ANSWERS TO THE QUESTIONNAIRE ABOUT FRANCE
FIRST PART : Do the rights granted by the Charter of Fundamental
rights of the EU lead us to a common European procedure before the
administration and the administrative courts ?
To what extent do you apply EU law
Very much To some extent Not at all
To what extent do you set aside rules of domestic law, if necessary, to give full effect to EU law ?
Very much To some extent Not at all
Can you give examples if appropriate ?
Pursuant to Article 55 of the French Constitution, international treaties have a primacy over national laws. This applies particularly with respect to all European Union laws or principles with direct application status. The administrative judges must respect this principle since 1989 (case law of the Council of State : CE ass, 20 October 1989, M. Nicolo, rec. P. 190).
Do you apply EU law even if neither of the parties in a case before you has relied on EU law ?
The French administrative judges must answer to all the arguments brought by the parties. They also must study some key legal issues called "means of public order." Most of the time this concept requires to apply the law of the European Union even if neither of the party refer to it.
Article 41 Right to good administration
1. Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the Union.
2. This right includes :
(a) the right of every person to be heard, before any individual measure which would affect him or her adversely is taken ;
(b) the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy ;
(c) the obligation of the administration to give reasons for its decisions.
3. Every person has the right to have the Union make good any damage caused by its institutions or by its servants in the performance of their duties, in accordance with the general principles common to the laws of the Member States.
4. Every person may write to the institutions of the Union in one of the languages of the Treaties and must have an answer in the same language.
41.2 a The right of every person to be heard before an individual measure is taken
Is this right guaranteed in the procedural law for the administration/and the administrative courts/ in your country ?
If so, is this a right only “on demand” or is it an obligation for the administration to give the individual this opportunity ?
Under Article 24 of Law No. 2000-321 of 12 April 2000 on the rights of citizens in their relations with government "Except in cases where it is decided on an application, the individual decisions that must be motivated under sections 1 and 2 of Law No 79-587 of 11 July 1979 on the motivation of administrative acts and to improve relations between the administration and the public, only occur after the person concerned was able to make written submissions and, where appropriate, upon request, oral argument. "
41.2.b The right of every person to have access to his or her file
Is this right guaranteed in the administrative procedural law in your country ?
only when asked for ? Seulement quand on lui demandait ?
or is it an obligation for the administration to send all the documents to the complainant ?
Under Article 2 of the Act of July 17, 1978 : "Subject to the provisions of Article 6 (secret protection), public institutions (government, local authorities, public and private institutions in charge of a public service mission) are required to submit official documents in their possession to those who request it. The right to disclosure applies only to completed documents, but not to preparatory documents. It no longer operates when the documents are subject to publication. "
41.2.c The obligation of the administration to give reasons for its decisions
Is there such an obligation in your country ? Can you describe how long such reasons may be – a few lines or several pages ?
There is not a general principle of motivation for all administrative acts, but this requirement is almost universal since a law adopted in 1979.
Article 1 and 2 of Law No. 79-587 of 11 July 1979 “on the motivation of administrative acts and to improve relations between the administration and the Public” : Natural or legal persons have the right to be informed about reasons of adverse administrative decisions.
For this purpose, must be motivated all decisions which :
Restrict the exercise of civil liberties or, in general, is a police measure ;
Impose a penalty ;
Make the granting of an authorization to impose restrictive conditions or constraints ;
Withdraw or repeal a creative decision rights ;
Oppose a prescription, a foreclosure or forfeiture ;
Refuse an advantage which is a right for individuals who meet the legal requirements for obtaining it ;
Refuse permission, except where disclosure of the reasons might be likely to undermine one of the secrets or interests protected by the provisions of second to fifth paragraphs of Article 6 of Law No 78-753 of 17 July 1978 laying down various measures to improve relations between the administration and the public.
All individual administrative decisions that deviate from the general rules laid down by law or regulation must be motivated.
Article 3 : Motivation required by this Act shall be in writing and include a statement of the considerations of law and fact which are the basis for the decision. The extent of this motivation depends on the nature of the administrative decision.
Article 47 Right to an effective remedy and to a fair
Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.
Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented.
Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.
47.1 The right to an effective remedy before a tribunal
This first paragraph is based on Article 13 of the European Convention on Human Rights, ECHR but the right is more extensive than in the ECHR as the remedy must be before a court, not only a “national authority”.
Are there time limits for the administration to decide upon an application of a party ? If this is the case, how long is this period of time (if it depends on the kind of case, please give some examples).
