Conseil d’ Etat as Administrative Court

CHANAKYA NATIONAL LAW

UNIVERSITY

Final draft for fulfilment of project of Administrative Law

On
“Conseil d’ Etat as Administrative Court”

Submitted to: - Dr. Syed Ali Mohammad

Faculty of Administrative Law Submitted by: Kartikay Trivedi
Roll no.1532
3rd year B.A. LL.B. (Hons.)

1|Page
 Conseil d’ Etat as Administrative Court

TABLE OF CONTENTS

RESEARCH METHODOLOGY ................................................................................................ 4

CHAPTER 1- INTRODUCTION ................................................................................................... 5
CHAPTER 2- JURISDICTION OF THE CONSEIL D'ETAT ...................................................... 7
CHAPTER 3 – DECISIONS OF THE CONSEIL d'ETAT .......................................................... 10
CHAPTER 4 - ENFORCEMENT OF ADMINISTRATIVE DECISIONS ................................. 13
CHAPTER 5 – CONCLUSION, CRITICISM AND SUGGESTIONS ....................................... 15
BIBLIOGRAPHY ......................................................................................................................... 17

2|Page
 Conseil d’ Etat as Administrative Court

ACKNOWLEDGEMENT

I would like to thank my faculty Dr. Syed Ali Mohammad without the kind and support of whom
the completion of the project would have been a herculean task for me. He took out time from his
busy schedule to help me to complete this project and suggested me from where and how to collect
data.

Acknowledges are also due to my friends who gave their valuable and meticulous advice which
was very useful in writing the project.

I would also like to express my gratitude towards the library staff for working long hours to
facilitate us with required material going a long way in quenching our thirst for education.

I would also like to express my gratitude towards my parents and all those unseen hands who
helped me out at every stage of my project.

KARTIKAY TRIVEDI

3|Page
 Conseil d’ Etat as Administrative Court

RESEARCH METHODOLOGY

AIMS AND OBJECTIVES-

The research will do the research to understand the working of Conseil d’ Etat as an
administrative court.

HYPOTHESIS-

The researcher strongly believes that Conseil d’ Etat is an effective administrative court of
France and it has its own value in France.

METHOD OF RESEARCH-

The researcher will emphasize and use the doctrinal method to prepare the project.

SOURCES-

Primary Sources-

 Books
 Websites

Secondary sources-

 Journals
 Articles

4|Page
 Conseil d’ Etat as Administrative Court

CHAPTER 1- INTRODUCTION

A dissertation on the French Conseil d'Etat by an American student of comparative law must be
approached with caution for the reason advanced by Professor Lawson of Oxford University, who
warns that French law "contains the idiomatic irregularities of an old and civilized language; and
just as the French language eludes the efforts of all who have not been brought up from childhood
to use it, so French law with all its rationality and massive good sense eludes, while it fascinates,
the foreign observer.”1 Furthermore, an analysis of the judicial evolution of that body should be
underscored by an appreciation of French political and social development through which an
understanding of the origins of modern French law may be achieved.2 Without such a background,
references to general principles and natural justice as exemplified by the Conseil's decisions are of
diminutive value. Yet such reference is essential to an intelligent comprehension of the functioning
of the Conseil d'Etat, for on those fundamental concepts it has created a remarkable system of
administrative justice. The importance of administrative law in the twentieth century cannot be
exaggerated.3

In 1952 Mr. Justice Jackson stated that "the rise of administrative bodies probably has been the
most significant legal trend of the last century and perhaps more values today are affected by their
decisions than by those of all the courts years later Mr. Justice Frankfurter remarked that the largest
category of the Supreme Court's work comprised review of administrative action, largely reflecting
enforcement of federal regulatory statutes, which then represented one third of the total cases
decided on the merits.4 In the framework of those observations, a study of the highest
administrative court of France should be more than an academic recital of procedural niceties by
which to contrast the quasi-judicial administrative organizations of two countries. Without
attempting to categorize the faults and virtues of the French and American systems-a task beyond
the competence of this writer in any case it should be possible to focus on that area of
administrative activity in which the quality of American practice would be well served by an

1
Lawson, The Approach to trench Law, 34 Ind. L. J. 531 ( 1959).
2
"Behaviorism needs to be introduced in jurisprudence: it may be that it is more important than any reflections on
the sources of the law unless it is considered itself a source of law." Lepaulle, Reflections on the Sources of the Law,
from "Essays in Jurisprudence in Honor of Roscoe Pound" ( 1962).
3
FTC v. Ruberoid Co., 343 U.S. 470. 487 ( 1952).
4
Frankfurter, The Supreme Court in the Mirror of Justices, 105 Univ. of Pa. L. Rev. 781 (1957).

