This is the first piece in a series of comments offered on John Bell’s and François Lichère’s book French Contemporary Administrative Law (CUP 2022 – available in open access by clicking on this link) at a hybrid workshop hosted by the British Association of Comparative law and the Constitutional and Administrative Justice Initiative at the Essex Law School on 16th March 2023. The workshop brought into discussions Professor John Bell (UK – Cambridge), Professor François Lichère (FR – Lyon 3), Professor Giacinto della Cananea (IT – Bocconi), Professor Peter Lindseth (USA – Connecticut University), Professor Anne Jacquemet-Gauché (FR – Clermont-Auvergne), Professor Rob Widdershoven (NL – Utrecht), Professor Karl-Peter Sommermann (DE – Speyer), all experts in comparative and/or European administrative law. Professor Bell introduces his book in this first piece. The following pieces are the comments kindly contributed by the speakers. The authors of the book will conclude this series by replying to the comments.
May all speakers and authors be warmly thanked for the constructive and highly stimulating exchanges – a genuine academic sharing at the highest level.
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The theme of the European dimension of French administrative law takes me back to a conversation with Rougevin-Baville, president of a sub-section of the Conseil d’Etat which I had been observing in the first half of 1986. He explained that the Conseil d’Etat was likely to accept the priority of European Community law when the current generation of senior figures had retired. Many of them were Gaullists and shared the General’s reserve towards any loss of French sovereignty. In due course, the senior figures did retire and the Conseil produced the decisions in Compagnie Alitalia and Nicolo in 1989 (Bell & Lichère pp 12-14; CE Ass 3 February 1989, no 79452 and 20 October 1989 no 108243; Rfda 1989, 824). That legal change of mood was then reflected in the adoption of Articles 88-1 to 88-4 of the Constitution in 1992, which accepted that France could participate in an agreement under which countries agreed to exercise some of their powers in common and, in that way, limit their sovereignty. In addition, France had permitted individual petition to the European Court of Human Rights, thus making those European standards a significant reference point in French law.
This legal movement in public law reflected a broader change in social mood of France. The Single European Act had been signed in February 1986 committing Member States to create a Single Market by the end of 1992. It brought an end to border posts within the Schengen countries, making a significant psychological difference to people crossing borders. With the fall of the Berlin Wall in 1989, there was a real change of mood towards the people of Member States like France feeling more European as part of a progressive mood. The adoption of the Euro currency from 2002 also reinforced this. There was a sense that, in society as well as in law, people were at ease with being both French and European.
French administrative law is a unique product of the nineteenth century and of the Conseil d’Etat. Unlike in private law, there was no established body of rules, principles and doctrine from which French administrative law could be constructed. At the beginning of the nineteenth century, administrative law had to be created from scratch. This was largely the work of the Conseil d’Etat. This body of law and procedure was consolidated during the Third Republic, notably by authors such as Laferrière in his book of 1887 (Traité de la juridiction administrative (Paris: Berger-Levrault 1887). This body of law became the object of attention from scholars outside France, notably in Germany, England and the US, as well as from more cognate jurisdictions such as Belgium and Italy. Members of the Conseil d’Etat were happy to go abroad and proclaim its virtues. Its publications, notably the Livre Jubilaire of 1952, celebrated its influence abroad. Foreign authors wrote about it. In a significant sense, French administrative law was a national treasure for export. The final chapter of Brown and Garner (later Brown and Bell) on French Administrative Law (L N Brown and J F Garner, French Administrative Law (1st edn, London: Butterworths 1967)reflected that perspective on the influence of French administrative law abroad, notably to the EU. Bell and Lichère steps away from this perspective and considers how far modern French administrative law is the product of interaction between internal French and external influences, notably from European Union law and the law of the European Convention on Human Rights.
Change through Europe
Our book documents change through Europe in a number of ways. The most obvious route of change is legislation. For example, the chapter on public contracts makes substantial reference to the European Union Public Procurement rules which have now found their way into the Code des marchés publics (see Bell & Lichère pp 294-297). Decisions of the two European supranational courts have shaped the way in which French law has developed. The availability of judicial review has been extended to institutions like prisons and the military (Bell & Lichère pp 162-3; CE Ass 17 February 1995, Hardouin and Marie nos 107766 and 97754, Leb 82 and 85 concl Frydman). In other cases, recommendations and soft law have influenced the development of French law. Many of the reforms of relations between the Government and the administration have been influenced, partly at least, by guidelines emerging at European level (see Bell & Lichère pp 221-2).
To say that ideas emerge at European level does not deny that French lawyers have not had an input. The starkest evidence of this was the Leila Sahin saga where it is abundantly clear that French lawyers shaped the European decision in the first place (see Bell & Lichère p 209; ECHR App. No. 44774/98, Leila Sahin v Turkey  ECHR 299).
Most commonly, Europe remains one of the natural reference points for scholarly and judicial reflection. A comparison between the textbooks of the 1980s and those of today would make that clear. Indeed, the creation of the Revue française de droit administratif in 1986 was part of an attempt to view French public law in a European and a comparative perspective.
Not all one way
It would be wrong to exaggerate the European influence on French public law. The referendum on the Constitution for Europe marked a stage of EU overreach. It led to the rejection of the Constitution and a swing towards emphasising the legitimate place of national distinctiveness within the EU family. (Indeed, the most rabidly anti-European speech I ever heard was from a French minister of commerce in 1996 criticising attempts by those engaged on the preparatory stages of what became the Treaty of Nice to narrow the scope of ‘public services’ and to let them become the subject of the transnational market.) Europe is not a procrustean bed where unity means uniformity. Each country has its own history and its own way of doing things. So there are differences between the systems in procedure and content. But recent years have seen a closer alignment.
The real question for discussion is not whether EU law and the European Convention have become vectors of influence over French law. We would treat that as obvious in many areas of French public law. The question is rather about the extent of that influence. The interesting issue is how the equilibrium between national and European influences is established and by whom. We hope that the papers for this workshop will reveal answers to that question.
Posted by Professor John Bell (Emeritus Professor University of Cambridge)
Suggested citation: J Bell, “Discussions on French Contemporary Administrative Law (Bell & Lichère CUP 2022) – Introduction”, BACL blog, available at https://wp.me/p80U0W-1pf.
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