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You are here: BAILII >> Databases >> European Court of Human Rights >> PROCOLA v. LUXEMBOURG - 14570/89 [1995] ECHR 33 (28 September 1995)
URL: http://www.bailii.org/eu/cases/ECHR/1995/33.html
Cite as: (1996) 22 EHRR 193, 22 EHRR 193, [1995] ECHR 33

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In the case of Procola v. Luxembourg (1),

The European Court of Human Rights, sitting, in accordance with

Article 43 (art. 43) of the Convention for the Protection of Human

Rights and Fundamental Freedoms ("the Convention") and the relevant

provisions of Rules of Court A (2), as a Chamber composed of the

following judges:

Mr R. Ryssdal, President,

Mr A. Spielmann,

Mr J. De Meyer,

Mr R. Pekkanen,

Mr J.M. Morenilla,

Mr F. Bigi,

Mr G. Mifsud Bonnici,

Mr D. Gotchev,

Mr P. Kuris,

and also of Mr H. Petzold, Registrar,

Having deliberated in private on 28 April and 31 August 1995,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

1. The case is numbered 27/1994/474/555. The first number is the

case's position on the list of cases referred to the Court in the

relevant year (second number). The last two numbers indicate the

case's position on the list of cases referred to the Court since its

creation and on the list of the corresponding originating applications

to the Commission.

2. Rules A apply to all cases referred to the Court before the entry

into force of Protocol No. 9 (P9) and thereafter only to cases

concerning States not bound by that Protocol (P9). They correspond to

the Rules that came into force on 1 January 1983, as amended several

times subsequently.

_______________

PROCEDURE

1. The case was referred to the Court by the European Commission of

Human Rights ("the Commission") on 9 September 1994, within the

three-month period laid down by Article 32 para. 1 and Article 47

(art. 32-1, art. 47) of the Convention. It originated in an

application (no. 14570/89) against the Grand Duchy of Luxembourg lodged

with the Commission under Article 25 (art. 25) by an association under

Luxembourg law - the Agricultural Association for the Promotion of Milk

Marketing ("Procola") - and sixty-three of its members on

22 November 1988.

The Commission's request referred to Articles 44 and 48 (art. 44,

art. 48) and to the declaration whereby Luxembourg recognised the

compulsory jurisdiction of the Court (Article 46) (art. 46). The

object of the request was to obtain a decision as to whether the facts

of the case disclosed a breach by the respondent State of its

obligations under Article 6 (art. 6) of the Convention.

2. In response to the enquiry made in accordance with Rule 33

para. 3 (d) of Rules of Court A, the applicant association stated that

it wished to take part in the proceedings and designated the lawyer who

would represent it (Rule 30).

3. The Chamber to be constituted included ex officio

Mr A. Spielmann, the elected judge of Luxembourg nationality

(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the

President of the Court (Rule 21 para. 3 (b)). On 24 September 1994,

in the presence of the Registrar, the President drew by lot the names

of the other seven members, namely Mr J. De Meyer, Mr R. Pekkanen,

Mr J.M. Morenilla, Mr F. Bigi, Mr G. Mifsud Bonnici, Mr D. Gotchev and

Mr P. Kuris (Article 43 in fine of the Convention and Rule 21 para. 4)

(art. 43).

4. As President of the Chamber (Rule 21 para. 5), Mr Ryssdal, acting

through the Registrar, consulted the Agent of the Luxembourg Government

("the Government"), the applicant's lawyer and the Delegate of the

Commission on the organisation of the proceedings (Rules 37 para. 1 and

38). Pursuant to the order made in consequence, the Registrar received

the applicant association's and the Government's memorials on 5 January

and 20 January 1995 respectively. On 28 March the Secretary to the

Commission informed the Registrar that the Delegate would submit his

observations at the hearing.

5. In the meantime, on 17 March 1995, the Commission had produced

the file on the proceedings before it, as requested by the Registrar

on the President's instructions.

