CASE OF ÉDITIONS PÉRISCOPE v. FRANCE
Violation of Art. 6-1;Pecuniary damage - claim dismissed;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
R. Pekkanen
8. Editions Périscope is a limited company, incorporated under French law, whose registered office is in Paris. It was founded in April 1960 for the purpose of creating a review entitled "Périscope de l’usine et du bureau", which was to analyse new industrial products and provide an "integrated readers’ service". At the time periodicals of this type were unknown in France. 9. On 21 October 1960 the applicant company applied to the Joint Committee on Press Publications and Press Agencies ("the Joint Committee") for a certificate of registration for its review in order to secure the tax concessions and preferential postal charges accorded to the press. 10. The Joint Committee rejected the application on 8 December 1960 and refused two further applications on 9 February 1961 and 17 January 1964. It did not reply to a fourth, lodged on 30 June 1970. Although these decisions were equivalent to decisions having an adverse effect because they were binding on the administrative authorities, they were not challenged in the Conseil d’État as being ultra vires. The reason given was always the same: the review was classified as an advertising organ because it represented a link between its subscribers and manufacturers for the purposes of a commercial transaction. It published the technical data furnished by the manufacturer himself for the articles presented; a reader interested in a model returned to the head office of Périscope de l’usine et du bureau a form with the reference of the model in question; the manufacturer then received this form and sent the relevant documentation. In fact, in order to obtain the advantages which it claimed, the review would have had to have devoted at least a third of its surface to information of general interest or to provide its readers’ service with critical editorial comment. 11. Editions Périscope also submitted two informal requests which were rejected by the Secretaries General of the Ministry of Posts and Telecommunications (8 April 1961) and of the Joint Committee (27 October 1966). It also made various representations to the public authorities up until 1974, but without success. 12. "Périscope de l’usine et du bureau" ceased to appear in October 1974 and the company which published it became the subject of composition proceedings and then went into liquidation. However, the Paris Commercial Court rescinded its order after the managing director had agreed to meet the liabilities of the company out of his personal funds. 13. On 15 March 1976 Editions Périscope submitted a preliminary application to the Minister for Finance, the Junior Minister for Posts and Telecommunications and the Junior Minister of the Prime Minister’s office, Spokesman for the Government. It sought compensation of 200,000,000 francs for the damage which it claimed to have sustained since 1962 through the fault (faute) of the public authorities. No reply to the application was forthcoming. 14. On 12 November 1976 Editions Périscope instituted proceedings in the Paris Administrative Court. It asked the court: "to allow the ... application and, for the reasons set out ..., order the State to pay it the sum of two hundred million francs as compensation for the damage which it has sustained through the faults committed by the public authorities; in the alternative, to call for an expert opinion in order to determine the extent of the damage sustained by Editions Périscope." 15. The defendant, the Prime Minister, filed a memorial on 25 February 1977 contending that the application should be dismissed. The Minister for the Economy and Finance and the Junior Minister for Posts and Telecommunications did likewise on 4 March and 18 April. 16. On 17 June 1977 Editions Périscope submitted a memorial (mémoire ampliatif) which it supplemented on 15 November; it had requested extensions of the time-limit on 27 April and 1 June in order to obtain new documents. 17. On 18 November 1977 the Deputy Minister for the Economy and Finance confirmed his earlier submissions. 18. In a further memorial registered on 16 March 1978, the applicant company stated inter alia as follows: "Hitherto, only the Minister for Finance has replied to the memorial of 15 June 1977 by a memorial of 18 November 1977. It is clear that the administrative authorities in question are abusing their privileged position to delay for as long as possible the conclusion of the trial ... . This abuse is all the more patent because these authorities possess resources in material and staff which enable them to comply with reasonable time-limits for replying." Consequently, it asked the court "[to] take formal note of its protests against the dilatory lack of response from the defendant authorities and [to] order them to reply within a very short period to the company’s memorials of 15 June and 15 November 1977". 