Administrative Justice in France. Between Singularity and Classicism

AuthorH. Flavier - Ch. Froger
PositionUniversity of Bordeaux (Bordeaux, France) - Paris-Sorbonne University (Paris, France)
Pages80-111
BRICS LAW JOURNAL Volume III (2016) Issue 2
aDMInISTRaTIVE JuSTICE In FRanCE.
BETwEEn SInGuLaRITY anD CLaSSICISM
HUgO FLAVIER,
University of Bordeaux (Bordeaux, France)
CHARLES FROgER,
Paris-Sorbonne University (Paris, France)
DOI: 10.21684/2412-2343-2016-3-2-80-111
The administrative justice in France oscillates between classicism and singularity. Multiple
factors explain how administrative justice has come to occupy a particular place in
French administrative law. Administrative justice has not only settled disputes between
administration and private persons, but as well, built the French administrative law. One
of the main tasks during 19th and 20th century consisted in strengthen the independence
from the executive branch and the eciency in order to satisfy the idea of good justice.
Many reforms have been led since the 1990’s. That is why we propose to depict the French
system and evaluate the activity of French administrative justice concerning the judicial
organization, its jurisdiction and the remedies before the administrative judge. We will
enlighten also our paper with a comparative approach and some statistical elements.
Key words: administrative justice; French civil procedure.
Recommended citation: Hugo Flavier, Charles Froger, Administrative Justice in France.
Between Singularity and Classicism, 3(2) BRICS Law Journal 80–111 (2016).
Table of contents
1. Introduction
2. Judicial Organisation
2.1. The Administrative Courts
2.1.1. The Ordinary Administrative Courts
HUgO FLAVIER, CHARLES FROgER 81
2.1.1.1. The Conseil d’État
2.1.1.2. The Administrative Courts and Administrative Courts of Appeal
2.1.2. The Specialist Administrative Courts
2.2. Administrative Judges
2.2.1. Members of the Conseil d’État
2.2.2. Judges of the Administrative Courts and Administrative Courts of Appeal
3. The Jurisdiction of the Administrative Courts
3.1. The Principle of Separation
3.1.1. Grounds of Jurisdiction
3.1.2. Exceptions to Jurisdiction
3.2. Protecting the Separation
4. The Remedies Available before the Administrative Court
4.1. The Distinction between Actions on Grounds of Ultra Vires and Full
Remedy Proceedings
4.1.1. Actions on Grounds of Ultra Vires
4.1.2. Full Remedy Proceedings
4.2. Developments in the Distinction
4.2.1. The New Action on Grounds of Ultra Vires
4.2.2. Overhauling Full Remedy Proceedings
4.3. The Emergence of the Question Prioritaire de Constitutionnalité
5. Fundamental Principles Applicable to Administrative Proceedings
5.1. Principles Governing the Organisation of Justice
5.2. Principles Relating to the Fairness of Proceedings
6. A Comparative Approach
6.1. The Inuence of French Administrative Justice in Europe
6.2. The Inuence of European Laws on the French Administrative Justice
6.2.1. The Inuence of EU and ECHR Law on Administrative Justice
6.2.1.1. The Extension of the Administrative Court’s Powers
6.2.1.2. Changes to Administrative Trials
6.2.1.3. State Liability for the Activities of Administrative Justice
6.2.2. French Administrative Justice under the Inuence of European
Administrative Laws
7. Statistical Elements
7.1. The Conseil d’Etat’s Advisory Activities in 2015
7.2. The Jurisdictional Activities of the Administrative Courts in 2015
BRICS LAW JOURNAL Volume III (2016) Issue 2 82
1. Introduction
If there is a country where it can be dicult to distinguish between administrative
justice and substantive administrative law, it is France. The judicial body and the
subject matter are inextricably linked to its existence and, probably for a long time
yet, to its future. Historical foundations, cultural reexes, national legal tradition –
multiple factors explain how administrative justice has come to occupy a particular
and preponderant – place in French administrative law.
Under the Ancien Régime, what could be termed administrative matters were the
purview of the intendants and of the Conseil du Roi (King’s Council). The Edict of Saint-
Germain 1641 thus forbade that the parlements1 should hear cases concerning State
aairs. More specically, it provided that the parlements and the Court of Paris “have
been established only in order to give justice to our subject” and that the King had issued
to them “very express inhibitions and prohibitions, not only to hear, in future, cases similar
to those heretofore set, but generally those which may concern the state, administration
and government.2 Nevertheless, the parlements did not abandon their judicial activism.
In the name of the separation of powets under Article 16 of the Declaration of the
Rights of Man and of the Citizen,3 the French Revolution continued that trend by
distinguishing between that which belongs to the judicial order and that which
belongs to the administrative order, and therefore to the State and the Executive
respectively. The Law of 16–24 August 1790 on judicial organisation, which is still in
force, thus prescribes at Article 13 that “judicial functions are separate and shall always
remain separate from administrative functions. Courts shall not, on pain of for feiture,
disrupt in any way the operation of administrative bodies, or summon administrators to
appear before them by reason of their duties/functions.4 This rule was rearmed – as
it had not been respected – by the Decree of 16 Fructidor Year III, according to which
“iterative prohibitions are made to the courts to review administrative acts, of whatever
kind, subject to the penalties provided by law.” The foundations of the specicity of
administrative justice were thus laid. The State’s administrative activities/actions
must not be hindered by a court that does not know about those activities and the
judicial branch cannot involve itself in matters relating to the exercise of executive
power. It is unsurprising, therefore, that in order to settle disputes that arose, it was
the minister himself, as the higher authority and guarantor of the proper operation
1 It is not Parliament within the meaning given to it today. The Parlements under the Ancien Régime
were ordinary courts.
2 Recueil général des anciennes lois françaises, depuis l’an 420 jusqu’à la Révolution de 178, t. XVI 529
(Isambert et Taillandier, Paris 1829).
3 Art.16: “Any society in which the guarantee of rights is not assured, nor the separation of powers, has no
Constitution.”
4 This legislation was the subject of a question prioritaire de constitutionnalité (QPC) which was not passed
on by the Court of Cassation (Cass. Civ., 2e, 21 June 2012, No. 1342 of 21 June 2012).

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