6. In accordance with the President's decision, the hearing took

place in public in the Human Rights Building, Strasbourg, on

24 April 1995. The Court had held a preparatory meeting beforehand.

There appeared before the Court:

(a) for the Government

Mr F. Hoffstetter, Senior Adviser, Ministry of Agriculture,

Viticulture and Rural Development, Agent,

Mr J. Welter, avocat,

Mrs A. Conzemius-Paccaud, Permanent Representative

of Luxembourg to the Council of Europe, Counsel;

(b) for the Commission

Mr A. Weitzel, Delegate;

(c) for the applicant association

Mr F. Entringer, avocat, Counsel.

The Court heard addresses by Mr Weitzel, Mr Entringer and

Mr Welter.

AS TO THE FACTS

I. The circumstances of the case

7. Procola is a dairy constituted as an agricultural association

under Luxembourg law. Its registered office is at Ingeldorf.

A. The origins of the case

8. Following the introduction of the "milk quota" system in the

member States of the European Community by EEC Regulations Nos. 856/84

and 857/84 of 31 March 1984, Luxembourg adopted, in a grand-ducal

regulation of 3 October 1984, the provisions incorporating the

Community rules into domestic law. A number of ministerial orders were

issued on 10 October 1984 allocating reference quantities for milk

purchases (i.e. the quantities in excess of which an additional levy

would be payable) to the four milk purchasers in the Grand Duchy, that

is to say the dairies purchasing milk from producers - including the

applicant association; the quantities were based on the figures for

milk collected in 1981.

9. The applicant association and two other milk purchasers appealed

to the Judicial Committee of the Conseil d'Etat against the decisions

fixing the reference quantities. In accordance with Article 177 of the

Treaty establishing the European Economic Community ("the EEC treaty"),

that court referred a number of questions to the Court of Justice of

the European Communities ("the Court of Justice") for a preliminary

ruling, which was given in a judgment of 25 November 1986.

10. In the light of the answers given by the Court of Justice, the

Conseil d'Etat held, in a judgment of 26 February 1987, that the choice

of 1981 as the reference year had led to discrimination between

purchasers, contrary to Article 40 para. 3 of the EEC treaty. The

impugned decisions were accordingly set aside and the case was referred

to the Minister of State for Agriculture for a fairer apportionment of

the reference quantities among the four dairies in Luxembourg by means

of a grand-ducal regulation.

11. On 27 May 1987 the Minister of State submitted a new draft

grand-ducal regulation under which the reference quantities were to be

allocated to the four milk purchasers on the basis of the milk

deliveries made to them in 1983. In order to meet Luxembourg's

obligations under Community law, it was proposed in the draft

regulation to make the new reference quantity system applicable not

only in the future but also retrospectively to previous milk-production

years, with effect from April 1984. The draft regulation was submitted

to the Conseil d'Etat for an opinion.

12. In a letter of 24 June 1987 the President of the Conseil d'Etat

drew the Prime Minister's attention to the fact that such rules could

be given retrospective effect only through legislation and not by means

of a regulation.

13. At the close of its deliberations of 2 July 1987 the Conseil

d'Etat proposed certain amendments and a single-clause bill giving the

future regulation retrospective effect from 2 April 1984, the date on

which the milk-quota system had come into force in the European

Community countries.

14. With certain amendments, the Minister of State's draft regulation

of 27 May 1987 became the Grand-Ducal Regulation of 7 July 1987 and the

bill drafted by the Conseil d'Etat on 2 July 1987 became the Act of

27 August 1987, which made this regulation applicable with

retrospective effect to "the twelve-month periods of application of the

additional levy on milk commencing respectively on 2 April 1984,

1 April 1985 and 1 April 1986". For these periods, paragraph 2 of the

single section of the Act provided: "Purchasers' reference quantities

shall be reallocated on the basis of the provisions of Article 3 of the

Grand-Ducal Regulation of 7 July 1987 referred to above, and the basic

and supplementary individual reference quantities shall be recalculated

on the basis of the relevant provisions of the same regulation."

