Interim Resolution DH (99) 724

Concerning the judgments of the European Court of Human Rights of 20 November 1995 and 3 July 1997 in the case of Pressos Compania Naviera S.A. and others

against Belgium

(Adopted by the Committee of Ministers on 3 December 1999 at the 688th meeting of the Ministers’ Deputies)

the Committee of Ministers, under the terms of Article 54 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as “the Convention”),

Having regard to the judgments of the European Court of Human Rights in the Pressos Compania Naviera S.A. and others case delivered on 20 November 1995 and on 3 July 1997 and transmitted the same days to the Committee of Ministers;

Recalling that the case originated in an application (No. 17849/91) against Belgium, lodged with the European Commission of Human Rights on 4 January 1991 under Article 25 of the Co n vention by twenty-six companies, all involved in maritime accidents which happened before September 1988, and that the Commission declared admissible the complaints that the Belgian Law of 30 August 1988 which retroactively limited the liability of ships’ pilots, constituted a breach of the right to the peaceful enjoyment of their possessions and a breach of the right to a fair trial due to direct interference with proceedings pending before the courts;

Recalling that the case was brought before the Court by the Commission on 9 September 1994 and, subsequently, by the Government of Belgium on 21 October 1994;

Whereas in its judgment of 20 November 1995 the Court:

- severed, unanimously, the sixth applicant's (City Corporation) complaints from those of the other applicants and decided to strike them out of the list;

- dismissed, unanimously, the government's preliminary objection regarding the non-exhaustion of domestic remedies;

- held, by eight votes to one, that there had been a violation of Article 1 of Protocol No. 1 and that it was not necessary to examine the case also under Article 6, paragraph 1, of the Convention;

- held, unanimously, that the government of the respondent state was to pay to the applicants, within three months, 8 000 000 Belgian francs in respect of costs and expenses, and reserved the question of the application of Article 50 as regards pecuniary damage since the latter was not ready for decision;

Whereas in its judgment of 3 July 1997 delivered under Article 50, the Court unanimously:

- considered that it was not appropriate to apply Article 50 to the applicants, with the exception of the twenty-fifth applicant company (Naviera Uralar S.A . ), until the Belgian courts had given a final ruling in the disputes that the applicants brought before them, and decided accordingly to strike the case out of the list with respect to all the applicants except the twenty-fifth, reserving the power to restore the case in the list if necessary;

- held that the government of the respondent state was to pay the twenty-fifth applicant (Naviera Uralar S.A.), within three months, 4 843 019.50 Belgian francs for pecuniary damage, on which sum statutory interest was payable from 31 May 1997 until settlement;

- held that the present judgment constituted sufficient just satisfaction in respect of any non-pecuniary damage sustained by Naviera Uralar S.A . and dismissed the remainder of the claim for just satisfaction made by the applicant company;

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Art i cle 54 of the Convention;

Having invited the government of the respondent state to inform it of the mea s ures which had been taken in consequence of the judgments of 20 November 1995 and 3 July 1997, having regard to Belgium’s obligation under Article 53 of the Conve n tion to abide by them;

Considering that High Contracting Parties are required to take the necessary measures to conform herewith, notably by preventing new violations of the Convention similar to those found in the Court's judgments;

Whereas the government of the respondent state provided the Committee of Ministers with information about the measures taken so far to this effect (this information appears in the appendix to this resolution);

Having satisfied itself that, within the time-limit set, the government of the respondent state paid the representative of the a p plicant companies the sum provided for in the judgment of 20 November 1995, and that it paid to the twenty-fifth applicant, Naviera Uralar S.A., the capital sum and the statutory interest provided for in the judgment of 3 July 1997,

Declares, after having taken note of the information supplied by the Government of Belgium, that it has provisionally exe r cised its functions under Article 54 of the Convention in this case,

Decides to resume consideration of this case, as far as general measures are concerned, when the reform of the act of 3 November 1967 on the piloting of sea-going ships, amended by the act of 30 August 1988, is completed or, at the latest, at one of its meetings in the autumn of 2000.

Appendix to Resolution DH (99) 724

Information provided by the Government of Belgium during the examination of the Pressos Compania Naviera S.A. and others case

by the Committee of Ministers

The Government of Belgium recalls that the European Convention on Human Rights and the judgments of the European Court of Human Rights have a direct effect in Belgian law.  Consequently, following the European Court’s judgment of 20 November 1995 on the merits in the case of Pressos Compania Naviera S.A. and others, the Belgian courts have ceased to apply the 1988 act which was at the origin of the violation of Article 1 of Protocol No. 1 found in the present case.  The Belgian Government has provided the Court and the Committee of Ministers with several examples attesting to this reversal in case-law (judgment of the Antwerp Commercial Court of 6 June 1996, judgment of the Ghent Court of Appeal of 31 October 1996).

On 10 May 1996, the government also approved a bill, amending Section 3 bis of the act of 3 November 1967 on the piloting of sea-going vessels, amended by the act of 30 August 1988.  This bill sought to delete the reference to the retrospective exemption from pilots’ liability provided for under the act of 30 August 1988 (Section 2.1 of the bill) and to introduce a new system of limited liability for maritime claims prior to the entry into force of this act.  The new system provided for the possibility of the liability of the officer held responsible to be limited to 500 000 Belgian francs for each incident causing damage (Section 2.2 of the bill).

In its opinion (L. 25 534/9) on the bill delivered on 14 July 1997, the general assembly of the Conseil d’Etat nevertheless stated that in the light of the case-law of the European Court (in particular the Stran Greek Refinerie s and Stratis Andreadis judgment of 9 December 1994 and the Pressos Compania Naviera S.A. and others judgment (Article 50) of 3 July 1997), Section 2.2 of the bill was seriously “exposed to the risk of being contrary to Article 6 of the Convention” insofar as a limitation of liability applied with retrospective effect was intended “to have a direct influence on the settlement of disputes currently before the courts.”  The Conseil d’Etat consequently concluded that that the “bill, therefore, needed to be reviewed in its entirety”.

Following this negative opinion from the Conseil d’Etat , the government looked anew at the bill in question in order to bring it into line with the Convention as interpreted by the European Court.  The government expects this work to result in a new bill in 1999 and anticipated that it could be passed by Parliament by the end of the year 2000.

In the light of the above, the Government of Belgium believes that, in view of the direct effect attributed by the Belgian courts to the case-law of the European Court, Belgium has taken the initial steps necessary to comply with its obligation under Article 53 of the Convention.  As it is necessary to reform current legislation on the piloting of sea-going ships in order to resolve completely the problems raised by the European Court’s judgments in this case, the government proposes that the Committee of Ministers resume consideration of the execution of these judgments once a new legislative act has been passed or, at the latest, at one of its meetings in the autumn of 2000.