ITEMID: 001-57604
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 1982
DOCNAME: CASE OF YOUNG, JAMES AND WEBSTER v. THE UNITED KINGDOM (ARTICLE 50)
IMPORTANCE: 2
CONCLUSION: Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
TEXT: 1. The case of Young, James and Webster was referred to the Court by the European Commission of Human Rights ("the Commission") in May 1980. The case originated in two applications against the United Kingdom of Great Britain and Northern Ireland lodged with the Commission in 1976 and 1977 by Mr. Ian McLean Young, Mr. Noël Henry James and Mr. Ronald Roger Webster.
2. On 25 November 1980, the Chamber constituted to examine the case relinquished jurisdiction in favour of the plenary Court (Rule 48 of the Rules of Court). By a judgment of 13 August 1981, the latter held, inter alia, that the applicants’ dismissal from employment for failure to join a specified trade union had entailed a breach of Article 11 (art. 11) of the Convention (Series A no. 44, point 1 of the operative provisions and paragraphs 50-65 of the reasons, pp. 27 and 21-26).
The only outstanding matter to be settled is the question of the application of Article 50 (art. 50) in the present case. Accordingly, as regards the facts, the Court will confine itself here to giving the pertinent details; for further particulars, reference should be made to paragraphs 12 to 44 of the above-mentioned judgment (ibid., pp. 8-18).
3. At the hearings of 3 and 4 March 1981, counsel for the applicants had indicated that, should the Court find a violation, his clients would seek just satisfaction under Article 50 (art. 50) in respect of material losses, legal costs and allied expenses, and non-material damages.
In its judgment of 13 August 1981, the Court reserved the whole of the question of the application of Article 50 (art. 50) and referred it back to the Chamber under Rule 50 § 4 of the Rules of Court. On the same day, the Chamber invited the Commission to submit, within the next two months, its written observations on the said question, including notification of any friendly settlement at which the Government of the United Kingdom ("the Government") and the applicants might have arrived (ibid., p. 33).
4. Following several extensions by the President of the Chamber of the above-mentioned time-limit and in accordance with his Orders and directions, the registry received
- on 13 April 1982, observations of the Delegate of the Commission concerned with the issue under Article 50 (art. 50);
- on 24 June and 21 September 1982, through the Secretary to the Commission, observations of the applicants;
- on 15 May and 4 August 1982, comments of the Government and their replies to questions put to them by the Court.
These documents revealed that no friendly settlement of the applicants’ claims had been arrived at; they gave details of negotiations conducted to this end, with the assistance of the Commission, between the Government and the applicants, of an offer made by the Government on 17 March 1982 and of the applicants’ views thereon.
5. In his observations, the Commission’s Delegate submitted that just satisfaction should be afforded in the form of payments by the Government to the applicants, on the terms which he mentioned, of the same total amount as that offered by the Government during the negotiations, namely £145,917 less certain sums already received by the applicants from the Government by way of payments on account in respect of pecuniary losses and from the Commission by way of legal aid.
For ease of reference, further particulars concerning the applicants’ claims and the Government’s offer are set out below in the section "As to the law".
6. Having consulted, through the Registrar, the Agent of the Government and the Delegate of the Commission, the Court decided on 1 October 1982 that there was no call to hold hearings.
7. Mr. F. Gölcüklü, a substitute judge, took the place of Mr. G. Lagergren, who was prevented from taking part in the consideration of the case (Rules 22-1 and 24-1 of the Rules of Court).


ITEMID: 001-80723
LANGUAGEISOCODE: ENG
RESPONDENT: MKD
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF DIKA v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Peer Lorenzen
TEXT: 6. The applicant was born in 1966 and lives in the village Livadi, Struga, the former Yugoslav Republic of Macedonia.
7. On 5 March 1993 a Fokker airplane, which was operated by the Macedonian company Palair (“the first defendant”), crashed at Skopje airport during taking off. The applicant was one of the few passengers who survived the accident. He sustained serious physical injuries.
8. Settlement negotiations between the applicant, the Palair, Fokker Airkraft B.V. (“the second defendant”), Airkraft Financing & Trading B.V. from the Netherlands and Lloyds of London were unsuccessful.
9. On 17 February 1995 the applicant brought a civil action before the Skopje Court of First Instance (Основен суд Скопје I Скопје) requesting the court to award him compensation for the pecuniary and non-pecuniary loss sustained as a result of the accident: in particular, he asked the court to order the defendants to compensate him for the loss of his personal belongings, medical expenses, his loss of income and loss for his mental suffering, as well as to pay him a life-time pension given his permanent incapacity.
10. The first hearing was held on 27 October 1995 and was attended by all parties. It was adjourned on the request of the applicant to allow him to submit additional evidence.
11. The hearing fixed for 8 December 1995 was adjourned due to the applicant's illness.
12. At a hearing held on 6 February 1996, the court provided the defendants with evidence previously submitted by the applicant.
13. The next hearing of 26 March 1996 was rescheduled on the defendants' request for further time to examine the applicant's submissions. Meanwhile, the applicant changed lawyers. At the hearing of 14 May 1996, the court ordered one of the defendants to provide further evidence.
14. At a hearing on 27 June 1996, the court ordered a forensic expert examination to establish the applicant's loss of income given that he had a work permit in Switzerland.
15. Hearings scheduled for 21 November 1996 and 11 February 1997 were adjourned as the parties had not been properly summoned.
16. At a hearing of 25 March 1997 the applicant had requested an adjournment to allow him to further particularise his claim.
17. At a hearing held on 9 May 1997, one of the defendants requested a postponement to examine the applicant's more recent submissions.
18. On 26 June 1997 the court adjourned the hearing: there was no evidence that the forensic expert and the first defendant had been properly summoned.
19. On 24 October 1997 the court heard the expert. The court further ordered the applicant to further particularise his financial claim and to provide information about a sum of money he had already received from the first defendant.
20. On 17 November 1997 the applicant requested the Minister of Justice to intervene before the competent court for a speedy resolution of his case.
21. On 24 January 1998 the applicant complained before the President of the Skopje Court of First Instance that no decision had been taken although all relevant evidence and expert opinions had been obtained. On 14 May 1998 he repeated his grievances before the President of the Skopje Appeal Court.
22. Adjournments of hearings fixed for 18 December 1997 and 17 February 1998 were afforded in the absence of evidence that the first defendant had been properly summoned.
23. A hearing fixed for 21 April 1998 was adjourned on the parties' request, as they were pursuing an out-of-court settlement.
24. A hearing held on 22 May 1998 was postponed as the first defendant had withdrawn from the case.
25. Hearings fixed for 11 September 1998, 19 November 1998 and 16 February 1999 were adjourned again due to a lack of evidence that the first defendant had been properly summoned. The court record stated that the slip of the mail receipt had borne the signature, but not the stamp, of the first defendant.
26. On 19 February 1999 the applicant requested to be exempted from court fees.
27. The court adjourned a hearing fixed for 13 April 1999 as the applicant had failed to provide evidence supporting his request for exemption. Hearings fixed for 8 June, 5 October and 7 December 1999 were adjourned due to improper delivery of the court summons on the first defendant.
28. On 8 November 1999 the applicant requested the Skopje Court of First Instance to declare it incompetent ratione loci and to confer the further handling of his case on the Struga Court of First Instance. He maintained that, because of his poor financial situation, he could not sustain the travelling expenses from his place of residence to Skopje to attend the court hearings.
29. On 11 February 2000 the Skopje Court of First Instance dismissed the applicant's request as out of time. By a decision of 21 September 2000 the Skopje Court of Appeal dismissed the applicant's appeal.
30. On 25 October 2000 the Supreme Court dismissed the applicant's request to transfer his case to another court competent ratione materiae: his arguments, that the proceedings had lasted almost five years and that he had scarce means of subsistence, could not be regarded as sufficient to justify that measure.
31. On 20 October 2000 the applicant complained before the State Judicial Council about the delays in the proceedings.
32. A hearing fixed for 22 December 2000 was adjourned as none of the parties appeared at court.
33. On 17 April 2001 the applicant requested a special delivery of the court summons on the first defendant.
34. The court adjourned a hearing fixed for 3 July 2001, in the parties' presence, to allow it examine the first defendant's legal status and the validity of the letter of authority of its lawyer. The court also undertook to secure information as to whether the first defendant had been insolvent.
35. On 30 October 2001 the court was informed that preliminary bankruptcy proceedings had been instituted against the first defendant. As that information did not reach the court in time, it adjourned a hearing fixed for 8 November 2001. The court decided to summon the first applicant's receiver for the next hearing.
36. The hearings fixed for 27 December 2001, 14 March and 16 May 2002 were adjourned due to improper delivery of the court summons on the first defendant or the receiver. The applicant proposed that a further summons for the first defendant be announced on the court's notice board.
37. On 4 July 2002 the court was notified that the preliminary bankruptcy proceedings against the first defendant had been suspended. The court adjourned a hearing fixed for 10 September 2002 to confirm the validity of the letter of authority of the first defendant's lawyer.