When the administration does not respond to a request, the silence or inaction creates automatically after a time limit the rejection of this demand. The principle established by Article 21 of the Act of 12 April 2000 on the rights of citizens in their relations with governments is that the silence or inaction of the administration for more than two months constitutes an implied rejecting decision.
Laws or decrees may establish for certain matters a time limit shorter or longer. For example the deadline about permits for foreigners wishing to stay in France is extended to four months. It means that after four months and one day the application for a stay is implicitly rejected.
Is there a legal remedy if the administration failes to decide within that time limit ?
The implicit decision of rejection which derives from the silence (inaction) of the administration may be appealed to administrative justice.
Has your country guaranteed the remedy before a court for everyone whose rights and freedoms guaranteed by the law of the Union are violated ?
Any administrative decision can be cancelled for illegality by an administrative court. This principle has, in accordance to the case law, the consequence of a general principle of law (CE ass, 17 February 1950, Ministre de l’agriculture / Mme Lamotte). This principle permits to ensure on a general respect for human rights and freedoms, irrespective of their foundations (European law or not).
Is it necessary to appeal to a higher administrative
authority before a party is entitled to appeal to a court ? Please give
the number of instances within the administrative law suit.
An administrative act may be challenged directly before an administrative court. But there are exceptions : some laws or decrees require an appeal to the administrative authority which enacted the act before beeing able to bring the case to an Administrative Court. Example : for tax disputes.
47.2 The right to a fair hearing
This second paragraph corresponds to Article 6.1 of the ECHR but the right to a fair hearing is not confined to disputes related to civil law rights and obligations. Thus, this right is also more extensive than in the ECHR.
Does your country fulfill this obligation regarding the application of EC Law ?
This article 6-1 of the ECHR is often applied by Administrative justice in France. The administrative courts consider that the administrative procedures belong to civil matters according to this article. Through this reasoning French administrative courts does not need to refer to the law of the European Union.
Are the administrative courts in your country confined to decide only on the legality of the case or can they also look into the “appropriateness” or “suitability” of the administrative decisions ?
French administrative courts have to censor factual errors, errors of law and errors of assessment. Thus they monitor to some extent the suitability or opportunity of administrative decisions. The intensity of this control depends on the subject. It is most often normal but sometimes limited to “blatant errors of assessment”.
Is the administrative court entitled to control the question of fact ? To what extent (just whether the grounds given by the administration are reasonable, or full cognition, including the hearing if witnesses and experts by the court) ?
Administrative judges censure errors of fact. More often they are only studying documents brought by the parties. But sometimes they are able to base their décisions on expertise (in medical liability or public works contracts in particular) or visits (mainly for urban planning litigations). Exceptionaly they may organize an investigation with hearing of witnesses (Articles R 623-1 to R 623-8 of the Code of Administrative Justice).
Do administrative courts rely on experts working for the administration (on expertises that have already been delivered during the procedure before the administration) or do they nominate own experts (in order to control the experts who worked for the administration) ?
The administrative judges may rely on experts produced by the administration (whose neutrality may be questioned) or designate himself an expert who will be subject to the requirement of impartiality.
Can the administrative court replace the administrative decisions with their own decisions or is it only a “cassation” ?
The judge cannot replace the cancelled administrative act by a decision he prepares himself. But he can specify to the administration what should be the content of this new decision. There are some important exceptions : in tax matters, election, or for some decisions about polluting facilities or buildings which threaten to collapse... the administrative judge may directly issue a new administrative decision.
Is there a “two party system” before the administrative courts in your country, that is, are the individual and the administration regarded as two opposing parties ?
The applicant and the administration are considered as two parties by the administrative jurisdictions.
Is the administrative court limited to the arguments put forward by
the “parties” or can the court look independently on the facts ?
The administrative judge must examine the facts objectively and impartially based on the evidence adduced by the parties at trial. When it appears necessary, he can claim the presentation of additional documents (evidence), in order to improve the analysis about facts.
SECOND PART : Draft recommendation of the Council of Europe on the independence, efficiency and responsibilities of judges
Chapter I – General aspects : paragraphs 1 to 10
Scope of the recommendation : paragraphs 1 and 2
Administrative justice in France is conducted by professional judges who make their careers as judges. They can work during this career outside the justice performing activities that are not judicial. There are lay judges only in the civil justice (some trial judges, in social courts and commercial courts). Constitutional judges are appointed by political authorities to perform a mandate of nine years non renewable.
