This is the second 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 the first piece published in this series (available here). 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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Table of contents: 1. Introduction. – 2. Variations on a given theme: public law in England and France. – 3. The external influence of French administrative law.
John Bell and François Lichère have written a book(Contemporary French Administrative Law, CUP, 2022 to which the citations that follow refer) which is interesting for more than one reason. First, it is part of an established tradition, which begins with Dicey’s oft-cited treatise of constitutional law, continues with the works of Hamson and others around the half of the twentieth century and is developed by Lionel Neville-Brown’s French Administrative Law (first edited in 1973). Second, it partially deviates from such established tradition to the extent that it constantly looks at French principles and institutions from a European perspective; that is, with a focus on both the law of the European Union and that of the European Convention of Human Rights. Bell and Lichère convincingly argue that modern French administrative law is shaped by the rise of French constitutional law, as well as by these sources. Thirdly, their book touches on the influence that French administrative law has exerted in the rest of Europe and elsewhere. This is a point of general interest, which is particularly important for my own research on the “common core of European administrative laws”, which begun some years ago. The focus of my comparative enquiry is however on administrative procedure, as distinct from judicial review, which is one the aspects considered, but not the main one. Our research interests are thus distinct, but they are close and in some sense complementary. That said, what follows is a series of remarks, some of which concern the relationship between English and French administrative law, while others regard more generally the European landscape.
2. Variations on a given theme: public law in England and France
As observed initially, the relationship between English and French public law is a sort of topos; (from the Greek word τόποι or the analogous Roman term loci); that is, a place that aids the orator to find elements of persuasion. This is so in more than one way. According to a (perhaps diminishingly important) strand in public law, comparative legal analysis serves to individuate and emphasize the diversity between legal orders. Administrative law has traditionally been viewed as a manifestation of such diversity. According to another strand, which was developed especially at the end of the last century, European integration has brought national systems of public law closer. Accordingly, not only administrative law is recognized everywhere in Europe, but it also characterized by increasing similarity. The discussion proceeds in three steps. First, further details about these strands will be furnished, also in light of the opinion expressed by Bell and Lichère. Second, their findings concerning the general principles of administrative law will be considered. Third, a possible variation deriving from legislation will be discussed.
A) ‘Normative’ and ‘functional’ visions of administrative law
The starting point is a point which is shared among historians of law (R. C. van Caenegem, European Law in the Past and the Future. Unity and Diversity over Two Millennia, Cambridge University Press, 2001; A.M. Hespanha, Panorama historico da cultura jurìdica europeia (Publicações Europa-América, 1999): for a long period of time, not only were scholarly writings by European jurists consulted in all parts of the Old Continent, but that also reported judicial opinions formed part of the legal materials and authorities that were consulted in that epoch by anyone who sought to ascertain the principles of the jus commune. All this changed in a period that varies from one European country to another, during the age of codification that begun in the second half of the eighteenth century and became particularly evident one century later.
It was precisely at the end of that century that Dicey used a particular rhetorical device, an antithesis, to illustrate his views on administrative law. An antithesis can be appreciated from two points of view, descriptive and axiological. Descriptively, the juxtaposition of contrasting concepts or ideas can be used to shed some light on one term of a relationship, for example in the traditional distinction between public law and law private (“Publicum jus est quod statum reipublicam spectat, privatum quod ad singolorum utilitatem”). From an axiological point of view, instead, an antithesis serves to throw light on the value judgments that are related to one of the contrasting concepts or ideas, for example democracy and dictatorship (N. Bobbio, Stato, governo, società, Einaudi, 1985). What Dicey did was, descriptively, to observe that in England there was no such thing as administrative law, in the sense of a special body of rules, institutions and procedures, as in the French system of droit administrative. There was neither a special administrative court nor a special body of rules concerning the liability of the servants of the state. Normatively, for Dicey, the English system was not only different from the French one, but also better, because the latter undermined the principles of equality and universality of law and was in contrast with the rule of law.
