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Montesquieu Law Review 1.Pdf 1 MONTESQUIEU LAW REVIEW Issue No.1 January 2015 Contents this issue Editorials: Professor Jean-Bernard Auby and Professor Mireille Delmas-Marty 4 Professor Olivier Dubos 6 Developments in French Law Administrative law: Recent changes in administrative litigation concerning contracts: on third-party remedies against administrative contracts Professor Jean-François Brisson 7 The Dieudonné case: freedom of expression, freedom of assembly and public order requirements Professor Aude Rouyère 15 Civil law : Compensation for environmental damage under French law: past, present... but what future? Laurent Bloch 23 The end of life decision: on the Vincent Lambert case Cécile Castaing and Marie Lamarche 30 Marriage and the prohibition on incest Professor Jean Hauser 42 Constitutional law : Recent draft amendments to the Environmental Charter Florian Savonitto 46 Consumer law : The introduction of class actions in French law Françoise Gonthier 55 Contract law : The curious process reforming France's law of obligations Professor Hélène Boucard 62 Employment law : The ban on the wearing of the Islamic veil in creches: the Baby Loup case Professor Christophe Radé and Marie Peyronnet 75 2 MONTESQUIEU LAW REVIEW Issue No.1 January 2015 French Law in a Globalizing World Business law : A step towards the harmonisation of EU law in matters of insolvency Professor Jean-Luc Vallens 86 Criminal law : The influence and false influence of European Union law on French criminal procedure Amane Gogorza 94 European law : Surrogacy agreements: at last, the primacy of the child's interests Professor Adeline Gouttenoire 103 The difficulties faced by public bodies in light of competition law Sébastien Martin 108 The notion of "public authority" in the recent case law of the European Court of Justice and its impact on French administrative law Professor Sébastien Platon 116 The European Court of Human Rights: an ambiguous comdemnation for a planned repeal Professor David Scymzcak 122 Public international law : The trial of Pascal Simbikangwa, or how the application of the principle of universal Jurisdiction has led to the very first conviction of a Rwandan genocide fugitive in France Professor Anne-Marie Tournepiche and Justine Castillo 133 French Political Life Political science : The Front National at the heart of the French political scene and the consequences for the UMP's failing strategy to win back and remain in power Clémence Faure and Professor Patrick Troude-Chastenet 148 Dialogues A Huron at the Palais-Royal Professor Jean Rivero, with a commentary by Professor Jean-Bernard Auby 158 The absurdity of the law, following an exposition of Racine and Kafka Professor Jean Carbonnier, with a commentary by Professor Jean Hauser 164 3 MONTESQUIEU LAW REVIEW Issue No.1 January 2015 Editorials Professor Jean-Bernard Auby and Professor Mireille Delmas-Marty As a lawyer and a political scientist, Montesquieu famously admired and praised the British institutions: he thought that they were based upon an admirable system of separation and balance of powers. It is then only natural that a periodical based at the University of Bordeaux, aiming to communicate with the English-speaking world and prepared to uphold the fundamental values of democracy and the rule of law, would use the name of the Baron de la Brède et de Montesquieu, who was and remains one of the most remarkable figures in Bordeaux’s history. Now, what is the purpose of this “Montesquieu Law Review”, of which you are discovering the first issue? The answer is quite simple: it is to give English-speaking lawyers curious to be regularly informed about the main events occurring in French Law – whether in written law, case law or doctrine - direct access, in the language of Shakespeare. The promoters of this review, most of them involved in comparative work, are conscious that while French Law continues to attract the attention of some international audience because of its specific past and current features, the number of foreign lawyers who are able to work in the language of Molière is in steady decline. This, they believe, has to be taken into consideration in legal literature by spreading information about major developments in French law, on the internet and in English. Of course, among the scientific benefits they expect from the enterprise, there is not only the creation of flows of information from French legal sources to English-speaking readers, but also an encouragement to intellectual dialogue between the French legal tradition –which is part of the continental one, but possesses its own peculiarities - and other, more or less different, legal traditions. Most contemporary lawyers and analysts of legal globalization are driven to observe a lot of amazing convergences caused by various harmonization phenomena, ranging from formal international legislation or jurisprudence to a more inconspicuous cross-fertilization or spillover effects. These convergences certainly have their limits, and national legal idiosyncrasies still have a strong say, but they are an important characteristic of this period, and a fundamental contextual change for all comparative work. Moreover, what the observation of legal globalization shows is that the differences between the common law world and the civil law one are not, or perhaps are no longer, this enormous gap that they were traditionally supposed to be. In fact, some forerunners have already, some time ago, discerned that legal distances created by the Channel then by the Atlantic Ocean had, to some extent, been exaggerated. Let us just quote here F.H. Lawson, who wrote in “A Common Lawyer looks at the Civil Law” (1953): “The more one 4 studies French law, the more ones realizes that in many ways it resembles the Common Law”. All lawyers belonging to democratic systems, whether they come from the Anglo-Saxon tradition or from the continental one, share at least some basic values in the core of which one finds the separation of powers and the rule of law, of which Montesquieu was one of the main advocates in history. It is in the chapter of The Spirit of Laws dedicated to the British Constitution that he wrote: “When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner. Again, there is no liberty if the judiciary power be not separated from the legislative and the executive. Were it joined with the legislative power, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression". Here are some of the principles on which our readers will certainly converge. Let us be clear: we do not mean to say that the review will intend to concentrate on constitutional issues: on the contrary, it will try and inform in all sectors of French law. But these fundamental principles are certainly their cup of tea, be they public lawyers or private lawyers. To all of them, present and future, we bid a warm welcome. To those who will join us now, we add our wishes for a happy 2015. 5 MONTESQUIEU LAW REVIEW Issue No.1 January 2015 Editorials Professor Olivier Dubos A review is a collective adventure. This first issue is obviously not the beginning of that adventure, but it is its first expression. It was in the course of a conversation on the future of French law faculties that Marie-Claire Ponthoreau floated this idea, which I hastened to seize upon. It quickly emerged that, for the Montesquieu Law Review to be a publication in the spirit of Bordeaux – i.e. cosmopolitan – it could not be produced exclusively by the city’s legal academics. Professors Jean- Bernard Auby and Mireille Delmas-Marty, both of whom have worked so tirelessly in promoting French legal culture, graciously agreed straightaway to chair the Scientific Board. But a review, like a child, does not just need parents; it must also have godparents. Leading personalities in France and overseas, known throughout the legal world, have agreed to stand as the review’s “godparents”. Yet more will join their ranks over time. The review will therefore have to take up the challenge that such a gift represents. In order to guarantee its quality, the MLR had to have a Scientific Board composed of both French and foreign colleagues, all acknowledged specialists in their chosen fields, tasked with ensuring the accuracy and relevance of the information and discussions contained in the articles; those asked were generous enough to answer the call. A review also consists of a group of authors. My colleagues at the University of Bordeaux’s Faculty of Law and Political Science have shown the greatest enthusiasm for this inaugural issue: some have contributed articles themselves, while others approached colleagues for papers. In order for the MLR to publish two general issues and two special issues every year, this momentum must be maintained, and it is our hope that many French and foreign authors will contribute to subsequent editions. The review would not have seen the light of day without a project manager, Rachael Singh, whose linguistic and legal skills serve in the translating and editing of articles submitted by authors. I offer my wholehearted and sincere thanks to all those who have agreed to embark on this adventure, which is also very efficiently supported by IdEx Bordeaux.
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