Droit Administratif: The French System
Chapter Twelve
Syllabus topic 1, "Concepts and Agencies"
Pages 36 to 38 of 430
In one line
Droit administratif is French administrative law, and its distinguishing feature is that disputes between the citizen and the administration go to a separate system of courts staffed by administrators, not to the ordinary courts.
In the wording a student can write in an exam: droit administratif is the body of rules, developed by the French administrative courts and not by the legislature, which determines the organisation, powers and duties of public administration and the rights and obligations of the citizen against it, and which is applied by a separate hierarchy of administrative tribunals headed by the Conseil d'Etat.
Why MU asks about it on six papers out of eight
Because the paper is comparative by design, and because the comparison exposes what a common law system takes for granted. An English or Indian lawyer assumes that the citizen and the State go to the same court and are judged by the same law. The French assume the opposite, and they have assumed it since 1790. Which system protects the citizen better is a real question, and MU has asked it in one form or another on almost every paper it has set.
Where it came from
The French Revolution inherited a memory of the parlements, the old judicial bodies which had obstructed royal reform. The revolutionaries concluded that judges must be kept out of administration altogether. A law of 16 and 24 August 1790 forbade the ordinary courts to disturb in any manner the operations of administrative bodies, and it is still the foundation of the system.
That prohibition created a gap: if the ordinary courts could not judge the administration, who could? The answer was to create a judge inside the administration. The Conseil d'Etat was established in 1799 to advise the head of State and to examine complaints against officials. For most of the nineteenth century it only advised, and the minister decided, a stage known as justice retenue, justice retained. In 1872 it was given power to decide in its own name, which is justice deleguee, delegated justice, and from that moment France had a real administrative court.
The three characteristics Dicey identified
An answer should state them, because they are what the comparison is usually built on.
One. The relation of the government and its officials to private citizens is governed by a body of rules different from those which apply between one private citizen and another.
Two. Those rules are administered by a separate set of tribunals, so that officials are to a great extent exempt from the jurisdiction of the ordinary courts.
Three. The system rests on a strict separation of administrative and judicial authority, and the boundary between them is itself policed by a special body, the Tribunal des Conflits.
Droit Administratif: The French System
What is actually in droit administratif
It is judge-made. There is no French code of administrative law. The rules come from the decisions of the Conseil d'Etat, which is why the system is often described as a common law system inside a civil law country.
Its central action is the recours pour exces de pouvoir, the action for excess of power, by which any interested person may ask for the annulment of an administrative decision. It is cheap, needs no lawyer, and is available on wide grounds.
Its liability rules are more generous than the common law's. The State's liability for damage caused by the administration developed in the Conseil d'Etat without the doctrine of sovereign immunity and without the need to identify a tort. Liability without fault, for risk created by the administration and for breach of equality before public burdens, is normal French law and is unknown in that form to a common law court.
Its remedies are shaped for administration. Annulment operates against everybody, not merely between the parties.
A worked example, the same facts in two systems
A prefect closes a factory on the ground that it is a danger to public health, without hearing the owner, and the closure destroys the business.
In France. The owner brings a recours pour exces de pouvoir before the administrative tribunal and, on appeal, the Conseil d'Etat. The grounds available include lack of competence, defect of form, detournement de pouvoir, which is the use of a power for a purpose other than the one it was given for, and violation of the law. If the order is annulled it is annulled for all purposes. A separate action for damages lies before the same courts, and it does not depend on proving a tort in the English sense.
In India. The owner petitions the High Court under Article 226 for certiorari and, if he wants his losses, sues separately in a civil court, where he must prove a tort and meet the defence of sovereign function so far as it survives. The two proceedings are before different courts, on different principles, with different rules of evidence.
What droit administratif is NOT
It is not administrative law in general. Every country has administrative law. Droit administratif is the French version of it, with the particular institutional feature of separate courts.
It is not a system of privilege for officials. This was Dicey's charge and it is now accepted to have been wrong. The Conseil d'Etat has been at least as demanding of the administration as English courts have.
It is not a system without a court. The Conseil d'Etat is a court in substance: it hears argument, gives reasoned decisions and follows its own precedents.
Droit Administratif: The French System
It is not confined to France. Variants exist in Belgium, Italy, Greece, Egypt, Turkey and much of francophone Africa.
Quick revision
Droit administratif is French administrative law: a distinct body of rules for the administration, applied by a separate hierarchy of administrative courts headed by the Conseil d'Etat, resting on the separation of administrative and judicial authority effected by the law of 1790. It moved from justice retenue to justice deleguee in 1872. It is judge-made, its central action is the recours pour exces de pouvoir, and its liability rules are more generous than the common law's. Dicey's three characteristics are the standard way to state it.
Test yourself
1. What did the law of 16 and 24 August 1790 do, and why does it matter? It forbade the ordinary courts to interfere with administrative operations, which created the need for a judge inside the administration and so produced the Conseil d'Etat.
2. What is the difference between justice retenue and justice deleguee? Under justice retenue the Conseil d'Etat only advised and the minister decided; under justice deleguee, from 1872, it decides in its own name.
3. Name the French action for the annulment of an administrative decision and two of its grounds. The recours pour exces de pouvoir; grounds include incompetence, defect of form, detournement de pouvoir and violation of the law.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.