5|Page
 Conseil d’ Etat as Administrative Court

understanding of the French rationale. Professor Davis suggests that the pervasiveness of the
effects of the administrative process in the United States can be appreciated by examining a few
samples of "what the administrative process protects against."5 The great strength of the Conseil
d'Etat emanates not from what it protects against but from what it protects. By giving affirmative
expression to the doctrine that the just and equitable quality of public administration be maintained
in the face of growing social demands and bureaucratic complexity, the Conseil d'Etat has emerged
as the champion of civil liberties in France.

Because this paper will attempt to elucidate prevailing doctrines of French rather than American
administrative law, a single instance of American litigation will be presented for comparative
purposes as an illustration of a sore spot in our law that might be healed by application of what the
French call les principes généraux du droit. In 1957 the Federal Trade Commission issued an
immediate cease and desist order against a commercial firm discriminating in prices between its
small and large quantity purchasers. The firm replied that it would be forced out of business if such
customary pricing were denied to it while its competitors were free to continue the practice. The
Court of Appeals conditioned the order by directing that it not take effect until appropriate agency
action could be instigated on an industry-wide basis, resting its decision on the premise that the
court has a right to consider the effect of the order on the firm "in light of equitable principles, and
to grant relief accordingly."6 The United States Supreme Court reversed, holding that the
determination of the FTC should not be over-turned in the absence of a patent abuse of discretion.7
Equitable considerations of the undue hardship on an innocent seller were relegated to second and
loosing place. The harshness of that decision has been much criticized, but the problem illustrated
has not been corrected. In part the issue concerns conflicting jurisdictional doctrines and turns on
the scope of appellate review, but in the final analysis it is the standard to which agency action
will be held by our highest court that is of primary

5
Protection against excessive prices for utilities, unreasonableness in rates, sched- ules and services of public
carriers, adulteration in food, false advertising and the like are listed as samples of the thousand or more items we
are accustomed to take for granted. Davis, Ad. L. Text (1959).
6
C. E. Niehoff & Co., v. FTC, 241 F.2d 37, 40 (7th Cir. 1957).
7
Moo2 Industries. Inc. v. FTC, 355 U.S. 411 (1958).

6|Page
 Conseil d’ Etat as Administrative Court

CHAPTER 2- JURISDICTION OF THE CONSEIL D'ETAT

Since 1953 the Conseil d'Etat is properly classified as a court of appellate rather than original
jurisdiction, a court of jurisdiction deception contrasted to the jurisdiction de droit commun
currently enjoyed by the newly advanced Tribunal Administrates. However, in specific
circumstances original jurisdiction has been reserved to the highest court: in disputes concerning
the status of some civil servants, proceedings challenging administrative acts not limited in effect
to the area of any single Tribunal Administrative, proceedings to annul actes reglementaries and,
most importantly, proceedings to annul an administrative decree, the Conseil d'Etat remains the
court of first instance. There are three ways in which the Section du Contentieux may exercise
jurisdiction: 1) as a court of original jurisdiction in one of the categories excluded from the
Tribunaux Administratifs; 2) on appeal from the Tribunaux Administratifs; and 3) by way of
cassation from any other administrative jurisdiction. Thus, of the three forms of action available
in French administrative courts- the recours pour excès de pouvoir and the recours en cassation
developed from the principle of administrative legality, and the recours de pleine juridiction where
damages are sought in accordance with the principle of administrative liability- none is excluded
from the Conseil's area of comp The doctrine of administrative finality as understood in the United
States does not exist in France. There it might be defined as the propo- sition that no administrative
act is final if challenged by an aggrieved party unless and until expressly approved by the supreme
administra- tive court. With the exception of actes du gouvernement8 over which the Conseil d'Etat
traditionally refrains from exerting its influence or authority, no area of administrative concern is
exempt from the scrutiny of that body.

