Some food for comparative thinking on the disclosure of reasons for administrative action: using comparative lenses to examine the French law of giving reasons, by Dominique Custos

The 40th anniversary of the French Act of 11th July 1979 relating to the statement of reasons of administrative decisions was the occasion for a special comparative issue of The Cahiers de la Recherche sur les Droits Fondamentaux (17 CahRDF 2019) published by the University of Caen Normandy Press (France). This issue is now available free of charge online. This publication goes beyond taking stock (through three contributions) of the French law in this matter. In order to place France in a comparative perspective, it also includes sixteen other contributions dealing with foreign systems. Eight of such papers cover Europe: five member states of the E.U. (Belgium, Germany, Greece, Italy, Spain), two third-party European countries (Norway and Switzerland) and the E.U. itself. Across the Atlantic, the study extends to the Americas, reaching in turn into North America (Canada, U.S.A.) and South America (Argentina, Chile, Colombia). For reasons beyond human control, no contribution is dedicated exclusively to the U.K. and the English model is briefly featured in the contribution devoted to the U.S.A. to assess the distinctiveness and pioneering role of the latter within the common law family. However, the relative breadth of the overall coverage makes the issue a valuable collection of materials for further comparative research on the law of public reasons through diverse lenses: intra-European comparisons, as well as intra-American, and Euro-American ones. It provides a complement to collective (XIVth International Congress of administrative sciences held in 1968, topic 3: Protection of citizens in administrative procedure; VIIIth Congress of the International Academy of Comparative Law held in 1970: Administrative law topic) or individual comparative works published half a century ago.

One key lesson drawn from the overall reading of this dossier is France’s persistent insular position among European and non-European states because of its entrenched principle of no-reasons-giving for even individualized administrative decisions. The principle still stands strong one hundred forty years after its judicial proclamation by the Conseil d’État(CE)in the 1880 Harouel ruling, which was firmly reiterated in 1973 and in 1978. Undoubtedly, the 1979 Act, now codified in the 2015 code of the relationship between the public and the administration (CRPA: Arts. L211-1 – L211-8, L232-4) remarkably illustrates the transparency era championed by the French legislature in the 1970s. It indeed carries the same open government message introduced by the 1978 Acts granting the right to access administrative documents and personal computer data files held by government entities. However, it merely enacted a legislative exception, albeit the most significant legislative exception, to the principle with regard to individualized decision-making with adverse effect for the interested person or undertaken in derogation from a rule. Its legislative exception status has been repeatedly emphasized as early as 1983 by the supreme administrative court, which occasionally has also conceded some exceptions of its own, notably in the 1970 Marseille Fret case regarding multimember administrative authorities’ decisions.

The supreme administrative court’s posture is echoed by that of the Conseil constitutionnel (CC). In 2004, the latter could not identify any constitutional principle or provision in which a general duty to state reasons for administrative action could be anchored. In fact, the CC restricts such a duty to punitive administrative acts, which, under its rights-of-the-defense case law, generally follows the procedural regime of sanctions issued by criminal courts.

It is tempting to approximate the French rejection of a general principle of giving reasons for administrative action with the traditional lack of a general duty to articulate reasons for administrative decision-makers in the common law world. Indeed, the founding English rulings of 1890 (The Queen v. Bishop of London (1890) 24 QBD 213)) and 1891 (Alcroft v. London Bishop (1891) AC 666) are substantively similar to the French historic Harouel pronouncement of 1880.  Yet the approximation should not be overstated because while the duty similarly unfolds only by way of exceptions in France and in England, it operates differently in the case of explicit decisions within the British Commonwealth taken as a whole. Whereas under the French 1979 statute, it requires a proactive expression of reasons by the decision-maker, in common law, it may be satisfied either by a proactive articulation of reasons or by a disclosure of reasons upon request. Thus, on the one hand, the 2000 South African Promotion of Administrative Justice Act  (PAJA) enacted on the basis of the 1996 Constitution makes the satisfaction of a request for reasons the default form of reasons-giving. On the other hand, the French 1979 statute, confines this alternate communication of reasons to the issuance of implicit and emergency decisions. The difference in available forms reflects a conceptual difference between an administration which must spontaneously express the reasoned character of its action and an administration which must deploy such character only if it is prompted to do so by an interested person. That the reactive form is a minor one, which should not be confused with the proactive form, is made clear in some other parts of the common law world. Tellingly (1986 Osmond), the High court of Australia has continued to exempt administrative decision-makers from the duty to proactively give reasons, even after the enactment of a reactive duty in the 1977 Administrative Decisions (Judicial Review) Act (ADJR).

Notwithstanding the more direct accountability tool afforded by the spontaneous articulation of reasons, the exception status of the duty in French law clearly denotes a preference for a reasoned administration of narrow scope. While this circumscribed applicability has been staunchly defended by the CE, later joined by the CC, over the decades, French legal scholars have made consistent calls for a reasoned administration of broad scope. Some have pointed out the archaism of the state of French law within Europe in this regard and questioned its justification. Others have studied reasons in French public law in general, shedding light on the peculiarities of the law of reasons for administrative acts compared to the law of reasons for legislative, international, European or judicial acts. The three contributions dealing with French law published in the Cahiers all reflect these scholarly calls. They do so, either with measure as regards local government acts or with a stronger critical tone in the case of regulations and mixed (both generalized and particularized) decisions made by the national or the local governments or pertaining to environmental law.

