[TRANSLATION-EXTRACTS]

...

THE FACTS

The applicants are French nationals, who live in Geffosses , Manche (France).

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

From 1984 to 1990, land consolidation was carried out in the municipality of Geffosses . In order to implement this project, the prefect set up a municipal committee for land management ( commission communale d’aménagement foncier – “the CCAF”). A land consolidation association ( association foncière de remembrement – “the AFR”) was also set up to implement and manage the works to be carried out as part of the land consolidation project (the CCAF and AFR are provided for in Article L.121-2 et seq of the new Countryside Code ...)

The land consolidation proceeded in a divisive atmosphere, a section of the municipality’s residents having repeatedly demonstrated their disagreement regarding the works being undertaken. Intervention by the riot police was necessary to impose compliance with the decisions adopted.

One of the farmers in the municipality, L., a member of the CCAF and deputy-chairperson of the AFR, successfully requested that a large water reserve be created, which necessitated the digging, in stony terrain, of several ditches needed for the installation of water pipes.

The cost of this work was met through a loan. Reimbursement of this loan was charged to the members of the AFR, including the applicants, through property taxes.

The applicants disputed the payment of these taxes, since they considered that they should not be obliged to pay for pipes which had not been laid on their properties or which had no proven positive impact on them.

They commenced proceedings before the administrative courts, requesting exemption from the taxes assigned in respect of 1989 to 1994. They were granted exemption in respect of the taxes for which they had been liable in 1989, 1990 and 1991 (decision delivered on 21 June 1994 by the Caen Administrative Court, upheld by a judgment delivered on 4 March 1997 by the Nantes Administrative Court of Appeal), and also in 1992, 1993 and 1994 (decision delivered on 10 March 1997 by the Caen Administrative Court).

In its judgment, the Administrative Court of Appeal found, inter alia :

“... Under the last sub-paragraph of Article 28 of the Countryside Code, applicable in this case, ‘The decree by the Conseil d’Etat ... shall establish the criteria ... for determining the formula for apportioning costs among the landowners, on the basis of the area assigned in the land consolidation, except in respect of costs appertaining to water-management works, which shall be divided in proportion to their expected benefit ...’. It follows from this provision, firstly, that the payment of the cost of water-management works carried out by a land consolidation association may be charged to a member of the association only where properties belonging to the latter and included in the land consolidation will benefit from these works, and that, in addition, the amount charged must be proportionate to the benefit of these works.

It follows from the inquiry into the facts that the taxes for the works related to the Gefosses land consolidation project which were charged [to the applicants] ... include, to a substantial degree, participation in the cost of the water-management works; the allocation of costs was calculated on the basis of the properties’ area alone and not, as concerns the water-management works, on the basis of the actual benefit for each of the properties concerned. Such a method of assigning costs could only have been legally applied if it had been established that the said works were of benefit, in fact and proportionally to their area, to all the properties forming part of the land consolidation scheme. It has been established that this is not the case; it therefore follows ... that [the applicants are] justified in requesting exemption from the taxes which they dispute ...”

Taking account of several similar judicial decisions which had exempted farmers from taxes imposed on them, the bureau of the AFR re-examined on 19 October 1995 the formula for assigning the costs arising from the water-management works. It adopted a new, detailed proposal for assigning costs, in such a way that each member of the AFR would benefit to an equal degree from completion of the water-management works and was consequently obliged to finance them. This proposal was then submitted to the landowners concerned for observations and to a public inquiry.

At its meeting on 30 November 1995 the bureau of the AFR, having inspected the complaints submitted, adopted a new decision containing the final version of the formula for assigning costs for the water-management works. This decision was signed by the Chair of the AFR and approved by the Coutances sub-prefect on 5 January 1996 . However, it was not signed by the members of the bureau and entered in the register of decisions until 9 October 1996 , when it contained a typed addition making it several pages longer than the document initially approved.

The applicants appealed to the administrative courts. They contested the validity of the procedures which had established the formula for assigning taxes at the AFR bureau’s meetings on 19 October 1995 , 30 November 1995 and 9 October 1996 , and requested that they be set aside. The applicants asked, in consequence, to be exempted from property taxes in respect of 1995 and 1996, which, they claimed, had been decided under invalid procedures.

In a judgment adopted on 20 January 1998 the Caen Administrative Court confirmed the exemption from the property taxes due in respect of 1989-1994, but rejected the applications concerning the taxes due in respect of 1995 and 1996. The applicants appealed to the Nantes Administrative Court of Appeal.

