Violation of P1-1;No separate issue under Art.14+P1-1;No separate issue under Art. 6-1;No violation of Art. 13;No violation of Art. 8;Costs and expenses partial award - Convention and domestic proceedings;Just satisfaction reserved

The applicants were born in DATE and DATE respectively and live in Bouligny .

In DATE the applicants had their first child , PERSON , who was born with type CARDINAL infantile spinal amyotrophy , a genetic disorder causing atrophy of the muscles .

NORP In DATE PERSON became pregnant again . A prenatal diagnosis conducted at ORG revealed that there was a risk of the unborn child ’s being afflicted by the same genetic disorder . The applicants chose to terminate the pregnancy .

In DATE PERSON , who was pregnant for the third time , again requested a prenatal diagnosis . This was conducted at ORG , which sent the sample to the molecular diagnosis laboratory of ORG , run by Assistance publique - GPE ( “ AP - HP ” ) . In DATE , in the light of that laboratory ’s diagnosis , ORG assured the applicants that the unborn child was not suffering from infantile spinal amyotrophy and was “ healthy ” .

C. was born on DATE . DATE after her birth it became apparent that she too suffered from infantile spinal amyotrophy . On DATE a report by the head of the laboratory at ORG in GPE revealed that the mistaken prenatal diagnosis was the result of transposing the results of the analyses relating to the applicants’ family and those of another family , caused by the switching of CARDINAL bottles .

According to medical reports , C. presents grave disorders and objective signs of functional deficiency – frequent falls from which she is unable to get up unassisted , unsteady walk , tiredness at any effort . She needs the assistance of another person ( particularly at TIME in order to turn her over so as to prevent her from suffocating , since she is unable to turn over alone ) . She can not sit on her own and moves around with an electric scooter . She has to receive treatment several times a week and can not be admitted to school because the latter is not suitably equipped . Her family doctor has expressed the view that “ one must have reservations until the time of puberty both about motor and respiratory functions and about possible orthopaedic deformations ” . These facts gave rise to several sets of proceedings .

On DATE the applicants submitted a claim to ORG - HP seeking compensation for the pecuniary and non - pecuniary damage suffered as a result of ORG ’s disability .

They also submitted to the urgent applications judge at ORG a request for an interim award and for an expert to be appointed . The latter was appointed by an order issued on DATE .

In an order made on DATE , the urgent applications judge at ORG dismissed the request for an interim award on the ground that , as the expert had not yet delivered his report , “ AP - HP ’s obligation to pay [ could ] not be regarded as indisputable ” .

The expert submitted his report on DATE , concluding that on the occasion of the prenatal diagnosis conducted at the AP - HP laboratory there had not been medical negligence , because “ the techniques employed [ had been ] consistent with the known scientific facts ” , but there had been “ negligence in the organisation and functioning of the service causing the transposition of results CARDINAL families tested at the same time ” .

The applicants lodged a further application , asking for the hospital to be ordered to pay them an advance of MONEY ( ORG ) . In an order made on DATE , the urgent applications judge at ORG ordered ORG to pay an advance of ORG CARDINAL,CARDINAL . He observed in particular :

“ ... it is apparent from the investigation that in DATE , at ORG , a sample of amniotic fluid was taken from [ PERSON ] ... ; that the analysis of that amniotic fluid was carried out by Assistance publique - GPE ; that while the results given [ to the applicants ] indicated that the unborn child was not suffering from infantile spinal amyotrophy , they related to a sample taken from another family tested at the same time and did not mention that , the sample of amniotic fluid having been contaminated by the mother ’s blood , they were attended by uncertainty ; that [ the applicants ] are therefore entitled to argue that Assistance publique - GPE was guilty of negligent acts or omissions ; that those negligent acts wrongly led [ the applicants ] to the certainty that the child conceived was not suffering from infantile spinal amyotrophy and that [ PERSON ] pregnancy could be carried to term in the normal way ; that these negligent acts must be regarded as the direct causes of the damage sustained by [ the applicants ] from the disorder from which C. suffers ; and that , this being the case , the existence of the obligation claimed by [ the applicants ] is not seriously open to challenge . ”

