as in … 2016 Annual
Review by Jean-Marc Sauvé
Jean-Marc Sauvé reviews the highlights of the activity of the Conseil d’État and the administrative courts in 2016: state of emergency, enhancement of rules for ethical practices, modernisation of the status of administrative judges and of procedures in administrative courts.
In 2016, the consultative bodies of the Conseil d’État issued 1,376 opinions and studies promptly, up 9.7% from 2015. With regard to hearings, the Conseil maintained the number of cases handled, despite a 10% increase in petitions. The administrative courts of appeal and the administrative courts have stabilised case processing times and the National Court of Asylum has reduced the time required to deliver a ruling. New tools have been created to enable administrative courts to keep pace with the steadily growing number of petitions. The French law on the modernisation of the 21st Century system of justice now makes it possible to file class action claims in administrative courts, which should reduce the volume of litigation. Mediation has also been expanded to cover all administrative disputes.
As advisor to the Government and as the highest administrative jurisdiction, the Conseil d’État has defined a balance between the fight against terrorism and the protection of fundamental rights and freedoms, ensuring that the principles of the rule of law are always respected. It examined the four bills on the extension of the state of emergency as well as several texts regarding the fight against terrorism and the matter of public security. It informed administrative courts of the procedure for ordering searches in the context of the state of emergency and set the terms of the State’s liability in the event of loss or damage sustained in the course of such a search.
The guarantees of independence and the respect of ethical practices as regards the members of the Conseil d’État and the administrative jurisdiction were reinforced by French law dated 20 April 2016 on the code of ethics for civil servants, and further supported by Ordonnances* that updated the status of administrative court judges and the members of the Conseil d’État, ensuring their independence.
*Ordonnance: a statutory instrument issued by the Council of Ministers in an area normally reserved for primary legislation enacted by the French Parliament.
as in … Counsel and advise
as in… International
International relations at the Conseil d’État have a two-fold objective: to raise awareness of the Conseil d’État as an advisor to public authorities and as an administrative court, and to improve French administrative judges’ knowledge of foreign systems
The progressive integration of the judicial systems of EU Member States requires the close collaboration of judges: it is indispensable that we examine the operational methods of legal systems and jurisprudence in European partner countries and that we compare our practices through regular dialogue.
Public law is a tool for protecting basic rights and freedoms; the promotion of this aspect requires cooperation among judges on the institutional as well as informal level.
Judicial globalisation has also effectively rendered legal systems permeable; it is logical that French administrative law should consider the advantages of foreign models, while continuing to remain a model for others.
as in … Judge
As in… Kit for understanding
a public hearing
The administrative jurisdiction has three levels: administrative tribunals, ordinary judges in the first instance; administrative courts of appeal; and the Conseil d’État, the highest administrative jurisdiction.
Number of judges
Depending on the subject and the importance of the case at hand, the number of sitting judges varies; it is always an odd number. Some cases are heard by a judge acting alone, in particular for emergency procedures.
At the end of the hearing, the case goes to deliberation. The parties and the public are asked to leave the courtroom. The judges meet to come to a decision. The decision is made public within about two weeks.
as in … Libertés
The administrative judge provides a guarantee for the legality of administrative action by monitoring the administration’s compliance with constitutional and conventional principles and standards that protect basic freedoms, in consideration of the Declaration of the Rights of Man and of the Citizen, and also the European Convention for the Protection of Human Rights and Fundamental Freedoms, and the EU Charter of Fundamental Rights.
The year 2016 was remarkable for the extensive review of measures taken on the basis of the state of emergency. The Conseil d’État defined the procedures for administrative searches, which it thoroughly reviewed in order to ensure that any given measure is necessary and does not disproportionately violate the right to privacy and the inviolability of the home.
It also determined the State’s liability. Concern for protecting individual freedom and freedom of conscience also guide the administrative judge’s intervention outside the context of the state of emergency, in various aspects of society and citizens’ daily lives.The long version is available in PDF format (in French)
as in… Mediation
The French law on the modernisation of the 21st Century system of justice dated 18 November 2016 created a complete procedure for mediation in administrative litigation. The law calls for recourse to mediation on the initiative of the parties before referral to a judge or administrative court.
The mediator is designated and keeps the administrative judge informed.
Following the conclusions of the report “Thoughts on administrative justice for tomorrow”, concerning the development of types of Alternative Dispute Resolution, the Conseil d’État created a committee on “administrative justice and mediation”. It will examine the possibilities for directing administrative litigation to mediation, draw up a guide to mediation, define the composition of the mediating bodies, identify a network of independent third parties, and contribute to the development of legislative and regulatory tools.The long version is available in PDF format (in French)
as in… Reference points
as in … Simplification and quality
Faced with the insufficiency of measures taken up to now and the paths followed by several foreign countries, the Conseil d’État has refused to accept the degradation of the quality of law: “When the law prattles on, the citizen lends but a distracted ear”.
Despite consequent efforts over the past ten years, the overall result is mixed. Clearly there is a need to develop a culture of simplification rather than creating new prescriptive obligations.
The growing complexity of law is due to factors that are legal, certainly, but also political, media-related and social. This creates a risky situation as texts are subject to more and more observations to be considered by the judge.
In the yearly study Simplification et qualité du droit(“Simplification and quality of law”), the Conseil d’État suggests a genuine change in our prescriptive culture so that we might control “legislative inflation” and make it easier for the interested parties to understand standards and rules: 27 proposals provide concrete answers to this challenge.The long version is available in PDF format (in French)