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Monday, March 28, 2022

TEDH (N.M. OTHERS V. FRANCE): INDEMNIZACIÓN POR ANOMALÍAS NO DETECTADAS EN DIAGNÓSTICO PRENATAL

In today’s Chamber judgment1 in the case of N.M. and Others v. France (application no. 66328/14)

the European Court of Human Rights held, unanimously, that there had been:

a violation of Article 1 of Protocol No. 1 (protection of property) of the European Convention on

Human Rights.


The case concerns the dismissal, by the administrative courts, of the arguments submitted by the

parents in their claim for compensation for the special costs arising from their child’s disability. This

disability had not been detected at the time of the prenatal diagnosis. Legislative provisions arising

from the Law of 4 March 2002, and codified under Article L. 114-5 of the Social Action and Family

Code (CASF) – which prohibited the inclusion of these costs when calculating the prejudice for which

compensation was payable, and which had entered into force after the child’s birth but prior to the

parents’ legal action for compensation – were applied to the dispute.


This case follows on from the cases of Maurice and Draon against France (Draon v. France [GC],

no. 1513/03, and Maurice v. France [GC], no. 11810/03).


The Court held, firstly, that the applicants could legitimately have expected to be able to obtain

compensation for the prejudice they had sustained, corresponding to the costs of caring for their

disabled child, as soon as that damage occurred, namely from the child’s birth, and that they had

therefore had a “possession” within the meaning of the first sentence of Article 1 of Protocol No. 1.

It then noted that, under the Constitutional Council’s decision no. 2010-2 QPC, all of the transitional

provisions requiring the retrospective application of Article L. 114-5 of the CASF had been repealed.

Although the abolition of these transitional provisions immediately left scope for application of the

rules of ordinary law governing application of the law over time, the Court found a divergence

between the interpretation adopted by the Conseil d’État and that adopted by the Court of

Cassation regarding the possibility of applying Article L. 114-5 of the CASF to events which arose

prior to the entry into force of the Law of 4 March 2002 (that is, 7 March 2002). Although in its

judgment of 15 December 2011, the Court of Cassation had ruled out the application of Article L.

114-5 of the CASF to events which had occurred prior to 7 March 2002, irrespective of the date on

which the action for compensation was brought, the Conseil d’Etat had settled the dispute in line

with its decision of 13 May 2011 which, for its part, had maintained a certain retrospective scope to

this provision.


The Court concluded that it was unable to find that the legality of the interference resulting from the

Conseil d’État’s application of Article L. 114-5 of the CASF in its decision of 31 March 2014 could be

derived from the settled and stabilised case-law of the domestic courts. In the Court’s view, the

retrospective interference with the applicants’ possessions could not therefore be regarded as

having been "provided for by law" within the meaning of Article 1 of Protocol No. 1.

1.

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