38. The court then adjourned a hearing of 8 November 2002 as the first defendant had not been properly summoned. In response to the applicant's request, it fixed the next hearing for 11 March 2003.
39. On 15 May 2003 the Skopje Court of First Instance partly upheld the applicant's claim and ordered the first defendant to pay just compensation for his non-pecuniary loss and for his pecuniary loss from March until November 1993. It dismissed the remainder of his claim against the first defendant. The court further dismissed his claim against the second defendant given the latter's lack of legal capacity (немање на пасивна легитимација).
40. On 10 September 2004 the Skopje Court of Appeal dismissed the applicant's appeal and upheld the trial court's decision.
41. On 19 April 2006 the Supreme Court dismissed the applicant's appeal on points of law (ревизија).
42. The applicant had six different representatives during these proceedings.
43. Section 10 of the Civil Proceedings Act (Закон за парничната постапка) (“the Act”) provided, at the relevant time, that it was incumbent upon the court to undertake to conduct the proceedings without undue delay and economically, and to inhibit any attempt of abuse of the rights afforded to the parties concerned.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-110255
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF PANAITESCU v. ROMANIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 2 - Right to life (Article 2-1 - Life) (Procedural aspect);Pecuniary and non-pecuniary damage - award
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria
TEXT: 7. Mr Ştefan Panaitescu (“the applicant”) was a Romanian national, born in 1944, who lived in Alejd, Bihor County. On 3 December 2006, he died and the application was continued by his son Mr Alexandru Leonard Panaitescu.
8. On 8 May 2002, the applicant filed an action against the Bihor County Pensions Office seeking the annulment of a decision denying him the benefit of Law no. 189/2000, which provided for damages and certain facilities for persons persecuted by the Romanian authorities between 6 September 1940 and 6 March 1945 on ethnic grounds.
By a decision of 3 June 2002, the Oradea Appeal Court found for the applicant, ordering the defendant to award him the benefits provided for in the above-mentioned Law. The decision became final on 28 January 2003.
Accordingly, on 2 April 2003 the commission responsible for the enforcement of Law no. 189/2000 issued a new decision confirming the applicant’s status as a refugee and consequently as a beneficiary of that Law from 1 April 2001; the decision confirmed that, inter alia, the applicant was entitled to obtain priority free medical assistance and medicines, both when hospitalised and as an outpatient.
9. On 20 April 2005, the applicant was diagnosed with cancer and on 4 May 2005, he underwent surgery at Oradea State Hospital for the removal of a tumour on the right kidney. Following medical tests, it was established that the tumour had reached stage III and that the lung was also affected. According to the applicant, although he was hospitalised in the oncology ward, the medical staff failed to administer him specific oncological treatment and he was administered only perfusions with vitamins and normal saline solution.
10. In these circumstances, the applicant approached the Cluj Napoca Oncological Institute.
On 16 September 2005, by a letter addressed to Oradea Hospital, Dr A.U., an oncologist from the Cluj Napoca Oncological Institute, confirmed a partial remission of the illness in the applicant’s case, and therefore recommended that he continue being treated with Avastin and Roferon, which he had started at his own expense in July 2005. This recommendation was later reiterated in a letter of 12 January 2006, in which Dr. A.U also acknowledged that the Avastin medicine, which had been administered to the patient twice a week from 1 July 2005, had been “procured and paid for in full by Mr. Panaitescu during the entire period of treatment”.
11. However, as he could not afford to continue indefinitely bearing the costs of the treatment, which was financially burdensome, the applicant notified the Bihor Health Insurance Service (Casa Judeţeană de Asigurări de Sănătate Bihor – “the CAS”) and the Bihor Public Health Office (Direcţia de Sănătate Publică Bihor) accordingly on 22 and 18 August 2005 respectively and sent numerous requests to the National Health Insurance Service (Casa Naţională de Asigurări de Sănătate - “the CNAS”), seeking to be granted the recommended drugs free of charge.
On 27 September 2005, through a local bailiff, he filed a notification with the CNAS requesting, on the basis of the relevant legislation and supporting documents, that funds be made available for the drugs recommended by his oncologist, namely Roferon and Avastin. The notification read as follows in its relevant part:
“I ask you to take into consideration that in case of failure to grant my request, you will incur civil and criminal liability for causing my death .... The director of the Bihor Public Health Office, Dr M.A., has confirmed to me that you have rejected my request. This fact is irrefutable proof of your guilt. ... Considering the urgent nature of the case, I request a solution within a maximum of ten days, any delay causing irreversible trauma, and after the expiry of that term, I shall be obliged to apply for an injunction in this regard and to initiate criminal proceedings because any refusal is tantamount to murder. I enclose the documents certifying my right and your obligation according to the Law governing the organisation of CNAS, the sole institution able to guarantee my right to life on the State’s behalf.”
The applicant addressed numerous other petitions to the relevant institutions, including the Government of Romania, but to no avail.
12. In addition, “in order to illustrate the distress he was suffering” the applicant informed the Court that since he was unable to pay for the drugs, he had applied to the Hamburg University Clinic, on the basis of a recommendation made by Dr A.U., to be included in the experimental trials of Bayer Concern for a new drug called Nexavar. On 18 May 2006, the applicant signed a contract with the aforesaid institution and started receiving treatment with Nexavar, which obliged him to be present at the clinic once every two months. No other information regarding the execution of that contract was submitted.
13. On 10 November 2005 the applicant brought a liability action against the CNAS and the CAS, requesting the Oradea Court of Appeal to order the defendants to provide him with the medicines Roferon and Avastin free of charge and with priority for the period recommended by his doctors, as well as with any other drugs prescribed by his doctors; he also asked to be reimbursed the cost of the drugs already paid for by him from July 2005 to date. He requested the court to notify the relevant institutions that their failure to do so would have the civil and criminal consequences of putting his life at risk.
By a judgment of 12 December 2005, the Oradea Appeal Court allowed the applicant’s claims. On the basis of medical documents and an opinion which attested to a remission of the illness after the use of the drugs Avastin and Roferon taken together, the court ordered the CNAS and the CAS to provide the applicant with the two requested drugs free of charge and with priority for the period recommended by the doctors, together with any other medicines prescribed by the doctors; it also ordered them to reimburse the applicant the cost of the medicines prescribed by the doctors borne so far by the applicant himself.
The court dismissed the CNAS’s defence that according to Government Decision no. 235/2005 the applicant could not be provided with Avastin free of charge, in so far as the drug Avastin was not on the list of drugs available to outpatients and therefore could not be subsidised from the National Health Insurance Fund (“the FNUASS”). The court argued that any list of medicines is susceptible of being amended all the time; otherwise, the use of any new drug proved to have positive effects on the evolution of cancer would be impossible for at least one or two years after it became available owing to administrative barriers and logistical formalities meant to ensure that its cost could be reimbursed by the FNUASS; this delay would have only negative repercussions for the health of the population. Furthermore, the court held that in so far as in the applicant’s case there was no other drug available as a replacement for Avastin, and considering that failure to use it would have repercussions for the evolution of his illness, the State authorities should have made it possible to have Avastin rapidly included on the list of reimbursable drugs.
14. The CNAS and the CAS contested that judgment before the High Court of Cassation and Justice, mainly arguing that the first-instance court was asking them to reimburse the applicant the cost of medicines that were not included on the list of reimbursable drugs. For the same reason, Avastin could not be provided free to the applicant.
On 19 April 2006, the High Court of Cassation and Justice dismissed the appeal and upheld the first-instance court’s judgment. The court held that the appellants’ contention that the applicant had been treated free of charge with Intron A (the equivalent of Roferon) from November 2005 until April 2006 was not supported by evidence and, in any event, that period did not cover the entire time during which the applicant should have been provided with medication free of charge.
At the same time, noting that the Avastin had already been approved by the National Medicines Agency in June 2005, the court considered that nothing prevented the appellants to have initiated legal procedures to have Avastin included on the list of reimbursable medicines starting with that moment, especially having in mind that no other equivalent of Avastin with similar therapeutical effects was included on that list.
15. On 23 May 2006 the applicant wrote to the CAS requesting the urgent enforcement of that final judgment, arguing that the remission of the illness had ceased and the illness had even worsened on account of the delays caused by the passivity of the State authorities. He also invoked Article 2 of the Convention, requesting the protection of his right to life.
16. By a letter of 5 September 2006 the applicant informed the Court that the judgment had not been enforced; moreover, he submitted that the CAS had no intention of complying with the final judgment, as proved by the fact that they had contested its enforcement and also lodged an extraordinary appeal, requesting that it be set aside (see paragraphs 17-18 below).
He further stated that the drug Roferon had been replaced by Intron, which he had stopped taking in September 2006 as it caused side effects and because the medical tests showed that the cancer had spread since he had been taking that drug. The applicant also informed the Court that on 1 August 2006 the ordinary treatment with cytostatics had been stopped with no explanation.
