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WG Independence-Efficiency > Meetings > Beaulieu-sur-mer 2005 > Meeting Beaulieu-sur-Mer 11-12 March 2005 - France

Meeting Beaulieu-sur-Mer 11-12 March 2005 - France

I. The direct access to the judge

1) what organisms have access to the judge?

The French system is characterised by very broad access from the non profit making organisms (NGO) to the judge of the abuse of power [ i.e. asks of cancellation or of reformation of an administrative act ], which is the principal way by which the legality of the administrative action is checked in France, beside said recourse of "filling-up contentious", i.e. tending to see engaging the responsibility for the public power.

The organisms concerned first of all are associations, very many and present in all the fields.

Any association of persons can form freely without authorisation nor preliminary statement. Two people are enough to create an association. But only the regularly declared associations can (without authorisation) be party to legal proceedings. This statement is made to the prefecture of the registered office of the association and gives rise to a publication in the Official Journal (for a very moderate amount, and without periodic renewal obligation).

Trade unions (groupings of employees of the private sector or of officials, of employers, of joint owners…), the political parties, the professional orders (organisms made up obligatorily for numerous professions and which are intended, between other missions, to defend the professional interests of their members) and the unions or federations of trade unions or of associations can also reach the judge.

2) under the terms of what provisions?

The Constitution, which does not mention moreover the existence of the administrative judge, comprises no provision concerning the access of the NGO to the judge.

_ the law be able it envisage, but in a term such that the judge preserve a margin of appraisal to decide of existence of a interest to act in front of him (see for example article L. 142-1 of code of environment, in the case individual of association approve: "any association approve of protection of environmental justify of a interest to act against any administrative decision administrative have a relation direct with its object and its activity statutory and produce a effect detrimental for the environment on all or part of territory for which it benefit of approval").

If the law lays down in certain fields an individual authorisation procedure of the associations (for example approved associations of environmental protection and of the consumer protection), such an established approval to exercise the rights of the civil part in front of the penal judge, is not necessary at all to be able to lodge an appeal in front of the administrative judge.

The law also recognises, in very broad terms, the possibility of acting in justice for the NGO other than the associations (professional orders, works councils, trade unions…).

It is therefore in fact primarily the case law which defines the interest in acting of the NGO in front of the administrative judge.

3) to ask what?

Like any individual applicant, a NGO can ask for in front of the administrative judge cancellation or the reformation of an individual administrative act, cancellation or the modification of a decision of a regulatory nature (or the cancellation of the refusal to take or report such a decision) and the compensation for the material or non-material undergone harm.

In particular, any grouping is recognised a right to compensation for the non-material harm resulting from the lesion of the collective interest continued by its statutes.

4) while availing oneself of what interest?

The interest in acting is always recognised when the NGO is affected in its own interests (existence, inheritance, operating conditions). It can then, on the same plan as would have it an individual, the administrative judge referred to the administrative decisions being prejudicial to such elements or the local authority’s responsibility which injures its interests sought.

But it is the recognition of a collective interest of a moral nature to the NGO, and particularly to the associations, which is the main feature of the French system.

This broad access of the NGO to the administrative judge proceeds itself of recognition by the case law of the character of public interest of recourse for abuses of power.

The first teaching to draw French experience is therefore that, to study the conditions of access to the administrative judge of the NGO, one first must refer to the conditions of access to natural persons’ judge.

Like natural persons, groupings have thus to justify of a personal, direct and unquestionable interest:

 The rule "no-one acts by prosecutor" applies to natural persons as for the groupings. In abuses of power, such as, especially, in full contentious matter, a grouping is not admissible to be acted to the place and place of all or part of its members to seek the cancellation of a decision or to have them obtained individual advantages. It is not therefore made it possible for the organisation to replace a member and, a contrario, a member or an unspecified member of the public cannot ask the NGO to bring an action for his account.

The no principle "pleads by prosecutor" means that a measure specifically unfavourable to a person could be attacked only by it. This applies particularly as regards public service, where case law makes a distinction between negative measures (redundancy, disciplinary actions, refusals of nomination or of change, retained on treatment) and positive measures (nomination, advance, assignment of a public agent). Case law is however moderate: With regard to the administrative authorisations of the protected employees’ redundancy, the employees’ trade unions are admissible to tackle an authorisation decision, because the collective interest is judged affected by the redundancy of these employees.

