In the case of Aon Conseil et Courtage S.A. and Another v. France,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Mr
C.L.Rozakis, President,
Mr L.Loucaides,
Mr J.-P.Costa,
Ms F.Tulkens,
Ms N.Vajić,
Mr A.Kovler,
Ms E. Steiner, judges,
and S.Nielsen, Section Registrar,
Having deliberated in private on 4 January 2007,
Delivers the following judgment, which was adopted on the last‑mentioned
date:
PROCEDURE
The case originated in an application (no.
70160/01) against the FrenchRepublic lodged with the Court under Article 34 of
the Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by two French companies, Aon Conseil et Courtage S.A. and Christian de Clarens S.A. (“the applicant companies”), on 3 May 2001.
The applicant companies were represented by Mr D.
Garreau, of the Conseil d'Etat and Court of Cassation Bar. The French
Government (“the Government”) were represented by their Agent, Ms E. Belliard,
Director of Legal Affairs, Ministry of Foreign Affairs.
The applicant companies alleged, in particular, a
violation of Article 1 of Protocol No. 1.
By a decision of 2 June 2005, the Chamber
declared the application partly admissible.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicants,
Aon Conseil et Courtage S.A.and Christian de Clarens S.A., are two French
companies based in Paris. Aon Conseil et Courtage succeeded to the rights
of another company SGAP Expansion, which had in turn acquired them through two
other companies, SGAP S.A. and OGIA S.A.
Christian de Clarens, SGAP and OGIA were engaged in insurance broking, a commercial activity which,
by virtue of Article 256 of the General Tax Code as worded until 31 December
1978, attracted value-added tax (VAT).They paid 967,033.21French francs (FRF), FRF 2,061,836.46 and
FRF 93,216.98 respectivelyin VAT on their 1978 transactions.
However, Article 13-B-a of the Sixth Directive of
the Council of the European Communities dated 17 May 1977 provided an exemption
for “insurance and reinsurance transactions, including related services
performed by insurance brokers and insurance agents”. The directive was due to
come into force on 1 January 1978.
On 30 June 1978 the Ninth Directive of the Council of the European Communities dated 26 June 1978 was notified to the FrenchState. It granted France an extension of time – until 1 January 1979 – in which to implement the provisions of Article 13-B-a of the Sixth Directive of 1977.
Since such directives have no retroactive effect, the Sixth Directive should
nevertheless have been applied from 1 January to 30 June 1978.
On 2 and 5 October 1978 and 21 and 26 June 1979 Christian
de Clarens lodged four applications with the Paris Administrative Court
seeking, on the basis of the Sixth Directive of 17 May 1977, a refund of the
VAT it had paid.
On 7 December 1979 SGAP transferred all the
assets of its insurance broking arm to a new company, SGAP Exploitation. SGAP nevertheless
continued to be registered under the same number at the Trade and Companies
Registry while changing its name to SOGEDEP the same day and to SGAP Expansion
on 6 January 1988.
In a
judgment of 8 January 1981, the Paris Administrative Court dismissed the four
applications lodged by Christian de Clarens.
An administrative
circular was issued on 2 January 1986 which stipulated:
“... no further action shall be taken to collect sums remaining
due at the date of publication of this circular from insurance brokers who have
failed to charge value-added tax on their transactions between 1 January and 30
June 1978 and have received supplementary tax assessments as a result.”
On 1 July 1992 the Paris Administrative Court of
Appeal held in the S.A. Dangeville case that Article 256 of the General Tax
Code, as worded in the relevant period, was incompatible with the provisions of
the Sixth Directive.
Considering
that the FrenchState had acted unlawfully by failing to incorporate into domestic
law the provisions of the Sixth Directive within the time allowed, SGAP, OGIA
and Christian de Clarens wrote to
the authorities on 20 December 1993 to claim compensation for their losses.
In decisions
of 8 February 1994 in the case of SGAP and OGIA, and 4 March 1994 in the case
of Christian de Clarens,the Minister
for the Budget rejected their requests on the grounds that they were
inadmissible by virtue of Article L 190 of the Code of Tax Procedure and that
the amount of the loss had to be reduced by the amount of employment tax owed
by companies exempted from VAT.
