CASE OF PIERMONT v. FRANCE
No violation of P4-2;Violation of Art. 10;Not necessary to examine Art. 14+10;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
John Freeland
8. Mrs Dorothée Piermont, a German citizen living at Remagen, has long been an environmentalist and a pacifist. At the material time she was a member of the European Parliament (MEP). 9. At the invitation of Mr Oscar Temaru, the President of the French Polynesian Liberation Front, the applicant stayed on Polynesian territory from 24 February to 3 March 1986, during the election campaign preceding the territorial assembly and parliamentary elections that were due to take place on 16 March. 10. As soon as she alighted from the aircraft, the airport and border police, acting on the orders of the High Commissioner of the French Republic in French Polynesia, requested her to show some discretion in any comments she made on French internal matters, failing which she risked being expelled. 11. On 28 February 1986 Mrs Piermont took part in a public meeting and on 1 March joined about 900 other people in the traditional march organised by the independence and anti-nuclear movements. This demonstration, which attracted fewer people than in the previous year, took place without incident on the streets of Faaa, a town just outside Papeete, where it had been banned by order of the High Commissioner because of the risk of "serious public disorder". During the demonstration the applicant denounced the continuation of nuclear testing and the French presence in the Pacific. Her words were reported as follows in the newspapers: "Mrs Piermont spoke in French and mentioned, in particular, the circumstances in which, on her arrival at Tahiti Airport, she had been warned by the ‘chief copper’ in charge of the airport and border police against taking part in a public demonstration, as doing so during an election campaign would amount to interference. Mrs Piermont had replied that she would demonstrate if invited to do so, and she told the demonstrators gathered round her on Saturday that when it came to interference, the French presence was an interference in the affairs of the Polynesians, and this interference was, in her view, manifested in the nuclear tests at Mururoa. Mrs Piermont announced that, being of the view that the whole of the press in French Polynesia was opposed to the trend towards independence and supported the continuation of nuclear testing, the German ‘Greens’ had decided to donate one million CFP francs to the Polynesian Liberation Front to set up ‘a newspaper that will tell the truth’." 12. On the next day, 2 March 1986, the High Commissioner made an order expelling the applicant and prohibiting her from re-entering the territory. The following reasons were given for the order: "All foreign nationals have a duty to maintain a degree of neutrality towards any French territory in which they are staying. Despite an oral warning about the duty of discretion, particularly during an election campaign, given to her on her arrival on 24 February 1986, Mrs Piermont stated, during a public demonstration in favour of the territory’s independence and against nuclear testing, that France was interfering in Polynesian affairs. These statements are an attack on French policy." 13. This order was served on the applicant on 3 March 1986 when she was already on board the aircraft that was to take her to New Caledonia. 14. On 15 April 1986 Mrs Piermont made two applications to the Papeete Administrative Court seeking, firstly, to have execution of the decision stayed and, secondly, to have the decision quashed. 15. The court dismissed the first application on 8 July 1986, but in a judgment of 23 December 1986 it allowed the second application for the following reasons: "Under the provisions of section 7 of the Act ... of 3 December 1849 ..., the representative of the State may ‘as a public-order measure’ require any alien to leave French territory immediately. While the State’s representative in the territory is vested, not only under these provisions ..., with a wide discretion to enable him to maintain order effectively, he must in all circumstances exercise the power thus conferred on him in a manner that respects freedom of movement and freedom of expression, which are secured not only by European Community law but in the first place by the Constitution and the general principles of law which the Republic applies both to its own nationals and to aliens whose presence and attitude on French territory do not constitute a threat to public order. This entails an obligation to ensure that the proposed public-order measure scrupulously conforms to what is strictly needed in order to maintain or re-establish public order. Firstly, the applicant’s utterances ... were not in any way seditious and could not in themselves constitute a serious threat to public order. They were accordingly not such as to justify the impugned measure. Secondly, it furthermore appears from the evidence that the measure was decided on just as the person concerned was about to leave the territory of her own accord. That being so, it could no longer be regarded as essential for maintaining order there. It follows, without there being any need to rely on international or Community law, that the general principles of domestic law are sufficient to establish that the impugned decision was a misuse of authority and must therefore be quashed." 