions of the Treaty and directly
applicable measures of the institutions on the one hand and the national law of the
Member States on the other is such that those provisions and measures... by their
entry into force render automatically inapplicable any conflicting provision
of . . . national law* (paragraph 17).

is In accordance with the case-law of the Court, it is for the national courts, in
application of the principle of cooperation laid down in Article 5 of the EEC
Treaty, to ensure the legal protection which persons derive from the direct effect
of provisions of Community law (see, most recently, the judgments of 10 July 1980
in Case 811/79 Ariete SpA v Amministrazione delle finanze dello Stato [1980] ECR
2545 and Case 826/79 Mireco v Amministrazione delle finanze dello Stato [1980]
ECR 2559).

20 The Court has also held that any provision of a national legal system and any
legislative, administrative or judicial practice which might impair the effectiveness
of Community law by withholding from the national court having jurisdiction to
apply such law the power to do everything necessary at the moment of its
application to set aside national legislative provisions which might prevent, even
temporarily, Community rules from having full force and effect are incompatible
with those requirements, which are the very essence of Community law (judgment
of 9 March 1978 in Simmenthal, cited above, paragraphs 22 and 23).

I - 2473
JUDGMENT OF 19. 6. 1990 —CASE C-213/89

2i It must be added that the full effectiveness of Community law would be just as
much impaired if a rule of national law could prevent a court seised of a dispute
governed by Community law from granting interim relief in order to ensure the
full effectiveness of the judgment to be given on the existence of the rights claimed
under Community law. It follows that a court which in those circumstances would
grant interim relief, if it were not for a rule of national law, is obliged to set aside
that rule.

22 That interpretation is reinforced by the system established by Article 177 of the

EEC Treaty whose effectiveness would be impaired if a national court, having
stayed proceedings pending the reply by the Court of Justice to the question
referred to it for a preliminary ruling, were not able to grant interim relief until it
delivered its judgment following the reply given by the Court of Justice.

23 Consequently, the reply to the question raised should be that Community law must
be interpreted as meaning that a national court which, in a case before it
concerning Community law, considers that the sole obstacle which precludes it
from granting interim relief is a rule of national law must set aside that rule.

Costs

24 The costs incurred by the United Kingdom, Ireland and the Commission of the
European Communities, which have submitted observations to the Court, are not
recoverable. Since these proceedings are, in so far as the parties to the main
proceedings are concerned, in the nature of a step in the proceedings pending
before the national court, the decision on costs is a matter for that court.

On those grounds,

T H E COURT,

in reply to the question referred to it for a preliminary ruling by the House of

Lords, by judgment of 18 May 1989, hereby rules:

I - 2474
FACTORTAME AND OTHERS

Community law must be interpreted as meaning that a national court which, in a

case before it concerning Community law, considers that the sole obstacle which
precludes it from granting interim relief is a rule of national law must set aside that
rule.

Due Slynn Kakouris Schockweiler Zuleeg

Mancini Joliét Moitinho de Almeida

Rodriguez Iglesias Grévisse Diez de Velasco

Delivered in open court in Luxembourg on 19 June 1990.

J.-G. Giraud O. Due

Registrar President

I - 2475
ALCATEL AUSTRIA AND OTHERS

JUDGMENT OF THE COURT (Sixth Chamber)

28 October 1999 *

In Case C-81/98,

REFERENCE to the Court under Article 177 of the EC Treaty (now Article 234
EC) by the Bundesvergabeamt (Austria) for a preliminary ruling in the
proceedings pending before that court between

Alcatel Austria AG and Others,

Siemens AG Österreich,

Sag-Schrack Anlagentechnik AG

and

Bundesministerium für Wissenschaft und Verkehr

on the interpretation of Council Directive 89/665/EEC of 21 December 1989 on

the coordination of the laws, regulations and administrative provisions relating to
the application of review procedures to the award of public supply and public
works contracts (OJ 1989 L 395, p. 33),

* Language of the case: German.

I - 7693
JUDGMENT OF 28. 10. 1999 — CASE C-81/98

THE COURT (Sixth Chamber),

composed of: PJ.G. Kapteyn (Rapporteur), acting as President of the Chamber,

G. Hirsch and H. Ragnemalm, Judges,

Advocate General: J. Mischo,

Registrar: H.A. Rühl, Principal Administrator,

after considering the written observations submitted on behalf of:

— Alcatel Austria AG and Others, by S. Köck and M. Oder, Rechtsanwälte,

Vienna,

— Siemens AG Österreich, by M. Breitenfeld, Rechtsanwalt, Vienna,

— Bundesministerium für Wissenschaft und Verkehr, by W. Peschorn, Ober-

kommissär in the Finanzprokuratur,

— the Austrian Government, by W. Okresek, Sektionschef in the Federal

Chancellor's Office, acting as Agent,

— the Commission of the European Communities, by M. Nolin and B. Brandt-

ner, of its Legal Service, acting as Agents, with R. Roniger, of the Brussels
Bar,