The applicant also submitted the results of medical tests carried out during his treatment with Avastin and Roferon, dated 16 September 2005, which confirmed that the disease was in partial remission, and blood test results dated 3 March 2006, after the treatment had ceased, which allegedly attested to an aggravation of the illness.
17. On 6 June 2006, the CAS contested the enforcement of the judgment of 12 December 2005, which had become final on 19 April 2006, alleging that the institution could not provide the applicant with the requested medicine, since it was not entitled to buy and sell drugs and medicine. Moreover, their relationship with pharmacies was one of cooperation, and not one of subordination, consequently they could not oblige them to provide the requested medicines to the applicant free of charge.
Concerning the applicant’s pecuniary claims, the CAS considered that although the evidence submitted by the applicant proved that some medication had been bought from abroad, the amounts of money paid were unspecified, and thus they were not able to make any payment in that regard. The CAS also asked that the enforcement of the disputed judgment be suspended pending the contestation proceedings.
18. The applicant’s son informed the Court that those proceedings had ended on 22 March 2010, when the contestation was dismissed in a final judgment; the CAS submitted that the pecuniary claims had become time-barred, while the obligation to provide the applicant with the medicine in question had been left without any object following the applicant’s death.
The CAS also informed that their extraordinary appeal against the disputed judgment (see paragraph 16 above) had also been dismissed by the High Court of Cassation and Justice
No copy of any judgment allegedly given in these proceedings was submitted.
19. Law no. 189/2000 provides for damages for persons persecuted on ethnic grounds who are refugees from the territories occupied during the Second World War. Section 5 (a) provides that persons whose cases are regulated by sections 1 and 3 “shall benefit from priority free medical care and drugs, both as outpatients and when hospitalised.”
20. Government decision no. 627/2005 amends decision no. 235/2005 regarding the approval for the year 2005 of the list of drugs from which insured persons being treated as outpatients, with or without a personal contribution, could benefit on the basis of a medical prescription. The persons concerned by the special laws, who were entitled to free medication paid for by the National Health Insurance Fund, were entitled to full reimbursement of the cost of all the medicines included on the list. Avastin was not included on the list.
VIOLATED_ARTICLES: 2
VIOLATED_PARAGRAPHS: 2-1


ITEMID: 001-72819
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: STENZEL v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Krzysztof Stenzel, is an Polish national who was born in 1964 and lives in Rumia, Poland.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1990 the applicant married J.S. In 1991 their daughter P. was born. On an unspecified date in 1992 the applicant moved out of the family home.
On 4 June 1992 the applicant applied to the Gdynia District Court (Sąd Rejonowy) for a residence order in respect of P.. Consequently, access proceedings were instituted.
In June 1992 the applicant filed a petition for divorce with the Gdynia District Court.
On 13 July 1992 the applicant requested the Gdynia District Court to make an interim order on access arrangements during the custody and access proceedings. On 27 July 1992 he also requested that J.S. be divested of parental rights.
On 10 August 1992 the applicant was awarded interim access to the child by the Gdynia District Court. This allowed him to visit the child on Saturdays. J.S. refused to comply with that order.
On 3 September 1992 the applicant applied for a court order prohibiting his wife from removing the child from Poland without his consent. On 4 November 1992 the court refused his request.
On 30 December 1992 he requested the Gdynia District Court to change the access arrangements determined on 10 August 1992.
On 8 June 1993 the Gdańsk Regional Court (Sąd Wojewódzki) dissolved the applicant’s marriage. The court awarded parental rights to both parents. It also limited the applicant in the exercise of his rights: it ordered that P.’s permanent residence be with her mother, but allowed the applicant to co-decide about the child’s education and health. The court did not specify access arrangements. On 10 December 1993 the applicant appealed against the divorce.
On 9 December 1993 J.S. instituted proceedings in which she requested that the applicant be divested of his parental rights on the ground that he had been aggressive towards her.
On 14 December 1993 the custody and access case was joined with the case instituted by the applicant’s wife.
In January 1994 J.S. left Poland together with the child and settled in Germany. She did not inform the applicant about it and did not give their new address in Germany.
In February 1994 the court gave J.S. three months in which to ensure compliance with the access arrangements provided for by the order of 10 August 1992. In February and in April 1994 the applicant again amended his application concerning the access arrangements and requested that the court issue a new interim decision to replace that of August 1992.
On 5 April 1994 the Gdynia District Court issued a decision allowing the applicant to see P. every Tuesday for two hours at the Family Diagnostics Centre in Sopot in her mother’s presence. The mother appealed.
On 6 September 1994 the Gdańsk Regional Court quashed this decision and remitted the case.
In October 1994 J.S. married a German citizen, changed her name to J.V. and moved to Hamburg with P.. She did not inform the applicant of her whereabouts. The applicant subsequently established their address with the assistance of the Polish consulate in Hamburg.
On 1 November 1994 the mother submitted that she would agree to report with the child at the Family Diagnostics Centre for an interview if she was granted appropriate protection against the applicant’s aggressive behaviour.
Following the remittal, on 19 October 1995 the Gdynia District Court issued its decision. The court dismissed J.V.’s motion that the applicant be divested of his parental rights, and the applicant’s motion that the child reside permanently with him. The court found that J.V was living with her new husband, a German citizen, his parents and P. in a house with a garden. It had been established by German social assistance authorities that P. got on well with her new environment and called her stepfather “dad”. P was happy, healthy and well cared for in her mother’s house. In April 1995 J.V. gave birth to another child. Conversely, the applicant was unemployed, lost his right to social security assistance and lived in his parent’s house. He had been also paying maintenance for another child – a six-year old son. The court considered that P. had every chance of obtaining an upbringing in a functional restructured family composed of her mother, her step-father and half-sister. She had a sense of security and stability in her mother’s house and it had been in the child’s interest to stay there. The court did not find any reasons to divest J.V of her parental rights. The fact that she had left Poland without informing the applicant thereof had certainly been an abuse of her parental rights, but could not serve as a ground on which to divest her of her rights in respect of P.’s custody. As to the applicant, there were also no grounds on which to divest him of his parental rights.
The applicant lodged an appeal with the Gdańsk Regional Court. He submitted that since 1992 the mother had made it impossible for him to have any contacts with P.
On 11 April 1996 the Gdańsk Regional Court upheld this decision. The court repeated the arguments of the first-instance court.
On 15 April 1996 the applicant instituted new proceedings in which he again requested the Gdynia District Court to establish access arrangements. On 23 April 1996 he lodged a further motion asking that full custody rights be restored to him.
On 20 May 1997 the Gdynia District Court dismissed the applicant’s motion of 23 April 1996 and refused to award custody to him. The court found, on the basis of new evidence obtained meanwhile from the German authorities, that P. was well integrated in her new family in Hamburg. She had no distinct memory of her life with her father before the divorce. Moreover, she received affection from her mother, her mother’s husband and his family. The spouses cared well for her, providing P. with the best conditions for her upbringing. The court accepted J.V.’s testimony that she had not deprived the applicant of effective access to the child as it had been the applicant who had made the contacts difficult due to his aggressive behaviour. The court concluded that removing P. from her mother’s custody, or even establishing a permanent access arrangement with the applicant, would harm the health and development of the child.
On 19 June 1997 the applicant appealed against this decision.
On 16 September 1997 the Gdańsk Regional Court upheld the contested decision and dismissed his appeal. It noted that having regard to the child’s well-being there were no circumstances which would justify a new decision on access arrangements.
On 10 April 1998 the Ombudsman lodged a motion on the applicant’s behalf with the Gdynia District Court to determine access arrangements. It was argued that the question of the applicant’s access to P. had never been settled except for the interim order of 10 August 1992. The child’s mother had deprived the applicant and the child of any possibility of contact. The applicant was right in emphasising that J.V. had abused her parental rights by removing the child from Poland without the applicant’s or the court’s permission or knowledge. That had constituted a violation of the domestic regulations and relevant provisions of international law. The Ombudsman stressed that J.V.’s actions had been clearly unlawful.
On 18 December 1998 the Gdynia District Court dismissed the applicant’s request for an interim access decision allowing him to send letters and presents to P.
On 18 March 1999 the Gdynia District Court established a temporary access arrangement and allowed the applicant to call P. once a week and to send letters to her. The applicant’s further appeal against this access arrangement was dismissed by the decision of the Gdańsk Regional Court on 28 May 1999.
On 6 July 2001 the Gdańsk District Court gave a decision on access arrangements. The child would visit the applicant once a year and he would be allowed to spend 14 days with her during the summer holidays. In addition the child would twice a month call the applicant. The applicant was allowed to send letters to his daughter.
The child’s mother appealed against this decision
On 14 June 2002 the Gdańsk Regional Court amended the first instance decision. The court considered that there were no grounds on which to accept that the child should have direct contacts with the applicant. P. had been brought up without any contacts with her father and she did not know him. Furthermore, as it appeared from her statements given in the proceedings before the German authorities, she had not been interested in having contact with the applicant. The court held that establishing a permanent access arrangement with the applicant could harm the child’s health and her development. In conclusion, the court allowed the applicant to send letters and gifts to his daughter.
