The Conseil d'Etat and How French Administrative Justice Works
Chapter Thirteen
Syllabus topic 1, "Concepts and Agencies"
Pages 39 to 41 of 430
In one line
The Conseil d'Etat is both the Government's legal adviser and the highest administrative court in France, and it does the two jobs in different rooms.
In the wording a student can write in an exam: the Conseil d'Etat, created in 1799 and given the power to decide in its own name in 1872, is the supreme administrative court of France and simultaneously the standing legal adviser to the Government; it sits at the head of a three-tier administrative jurisdiction consisting of the tribunaux administratifs, the cours administratives d'appel and itself.
Why a chapter of its own
Because an answer to MU's comparison question which says only that France has separate courts is worth about a third of the marks. The comparison turns on how those courts are staffed, what action a citizen brings, what grounds are available and what the court can do, and all four are facts about the Conseil d'Etat.
Its two faces
The advisory face. The administrative sections examine every draft ordinance and decree, and every government bill before it goes to Parliament. The Government must consult it on those, and although it is not bound by the advice it very rarely disregards it. This is why French administrative law is preventive as well as curative: a large part of its work is stopping bad instruments before they are made.
The judicial face. The section du contentieux, the litigation section, decides cases. It hears appeals from the administrative courts of appeal, and it has first instance jurisdiction over the most important matters, including challenges to decrees.
The obvious objection is that the same body advises on an instrument and then judges it. The French answer is a strict internal separation: a member who has sat on the advisory side in relation to a text does not sit on it judicially, a rule that was tightened after criticism from the European Court of Human Rights.
Its structure
Tribunaux administratifs. The courts of first instance, spread across the country.
Cours administratives d'appel. Created in 1987 to take the weight of appeals off the Conseil d'Etat.
Conseil d'Etat. The court of last resort and, for a limited class of cases, of first and last resort.
Tribunal des Conflits. Not part of the hierarchy but essential to it: a body composed equally of members of the Conseil d'Etat and of the Cour de cassation, which decides whether a dispute belongs to the ordinary courts or to the administrative courts. A common law system has no equivalent because it has no boundary to police.
Who its members are
They are not career judges. They are recruited largely from the elite administrative schools, they move in and out of government service during their careers, and they return. To an English lawyer that looks like the administration judging itself. To a French lawyer it is the reason the court understands the administration well enough to control it, and the reason its decisions are obeyed.
The Conseil d'Etat and How French Administrative Justice Works
The action and the grounds
The central action is the recours pour exces de pouvoir, an action to annul an administrative decision for excess of power. It is open to anyone with an interest, is inexpensive, requires no advocate, and its four classical grounds map closely onto the grounds a common lawyer knows.
| French ground | The nearest common law equivalent |
|---|---|
| Incompetence, lack of authority in the person or body that acted | Substantive ultra vires |
| Vice de forme, defect of form or procedure | Procedural ultra vires and breach of natural justice |
| Detournement de pouvoir, use of a power for a purpose other than that for which it was conferred | Improper purpose and mala fides |
| Violation de la loi, error of law including error as to the facts on which the power depended | Illegality and jurisdictional error |
A second action, the recours de pleine juridiction, goes further: the court may not merely annul but substitute its own decision and award damages. That is the great practical difference from a writ court, which quashes and remits.
Liability without the doctrine of immunity
The Conseil d'Etat built the liability of the State from the ground up. The Blanco decision of the Tribunal des Conflits in 1873, over a child injured by a wagon of a State tobacco factory, held that the liability of the State for damage caused by the services it employs is neither general nor absolute and is governed by special rules, and that the administrative courts alone are competent. From that beginning grew a law of liability that includes fault of the service and liability without fault for abnormal risk and for unequal public burdens.
A worked example
A ministry issues a decree that fixes the maximum price of a medicine, and a manufacturer says the minister had no power to fix prices at all, that the advisory committee was never consulted as the enabling law requires, and that the real purpose was to favour a State-owned producer.
In France the manufacturer brings a recours pour exces de pouvoir before the Conseil d'Etat itself, because the instrument is a decree. His three complaints are incompetence, vice de forme and detournement de pouvoir. If any succeeds the decree is annulled erga omnes, that is against everybody. If he also wants his losses he brings a recours de pleine juridiction before the same jurisdiction.
In India the same three complaints are substantive ultra vires, breach of a mandatory procedural requirement, and improper purpose, and they are made in a writ petition under Article 226. If he wants his losses he must sue separately in a civil court.
The Conseil d'Etat and How French Administrative Justice Works
What this does NOT mean
It does not mean the Conseil d'Etat is soft on the administration. Its annulment rate and the breadth of its liability law are the standard answer to Dicey.
It does not mean France has no ordinary courts. It has a full civil and criminal hierarchy under the Cour de cassation. The point is that the administration is not before them.
It does not mean the boundary is always clear. It is not, which is why the Tribunal des Conflits exists.
Quick revision
Created 1799, judicial power in its own name from 1872. Two faces: advisory sections that vet every decree and bill, and the section du contentieux which decides cases, with an internal separation between them. Three tiers: tribunaux administratifs, cours administratives d'appel, Conseil d'Etat, with the Tribunal des Conflits policing the boundary. Members are administrators by training. The recours pour exces de pouvoir annuls for incompetence, vice de forme, detournement de pouvoir and violation de la loi; the recours de pleine juridiction substitutes and compensates. Blanco in 1873 founded State liability on special rules applied by the administrative courts.
Test yourself
1. Name the four classical grounds of the recours pour exces de pouvoir. Incompetence, vice de forme, detournement de pouvoir and violation de la loi.
2. What is the Tribunal des Conflits for, and why has India no equivalent? It decides whether a dispute belongs to the ordinary or the administrative courts. India has no equivalent because it has no separate administrative jurisdiction whose boundary needs policing.
3. What is the practical difference between a recours de pleine juridiction and a writ of certiorari? The French court may substitute its own decision and award damages; a writ court quashes and ordinarily remits the matter for a fresh decision.
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.