— the EFTA Surveillance Authority, by H. Ottarsdóttir, Officer, Legal and

Executive Affairs, EFTA Surveillance Authority, and T. Thomassen, Senior
Officer, Goods Directorate, EFTA Surveillance Authority, acting as Agents,
I - 7694
ALCATEL AUSTRIA AND OTHERS

having regard to the Report for the Hearing,

after hearing the oral observations of Siemens AG Österreich, represented by

M. Breitenfeld, of the Bundesministerium für Wissenschaft und Verkehr,
represented by W. Peschorn, of the Austrian Government, represented by
M. Fruhmann of the Federal Chancellor's Office, acting as Agent, of the German
Government, represented by W.-D. Plessing, Ministerialrat in the Federal
Ministry of Finance, acting as Agent, of the United Kingdom Government,
represented by M. Hoskins, Barrister, and of the Commission, represented by
R. Roniger, at the hearing on 28 April 1999,

after hearing the Opinion of the Advocate General at the sitting on 10 June 1999,

gives the following

Judgment

1 By order of 3 March 1998, received at the Court on 25 March 1998, the

Bundesvergabeamt (Federal Procurement Office) referred for a preliminary ruling
under Article 177 of the EC Treaty (now Article 234 EC) three questions on the
interpretation of Council Directive 89/665/EEC of 21 December 1989 on the
coordination of the laws, regulations and administrative provisions relating to the
application of review procedures to the award of public supply and public works
contracts (OJ 1989 L 395, p. 33).

2 The questions arose in a dispute between Alcatel Austria AG and Others, Siemens
AG Ôsterreich and Sag-Schrack Anlagentechnik AG on the one hand and the
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JUDGMENT OF 28. 10. 1999 — CASE C-81/98

Bundesministerium für Wissenschaft und Verkehr (Federal Ministry of Science

and Transport, 'the Bundesministerium') on the other concerning the award of a
public supply and works contract.

Legal background

Community law

3 Article 1 of Directive 89/665 provides:

'1. The Member States shall take the measures necessary to ensure that, as regards
contract award procedures falling within the scope of Directives 71/305/EEC and
77/62/EEC, decisions taken by the contracting authorities may be reviewed
effectively and, in particular, as rapidly as possible in accordance with the
conditions set out in the following Articles, and, in particular, Article 2(7) on the
grounds that such decisions have infringed Community law in the field of public
procurement or national rules implementing that law.

2. Member States shall ensure that there is no discrimination between under-

takings claiming injury in the context of a procedure for the award of a contract
as a result of the distinction made by this Directive between national rules
implementing Community law and other national rules.

3. The Member States shall ensure that the review procedures are available,
under detailed rules which the Member States may establish, at least to any
I - 7696
ALCATEL AUSTRIA AND OTHERS

person having or having had an interest in obtaining a particular public supply or

public works contract and who has been or risks being harmed by an alleged
infringement. In particular, the Member States may require that the person
seeking the review must have previously notified the contracting authority of the
alleged infringement and of his intention to seek review.'

4 Article 2(1) of Directive 89/665 provides:

'The Member States shall ensure that the measures taken concerning the review
procedures specified in Article 1 include provision for the powers to:

(a) take, at the earliest opportunity and by way of interlocutory procedures,

interim measures with the aim of correcting the alleged infringement or
preventing further damage to the interests concerned, including measures to
suspend or to ensure the suspension of the procedure for the award of a
public contract or the implementation of any decision taken by the
contracting authority;

(b) either set aside or ensure the setting aside of decisions taken unlawfully,
including the removal of discriminatory technical, economic or financial
specifications in the invitation to tender, the contract documents or in any
other document relating to the contract award procedure;

(c) ...'.

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JUDGMENT OF 28. 10. 1999 — CASE C-81/98

5 Article 2(6) of Directive 89/665 states:

'The effects of the exercise of the powers referred to in paragraph 1 on a contract

concluded subsequent to its award shall be determined by national law.

Furthermore, except where a decision must be set aside prior to the award of
damages, a Member State may provide that, after the conclusion of a contract
following its award, the powers of the body responsible for the review procedures
shall be limited to awarding damages to any person harmed by an infringement.'

Austrian law

6 In Austria public procurement is governed, with regard to the Federal State, by

the Bundesvergabegesetz (Federal Procurement Law, BGBl. No 462/1993, 'the
BVergG'), in the version prior to the 1997 amendments (BGBl. No 776/1996).

7 Paragraph 9, point 14, thereof defines the award as the declaration made to the
tenderer, accepting his tender.

8 Under Paragraph 41(1), the contractual relationship between the authority and
the tenderer comes into being, within the period allowed for making the award,
when the tenderer receives notification of the acceptance of his offer.
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ALCATEL AUSTRIA AND OTHERS

9 Under Paragraph 91(2), the Bundesvergabeamt may, up to the time the award is
made, adopt interim measures and set aside unlawful decisions of the awarding
department of the contracting authority for the purpose of removing infringe-
ments of the BVergG and of the regulations made thereunder.

