CASE OF SACILOR LORMINES v. FRANCE
(Application no. 65411/01)
9 November 2006
This judgment is final but it may be subject to editorial revision.
In the case of Sacilor Lormines v. France,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Mr B.M. Zupančič, President,
Mr C. Bîrsan,
Mr V. Zagrebelsky,
Mrs A. Gyulumyan,
Mr E. Myjer,
Mr David Thór Björgvinsson, judges,
Mr M. Long, ad hoc judge,
and Mr V. Berger, Section Registrar,
Having deliberated in private on 12 May 2005 and on 11 July and 12 October 2006,
Delivers the following judgment, which was adopted on the last mentioned date:
I. THE CIRCUMSTANCES OF THE CASE
A. Background to the case
B. Inter-prefectoral orders of 26 May and 18 July 1997 laying down regulatory measures in the mining sector
“It is hereby decided as follows:
Article 1: The company Lormines ... shall be required, in a prompt manner, to appoint a panel of three specialists from outside the company, having submitted the composition of the panel for the prior approval of the prefects, and having regard to the opinion of the Regional Director for Industry, Research and the Environment of Lorraine, to carry out the following assignment:
- analysis of the parts of the mining installations referred to in the penultimate paragraph of the preamble, located between elevations NGF 115 and 172 in the municipalities (communes) of Auboue, Briey, Homecourt, Joeuf and Moutiers (Meurthe-et-Moselle), Moyeuvre-Petite, Moyeuvre-Grande, Roncourt, Sainte-Marie-aux-Chênes and Saint-Privat-la-Montagne (Moselle);
- classification of the parts of the mining installations thus enumerated according to the presence of both aggravating instability factors and vulnerability related to the type of dwelling at risk.
The company Lormines shall make available to the specialists any technical documents and archives in its possession concerning the operations in question. The company shall transmit to the prefect, within a period of ten days after the notification of the present order, the report issued by the said specialists on the completion of their assignment.
Article 2: The company Lormines ... shall take all necessary measures to ensure the permanent availability of an adequate and sufficiently large network of surveyors, in order to be in a position to implement, upon the request of the prefects, any monitoring and observation measures that may be required by the situation.”
Moreover, in an order of 18 July 1997, the prefects of Moselle and Meurthe-et-Moselle imposed the following on the applicant company:
“Having regard to the urgency;
Acknowledging the report of the experts appointed by the company Sacilor Lormines in accordance with the above-mentioned prefectoral order;
Recognising that, in the light of current knowledge, the appearance of cracks in buildings may be a preliminary indication of subsidence;
Upon the proposal of the Regional Director for Industry, Research and the Environment of Lorraine;
It is hereby decided as follows:
The company Lormines ... shall take all necessary measures to ensure the permanent availability of an adequate and sufficiently large network of building experts, so that it is able to carry out, promptly and upon the request of the prefects, analysis of the cracks in buildings in the “yellow”, “orange” and “red” zones, the lower parts of buildings included, within the perimeter of the iron-ore mining concessions held by the company Lormines ... in the municipalities of Auboue, Briey, Homecourt, Joeuf and Moutiers (Meurthe-et-Moselle), Moyeuvre-Petite, Moyeuvre-Grande, Roncourt, Sainte-Marie-aux-Chênes and Saint Privat (Moselle);
The assessments carried out by those experts shall be reported in writing to the prefects concerned, in the appropriate time-frame and form such as to be compatible with the triggering of the alert procedure, should that prove necessary, or within 48 hours in other cases.
“The Conseil d'Etat (Public Works Division), has been called upon by the Secretary of State for Industry to answer the following questions:
1. Does not the immediate application of the new Article 84 of the Mining Code impair the established rights of the holders of mining concessions or licences, in so far as work commenced prior to this legislation is at issue? Should or could a limit be set on the regulatory obligations that may be imposed on them, since the objectives now enshrined in the mining regulations were clearly not envisaged when the operations were first started?
2. Should the principle of the proportionality of acts of the administrative authorities be construed as requiring the prefect to take account of the human, financial or technical means available to the operator when he imposes specific measures on the latter?
To what extent, should it prove impossible for the mine operator to implement the prefect's instructions, would the obligations thus imposed be assumed by the State and then performed and financed by the latter?
3. Could the possible extension introduced by the use of the term “measures” rather than “work” in Article 84 of the Mining Code lead to the imposition of other requirements, apart from those whose result is attainable within a period that is consistent with the need to bring an end to the special mining regulations, for example a pumping requirement, which could only be fulfilled in the long term, or in a period that would be difficult to foresee?
In the latter case, is there not a contradiction with Articles 46 and 49 § 2 of the decree of 9 May 1995, which seem, at least implicitly and for mines operated normally, to limit the imposition of mining regulations to the term of the mining concession?
Moreover, should the prefect confine himself to physical measures or is he entitled to impose financial measures such as payment to an organisation by way of performance?
4. Would it be feasible to arrange for part of the obligations imposed under mining regulations (for example those concerning the pumping of water or maintenance of equipment) to be assigned to a third party (company, consortium of public institutions, etc.)? Could the formal confirmation be issued once the prefect is able to observe that the operator has set up a structure providing for the performance of its obligations – or, on the contrary, can it only be issued once it has been observed that the prescribed measures have actually been carried out or completed?
