The Conseil d’État
and the Administrative Court System

Year in review 2018

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Bruno Lassere
2018 in review by

Bruno Lasserre,

Vice-President of the Conseil d’État

Bruno Lassere

2018 was an important year for France’s administrative courts, with continuity rather than transformation the order of the day. Bruno Lasserre looks back at some of the highlights for the Conseil d’État and the administrative courts.

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editorial

An important year for the administrative courts

2018 was an important year for France’s administrative courts, with continuity rather than transformation the order of the day. First of all, the statistical data shown in the following pages reflect the persistent demand for a robust system of justice, which has long been a trend. The work of the administrative courts has remained very dynamic, with an increase in the number of new cases at first instance and on appeal of over 8%, and over 9% in the French National Court of Asylum.

Despite these figures, the administrative courts have pursued their missions unfailingly, with a firm commitment to fulfilling the expectations placed on them. Among other things, they have examined a range of social issues, handing down important judgments in areas such as the end of life, regional planning and development, and freedom of expression.

At the same time, the Conseil d’État’s advisory role and the proactive part it plays as a source of ideas have been illustrated in the quality and relevance of its work in both areas. Several major opinions have been handed down on topics as diverse as revising the French Constitution and combating fraud and tax evasion. The Reports and Studies Section has produced a number of reports that will make their mark on some essential subjects for our country, including citizenship, the revision of bioethics laws, risk-taking in public activities, legislative inflation and the advertising rules applicable to the health professions.

2018 was also a year of transformation, with several successfully completed projects. In particular, access to the administrative courts was improved as a result of two major reforms: updating the way in which judgments are written and extending the use of remote proceedings. Following a trial and a series of subsequent changes, the roll-out of the new style of drafting judgments on 1 January 2019 reflects the determination of the administrative tribunals and courts not simply to make judgments understandable by legal professionals but also ensure they are accessible to all citizens. A few months after its roll-out in November 2018, the Télérecours citoyens system can also be credited with improving access to the administrative tribunals and courts: even if they do not have legal representation, citizens can now refer their own case to the administrative court remotely. The administrative court system is about day-to-day justice. By improving access to the courts and simplifying communications with the parties, these reforms are helping to provide better service to the many people who use the system.

« 2019 looks set to be a critical year for our country, but the administrative courts and the Conseil d’État will play their full part in the reforms needed to meet the expectations of citizens. »

2018 also provided an opportunity to anchor mediation in the culture of our court system, benefiting both sides and ensuring that disputes are settled faster, comprehensively and fairly. We also need to learn as much as we can from the results of the trial of the mandatory prior mediation procedure that currently applies to some cases involving welfare benefits and allowances or local and regional public authorities and civil servants.

The Conseil d’État and the administrative courts must now continue to modernise in order to ensure the justice system remains relevant, efficient and high in quality. Several projects are currently underway, including further refinements to digital tools, renovating our premises to improve both accessibility and security, and promoting better inclusion and more diversity in our courts. Above all, we must ensure that our judgments, opinions and studies – in a France that is often divided and shot through with tensions – help to create practical solutions and show that there is no common future without respect for the rule of law.

2019 looks set to be a critical year for our country, but the administrative courts and the Conseil d’État will play their full part in the reforms needed to meet the expectations of citizens.


Bruno Lasserre,
Vice-President of the Conseil d’État.

Debates & topics

  • Future bioethics bill

    debates

    Advice from the Conseil d’État on the future bioethics bill

    The French Prime Minister asked the Conseil d’État to conduct a preliminary study on how to frame various questions, in legal terms, in preparation for the forthcoming re-examination of bioethics laws. As it had for the three previous laws on the same subject, the Conseil d’État carried out an analysis of the legal issues concerned to inform the decisions that would have to be made when preparing the future bill and to help legislators think about them when the bill is scrutinised in the French Parliament.

    « The Conseil d’État’s study examines the issues involved in revising the “model”, to inform legislators without attempting to step into their shoes. It does so by assessing the legal constraints, indicating possible options and identifying their implications, in order to ensure consistency. »

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  • Being a citizen in today’s society

    debates

    Annual study 2018
    Citizenship – being a citizen in today’s society

    What does being a citizen mean in today’s society?  Is it right to talk about a crisis of citizenship? How can we bring a new momentum to the notion of citizenship and support greater national unity? In 2018, the Conseil d’État sought to answer these questions through its annual study: “Citizenship – being a citizen in today’s society”. From “civic commitment” to “consumption” or “civic gestures”, “citizen consultation”, “citizen businesses” and “citizen reserves”, clearly, both public and private communications have gradually made citizenship a core value for initiatives and behaviours keen to demonstrate their virtuous nature.