10 Paragraph 91(3) provides that, once the contract has been awarded, the
Bundesvergabeamt has power to determine that as a result of an infringement
of the BVergG or of the regulations made thereunder the award was not made to
the tenderer making the best offer.

11 Paragraph 94 provides inter alia:

'1. The Bundesvergabeamt must set aside by way of a decision, taking into
account the opinion of the Conciliation Committee in the case, any decision of
the contracting authority in an award procedure which

(1) is contrary to the provisions of this Federal Law or its implementing

regulations and

(2) significantly affects the outcome of the award procedure.

...'.

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JUDGMENT OF 28. 10. 1999 — CASE C-81/98

Facts

12 On 23 May 1996, the Bundesministerium published an invitation to tender for

the supply, installation and demonstration of all the hardware and software
components of an electronic system for automatic data transmission to be
installed on Austrian motorways.

13 The invitation to tender was issued in accordance with the open procedure
provided for in Council Directive 93/36/EEC of 14 June 1993 coordinating
procedures for the award of public supply contracts (OJ 1993 L 199, p. 1).

14 On 5 September 1996 the contract in question was awarded to Kapsch AG and it

was signed on the same day. The other tenderers, who learned of the contract
through the press, applied between 10 and 22 September 1996 to the
Bundesvergabeamt for review.

15 On 18 September 1996, the Bundesvergabeamt dismissed the applications for

interim measures to suspend performance of the contract on the ground that,
pursuant to Paragraph 91(2) of the BVergG, once an award is made it no longer
has power to make interim orders. A complaint was lodged against that decision
with the Verfassungsgerichtshof (Constitutional Court).

16 Pursuant to Paragraph 91(3) of the BVergG, the Bundesvergabeamt determined,

by decision of 4 April 1997, that various breaches of the BVergG had occurred
and brought the review procedure to an end.
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ALCATEL AUSTRIA AND OTHERS

17 The decision of the Bundesvergabeamt of 18 September 1996 was set aside by the
Verfassungsgerichtshof.

18 In view of that judgment, the Bundesvergabeamt reopened the procedure

terminated on 4 April 1997 in order to examine the merits, and on 18 August
1997 made an order provisionally prohibiting the contracting authority from
further performance of the contract concluded on 5 September 1996.

19 The Republic of Austria lodged a complaint against that order before the
Verfassungsgerichtshof which, by order of 10 October 1997, gave suspensive
effect to the complaint, with the result that the interim measure adopted by the
Bundesvergabeamt on 18 August 1997 was provisionally inoperative.

20 In its order for reference, the Bundesvergabeamt states that the BVergG does not
deal separately with the public law and private law aspects in the procedure for
the award of contracts. Rather, the contracting authority participates in the
procedure exclusively as a bearer of private rights, which means that the State as
contracting authority employs the rules, forms and methods of civil law. Under
Paragraph 41(1) of the BVergG, the contractual relationship between the
authority and the tenderer comes into being, within the period allowed for
making the award, when the tenderer receives notification of the acceptance of
his offer.

21 Consequently, the national court states, the award and the conclusion of the
contract in Austria do not as a rule formally occur at the same time. The decision
of the contracting authority as to the party with whom it wishes to contract is
normally made before it is incorporated in writing, and the decision on its own is
not sufficient to create the contract, since the tenderer must at the very least
receive notice of that decision; in practice, however, the contracting authority's
decision as to whom to award the contract is one taken internally without, under
Austrian law, any public manifestation thereof. Accordingly, from the outsider's
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JUDGMENT OF 28. 10. 1999 — CASE C-81/98

point of view the declaration of the award and the conclusion of the contract
occur together, since, as a rule, the outsider does not have and cannot have, at any
rate legally, any knowledge of the internal decision of the contracting authority.
The award decision itself, that is to say the decision of the contracting authority
as to the party with whom it wishes to contract, is not open to challenge. The
point in time at which the award is made is of decisive importance for the review
procedure before the Bundesvergabeamt.

22 The national court states that under Paragraph 91(2) of the BVergG the
Bundesvergabeamt has power up to the time the award is made to adopt interim
measures and to set aside unlawful decisions of the awarding department of the
contracting authority for the purpose of removing infringements of the BVergG
and of the regulations made thereunder. After the award has been made, it merely
has power to determine that as a result of an infringement of the BVergG or of the
regulations made thereunder the award was not made to the tenderer making the
best offer. In the case of culpable infringement of the BVergG by agents of an
awarding body, Paragraph 98(1) thereof provides that compensation is payable to
the unsuccessful candidate or tenderer by the contracting authority to which the
conduct of those agents is attributable.