5. In matters of ordre public (public policy), is the court entitled, and on the basis of what criteria, to consider that section 17 of the Law of 15 July 1994 has an immediate effect on contracts in progress? Would it be possible, if necessary, in the light of the Constitution, to enact legislation giving retrospective effect to the abovementioned section 17?
6. On the basis of what criteria is the court entitled to rule out the application of a clause releasing the mine operator from liability in respect of damage caused by its mining activity, in the event of transfer of ownership? In particular, is the court entitled to find such a clause null and void when the foreseeable or inevitable nature of the damage has been established? In such cases, is it necessary to prove that the operator was aware of the risk or does the existence of the risk suffice, in so far as the operator should have been aware of it? Moreover, may the seriousness of the damage be taken into account in the court's interpretation of the validity of such clauses?
[The Conseil d'Etat] is minded to answer the foregoing questions as follows:
1. As to the mining abandonment procedure (Article 84 of the Mining Code):
(a) A new legal rule will not apply to legal situations which have already become final on the date it enters into force. Accordingly, the abandonment of mining operations which began before the entry into force of the Law of 15 July 1994 will not be governed by the new Article 84 of the Mining Code, introduced by the said Law, if on that date the particulars of the work required for the stabilising and rehabilitation of the site have been irrevocably decided, pursuant to the former Article 83 of the Mining Code and to Articles 22 to 29 of Decree no. 80-330 of 7 May 1980, by the acceptance of the declaration of relinquishment or abandonment submitted by the operator, or by virtue of a prefectoral order prescribing the work to be carried out. In other cases the new Article 84 will be applicable, and it will of course govern the abandonment of mining work started after 15 July 1994.
(b) The principle of the “proportionality of acts of the administrative authorities” entails that the authorities require the operator to take only those measures that are necessary in order to fulfil the objectives and preserve the interests enumerated in Articles 79 and 84 of the Mining Code. In assessing what is necessary, the authorities are not bound by the human, financial or technical capacities of the operator.
(c) The authorities have an obligation to ensure compliance with the measures that they have prescribed pursuant to the abovementioned provisions. In the event of any failure to act on the part of the operator, for any reason whatsoever, they must assume their powers of substitution under the eighth and ninth paragraphs of Article 84. Failing that, the State's responsibility may be totally or partially engaged in the event of non-performance.
(d) It follows from all the provisions of Article 84 of the Mining Code that, unless otherwise agreed by the operator, the authorities cannot impose measures without fixing a time-limit. The performance of such measures cannot be required to continue in the long term, after the mining concession has expired, except in the case provided for under Article 48 of the decree of 9 May 1995.
(e) In order to obtain formal confirmation, the operator must have performed the prescribed measures itself and is not entitled to have them performed by a third party, even if it provides that party with the requisite financial means.
2. As to the validity of clauses in property transfer agreements which exclude the liability of the mining or prospecting company (section 17 of the Law of 15 July 1994):
(a) Subject to the independent findings of the competent courts, it would appear that section 17 of the Law of 15 July 1994, which renders null and void on public policy grounds any clause, in property transfer agreements between mining companies and local authorities or natural persons outside the profession, which excludes the liability of the company for any damage related to its mining activity, does not apply to agreements entered into before the entry into force of the said Law. Unless retroactive effect is expressly stipulated by the legislature, a new law will not affect the terms and conditions of an agreement that has become final prior to the entry into force of that law.
(b) Except in penal matters, the principle of non-retrospectivity of laws is not binding on the legislature, which may therefore decide to give retrospective effect to section 17 of the Law of 15 July 1994.
(c) It is not possible to give a general answer to the question concerning the possibility for the court to rule out the application of clauses releasing the vendor from liability. It will be for the competent courts to assess such clauses on a case-by-case basis in the light of Article 1643 of the Civil Code.”
“As regards case no. 192947, you were notified of it on 9 March 1998. In the absence of any response on your part, you were again invited to adduce your observations on 16 July, 27 August and 29 September 1998 and on 8 April 1999.
Since a case has to be heard even if the authority fails to reply, the case was entrusted to a reporting judge, examined at the preparatory stage, transmitted to a Government Commissioner and set down for hearing on 20 March, with notice of the hearing being issued on 13 March 2000.
It was not until after that notice of hearing that you produced observations which were received by facsimile in the Conseil d'Etat on 18 March.
As the principle of adversarial proceedings required that your observations be communicated to the applicant company, the striking-out of the case was inevitable. This also happened, with a few minor differences, in case no. 194925. Such a situation is difficult to accept. For the purposes of preparing the case properly the judge sets time-limits for the parties. In some cases, if requested, an extension of the time-limit may be granted.
In the present case, however, it was only after two years and in spite of a number of reminders that you filed your observations, and you did so after the case had been set down for hearing, placing the Conseil d'Etat before the fait accompli and obliging it to strike out the case.
In 1998 the Prime Minister adopted specific measures to ensure the defence of the State in good conditions and the proper operation of judicial proceedings. It is regrettable that in this case his instructions were disregarded so patently.”