On 12 December 1994 and 26 January 1996 the Gdynia District Court imposed fines on J.V. in the amount of 10 PLN for failure to comply with its order of 10 August 1992. On an unknown later date J.V. paid the fine which had been imposed on her on 12 December 1994. The enforcement proceedings concerning the second fine were discontinued in July 1997.
On 10 November 1999 the applicant again requested the court to impose a fine on J.V, alleging that she had prevented him from talking to P. on the phone and that she had refused to accept letters he had sent to P.
On 16 November 2000 the Gdynia District Court dismissed his request. The court considered that the applicant had failed to contact the mother in order to obtain her telephone number, and that it was not established that the mother had sent back any applicant’s letters.
On 27 March 2001, the Gdańsk Regional Court dismissed the applicant’s appeal against the first-instance decision. The court considered that it had not been confirmed that J.V. had obstructed the applicant’s attempts to contact his daughter.
On 20 January 2000 the Reinbeck District Court in Germany decided to change the divorce judgment insofar as it concerned the custody of P. and granted custody solely to the mother. It considered that the parents were in conflict and that, in any event, the applicant and the child lived far away from each other. The applicant had failed to appeal against this decision.
The Family and Custody Code (Kodeks Rodzinny i Opiekuńczy) provides:
Article 58 § 1
“In a decision on divorce, the court is competent to issue orders as to the care of the parties’ minor children (...). The court may grant custody right to one parent and limit the custody rights of the other one.”
The Code of Civil Proceedings (Kodeks Postępowania Cywilnego) provides:
Article 557
“The custody court can change its decision if the best interest of the person whom it concerns so require. “
According to the Supreme Court’s resolution, if a parent who has been obliged by a court decision to respect the other parents’ access rights refuses to comply therewith, access decisions are liable to the enforcement proceedings. The provisions of the Code of Civil Procedure on enforcement of non-pecuniary obligations are applicable to enforcement of court decisions on parental rights or access rights (resolution of the Supreme Court of 30 January 1976, III CZP 94/75, OSNCP 1976 7-8):
Article 1050
“1. If the debtor is obliged to take measures which cannot be taken by any other person, the court in whose district the enforcement proceedings were instituted, on the motion of a creditor and after hearing the parties, shall fix the time-limit within which the debtor shall comply with his obligation, on pain of a fine (...).
2. If the debtor fails to comply with this obligation, further time-limits may be fixed and further fines may be imposed by the court.”
If the court obliges a parent exercising custody rights to ensure access to a child to the other parent, Article 1050 of the Code of Civil Proceedings is applicable to the enforcement of this obligation.
The Hague Convention on Civil Aspects of International Child Abduction of 1980 provides in so far as relevant.
Article 21
“An application to make arrangements for organizing or securing the effective exercise of rights of access may be presented to the Central Authorities of the Contracting States in the same way as an application for the return of a child.
The Central Authorities are bound by the obligations of co-operation which are set forth in Article 7 to promote the peaceful enjoyment of access rights and the fulfilment of any conditions to which the exercise of such rights may be subject. The central Authorities shall take steps to remove, as far as possible, all obstacles to the exercise of such rights. The Central Authorities, either directly or through intermediaries, may initiate or assist in the institution of proceedings with a view to organizing or protecting these rights and securing respect for the conditions to which the exercise of these rights may be subject.”


ITEMID: 001-70824
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF KELES v. GERMANY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 8
JUDGES: David Thór Björgvinsson
TEXT: 4. The applicant was born in 1961. At the time the application was lodged he lived in Lörrach in Germany. He is currently residing in Turkey.
5. In 1972 the applicant, aged ten years, entered German territory in order to live there with his parents and his brother. He attended secondary school until 1977. In 1984 the applicant married a Turkish national in Turkey. In 1986 a son was born to the couple. On 14 March 1988 the competent authorities granted the applicant a permanent residence permit. In 1989 the applicant’s wife and son followed him to Germany. In 1990, 1991 and 1993 three further sons were born to the couple. One of the children has a learning handicap. The applicant’s wife is in possession of a permanent residence permit; all family members are Turkish nationals.
6. In 1983 the applicant – in view of previous convictions – was warned and informed that he would face expulsion if he committed further criminal offences (ausländerrechtliche Verwarnung).
7. On 14 February 1989 the Lörrach District Court (Amtsgericht) convicted the applicant of insulting behaviour and ordered him to pay fifteen daily rates of DEM 50.
8. On 3 June 1991 the District Court convicted the applicant of negligent drunken driving (fahrlässige Trunkenheit im Verkehr) and ordered him to pay thirty daily rates of DEM 60.
9. On 17 August 1992 the District Court convicted the applicant of inflicting bodily harm and of obstructing public officers in the execution of their duties and ordered him to pay forty daily rates of DEM 30.
10. On 27 October 1993 the District Court convicted the applicant of reckless driving (Gefährdung des Straßenverkehrs) and sentenced him to four months’ imprisonment, suspended on probation.
11. On 25 September 1995 the District Court convicted the applicant of inflicting bodily harm and ordered him to pay thirty daily rates of DEM 15.
12. On 22 October 1996 the District Court convicted the applicant of negligent drunken driving and sentenced him to five months’ imprisonment, suspended on probation.
13. On 11 February 1998 the District Court convicted the applicant of drunken driving in conjunction with driving without a driving license and sentenced him to six months’ imprisonment.
14. On 6 May 1998 the Freiburg Regional Court (Landgericht) rejected the applicant’s appeal in which he had asked that the execution of his sentence be suspended on probation. According to the Regional Court, the applicant’s numerous convictions did not seem to have served as warnings not to commit further criminal offences, having particular regard to the fact that the applicant had committed his last offence only three months after his previous conviction had acquired legal effect.
15. On 17 September 1998 the applicant was arrested and imprisoned. As his last offence had been committed while he was still on probation after the decision of the District Court of 22 October 1996, the suspension on probation was revoked and the applicant was imprisoned for four further months.
16. On 9 November 1998 the Lörrach District Court convicted the applicant of recklessly placing himself in a state of total intoxication (fahrlässiger Vollrausch) and sentenced him to a fine of forty daily rates.
17. On 22 January 1999 the Freiburg Regional Government (Regierungspräsidium) ordered the applicant’s expulsion to Turkey or to another State willing to accept him. Applying sections 47 § 2 and 48 § 1 of the Aliens Act (Ausländergesetz, see relevant domestic law below), it noted the applicant’s repeated criminal convictions, in particular those for traffic offences. The Regional Government found that the applicant’s criminal conduct had caused a serious threat for public safety. It further considered that there was a risk that he would commit similar offences in the future, as neither his previous convictions nor several warnings by the aliens’ authorities had deterred him from committing further offences. Moreover, the applicant had not solved his alcohol problem, but had dropped out of therapy. The Regional Government further argued that the applicant, on account of his age, would manage his integration in Turkey. His family could be reasonably expected to follow him as his children could be assumed to have sufficient knowledge of the Turkish culture and language. Exercising its discretion and with regard to Article 8 of the Convention, the Government found that the public interest in the applicant’s expulsion outweighed his own and his family’s interests, given the seriousness of the threat which he posed to public road traffic.
18. On 11 February 1999 the Regional Government rejected the applicant’s objection.
19. On 20 April 1999 the Freiburg Administrative Court (Verwaltungsgericht) refused to grant the applicant an interim order against his expulsion and confirmed the reasoning of the Regional Government. It found that the Regional Government’s decision was likely to be upheld in the main proceedings. The four traffic offences committed by the applicant since 1989, taken together with his further criminal convictions, constituted a serious reason justifying expulsion. The Administrative Court found, in particular, that the applicant’s offences could not be regarded as being of a minor nature, taking into account the high importance of the safety of road traffic within society. The court further confirmed that there was a danger of recidivism, because the applicant had not proved that he had overcome his alcohol problem. It finally found that the Regional Government duly considered the applicant’s family situation. Having regard to the considerable danger the applicant posed for other road users and to the fact that his family could live with him in Turkey, the expulsion did not violate the applicant’s right to the enjoyment of his family life as guaranteed by Article 6 of the Basic Law and by Article 8 of the Convention.
20. On 2 November 1999 the Freiburg Administrative Court confirmed the expulsion order, referring mainly to its reasoning in the decision of 20 April 1999.
21. On 8 December 1999 the applicant requested to be granted leave to appeal, arguing, in particular, that the expulsion violated his rights under Article 8 of the Convention.
22. On 28 May 2001 the Baden-Württemberg Administrative Court of Appeal (Verwaltungsgerichtshof) refused to grant the applicant leave to appeal, confirming that there was no apparent violation of Article 8 of the Convention. The Court of Appeal found, in particular, that the applicant’s family could be reasonably expected to follow him to Turkey, as they could be assumed to have sufficient knowledge of the Turkish language. This decision was served on the applicant’s counsel on 6 June 2001.