23 Lastly, the national court notes that, under Paragraph 102(2) of the BVergG, a
claim for compensation before the ordinary courts in such a case is admissible
only if there has been a prior determination by the Bundesvergabeamt within the
meaning of Paragraph 91(3). Irrespective of Paragraph 91(3), the courts and the
parties to the procedure before the Bundesvergabeamt are bound by that
determination. It is evident from the structure of the review procedure that, in
respect of the area covered by the BVergG, the Austrian federal legislature has
opted under Article 2(6) of Directive 89/665/EEC to limit the remedy to an award
of damages.
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ALCATEL AUSTRIA AND OTHERS

Questions referred for a preliminary ruling

24 In those circumstances, the Bundesvergabeamt decided to stay proceedings and

refer the following questions to the Court for a preliminary ruling:

'1. When implementing Directive 89/665/EEC, are Member States required by

Article 2(6) thereof to ensure that the contracting authority's decision prior
to the conclusion of the contract as to the bidder in a tender procedure with
which, in the light of the procedure's results, it will conclude the contract (i.e.
the award decision) is in any event open to a procedure whereby an applicant
may have that decision annulled if the relevant conditions are met,
notwithstanding the possibility once the contract has been concluded of
restricting the legal effects of the review procedure to an award of damages ?

2. If Question 1 is answered in the affirmative:

Is the obligation described in Question 1 sufficiently clear and precise to

confer on individuals the right to a review corresponding to the requirements
of Article 1 of Directive 89/665/EEC, in which the national court must in any
event be able to adopt interim measures within the meaning of Article 2(1)(a)
and (b) of that directive and to annul the contracting authority's award
decision, and the right to rely in proceedings on that obligation as against a
Member State?
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JUDGMENT OF 28. 10. 1999 — CASE C-81/98

3. If Question 2 is answered in the affirmative:

Is the obligation described under Question 1 also sufficiently clear and

precise to mean that in such a procedure the national court must disregard
contrary provisions of national law which would prevent the court from
fulfilling that obligation, and must fulfil that obligation directly as part of
Community law even if national law lacks any basis on which to act?'

Admissibility

25 The Bundesministerium and the Austrian Government contend that, in so far as

the contract has already been performed in its entirety, there is in reality no longer
a dispute in the main proceedings. The answer to the questions raised will
therefore be irrelevant, since the applicants in the main proceedings can only
obtain damages at this stage, the award of which is in any case provided for under
the BVergG.

26 Although the Commission has expressed doubts as to the admissibility of the

questions referred to the Court, it considers that a ruling by the Court could have
an effect on subsequent developments in the main case, in particular because the
level of any damages payable to the applicants in the main proceedings could be
affected by the answer to the questions raised, and that the answer to the first
question could mean that the contract or the award decision must be set aside,
which would then make it necessary to deal with the second and third questions.
I - 7704
ALCATEL AUSTRIA AND OTHERS

27 In the order for reference, the national court stated that, under domestic law, the
question arose whether it was entitled or even required under Community law to
set aside its decision of 4 April 1997 terminating the first award procedure on the
ground that the contract had not been awarded to the tenderer which had made
the best offer. In the light of that procedural issue, the questions referred to the
Court for a preliminary ruling would remain pertinent even if the award
procedure in question had in the meantime been settled.

28 In the circumstances, it must be held that as the answer to the questions raised
may affect the outcome of the dispute in the main proceedings the questions are
admissible.

First question

29 By its first question, the national court is asking essentially whether the combined
provisions of Article 2(1 )(a) and (b) and the second subparagraph of Article 2(6)
of Directive 89/665 must be interpreted as meaning that the Member States are
required to ensure that the contracting authority's decision, prior to the
conclusion of the contract, as to the bidder in a tender procedure with which it
will conclude the contract is in all cases open to review in a procedure whereby an
applicant may have that decision set aside if the relevant conditions are met,
regardless of the possibility, once the contract has been concluded, of obtaining
an award of damages.

30 Article 2(1) of Directive 89/665 lists the measures to be taken concerning the
review procedures which the Member States must make available in national law.
According to Article 2(1)(a), they must include provision for the adoption of
interim measures by way of interlocutory procedures. Article 2(1 )(b) refers to the
possibility of setting aside or ensuring the setting aside of decisions taken
unlawfully, and Article 2(1 )(c) concerns the award of damages.
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JUDGMENT OF 28. 10. 1999 — CASE C-81/98

31 It is common ground that Article 2(1 )(b) of Directive 89/665 does not define the
decisions taken unlawfully which a party may ask to have set aside. The
Community legislature confined itself to stating that such decisions include those
containing discriminatory technical, economic or financial specifications in the
documents relating to the contract award procedure in question.

32 Nothing in Article 2(l)(b) of Directive 89/665 indicates that an unlawful decision

awarding a public contract does not fall within the category of decisions taken
unlawfully in respect of which application may be made to have them set aside.

33 As is clear from the first and second recitals in the preamble to Directive S9/665,
the directive reinforces existing arrangements at both national and Community
level for ensuring effective application of Community directives on the award of
public contracts, in particular at the stage where infringements can still be
rectified (Case C-433/93 Commission ν Germany [1995] ECR I-2303, paragraph
23).

