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Administrative law in France
ADMINISTARTIVE LAW
"Role of Droit Administratif in the French administration"
Introduction:
French Administrative law is paradigmatically different from most of the administrative laws of its foreign counterparts & is one of the best contributions to international culture. No doubt French administration is unique in nature but English law has also got quite an elaborate system of administrative law & administrative justice which is no less significant. Dicey was responsible for misunderstanding of French administrative law by the English.[1] One of the best way of how French administrative law is perceived in England is provided by Professor William Wade who said that Dicey mistook droit administratif as providing special privileges, special rights, prerogatives as against private citizens so as to make a law unto themselves. Dicey mistook French administration as making the executive supreme which became a common caricature in England but French administration has a system of compensation for the acts of public offices which in some respects is more generous than English law.[2] French administration is used as a model & authentic paradigm – a kind of perfect & absolute body of complete & separate body of both procedural & substantive law.[3] With this apprehension of an authentic paradigm many foreign nations have started to rely upon French administration including Israel.
Nature & Scope
Through this project the researcher tries to define droit administratif in details & its impact on the French administration & the evolution through which the system have developed & gained popularity. The scope of this project is limited to discussing French administration & its influence in France & comparative study with other common laws of the world are touched upon but not with that details.
What is droit administratif ?
Droit Administratif found origin in France approximately following the out-break of French Revolution ( 1789) & re-establishment of order by Bonaparte in the year VIII (1799-1800) & gradually gaining strength from then.. It was feared that it would stifle all liberty under its shadow as liberty was inadequately protected & the coming of the new law coincided with the old traditional system & the establishment of the Napoleanic institutions. [4] But today the fear has vanished totally. Droit Administratif consists of all the legal rules governing the relation of public administrative bodies to one another or individuals. In England it doesn't exist as the agents of the crown are in theory subject to any law other than those govern private persons.[5] According to the common law no one is allowed to take the law in his hand. This elementary fundamental principle has no application in public administrative offices. The administration can take the law in its own hand & doesn't need to apply to a judge. A claimant who approaches the court in protest of saying that the particular minister has crossed its legal limits of exercising power will face obstacles in proving his case unless he can satisfy the proper judge but the claimant will succeed his case if he places it before droit administratif. Droit administratif is constructed in a peculiar manner so that it be distinct from ordinary courts. The officials chosen to fill the high posts are personally eligible for so & clothed with peculiar authority. They have a joint responsibility towards to the public known as "espirit de corps" which in matters of jurisdiction displays itself in a special mode of approaching such problems as arise & as a consequence in the process of solving them. [6] Most of the members of the constituent assembly of France being lawyers, they realized what tough opposition could be raised against the best established legislative or administrative measures by the hostility of judges , hence gave birth to the separation of power doctrine whereby the judges couldn't interfere in the workings of the administration. After the doctrine of separation of power was brought into force the next problem was whether administrative action be entirely free from judicial control & should the administration be allowed to exercise unfettered discretionary power? Earlier organizations to control administrative actions had vanished in the whirlpool during the revolution, so the next successful step was to organize under the name of administrative justice a scheme of jurisdiction which were independent of the judicature & free from the control of "Cour de Cassation". It composed of magistrates full of administrative zeal. It was supposed to guarantee impartiality & technicality. It comprised of two departments –Counseil de Prefecture & on appeal Couseil d'Etat.[7] These couseils first had consultative functions & Counseil d'Etat theoretically used to assist the chief of a state who alone had the right to decision making. In May 1872, Couseil d'Etat acquired absolute power & ceased to be technical assistance of the chief. Henceforth it has been exercising power of delegated legislation independently. It is from 1872, that droit administratif started functioning properly whose seeds were sown in the year VIII. The 2nd characteristic of droit administratif is that it is not codified, which distinguishes it from other civil laws. The author of a code are naturally inclined to consider their work as a monument of legal literature which almost completely stabilizes the law at a given moment.