    « In 2018, citizenship – the mortar that holds a republican society together and the point at which the three principles of liberty, equality and fraternity converge – was the subject of the Conseil d’État’s annual study. »

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  • Reform of the drafting style for court judgments

    Topics

    Reform of the drafting style for court judgments : improving the clarity and intelligibility of the law

    In December 2018, the Conseil d’État published a guide to the new drafting style for judgments handed down by the administrative courts. The new guidelines are the result of a wide-ranging consultation and trial phase, and aim to improve clarity and explain more clearly why a particular judgment was made. A review of the reform with Jean-Denis Combrexelle, President of the Litigation Section of the Conseil d’État.

    « Our judgments are handed down in the name of the French people. That means citizens [...] should be able to understand why the judge has upheld their case or ruled against them. »

    Jean-Denis Combrexelle, President of the Litigation Section of the Conseil d’État

    Jean-Denis Combrexelle

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  • Télérecours citoyens

    Topics

    Télérecours citoyens: access to the administrative tribunals and courts in a click

    The Télérecours citoyens app was rolled out across France at the end of November 2018, following a trial in three courts. Available at www.telerecours.fr, it allows any citizen, business or association to file a case with an administrative court entirely online. Thomas Charpentier, administrative judge in the Information Systems department at the Conseil d’État, comments on the many advantages offered by the app, which is playing a significant part in modernising the work of the public authorities.

    « I firmly believe that the quality of justice we deliver depends on the simplicity of the case referral process. »

    Thomas Charpentier, administrative judge in the Information Systems department at the Conseil d’État

    Thomas Charpentier

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  • Administrative mediation

    topics

    Administrative mediation, towards another way to settle disputes

    In contrast to a litigation’ procedure which takes place in front of an administrative judge, mediation aims to settle disputes amicably, with the help of a third party. Launched in 2017 in administrative courts, made compulsory for some litigation in 2018 on an experimental basis, this new method of conflict resolution introduces a culture of conciliation and pedagogy.

    Explanation with Philippe Gazagnes, Presiding Judge of the Administrative Court of Appeal in Clermont-Ferrand and national contact for mediation.

    « Citizens want to be more associated with decisions (referendum, participation), mediation is one of this association’s tool. »

    Philippe Gazagnes, Presiding Judge of the Administrative Court of Appeal in Clermont-Ferrand

    Philippe Gazagnes

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Advising

The Conseil d’État acts as an adviser to the French government when it is drafting statutes, ordinances and certain decrees. It also advises the French Parliament and can be asked to provide an opinion on proposals for legislation produced by members of Parliament.

10 Topics

  • Employment and occupational training

    Work

  • Planning bill for justice 2018-2022

    Justice

  • Attractiveness of Paris as a financial centre

    Economy

  • Trust in schools

    Education

  • New immigration and asylum policy

    Aliens

  • Issues raised by the abandonment of the planned airport in Notre-Dame-des-Landes

    Public works

  • Institutional reform

    Public authorities

  • Standard articles for public-benefit foundations and associations

    Community organisations

  • Public Procurement Code

    Public authorities

  • Declaration obligations of collaborative economy platforms

    Combating tax fraud

Work

Employment and occupational training

The Conseil d’État was asked to review a bill on the freedom for people to make choices about their future careers and examined a range of reforms that would fundamentally change vocational training, learning and the rules governing unemployment insurance. This included ensuring that new ways of calculating credits to an individual’s personal training account did not contravene the constitutional principle of equality before the law. It ensured that differences in the treatment of employees who were involuntarily deprived of work and those who resigned were justified by objective differences in their situations. In order to guarantee respect for the principle of equality and the requirement for offences to be defined in law, it encouraged the legislature to ensure that no penalty would be applied if a jobseeker refused a job offer that was not compatible with their qualifications and professional skills.

Personal training account

The personal training account (CPF) can be used by any employee, throughout their working life, to take training that leads to a qualification. The CPF replaced the individual right to training (DIF) on January1, 2015. employees do not lose hours earned under the DIF and are able to use them until December 31, 2020. The CPF has been credited with euros instead of hours since January 1, 2019.

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Justice

Planning bill for justice 2018-2022

The Conseil d’État was asked to review the planning bill for justice 2018-2022. Among other things, it examined the compliance with the French Constitution and compatibility with our international commitments of extending the use of special investigative techniques and broadening the powers of investigators. It suggested introducing provisions into the draft law provisions recognizing to any person who was subject of a search or a domiciliary visit to refer their case to the juge des libertés et de la détention (bail and custodial procedure judge) to rule on the legality of this measure.

In addition, the Conseil d’État considered that the provisions on prior use of an amicable settlement procedure, failing which the referral of the case to court would be inadmissible, or the option available to the judge to order the parties to meet a mediator, both of which are part of a now well-established move towards encouraging and developing alternative methods of dispute resolution, were sufficient to achieve the objectives intended and there were no constitutional obstacles or conventions preventing their use.