19. On 28 March 1978 the Prime Minister declared that he did not wish to alter his submissions of 25 February 1977 and endorsed the observations of the Deputy Minister for the Economy and Finance and those of the Secretary of State for Posts and Telecommunications. 20. Editions Périscope then submitted yet another memorial, the fourth, lodged on 22 May 1978: "The failure of the Minister for Finance and the Junior Minister for Posts and Telecommunications to reply shows that they have no additional arguments to put forward in respect of the explanations and documents produced on 15 June and 15 November by the applicant company. In these circumstances, [the said company] asks the Administrative Court to regard the written investigation proceedings as concluded and to fix a date for a hearing to examine the dispute ..." It submitted two further memorials on 25 October 1978 and 29 May 1979. The first contained the following conclusion: "The silence on the part of the Minister for Posts following the last three of the company’s memorials, the Prime Minister’s letter of 21 March 1978 endorsing the memorials of the other ministers, the reiteration by the Minister for the Budget of the arguments put forward by the Minister for Finance, the total absence of discussion by the defendants of the damage, the time-limits which have expired, all show that the State has concluded its defence submissions. In these circumstances the applicant company requests the Administrative Court to fix as soon as possible the date for the examination of the application which was lodged two years ago." The second ended as follows: "Périscope notes that the defendants have all stated that they wished to reiterate their previous arguments. They have thus concluded their submissions. The company ... therefore again requests the Paris Administrative Court to hold a hearing in the near future to examine the case, while reserving the right to make oral submissions through its counsel." In addition, on 13 January 1979, the lawyer for Editions Périscope wrote to the President of the Administrative Court to ask him to set the date for the hearing. It was, he stated, "unacceptable ... that the authorities [should be able] to delay indefinitely the conclusion of the proceedings, to the plaintiff’s detriment". 21. The Minister for the Budget filed a supplementary memorial on 10 June 1978, as did the Junior Minister for Posts and Telecommunications on 23 January 1979. Furthermore, on 22 October, the latter indicated that he wished to abide by his previous submissions "in every respect". 22. After a public hearing held on 6 April 1981, the Administrative Court dismissed the application on 27 April on the following grounds: "The application by the company, Editions Périscope, requests the court to find that the State is liable for the damage caused to the applicant by the discrimination operated by the relevant authorities in favour of competing undertakings in respect both of the postal charges and of the tax concessions, without also according them to the applicant, despite its repeated requests, to order the State to pay on these grounds compensation of 200,000,000 francs and, in the alternative, to call for an expert opinion to determine the extent of the damage sustained; If the applicant company wished to rely on the unlawfulness of the refusal to register it on the list of publications qualifying for the above-mentioned advantages [tax concessions], it should have challenged, in good time, the tax demands which it considered to have been made in disregard of the exemption laid down in Article 261-8-1o of the General Tax Code; it can no longer call in question such demands by means of an action for damages brought against the Minister for the Budget since it has not established the unlawfulness of the refusals; For their part, the postal authorities did not commit a fault capable of giving rise to liability on the part of the State by not according to the applicant special postal rates inasmuch as it follows from Article D 18 of the Posts and Telecommunications Code that the application of such rates is conditional on the production of a registration certificate issued by the Joint Committee ...; the applicant should, if it believed that it was entitled to, have challenged within the prescribed period of two months the lawfulness of the refusal; the investigation has shown that the attention of the company’s directors was drawn in vain on various occasions to the difference in the structure of its review in relation to the competing reviews and to the changes which it would have to make in order to qualify for the fiscal status accorded to the press; The allegation that various competing undertakings had unduly benefited from the advantages in question, even supposing that it were established, which the investigation has not shown, is not such as to constitute an infringement of the principle of equal treatment by the public authorities; ..." 