Cantoni v. France (45/1995/551/637) 15 November 1996: Foreseeability of the law

Summary
Article 7 of the Convention

Reiteration of the case-law: the term "law" in Article 7 alludes to same concept as when other articles of the Convention use that term - concept comprises statutory law and case-law and implies qualitative requirements, notably those of accessibility and foreseeability.
Fact that Article L. 511 of the Public Health Code was based almost word for word on Community Directive 65/65 did not remove it from ambit of Article 7 of the Convention.
Legislative technique of categorisation often leaves grey areas at the fringes of definition - penumbra of doubt in relation to borderline cases not in itself enough to make a provision incompatible with Article 7, provided that it proves to be sufficiently clear in large majority of cases.
Case-law of the lower courts: there were divergencies - applicant had not indicated whether decisions classified products as medicinal products by virtue of their function or by virtue of their presentation, and, in the latter case, whether presentation had been the same on each occasion - even assuming that decisions dealt with identical cases, questions before lower courts principally questions of fact.
Court of Cassation had always either confirmed decisions of courts below classifying parapharmaceutical products as medicinal or quashed decisions denying that classification; it had never upheld a decision by a lower court finding that such a product fell outside notion of medicinal product.
Foreseeability of the law: requirement may be satisfied even if person concerned has to take appropriate advice to assess, to a degree reasonable in the circumstances, consequences that a given act may entail.

Conclusion: no violation (unanimously).

I. Particular circumstances of the case
7. Mr Michel Cantoni, a French national who was born in 1947, is the manager of a supermarket owned by the Euromarché chain at Sens (Yonne).

A. The proceedings in the Sens Criminal Court
8. In 1988 criminal proceedings were brought, at the instigation of the Yonne Pharmacists' Association and several individual pharmacists, against the applicant and other managers of supermarkets in the region for unlawfully selling pharmaceutical products. He had sold in his shop aqueous eosin at 1% strength, 70% modified alcohol, 10-volume hydrogen peroxide, vitamin C (tablets of 500 mg and sachets of powder of 1000 mg), inhalations made out of plant essences, pocket inhalers, antiseptic sprays and mineral supplements.
In their defence the applicant and his fellow accused maintained that the products in question were not medicinal products within the meaning of Article L. 511 of the Public Health Code (see paragraph 18 below) and were accordingly not covered by the pharmacists' monopoly.

9. On 30 September 1988 the Sens Criminal Court found the applicant guilty as charged, fined him 10,000 francs and ordered him to pay damages of 1 franc to each of the civil parties. After considering the products in question individually, it took the view that they were medicinal products, in some cases on account of their function and in others on account of their presentation

PROCEEDINGS BEFORE THE COMMISSION
22. Mr Cantoni lodged his application with the Commission (application no. 17862/91) on 26 November 1990. He complained that the statutory definition of medicinal product lacked sufficient clarity and precision to satisfy the requirements of Article 7 § 1 of the Convention.

23. The Commission declared the application admissible on 10 January 1994. In its report of 12 April 1995 (Article 31), it expressed the opinion, by fifteen votes to nine, that there had been a violation of that provision.

FINAL SUBMISSIONS TO THE COURT
24. In their memorial to the Court, the Government "called for the application to be dismissed".

25. At the hearing the applicant's lawyers requested the Court to hold that Article L. 511 of the Public Health Code "[was] not sufficiently precise to protect the rights of individuals in France".

AS TO THE LAW

ALLEGED VIOLATION OF ARTICLE 7 OF THE CONVENTION

26. The applicant complained of a violation of Article 7 of the Convention, which is worded as follows:

"1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

2. This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations."

He maintained that the definition of medicinal product contained in Article L. 511 of the Public Health Code was very imprecise and left a wide discretion to the courts. The Court of Cassation's case-law in this field was marked by arbitrariness and a lack of certainty which were themselves directly responsible for the conflicting classifications given to parapharmaceutical products by the lower courts. This state of affairs still persisted and concerned all the substances in question, whether hydrogen peroxide, 70% strength alcohol or vitamin C. The case-law of the Court of Justice of the European Communities was not particularly helpful because it left it to the national courts to decide on a case-by-case basis whether a substance should be classified as a medicinal product and referred to notions that themselves lacked precision and were not sufficiently technical.
In short, the definition found in the legislation and the case-law failed to afford the requisite foreseeability and accessibility. It followed that Mr Cantoni could not reasonably have been expected to appreciate, before putting the products in question up for sale, what constituted the material element of the offence in respect of which he was prosecuted.

27. The Commission in substance subscribed to the applicant's view. It observed that, although the criteria developed by the Convention institutions with regard to other provisions could be transposed to the field of application of Article 7, that provision nevertheless required that they be applied more strictly.

28. Referring to the case-law of the Court, the Government argued that a law could be formulated in relatively general terms making it possible for its provisions to be adapted, through the process of interpretation, to changing situations. Even the most perfectly drafted law required a judge to clarify its limits and Article L. 511 of the Public Health Code was no exception.
The definition given in Article L. 511 was based in particular on extensive case-law concerning the notion of medicinal product and was no more open to criticism than any other statutory definition. Indeed it was actually far more precise than many of the definitions to be found in the Criminal Code. Above all the legislature had no alternative but to have recourse to such a definition because to date no more satisfactory definition of medicinal product had been established. The only other solution - the drawing up of exhaustive lists - was not practicable because in this field there were thousands of different products and their number varied on an almost daily basis. A list would therefore never correspond to the reality. Indeed this explained why in its Directive 65/65 the Council of Ministers of the European Economic Community had adopted the French approach, a solution for which the majority of the States of the European Union had subsequently opted. A finding that Article L. 511 was defective would therefore amount to making the same finding in respect of Directive 65/65.
In addition, the definition of medicinal product had given rise to hardly any problems in the criminal courts until the end of the nineteen eighties. The disputes that occurred at that time had been created artificially and deliberately by supermarket chains. They had succeeded in disorientating some of the lower courts, but not the Court of Cassation, which had applied the same principles for more than a century.