In terms of the organisation of the justice system, the Conseil d’État viewed the planned trials of departmental criminal courts, merging the tribunaux d’instance with the tribunaux de grande instance and the creation of a national prosecution service for terrorism offences as both clear and relevant. On this last point, however, it cautioned the Government on the potential risks of creating a specialist organisation, particularly in terms of losing sight of the links between petty crime and terrorism, and a rigid management structure.

On the provisions in the legislation aimed at prioritising alternative measures to prosecuting the perpetrators of criminal offences through the courts, the Conseil d’État found that the proper administration of justice required that such measures, for the most serious crimes under the ordinary law, should be subject to validation or authorisation by the courts.

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Economy

Attractiveness of Paris as a financial centre

The Conseil d’État was asked to examine a bill on business growth and transformation (known as Pacte – projet de loi relatif à la croissance et la transformation des entreprises) and among other things, gave its view on measures to enhance the attractiveness of Paris as a financial centre.

In this respect, the bill establishes a temporary system for exemption from the obligatory basic and top-up old-age insurance schemes for so-called impatriates, i.e. employees brought in from abroad to take up a job in France. It found that the difference in treatment resulting from this system did not undermine the constitutional principle of equality before the law. In fact, it noted that the difference in treatment was directly related to the aim pursued, namely encouraging foreign employees – particularly senior executives – to settle in France, with the aim of improving the country’s economic attractiveness. The Conseil d’État also found that the exemption did not contradict the provision in the Preamble to the French Constitution of 27 October 1946, guaranteeing material security for elderly workers, provided that employees who opted for this system could provide evidence of old-age insurance that would provide them with the level of security required.

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Education

Trust in schools

The Conseil d’État was asked to examine an education reform bill aimed at building trust in schools and found first, that the legislature’s decision to set the age of compulsory school at three years and extend its duration from ten to thirteen years would help guarantee the principles of equal access to education and the right to education.

It also found that amending the supervision system for home schooling would help to ensure an appropriate balance between the right to home schooling and the safeguarding of public order, which, among other things, seeks to ensure children’s right to education. In order to guarantee the right to privacy enshrined in Article 2 of the Declaration of the Rights of Man and of the Citizen of 1789, the Conseil d’État urged the government to clarify what would be supervised in the family home by the educational authorities, the pedagogical objectives for which it is carried out and the conditions for informing those responsible for the child, and to indicate that supervision would “take place, in principle, in the home where the child is educated.”

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Aliens

New immigration and asylum policy

The Conseil d’État was asked to examine a bill on controlled immigration and an effective right to asylum. This text sets out a reduction in the time frames for submitting asylum claims to the French Refugee and Stateless Persons Protection Office (Office français de protection des réfugiés et apatrides – Ofpra) and appeals against decisions by the Office to the National Court of Asylum.

The Conseil d’État found that the new provisions did not contravene any constitutional or established principles. It approved the significant change in the policy on dealing with asylum seekers, which makes the national scheme more directive, finding that it respects the requirements of EU law insofar as it takes account of the alien’s personal and family situation. The Conseil d’État also found that while the increase in the maximum period for holding illegal aliens from 45 to 90 days was not incompatible with EU law, the extension was only likely to be justified by the submission of an application for asylum or protection at the end of the 45-day period in the case of applications submitted with the aim of preventing a measure to remove the alien.

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Public works

Issues raised by the abandonment of the planned airport in Notre-Dame-des-Landes

The abandonment of the Notre-Dame-des-Landes airport project prompted the Government to ask the Conseil d’État about the possibility of amending or terminating the concession contract awarded to the operator on the grounds of force majeure or the general interest.

The Conseil d’État advised that it was not legally possible to amend the agreement by changing the overall nature of the initial contract. It found that while the notion of force majeure could not be used to terminate the agreement, termination could be justified on the grounds of public interest. It noted, however, that the method used in the concession agreement to calculate the compensation due to the concession-holder was inadequate for such early termination. It recommended that in the future, State concession contracts should provide for different compensation schemes, according to whether operations had already begun.

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Public authorities

Institutional reform

The Conseil d’État examined three bills on institutional reform, aimed at promoting a more representative, responsible and effective democracy.

Among the constitutional provisions, it examined the system of incompatibilities between an individual’s duties as a member of the Government and the exercise of certain local responsibilities.