15. On 21 September 1987 the Minister of State issued four

ministerial orders fixing the applicant association's milk quantities

for each of the four milk-production years between 2 April 1984 and

31 March 1988.

B. The applications for judicial review lodged with the Conseil

d'Etat

16. On 24 November 1987 Procola applied to the Judicial Committee of

the Conseil d'Etat for judicial review of each of those four orders on

the grounds that they adversely affected the association and its

suppliers because its reference quantities for the milk-production

years in question were too low. In its pleadings, in addition to

raising a number of grounds of appeal alleging the unlawfulness of the

Grand-Ducal Regulation of 7 July 1987 and breaches of several of its

provisions, the applicant association criticised its retrospective

application to milk-production years before the one which had begun on

1 April 1987. In the alternative, it asked the Judicial Committee to

refer a number of questions to the Court of Justice for preliminary

rulings, including one concerning the principle of non-retrospective

application.

17. In a judgment of 6 July 1988 the Judicial Committee dismissed the

applications in the following terms:

"While it is true that as a general rule a statute makes

provision only for the future, it is open to the legislature to

give retrospective effect to a statute, in so far as this is not

prohibited under the Constitution. Luxembourg was required to

fill the legal vacuum created by the Judicial Committee's

judgment of 26 February 1987 quashing the regulation, otherwise

it would have been in breach of its binding obligations under the

Treaty of Rome.

Under Article 189 of that treaty, Community regulations are

directly applicable. Consequently, Luxembourg was obliged to

legislate on the matter of milk levies for the periods from

2 April 1984 to 31 March 1987, and only Parliament, which had the

approval of the Community authorities, had the power to do so.

At all events, the penalties attaching to any failure on the part

of purchasers to comply with the quantities during the first,

second and third periods are no higher than those which would

have been payable under the previous legislation. The

difference, amounting to approximately 35 million [francs], is

to be borne by the State, with the agreement of the Community

authorities, so that the retrospective effect of the milk

quantities, far from causing the applicant association prejudice,

is in fact beneficial to it.

A plea of unlawfulness cannot succeed against a statute and this

ground must accordingly fail ..."

Four of the five members of the Judicial Committee had previously

taken part in drawing up the Conseil d'Etat's opinion on the draft

regulation and in framing the bill in issue.

II. Relevant law

A. The EEC rules and their implementation in Luxembourg

18. In order to regulate and stabilise the market in milk and milk

products, which was characterised by overproduction, the Council of

Ministers of the European Economic Community adopted Regulations (EEC)

Nos. 856/84 and 857/84 of 31 March 1984. These established in the

Community member States, for a five-year period commencing on

2 April 1984, a system of additional levies on all milk delivered in

excess of a guaranteed quantity, also known as the "reference

quantity".

Each member State was allocated a total reference quantity which

it then had to apportion among milk producers, under Formula A, or milk

purchasers (dairies) under Formula B. The reference quantities for

purchasers and producers were determined on the basis of the deliveries

they took or their production in 1981, 1982 or 1983, weighted by a

certain percentage fixed in such a way as not to exceed the guaranteed

quantity.

The additional levy, which was set at a certain percentage of the

target price for milk, was payable by producers or purchasers, as

appropriate, on all milk produced or collected in excess of the

reference quantity. Where a member State chose Formula B, purchasers

were to pass on the cost of the additional levy only to those producers

who had delivered a quantity of milk exceeding their quota.

19. Luxembourg opted for Formula B, and the measures for implementing

the Community rules were laid down in a grand-ducal regulation of

3 October 1984 and a number of ministerial orders of 10 October 1984

(see paragraph 8 above).

B. The Conseil d'Etat

20. At the time when the judgment complained of by the applicant

association was given, the second and third paragraphs of Article 76

of the Luxembourg Constitution, which govern the subject, provided:

"In addition to the Government there shall be a Council, whose

functions shall be to deliberate on draft legislation and any

amendments proposed thereto, determine administrative disputes

and give its opinion on any other question referred to it either

by the Grand Duke or pursuant to a statutory provision.