The subject matter jurisdiction of the Conseil d'Etat may be de- scribed as encompassing any cause
of action arising out of activities of a service public, that is, any service performed to meet a public
need by an officer or agent of public authority acting by virtue of that authority and exercising
certain prerogatives unavailable in transactions between private parties.9 As developed by the case
law of the Conseil, that concept and the many exceptions thereto are among the most elusive in

8
There are three main categories of governmental activity so classified: dealings of the executive with the legislative
branch, foreign relations, and some aspects of the conduct of war and national defense. Schwartz, French
Administrative Law and the Common Law World (1954).
9
See Brown & Garner, French Administrative Law, p60, (1967).

7|Page
 Conseil d’ Etat as Administrative Court

French law, impossible of succinct definition and suggestive of the most critical disadvantage of a
bifurcated legal system. The very existence of a Tribunal des Conflicts, whose function is the
determina- tion of jurisdictional disputes between the Conseil d'Etat and the Court de Cassation,
the highest civil court in the nation, bespeaks the diffi- culty of enunciating a clear distinction
between those matters tradition- ally reserved to the civil courts and those over which only an
adminis- trative tribunal may exercise control.

In choosing between administrative and judicial avenues of redress a French plantiff must consider
the following refinements of the public service doctrine as a determinative factor. A public service
may be provided by a private rather than an administrative entity in which case the private
enterprise, though traditionally accountable to the civil courts, will be within the jurisdiction of the
administration. Conversely, an administrative body or agent may perform a function not within
the scope of the public service doctrine and consequently fall within the jurisdiction of the French
law courts. If one contracts with the administration and the contract contains only normal
provisions ordinarily found in contracts between private parties, any dispute thereupon must be
resolved in a civil court. Similarly, if a public service is industrial or commercial in nature cases
arising from the performance of such service are cognizable in a court of law.

If the act of a public servant is flagrantly illegal it is considered to be his private act: he has
committed a voie de fait by acting beyond his administrative jurisdiction and exceeding the limits
of his authority. It is not clear just what degree of illegality is necessary to constitute such a voie
de fait but the French plantiff must hazard a determination. If he challenges an administrative act
as illegal, he belongs in the Consil d'Etat; but if that act is too illegal it is outside of administrative
jurisdiction and he must present his case in a court of law, unless on the record he can show that
the personal fault of the administrator cannot be separated from the service in question, in which
case the "combination of faults" affords him two distinct causes of action, one against the state and
one against the officer. Some matters remain within the exclusive jurisdiction of the civil courts
by tradition; others are removed from the administrative courts by express statutory provisions.
Thus, eminent domain actions are traditionally reserved to civil courts for assessment of
compensation; but the civil judge who may award damages for injury or loss of property cannot
declare the condemnation procedure invalid. That determination must be made by an
administrative court. Taxation issues are similarly split between two sets of tribunals, all matters

8|Page
 Conseil d’ Etat as Administrative Court

relating to indirect taxation (customs duties and sales taxes for example) being within the
competence of the civil courts by statutory authorization; while what the French regard direct tax
litigation (mainly income tax litigation) forms a substantial portion of the work of the Tribunaux
Administratifs. All workmen's compensation cases are by legislative mandate ad judicable in civil
courts, there being found no logical justification for the application of different rules by different
courts to determine liability for injuries suffered in state as opposed to private employment. The
same good sense is reflected in a decree-law of 31 December, 1957 whereby jurisdiction over all
damage actions stemming from automobile accidents is vested in the civil courts.

Messrs Brown and Garner have devoted substantial attention to the jurisdictional problem inherent
in France's dual court system in their 1967 text, French Administrative Law, (a work uninhibited
by any misgivings as to the authors' ability to come to terms with that elusive quality of French
law described by Professor Lawson). They express the opinion that rules delineating the respective
competences of civil and administrative courts are now "reasonably well defined" and suggest that
it would be a mistake to exaggerate the number of cases in which jurisdictional conflicts occur.

