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THE FACTS
The applicant, Multigestion, is a company incorporated under French law, with its registered office in Paris. It was represented before the Court by Mr J. Vogel, of the Paris Bar.
A. The circumstances of the case
The facts of the case, as submitted by the applicant company, may be summarised as follows.
The applicant company is an approved management company, belonging to the group of management companies of the UFG company, which is itself a subsidiary of the Crédit Mutuel group. The applicant company manages two non-trading real-estate investment companies – Multimmobilier 1 and Multimmobilier 2. Also part of the UFG group are a company called Multimmo, which manages among other companies the non-trading real-estate investment company Crédit Mutuel Pierre 4, and another called Multimmo Transactions, whose object is to take part in property promotion campaigns.
Acting on an anonymous tip-off, the Chairman of the Stock Exchange Regulatory Authority (Commission des opérations de bourse – “the COB”) decided, on 23 August 1995, to open an investigation into the management of the three non-trading real estate investment companies mentioned above and into the transactions carried out on their behalf.
On 11 June 1996 the COB decided to open proceedings with a view to imposing penalties on the applicant company.
The Chairman of the COB informed the applicant company of the complaints against it on 16 July 1996. It was suspected of using its authority to act not in the collective interest of investors but for purposes other than those for which the authority had been given.
On 11 April 1997 a decision taken by the COB on 3 April 1997 was served on the applicant company. The COB had imposed a fine of 7,500,000 French francs and ordered publication of the decision in the COB’s monthly bulletin and in the Official Gazette.
On 24 April 1997 the applicant company gave notice of intention to appeal against the above decision, producing a statement of the grounds of appeal within the time allowed, on 16 May 1997. It did not plead the COB’s partiality on account of the fact that the same person had been its chairman when important decisions were being taken at both the investigation stage and the trial stage, the presence of the reporting commissioner (the rapporteur) at the deliberations or the fact that it had not had access to his written report. It did, however, plead an infringement of the presumption of innocence on account of the fact that the burden of proof had been reversed, and it contested the COB’s submissions.
Ruling in connection with another case and, according to the applicant company, against all expectations, the Paris Court of Appeal held on 7 May 1997 that the penalties imposed by the COB were contrary to Article 6 of the Convention when, in particular, the rapporteur took part in the deliberations. That decision was published in the Recueil Dalloz of 19 June 1997. On 5 February 1999 the Court of Cassation dismissed an appeal on points of law against the above judgment. Following that change in the case-law the COB modified its working practices.
On 10 September 1997 the COB submitted its observations on the applicant company’s appeal.
On 9 October 1997 the applicant company produced a reply in which it submitted a new ground of appeal, pleading infringement by the COB of the principles of fairness and impartiality. It referred in particular to the Paris Court of Appeal’s judgment of 7 May 1997.
On 16 December 1997 the Paris Court of Appeal noted of its own motion that the applicant company had not submitted the above ground of appeal within the one-month period allowed by law. It therefore invited the parties to present further submissions on its admissibility.
The applicant company attempted to establish that Article 8 of Decree no. 90-263 of 23 March 1990 did not bar the raising of a ground of appeal based on public-policy considerations after expiry of the one-month time-limit.
On 24 March 1998 the Court of Appeal declared the ground of appeal relating to the unfairness of the procedure before the COB inadmissible, as being out of time, and dismissed the application to set aside the COB’s decision of 3 April 1997.
The applicant company appealed on points of law against the above judgment. In support of its appeal it argued that Article 8 of Decree no. 90‑263 of 23 March 1990 “necessarily [said nothing about] what [was] to be done with grounds of appeal based on public-policy considerations, which [could] be submitted at any stage of the proceedings” and that “courts [had] a duty to note of their own motion arguments grounded on public policy whenever such arguments [were] apparent from the documents submitted to them, and particularly from the decision referred to them”. It also argued that there had been no legal basis for the sanction imposed by the COB, since the burden of proof had been reversed, or for the Court of Appeal’s decision, given that it had upheld the sanction imposed without verifying whether all the elements of the offence had been made out.
In a judgment of 25 January 2000 the Court of Cassation dismissed the applicant company’s appeal on points of law against the judgment of 24 March 1998. It held that although the ground of appeal relating to a violation of Article 6 of the Convention had been based on public-policy considerations it had been out of time and therefore inadmissible. It dismissed the other two points of law raised by the applicant company as manifestly ill-founded.
B. Relevant domestic law
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Article 8 of Decree no. 90-263 of 23 March 1990
“An appeal must be lodged by means of a written declaration deposited in four copies with the registry of the Paris Court of Appeal in exchange for a certificate of receipt.
An appeal shall be inadmissible by default if the declaration does not contain the information required by Article 648 of the New Code of Civil Procedure and state the object of the appeal.
Where the declaration does not contain a statement of the grounds of appeal, the appellant must, on pain of the same sanction, file such statement with the registry within a month of filing the declaration. ...”
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COMPLAINTS
1. Relying on Article 6 § 1 of the Convention, the applicant company complained that it had not had a fair hearing before an impartial tribunal in the proceedings conducted before the COB.
