EHRM, 06-10-2005, nr. 11810/03

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.

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’.

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.

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.).

The judgment did not attract particular comment and led to a line of case-law followed thereafter by the administrative courts.

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.

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.

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).

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.

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).

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.

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.

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).

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.

To that end, the Law of 11 February 2005 amends the Social Action and Family Code. Its relevant provisions are worded as follows:

The new compensatory benefit is initially payable in full to persons over the age at which entitlement to the AES (renamed ‘disabled child's allowance’ by the new legislation — see section 12 above) begins. With regard to children, section 13 of the Law of 11 February 2005 provides:

The entry into force of the Law of 11 February 2005 is subject to publication of the implementing decrees. Section 101 provides:

According to the information supplied by the Government, the new compensatory benefit should come into force on 1 January 2006. It is expected that it will be payable in full to disabled children by 12 February 2008. In the meantime, children will apparently receive only part of the benefit: only the costs of adapting a disabled child's home or vehicle, or his or her additional transport costs, can already be financed by the new system.

The Court reiterates that, according to its case-law, an applicant can allege a violation of Article 1 of Protocol No. 1 to the Convention only in so far as the impugned decisions relate to his ‘possessions’ within the meaning of that provision. ‘Possessions’ can be ‘existing possessions’ or assets, including, in certain well-defined situations, claims. For a claim to be capable of being considered an ‘asset’ falling within the scope of Article 1 of Protocol No. 1, the claimant must establish that it has a sufficient basis in national law, for example where there is settled case-law of the domestic courts confirming it. Where that has been done, the concept of ‘legitimate expectation’ can come into play.

As regards the concept of ‘legitimate expectation’, one aspect of this was illustrated in the above-mentioned case of Pressos Companía Naviera S.A. and Others, which concerned claims for damages arising from accidents to shipping allegedly caused by the negligence of Belgian pilots. Under the Belgian law of tort, claims came into being as soon as damage had occurred. The Court classified these claims as ‘assets’ attracting the protection of Article 1 of Protocol No. 1. It went on to note that, on the basis of a series of judgments of the Court of Cassation, the applicants could argue that they had a ‘legitimate expectation’ that their claims deriving from the accidents in question would be determined in accordance with the general law of tort.

The Court did not expressly state in the Pressos Companía Naviera S.A. and Others case that the ‘legitimate expectation’ was a component of, or was attached to, the property right claimed. However, it was implicit in the judgment that no such expectation could come into play in the absence of an ‘asset’ falling within the ambit of Article 1 of Protocol No. 1, which in that case was a compensation claim. The ‘legitimate expectation’ identified in the Pressos Companía Naviera S.A. and Others case did not in itself constitute a proprietary interest; it related to the way in which the claim qualifying as an ‘asset’ would be treated under domestic law, and in particular to the reliance on the fact that the established case-law of the national courts would continue to be applied in respect of damage which had already occurred.

In a line of cases the Court has found that the applicants did not have a ‘legitimate expectation’ where it could not be said that they had a currently enforceable claim that was reasonably established. … The Court's case-law does not contemplate the existence of a ‘genuine dispute’ or an ‘arguable claim’ as a criterion for determining whether there is a ‘legitimate expectation’ protected by Article 1 of Protocol No. 1. … The Court takes the view that where the proprietary interest is in the nature of a claim it may be regarded as an ‘asset’ only where it has a sufficient basis in national law, for example where there is settled case-law of the domestic courts confirming it (see Kopecký v. Slovakia[GC], no. 44912/98, §§ 35 and 48 to 52, ECHR 2004-IX).

In order to determine whether there was a possession in the present case, the Court may have regard to the domestic law in force at the time of the alleged interference. This was a system of liability for negligence requiring the establishment of prejudice (or damage), negligence, and a causal link between damage and negligence. The Court notes that neither AP-HP nor the Government denied that switching the applicants' test results with those of another family constituted negligence. The only point in dispute is the causal link between the hospital's negligence and the damage suffered by the applicants. In that connection, AP-HP considered that there was no such link because, even if the results had not been switched, the prenatal diagnosis communicated to the applicants would have been uncertain on account of the presence of maternal blood in the sample taken from Mrs Maurice. As AP-HP's liability had not been established, the applicants, in the Government's submission, were not entitled to automatic compensation and could accordingly not plead a ‘legitimate expectation’.