16. The Minister for Overseas Departments and Territories applied to the Conseil d’Etat on 16 March 1987 to have the Administrative Court’s judgment set aside. 17. On 12 May 1989 the Conseil d’Etat allowed the application on the following grounds: "It appears from the evidence that during her visit to French Polynesia Mrs Piermont made utterances violently hostile to France’s defence policy and the integrity of French territory in the course of public demonstrations held during the campaign for the elections to the French National Assembly and to the local assembly. ’s actions constituted a threat to public order and in deciding on those grounds to require her to leave the territory, the High Commissioner did not commit a manifest error of assessment. That being so, the Minister for Overseas Departments and Territories rightly submitted that the Papeete Administrative Court, in quashing the order of 2 March 1986, wrongly based its decision on the lack of grounds warranting Mrs Piermont’s expulsion. ... In the absence of provisions making it applicable to the territory of Polynesia and Dependencies, the Act of 11 July 1979 on the giving of reasons for administrative decisions and the improvement of relations between administrative authorities and the public does not apply there, and no other provision of a statute or of regulations requires reasons to be given for a public-order measure. Although Mrs Piermont relies on the provisions of the Treaty of Rome concerning freedom of movement within the territory of the member States, Articles 135 and 227 of the Treaty make implementation of such freedom of movement in the associated countries, which include France’s overseas territories, subject to agreements to be concluded subsequently, which require the member States’ unanimous approval. In the absence of such agreements, this ground of appeal must in any event fail. The privileges and immunities conferred on members of the European Parliament by Articles 6 to 11 of the Protocol of 8 April 1965 guarantee them free movement for the purpose of travelling to the Parliament and protect them from any prosecution or detention during its sessions but cannot prevent a public-order measure being taken such as the one against Mrs Piermont. Lastly, the impugned measure did not infringe freedom of expression as laid down in Articles 10 and 14 (art. 10, art. 14) of the European Convention for the Protection of Human Rights and Fundamental Freedoms and came within the ambit of Article 2, paragraph 3, of Protocol No. 4 (P4-2-3) to the Convention, which allows restrictions on freedom of movement that are based on the requirements of national security, public safety or the maintenance of ordre public." 18. After leaving Polynesia on 3 March 1986 (see paragraph 13 above), Mrs Piermont travelled to New Caledonia at the invitation of local elected representatives, including the President of the Socialist Kanak National Liberation Front. On 4 March, at 1.55 p.m., she arrived at Nouméa Airport. After she had gone with the other passengers through immigration control, where the airport and border police stamped her passport, a police officer stopped her and took her into an airport office, where she was held until her departure. 19. Some forty activists known as loyalists had been warned that the applicant was coming and were waiting for her in order to express their hostility to her presence in the territory. They made it known that so long as the MEP was on Caledonian soil they would not leave unless removed by force. 20. Given the risk of confrontation and after unsuccessful attempts at conciliation, the High Commissioner issued an order excluding Mrs Piermont from the territory of New Caledonia. It contained the following reasons: "Having regard to the expulsion and exclusion order of 2 March 1986 issued by the High Commissioner in French Polynesia in respect of Mrs Piermont ...; Being of the view that the presence of Mrs Dorothée Piermont, of German nationality (FRG), on the territory of New Caledonia and Dependencies, in particular during an election campaign, is causing and is likely to cause public disorder ..." A police superintendent served this order on her whilst she was still within the airport perimeter, at about 6.30 p.m. At about midnight the applicant was put on an aircraft bound for Tokyo, her passport having again been duly stamped. 21. On 23 April 1986 Mrs Piermont applied to the Nouméa Administrative Court to have the order excluding her from New Caledonia quashed. 