On 9 April
1994 SGAP, OGIA and Christian de Clarensbrought proceedings in the Paris Administrative Court against the FrenchState for failing to incorporate the Sixth Directive of 17 May 1977 into domestic law
thereby causing them a loss equal to the amount of overpaid VAT for 1978, which
they claimed should be refunded.
In a
judgment of 15 March 1995, the Paris Administrative Court joined the applicant
companies' applications with those of other claimants, including the Diot and
Gras Savoye companies, and declared them inadmissible by virtue of Article L
190, paragraph 3 of the Code of Tax Procedure, on the grounds that:
“The provisions are general
in scope and not intended as a bar to the application of Community treaties,
regulations, directives or decisions or to the execution of judgments of the
Court of Justice of the Communities.
Their sole purpose is to
determine in accordance with the legitimate aim of legal certainty the period
in which claims for release from liability to tax, for the recovery of sums
paid but not due or for compensation may be made by taxpayers who have not
taken any action themselves but have been shown, in a court decision in
proceedings to which they were not parties, to have been wrongly subjected to
tax.The limitation period laid down in the provisions does not prohibit
reasonably diligent claimants from asserting the rights to which they may be
entitled by virtue of Community norms.
It follows from the
foregoing the Article L 190 of the Code of Tax Procedure is not manifestly
incompatible with a Community norm of international-treaty status. There is
consequently no reason why it should not be applied.
The provisions of the third
paragraph of that Article expressly concern both actions for recovery of sums
paid but not due and actions for compensation in respect of loss. There is no
reason to consider that the legislature intended to exclude from the scope of
these provisions certain forms of action on account of the nature of the
alleged losses or of the tax liability concerned.
If it is not overruled on
this point, the judgment delivered on 1 July 1992 by the Paris Administrative
Court of Appeal on the application of the Jacques Dangevillecompany will be the
first judicial decision to have revealed an incompatibility between Article 256-1
of the General Tax Code, as worded during the relevant period, and the Sixth
Directive of the Council of the European Communities. Pursuant to the
aforementioned provisions of Article L 190 of the Code of Tax Procedure it was
consequently from the date of that decision that it became possible to
determine, in respect of all taxpayers, the period which Article L 190 allowed
for actions to be brought on the basis of that incompatibility for repayment of
sums paid or not deducted, or for compensation for loss.
It follows from the
foregoing that the claims of the applicant companies relating to taxes paid
during the first semester of 1978 are inadmissible and must consequently be
rejected.”
On 16 June 1995 SGAP Expansion took over OGIA
following a merger. It is also took over SGAP Exploitation, the same company to
which it had transferred its entire business on 7 December 1979.
On 18
September 1995 SGAP Expansion and Christian de Clarensappealed to the Paris Administrative Court of
Appeal against the judgment of the Paris Administrative Court.
On 5
December 1995 they lodged written submissions in which, in addition to
repeating their claims for reimbursement, they again argued that Article L 190 of
the Code of Tax Procedure did not provide a valid defence to their claims,
which were for compensation for losses resulting from the State's failure to
comply with its obligationsunder Community law.
Meanwhile in the aforementioned Dangeville case,
the Conseil d'Etat, hearing an appeal against the judgment delivered by
the Paris Administrative Court of Appeal on 1 July 1992, gave judgment on
30 October 1996, essentially in the following terms:
“The documents in the file submitted to the Paris
Administrative Court of Appeal show that by a decision of 19 March 1986 the Conseil
d'Etat, acting in its judicial capacity, dismissed a claim by S.A. Jacques
Dangeville seeking reimbursement of value-added tax it had paid for the period from
1 January to 31 December 1978, inter alia, on the ground that its
liability to that tax had arisen from the application of statutory provisions
that were incompatible with the objectives of the Sixth Directive of the
Council of the European Communities of 17 May 1977. The claim by S.A. Jacques
Dangeville which the Administrative Court of Appeal examined in the impugned
judgment was for payment of 'compensation' in an amount equal to the amount of
value-added tax that had thus been paid, by way of reparation for the 'damage'
which that tax liability had caused the company to sustain, on the ground that
that damage was attributable to the French State's delay in transposing the
objectives of the Directive into domestic law. It follows that, as submitted by
the Minister of the Budget, the Paris Administrative Court of Appeal erred in
law in holding that the fact that the company '[had] first referred the issue
of taxation to the tax court' did not render inadmissible a claim for
reparation in which the only alleged damage was that resulting from the payment
of the tax. The Minister of the Budget's application to have the impugned
judgment overturned is accordingly founded to the extent that the
Administrative Court of Appeal upheld in part the claims made by S.A. Jacques
Dangeville in its submissions. ...”