2. Relying on Article 6 § 1 of the Convention, the applicant company complained that it had not had a fair hearing before an impartial tribunal in connection with its appeals to the Court of Appeal and the Court of Cassation. It complained, firstly, of the one-month time-limit laid down by Article 8 of Decree no. 90-263 of 23 March 1990, which upset the balance of the trial and the equality of arms, since the COB was not required to comply with it. Secondly, it complained of the domestic courts’ refusal to raise of their own motion an argument grounded on public policy and their refusal to admit such an argument at any time in the proceedings.
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THE LAW
1. The applicant company submitted that the COB’s procedure was neither fair nor impartial and had infringed its right to due process for the purposes of Article 6 of the Convention, the relevant provisions of which read as follows:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...”
The applicant company complained that the same person had served as the chairman of the COB both during the investigation stage and during trial of the case against it, that the rapporteur had taken part in the deliberations and that it had not had access to his written report.
It explained that it had not been able to submit that argument within the time allowed for filing a statement of the grounds of appeal under Article 8 of Decree no. 90-263 of 23 March 1990 since it had only been in a judgment of 7 May 1997, published in the Recueil Dalloz on 19 June 1997, that the Paris Court of Appeal had departed from precedent, holding the similar procedure in a different case to be contrary to Article 6 of the Convention.
The Court considers that it is not necessary to determine whether Article 6 of the Convention is applicable to the procedure before the COB since this complaint is inadmissible for other reasons.
It reiterates that under Article 35 § 1 of the Convention a case may only be referred to the Court once all domestic remedies have been exhausted. Every applicant must have given the domestic courts the opportunity which Article 35 § 1 is intended to afford in principle to member States, that of preventing or putting right the violations alleged against them. Thus a complaint intended to be submitted to the Court must first have been made, at least in substance, and in compliance with the formal requirements and time-limits laid down in domestic law, to the appropriate domestic courts (see Cardot v. France, judgment of 19 March 1991, Series A no. 200, p. 19, § 36).
In the present case, the applicant company submitted the complaint at issue in a reply to the COB’s observations, after expiry of the statutory time-limit. The Court of Appeal, whose ruling was upheld by the Court of Cassation, declared it inadmissible. The domestic courts therefore did not have the opportunity to look into and put right the alleged violation, within the meaning of the case-law cited above.
The applicant company maintained that it could not raise this complaint until after the judgment of 7 May 1997, which represented a departure from the established case-law on the point. However, the Court observes that this did not prevent the applicant company from asking the Court of Cassation to rule on a point of law relating to the text of the Convention, and specifically Article 6, as now formulated in its complaint to the Court, given that the Court of Cassation is empowered to look into such a ground of appeal before it is referred to the Court; in France, according to long-established case-law, based on Article 55 of the Constitution, the Convention takes precedence over laws (and a fortiori regulations) which contradict it (see Lilly France v. France (dec.), no. 53892/00, 29 May 2001).
Consequently, the domestic courts did not have an opportunity to look into and put right the alleged violation within the meaning of the case-law cited above.
It follows that this part of the application must be rejected for failure to exhaust domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention.
2. The applicant company further complained that it had not had a fair hearing before an impartial tribunal in connection with its appeals to the Court of Appeal and the Court of Cassation, relying on Article 6 § 1 of the Convention.
It submitted that the one-month time-limit laid down by Article 8 of Decree no. 90-263 of 23 March 1990 gave it too little time and upset the balance of the trial and the equality of arms, since it did not apply to the COB’s observations.
The Court observes in the first place that Article 6 of the Convention does not preclude regulation of access to an appellate court, provided that its purpose is to ensure the proper administration of justice (see, for example, Levages Prestations Services v. France, judgment of 23 October 1996, Reports of Judgments and Decisions 1996-V, pp. 1543 et seq., §§ 40 et seq.).
In the present case the Court notes that the applicant company had one month from lodging its notice of appeal in which to file the grounds of its appeal against the COB’s decision. Rules governing the time-limit for appeals are undoubtedly made with a view to ensuring the proper administration of justice (see Bricmont v. Belgium, no. 10857/84, Commission decision of 15 July 1986, Decisions and Reports (DR) 48, p. 106, and Welter v. Sweden, no. 11122/84, Commission decision of 2 December 1985, DR 45, p. 246). In the present case the Court considers that the rules governing the time-limit for an appeal on points of law are sufficiently coherent and clear (see, a contrario, Vacher v. France, judgment of 17 December 1996, Reports 1996-VI). Lastly, neither the Court of Appeal nor the Court of Cassation impaired the very essence of the applicant company’s right of access to a court. It was able to submit other arguments, in support of both its appeal to the Paris Court of Appeal and its appeal on points of law, within the time allowed, and those arguments were considered by both the Court of Appeal and the Court of Cassation.
As to the assertion that the COB was able to submit observations after expiry of the one-month time-limit, the Court observes that in any event there was nothing to stop the applicant company submitting a rejoinder.
It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
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For these reasons, the Court unanimously
Declares the application inadmissible.
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