CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 6 octobre 2005

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display:inline-block } .sBA1E98D { width:258.79pt; display:inline-block } .s8C385EB3 { width:252.45pt; display:inline-block } .sFCD23A67 { margin-top:0pt; margin-bottom:12pt; text-indent:24.1pt; page-break-inside:avoid; page-break-after:avoid } .sFFD057F { margin-top:0pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .sC36A6361 { font-family:Arial; color:#000000 }     GRAND CHAMBER             CASE OF DRAON v. FRANCE   (Application no. 1513/03)                     JUDGMENT       STRASBOURG   6 October 2005     This judgment is final but may be subject to editorial revision. In the case of Draon v. France, The European Court of Human Rights, sitting as a Grand Chamber composed of:   Mr   L. Wildhaber , President ,   Mr   C.L. Rozakis ,   Mr   J.-P. Costa ,   Sir   Nicolas Bratza ,   Mr   G. Bonello ,   Mr   L. Caflisch ,   Mr   L. Loucaides,   Mr   C. Bîrsan,   Mr   P. Lorenzen,   Mr   K. Jungwiert,   Mr   V. Butkevych,   Mr   A.B. Baka,   Mr   M. Ugrekhelidze,   Mr   V. Zagrebelsky,   Mr   K. Hajiyev ,   Mrs   R. Jaeger ,   Mrs   D. Jočienė, judges , and Mr T. L. Early , Deputy Grand Chamber Registrar , Having deliberated in private on 23 March and 31 August 2005, Delivers the following judgment, which was adopted on the last ‑ mentioned date: PROCEDURE 1.     The case originated in an application (no. 1513/03) against the French Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two French nationals, Mr Lionel Draon and Mrs Christine Draon (“the applicants”), on 2 January 2003. 2.     The applicants were represented by Mr F. Nativi and Ms   H.   Rousseau-Nativi, lawyers practising in Paris. The French Government (“the Government”) were represented by their Agent, Mrs   Edwige Belliard, Director of Legal Affairs, Ministry of Foreign Affairs. 3.     The application concerns the birth of a child with a disability not detected during pregnancy on account of negligence in establishing a prenatal diagnosis. The applicants claimed compensation, but during the course of the proceedings the action was barred by new legislation applicable to pending cases. The applicants relied on Articles 6 § 1, 8, 13 and 14 of the Convention and Article 1 of Protocol No. 1, complaining of the retrospective nature of the new legislation and challenging its substantive provisions. 4.     The application was allocated to the Court’s Second Section (Rule 52 § 1 of the Rules of Court). On 9 September 2003 a Chamber of that Section decided to give notice of the application to the respondent Government (Rule 54 § 2 (b)) and to give it priority (Rule 41). 5.     On 6 July 2004 the application was declared partly admissible by a Chamber of the Second Section composed of the following judges: Mr   A.B.   Baka, Mr J.-P. Costa, Mr L. Loucaides, Mr K. Jungwiert, Mr   V.   Butkevych, Mrs W. Thomassen and Mr M. Ugrekhelidze, judges, and also of Mrs S. Dollé, Section Registrar. 6.     On 19 October 2004 the Chamber relinquished jurisdiction in favour of the Grand Chamber, neither of the parties having objected to relinquishment (Article 30 of the Convention and Rule 72). 7.     The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24 of the Rules of Court. The place of Mr David Thór Björgvinsson, who was originally to have been a member of that Grand Chamber, was taken by Mr   G. Bonello, substitute judge. Mr   B. Zupančič and Mrs E. Steiner, who were unable to take part in the final deliberations, were replaced by Mr   L. Caflisch and Mrs D. Jočienė, substitute judges (Rule 24 § 3). 8.     After consulting the parties, the President decided that the present case should be examined together with the case of Maurice v. France (no.   11810/03), also pending before the Grand Chamber (Rule 42 § 2). 9.     The applicants and the Government each filed written observations on the merits. 10.     A hearing in the present case and the above-mentioned Maurice case took place in public in the Human Rights Building, Strasbourg, on 23   March 2005 (Rule 59 § 3).   There appeared before the Court: (a)     for the Government Mr   J.-L. Florent , Deputy Director of Legal Affairs,     Ministry of Foreign Affairs,   Agent , Mrs   L. Notarianni , administrative court judge, on secondment     to the Legal Department of the Ministry of Foreign     Affairs, Human Rights Section,   Counsel , Mr   P. Didier-Courbin , Deputy Director responsible for     disabled persons, General Social Action     Department, Ministry of Health, Mrs   J. Villigier, central administrative assistant, General     Social Action Department, Ministry of Health, (Disabled Children’s Office), Mr   S. Picard and Mr   C. Simon , legal advisers, General Administration     of Personnel and Budget Department, Legal and     Litigation Division, Ministry of Health, Mr   F. Amegadjie , legal officer, European and International     Affairs Service, Ministry of Justice,   Advisers ; (b)     for the applicants Ms   H. Rousseau-Nativi , of the Paris Bar,   Mr   A. Lyon-Caen , lawyer with the right of audience in the Conseil d’Etat and the Court of Cassation   Counsel.   