The Court cannot accept that argument. It notes that the national courts unambiguously established, both in the proceedings under the urgent procedure and in the main proceedings, and at all stages of those proceedings, the existence of a direct causal link between the negligence and the prejudice sustained. The courts held that in the present case AP-HP's negligence had wrongly led the applicants to the certainty that their unborn child was not affected by infantile spinal amyotrophy and that the pregnancy could be taken normally to term, whereas they had clearly expressed their wish to avoid the risk of a third genetic accident. As a result of the negligence thus committed there was no reason to request any further examination of Mrs Maurice with a view to termination of the pregnancy on therapeutic grounds, which would certainly have been the case if the reliability of the diagnosis had been in doubt. In reaching that finding the domestic courts based themselves at first on the above-mentioned Quarez judgment and later on the provisions of the Law of 4 March 2002, which had come into force in the meantime, and which did not, moreover, alter the conditions for establishing the causal link between the negligence, even gross negligence, and the damage sustained by the parents of the child born with a disability.

The conditions for establishing AP-HP's liability on the basis of the Quarez judgment were therefore indeed satisfied, and the applicants accordingly had a claim amounting to an ‘asset’. As to the way in which that claim would have been treated in domestic law had it not been for the enactment of the law complained of, the Court considers that, account being taken of the Quarez judgment given by the Conseil d'Etat on 14 February 1997 and the settled case-law on the question established since then by the administrative courts, the applicants could legitimately expect to be able to obtain compensation for the prejudice they had sustained, including the special burdens arising from their child's disability throughout her life.

In the Court's opinion, before the enactment of the law complained of the applicants had a claim which they could legitimately expect to be determined in accordance with the ordinary law of liability for negligence, and therefore a ‘possession’ within the meaning of the first sentence of Article 1 of Protocol No. 1 to the Convention, which is accordingly applicable in the case.

The applicants referred to the argument they had previously put forward before the Court to the effect that before the Law of 4 March 2002 came into force they had a compensation claim which amounted to a ‘possession’. The Law of 4 March 2002 had infringed their right to the peaceful enjoyment of that possession by creating an unjustified inequality of treatment between the parents of children whose disabilities had not been detected before birth on account of negligence, like the applicants, for whom compensation for the special burdens arising from the disability throughout the child's life was a matter of national solidarity alone, and the victims of other negligent acts which had caused disability, to whom the principles of the ordinary law of tort would continue to apply. Such a difference in treatment was unjustified in the applicants' submission since the two situations were essentially similar, both being concerned with compensation for prejudice resulting from a disability caused by negligence. In addition, the applicants submitted that no general-interest or public-interest considerations could justify the discriminatory treatment resulting from the new legislation.

The Government maintained that, as previously submitted, the applicants did not have a ‘possession’ within the meaning of Article 1 of Protocol No. 1 to the Convention, so that that provision was not applicable in the case. Consequently, since the alleged discrimination did not affect a right protected by the Convention, Article 14 could not be relied on.

The Government submitted, in the alternative, that the two categories were not in the same situation. Where the disability had been directly caused by medical negligence, the negligence preceded the disability, was the cause of it and was therefore the original source of the prejudice sustained by the parents through the birth of a disabled child. In the applicants' case, the negligence had not been the direct cause of the disability, which already existed. The only prejudice it had occasioned lay in not having an abortion, or in not having the possibility of aborting. As the causal links between the medical negligence and the disability were different in the two cases, they — rightly, in the Government's opinion — formed the rationale for two different sets of liability rules. It could not therefore be concluded that there had been discrimination since the situations were not the same.

