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WG Independence-Efficiency > Meetings > Beaulieu-sur-mer 2006 > Meeting Beaulieu-sur-Mer 10-11 March 2006- France

Meeting Beaulieu-sur-Mer 10-11 March 2006- France

Meeting of European administrative judges; Beaulieu sur Mer, 10-11 March 2006

Joseph Krulic

French administrative judge and european law

French administrative and constitutionnal courts had, and sometimes have, special difficulties to introduct or to combine french administrative regulations with european law, that is to say the legal framework of the European Union, the former European Economic Community.

These legal difficulties were specially obvious in combining or connecting some european provisions or regulations, which we call in french directives , with national law. As you know, at the very beginning, in the treaty of Rome(article 189), in 1957, the so-called directives were supposed to bind every state, member of EEC, only in the legal results. The” european “ states have to reach the goals and aims of the directives, and they seemed to have the choice in the means and ways of proceeding in searching this aim.

But what happens or happened, if there is no national law which, in a reasonable amount of time, is introduced in the national legal framework, inspired by an european directive ? in a state which is governed or managed by the rule of law, as all european states are supposed to be since the end of world war II, how can a french citizen, or an applicant who is living in France, force the administrative or political authorities to behave in conformity with european regulations or directives? in a state like France which is so proud to be a sovereign nation since the middle ages or, for the theory of supreme sovereignity, since the 16 th century, if we are taking into account the famous Jean Bodin’s book in 1576, La république, what are the distinctions which are made between individual and general decisions, between the role of the french constitution and the place of simple lois( acts voted by french parlement) when they disagree with european regulations ?

I°) The superiority of European Law is now admited by the french constitutionnal court

Since the treaty of Maatstrict of 1992, special provisions concerning european law are writtten in the french constitution. The constitutionnal reform voted by french parliament, the 25 the of june 1992, has introduced an article 88-1 in the french constitution so written :” the french republic is taking part in the European Union, which is constituted by states who made this choice freely, to exercise certain powers in common “. Before this treaty was ratified and this reform adopted, european law, from the constitutional point of view, was supposed to be a simple part of international law.

Article 55 of the french constitution recognises, since 1958, the superiority of international conventions on or above french law. But the french Conseil Constitutionnel has always refused to control the conformity of the acts voted by french parliament with international conventions ratified by the same parliament (for exemple, a famous decision of this constitutionnal council in 1975 refused to control the french law on abortion, compared to the article 2 of the european convention on human rigths, in which a ”right of living” is defined) ).

But since 1992, we have a constitutionnal distinction between international law and european law in the french constitution( article 88-1 and following articles for european law). In recent years, the french Conseil Constitutionnel admitted, very precisely and largely, the superiority of european law on french internal law. In a decision, the 10 th of june 2004, this french constitutionnal court declared that the council was not entitled to judge, from the constitutional point of view, the provisions of a french law ( act of parliament) which was only an introduction, in french internal law, of an european directive. If we prefer, european law makes it impossible a constitutional control of such acts of french parliament which are, more or less, european regulations translated in french law.

Of course, the legal reason of this refusal of judging the european-inspired french law is, if we read this decision, that, in the french constitution, the article 88-1 of this constitution has made the introduction of european law into french law a constitutionnal obligation. The second reason which is well-known and recalled by the french Conseil Constitutionnel is that only the european court of justice, in Luxembourg, is empowered to make judicial decisions on european law. There is only one exception which is made by the same decision of the 10 th. june 2004: if a clear provision in the french constitution seems to be against the introduction of an european law, the french Conseil Constitutionnel would be empowered to put aside the french law which would try to introduce the european law into the french legal framework. But this possible exception is very narrow : only some provisions about laïcité ( french secularism) or égalité devant la loi (equality of all inhabitants according to the french law), the very heart of exception française could stop the universally-recognized superiority of european law in the french constitutionnal field.

We can say there is a very subtle difference between the constitutionnal judge and the administrative judge. The french Conseil d’Etat considers that the introduction of european directive into french legal framework has to be made under the procedure which is in accord with internal internal law, including the constitution. If a constitutionnal rule prohibits the new european directive, french authorities have to change the constitutionnal rule first, including a simple rule of procedure. The Conseil d’Etat, however, recognizes the superiority of international treaty or comunity law above national law until a relatively recent period ( Conseil d’Etat,Nicolo, 20/10/1989), even it considers that the french administrative juge haven’t pout forward this supreroity Ex-officio, by is own motion (Conseil d’Etat, Société anonyme Morgane, 15/1/1991). For Conseil constitutionnel, only the constitutionnal substantial principle is to be defended against a possible anticonstitutionnal european directive.

II° The french administrative judge doesn’t admit the refusal of introducing european law into french legal framework

A) The effects of the obligation to introduce european provisions into french national law

If the french state doesn’t introduce a european directive into french legal system, the administrative judge has to declare administrative decisions or french national law as illegal and put aside the decisions based on such laws, and, therefore, to condemn the french state to pay the consequences of these illegal decisions and illegal behaviours is the normal result of judicial procedures for the applicants.