[8] Droit Adminstraitif most fortunately escaped codification which characterized the napoleanic era. Finally droit administratif is compared with common law, autonomous in character. The two essential things responsible for this autonomy are- the existence of separate courts & legal inequality set up in the interests of the administration to enable it to execute as effectually as possible the public services.[9] The two leading principles of droit administratif is –responsibility of public administrative offices, avoidance of irregular administrative acts. A well organized magistracy, which was free from any suspicion of impartiality in the exercise of power, that could have sufficient weight to make public authorities accept the principle of responsibility. Thus in present France anyone who is injured, in his person or property by any wrong –doing on the part of public services can recover compensation adequate to his loss, provided that he can prove to the satisfaction of Counseil d'Etat the damages & wrong doing.[10]
Droit Administratif is that part of the French Public Law which affects every Frenchman in relation to the acts of the public administration as the representative of the state.[11]
Administrative law & Droit Administratif:
In the 16th century French administrative tribunals started to get over shadowed by the growing jurisdiction of Couseil de Roi ( originally but a reduced form of first Capetians' curia Regis) but its growing power was not totally un challenged. In the 17th century under Louis XIV & Richelieu Counseil de Roi was in contradiction to Counseil Commun. It had along with other jurisdiction that of a superior administrative court –
"over appeals from the orders of the intendents for redress against the acts of the state or acts of grace emanating from the chancellory.[12] In 1789 when the State's General was convoked, his attitudes towards the regular courts was one suspicious hostility & among its first acts was a prohibition of their interference with administration.[13] The constitution of France in 1791 provided that the courts shouldn't perform administrative functions which or summon administrators on account of them. In 1799, Napolean revived Counseil de Roi under the title Counseil d'Etat & conferred upon it the jurisdiction to adjust administrative disputes & required its authorization for proceeding against govt. agents except ministers connected to their duties. Thus Counseil d'Etat grew in both jurisdiction & independence for nearly one & a half century & its later history virtually coincides with that of droit administrative. In 1889 the Counseil asserted exclusive jurisdiction of actions involving excess of power by administrative authorities. France has got many administrative tribunals among which include Counseil d'Etat, Counseil Interdepartmnetal de Prefecture, Cour des Comptes, Counseil de l'instruction publique, Counseils Militaries des Revision, of which Counseil d'Etat is the most important. The members of the Counseil d'Etat are appointed by the executive decree with the advice & consent of the council of ministers & they can be removed only in the same manner. Nor is the govt. free to select councilors of state at its pleasure, for one half of the seats in the council must be filled by maitres des requests & ¾ th of these must be filled with auditeurs de premiere classe.[14] Thus these councilors have become administrative judges from the point of view of their practical permanence of tenure & independence. Since they are originally administrative officers they are familiar with the administrative problems, they understand its difficulties & needs. For the same reason they do not arouse distrust in the governmental mind which the judges of the ordinary court might inspire & on the other hand they confront the govt. without that timidity which is not infrequently displayed by the ordinary judges.[15] Le Tribunal des Conflicts is composed of nine judges of whom three chosen from Cour de Cassation , three from Counseil d'Etat , & rest two from the above mentioned six. The ex-officio president is the Minsiter of Justice but he rarely attends & in place Vice-President presides. Le Tribunal de Conflicts has attained almost equal importance like its contemporary counterpart Counseil d'Etat. By this dual system of courts France has attained complete separation pf power between legislative, administration & judiciary. Counseil d'Etat is compared on the one hand with Privy Council of England & United States Court of Claims on the other.[16]
(a) Jurisdiction: Its jurisdiction is fundamentally different from English Law. The ordinary court to which one must resort for breach of droit adminstratif is Couseil d'Etat. Its jurisdiction is exercised through processes namely:
(i) Le Recours pour exces de pouvoir ( ultra vires): The plea of ultar vires is the general synthesis which dominates all French law. The plea of ultra vires is based not on the violation of individual right but upon the destruction of an organic rule of service.[17] Initially the activity was just annulment, setting aside the ultra vires Act, but droit administrative ahs undergone evolution & since the close of the century's first decade, it has been permissible to join in the same requetec, a claim for annulment, or revocation with one for damages & interest.