29. As the Court has already held, Article 7 embodies, inter alia, the principle that only the law can define a crime and prescribe a penalty (nullum crimen, nulla poena sine lege) and the principle that the criminal law must not be extensively construed to an accused's detriment, for instance by analogy. From these principles it follows that an offence must be clearly defined in the law. This requirement is satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts' interpretation of it, what acts and omissions will make him criminally liable.
When speaking of "law" Article 7 alludes to the very same concept as that to which the Convention refers elsewhere when using that term, a concept which comprises statutory law as well as case-law and implies qualitative requirements, notably those of accessibility and foreseeability (see, as the most recent authority, the S.W. and C.R. v. the United Kingdom judgments of 22 November 1995, Series A nos. 335-B and 335-C, pp. 41-42, § 35, and pp. 68-69, § 33, respectively). In the present case only that last aspect is in issue.

30. The fact, pointed to by the Government, that Article L. 511 of the Public Health Code is based almost word for word on Community Directive 65/65 (see paragraph 12 above) does not remove it from the ambit of Article 7 of the Convention.

31. As the Court has already had occasion to note, it is a logical consequence of the principle that laws must be of general application that the wording of statutes is not always precise. One of the standard techniques of regulation by rules is to use general categorisations as opposed to exhaustive lists. The need to avoid excessive rigidity and to keep pace with changing circumstances means that many laws are inevitably couched in terms which, to a greater or lesser extent, are vague. The interpretation and application of such enactments depend on practice (see, among other authorities, the Kokkinakis v. Greece judgment of 25 May 1993, Series A no. 260-A, p. 19, § 40).

32. Like many statutory definitions, that of "medicinal product" contained in Article L. 511 of the Public Health Code is rather general (see paragraph 18 above). When the legislative technique of categorisation is used, there will often be grey areas at the fringes of the definition. This penumbra of doubt in relation to borderline facts does not in itself make a provision incompatible with Article 7, provided that it proves to be sufficiently clear in the large majority of cases. The role of adjudication vested in the courts is precisely to dissipate such interpretational doubts as remain, taking into account the changes in everyday practice.
The Court must accordingly ascertain whether in the present case the text of the statutory rule read in the light of the accompanying interpretive case-law satisfied this test at the relevant time.

33. In the applicant's submission, other solutions were available to the authorities, such as recourse to exhaustive lists of medicinal products. It is, however, not for the Court to express a view on the appropriateness of methods chosen by the legislature of a Contracting State; its task is confined to determining whether they are in conformity with the Convention.

34. Nor is the Court persuaded by the argument based on the decisions of the lower courts cited by the applicant and concerning the type of "borderline" product for the sale of which he was convicted. There were indeed divergencies in the decisions of the lower courts (see paragraph 20 above). According to the Government, these may be explained essentially by the fact that the comparisons of decisions did not take account of prosecutions brought in respect of different concentrations of the products in question.
The Court notes in the first place that the applicant did not indicate whether the decisions cited classified these products as medicinal products by virtue of their function or by virtue of their presentation, and, in the latter case, whether the presentation was the same on each occasion.
Even assuming that the decisions dealt with identical cases, the questions before the lower courts were principally questions of fact. For the first category of decisions, concerning products regarded as medicinal by virtue of their function, it was essentially a matter of establishing the current state of scientific knowledge. For the second category, that is decisions relating to products regarded as medicinal by virtue of their presentation, the courts aimed to gauge the impression gained by the averagely well-informed consumer.
Moreover, there is, in the Court's view, one decisive consideration. From, at the latest, 1957 onwards the Court of Cassation has always either confirmed the decisions of the courts below classifying a parapharmaceutical-type product as medicinal or quashed decisions which denied that classification. It has never upheld a decision by a lower court finding that such a product fell outside the notion of medicinal product (see paragraph 21 above). Thus, well before the events in the present case, the Court of Cassation had adopted a clear position on this matter, which with the passing of time became even more firmly established.

35. The Court recalls that the scope of the notion of foreseeability depends to a considerable degree on the content of the text in issue, the field it is designed to cover and the number and status of those to whom it is addressed (see the Groppera Radio AG and Others v. Switzerland judgment of 28 March 1990, Series A no. 173, p. 26, § 68). A law may still satisfy the requirement of foreseeability even if the person concerned has to take appropriate legal advice to assess, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see, among other authorities, the Tolstoy Miloslavsky v. the United Kingdom judgment of 13 July 1995, Series A no. 316-B, p. 71,

§ 37). This is particularly true in relation to persons carrying on a professional activity, who are used to having to proceed with a high degree of caution when pursuing their occupation. They can on this account be expected to take special care in assessing the risks that such activity entails.
With the benefit of appropriate legal advice, Mr Cantoni, who was, moreover, the manager of a supermarket, should have appreciated at the material time that, in view of the line of case-law stemming from the Court of Cassation and from some of the lower courts, he ran a real risk of prosecution for unlawful sale of medicinal products.

36. There has accordingly been no breach of Article 7.

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