22. In a judgment of 24 December 1986 which upheld the submissions of the Government Commissioner (commissaire du gouvernement), the court quashed the impugned decision on the ground that no reasons had been given for it. It held: "Under section 1 of the Act of 11 July 1979 on the giving of reasons for administrative decisions, ‘... reasons must be given for decisions which ... restrict the exercise of public freedoms or generally constitute public-order measures’. Under section 3 of the same Act, ‘the statement of reasons required by this Act must be in writing and set out the considerations of law and fact on which the decision is based’. Although the impugned order referred to the order of 2 March 1986 issued by the High Commissioner in French Polynesia expelling Mrs Piermont and excluding her from that territory, the High Commissioner in New Caledonia and Dependencies did not state that he was adopting the terms of that order, whose text is neither incorporated in nor appended to his decision. That recital accordingly could not take the place of the statement of reasons required by the Act. Moreover, by merely stating ‘the presence of Mrs Dorothée Piermont, of German nationality (FRG), on the territory of New Caledonia and Dependencies, in particular during an election campaign, is causing and is likely to cause public disorder’ without specifying the facts on which this public-order measure was based, the High Commissioner in New Caledonia and Dependencies did not satisfy the requirements of section 3 of the aforementioned Act. That being so and without there being any need to consider the other grounds put forward in her application, Mrs Piermont is entitled to have that order quashed." 23. On 16 March 1987 the Minister for Overseas Departments and Territories appealed to the Conseil d’Etat. 24. In a judgment of 12 May 1989 the Conseil d’Etat set aside the judgment of the court below. After noting that the aforementioned Act of 11 July 1979 did not apply to the territory of New Caledonia and Dependencies, it gave the following reasons for its decision: "Under section 7 of the Act of 3 December 1849 on the naturalisation and residence of aliens in France, which is still in force in the overseas territories and applies in the territory of New Caledonia and Dependencies, ‘the Minister of the Interior may, as a public-order measure, require any alien travelling or resident in France to leave French territory immediately and have him escorted to the frontier’ ... Regard being had both to Mrs Piermont’s actions during the preceding days and to the unrest caused by the announcement of her arrival in the territory, the High Commissioner, in considering that Mrs Piermont’s presence would constitute a threat to public order and in ordering her exclusion from the territory of New Caledonia on that account, did not commit any manifest error of assessment. Although Mrs Piermont relies on the provisions of the Treaty of Rome concerning freedom of movement within the territory of the member States, Articles 135 and 227 of the Treaty make implementation of such freedom of movement in the associated countries, which include France’s overseas territories, subject to agreements to be concluded subsequently, which require the member States’ unanimous approval. In the absence of such agreements, this ground of appeal must in any event fail. The privileges and immunities conferred on members of the European Parliament by Articles 6 to 11 of the Protocol of 8 April 1965 guarantee them freedom of movement for the purpose of travelling to the Parliament and protect them from any prosecution or detention during its sessions but cannot prevent a public-order measure being taken such as the one against Mrs Piermont. Lastly, the impugned measure did not infringe freedom of expression as laid down in Articles 10 and 14 (art. 10, art. 14) of the European Convention for the Protection of Human Rights and Fundamental Freedoms and came within the ambit of Article 2, paragraph 3, of Protocol No. 4 (P4-2-3) to the Convention, which allows restrictions on freedom of movement that are based on the requirements of national security, public safety or the maintenance of ordre public." 25. On 23 November 1994 the High Commissioner of the Republic, of his motion, revoked the order of 4 March 1986 on the ground that there was no longer "any reason, having regard to present circumstances, to oppose Mrs Piermont’s entering the territory of New Caledonia". 26. France’s overseas territories ("the OTs") are an integral part of the territory of the Republic. 27. However, by virtue of the "specificity of legislation" principle (Articles 74 and 76 of the Constitution), an enactment applies in the OTs only if such application is expressly provided for or if the enactment has been promulgated there. 28. When depositing the instruments of ratification of the Convention and of Protocol No. 4 (P4) on 3 May 1974, France declared that these would apply to "the whole territory of the Republic, having due regard, where the overseas territories are concerned, to local requirements, as mentioned in Article 63 (art. 63) of the Convention". 29. The Aliens (Conditions of Entry and Residence) Ordinance of 2 November 1945 in force in metropolitan France was not promulgated in the OTs and accordingly does not apply in them. The applicable provisions are contained in the Aliens (Naturalisation and Residence) Act of 3 December 1849, section 7 of which provides in its first subsection: "The Minister of the Interior may, as a public-order measure, require any alien travelling or resident in France to leave French territory immediately and have him escorted to the frontier." This Act was made applicable to the colonies by an Act of 29 May 1874. An Act of 6 September 1984 vests the powers of the Minister of the Interior in the High Commissioner of the Republic in the OTs. 30. At the material time the Conseil d’Etat’s power of review in matters of expulsion or exclusion from French territory was limited to ascertaining whether there had been any manifest error of assessment (see, for example, the National Immigration Office judgment of 22 October 1975, Recueil Lebon 1975, p. 520, and, in relation to an expulsion from New Caledonia, the Julbe-Saez judgment of 6 October 1978, Recueil Lebon 1978, p. 900). With more particular reference to the political activities of aliens, the Conseil d’Etat held in the Perregaux judgment of 13 May 1977 (Recueil Lebon 1977, p. 216) that political activity did not in itself justify in law the expulsion of an alien whose presence on French territory did not constitute a threat to public order. 