The organisation of this Council and the manner in which it is

to perform its functions shall be laid down by statute."

1. Membership

21. The Act of 8 February 1961, as amended on 26 July 1972, laid down

the organisation of the Conseil d'Etat. Section 1 provides:

"The Conseil d'Etat shall be composed of twenty-one councillors,

eleven of whom shall form the Judicial Committee.

The latter figure shall not include those members of the Reigning

Family who form part of the Conseil d'Etat."

The Act does not distinguish between the Judicial Committee and

the Conseil d'Etat proper with regard to the appointment of the Conseil

d'Etat's members (section 4). The members are all appointed by the

Grand Duke, who chooses them either directly or from a list of

candidates put forward by the Chamber of Deputies or the Conseil d'Etat

itself.

The members of the Judicial Committee are chosen from among the

members of the Conseil d'Etat (section 5).

22. Section 9 lays down the qualifying conditions for becoming a

member of the Conseil d'Etat. The same qualifying conditions apply to

the Judicial Committee, except that its members must also be doctors

of law or enjoy the rights appertaining to that title.

The duties of a member of the Conseil d'Etat are not full-time

and are incompatible only with serving as a member of the Government,

a Government adviser or a member of Parliament. Section 22 (2)

provides: "Members of the Judicial Committee may not take part in the

deliberations on cases which they have already dealt with in some other

capacity than as member of the Conseil d'Etat." It thus implies that

a councillor who has already had to deal with a case as a member of the

Conseil d'Etat is not prevented from dealing with the same case if it

comes before the Judicial Committee.

23. In principle, the term of office of a member of the Conseil

d'Etat ends only when he reaches the age-limit, which is at present 72.

2. Functions

24. The Conseil d'Etat has mainly advisory and judicial functions

(sections 7 and 8).

25. With regard to its advisory functions (section 27), the Conseil

d'Etat gives its opinion on all Government and private members' bills,

draft regulations on general administrative matters, and draft

regulations or orders required for the implementation of treaties.

26. As a judicial body, the Conseil d'Etat, acting through its

Judicial Committee, is the court of first and last instance in

administrative proceedings. Its judicial powers are restricted in two

respects. Firstly, it can only review the lawfulness of individual

administrative decisions, not general regulatory decisions; secondly,

except where there is an express statutory provision to the contrary

(section 29), the only remedy available against these decisions is

judicial review on the grounds of lack of competence, ultra vires,

abuse of authority or breaches of the substantive or procedural rules

protecting private interests (section 31).

3. Proposed reform

27. In 1989 Article 76 of the Constitution was amended. A bill at

present before Parliament is intended to bring about a radical reform

of this whole question, the aim being to separate the Conseil d'Etat's

advisory and judicial functions.

PROCEEDINGS BEFORE THE COMMISSION

28. Procola and sixty-three of its members, all farmers, applied to

the Commission on 22 November 1988. They complained of an infringement

of their right to an independent and impartial tribunal, secured in

Article 6 para. 1 (art. 6-1) of the Convention, on the ground that some

of the members of the Judicial Committee who ruled on Procola's

application for judicial review had previously given their opinion on

the lawfulness of the impugned provisions. They also argued that

retrospective application of the decisions fixing the milk quantities

was in breach of Article 7 (art. 7) of the Convention. Lastly, they

contended that the additional levies infringed their right to the

peaceful enjoyment of their possessions contrary to Article 1 of

Protocol No. 1 (P1-1).

29. On 1 July 1993 the Commission declared Procola's application

(no. 14570/89) admissible as regards the first complaint and

inadmissible as to the remainder. It declared the complaints submitted

by Procola's members inadmissible, on the ground that they had not

exhausted domestic remedies.