23. By an appeal filed on 15 July 1981, Editions Périscope requested the Conseil d’État to "set aside the contested judgment [of the Administrative Court], order the State to pay it a sum of 200,000,000 francs in damages and, in the alternative, order an expert examination for the purposes of determining the extent of the damage which had been caused to it by the discriminatory measures of which it had been victim". 24. The case, whose file the Administrative Court had forwarded to the Conseil d’État on 11 August 1981, was assigned to the tenth section of the judicial division on 15 August. 25. Editions Périscope filed a memorial on 13 November 1981. On 18 December it drew attention to a typing error in its text. 26. The file was communicated in turn to three members of the Government: the Minister for the Economy and Finance, from 24 November 1981 to 2 March 1982; the Deputy Minister to the Minister for Industry and Research, with responsibility for Posts and Telecommunications, from 16 March 1982 to 16 May 1983, the Conseil d’État having requested its return on 5 May 1983; the Junior Minister attached to the Prime Minister’s office, with responsibility for Communication Techniques, from 14 June to 3 October 1983. On 27 January 1982 the first of the above officers requested an additional time-limit to submit his memorial, which he did on 2 March 1982. The second filed his memorial on 14 November 1983, after having indicated on 16 May of the same year that he intended to "reply very shortly". The third had lodged his memorial on 3 October 1983. 27. The applicant company filed a further memorial on 28 October 1983 and produced documents on 10 and 24 February 1984. 28. On 10 January 1984 the file was entrusted to a junior member of the section, who gave his report on 16 April. The investigation session was held on 21 November and the case was entered on the list of the tenth and seventh sections combined, for hearing on 6 March 1985. 29. The Conseil d’État dismissed the appeal by a judgment of 22 March 1985 on the following grounds: "... By virtue of the provisions of Article 1 of the Decree of 25 March 1950, as amended by the Decree of 2 August 1960, the Joint Committee ... is responsible for giving an opinion on the application of statutory instruments and regulations providing for concessions accorded to the press with regard to taxes, postal charges and customs duties; pursuant to Article 3 of the Decree, the [Joint] Committee is to examine whether the publication appears to satisfy the conditions laid down in these provisions and, if it does, to issue to the publication a registration certificate, which must be produced in support of any application for tax concessions and postal charge reductions; the refusal to grant a registration certificate constitutes an opinion to this effect which precludes the relevant administrative authority from granting the concessions sought; By decisions dated 8 December 1960, 9 February 1961 and 17 January 1964, the Joint Committee ... refused to issue the registration certificate to the review ‘Périscope de l’usine et du bureau’, relying on the provisions of Article 72, 6o, of Annex III to the General Tax Code, which, in the version applicable at the material time, excluded from the exemption provided for in the provisions of 1o of [paragraph] 8 of Article 261 of the same Code newspapers or periodical publications regarded as equivalent to ‘publications whose principal purpose is to promote or to develop transactions of commercial, industrial, banking, insurance or other undertakings for which they are in reality vehicles for publicity or advertising’; Firstly, it appears from the investigation, and it is moreover not in dispute, that the monthly review ‘Périscope de l’usine et du bureau’ was a publication of the type referred to in the above-mentioned provision of Article 72 of Annex III to the General Tax Code, having regard in particular to its contents and to the proportion of its surface which it devoted to advertising or articles equivalent to advertisements; the decision not to issue a registration certificate was accordingly well-founded; Secondly, although the advantages refused to the ‘Périscope de l’usine et du bureau’ were accorded to publications which it claims were its competitors, it has not been established in any way, contrary to what the applicant company alleges, that these publications could, in terms of their editorial characteristics and the proportion of advertising carried, be classified as ‘vehicles for publicity or advertising’, within the meaning of the above-mentioned provision of the General Tax Code, thereby justifying a refusal to accord to them the benefit of the concessions to the press; it follows that the applicant company is in any event not entitled to claim that the [Joint] Committee committed a fault capable of giving rise to liability on the part of the State by unlawfully granting other reviews comparable, in the appellant company’s opinion, to that which it publishes, the certificate which was refused to it; It follows from the foregoing that there is no basis for the limited company Editions Périscope’s complaint against the contested judgment by which the Paris Administrative Court dismissed its claim for compensation."