(ii) Le Recours Detournment de Pouvoir ( Abuse of power) :This remedy seems to have been applied as early as 1864 has greatly expanded. A threat by a prefect to disapprove certain municipal council proceedings until the commune had leased its presbytery, was declared an abuse of power although a law of 1884 empowered prefects to control those municipal councils which appeared to oppose the government's political & religious views.[18]
( b) Procedure: Procedure in the great administrative courts is modeled on modern ideas of cheap, simple & effective justice.
( i) Parties: The moving party is called Requetant. Earlier it was necessary to show that the act complained of violated a legal right but that rule has been abandoned & it is now sufficient to show that the complainant possess interest which any other citizen would have in seeing the act nullified. After the separation Law 1905, vesting ownership of church in the state , the Counseil revoked on the Requete of the curate assigned by the Roman Catholic Bishop, a mayor's order forbidding religious services in the local church. Hence according to Garner any citizen may knock at its door & get annulment of an illegal administrative act. [19]
( ii) Pleadings: The moving party's plea is termed as requete & his opposition might present a defense by exception. Art 47 of French Code Penal was amended in 1872 so as to punish those who have infringed ordinances made by the administrative authority.
( iii) Proof: The plaintiff to be successful has to furnish direct & positive proof that the official had been actuated by motives foreign to the service. In religious cases it is sufficient for the plaintiff to establish that the reason given by the police upon which mayoral action must be based, did not exist in fact.
( iv) Appeals: When a suit is brought in a judicial court against a public functionary for an alleged faute personelle he often raises the controversy to the Tribunal des Conflicts & obtains an arrete de conflict, thus challenging the original court's decision. The tribunal des Conflicts may annul the arrete & remand the cause to a judicial court or let the arrete stand on the theory that the ground of the action is really a faute de service. [20]
( v) Costs: The complaint is required to be filed in a stamped paper & there is no enregistrement tax & since the function of the attorney is not obligatory. With limited costs a citizen can reach the supreme administrative court & get an illegal act annulled by the court.
Modern French Administrative law
Until the Revolution the State could expropriate money without giving indemnity. In France it is now agreed that the immunity of a state exists only when the act in question was a act of certain kind- a sovereign act in a restricted sense of the term & the tendency is to limit within the narrower & narrower bounds the immunity of the state.[21] In France the course has been to restrict within narrow limits the actes de Governement as to which the state is immune& to enforce liability for other acts. Governmental acts can be referred to as those which have been held by the administration to have that character. But broadly the chief acts which constitute the sovereign nature are:
(i) Acts of legislation including subordinate legislation of such official bodies 7 persons as have power to make regulations possessing statutory force;
(ii) The acts of diplomatic agents;
(iii) Acts done for the public security in time of war by competent military authorities, provided there was urgency;
(iv) Certain other acts of govt. such as declaration of material law & the expulsion of aliens from the territory.[22]
An important legislative change in France is the "Workmen's Compensation Act" It would have been unfair if a workman in course of his employment gets injured & the state takes the defense of carrying out sovereign power. But apart from this important statute, adapting law to modern conditions so as to satisfy our ideas of justice has been done by French courts. French law as to the responsibility of the state is one of the largest blocks of judge made law. The administrative law of France has shown remarkable development. The administrative law today is quite different from what it was 25yrs back. This change has been brought about by the courts & wholly by the courts. In France it is most important that the Govt. shouldn't be at the mercy of ordinary courts.[23] It was some time before it came to be settled in France that when damages were sought against the state in respect of acts done by the officials it shouldn't go to ordinary courts & decided by applying ordinary rules of civil law. The French courts enjoy a freedom which no other court of justice possess. The administrative courts are not bound by the civil laws or by their own previous judgments.