34 In that regard, Article 1(1) of Directive S9/665 requires the Member States to
establish effective review procedures that are as rapid as possible to ensure
compliance with Community directives on public procurement.

35 It is clear from that provision that the subject-matter of those review procedures
will be decisions taken by the contracting authorities, on the ground that they
infringe Community law on public procurement or the national rules transposing
it; the provision does not, however, lay down any restriction with regard to the
nature and content of those decisions.

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ALCATEL AUSTRIA AND OTHERS

36 The Bundesministerium and the Austrian Government contend, essentially, that

the organisation of the procedure before the Bundesvergabeamt, whereby once a
contract has been concluded the decision of a contracting authority may be
challenged only in so far as the unlawful nature of the decision has resulted in
damage to the party seeking review in national proceedings, and whereby the
procedure is to be limited to easing the conditions for the award of damages by
the ordinary courts, complies with Article 2(6) of Directive 89/665.

37 As the Advocate General observed in points 36 and 37 of his Opinion, it is clear

from the actual wording of Article 2(6) of Directive 891665 that the limitation of
review procedures provided for therein applies only after the conclusion of the
contract following the awarding decision. Directive 89/665 thus draws a
distinction between the stage prior to the conclusion of the contract, to which
Article 2(1) applies, and the stage subsequent to its conclusion, in respect of
which a Member State may, according to the second subparagraph of
Article 2(6), provide that the powers of the body responsible for the review
procedures are to be limited to awarding damages to any person harmed by an
infringement.

38 Moreover, the interpretation proposed by the Bundesministerium and the

Austrian Government might lead to the systematic removal of the most
important decision of the contracting authority, that is to say the award of the
contract, from the purview of the measures which, under Article 2(1) of Directive
89/665, must be taken concerning the review procedures referred to in Article 1,
thereby undermining the purpose of Directive 89/665 which, as noted in
paragraph 34 of this judgment, is to establish effective and rapid procedures to
review unlawful decisions of the contracting authority at a stage where
infringements may still be rectified.

39 The Austrian Government also contends that if Directive 89/665 must be

interpreted as drawing a distinction between the decision awarding a contract
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JUDGMENT OF 28. 10. 1999 — CASE C-81/98

and the conclusion of that contract, the directive fails to specify in any way what
time should elapse between the two stages. The United Kingdom Government
indicated at the hearing that no time should be fixed since there are different
types of award procedure.

40 The argument based on the lack of an intervening period between the decision
awarding a contract and the conclusion of the contract is irrelevant. The fact that
there is no express provision in that connection cannot justify interpreting
Directive 89/665 in such a way as to remove decisions awarding public contracts
systematically from the purview of the measures which, according to Article 2(1)
of Directive 89/665, must be taken concerning the review procedures referred to
in Article 1.

41 With regard to the time which must elapse between the decision awarding a
contract and its conclusion, the United Kingdom Government also states that no
such time is specified in Directive 93/36 and that the directive's provisions, as
Articles 7, 9 and 10 thereof show, are exhaustive.

42 All that need be stated in that regard, as the Advocate General noted in points 70
and 71 of his Opinion, is that those provisions correspond to the equivalent
provisions in the directives which preceded Directive 89/665, the first recital in
the preamble to which states that they 'do not contain any specific provision
ensuring their effective application'.

43 It follows from those considerations that the combined provisions of Arti-

cle 2(1)(a) and (b) and the second subparagraph of Article 2(6) of Directive
89/665 are to be interpreted as meaning that the Member States are required to
ensure that the contracting authority's decision prior to the conclusion of the
contract as to the bidder in a tender procedure with which it will conclude the
contract is in all cases open to review in a procedure whereby an applicant may
have that decision set aside if the relevant conditions are met, notwithstanding the
I - 7708
ALCATEL AUSTRIA AND OTHERS

possibility, once the contract has been concluded, of obtaining an award of

damages.

Second and third questions

44 By its second and third questions, which may be examined together, the national
court is asking essentially whether Article 2(l)(a) and (b) of Directive 89/665
must be interpreted to the effect that, where that provision has not been fully
transposed into national law, the bodies in the Member States having power to
review public procurement procedures may also hear applications under the
conditions laid down in that provision.

45 Paragraph 91(2) of the BVergG provides that the Bundesvergabeamt may

examine the legality of award procedures and decisions within the ambit of the
BVergG; the national legislature has thereby fulfilled its obligation to make
provision for review, as the Advocate General observed at point 90 of his
Opinion.

46 However, as the national court indicated in its order (see paragraphs 20 to 22 of

this judgment), the contracting authority's decision as to whom to award the
contract is one taken internally without, under Austrian law, any public
manifestation thereof.
I - 7709
JUDGMENT OF 28. 10. 1999 — CASE C-81/98

47 The explanations given in the order for reference show that the State, as
contracting authority, employs the rules, forms and methods of civil law in the
award procedure, so that the award of a public contract is effected by the
conclusion of a contract between that authority and the tenderer.