It found that the system was adequate in terms of preventing conflicts of interest, while allowing members of the Government to concentrate fully on their role. With regard to the criminal liability of members of the Government, the Conseil found that the jurisdiction of the Paris Court of Appeal, which would replace the Cour de Justice de la République in hearing cases of ministerial misconduct, was justified by the necessity of establishing a closer link between the ordinary law and ministers’ criminal liability for criminal offences committed while in office. Noting that members of the Government cannot be held liable for inaction “unless the decision not to take action is directly and personally attributable to them”, it suggested extending this rule, in the French Criminal Code, to other public decision-makers exposed to comparable problems and considering how it might be applied to private-sector decision-makers. Finally, as part of its examination of a new Article 72-5 of the French Constitution on Corsica, the Conseil d’État found that the possibility available to local authorities to be granted powers that are not given to all authorities in the same category offered real flexibility, which would ensure the effectiveness of the principle of subsidiarity set out in Article 72. With regard to the option available to local authorities to be released, for a specific purpose, from regulatory or legislative provisions governing the exercise of their powers, notably following a trial, the Conseil d’État found that this could increase local democracy and allow local authorities to exercise their powers more efficiently, based on the additional responsibilities granted to elected representatives to innovate and adapt their activities to the realities of the local situation, as well as the needs of the population and the economy.

Article 72 of the French Constitution

Article 72 of the French Constitution allows local authorities or groups of local authorities, “where provision is made by statute or regulation, as the case may be, [to] derogate on an experimental basis for limited purposes and duration, from provisions laid down by statute or regulation governing the exercise of their powers”, “except where the essential conditions for the exercise of public freedoms or of a right guaranteed by the Constitution are affected”.

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Community organisations

Standard articles for public-benefit foundations and associations

The Conseil d’État approved new articles for public-benefit foundations and associations after hearing evidence from the key players in the foundations and associations sector. The new articles are guidelines, which will help the minister make their decision during procedures to recognise the public benefit of a foundation or association. Exemptions are possible for reasons of public interest or the particular situation of a foundation or association.

The Conseil d’État has published an annotated compilation of case law online for project backers, to facilitate the implementation of procedures to recognise public benefit provided by the new standard articles.

Standard articles for association and foundations

Associations and foundations can have their public benefit recognised by decree in the Conseil d’État. In order to be recognised, foundations must be set up according to the standard articles produced by the administrative authorities; associations are welcome to draw on them and must provide evidence of democratic operation.

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Public authorities

Public Procurement Code

The Conseil d’État was asked to examine a draft ordinance and draft decree concerning the legislative and regulatory sections of the new Public Procurement Code. The new Code combines older and more recent texts on concession contracts and public contracts to simplify and modernise the law on public procurement. It also incorporates well-established rules based on the case law, such as those relating to the administration’s powers during the life of a contract, or what happens to the property of a service or works concession at the end of the contract.

The Conseil d’État approved the structure of the Code, which is based on a clear distinction between contracts and concessions. It advised that it would be useful to create a preliminary heading, setting out the main principles of public procurement, in response to the requirement for the law to be clear and accessible.

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Combating tax fraud

Declaration obligations of collaborative economy platforms

The Conseil d’État was asked to examine a bill on combating fraud and, among other things, examined the new declaration obligations applicable to collaborative platforms used to sell, exchange or share goods or services electronically. In order to allow the cross-checking needed for control purposes, one notable requirement of the bill is the obligation for these types of platform to submit a document once a year, showing the number and gross total amount of the transactions completed during the year to those concerned, and submit a summary document to the tax authorities. Failure to comply with these obligations results in the application of a fine of 5% of the amount of the sums not declared by the platform.
The Conseil d’État found that the fine was calculated on a rational basis and responded to the need to ensure controls were effective.

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Judging

The administrative tribunals and courts are the only bodies with authority to quash or amend decisions made by the State, local authorities and public authorities or organisations. The Conseil d’État is the supreme court for the administrative order of courts in France.

12 Topics

  • Treatments administered to a child and office of the judge for applications on fundamental freedoms

    Stopping treatment

  • Taxation of bitcoin gains

    Taxation

  • Breeding dolphins in captivity

    Animals in captivity

  • “CDG Express” rail link project

    Infrastructure

  • Public office-holders

    Regulated professions

  • Freedom of expression and principle of neutrality in public education

    Teaching

  • Treatment of the harkis and State responsibility

    Compensation for harm

  • Legal regime for the manuscripts of General de Gaulle

    Public archives

  • Property in the public domain

    State public property

  • Sanctions imposed by the CSA

    Broadcasting

  • Asylum: risks of persecution linked to sexual orientation

    Asylum

  • Courts and tribunals

    Administrative justice

Stopping treatment

Treatments administered to a child and office of the judge for applications on fundamental freedoms

Following collegiate procedure, the medical team at Nancy Regional Hospital (CHRU) took the decision to stop treating a child under the age of majority, who had suffered very severe neurological lesions following a cardio-pulmonary arrest. Her parents asked the judge for urgent applications on matters concerning fundamental freedoms at the administrative tribunal in Nancy to order the CHRU to suspend its decision. The judge having dismissed their application, they lodged an appeal with the applications judge for matters concerning fundamental freedoms at the Conseil d’État.

