Expert bias due to his professional relationship he had with the opposing party. The denial of the request to exempt his report violated the equality of arms
JUDGMENT
Test-Achats v. Belgium 13.12.2022 (app. no. 77039/12)
SUMMARY
In this case, the applicant association, Test-Achats, challenged the neutrality of the expert who had
been appointed by the Brussels Court of Appeal in the context of a civil action brought by it against
an insurance company, in which Test-Achats sought the cessation of practices that it considered
discriminatory having regard to the insured persons’ ages.
In particulier, Test-Achats submitted that while its case was pending before the court of appeal, a
partnership was concluded in 2009 between the opposing party and a university institute chaired by
the court-appointed expert. Test-Achats alleged that there had been a breach of the principle of
equality of arms and of the adversarial principle and, in consequence, of its right to a fair hearing in
the proceedings, which culminated in the dismissal of its action by the court of appeal.
The Court considered that the existence of this partnership could necessarily have prompted
objectively justified misgivings on the applicant association’s part as to the fairness of the expertreport process and, in consequence, of the judicial proceedings as a whole. Having regard to the nature of the ties between the expert and Test-Achats’ opponent in the proceedings, the decisive impact of the expert report on those proceedings and the dismissal of Test-Achats’ request that the
report be excluded, the Court held that the proceedings had not complied with the principle of
equality of arms.
With regard to the adversarial principle, the Court noted that the court of appeal had considered
that certain questions posed by Test-Achats had been unrelated to the task entrusted to the expert
or had been irrelevant. The Court saw no strong reason which would require it to substitute its view
for that of the domestic courts on this point.
PROVISION
Article 6 par. 1
PRINCIPAL FACTS
The applicant association, Test-Achats, is an association registered in Belgium. Its aim, as stated in its
articles of association, is to defend and represent the interests of consumers and to safeguard
human rights in general, and to combat all forms of discrimination.
In 2004 Test-Achats brought a civil action against an insurance company, seeking that it abandon
practices which the applicant association considered discriminatory against certain insured persons on account of their age. In 2005 the President of the Brussels Commercial Court granted its claim.
The insurance company lodged an appeal.
In 2006 the Brussels Court of Appeal ordered an additional expert report and appointed an expert,
who submitted his final report in 2008. During the proceedings Test-Achats challenged the neutrality
of the court-appointed expert. In particular, it argued that while its case had been pending before
the court of appeal a partnership had been concluded in 2009 between the opposing party and a
university institute chaired by that same expert. It requested that the expert report submitted by
him on 10 April 2008 be excluded from the proceedings.
In 2010 the court of appeal set aside the lower court’s order and dismissed Test-Achats’ claim,
finding that there had been an objective and reasonable justification for the difference in treatment
by the insurance company. In reaching its decision, the court of appeal relied, in particular, on the
additional expert report submitted by the expert whose neutrality was contested by Test-Achats.
The court of appeal also found that the expert had replied in substance to those questions posed by
the parties which were related to the task he had been asked to carry out.
In 2012 the Court of Cassation dismissed two appeals on points of law submitted by Test-Achats.
THE DECISION OF THE COURT…
Article 6 (right to a fair hearing / principle of equality of arms)
The Court considered that the existence of this partnership could necessarily have prompted
objectively justified misgivings on Test-Achats’ part as to the fairness of the expert-report process
and, in consequence, of the judicial proceedings as a whole. This was particularly true given that, in
setting aside the first-instance court’s decision, the court of appeal had based its findings decisively
on the contested expert report, although the applicant association had explicitly requested that it be
excluded. In this connection, the Court noted that Test-Achats had had an opportunity to criticise
the content and form of the expert report before the court of appeal. However, having regard to the
nature of the ties between the expert and Test-Achats’ opponent in the proceedings, the decisive
impact of the expert report on those proceedings and the dismissal of Test-Achats’ request that the
report be excluded, the above considerations were sufficient for the Court to find that the proceedings had not complied with the principle of equality of arms. It followed that there had been a violation of Article 6 § 1 of the Convention.
Article 6 (right to a fair hearing / adversarial principle)
Test-Achats submitted that the expert had not answered certain questions raised by it. On this point,
the court of appeal had noted that the expert had replied that some of the questions asked by TestAchats were unrelated to the task entrusted to him or had not been relevant.
The Court noted that the questions had been sent to the expert, who had provided an explanation
for why he did not consider it appropriate to reply to them. The Court reiterated that Article 6 § 1
did not oblige courts to give a detailed answer to every argument raised. This was particularly so
with regard to experts, who were not directly concerned by that provision. Additionally, the Court
noted that Test-Achats had had an opportunity to criticise the content and form of the expert report
before the court of appeal. That court had established that the parties’ arguments were addressed in
the expert’s report in so far as they were related to the task entrusted to him. It noted that this
reasoning had then been validated by the Court of Cassation. The Court saw no strong reason which
would require it to substitute its view for that of the domestic courts on this point. Those
considerations were sufficient for the Court to conclude that there had been no violation of Article 6
§ 1 of the Convention with regard to the adversarial principle.
Just satisfaction (Article 41)
The Court held that Belgium was to pay the applicant association 4,000 euros (EUR) in respect of
non-pecuniary damage and EUR 4,000 in respect of costs and expenses.
