Conseil d'État
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- This article is about the present-day French institution. For institutions with the same name during the Ancien Régime in France, see Conseil du Roi. For other uses, see the disambiguation page Council of State.
In France, the Conseil d'État (English: Council of State) is an organ of the French national government. Its functions include assisting the executive with legal advice and being the supreme court for administrative justice. Its members are (for the most part) high level jurists.
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[edit] Organisation
The presidency of the Conseil d'État is held by the vice-president. The general assembly of the Council of State may be presided by the prime minister, or, in his absence, the justice minister.[1] The vice-president of the Conseil is considered, for ceremonial purposes, the foremost civil servant in France. The current vice-president is Jean-Marc Sauvé.
Other members of the Council include, by decreasing rank:
- presidents of sections;
- councillors in ordinary service;
- councillors in extraordinary service;
- masters of requests;
- first class auditors;
- second class auditors.
The vice-president is appointed by decree in the council of ministers on the proposition of the Minister of justice; he or she is chosen among the presidents of sections of the Council, or councillors in ordinary service.[2] The presidents of sections are appointed by decree in the council of ministers on the proposition of the Minister of justice, and chosen from the councillors in ordinary service.[3]
Councillors in ordinary service, masters of requests and first class auditors are appointed in majority from the rank immediately inferior.[4] Appointees from outside the Council may be judges from administrative courts [5] or may come from other bodies[6]. Second class auditors are named among the graduates of the École nationale d'administration.[7]
The Conseil is seated in the Palais Royal in Paris.
The Conseil is divided into 6 sections:
- The litigation section (section du contentieux) — see below.
- The section of the report and studies (section du rapport et des études) writes the annual report, conducts studies and helps in ensuring the proper execution of litigation decisions.
- The finance section (section des finances), interior section (section de l'intérieur), social section (section sociale), public works section (section des travaux publics) reviews all ordinances, all statute projects drafted by the Council of Ministers as well as all decrees for which that review is compulsory (décrets en Conseil d'État). Such reviews are nonbinding, but they are compulsory.
The Conseil d'État may also review legal problems addressed to it by the Ministers.[8] It is also charged with the inspection of administrative courts.[9]
[edit] History
The origins of the Conseil d'État go back to the 13th Century, where it appears under various names, sometimes as "Conseil privé" or "Conseil des parties" ("Privy Counsel") and sometimes as "Conseil d'État". It brought together lawyers (legists was probably a more accurate term) to provide counsel to the king with respect to law suits. Officially instituted in 1557, this was the largest of the royal counsels (see Conseil du Roi), composed of the chancellor, the dukes with peerage, the ministers and secretaries of state, the contrôleur général des finances, the 30 counsellors of state, the 80 maître des requêtes and the intendants of finance.
The kings, who held the capacity to dispense justice and render judgments as the court of last resort, let that power be exercised by courts and parlements. But the king still retained the power to override them at will. In particular, the kings continued to decide great issues and to make decisions when the acts of their administration were disputed. The decisions of the king’s Conseil d'État were regarded as being issued under “restrained justice” (that is the self-restraint of the sovereign). The legists also assisted the king in the development of new laws in addition to their exercise of “restrained justice”.
For more on the French government administration during the "ancien régime", see Ancien Régime in France.
The current Conseil d'État was created under the Consulate in 1799 as a judicial authority responsible for lawsuits against the State and charged with helping in the drafting of the most important legislation. The First Consul (later Emperor) presided over its sessions, and the Council performed many of the functions of a Cabinet. After the Bourbon Restoration, the Council was retained as an administrative court but without its former prominence.
Its role was better defined by the law of 1872.
[edit] Advisory role
Certain kinds of government decisions must be referred to the Conseil d'État for advisory review. These includes :
- All law projects (government's bills) before they are sent to Parliament. Bills proposed by members of the Parliament do not undergo this procedure.
- Certain decrees, known as décrets en Conseil d'État. These decrees, signed by the Prime Minister and the ministers with the scope of the decree, are secondary legislation : they define the implementation details of laws. Typically, a law will authorize, prescribe or prohibit an action defined in broad terms, and call for a décret en Conseil d'État to define the details.
The advisory workload is divided between the various administrative sections of the Conseil according to the government ministry or subdivision thereof primarily concerned by the decision.
[edit] Litigation
The Conseil for the system of administrative justice. It hears both recourses against decrees and other executive decisions from the President of the Republic and the cabinet ministers, as well as appellate cases from lower administrative courts. Its decisions are final.
While the Conseil is strictly speaking not a court, it functions much like one with respect to litigation. Plaintiffs are represented by lawyers drawn from the same exclusive bar as the Court of Cassation.
[edit] First instance litigation
The Conseil hears cases against decisions of the national government (decrees, regulations issued by ministers, decisions by committees with a national competency) as well as recourses pertaining to regional elections.