9|Page
 Conseil d’ Etat as Administrative Court

CHAPTER 3 – DECISIONS OF THE CONSEIL d'ETAT

As there are parallel legal systems dealing with private and public law in France, so there are
distinctive bodies of substantive doctrine found in the decisions of the nation's highest courts: the
Court de Cassation, supreme civil tribunal, is bound by provisions of the Civil Code of 1804; the
Conseil d'Etat, supreme administrative tribunal, is under no such compulsion. The Conseil looks
beyond the Code to unwritten principles on which to rest its fundamental concept of administrative
justice in harmonizing the public need for efficient administration and individual enjoyment of
private rights. The balance achieved reflects the development of separate theories of contract and
tort law applicable only to the regulation of conduct between private parties on the one hand and
governmental entities on the other. What the French call contracts administratifs are negotiated
between unequal parties. Logically, Code provisions formulated to govern business practices
between equals are not appropriate vehicles for the resolution of conflicts in which the public
interest is of paramount importance. Consequently, the private citizen who bargains from a
disadvantaged position with a public agency is often afforded relief not available in civil courts.
The Conseil d'Etat recognizes as grounds for reformation or recession of administrative contracts
changed circumstances which would not work to similar advantage for plantiffs in an- other court.
The doctrine of imprévision is invoked to provide fair compensation for a contractor and adequate
service for the commune he serves when contractual provisions become demonstrably unjust to
him or unsatisfactory to the public10 or by reason of force majeure he may be excused without
penalty from his obligations under a contract which has become incapable of performance.11

A striking example of the philosophy of the Conseil d'Etat is revealed in the development by that
body of the law of strict liability in tort, the doctrine of administrative responsibility under which

10
Compagnie Generale des Eaux, CE. 12 May 1933. Because of unforeseen population growth a water company
was invited to increase its delivery to the town of Al Seyne at a price pro rata to that called for in the contract
between them, provided that if the company failed to supply the amount necessary the town would be free to
negotiate with another supplier in spite of a monopoly contract held by the company.
11
Compagnie des Tramways de Cherbourg, C.E. 9 Dec, 1932. Because a street- car company would be forced into
bankruptcy if obliged to provide the service contracted for with no price increase but would lose all its customers if
rates were increased, the object of the contract (to provide adequate se prices) had been destroyed by a force beyond
the power of either party to the contract to control. Therefore, the company was entitled to be released from the
contract.

10 | P a g e
 Conseil d’ Etat as Administrative Court

the government is liable to a citizen whose rights are infringed by an administrative act. From the
starting point enunciated in Blanco, (C.T. 8.Feb., 1873) the Conseil has extended the principle of
state liability beyond anything in common law. Reasoning consistently that the inequality between
public power, acting to further general interests, and private citizens, whose interests must of
necessity yield to the public good, takes matters arising from accident or injury by a public agency
out of the category of relationships governed by the Civil Code (which limits liability to situations
in which the defendant is found to be at fault)12, the Conseil finds a basis for state liability in the
absence of fault in the Declaration of the Rights of Man.13

The principle of Egalité devant les charges public dictates that injury occasioned by government
activity be born equally by all citizens as taxpayers, not that an aggrieved individual bear the entire
loss. Furthermore, moral considerations against holding a single individual responsible for the
harmful consequences of his faultless act disappear when the state assumes the role of defendant.
The corollary theory of risk employed by the Conseil d'Etat in imposing strict liability on the
administration can be demonstrated in four typical categories: risks of assisting in the public
service, risks arising from dangerous operations, administrative refusal to execute a judicial
decision and state liability arising out of legislation.14 As an example of the first situation, a
bystander pursued a thief and was stabbed for his efforts; he recovered damages against the
commune without any showing of fault on the part of that body. 15 Two cases provide samples of
the second principle under which the administration was held liable to the families of victims
accidentally killed by policemen in the pursuit of criminals.16

The Conseil d'Etat reiterated the general rule that, because of the public importance of police
functions, recovery will normally be limited to instances in which a serious fault on the part of the
police is shown; but when abnormal risk is created, as in these cases by the use of firearms, a

12
Civil Code, Art. 1382: "Any act of a man, which causes damage to another, obliges him by whose fault it
happened to repair it." Civil Code, Art. 1383: "Everyone is responsible for the damage he causes, not only by his act,
but also by his negligence or his imprudence.
13
Declaration of the Rights of Man, Art. 13: "For the maintenance of public power, and for the expenses of
administration, a common contribution is indispensable; it must be equally divided among all citizens, in accordance
with their capacities."
14
See supra note 8.
15
Pinguei, C.E. 17 Apr. 1953.
16
Lecomte and Daramy, C.E. 24 Jun, 1949.

