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Published online by Cambridge University Press: 02 September 2013
In order to understand the nature, evolution, and basic conceptions of French administrative law, it is essential to study the role of the Conseil d'État, the supreme administrative tribunal. Creative and dynamic, often even bold, the jurisprudence of this remarkable body remains nevertheless prudent and fundamentally evolutionary. One would search in vain for the major principle of French administrative law in the legislative texts; they have been developed by the jurisprudence of this Council as it proceeds, by a series of successive decisions, from specific cases to ultimate yet flexible generalizations, establishing basic legal concepts not only by the skillful interpretation of texts, but also by creative construction when the texts are silent. Together with its doctrinal achievements, the Council's usus fori or judicial practice forms a flexible source of principles applicable to specific cases. The legislator may regulate according to circumstances and the necessities of the moment, without concerning himself with general principles or even conforming rigorously to those created by jurisprudence and theory. But the administrative judge, in administering justice, performs a genuinely creative task and establishes bases for legal thought.
1 Goodnow, Frank J., Comparative Administrative Law (New York, 1893), Vol. 2, pp. 217ff.Google Scholar
2 In order to gain an appreciation of the influence of French administrative law, and hence of the Conseil d'État, the reader should consult the series of studies contained in a volume published on the occasion of the 150th anniversary of the Council's uninterrupted existence: Livre jubilaire du Conseil d'État (Paris, 1949)Google Scholar. Councils of State modeled on the French have been adopted in many lands, including Belgium, Greece, and Egypt.
3 As does Friedrich, Carl J., Constitutional Government and Democracy (Boston, 1949), pp. 114–15Google Scholar.
4 The regime that so disturbed Dicey because he considered it “monstrous” and leading to “bureaucratic despotism.”
5 Although the jurisdiction of the judge (ordinary or administrative) does not correspond exactly to the nature of the law (private or administrative) applicable to the Administration, this correspondence is roughly correct.
6 Hence only private bills put forward by members of Parliament are excluded from preliminary scrutiny by the Council of State. Rules other than those d'administration publique may always be submitted to the Council for advice if the Government so wishes.
7 The Council of State thus has, in principle, control over all administrative activity, including that based upon its own prior advice.
8 These legal actions are said to be de pleine juridiction.
9 Known as ouvertures for recours pour excès de pouvoir.
10 The arrêts of the Council of State and of the Tribunal des Conflits may easily be found in the Recueil des arrêts du Conseil d'État, the Recueil général des lois et des arrêts, edited by Sirey, and in the collections published by Dalloz. Summaries and critical articles on the Council's decrees are published in the Revue du Droit public and in the Études et documents which the Council of State has published since 1947. Hauriou's valuable notes (concerning the period from 1892 to 1929) have been published separately in three volumes, La jurisprudence administrative (Paris, 1929)Google Scholar; those of Waline have been appearing in the Revue du Droit public since 1945. The standard treatises on French administrative law (those of Hauriou, Duguit, and Bonnard among the older works; those of Waline, Laubadère, and Duez-Debeyre among the recent) are based, of course, on the achievements of this administrative jurisprudence.
11 Ordinance of July 31, 1945.
12 Of whom 20 are first class auditors and 28 second-class.
13 Since 1954, one conseiller d'État en service ordinaire and two maîtres des requêtes are chosen from among the presidents or councilors of the tribunaux administratifs (see below).
14 In order to be named maître des requêtes “from the outside,” one must be at least 30 years old and have 10 years of public service (civil or military). Minimum age for regular councilors of State is 40 years.
15 The decree nominating regular councilors of State is taken to the Council of Ministers on the proposal of the President of that Council and the Minister of Justice. The masters are named upon presentation of the so-called “bureau of the Council of State,” composed of the vice-president in deliberation with all the section presidents; the same manner of presentation applies to the nomination of first-class auditors. All members of the Council are recalled in the same way they are named.
16 Formerly all conseillers d'État en service extraordinaire were recruited from among high-level administrators. This recruitment has been considerably extended since 1945.
17 Unlike all other members of the Council, the conseillers d'État en service extraordinaire do not receive a steady salary, but are reimbursed for services rendered.
18 Ordinance of Oct. 9, 1945; internal regulation of Jan. 16, 1947, etc.
19 I.e., one must (1) have passed the entrance examination (either the one given to civil servants or the one given to graduates of university level with no previous administrative experience); (2) have obtained a satisfactory average grade at the end of the second year of studies; (3) be classed, consequently, at the head of the “premier groupe,” in which candidates are apportioned according to merit; they may then freely choose from several administrative careers, the top rank of these being the Council of State.
20 Analogous to the British “administrative class.”
21 The vice-president, the section presidents, and the councilors retire at the age of 70; all other member of the Council of State retire at 65.
22 When a leave of absence follows upon some assignment, its duration is reduced by the length of the latter. A leave of absence may be extended for another five years, by permission of the vice-president of the Council in deliberation with the section presidents. However, auditors may not be assigned or given leaves of absence until they have served four years with the Council.