On the same day the Conseil d'Etat
delivered judgment on an appeal lodged on 23 August 1982 by S.A. Revert et
Badelon against the Paris Administrative Court's judgment of 10 June 1982. The Conseil
d'Etat did not follow the line it had taken in its judgment of 19 March
1986 in the Dangeville case,but instead declared S.A. Revert et Badelon's
appeal on points of law admissible, holding that the company was entitled to
rely on the provisions of the Sixth Directive and should be granted a release
from the contested tax liability – for which there was no statutory basis as
the statutory provisions conflicted with the objectives of the Directive – for
the sums erroneously paid for the period from 1 January to 30 June 1978.
In a
judgment of 28 January 1997, the Paris Administrative Court of Appeal dismissed
the applicant companies' appeals on the grounds that:
“The claims lodged by the
companies with the Administrative Court were for an award of damages ... as
reparation, which the Minister for the Budget had refused to make, for the loss
... caused by their wrongly being required to pay value added tax for the first
semester of 1978 in the exact amounts mentioned above. It is, however, common
ground that as at 9 April 1994, when the claim was registered with the court
registry, [the claimants] had not obtained a release from the said liability to
value added tax through a request to the authorities to that end and, in the
event of [their] request being rejected, an appeal to the tax court in
accordance with the specific procedure described in Articles L 190 et seq. of
the Code of Tax Procedure. In these circumstances, the claims were, as the Minister
has argued, inadmissible. It follows that [the companies] have no basis on
which to complain about the Paris Administrative Court's impugned decision to
dismiss their claims as unfounded.”
By a notice
of appeal dated 17 March 1997 and written submissions dated 17 July 1997, SGAP
Expansion and Christian de Clarensappealed
on points of law.
On 30 June 2000
SGAP Expansion was the subject of a takeover by a company called Aon France, which on the same day transferred its brokerage and insurance business to a company
called Le Blanc de Nicolay Réassurance. The latter subsequently changed its
name to Aon Conseil et Courtage.
In a
judgment of 10 November 2000, the Conseil d'Etatdismissed the appeals in
the following terms:
“In their submissions, [the
companies] sought compensation from the State in an amount equal to the value
added tax they had paid in respect of the first semester of 1978. These
submissions, which in practice amounted to a claim for repayment of the value
added tax paid, were inadmissible as they could only be made subject to the
conditions and time-limits set out in Articles L 190 et seq. of the Code of Tax
Procedure. This conclusion, which answers a point raised before the courts
below and does not involve any assessment of the factual circumstances, shall
replace the legally flawed finding that served as the basis for the operative
provision in the impugned judgment. The appeal ... must be dismissed.”
II. RELEVANT DOMESTIC LAW
The provisions of Article L 190 of the Code of Tax Procedure, applicable at the relevant time,
read as follows:
“Claims relating to taxes, contributions, duties, charges,
dues, indemnities and penalties of any kind, assessed or recovered by revenue
officials, fall within the jurisdiction of the courts where they seek
compensation for errors committed in the assessment or calculation of tax, or
an entitlement due under a statutory provision or regulation.
All actions seeking a release from or reduction in tax, or to a
right to make a deduction, on the ground that the norm that has been applied is
incompatible with a higher-ranking norm, shall be heard and determined in
accordance with the rules laid down in the present chapter.
Where such incompatibility has been established by a judicial
decision, an action for the restitution of the sums paid or not deducted or for
compensation for loss may only relate to the period following 1 January of the
fourth year preceding that of the judgment establishing such incompatibility.”