On the other hand, as we will see hereafter, an association or a trade union can intervene in support of the claims of a victim private individual of a negative measure.

The case-law practices have the effect that in contrast, the administrative judge can recognise to the NGO an interest in acting broader than that of the private individuals, in matter in particular of town planning and of environment, or even of public service: To tackle a building permit, the judge requires of the private individual that he is an immediate neighbour of planned construction, except if this involves a construction of great importance. In contrast, an association aiming to preserve the compliance with the town planning rules will be able to attack all allowed to build in its competence area. Similarly, an association of holders of a title or diploma will be able to tackle any individual attribution decision of this title or diploma, contrary to a titular natural person of these diplomas.

 The simple theoretical interest to the defence of legality is not enough to confer interest in acting. Thus the invocation of the quality of citizen, and even to representative, local or national, is not enough, and the same is true for the associations of citizens or of elected representatives. The simple quality of inhabitant does not confer more interest in acting.

On the other hand the quality of local taxpayer is sufficient to be able to tackle a measure within local scope.

Similarly, the quality of user of a public service is enough to give quality to act against the measures concerning the organisation of a public service (Judgement EC 21.12.1906 Trade union of the owners and taxpayers of the Cross district of Seguey-Tivoli – decision of removal of the servicing of the district by tram). On the other hand, by respect of the hierarchical principle, the public agents and their trade unions or associations are not admissible to dispute the organizational measures of the service.

 The invoked interest has to be legitimate.

 The invoked interest has to be in correspondence with the object of the contested decision: a student or an association of students can tackle only decisions as regards organisation or operation of the studies. Similarly can foreign countries or an association of the foreigners’ protection attack that decisions regulating the foreigners’ stay. Similarly, a tradesman or an association of tradesmen can tackle an authorisation of use of a shopping centre, but not the building permit the building intended to hold this centre.

When somebody can avail himself of plurality of interests, the judge retains only the interest that he invokes and is prohibited from substituting automatically the interest "good" for that invoked by the interested party if he is not likely to enable it to act. If necessary, the interest recognised will be only partial, in so much for example, as regards public service, that the provision under consideration concerns the category of public agents including changing the applicant or the association.

The methods of appraisal of the interest are also transposable to the associations in acting applicable to the private individuals:

 appraisal in the date on which recourse is exerted, 
 appraisal in relation to the request and not in relation to the raised arguments, 
 appraisal in relation to the content and not for the reasons for the contested decision, 
 appraisal without taking account of the real or supposed mobiles: For example, an association being presented according to its statutes as aiming to defend the environment is admissible to tackle the decision of issue of a building permit in a trade undertaking while at the same time it would be established that its leaders are the employees of a competing company (judgement MT of Strasbourg of 4 March 2004).

5) how are the criteria of the interest in acting established?

With regard to the conditions of access to the judge specific to the NGO, the judge refers to the statutes of the grouping under consideration to define the interest in acting.

The interest in acting can be denied by the judge:

 i.e. if the statutory object is too vague: "fight the injustice in all its forms", "take care of the respect of the principle of equality in the public service" (with regard to a measure carrying nomination and remuneration of an official)

 i.e. if the geographical spring of the association does not correspond to the geographical field of the contested act: Thus are the national associations generally admissible to act against decisions within local scope, but the reverse is inaccurate.

The result is case law particular to the unions and federations of trade unions or of associations, in that if the measure affects only the interests of an association or of a trade union or member association, the union or federation will not be able for to substitute itself.

The administrative judge preserves a major appraisal margin in the interpretation of the statutes. Many cases are not obvious and the appraisal of the interest in acting, which constitutes a question of a public nature (i.e. the judge has to raise automatically if the administration does not put forward this argument) frequently gives rise to differences between the judge of first authority, of call, and, possibly, of cassation.

6) criteria of the interest in acting

It results from the developments which precede that the judge does not take at all into account the criteria such as seniority, previous experiment, continuity of the action, number of members or importance of the budget. It can even occur, subject to the respect of the two-month recourse period, that it admits the interest in acting of an association made up after the intervention of the contested decision.