[24] For more than forty years the administrative courts have been trying to build up their won law which is very modern in origin. The French administrative courts asseverate their power their freedom from civil laws & proclaim that the law which they administer is equity using that term as equivalent to natural justice. Accordingly the results which they have reached do not satisfy natural justice the decisions are self condemned. The French law in dealing with vicarious liability of employers do not speak of master & servant but of commettant & prepose which are far more correct than the English terms master & servant. [25] According to the French law a state is not a master who gives instructions to his servants .it is a moral person which like all other moral persons, acts by its organs. The moral person manifest its juridical life entirely in the acts of those who represent it. [26] Now if the act which caused the damage was official, the next question that arises is that whether there was an administrative fault. The administrative faults consist in an error a want of judgment, an omission or act of negligence such as the agent would not have been guilty if he would have lived up to this average standard, provided that the act or omission is official & not a personal act. A personal act would constitute a workman negligently throwing cigarette & setting the factory on fire as this is outside the purview of the act that has been assigned by the master. [27] This shows the refined nature of French administrative law which is unique & different from other common laws of England America.
The French legal system is monoistic, as soon as a legal treaty is duly ratified & implemented by the parties, the treaty becomes a part of the french law & is superior to the laws enacted by the parliament. The EEC treaty is not the only that takes precedence over domestic statutory laws within the hierarchy of norms: Article 55 of the constitution does not distinguish between EEC & other international treaties, but the impact of EEC law on daily life is much greater than the impact of most of other treaties ratified by France.[28] The most difficult question concerning EEC is that since the treaty is superior to legislation, therefore superior to regulations, so are French regulations void is they do not conform to the treaty. The counseil d'Etat has been questioned many times about this. The solution is that the treaty prevails & the regulations must conform to it. Two reasons for such a solution is – (i) Couseil d'Etat cannot set aside legislation, & moreover it has never allowed itself to bring statutory law into conformity with the constitution or with any superior law, ( ii) if the court recognized the superiority of the treaty it would mean that the parliament had acted in violation of the constitution & breached the hierarchy of norms.[29] Counseil d'Etat has relied on the theory of, " statutory law as a screen." The important change was implemented in a case regarding contesting EEC parliamentary elections. Some years ago Couseil d'Etat declared that EEC regulations should have the same status as that of EEC treaty within the hierarchy of norms & consequently prevail over previous domestic laws. When an administrative authority fails to comply with these principles its decisions will be declared void. Due to various reasons about 30yrs ago the administrative law concerning sources of law & the relationships between international & domestic law has been reversed in a spectacular way but the result of this reversal that the High Administrative Courts will maintain its influence. In this respect we can point out to the court's recent attribute towards the European Convention for the protection of Human Rights which shows how Counseil d'Etat broadens the source of law to which administrative action is subject in order to better protect the rights of the individuals.[30]
Conclusion
Through this essay we come across about quite a few details about the droit administratif & the influence it exerts on French administrative system. It's a unique piece of administrative process which is very typical to France though other nations are trying to catch up to the essence of it because of the popularity that it has gained. Through this system France is able to comply with the doctrine of separation of power where different parts of the govt. is not supposed to interfere with other part of the govt. Since its birth , droit administartif has grown & improved over the period of time & has acquired efficiency & has become a paradigm for administrative law in the world.