Mr   L. Draon , applicant, was also present at the hearing.   11.     The Court heard addresses by Ms Rousseau-Nativi, Mr Lyon-Caen and Mr Florent, and their replies to judges’ questions. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 12.     The applicants were born in 1961 and 1962 respectively and live in Rosny-sous-Bois. 13.     In the spring of 1996 Mrs Draon began her first pregnancy. The second ultrasound scan, carried out in the fifth month of pregnancy, revealed an anomaly in the development of the foetus. 14.       On 20 August 1996 an amniocentesis was carried out at Saint ‑ Antoine hospital, run by Assistance Publique - Hôpitaux de Paris (AP ‑ HP). The amniotic fluid sample was sent for analysis to the establishment’s cytogenetics laboratory (headed by Professor T.) with a request for karyotype and digestive enzyme analysis. In September 1996 T. informed the applicants that the amniocentesis showed the foetus had “a male chromosomal pattern with no anomaly detected”. 15.     R. was born on 10 December 1996. Very soon, multiple anomalies were observed, particularly defective psychomotor development. The examinations carried out led to the conclusion that there was a congenital cardiopathy due to a “chromosomal anomaly”. 16.       When informed of this T. admitted that his service had made the wrong diagnosis, the anomaly having already been entirely detectable at the time of the amniocentesis. He stated: “Concerning the child Draon R., ... we regret to have to say that there was indeed an asymmetry between the foetus’s two copies of chromosome 11; that anomaly or peculiarity escaped our attention”. 17.     According to the medical reports, R. presents cerebral malformations causing grave disorders, severe impairment and permanent total invalidity, together with arrested weight gain. This means that it is necessary to make material arrangements for his everyday care, supervision and education, including ongoing specialist and non-specialist treatment. 18.     On 10 December 1998 the applicants sent a claim to AP-HP seeking compensation for the damage suffered as a result of R.’s disability. 19.     In a letter dated 8 February 1999 AP-HP replied that it “[did] not intend to deny liability in this case” but invited the applicants to “submit an application to the Paris Administrative Court which, in its wisdom, will assess the damage for which compensation should be paid”. 20.     On 29 March 1999 the applicants submitted to the Paris Administrative Court a statement of their claim against AP-HP, requesting an assessment of the damage suffered. 21.     At the same time the applicants submitted to the urgent applications judge at the same court a request for the appointment of an expert and an interim award. 22.     In a decision of 10 May 1999 the urgent applications judge of the Paris Administrative Court made a first interim award of FRF 250,000 (EUR 38,112.25) and appointed an expert. He made the following points, among other observations: “[AP-HP] does not deny liability for the failure to diagnose the chromosomal anomaly which the boy R. is suffering from; ... having regard to the non-pecuniary damage, the disruption in the conditions of their lives and the special burdens arising for Mr and Mrs Draon from their child’s infirmity, AP-HP’s liability towards them in the sum of 250,000 francs may be considered, at the current stage of the investigation, not seriously open to challenge”. 23.     The expert filed his report on 16 July 1999 and confirmed the seriousness of R.’s state of health. 24.       On 14 December 1999, in a supplementary memorial on the merits, the applicants requested the Administrative Court to assess the amount of the compensation which AP-HP should be required to pay. 25.     AP-HP’s memorial in reply was registered on 19 July 2000. The applicants then filed a rejoinder and further documents concerning the modifications to their home and the equipment rendered necessary by R.’s state of health. 26.     In addition, the applicants again asked the urgent applications judge to make an interim award. In a decision of 11 August 2001 the urgent applications judge of the Paris Administrative Court made an additional interim award of FRF 750,000 (EUR 114,336.76) to the applicants “in view of the severity of the disorders from which the boy R. continues to suffer and the high costs of bringing him up and caring for him since 1996”. 27.     After being prompted several times, verbally and in writing, by the applicants, the Paris Administrative Court informed them that the case had been set down for hearing on 19 March 2002. 28.     On 5 March 2002 Law no. 2002-303 of 4 March 2002 was published in the Official Gazette of the French Republic. Section 1 of that Law, being applicable to pending proceedings, affected those brought by the applicants. 