“... Under the first paragraph of Article 34 of the ... decree [of 9 May 1995 pertaining to the opening of mines and mining regulations]: 'The prefect shall decide, by way of an arrêté (order), on regulations applicable to mining. Except in cases of urgency or imminent danger he shall first invite the mine operator to submit its observations and shall set a time-limit for that purpose'. In view of the seriousness of the subsidence which occurred on 14 October 1996, 18 November 1996 and 15 March 1997 above various mines that had been operated by the company Société des Mines de Sacilor Lormines and having regard to the report filed on 20 May 1997 by the scientific advisory board set up on 25 March 1997 for that purpose, the prefects of Moselle and Meurthe-et-Moselle were legally entitled to issue the urgent order of 26 May 1997 requiring the applicant company to entrust to a panel of experts the analysis and risk assessment of a number of mining sites, and to have a network of surveyors permanently available in order to carry out the requisite supervisory measures. They were also entitled, on account of the urgency, without consulting the mine operator and as soon as the report had been issued by the experts appointed in the order of 26 May 1997, to require the company, in the order of 18 July 1997, to ensure that a network of building experts was permanently available. Accordingly, the arguments to the effect that those orders were issued without complying with the lawful procedure, in breach of the provisions of Article 34 of the decree of 9 May 1995, cannot be upheld.
Article 79 of the Mining Code, in the version deriving from the Law of 15 July 1994, reads as follows: 'prospecting and mining work shall comply with the restrictions and obligations pertaining to ... / public health and safety, ... [and] to the solidity of public or private edifices ... / When the interests mentioned in the previous paragraph are put at risk by such work, the administrative authority may require the prospector or mine operator to take any measures for the purposes of ensuring the protection of those interests within a given time-limit'. The last paragraph of Article 84 of the Mining Code, which lays down the rules governing the discontinuance of mining operations, provides as follows: 'When the measures provided for by the present Article, or those prescribed by the administrative authority pursuant to the present Article, have been executed, the administrative authority shall issue the prospector or operator with its formal confirmation of completion ...'. Article 49 of the decree of 9 May 1995 provides: 'the administrative supervision and the mining regulations shall cease to take effect on the date that the operator is issued with formal confirmation that the work has been completed ... / However, the prefect shall be empowered ... to take ... any measures that may be rendered necessary by incidents or accidents that can be attributed to former mining work, when such events are capable of damaging the interests protected by Article 79 of the Mining Code, until the expiry of the mining concession'.
First, contrary to what has been contended, the Law of 15 July 1994 entered into force as soon as it was published; subsequently, and notwithstanding the fact that the applications for abandonment of operations were submitted before the entry into force of that Law, the prefects of Moselle and Meurthe-et-Moselle legally implemented it.
Secondly, it follows from the combination of the provisions cited above that the completion by the operator of the work prescribed by the administrative authority for the purposes of closing a mine does not suffice to exonerate if from all liability unless and until it has been issued with formal confirmation of completion and, as regards any incidents and accidents that may interfere with the protection of the interests provided for under Article 79 of the Mining Code, for as long as the operator holds the mining concession. It follows from the documents in the case file that, with the exception of the concessions of Valleroy and Moutiers, the prefects of Moselle and Meurthe-et-Moselle had not issued formal confirmation of the completion of work in respect of the mines abandoned by [the applicant company], nor had they accepted the proposed renunciation of the concessions concerned. Subsequently, the prefects ... were lawfully entitled, except in respect of those parts of the municipalities that were located above the Valleroy and Moutiers concessions, to impose on the operator the necessary measures to prevent repetition of subsidence.
Under Articles 79 and 84 of the Mining Code, the administrative authorities are entitled to require the operator to take any measures for the purposes of guaranteeing public health and safety and the solidity of edifices, as provided for in Article 79 of the Code. These measures may consist both in studies for the assessment and enumeration of risks and in work to prevent or put an end to incidents.
It is hereby decided as follows:
Article 1: The implied decisions of 3 November 1997 and 18 January 1998 of the Minister for Economic Affairs, Finance and Industry and the orders of 26 May 1997 and 18 July 1997 are annulled in so far as they imposed on the [applicant company] measures of prevention, supervision and verification in respect of the areas of the municipalities located above the concessions of Valleroy and Moutiers of which the renunciation had been accepted by the authority.
Article 2: The State shall reimburse to Société des Mines de Sacilor Lormines, with interest, the sums pertaining to the sites in respect of which the decisions of the Minister are annulled by the present decision;
Article 3: The State shall pay to Société des Mines de Sacilor Lormines the sum of 20,000 francs under section 75-I of the Law of 10 July 1991.
After deliberation on 26 April 2000 in the presence of: Mrs Aubin, Deputy President of the Judicial Division, presiding; Mrs Moreau, Mr Durand-Viel, Section Presidents; Mr Dulong, Mr Pêcheur, Mr Levis, Senior Members of the Conseil d'Etat; and Miss Bonnat, Auditeur-rapporteur.”