Whatever the accuracy of the antithesis from a descriptive viewpoint (Dicey considered rules and institutions that were substantially changed various years before the first edition of his fortunate constitutional treatise), it is its normative side that is of interest for us here. Jennings, Robson and Mitchell, among others, vigorously contested the asserted superiority of the English model. They criticized the instruments of control which were at the disposal of the courts, because that control was often no more than a control over form, and a loose one. Mitchell, in particular, argued that the creation of an effective system of public law would probably require the establishment of a new system of courts. Other writers, such as Hamson, observed that, though the rules of the French Civil code did not apply to administrative bodies, their liability was assured by the standards defined and refined by the Conseil d’Etat.
It is literally with these contrasting views that Bell and Lichère’s book begins (with a paragraph on “French administrative law in British scholarship”) and it is to their analysis that we now turn. They reject the more radical critique of Dicey’s ideas. They observe that his later works show that he recognized the changes undergone by French droit administratif (Bell and Lichère, p. 1). It is for this reason that the comparison between England and France was helpful to highlight both diversity and commonality. They observe that later generations of scholars considered French institutions as “a positive benchmark”, as well as the “primary reference for conceptual ideas” (p. 2). They add that “despite the emphasis of Dicey, the state is not subject to the same rules of contract as private individuals” (p. 5).
B) A judge made law
Bell and Lichère not only reject the view that the relationship between the two legal cultures should be viewed in terms of an irreconcilable contrast, but they also adopt an approach to the study of French administrative law that emphasizes a general point of which Dicey himself was well aware. This point concerns the sources and shaping of administrative law. Unlike French private law, which has been codified since more than two centuries, the system of droit administratif lacked the comprehensive and systematic structure that was provided by a code. It developed gradually not so much by edicts of the prince, but judicially. It was the Conseil d’Etat that defined and refined the standards of administrative conduct. In their words:
“the general principles of droit administratif – the review of administrative decisions, liability in contract and extra-contractually, and administrative procedure were not codified at the same time as private and criminal law were in the Napoleonic period. As a result, droit administratif was largely the creation of the administrative judges, who were, for the first 150 years, just the members of the Conseil d’Etat. They shaped the subject not only through judgments, but also through the arguments of the commissaire du gouvernement (now called the rapporteur public) and through the textbooks and scholarly articles which individual members wrote extrajudicially. In that way, it was more like the common law in which case law, rather than statute, has set out major principles for judicial review of administrative action, contract and tort” (pp. 5-6).
From this approach, it can be seen that the similarity concerns not only the source of the standards that must be respected, but also their nature and contents. It concerns their nature because, although for a long period of time French administrative judges were reluctant to admit it, they elaborated a set of general principles of administrative law. It is through this set of principles, especially after 1944, with the fall of the Vichy government, that the values of liberty and solidarity have been integrated in the daily implementation of the business of government. This is recognized in various parts of the book:
- during the Vichy period, the Conseil d’Etat was the “sole constraint on government” (p. 210);
- “after the Vichy period, the Conseil d’Etat sought to clarify the ‘republican constitutional tradition’. Even though the courts could not then strike down legislation, they could limit executive acts and they could interpret legislation restrictively” (p. 53);
- “one of the high points of this process of developing administrative law occurred just after the Liberation” (p. 6),
- “when legality was restored after the Vichy period in August 1944, … it was necessary to formulate French republican legal values more precisely” (p. 210).
In the rest of the book, we are presented with an analysis which is pragmatic and evolutionary, in which the gradual adjustment of judicial standards, in connection with a changing social and political landscape, is still the main factor of shaping of administrative law, though in a sort of cohabitation with the Conseil constitutionnel and the two supranational courts in Luxembourg and Strasbourg (p. 6).
That the orientation is rather different from the contrastive approaches that prevailed in the past is fairly clear. Some examples suffice to show it. In chapter 7, titled “Maintaining legality – thr grounds of review”, they begin by noticing that the “French terminology is different from English terminology. The concept of l’Etat de droit or le regne du droit focuses on legality” (p. 178). They add that the French concept is much closer to the German Rechtsstaat.
