European Court of Human Rights - case of Procola v. Luxembourg (1995) (excerpts)

European Court of Human Rights - case of Procola v. Luxembourg (1995) (excerpts)


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


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


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.


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


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

(art. 6-1).