The judge, ruling as a member of a three-person panel, based his decision on the report of three medical experts, provided at the request of the court, according to which the child’s neurological prognosis was “catastrophic”, she was in a persistent vegetative state and unable to communicate with the people around her, and her neurological lesions were irreversible based on the current state of scientific knowledge.

He also noted that it was not possible, based on the information available, to determine what the girl’s wishes would have been had if she had been able to express it. The judge therefore held that, in spite of the parents’ opposition to the hospital stopping treatment, in light of the irreversible nature of the child’s loss of autonomy, which made her dependent on life-support systems, and in the absence of any serious dispute over either the medical analysis made by the departments at the CHRU or the conclusions of the report by the panel of experts, continuing the treatment was likely, in the current state of medical science, to constitute unreasonable obstinacy as defined in Article L. 1110-5-1 of the French Public Health Code.

Accordingly, the judge for urgent applications at the Conseil d’État found that the decision to stop treatment was in line with the requirements laid down in the law and therefore did not represent a serious and manifestly unlawful infringement of a fundamental freedom. He therefore dismissed the appeal by the child’s parents against the ordinance made by the judge for urgent applications at the court, stipulating that it was now for the doctor with responsibility for the child to appreciate whether and within what time frame the decision to stop treatment should be implemented.

CE, 5 JANUARY 2018, MS B. AND MR D., No. 416689

Urgent applications

If the circumstances of the case require it, the administrative tribunals and courts may rule on urgent applications in emergency proceedings. The urgent applications judge will rule within a very short time frame (from 48 hours or less, to a few weeks) to ensure that their decision is still relevant in light of the facts of the dispute. This therefore provides a swift response for certain disputes, by ordering measures intended to protect the rights of the parties concerned.

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Taxation

Taxation of bitcoin gains

The tax authorities had indicated in their guidelines that the gains made by individuals from the disposal of bitcoins were taxable, identifying two possible scenarios: where they relate to a regular activity, the gains concerned are taxable in the category of industrial and commercial profit (bénéfices industriels et commerciaux – BIC) ; if they relate to an occasional activity, they fall under non-commercial profit (bénéfices non commerciaux – BNC). Several people had asked the Conseil d’État to cancel these texts

The Conseil d’État found that in principle, bitcoin gains fell under the category of capital gains from moveable property, however certain circumstances specific to the transfer transaction could mean that they fell under the provisions for other income categories, including BIC and BNC. It therefore cancelled part of the guidelines concerned, insofar as they indicated in general, that bitcoins gains were taxable under the BNC category.

CE, 26 APRIL 2018, MR G. AND OTHERS, Nos 417809, 418030, 418031, 418032, 418033

Bitcoin

(From the English bit, for binary digit, and coin) is a crypto-currency invented in the early 2010s, following on from the development of so-called “virtual” communities. It is defined in the French Monetary and Financial Code as “any instrument containing units of non-monetary value that can be retained or transferred for the purpose of acquiring goods or services, but which do not represent a claim on the issuer.”

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Animals in captivity

Breeding dolphins in captivity

A ministerial order of 3 May 2017 setting out the characteristics and operational rules for venues exhibiting living specimens of cetaceans to the public prohibited breeding large dolphins in captivity. Several companies operating aquatic parks with dolphins asked the Conseil d’État to quash the prohibition.

Two organizations were to have been consulted prior to the adoption of the text, which was also supposed to have been made available to the public. The Conseil d’État noted that the prohibition on breeding large dolphins had been inserted into the order after these consultations, with the result that neither the organizations concerned, nor the public, had been able to express their views on this point. It therefore quashed the order of 3 May 2017 on the grounds that it had been issued following an unlawful procedure.

CE, 29 JANUARY 2018, SOCIETE MARINELAND, SOCIETE SAFARI AFRICAIN DE PORT-SAINT-PERE, Nos 412210, 412256

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Infrastructure

“CDG Express” rail link project

The “CDG Express” project to build a direct rail link between Paris and Paris-Charles de Gaulle international airport, which was recognized as having a public benefit in 2008, was changed and again declared to have a public benefit by an order in 2017, at the end of a new public enquiry. One municipality, three associations and several individuals asked the Conseil d’État to cancel the order concerned.

The Conseil d’État found that the new public enquiry had been based on sufficiently well-documented evidence and had been updated from the previous documentation, in order to take account of the substantial amendments made to the project and the significant changes in context. It held that the procedure followed in making the order had been regular and that, although the cost of the project had been reassessed, Admitted the public utility of the project.

CE, 22 OCTOBER 2018, COMMUNE DE MITRY-MORY AND OTHERS, Nos 411086, 411154

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Regulated professions

Public office-holders

The Act of August 6, 2015 set an upper age limit of 70 for notaries, judicial officers and judicial auctioneers. It also provided for a system of drawing lots to decide on applications for the creation of notary’s offices. The implementing decree for this Act was referred to the Conseil d’État to examine its legitimacy.