48 Since the announcement of the award of a contract and its conclusion in practice
occur together, in such a system there is no administrative law measure of which
the persons concerned can acquire knowledge and which may be the subject of an
application to have it set aside as provided for in Article 2(l)(b).

49 In such circumstances, where it is doubtful that the national court is in a position

to give effect to the right of individuals to obtain review in matters concerning
public procurement under the conditions set out in Directive 89/665, in particular
Article 2(1 )(a) and (b), it is useful to recall that, if national provisions cannot be
interpreted in a manner consistent with Directive 89/665, those concerned may
seek compensation, under the appropriate procedures in national law, for the
damage suffered by reason of the failure to transpose a directive within the
prescribed period (see, in particular, Joined Cases C-178/94, C-179/94 and
C-188/94 to C-190/94 Dillenkofer and Others [1996] ECR I-4845).

50 Consequently, the answer to the second and third questions must be that
Article 2(1 )(a) and (b) of Directive 89/665 cannot be interpreted to the effect that,
even where there is no award decision which may be the subject of an application
to have it set aside, the bodies in the Member States having power to review
public procurement procedures may hear applications under the conditions laid
down in that provision.
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ALCATEL AUSTRIA AND OTHERS

Costs

51 The costs incurred by the Austrian, German and United Kingdom Governments,
by the Commission of the European Communities and by the EFTA Surveillance
Authority, which have submitted observations to the Court, are not recoverable.
Since these proceedings are, for the parties to the main proceedings, a step in the
proceedings pending before the national court, the decision on costs is a matter
for that court.

On those grounds,

THE COURT (Sixth Chamber),

in answer to the questions referred to it by the Bundesvergabeamt by order of

3 March 1998, hereby rules:

1. The combined provisions of Article 2(1)(a) and (b) and the second
subparagraph of Article 2(6) of Council Directive 89/665/EEC of 21 Decem-
ber 1989 on the coordination of the laws, regulations and administrative
provisions relating to the application of review procedures to the award of
public supply and public works contracts must be interpreted as meaning that
the Member States are required to ensure that the contracting authority's
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JUDGMENT OF 28. 10. 1999 — CASE C-81/98

decision prior to the conclusion of the contract as to the bidder in a tender

procedure with which it will conclude the contract is in all cases open to
review in a procedure whereby an applicant may have that decision set aside
if the relevant conditions are met, notwithstanding the possibility, once the
contract has been concluded, of obtaining an award of damages.

2. Article 2(1)(a) and (b) of Directive 89/665 cannot be interpreted to the effect
that, even where there is no award decision which may be the subject of an
application to have it set aside, the bodies in the Member States having power
to review public procurement procedures may hear applications under the
conditions laid down in that provision.

Kapteyn Hirsch Ragnemalm

Delivered in open court in Luxembourg on 28 October 1999.

R. Grass J.C. Moitinho de Almeida

Registrar President of the Sixth Chamber

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2222 2 !3"#31$%&!%!% '(!)*%!3% !% !'%(8&!0%+ 33233

Europeanisation of Administrative Justice – the role of EU law and
the ECJ case law

Miguel Assis Raimundo

Assistant Professor, University of Lisbon, School of Law
Research Fellow, CIDP

1
• Factortame (1990): a landmark judgment by the ECJ

• Pars. 12 and 13: the UK court’s position was that national law did not have the power to
suspend acts of parliament by way of interim relief; moreover, the courts did not even
have the right to give interim relief against the Crown

• Par. 20: any rules regarding any power of the State (any part of the legal system, or
judicial or administrative practice) that would impair the effectiveness of the EU law
rules are incompatible with primacy

• Therefore, the Court decided the national courts should grant that relief

2
• This influence happens by way of Treaty principles, but also specific acts

• “Remedies Directives”

• Directive 89/665/EEC, significantly amended by 2007/66/EC (Remedies in the Public Sector)

• Directive 92/13/EEC, significantly amended by 2007/66/EC (Remedies in the Utilities

Sectors)

• The emergence of a harmonised system of remedies was deeply transformative of

procedural remedies, but also substantive options, in Member States

3
• A landmark decision: C-81/98, Alcatel

• Austrian authorities initiated a procedure to award a contract under the national

provisions transposing EU PP Law. The contract was awarded and signed in the same
day, and bidders could only react after the fact.

