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THE FACTS

The applicant, André Desmots, is a French national, born in 1941 and living in Corps-Nuds (département of Ille-et-Vilaine).

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

On 26 April 1988 the applicant, a notary (notaire), applied to the State Counsel at the Rennes tribunal de grande instance for authorisation to relocate his practice from Corps-Nuds to Chartres-de-Bretagne or Rennes, on the understanding that a branch office would have to be maintained in Corps-Nuds or set up in Rennes.

On 16 June 1988 the Chamber of Notaries of the département of Ille-et-Vilaine expressed its opposition to the move.

A report was sent to the Minister of Justice by the Principal State Counsel at the Rennes Court of Appeal on 28 June 1988, whereupon the Commission on the Location of Notaries’ Practices contemplated in Article 2 of Decree no. 71-942 of 26 November 1971 was asked for its opinion on the application for relocation.

On 21 September 1988 it opposed the move, firstly because the applicant’s practice was under no threat and the existing balance between the practices in the region should not be disturbed, and secondly because any change in the distribution of notaries’ practices in Rennes and its vicinity should be assessed as a whole.

The Minister endorsed the Commission’s opinion and rejected the applicant’s application in a decision of 18 October 1988. The applicant asked the Minister to reconsider his decision but his application was implicitly rejected.

The Minister’s decision stated that the applicant had two months from the date on which the decision was served “to bring an appeal before the Rennes Administrative Court”, and so on 1 June 1989 the applicant lodged with that court an application to set aside the Minister’s decision and the implicit rejection of his application for the decision to be reconsidered.

In the course of the proceedings in the Administrative Court the Minister produced two sets of pleadings and filed additional evidence. The applicant produced three sets of pleadings.

In a judgment of 10 March 1993 the Rennes Administrative Court rejected the applicant’s appeal.

On 17 May 1993 the applicant appealed to the Conseil d’Etat.

The Minister produced pleadings on 13 May 1994 and additional evidence on 24 January 1994 and 30 October 1997. The applicant produced pleadings on 15 June 1994 and additional evidence on 9 November and 13 December 1994, 7 July 1995, 12 January 1996 and 23 October 1997.

In a letter of 29 September 1997 the president of the sixth section of the Conseil d’Etat informed the applicant that there was an objection based on a public-policy consideration that could be raised by the Conseil d’Etat of its own motion, namely that the Administrative Court did not have jurisdiction to review decisions on applications for the relocation of notaries’ practices.

On 17 December 1997 the Conseil d’Etat quashed the judgment on the ground that decisions on the relocation of notaries’ practices, which were regulatory in nature, fell within its own jurisdiction at first and last instance, and so the Rennes Administrative Court had not had jurisdiction to hear the case.

The Conseil d’Etat then assumed responsibility for deciding the merits of the case and rejected the applicant’s submissions on the grounds that the Minister’s decision had been taken lawfully; that the fact, pleaded by the applicant, that an application for the relocation of a notary’s practice adjoining his own had been approved had “no bearing on the legality of the decision appealed against”; and that in endorsing the reasons given by the Commission on the Location of Notaries’ Practices the Minister had “made an assessment which [had been] vitiated neither by any material inaccuracy nor by any manifest error”.

B.  Relevant domestic law

Decree no. 71-942 of 26 November 1971 (as amended by Decree no. 86-728 of 29 April 1986) on the establishment, relocation and closure of notaries’ practices provides:

Article 2

“A commission shall be set up under the authority of the Minister of Justice to give opinions or make recommendations on the location of notaries’ practices, in accordance with the public’s needs, the geographical situation and demographic and economic trends...”

Article 2-3

“The commission shall give its opinion on any step proposed with a view to establishing, relocating or closing a notary’s practice, on the opening of branch offices or their conversion into separate practices...”

Article 2-6

“The establishment, relocation or closure of a practice, the opening of a branch office, its closure or conversion into a separate office and the designation of the district court within whose territorial jurisdiction the practice will be set up shall form the subject of an order issued by the Minister of Justice...”

Article 10

“... The Minister of Justice may, at the request of the office holder, issue a ministerial order authorising the opening of one or more branch offices, either inside the département or, if outside, in a district (canton) or municipality adjoining the one in which the practice is based...”

Since 1 January 1998 the powers of the Minister of Justice as set out above have been reassigned, in accordance with the Decree of 24 December 1997, to the “Principal State Counsel at the court of appeal within whose territorial jurisdiction the practice is based”.

