The applicant is a trade union whose head office is in Toulouse and whose object is to defend the interests of self-employed nurses. It is represented before the Court by Mr Christian Bettinger of the Paris Bar.
The facts of the case, as submitted by the parties, may be summarised as follows.
Since the enactment of the Law of 3 July 1971, relations between members of the medical profession, notably nurses, and the social-security bodies have been governed by collective bargaining agreements made between the trade unions representing the various branches of the profession and the social-security bodies. The agreements do not become effective until they have received relevant ministerial approval.
After the Conseil d’État had twice quashed decrees approving the collective bargaining agreement applicable to the nursing profession (in judgments of 17 December 1993 and 29 December 1995) a third agreement was entered into on 5 March 1996 and approved by interministerial decree on 10 April 1996.
Immediately after that agreement was signed, the applicant and several other trade unions expressed opposition to it and indicated that they intended to lodge an appeal in the courts once the ministerial decree approving the agreement had been published in the Official Gazette.
On 28 May 1996 the French Parliament adopted Law no. 96-452 implementing various health, welfare and regulatory measures. Section 59 of the Law provided: “The ... decree of 10 April 1996 approving the national collective bargaining agreement entered into with the nursing profession on 5 March 1996 is hereby ratified”.
On 21 June 1996 the applicant lodged an application for judicial review with the Conseil d’État seeking an order quashing the decree of 10 April 1996 as being ultra vires and an order for the State to pay it 45,000 French francs for the costs incurred. In its written submissions of 9 October 1996 the applicant maintained in particular that section 59 of Law no. 96-452 contravened Article 6 § 1 and Article 13 of the Convention.
On 13 June 1997 the Conseil d’État dismissed that application on the ground that: “by virtue of the provisions [of Law no. 96-452], which entered into force before the application was lodged, the lawfulness of the decree which the applicant seeks to have quashed cannot in principle be challenged by way of judicial review as being an ultra vires act”. As to the argument that the statute concerned was incompatible with the provisions of the Convention, the Conseil d’État held that challenging the lawfulness of the impugned regulatory measure did not come within the scope of the Articles relied on.
1. Relying on Article 6 § 1 of the Convention, the applicant complained that the State had intervened in a decisive manner to sway the outcome of proceedings to which it was a party in its favour. In particular, the applicant maintained that by adopting Law no. 96-452 the legislature had imposed the outcome on the Conseil d’État and prevented any examination of the impugned decree by the relevant courts.
2. The applicant also complained under Article 6 that the effect of Law no. 96-452 was to enable the French State to evade its obligations regarding the execution of final decisions. In particular, it maintained that the adoption of the Law had enabled the administrative authorities to disregard the two orders made by the Conseil d’État quashing the decrees approving the first two collective bargaining agreements for the nursing profession.
3. The applicant complained lastly under Article 13 of the Convention that Law no. 96-452 had deprived it of any effective remedy before a national authority to challenge the adoption of the new collective bargaining agreement for the nursing profession.
1. The applicant complained that the State had intervened in a decisive manner to sway the outcome of proceedings to which it was a party in its favour and that the adoption of section 59 of Law no. 96-452 of 28 May 1996 had imposed the outcome to the disputes on the Conseil d’État, preventing any examination of the impugned decree by the relevant court. The applicant relied on Article 6 § 1 of the Convention, the relevant parts of which read as follows:
““In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
The respondent Government’s main submission was that the dispute before the Court was outside the scope of Article 6 § 1 of the Convention, as the collective bargaining agreement and the decree whose ratification by the legislature had prompted the complaint were administrative acts whose main purpose was to improve the organisation of the public services offered by the Social-Security Department. The aim of the agreements had been to regulate relations between the social-security bodies and nurses. Those relations themselves had been largely fashioned by the public health service and could not be regarded as giving rise to essentially civil rights. The Government accepted that the collective bargaining agreement did have some effect on pecuniary rights, but considered that that aspect could not hide the fact that the predominant consideration was the public interest. As regards decrees approving collective bargaining agreements, the Government noted that the authorities enjoyed a prerogative to decide whether to issue such decrees as part of their role as guarantors of the proper administration of public services.
In the alternative, the Government said that the ratification by the legislature in the instant case had not upset the equality of arms between the parties, as there were no proceedings concerning the decree approving the collective bargaining agreement under way when it was ratified. Accordingly, ratification had not been intended to influence the judicial outcome of the litigation. The present case was therefore different from the case of Stran Greek Refineries and Stratis Andreadis v. Greece (see the judgment of 9 December 1994, Series A no. 301-B).
In any event, even if the ratification was seen as being an interference by the legislature in future court proceedings, the Government contended that that interference had to be considered compatible with Article 6 of the Convention. It pursued two legitimate aims: the first being to avoid legal uncertainty that would be detrimental to patients, the nursing profession and the proper functioning of the social-security system as a whole; and the second being to obviate the risk that the public authorities’ efforts to control health-care expenditure would be rendered futile as a result of the collective bargaining agreement being quashed, since such agreements were one of the best means of ensuring financial stability. The Government added that the issue of the legitimacy of the aim pursued was amenable to judicial review by the Constitutional Council and the Conseil d’État. Lastly, they maintained that the means used by the legislature had been reasonably proportionate to the aim pursued, since the State had sought to deal with the situation of nursing staff in a uniform manner and not to render the outcome of any specific administrative appeal or appeals nugatory.
