CASE OF BEAUMARTIN v. FRANCE
Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
John Freeland
6. Mr Pierre Beaumartin, a retired industrialist of French nationality, lives in Léognan (Gironde). His sisters, Mrs Jeanne Droin and Mrs Paule Thibout, live respectively in Bordeaux and Paris. 7. The applicants held between them ten shares in the Société immobilière du Karmat El Hadj, a company under Moroccan law whose sole asset was an agricultural estate of more than 400 hectares in the Moroccan province of Kenitra and whose share capital comprised 6,000 shares. They further owned almost all of the share capital of the Société foncière du Quartier de l’Europe, a non-trading company (société civile) under French law, which itself owned 5,959 shares in the Moroccan company in addition to a building in Paris. 8. Under a dahir (royal decree) of 2 March 1973 the Moroccan Government nationalised agricultural land belonging to foreigners. 9. On 2 August 1974, following negotiations, the Moroccan and French Governments concluded a Protocol with a view to making provision for the financial consequences of the nationalisation of French citizens’ assets. The following provisions are relevant to the instant case: "The Moroccan Government shall pay the French Government compensation in a single lump sum and the French Government shall be responsible for apportioning that sum among the beneficiaries of this Protocol. The beneficiaries shall be natural persons of French nationality who are individual or joint landowners or members of partnerships or companies, or who suffered the consequences of the dahir of 2 March 1973 in any other capacity." "The French Government shall be responsible for apportioning the compensation provided for in this Protocol. ..." "With effect from the signature of this Protocol, each Government undertakes, subject to the other Government’s compliance with their obligations under the Protocol, to refrain from submitting to the other Government or to an arbitral tribunal or a court any claims made by their nationals in respect of the assets, rights and interests referred to in Articles 1, 2 and 5 of this Protocol or from supporting such claims." A decree of 3 January 1975 promulgated the text of the agreement and charged the Prime Minister and the Minister for Foreign Affairs with implementing it. 10. Under a decree of 6 November 1979 a committee responsible for apportioning the Moroccan indemnity was set up. Article 3 of the decree provided: "The committee shall comprise (a) a representative of the Ministry of Foreign Affairs, who shall chair the committee; (b) a representative of the Ministry of Justice; (c) a representative of the Ministry of the Interior; and (d) a representative of the Ministry of the Economy. The Chairman and members of the committee shall be appointed by order of the Minister for Foreign Affairs. ... Decisions shall be taken by a majority. The Chairman shall have a casting vote." 11. In a decision of 23 June 1980, notified on 31 July 1980, the committee awarded the applicants, as natural persons, compensation solely in respect of the shares they owned directly in the Société immobilière du Karmat El Hadj, i.e. four shares in Mr Beaumartin’s case and three shares in the case of each of his sisters. On the other hand, pursuant to the second paragraph of Article 1 of the Protocol, it refused to pay them compensation in their capacity as majority shareholders of the Société foncière du Quartier de l’Europe. 12. On 26 September 1980 the applicants challenged this decision in the Paris Administrative Court. The grounds for their application were set out in a memorial filed on 9 February 1981. They complained that the committee had determined the compensation to be awarded in respect of the Moroccan property company’s agricultural estate solely on the basis of the shares they held in that company in their own names, without taking into consideration the shares they owned in the French property company. The Minister for Foreign Affairs, the respondent in the proceedings, submitted his observations in reply on 2 April 1981. 13. In an order of 15 June 1981 the Vice-President of the Administrative Court held that the dispute fell outside that court’s jurisdiction and forwarded the application and the file to the Conseil d’Etat. 14. The Minister for Foreign Affairs filed observations on 25 February 1983. 