29.     In a letter of 15 March 2002 the Paris Administrative Court informed the applicants that the hearing had been put back to a later date and that the case was likely to be decided on the basis of a rule over which the court did not have discretion, since it applied to their claim by virtue of section 1 of the Law of 4 March 2002. 30.     In a judgment of 3 September 2002 the Paris Administrative Court, acting on a proposal made by the Government Commissioner, deferred its decision and submitted to the Conseil d’Etat a request for an opinion on interpretation of the provisions of the Law of 4 March 2002 and their compatibility with international conventions. 31.     On 6 December 2002 the Conseil d’Etat gave an opinion in the context of the litigation in progress ( avis contentieux) which is reproduced below (see paragraph 51). 32.     On the basis of that opinion, the Paris Administrative Court ruled on the merits of the case on 2 September 2003. It began with the following observations: “Liability The provisions of section 1 of the Law of 4 March 2002, in the absence of provisions therein deferring their entry into force, are applicable under the conditions of ordinary law following publication of that Law in the Official Gazette of the French Republic. Since the rules the Law lays down were framed by Parliament on general-interest grounds relating to ethical considerations, the proper organisation of the health service and the equitable treatment of all disabled persons, they are not incompatible with the requirements of Article 6 of [the Convention], with those of Articles 5, 8, 13 and 14 of [the Convention] or with those of Article 1 of Protocol No. 1 [to the Convention]. The general-interest grounds which Parliament took into consideration when framing the rules set out in the first three paragraphs of section 1 justify their application to situations which arose prior to the commencement of pending proceedings. It follows that those provisions are applicable to the present action, brought on 29 March 1999; The administrative courts do not have jurisdiction to rule on the constitutionality of legislation; [the applicants’] request that this court review the constitutionality of the Law of 4 March 2002 must therefore be refused; It appears from the investigation that in the fifth month of Mrs Draon’s pregnancy, after an ultrasound scan had shown a manifest problem affecting the growth of the foetus, she and Mr Draon were advised to consider the option of an abortion if karyotype analysis after an amniocentesis revealed a chromosomal abnormality. Mr   and Mrs Draon then decided to have that test performed at Saint-Antoine Hospital. They were informed by the hospital on 13 September 1996 that no anomaly of the foetus’s male chromosomal pattern had been detected. However, very soon after the baby’s birth on 10 December 1996 magnetic resonance imaging revealed a serious malformation of the brain due to a karyotypic anomaly; The report of the expert appointed by the court states that this anomaly was entirely detectable; failure to detect it therefore constituted gross negligence on AP-HP’s part which deprived Mr and Mrs Draon of the possibility of seeking an abortion on therapeutic grounds and entitles them to compensation under section 1 of the Law of 4   March 2002”. 33.     The court then assessed the damage sustained by the applicants as follows: “... firstly, ... the amounts requested in respect of non-specialist care, the specific costs not borne by social security, the costs of building a house suited to the child’s needs with a number of modifications to the home and the purchase of a specially adapted vehicle relate to special burdens arising throughout the life of the child from his disability and cannot therefore be sums for which [AP-HP] is liable; ... secondly, ... Mr and Mrs Draon are suffering non-pecuniary damage and major disruption in their lives, particularly their work, regard being had to the profound and lasting change to their lives brought about by the birth of a seriously disabled child; ... these two heads of damage must be assessed, in the circumstances of the case, at 180,000 euros; ... lastly ..., although Mr and Mrs Draon submitted that they could no longer holiday in a property they had purchased in Spain, they are not deprived of the right to use that property; consequently their claim for compensation for loss of enjoyment of real property must be rejected;...” 34.     The court concluded by ordering AP-HP to pay the applicants the sum of EUR 180,000, less the amount of the interim awards, interest being payable on the resulting sum at the statutory rate from the date of receipt of the claim on 14 December 1998, the interest due being capitalised on 14   December 1999 and subsequently on each anniversary from that date onwards. AP-HP was also ordered to pay the applicants the sum of EUR   3,000 in respect of costs not included in the expenses and to bear the cost of the expert opinion ordered by the president of the court. 