In its Roquette Frères S.A.judgment of 28
November 2000 (C-88/99), the Courtof Justice of the European Communities (CJEC)
gave the following answer to a question referred for a preliminary ruling on
the provisions of Article L 190 of the Code of Tax Procedure:
“... Community law does not preclude legislation of a Member State
laying down that, in tax matters, an action for recovery of a sum paid but not
due based on a finding by a national or Community court that a national rule is
not compatible with a superior rule of national law or with a Community rule of
law may only relate to the period following 1 January of the fourth year
preceding that of the judgment establishing such incompatibility.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO.
1
The applicant companies complained of the
dismissal of their request for reimbursement of sums erroneously paid in
respect of VAT for the first semester of 1978. They relied on Article 1 of
Protocol No 1, which provides:
“Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of his possessions
except in the public interest and subject to the conditions provided for by law
and by the general principles of international law.
The preceding provisions shall not, however, in any way impair
the right of a State to enforce such laws as it deems necessary to control the
use of property in accordance with the general interest or to secure the
payment of taxes or other contributions or penalties.”
A. The parties' submissions
1. The Government
The Government submitted that when the applicant
companies first made a claim on 20 December 1993 they no longer had a
“possession” within the meaning of Article 1 of Protocol No. 1. Although, in
the light of the S.A. Dangeville v. Francejudgment (16 April 2002, no. 36677/97,
ECHR 2002-III), SGAP Expansion, OGIA and Christian de Clarens had in 1978
possessed a claim against the State that met the requirements of Article 1 of
Protocol No. 1, the factual and legal positions were so significantly different
that the decision reached by the Court in the Dangeville case was not
transposable: whereas S.A. Dangeville had contested the erroneous payment of
VAT from the outset, the three companies involved in the present case had
waited until 20 December 1993, that is to say until fifteen years after the
payment of the VAT in issue and, more specifically, until after the Paris
Administrative Court's judgment of 1 July 1992 in favour of Dangeville
S.A.The Government explained that Article L 190 of the Code of Tax Procedure
enabled taxpayers with statute-barred claimsto rely, despite their past inaction,
on changes in the case-law to obtain a refund of sums which the new decision
had shown to have been paid erroneously. However, in the applicant companies'
case, the impugned taxation had taken place more than ten years before the temporal
limit fixed by Article L 190of the Code of Tax Procedure. Independently of this
ground of inadmissibility, which the domestic courts had upheld, the claim was
in any event inadmissible pursuant to the Limitation of Claims against the
State, Départements, Municipalities and Public Bodies Act(Law no. 68-1250
of 31 December 1968)as being a statute-barred claim against the State. In
any event, the Government considered that in the light of the subsidiarity
principle the applicant companies could not validly argue that they had not had
an effective remedy as the administrative case-law at the time had yet to
recognise the direct applicability of Community directives in domestic law: it
was precisely through lodging a claim in the domestic courts that Dangeville had
secured the important change to the case-law made by the Administrative Court
of Appeal's judgment of 1 July 1992. The Government also considered that the
applicant companies could have made an application to the European Commission
of Human Rights at the outset in 1978 by arguing that the domestic remedies
manifestly offered no prospects of success.
In the alternative, the Government submitted
that, regard being had to the time that had elapsed since the impugned taxation
and to the principle of legal certainty, the domestic courts' decision to
declare the claim inadmissible on the basis of Article L 190 of the Code
of Tax Procedure had struck a fair balance between the demands of the general
interest of the community and the requirements of the protection of the
individual's fundamental rights.
2. The applicant companies
The applicant companies contested the
Government's arguments based on Article L 190 of the Code of Tax Procedure. In
their submission, that provision created a restriction that was contrary to
Article 1 of Protocol No. 1 in that it limited access to a court solely to claims
covering a reduced period and de factoprohibitedappeals seeking
compensation for the full period (Miragall Escolano and Othersv. Spain,
25 January 2000, Reports of Judgments and Decisions 2000-I). In
reality, either no favourable judicial decision was forthcoming, in which case
the claimant did not have access to a court, or there was a favourable decision
but the period in respect of which a claim could be made was then reduced depending
on the date of that decision. Consequently, the courts could deprive a claimant
of his right to full compensation simply by deferring a finding of
incompatibility. In the instant case, by limiting the period in respect of
which a claim could be made to the four years preceding the judgment delivered
in favour of S.A. Dangeville in 1992, Article L 190 had excluded the right
to reparation for the VAT erroneously paid in respect of the first semester of
1978 with the result that there had been a violation of Article 1 of Protocol
No. 1.