Judicial independence and the level at which it should be safeguarded : paragraphs 3 to 10
The independence of administrative justice was gradually built over the course of the nineteenth century. It is a constitutional principle, but not stated by the text of the Constitution (the principle of independence of the judiciary and separation with executive and legislative power is declared by the Article 64 of the French Constitution). This principle was expressly and solemny recognized 30 years ago : by an important decision of 22 July 1980 the Constitutional Council established the principle of independence of the administrative jurisdictions as belonging to the “fundamental principles recognized by the laws of the Republic” (a concept which Mathers non written constitutional principles).
A law No. 86-14 of 6 January 1986 established the rules guaranteeing the independence of first instance and administrative courts of appeal. The content of this law is codified in the Code of Administrative Justice (CJA).
6. The extent of control managed by administrative judges is very broad. They may be seized by any people who have an interest to review the legality of administrative acts. Only “governmental acts” (decisions about diplomacy and the relations between the executive power and Parliament) and “internal measures” (without any legal effect) are beyond their control. They also monitor public contracts and procurement. They may engage the responsibility of public authorities. The individual responsibility of public servants can be implemented directly by the administration, but under the supervision of the administrative courts (disciplinary responsibility).
6. The recommendation mentions that the media must be submitted to the authority of judges. But this seems to be too large due to the necessity to respect freedom of expression and media freedom.
7. The independence of judges should be enshrined in the Constitution or in the highest legal level with specific provisions in legislation : this principle is already respected France (look above).
8. The administrative judges who believe that their independence is threatened can explain their situation to the Superior Council of judiciary or to the Vice-President of the Council of State (NB : the Prime minister is the President of the Council of State, but it’s only symbolic). But this possibility of referral is not organized and It’s rather theoretical.
The Superior Council of administrative judges is the tool to guarantee their independence. It’s not a constitutional body. Its authority is provided by the fact that it is an organ of the Council of State. The special power of the Council of State is the guarantee of the independence of the whole administrative justice.
9. Under article R 611-9 of the Code for administrative justice : Immediately after registration of the application by the Registry, the President of the Court attributes the case to a judge which is “the rapporteur” of the case. The rapporteur appointed may not be withdrawn only on his request and with the authorization of the President or by a decision of the Chairman of the Court. No text specifies the criteria. A judge who considers that his independence would be threatened could theoretically ask the opinion of the Superior council.
The recommendation indicates very imprecisely that effectiveness may be grounds for divestiture : such reason seems to be too vague.
10. Competence of judges, between ordinary and administrative judges,
and between administrative courts, is determined by several laws or
case law principles. The executive or legislative power can not
intervene to prevent the application of these texts.
Chapter II - External independence : paragraphs 11 to 21
The principle of judicial independence is defined several times by the recommendation : this reduces its readability.
11. The potentiality for conflicts of interest is removed by two mechanisms. A list of incompatibilities is defined by the Code of Administrative Justice (Articles L 231-5 to L 231-7 of the Code of Administrative Justice : the exercice of administrative functions, as a lawyer, or as an elected). An administrative judge may also be challenged by a party or on its own initiative. The disqualification of a member of the court is granted, upon request of a party, if there are serious reasons to doubt his impartiality (Article L 721-1). A member of the court who thinks himself a cause for disqualification or believes in good conscience have to refrain, may be replaced by another member designated by the President of the Court (Article R 721-1).
12. Unlike the ordinary courts, the management of administrative justice is not done by the Ministry of Justice but by the Council of State. Thus It can be said that administrative justice has to self - managed . Administrative Courts have a special budget inside the Budget of the state. This organization reinforces its independence from other executive or legislative powers.
13. A legal regime for "contempt of court" exists in France but do not specifically apply to judges. A law was passed in 2001 in order to create the outrage against those "entrusted with a mission of public service". This proceeding is thriving in France : over 31,000 complaints in 2007 (only 17,000 a decade ago ; cf the National Observatory of Delinquency).
14. Under the Article 9 of the Code of Administrative Justice, "The
judgments are motivated." It means all the decisions : It is a general
principle of law enshrined in 1924 (CE, 5 December 1924 Legillon, rec p
15. "Judgments are public" (Article 10 of The Code of Administrative Justice). Decisions of administrative justice are pronounced in public hearings (Article R 741-1 of the Code of administrative justice), even when the hearing took place behind closed doors (this is exceptional). A lot of these decisions are put on line without the name of private individuals on an official website (légifrance).