The Conseil d’État found that the age limit concerned did not disregard any international commitments and outlined the possibilities for using a drawing of lots where this is not provided for in law. It found that the regulatory authorities may use a drawing of lots to decide on applications sent to administrative bodies, provided that the method used is appropriate to the subject of the applications and is in accordance with the interests for which the body concerned is responsible. Having found that the system of drawing lots was compliant with the law, the Conseil d’État dismissed the application.

CE, 18 MAY 2018, M. K. AND OTHERS, Nos 400675, 400698, 400858, 401795, 401810

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Teaching

Freedom of expression and principle of neutrality in public education

An association applied to the French Minister of Education to repeal the order providing for the teaching of the history of genocide of Armenians in 1915 in year four of secondary school, on the grounds that it infringed pupils’ freedom of expression, conscience and opinion, as well as the neutrality of the public education service.

In light of the Minister’s implied refusal, it referred the case to the Conseil d’État, which found that the term “Armenian genocide” was not a description of a crime but common terminology in historical research, which was used by the Act of 29 January 2001 on the recognition of the genocide in question.

The Conseil d’État noted that the purpose of history curricula is to teach pupils the state of knowledge as established by historical research, which is based on a critical approach underpinned by the freedom to debate any matter. Furthermore, since there is no concept of “official history” in France and since all teachers are bound by a strict obligation to remain neutral on matters of politics and religion, the association’s application was dismissed.

CE, 4 JULY 2018, ASSOCIATION POUR LA NEUTRALITE DE L’ENSEIGNEMENT DE L’HISTOIRE TURQUE DANS LES PROGRAMMES SCOLAIRES, Nos 392400, 404850

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Compensation for harm

Treatment of the harkis and State responsibility

The son of a former auxiliary in the French army in Algeria applied to the Conseil d’État for compensation for the physical and psychological harm he had suffered when his family was repatriated and in the camps where he was born and lived during his time in France, which among other things, had prevented him from learning French and had had psychological consequences.

The Conseil d’État first characterised as government actions, the lack of protection and failure to repatriate the harkis during the period between the ceasefire on 18 March 1962 and the Evian Accords. The state could therefore not be found liable on the grounds of negligence for these actions, which were inseparable from the conduct of the relationship between France and Algeria.

The Conseil d’État then recognised that the conditions in which the applicant had been accommodated and lived in France between 1962 and 1975 were disgraceful and that the State could be held liable on the grounds of negligence. The fact that financial and symbolic measures had been implemented to support the harkis and their families did not prevent the payment of compensation, the amount of which should reflect the harm actually suffered, to the applicant.

CE, 3 OCTOBER 2018, MR TAMAZOUNT, No. 410611

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Public archives

Legal regime for the manuscripts of General de Gaulle

The French State began a public archives claim in the ordinary courts, seeking the handover of handwritten drafts of telegrams by General de Gaulle, written between 1940 and 1942, which were held by a private company. The Paris Court of Appeal found that determining the public nature of the archives concerned raised a serious difficulty and sent the court a request for a preliminary ruling.

The Conseil d’État noted that the ordinance of 9 August 1944 on the restoration of republican legality in continental France meant that “national sovereignty had been vested in” free France since 16 June 1940. The State was therefore located in London rather than Vichy, which was merely a de facto authority “calling itself the French Government”. Accordingly, documents produced by institutions in free France and their leaders and representatives are public archives. The same description can, however, be applied to documents produced by the Vichy Government.

CE, 13 APRIL 2018, ASSOCIATION DU MUSEE DES LETTRES ET MANUSCRITS AND OTHERS, No. 410939

The request for a preliminary ruling

The request for a preliminary ruling is the mechanism by which a judge who is faced with an issue that falls outside their sphere of competence during a trial, sends the question to a competent judge to seek their opinion, and in the meantime suspends the trial concerned.

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State public property

Property in the public domain

During the French Revolution, property owned by the clergy was transferred to the Nation, including a small statue from the tomb of Philip II the Bold, Duke of Burgundy.

The family that had owned it since 1813 wished to sell it, however the French Minister of Culture demanded its return, on the grounds that it had been part of the State’s public property since 1789. The Conseil d’État found that, given the length of time for which the family had held the mediaeval statue, without the State taking any steps to recover it, it could claim a right to respect for its property. Nonetheless, it also found that the return of the statue reflected the need to ensure a reasonable balance between the private interests of the family and the significant public interest attached to protecting a work of art that belonged to the public domain.