In its report of 6 July 1994 (Article 31) (art. 31), it expressed

the opinion by nine votes to six that there had been no violation of

Article 6 (art. 6) of the Convention. The full text of the

Commission's opinion and of the dissenting opinion contained in the

report is reproduced as an annex to this judgment (1).

_______________

1. Note by the Registrar: for practical reasons this annex will appear

only with the printed version of the judgment (volume 326 of Series A

of the Publications of the Court), but a copy of the Commission's

report is obtainable from the registry.

_______________

FINAL SUBMISSIONS TO THE COURT

30. In their memorial the Government asked the Court

"to hold that Article 6 para. 1 (art. 6-1) of the Convention is

not applicable to the case before the Court or, in the

alternative, that this provision (art. 6-1) was not violated".

31. The applicant's lawyer asked the Court

"to hold, as regards the merits of the case, that there has been

a violation of the European Convention for the Protection of

Human Rights as regards Article 6 para. 1 (art. 6-1);

to hold that the applicant's loss amounts to 4,456,453

[Luxembourg francs (LUF)], together with interest of

[LUF] 568,290, i.e. a total of [LUF] 5,024,743".

AS TO THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1) OF THE

CONVENTION

32. The applicant association complained that the Judicial Committee

of the Conseil d'Etat was not independent and impartial. It alleged

a violation of Article 6 para. 1 (art. 6-1) of the Convention, which

provides:

"In the determination of his civil rights and obligations ...,

everyone is entitled to a ... hearing ... by an independent and

impartial tribunal ..."

A. Applicability of Article 6 para. 1 (art. 6-1)

33. Procola argued that this provision (art. 6-1) was applicable in

the case. The Government and the Commission took the opposite view.

1. Whether there was a dispute concerning a right

34. The Government maintained that the application for judicial

review made to the Judicial Committee of the Conseil d'Etat was an

"objective" one (recours objectif) - that is to say that it did not

relate to a private right - directed against a decision applying

Community rules; it did not, therefore, concern a "contestation"

(dispute) between the parties to an action. If the Judicial Committee

had upheld the application, it could only have set aside the impugned

orders and remitted the case to the Minister of State, so that he could

take a fresh decision. It could not have ordered repayment of sums

paid without legal cause as, under Article 84 of the Constitution, only

the ordinary courts were empowered to determine civil rights.

Moreover, the Government continued, even if an application to the

ordinary courts had been possible, no decision could have been given

in Procola's favour, since the association as such had never had a

legally enforceable claim. The application could not have led to

either repayment of the additional levies to Procola or the award of

any compensation as, under the system adopted by Luxembourg, the levy,

although imposed on the purchaser, was passed on by the latter only to

those producers who had exceeded their quota (see paragraph 18 above).

In short, the proceedings could not have had any result affecting the

applicant's financial position.

35. The applicant association argued that unless the ministerial

orders were quashed it could not seek damages in the civil courts; and

only the Conseil d'Etat could quash them. The proceedings in the

Conseil d'Etat were thus decisive for a civil right, namely the right

to repayment of the fine for overproduction. Procola asserted that

under the Formula B system chosen by Luxembourg it was the party with

which the State had to have legal relations and conduct financial

dealings in the event of overproduction. This was evidenced by the

fact that the State had brought proceedings against the association to

secure payment of the fine each time the reference quantity had been

exceeded.

36. The Commission took the view that the application to the Conseil

d'Etat had been lodged in connection with a public-law dispute which

did not concern a private right of the applicant association. Its real

purpose was to secure a review in the abstract of the lawfulness of

measures taken by the public authorities.

37. The Court notes that before the Judicial Committee the parties

took opposite views on the question whether the ministerial orders

fixing milk quantities could be given retrospective effect. Procola

maintained that for the years from 1984 to 1987 no levy was payable,

since the previous rules had been set aside and it was impossible to

make the orders retrospective, whereas the Delegate of the State

maintained that the orders were lawful. The applicant association's

case was sufficiently tenable, since the Conseil d'Etat conducted a

detailed examination of the conflicting arguments (see the

Neves e Silva v. Portugal judgment of 27 April 1989, Series A

no. 153-A, p. 14, para. 37, and the Editions Périscope v. France

judgment of 26 March 1992, Series A no. 234-B, p. 65, para. 38).