35.     On 3 September 2003 the applicants appealed against the judgment. Their appeal is currently pending before the Paris Administrative Court of Appeal. II.     RELEVANT DOMESTIC LAW AND PRACTICE 36.     Before enactment of the Law of 4 March 2002 the legal position was established by the relevant case-law. A.     Relevant case-law before the Law of 4 March 2002 37.     An action for damages brought by the parents of a child born disabled and by the child itself may come within the jurisdiction of either the administrative courts or the ordinary courts, depending on the identity of the defendant. If the defendant is a private doctor or a private medical laboratory, the dispute is referred to the ordinary courts. Where, on the other hand, as in the instant case, a public hospital service is involved, the dispute falls within the jurisdiction of the administrative courts. 1.     The Conseil d’Etat 38.     The Conseil d’Etat gave judgment on 14 February 1997 (C.E., Sect., 14 February 1997, Centre hospitalier de Nice v. Quarez, Rec. p.44). Mrs   Quarez, then aged 42 years, had undergone an amniocentesis at her own request in order to verify the health of the foetus she was carrying. Although the result of that examination revealed no anomaly, she gave birth to a child suffering from trisomy 21, a condition detectable through the chromosome test carried out. The Conseil d’Etat held in the first place that the hospital which had carried out the examination had been guilty of negligence, since Mrs Quarez had not been informed that the results of the amniocentesis might be subject to a higher margin of error than usual on account of the conditions under which the examination had taken place. 39.     Secondly, a distinction was drawn between the disabled child’s entitlement to compensation and that of its parents. With regard to the disabled child’s right to compensation, the Conseil d’Etat ruled: “In deciding that a direct causal link existed between the negligence of the hospital centre ... and the damage incurred by the child M. from the trisomy from which he suffers, when it is not established by the documents in the file submitted to the court which determined the merits that the infirmity from which the child suffers and which is inherent in his genetic make-up was the consequence of an amniocentesis, the Lyon Administrative Court of Appeal made an error of law”. On the other hand, with regard to the parents’ right to compensation, the Conseil d’Etat noted: “By asking for an amniocentesis, Mrs Quarez had clearly indicated that she wished to avoid the risk of a genetic accident to the child she had conceived, whose probability, given her age at the time, was relatively high.” It went on to say that in those conditions the hospital’s negligence had “wrongly led Mr and Mrs Quarez to the certainty that the child conceived was not trisomic and that Mrs Quarez’s pregnancy could be taken normally to term” and that “this negligence, as a result of which Mrs Quarez had no reason to ask for a second amniocentesis with a view to abortion on therapeutic grounds under Article L.162-12 of the Public Health Code, [should] be regarded as the direct cause of the prejudice caused to Mr and Mrs Quarez by their child’s infirmity”. 40.     With regard to compensation, the Conseil d’Etat took into account, under the head of pecuniary damage, the “special burdens, particularly in terms of specialist treatment and education” made necessary by the child’s infirmity, and awarded the parents an annuity to be paid throughout the child’s life. It also ordered the hospital to pay compensation for their non ‑ pecuniary damage and the disruption to their lives. 41.     Thus the Conseil d’Etat did not accept that a disabled child was entitled to compensation on the sole ground that the disability had not been detected during the mother’s pregnancy. It did accept on the other hand that the parents of the child born with a disability were entitled to compensation and made an award not only in respect of their non-pecuniary damage but also in respect of the prejudice caused by the disruption to their lives and of pecuniary damage, specifying that the latter included the special burdens which would arise for the parents from their child’s infirmity (expenditure linked to specialist treatment and education, assistance from a helper, removal to a suitable home or conversion of their present home, etc.). 42.     The judgment did not attract particular comment and led to a line of case-law followed thereafter by the administrative courts. 2.     The Court of Cassation 43.     