11 | P a g e
 Conseil d’ Etat as Administrative Court

citizen not concerned with the police operation has a right of indemnity without proof of any fault.
A Tunisian citizen obtained a judgment from the Conseil for damages resulting from failure of
public authorities to enforce his property rights against natives occupying his land in defiance of
eviction efforts. The court reasoned that although the government might, for good reason as in the
instant case fear of civil war, refuse assistance to the citizen, principles of equality in sharing public
burdens entitled him to compensation for his individual sacrifice.17 Similarly, when a dairy
company showed that as a result of legislation restricting the manufacture and distribution of a
certain product it would have to go out of business, the Conseil awarded compensatory damages
against the state, because, it reasoned, the legislature could not have intended to impose such a
sacrifice on the company. That would be contrary to principles of égalité.18

In a decision rendered during the German occupation, the Section du Contentieux did not hesitate
to nullify an act of the Vichy government regulating the sale of land, because no condition was
attached to the government's right to refuse authorization of requested transfers. 19 Such arbitrary
action violated general principles of law. Similarly, an act of the Prefect of the Seine in revoking
a license to sell papers from a Parisian kiosk was invalidated, although the government had ample
justification for the revocation, because the licensee had not been given an opportunity to present
her defense.20 Natural justice had been denied.

17
MCouiteas, C.E. 30 Nov. 1923.
18
La Fleurette, C.E. 14 Jan. 1938.
19
MTabouret et Laroche. CE. 9 Tul., 1943.
20
Dame Veuve Trompier-Gravier, C.E. 5 May, 1944.

12 | P a g e
 Conseil d’ Etat as Administrative Court

CHAPTER 4 - ENFORCEMENT OF ADMINISTRATIVE DECISIONS

The common law sanction of contempt of court is unknown in France. The only remedy available
to a litigant seeking execution of a judgment in his favor is a subsequent action against the state
for dam- ages. No procedure exists by which he can compel an administrative agent to enforce a
judgment on his behalf. In view of the traditionally meager amounts awarded by French courts,
the effectiveness of the Conseil's decisions (at least in the absence of voluntary execution by the
government) is difficult for one trained in the common law to comprehend. The Conseil d'Etat will
not issue an injunction. It never directly orders any public authority to do anything but pay
damages. It nullifies administrative decrees of which it disapproves but does not formulate
affirmative orders of its own. This inadequacy of judicial power is recognized by French and
Anglo-American writers alike as an obvious weakness in the system of administrative law in
France. Until recent years, the former have given less importance to the matter than their English-
speaking counterparts, pointing out with what seems typically French casualness that stronger
powers are not really necessary.

To a French jurist the Conseil's strength lies in the very fact of its existence; real sanctions arise
from public pronouncement by the court of policies determining administrative and private rights.
Its decisions are effective because they are backed by an organized society, respectful of the
Conseil d'Etat as of no other judicial or political body in active government. The fact remains,
however, that the Conseil has no authority to order the actual execution of its judgments. If the
administration re- fuses to act in accordance with its decisions, the Conseil d'Etat is powerless. A
decision delivered by the Conseil d'Etat was, according to Professor Roland Drago, the "trigger"
for reforms of the Conseil enacted the following year.21 On authority of an emergency decree
issued by the President of France in 1962 a military tribunal was established from which no civilian
review could be had. The Conseil annulled the ordinance as violating a general principle of
criminal law the right to have the decision of any court, whether civilian, administrative or military,
reviewable en cassation even in the absence of statutory provisions to that effect, is an essential

21
Drago, Some Recent Reforms of the French Conseil d Etat ( 1964) 13 I.C.L.Q. 1282 (Professor Drago is a
member of the Faculty of Law at the University of Lille.)