Within the meaning of Article 6 (art. 6) of the Convention there

was without any doubt a dispute concerning the determination of a

right.

2. As to the civil nature of the right in issue

38. The Court reiterates that Article 6 para. 1 (art. 6-1) is

applicable where an action is "pecuniary" in nature and is founded on

an alleged infringement of rights which are likewise pecuniary rights,

notwithstanding the origin of the dispute and the fact that the

administrative courts have jurisdiction (see, among other authorities,

the Editions Périscope judgment, previously cited, p. 66, para. 40, and

the Beaumartin v. France judgment of 24 November 1994, Series A

no. 296-B, pp. 60-61, para. 28).

39. In order to satisfy itself that the proceedings were decisive for

a civil right, the Court considers it necessary to look at the

proceedings as a whole. Procola sought repayment of the fine for

overproduction of 4.5 million Luxembourg francs (LUF); the association

argued that it had paid this sum wrongly, on the ground that its

members had produced the milk during a period when there was a legal

vacuum and the Luxembourg Government were not entitled to hold them to

account for overproduction.

Admittedly, the application to the Conseil d'Etat could only

result in the annulment of the impugned orders, but that annulment

would have enabled the applicant association to bring proceedings in

the civil courts to recover the sum it considered to have been wrongly

paid. By lodging the application, Procola were using the only means

at their disposal - an indirect one - of attempting to obtain

reimbursement of the additional levies.

Having regard to the close connection between the proceedings

brought by Procola and the consequences that their outcome might have

had for one of its pecuniary rights, and for its economic activities

in general, the right in question was a civil one (see the Editions

Périscope judgment, previously cited, p. 66, para. 40; the Beaumartin

judgment, previously cited, pp. 60-61, para. 28; the Ortenberg v.

Austria judgment of 25 November 1994, Series A no. 295-B, pp. 48-49,

para. 28; and, by implication, the Van de Hurk v. the Netherlands

judgment of 19 April 1994, Series A no. 288, p. 16, para. 43).

In any event, as the applicant pointed out, the Commission took

the view in its decision on admissibility that the payment of an

additional levy to the national authorities could be construed as a

deprivation of possessions within the meaning of the first paragraph

of Article 1 of Protocol No. 1 (P1-1), and the right to peaceful

enjoyment of one's possessions is undoubtedly a civil right.

40. It follows that Article 6 para. 1 (art. 6-1) is applicable in the

case.

B. Compliance with Article 6 para. 1 (art. 6-1)

41. The applicant association pointed out that four of the five

members sitting on the Judicial Committee when it ruled on Procola's

application had previously sat on the advisory panel of the Conseil

d'Etat which had given its opinion on the draft Grand-Ducal Regulation

of 7 July 1987 and drafted a bill making that regulation retrospective.

In view of the opinions they had previously expressed, particularly in

the letter sent by the President of the Conseil d'Etat to the Prime

Minister on 24 June 1987 (see paragraph 12 above), the members of the

Judicial Committee could not have approached the question submitted to

them, namely whether it was lawful to apply the ministerial orders of

21 September 1987 retrospectively, with a completely open mind. In the

instant case there was neither objective nor subjective impartiality.

42. The Government observed that before the Commission Procola had

cast doubt only on the Judicial Committee's objective impartiality.

The complaint now raised about subjective impartiality, in support of

which no fresh evidence had been adduced, should therefore be rejected

as being new. In the instant case, they continued, it was quite true

that some members of the Judicial Committee had performed first an

advisory function - having given an opinion on the Grand-Ducal

Regulation of 7 July 1987 and suggested that the Government have the

Act of 27 August 1987 enacted - and then a judicial function.