However, when they examine what the French call le fond du droit, several similarities emerge. There is, first, abuse of power (détournement de pouvoir) has been historically important to allow the courts to review not the formalities of an administrative decision. It is “in many ways, like the French civil law abuse of power or the English abuse of trust. It involves a decision being made for a purpose other than that for which it is authorised by law. In most cases, the abuse of power will be intentional” (p. 186). However, during the twentieth century it gradually lost importance, as the ground of illegality was expanded: “like the English tort of malicious abuse of office, it has tended to fall out of favour” (p. 185). A second similarity concerns error of law (erreur de droit). According Bell and Lichère, “as in English law, an error of law can take several forms” (p. 190).
The third example is more relevant, as it concerns the right to be heard (“droit à une procedure contradictoire préalable”), and requires some more words. The authors observe that this right “was established as a general principle of law in Trompier-Gravier in 1944”. The prefect of Paris withdrew Mme Trompier-Gravier’s permit to sell newspapers from a kiosk without giving any “opportunity to give her account of what had happened before the licence was withdrawn”. The decision thus breached her rights to a defence (droits de la défense). This was one of the first cases in which the French Conseil d’État explicitly enounced its doctrine of the general principles of law. It was also a case which was cited with approval by Wade to show that similar problems arose on both sides of the Channel and that French administrative courts had ‘striven to raise the control of administration’ (W Wade, Administrative Law, Clarendon 1961, 8).
A fourth example is proportionality. It can be helpful to observe that in the UK, the traditional test of Wednesbury unreasonableness looked increasingly far from satisfactory, Jowell and Lester argued that proportionality was “neither novel nor dangerous” (J. Jowell and A Lester, Proportionality: Neither Novel Nor Dangerous, in J. Jowell and D. Oliver, eds., New Directions in Judicial Review (Stevens, London, 1988). However, fifteen years later, there was still uncertainty as to whether proportionality existed as a separate ground of review, outside EC law and the ECHR. Nor was it recognized as a ground of review in France, though – according to Guy Braibant – French judges used “proportionality without knowing it” (p. 195). As Bell and Lichère add, this concept was close to the “theory of the balance sheet”, developed by the Conseil d’Etat since the case Ville Nouvelle Est (1971). Moreover, the idea that disciplinary sanctions needed to be proportionate was well established in civil service matters (p. 196). However, the full adoption of proportionality is a recent development and one that owes much to the influence of both European courts, as well as to the Conseil constitutionnel, which has adopted the triple test of necessity, appropriateness and proportionality since 2008. Interestingly, administrative courts have used this test for the measures adopted by public authorities during the pandemics, for example, in cases regarding the total ban on gatherings and its impact on religious freedom.
C) Does legislation make a difference?
Thus far, we have seen that not only the general principles of French administrative law are largely a judicial creation, but also that many of them are similar – sometimes strikingly similar – to those that can be found in Britain.
However, from the perspective of legislation things may change. Bell and Lichère do not hesitate to mention some important steps, including “the Law of 11 July 1979 [which] introduced obligations for the administration to give reasons for its decisions affecting individuals unfavourably. In particular, reasons have to be given where civil liberties are restricted, penalties imposed, conditions are imposed on an authorisation, existing rights are restricted or withdrawn, time limits set or benefits refused when the requisite conditions are met. This reversed the normal expectation in administrative law that there was no requirement to give reasons without a specific text requiring this” (p. 23). More generally, when illustrating the sources of administrative law, they point out that “a large number of very specific codes regulate much of the activity of the administration”, in areas such as local government, immigration, public procurements, and public property.
However, they observe, there is general code, the nearest thing being the Code des relations entre le public et l’administration (Code on the Relations between the Public and the Administration, CRPA) of 2015. This Code is particularly important because it lays down principles of good administration, which the executive is required to respect (p. 178). The questions that thus arise concern are, first, whether this Code may, in the course of the following years, have an importance comparable to that of the American Federal Administrative Procedure Act (1946) and, second, whether the Code may promote the diffusion of principles of good administration. From the first point of view, Bell and Lichère highlight one important advantage of codified norms; that is, they are more detailed than general principles, for example, as far as the droit au contradictoire (the equivalent of the maxim audi alteram partem) is concerned (p. 226). From the other point of view, the Code may promote standards that go beyond the traditional principles governing the exercise of power by public authorities, such as legality, due process and transparency.
