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Contents
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Composition

History

Advisory role

Administrative justice

Original jurisdiction
Appellate jurisdiction
Court procedure
Major rulings of the Council of State
French Institute of Administratives Sciences
See also
References
Further reading
External links

Conseil d'État (France)

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Coordinates: 48°51′48″N 2°20′13″E

From Wikipedia, the free encyclopedia
This article is about the French Council of State. For other countries, see Council
of State.
Council of State
Conseil d'État
Logo
Council logo
Predecessor Conseil du Roi
Formation 1799; 224 years ago
Founder Le Consulat
Type Advisory Body
Supreme Court
Purpose Advice and consent
Court of last resort
Headquarters Palais-Royal
Location
 Paris, France

Membership
~300[1]
Website www.conseil-etat.fr

In France, the Conseil d'État ([kɔ̃sɛj deta]) is a governmental body that acts both
as legal adviser to the executive branch and as the supreme court for
administrative justice, which is one of the two branches of the French judiciary
system.[2] Established in 1799 by Napoleon as a successor to the King's Council
(Conseil du Roi), it is located in the Palais-Royal in Paris and is primarily made
up of top-level legal officers. The Vice President of the Council of State ranks as
the ninth most important[citation needed] civil servant in France.

Members of the Council of State are part of a Grand Corps of the French State
(Grand corps de l'État). The Council of State mainly recruits from among the top-
ranking students graduating from the École nationale d'administration.
Composition
Politics of France
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Constitutions
Executive
Legislature
Judiciary
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A General Session of the Council of State is presided over by the Prime Minister
or, in their absence, the Minister of Justice.[3] However, since the real
presidency of the Council is held by the Vice-President,[3][4] the Vice President
of the Council of State usually presides at all but the most ceremonial assemblies.
This is also done for obvious reasons pertaining to the separation of powers.

Other members of the Council include, in decreasing order of importance:

Department heads (Présidents de section)

Councillors ordinary (Conseillers d'État ordinaires)
Councillors extraordinary (Conseillers d'État en service extraordinaire)
Masters of Requests (Maîtres des requêtes)
Master of requests extraordinary (Maîtres des requêtes en service
extraordinaire)
Senior masters (Auditeurs de première classe)
Masters (Auditeurs de deuxième classe)

The Vice-President of Council of State is appointed by Order-in-Council on the

recommendation of the Minister of Justice and is selected from among the Council's
department heads or councillors ordinary.[5] Division heads are similarly appointed
and selected from among the councillors ordinary.[6]

Councillors ordinary, masters of requests, and senior masters are appointed based
on seniority from the preceding rank.[7] Appointees from outside the Council may
include administrative law judges[8] or may come from outside the justice system.
[9] Masters are recruited from among the graduates of France's National
Administration Academy.[10] The Council sits in the Palais Royal located in Paris.

The Council is divided into 7 divisions:

Administrative Claims (section du contentieux) — see below.

Report and Studies (section du rapport et des études): writes the annual
report, conducts studies and helps to oversee judgments and verdicts are carried
out.
Finances (section des finances), the Interior (section de l'intérieur), Welfare
and Social Security (section sociale), Public Works (section des travaux publics)
and Administrative Issues (section de l'administration, created by a March 2008
order) review any and all Cabinet-issued orders and statutory instruments and
examine and sign off on all Orders of Council (décrets en Conseil d'État). These
reviews, though mandatory, are not binding. The Council of State also studies legal
issues and problems brought before the Cabinet.[11] In addition, it is responsible
for carrying out administrative court inspections.[12]

History
The Palais-Royal in Paris, home of the Conseil d'État

The Council of State originates from the 13th century, by which time the King's
Court (Curia regis) had split into three sections, one of which was the King's
Council (Curia in consilium, later Conseil du roi), which too broke up into three
distinct parts: the Conseil secret 'Privy Council', the Conseil privé 'Private
Council', and Conseil des finances 'Council of Finances'. Reorganized under Louis
XIV into two major groupings, the Conseil d'État privé, finances et direction that
was the direct ancestor of the Council of State. It brought together legal advisors
and experts to advise the King on claims against the Crown. Officially established
in 1557, this was the largest of the King's Councils made up of France's High
Chancellor, lords of peerage, Ministers and Secretaries of State, the Comptroller-
General, 30 Councillors of State, 80 masters of requests, and the Intendants of
Finance. The judicial portion of the Council was known as the Conseil d'État privé
or Conseil des parties.