23 Among the posts occupied in 1949 by members of the Council of State on leave of absence were, for example, the following: the director general of taxes, of population, and of cultural relations with the Ministry of Foreign Affairs; the director general of social security; the secretary general of government, of the National Economic Council, of the military government of the Rhineland, of the Ministry of Foreign Affairs, and of the protectorate of Morocco; the director of the Civil Service with the presidency of the government, of the central office of the Ministry for Reconstruction, of the post-entry training at the National School of Administration, and of the public food supply; the prefect of police at Paris; the high commissioner of the Republic of Cameroons; the head of the French financial mission to the United States; the judicial councilor of the Tunisian government; and the government commissioner for the Bank of Paris and the Low Countries (see the Annuaire du Conseil d'État, 1949).
24 Twenty regular councilors constitute a quorum.
25 The creation of religious establishments, certain treaties passed by the city of Paris, changes in the territorial boundaries of communes, decrees on the subject of maritime seizures, and demands for mining rights.
26 In practice, by the Secretary-General of the government acting on delegation.
27 The number of cases examined by the Permanent Commission was as follows: 500 in 1945, 220 in 1946, 246 in 1947, 215 in 1948–49, 104 in 1949–50, and 120 in 1950–51.
28 They are as follows: the section of the interior (with jurisdiction over matters depending on the presidency of the government, the ministries of justice, interior, national education, etc.); the section on finances (ministries of finance, foreign affairs, national defense, overseas, etc.); the section on public works (ministries of national economy, public works and transport, agriculture, postal services, reconstruction and urbanism, etc.); and the social section (ministries of labor, public health and population, veterans, etc.).
29 An absent councilor of State may be replaced by the senior maître des requêtes in the section. The secretary general of the Council is chosen from among the maîtres des requêtes assigned to the administrative sections. The maîtres des requêtes and auditors belonging to the administrative sections and to the litigations section may be called to participate in the work of the Permanent Commission.
30 The plenary session for litigation is composed of the vice-president of the Council of State, the president of the disputes section, the presidents of its subsections, and four regular councilors elected from among the councilors assigned to the administrative sections (one from each section).
31 In contrast to the rest of the dossier, which is not released to outside parties.
32 See the jubilee volume cited in note 2, especially the article by Henri Puget, pp. 113–17.
33 Decrees no. 53–934, no. 53–935, no. 53–936, no. 53–937, all of Sept. 30, 1953.
34 The Council of State has become, by force of circumstance, the center of many neighboring or new jurisdictions, among them the High Court of Arbitration, the Prize Court, the special commission for appeals concerning war pensions, the High Commission for appeals on war damage, the Commission of Appeal for refugees and stateless persons, and so on.
35 The number of claims before the Council of State was as follows: 4,964 in 1938–39; 4,963 in 1945–46; 5,410 in 1946–47. The backlog of cases as of August 1, 1939 was 1,779 dossiers; as of August 1, 1947, 10,405 dossiers; and as of August 1, 1953, 24,510 dossiers.
36 I.e., the 21 interdepartmental prefectural councils, the prefectural council of the Seine (at Paris), and the administrative tribunal of Alsace and Lorraine (at Strasbourg).
37 I.e., the seven overseas prefectural councils: three in the departments of Algeria, and one each in French Guiana, Martinique, Guadeloupe, and Réunion.
38 In the other French dependencies overseas (which do not fall under the Minister of the Interior, as do those mentioned in the previous note, but are under the Minister for Overseas France), the organization of administrative justice remains unchanged—that is to say, fairly diverse. In particular, in overseas territories and associated territories (those making up the “French Union”) we find conseils du contentieux administratif—administrative litigation councils—which vary from the obsolete predominance of active administrators that we find in such councils in New Caledonia to those with a greater place reserved for the judiciary magistrates (Madagascar, Cameroons, Indo-China). In Morocco and Tunisia administrative litigation is dealt with in ordinary courts.
39 Those which fall under the jurisdiction not of the Minister of the Interior, but of the Minister for Overseas France (see previous note).
40 To this class belong, among others, disputes arising from governmental decrees (whether regulatory or individual), those dealing with the rights of civil servants (including the military), or those involving the interpretation or evaluation of the legality of administrative acts when the point at issue directly concerns the jurisdiction of the Council of State as juge d'attribution, as well as disputes against unilateral administrative acts whose field of application covers the jurisdiction of more than one administrative tribunal.
41 Except when certain specialized administrative jurisdictions comprise a hierarchy of their own (i.e., have their own judge of appeals): as for example the university councils (first resort) and the Higher Council of National Education (second resort).
42 The delimitation of the territorial jurisdiction of the new administrative tribunals is complex. The idea behind it was to make sure that the administrative tribunals in Paris would not be swamped as the Council of State was, in view of the fact that with the French administrative system set up the way it is, the central authorities are situated in Paris and have extended jurisdiction. Any simplified formula would certainly have resulted in the accumulation in Paris of a mass of litigation directed against administrative acts. In order to avoid this danger, the formula adopted was pluralistic: the principle of competence based on the residence of the author of the contested administrative act is modified by a series of supplementary provisions relating to the residence of the claimant (e.g., in the matter of pensions), to the location of the goods (e.g., in legal disputes pertaining to expropriation or public domain), to the site of the exploitation in question (e.g., in economic and social disputes), by the place of execution of a contract, by the scene of an official's assignment, by the situs of the corporation in arrears, by the scene of the event causing damage, and so on. Territorial jurisdiction is thus primarily a function of the nature of the matter under dispute.