The case-law of the ordinary courts was laid down by the Court of Cassation on 17 November 2000 (Cass, Ass. Plén., 17 November 2000, Bull. Ass. Plén., no. 9) in a judgment which was widely commented on (the Perruche judgment). In the Perruche case a woman had been taken ill with rubella at the start of her pregnancy. Having decided to terminate the pregnancy if the foetus was affected, she took tests to establish whether she was immunised against the disease. Because of negligence on the part of both her doctor and the laboratory, she was wrongly informed that she was immunised. She therefore decided not to terminate the pregnancy and gave birth to a child which suffered from grave disabilities resulting from infection with rubella in the womb. The Court of Cassation held: “Since the negligence on the part of the doctor and the laboratory in performing the services for which they had contracted with Mrs X. prevented her from exercising her choice of terminating her pregnancy in order not to give birth to a disabled child, the child may claim compensation for the damage resulting from that disability and caused by the negligence found.” Thus, contrary to the Conseil d’Etat , the Court of Cassation accepted that a child born disabled could himself claim compensation for the prejudice resulting from his disability. In this case therefore account was taken of the pecuniary and non-pecuniary damage suffered by both the child and the parents, including the special burdens arising from the disability throughout the child’s life. 44.     It thus appears that in the same circumstances both the Court of Cassation and the Conseil d’Etat base their approach on a system of liability for negligence. However, the Court of Cassation recognises a direct causal link between the medical negligence and the child’s disability, and the prejudice resulting from that disability for the child itself. The Conseil d’Etat does not recognise that link but considers that the negligence makes the hospital liable vis-à-vis the parents on account of the existence of a direct causal link between that negligence and the damage they have sustained. Both lines of case-law allow compensation to be paid in respect of the special burdens arising from the disability throughout the child’s life. However, since the Conseil d’Etat considers that damage to have been sustained by the parents, whereas the Court of Cassation considers that it is sustained by the child, there may be significant differences in the nature and amount of such compensation, depending on whether the case-law of the former or the latter court is being followed. 45.     The judgment of 17 November 2000 was upheld several times by the Court of Cassation, which reaffirmed the principle of compensation for the child born disabled, subject to proof, where appropriate, that the medical conditions for a voluntary termination of pregnancy on therapeutic grounds were satisfied (Cass., Ass. plén., three judgments of 13 July 2001, BICC, no. 542, 1 October 2001; see also Cass., Ass. plén., two judgments of 28   November 2001, BICC, 1 February 2002). 46.     The Perruche judgment drew numerous reactions from legal theorists, but also from politicians and from associations of disabled persons and practitioners (doctors, obstetrical gynaecologists and echographers). The last-mentioned group interpreted the judgment as obliging them to provide a guarantee, and the insurance companies raised medical insurance premiums. 3.     Liability for negligence 47.     Both the Conseil d’Etat and the Court of Cassation took as their starting point a system of liability for negligence. In French law, under the general rules on the question, the right to compensation for damage can be upheld only if the conditions for liability are first satisfied. That means that there must be prejudice (or damage), negligence and a causal link between the damage and the negligence. More particularly, with regard to the liability of a public authority, for compensation to be payable the prejudice, which it is for the victim to prove, must be certain. Loss of opportunity constitutes certain prejudice, provided that the opportunity was a serious one. In the present case the prejudice resulted from a lack of information, or inadequate or incorrect information, about the results of an examination or analysis. In such a case, before the Law of 4 March 2002 was enacted, negligence falling short of gross negligence was sufficient. As to the relation between cause and effect, a direct causal link was established between the hospital’s negligence and the parents’ prejudice (see the above ‑ mentioned Quarez judgment). 48.     Still in the sphere of administrative law, the amount of compensation is governed by the general principle of full compensation for damage (neither impoverishment nor enrichment of the victim). Compensation may take the form of a capital sum or an annuity. According to the principle of the equal validity of claims for all heads of damage, both pecuniary damage and non-pecuniary damage confer entitlement to compensation. B.     Law no. 2002-303 of 4 March 2002 on patients’ rights and the quality of the health service, published in the Official Gazette of the French Republic on 5   March 2002 49.     