“... the Minister for Economic Affairs, Finance and Industry ... ordered, on 23 July 2001, the payment of the sum of 71,745.60 francs for the reimbursement of the expenses incurred on the sites in respect of which the Minister's decisions had been annulled by the judgment of 19 May 2000. It follows from a calculation note produced by the authority that this sum consists of an indemnity of 66,000 francs, being the capital, which has not been disputed, and interest amounting to 5,745.60 francs. As regards the interest .... [it] should have run not from 19 May 2000, the date of the decision in which payment was ordered, but from the date on which [the applicant company] had actually paid the invoice of 31 October 1997 issued by the National Institute for the Industrial Environment and Risks. In view of the foregoing, [the applicant company] is justified in arguing that the judgment of 19 May 2000 has not been fully executed.
In the circumstances of the case it is appropriate to require the State ... to take, within a period of two months from notification of the present decision, as regards the start date for calculation of interest at the statutory rate, the necessary measures in order to ensure full execution of Article 2 of the judgment of 19 May 2000, and to order it to pay a coercive fine of 10 euros per day from the expiry of the said period if it has not by then fulfilled the said obligation.
After deliberation on 15 March 2002 in the presence of: Mr Labetoulle, President of the Judicial Division, presiding; Mr Durand-Viel, Mr Bonichot, Section Presidents; Mr Dulong, Mr Hoss, Mr Levis, Mr de Froment, Senior Members of the Conseil d'Etat; Mr Thiellay, Maître des Requêtes and Miss Vialettes, Auditeur-rapporteur.”
C. Inter-prefectoral order of 24 July 1998
The company Lormines ... shall take all necessary measures, promptly and at the request of the prefects for the places concerned, to carry out an analysis of cracks in buildings or facilities located within the “yellow, orange and red” zones, which are indicated as being at risk from significant soil movements in the maps issued showing degrees of potential delayed subsidence, and which are situated within the ground areas of the iron-ore mining concessions held by the company Lormines on parts of the départements of Moselle, Meurthe-et-Moselle and Meuse.
The assessments shall be reported in writing to the prefects concerned, in the appropriate time-frame and form such as to be compatible with the triggering of the alert procedure, should that prove necessary, or within 48 hours in other cases.
Concerning the submissions seeking the annulment of the inter-prefectoral order of 24 July 1998 laying down regulatory measures in the mining sector and the implied decision of rejection by the Minister for Economic Affairs, Finance and Industry further to an administrative appeal against that order:
... Fifthly, Article 79 of the Mining Code, in the version deriving from the Law of 15 July 1994, reads as follows: 'Prospecting and mining work shall comply with the restrictions and obligations pertaining to ... / public health and safety, ... [and] to the solidity of public or private edifices ... : When the interests mentioned in the previous paragraph are put at risk by such work, the administrative authority may require the prospector or mine operator to take any measures for the purposes of ensuring the protection of those interests within a given time-limit'. The last paragraph of Article 84 of the Mining Code, which lays down the rules governing the discontinuance of mining operations, provides as follows: 'When the measures provided for by the present article, or those prescribed by the administrative authority pursuant to the present article, have been executed, the administrative authority shall issue the prospector or operator with its formal confirmation ...'. Article 49 of the decree of 9 May 1995 provides: 'The administrative supervision and the mining regulations shall cease to take effect on the date that the operator is issued with formal confirmation that the work has been completed ... / However, the prefect shall be empowered ... to take ... any measures that may be rendered necessary by incidents or accidents that can be attributed to former mining work, when such events are capable of damaging the interests protected by Article 79 of the Mining Code, until the expiry of the mining concession'. Article 119-4 of the Mining Code provides: 'renunciation, whether total or partial, of rights to mine or quarry prospecting or exploration shall become final only after being accepted by the minister responsible for mining'. Article 34 of the decree of 19 April 1995 provides: 'Applications for renunciation of a mining concession shall be lodged with the minister responsible for mining. / ... Acceptance of renunciation shall be given in an order of the minister responsible for mining'.
Contrary to what has been contended, the Law of 15 July 1994 entered into force as soon as it was published and was to be applied to all mining concessions currently valid at that date. Subsequently, and notwithstanding the fact that the applications for abandonment of work and renunciation of concessions were apparently submitted before the entry into force of that Law, the prefects of Moselle, Meuse and Meurthe-et-Moselle legally implemented it. The applicant company cannot, in any event, appropriately rely on an argument based on a breach of the principles of legitimate expectation and legal certainty when the order appealed against was not made for the purposes of implementing European Community law.
Moreover, it follows from the combination of the provisions cited above that the completion by the operator of the work prescribed by the administrative authority for the purposes of closing a mine does not suffice to release it from all liability unless and until it has been issued with formal confirmation of that completion. In addition, when, as in the present case, any incidents or accidents occur, such as subsidence capable of undermining the solidity of public or private edifices, the prefect remains empowered to intervene, even if he has already issued formal confirmation of completion of the work required for the closure of the mine, for as long as the operator holds the mining concession. It follows from the documents in the case file that, whilst some of the mines enumerated in Article 2 of the order appealed had been the subject of an abandonment procedure, as had been confirmed by the Regional Director for Industry, Research and the Environment, none of the corresponding concessions, at the date of the order appealed, had expired or had been the subject of a renunciation procedure accepted by the minister, such express acceptance alone being capable, contrary to what has been argued in a new memorial filed the day before the hearing, regardless of the date of that acceptance, of giving full effect to any renunciation. Accordingly, the prefects of Moselle, Meuse and Meurthe-et-Moselle were lawfully entitled to require the operator to take the necessary measures to prevent repetition of land subsidence.
