CASE OF HUBER v. FRANCE
Art. 6 inapplicable
R. Pekkanen
6. As a secondary-school teacher of classics who has passed the agrégation (the highest competitive examination for teachers), Mr Huber has been a civil servant in the State education service since 1978. While working at the Paul Eluard Lower Secondary School at Evry (département of Essonne), he was sent on compulsory leave for a month from 7 November 1988 by a decision of the schools inspector for Essonne on 4 November 1988. The decision was based on Article 4 of the decree of 29 July 1921, which provides: “Where the schools inspector … considers, in the light of a medical certificate or a report by a civil servant’s superiors, that on account of the civil servant’s physical or mental state, the children are exposed to immediate danger, he may send the civil servant concerned on compulsory leave for one month on full salary.” 7. On 6 December 1988 the same inspector decided to suspend payment of the applicant’s salary from 7 December 1988. 8. On 6 February 1989 Mr Huber applied to the Versailles Administrative Court to quash the decisions of 4 November 1988 and 6 December 1988 and sought a stay of execution of the latter decision. 9. By three decisions of 5 October 1989 the applicant was sent on extended sick-leave from 7 November 1988 to 6 May 1989 and then from 7 May 1989 to 6 November 1989 and on extended leave of absence from 7 November 1989 to 6 May 1990. On 8 December 1989 Mr Huber applied to the same court to quash those three decisions. 10. The hearing took place on 18 December 1990. In a judgment of the same date the Versailles Administrative Court joined the three applications, quashed the decision of 4 November 1988 and the one of 6 December 1988 suspending payment of the applicant’s salary, decided that there was no longer any need to rule on the application for a stay and dismissed the application to have the decisions of 5 October 1989 quashed. The judgment read as follows: “… As to the compulsory leave … Mr Huber maintained that the headmaster’s report on which the decision complained of was based had been drawn up on 30 September 1988, whereas the decision whereby he was sent on compulsory leave had not been issued until 4 November 1988. Serious incidents occurred on account of the teacher’s lack of authority. While the headmaster said that Mr Huber’s behaviour had jeopardised pupils’ safety, he did not, however, establish that he had taken the measures, including disciplinary measures, that were within his powers and which would have prevented the situation from becoming critical. Nor does it appear from the report produced that the facts were such as to justify applying Article 4 of the decree [of 29 July 1921], which only applies in very specific circumstances that justify describing the danger to which the children are exposed as immediate… As to the suspension of payment of salary Although Article 39 of the decree [no. 86-442] of 14 March 1986 authorises the administrative authorities to stop paying the salary of a civil servant on extended sick-leave or extended leave of absence who refuses to undergo the treatment and examinations his state dictates, it could not be applied to Mr Huber, who at the time when the impugned decision suspending payment of his salary was taken was not on extended sick-leave or extended leave of absence…” 11. The applicant appealed to the Conseil d’Etat on 31 January 1991. He sought to have the judgment of 18 December 1990 quashed in so far as the Administrative Court had held that it was unnecessary to rule on the application for a stay of execution and had dismissed the application to quash the decisions of 5 October 1989. According to the Government, the Ministry of Education filed observations on 10 April 1992, to which Mr Huber replied on 23 April 1992. The applicant had produced new documents on 15 and 25 January, 18 February, 4 March and 14 June 1993 and on 17 January 1994. On 1 February 1994 the case had been assigned to the Eighth Section of the Judicial Division of the Conseil d’Etat, on 14 October 1994 a reporting judge had been appointed and on 14 November 1994 a preparatory sitting had been held. 12. On 30 November 1994 the Conseil d’Etat held a hearing, and on 21 December 1994 it delivered a judgment in which it dismissed the appeal. 13. By a decision of 12 July 1990 the applicant was transferred to the Marcel Pagnol Upper Secondary School at Athis-Mons (Essonne) but he could not take up his duties until the appropriate medical board had ruled on his case. In a letter of 9 August 1991 to the Minister of Education he asked the Minister to “rule on his administrative position” in respect of the period after 6 May 1990 and sought payment of an advance on his salary. 14. On 19 August 1991 the applicant lodged two applications with the Paris Administrative Court. In one of these he sought to have quashed the implicit refusal of his request for a review of his administrative position and for an advance on his salary, submitting that it was not normal for him to be on unpaid leave and that the medical board had not ruled on his case, thereby preventing him from taking up his duties at the Marcel Pagnol Upper Secondary School at Athis-Mons. In the other application he sought a stay of execution of that implicit refusal, relying on his financial difficulties. 15. On 7 October 1991 the President of the Paris Administrative Court, taking the view that, according to Article R. 56 of the Administrative Courts and Administrative Courts of Appeal Code, the Paris Administrative Court had no jurisdiction to hear the foregoing applications, ordered under Article R. 82 of the same code that the files should be sent to the President of the Judicial Division of the Conseil d’Etat. 16. In an order of 4 December 1991 the President of the Judicial Division of the Conseil d’Etat designated the Versailles Administrative Court as the court that would hear the applications in question. The latter were registered in that court’s registry on 27 January 1992. 17. On 20 January 1993 the Director of Education for Versailles filed a pleading to which were appended two decisions of 6 January 1993 designed to resolve Mr Huber’s position. In the first decision the applicant’s extended leave of absence was prolonged from 7 May 1990 to 6 November 1992, and in the second he was reinstated in his post at Paul Eluard Lower Secondary School at Evry. 18. In his pleading in reply registered on 27 January 1993 the applicant said that he had lodged a preliminary administrative appeal against the second of those decisions (he was seeking reinstatement in the post at Marcel Pagnol Upper Secondary School at Athis-Mons, where he had last been posted). In a further pleading registered on 22 February 1993 the applicant “confirm[ed]” that he was seeking to have both the aforementioned decisions quashed. 