The Law of 4 March 2002 put an end to the position established by the case-law mentioned above, of both the Conseil d’Etat and the Court of Cassation alike. Its relevant parts provide as follows: Section 1 “I.   No one may claim to have suffered damage by the mere fact of his or her birth. A person born with a disability on account of medical negligence may obtain compensation for damage where the negligent act directly caused the disability or aggravated it or prevented steps from being taken to attenuate it. Where the liability of a health-care professional or establishment is established vis-à-vis the parents of a child born with a disability not detected during the pregnancy by reason of gross negligence ( faute caractérisée ), the parents may claim compensation in respect of their damage only. That damage cannot include the special burdens arising from the disability throughout the life of the child. Compensation for the latter is a matter for national solidarity. The provisions of the present sub-section I shall be applicable to proceedings in progress, except for those in which an irrevocable decision has been taken on the principle of compensation. II.     Every disabled person shall be entitled, whatever the cause of his or her disability, to the solidarity of the national community as a whole. III.     The National Advisory Council for Disabled Persons shall be charged, in a manner laid down by decree, with assessing the material, financial and non-material situation of disabled persons in France, and of disabled persons of French nationality living outside France and receiving assistance by virtue of national solidarity, and with presenting all proposals deemed necessary to Parliament, with the aim of ensuring, through an ongoing pluri-annual programme, that assistance is provided to such persons ...” 50.     These provisions entered into force “under the conditions of ordinary law following publication of the Law in the Official Gazette of the French Republic” (see paragraph 51 below) [1] . Law no. 2002-303 was published in the Official Gazette on 5 March 2002 and it therefore came into force on 7   March 2002. C.     The opinion given by the Judicial Assembly of the Conseil d’Etat on 6 December 2002 under the Administrative Disputes (Reform) Act (the Law of 31 December 1987) (extracts) 51.     The Conseil d’Etat observed in particular: “...II.     The date of the Law’s entry into force: The liability criteria set out in the second sub-paragraph of paragraph I of section   1 were enacted in favour of persons born with disabilities resulting from medical negligence whether that negligence directly caused the disability, aggravated it or made it impossible to take steps to attenuate it. They were laid down with sufficient precision to be applied by the relevant courts without the need for further legislation to clarify their scope. The different liability criteria defined in the third sub-paragraph of paragraph I of section 1 were enacted in favour of the parents of children born with a disability which, on account of gross negligence on the part of a medical practitioner or health ‑ care establishment, was not detected during pregnancy. They are sufficiently precise to be applied without the need for further legislative provisions or regulations. Admittedly, they bar inclusion of the damage consisting in the special burdens arising from the disability throughout the child’s life in the damage for which the parents can obtain compensation, and provide that such damage is to be made good through reliance on national solidarity. But the very terms of the Law, interpreted with the aid of its drafting history, show that Parliament intended to exclude compensation for that head of damage on the ground that, although there was a causal link between negligence and damage, that link was not such as to justify making the person who committed the negligent act liable for the resulting damage. In providing that this type of damage should be made good by reliance on national solidarity, Parliament did not therefore make implementation of the rules on liability for negligence which it had introduced subject to the enactment of subsequent legislation laying down the conditions under which national solidarity would be mobilised to assist disabled persons. It follows that, since the Law does not contain provisions for the deferred entry into force of section 1, and since in addition Parliament’s intention, as revealed by the Law’s drafting history, was to make it applicable immediately, the provisions of section 1 came into force under the conditions of ordinary law following the Law’s publication in the Official Gazette of the French Republic. III.     