It takes on the other hand account of the geographical extent of the competence of the NGO, defined by its statutes (see above).

The judge does not take more into account the regularity of the working procedure of the NGO, provided he checks that the person who lodges the appeal on her behalf, either was designated by the statutes to represent it in justice, or failing this was expressly entitled by the qualified collegial body designated by the statutes (Board of Directors, or even general meeting).

7) in what fields?

The legal action of the NGO is particularly important in the fields of the environment and of the protection of the wild fauna, of town planning and of construction, of the foreigners’ right and of the public service.

The associations of public service users (in particular associations of pupils’ parents) are also rather active.

8) comparative outline and statistics

The liberal practice of the administrative judge (except strict application of the rule "no pleads by prosecutor") leads to having in practice recourse of the associations be easier than that of the private individuals.

Major associations constituted themselves for the defence of interests or of specific persons (environmental protection – contributes to the foreigners).

At the other end, number small local associations are created with the aim alone of exerting recourse against an equipment draft (airport – railway – roads…) or of construction (household refuse, shopping centre, prison incineration factories…).

Not more than natural persons, NGO do not have obligation to resort to a lawyer to lodge an appeal.

The only real risk incurred by the NGO is that, if it loses its recourse, its adversary can ask to put at his charge the expenses of the lawsuit. But the judge is in general benevolent and possibly does not condemn the NGO, especially if they have a local character and its thus supposed to have weak financial resources, that to a flat-rate amount of a modest amount (lower than EUR 1.000).

Recognition by the case law of the character of public interest of recourse for abuses of power against the administrative acts has in addition as a consequence a clear difference between the access of the NGO to the administrative judge and their access to the legal judge.

In front of the penal judge, only for example of the approved associations the recognised rights to the civil part for the facts can exert causing direct or indirect harm to the collective interests that they have the aim of defending and constituting an infringement of the legal provisions on environment.

This approval is subordinated to a preliminary three-year activity at least in the field under consideration and to the existence of a relatively important budget.

Similar regulation exists for the approved associations of the consumer protection.

Thus conferred approval to act in front of the penal judge does not make the aforementioned association automatically admissible to act in front of the administrative judge (i.e. the judge is not satisfied with the approval decision and will examine the statutes of the association).

 One does not have generally statistics making it possible to determine the percentage of the actions brought by the associations and trade unions, the more so as it is frequent that NGO act in front of the judge jointly with one or more persons concerned.

One can estimate it at most at 2% of recourse for abuses of power.

On the other hand, many judgments delivered to the request of the NGO have a considerable scope:

 As regards defence of the foreigners’ rights, major national associations are at the root of the cancellation of many regulations and of circulars.

 As regards environment, it also is the associations which are at the root of the cancellation of regulations (case law is particularly provided for the decisions considered contrary to the European law concerning the opening of the shooting season dates for the birds).

 As regards public service, it is primarily recourse of the magistrates’ administrative trade unions which contributed to the decisions of the Council of State concerning various aspects of the magistrates’ statute. Similarly, did associations or trade unions of lawyers frequently tackle regulatory provisions on the organisation of the procedure in front of the administrative judge.

 As regards operation of the public services, the users’ associations also are in the beginning numerous decisions of court.

The legal action of the NGO is a piece of data generally well admitted in France and there is no law project intended to restrict it or limit the role of the judge in the definition of the interest in acting.

II. access to the judge to the support of a private individual in an action previously exerted by him or to his opposition ("intervention")

The judge recognises the possibility in the trade unions and associations of intervening, without condition of period, in support of the request or of persons’ answer of which they have the aim of defending the interests, whether these form or non part of their members.

The participant can ask for nothing moreover than that that he maintains, but he can put forward separate arguments (however little they involve the same legal cause as those invoked by the applicant) to which the judge is required to answer, and it is frequent that a decision is annulled in view of the argument of a participant.

The interest required as regards abuses of power is appreciated liberally.

Whereas a trade union or an association is not admissible to be provided itself directly against a negative measure assigning a private individual, it can intervene in support of recourse for abuses of power exerted by the person concerned.

In full contentious matter, the participant has to prove the existence of an injured right, which is more difficult than the existence of a simple interest to the cancellation of a decision.