3. The external influence of French administrative law
The point that has just been made about legislation has another implication, which is worth considering. It concerns the external influence of French administrative law.
In this respect, Bell and Lichère make three interesting remarks. First, “France may be distinctive in the organisation of its administration and in its administrative law, but it is not unusual among developed countries” (p. 21). Second, although “French administrative law began as a very French development. … by the end of the nineteenth century, that domestic product was seen as a model for others of how to exercise control of the administration in a democracy. The Strasbourg professor Otto Mayer wrote a long book on the subject which made available French ideas as a reference point for the development of a German administrative law” (p. 231). Third, like previous observers, they stress that the formal grounds of review in French law “found their way” into European Treaties (p. 179), beginning with those of Paris (1952) and Rome (1957). Still today the provisions of EU treaties concerning judicial remedies reveal the importance of French administrative law. While the first remark concerns what Rivero called parallel developments, the last two ones suggest that French administrative law has had a remarkable diffusion. There was jurisprudence on legality and respect of form and procedure. There was, moreover, jurisprudence on the performance of public services. In doctrinal terms, the principles defined and refined by the Conseil d’Etat have been regarded as a model in many other legal cultures.
The German case is by no means isolated. Belgium and Italy provide other interesting examples. Both initially – Belgium in 1831, Italy in 1865 – refused the French system, based on specialist administrative courts also entrusted with advisory functions. However, Italy reversed this choice in 1899, when a new panel was created within its Council of State (until then an advisory body) and was charged with the function of solving disputes between individual and public authorities concerning legitimate interests (as distinct from rights, which remained under the jurisdiction of ordinary courts), as well as within public authorities, for example central departments and local bodies. Subsequently, new panels were created in 1907 and 1923 and the Constitution of 1948 codified judicial dualism. Belgium, too, entrusted its Council of State with judicial functions in 1946, though it differs from the French one in more than one respect. In still other European and non-European legal systems (including Greece and Portugal, Egypt and Morocco, respectively) judicial remedies against public authorities are said to be derived from French administrative law. It can be argued, therefore, that the French model of judicial review of administration – as it developed since the 19th century – has had an expansive dimension.
More recently, though, French administrative law appears to have been less influential. This may be due, at least in part, to the reluctance to adopt general legislation on administrative procedure, unlike Austria (1925) and other countries of Mitteleuropa, and unlike the US (1946), as Bell and Lichère observe (p. 23). This does not diminish the relevance of the point just made about the external dimension of French administrative law, but shows a change, which has been emphasized by some French experts (see F. Melleray, sous la direction de, L’argument de droit comparé en droit administratif français, Bruylant, 2007).
However, there are recent developments in the opposite direction. Public consultation provides a significant example. Bell and Lichère discuss the early cases in which public consultation was required in view of the construction of new material infrastructure during the 1960s (p. 226). Subsequently, French legislation relaunched the instrument of public debate (débat public) and set up a body, the Commission nationale du débat public (CNDP), later strengthened by the Loi Grenelle of 2010. Therefore, the doctrinal foundations of public consultation thus date back to the last century, but have been developed more markedly during the new one. Detailed analysis would require an extended article in itself. What follows is perforce just a quick reference to the external influence of this way to shape public consultation. After years of debate, when Italy eventually adopted rules establishing public consultation for government works, both the idea of a public inquiry and the creation of a national commission were clearly borrowed from French law. Of course, this example cannot be generalized. Further verification is necessary. That said, it might be too early to say a requiem for the external influence of French administrative law.
Posted by Professor Giacinto della Cananea (Bocconi University).
Suggested citation: G della Cananea, “National and European Dimensions of French Administrative Law”, BACL blog, 5 May 2023, available at https://wp.me/p80U0W-1pV
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