Sixthly, in accordance with Articles 79 and 84 of the Mining Code, the administrative authorities are entitled to require the operator to take any measures that may be required for the protection of the objectives of public health and safety and the solidity of edifices, as provided under Article 79 of that Code. Those measures may consist both of studies for the purpose of analysing and enumerating the risks of incidents and of work for the purposes of prevention or remediation.
The company Société des Mines de Sacilor Lormines is not justified in seeking the annulment of the inter-prefectoral order of 24 July 1998 and the Minister's implied decision of rejection ...”
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Mining regulations and successive reforms of mining law
“When operations are abandoned on the expiry of a concession or of a prospecting or operating licence, or, in the case of segment-based operations, at the end of the operations in each segment, the holder of the concession or licence shall be required to carry out work for the purpose of protecting the interests mentioned in Article 84, as stipulated by the prefect on the proposal of the mining service after consultation of the municipal council for the locality concerned. The rehabilitation, in particular for agricultural purposes, of the sites and places affected by the work and by installations of any kind that have been erected for operations and prospecting, may be prescribed; this shall be mandatory in the case of quarries. These provisions shall be applicable to the work provided for in Article 80.
In the event of failure to carry out the prescribed work, it shall be completed on the initiative of the authorities and at the expense of the concession-holder or offender.
Municipalities and départements shall have a right of pre-emption in the event of the sale of disused quarries that have been operated on their territories.”
Article 84 of the Mining Code provided as follows:
“If work related to mine prospecting or operating is capable of undermining public health and safety, essential features of the surrounding environment, whether land or sea, the conservation of the mine or another mine, the security, health and safety of mine workers, the conservation of communication routes, the solidity of public or private edifices, or the use, flow or quality of water of any kind, provision shall be made by the prefect, if need be of his own motion and at the expense of the prospector or operator.”
“In all cases, the holder of the concession or licence shall make an assessment of the cumulative effects of the work on the presence, accumulation, emergence, volume, drainage and quality of water of any kind, shall assess the foreseeable consequences of the abandonment of the work or of the operations for the situation thus created and for the uses of the water, and shall indicate the remedial measures envisaged.
After consulting the local authorities concerned and hearing representations from the concession or licence holder, the prefect shall prescribe the work required of the holder in order to restore to their previous state, preserve in their current state or adapt as needed, the essential characteristics of the aquatic environment and the hydraulic conditions for the purposes of fulfilling the objectives provided for in section 1 of the Water Act (Law no. 92-3) of 3 January 1992.”
In addition, the second paragraph of Article 83 of the Mining Code was supplemented by a sentence which read as follows:
“Payment into the hands of a public accountant of the sums necessary for the performance of the work imposed in accordance with the previous paragraph may be demanded under the conditions provided for in section 17 of the above-mentioned Law no. 92-3 of 3 January 1992.”
“Prospecting and mining work shall comply with the restrictions and obligations pertaining to the health and safety of workers, public health and safety, the essential features of the surrounding environment, whether land or sea, the solidity of public or private edifices, the conservation of communication routes, the mine and other mines, and more generally archaeological interests and the interests enumerated in the provisions of section 1 of the Historic Monuments Act of 31 December 1913, section 4 of the Law of 2 May 1930 reorganising the protection of natural monuments and sites of an artistic, historical, scientific, legendary or picturesque nature, section 1 of Law no. 76-629 of 10 July 1976 concerning the protection of nature, section 2 of the Water Act (Law no. 92-3) of 3 January 1992, as well as to the agricultural interests attaching to sites and places affected by such work and by mining installations.
When the interests mentioned in the previous paragraph are put at risk by such work, the administrative authority may require the prospector or mine operator to take any measures for the purposes of ensuring the protection of those interests within a given time-limit.
In the event of failure to fulfil these obligations by the expiry of the allotted period, the administrative authority shall take the initiative of having the prescribed measures executed, at the expense of the prospector or operator.”
“If appropriate, at the end of each segment of work and, at the latest, when the operations are discontinued and the work halted, the prospector or operator shall give notice of the measures that he intends to take in order to protect the interests mentioned in Article 79, for the purpose of putting an end, in general terms, to any adverse effects, disorder or disturbances of any kind that may be generated by the said activities and to make provision, if appropriate, for the possible resumption of operations.
In all cases, the prospector or operator shall make an assessment of the effects of the work on the presence, accumulation, emergence, volume, drainage and quality of water of any kind, shall assess the consequences of the discontinuance of the work or of the operations for the situation thus created and for the uses of the water, and shall indicate the remedial measures envisaged.
The declaration shall be made no later than the date of expiry of the mining concession.