The focus outside the 1979 Act is warranted because, despite the centrality of the latter, an accurate assessment of the state of the French law of reasons must factor in all judicial and textual exceptions. Notably, special statutes and, sometimes, governmental regulations, punctually provide for a duty to state reasons, more often in relation to the issuance of an adverse or conditional particularized decision, sometimes in relation to policy making in general and impersonal terms. They span an impressive range of legal fields: labor, civil service, local government, tax, police decisions regarding institutionalized persons (involuntary placement into a mental health facility) or affecting aliens, public procurement, urban or land planning (municipal preemption authority, conditional construction permit, denial of a building permit application, denial of a project’s public utility), regulatory law (environmental law; competition law: including denial of petition to enforce competition law since a May 2021 amendment to the French commerce code, article L. 462-8).

It is plausible to deem that the cumulative effect of the continuous addition of exceptions is such that the law has been or is being incrementally and surreptitiously transformed. Due to the suffusion caused by the numerous exceptions, the official principle of no disclosure of reasons is being replaced by an implicit, albeit increasingly actual, principle of disclosure. This evolution in the birthplace of droit administratif is an instantiation of the struggle between the old and the new culture of justification equally observed in common law. The culminating point of the process is its formal restatement, which may be parliamentary or judicial. In the current French context, the eventual enshrinement is more likely to come from Parliament than from the CE or the CC. The recent French case law presents no sign of a brewing reversal in the likes of the Canadian 1999 Baker and the Irish 2012 Mallack cases.

The CE does not seem inclined to rely on art 41(c) of the EU Charter of Fundamental Rights as a springboard to broaden the scope of giving reasons in member state administrative law with regard to national authorities’ action outside the EU’s purview. As recently as 2019, it strictly interpreted the right to good administration provision by confining its invocability to national administrative acts taken in implementation of EU law.

With regard to the use of eminent domain, the CE has repeatedly refused, (notably in 2003, 2006, 2007, 2013, 2018), to read a giving-reasons requirement into art. L122-1 of the takings code requiring that the justification for the issuance of the so-called public utility declaration in case of national infrastructure projects be expressed in a document separate from the takings decree itself. In so doing, the CE follows in the 2009 (Mellor) and 2012 (Solvay) footsteps of the ECJ. Underlying the line of French cases is the potential vulnerability of administrative action caused by annulments for procedural violations. This concern is in keeping with the spirit of the legislative provision, which, in case of local infrastructure projects, expressly bars judicial challenges based on procedural grounds. As a result, disclosure of reasons in the public utility declaration itself is not a condition for the validity of the declaration leading to expropriation and there exists an asymmetry between the legal regime of the decision to declare a project to be in the public interest and that of the refusal to do so, which is subject to a giving-reason requirement.     

The environmental code provides for a giving-reason requirement applicable to infrastructure projects with significant environmental consequences and subject to an environmental impact assessment. Since the Ordinance of August 3, 2016, art. L 122-1-1 of the environmental code, both the grant and the denial of authorization for such projects have been clearly subject to this requirement. Here, the French provision follows a logic of symmetrical treatment similar to the one signaled by the UKSC 2017 Dover ruling with regard to the grant and the denial of planning permissions. Interestingly, the year before the legislative clarification, the CE had taken the opposite position that no disclosure of reasons was required.  Additionally, under art. L 123-19-1 of the environmental code, the decision-maker must post online a summary of the electronic public comments during at least three months with the indication of the comments taken into account for the final decision, as well as a separate document articulating the reasons for it. The provision is of particular significance as it legislatively translates the 2005 proclamation of a constitutional right to participation in environmental policymaking (Art. 7 of the Charter for the environment), which was adopted in furtherance of the 1998 Aarhus convention. There exists an opportunity of development of the law of reason-disclosure, linking public participation and reasons. The potential expansion would consist in mutually strengthening reasons and participation by requiring that the articulation of reasons for the decision incorporate a response to the major public comments. This is a step that the CE has repeatedly (2014, 2015, 2018 and 2019) refrained from taking due to its concern for the risk of instability of policy-making associated with procedural challenges. Under this case law, delayed publication and failure to abide by the obligation to publish a condensed version of the comments do not affect at all the lawfulness of the infrastructure project authorization itself. This French disconnect between reasons and participation stands in contradistinction to the American paper-hearing case law, which has jointly given teeth to reasons and public participation albeit at the expense of smooth agency proceedings.

Nor do the CC’s and CE’s established case law lends itself to the kind of spectacular imposition of a duty to disclose reasons on the executive advising to prorogue Parliament (2019 UKSC [41] Miller II). Inasmuch as the duration of the parliamentary session is written in the French Constitution (art. 28), and the Executive is devoid of any power to suspend the Parliament, any prorogation would constitute a constitutional breach. Moreover, in all likelihood, the public reason issue for a prorogation could not even be reached by the CC or the CE because of the shield provided by their understanding of unreviewability. Indeed, when called upon to examine the exercise by the executive of the dissolution power grounded in the Constitution (art. 12), the CC tersely explained in 1988 that no constitutional provision vested it with judicial power over the matter, and the CE flatlyinvoked in 1989 itsdoctrine of (unjusticiable) political acts applicable to executive decisions relating to the institutional balance between Parliament and Government, a scope which presumably includes prorogation. In the case of the CE, whose dual (administrative and judicial) function must be kept in mind, this state of affairs denotes the limitations of the common law-like culture of the CE, one of the French legal cultures. It also exemplifies a key difference between the role of a common law supreme court acting as a constitutional reviewer in a context steeped in parliamentary sovereignty and that of a constitutional organ operating under enumerated terms.

Eyes remain on the French legislature.

Posted by Professor Dominique Custos (University of Caen Normandy (France)
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Suggested citation: D Custos, “Some food for comparative thinking on the disclosure of reasons for administrative action: using comparative lenses to examine the French law of giving reasons”, BACL blog, available at https://british-association-comparative-law.org/?p=3968(opens in a new tab)

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