AP - HP appealed . In its submissions it argued that , while the transposition of the analyses had indeed constituted negligence in the organisation and functioning of the public hospital service , the only result of that negligence had been to deprive the applicants of information apt to enlighten their decision to seek a termination of the pregnancy . On the basis of the above - mentioned expert report , ORG submitted that even if the samples had not been transposed , the results would have been uncertain , having regard to the presence of the mother ’s blood in the sample taken . Consequently , the applicants would not in any case have had reliable information available to them .

NORP In a judgment of DATE , ORG varied the order issued by the urgent applications judge , reducing from ORG CARDINAL,CARDINAL to ORG CARDINAL,CARDINAL the amount of the interim award to the applicants . In its judgment it observed :

“ Liability :

... after the birth [ of C. ] , as the child had been found to be suffering from [ infantile spinal amyotrophy ] , it emerged that the reason incorrect information had been given to the parents was that the results of the analyses carried out on CARDINAL patients had been switched . It is not contested that the results were switched by the staff of [ AP - HP ] ... The negligence thus committed , as a result of which [ PERSON ] had no reason to request an additional examination with a view to termination of the pregnancy on therapeutic grounds , must be regarded as the direct cause of the prejudice suffered by [ the applicants ] . ”

The court went on to say :

“ Entitlement to the interim award requested :

... the infantile spinal amyotrophy from which the child C. suffers is not the direct consequence of the above - mentioned negligence ... Accordingly , pursuant to the provisions ... of paragraph I of section CARDINAL of the Law of DATE [ on ORG rights and the quality of the health service – “ the Law of DATE ” ] , [ ORG - HP ] would only be required to compensate the damage sustained by [ the applicants ] , to the exclusion of the ‘ special burdens arising throughout the life of the ORG from the latter ’s disability , compensation for disability being a matter for national solidarity according to those same provisions . That being so , [ AP - HP ] ’s plea that , for assessment of [ the applicants’ ] right to compensation , the above - mentioned provisions of the Law of CARDINAL March CARDINAL should have been applied to the dispute constitutes a serious defence against the applicants’ claim at first instance , in the amount awarded by the court below . If the above - mentioned legislative provisions ... are held to be applicable in the main proceedings now pending in ORG , the only obligation [ on ORG ] which could be regarded as not seriously open to challenge would be the obligation to compensate [ the applicants ] . Consequently , the interim award [ AP - HP ] is required to pay should be reduced to that sum ... ”

The applicants and ORG appealed on points of law . The applicants submitted CARDINAL ground of appeal to the ORG d’Etat . Relying on LAW No . CARDINAL , they argued that the immediate applicability of LAW to pending proceedings was contrary to the Convention .

Having been seised in the context of a similar case ( ORG , also submitted to the ORG , application no . CARDINAL ) , the ORG d’Etat ruled , in an opinion delivered on DATE , that the Law of DATE was indeed applicable to pending proceedings and was compatible with the provisions of the Convention ( see paragraph CARDINAL below ) .

In a judgment of CARDINAL DATE the ORG d’Etat , ruling on the above - mentioned appeal on points of law , followed the line set out in that opinion , observing :

“ It is not seriously open to challenge that such facts constituting gross negligence [ faute caractérisée ] which deprived [ the applicants ] of the possibility of terminating the pregnancy on therapeutic grounds , confer entitlement to compensation pursuant to section CARDINAL of the Law of DATE , which came into force after the ruling of the urgent applications judge at ORG and is applicable to pending proceedings . It is appropriate , in the particular circumstances of the case , to set at QUANTITY the amount of the interim award [ AP - HP ] is required to pay on account of the prejudice sustained by [ the applicants ] personally . ”