23. By letter and fax dated 4 July 2001 the applicant, represented by counsel, lodged a constitutional complaint, in which he gave a complete account of the proceedings before the domestic authorities and complained that his expulsion would violate his right to respect for his family life as guaranteed by Article 6 of the Basic Law.
24. By letter of 13 July 2001 the Federal Constitutional Court acknowledged receipt of the applicant’s complaint and attachments on 5 July 2001 by fax and on 7 July 2001 by mail.
25. On 15 February 2002 the Federal Constitutional Court, sitting as a panel of three judges, refused to accept the applicant’s constitutional complaint for adjudication, without giving any further reasons. This decision was served on the applicant’s counsel on 28 February 2002.
26. On 3 May 1999 the applicant was deported to Turkey. On 21 May 1999 he re-entered German territory and filed a request to be granted asylum.
27. According to the Government’s submissions, by penal order of 11 May 2001 the Lörrach District Court sentenced the applicant to a fine of twenty daily rates for having driven without a license on 23 March 2001.
28. On 16 May 2002 the applicant filed a request to set a time-limit on the effects of his expulsion.
29. On 23 August 2002 the Freiburg Regional Government informed him that the proceedings had been suspended pending proceedings on his asylum request.
30. On 15 May 2003, his asylum request having been rejected, an attempt to deport the applicant failed because the latter had gone into hiding. On 4 July 2003 the applicant was arrested and placed in detention pending his deportation. He was once again deported to Turkey on 12 August 2003.
31. On 19 December 2003 the applicant filed a second request to set a time-limit on the effects of his deportation of 12 August 2003. On 30 January 2004 the Freiburg Regional Government requested the applicant to submit a confirmation of registration with the Turkish authorities and an extract from the Turkish criminal records register. He was further informed about the costs of the two deportations (approximately EUR 8,000). No decision has so far been given on the applicant’s request.
32. The relevant provisions of the Rules of Procedure of the Federal Constitutional Court (Bundesverfassungsgerichtsgesetz) read as follows:
“Applications for the institution of proceedings must be submitted in writing to the Federal Constitutional Court. The reasons must be stated...”
“(1) Any person who claims that one of his basic rights...has been violated by public authority may lodge a constitutional complaint with the Federal Constitutional Court.”
“The reasons for the complaint shall specify the right which is claimed to have been violated and the act or omission of the organ or authority by which the complainant claims to have been harmed.”
“A constitutional complaint shall be lodged and substantiated within one month. This time-limit shall commence with the service or informal notification of the complete decision...”
“(1) A constitutional complaint shall require acceptance for adjudication.
It shall be accepted
(a) insofar as it is of fundamental constitutional significance,
(b) if this is necessary in order to assert the right referred to in Section 90 § 1...”
33. According to the case-law of the Federal Constitutional Court, an applicant has not only to name the right which has allegedly been violated, but also to present the proceedings which led to this violation in a substantiated and conclusive way (schlüssig und substantiiert), in order to comply with the above-mentioned provisions. This means that the applicant has to establish a link between the impugned decision and the alleged violation of his rights under the Basic Law.
34. The rights of entry and residence for foreigners were, at the relevant time, governed by the Aliens Act (Ausländergesetz), the relevant provision of which reads as follows:
“An alien shall generally (in der Regel) be expelled if he has been sentenced...to imprisonment in respect of one or more intentionally committed criminal offences and the execution of the sentence has not been suspended on probation...”
35. If the alien entered the German territory as a minor and was in possession of a permanent residence permit, he may only be expelled if serious reasons of public safety and order justify his expulsion (section 48 § 1 No. 2).
36. Section 45 provides that the domestic authorities, when deciding on an alien’s expulsion, shall, inter alia, accord due consideration to the duration of the person’s lawful residence, his personal, economic and other ties to the German territory and to the consequences of the expulsion for the alien’s family members who are legally residing with him.
37. According to section 8 § 2, an alien who has been expelled is not permitted to re-enter German territory. This effect shall usually (in der Regel) be limited in time upon application. The time-limit shall commence with the alien’s departure from German territory.
VIOLATED_ARTICLES: 8


ITEMID: 001-91098
LANGUAGEISOCODE: ENG
RESPONDENT: ALB
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF NURI v. ALBANIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: 6. The applicant was born in 1948 and lives in Tirana.
7. On an unspecified date the applicant lodged an application with the Lushnja Property Restitution and Compensation Commission (Komisioni i Kthimit dhe Kompensimit të Pronave – “the Commission”), seeking to have the property of her deceased relative, confiscated in 1949, returned to her.
8. On 22 April 1994 the Commission upheld the application and recognised the applicant’s property rights over two villas and a three-storey building measuring 1,380 sq. m and a plot of land measuring 540 sq. m.
9. As regards the three-storey building and one of the villas, the Commission decided to return the property to the applicant. As regards the other villa, the Commission recognised the applicant’s co-ownership with its existing occupier. However, as it was impossible to allocate the original plot of land measuring 540 sq. m to the applicant, the Commission ordered the payment of compensation in State bonds equivalent to the value of the plot. Lastly, the Commission ordered the authorities to enforce the decision.
10. On an unspecified date the applicant lodged a civil action with the Lushnjë District Court challenging the part of the Commission’s decision that recognised one of the villas as being jointly owned and claiming full ownership thereof. Notice of the proceedings was given to the existing occupier and the Commission.
11. On 23 January 1996 the court upheld the applicant’s civil claim and granted her full ownership of the villa. The court did not rule on the part of the Commission’s decision relating to the compensation issue.
12. On 10 May 1996, following an appeal by the defendant party, the Tirana Court of Appeal upheld the District Court’s decision. As no appeal was lodged with the Supreme Court, that decision became final and binding.
13. On an unspecified date, following the enforcement of the court’s decision, the applicant took possession of the properties allocated to her, that is to say, the two villas and the three-storey building.
14. In 2004, as no State bonds had been issued, the applicant wrote a letter to the Commission seeking a solution to the compensation issue in respect of his plot of land measuring 540 sq. m. She did not receive a reply to her letter.
15. To date, the authorities have not provided compensation in respect of the plot of land measuring 540 sq. m, in spite of the Commission’s decision.
16. The relevant domestic law has been described in detail in Driza v. Albania (no. 33771/02, §§ 33-44, ECHR 2007... (extracts)) and Ramadhi and Others v. Albania (no. 38222/02, §§ 22-30, 13 November 2007).
VIOLATED_ARTICLES: 6
P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-89851
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF SIVERIN v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 13 - Right to an effective remedy;Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: 4. The applicant was born in 1925 and lives in Obninsk.
5. As a victim of Chernobyl, the applicant was entitled to social beneﬁts. Considering himself underpaid, he brought two actions against a social-security authority.
6. On 24 August 1999 the Obninsk Town Court held for the applicant and ordered the authority to pay arrears and to increase the periodic payments. This judgment became binding on 10 January 2000. According to the Government, this judgment was gradually enforced by March 2006. According to the applicant, this judgment has not been fully enforced to date, because the periodic payments lag behind the cost of living.
7. On 1 July 2003 the town court held for the applicant and ordered the authority to pay 111,328 Russian roubles (RUB) in arrears and to upgrade the periodic payments to RUB 7,698.57 with their subsequent adjustment for the cost-of-living. This judgment became binding on 18 August 2003, but has not been fully enforced to date.
8. Under section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997, a bailiff must enforce a judgment in two months. Under section 242.2.6 of the Budget Code of 31 July 1998, the Ministry of Finance must enforce a judgment in three months.
VIOLATED_ARTICLES: 13
6
P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-60432
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF S.A. DANGEVILLE v. FRANCE
IMPORTANCE: 1
CONCLUSION: Violation of P1-1;Not necessary to examine Art. 14+P1-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: Bruno Genevois;Gaukur Jörundsson
TEXT: 9. Under the General Tax Code as worded until 31 December 1978 the applicant company was liable to value-added tax (VAT) on its commercial activity. It paid a total of 291,816 French francs (FRF) in VAT on its 1978 transactions.
10. Article 13-B-a of the Sixth Directive of the Council of the European Communities dated 17 May 1977 granted an exemption from VAT for “insurance and reinsurance transactions, including related services performed by insurance brokers and insurance agents”. That provision was to come into force on 1 January 1978.
11. On 30 June 1978 the Ninth Directive of the Council of the European Communities dated 26 June 1978 was notified to the French State. It granted France an extension of time – until 1 January 1979 – in which to implement the provisions of Article 13-B-a of the Sixth Directive of 1977. Since such directives have no retroactive effect, the Sixth Directive ought nonetheless to have been applied from 1 January to 30 June 1978.
12. Relying on the Sixth Directive, the applicant company sought reimbursement of the VAT it had paid for the period from 1 January to 31 December 1978, which it considered had not been due as the Ninth Directive had no retroactive effect. It also brought an action in damages against the State for failing to bring French law into line with the Sixth Directive within the prescribed period, thereby causing it to sustain damage equal to the amount of the VAT paid. It claimed reimbursement of the VAT paid or, failing that, the amount attributable to the period from 1 January 1978 to the date the Sixth Directive had come into force.