The kings, who had the power to dispense justice and hand down judgments as the
court of last resort, delegated this judicial power to royal courts and parlements.
But the French king still retained the power to override them at will.
Specifically, French kings maintained their privilege to decide major issues and
hand down judgements when administrative acts were in dispute. The judgments of the
King's Council of State were regarded as being issued under the King's residual
proper jurisdiction (justice retenue), that is, the sovereign's reserved power to
dispense justice in certain matters. Legal advisors also assisted the King in
developing new laws and, by delegated jurisdiction, directly exercised sovereign
rights (jura regalia).

For more on French government administration during the Old Regime, see Ancien
Régime in France.

The current Council of State was established by the French Consulate government in
1799 as a judicial body mandated to adjudicate claims against the State and assist
in the drafting of important laws. The First Consul (later Emperor) presided over
Council 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 more precisely defined by an 1872
Act of Parliament.

The Council of State was originally a court of first instance and last instance,
but since the creation of the tribunaux administratifs in 1953 and the cours
administratives d’appel in 1987, it has increasingly become a supervisory court,
with a role as an appeal court in a small number of areas.[13] The Council of State
hears appeals on questions of law from lower courts and gives advisory opinions on
the law on reference from lower courts.[13] Below it are 42 administrative courts
of first instance (tribunaux administratifs) and 8 administrative courts of appeal
(cours administratives d'appel).[14]
Advisory role

Certain types of statutory instruments must be examined by the Council and receive
its advisory approval, including:

All draft legislation proposed by non-parliamentary members and prior to being

introduced before Parliament.
Orders-in-council, signed by the Prime Minister and cabinet ministers; any such
order is a form of delegated legislation outlining how a statute or act of
Parliament is to be carried out or put into effect. Typically, a statutory law will
authorize, prescribe, or prohibit an action defined in broad terms and require a
government order to define its scope and application.

The Council's advisory workload is divided between its administrative sections with
respect to the ministry or department affected by the government order.
Administrative justice

The Council acts as the supreme court of appeal for administrative law courts. It
hears both claims against national-level administrative decisions (notably orders,
rules, regulations and decisions of the executive branch) and appeals from lower
administrative courts. The Council's decisions are final and unappealable.

While strictly speaking the Council of State is not a court, it functions as a

judicial body by adjudicating suits and claims against administrative authorities.
Plaintiffs are represented by barristers drawn from the Senior Court bar whose
members are licensed to argue cases before the Council and Court of Cassation; any
such barrister bears the title of Counsel at Senior Court (Avocat aux Conseils).
[15]
Original jurisdiction

The Council hears cases against decisions of the national government, notably
government orders, ministerial rules and regulations, judgments handed down by
committees, commissions, and boards with nationwide jurisdiction, as well as suits
concerning regional and EU electoral matters.

The Council has judged that such acts are restricted to:

relationships between the executive branch and the legislative branch, e.g.,
whether a bill should be submitted to Parliament;
acts that are part and parcel of France's foreign policy.[16]

In this role, the Council provides a powerful check on the actions of the
executive.
Appellate jurisdiction

The Council of State has appellate jurisdiction over local election judgments from
any of the 37 administrative courts.

It acts as a final court of cassation for decisions originating from any of the
eight appellate administrative courts, meaning that it hears cases in which the
plaintiff argues that the appellate court ignored or misinterpreted the law. Should
it decide that the original appellate court took the wrong decision, the Council of
State will in most situations transfer the case to a different administrative court
of appeal, to be re-judged. However, in the interest of swifter decision-making and
correct interpretation of the law (bonne administration de la justice),[17] it also
has the right to rule on the case without transferring it, thus acting as an
appellate court in last resort (jugement en dernier ressort).
Court procedure

Like nearly all French courts, the Council's court system is inquisitorial, and
proceedings are initiated by a statement of claim detailing the factual background
of the case and why the appellant should be granted relief. The Council then begins
a formal investigation, asking the appellee, i.e., the government or a government
agency or office, to satisfy the Council with a detailed statement of defense.
Burden of proof does not lie with the plaintiff; instead, the Council decides
whether or not the appellant has cause to bring suit and whether the government was
in error if information provided by the appellant is sufficient to locate
previously undisclosed evidence. Of course, both parties may submit additional
pleadings and information until the case is ready for final judgment.

The formation of judgement depends on the importance of the case, for the
jurisprudence and the interest of the law. All of the formations belong to the
Administrative Claims department.