Law no. 2002-303’s compatibility with international law (1) ... The object of section 1 of the Law of 4 March 2002 is to lay down a new system of compensation for the damage suffered by children born with disabilities and by their parents, differing from the system which had emerged from the case-law of the administrative and ordinary courts. The new system provides for compensation, by means of an award to be assessed by the courts alone, for the damage directly caused to the person born disabled on account of medical negligence and the damage directly caused to the parents of the child born with a disability which, on account of gross medical negligence, was not detected during pregnancy. It prevents children born with a disability which, on account of medical negligence, was not detected during pregnancy from obtaining from the person responsible for the negligent act compensation for the damage consisting in the special burdens arising from the disability throughout their lives, whereas such compensation had previously been possible under the case-law of the ordinary courts. It also prevents the parents from obtaining from the person responsible for the negligent act compensation for the damage consisting in the special burdens arising from their child’s disability throughout its life, whereas such compensation had previously been possible under the case-law of the administrative courts. Lastly, it makes compensation for other heads of damage suffered by the child’s parents subject to the existence of gross negligence, whereas the case-law of the administrative and ordinary courts had formerly been based on the existence of negligence falling short of gross negligence. This new system, which was put in place by Parliament on general-interest grounds relating to ethical considerations, the proper organisation of the health service and the equitable treatment of all disabled persons, is not incompatible with the requirements of Article 6 § 1 of [the Convention], with those of Articles 5, 8, 13 and 14 of [the Convention], with those of Article 1 of Protocol No. 1 [to the Convention] or with those of Articles 14 and 26 of the Covenant on Civil and Political Rights. (2) The last sub-paragraph of paragraph I of section 1 makes the provisions of paragraph I applicable to pending proceedings “except for those in which an irrevocable decision has been taken on the principle of compensation”. The general-interest grounds taken into account by Parliament when it laid down the rules in the first three sub-paragraphs of paragraph I show, in relation to the points raised in the request for an opinion, that the intention behind the last sub-paragraph of paragraph I was to apply the new provisions to situations which had arisen previously and to pending proceedings, while rightly reserving final judicial decisions.” D.     French national solidarity towards disabled persons 1.     Situation before February 2005 52.     French legislation (see Law no. 75-534 of 30 June 1975 on orientation in favour of disabled persons, which set up the basic framework, and later legislation) provides compensatory advantages to disabled persons based on national solidarity in a number of fields (such as the right to education for disabled children and adults, technical and human assistance, financial assistance, etc.). In particular, the families of disabled persons are entitled to a special education allowance ( Allocation d’éducation spéciale – “the AES”). This is a family benefit paid from the family allowance funds, provided both the child and its parents are resident in France. The AES is granted by decision of the Special Education Board of the département in which the claimant lives, after the file has been studied by a multidisciplinary technical team. First the Special Education Board takes formal note of the child’s disability and assesses it. For entitlement to the AES, the level of disability found must at least exceed 50%. Where the disability exceeds 80%, entitlement to the AES is automatic; if the disability is assessed at between 50% and 80%, payment of the allowance is not automatic. It is subject to the child’s need for pedagogical, psychological, medical, paramedical and other forms of assistance. The AES is a two-level benefit: the basic allowance plus top-up payments. The first level is automatically payable where the conditions mentioned above are satisfied. The basic rate of AES is EUR 115 per month (the figure supplied by the Government on 16 March 2003). Where the child’s state of health requires substantial expenditure or the assistance of a third person, this may then confer entitlement to one of the six levels of AES top-up payments, which are added to the basic rate. The first five top-up payments depend on the level of expenditure required by the child’s state of health, the time for which the assistance of a third person is necessary, or a combination of both. The sixth level of top-up payment is for the most severe cases, where the child’s state of health requires the assistance of a third person all through the day and the families have to provide constant supervision and treatment. 2.     