In addition, they lodged a criminal complaint, with an application to join the proceedings as civil parties, alleging forgery in connection with the decision of 30 November 1995 and asked the administrative court to defer its decision until the conclusion of the criminal proceedings.

In a judgment of 30 December 1998 the Nantes Administrative Court of Appeal confirmed the Administrative Court ’s judgment in which it had refused to grant exemption for the taxes due in respect of 1995 and 1996.

In its judgment the Administrative Court of Appeal held, firstly, that the procedure to establish the formula for assigning the costs arising from the water-management works had been lawful, since “the fact that [the] decision ... was not signed by the members of the bureau and entered into the register of decisions contemporaneously is, in itself, without significance for its existence or validity”.

It went on to say:

“The water-management works conducted in the context of projects related to the Gefosses land consolidation entailed, as part of a general land improvement programme implemented homogeneously throughout the re-parcelled area, the clean-up of watercourses and the introduction of a network of primary ditches or culverts in the public-works strips reserved for the land association and of secondary ditches leading to the individual plots, so as to provide for the evacuation of excess water from all the re-parcelled plots .... the applicants’ allegation that the works in dispute were, in reality, carried out for the benefit of a single landowner is not corroborated by any evidence in the file.”

It concluded:

“Accordingly, the bureau of the Gefosses land consolidation association was entitled to consider, without infringing the provisions ... of Article R.133-8 of the Countryside Code, that these works would be of actual benefit to all the properties concerned by the land consolidation, in proportion to their area, and to decide, as it did by its decision of 30 November 1995, to divide the costs among the landowners concerned ... it follows from the foregoing that the [applicants’] submissions, requesting exemption from the taxes imposed on them ... in respect of 1995 and 1996, must be rejected”.

The applicants lodged an appeal on points of law. On 24 November 1999 the Conseil d’Etat dismissed this appeal in a judgment reasoned as follows:

“Under Article 11 of the Law of 31 December 1987 reforming administrative proceedings: ‘An appeal on points of law before the Conseil d’Etat shall be subject to a preliminary admissibility procedure. Admissibility shall be refused by judicial decision if the appeal is inadmissible or is not based on any reasonable arguments ...’.

In requesting the setting aside of the contested judgment, Mr and Ms G.L. allege that the Court was in breach of Article R. 133-8 of the Countryside Code in refusing to exempt them from the property taxes imposed on them in respect of 1995 and 1996, even though these taxes, which were intended to cover the cost of the water-management works, had allegedly been calculated in proportion to the area of re-parcelled land belonging to them rather than the actual benefit that they would derive from these works. To ensure that its judgment would not be vitiated by insufficient reasoning, the Court ought, at the very least, to have identified this benefit in specific terms with reference to the facts of the case. The Court had also failed to justify its refusal to defer decision until after the conclusion of the criminal proceedings introduced following a complaint of forgery in connection with the decision of 30 November 1995 , which had decided the amount of the aforementioned taxes. The Court could not, without misdirecting itself, refuse to exempt them from the taxes in respect of 1995 and 1996, given that the decision of 30 November 1995 by the bureau of the land consolidation association was flawed by retroactiveness, in that it fixed the dates on which payments were to fall due for the 1995 financial year as a whole. Finally, the Court is alleged to have misdirected itself in declaring inadmissible the submissions requesting the setting aside of the decision of 30 November 1995, on the ground that members of a land consolidation association may not directly contest a decision by the association’s bureau fixing the amount and method of allocation of property taxes;

None of the above grounds is such as to render the appeal admissible.” 

COMPLAINTS

1. The applicants considered that their appeals seeking exemption from the property taxes imposed on them in respect of 1995 and 1996 had not been given a fair hearing in the sense of Article 6 § 1. In that connection, they submitted a series of complaints.

(...)

b. The applicants also complained that they had not enjoyed a fair trial with due regard to the principle of equality of arms and the adversarial principle, owing to the impossibility of inspecting the Government Commissioner’s submissions prior to the hearings before the administrative courts and, in particular, before the Conseil d’Etat , and that they had not been able to reply to these submissions in court.

c. The applicants argued that their case had not been heard by an independent and impartial tribunal in respect of the proceedings before the Conseil d’Etat . Relying on the Procola v. Luxembourg judgment (28 September 1995, series A No. 326, § 45), they submitted that the Conseil d’Etat , an adviser to the State for the examination of draft legislation, was then called on to rule on this legislation, which would make it both a judge and a party. They argued that the Conseil d’Etat was not independent of the administrative authorities. Accordingly, they submitted that the Conseil d’Etat did not offer all the guarantees of impartiality and independence required by Article 6 § 1 of the Convention.

d. Finally, the applicants complained of the obligation to be represented before the Conseil d’Etat by a lawyer authorised to appear in the Conseil d’Etat or the Court of Cassation, which, in their opinion, infringed the principle of fairness.