The Conseil d'État examines the conformance of regulations and administrative decisions with respect to the Constitution, higher administrative decisions, the general principles of Law, statute law, international treaties and conventions. The general principles of law are principles that are not found in any statute but derive from the spirit of the body of law; they are discovered by the Conseil and thus made into case law.
The Conseil has full latitude to judge on the legality of any decision from the executive branch, except for the very narrow category of "acts of government" where it judges itself incompetent. The Conseil itself has judged that such acts are restricted to:
- relationships between the executive branch and the legislative branch (whether to submit a law project to parliament...)
- acts that cannot be separated from the foreign policy of France.
See the analysis on the Conseil's site for more information (in French).
As such, the Conseil acts as a powerful check on the actions of the executive.
[edit] Appellate jurisdiction
The Conseil is the appellate jurisdiction for decisions of administrative courts (the 37 tribunaux administratifs) regarding local elections.
It is the cassation jurisdiction for decisions by administrative courts of appeal (the 8 cours administratives d'appel), meaning that it hears cases in which the plaintiff argues that the court of appeal ignored or misinterpreted law.
[edit] Procedure
The procedure is inquisitorial: the litigant writes a letter to the Conseil, stating precisely what happened and why he feels that the defendant acted illegally; the Conseil then starts an inquiry, asking the other party (generally, a government or government agency) for precisions, and so on until the Conseil has a clear picture of the case. The litigant does not have the burden of proof: the Conseil may well decide that the litigant was right and the government was wrong if the information supplied by the litigant was sufficient to enable it to find the missing proofs. Of course, both parties may supply supplemental information until the case is ready for final judgment.
In some cases, it is unclear whether a case should be heard before administrative courts or judiciary courts. In this case, the tribunal des conflits, made of equal number of members of the Conseil d'État and of judges from the Court of Cassation and presided by the Minister of Justice is summoned.
[edit] Main Decisions of the Conseil d'État
As it renders final judicial review over almost all acts of the executive branch, the decisions of the Conseil d'État may be of considerable importance, often not for the actual case judged, but for the implications on the interpretation of law. While France is a civil law country and there is no formal rule of stare decisis, lower courts follow the jurisprudence constante of the Conseil d'État. The major decisions of the Conseil d'État are collected into books and commented by academics; the official site of the Conseil carries a list of comments on important decisions. The interpretation of points of law forms the Conseil's doctrine.
The decisions are named after the individual(s) or body who has appealed to the Council. The name of male individual used to be preceded by Sieur, the name of female individuals by Dame or Demoiselle and the name of widows called by their husband's name Dame veuve.
Among the important decisions are the following:
- February 19, 1875 - Prince Napoléon
The fact that a decision has been taken with political considerations does not make it an "act of government" that cannot be judged upon by the Conseil (reversal of previous doctrine). A prince had been removed from the army for political reasons. The council stated that his case had to be heard but was not founded because the law said that his position was revocable.
- May 28, 1954 - Barel. Freedom of opinion of civil servants.
The administration cannot exclude people from applying for civil service positions solely on the basis of their political opinions. (Some communists were refused admittance at the École nationale d'administration).
- October 19, 1962 - Canal, Robin & Godot
The executive branch may take decisions by ordinance only in the narrowly defined field authorized by the habilitation law. The executive cannot decide the creation of courts whose procedures and absence of recourse are outside of the general principles of criminal law.
This decision was the source of strong tensions between the Conseil and president Charles de Gaulle.
- February 3, 1989 - Alitalia corporation
The executive branch has the duty to cancel illegal regulations, even if they were initially legal. Regulations must conform to European Union directives whose transposition period has expired.
- October 27, 1995 - Commune of Morsang-sur-Orge, the "dwarf throwing case".
The respect of human dignity may be included in "public order". (A mayor had prohibited a dwarf throwing attraction on grounds of public order, since this attraction did not respect human dignity.)
This decision nevertheless stops short of including morality in public order.
- March 3, 2004 - The asbestos case.
The State may be held responsible for not taking appropriate measures, according to the current scientific knowledge, for protecting the workers' health (against asbestos), even if the workers work for private employers.
[edit] References
-
- This article is based in part on material from the French Wikipedia.
- ^ Code of administrative justice, article L121-7
- ^ Code of administrative justice, article L133-1
- ^ Code of administrative justice, article L133-2
- ^ Code of administrative justice, articles L133-3, L133-4, L133-5.
- ^ Code of administrative justice, L133-8
- ^ Code of administrative justice L133-7
- ^ Code of administrative justice, article L133-6
- ^ Code of administrative justice, L112-2
- ^ Code of administrative justice, L112-5
[edit] See also
- Cour des Comptes
- Conseiller d'État
- Constitutional Council of France
- Justice in France
- Politics of France
- Supreme court