Having received no reply from AP - HP DATE after submitting their claim on DATE , and the absence of any reply amounting to implicit rejection , the applicants brought proceedings in ORG . In their application they requested that the implicit rejection be set aside and ORG ordered to pay them , in particular , the following amounts : MONEY ( ORG ) ( EUR CARDINAL ) for the construction of a house and the purchase of a vehicle and a wheelchair ; ORG CARDINAL ( EUR CARDINAL ) in respect of non - pecuniary damage and disruption to their lives ; FRF CARDINAL ( EUR CARDINAL,CARDINAL,CARDINAL ) for pecuniary damage ; and ORG CARDINAL ( ORG CARDINAL,CARDINAL ) in respect of the non - pecuniary damage suffered by their eldest daughter .

Following the opinion given by the ORG d’Etat on DATE , the applicants submitted supplementary observations to ORG asking it not to consider itself bound by ORG opinion and to declare GPE incompatible with the provisions of the LAW . AP - HP , for its part , again submitted that the prenatal diagnosis communicated to the applicants would have been uncertain even if the results had not been transposed .

In a judgment of DATE , ORG ordered ORG to pay the applicants a total of ORG CARDINAL ( ORG CARDINAL on their own behalf and ORG CARDINAL on behalf of their eldest daughter ) in respect of non - pecuniary damage and the disruption to their lives . It observed in particular :

“ LIABILITY :

[ The applicants ] seek to establish [ AP - HP ’s ] liability for the damage they suffered on account of the fact that their daughter PERSON was born with a disability not detected during pregnancy .

The provisions of LAW , in the absence of any provisions in the PERSON providing for deferred entry into force , are applicable under the conditions of ordinary law following publication of the LAW in ORG of GPE . The rules which it lays down , as decided by the legislature on general - interest grounds relating to ethical considerations , the proper organisation of the health service and the equitable treatment of all disabled persons , are not incompatible with the requirements of LAW ... , with those of LAW and CARDINAL of the LAW or with those of LAW No . CARDINAL to [ LAW . ... The general - interest ground which the legislature took into account when laying down the rules contained in the first CARDINAL sub - paragraphs of paragraph I justifies their application to situations which arose prior to the commencement of pending proceedings . Having regard to the wording of LAW , neither the fact that the system of compensation has not yet entered into force nor the fact that the mistaken diagnosis is alleged to have resulted from negligence in the organisation and functioning of the service are such as to bar application of the above - mentioned provisions to the present proceedings brought on DATE .

The administrative courts do not have jurisdiction to determine the constitutionality of statute law . The appellants can not therefore validly assert that the above - mentioned LAW is unconstitutional .

[ The applicants ] , whose eldest daughter suffers from infantile spinal amyotrophy , and who decided in DATE to terminate another pregnancy after a prenatal diagnosis had revealed that the unborn child was afflicted by the same pathology , had a daughter named C. in DATE who was discovered during DATE to be likewise suffering from that disorder despite the fact that , in view of the results of the amniocentesis conducted on [ PERSON ] , they had been told that the foetus was healthy . That information proved to have been incorrect because the results from CARDINAL patients had been transposed . The investigation showed that the switch was imputable to [ AP - HP ] , which runs ORG on whose premises the sample had been analysed . The switching of the results constituted gross negligence [ faute caractérisée ] for the purposes of GPE . In order to absolve itself of liability , Assistance publique - GPE can not effectively argue that , even in the absence of negligence , the diagnosis would not have been reliable because of the presence of the mother ’s blood in the foetal sample , since in such circumstances it was incumbent on the practitioner responsible for the analysis to inform [ the applicants ] accordingly , so that they would then have been able to have a new sample taken . The gross negligence mentioned above deprived the applicants of the possibility of terminating the pregnancy on therapeutic grounds , for which there is no time - limit . Such negligence entitles them to compensation under the conditions laid down in CARDINAL of the Law of DATE ... ”