The smaller cases (without new legal issues) are treated by one chamber (known as
under-departments, i.e. sous-section, prior to their reorganization in 2016[18]).
There are 10 chambers. The bigger cases are attributed to united chambers (chambres
réunies), a configuration made up of two chambers, although, for some important
fiscal cases, three or four chambers can be concerned, coalescing into an ad hoc
formation, the "full fiscal" (plénière fiscale) chamber. The more important cases
are for the administrative claims department judgement formation (Section). Only
the very important cases, with hard, new and/or important legal issues are
concerned. There are about between 20 and 40 cases per year into this specific
formation, which includes the president of the ten chambers, the three assistant-
presidents of the administrative claims department and the president of the
department, which, in addition to the magistrate responsible of the investigation
about the case, reaches 15 members.
General Assembly Room (Salle de l'assemblée générale), where the members of the
Council gather to resolve the major cases

The major cases are resolved by the administrative claims assembly (Assemblée du
contentieux). All the presidents of departments are there, under the presidency of
the Vice-President of the Council of State. Less than 10 cases per year are
concerned.

All the cases, even the ones eventually resolved by the Assemblée du contentieux,
are first studied by a chamber.

Although, as is the general rule in French administrative law, the procedure is

written, one of its highlights are the oral conclusion of the rapporteur public
(public magistrate), giving his personal vision of the case, totally impartial and
free, on a pure legal point of view. Reading the conclusions from past cases is
often useful to understand the mindset of the judges and the reason of the solution
given to the case. Nonetheless, and unlike in common law jurisdictions operating
under stare decisis, those former judgements do not constitute a binding precedent
for French judges, who remain free to adapt or overturn them (in a so-called
renversement de jurisprudence).

Since an order of 2009 (n° 2009–14, 7 January 2009), there is a possibility for the
parties to speak after the rapporteur public's conclusions. Lawyers use this
possibility only for major cases, when it can make a significant difference (e.g.
for the Hoffmann-Gleman case – 16 February 2009 – concerning the compensation of
the daughter of a deported Jew during the World War II, involving the French
state's responsibility).

In some cases, there may be some confusion as to whether a case should be heard
before an administrative law court or judicial court, in which case the Court of
Jurisdictional Disputes, or tribunal des conflits, made up of an even number of
State councillors and Supreme Judicial Court justices, is convened to decide to
whom the matter shall be vested. Until 2015, this Court was chaired by the Minister
of Justice, whose vote would break any potential tie. As of 2015, court members
elect a president amongst themselves for 3 years, and, in case of a tie, the
court's composition can be modified to include several more judges.
Major rulings of the Council of State

Exercising judicial review over almost all acts of the executive branch, the
Council of State's judgments may be of considerable importance, often not for the
actual case judged, but for its importance in shaping legal interpretation. While
France is a civil law country and there is no formal rule of precedent (stare
decisis), lower courts follow the jurisprudence constante doctrine with regard to
the Council of State. The Council's major rulings are collected into law reports
and commented on by scholars; the Council's official website carries a list of
comments on important decisions. The Council has shaped its own legal doctrine
which consists mostly of principles deduced from cases but incorporates
considerable jurisprudence derived from statutes.

Rulings are named for the moving parties (appellants) in the cases and under highly
formal courtesy titles. Men's names used to be preceded by Sieur, women's names by
Dame or Demoiselle, and widows were referred to as Dame veuve.

About 10,000 rulings per year are given by the Council of State.

The most important rulings are collected in a publication called "G.A.J.A" (i.e.
Les Grands Arrêts de la Jurisprudence Administrative – The major rulings of the
administrative jurisprudence -), published by Dalloz editions and written by some
of the most influential authors or judges of the time in France (e.g. Bruno
Genevois or Prosper Weil). The GAJA explains about 120 rulings, from 1873 to now,
and quotes several hundreds of other important rulings.

Important rulings include:

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 adjudicated by the Council
(rescinding a previous doctrine). A prince had been removed from the Army for
political reasons. The Council stated that his case had to be heard, but then
decided that it was unfounded because the law said that his commission could be
revoked.
May 28, 1954 – Barel. Freedom of opinion of civil servants.
After a number of Communists had been refused admission to the École nationale
d'administration it was decided that the Government cannot exclude people from
applying for civil service positions solely on the basis of their political
convictions.
October 19, 1962 – Canal, Robin & Godot
The executive branch may make decisions by ordinance only within a narrowly
defined scope authorised by the enabling law. The executive cannot mandate the
creation of courts whose procedures and lack of recourse fall outside the general
principles of criminal law.
This decision was the source of tensions between the Council and then President
Charles De Gaulle.
 February 3, 1989 – Alitalia corporation
The executive branch is responsible for voiding its own unlawful rules and
regulations, even if they were initially lawful. Regulatory law must comply with
European Union directives in force.
October 27, 1995 – Commune of Morsang-sur-Orge, also known commonly as the
"dwarf tossing case".
Respect for human dignity is to be included as part of the ordre public (the
principles governing the public realm in France). In this case a mayor had
prohibited a dwarf-tossing event on the grounds was against the "public interest"
because it did not respect human dignity. This decision stops short of including
morality as part of the ordre public.
October 30, 1998 - Sarran, Levacher et autres
The French Constitution prevails on international treaties, including European
treaties. The Constitution is the supreme norm, above all other law rules.
March 3, 2004 – The asbestos case.
The State may be held responsible for not taking appropriate measures, in
accordance with current scientific knowledge, to safeguard workers' health (against
asbestos), even if workers are employed by private employers.
October 3, 2008 - Commune d'Annecy
As the Charter for the Environment is cited in the preamble of the French
Constitution, all the rights and duties it defines have constitutional value.