13. The Paris Administrative Court dismissed its claims in a judgment of 8 July 1982. It held, inter alia, that it was clear from the Treaty of the European Communities that while directives placed an obligation on States to achieve a particular result, the choice of the appropriate means of implementing a directive in domestic law lay within the sole discretion of the national authorities, such that individuals and private bodies could not rely directly on a directive to defeat a provision of domestic law.
14. On 10 June 1982 a claim by another firm of insurance brokers, S.A. Revert et Badelon, for the reimbursement of VAT paid on its transactions in 1978 was dismissed by the Paris Administrative Court for the same reasons.
15. In a further development, the authorities directed in an administrative circular issued on 2 January 1986:
“... no further action shall be taken to collect sums remaining due at the date of publication of this circular from insurance brokers who have failed to charge value-added tax on their transactions between 1 January and 30 June 1978 and have received supplementary tax assessments as a result.”
16. In a judgment of 19 March 1986 the Conseil d'Etat dismissed an appeal by the applicant company. It held that individuals and private bodies were not entitled to rely on the provisions of a European directive that had yet to be transposed into domestic law and declared the action in damages inadmissible, as the applicant company had omitted to apply in the first instance to the tax authorities. The main points in its judgment were as follows.
17. As regards the first head of claim:
“Article 189 of the Treaty Establishing the European Community of 25 March 1957 makes it clear that, while Council directives are binding upon each member State 'as to the result to be achieved' and while in order to achieve the prescribed results the national authorities are required to adapt the legislation of the member States to comply with the directives addressed to them, it is solely for those authorities to decide how to give effect to the directives in domestic law. Thus, regardless of any instructions they may contain for the member States, directives cannot be pleaded in aid of tax appeals by nationals of those States. It is common ground that appropriate measures to implement the aforementioned Sixth Directive in domestic law had yet to be taken at the time of the relevant reference period for taxation purposes. In these circumstances, the said Directive, which, contrary to what was submitted by the appellant company, does not constitute a regulation within the meaning of the aforementioned Treaty, has in any event no bearing on the application of the preceding statutory provisions, in particular, Article 256 of the General Tax Code ...”
18. As regards the second head of claim:
“The Administrative Court did not rule on the claim made in the alternative during the course of the proceedings by the company for compensation in the sum of FRF 291,816. That part of the impugned judgment is therefore defective procedurally and must be quashed.
In the present circumstances, an immediate examination and determination of the claim which the court below omitted to decide is called for.
By virtue of the provisions of Article R.89 of the Administrative Courts Code and Article 1 of the decree of 11 January 1965, proceedings may only be brought in the administrative courts by way of an appeal against a decision. S.A. Jacques Dangeville has not produced any decision that shows that the administrative authority refused to pay it the claimed compensation of FRF 291,816; it has not even produced a request to the authority for that amount. Accordingly, in the absence of a prior decision, its claim to compensation is inadmissible ...”
19. As the second claim had been dismissed on procedural grounds owing to the applicant company's failure to apply in the first instance to the tax authorities, the applicant company made a further claim for reparation, this time after following the prescribed procedure. To that end, it had sent the Minister of the Budget a claim for reparation comprising two limbs on 16 March 1987. In the first, it alleged that the State was at fault for failing to transpose the Sixth Directive into domestic law within the prescribed period and for continuing to apply a provision of French law that no longer complied with Community law. In the second, it argued that the State was strictly liable for failing to maintain an equal distribution of public burdens following the issue of the circular of 2 January 1986.
20. The claim was rejected by the Minister. An appeal by the applicant company to the Paris Administrative Court was dismissed on 23 May 1989.
21. In a judgment of 1 July 1992 the Paris Administrative Court of Appeal, sitting as a full court, quashed part of the judgment of the Paris Administrative Court. It held that the State had been at fault and ordered it to pay the applicant company compensation for its loss in the sum of FRF 129,845, being the amount of VAT overpaid, together with compound statutory interest.
22. The main points made by the Administrative Court of Appeal in its judgment were as follows:
“The principle of State liability:
Under the provisions of the Treaty establishing the European Economic Community, and in particular Article 5 thereof, the French State is required to take all appropriate measures to ensure fulfilment of its obligations under the Treaty. These include an obligation to nullify all the illegal consequences of a violation of Community law either directly or, in default, by providing effective reparation for the resulting damage. It follows that the fact that a taxpayer which alleges that it has been taxed on the basis of a statutory provision that is incompatible with the objectives of a Community directive has first referred the issue of taxation to the tax court, which refused to accept that such incompatibility could serve as a cause of action, cannot by itself render inadmissible a claim made by the taxpayer on the basis of the obligations arising under the aforementioned Treaty for reparation for the damage it has sustained as a result of a failure to transpose the objectives of the directive into domestic law.
By Article 13-B-a of the Sixth Directive of the Council of the European Economic Communities dated 17 May 1977 the legislation of member States was required from 1 January 1978 onwards to exempt from value-added tax insurance and reinsurance transactions, including related services performed by insurance brokers and insurance agents. Although the Ninth Directive of 26 June 1978, which was notified to the French State on 30 June 1978, granted France an extension of time – until 1 January 1979 – in which to transpose the provisions of the Sixth Directive, it is construed by the Court of Justice of the European Economic Communities as having no retroactive effect. Thus, the provisions of Article 256 of the General Tax Code as worded prior to 1 January 1979 requiring payment of value-added tax on insurance broking activities of the type carried on by the Jacques Dangeville company were for the period from 1 January to 30 June 1978 incompatible with the objectives set by the Sixth Directive. Accordingly, contrary to the Administrative Court's decision, the applicant company's claim that the State is liable for the situation that has thus arisen and should be ordered to make good the loss it has sustained as a result of the illegal situation brought about by its being required to pay value-added tax for the above-mentioned period is well-founded.
Damage:
In view of the fact that insurance brokers are remunerated on the basis of a percentage calculated by the insurers of the premiums paid by the latter's customers, the value-added tax paid by the Jacques Dangeville company was not passed on to their customers or invoiced. Thus, the damage for which the company is entitled to claim reparation is equal to the amount of the value-added tax it paid for the period from 1 January to 30 June 1978 and comes to FRF 129,845.86.”
23. The tax authorities appealed to the Conseil d'Etat.
24. In its pleading lodged on 23 May 1995 the applicant company set out the following ground of defence:
“... in the instant case the rule that taxpayers should bear the tax burden equally has been contravened by the introduction of measures treating people in the same position differently, since a circular dated 2 January 1986 purported to rule that insurance brokers who had not paid VAT on their transactions between 1 January 1978 and 30 June 1978 and had received supplementary tax assessments as a result would no longer be required to pay the sums they continued to owe on that account at the date the circular was published.
This is a particularly clear breach of the rule that public liabilities must be borne equally. It is also unjust, as it resulted in discrimination between persons liable to VAT, with those who have paid the tax being adversely affected and those who refrained from doing so deriving a benefit.”
25. By a judgment of 30 October 1996 the Conseil d'Etat, sitting as a full court, quashed that judgment and dismissed all the applicant company's claims. It held that the applicant company was not entitled to seek through an action in damages a remedy it had been refused in tax proceedings in a decision that gave rise to an estoppel by record, namely the judgment of 26 February 1986.
26. The essence of the Conseil d'Etat's decision was as follows:
“The documents in the file submitted to the Paris Administrative Court of Appeal show that by a decision of 19 March 1986 the Conseil d'Etat, acting in its judicial capacity, dismissed a claim by S.A. Jacques Dangeville seeking reimbursement of value-added tax it had paid for the period from 1 January to 31 December 1978, inter alia, on the ground that its liability to that tax had arisen from the application of statutory provisions that were incompatible with the objectives of the Sixth Directive of the Council of the European Communities of 17 May 1977. The claim by S.A. Jacques Dangeville which the Administrative Court of Appeal examined in the impugned judgment was for payment of 'compensation' in an amount equal to the amount of value-added tax that had thus been paid, by way of reparation for the 'damage' which that tax liability had caused the company to sustain, on the ground that that damage was attributable to the French State's delay in transposing the objectives of the Directive into domestic law. It follows that, as submitted by the Minister of the Budget, the Paris Administrative Court of Appeal erred in law in holding that the fact that the company '[had] first referred the issue of taxation to the tax court' did not render inadmissible a claim for reparation in which the only alleged damage was the damage resulting from the payment of the tax. The Minister of the Budget's application to have the impugned judgment overturned is accordingly founded to the extent that the Administrative Court of Appeal upheld in part the claims made by S.A. Jacques Dangeville in its submissions ...”
27. On the same day the Conseil d'Etat delivered judgment on an appeal lodged on 23 August 1982 by S.A. Revert et Badelon against the Paris Administrative Court's judgment of 10 June 1982. The Conseil d'Etat did not follow the line it had taken in its judgment of 26 February 1986 in the applicant company's case, but instead declared S.A. Revert et Badelon's appeal on points of law admissible, holding that the company was entitled to rely on the provisions of the Sixth Directive and should be granted a release from the contested tax liability – for which there was no statutory basis as the statutory provisions conflicted with the objectives of the Directive – for the sums erroneously paid for the period from 1 January to 30 June 1978.