Christian de Clarens added that, contrary to
what the Government had asserted, it had taken action in 1978, in particular by
lodging four applications with the Paris Administrative Court on 2 and 5
October 1978 and 21 and 26 June 1979 for a refund of the VAT on the basis of
the Sixth Directive of 17 May 1977. However, ultimately the Administrative
Court had dismissed the applications in a judgment of 8 January 1981. In
those circumstances, Christian de Clarens submitted that it could not be said
that it had taken no action for fifteen years or that its claim had
subsequently been extinguished.
B. The Court's assessment
1. Whether
there existed a possession within the meaning of Article 1 of Protocol No. 1
The Court notes that the parties disagreed as to
whether or not the applicant companies had a “possession” capable of attracting
the protection of Article 1 Protocol No 1. Consequently, it must determine
whether the legal position in which the applicant companies found themselves
was such as to fall within the scope of Article 1.
The provisions of the Sixth Directive of the
Council of the European Communities should have entered into force on
1 January 1978. By the Ninth Directive France was given an extension of
time (until 1 January 1979) in which to implement the provisions of
Article 13-B-a of the Sixth Directive of 1977. Since such directives have no
retrospective effect, the Sixth Directive should therefore have applied during
the period from 1 January to 30 June 1978.
The tax authorities only began to give effect to
the Sixth Directive in an administrative circular issued on 2 January 1986
which provided that brokers who had not paid the VAT concerned and had received
a supplementary tax assessment as a result were exempted from payment. However,
while this administrative circular gave effect to the Sixth Directive in
respect of companies who had refused to pay the VAT, it completely failed to
address the matter of VAT refunds to companies which had already paid it in
error.
The Court also noted that until the S.A. Revert
et Badelonjudgment of 30 October 1996, the Conseil d'Etathad refused to
uphold claims by the insurance companies concerned for refunds, considering in
particular that it should not have to review a national norm in the light of a
Community norm.
Even though it
was not disputed that Community law should have been applied, as the Community
norm in question was a directive whose implementation was overdue, its effect
was negated in respect of companies like the applicant companies for almost
seven and a half years from the date of notification of the Ninth Directive.
Consequently, it is unacceptable for a
time-limit to have been imposed in which to make a claim on the applicant
companies when, as the Court has previously found (in its judgments inS.A. Dangeville,
cited above;andS.A. Cabinet Diot andS.A. Gras Savoye v. France, nos.
49217/99 and 49218/99, 22 July 2003) no effective remedy was available
under domestic law. In that connection, the Court notes that the Conseil d'Etatdeparted
from its previous case-law in October 1996 thus affording an effective means of
obtaining a refund through the French administrative courts. The applicant
companieshad, however, lodged their claims several years earlier, on
20 December 1993, following the Paris Administrative Court of Appeal's
judgment of 1 July 1992, which had for the first time upheld such a claim (in
the S.A. Dangeville case). But while the applicant companies might legitimately
have considered that the Administrative Court of Appeal's judgment was capable
of making the domestic remedyeffective, it was nevertheless quashed by the Conseil
d'Etat.
In conclusion, the Court notes, firstly, that
the binding provisions of the Sixth Directive had still not been incorporated
into French law when the applicant companies lodged their claims and, secondly,
that although the initial decision indicating a departure from the previous
case-law was issued on 1 July 1992, ultimately it was not until the Conseil
d'Etat's decision of October 1996 that a change in the case-law was made.
The applicant companies had nevertheless brought
an action in the domestic courts at a time when their right was not only valid
under the applicable Community norms, but also unrecognised at the domestic
level by both the authorities and the administrative courts. In view of the
foregoing, the Court cannot accept the Government's arguments as justification
for imposing a limitation period on the applicant companies in the
circumstances of the case.