French Institute of Administratives Sciences

The Council of State is linked to the French Institute of Administrative Sciences

(IFSA). The vice-president of the Council of State is the president of the IFSA and
its main members are state counselors. In 2009, the Council of State hosted IFSA's
annual conference which was organized on the theme: "public security : partnership
between public power and private sector."
See also

Court of Audit
Councillor of State
Constitutional Council
French Institute of Administrative Sciences (IFSA)
French Supreme Court
Justice in France
Politics of France
Ordonnance
Court of Appeal (France)

References

"The members".
French Ministry of Justice (15 September 2021). "L'organisation de la justice en
France" [Organization of justice in France]. Ministère de la Justice (in French).
Retrieved 4 March 2023. "Les juridictions françaises se répartissent en deux ordres
: un ordre judiciaire et un ordre administratif. Les juridictions de l'ordre
judiciaire sont compétentes pour régler les litiges opposant les personnes privées
et pour sanctionner les auteurs d'infractions aux lois pénales. ... Les
juridictions de l'ordre administratif sont compétentes dès qu'une personne publique
est en cause (une municipalité ou un service de l'État par exemple)." [The French
courts are divided into two orders: a judicial order and an administrative order.
The courts of the judicial order are responsible for settling disputes between
private individuals and for punishing the perpetrators of criminal offenses. ...
The administrative courts have jurisdiction as soon as a public entity is involved
(a municipality or a government department for example).]
Code of administrative justice, article L121-7
Council's Website[permanent dead link]
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
Bell, John; Boyron, Sophie; Whittaker, Simon (2008). "Court Institutions".
Principles of French Law. Oxford University Press.
doi:10.1093/acprof:oso/9780199541393.003.0003. ISBN 978-0-19-954139-3.
Steiner, Eva (2018-04-19). Legislation and the Constitutional Framework. Vol. 1.
Oxford University Press. doi:10.1093/oso/9780198790884.003.0001. ISBN 978-0-19-
879088-4.
Literally, "Barrister at the Councils", an antiquated title where council refers
historically to a number of different conciliar courts, including the old Council
of State and the Supreme Court, which grew out of another conciliar court – the
Paris Parlement.
See the analysis on the Conseil's site Archived 2003-10-10 at the Wayback Machine
for more information (in French).
Code of administrative justice, article L821-2

Loi n° 2016-483 du 20 avril 2016 relative à la déontologie et aux droits et

obligations des fonctionnaires, Article 62, §16

Further reading

Bell, John (2000). "What is the Function of the Conseil d'Etat in the
Preparation of Legislation?". The International and Comparative Law Quarterly. 49
(3): 661–672. doi:10.1017/S0020589300064423. JSTOR 761401. S2CID 146580752.; with a
comparison to the procedures used in the Government of the United Kingdom
Beardsley, James (1975). "Constitutional Review in France". The Supreme Court
Review. 1975: 189–259. doi:10.1086/scr.1975.3108812. JSTOR 3108812. S2CID
140742890.; discussion of the "general principles of Law"
Lafon, Jacqueline Lucienne (1994). "La judicialisation de la politique en
France". Revue Internationale de Science Politique. 15 (2): 135–142. JSTOR 1601561.
Bruno Latour, "The Making of Law: An Ethnography of the Conseil d'Etat" -
Cambridge, UK: Polity Press, 2009.[1]
Parris, Henry (1966). "The Conseil d'État in the Fifth Republic". Government
and Opposition. 2 (1): 89–104. doi:10.1111/j.1477-7053.1966.tb01155.x. S2CID
145327199.
Martin A. Rogoff, "French Constitutional Law: Cases and Materials" – Durham,
North Carolina: Carolina Academic Press, 2010.[2]

External links

Official website
Printed working documents of the Conseil d'Etat (1800–1814)
Important decisions of the Conseil d'État
English translations of some decisions

Authority control Edit this at Wikidata

Categories:

Conseil d'État (France)National supreme courtsAdministrative courtsJudiciary of

FranceGovernment of FranceGrands corps de l'État1799 establishments in FranceCourts
and tribunals established in 1799

This page was last edited on 5 May 2023, at 07:50 (UTC).

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