Failing that, the administrative authority shall remain empowered after the said date to prescribe the necessary measures.
Having regard to that declaration, and after consulting the municipal councils of the localities concerned and hearing representations from the prospector or operator, the administrative authority shall prescribe, as necessary, any requisite measures taken and conditions of execution that have not been sufficiently indicated or that have been omitted by the declarant ...
Any failure to take the measures provided for in the present article shall result in their execution on the initiative of the authorities, at the expense of the prospector or operator.
Payment into the hands of a public accountant of the sums necessary for that execution may be demanded and, if necessary, collected in the manner of debts other than those related to taxation or State property.
When the measures provided for by the present article, or those prescribed by the administrative authority under the present article, have been executed, the administrative authority shall issue the prospector or operator with its formal confirmation.
That formality shall put an end to the supervision of the mines, as provided for in Article 77.
However, as regards the activities governed by the present Code, the administrative authority may intervene, in the context of the provisions of Article 79, until the expiry of the mining concession.”
Article 47, paragraph 3
“After arranging for verification of the measures taken by the operator, and if appropriate indicating their compliance or prescribing additional measures, the prefect shall issue formal confirmation, by way of an order (arrêté), of the final discontinuance of the work and the decommissioning of the installations.”
“The administrative supervision and the mining regulations shall cease to take effect on the date that the operator is issued with formal confirmation that the work has been carried out, or when the work executed on the initiative of the authority has been completed.
However, the prefect shall be empowered, except in cases where activities other than those covered by the Mining Code are substituted in the place of the discontinued work or decommissioned installations, to take, in the context of the present part hereof, any measures that may be rendered necessary by incidents or accidents attributable to former mining work, when such events are capable of damaging the interests protected by Article 79 of the Mining Code, until the expiry of the mining concession.”
Article 34 of Decree no. 95-427 of 19 April 1995 pertaining to mining concessions provided as follows:
“Applications for renunciation of a mining concession shall be lodged with the minister responsible for mining.
They shall be processed, depending on each case, as stipulated in Articles 26 and 27 above.
Acceptance of renunciation shall be subject, if appropriate, to the prior execution of the prescribed regulatory measures. Subject to this proviso, it shall be automatic in the event of total renunciation. Acceptance of renunciation shall be given in an order of the minister responsible for mining.”
“The prospector or operator, or failing that the holder of the mining concession, shall be liable for any damage caused by its activity. It may, however, be released from liability if it can adduce evidence of an external cause. Such liability shall not be confined to the area covered by the mining concession, nor to the term of validity of that concession. In the event of the disappearance or default of the liable party, the State shall stand surety for the reparation of the damage mentioned in the first paragraph; it shall be subrogated to the rights of the victim against the liable party.”
B. The Conseil d'Etat
1. Provisions governing status
Article L. 131-1
“The status of members of the Conseil d'Etat shall be governed by the present Book, and, in so far as they are not in contradiction therewith, by the provisions governing the civil service.”
Article L. 131-2
“No member of the Conseil d'Etat shall be entitled, in support of a political activity, to invoke his or her membership of the Conseil d'Etat.”
Article L. 131-3
“All members of the Conseil d'Etat, whether serving in the Conseil or assigned to external duties, shall avoid expressing views of a political nature that are incompatible with the duty of discretion inherent in their functions.”
Chapter 3 under the same Title is headed “Appointments” and codifies the rules concerning the recruitment of members of the Conseil d'Etat described in the Kress judgment (§ 33). Articles L. 133-1, 133-2 and 133-3 restate that the Vice-President of the Conseil d'Etat, the division presidents and the senior members (conseillers d'Etat, who have to be at least 45 years of age) are appointed by a decree adopted in Cabinet, on the proposal of the Minister of Justice. Article L 133-7 concerns appointments directly from outside and reads as follows:
“Direct appointments from outside to positions of senior member (conseiller d'Etat) and of maître des requêtes may be made only after the opinion of the Vice-President of the Conseil d'Etat has been obtained.
That opinion shall take into account the previous functions performed by the nominee, his or her experience, and the requirements of the institution, as reported on an annual basis by the Vice-President of the Conseil d'Etat; the substance of that opinion in respect of appointments made shall be published in the Official Gazette at the same time as the notice of appointment.
The opinion of the Vice-President shall be transmitted to the person concerned, at his or her request. ...”
Chapter 6 under the same Title is headed “Discipline” and stipulates in Article L. 136-2 that disciplinary measures are taken by the authority responsible for making appointments upon the proposal of the Minister of Justice, after obtaining the opinion of the advisory board. However, warnings and reprimands may be issued, without consulting the advisory board, by the Vice-President of the Conseil d'Etat.
The regulatory provisions concerning the status of members of the Conseil d'Etat are to be found in Articles R 131-1 et seq. of the Administrative Courts Code.
Article L. 111-1
“The Conseil d'Etat is the supreme administrative court. It shall rule independently on appeals on points of law lodged against last-instance decisions by the various administrative courts, and on appeals falling within its first-instance jurisdiction or jurisdiction to hear full appeals.”
