March 25, 2022
By Daniel Krotov and Yannick Schoog
On 3 February 2022, the European Court of Human Rights (ECtHR; the Court) handed down yet another judgement on compensation for a child’s erroneously undetected disability in the aftermaths of the French “loi anti-Perruche”. Over 15 years after Draon and Maurice, the Court reached a similar conclusion but opted for a different path in the judgement at hand in N.M. and others v. France (in French only). Without delving into the unquestionably intricate philosophical and moral questions attached to “wrongful life” cases, this blogpost situates the judgement within the ECtHR’s case law and critically appraises it. Beyond that, it shows how the judgement raises important issues regarding the interaction between the ECtHR and national constitutions as well as – in this case various – national courts.
Facts of the Case
Damages for an Erroneous Prenatal Diagnostic
The case concerned a claim for compensation by parents of a disabled child arising from a prenatal diagnosis carried out at a French public hospital during which the child’s disability had not been detected. In order to fully understand the Court’s decision, it is important to keep track of the case’s exact timeline. At the time of childbirth in 2001, French administrative law allowed parents, but not the child, to recover various costs in case of an erroneous prenatal diagnostic resulting in the non-detection of the child’s disability. Following the Cour de Cassation’s famous and controversial “Perruche” ruling (only in French) that also awarded compensation to the child itself, Parliament passed a new law in 2002 doing away with state (as applicable in this case) and private liability towards the child altogether and restricting liability towards the parents (Art. L. 114-5 of the French Social and Familial Actions Code, CASF). When the parents in N.M. started (domestic) legal proceedings seeking compensation in 2006, the new law was already in force. Transitional provisions and a subsequent amendment passed in 2005 extended the applicability of this law even to pending litigation, thus giving it retroactive force.
The Applicants’ Recourse to the French Courts
In line with the requirements of Art. 35(1) of the European Convention on Human Rights (ECHR; the Convention), the applicants first turned to the national French courts. The Amiens Administrative Tribunal did not apply the provisions of the 2002 law deeming them to be in violation of the Convention right to protection of property enshrined in Art. 1 of Protocol No. 1 (A1P1). Setting aside the restrictive 2002 law, it awarded damages to the parents as well as the child. The Douai Administrative Court of Appeals, however, decided on a totally different basis. In between the two decisions, the French Conseil Constitutionnel (Constitutional Council) intervened in the matter by declaring the provisions ordering the retroactive applicability unconstitutional (QPC no. 2010-2). Therefore, the Administrative Court of Appeals did not apply Art. L. 114-5 CASF either, though denying the child its own claim against the hospital in accordance with the administrative legal practice before 2002. As a consequence, the recourse to the Convention has been rendered needless. The final instance, the Conseil d’État, in turn, quashed this ruling. Even though the retroactive provisions were unconstitutional, the claimants still filed their complaint four years after the entry into force of Art. L. 114-5 CASF, deemed constitutional by the Conseil Constitutionnel (except, of course, for the retroactive provisions). Focusing on the moment of the lawsuit being filed, the Conseil d’État denied the applicability of A1P1 in the absence of a “possession”. The following application of the 2002 law severely curtailed the compensable damages. In the end, the claimants were left with significantly less damages than they had been awarded by the Administrative Tribunal in the first place. Before the ECtHR, the applicants alleged violations of Art. 6(1), 8, 14 ECHR and A1P1.
The ECtHR’s Findings
The ECtHR concluded that the Conseil d’État’s judgement violated the peaceful enjoyment of possessions enshrined in A1P1. First, it engaged with the existence of a possession and opined that the principles of French liability law and the settled jurisprudence of the courts amounted to a legitimate expectation of receiving compensation for the costs arising from their child’s disability (§§ 41 ff.). According to French law, this claim arose at the time of the harmful event. The Court especially underscored that the damage had occurred prior to the new restrictive law entering into force (§ 49). Both parties agreed that the enactment of the new law amounted to an interference with that possession. It subsequently turned to justification of the interference and examined whether there had been a legal basis for it (§§ 58 ff.). The French government referred to the Draon and Maurice cases (see below) to argue in favour of a legal basis. The Court however noted that the Conseil Constitutionnel had repealed in its decision QPC no. 2010-2 the retroactive provisions of the law that would have enabled Art. L. 114-5 CASFto serve as a legal basis (§§ 60 f.). Furthermore, there was no settled case law by the French courts allowing for the interference since there was a divergence between the case law of the Conseil d’État and the Cour de Cassation (§ 62). All in all, the interference could not be regarded as “provided for by law” as required by A1P1. After this finding, the Court did not further engage with the applicant’s contention of a violation of Art. 14 ECHR in conjunction with A1P1. The ECtHR found that it was not yet possible to rule on just satisfaction (Art. 41 ECHR) and therefore reserved it.
A New Twist on Draon and Maurice: an Easy Solution to a Hard Case?
N.M. v. France is the last in a line of ECtHR case law concerning the aftermaths of the French “loi anti-Perruche” (see especially the Grand Chamber judgements in Draon v. France and Maurice v. France, both 6 October 2005, no. 1513/03 and no. 11810/03, as well as the decisions in Petri and Leblanc v. France, 26 August 2008, no. 28565/06 and Levenez v. France, 19 January 2010, no. 30643/06). Seventeen years after Draon and Maurice, N.M. and others v. France is yet another case dealing with compensation for a child’s undetected disability.
