CASE OF CAZENAVE DE LA ROCHE v. FRANCE
Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
C. Russo;John Freeland
6. Under the technical and cultural convention concluded between France and Morocco on 13 January 1972, the Moroccan Government recruited Mrs Cazenave de la Roche on 4 January 1982 as a senior lecturer at the Rabat National School of Architecture. 7. On 22 September 1983 the French embassy in Morocco sent the applicant a certificate of termination of payment, the date of expiry of her contract having been set at 4 January 1984 by the Moroccan authorities. The certificate stated: “… Certifies that Mrs Cazenave de la Roche … Senior Lecturer without tenure … will have her name removed from the list of staff serving overseas on 4 January 1984 and will be paid by the Ministry of Foreign Affairs until 3 January 1984. …” 8. On 3 December 1984 Mrs Cazenave de la Roche applied to the Minister for Foreign Affairs, seeking to have the decision of 22 September 1983 revoked and to be appointed to the town-planning teaching staff on the basis of the provisions of section 9 of the Law of 11 June 1983 (see paragraph 28 below). 9. On 22 February 1985 the Minister for Foreign Affairs refused the applicant’s requests on the ground, in particular, that the application of the Law in question was conditional on the publication of implementing decrees, which did not exist when the impugned decision was taken. 10. On 4 April 1985 Mrs Cazenave de la Roche applied to the Paris Administrative Court to quash the decision of 22 February 1985; she also sought a declaration that she was entitled to be established as a civil servant with effect from 3 January 1984. 11. The Minister of State at the Ministry of Foreign Affairs filed his pleading on 13 July 1985 and the applicant did likewise on 9 December 1985. 12. On 24 January 1986, having held a hearing on 10 January, the court delivered the following judgment: “… As to the submissions concerning the refusal to establish the applicant as a civil servant As to the ground based on infringement of sections 9 et seq. of the Law of 11 June 1983 and sections 80 et seq. of the Law of 11 January 1984 … By section 9 of Law no. 83-481 of 11 June 1983, ‘Civilian cultural, scientific and technical cooperation staff’ have ‘the right to become established if they so request’. The application of that Law and, in particular, of the … provisions of section 8 was, however, conditional on the enactment of decrees adopted after consultation of the Conseil d’Etat, which had not been published by the date on which the provisions in question were in turn taken over in sections 74 et seq. of Law no. 84-16 of 11 January 1984, and the decrees to be adopted after consultation of the Conseil d’Etat which were also necessary for the application of these had likewise not been enacted by the date of the impugned decision. While it is established that the authority empowered to make regulations is under a legal obligation to take, within a reasonable time, those measures which are within its powers and are necessary for the implementation of a legislative enactment, it does not appear that the time which has elapsed since the publication of the legislative enactment can be regarded as excessive. Mrs Cazenave de la Roche consequently cannot rely on that circumstance to challenge the lawfulness of the decision whereby the Minister of State at the Ministry of Foreign Affairs refused her application. …” 13. On 13 May 1986 Mrs Cazenave de la Roche appealed to the Conseil d’Etat against the Paris Administrative Court’s judgment. She filed a supplementary pleading on 11 September 1986. 14. The Conseil d’Etat held a hearing on 10 September 1990 and delivered its judgment on 24 September. It quashed the Administrative Court’s judgment of 24 January 1986 and the Minister for Foreign Affairs’ decision of 22 February 1985 and dismissed the remainder of the appeal as follows: “… As to the lawfulness of the decision under appeal By the provisions of section 8 and sub-paragraph 1 of section 9 of the Law of 11 June 1983, which was taken over in sub-paragraph 1 of section 74 of the Law of 11 January 1984, State employees not on the establishment who are civilian cultural, scientific or technical cooperation staff in post in foreign States have the right to become established… By the first sub-paragraph of section 17 of the same Law, ‘Employees not on the establishment who may rely on the provisions of this Law cannot be dismissed other than for professional shortcomings or on disciplinary grounds until expiry of the periods of time allowed to them in the decrees provided for in section 15 for making their choice’… Although Mrs Cazenave de la Roche, at the end of her contract, was placed at the disposal of the French Government by the Moroccan Government and although she was recruited to fill a specific post in Morocco, the Minister could not lawfully dismiss her other than for professional shortcomings or for a disciplinary offence. It is established that in refusing to renew Mrs Cazenave de la Roche’s contract by sending her notice of termination of payment … a