Information Note on the Court’s case-law 16

March 2000

Dulaurans v. France - 34553/97

Judgment 21.3.2000 [Section III]

Article 6

Civil proceedings

Article 6-1

Fair hearing

Dismissal of appeal on points of law as a consequence of a clear error: violation

Facts : The applicant instructed B.N., a property dealer, to sell two properties belonging to her. She later gave him two powers of attorney to sell the propertie s in question. Having found a buyer for a higher price, the applicant eventually revoked the powers of attorney. B.N. countered that he had already entered into two preliminary contracts of sale in her name. The applicant concluded a settlement with B.N., in which she agreed to pay him a lump sum in compensation. However, as the applicant refused to pay B.N. the lump sum on the agreed date, he brought proceedings against her for payment of the compensation. The applicant argued that the powers of attorney s he had granted to B.N. were void for failure to comply with formalities laid down in the Act of 2 January 1970 on the conditions for carrying on activities relating to certain property and business transactions. The applicant submitted that the Act applied to B.N. as he had concluded two transactions referred to in it by means of the two powers of attorney, a condition which had been held by the courts to be sufficient to bring him within the terms of the Act. The applicant was ordered to pay the lump-sum c ompensation by the tribunal de grande instance , which did not, however, rule on the complaint of failure to comply with the 1970 Act. The applicant paid the disputed sum and appealed, seeking a declaration that the powers of attorney were void for failure to comply with the 1970 Act; although once again asserting that that Act applied to B.N., the applicant did not expressly mention the two powers of attorney as justifying applying it to B.N. The Court of Appeal dismissed her appeal on the ground that the 1 970 Act did not apply to B.N., since he did not regularly enter into the transactions covered by it. The applicant appealed on points of law and again submitted that the 1970 Act applied to B.N. because of the two powers of attorney which she had given him . B.N. filed a defence in which he raised an objection to admissibility, asserting that the applicant had raised a new argument in her appeal on points of law. The Court of Cassation dismissed the applicant’s appeal on points of law on the ground that the argument based on the habitual nature of B.N.’s activities, which was a precondition for applying the 1970 Act, had not been raised by the applicant before the case had come before the Court of Cassation.

Law : Article 6 § 1: Both at first instance and in t he Court of Cassation, the applicant had argued that the habitual nature of the work she had instructed B.N. to carry out was apparent from the two powers of attorney she had given him to sell the two buildings. While it was true that at the appeal stage t he applicant had not expressly referred to the two powers of attorney in issue, it could not be said on that account that she had put forward two different lines of reasoning. In stating that B.N. had already acted on her behalf, the applicant could only b e alluding to the two powers of attorney in question. In addition, the Court of Cassation confined itself to declaring that in her submissions the applicant had only maintained that B.N. had effected or participated in transactions covered by the 1970 Act. The Court of Appeal, however, in the operative provisions of its judgment, had decided precisely that issue and there was no reason for the Court of Appeal to have reached that conclusion unless to answer a complaint raised by the applicant. The absence o f any other reasoning by the Court of Cassation suggested that the dismissal of the ground of appeal in question was the result of an error.

Conclusion : violation (unanimously)

Article 41: The Court awarded the applicant the sum of 100,000 French francs (F RF) in respect of pecuniary and non-pecuniary damage and also FRF 50,000 in respect of costs and expenses.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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