• Austrian law at the time:

• (i) treated the signing of the contract as a matter of private law, acceptance of an offer;
• (ii) did not offer any specific means for challenging the decision to award the contract (or
making it known to other bidders, for that matter;
• (iii) after the contract was awarded (in the sense above), limited protection to damages

4
• “the directive reinforces existing arrangements at both national and Community level for ensuring
effective application of Community directives on the award of public contracts, in particular at the
stage where infringements can still be rectified” – i.e, effective remedies, if possible, preventive, is the
goal of the so-called “Remedies Directive” (Directive 89/665/EEC, amended)

• The fact that Austrian law allowed for award and immediate conclusion of the contract was irrelevant,
according to the Court, based on a reason of effectiveness: the Directive requires MS to offer the
possibility for reaction against the decision to award the contract

• “Member States are required to ensure that the contracting authority's decision prior to the conclusion
of the contract as to the bidder in a tender procedure with which it will conclude the contract is in all
cases open to review in a procedure whereby an applicant may have that decision set aside”

5
• The power of EU Law to transform the legal categories in MS’ legal systems is totally clear here:

• “46. However, as the national court indicated in its order (see paragraphs 20 to 22 of this judgment),
the contracting authority's decision as to whom to award the contract is one taken internally
without, under Austrian law, any public manifestation thereof.

• 47. The explanations given in the order for reference show that the State, as contracting authority,
employs the rules, forms and methods of civil law in the award procedure, so that the award of a
public contract is effected by the conclusion of a contract between that authority and the tenderer.

• 48. Since the announcement of the award of a contract and its conclusion in practice occur together, in
such a system there is no administrative law measure of which the persons concerned can acquire
knowledge and which may be the subject of an application to have it set aside as provided for in
Article 2(1)(b).”
6
• Therefore, the Court identified the system of application of civil law as the
obstacle to applying the level of protection provided for in the Remedies
Directive;

• Without ever saying that civil law is incompatible with providing adequate
remedies, that was the essential consequence

• EU Law on remedies in procurement changed the systems of MS, even in

what concerns substantive law and the public-private law divide
• Probably the most effective example of the “Europeanization of Administrative
Justice”
7
• The influence of EU Law, through the PP directives, extends also to all
other relevant points relevant to provide effective judicial protection:

1. Institutional aspects – who provides protection?

2. Scope of the remedies: reviewable acts; standing (who can file a
lawsuit?)
3. Time limits barring access to remedies
4. Procedural aspects, such as burden of proof
5. Even such apparently minor aspects as court fees

8
• Regarding institutional options: allowing for several options
(review body or not), the Remedies Directive requires
participation of a court of law/tribunal making judicial review
• Art. 2(9) of the Remedies Directive

• EU Law sets its own standards in this respect

• the relevant assessment is not the nature of the body under
national law

9
• Art. 2(9): “Where bodies responsible for review procedures are not judicial in character, written reasons
for their decisions shall always be given. Furthermore, in such a case, provision must be made to
guarantee procedures whereby any allegedly illegal measure taken by the review body or any alleged
defect in the exercise of the powers conferred on it can be the subject of judicial review or review by
another body which is a court or tribunal within the meaning of Article 234 of the Treaty and
independent of both the contracting authority and the review body.

• The members of such an independent body shall be appointed and leave office under the same
conditions as members of the judiciary as regards the authority responsible for their appointment,
their period of office, and their removal. At least the President of this independent body shall have
the same legal and professional qualifications as members of the judiciary. The independent body
shall take its decisions following a procedure in which both sides are heard, and these decisions shall,
by means determined by each Member State, be legally binding.”

10
• C-203/14, Consorci Sanitari del Maresme: as an incidental question, the
Court had to decide whether the “Tribunal Català de Contractes del Sector
Públic”, which was the referring body, was a court.

• “Thus, even though, as the order for reference indicates, the Tribunal Català
de Contractes del Sector Públic is regarded under Spanish law as an
administrative body, that fact is not, in itself, conclusive, for the purpose of
the Court’s assessment.”

• An autonomous assertion, to be made under EU Law

11
• “So far as (ii) the criterion of independence is concerned, it is apparent from the documents before the Court
that the Tribunal Català de Contractes del Sector Públic acts as a third party in relation to the authority which
adopted the decision challenged in the main proceedings (…) in a wholly independent manner, not occupying a
hierarchical or subordinate position in relation to any other body and not taking orders or instructions from
any source whatsoever (…). [It] complies, when performing its duties, with the requirement for objectivity and
impartiality vis-à-vis the parties to the proceedings (…), the members of the Tribunal are appointed on a
permanent basis and cease to hold office only in the circumstances expressly set out (…). The referring body
therefore satisfies the criterion of independence.”

• “whether the jurisdiction of the body making the reference is compulsory (…), it is true that, under Article
40(6) of Legislative Decree 3/2011, the referring body’s jurisdiction is optional. (…) it must nevertheless be
observed that the decisions of the referring body, whose jurisdiction does not depend on the parties’
agreement, are binding on the parties (…).

