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The Conseil d’État
The Conseil d’État is, de jure, presided over by the Prime Minister, although in practice, it is run by its Vice-President (France’s number one civil servant). It is the heir to a very old tradition and has a double role: it is an administrative body which advises the Government and is also the supreme administrative court. The Conseil d’État is made up of three hundred members (councillors of state, masters of petitions and auditors) two thirds of whom practice at the Conseil d’État itself, whilst the other third is essentially composed of members with high-ranking positions in other administrations.
I. – THE CONSEIL D’ÉTAT, HEIR TO AN OLD TRADITION
The origin of the Conseil d’État is ancient. This institution can be seen as one of the heirs of the Curia Regis which was made up of important people close to the King and helped him govern his kingdom in the Middle Ages. As time passed, the Curia Regis, divided itself up into several bodies such as the Chamber of Accounts or the Parliament. One of these, the Council of the King, preceded what was then to become the Conseil d’État. The name itself was first used in 1578 under the reign of Henri III.
It was under the reign of Louis XIV that the ancestor of the present Conseil d’État clearly appeared. It was called the “Private Conseil d’État” and was in charge of internal administrative questions and litigation.
The legal advisers and the state councillors have existed since the 13th century. The former reported to the Conseil d’État on administrative and legal matters whilst the latter deliberated with the King.
However, it was only during the French Revolution that the Conseil d’État was to take on its present-day appearance. In 1790, the Constituant Assembly decided that the administration should no longer be submitted to the judiciary. Cases involving public authorities have, since then, been examined by special courts. It was, strictly speaking, the Consulate which, with article 52 of the Constitution of 22 Frimaire, Year VIII (December 13, 1799) created the Conseil d’État. It has a double role; as an administrative body, the Conseil d’État takes part in the drawing-up of the most important legal documents and as a court, it judges disputes in which the administration is a party.
It was the law of May 24, 1872 which finally provided the Conseil d’État with the structure it still possesses today. It was also at this time that the high courts set down the main principles of French administrative law, thus leading to the construction of the state governed by the rule of law.
Since that time, the Conseil d’État has continued to assert itself as the guarantor of freedom and of the legal functioning of the administration, thus reconciling in the best way possible the interests of the State and those of the citizens. Decree no. 2008-225 of March 6, 2008, concerning the organization and the running of the Conseil d'Etat rounds off this process and asserts this role by creating a strict separation between the advisory remit and the jurisdictional competence of the Conseil d'Etat.
On the one hand the decree establishes the principle according to which “the members of the Conseil d'Etat cannot take part in the judgement of appeals against instruments enacted after an opinion of the Conseil d'Etat if they themselves have been involved in the deliberation of that opinion”. Litigants can check the compliance with this obligation by obtaining a list of the members of the advisory sections who took part in the opinion given on the instrument they are challenging. On the other hand, the representatives of the administrative sections may not sit in the ordinary section of nine members, the combined sub-sections or the litigation section when it sits in judgement. Lastly, the number of members of the Litigation Assembly is increased to 17 members (a clear majority of whom belong to the litigation section) and the President of the administrative section which was called upon to deliberate does not sit on this assembly even if he was not present the day the matter was examined by his administrative section.
In addition, apart from changing the title of Government commissioner to public rapporteur the decree of January 7, 2009 also allows the parties to the proceedings to be informed of the conclusions of the public rapporteur on their case and to reply through short oral observations before the councillors retire to deliberate. The decree establishes the principle that the decision is deliberated in the absence of the parties and of the public rapporteur.
II. – ADVISER TO THE GOVERNMENT
The Conseil d’État plays a role of adviser to the government by examining all draft bills (as laid down in article 39 of the Constitution) and all draft odinances (article 38 of the Constitution) before they are submitted to the Council of Ministers. It is also consulted on the most important draft decrees, called “decrees in Conseil d’État”. It gives its opinion based on the legality of the texts, their form and their appropriateness, from an administrative and not a political point of view.
The Conseil d’État may also be consulted by the Government on any question of a legal or administrative nature. This was the case in 1989, for example, when the question of the compatibility of wearing the so-called “Islamic” headscarf with the secularism of state schooling, was raised for the first time.
When a matter is referred to the Conseil d’État for advice, it is sent to one of its four administrative sections: home affairs, finance, social, public works and administration (the latter was set up by the decree of March 6, 2008).
The Home Affairs Section deals with matters concerning the Prime Minister and the Home Office, the Ministers of Justice, National Education, Higher Education and Research, Culture and Communication, Relations with the Parliament, Youth, Sport and Overseas Territorial Units.
The Finance Section is consulted on matters concerning the Ministers of the Economy and Finance, Foreign Affairs and Cooperation.
The Public Works Sections has responsibility for matters concerning the Ministers of Agriculture, Fishing, Equipment, Transport, Housing, Tourism, Industry and Post and Telecommunications.