Thus, as regards the limitation period laid down
by Article L 190 of the Code of Tax Procedure, the Court notes that the
applicant companies' rights to receive payment were based on a Community norm
that was perfectly clear, precise and directly applicable. That right did not
disappear with the expiry of the limitation period laid down by domestic law
and relied on by the Government since (a) it was not in dispute that the
domestic law violated the directly applicable Community law and (b) the
limitation period related to a domestic remedy that was not effective.
The Court reiterates that the fact that the administrative
courts relied on that domestic limitation period cannot by itself justify a
failure to comply with the present requirements of European law (see, mutatis
mutandis, Delcourt v. Belgium, 17 January 1970, § 36, Series A no.
11, andS.A. Dangeville, cited above, § 47). It also notes in that
connection that an unreasonable construction of a procedural requirement which
preventsa claim for compensation being examined on the merits entails a breach
of the right to the effective protection of the courts(Miragall Escolano and
Othersv. Spain, nos. 38366/97, 38688/97, 40777/98, 40843/98, 41015/98,
41400/98, 41446/98, 41484/98, 41487/98 and 41509/98, § 37, ECHR 2001-I).
In the light of the foregoing, the Court
considers that the limitation period laid down by Article L 190 of the Code of
Tax Procedure could not negate a substantive right created by the Sixth
Directive (see, mutatis mutandis, S.A. Dangeville, cited above) and
that when they brought the proceedings the applicant companies had a valid
claim against the State for the VAT they had erroneously paid in respect of the
period 1 January to 30 June 1978. A claim of that nature “constituted an
asset” and therefore amounted to “a possession within the meaning of the first
sentence of Article 1, which was accordingly applicable in the present case” (see,
among other authorities,Pressos Compania Naviera S.A.and Othersv. Belgium,
20 November 1995, Series A no. 332, § 31; S.A. Dangeville, cited
above, § 48; and S.A. Cabinet Diot andS.A. Gras Savoye, cited above, § 26).
In any event, the Court considers that the
applicant companies had at least a legitimate expectation of being able to
obtain reimbursement of the disputed sum (Pine Valley Developments Ltd and
Othersv. Ireland, 29 November 1991, § 51, Series A no. 222; S.A.
Dangeville, cited above; and S.A. Cabinet Diot andS.A. Gras Savoye, cited
above).
2. The applicant companies' right to the peaceful
enjoyment of their possessions”
The Court notes that in its judgment in the S.A.
Dangeville case it found, firstly, that the interference with the peaceful
enjoyment of the applicant company's possessions was not required in the
general interest (§ 58) and, secondly, that both the negation of the claim
against the State and the absence of domestic procedures affording a sufficient
remedy to ensure the protection of the right to the peaceful enjoyment of one's
possessions had upset the fair balance that ought to have been maintained between
the demands of the general interest of the community and the requirements of
the protection of the individual's fundamental rights (§ 61; see, also,S.A.
Cabinet Diot andS.A. Gras Savoye, cited above, § 26).
Since the present case raises an identical
complaint the Court sees no reason to distinguish it from the previous cases it
has examined.
It follows that for the aforementioned reasons
the balance between the demands of the general interest of the community and
the requirements of the protection of the individual's fundamental rights has
been upset.
In conclusion, there has been a violation of
Article 1 of Protocol No. 1.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the
Convention provides:
“If the Court finds that there
has been a violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only partial reparation
to be made, the Court shall, if necessary, afford just satisfaction to the
injured party.”
A. Damage
Aon Conseil et Courtage sought 328,535.78 euros
(EUR) in respect of overpaid VATfor 1978 (EUR 314,324.94 by SGAP and EUR 14,210.84
by OGIA), together with EUR 664,961.37 in interest (EUR 636,198.42 due to SGAP and
EUR 28,762.95 to OGIA), making a total of EUR 993,497.15. Christian de Clarens claimed
reimbursement of EUR 147,423.26 in respect of overpaid VATfor 1978 and EUR 298,386.78
in interest, making a total of EUR 445,810.04.
The Government considered that the awards should
be EUR 168,440.35 to Aon Conseil et Courtage (EUR 161,335.35 in respect of
SGAP and EUR 7,105 in respect of OGIA) and EUR 73,712 to Christian de Clarens.
