Information Note on the Court’s case-law 259

February 2022

N.M. and Others v. France - 66328/14

Judgment 3.2.2022 [Section V]

Article 1 of Protocol No. 1

Article 1 para. 1 of Protocol No. 1

Deprivation of property

Refusal to award compensation in respect of the financial burdens arising from the disability of a child, born disabled as a result of a fault during the prenatal diagnosis, through retrospective application of the law: violation

Facts – The parents of a child who was born with a disability in 2001 brought an action in fault against a hospital for medical error in 2006, on their own behalf and that of their child, given that the prenatal diagnosis had not detected any abnormalities. They claimed compensation, among other heads, for the costs arising from the disability.

New legislative provisions (codified in Article L. 114-5 of the Social Action and Family Code (CASF)), which prohibited the inclusion of such costs in calculating the prejudice for which compensation was payable, entered into force on 7 March 2002, that is, after the birth of the applicants’ child (in 2001) but before their claim for compensation for the harm sustained was lodged (in 2006). This law’s transitional provisions provided for its retrospective application. In 2010, however, the Constitutional Council repealed these provisions in a decision on a request for a preliminary ruling on constitutionality (QPC).

This decision gave rise to two different interpretations by the Conseil d’État and the Court of Cassation with regard to the applicability of Article L. 114-5 of the CASF to litigation concerning events which gave rise to a claim and had occurred prior to the entry into force of this legislation but where the litigation in question was initiated after that entry into force. The Conseil d’État held that the new provisions were applicable to such a situation, whereas the Court of Cassation considered that the provisions of ordinary law ought to apply, with the result that it was the law in force at the time that the damage occurred which was applicable.

In the present case, in 2014 the Conseil d’État held that since the applicants had not instituted the proceedings prior to the entry into force of the relevant legislation (on 7 March 2002), Article L. 114-5 of the CASF was applicable to the dispute, and concluded that this prevented an award of compensation for the costs of caring for the disabled child throughout his life, compensation to which they would have been entitled under a consistent line of case-law prior to the enactment of that legislation.

Law – Article 1 of Protocol No. 1: In view of the principles of French ordinary law and the settled case-law with regard to liability, according to which a claim for compensation came into being as soon as the damage giving rise to the claim had occurred, the applicants could legitimately have expected to be able to obtain compensation for the prejudice they had sustained, corresponding to the costs of caring for their disabled child, as soon as that damage occurred, namely when the child was born, prior to the enactment of the impugned legislation. They had therefore had a “possession” within the meaning of the first sentence of Article 1 of Protocol No. 1.

The application to the applicants’ action of the provisions of Article L. 114-5 of the CASF, which excluded in principle compensation for the costs of caring for their son’s disability, constituted an interference amounting to a deprivation of property.

Firstly, under the terms of the Constitutional Council’s QPC decision, all of the transitional provisions laying down the retrospective application of Article L. 114-5 of the CASF had been repealed. This had immediately opened the way for application of the rules of ordinary law governing application of the law over time. Article L. 114-5 of the CASF could not therefore be applied to facts which occurred prior to the entry into force of the Law of 4 March 2002, irrespective of the date on which the proceedings were brought.

Secondly, there was a divergence between the interpretation adopted unliterally by the Conseil d’État regarding the legislature’s intention and the scope of the repeal decided by the Constitutional Council and the interpretation adopted by the Court of Cassation.

In these circumstances, the legality of the interference resulting from the application, through the Conseil d’État’s decision, of Article L. 114-5 of the CASF could not be derived from the domestic courts’ settled and stabilised case-law. Thus, the retrospective interference with the applicants’ possessions could not be regarded as having been "provided for by law" within the meaning of Article 1 of Protocol No. 1.

Conclusion : violation (unanimously).

Article 41: just satisfaction reserved.

(See also Maurice v. France [GC], 11810/03, 6 October 2005, Legal summary )

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

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