28. The Government Commissioner lodged submissions that were common to the applicant company's and S.A. Revert et Badelon's cases. He pointed out that the factual and legal issues in each were identical, saying:
“... [the file in the case of S.A. Revert et Badelon] raises the same issue of law as that decided by this court on 19 March 1986 on the appeal of the Jacques Dangeville company. The period concerned is the same and the applicable instruments identical. The appellant company, which runs the Revert et Badelon firm, has an activity as insurance brokers which is indistinguishable from that of the Dangeville company ...”
29. He added:
“... I invite you to quash the judgment of the Paris Administrative Court of Appeal which upheld the Dangeville company's claims for compensation. It has been that company's misfortune to have its tax claim decided too early. I am conscious that the resulting outcome in its case may appear unjust. I am, however, mindful that upholding the judgment in its favour would mean your making an exception to the principles on which your decision-making process is based that would unreasonably undermine the stability of legal situations created by judicial decision. One isolated case based, moreover, on transitional difficulties, cannot serve to justify making such an exception ...”
30. In finding in favour of S.A. Revert et Badelon in its judgment of 30 October 1996, the Conseil d'Etat held as follows:
“Firstly, by virtue of Article 1 of the Sixth Directive of the Council of the European Communities of 17 May 1977 the member States were required to take appropriate measures by no later than 1 January 1978 in order to bring their systems of value-added tax in line with the objectives of the Directive. Although the Ninth Directive of 26 June 1978, which was notified to the French State on 30 June 1978, granted France an extension of time – until 1 January 1979 – in which to transpose the provisions of the Sixth Directive, it is construed by the Court of Justice of the European Economic Communities as having no retroactive effect. Thus, before 30 June 1978 it was unable to afford the French authorities a defence for their failure to enact provisions complying with the objectives of the Sixth Directive on time.
Further, in so far as they make dealings by insurance brokers liable to value-added tax when the remuneration for them does not take the form of commission or brokerage set by statute or regulations, Articles 256 and 261-4-1o of the General Tax Code, which were enacted by the Law of 6 January 1966 and remained in force until amended by the Law of 29 December 1978, are not compatible with the objectives of the provisions of sub-paragraph (a) of Article 13-B of the Sixth Directive, which exempts from value-added tax all insurance and reinsurance transactions performed by insurance brokers or agents. Accordingly, it is to that extent necessary to rule that those provisions of Articles 256 and 261-4-1o were inapplicable for the period from 1 January to 30 June 1978. It follows that the submission by the S.A. Revert et Badelon firm, which carries on an activity as insurance brokers, that there was no basis in law for the demand for it to pay value-added tax on its business dealings during the period from 1 April to 30 June 1978 is well-founded.
However, for the period from 1 July to 31 December 1978 the company is not entitled to rely on the incompatibility of Articles 256 and 261-4-1o of the General Tax Code with the objectives of the provisions of sub-paragraph (a) of Article 13-B of the Sixth Directive, as the time-limit by which France was required to bring its legislation into line with that Directive was extended to 1 January 1979 by the Ninth Directive. Subsequently, the applicant company was rightly charged value-added tax for the period from 1 July to 31 December 1978 on the basis of the provisions of Articles 256 and 261-4-1o of the General Tax Code that remained applicable.
It follows from the foregoing that the sole valid submission made by the S.A. Revert et Badelon firm is that the Paris Administrative Court erred in its impugned judgment in dismissing its claim for the periods from 1 to 29 February 1978 and 1 April to 30 June 1978 ...”
31. As regards the principle of the “precedence of the Community legal system”, see, among other authorities, the following judgments of the Court of Justice of the European Communities (CJEC): Case 6/64, Costa v. E.N.E.L. [1964] European Court Reports (ECR) 585 (“By contrast with ordinary international treaties, the EEC treaty has created its own legal system which, on the entry into force of the treaty, became an integral part of the legal systems of the Member States and which their courts are bound to apply”); Case 34/73, Fratelli Variola Spa v. Amministrazione italiana delle Finanze [1973] ECR 981; and Case 106/77, Amministrazione delle Finanze dello Stato v. Simmenthal [1978] ECR 629.
32. CJEC, Case 26/62, Van Gend en Loos v. Administratie der Belastingen [1963] ECR 1:
“Independently of the legislation of Member States, Community law not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage.”
33. CJEC, Case 309/85, Barra v. Belgian State and City of Liège [1988] ECR 355, paragraphs 17 and 18:
“The right to repayment of amounts charged by a Member State in breach of the rules of Community law is the consequence and complement of the rights conferred on individuals by the Community provisions as interpreted by the Court. Whilst it is true that repayment may be sought only in the framework of the conditions as to both substance and form laid down by the various national laws applicable thereto, the fact nevertheless remains that those conditions may not be so framed as to render virtually impossible the exercise of rights conferred by Community law.”
34. CJEC, Case 8/81, Becker v. Finanzamt Münster-Innenstadt [1982] ECR 53, paragraphs 19, 20 and 24:
“Wherever a directive is correctly implemented, its effects extend to individuals through the medium of the implementing measures adopted by the Member State concerned ... However, special problems arise where a Member State has failed to implement a directive correctly and, more particularly, where the provisions of the directive have not been implemented by the end of the period prescribed for that purpose ... A Member State which has not adopted the implementing measures required by the directive within the prescribed period may not plead, as against individuals, its own failure to perform the obligations which the directive entails.”
35. CJEC, Joined Cases C-178/94, C-179/94, C-188/94, C-189/94 and C-190/94, Erich Dillenkorfer and others v. Bundesrepublik Deutschland [1996] ECR I-4845, paragraph 29:
“Failure to take any measure to transpose a directive in order to achieve the result it prescribes within the period laid down for that purpose constitutes per se a serious breach of Community law and consequently gives rise to a right of reparation for individuals suffering injury ...”
CJEC, Joined Cases C-6/90 and C-9/90, Francovich and Bonifaci v. Italian Republic [1991] ECR I-5357, paragraph 36:
“A further basis for the obligation of Member States to make good such loss and damage is to be found in Article 5 of the Treaty, under which the Member States are required to take all appropriate measures, whether general or particular, to ensure fulfilment of their obligations under Community law. Among these is the obligation to nullify the unlawful consequences of a breach of Community law.”
36. CJEC, Case 188/95, Fantask and others v. Industriministeriet [1997] ECR I-6783, paragraphs 42, 48 and 52:
“By its seventh question, the national court essentially asks whether Community law prevents a Member State from relying on a limitation period under national law to resist actions for the recovery of charges levied in breach of the Directive as long as that Member State has not properly transposed the Directive ... The Court has thus acknowledged, in the interests of legal certainty which protects both the taxpayer and the authority concerned, that the setting of reasonable limitation periods for bringing proceedings is compatible with Community law. Such periods cannot be regarded as rendering virtually impossible or excessively difficult the exercise of rights conferred by Community law, even if the expiry of those periods necessarily entails the dismissal, in whole or in part, of the action brought (see, in particular, Case 33/76 Rewe v. Landwirtschaftskammer Saarland [1976] ECR 1989, paragraph 5, Case 45/76 Comet v. Produktschap voor Siergewassen [1976] ECR 2043, paragraphs 17 and 18, and Case 261/95 Palmisani v. Istituto Nazionale della Previdenza Sociale [1997] ECR I-0000, paragraph 28) ... The reply to the seventh question must therefore be that Community law, as it now stands, does not prevent a Member State which has not properly transposed the Directive from resisting actions for the repayment of charges levied in breach thereof by relying on a limitation period under national law which runs from the date on which the charges in question became payable, provided that such a period is not less favourable for actions based on Community law than for actions based on national law and does not render virtually impossible or excessively difficult the exercise of rights conferred by Community law.”
37. CJEC, Case 70/83, Kloppenburg v. Finanzamt Leer [1984] ECR 1075, paragraphs 11-14:
It is necessary to emphasise, as the Court has already done on several occasions, that Community legislation must be unequivocal and its application must be predictable for those who are subject to it. Postponement of the date of entry into force of a measure of general application, although the date initially specified has already passed, is in itself liable to undermine that principle. If the purpose of an extension is to deprive individuals of the legal remedies which the first measure has already conferred upon them, such an effect in practice raises the question of the validity of the amending measure.
However, such a question of validity could arise only if the intention to produce the above-mentioned effect were expressly stated in the amending measure. That is not so in the case of the Ninth Directive. The text of that Directive merely extends the period for transposing the Sixth Directive into national law in favour of those Member States which were unable to complete, within the period initially prescribed, the legislative procedure required for amending their legislation on value-added tax. It contains nothing to indicate that the extension alters the position of economic operators in relation to transactions carried out by them prior to the entry into force of the measure altering the period allowed for implementation.
It follows that the Ninth Directive must be interpreted as not having retroactive effect in that regard.