Nevertheless, it would be incorrect to infer that the Conseil d'Etat

was not in a position to give an impartial ruling on the application.

In the Luxembourg legal system the Judicial Committee was bound to

dismiss an application directed against a statute, not because it had

earlier given its opinion on the draft but because in such a situation

it had no discretion to do otherwise.

43. The Court considers that in the instant case it is not necessary

to determine whether the Judicial Committee was an independent

tribunal. The applicant association did not put in doubt the method

of appointing the Conseil d'Etat's members and the length of their

terms of office or question that there were safeguards against

extraneous pressure.

44. The only issue to be determined is whether the Judicial Committee

satisfied the impartiality requirement of Article 6 (art. 6) of the

Convention, regard being had to the fact that four of its five members

had to rule on the lawfulness of a regulation which they had previously

scrutinised in their advisory capacity.

45. The Court notes that four members of the Conseil d'Etat carried

out both advisory and judicial functions in the same case. In the

context of an institution such as Luxembourg's Conseil d'Etat the mere

fact that certain persons successively performed these two types of

function in respect of the same decisions is capable of casting doubt

on the institution's structural impartiality. In the instant case,

Procola had legitimate grounds for fearing that the members of the

Judicial Committee had felt bound by the opinion previously given.

That doubt in itself, however slight its justification, is sufficient

to vitiate the impartiality of the tribunal in question, and this makes

it unnecessary for the Court to look into the other aspects of the

complaint.

46. It follows that there has been a breach of Article 6 para. 1

(art. 6-1).

II. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION

47. Under Article 50 (art. 50) of the Convention,

"If the Court finds that a decision or a measure taken by a legal

authority or any other authority of a High Contracting Party is

completely or partially in conflict with the obligations arising

from the ... Convention, and if the internal law of the said

Party allows only partial reparation to be made for the

consequences of this decision or measure, the decision of the

Court shall, if necessary, afford just satisfaction to the

injured party."

A. Pecuniary damage

48. Procola requested reimbursement of the LUF 4,456,453 fine for

overproduction, increased by LUF 568,290 interest, that had been

imposed on the association as a result of the retrospective application

of the Regulation of 7 July 1987. They argued that, logically, the

association should not have had to pay any fine in respect of the years

preceding the regulation's entry into force.

49. The Government said that only Procola's individual members could

claim to have sustained damage. They further submitted that the amount

in issue should be LUF 4,456,453, since the sum representing interest

had not been collected.

50. The Delegate of the Commission expressed the view that it was

difficult to speculate as to what the outcome of the dispute would have

been if the Judicial Committee had been constituted so as to afford all

the safeguards of an independent and impartial tribunal.

51. The Court likewise does not perceive any causal link between the

breach of Article 6 para. 1 (art. 6-1) and the dismissal of Procola's

application by the Conseil d'Etat. It therefore disallows the claim.

B. Costs and expenses

52. The applicant association, the Government and the Delegate of the

Commission left this matter to the Court's discretion. However, the

applicant association suggested that, in view of the complexity of the

case, the costs could be assessed at between 5 and 10% of the sum at

stake in the proceedings, that is to say between LUF 250,000 and

LUF 500,000.

53. Making an assessment on an equitable basis, as required by

Article 50 (art. 50), and in the light of the relevant criteria, the

Court awards Procola LUF 350,000.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Holds that Article 6 para. 1 (art. 6-1) of the Convention is

applicable in this case;

2. Holds that there has been a breach of Article 6 para. 1

(art. 6-1) of the Convention;

3. Holds that the respondent State is to pay the applicant

association, within three months, 350,000 (three hundred and

fifty thousand) Luxembourg francs for costs and expenses;

4. Dismisses the remainder of the claim for just satisfaction.

Done in English and in French, and delivered at a public hearing

in the Human Rights Building, Strasbourg, on 28 September 1995.

Signed: Rolv RYSSDAL

President

Signed: Herbert PETZOLD

Registrar



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