The applicant submitted, firstly, that nurses did not play any role in the provision of public health services by the Social-Security Department. Only nurses in State hospitals played a role in the provision of public-health services – and not the Social Security services – whereas self-employed nurses, who were represented by the applicant, carried on a purely private independent activity and were paid solely for health care provided for private patients. The sole purpose of the collective bargaining agreements between the medical profession and the Social-Security Department was to provide a framework for the activity of the former, owing to the fact that the cost of medical and nursing services were reimbursed by the Social-Security Department. Furthermore, ministerial approval was in practice a means of making the provisions binding on the entire nursing profession and of bringing them into effect, since not all the trade unions were signatories of the collective bargaining agreement. Ministerial approval also allowed appeals to be lodged, not only against the approval itself but also to contest the content of the agreement. Ministerial approval did not therefore turn the agreement into a set of regulations and the agreement inevitably remained contractual.
The applicant added that the main issues dealt with in collective bargaining agreements had a direct impact on the civil and pecuniary rights of members of the medical profession, notably because what was generally at stake through the collective bargaining process was control of all health costs to enable increases in social-security expenditure to be contained. The method usually adopted was the imposition of quantitative restrictions, enforced by financial penalties, on the activity of the medical profession. The impact on the pecuniary position of all the medical professions, and in the instant case of the nurses, was therefore substantial, since the system operated either to cap income earned from private patients or to impose financial penalties. The applicant concluded that since the underlying purpose of the system was control of expenditure, it could not reasonably be claimed that the financial impact was residual. On the contrary, it was fundamental and automatic.
As to the merits, the applicant said that by ratifying the ministerial decree, the legislature had deemed it to be in order thus enabling the State to avoid the risk of the collective bargaining agreement for the nursing profession being quashed again. In that connection, it noted that the impugned statute had been enacted after it had publicly indicated its intention to seek an order quashing the decree. Consequently, it contended that once a decision to mount a challenge in the relevant court had clearly and irrevocably been taken, any intervention by the legislature that forced the court to decide the case in a particular way had to be condemned as amounting to a violation of the right to a fair trial. Any other approach would result in a “race” between the public authorities and any interested parties to defeat any appeal lodged after the enactment of the statute.
The Court notes that in view of the pecuniary consequences of the measures in question the dispute may be regarded as being over civil rights and obligations and thus coming within the scope of Article 6 § 1 of the Convention. However, it does not consider it necessary to decide the issue of the applicability of Article 6 § 1, as the application can be dismissed for the following reasons.
The Court has previously ruled that the principle of the rule of law and the notion of fair trial enshrined in Article 6 preclude any interference by the legislature in the administration of justice designed to influence the judicial determination of the dispute. In cases giving rise to similar problems, it found that the legislature had intervened when proceedings to which the State was a party were pending before the courts. It therefore held that the State had infringed the applicants’ rights guaranteed by Article 6, by intervening in a decisive manner to influence the outcome of the proceedings to which it was a party (see, among other authorities, the Stran Greek Refineries and Stratis Andreadis v. Greece judgment of 9 December 1994, Series A no. 301-B and the Papageourgiou v. Greece judgment of 22 October 1997, Reports of Judgments and Decisions 1997-VI).
Unlike the position in the aforementioned cases, in the present case the legislature intervened before – more precisely, eighty days before – the application for judicial review was lodged with the Conseil d’État. Although litigation was likely, it had not commenced. Nor was its outcome certain. In any event, instead of ratifying the ministerial decree, the legislature could have approved the collective bargaining agreement ab initio and no remedy would have been available to the applicant to challenge the statute.
In the light of the foregoing, the Court cannot accept that the purpose of the adoption of Law no. 96-452 was to pre-empt the litigation and to make its future outcome before the Conseil d’État inevitable. The Convention institutions have never accepted in their case-law that equality of arms may be upset by measures “anticipating”, as it were, proceedings that have yet to begin and it would be going too far to extend the doctrine by some form of analogy.
It follows that that complaints must be dismissed as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
2. Relying on Article 6 § 1 of the Convention the applicant also complained that the effect of Law no. 96-452 was to enable the French State to evade its obligations regarding the execution of final decisions. In particular, it maintained that the adoption of the impugned statute had enabled the administrative authority to disregard the two orders made by the Conseil d’État quashing the decree approving the first two collective bargaining agreements for the nursing profession.
The Court notes that while that complaint partly overlaps the preceding complaint there are differences which it must therefore examine.
The Court reaffirms that in principle the legislature is not precluded in civil matters from adopting new retrospective provisions to regulate rights arising under existing laws (see, among other authorities, the Zielinski and Pradal and Gonzalez and Others judgment of 28 October 1999, Reports 1999-VII, § 57). In other words, in civil cases, Article 6 does not provide that final judgments shall not be overridden (see Preda and Dardari v. Italy (dec.) 28160/95 and 28382/95 of 23 February 1999).
Furthermore, while the applicant alleges that the third national collective bargaining agreement for the nursing profession contains provisions similar to the two preceding ones, it does not maintain that the provisions were identical. The Court would therefore be speculating if it affirmed that the Conseil d’État would have quashed the decree of 10 April 1996 had it not been ratified by the Law of 28 May 1996.
It therefore follows that that complaints must be dismissed as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
3. The applicant complained, lastly, that Law no. 96-452 had deprived it of any effective remedy before a national authority to challenge the adoption of the new national collective bargaining agreement for the nursing profession. It relied on Article 13 of the Convention, which provides:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
The Court reiterates that Article 13 has been interpreted as only requiring a domestic remedy for complaints that may be considered “arguable” under the Convention (see the Boyle and Rice v. the United Kingdom judgment of 21 June 1988, Series A no. 131, p. 23, § 52).
Having regard to its aforementioned findings concerning the complaints under Article 6 of the Convention, the Court holds that the applicant does not have an arguable complaint.
It follows that that complaint must also be dismissed as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court, by a majority,
Declares the application inadmissible.
o.N.S.I.L. v. FRANCE DECISION
O.N.S.I.L. v. FRANCE DECISION