(...)

5. Relying on Article 1 of Protocol No. 1 to the Convention, the applicants complained of an interference with their possessions (land and financial capital) through the water-management works, which had not been in the general interest but served the interests of a single member of the AFR, namely L.

(...) 

THE LAW

1. The applicants complained of a violation of Article 6 § 1 of the Convention, the relevant provisions of which provide as follows:

“1. 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”.

The Court notes at the outset that the question of the applicability of Article 6 of the Convention arises in that, according to its case-law, this provision does not in principle apply to tax proceedings (see Ferrazzini v. Italy [GC], No. 44759/98, §§ 24-31, ECHR 2001-VII).

However, the Court does not consider it necessary in the present case to rule on this question since, in any event, it considers that the complaint as a whole is inadmissible.

...

b. The applicants also alleged a violation of Article 6 § 1 of the Convention insofar as it guarantees the right to a fair hearing with due regard to the principle of equality of arms and the adversarial principle, in that they had been provided with a copy of the submissions of the Government Commissioner ( commissaire du Gouvernement ) prior to the hearing, so that it had been impossible to reply to them at the hearing. The applicants, who were represented before the Conseil d’Etat by a lawyer, have adduced no evidence that they produced a memorandum for the deliberations ( note en délibéré ) following the hearing.

The Court points out that the principle of equality of arms – one of the elements of the broader concept of fair trial – requires that each party be given a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent (see, among many other authorities, Nideröst -Huber v. Switzerland , judgment of 18 February 1997, Reports of Judgments and Decisions 1997-I, p. 107, § 23).

Irrespective of the fact that in most cases the Government Commissioner’s submissions are not committed to writing, the Court notes that it was clear from the course of procedure before the Conseil d’Etat that the Government Commissioner makes his conclusions for the first time orally at the public hearing of the case and that the parties to the proceedings, the judges and the public all learn of their content and the recommendation made in them on that occasion (see Kress v. France [GC] of 7 June 2001, no. 39594/98, ECHR 2001, § 73; APBP v. France of 21 March 2002, no. 38436/97, § 24; and Immeubles Groupe Kosser v. France of 21 March 2002, no. 38748/97, § 23).

The applicants can not infer from the right to equality of arms recognised in Article 6 § 1 of the Convention the right to be given, prior to the hearing, submissions which were not disclosed to the other party to the proceedings or to the reporting judge or to the judges of the trial bench (see Nideröst -Huber v. Switzerland , cited above). No breach of equality of arms has therefore been made out (see Kress v. France , cited above).

However, the concept of fair trial also implies in principle the right for the parties to a 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 the following judgments: Lobo Machado v. Portugal of 20 February 1996, Reports 1996-I, p. 215, § 49; Vermeulen v. Belgium of 20 February 1996, Reports 1996-I, p. 234, § 33; K.D.B. v. the Netherlands of 27 March 1998, Reports 1998-II, p. 631, § 44; and Nideröst -Huber , cited above, p. 108, § 24).

As regards the fact that it is not possible for parties to reply to the Government Commissioner’s submissions at the end of the hearing, the Court has already noted that, contrary to the position in Reinhardt and Slimane-Kaïd v. France (judgment of 31 March 1998, Reports 1998-II), it is not disputed that in proceedings before the Conseil d’Etat lawyers who so wish can ask the Government Commissioner, before the hearing, to indicate the general tenor of his submissions. Nor is it contested that the parties may reply to the Government Commissioner’s submissions by means of a memorandum for the deliberations, a practice which – and this is vital in the Court’s view – helps to ensure compliance with the adversarial principle. Lastly, in the event of the Government Commissioner’s raising orally at the hearing a ground not raised by the parties, the presiding judge would adjourn the case to enable the parties to present argument on the point (see Kress v. France , cited above, § 76).

