In three decisions released today, the Conseil d’Etat judges that anyone can obtain compensation from the State for the loss and damage they suffered as a result of the application of a law which was deemed unconstitutional by the Constitutional Council (Conseil constitutionnel).
Since 2007, the Conseil d’Etat has affirmed the existence of State liability for loss and damage resulting from the application of legal provisions which breach international law.
However, the Conseil d’Etat had never solved the case of a law that violates the Constitution. As a result of the 2008 constitutional reform, a law which already entered into force can be repealed by the Conseil constitutionnel if it is deemed unconstitutional. This process is called « priority preliminary ruling on the issue of constitutionality ». When the law is repealed, it is no longer into force, from a date determined by the Conseil constitutionnel.
In the most solemn formation of the Court, the Conseil d’Etat has admitted that the State is liable for the damage caused to an individual by an unconstitutional law. Therefore, anyone who suffered damages (financial loss, non-material damage…) which result directly from the application of such law, before it was repealed by the Conseil constitutionnel, can seek compensation before the administrative courts.
The State liability can only be incurred under certain conditions.
In the three decisions released today, the Conseil d’Etat sets the conditions under which applicants can claim damage:
Applicants’ claims for damages are possible only within the limits set by the Conseil constitutionnel, which determines the temporal effects of the declaration of unconstitutionality and can therefore always decide to exclude any claim for compensation;
The damage to the claimant must be the direct consequence of the application of the legal provisions which were deemed unconstitutional;
The claim must be made within four years after the occurrence of the damages, following the statute of limitations prevailing for claims to public authorities.
In this particular case, the Conseil d’Etat has ruled that there was no direct link between the unconstitutionality of the law and the loss and damage suffered by the applicants. Therefore, the Conseil d’Etat rejected their applications.