43 It may be hoped that losing parties in disputes (above all the Administration itself) will not in the future abuse the ways of appeal open to them. Otherwise the Council of State may not long enjoy the release from pressure achieved in 1954 (with respect to future claims as well as litigation underway at the time), and new delays and new backlogs may call for new measures.
44 This mission of inspection, confirmed and strengthened by the 1954 reform, is exercised, under the authority of the vice-president of the Council of State, by a councilor assisted by two other members of the Council, who make the rounds regularly.
45 Such injunctions have been available to the Council of State since 1806, but under the decree of that year were to be used only in exceptional circumstances; even when allowed, the application of such injunctions was very limited.
46 Cases involving the maintenance of order, security, or the public peace, in which immediate execution would appear indispensable in the public interest, cannot be submitted to injunction. In the absence of any summary procedure (a provisory decision not basically breaking new legal ground, but intended only to forestall an irreparable prejudice), a certain extension of the injunction upon action by the 1954 reform—although always by way of exception—constitutes a partial correction of the non-suspending effect of the claim before administrative jurisdictions.
47 Although the services of attorney, which are obligatory for claims before the Council of State as court of last instance, may be exercised only by members of a special bar (the avocats au Conseil d'État et à la Cour de Cassation, located in Paris), those before all other administrative jurisdictions may be exercised by all avocats in general, as well as by avoués (the latter are excluded from pleading).
48 Recours pour excès du pouvoir, disputes on pension matters, individual litigation concerning civil servants, litigation which before January 1, 1954 would have been under the jurisdiction of the prefectural councils sitting as courts of first instance, and, finally, litigation under Council of State jurisdictions which, before the same date, had not required these services.
49 In short, there is a virtual monopoly of representation, parties to disputes being able to call for the benefit of judicial assistance and to request the designation, if need be, of an avocat d'office.
50 They must also have graduated from the National School of Administration, although they need not have taken first place in their respective groups; their training is completed by a period of probationary service with the litigation section of the Council of State.
51 The members of the administrative tribunals are divided as follows: one president of the administrative tribunal in Paris; three section presidents and 14 councilors of the same tribunal; 28 presidents of administrative tribunals (in the provinces); and 81 councilors (23 of the first class and 58 of the second).
52 This commission—on which representatives of the Ministry of Interior are in a minority—is presided over by the State councilor who is head of the inspection mission for administrative jurisdictions (see note 44).
53 Some members of the Council of State are recruited from among the members of the administrative tribunals, for example, while masters from the Council of State may be named “for outside duty” as president of an administrative court or as councilor to the administrative court in Paris.
54 The administrative courts are also consultative bodies: prefects may request their advice, just as the Government may request the advice of the Council of State. However, the function of the administrative courts is essentially the settlement of litigation.
55 The possibility, in the field of explicit legislative dispositions, of taking executory decisions without previously addressing the judge, who is called into the case by the administree only if he denies the claim of the administration.
56 This theory, which is by no means limited to wartime events, but embraces all exceptional circumstances (périodes critiques) as well, is entirely of judicial origin. Certain administrative decisions which would be illegal in normal times thus become legal by virtue of certain circumstances.
57 Administrative bodies serving Parliament are grouped with the legislative bodies sensu stricto; their acts thus may not be attacked before the Council of State.
58 Whether this notion is conceived in an “organic” sense, or in a “functional” sense.
59 We are dealing here with a new development in administrative jurisprudence, because the Council of State did not, before 1945, have recourse to general principles of law clearly recognized as such. The Council of State now speaks of them in precise fashion and places these principles on the same level as written law (they yield only to explicit dispositions of the latter).
60 We may mention, for example, the oft-proclaimed liberty of local government bodies as over against central power, syndical liberty, freedom to choose one's work, freedom of the person from arrest, freedom of assembly (regulated by the laws in force, liberally interpreted by the Council of State), the responsibility of the state for administrative confinement in case of grave fault of the administrator, etc.
61 But while the principle of liberty is absolute, that of equality may be abridged for the benefit of certain persons or their groups, if such abridgment is in the general interest.
62 The Council of State has long remained faithful to the individualist principles of the French Revolution, opposing any tendency to socialisme municipal.
63 These committees were dissolved by law in 1946.
64 The new professional orders have absorbed the syndicates in the liberal professions thus organized.
65 In this manner the rights of the minority have been defended against all corporative arbitrariness, against abuse of organization, against restrictions on liberty not derived from obligations which bind to a given profession (although prescribed by the corporative codes of professional ethics), as does the autonomy of private law against the extension of professional regulations, etc.