16. A decision taken by an administrative court can be reviewed only through the exercise of remedies : appeal and then cassation (sometimes there is only a possibility of cassation).
The recommendation refers somewhat enigmatically to the procedure "Nazdor" aenforcable in the Russian Federation.
17. The technique of "validating legislation" allows Parliament to cancel the effects of a judicial decision for the future (example : after the cancellation of a competitive examination for the recruitment of civil servants). The Constitutional Council admits that it is possible but subject to compliance with judicial decisions having the force of res judicata. This possibility sometimes leads to controversy./ this sometimes raises controversy.
18. Some politicians, even ministers, may indirectly and insidiously criticize the decisions of administrative courts . It’s not often. But Trade Unions of administrative judges have to communicate against these speeches when needed .
19. Like other public servants, Administrative judges must respect confidentiality and professional discretion (Article 23 of Law No. 83634 of 13 April 1983 on the Public). Hearings are most of the time public (Article 6 of The Code of Administrative Justice). But there is a possibility of camera ? to safeguard "public order, secrets, or respect for private life" (Article L 731-1 of the Code of Administrative Justice). The heads of courts sometimes broadcast press releases after the pronouncement of decisions. This new practice has grown significantly over the past ten years. The Council of State established a communication department two years ago.
20. Under Article 15 of the 1789 declaration, which is a constitutional text : "Society has the right to require information of every public official." This principle applies to administrative justice in particular. The parliamentary reports on administrative justice, annexed to the annual budget law, reflect the application of this principle.
21. Administrative judges may not have other activities. There are two exceptions to this principle : because of their status they participate to operate a large number of administrative boards (most often as chairman of these committees) and may provide lessons about public law./ may teach public law.
Like all citizens, administrative judges have all the rights connected with the freedom of association.
Chapter III - Internal independence : paragraphs 22 to 25
22. Administrative justice is self-managed. Administrative judges are under their hierarchy only as regards the management of courts. But this hierarchical power is not exercised for the preparation of judicial decisions. This distinction and principle exists in practice but is not explicitly enshrined in a text.
23. The Council of State broadcasts sometimes guidance in the form of circulars to comment new laws or legal decisions. But these recommendations have no legal value by themselves.
24. The methods of attribution of cases between chambers and then between judges are set within each jurisdiction. The specialization of chambers and judges is the main criterion. This distribution is not used to guide the direction of solutions. In rare cases, abuse might be possible.
25. Administrative judges have the freedom of association. There are two unions of administrative judges in France.
Chapter IV - Councils for the Judiciary : paragraphs 26 to 29
26. A Supreme Council of Administrative Courts and Administrative Courts of Appeal was established by law in 1986 modeled on the High Council of the Judiciary (which is a constitutional body) to guarantee the independence of administrative judges (Article 13 of Law No. 86-14 of January 6, 1986). It manages all aspects of their career. The State Council manages administrative justice.
27. French law differs from the text of the recommendation, and there are no plans to remove this discrepancy. This Superior Council is not parity. The number of judges elected belonging to this Council is a minority : 5 out of 13. This conception is based on the presence of three personalities appointed by the Presidents of the Republic and of the two parliamentary assemblies (the National Assembly and the Senate).
28. The need for transparency and motivation is performed as
follows : a secret report is written after each meeting, but another
document to provide information is handed out to all administrative
Chapter V - Independence, efficiency and resources : paragraphs 30 to 43
The concept of effectiveness is defined by the recommendation in quantitative and qualitative terms : judges have to write quality decisions within a reasonable time. And it is written that this should not compromise the independence of judges. The application of this new important principle raises very serious difficulties.
Resources : paragraph 33 to 38
33. The budget allocated to the courts must be able to allow them to work effectively. But what is an adequate budget ?
34. The signification of this paragraph and its explanatory memorandum is not clear. How do judges actually have to take into account the economic and budgetary impact of their decisions ? How is this recommendation able to preserve their independence ?
35. What is a sufficient number of judges ? 1300 administrative judges in France is that enough ? Is the number of legal assistants, about 300,enough ?
36. What does attributing non-judicial tasks to other people than judges imply ?
37. There is a system of electronic case management called “skipper”.
38. Some administrative courts are protected by security guards (in Paris) or by systems of video surveillance.
Alternative dispute resolution : paragraph 39
39. The need to develop these mechanisms is not really explained.
Courts’ administration : paragraphs 40 and 41
40. The Council of State prepares the budget for administrative justice voted by Parliament and executes it. The Higher Council of Administrative Justice may give advice.