decision which may be regarded as a dismissal in the light of the aforementioned provisions of section 17 … the authorities relied exclusively on the fact that Mrs Cazenave de la Roche had been placed at their disposal by the Moroccan Government. That being so, the decision was taken in breach of section 17 of the Law of 11 June 1983 and Mrs Cazenave de la Roche is consequently justified in maintaining that the Administrative Court in its impugned judgment of 24 January 1986 was wrong to dismiss her application in so far as she was seeking to have the decision … [of] 22 February 1985 quashed. As to the submissions concerning the applicant’s being placed on the establishment While under sections 73 and 74 of the Law of 11 January 1984 certain employees who are not established and civilian cultural … cooperation staff have the right to become established, if they so request, in vacant posts or ones that are to be created in the Budget Acts, it is apparent from sections 79 and 80 of the same Law that the legislature provided that the arrangements for implementing the principle should be laid down in decrees adopted after consultation of the Conseil d’Etat. Consequently, in any event, since the decree to be adopted after consultation of the Conseil d’Etat providing for appointment to a body of State teaching staff as an established civil servant had not been published, the Minister could not do other than dismiss the application for establishment submitted on the basis solely of sections 73 and 74 of the Law of 11 January 1984.” 15. On 29 January 1988 Mrs Cazenave de la Roche submitted a preliminary claim to the Minister for Foreign Affairs for compensation for the loss sustained on account of her not having become an established member of the State’s architect teaching staff. 16. On 15 June 1988 she lodged an application with the Paris Administrative Court, seeking to have the implicit refusal of her compensation claim quashed. 17. On 9 April 1990 the applicant submitted a fresh compensation claim to the Ministry and, in consequence, updated her court claim on 11 September 1990. She filed a supplementary pleading on 10 June 1991. 18. Concurrently with the proceedings on the merits, Mrs Cazenave de la Roche made an application to the court on 2 November 1990 for an interim award. 19. In an interim order of 5 April 1991 the court directed the Minister for Foreign Affairs to pay the applicant the sum of 600,000 French francs (FRF) as an advance representing the amount of loss of remuneration over the period from 22 September 1983 to 31 December 1989. The order read as follows: “… In her application Mrs Cazenave de la Roche sought an order that the State, represented by the Minister for Foreign Affairs, should pay her the sum of 600,000 francs as an advance on the sums sought in her substantive application by way of salary which, pursuant to the Conseil d’Etat’s judgment of 24 September 1990, was due to her… Although the application was communicated to the Minister for Foreign Affairs …, he did not dispute the existence of the obligation on which the applicant relied against the State. The existence of that obligation is not refuted by any of the evidence and cannot be seriously challenged. …” 20. On 18 December 1992, on a second application for an interim order on 27 October 1992, followed by a defence filed on 12 December, the court ordered the State to make a further interim payment of FRF 150,000.  21. Having held a hearing on 29 April 1993, the Paris Administrative Court delivered its judgment on 15 July 1993. It joined the applications of 15 June 1988 (see paragraph 16 above) and 11 September 1990 (see paragraph 17 above), held that the loss allegedly caused by the refusal of the application to become established did not sound in damages and that the unlawfulness of the decision to terminate employment, as found by the Conseil d’Etat, amounted to a culpable act capable of rendering the State liable. The State was ordered to pay the applicant the sum of FRF 850,000, including the interim awards. The court gave the following reasons for its decision: “As to the State’s liability … while it is true that the Government was under an obligation to adopt the decrees in issue within a reasonable time, the provisions of the Law of 11 January 1984 conferred on the applicant, not a present right [droit] but only a contingent right [vocation] to become established, such a measure being also conditional on the creation of the corresponding posts and, where appropriate, professional recruitment… The Minister, however, could not lawfully decide that Mrs Cazenave de la Roche’s name would be removed from the list of staff serving overseas or refrain from acting on the application made by the applicant on 3 December 1984 seeking to be appointed to a post of non-established employee equivalent to the one from which she had been dismissed. That unlawfulness amounts to a culpable act capable of rendering the State liable to the applicant. …” 22. On 7 March 1994 the applicant asked to be notified of the judgment and it was served on her on 28 October 1994. 