comparative law spring 2003 professor susanna fischer french administrative law & procedure...

Comparative Law Spring 2003Professor Susanna FischerFRENCH ADMINISTRATIVE LAW & PROCEDUREMarch 27, 2003

French Administrative Law: Themes to Keep in Mind

Separate administrative courts that are outside judicial system and are part of executive branchJudicially review administrative acts and decisionsProcedure is heavily inquisitorial but has adversarial hearingLess heavy emphasis on individual rights rather than reviewing rulemaking process

French Administrative Law

Like, e.g. German administrative law, French administrative law concerns public law and public powerFrench administrative law is founded on the principle of legality (principe de legalité) or rule of lawRemember that in France there was no power to judicially review the executive until 1872 (even though the Conseil d’Etat was created by Napoleon in 1799)

French Administrative Courts are not part of the judicial branch

They are part of the executive branch (though set up to be separate from administrative functions). This does raise questions about conflict of interest.

Sources of French Administrative Procedure

Lower Administrative Courts tribunaux administratifs/cours administratives d’appel: Code of the Administrative Courts and the Administrative Courts of Appeal (from 1989)Conseil d’Etat: ordonnance of 31 July 1945 and decree of 30 July 1963.Case law plays a more significant role here than elsewhere in French law

Administrative Proceudre: Heavily Inquisitorial

How is French administrative procedure inquisitorial?

Administrative Proceudre: Heavily Inquisitorial

How is French administrative procedure inquisitorial?Largely writtenPleadings sent to judge and then forwarded to partiesRather secret in nature

Government Commissioner

What is a government commissioner and what is his/her role on administrative cases?

Administrative Remeides

What remedies can be sought in administrative law?

Adminstrative Remeides

What remedies can be sought in administrative law?1. Annulment of adminstrative decision2. Damages 3. Interpretation/decision on legality of administrative act4. Penal sanctions

Judicial Review in the French Courts

Administrative actions are heard in administrative courts. 3 tier system of general administrative courts:Administrative Courts tribunaux administratifs (1st instance)Administrative Courts of AppealCours administratives d’appelConseil d’Etat (court of 1st instance in small number of cases e.g. Judicial review against decrees of PM or President)Also some specialized administrative courts

Preliminary Decision

What is a preliminary decision?

Preliminary Decision

What is a preliminary decision? There must be some preliminary administrative decision that forms the subject of an administrative action – even in a tort case.

Commencing an Action

Form (from newsagent), plus court fee and copy of decisionHow soon after the preliminary decision must the administrative case be brought?

Commencing an ActionApplication Form (from newsagent), plus court fee and copy of decisionHow soon after the preliminary decision must the administrative case be brought? Usually 2 months after decision – 2 months after implied decision of rejection was made (though must let 4 months pass for implied rejection to be made). Some special time limits may apply.Capacity, standing, interest

Orders to Suspend Execution of Decision

When can these be made?

Orders to Suspend Execution of Decision until Judge Has Ruled on the caseWhen can these be made?

Where execution of decision will have irreversible consequences and there is at least one serious argument in support of annulment AND judidical exercise of discretionNot usually appropriate for negative decisions There is a procedure for temporary suspension of execution (up to 3 months) – not often used

What Emergency Relief is Available?

What Emergency Relief is Available?

Emergency report ( constat d’urgence) where risk of disappearing evidenceInterlocutory applications (référés administratifs) such as interlocutory investigation, interim payment, preservation order.Because of judicial reluctance to allow interlocutory applications, some belief that administrative system is unjust and overly favorable to the administration. This had led to some individuals starting proceedings nin civil courts.

Investigation Phase

Describe the investigation phaseHow is the investigation terminated?

Trial PhaseDescribe the trial phaseTo what extent do trial courts hear oral testimony?What is the role of the government commissioner in the verdictWhat happens if the application is successfulAre injunctions normally ordered against administration? What happens if the administration refuses to carry out a judgment made against it?

Delay

To what extent is delay a problem in the French administrative system?