Lastly, the Government argued that reliance on national solidarity to provide assistance with the special burdens arising from the disability of children in C.'s situation was not discriminatory since, like the others, they had the benefit of extensive support measures. In addition, the Government considered that the difference in treatment between the two situations was reasonably proportionate to the legitimate objectives of the Law of 4 March 2002.

Relying on the Court's case-law (particularly Stran Greek Refineries and Stratis Andreadis v. Greece, judgment of 9 December 1994, and Zielinski and Pradal and Gonzalez and Others, cited above), the applicants alleged that the provisions of the Law of 4 March 2002 disregarded the rule that the principle of the rule of law and the notion of fair trial (in particular the principle of the equality of arms) precluded any interference by the legislature with the administration of justice designed to influence the judicial determination of a dispute, save on compelling grounds of the general interest. They argued that no compelling grounds of the general interest justified the retrospective provisions complained of. They submitted that there was no need to define the precise nature of the Law of 4 March 2002 since it did constitute retrospective legislative intervention of the type regularly criticised by the Court in its case-law. The presence of the State as a party in the dispute was not required for that case-law to apply. In any event, in the present case, the State was a party at one remove, since AP-HP was a public administrative establishment, and therefore exercised delegated State power. Lastly, the applicants contested the argument that national solidarity made good the prejudice for which they had not been compensated, since the existing provisions for the assistance of disabled persons were inadequate and future measures uncertain, and in any case belated and ineffective as regards compensating for the special burdens arising from their child's disability.

The Government submitted that the present case was to be distinguished from those previously examined by the Court in connection with the question of ‘legislative validations’, and particularly from the cases of Stran Greek Refineries and Stratis Andreadis and Zielinski and Pradal and Gonzalez and Others, cited above. The law complained of was different in nature and could not be classified as ‘validating’ legislation nor be compared to those previously criticised by the Court. The object of the Law of 4 March 2002 had not been to frustrate actions going through the courts but rather, following the debate on the Perruche judgment, to clarify liability rules which were causing difficulties. Intervening independently of any particular dispute, in a field which was appropriate for legislative intervention, and without interfering either in pre-existing contractual relations or with the proper administration of justice, Parliament had enacted a law which was not really retrospective but essentially interpretative. Moreover, the State was not in any way a party in the dispute which had given rise to the present case, nor was it defending its own interests. It followed that the legislature's intervention did not amount to interference and had not been intended to influence the outcome of the dispute. Furthermore, even if it were accepted that there had been such interference, it was justified since the Law of 4 March 2002 pursued several legitimate objectives, to which the Conseil d'Etat had drawn attention in its opinion of 6 December 2002 (set out in paragraph 75 above). Lastly, the Government repeated their argument that there was a ‘reasonable relationship of proportionality’ between the objective pursued by the legislature and the means it had employed. It emphasised the level of assistance provided by way of national solidarity, referring not only to the measures already taken domestically but also to those planned for the future.

The applicants asserted that Article 8 of the Convention proclaimed the right to a normal family life and was therefore applicable to the present case, regard being had in particular to the Court's extensive view of the question. They argued that the Law of 4 March 2002 had infringed that right and constituted interference with its exercise. But none of the conditions required for such interference to be compatible with the Convention, namely that it should be in accordance with the law, in pursuit of a legitimate aim and necessary, had been satisfied. In the first place, the legislation was neither clear nor precise, contrary to the requirements established by the Court's case-law, in that the reference to national solidarity remained vague and imprecise. Secondly, and above all, the interference did not pursue a legitimate and compelling objective. In particular, the considerations linked to improving the organisation of the health service, chief among which was the concern to avoid increases in insurance premiums for doctors and health-care establishments, could not justify giving these immunity in respect of their negligent acts or omissions. As regards the State's positive obligation, this could not be considered to have been discharged since, by depriving C. and her parents of a remedy whereby they could obtain compensation for the damage consisting in the special burdens arising from her disability, the legislature had prevented the family's interests from being protected practically and effectively.