The answer to the question raised should therefore be that in the absence of the implementation of the Sixth Council Directive, 77/388/EEC, of 17 May 1977, on the Harmonisation of the Laws of the Member States relating to Turnover Taxes – Common System of Value-Added Tax; Uniform Basis of Assessment, it was possible for the provision concerning the exemption of the negotiation of credit ... to be relied upon by a credit negotiator in relation to transactions carried out between 1 January and 30 June 1978 ...”
38. Judicial Assembly, 22 December 1978, ministre de l'Intérieur v. Cohn-Bendit, Recueil Lebon:
“... Article 56 of the Treaty establishing the European Economic Community dated 25 March 1957, which does not contain any provision empowering bodies of the European Communities to make regulations on public-policy grounds that are directly applicable in the member States, provides that the coordination of provisions laid down by law or regulation 'providing for special treatment for foreign nationals on grounds of public policy, public security or public health' shall be assured by directives issued by the Council on a proposal from the Commission and after consulting the Assembly. It is clear from Article 189 of the Treaty of 25 March 1957 that while such directives are binding upon each member State 'as to the result to be achieved' and while in order to achieve the prescribed results the national authorities are required to adapt the legislation and regulations of the member States to comply with the directives addressed to them, it is solely for those authorities to determine the form implementation of the directives will take and to decide, subject to supervision by the domestic courts, how to give effect to the directives in domestic law. Thus, regardless of any instructions they may contain for the member States, directives cannot be pleaded in aid of appeals by nationals of those States against individual administrative acts. It follows that Mr Cohn-Bendit's submission to the Paris Administrative Court in support of his application for an order quashing the Minister of the Interior's decision of 2 February 1976, on the ground that it contravened the provisions of the Directive issued on 25 February 1964 by the Council of the European Communities with a view to coordinating, in accordance with the conditions laid down by Article 56 of the Treaty of Rome, the special measures taken to control the movement and residence of aliens on grounds of public policy, public security or public health, is unfounded. Accordingly, in the absence of any contention that the regulatory measures taken by the French Government in order to comply with the directives issued by the Council of the European Communities are unlawful, the decision to be taken on Mr Cohn-Bendit's appeal cannot under any circumstances turn upon the interpretation of the Directive of 25 February 1964. It follows, without there being any need to examine the grounds of the appeal, that the Minister of the Interior's submission is well-founded, namely the Paris Administrative Court erred in its impugned judgment of 21 December 1977 in referring to the Court of Justice of the European Communities the issues concerning the interpretation of that Directive and staying the proceedings pending the Court of Justice's decision ...”
39. Judicial Assembly, 20 October 1989, Nicolo, Recueil Lebon, p. 190:
“By section 4 of Law no. 77-729 of 7 July 1977 governing the Election of the Representatives of the Assembly of the European Communities 'the territory of the Republic forms a single constituency' for the purposes of the election of the French representatives to the European Parliament. By virtue of that statutory provision, taken together with Articles 2 and 72 of the Constitution of 4 October 1958, which lay down that the overseas départements and territories are integral parts of the French Republic, those départements and territories are necessarily included in the single constituency within which the election of representatives to the European Parliament takes place. Article 227-1 of the Treaty of 25 March 1957 establishing the European Economic Community provides: 'This Treaty shall apply to the French Republic.' The aforesaid rules set out in the Law of 7 July 1977 are not incompatible with the clear provisions of the aforementioned Article 227-1 of the Treaty of Rome ...”
40. Judicial Assembly, 28 February 1992, S.A. Rothmans International France et S.A. Philip Morris France, Recueil Lebon, p. 20:
“Article 37 of the Treaty establishing the European Economic Community provides: 'Member States shall progressively adjust any State monopolies of a commercial character so as to ensure that when the transitional period has ended no discrimination regarding the conditions under which goods are procured and marketed exists between nationals of Member States.' Article 5-1 of the Directive of the Council of the European Communities dated 19 December 1972, which was issued with a view to implementing those provisions with regard to manufactured tobacco and the provisions of Article 30 of the Treaty, which prohibits quantitative restrictions and all measures having equivalent effect, provides: 'Manufacturers and importers shall be free to determine the maximum retail selling price for each of their products. This provision may not, however, hinder implementation of the national systems of legislation regarding the control of price levels or the observance of imposed prices.' As the Court of Justice of the European Communities ruled in finding infringements in its judgments of 21 June 1983 and 13 July 1988, the only provisions whose application is reserved by Article 5-1 of the Directive are provisions of national legislation of a general nature that are intended to curb increases in prices. The aforementioned provisions of section 6 of the Law of 24 May 1976 confer on the government a special power to fix the price of tobacco imported from member States of the European Community, independently of the application of the national legislation regarding the control of price levels. They thus enable the government to fix the sale price of imported tobacco in conditions that were not contemplated by Article 5-1 of the Directive of 19 December 1972 and are incompatible with the objectives set out in that Directive. It follows from this that Article 10 of the decree of 31 December 1976 referred to above, which was issued on the basis of section 6 of the Law of 24 May 1976, which must be regarded as inapplicable, is itself devoid of statutory basis. In view of the foregoing, the Minister of the Economy, Finance and the Budget was not entitled in law tacitly to reject the applications by the companies Rothmans International France and Philip Morris France for permission to raise the price of products they imported or distributed as wholesalers by fifty centimes on 1 September 1983. Accordingly, the said decisions must be quashed ...”
41. Mixed Division, 24 May 1975, Administration des douanes v. Société des cafés Jacques Vabre, Sarl J. Weigel et Cie, (Court of Cassation, Bulletin no. 4):
“... the Treaty of 25 March 1957, which, by virtue of Article [55] of the Constitution, ranks above legislation, establishes a separate branch of law which is integrated into the legal systems of the member States. Owing to that special characteristic, the branch of law set up by the Treaty is directly applicable to nationals of those States and binding on their courts ... Accordingly, the Court of Appeal's decision that Article 95 of the Treaty should be applied in the instant case, to the exclusion of Article 265 of the Customs Code, even though the latter provision is the more recent, was correct and not beyond the Court of Appeal's powers ...
Since, in the Community legal system, infringements by member States of the European Economic Community of their obligations under the Treaty of 25 March 1957 are actionable under Article 170 of the said Treaty, the plea of lack of reciprocity is not available in the domestic courts ...”
42. Extracts from Institutions administratives – Droit administratif, by Georges Dupuis and Marie-José Guédon, published by Armand Colin, Paris, 1986, pp. 87-88:
“The Court of Cassation drew the logical conclusions from the fact that the two legal systems are superimposed: in the event of a conflict between a statute and a Community norm, only the latter is applicable, even if it is prior in time. Consequently, French courts will refuse to apply French law if it is contrary to European law. In other words, they carry out a form of verification of the compatibility of the statute with Community law that is very similar to a review of constitutionality. Basically, the reasoning of the Court of Cassation extends the principle established by Article 55 of the Constitution that international treaties take precedence over statutes. The Court of Cassation relies on two series of arguments: firstly, implicit in the initial treaties is a move towards abandonment of sovereignty by the States and the creation of genuine supra-sovereignty in favour of the Community bodies. Secondly, since the national courts are responsible for applying the provisions emanating from that supra-sovereignty directly, they cannot give precedence to domestic law as, in this system, it is necessarily infra-sovereign (Court of Cassation, Société des cafés Jacques Vabre, 24 May 1975 ...).
The Conseil d'Etat rejects such reasoning (Conseil d'Etat, 1 March 1968, Syndicat général des fabricants de semoule de France ...; Conseil d'Etat, 22 December 1978, ministre de l'Intérieur v. Cohn-Bendit ...). It has shown itself to be 'essentially a national jurisdiction, which is persuaded of the excellence of the national system and has resolved to act as the guardian of national legality' (C.-A. Colliard, Le juge administratif français et le droit communautaire, Mélanges offerts à Marcel Waline, LGDJ, Paris, 1974, p. 187; Bruno Genevois 'Le Conseil d'Etat et l'ordre juridique communautaire', EDCE [Studies and documents of the Conseil d'Etat], 1979-1980, p. 73; Reports and Studies Committee of the Conseil d'Etat, 'Droit communautaire et droit français', EDCE, 1981-1982, p. 215), notably in two ways. Firstly, it has proscribed all verification of the compatibility of legislation with Community law: according to a Government Commissioner, the administrative courts 'may not criticise or disregard a statute, even on the ground that it violates international law or, more particularly, Community law'. Secondly, on a more specific point, the Conseil d'Etat has chosen not to follow the case-law of the Court of Justice of the European Communities that has blurred the distinction between regulations and directives... The Conseil d'Etat affirms, on the contrary, [that] 'regardless of any instructions they may contain' [directives] cannot be pleaded in aid of an application for review of an individual act. Directives do, however, impose an obligation on the national authorities to adapt their legislation and regulations so as to comply with the directive (see Cohn-Bendit, cited above). Consequently, nationals of member States may challenge the validity of domestic regulatory measures by reference to the Community directives which they purport to implement or which they disregard.”