Assessment : paragraph 42
42. The concept of evaluation of judges by the judicial authorities set by the recommendation is not explained.
International dimension : paragraph 43
43. The recommendation suggests to promote international cooperation and relations between judges. This innovation is of course a very good solution to create a common language between judges in Europe.
Chapter VI - Status of the judge : paragraphs 44 to 58
Selection and career : paragraphs 44 to 48
44. Most administrative judges are recruited by a competitive examination. A proportion is selected by the Superior Council. Some members of the State Council are appointed directly by the Government : this old tradition is now difficult to account for.
The promotion by seniority occupies the main level to get the first rank. This is the principle under an ancient custom for access to the functions of Council of State. The promotion on merit is the rule for access to senior positions. The Superior council manages these promotions for the judges of first instance courts and courts of appeal. The process is not transparent in the Council of State.
45. There is no legal mechanism of positive discrimination in recruitment and promotion of administrative judges (including for the benefit for women). The number of female heads of courts has increased significantly in practice.
47. The President of the Republic is the authority for appointment and promotion of administrative judges. In practice he respects all the proposals made by the Superior Council.
Tenure and irremovability : paragraphs 49 to 52
49. The tenure of administrative judges was established by Act of 6 January 1986.
50. The age of retirement is determined by law.
51. There is no real trial period for access to functions of administrative judge, but a 6-month special training course .
Remuneration : paragraphs 53 to 55
53. The remuneration of administrative judges is like for all other public civil or military servants defined by decrees not by law.
54. There is no specific social system for maternity and parental leave for judges.
55. A proportion of the salary is allocated on merit : “the variable portion of the premium”. French law does not respect the text of the recommendation on this point.
Training : paragraph 56 and 57
56 and 57. Administrative judges must have an initial theoretical and practical training (during 6 months). And they follow during their career short trainings each year. The content of these trainings is much more interesting than it was ten years ago (a special center for training was created). The Superior Council is consulted on programs.
Assessment : paragraph 58
58. The evaluation / assessment of judges is made by the Presidents of jurisdictions. The evaluation criteria are defined by regulations. An administrative appeal may be brought before the Superior Council, and eventually a judiciary settlement directly to the Council of State.
The reference to Belgium in this point of the recommendation is not very explicit ?
Chapter VII - Duties and responsibilities : paragraphs 59 to 70
Duties : paragraphs 59 to 65
61. On the possibility of recusal, see item 11.
62. The heads of jurisdiction are responsible for ensuring the effective management of cases : in order to respect a reasonable time, goals and priorities are defined. The same system is implemented between jurisdictions by the Council of State after advice of the Superior Council.
63. On the grounds of judgments, see item 14. There is a debate (between some specialists) about the intelligibility of motivations : whether or not to redefine the traditional explanation of reasons, the traditional form of writing for administrative justice decisions ?
64. There is no real mechanism for administrative judges to encourage the parties to reach an amicable settlement.
Liability and disciplinary proceedings : paragraphs 66 to 70
66. There are no specific rules : the common law of civil liability, criminal and disciplinary applies to judges. Civil or criminal liability cases shall be brought before the ordinary courts, the implementation of a disciplinary proceeding is a decision of the administration under the supervision of the administrative courts. Decisions about individual responsibility for work as judges are exceptional : it implies in practice is intentional.
67. The State ordered to compensate due to a miscarriage of justice may exercise a so-called recourse to a judge when he has committed an individual fault. But contrary to the recommendation, an independent authority or a court does not intervene first. The State (the Council of State as manager) may issue an administrative act called "State enforceable" against a judge. And this judge may challenge that measure before the Council of State (as jurisdiction).
69. The range of possible disciplinary sanctions against an
administrative judge differs from that suggested in Recommendation
(articles L 136-1 of the Code of administrative justice for members of
the Council of State).
Chapter VIII - Ethics of judges : paragraphs 71 to 73
The Supreme Judicial Council has recently published a "Compendium of ethical obligations of judicial magistrates” whose organic law of 5 March 2007 had entrusted the development (Organic Law No. 2007-287 of 5 March 2007 relating to recruitment, training and accountability of judges, Article 18). A similar project was developed by a working group of the Council of State and discussed with the two professional organizations of judges, two years ago. But this document has not yet been published.
It should be noted that the general meeting of the European Network of Councils for Justice issued in June 4, 2010 in London, a report entitled "Ethics for Judges - Principles, Values and Qualities" devoted to the ethics of European judges.