The Court considers that the most appropriate
form of reparation for the violation that has been found of Article 1 of
Protocol No. 1 would be reimbursement of the VAT erroneously paid for the
period 1 January to 30 June 1978 (seeS.A. Dangeville, cited above,
§ 70, andS.A. Cabinet Diot andS.A. Gras Savoye, cited above, § 32).
It notes that the amount of VAT paid for a single semester of 1978 was EUR 164,267.89
by Aon Conseil et Courtage and EUR 73,711.63 by Christian de Clarens. In the
light of the foregoing and ruling on an equitable basis in accordance with
Article 41 of the Convention, the Court awards these sums in respect of
pecuniary damage. It dismisses the remainder of the applicant companies'
claims.
B. Costs and expenses
Aon Conseil et Courtage claimed EUR 6,387.62 in
respect of SGAP'scosts (EUR 3,652.68 for the proceedings before the domestic
courts and EUR 2,734.94 for the proceedings before the Court) and EUR 9,682.98
in respect of OGIA'scosts (EUR 1,446.44 for the proceedings before the domestic
courts and EUR 8,236.54 for the proceedings before the Court), making a total
of EUR 16,070.60. Christian de Clarens sought EUR 10,408.86 (EUR 3,652.68 for
the proceedings before the domestic courts and EUR 6,756.18 for the proceedings
before the Court).
The Government considered that the awards should
be EUR 15,000 to Aon Conseil et Courtage and EUR 10,000 to Christian de Clarens.
Under the Court's case-law applicants may only
obtain the reimbursement of their costs and expenses to the extent that they
were genuinely and necessarily incurred and are reasonable in quantum.Further,
on finding a violation of the Convention, the Court will only award applicants
costs and expenses incurred in the domestic proceedings to the extent that they
were incurred to prevent or redress that violation. The domestic remedies
exercised by the applicant companies in the instant case fall into that
category. The Court accordingly awards the amounts claimed under this head,
namely EUR 5,099.12 to Aon Conseil et Courtage and EUR 3,652.68 to Christian de
Clarens.
It does not, however, consider the amounts claimed for the proceedings
before it reasonable in the circumstances of the case. Consequently, ruling on
an equitable basis in accordance with Article 41, it awards each of the two
applicant companies EUR 2,000 under this head.
C. Default interest
The Court considers it appropriate that the
default interest should be based on the marginal lending rate of the European
Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT
1. Holds unanimously that there has been a
violation of Article 1 of Protocol No. 1 in respect of Christian de
Clarens SA;
2. Holds by five votes to two that there has
been a violation of Article 1 of Protocol No. 1 in respect of Aon Conseil
et Courtage SA;
3. Holds by five votes to two
(a) that the respondent State is to pay, within
three months from the date on which the judgment becomes final in accordance
with Article 44 § 2 of the Convention, Aon Conseil et Courtage
EUR 164,267.89 (one hundred and sixty-four thousand two hundred and sixty-seven
euros and eighty-nine cents) in respect of pecuniary damage and EUR 7,099.12
(seven thousand and ninety-nine euros and twelve cents) in respect of costs and
expenses and Christian de Clarens S.A. EUR 73,711.63 (seventy-three thousand
seven hundred and eleven euros and sixty-three cents) in respect of pecuniary
damage and EUR 5,652.68 (five thousand six hundred and fifty-two euros and
sixty-eight cents) in respect of costs and expenses, plus any tax that may be
chargeable;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
4. Dismisses unanimously the remainder of the
applicant companies' claims for just satisfaction.
Done in French, and notified in writing on 25 January 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos
Rozakis
Registrar President
In accordance with Article 45 § 2 of the Convention and
Rule 74 § 2 of the Rules of Court, the joint partly dissenting opinion of Mr
Costa and Mr Kovler is annexed to this judgment.
C.L.R.
S.N.
JOINT PARTLY DISSENTING
OPINION OF JUDGES COSTA
AND KOVLER
(Translation)
1. The majority of the Chamber found that there had
been a violation of Aon Conseil et Courtages' rights under Article 1 Protocol
No. 1. We do not share that view.