• Also: C-54/96, Dorsch Consult; C-103/97, Köllensperger; C-549/13, Bundesdruckerei

12
• Concerning scope of the remedies (I):

• All decisions taken during the procedure, including preliminary decisions (C-391/15, Marina del
Mediterráneo)

• Preference for preventive remedies, for effectiveness (procurement documents can be

challenged autonomously)

• Adequate interim measures – another topic that caused great transformation in national laws of
MS

• PT Law as example of the last two points: before the Remedies Directive, the law did not offer the
possibility to suspend adm regulations (such as tender documents); after, it became common
solution for all regulations (not just tender documents)
13
• C-391/15, Marina del Mediterráneo: Spanish law did not allow for separate immediate judicial
review, by a tenderer, of a decision to admit another tenderer to the procedure

• “Article 1(1) of Directive 89/665 does not lay down any restriction with regard to the nature or
content of the decisions it refers to. Moreover, (…) Article 2(1)(a) of that directive (…) requires
Member States to make provision for interim relief procedures in relation to any decision taken
by the contracting authorities”

• Spanish law allowed for review, but only with the review of the final decision. However, “the fact
that the national legislation at issue in the main proceedings requires, in all cases, a tenderer to
wait for a decision awarding the contract in question before it may apply for a review of a
decision allowing another tenderer to participate in that procurement procedure infringes the
provisions of Directive 89/665.
14
• Concerning scope of the remedies (II):

• The issue of standing (locus standi) is a visible point of conflict between EU Law and
national laws; the CJ has been active in making a broad interpretation of the Directive
in this regard

• Art. 2(3) of the Remedies Directive affords generous standing:

• “Member States shall ensure that the review procedures are available, under detailed
rules which the Member States may establish, at least to any person having or having
had an interest in obtaining a particular contract and who has been or risks being
harmed by an alleged infringement.”
15
• C-249/01 Hackermüller: a tenderer which (according to the national
court) should not have been admitted to the second phase of a
tender, is allowed to challenge the decision in this second phase

• “if a review body were to refuse access to those procedures to a tenderer in

a position like that of Mr Hackermüller, the effect would be to deny him not
only his right to seek review of the decision he alleges to be unlawful but
also the right to challenge the validity of the ground for exclusion raised
by that body to deny him the status of a person who has been or risks being
harmed by the alleged unlawfulness.”
16
• C-100/12, Fastweb, and C-689/13, PFE

• Bidders are allowed to apply for judicial review of the CA’s decisions regarding
admission of bids of the other bidders (in an attempt to exclude each other)

• Neither lawsuit can be declared inadmissible on grounds that national law

states that one of the requests needs to be analysed first – i.e, EU Law
effectively forced, in these cases, the necessary joint appreciation of both
requests, which challenges the standing rules of many countries (PT, for
instance)

17
• The Court accepts time limits (as a way to promote speedy resolution); under conditions

• C-241/06 Lämmerzahl: making a time limit to react to provisions in the contract documents
(not the award decision) end in the date of presentation of bids, in the case irregularities are
not apparent at that moment, would make it excessively difficult to resort to remedies

• C-166/14, Medeval: making an action for damages dependent on a 6-month period which
starts to run from the award decision, in a case where no notice was published, is in breach
of the principle of effectiveness:

• “Where there has been no prior publication of a contract notice, such a limitation period of six months is likely
not to enable a person harmed to gather the necessary information with a view to a possible action, thus
preventing that action from being brought.”
18
• Impact, also, in purely procedural aspects, well beyond the wording of the
Directive, but based on the idea of effective access to effective review

• C-538/13, eVigilo: on the basis of the principle of effectiveness of the

substantive provisions of the directives, the Court of Justice:

• Made an allocation of burden of proof, in favour of applicant

• It also dismissed (or rather, interpreted national law in accordance with EU Law)
time limits in national law could be applicable to limit the claimant’s right to
discuss the problem in court
• The matter is important for integrity: it relates to what can be termed “hidden illegalities”, in
the event, information about conflicts of interest, which became known afterwards 19
• C-61/14, Orizzonte Salute: the applicant challenged the payment of fees for presenting and
carrying out a lawsuit before the administrative courts in a procurement case

• The Court ruled that the Remedies Directives do not preclude court fees; but carried out
proportionality assessments:
• Value of fees: “The court fees (…), which do not exceed 2% of the value of the contract concerned, are
not liable to render practically impossible or excessively difficult the exercise of rights conferred by EU
PP law.”
• Cumulative fees: “it is for the national court to examine the subject-matter of the actions submitted by
an individual or the pleas raised by that individual within the same proceedings. If the national court
finds that their subject-matter is not in fact separate or does not amount to a significant enlargement
of the subject-matter of the dispute (…), it is required to relieve that individual of the obligation to pay
cumulative court fees.”

20
• In addition to this, the Remedies Directives also provide for:

• Standstill period (inserted as reaction to situations as the Alcatel case);

• Possibility to obtain the ineffectiveness of the contract (inserted as reaction to

several laws of MS which made the contract imune to challenge from anyone
not a party to it);

• Right to damages
• Although in limited and incomplete terms, it is also an example of a challenge to MS
traditions: EU Law provides for objective liability, not dependent on fault, which forced
changes to MS Law
21
Thank you

miguelraimundo@[Link]

LinkedIn

[Link]

22