As regards assessment of the damage suffered , the court ruled as follows :

“ ... firstly , the amounts sought in respect of treatment , special education costs and the costs of building a new house and purchasing a vehicle and an electric wheelchair relate to special burdens arising throughout the life of the child from her disability and can not therefore be sums for which [ ORG ] is liable , regard being had to the above - mentioned provisions of LAW ;

... secondly , [ the applicants ] are suffering non - pecuniary damage and disruptions to their lives , particularly their work , of exceptional gravity , regard being had to the profound and lasting change in their lives resulting from the birth of a second severely disabled child ;

... thirdly , the above - mentioned provisions of LAW do not bar payment of compensation , under the rules of ordinary law , for the non - pecuniary damage suffered by PERSON ; ”

On DATE the applicants appealed against the above judgment . The appeal is at present pending before ORG .

In a complaint submitted to the Prime Minister on DATE , the applicants requested payment of compensation in the sum of EUR CARDINAL,CARDINAL,CARDINAL.CARDINAL based on the ORG ’s liability for damage inflicted by reason of the Law of CARDINAL March CARDINAL .

On expiry of the DATE time - limit following the lodging of their complaint , the applicants referred it to ORG , requesting it to set aside the Prime Minister ’s implicit decision to reject it and to order the ORG to compensate them for the damage they considered they had suffered .

In a judgment of DATE , ORG dismissed the complaint . It observed in particular :

“ It is clear from the drafting history of LAW that this provision is based , firstly , on the desire of the legislature not to require health - care professionals or establishments to pay compensation for the burdens occasioned by a disability not detected during pregnancy , and , secondly , on a fundamental requirement : the rejection of any discrimination between disabled persons whose disability would be compensated for in accordance with the principles of liability and those whose disability would be covered by national solidarity , their mother having refused an abortion or the disability being undetectable at the time of the prenatal diagnosis .

This desire on the part of the legislature to eliminate any discrimination between disabled persons is a bar to the establishment [ by the applicants ] of the ORG ’s liability by reason of the immediate application to pending proceedings of ORG , for the purpose of obtaining compensation for the special burdens arising from the disability , not detected during pregnancy , of their child C. Consequently , the [ applicants’ ] submissions seeking the annulment of the contested decision and an order requiring the ORG to pay damages must be dismissed .

The applicants appealed against this judgment . The appeal is now pending before ORG .

NORP Before enactment of GPE DATE on patients’ rights and the quality of the health service ( “ PERSON of DATE ” ) , the legal position was established by the relevant case - law .

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 .

The PERSON d’Etat gave judgment on DATE ( CE , Sect . , DATE , ORG hospitalier de Nice c. GPE , PERSON , p. CARDINAL ) . PERSON , then aged DATE , 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 CARDINAL , a condition detectable through the chromosome test carried out . The PERSON d’Etat held in the first place that the hospital which had carried out the examination had been guilty of negligence , since PERSON 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 ORG 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 PERSON 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 , ORG made an error of law . ”

On the other hand , with regard to the GPE right to compensation , the ORG d’Etat noted : “ By asking for an amniocentesis , PERSON had clearly indicated that she wished to avoid the risk of a genetic accident to the child she had conceived , the probability of which , 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 PERSON and PERSON to the certainty that the child conceived was not trisomic and that PERSON pregnancy could be carried normally to term ” and that “ this negligence , as a result of which PERSON had no reason to ask for a second amniocentesis with a view to abortion on therapeutic grounds under Article L. CARDINAL - CARDINAL of LAW , should be regarded as the direct cause of the prejudice caused to PERSON and PERSON by their child ’s infirmity ” .

With regard to compensation , the ORG 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 nonpecuniary damage and the disruption to their lives .