At the hearing the applicants also invoked, for the first time, Article 14 of the Convention taken together with Article 8, in connection with the right to a normal family life. They asserted that the law complained of introduced unjustified discrimination between the parents of children born disabled as a result of negligence by a doctor who had failed to detect the disability during the mother's pregnancy, who could not obtain full reparation for the consequences of such negligence, like the applicants, and the parents of disabled children who were able to impute the damage to a third party and obtain full reparation.

As their main argument, the Government contested the applicability of Article 8 of the Convention in the present case. Relying on the Court's case-law (citing Marckx v. Belgium, judgment of 13 June 1979, Series A no. 31), they distinguished between patrimonial rights which, by their nature, had a connection with family life (such as successions and voluntary dispositions) and those which had only an indirect link with family life, like the right to compensation for medical negligence. Accepting that Article 8 applied to the latter, and in particular to the present case, would bring within the scope of that provision any material claim a family might have, even one having nothing to do with the family structure. Even though, as the Government accepted, the question whether or not the costs arising from C.'s disability would be reimbursed was likely to affect the life of the applicants' family, it did not have any bearing on the patrimonial relations between parents and children.

Even if the Court were to take the view that Article 8 was applicable in the case, the Government further submitted that no interference had been established. Even if that were so, the interference would be in pursuit of a legitimate aim and necessary in a democratic society, regard being had in particular to the legitimate objectives pursued by the Law of 4 March 2002.

While the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, it does not merely require the State to abstain from such interference: there may in addition be positive obligations inherent in effective ‘respect’ for family life. The boundaries between the State's positive and negative obligations under this provision do not always lend themselves to precise definition; nonetheless, the applicable principles are similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and the community as a whole, and in both contexts the State is recognised as enjoying a certain margin of appreciation (see, for example, Nuutinen v. Finland, no. 32842/96, 27 June 2000, § 127, and Kutzner v. Germany, no. 46544/99, 26 February 2002, §§ 61 and 62). Furthermore, even in relation to the positive obligations flowing from the first paragraph, ‘in striking [the required] balance the aims mentioned in the second paragraph may be of a certain relevance’ (see Powell and Rayner v. the United Kingdom, judgment of 21 February 1990, Series A no. 172, § 41).

‘Respect’ for family life … implies an obligation for the State to act in a manner calculated to allow ties between close relatives to develop normally (see Marckx, cited above, § 45). The Court has held that a State is under this type of obligation where it has found a direct and immediate link between the measures requested by an applicant, on the one hand, and his private and/or family life on the other (see Airey v. Ireland, judgment of 9 October 1979, Series A no. 32, § 32; X and Y v. the Netherlands, judgment of 26 March 1985, Series A no. 91, p. 11, § 23; López Ostra v. Spain, judgment of 9 December 1994, Series A no. 303-C, p. 55, § 55; Guerra and Others v. Italy, judgment of 19 February 1998, Reports 1998-I, p. 227, § 58; Botta v. Italy, judgment of 24 February 1998, Reports 1998-I, § 35; and Zehnalova and Zehnal v. the Czech Republic (dec.), no. 38621/97, ECHR 2002-V).

However, since the concept of respect is not precisely defined, States enjoy a wide margin of appreciation in determining the steps to be taken to ensure compliance with the Convention with due regard to the needs and resources of the community and of individuals (see Abdulaziz, Cabales and Balkandali v. the United Kingdom, judgment of 28 May 1985, Series A no. 94, § 67, and Zehnalova and Zehnal, cited above).

At the same time, the Court reiterates the fundamentally subsidiary role of the Convention. The national authorities have direct democratic legitimation and are, as the Court has held on many occasions, in principle better placed than an international court to evaluate local needs and conditions (see, for example, Handyside v. the United Kingdom, judgment of 7 December 1976, Series A no. 24, p. 22, § 48, and Hatton and Others v. the United Kingdom[GC], no. 36022/97, § 97, ECHR 2003-VIII). In matters of general policy, on which opinions within a democratic society may reasonably differ widely, the role of the domestic policy-maker should be given special weight (see James and Others v. the United Kingdom, judgment of 21 February 1986, Series A no. 98, p. 32, § 46, where the Court found it natural that the margin of appreciation ‘available to the legislature in implementing social and economic policies should be a wide one’).

