Retroactive application of a law that deprived parents of compensation for a child born disabled due to lack of prenatal care. Violation of respect for property
JUDGMENT
N.M. and others v. France 03.02.2022 (app. no. 66328/14)
SUMMARY
Child disability due to lack of prenatal control. Retroactive application of non-compensation legislation. Protection of property.
The case concerns the rejection, by the administrative courts, of the arguments put forward by the first two applicants – and the third applicant’s parents – in their claim for damages for the special costs resulting from the disability of their child. In particular, in May 2001, while the first applicant was pregnant, she requested S. Hospital to carry out a thorough antenatal examination, where no problems were identified. A few months later, in December 2001, her son was born, who was diagnosed with a number of malformations. This disability was not detected at the time of prenatal diagnosis. The applicants sought compensation for the damage suffered by their son and non-pecuniary damage to him and the applicants. Legislation enacted by Law of 4 March 2002, codified under Article L. 114-5 of the Social Action and Family Code (CASF) – prohibited the inclusion of these costs in the calculation of the payable compensation. This legislative change, which came into force after the birth of the child but before the lawsuit for compensation, was applied in the present case.
The Court held, first, that the applicants could reasonably expect to be compensated for the injury they had suffered, which was commensurate with the cost of caring for a child with a disability, as soon as that injury occurred, that is, from the birth of the child, and therefore had a”property” right within the meaning of the first sentence of Article 1 of the First Protocol. It then pointed out that, according to the decision of the Constitutional Council no. 2010-2 QPC, all transitional provisions requiring retroactive application of Article L. 114-5 of the CASF were repealed.
Although the repeal of these transitional provisions immediately left room for the application of the rules of common law governing the application of the law over time, the Court found a discrepancy between the interpretation adopted by the Supreme Administrative Court and the interpretation adopted by the Court of Cassation. Article L. 114-5 of the CASF on events that occurred before the entry into force of the law of 4 March 2002 (ie, 7 March 2002). Although in that judgment of 15 December 2011 the Court of Cassation had excluded the application of Article L. 114-5 of the CASF to events occurring before 7 March 2002, irrespective of the date on which the action for damages was brought , the Supreme Administrative Court had settled the dispute by its decision of 13 May 2011, which, in turn, had maintained a specific retrospective view in relation to this provision.
The Court concluded that it could not establish that the lawfulness of the intervention resulting from the application of Article 114-5 of the CASF by the Supreme Administrative Court in its judgment of 31 March 2014 could be inferred from the and consolidated case law of national courts. According to Strasbourg, retroactive interference with the applicants’ property could not be regarded as having been ‘provided for by law’ within the meaning of Article 1 of the First Additional Protocol.
The ECtHR unanimously ruled that there had been a violation of Article 1 of the First Additional Protocol (protection of property) of the ECHR and reserved the right to award damages and non-pecuniary damage in a subsequent decision.
PROVISIONS
Article 6 par. 1
Article 8
Article 14
Article 1 of the First Additional Protocol
PRINCIPAL FACTS
The applicants, Ms N.M., Mr M and their son A, are French nationals who were born in 1972, 1971
and 2001 respectively and live in Sainte Anne de Guadeloupe.
In May 2001, while pregnant, Ms N.M. asked the S. Hospital to carry out a thorough prenatal
diagnosis. No abnormality was detected.
On 30 December 2001 A. was born, a boy suffering from a series of malformations referred to as
“VATERL syndrome”, with an imperforate anus, malformations affecting his kidneys, a vertebra and
one of his upper limbs, and facial asymmetry.
On 16 September 2002 the parents, who considered that there had been an error in prenatal
diagnosis, asked that an expert be appointed; this was done, and the court-appointed expert issued
a report concluding that there had been an error in interpreting the ultrasound scans undergone by
the applicant during her pregnancy. Following this report, the applicants brought an action against
the Hospital, alleging negligence, before the Amiens Administrative Court and claimed compensation
for several heads of damage.
Two actions for compensation, relating to the damage sustained by the parents and the expenses
linked to the disability, raised, among other points, the issue of the application over time of the
provisions of section 1(1) of the Law of 4 March 2002, codified in Article L. 114-5 of the Social Action
and Family Code (CASF).
In a judgment of 30 December 2008, the Amiens Administrative Court held that the abovementioned provisions, which restricted the grounds of claims that the parents could rely on, were not to be applied to the dispute. Noting the negligence committed in monitoring the pregnancy, the
court held that the Hospital was liable and ordered it to make good all the damage sustained both by
the parents and by their child. It set the loss of opportunity, suffered by the first two applicants, to
prevent the birth of the child at 100%.
On 9 March 2009, the Hospital appealed against this judgment and the applicants lodged a crossappeal on 13 July 2009.
On 11 June 2010, the Constitutional Council issued QPC decision no. 2010-2, repealing
section 2(2)(ii) of the Law of 11 February 2005.
In a judgment of 16 November 2010 ruling on the appeals, the Douai Administrative Court of Appeal
refused, in turn, to apply the provisions of Article L. 114-5 of the CASF, based on the Constitutional
Council’s decision no. 2010-2 QPC (concerning a request for a preliminary ruling on constitutionality)
and the repeal of these provisions with effect from 12 June 2010. The administrative court
confirmed that the negligence on the part of the S. Hospital had been the direct cause of the
damage sustained by the first two applicants.
Two appeals on points of law were lodged by the S. Hospital and by the applicants.