COMPLAINT

Relying in substance on Article 6 § 1 of the Convention, the applicant complained of the length of the proceedings relating to his application for relocation.

THE LAW

The applicant complained that his case had not been heard within a reasonable time within the meaning of Article 6 § 1 of the Convention, the relevant provisions of which provide as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

1.  Objection by the Government

The Government’s primary submission was that the application was incompatible with the Convention ratione materiae since the applicant did not have a “right” to relocate his notary’s practice. They asserted that no such right was set forth in the Convention or any of the provisions of the Decree of 26 November 1971. There was no obligation on the French State to agree to an application for relocation. The Government considered that the Minister had a discretionary power to decide such matters. They added that even supposing that the Court construed the applicant’s case as a dispute relating to a “right”, that right could not be regarded as a civil one since it was devoid of any pecuniary aspect.

In reply the applicant emphasised the pecuniary nature of notaries’ practices and the fact that their practices could be sold, arguing on that account that the dispute in issue related to a civil right. He concluded that Article 6 § 1 of the Convention was applicable.

The Court points out that for Article 6 § 1 under its “civil” head to be applicable, there must be a “dispute” over a “right” which can be said, at least on arguable grounds, to be recognised under domestic law (see, mutatis mutandis, Masson and Van Zon v. the Netherlands, 28 September 1995, Series A no. 327, p. 17, § 44).

The Court notes that the applicant lodged with the administrative courts an application to set aside the Minister’s decision to reject his application for the relocation of his notary’s practice. It is necessary to determine therefore whether a “right” to relocation could be said, on arguable grounds, to be recognised under domestic law.

In this connection, in deciding whether a “right”, civil or otherwise, could arguably be said to be recognised by French law, the Court must have regard to the wording of the relevant legal provisions and to the way in which these provisions are interpreted by the domestic courts (see Masson and Van Zon cited above, § 49).

The Court notes that Article 2-6 of the Decree of 26 November 1971 assigns responsibility for the relocation of a notary’s practice or the opening of a branch office to the Minister of Justice. According to Article 2 of that decree, the commission charged with giving an opinion on the location of notaries’ practices must take into consideration, inter alia, the needs of the public, the geographical situation and demographic and economic trends. In the instant case, the commission took account of the financial situation of the applicant’s practice and the balance between practices in the area concerned and conducted an overall appraisal.

As to the Minister, he adopted the commission’s view in this case – which he was not obliged to do – by issuing the order which the applicant complains of and which he appealed against by means of an application for judicial review.

When dealing with an application of this sort, the Conseil d’Etat, acting in its judicial capacity, may either reject it or set aside the impugned decision on grounds of a formal defect, a mistake of law, material inaccuracy of the facts alleged, manifest error of judgment or abuse of power. In the instant case it rejected the application, dismissing the applicant’s two grounds of appeal, based on material inaccuracy of the facts and manifest error of judgment.

Thus – while of course there is no guarantee that his application will be allowed – a notary who applies for the relocation of his practice and/or the opening of a branch office may ask the Conseil d’Etat to make a judicial assessment of the points of law and fact that he raises in opposition to the Minister’s rejection of the application.

He has therefore a right that can be said, at least on arguable grounds, to be recognised in French law, to be granted the relocation and/or establishment applied for (see H. v. Belgium, 30 November 1987, Series A no. 127-B, p. 32, § 43, Allan Jacobsson v. Sweden, 25 October 1989, Series A no. 163, pp. 19-20, §§ 67-71, Skärby v. Sweden, 28 June 1990, Series A no. 180-B, pp. 36-37, §§ 27-28). The fact that the Minister has a discretionary power when examining the application does not mean that that “right” is no longer “arguable” (ibid.).

Lastly, as regards the nature of the disputed right, the Court, unlike the Government, considers that it is a “civil” right within the meaning of Article 6 § 1 of the Convention, in view of the unquestionable pecuniary consequences of the measure applied for (see, mutatis mutandis, H. v. Belgium cited above, § 47, or else Diennet v. France, 26 September 1995, Series A no. 325-A, p. 13, § 27).

The Court concludes from the foregoing that the applicant could assert, at least on arguable grounds, a right recognised in domestic law which was civil in nature. Article 6 § 1 of the Convention is therefore applicable to the proceedings in issue. It follows that the Government’s contention that this complaint was incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 must be dismissed.

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For these reasons, the Court by a majority,

Declares the application admissible, without prejudging the merits of the case.

DESMOTS v. FRANCE DECISION


DESMOTS v. FRANCE DECISION