How to Manage the End of Perpetual Challenging Rights? – The Case of Legros and Others v. France

by Daniel Krotov

French administrative procedural law notoriously provides wide access to the courts that, from a foreign point of view, may even seem a bit excessive. One example was the possibility to challenge administrative acts indefinitely if they lacked proper instruction on the right to appeal. In an effort to restrict this perpetual challenging right, the Conseil d’État, the French Supreme Administrative Court, retroactively created a ‘reasonable time-limit’. By applying this jurisdiction to the cases at hand, however, the administrative tribunals have overstepped the boundaries set by Art. 6 §1 of the European Convention of Human Rights (ECHR, the Convention). In Legros and Others v. France, the Fifth Section of the European Court of Human Rights (ECtHR, the Court) found that, while the praetorian creation of a reasonable time-limit by itself does not violate the Convention, its immediate or retroactive application does.

Facts of the Case

All 18 applicants faced the same problem: their actions on various subjects were rejected by the French administrative tribunals as inadmissible. All actions had in common that they had been introduced a considerable amount of time after the claimants had gained knowledge of the administrative act they wanted to challenge – ranging from one year and ten months (§ 45) to more than 26 years (§ 15). Normally, Art. R. 421-1, R. 421-2 of the Code of Administrative Jurisdiction (CJA) would render such actions inadmissible: the addressee of an administrative act only has a limited amount of time, usually two months, to take legal action. However, Art. R. 421-5 CJA states that time-limits do not apply if they are not mentioned together with the respective remedies in the notification of the administrative act or, a fortiori, if there is no notification at all. Neither do time-limits apply in specific procedural constellations delineated by Art. R. 421-3 CJA. For different reasons, time-limits did not apply for all 18 applicants.

The traditional approach of the Conseil d’État would have been to allow a perpetual right to appeal (§ 62). However, the Conseil d’État changed its position in the Czabaj decision on 13 July 2016: referring to the principle of legal certainty, it created a reasonable time-limit. It set the limit to one year in principle, starting from the moment where knowledge of the administrative act can be established, but allowing for exceptions under ‘special circumstances’. In addition, the Conseil d’État decided to apply this new rule immediately – meaning retroactively. While, since the Société Tropic travaux signalisation decision, the Conseil d’État allows a time-delayed application of new jurisdiction if otherwise the claimants’ access to courts is retroactively curtailed, it ruled that this was not the case for the reasonable time-limit: ‘[T]he sole purpose of the aforementioned rule is to limit in time the consequences of the penalty attached to the failure to mention legal remedies and time-limits’ and to avoid ‘jeopardising the stability of legal situations and the proper administration of justice, by exposing potential defendants to excessively late actions’. Thus, it held that the reasonable time-limit ‘does not affect the substance of the right to access to a court’. Administrative tribunals, therefore, must apply the time-limit with immediate effect. This is what happened in the case at hand: all applicants had introduced their actions before the Conseil d’État handed down its Czabaj ruling and all actions were rejected, often by low-level administrative tribunals, for not respecting the reasonable time-limit.

The ECtHR’s Findings

The ECtHR retains two primary allegations brought forward by the applicants to which it finds two different answers: while the principle of the praetorian creation of a reasonable time-limit does not violate Art. 6 §1 ECHR, its retroactive application does.

The principle of a reasonable time-limit

The Court stresses that Member States have a margin of appreciation when it comes to regulating access to the tribunals (§§ 126, 139) and that, in any case, the Court cannot decide in lieu of national tribunals (§§ 127, 140). However, restrictions must pursue a legitimate aim and be proportionate (§ 128). The Court holds that legal certainty is a legitimate aim for such restrictions (§§ 129, 142) as it protects not only the claimants themselves, as argued by the applicants (§ 93), but also third parties and the trust of the general public in judicial proceedings (§ 129). With regard to practices in other Member States and within the scope of application of European Union (EU) law, the Court further deems the time-limit of one year proportionate (§§ 143 et seq.), especially as it can be modulated on a case-by-case basis (§ 147).

The immediate or retroactive application of the reasonable time-limit

However, the reasonable time-limit may not be applied retroactively. The Court bases its decision on a faisceau d’indices, a bundle of indicative criteria (cf. § 132). It states that no procedural error attributable to the claimants has been established by the French tribunals (§ 153) as most actions were rejected on the sole basis of the expiration of the reasonable time-limit (§ 154), sometimes even after lower instance tribunals decided in their favour based on merits (§ 155). Furthermore, the applicants were not parties to the Czabaj case and thus ‘could not reasonably anticipate the content and the effect of the decision’ on their pending actions (§ 157). The Court concedes that a violation of the Convention may have been prevented by delaying the application of the time-limit (§ 160) or by admitting ‘special circumstances’ in order to extend the limit (§ 159). However, the national courts neither examined such an extension, nor was it clear for the claimants which criteria are relevant for its attribution (§ 159). Thus, the applicants could not have expected to ‘remedy the deficiencies’ (§ 132) created by the change in jurisprudence.

Other findings of the Court

Lastly, the Court briefly examines a violation of the right to protection of property enshrined in Article 1 Protocol No. 1 regarding one of the applicants. The retroactive application of the reasonable time-limit made it impossible for him to recover a lot that he had bought, which was pre-empted by the municipality – a decision that the applicant sought to challenge (§§ 25 et seq.). The Court held that the retroactive application of the time-limit that violates Art. 6 §1 ECHR is also a breach of procedural guarantees implied in Art. 1 Protocol No. 1 (§§ 175, 182).

Discussion

The ECtHR strikes a fair balance between the applicants’ right of access to a court and the principle of legal certainty and proper administration of justice brought forward by the French Government. While the Court accepts the reasonable time-limit in principle, it makes sure the French administrative tribunals engage in fair play – as opposed to the foul play they have committed in its recognition and application.