Thus the ORG 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 a 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 ORG on DATE ( PERSON . , Ass . plén . , DATE , ORG . , Ass . plén . , no . CARDINAL ) in a judgment which was widely commented on ( the PERSON judgment ) . In the PERSON 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 who suffered from grave disabilities resulting from infection with rubella in the womb . ORG held : “ Since the negligence on the part of the doctor and the laboratory in performing the services for which they had been contracted by PERSON 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 ORG d’Etat , ORG accepted that a child born disabled could itself claim compensation for the prejudice resulting from its 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 ORG and the ORG d’Etat base their approach on a system of liability for negligence . However , ORG 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 ORG 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 ORG d’Etat considers that damage to have been sustained by the parents , whereas ORG 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 CARDINAL DATE was upheld several times by ORG , which reaffirmed the principle of compensation for a child born disabled , subject to proof where appropriate that the medical conditions for a voluntary termination of pregnancy on therapeutic grounds were satisfied ( PERSON . , Ass . plén . , CARDINAL judgments of DATE , PERSON , no . CARDINAL , DATE ; see also PERSON . , Ass . plén . , CARDINAL judgments of DATE , ORG , DATE ) .

The PERSON 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 ORG d’Etat and ORG took as their starting - point a system of liability for negligence . In NORP 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 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 LAW 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 GPE prejudice ( see the above - mentioned PERSON 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 .

The Law of DATE put an end to the position established by the case - law mentioned above , of both the ORG d’Etat and ORG alike . Its relevant parts provide as follows :

“ 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 pregnancy by reason of gross negligence [ faute caractérisée ] , the parents may claim compensation in respect of their damage only . That damage can not 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 paragraph 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 . ORG 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 GPE , and of disabled persons of NORP nationality living outside GPE and receiving assistance by virtue of national solidarity , and with presenting all proposals deemed necessary to ORG , with the aim of ensuring , through an ongoing pluriannual programme , that assistance is provided to such persons ... ”

These provisions came into force “ under the conditions of ordinary law following publication of the PERSON in ORG of the NORP Republic ” ( see paragraph CARDINAL below ) . Law no . DATE was published in ORG on DATE and it therefore came into force on DATE .

The PERSON d’Etat observed in particular :

II . The date of the PERSON ’s entry into force :

The liability criteria set out in the second sub - paragraph of paragraph I of section CARDINAL 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 CARDINAL 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 healthcare 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 PERSON , interpreted with the aid of its drafting history , show that ORG 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 , ORG 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 PERSON does not contain provisions for the deferred entry into force of section CARDINAL , and since in addition ORG ’s intention , as revealed by the PERSON ’s drafting history , was to make it applicable immediately , the provisions of LAW came into force under the conditions of ordinary law following the PERSON ’s publication in ORG of GPE .

III . Law no . DATE - CARDINAL ’s compatibility with international law :

( CARDINAL ) ...

The object of LAW 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 a 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 ORG 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 LAW , with those of ORG , DATE , DATE and CARDINAL of the LAW , with those of LAW No . CARDINAL or with those of ORG DATE Covenant on Civil and Political Rights .

( CARDINAL ) The last sub - paragraph of paragraph I of section CARDINAL 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 ORG when it laid down the rules in the first CARDINAL 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 . ”

NORP legislation ( see PERSON no . DATE of DATE 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 ORG ” ) . This is a family benefit paid from the family allowance funds , provided both the child and its parents are resident in GPE . The ORG is granted by decision of ORG 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 ORG , the level of disability found must exceed PERCENT . Where the disability exceeds PERCENT , entitlement to the ORG is automatic ; if the disability is assessed at PERCENT , 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 ORG is a CARDINAL - 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 ORG is ORG DATE ( the figure supplied by the Government on DATE ) . Where the child ’s state of health requires substantial expenditure or the assistance of a third person , this may then confer entitlement to CARDINAL of the CARDINAL levels of ORG top - up payments , which are added to the basic rate .