In the Court’s opinion, the filing of a memorandum for the deliberations contributes to respect for the adversarial principle, subject to certain conditions. In particular, litigants should be able to file such a memorandum whether or not the presiding judge decides to adjourn the case, and should have sufficient time to draft it. Further, in order to avoid any dispute as to whether a memorandum has been taken into account by the Conseil d’Etat , the Court considers that the judgment should expressly mention its existence, as is already the case with regard to the reference in the Conseil d’Etat ’s judgments to the application or appeal registered by its secretariat, other documents in the case-file and interventions in public hearings (reporting judge, counsel for the parties and the Government Commissioner) (see APBP v. France , cited above, § 27).

  In the present case, the Court notes that the applicants have not proved that they made use of the possibility of filing a memorandum for the deliberations.

In these circumstances, the Court considers that the proceedings followed before the Conseil d’Etat afforded sufficient safeguards to the applicants and that no difficulty arises in connection with the right to a fair trial as regards respect for the adversarial principle.

It follows that this part of the complaint must therefore be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

c. The applicants alleged an absence of impartiality and independence on the part of the Conseil d’Etat .

The Court points out that, in order to determine whether a tribunal can be considered to be “independent” of one of the parties to a case, regard must be had to the manner of appointment of its 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, inter alia , Campbell & Fell v. The United Kingdom , judgment of 28 June 1984 , Series A no. 80, pp. 39-40, § 78).

As to the question of impartiality, a distinction must be drawn between a subjective test, whereby it is sought to establish the personal conviction of a given judge in a given case, and an objective test, aimed at ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect (see Langborger v. Sweden , judgment of 22 June 1989, Series A no. 155, p. 16, § 32).

In the present case, the applicants do not cast doubt on the subjective impartiality of the members of the trial bench. As to their objective impartiality and their appearance of independence, the applicants do not contest the manner of appointment of members of the Conseil d’Etat , the duration of their terms of office, or the existence of guarantees against outside pressures. They limit their complaints to the fact that, bearing in mind the functioning of the various divisions of the Conseil d’Etat , there could be some confusion for the members of the Conseil d’Etat between advisory and judicial functions.

Consequently, the Court must establish whether certain verifiable information enables doubt to be cast on their impartiality, the decisive element being whether the applicant’s fears can be held to be objectively justified (see Remli v. France , judgment of 23 April 1996, Reports 1996-II, no. 8, p. 574, § 46).

The Court notes, firstly, that the functioning of the French Conseil d’Etat and the status of its members could lead to the possibility of combination, for members of the Conseil d’Etat , of their advisory and judicial functions since the members assigned to the Judicial Division may also be assigned to an administrative division and thus be called on to “...successively perform these two types of function”, which could “cast doubt on the institution’s structural impartiality” (see Procola v. Luxembourg , [judgment of 28 September 1995, Series A no. 326, p. 16], § 45).

However, the Court notes that the present case differs from the Procola case, where four of the five members of the trial bench had to rule on the lawfulness of a regulation which they had previously scrutinised in their advisory capacity. In the present case, the applicants essentially put forward arguments of a general nature concerning the organisation of the Conseil d’Etat , the careers of the members of the Conseil d’Etat and the functions previously exercised by them. However, they did not produce any evidence capable of justifying the conclusion that, in the exercise of previous or parallel functions, the members of the trial bench would have had to rule on the texts in issue, would have had any knowledge of them, or would have had relations with the opposing party likely to substantiate fears of a lack of impartiality (Comm. Eu . DH., no. 36834/97, dec . 3.12.97, unpublished; and, a contrario , Holm v. Sweden , judgment of 25 November 1993 , series A no. 279; and Procola v. Luxembourg , cited above).

In any event, in the present case, the Court notes that in the absence of evidence to the contrary there is no reason to doubt either the independence or the impartiality of the members of the Conseil d’Etat .

It follows that the applicants’ fears cannot be held to be objectively justified and that this part of the complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must therefore be rejected pursuant to Article 35 § 4 of the Convention.

d. Finally, the applicants complained of the obligation to be represented before the Conseil d’Etat by a member of the Conseil d’Etat and Court of Cassation Bar, which, in their opinion, infringed the principle of fairness. In essence, they contested the monopoly enjoyed by the members of the Conseil d’Etat and Court of Cassation Bar, which, in their opinion, introduced selection on a financial criterion.