In the present case, the applicants complained both of unjustified interference and of inaction on the part of the State, in that it had not set up machinery to provide effective compensation for the special burdens occasioned by their child's disability.

The first question to arise is whether Article 8 of the Convention is applicable, that is to say whether the measures taken by the respondent State in relation to disabled persons have anything to do with the applicants' right to lead a normal family life.

However, the Court does not consider it necessary in the present case to determine that issue since, even supposing that Article 8 of the Convention may be considered applicable, it considers that the situation complained of by the applicants did not constitute a breach of that provision.

It notes that section 1 of the Law of 4 March 2002 altered the existing legal position on the question of medical liability. In response to the Perruche judgment and the stormy nation-wide debate which ensued, reflecting the major differences of opinion on the question within French society, the French parliament, after consulting the various persons and interest groups concerned, decided to intervene to establish a new system of compensation for the prejudice sustained by children born with disabilities and their parents, different from the one resulting from the case-law of the administrative and civil courts. One of the main effects of the new rules established in consequence, spelled out by the Conseil d'Etat in its opinion of 6 December 2002, is that parents may no longer obtain compensation from the negligent party for damage in the form of the special burdens arising from their children's disabilities throughout their lives. These rules were the result of comprehensive debate in Parliament, in the course of which account was taken of legal, ethical and social considerations, and concerns relating to the proper organisation of the health service and the need for fair treatment for all disabled persons. As the Conseil d'Etat pointed out in the opinion already mentioned, Parliament based its decision on general-interest grounds, and the validity of those grounds cannot be called into question by the Court (see paragraph 85 above). In doing so it was pursuing at least one of the legitimate aims set out in the second paragraph of Article 8 of the Convention, namely protection of health or morals.

Admittedly, being immediately applicable, the provisions in issue retrospectively deprived the applicants of an essential part of the compensation to which they could lay claim, and the Court can only repeat that finding (see paragraphs 86 to 94 above).

However, in deciding that the costs of caring for disabled children should be borne by reliance on national solidarity, the French legislature took the view that it was better to deal with the matter through the legislation laying down the conditions for obtaining compensation for disability than to leave to the courts the task of ruling on actions under the ordinary law of liability. Moreover, the Court notes that the previous legal dispensation, which had obtained since 1975, was thoroughly overhauled by the Law of 11 February 2005 (see paragraphs 54 to 59 above). It is certainly not for the Court to take the place of the national authorities in assessing the advisability of such a system or in determining what might be the best policy in this difficult social sphere. This is an area where the Contracting States are to be recognised as enjoying a wide margin of appreciation (see, mutatis mutandis, Powell and Rayner v. the United Kingdom, cited above, § 44).

Consequently, there is no serious reason for the Court to declare contrary to Article 8, in either its positive or its negative aspect, the way in which the French legislature dealt with the problem or the content of the specific measures taken to that end. It cannot reasonably be claimed that the French parliament, by deciding to reorganise the system of compensation for disability in France, overstepped the wide margin of appreciation left to it on the question or upset the fair balance that must be maintained.

There has accordingly been no violation of Article 8 of the Convention.

As regards the complaint under Article 14 of the Convention taken together with Article 8, the Court notes that it was raised for the first time before it at the hearing on 23 March 2005 (see paragraph 111 above). It is therefore not covered by the decision on admissibility of 6 July 2004 which delimits the scope of the Court's jurisdiction (see, among other authorities, Göç v. Turkey[GC], no. 36590/97, § 36, ECHR 2002-V, and Assanidze v. Georgia[GC], no. 71503/01, § 162, ECHR 2004-II). It follows that this complaint falls outside the scope of the case as submitted to the Grand Chamber.