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THE FACTS

The applicant, Mr Paul Loiseau, is a French national, who was born in 1932 and lives in La Bachellerie. The Government were represented by their Agent, Mr R. Abraham, Director of Legal Affairs at the Ministry of Foreign Affairs.

A.  The circumstances of the case

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

For six months, from November 1979 to April 1980, the applicant replaced a permanent teacher in the Albert-Claveille vocational secondary school in Périgueux. He claimed that the national education authorities had wrongly refused to grant him the status of supply teacher, failed to issue him with payslips for the months of November and December 1979, and failed to declare him to the Union de recouvrement des cotisations de sécurité sociale et d'allocations familiales (the social security contribution collection agency, “the URSSAF”) for those two months. In order to be able to assert his rights and apply for retrospective adjustment of his career, the applicant unsuccessfully requested the education authorities to supply him with a copy of the documents relating to his recruitment and his social security contributions (to the URSSAF), and payslips for November and December 1979. On an application by the applicant, the Committee on Access to Administrative Documents (Commission d'accès aux documents administratifs) ruled on 5 April 1990 that these documents were to be handed over by the Director of Education. On 15 May 1990 the Director of Education informed the applicant that the documents in question were not in his possession and that he was therefore unable to hand them over. Thereupon, the applicant lodged an appeal with the Bordeaux Administrative Court, which set aside the refusal to hand over the requested documents in a judgment of 19 November 1992, worded as follows:

“...

It appears from the documents in the file that Mr Loiseau was recruited by the headteacher of the Albert-Claveille vocational secondary school in Périgueux as an employee under contract ... for the period from 6 November 1979 to 30 April 1980. The applicant requested disclosure of the documents filed with the URSSAF concerning his employment for the months of November and December 1979, the corresponding payslips and the documents relating to his recruitment. Whatever the exact nature of the post actually held by Mr Loiseau, the fact that these documents were not in the Directorate of Education's possession did not absolve the latter from its obligation to obtain them from the head of the establishment which had provided employment and which was under the regional education authorities' jurisdiction. Although the Director of Education alleges that a search was carried out on his orders, he has produced no evidence to this effect. Accordingly, he has not established that he was unable to produce the requested documents. The applicant is therefore justified in seeking to have the contested decision set aside.

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No appeal was lodged against that judgment.

On 15 July 1993 the applicant applied to the Conseil d'Etat, seeking an enforcement order against the Director of Education for Bordeaux and the Minister of Education in respect of the judgment of 19 November 1992, with a financial penalty in default.

The Government submitted that, following examination by the Report and Research Division and requests for an explanation from the Minister of Education on 16 September 1993 and 26 January 1994, the case was referred to the Judicial Division on 28 February 1994.

The Conseil d'Etat dismissed the application in a judgment of 14 February 1996, worded as follows:

“...

Following the judgment of 19 November 1992, the Director of Education for Bordeaux asked the headteacher of the Albert-Claveille vocational secondary school in Périgueux to send him any administrative documents in respect of Mr Loiseau that might be in his possession. In a written deposition of 20 January 1994, the headteacher of the vocational secondary school stated that he was not in possession of the documents requested by Mr Loiseau.

It appears from the foregoing that the State cannot be held not to have drawn all the appropriate consequences from the judgment of 19 November 1992. Consequently, Mr Loiseau's request that financial penalties be imposed on the State is unfounded.

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In spite of various approaches to the authorities, the applicant has yet to receive the documents in issue.

B.  Relevant domestic law

Law no. 78-753 of 17 July 1978 implementing various measures on the improvement of relations between the administrative authorities and the public and various administrative, social and tax provisions (as amended by Law no. 2000-321 of 12 April 2000, Official Gazette, 13 April 2000) contains, inter alia, the following provisions:

Section 1

“Everyone's right to information shall be set out and guaranteed by the present Part in so far as it concerns freedom of access to administrative documents.

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Section 2

“Subject to the provisions of section 6, the authorities mentioned in section 1 shall be obliged to communicate the administrative documents in their possession to persons who submit a request to this effect, under the procedure set out in the present Part.

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Section 4

“Access to administrative documents shall take place:

(a) through free on-site consultation, except where preservation of the document does not allow for this;

(b) subject to the condition that reproduction does not jeopardise conservation of the document, through the provision of an easily legible copy using a medium identical to that used by the authorities or on paper, as selected by the requesting party, subject to the technical facilities available to the administrative authorities and at the requesting party's expense; these costs may not exceed the cost of such reproduction, as provided for by decree.”

Section 5

“A Committee on Access to Administrative Documents [Commission d'accès aux documents administratifs] shall be responsible for ensuring compliance with freedom of access to administrative documents and public archives as provided for in the present Part and in Part II of Law no. 79-18 of 3 January 1979. It shall give opinions where so requested by persons who encounter difficulties in obtaining an administrative document or in consulting documents from the public archives, with the exception of those documents mentioned in section 3(3) of the aforementioned Law no. 79-18 of 3 January 1979. Submission to the committee of a request for an opinion shall be a precondition to any appeal.