15. On 3 October 1986 the Conseil d’Etat deferred its decision on the application until the authority empowered to interpret the Protocol had given its opinion. It gave the following reasons: "The outcome of this dispute depends on whether, under this Article [1 of the Franco-Moroccan Protocol], natural persons are entitled to claim compensation solely as members of partnerships or companies that were the direct owners of assets conferring a right to compensation under the above-mentioned Protocol or whether they are also entitled to do so as shareholders of companies themselves members of the partnerships or companies which owned such assets. The outcome of the dispute is accordingly contingent on the interpretation of the Protocol. The Protocol is an international agreement and its meaning is unclear. Consequently, only the Minister for Foreign Affairs is competent to interpret it." 16. In a note of 2 July 1987 the Minister replied that the Protocol in question "was not ... intended to cover natural persons holding shares in companies which themselves were members of the partnerships or companies that owned the assets conferring a right to compensation", with the result that the applicants were not entitled to compensation under the Protocol. 17. On 13 October 1987 the applicants filed further submissions, in which they argued that, if the Conseil d’Etat considered itself bound by the minister’s interpretation, such a decision would entail a violation of Article 6 para. 1 (art. 6-1) of the Convention. The respondent filed submissions on 10 November 1988. 18. In a judgment of 27 January 1989 the Conseil d’Etat dismissed the application on the following ground: "The interpretation given by the Minister for Foreign Affairs is binding on the Conseil d’Etat which can only draw the legal conclusions which follow from it." 19. Since 1823 (see the Veuve Murat, Comtesse de Lipona, judgment of 23 July 1823, Recueil des arrêts du Conseil d’Etat [Reports of the judgments of the Conseil d’Etat], p. 545) the Conseil d’Etat had held that the interpretation of international treaties fell outside the scope of its judicial functions. When confronted with provisions that it considered insufficiently clear - except for Community legislation, the interpretation of which is governed by Article 177 of the Treaty of Rome - it relied on the official interpretation given by the Minister for Foreign Affairs. It deemed that interpretation to be a prerogative act that could not be dissociated from international relations, had binding force and was not open to challenge in the courts (see the full court’s judgment of 3 July 1931 in the case of Karl and Toto Samé, Recueil des arrêts du Conseil d’Etat, p. 722, Sirey 1932, III, p. 129). 20. On 29 June 1990 the Conseil d’Etat, sitting as a full court and endorsing the submissions of the Commissaire du gouvernement, Mr Ronny Abraham, delivered a judgment relating to the conditions of circulation, residence and employment of Algerian nationals and their families in France (G.I.S.T.I. judgment, Recueil des arrêts du Conseil d’Etat, p. 171; Actualité juridique. Droit administratif 1990, p. 621; Revue générale de droit international public 1990, p. 879; Revue française de droit administratif 1990, p. 923, with a note by Mr Jean-François Lachaume; Revue critique de droit international public 1991, p. 61). It discontinued the practice - which had no equivalent in the other member States of the Council of Europe - of referring a preliminary question to the minister on the construction of an international treaty containing ambiguous or unclear provisions. It now interprets international agreements itself and, if it seeks the opinion of the executive, it does not regard itself as bound thereby. 21. Since a judgment of 24 June 1839 (Dalloz 1839, part one, p. 257), the Civil Divisions of the Court of Cassation have held that the ordinary courts are entitled to interpret clauses of a treaty "provided that they do not raise issues liable to jeopardise good international relations" (l’ordre public international). Otherwise, if an instrument is unclear they still require the question to be referred to the Minister for Foreign Affairs (judgment of 7 June 1989, First Civil Division, Juris-classeur périodique 1990, part two, no. 21448). In the Criminal Division the principle of a lack of jurisdiction entailing an obligation to seek a preliminary interpretation continues to apply. With the exception of the European Convention on Human Rights, "international treaties are measures taken by the highest administrative authorities which can only be interpreted, if necessary, by the authorities which concluded them" (judgment of 3 June 1985, Bulletin des arrêts de la Cour de cassation [Court of Cassation law reports], no. 212, p. 542). The official interpretation is of general application and is binding on the courts (judgment of 7 June 1988, Bulletin des arrêts de la Cour de cassation, no. 257, p. 683). On the other hand, the Social Division recently abandoned the approach of distinguishing between international treaties and now interprets them without seeking to establish whether issues liable to jeopardise good international relations are raised (Caisse autonome mutuelle de retraite des agents des chemins de fer judgment of 29 April 1993 and submissions filed by the Advocate-General, Mr Chauvy, Gazette du Palais, 11-12 March 1994, p. 13).