CE, 21 JUNE 2018, SOCIETE PIERRE BERGE ET ASSOCIES AND OTHERS, No. 408822

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Broadcasting

Sanctions imposed by the CSA

The Conseil supérieur de l’audiovisuel (CSA) imposed three sanctions against the company C8 in 2017 for programmes that were discriminatory or an affront to human dignity. The company referred the case to the Conseil d’État on the grounds of freedom of expression.

The first sanction was quashed by the Conseil d’État, since the first person who had been filmed without their knowledge by a hidden camera had not been shown in a way that was degrading, humiliating or an affront to their dignity.

The two other sanctions were confirmed by the Conseil d’État. In the first of these cases, the presenter’s behaviour was deemed unacceptable: he had placed a commentator in a degrading situation, which conveyed a stereotypical view of women by reducing her to the status of a sexual object. In the second case, the presenter had pushed interviewees to talk about their private lives in crude terms and give out information that might identify them, without warning them that their words would be broadcasted. He had also adopted an attitude that gave a caricatural image of homosexuals, which was likely to encourage homophobic prejudice and discrimination.

CE, 18 JUNE 2018, SOCIETE C8, Nos 414532, 412071, 412074

The CSA

The CSA is the official authority that regulates broadcasting in France.
Regulation works to support freedom of expression in the interests of both the public and professionals. It is based on respect and protection of individual rights and freedoms, economic and technological regulation of the market, and social responsibility.

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Asylum

Asylum: risks of persecution linked to sexual orientation

The French National Court of Asylum was asked to examine the case of a man who alleged he had been subject to persecution because of having had sexual relations for payment with 15-year-old minors. First, the Court noted that Article 10 of Directive 2011/95/EU of 13December 2011 provides that sexual orientation, which is likely to be considered a reason from granting refugee status, “cannot be understood to include acts considered to be criminal in accordance with national law of the Member States.” The Court held that the fears expressed were directly related to the commission of such criminal acts and refused to compare them with fears of persecution motivated by the individual’s membership of a social group based on a shared sexual orientation and accordingly, refused to grant the party concerned refugee status.

CNDA, 25 JULY 2018, MR S. No. 16017680

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Administrative justice

Courts and tribunals

In 2018, numerous cases on administrative policy were referred to the administrative tribunals and courts of first instance and the administrative appeal courts. In 2018, the administrative judge of first instance and appeal has been seized of many appeals for additional police.

He had to decide on the legality of an order requiring the closure of a bar for six months on administrative grounds, in response to criminal acts that had taken place there1. While these acts had been committed without the knowledge of the bar’s manager, it was found that they were sufficient to justify a closure on administrative grounds. The administrative tribunals and courts were also asked to rule on the legality of an order preventing the sale and consumption of alcoholic drinks on the public space in part of the 11th district of Paris2. It was found that, given the severity of the disturbance of public order, safety and tranquillity in the area concerned, the ban was proportionate to the objective of maintaining public order and did not represent an excessive constraint on the freedom of business and industry.

Moreover, the judge in the administrative tribunals and courts, ruling in emergency proceedings, was asked to examine the potential infringement of fundamental freedoms created by an “anti-begging” order, designed to remove particularly vulnerable categories of people from the city centre. It was found that the order concerned indirectly but inevitably infringed the fundamental freedom of helping another person for humanitarian purposes but that the infringement was not sufficiently serious or manifestly unlawful in light of the very limited scale of the area concerned and the disturbances of public order recorded in the same area3.

Finally, in another emergency hearing, it was found that the order banning the “Calais Vegan Festival” was a serious and manifestly unlawful infringement of the freedoms of expression, assembly, and business and industry4.

1. Bordeaux Administrative Court of Appeal, 12 July 2018, Prefect of Gironde vs the company I Boat, no. 16BX01498.
2. Paris Administrative Court of Appeal, 20 February 2018, Association des commerçants de la rue Jean-Pierre Timbaud, no. 16PA02890.
3. Besançon Administrative Tribunal, 28 August 2018, Mr G., no. 1801454.
4. Lille Administrative Tribunal, 4 September 2018, Association L.214 and others, no. 1807923.

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Managing

The general secretariat of the Conseil d’État is responsible for managing and running the administrative courts.

  • The administrative courts’ commitment to diversity and equality in the workplace

  • New premises for the administrative tribunal in Nice

  • Work begins on the new administrative tribunal in Marseille

  • The Conseil d’État publishes the advice given to the French Government during the First World War

The administrative courts’ commitment to diversity and equality in the workplace

As a candidate for the “Workplace diversity and gender equality” label, the administrative courts are committed to preventing discrimination and promoting diversity. Events were organised to mark European Disability Employment Week (publishing profiles of disabled employees, putting able-bodied people in the situation faced by people with a disability, etc.) and International Women’s Day (conference at the Conseil d’État, “Equality Cafe” at the court in Caen, etc.) to raise awareness and provide information to staff. Diversity coordinator Catherine Bobo is building a network of contacts to implement the “Living Together” action plan. Numerous initiatives have been put in place, including training for panels of examiners and recruiters, improving the accessibility of courts and using assistance and service centres that help disabled people into work for certain services. Other actions will be taken in 2019 to limit the effects of cognitive bias in recruitment and promotion procedures. A guide on this subject will be sent to all recruiters in the administrative courts. Finally, a unit has been set up at the Conseil d’État to deal with individual complaints.