Article L. 112-1
“The Conseil d'Etat shall participate in the preparation of Acts (lois) and Ordinances (ordonnances). Draft texts emanating from the Government shall be referred to it by the Prime Minister. The Conseil d'Etat shall give its opinion on draft decrees and on any other draft texts in respect of which its intervention is required by constitutional, legislative or regulatory provisions, or which are submitted to it by the Government. When a draft text is submitted to it, the Conseil d'Etat shall give its opinion and propose any amendments that it may deem necessary. In addition, it shall prepare and draft texts in response to specific requests.”
Article L. 112-2
“The Conseil d'Etat may be consulted by the Prime Minister or ministers on any difficulties that may arise in administrative matters.”
Article L. 112-3
“The Conseil d'Etat shall be entitled, of its own motion, to draw to the attention of the executive any reforms of a legislative, regulatory or administrative nature that it may deem to be in the public interest.”
Article L. 112-4
“The Vice-President of the Conseil d'Etat may, at the request of the Prime Minister or a minister, appoint a member of the Conseil d'Etat to carry out a fact-finding mission. The Vice-President may, at the request of ministers, appoint a member of the Conseil d'Etat to assist their officials in drafting specific texts.”
Article L. 121-1
“The presidency of the Conseil d'Etat shall be held by the Vice-President. The General Assembly of the Conseil d'Etat may be presided over by the Prime Minister, and, in his absence, by the Minister of Justice.”
Article L. 121-3
“The Conseil d'Etat shall consist of a Judicial Division and administrative divisions.”
Article R. 121-3
“Senior members (conseillers d'Etat) in permanent service shall be assigned to an administrative division or to the Judicial Division, or simultaneously to an administrative division and the Judicial Division, or simultaneously to the Report and Research Division and another administrative division, or to three divisions including the Judicial Division and the Report and Research Division. The deputy presidents and the presidents of sections of the Judicial Division shall be assigned solely to that Division; they may however be assigned to the Report and Research Division.”
Article R. 121-4
“The maîtres des requêtes and auditeurs shall be assigned both to an administrative division and to the Judicial Division. However, (a) the maîtres des requêtes and auditeurs responsible for running the documentation centre may, as appropriate, be assigned only to the Judicial Division or only to an administrative division; (b) the maîtres des requêtes and auditeurs who have served for less than three years in the Conseil d'Etat shall be assigned only to the Judicial Division.”
Article R. 121-5
“The assigning of a member of the Conseil d'Etat to an administrative division shall entail, in addition to his or her contribution to the work of that division, his or her participation in the performance of the administrative activities referred to under Title III, Chapter 7, of the present Book.”
Article R. 123-2
“The Conseil d'Etat shall consist of five administrative divisions:
Interior, Finance, Public Works, Social, and Report and Research.”
Article R. 123-3
“Cases originating from the various ministries shall be distributed between the first four of those divisions in accordance with the provisions of an order of the Prime Minister and of the Minister of Justice.
All cases involving a particular ministry shall be referred to the same division.
However, the examination of certain categories of cases, in particular those concerning the civil service, may be assigned to a specific division, regardless of the ministry from which they originate.”
I. ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE CONVENTION
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time by an independent and impartial tribunal established by law.”
A. The independence and impartiality of the Conseil d'Etat
1. The parties' submissions
(a) The independence and impartiality of the members of the Conseil d'Etat
(i) The applicant company
(ii) The Government
(b) The duality of the advisory and judicial functions of the Conseil d'Etat and the significance of the opinion of 29 September 1997
(i) The applicant company
In the applicant's submission, the Government had not shown that the convention whereby the Judicial Assembly alone could depart from the solution adopted by an administrative division was no longer applicable at the time of the judgments of 19 May 2000 and 5 April 2002, because on that point they had only cited judgments of 2003 and 2005.
(ii) The Government
2. The Court's assessment
(a) General principles
(b) Application to the present case
The Court therefore considers that there has been a violation of Article 6 § 1 of the Convention.
In conclusion, the consecutive exercise by the Conseil d'Etat of judicial and administrative functions has not, in the present case, entailed a violation of Article 6 § 1 of the Convention.
FOR THESE REASONS, THE COURT
Done in French, and notified in writing on 9 November 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Vincent Berger Boštjan M. Zupančič
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the joint partly dissenting opinion of Judges Zupančič, Bîrsan and Long is annexed to this judgment.
JOINT PARTLY DISSENTING OPINION OF JUDGES ZUPANČIČ, BÎRSAN AND LONG
It is with great regret that we are unable to agree with the first operative paragraph of the judgment which reads: “there has been a violation of Article 6 § 1 of the Convention, in so far as it secures the right to an independent and impartial tribunal, on account of the applicant company's objectively justified misgivings about the bench of the Conseil d'Etat which delivered the judgment of 19 May 2000”.
The applicant company argued, among other things, that the Conseil d'Etat was not an independent and impartial tribunal on account, first, of the plurality of its functions and, second, of the manner of appointment and the status of its members, as illustrated in the present case by the appointment, on 26 May 2000, of one of the members of the bench which delivered the impugned judgment of 19 May 2000 to the post of Secretary General at the ministry responsible for mining, when the company's activities, which had given rise to its litigation against the Government, fell within the purview of that very ministry.