The Social Affairs Section is in charge of questions concerning the Ministers of Employment, Solidarity, Health and War Veterans.
The Administration Section examines bills and decrees dealing with all matters relating to the Civil Service as well as questions concerning the relations between administrations and users, state reform and public services, non-litigious administrative procedures, national defence (except for matters concerning veterans, war victims and pensions), public procurement and public properties.
For the most important questions (e.g. draft bills or ordinances), the General Assembly of the Conseil d’État makes a decision after the relevant section has given its judgement. Nonetheless, in urgent cases and upon a decision by the Prime Minister, a matter may be referred directly to the Standing Committee of the Conseil d’État, without prior examination in a section. This standing committee is much smaller than the General Assembly. Since the publication of the decree of March 6, 2008, each president of an administrative section can decide to entrust the least complicated cases to a so-called ‘ordinary’ sitting (in contrast to the plenary sitting), the make-up of which he decides upon.
Furthermore, the Conseil d'Etat expressed a desire to involve people in the proceedings of its various advisory departments who would be liable to bring something to its reflection on account of their knowledge or experience.
In addition, the Conseil d’État addresses a public report each year to the President of the Republic. This report may contain proposals for reforms which are meant to improve the organization or the working of administration, of the laws or regulations in force. The Report and Studies Section prepares this annual report along with other studies. It is also involved in the implementation of the decisions taken by administrative courts.
III. – ADVISER TO PARLIAMENT
Since the constitutional revision of July 23, 2008, a referral for opinion may also be made to the Conseil d’État by the President of the National Assembly or the President of the Senate concerning any Member’s bill tabled in either of the two assemblies before its consideration in committee. The author of the Member’s bill may make observations and even take part, in a consultative role, in the sitting during which the relevant section deliberates on the opinion which the Conseil d'Etat will give. He is informed of the opinion provided by the Conseil d'Etat.
The Members’ bills which are referred for opinion to the Conseil d'Etat are considered by the relevant section or by an ad-hoc committee made up of representatives of the various sections concerned by the object of the Member’s bill.
IV. - THE HIGHEST COURT OF THE ADMINISTRATIVE COURT SYSTEM
The Conseil d’État is the highest level of the administrative court system and it judges the disputes between individuals and administration in the widest sense of the word (State, local authorities, public establishments, and private persons in charge of public services such as professional bodies or sporting federations).
Thus it passes rescinding rulings concerning judgements made by the administrative appeal courts and specialized administrative courts such as the Refugee Appeal Commission. In addition, it also judges in the first and last instance, appeals brought against decrees or the actions of collegial bodies with a national remit (e.g. the jury of a national competitive examination or a body such as the High Council on Audiovisual Matters) as well as electoral disputes concerning regional elections and elections of French representatives to the European Parliament. It has an appeal remit for matters concerning municipal and cantonal election litigation.
Like the Court of Cassation in the ordinary court system, the Conseil d’État ensures the unity of jurisprudence at a national level. The judgements made by the Conseil d’État in the field of litigation are supreme and are not liable to appeal except in an application to reopen proceedings or in the rectification of a material error.
The Litigation Section plays this jurisdictional role. It is made up of ten sub-sections each specialized in different types of litigation (foreigners’ rights, public tenders, taxation etc.).
Since 1990, the Conseil d’État has also been responsible for the running of administrative courts and administrative appeal courts. Previously this matter fell within the remit of the Home Office. The Conseil d’État is also in charge of the running of the body controlling administrative judges and it is helped in this task by an independent consultative body which was set up in 1986, called the High Council of Administrative Courts and Administrative Appeal Courts.
V. - AN INCREASED ROLE IN THE PROTECTION OF THE RIGHTS AND LIBERTIES GRANTED BY THE CONSTITUTION
In accordance with the Constitutional Act of July 23, 2008 which amended article 61 of the Constitution (and was completed by an Institutional Act), every citizen appearing before an administrative court may challenge, during proceedings in progress before that court, the application of a statutory provision which he considers to infringe the rights and freedoms guaranteed by the Constitution.
The implementation of this procedure, which could lead to a suspension in the delivery of all or some of the points of the substantive decision, provides the Conseil d'Etat with the responsibility of making a judgement on the need to transmit to the Constitutional Council the issue of constitutionality raised before the court under its authority, including for the first time appeals and final appeals, as the judge in the first and last instance. The Conseil d'Etat must do this within a period of three months.
The decision taken by the court making the substantive decision to transmit the preliminary question to the Conseil d'Etat may not be directly appealed. In addition it is the responsibility of that court to ensure that the statutory provision which is being challenged is directly linked to the outcome of the case, that the procedure is admissible or constitutes the basis for proceedings, that the statutory provision has not already been declared in conformity with the Constitution by the Constitutional Council in the motives and the context of its decision, excepting changes in circumstances, and finally that the question raised is of a serious nature.