JOINT PARTLY DISSENTING OPINION OF JUDGES ZUPANČIČ, BÎRSAN AND LONG

(Translation)

It is with great regret that we are unable to agree with the first operative paragraph of the judgment which reads: “there has been a violation of Article 6 § 1 of the Convention, in so far as it secures the right to an independent and impartial tribunal, on account of the applicant company ' s objectively justified misgivings about the bench of the Conseil d ' Etat which delivered the judgment of 19 May 2000”.

The applicant company argued, among other things, that the Conseil d ' Etat was not an independent and impart ial tribunal on account, first , of the plurality of its functions and, second , of the manner of appointment and the status of its members, a s illustrated in the present case by the appointment, on 26 May 2000, of one of the members of the bench which delivered the impugned judgment of 19 May 2000 to the post of Secretary General at the m inistry responsible for mining, when the company ' s activities , which had given rise to its litigation against the Government, fell within the purview of that very ministry .

Whilst, on the first point, the Court arrived at the conclusion that the successive exercise by the Conseil d ' Etat of its administrative functions and judicial jurisdiction was not capable of entailing a violation of Article 6 § 1 of the Convention , thus adhering to the Kleyn v. the Netherlands case-law – a conclusion with which we fully agree – on the second point, by contrast, the majority in the Chamber found a violation of that same provision.

Admittedly, o n that second point, the Court, not departing from its settled case-law in such matters, did not wish to call into question, generally speaking, the method of appointment of members of the Conseil d ' Etat or the organisation of their career s . That being said, in so far as the applicant company had argued that the appointment of a member of the judicial bench to the post of Secretary General of the Ministry for Economic Affairs, Finance and Industry had been such as to cast “serious doubt” upon the independence of the Conseil d ' Etat in its decision of 19 May 2000, the Court had to examine whether in the present case the supreme administrative court of France had presented the “appearance of independence” required by the Court ' s case-law , having regard to the “existence of safeguards against extraneous pressure ” (paragraph 59 of the judgment).

In this connection, the majority in the Chamber took, as the starting-point of their reasoning, an undeniable fact: the appointment in question post-dated the deliberation of the Conseil d ' Etat of 26 April 2000. However, they bore in mind, as the Government had indicated, that discussi ons concerning the appointment were apparently “already underway ” in April 2000, and had thus begun “probably” at least a certain time before the deliberation of the judicial bench. Accordingly, agreeing with the applicant company, the majority were of the opinion that the impugned appointment was “likely to cast doubt on the impartiality of the Conseil d ' Etat ”. They consider that, in view of the fact that during the deliberation, “or even perhaps well before” – and we emphasise that point – one of the members of the judicial bench had been under consideration for appointment to a senior position in the ministry which was its opponent in a large number of major disputes, he could not appear as a neutral figure in the eyes of the applicant company. The majority considered that in the circumstances the company had no safeguards “against possible extraneous influence ” on account of the impugned appointment “at the time he exercised his judicial function in April”, and that this was capable of giving rise to “ objectively justified misgivings ex post facto about the independence and impartiality of the bench on which the member in question had sat ” (paragraph 69).

In fact, the point on which we disagree with the majority concerns the application to the situation at issue of the notions of independence and objective impartiality, which in the circumstances of the case are closely linked (paragraph 62). In this connection, the Court has constantly held that the objective test consis ts in determining whether, irrespective of the judge ' s personal conduct, there are ascertainable facts which may raise doubts as to his impartiality. In this respect even appearances may be of a certain importance. What is at stake is the confidence which the courts in a democratic society must inspire in the public. Accordingly, any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw. In deciding whether in a given case there is a legitimate reason to fear that a particular judge lacks impartiality, the standpoint of a party is important but not decisive. What is decisive is whether this fear can be held to be objectively justified (see, among other authorities , Castillo Algar v. Spain , judgment of 28 October 1998, Reports 1998 ‑ VIII, § 45, and Morel v. France , no. 34130/96, § 42, ECHR 2000 ‑ VI). Similarly, the Court has held with equal consistency that a judge ' s final analysis in a given case is carried out when judgment is delivered and is based on the evidence produced and argument heard at the hearing (see, for example, Hauschildt v. Denmark , judgment of 24 May 1989, Series A no. 154, § 50; Nortier v. the Netherlands , judgment of 24 August 1993, Series A no. 267, § 332; Saraiva de Carvalho v. Portugal , judgment of 22 April 1994, Series A no. 286 ‑ B, § 35; and Morel , cited above, § 45).

How then does this apply to the present case? First, we consider that the applicant company did not produce any evidence to suggest that the guarantees of independence of members of the supreme French administrative court, as emphasised by the Court in Kress v. France ( §§ 31-37 and 71), could be called into question in the present case. On the contrary, as the present judgment points out, the position of the Conseil d ' Etat among French institutions does not preclude the existence of guarantees as to its independence (paragraph 66). Secondly, we consider that, appearances notwithstanding , the appointment of the member of the Conseil d ' Etat in question cannot in itself undermine the finding concerning the general judicial practice of the Conseil d ' Etat for the simple reason – which is not in dispute and indeed unquestionable – that it took place after the member had exercised his judicial function. In addition, the applicant company failed to show how that appointment could have aroused suspicion of a link between the member of the Conseil d ' Etat and the other party in the proceedings, or could have revealed the existence of any extraneous influence on the performance of his duties. In our opinion, the factors on which the majority have based their finding of a violation of Article 6 § 1 of the Convention in this respect – that is to say the fact that discussions concerning the appointment were said to have begun “probably” at least a certain time before the deliberation, in view of the importance of the vacancy to be filled, “or even perhaps well before”, and that those discussions concerned a member of the bench who was under consideration for a senior post in the ministry against which the applicant company had brought proceedings – appear to us to amount to pure conjecture . Appearances have their own limits and have to be based on objective facts, which we consider not to be the case here. In conclusion, it would have been better for the Court , in a case where it did have the opportunity to do so , to have set limits on an extreme attachment to the theory of appearances – a theory that could result in a form of general suspicion and, in the end, generate legal insecurity.