23. On 21 December 1994 Mrs Cazenave de la Roche appealed against the Administrative Court’s judgment to the Paris Administrative Court of Appeal, seeking an order that the State should pay her an additional sum of FRF 1,523,405. 24. On 15 February 1995 the Minister for Cooperation filed a pleading in which he argued that it was for the Minister for Foreign Affairs to reply to the applicant’s submissions. The applicant argued the same in a pleading of 2 June 1995, pointing out that the Minister for Foreign Affairs had ignored the court’s formal notice that he should submit his defence.  25. The Minister for Foreign Affairs filed a pleading on 11 July 1995, that is to say after the time-limit laid down in the formal notice sent by the registry of the Administrative Court of Appeal, and Mrs Cazenave de la Roche replied on 31 July 1995. She filed a further pleading on 10 July 1996. 26. Having held a hearing on 25 October 1996, the Paris Administrative Court of Appeal dismissed the applicant’s appeal in a judgment of 12 November 1996 and varied the Administrative Court’s judgment by reducing the amount of the sum payable by the State to FRF 711,494. The judgment was served on the applicant on 13 November 1996. 27. Section 8 of Law no. 72-659 of 13 July 1972 on the position of civilian cultural, scientific and technical cooperation staff in post in foreign States provides: “Staff other than those mentioned in section 2, second sub-paragraph, shall, at the end of their cooperation assignment and on the terms laid down by decree, enjoy the guarantees provided for non-established public employees who lose their jobs. Cooperation service by those same staff shall be treated as service carried out in France by staff who are not established or not permanent, in particular as regards the appointment or establishment as national civil servants of established employees of local authorities and public bodies or permanent staff of public services, bodies or undertakings of an industrial or commercial nature.” 28. When the applicant’s contract expired, her position was governed by Law no. 83-481 of 11 June 1983 laying down the procedure for filling permanent civilian posts in the service of the State and its public bodies and authorising the establishment of non-established employees occupying such posts, and more particularly by the following provisions:  Section 8 “Employees not on the establishment who occupy a post with the characteristics laid down in section 1 above shall have the right to become established, if they so request, in posts that are vacant or that are to be created in the Budget Acts, provided that they (1) either are in post at the date of publication of the present Law, or are on leave at that date pursuant to Decree no. 80-552 of 15 July 1980 on the social welfare of non-established State employees, or are on leave at that date pursuant to Decree no. 82-665 of 22 July 1982 on the social welfare of non-established employees of the State and of State public administrative or cultural and scientific bodies, of French nationality and in service abroad; (2) have, at the date of making their application, carried out actual service of a duration equivalent to at least two years of full-time service in one of the above-mentioned posts; and (3) satisfy the conditions laid down in section 16 of the above-mentioned Ordinance no. 59-244 of 4 February 1959.” Section 9 “The following shall also have the right to become established, if they so request, on the terms laid down in section 8 above: (1) civilian cultural, scientific and technical cooperation staff in post in foreign States or in the institution to which they have been assigned who satisfy the conditions laid down in the second sub-paragraph of section 8 of Law no. 72-659 of 13 July 1972 on the position of civilian cultural, scientific and technical cooperation staff in service in foreign States; …” Section 14 “… access to the various corps of civil servants may be provided for the non-established employees mentioned in sections 8 and 9 … by means of decrees adopted after consultation of the Conseil d’Etat…” Section 17 “Employees not on the establishment who may rely on the provisions of this Law cannot be dismissed other than for professional shortcomings or on disciplinary grounds until expiry of the periods of time allowed to them in the decrees provided for in section 15 for making their choice. …” 29. Sections 8, 9, 14 and 17 of the Law of 11 June 1983 were taken over in sections 73, 74, 79 and 82 of Law no. 84-16 of 11 January 1984 making provisions governing the civil service. 30. Article R. 129 of the Administrative Courts and Administrative Courts of Appeal Code provides: “The President of the Administrative Court or of the Administrative Court of Appeal or a judge delegated by one of them may make an interim award to a creditor who has made a substantive application to the Administrative Court or Administrative Court of Appeal where the existence of the obligation is not seriously disputable. He may, even of his own motion, make the payment of such an award conditional on the provision of security.”