ADMINISTRATIVE JUSTICE IN EUROPE - Report for France - INTRODUCTION (History, purpose of the review and classification of administrative acts, definition of an administrative authority) 1. Main dates in the evolution of the review of administrative acts If the principle of separation of the administrative and judicial authorities originates in the edict of Saint-Germain-en-Laye of February 1641, it was established, in its modern accepted meaning, by the revolutionary law of August 16 and 24, 1790. The creation, in Year VIII (1799), of the councils of prefecture and the Council of State, heir of the king’s council, completed the birth of French administrative justice. Thanks to the recognized special nature of the rules applicable to the administration by the Court dispute tribunal’s Blanco ruling of February 8, 1873, and according to the law of May 24, 1872, that enabled the Council of State to become a full-fledged adjudicator making its own decisions, according to the system called “delegated justice,” whereas until that time the final decision lay with the executive power, administrative law will develop, and consequently the administration’s control will assert itself. Since the early 19th century, the powers of the Council of State, of the administrative courts of appeal, created in 1987, and of the administrative courts, which in 1953 succeeded the councils of prefecture as common law judges in the administrative disputes of first resort, never ceased to assert themselves at the initiative of the legislator or the adjudicator him/herself, so as to exert ever broader and more efficient control of the administration’s acts and actions. 2. Purpose of the review of administrative acts Despite the development of a cost-benefit analysis of the action of the administration, the judge does not pronounce on the appropriateness of the selections made by the administration. In this sense, he/she does not exercise control over the administration’s “good working order.” However, he/she checks that the operation is in compliance with the law, meaning that the administration acted in compliance with all written standards imposed upon it according to the hierarchy of the standards established by French public law. He/she may be led to cancel, even amend a disputed administrative decision. He/she may also sentence the administration to compensate the victim of harm or loss brought about by its decisions or actions. If he/she sometimes must rule on appeals bringing the public power’s liability into play for a malfunction of the administrative services, the jurisdictional control only intervenes in case of imposition on a right. The adjudicator is therefore always 2 led to weigh an individual right against the public interest and his/her control aims to ensure a balance between the prerogatives attributed to the administration and the constraints upon it. Administrative law aims to conciliate the powers granted to the administration for accomplishment of its missions with the respect for the rights and freedoms attributed to individuals in order to recover the structurally unequal relationships between the administration and the citizens for whom it is responsible. This guarantee of rights is also ensured by a power distribution between both orders of courts: while the adjudicator is a guardian of public liberties, the judicial judge was attributed a special competence to settle disputes questioning administrative policy, at the moment when certain individual rights such as, for example, the right of ownership, are concerned. Therefore the entire system of jurisdictional control of the administration’s policies tends to protect the population’s rights through subjecting the administration to the rules of law. 3. Definition of an administrative authority In France, the term administration may mean alternatively a body or an activity. In its organic meaning, the administration encompasses the State, the local governments and the public institutions which depend upon it. In its functional meaning, the administration is also made up of private corporations responsible for the execution of administrative public service, whether or not they exercise prerogatives of public power, as opposed to those responsible for the execution of industrial and commercial public service that remains subject to private law and the judicial judge’s control. 4. Classification of administrative acts The administration’s acts are of two types: unilateral acts and contracts. As for unilateral acts, they have or do not have a decisive character, depending on whether or not they modify the legal organization by producing legal ramifications likely to provoke grievances. Among the decisions are the regulatory acts, whose scope is general and impersonal, and individual acts in which parties concerned are identified by name. In contractual matters, the classification is organized around the administrative nature or private law of the contract to which the administration is a party. 3 I –ORGANIZATION AND ROLE OF THE BODIES, COMPETENT TO REVIEW ADMINISTRATIVE ACTS A. COMPETENT BODIES 5. Non-judicial bodies competent to review administrative acts The administration’s control is ensured by administrative courts independent of the administration (separation of the administrative and judicial functions) and separate from the judicial courts (jurisdictional dualism). A control can also be ensured by administrative bodies, but the decisions of these bodies can themselves be subjected to judicial review. 6. Organization of the court system and courts competent to hear disputes concerning acts of administration There are two orders of courts: the judicial order and the administrative order, each made up of common-law courts and specialized courts. The judicial courts include the civil courts and the penal courts. In first instance, the common law civil court is the regional court (TGI); the specialized civil courts are, notably: the small claims court, the commercial court, the industrial tribunal, the court of social security matters, and the court of rural leases. The penal courts are: the police court, the criminal court, and the court of Assizes. All appeals of the civil and penal court judgments are brought before the court of appeal except for the appeals of rulings of the court of Assizes which lies with another court of Assizes. The rulings of the courts of appeal may be subject to appeal before the Court of Cassation, the supreme court of the judicial order. The administrative tribunal is the administrative court of common-law in first instance. The specialized administrative courts are numerous and diverse, such as, for example, the financial courts (regional account chambers and Court of Accounts), the social security courts (county commissions and central commission of social security), the disciplinary courts (Court of budgetary and financial discipline, Higher Council of magistrate, ordinal courts, university courts…). The appeal of their judgments is, in principle, brought before the administrative courts of appeal, whose rulings lie, in appeal, with the Council of State. In addition to its role of cassation, in which capacity, like the Court of Cassation, it only exercises control over the proper application of the rules of procedure and law by the jurisdictional decisions contested before it, the Council of State is also, in certain disputes such as that of the regulatory acts of the ministers, judge in first and second resort. The concurrence of competence with both orders of courts is determined by the Jurisdictional Conflict Court, made up of an equal number of members of the Court of Cassation and of the Council of State. The Constitutional Council supervises the laws’ compliance with the Constitution; it does not have competency regarding the administration’s acts or policy. 4 Judicial order Administrative order Court of Cassation Council of State Specialized Administrative Court of Appeal Administrative Courts Court of Appeal Court of of Appeal Assizes Specialized Police Crimina Administrative Specialized TGI civil Courts Court l court court Administrative Courts Civil Courts Penal Courts B. RULES GOVERNING THE COMPETENT BODIES 7. Origin of rules delimiting the competence of ordinary courts in the review of administrative acts ./. 8. Existence and origins of specific rules related to the competence and duties of the administrative courts or tribunals The administrative court is not subject to any provision of the Constitution that is related only to judicial courts. However, the Constitutional Council attributed constitutional validity to the existence and independence of the administrative courts (by a decision of January 23, 1987). It also attributed a reserve of competence to each order of court. The disputed powers and duties of the administrative courts are specified by law in the code of administrative justice. The sensitive questions of boundaries between both orders of courts are determined by the Jurisdictional Conflict Court. C. INTERNAL ORGANIZATION AND COMPOSITION OF THE COMPETENT BODIES 9. Internal organization of the ordinary courts competent to review administrative acts ./. 10. Internal organization of the administrative courts The administrative courts (42 in all since 2009, with the creation of the one in Montreuil, the 5th administrative court in the Paris region) and the administrative courts of 5 appeal (eight in all) are organised in chambers, the number and specialisation of which vary depending on the staff of the court and the