« We are focusing our efforts on the values of diversity and equality: if we are going to be effective, everyone in the court has to get involved in combating discrimination. »

Catherine Bobo
Deputy General Secretary at the Conseil d’État and diversity coordinator

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New premises for the administrative tribunal in Nice

It has taken 18 months of work to move the administrative tribunal in Nice into new premises, which are much more practical than the Villa La Côte, where the court previously sat.

In spite of numerous difficulties, particularly the removal of a significant quantity of asbestos, this large-scale operation was completed on time and within budget. The tribunal’s new premises are a fine example of the aim of modernising facilities for the administrative courts set by the Conseil d’État to ensure accessibility, safety and security for court users and guarantee the quality of collective debate and collaborative working. The new administrative tribunal in Nice was inaugurated on 29 October 2018 by the French Minister of Justice, the Vice-President of the Conseil d’État and the President of the court. Judges and registry staff have been working there since 19 November.

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Work begins on the new administrative tribunal in Marseille

The administrative tribunal in Marseille will move into a new building in the first quarter of 2021. Located in the up-and-coming district of La Joliette, this industrial building will provide excellent facilities to support the operation of the court (public facilities, accessibility, safety and better working conditions). Work began at the end of November 2018.

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The Conseil d’État publishes the advice given to the French Government during the First World War

In 2018, the Conseil d’État published (on the ConsiliaWeb database of opinions) the 122 opinions given to the French Government during the First World War.

Uninterrupted advisory activities. Many members and employees left the Conseil d’État in 1914 to serve on the front or take up administrative roles in the war effort. Advisory activities continued throughout the war, with the Conseil d’État examining numerous draft decrees and several requests for opinions.

Advice on life in wartime. These opinions dealt with the consequences of the war on public life but also, movingly, on the life of ordinary French people, such as the one issued on 27 December 1916: the Conseil d’État advised the Government that widows married by proxy to someone at the front were entitled to a pension even if had not been possible to solemnise their marriage before the death of the spouse.

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Key figures

Advisory activities

Type of texts examined

  • 69

    bills

  • 7

    proposals
    for legislation

  • 27

    proposed
    ordinances

  • 822

    proposed
    decrees

  • 17

    requests
    for opinion

Average time frame for examining bills

  • 36 %

    in less
    than two weeks

  • 98,5 %

    in less
    than two months

Average time frame for examining proposed decrees

  • 24 %

    in less
    than two weeks

  • 99 %

    in less
    than two months

Court activities

Conseil d'État

  • 9 563

    cases recorded
    -3 % compared
    with 2017

  • 9 583

    cases judged
    -5,5 % compared
    with 2017

Average anticipated time frame for judgment

6 months 17 days

-31 % between 2008 and 2018

Administrative tribunals

  • 213 029

    cases recorded
    +8 % compared
    with 2017

  • 209 618

    cases judged
    +4 % compared
    with 2017

Average anticipated time frame for judgment

9 months 15 days

-27 % between 2008 and 2018

Administrative Courts of Appeal

  • 33 773

    cases recorded
    +8 % compared
    with 2017

  • 32 854

    cases judged
    +5 % compared
    with 2017

Average anticipated time frame for judgment

10 months 23 days

-15 % between 2008 and 2018

French National Court of Asylum

  • 58 671

    cases recorded
    +9,5 % compared
    with 2017

  • 47 314

    cases judged
    stable compared
    with 2017

Average time frame recorded

6 months 15 days

This is an increase of 39 days compared with 2017. Measures have been taken to increase the capacity for case handling at the French National Court of Asylum in 2019, to reduce lead times and deal with the increase number of entries.

Presidents

Left to right, Thierry-Xavier Girardot, General Secretary • Catherine Bobo, Deputy General Secretary, responsible for the Conseil d’État • Didier-Roland Tabuteau, President of the Social Affairs Section • Martine de Boisdeffre, President of the Reports and Studies Section • Jean Gaeremynck, President of the Finance Section • Bruno Lasserre, Vice-President of the Conseil d’État • Sylvie Hubac, President of the Internal Affairs Section • Jacques Arrighi de Casanova, President of the Internal Affairs Section • Philippe Martin, President of the Public Works Section • David Moreau, Deputy General Secretary, responsible for the administrative courts • Jean-Denis Combrexelle, President of the Litigation Section.

Conseil d'État