Information Note on the Court’s case-law No. 93
January 2007
Aubert and Others v. France - 31501/03
Judgment 9.1.2007 [Section II]
Article 6
Civil proceedings
Article 6-1
Fair hearing
Retrospective and final determination of the merits of pending litigation by legislative intervention that was not justified by compelling general-interest grounds: violation
Article 1 of Protocol No. 1
Article 1 para. 1 of Protocol No. 1
Deprivation of property
Final determination of the merits of pending litigation by legislative intervention that deprived the applicants of a pre-existing “asset” forming part of their “possessions”: violation
[This summary also covers the Judgment of the case Arnolin and Others v. France, no. 20127/03, 9 January 2007]
Facts: The applicants were all currently or formerly employed in specialised institutions run by associations under State supervision. Their work included night duty, for which they had to remain on call in a “watch” room, ready to respond to any incidents or requests by residents. Under the collective agreement applicable to institutions and services for people with disabilities, the applicants were only entitled to receive partial remuneration for the working time in question. Considering that this was nevertheless actual work warranting full remuneration, the applicants took their cases to French employment tribunals. While most of their cases were still pending, new legislation entered into force which had the effect, subject to any judicial decisions that had become res judicata, of validating salary payments to staff in respect of night work, including periods of non-activity, when they were on standby in the workplace, pursuant to the provisions of national collective agreements on general or specific conditions of employment, to the extent that the amount of such payments might be disputed on the ground that the provisions were invalid. The law was followed by an implementing decree introducing a period equivalent to statutory working time in social and medico-social establishments run by private persons on a non-profit-making basis. The cases brought before the domestic courts thus had different outcomes. Some were favourable to employees, in the cases where the judges of the tribunals, courts of appeal or Court of Cassation justified their positions by reference to Article 6(1) of the Convention, to the case-law of the European Court of Human Rights and to the absence of any compelling financial or egalitarian grounds of the general interest that might justify a departure from case-law favourable to employees. Other judges found in favour of employers, considering that the system of equivalence to statutory working time was lawful, finding that the remuneration of night duty was consistent with the provisions of the applicable agreements, with which employers scrupulously complied and which were justified by compelling grounds of the general interest. However, the Court of Cassation, which had found in favour of employees, clearly reasserted its position of principle on the matter. Lastly, the European Court of Justice considered that a directive precluded the system of equivalence in issue, and the Conseil d'Etat, taking into account the ruling of that court, found that the decree was partly tainted with illegality in that in had failed to set the limits within which the system of equivalence was to be implemented in order to ensure compliance with the thresholds or ceilings set out in the European directive.
Law: Article 6(1) in the case of Arnolin and Others – Although, in theory, the legislature was not precluded in civil matters from adopting new retrospective provisions to regulate rights arising under existing law, the principle of the rule of law and the notion of fair trial enshrined in Article 6 precluded any interference by the legislature – other than on compelling grounds of the general interest – with the administration of justice designed to influence the judicial determination of a dispute. The State had not been a party to the pending judicial proceedings at the time of the legislative intervention in issue. However, the Court's case-law went beyond disputes in which the State was a party. The responsibility of the State would be engaged in respect of the notion of fair trial, both in its legislative role, if it distorted the trial or influenced the judicial determination of a dispute, and in its judicial role, if it failed to guarantee a fair trial, even in the context of private-law disputes between individuals. As regards litigation involving opposing private interests, the “equality of arms” principle implied that both parties had to be afforded a reasonable opportunity to present their case under conditions that would not place them at a substantial disadvantage vis-à-vis their opponent. Although the law expressly excluded from its scope any judicial decisions that had become res judicata, it determined once and for all – and, moreover, retrospectively – the terms of the question referred to the ordinary courts. Thus the enactment of the law had settled the case on its merits and made it pointless to continue the proceedings. In those circumstances there could be no equality of arms between the two private parties, as the State had vindicated one of them once the impugned law was on the statute book. Lastly, whilst the State had not stricto sensu been a party to the dispute, it had nevertheless been a stakeholder and had had a direct financial interest in view of the way in which the establishments concerned were financed. As to the “compelling ground of the general interest”, in principle a financial reason could not by itself warrant such legislative intervention. There was nothing to support the argument that the impact would otherwise have been so significant that the stability of the health and welfare sectors would have been undermined. It had not been established that the survival of the establishments concerned, and still less the general stability of the public health and welfare services, would have been undermined. Accordingly, the impugned legislative intervention, which had determined, with final and retrospective effect, the merits of disputes pending before domestic courts, was not justified by compelling grounds of the general interest.
Conclusion: violation (unanimously)
Article 1 of Protocol No. 1, in the case of Aubert and Others – With the Court of Cassation's case-law being favourable to the applicants and the decision of the European Court of Justice having led to the partial annulment of the decree by a judgment of the Conseil d'Etat, the applicants clearly had a proprietary interest which entailed, if not a claim against the other party, at least a “legitimate expectation” of being able to receive salary arrears for the impugned working time, and this had to be regarded as a “possession” within the meaning of the first sentence of Article 1 of Protocol No. 1. The enactment of a law in order to counter the case-law of the Court of Cassation, which had been favourable to the applicants, certainly confirmed that finding. The impugned law had entailed interference with the exercise of the rights that the applicants were entitled to assert by virtue of the applicable case-law and, accordingly, with their right to the peaceful enjoyment of their possessions. That interference amounted to a deprivation of possessions within the meaning of the second sentence of the first paragraph of Article 1 of Protocol No. 1. It was not in dispute that the interference was “provided for by law”. However, the law in question was not justified by the two general-interest grounds adduced: firstly, in terms of ensuring legal certainty, because the Court of Cassation had taken a position that was favourable to employees and its case-law allowed the applicant to rely on the existence of a “possession” within the meaning of Article 1 of Protocol No. 1; secondly, in terms of preserving the long-term continuity of the public health and welfare service, because there was nothing to support the argument that the impact would otherwise have been so significant that the stability of the health and welfare system would have been undermined. The impugned legislative intervention, which had determined the merits of disputes pending before domestic courts with final and retrospective effect, was therefore not justified by compelling grounds of the general interest, as required in particular by the principle of the rule of law. Moreover, the law had finally determined the merits of the dispute in favour of one of the parties, thus depriving the applicants of a pre-existing “proprietary interest” which formed part of their “possessions” and in respect of which they could legitimately expect payment. The impugned measure had thus placed an “abnormal and excessive burden” upon the applicants, and the interference with their possessions had been disproportionate and had upset the fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights.
Conclusion: violation (unanimously).
Article 41 – Awards in respect of pecuniary and non-pecuniary damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
Click here for the Case-Law Information Notes
Full & Egal Universal Law Academy