In this regard the Court reaffirms that Article 6 of the Convention does not compel the contracting States to set up courts of appeal or of cassation. Nevertheless, a State which does institute such courts is required to ensure that persons amenable to the law enjoy before these courts the fundamental guarantees contained in Article 6 (see, inter alia , Delcourt v. Belgium , judgment of 17 January 1970, Series A no. 11, p. 14, § 25). The way in which Article 6 § 1 applies depends on the special features of the proceedings concerned. In evaluating this, account must be taken of the entirety of the proceedings conducted in the domestic legal order and the court of cassation’s role in them; the conditions of admissibility of an appeal on points of law may be stricter than for an ordinary appeal (see, inter alia , Brualla Gomez de la Torre v. Spain , judgment of 19 December 1997, Reports 1997-VIII, p. 2956, § 37).

The Court notes that, under French law, owing to the special nature of proceedings before the Court of Cassation, appellants to the Court of Cassation must, in principle, use a specialist lawyer who is a member of the Conseil d’Etat and Court of Cassation Bar. This was the situation in the present case, where the applicants were obliged to be represented before the Conseil d’Etat by a lawyer with the right of audience in the Conseil d’Etat and Court of Cassation Bar.

The Court also points out that, in its recent case-law, it has accepted that the special nature of proceedings before the Courts of Cassation, considered as a whole, “may justify specialist lawyers being reserved a monopoly on making oral representations and that such a reservation does not deny applicants a reasonable opportunity to present their cases under conditions that do not place them at a substantial disadvantage” (see Meftah and others v. France [GC], nos. 23911/96, 35237/97 and 34595/97, § 47, ECHR 2002-VII).  

The Court considers that this finding could be transposed to the present case. It considers that, bearing in mind the role of the Conseil d’Etat and having regard to the proceedings in their entirety, the fact of not having given the applicants an opportunity to argue their case orally, personally or through the intermediary of a lawyer from the ordinary Bar, but having provided them with the opportunity to select their counsel from among the members of the Conseil d’Etat and Court of Cassation Bar, did not infringe their right to a fair trial within the meaning of Article 6 of the Convention.

It follows that this part of the complaint must therefore be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

(...)

4. The applicants complained that the interference with their possessions inflicted by the water-management works, which they had had to pay for through property taxes, had not been in the general interest but served only the interests of L., who was then deputy-chairperson of the AFR. They relied on Article 1 of Protocol No. 1 to the Convention, which provides:

“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 ...”

Under Article 35 § 1 of the Convention, “the Court may only deal with the matter after all domestic remedies have been exhausted...”. In the present case, the Court notes that the alleged violation of Article 1 of Protocol No. 1 to the Convention was not expressly raised before the Conseil d’Etat .

Even allowing that the applicants did in essence raise this complaint in that they challenged before the Conseil d’Etat the aim pursued through implementation of the water-management works and distribution of the related costs, the Court does not share their view.

The Court notes that a land consolidation project and the related operations may represent an interference with the applicants’ right to property which, in the circumstances of the present case, is covered by the second sentence of the first paragraph of Article 1 of Protocol No. 1, cited above.

The Court points out that an interference must achieve a fair balance “between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights” and that States enjoy a margin of appreciation in determining the measures of public interest (see, in particular, Fredin v. Sweden , judgment of 18 February 1991, Series A no. 192, pp. 17 and 18, § 51).

In the present case, the Court notes that the water-management works carried out were part of a general land improvement programme in the re-parcelled area. The Court can see no basis in the case-file for asserting that the water-management works were carried out exclusively for the benefit of L. and do not correspond to the land consolidation project’s objective,  namely to improve the agricultural infrastructure and to contribute to development of the municipal territory as a whole. Consequently, it may be considered that the State’s interference complies with the requirement of legality. The Court also considers that the aim of the water-management works, namely general improvement of the re-parcelled area, comes under the concept of public interest within the meaning of the first paragraph of Article 1 of Protocol No. 1.

As to the requirement of proportionality between the interference with the applicants’ right to property and the pursued aim of general interest, the Caen Administrative Court, upheld by the Nantes Administrative Court of Appeal and the Conseil d’Etat , found that the rule on the division of costs had not been disregarded and that, consequently, there had not been a breach of Article R.133-8 of the Countryside Code which provides that the costs appertaining to water-management works are to be divided in proportion to their benefit. In these conditions, the Court considers that the impugned operation cannot be considered to have caused the applicants a loss tending to render this operation disproportionate to the aim pursued or arbitrary.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

(...)

For these reasons, the Court unanimously

Declares the application inadmissible.

Søren NIELSEN C.L. ROZAKIS

Deputy Registrar President