Following its decision of 13 May 2011 (Judicial Assembly, Lazare), the Conseil d’État, in a decision of
31 March 2014, held that Article L. 114-5 of the CASF was applicable to the dispute, as the applicants
had not brought compensation proceedings until after 7 March 2002, the date of entry into force of
the Law from which the provisions of this Article derive; it set aside the decision of the
administrative court of appeal on the grounds that it had erred in law. The Conseil d’État held that,
as the applicants had not brought proceedings before 7 March 2002, the date on which the new
provisions entered into force, they did not have on that date the right to a claim for compensation,
which would have in turn constituted a possession within the meaning of Article 1 of Protocol No. 1
to the Convention.
Further ruling on the Hospital’s liability, the Conseil d’État ruled out any compensation for the
damage sustained by the child himself. On the other hand, it held that there was an undeniable direct causal link between the damage sustained by the parents and the negligence committed by the hospital when carrying out the ultrasound scan; in so far as this had prevented them from
learning of the unborn child’s serious and incurable condition, it had deprived them of the possibility
of terminating the pregnancy, as provided for under the relevant legislation.
After noting that “the provisions of Article L. 114-5 of the CASF prohibit the inclusion of the special
costs arising from their child’s disability, not detected during pregnancy, in the sum payable to the
parents in compensation”, the Conseil d’État concluded that “the arguments of Mr M. and Ms M. to
the effect that their son’s disability-related expenses should be borne by the [S. Hospital] cannot …
be accepted”. With regard to the other heads of damage, the compensation to be paid was
increased to EUR 80,000 (EUR 40,000 each) in respect of the non-pecuniary damage sustained by the
parents themselves and the disruption to their lives.
Relying on Articles 6 § 1 (right to a fair hearing), 8 (right to respect for family life) and 14 (prohibition
of discrimination) of the Convention and Article 1 of Protocol No. 1 (protection of property) thereto,
the applicants complained about the retrospective application of the .
THE DECISION OF THE COURT…
Article 1 of Protocol No. 1
The first two applicants contested the application by the Conseil d’État, in its judgment of 31 March
2014, of the 1st and 3rd paragraphs of Article L. 114-5 of the CASF. They argued that the application
of these provisions, which had led to the refusal, as a matter of principle, to award compensation for
the disability-related expenses arising from their son’s disability, had infringed their right to the
peaceful enjoyment of their possessions, in breach of Article 1 of Protocol No. 1.
The Court noted that neither the hospital nor the Government disputed that the erroneous
diagnosis carried out during the prenatal ultrasound scans had amounted to negligence, causing
damage. The only point in issue was the date of the event which gave rise to the claim.
The Court considered that, in view of the principles of French ordinary law and the settled case-law
with regard to liability, according to which a claim for compensation came into being as soon as the
damage giving rise to the claim had occurred, the applicants could legitimately have expected to be
able to obtain compensation for the prejudice they had sustained, corresponding to the costs of
caring for their disabled child, as soon as that damage occurred, namely when the child was born. It
followed that the applicants had a claim which they could legitimately have expected to be
determined in accordance with the ordinary law of liability for negligence, given that this was damage which had occurred prior to the enactment of the law complained of. They had therefore had a “possession” within the meaning of the first sentence of Article 1 of Protocol No. 1.
In the present case, the Court noted that that it was not disputed that the application to the
applicants’ action of the provisions of Article L. 114-5 of the CASF, which excluded in principle
compensation for the costs of caring for their son’s disability, constituted an interference amounting
to a deprivation of property. The Court had therefore to determine whether the interference
complained of could be justified under Article 1 of Protocol No. 1.
The Court noted, firstly, that under the terms of the Constitutional Council’s decision no. 2010-2
QPC, all of the transitional provisions laying down the retrospective application of Article L. 114-5 of
the CASF had been repealed. The abolition of these transitional provisions immediately left scope for
application of the rules of ordinary law governing the previous application of the law. It followed
that, given the repeal of all of the transitional provisions and in the absence of any other legislative
provision expressly providing for it, Article L. 114-5 of the CASF could not be applied to facts which
arose prior to the entry into force of the Law of 4 March 2002, irrespective of the date on which the
proceedings were brought.
The Court noted, secondly, the divergence between the interpretation adopted by the Conseil d’État
and that adopted by the Court of Cassation. In its judgment of 15 December 2011, the Court of
Cassation ruled out the application of Article L. 114-5 of the CASF to events which had occurred prior
to 7 March 2002, the date on which the Law of 4 March 2002 came into force, irrespective of the
date on which the action for compensation was brought. The Court of Cassation had subsequently
upheld this approach.
In these circumstances, the Court was unable to find that the legality of the interference resulting
from the application, by the Conseil d’État’s decision of 31 March 2014, of Article L. 114-5 of the
CASF, could be derived from the settled and stabilised case-law of the domestic courts. The Court
concluded that the retrospective interference with the applicants’ possessions could not be
regarded as having been “provided for by law” within the meaning of Article 1 of Protocol No. 1.
There had been a violation of Article 1 of Protocol No. 1 to the Convention in respect of the first two
applicants.
Article 14 taken together with Article 1 of Protocol No. 1
Given its finding of a violation concerning the first two applicants’ right to the peaceful enjoyment of
their possessions, the Court did not consider it necessary to examine the applicants’ complaint
under Article 14 of the Convention taken together with Article 1 of Protocol No. 1.
Just satisfaction (Article 41)
As regards the sum to be awarded to the applicants for any pecuniary or non-pecuniary damage
resulting from the violation found, the Court held that the question of the application of Article 41
was not ready for decision, and accordingly reserved it.