Whilst, on the first point, the Court arrived at the conclusion that the successive exercise by the Conseil d'Etat of its administrative functions and judicial jurisdiction was not capable of entailing a violation of Article 6 § 1 of the Convention, thus adhering to the Kleyn v. the Netherlands case-law – a conclusion with which we fully agree – on the second point, by contrast, the majority in the Chamber found a violation of that same provision.
Admittedly, on that second point, the Court, not departing from its settled case-law in such matters, did not wish to call into question, generally speaking, the method of appointment of members of the Conseil d'Etat or the organisation of their careers. That being said, in so far as the applicant company had argued that the appointment of a member of the judicial bench to the post of Secretary General of the Ministry for Economic Affairs, Finance and Industry had been such as to cast “serious doubt” upon the independence of the Conseil d'Etat in its decision of 19 May 2000, the Court had to examine whether in the present case the supreme administrative court of France had presented the “appearance of independence” required by the Court's case-law, having regard to the “existence of safeguards against extraneous pressure” (paragraph 59 of the judgment).
In this connection, the majority in the Chamber took, as the starting-point of their reasoning, an undeniable fact: the appointment in question post-dated the deliberation of the Conseil d'Etat of 26 April 2000. However, they bore in mind, as the Government had indicated, that discussions concerning the appointment were apparently “already underway” in April 2000, and had thus begun “probably” at least a certain time before the deliberation of the judicial bench. Accordingly, agreeing with the applicant company, the majority were of the opinion that the impugned appointment was “likely to cast doubt on the impartiality of the Conseil d'Etat”. They consider that, in view of the fact that during the deliberation, “or even perhaps well before” – and we emphasise that point – one of the members of the judicial bench had been under consideration for appointment to a senior position in the ministry which was its opponent in a large number of major disputes, he could not appear as a neutral figure in the eyes of the applicant company. The majority considered that in the circumstances the company had no safeguards “against possible extraneous influence” on account of the impugned appointment “at the time he exercised his judicial function in April”, and that this was capable of giving rise to “objectively justified misgivings ex post facto about the independence and impartiality of the bench on which the member in question had sat” (paragraph 69).
In fact, the point on which we disagree with the majority concerns the application to the situation at issue of the notions of independence and objective impartiality, which in the circumstances of the case are closely linked (paragraph 62). In this connection, the Court has constantly held that the objective test consists in determining whether, irrespective of the judge's personal conduct, there are ascertainable facts which may raise doubts as to his impartiality. In this respect even appearances may be of a certain importance. What is at stake is the confidence which the courts in a democratic society must inspire in the public. Accordingly, any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw. In deciding whether in a given case there is a legitimate reason to fear that a particular judge lacks impartiality, the standpoint of a party is important but not decisive. What is decisive is whether this fear can be held to be objectively justified (see, among other authorities, Castillo Algar v. Spain, judgment of 28 October 1998, Reports 1998 VIII, § 45, and Morel v. France, no. 34130/96, § 42, ECHR 2000 VI). Similarly, the Court has held with equal consistency that a judge's final analysis in a given case is carried out when judgment is delivered and is based on the evidence produced and argument heard at the hearing (see, for example, Hauschildt v. Denmark, judgment of 24 May 1989, Series A no. 154, § 50; Nortier v. the Netherlands, judgment of 24 August 1993, Series A no. 267, § 332; Saraiva de Carvalho v. Portugal, judgment of 22 April 1994, Series A no. 286 B, § 35; and Morel, cited above, § 45).
How then does this apply to the present case? First, we consider that the applicant company did not produce any evidence to suggest that the guarantees of independence of members of the supreme French administrative court, as emphasised by the Court in Kress v. France (§§ 31-37 and 71), could be called into question in the present case. On the contrary, as the present judgment points out, the position of the Conseil d'Etat among French institutions does not preclude the existence of guarantees as to its independence (paragraph 66). Secondly, we consider that, appearances notwithstanding, the appointment of the member of the Conseil d'Etat in question cannot in itself undermine the finding concerning the general judicial practice of the Conseil d'Etat for the simple reason – which is not in dispute and indeed unquestionable – that it took place after the member had exercised his judicial function. In addition, the applicant company failed to show how that appointment could have aroused suspicion of a link between the member of the Conseil d'Etat and the other party in the proceedings, or could have revealed the existence of any extraneous influence on the performance of his duties. In our opinion, the factors on which the majority have based their finding of a violation of Article 6 § 1 of the Convention in this respect – that is to say the fact that discussions concerning the appointment were said to have begun “probably” at least a certain time before the deliberation, in view of the importance of the vacancy to be filled, “or even perhaps well before”, and that those discussions concerned a member of the bench who was under consideration for a senior post in the ministry against which the applicant company had brought proceedings – appear to us to amount to pure conjecture. Appearances have their own limits and have to be based on objective facts, which we consider not to be the case here. In conclusion, it would have been better for the Court, in a case where it did have the opportunity to do so, to have set limits on an extreme attachment to the theory of appearances – a theory that could result in a form of general suspicion and, in the end, generate legal insecurity.