The first instance of foul play lies within the French tribunals’ position that the recognition of the reasonable time-limit does not infringe upon the claimants’ right of access to a court (§§ 22, 51, 67, 68). The ECtHR rightfully refrains from giving a qualification of the time-limit under national law (§§ 134 et seq.) but rebukes this attempt of relativisation by clearly stating that the time-limits are no simple technicalities, but an encroachment on Art. 6 §1 ECHR (§ 138). However, this does not change the fact that the right of access to a court can be restricted: the Court relies on its well-established case law by stating that the right of access to a court is not absolute and the Member States have a ‘certain margin of appreciation’ regarding restrictions (§ 126; see also Golder v. United Kingdom, § 38; Ashingdane v. United Kingdom, § 57; Stanev v. Bulgaria [GC], § 230). Equally well-established case law requires that restrictions pursue a legitimate aim and comply with the principle of proportionality (§ 128; see also Ashingdane v. United Kingdom, § 57; Markovic and others v. Italy [GC], § 99; Stanev v. Bulgaria [GC], § 230; Baka v. Hungary [GC], § 120).

It thus comes as no surprise that the Court unanimously considers legal certainty to be a legitimate aim to restrict individual rights of appeal. The Court is unimpressed by the applicants’ harsh criticism that ‘the convenience of the Czabaj jurisdiction for the administration may not be confused with public interest’ (§ 93). On the contrary: legal certainty is an element of public interest – as stated by the rapporteur public in that casewhose concluding remarks the Court quotes extensively (§ 68). This becomes particularly clear when looking at the potential consequences of an opposite assessment by the Court: it would prove disastrous if a clerical error – the failure to provide information on the existence and the modalities of judicial remedies – would forcibly entail a perpetual vulnerability of the administrative act. This not only goes against the practice in a number of other Member States and in EU law (§ 143). It would also potentially affect the rights of others, as national authorities (§§ 68, 114) as well as the ECtHR (§ 144) rightfully point out. While the Court does not express concerns regarding the indefinite availability of access to a court, the idea that the Convention would require perpetual access seems very far-fetched. Unlike the applicants (§ 90), the Court is satisfied with the depth of the explanations provided especially in the conclusions of the rapporteur public (§ 68)– the key source to deepen one’s understanding of the usually quite short and authoritarian decisions of the Conseil d’État.

Nevertheless, the Legros case does innovate: the most significant part of the judgment at hand must be the precision on when a time-limit for the introduction of actions before domestic courts may be considered ‘reasonable’. As the rapporteur public pointed out, the ECtHR had not decided on this matter yet (§ 68). This has now changed. The Court considers that ‘one year from the time when the claimant became aware of the decision of which he is the addressee, [is] a period of time which cannot, in principle, be regarded as insufficient for him to be able to enquire about the remedies and time-limits for lodging an appeal enabling him to challenge that decision’ (§ 144). This one-year period may in the future serve as a benchmark for the Member States of the ECHR – potentially exceeding the scope of this individual case.

The second instance of foul play pertains to the retroactive application of the time-limit. While the first foul just warranted a simple reprimand, the second foul is worthy of a red card: ‘[O]ne does not change the rules in the middle of the game’. For judicial decisions, this is not self-explanatory. Classically, even the most ground-breaking decisions are seen as not changing the law, but only the understanding of the law. That means that, from a purely formalistic point of view, praetorian innovations are perceived as if they have always existed – they are retroactive by nature. But as French administrative procedural law heavily relies on case law, especially in its core aspects, corrections were necessary. The Conseil d’État found a remedy by exceptionally admitting a time-delayed application of newly created case law. Yet, it did not apply this approach to the applicants at hand. The ECtHR, however, has adopted a more restrictive approach regarding the retroactive application of new admissibility criteria in Gil Sanjuan v. Spain, revisiting the criteria laid down in Zubac v. Croatia [GC] for the access to superior courts: while pursuing the legitimate aims of legal certainty and proper administration of justice (cf. Zubac v. Croatia [GC], § 98; Kart v. Turkey [GC], § 79), retroactive application of new jurisdiction only complies with Art. 6 §1 ECHR if it is foreseeable, and claimants are given the ‘opportunity to remedy any possible deficiencies which had arisen as a result of the new criteria’ (Gil Sanjuan v. Spain §§ 37 et seq.; cf. also Zubac v. Croatia [GC], §§ 87 et seq.). These elements are considered ‘in varying degrees’ (Zubac v. Croatia [GC], § 85) on a case-by-case basis – as a bundle of indices. In the case at hand, the French administrative tribunals’ behaviour is a textbook example of how not to retroactively apply praetorian creations. The Court broadly hints that the non-application of the Société Tropic travaux signalisation jurisprudence is a missed opportunity to avert a violation (§ 160): most likely, the reasonable time period of one year during which actions could still have been brought to the tribunals would have sufficed to avoid a violation of the Convention.

Conclusion

Legros and Others v. France will probably not make the list of key cases or affaires phares. It is an application of a now well-established line of case law forged in the Gil Sanjuan v. Spain and Zubac v. Croatia [GC] judgments. The form of the decision at hand reflects its content: it is a very well-structured and thought-through judgment in which all pieces fall into place perfectly and create a consistent overall picture. Nevertheless, it warrants a closer look. It does not only specify that one year, in principle, is a reasonable time-limit for introducing actions before national courts. It also reaffirms the limits of retroactivity – a notoriously difficult subject, not only in ECHR law. With regard to the creation and application of new time-limits, the ECtHR reassures the applicants: if perpetual rights come to an end, it must happen slowly and foreseeably, not abruptly.