While all cited cases concerned A1P1 claims, they circled around different issues: In Draon and Maurice, the crucial issue was the application of the 2002 law to disputes already pending. In these cases, the Court confirmed the existence of a possession (compensation claim under French law), an interference with it and subsequently turned to the justification of that interference. Back then, the Conseil Constitutionnel had not given its decision mentioned above. Thus, the question of a legal basis for the interference was unproblematic at the time (Draon, §§ 73 f., and Maurice, § 81). Referring to the margin of appreciation of the states, the Court was also ready to accept that the interference was in line with public interest. Unsurprisingly, the ECtHR then examined the proportionality of the interference at length by weighing the arguments advanced by the applicants and the French government. Finally, it concluded that there had been a violation mainly relying on the large sum of damages the applicants had lost (Draon, §§ 83 ff., and Maurice, §§ 91 ff.).
In N.M. on the other hand, the Court’s task was an easier one. It was not required to delve into an examination of proportionality once again but ruled out justification at an earlier stage. Since the Conseil Constitutionnel had already struck down the retroactive parts of the new law, the Court could not confirm that there had been a sufficient legal basis for the interference. Through this reasoning, it was able to avoid examining proportionality once again by reference to the French national decision in a potentially “hard case” and thus found an easy and pragmatic solution to the problem by taking a shortcut.
The ECtHR as Interpreter of Decisions of the Conseil Constitutionnel
It seems surprising though that on the side, the ECtHR – an international court – effectively settles a dispute between the Cour de Cassation and the Conseil d’État over the interpretation of a decision of the Conseil Constitutionnel.
Even though in N.M., the Court intervenes in a matter of administrative law – the defendant being a public hospital – it extensively refers to the case law of the Cour de Cassation in civil cases (see §§ 17, 19, 22, 27, 32, 62). In French law, administrative and civil law are strictly separated, a principle that dates back to the famous Blanco ruling of 1873 (in French only). Nevertheless, the liability requirements are identical, thus placing the jurisprudence of the Cour de Cassation and the Conseil d’État in direct competition. The Court thoroughly analysed the decades old differences between these two French apex courts regarding the issue of “wrongful life”. Even before the “loi anti-Perruche”, the Cour de Cassation and the Conseil d’État were not on the same page: the former awarded extensive damages to the parents as well as the child itself, the latter only to the parents (§§ 16, 17). The 2002 law condemned both approaches; yet it did not immediately solve the differences due to the disputed transitional provisions. Certainly, both courts considered the retroactive application of the law to already pending cases to be in violation of the Convention, following the already mentioned Draon and Maurice cases (§ 27) – but the present situation is different.
In N.M. and others v. France, the Court relies on the decisionof the Conseil Constitutionnel that declared the transitional provisions to be unconstitutional. It is important to understand that the Conseil Constitutionnel is not a supreme court. It has a very limited scope of action and may review the constitutionality of laws, but not their correct application in a particular case. Furthermore, the procedure is completely independent from the review of conventionality operated by the Cour de Cassation and the Conseil d’État. Even when the Conseil Constitutionnel declares a law constitutional, the supreme courts may still refuse to apply it on the basis of a violation of the Convention (see Conseil constitutionnel, 12 May 2010, n° 2010-605 DC; Conseil d’État, 14 May 2010, n° 312305 – Rujovic). It is therefore rather surprising that the Court decides to interpret the Conseil Constitutionnel’s decision regarding the scope of the declaration of unconstitutionality and even rejects the Conseil d’État’s interpretation of it. The Court could have simply identified a violation of the Convention while ignoring the Conseil Constitutionnel’s decision, thereby respecting the Conseil d’État’s interpretation. This even seems to be the most harmonious solution to this case since the Court intervenes in a matter of administrative law and thus in the domain of the Conseil d’État.
The dispute between the Cour de Cassation and the Conseil d’État – unconstitutionality of retroactive application in general (Cour de Cassation) or unconstitutionality only in case of retroactive application to already pending cases (Conseil d’État) – is settled by the Court, in favour of the Cour de Cassation and based on national constitutional law and the non-binding commentary of the decision (§ 60). The ECtHR’s judgement, albeit seemingly a straightforward application of the “provided for by law” requirement in A1P1, is reminiscent of a supreme court’s decision. But the ECtHR is not a supreme court. The French organisation of the Judiciary is built upon the separation between national and constitutional law on the one hand and international and European law on the other. This separation, established by the Conseil constitutionnel’s Interruption volontaire de grossesse decision of 1975 (n° 75-17 DC), has become the defining national courts’ coping mechanism in a more and more integrated Europe. N.M. is therefore a dangerous top-down relativisation of the separation between national and supra- and international law.
While one could read N.M. as an illustration of successful judicial dialogue, one can only speak of a dialogue when both sides are given an equal chance to speak. The Conseil Constitutionnel will most likely not have another opportunity to explain what it meant by its 2010 decision.It was never meant to be a supreme court, not even to be a proper court (hence the name “Constitutional Council”), and constitutional law has a traditionally weak standing in France. The ECtHR, in contrast, will have plenty of opportunity to speak and so do the Cour de Cassation and the Conseil d’État. As such, they are the right dialogue partners, not the Conseil Constitutionnel. And it is the Convention, not the French constitution, that is the right basis on which this dialogue should be held.
In terms of pure ECtHR case law on A1P1, the judgement is hardly ground-breaking. At best, one can extract from this case another confirmation of the Court’s heightened sensitivity to retroactive legislation outside the realm of criminal law (e.g., Béláné Nagy v. Hungary, § 124). Referring to the decision of the Conseil Constitutionnel to hold that the interference lacked a legal basis gave the Court a shortcut to an easy solution of the case. Yet, in a legal environment that relies on judicial dialogue, the Court should identify its correct interlocutors and stay mindful of delicate domestic peculiarities. In N.M. and others, it seems as though the Court has not done so.