19. In a judgment of 14 December 1993 the Versailles Administrative Court joined all the applications, dismissed that seeking to have the decisions of 6 January 1993 quashed and decided that it was unnecessary to rule on those seeking to have quashed the implicit refusal of Mr Huber’s request for a review of his position and a stay of execution of that refusal. 20. On 6 January 1994 the applicant appealed to the Conseil d’Etat against the judgment of 14 December 1993. 21. On 21 December 1994 the Conseil d’Etat decided to transfer the appeal to the Paris Administrative Court of Appeal. The decision read as follows: “By Article 2 of the decree [no. 92-245] of 17 March 1992, ‘From 1 January 1994 the Administrative Courts of Appeal shall have jurisdiction to rule on appeals against judgments of the Administrative Courts on applications for judicial review of individual decisions taken in respect of civil and public servants.’ Mr Huber’s … application, registered on 6 January 1994, whereby he is appealing against a judgment on an application for judicial review of decisions concerning his career as an agrégation-qualified secondary-school teacher, therefore falls within the jurisdiction of the Paris Administrative Court of Appeal. Admittedly, Mr Huber maintained that the Conseil d’Etat had jurisdiction to hear his application in view of the link between it and [the] application … made by him on 31 January 1991 [see paragraph 11 above] and Article R. 73 of the Administrative Courts and Administrative Courts of Appeal Code provides: ‘Where the Conseil d’Etat has before it a submission which it has jurisdiction to hear as the appellate court, it shall also have jurisdiction to entertain related submissions which would normally fall within the jurisdiction of an Administrative Court of Appeal.’ There is, however, no link between the present application and the submissions in the application [made on 31 January 1991]. …” 22. The Conseil d’Etat’s decision of 21 December 1994 was registered in the Paris Administrative Court of Appeal’s registry on 8 June 1995. 23. The hearing took place on 5 November 1996, and in a judgment of 19 November 1996 the Administrative Court of Appeal dismissed the applicant’s appeal on the following grounds: “… by means of two decisions of 6 January 1993 the Director of Education for Versailles prolonged the applicant’s extended leave of absence on full salary from 7 May 1990 to 6 November 1992 and reinstated him in his duties at the Paul Eluard Lower Secondary School at Evry with effect from 7 November 1992. Mr Huber’s applications seeking to have quashed and stayed the authorities’ implicit refusal to give a ruling on his position thus became devoid of purpose on 14 December 1993, the date of the judgment appealed against. The fact that he had not been assigned to any duties at the beginning of the new school year in 1994 and had not received any salary since May 1994 has no bearing in this connection…” 24. On 25 November 1996 Mr Huber appealed on points of law to the Conseil d’Etat against the Administrative Court of Appeal’s judgment of 19 November 1996. The case is still pending. 25. A civil servant in post is entitled, inter alia, to extended sick-leave for a maximum period of three years where it is established that he is suffering from an illness that makes it impossible for him to carry out his duties, requires prolonged treatment and care, is disabling and has been confirmed as serious. The civil servant remains on full salary for one year and on half salary for the next two years. He also retains his entitlement to the full supplementary family allowance and the full residence allowance (section 34(3) of Law no. 84-16 of 11 January 1984 making provisions governing the civil service). He is also entitled to extended leave of absence for three years on full salary and thereafter for two years on half salary if he is suffering from tuberculosis, mental illness, cancer or poliomyelitis. He retains his entitlement to the full supplementary family allowance and the full residence allowance. If the illness has been contracted in the course of his duties, the aforementioned periods are increased to five years and three years respectively. Extended leave of absence is normally granted only at the end of the full-salary period of extended sick-leave (section 34(4) of the Law). Extended sick-leave and extended leave of absence are granted after a medical examination and authorisation from the appropriate medical board (Article 35 of Decree no. 86-442 of 14 March 1986 on the appointment of civilian and military medical boards, physical-fitness requirements for admission to posts in the public service and rules on sick-leave for civil servants). 26. Where a departmental head considers, in the light of a medical certificate or a report by a superior, that a civil servant’s state of health might justify his being sent on extended sick-leave or extended leave of absence, he may take steps in order to have the person concerned undergo a medical examination (Article 34 of the decree). 27. A person on extended sick-leave or extended leave of absence may not resume his duties at the end of or during that leave unless he is declared fit after a medical examination by an approved specialist and with the agreement of the appropriate medical board (Article 41 of the decree). 28. Articles R. 56 and R. 82 of the Administrative Courts and Administrative Courts of Appeal Code provide: Article R. 56 “Jurisdiction to hear all individual disputes, including those over pecuniary matters, which affect civil servants or employees of the State and of other public entities or authorities … shall be vested in the Administrative Court within whose territorial jurisdiction the place of work of the civil servant or employee affected by the impugned decision is situated. If the decision in question concerns an appointment or entails a change of posting, jurisdiction shall be determined by the location of the new posting. If the decision in question concerns a dismissal, a retirement or any other measure entailing termination of service, or if it concerns a former civil servant or employee, or a civil servant or employee without a posting on the date when the impugned decision was taken, jurisdiction shall be determined by the location of the civil servant’s last posting. …” Article R. 82 “Where an Administrative Court of Appeal or Administrative Court is seised of a case which it considers to be within the jurisdiction of an administrative court other than the Conseil d’Etat, its president shall without delay forward the file to the President of the Judicial Division of the Conseil d’Etat, who shall settle the issue of jurisdiction and assign the case to be tried in whole or in part by the court that he shall declare to have jurisdiction.”