Changes made by Law no. 2005-102 of 11 February 2005 on equal rights and opportunities, participation and citizenship for disabled persons, published in the Official Gazette of the French Republic on 12 February 2005 53.     The Law of 11 February 2005 emerged from a legislative process launched as far back as July 2002 with the intention of reforming the system of disability compensation in France. It was pointed out in particular that following the enactment of the Law of 4 March 2002 it was necessary to legislate again “to give effective substance to national solidarity” (see the Information Report produced on behalf of the Senate’s Social Affairs Committee by Senator P. Blanc, containing 75 proposals for amending the Law of 30 June 1975, appended to the record of the Senate’s sitting on 24   July 2002, p. 13). 54.     The new law makes a number of substantial changes. In particular, it includes for the first time in French law a definition of disability and introduces a new “compensatory benefit” to be added to existing forms of assistance. 55.     To that end, the Law of 11 February 2005 amends the Social Action and Family Code. Its relevant provisions are worded as follows: Title I: General provisions Section 2 “I.     ... A disability, within the meaning of the present Law, is any limitation of activity or restriction on participation in life in society suffered within his or her environment by any person on account of a substantial, lasting or permanent impairment of one or more physical, sensory, mental, cognitive or psychological functions, a multiple disability, or a disabling health disorder. ... Every disabled person shall be entitled to solidarity from the whole national community, which, by virtue of that obligation, shall guarantee him or her access to the fundamental rights of all citizens, and the full exercise of citizenship. The State shall act as the guarantor of equal treatment for disabled persons throughout the national territory and shall lay down objectives for pluriannual action plans. ... II. – 1.     The first three sub-paragraphs of the first paragraph of section 1 of Law no.   2002-303 of 4 March 2002 on patients’ rights and the quality of the health service shall become Article L. 114-5 of the Social Action and Family Code. 2.     The provisions of Article L. 114-5 of the Social Action and Family Code, as amended by sub-paragraph 1 of the present paragraph II, shall be applicable to proceedings in progress on the date of the entry into force of the above-mentioned Law no. 2002-303 of 4 March 2002, except for those in which an irrevocable decision has been taken on the principle of compensation.” ... Title III: Compensation and resources Chapter 1: Compensation for the consequences of disability Section 11 “... A disabled person shall be entitled to compensation for the consequences of his or her disability whatever the origin or nature of the impairment, or his or her age or lifestyle. That compensation shall consist in meeting his or her needs, including nursery care in early childhood, schooling, teaching, education, vocational insertion, adaptations of the home or workplace necessary for the full exercise of citizenship and of personal autonomy, developing or improving the supply of services, in particular to enable those around the disabled person to enjoy respite breaks, developing mutual support groups or places in special establishments, assistance of all kinds to the disabled person or institutions to make it possible to live in an ordinary or adapted environment, or regarding access to the specific procedures and institutions dealing with the disability concerned or the resources and benefits accompanying implementation of the legal protection governed by Title XI of Book 1 of the Civil Code. The above responses, adapted as required, shall take into account the care or accompaniment necessary for disabled persons unable to express their needs alone. The forms of compensation required shall be recorded in a statement of needs drawn up in the light of the needs and aspirations of the disabled person as expressed in his or her life plan, written by himself or herself or, failing that, where he or she is unable to express an opinion, with or for him or her by his or her legal representative.” Section 12 Compensatory benefit “... I.     – Every disabled person stably and regularly resident in metropolitan France ... above the age at which entitlement to the disabled child’s education allowance [formerly the AES] begins ..., whose age is below the cut-off point to be laid down by decree and whose disability matches the criteria to be laid down by decree, taking into account in particular the nature and scale of the forms of compensation required in the light of his or her life plan, shall be entitled to a compensatory benefit which shall take the form of a benefit in kind payable, at the wishes of the beneficiary, either in kind or in money. ... III. – The element of the benefit mentioned in point 3 of Article L. 245-3 [of the Social Action and Family Code] may also be claimed, under cond