Bibliography
Achilie Mestre, Droit Administratif, HeinOnline -- 3 Cambridge L.J. 1927-1929
Anonymous, Droit Administratif in Modern French Law, HeinOnline -- 17 L. Q. Rev. 1901
Cladue Klein, French Administrative law as paradigm: Some remarks concerning its use by the Supreme Court of Israel, HeinOnline -- 11 Tel Aviv U. Stud. L. 1992
C. Sumner Lobingier, Administrative Law & Droit Administratif, HeinOnline -- 91 U. Pa. L. Rev. 1942-1943
Francoise Dreyfus, The recent change in French administrative case law concerning treaties & domestic law, HeinOnline -- 11 Tel Aviv U. Stud. L. 1992
F.P.Walton, French Administrartive Courts & the Modern French Law as to the responsibility of the State for the faults of its officials in comparison with common law, HeinOnline -- 31 Jurid. Rev. 233 1919
[1] Cladue Klein, French Administrative law as paradigm: Some remarks concerning its use by the Supreme Court of Israel, HeinOnline -- 11 Tel Aviv U. Stud. L. 111 1992.
[2] Ibid 1 , pg- 112
[3] Cladue Klein, French Administrative law as paradigm: Some remarks concerning its use by the Supreme Court of Israel, HeinOnline -- 11 Tel Aviv U. Stud. L. 112 1992.
[4] Achilie Mestre, Droit Administratif, HeinOnline -- 3 Cambridge L.J. 355 1927-1929
[5] Ibid 5, pg- 356-357
[6] Achilie Mestre, Droit Administratif, HeinOnline -- 3 Cambridge L.J. 358 1927-1929
[7] Ibid 6, pg- 360
[8] Achilie Mestre, Droit Administratif, HeinOnline -- 3 Cambridge L.J. 360 1927-1929
[9] Supra 6, pg- 361
[10] Achilie Mestre, Droit Administratif, HeinOnline -- 3 Cambridge L.J. 363 1927-1929
[11] Anonymous, Droit Administratif in Modern French Law, HeinOnline -- 17 L. Q. Rev. 302 1901
[12] C. Sumner Lobingier, Administrative Law & Droit Administratif, HeinOnline -- 91 U. Pa. L. Rev. 36 1942-1943
[13] Ibid 12 , pg- 39
[14] C. Sumner Lobingier, Administrative Law & Droit Administratif, HeinOnline -- 91 U. Pa. L. Rev. 41 1942-1943
[15] Supra 12 , pg- 41
[16] C. Sumner Lobingier, Administrative Law & Droit Administratif, HeinOnline -- 91 U. Pa. L. Rev. 43 1942-1943
[17] Ibid 17, pg- 43
[18] C. Sumner Lobingier, Administrative Law & Droit Administratif, HeinOnline -- 91 U. Pa. L. Rev. 45 1942-1943
[19] Ibid 18, pg- 46
[20] C. Sumner Lobingier, Administrative Law & Droit Administratif, HeinOnline -- 91 U. Pa. L. Rev. 47 1942-1943
[21]F.P.Walton, French Administrartive Courts & the Modern French Law as to the responsibility of the State for the faults of its officials in comparison with common law, HeinOnline -- 31 Jurid. Rev. 226 1919
[22] Ibid 21, pg- 230
[23] F.P.Walton, French Administrartive Courts & the Modern French Law as to the responsibility of the State for the faults of its officials in comparison with common law, HeinOnline -- 31 Jurid. Rev. 233 1919
[24] Ibid 23, pg- 234
[25] F.P.Walton, French Administrartive Courts & the Modern French Law as to the responsibility of the State for the faults of its officials in comparison with common law, HeinOnline -- 31 Jurid. Rev. 235 1919
[26] Supra 23, pg-236
[27], F.P.Walton French Administrartive Courts & the Modern French Law as to the responsibility of the State for the faults of its officials in comparison with common law, HeinOnline -- 31 Jurid. Rev. 238 1919
[28] Francoise Dreyfus, The recent change in French administrative case law concerning treaties & domestic law, HeinOnline -- 11 Tel Aviv U. Stud. L. 98 1992
[29] Ibid 28, pg- 99
[30] Francoise Dreyfus, The recent change in French administrative case law concerning treaties & domestic law, HeinOnline -- 11 Tel Aviv U. Stud. L. 109 1992
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