31. At the material time Article 227 of the treaty establishing the European Economic Community ("the EEC Treaty") provided: "1. This Treaty shall apply to the Kingdom of Belgium, the Kingdom of Denmark, the Federal Republic of Germany, the Hellenic Republic, the Kingdom of Spain, the French Republic, Ireland, the Italian Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands, the Portuguese Republic and the United Kingdom of Great Britain and Northern Ireland. 2. With regard to Algeria and the French overseas departments, the general and particular provisions of this Treaty relating to: - the free movement of goods; - agriculture, save for Article 40 (4); - the liberalization of services; - the rules on competition; - the protective measures provided for in Articles 108, 109 and 226; - the institutions, shall apply as soon as this Treaty enters into force. The conditions under which the other provisions of this Treaty are to apply shall be determined, within two years of the entry into force of this Treaty, by decisions of the Council, acting unanimously on a proposal from the Commission. The institutions of the Community will, within the framework of the procedures provided for in this Treaty, in particular Article 226, take care that the economic and social development of these areas is made possible. 3. The special arrangements for association set out in Part Four of this Treaty shall apply to the overseas countries and territories listed in Annex IV to this Treaty. This Treaty shall not apply to those overseas countries and territories having special relations with the United Kingdom of Great Britain and Northern Ireland which are not included in the aforementioned list." 32. The OTs, including French Polynesia and New Caledonia, are among the territories listed in Annex IV to the EEC Treaty. Their special arrangements for association are laid down in Articles 131 to 136 bis of the treaty. 33. With reference to workers’ freedom of movement, Articles 48 and 135 provide: "1. Freedom of movement for workers shall be secured within the Community by the end of the transitional period at the latest. 2. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment. 3. It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health: (a) to accept offers of employment actually made; (b) to move freely within the territory of Member States for this purpose; (c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action; (d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in implementing regulations to be drawn up by the Commission. ..." "Subject to the provisions relating to public health, public security or public policy, freedom of movement within Member States for workers from the [OTs], and within the [OTs] for workers from Member States, shall be governed by agreements to be concluded subsequently with the unanimous approval of Member States." 34. The details of and procedure for the association of the overseas countries and territories with the EEC are set out in an implementing convention of 16 December 1980, which was renewed on 30 June 1986. The arrangements are designed to further the economic and social development of the territories concerned but do not include freedom of movement. 35. The Protocol on the privileges and immunities of the European Communities, signed on 8 April 1965, contains a chapter III on members of the European Parliament which provides: "No administrative or other restriction shall be imposed on the free movement of members of the European Parliament travelling to or from the place of meeting of the European Parliament. Members of the European Parliament shall, in respect of customs and exchange control, be accorded: (a) by their own Government, the same facilities as those accorded to senior officials travelling abroad on temporary official missions; (b) by the Governments of other Member States, the same facilities as those accorded to representatives of foreign Governments on temporary official missions." "Members of the European Parliament shall not be subject to any form of inquiry, detention or legal proceedings in respect of opinions expressed or votes cast by them in the performance of their duties." "During the sessions of the European Parliament, its members shall enjoy: (a) in the territory of their own State, the immunities accorded to members of their Parliament; (b) in the territory of any other Member State, immunity from any measure of detention and from legal proceedings. Immunity shall likewise apply to members while they are travelling to and from the place of meeting of the European Parliament. Immunity cannot be claimed when a member is found in the act of committing an offence and shall not prevent the European Parliament from exercising its right to waive the immunity of one of its members."