The first CARDINAL 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 throughout DATE and the families have to provide constant supervision and treatment .

This PERSON emerged from a legislative process launched as far back as DATE with the intention of reforming the system of disability compensation in GPE . It was pointed out in particular that following the enactment of LAW it was necessary to legislate again “ to give effective substance to national solidarity ” ( see ORG produced on behalf of the ORG ’s ORG by Senator PERSON , containing CARDINAL proposals for amending the LAW DATE , appended to the record of the ORG ’s sitting on DATE , p. CARDINAL ) .

The new PERSON makes a number of substantial changes . In particular , it includes for the first time in NORP law a definition of disability and introduces a new “ compensatory benefit ” to be added to existing forms of assistance .

To that end , the PERSON amends ORG . Its relevant provisions are worded as follows :

Title I : General provisions

Section CARDINAL

“ I. ... A disability , within the meaning of the present PERSON , 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 CARDINAL 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 ORG 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 . DATE . The first CARDINAL sub - paragraphs of the first paragraph of LAW no . DATE of DATE on ORG rights and the quality of the health service shall become LAW of ORG Family Code .

NORP The provisions of LAW of ORG Family Code , as amended by sub - paragraph CARDINAL of the present paragraph II , shall be applicable to proceedings in progress on the date of the entry into force of the above - mentioned PERSON no . DATE of DATE , except for those in which an irrevocable decision has been taken on the principle of compensation ... ”

Title III : Compensation and resources

LAW for the consequences of disability

Section CARDINAL

“ ... 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 LAW . 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 CARDINAL Compensatory benefit

I. – Every disabled person stably and regularly resident in metropolitan GPE ... above the age at which entitlement to the disabled child ’s education allowance [ formerly the ORG ] 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 CARDINAL of Article L. CARDINAL - CARDINAL [ of ORG ] may also be claimed , under conditions to be laid down by decree , by beneficiaries of the [ disabled child ’s education ] allowance [ formerly the ORG ] , where on account of their child ’s disability they are likely to bear burdens of the type covered by that paragraph . ... ”

“ Compensatory benefit may be used , under conditions to be laid down by decree , for :

NORP burdens arising from the need for human assistance , including , where necessary , the assistance provided by family helpers ;

NORP burdens arising from the need for technical assistance , particularly the costs which remain payable by an insured person where such technical assistance forms one of the categories of benefit contemplated in point CARDINAL of Article L. CARDINAL - CARDINAL of the Social Security Code ;

NORP burdens arising from adaptation of the home or vehicle of the disabled person , and any extra expenditure needed for his or her transport ;

NORP specific or exceptional burdens , such as those arising from the purchase or maintenance of products needed on account of the disability ;

“ The element of the benefit mentioned in point CARDINAL of Article L. CARDINAL - CARDINAL shall be granted to any disabled person either where his or her state of health makes necessary the effective assistance of a third person for the essential acts of his or her existence , or requires regular supervision , or where he or she is obliged to incur additional expenditure through carrying on an occupation or holding elective office . ”

The new compensatory benefit is initially payable in full to persons over the age at which entitlement to the ORG ( renamed “ disabled child ’s education allowance ” by the new legislation – see section CARDINAL above ) begins . With regard to children , LAW DATE provides :

“ Within DATE from the entry into force of the present Law compensatory benefit shall be extended to disabled children . Within a maximum of DATE those provisions of the present PERSON which distinguish between disabled persons on the ground of age in respect of compensation for the disability and payment of the costs of residence in social and medico - social establishments shall be repealed . ”

The entry into force of the PERSON of DATE is subject to publication of the implementing decrees . Section FAC provides :

“ The regulations implementing the present PERSON shall be published within DATE of its publication , after being referred for opinion to ORG for Disabled Persons .

According to the information supplied by the ORG , the new compensatory benefit should come into force on DATE . It is expected that it will be payable in full to disabled children by DATE . 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 .