2. In arriving at that conclusion, our colleagues
found that the authorities had not been legally entitled to impose on that
company – the first applicant – the four-year limitation period laid down by
Article L 190 of the Code of Tax Procedure for making its claim for the refund
of the amount of value added tax (VAT) it had paid in error.
3. However, having paid that tax on its 1978
transactions pursuant to Article 256 of the General Tax Code as worded at the
time Aon Conseil et Courtages waited until 20 December 1993before making a
request for a refund for the first time, that is more than fifteen years later
and well after the expiration of the four-year limitation period. Its position
is very different from that of the second applicant company, which also paid
VAT on its transactions relating to the same period but claimed a refund on
2 October 1978, thereby very quickly interrupting the limitation period.
Admittedly, it was only in 1992 that, in a
judgment on an appeal by S.A. Dangeville, a company in the same situation (seeS.A.
Dangeville v. France, no. 36677/97, ECHR 2002‑III), the
Administrative Court of Appeal held that Article 256 of the General Tax Code
could not apply as it was incompatible with the provisions of the Sixth
Community Directive on VAT, which France had implemented belatedly.
5. However, the clearly worded Article L. 190 of
the Code of Tax Procedure, which is cited at paragraph 27 of the present
judgment, allowed the first applicant company to avoid being caught by the
statute of limitations in respect of its claim for recovery of sums paid but
not due only if it made its claim – as the second applicant company and S.A.
Dangeville did – at the most four years before the date of the court decision
revealing the incompatibility of the legal rule applied in its case (Article 256)
with a higher-ranking rule (the Sixth Directive). This it failed to do.
6. While it would of course be possible to object
that the limitation period was too short and therefore in breach of the
Convention, we do not consider that to have been the case.
7. Firstly, in itsRoquette Frères S.A.judgment
of 28 November 2000, which is cited in paragraph 28 of the judgment in the
instant case, the Courtof Justice of the European Communities (CJEC) heldthat
Community law did not preclude the validityof Article L 190 of the French Code
of Tax Procedure. Even though the CJEC was not required to apply Article 1 of
Protocol No. 1 (indeed, that provision was not referred to in the request for a
preliminary ruling), we consider it unfortunate for there to be any hint of a
divergence of opinion between Europe's two highest courts, which are careful to
avoid such differences (see, for example, the Court's judgments in the cases ofMatthews
v. the United Kingdom [GC], no. 24833/94, ECHR 1999‑IandSociété
Colas Est and Othersv. France, no. 37971/97, ECHR 2002‑III, and,
respectively, the CJEC's judgments in the cases ofKingdom of Spain v. United
Kingdom, 12 September 2006, case C 145/04, andRoquette FrèresS.A.– a
separate case to that mentioned above –22 October 2002, case C-94/00; see also
the European Court of Human Rights' judgment in the case ofStec and Othersv.
the United Kingdom [GC], no. 65731/01, § 58, ECHR 2006‑...,
which expressly refers to the CJEC's judgment in Regina Virginia Hepple v
Adjudication Officer and Adjudication Officer v Anna Stec, case C 196-98).
Secondly,the Court has always accepted that
limitation periods, which serve to ensure legal certainty and fall within the
States' margin of appreciation, are compatible with the Conventionprovided they
are reasonable in length. Thus, inStubbings (Stubbings and Others v. the
United Kingdom, 22 October 1996, Reports of Judgments and Decisions
1996‑IV)the Courtfoundthat, notwithstanding the serious nature of the
case, a six-year limitation period did not violate the right of access to a
court even though it prevented minors who had been victims of sexual abuse from
claiming compensation in the civil courts.
Lastly, as regards the right of property, the
Court has held that the hope of recognition of the survival of an old property
right which it has long been impossible to exercise effectively cannot even
constitute a “possession” within the meaning of Article 1 of Protocol No. 1 (Malhous
v. the CzechRepublic [GC], no. 33071/96, ECHR2000-XII). That decision is
transposable, mutatis mutandis, to the claim of the first applicant
company, as it paid tax in 1978 and did not seek a refund until the end of 1993.
For these reasons, we consider that Article 1 of
Protocol No. 1 was not applicable ratione materiae in the case of Aon
Conseil et Courtages or, in the alternative, that there has been no violation
of that provision in its case.