13 | P a g e
 Conseil d’ Etat as Administrative Court

guarantee of civil liberty.22 The French government, speaking through the Minister of Information,
reacted within a week. "The government acknowledges the existence of the Canal decision, but
takes the view that it is of no effect. The Conseil d'Etat has exceeded its jurisdiction. 23 Professor
Drago quotes the Minister of Justice as saying that "quite apart from the Canal judgment, certain
decisions of the court can be criticized as an abuse of the judicial spirit, for relying on excessive
abstract logic, and for an inclination to exist in the realms of deductive reasoning." In a move
obviously intended to remind the Conseil d'Etat that the Section du Contentieux is "no more than
the administration acting as its own judge" the government enacted reforms designed to check the
traditional independence of the contentious section by altering the composition of the judicial arm
of the Conseil.24

By that legislation, provisions were also established for future inclusion by the Conseil in its annual
report to the government of a section specifically discussing the difficulties encountered by the
court in obtaining execution of its judgments, but the Conseil is still without power to overcome
such difficulties. To a novice American observer the concern voiced by Professor Drago over
future implications of the 1963 reforms serves to emphasize a deficiency of enforcement power in
the Conseil d'Etat which may have been aggravated by but was not created by the legislation of
which he complains.

22
Cartai C.E. 19 Oct., 1962.
23
Quoted from Le Monde, 26 Oct. 1962.
24
Decree of 30 Jul., 1963. Among other things, the court's membership was both reduced in number and changed in
composition to include more representation from the other sections of the Conseil d'Etat.

14 | P a g e
 Conseil d’ Etat as Administrative Court

CHAPTER 5 – CONCLUSION, CRITICISM AND SUGGESTIONS

To conclude, I would say that those fundamental human rights expressly protected by the United
States Constitution are known in France as les principes généraux du droit. Given expression in
the French Declaration of the Rights of Man of 1789, reiterated in the Preamble to the French
Constitution of 1946 and reaffirmed in the Preamble to the 1958 Constitution, those basic
principles have been since 1940 the keystone in the system of administrative jurisprudence
enunciated by the Conseil d'Etat. In a country which is more administered than governed and is
characterized by public apathy toward politics, a distrust of the judiciary and a historic dislike for
the concept of equity, the Conseil has evolved to fill a need peculiar to France. To evaluate that
body in terms of the common law experience and modern American necessity would be a fault.
Yet some comparison is unavoidable. In the French scheme, the administration is a creature of the
executive branch of government; in the United States the "headless fourth branch" performs
legislative and judicial functions. The concept of separation of powers in one country insures
administrative independence from either judicial or legislative interference; in the other it signals
frequent criticism of the delegation of excessive authority to administrative agencies. Thorny
jurisdictional questions arise in France, where judicial authority rests not on the nature of relief
sought in a given instance but on the nature of the factual issue presented for adjudication. That
American agencies and courts also experience jurisdictional difficulties can be seen by the number
of cases in which the proper scope and function of judicial review of administrative determinations
is at issue.

From roughly the same starting point in time the Conseil d'Etat and the United States Supreme
Court have developed parallel bodies of judge-made law, as a result of which both courts enjoy a
degree of respect not often afforded to other branches of government. Both pronounce public,
collective judgments, although in France actual voting is secret and no dissenting opinions are
formulated. The decisions of one are without formal power of enforcement, while the other
promulgates the supreme law of the land. In procedural matters, the Conseil conducts "instruction"
much like administrative hearings in the United States, while in the Supreme Court the burden of
stating and supporting a cause of action rests on the parties. One group is composed of skilled

15 | P a g e
 Conseil d’ Etat as Administrative Court

administrators, the other of jurists of the highest calibre, but the basic concern of both is the
protection of human rights. It is not coincidental that, so motivated, both the Conseil d'Etat and the
Su- preme Court have excelled in the past quarter century in the advancement of civil liberties. As
the Warren Court spoke for the United States, so the Conseil has spoken for the French Community
in declaring the inviolate nature of les principes généraux. But in the field of administrative control
the French court seems to exact a higher measure of excellence than its American counterpart. It
is to the practicability or desirability of introducing such standards into the American system that
this report turns in conclusion.

16 | P a g e
 Conseil d’ Etat as Administrative Court

BIBLIOGRAPHY

 Websites

1. www.asiainspection.com
2. www.ifia-federation.org
3. www.sgs.com
4. www.geochemgroup.com
5. https://2016.export.gov
6. http://www.intertek.com
7. www.jstor.org

17 | P a g e