A.1) illegal decisions or french laws not in line with european law as a ground for the judge to put aside administrative decisions

In a a very famous decision ( Compagnie Alitalia, 3//2/1989), the french Conseil d’Etat has formulated the principle that “ national authorities cannot legally maintain, when the normal legal time is over, in national law, provisions or regulations which are not in accord with european directives, provisions or regulations “. The enacting of a new european rule( in fact directives) is a new legal circumstance which not only forbides to enact or publish a french national provision or regulation, incompatible with the directive, but also creates an obligation to suppress or modify all national regulations or provisions which are not compatible with the new european rule. The refusal to do so would be put aside by the french administrative judge and the french authorities would be obliged to modify or suppress french national law not in line with european law.

It is useful to precise that a french applicant can obtain that the french administrative judge put aside all individual decisions based on such french illegallly based individual decisions and, if the legal time is not over, the nullifying of all french regulations not in accord with european directives.

A.2 the enacting or the maintaining of french national law not in accord with european directives

If a damage results by the refusal to modify or by the will to publish national law not in accord with european directives, the responsibility of the french state could be taken into account by the french administrative tribunals and courts.

Of course, in the french legal system or framework, some difficulties result from the distinction between loi ( an act voted by parliament), and règlement, administrative regulation produced by the administration ( among them, the highest are the décrets signed by french prime minister). The french Conseil d’Etat considers that illegal consequences are resulting only from the règlements which are written by french administrative authorities. The decision of Conseil D’Etat Société arizona tobbacco product,( 28/2/1992) judged that such a french décret ( decree of the governement) was the direct source of illegal consequences, even if everybody knows that this décret was written to apply a loi, that is to say an act voted by parliament.

But the french principle that an administrative judge cannot directly judge an act voted by french parliament has many effects.

II) the impossible direct application of some directives for a french citizen or an applicant in french judiciary

Normally speaking, it is hard, some would say it is impossible, for a french applicant to obtain that the administrative judge put aside an individual administrative decision if this decision is clearly violating an european directive, when there is no french regulation in this field or legal area.

A) a case or application based on the opposition betwen an individual administrative decision and european directive

The mainstream of french administrative jurisprudence is that it is impossible to obtain that the judge put aside this kind of administrative decisions, we mean individual administrative individual decisions, if there are only violating european directive(s), but not french national law. This french principle is based on the european treaty ( Cf, Rome 1957, article 189, Amsterdam 1997, article 249 since the 1st may 1999) that a directive, normally speaking, has to be put into effect and introduced in national law by national acts of parliament, administrative provisions or regulations .

The Conseil d’Etat in its decision Cohn Bendit (22/12/1978) declared that the administrative judge cannot put aside an individual administrative decision if the this decision doesn’t respect an european directive, when in the same time there is no national legal framework inspired by this directive. On the contrary, for a general regulation, even if there is no national legislation based on an european directive in this field, it is possible, for the french administrative judge, to put aside every national regulation or provision, taken in the same field before or after the publishing of this regulation or provision without being in accord with this directive, except an act voted by parliament, which is not on line with an european directive ( Conseil d’Etat, Fédération française des sociétés de protection de la nature, 7/12/1984).

The european court of luxembourg has built, as you know, a different theory and jurisprudence for individual administrative decisions. For the european court, if a directive is sufficiently precise and unconditionnal in its effects, this directive could be the legal basis to put aside an individual administrative decision inn every country of the european union( ( for instance, CJCE, 28/11/1974,Rutili, exactly for the article 6 of the directive n°64-221 published the 25 februray 1964, about foreigners, which was judged in France in case Cohn Bendit. This conflict between the french administrative judge and european court of Luxembourg has not completely ceased

B) An evolution of french jurisprudence since 1996?

In a more recent decision (Conseil d’Etat, 30/10/1996, SA Cabinet Revert et Baelen, ), the Conseil d’Etat has judged that national law which doesn’t respect the aims of a european directives hasn’t to be applied and so, in practical terms, it means that the individual decision based on such a legislation has to be put aside.

Obviously, such a decision is not thought to be against the famous decision Cohn Bendit, but we can say that the practical effects of the former decision Cohn Bendit are relatively small. Of course, the french administrative judge likes to recall that the french constitution is, in principle, the highest rule in France ( Conseil d’Etat, Sarran,30/9/1998 )./ In principle, it is only because the constitution defines the superiority of international treaties and conventions that theses treaties have a legal priority on national law. In France, for the administrative judge, european law, as international law, cannot prevail, in internal french legal framework, on or above the french constitution. So, if european law is superior, in France, on french law, including on acts voted voted by parliament, the french constitution is superior on european law in the internal french legal hierachy ( Conseil d’Etat, 3/12/2001, Syndicat national de l’industrie cnématographique). Of course, this so-called superiority is only internal, in the french territory: on international scale, international law prevails.

So, we can say that french administrative judge, more and more, recognises, on theory or practically, the superiority of european law, including the directives, above french law and regulations. But there are some problems. The place of the french constitution and, sometimes, if there is no french regulation inspired by european directives, the relationships between individual administrative decisions and european directives are not so clear.