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Section 7

“The requesting party shall be notified of a refusal to hand over documents in the form of a reasoned written decision.

Where it receives an appeal against a refusal to communicate an administrative document, the administrative court must rule within a time-limit of six months from the date of registration of the application.”

Section 2 of Law no. 80-539 of 16 July 1980 on the financial penalties to be imposed in administrative cases and the execution of judgments by public-law entities (as amended by Law no. 87-588 of 30 July 1987, codified as Article L. 911-5 of the Administrative Courts Code) provides:

“In the event of failure to comply with a decision by the administrative courts, the Conseil d'Etat may, even of its own motion, impose a financial penalty on the public-law entities or private-law bodies which are responsible for administering a public service, with a view to ensuring execution of the decision.

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COMPLAINTS

Relying on Article 6 § 1 of the Convention, the applicant complained that the judgment of 19 November 1992 had not been enforced; he also complained of the length of the proceedings instituted by him before the Conseil d'Etat for the purpose of such enforcement.

THE LAW

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B. Applicability of Article 6 § 1 of the Convention

5.  The Government argued that the right to disclosure of administrative documents, recognised and regulated by the Law of 17 July 1978, was not a civil right within the meaning of Article 6 § 1. In this connection, they submitted, firstly, that the very question of disclosure of administrative documents did not, as such, fall within the ambit of Article 6 and, secondly, that the applicant had neither alleged nor established that the failure to disclose the requested documents had had a direct impact on one of his civil rights. They inferred from this that Article 6 § 1 was not applicable in the present case and that the application ought to be rejected as being incompatible ratione materiae with the provisions of the Convention.

6.  The applicant expressed no view.

7.  The Court points out that, for Article 6 § 1 to be applicable under its “civil” head, there must be a “dispute” over a “private right” which can be said, at least on arguable grounds, to be recognised under domestic law (on this particular point, see, for example, Allan Jacobsson v. Sweden (no. 1), judgment of 25 October 1989, Series A no. 163, p. 20, § 72). The “dispute” must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise. The outcome of the proceedings must be directly decisive for the right in question, mere tenuous connections or remote consequences being insufficient to bring Article 6 § 1 into play (see, for example, Balmer-Schafroth and Others v. Switzerland, judgment of 26 August 1997, Reports of Judgments and Decisions 1997-IV, p. 1357, § 32).

The Court notes that the applicant appealed to the Bordeaux Administrative Court against the administrative authorities' refusal to communicate to him administrative documents relating to the circumstances of his recruitment by a State secondary school. In the Court's opinion, to the extent that French law enshrines an individual right of access to administrative documents and entitles members of the public, when confronted with a refusal on the part of the authorities, to appeal to the administrative court (Law no. 78-753 of 17 July 1978; see the extracts above), the applicant raised a “contestation” (dispute), which was undoubtedly “genuine and serious” and related to a “a right recognised under domestic law”. Further, the Court considers that this “right” is of a “private” nature: firstly, it concerns an individual right of which the applicant may consider himself the holder; secondly, the documents requested by the applicant, all of which concerned the circumstances of his recruitment, related directly and exclusively to his personal situation (see Syndicat CFDT des Etablissements et Arsenaux du Val-de-Marne and Vesque v. France, no. 11678/85, Commission decision of 7 December 1987, unreported, in which, conversely, the Commission ruled that a trade union's right to obtain information from an employer concerning a specific category of staff was not a civil right within the meaning of Article 6 § 1; see also, mutatis mutandis, Barry and Others v. France, no. 14497/89, Commission decision of 14 October 1991, unreported). In particular, the Court notes that the documents in question would have enabled the applicant to provide grounds for an application for retrospective adjustment of his career, which lends a certain pecuniary aspect to the dispute. In this connection, the Court also notes that, whilst it is difficult to derive from the Convention a general right of access to administrative data and documents (see, mutatis mutandis, Gaskin v. the United Kingdom, judgment of 7 July 1989, Series A no. 160, p. 15, § 37), its case-law takes into account the importance, where appropriate, of the disclosure of such data and documents for the applicant's personal situation (see, regarding the applicability of Article 8 of the Convention, the same judgment, or M.G. v. the United Kingdom, no. 39393/98, 24 September 2002). Finally, the outcome of the proceedings was “directly decisive” for the right in question.

The Court concludes from the foregoing that Article 6 § 1 was applicable to the proceedings before the Bordeaux Administrative Court. As a result, it was also applicable to the proceedings before the Conseil d'Etat for enforcement of the judgment delivered by that court on 19 November 1992 (see, for example, Scollo v. Italy, judgment of 28 September 1995, Series A no. 315-C, p. 55, § 44; see also Di Pede and Zappia v. Italy, judgments of 29 August 1996, Reports 1996-IV, p. 1384, § 24, and pp. 1411-12, § 20, respectively). Accordingly, the objection raised by the Government to in that respect must be dismissed.

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LOISEAU v. FRANCE DECISION


LOISEAU v. FRANCE DECISION