This is the fourth 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, his comment can be accessed here), Professor Peter Lindseth (USA – Connecticut University, his comment can be accessed here), 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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The book Contemporary French Administrative Law (CFAL) published by John Bell and François Lichère in 2022 provokes two immediate reactions from a French academic specialising in administrative law.
The first reaction is a feeling of gratitude. This book will be very useful to the French jurist for its linguistic contribution. Until now, there has been no recent and easily accessible (because available online) book that provides such a valuable tool: the delivery of all the concepts of French administrative law in English. Exchanges have always existed between France and English-speaking countries. Yet, because of the expansion and of what has been considered as the “radiation” (rayonnement)[1] of French administrative law abroad during the 20th century, the idea that the use of the French language was, per se, sufficient was widely held. Moreover, it is no secret that French academics specialising in administrative law are not always ready to speak English – whether due to an ideological position of principle or as a matter of lack of relevant skills. The recent increase in the use of English in France for teaching and scientific publications could, by mirror effect, be interpreted as a sign of the decline of French administrative law.
However – this is the second reaction – the scientific interest in the knowledge of French law continues, even in the post-Brexit United Kingdom. Certainly, the loss of influence of French administrative law on a global scale is undeniable. John Bell and François Lichère concede that the apogee of French law was in the 1950s, before the American model – following the enactment of the American Administrative Procedure Act (APA) in 1945 – “became too alluring for the common lawyer” (see CFAL, p. 2). Nevertheless, the publication of Contemporary French Administrative Law shows a persistent curiosity about French law, with a renewal of perspective from the Dicey’s time. And, thanks to this project, the French lawyer has an outside view of her own law, which is an exciting prospect.
That said, the point of the book is not to discuss the influence of French administrative law on other systems. Rather, one of the main arguments is that French administrative law is becoming more and more European. This external view of French law is particularly interesting, as it does not correspond to the representation French lawyers have of their own law nor to the presentation courses and textbooks offer of French law.[2] Some areas of administrative law are inevitably influenced to a large extent by European Union law (in particular, public contract law) and by the law of the Council of Europe (particularly the organisation of judicial activity). However, John Bell and François Lichère consider the Europeanisation of administrative law as a guideline, which gives a particular dynamic to the subject.
European law is undoubtedly an important source of formation for French administrative law. But, as the interest of the discussion is precisely to confront different points of view, I would like to show, in a somewhat exaggerated way, that this Europeanisation is not without its difficulties, which are deliberately minimised by the Conseil d’Etat. The dialogue between the courts is sometimes tense (1). Based on this observation and after reading the book, the question of the impact of this Europeanisation on French administrative law must also be explored (2).
1. A dialogue under tension between the Courts
Two elements must be distinguished: the Europeanisation of law and the discourse on the Europeanisation of law. I would like to insist on the second point, because the authors develop a rather (too?) optimistic point of view in their book.[3] However, the position can vary not only according to the examples used (which is obvious), but also according to the authors of the discourse about the Europeanisation.
As is well known, the French administrative judge – and principally of the Conseil d’Etat – has a very important weight in the construction of administrative law. In this respect, the cover of the book is particularly eloquent: a photograph of the Conseil d’Etat, the supreme body of administrative jurisdiction. Historically, as in the contemporary period, this body writes administrative law. The Conseil d’Etat, whose members hold the most important positions in the ministries as well and have a real (and for non-lawyers unknown) influence on the central political organisation, participates in the development of administrative law both in its advisory function (see CFAL, p. 72) and in its jurisdictional function. In addition to drafting law, the members of the Council of State comment on it and are referred to as ‘organic doctrine’ as opposed to ‘academic doctrine’ which is mainly composed of academics. The voice of the Conseil d’Etat and therefore the official discourse of the institution carries a great deal of weight, including outside our borders, particularly for the reasons mentioned above. The book Contemporary French administrative law mainly cites this ‘organic doctrine’ when the issue of the dialogue between judges is addressed. On the part of the Conseil d’État, the official discourse, expressed by the successive vice-presidents of the institution, is that of a dialogue of judges, European integration, and the joint and virtuous promotion of fundamental rights.
‘Academic doctrine’ (or a part of it) takes a less benevolent view of the relationship between French administrative jurisdiction and the European courts. There are latent, or even proven, tensions, as many illustrations show. Historical examples are famous, such as the resistance of the Conseil d’Etat until the Nicolo case[4] not to give precedence to European community law (as it was then called) over a national law that was contrary to it. The question of the status of the “commissaire du gouvernement” (see CFAL, p. 14, p. 155) has been the subject of intense tension too between the Conseil d’Etat and the European Court of Human Rights (ECHR), but this has been played down in official discourse. In the more recent period, two examples illustrate this tension very well.
1/ The first example pertains to the liability of Member States for a breach of European Union law. As we know, the European Court of Justice laid down the conditions for this regime in its famous Brasserie du Pêcheur and Factortame decisions[5] in 1996 and, specifically for judicial liability, in the case Köbler[6] in 2003. France apparently played the game of Europeanisation: in 2007, the Conseil d’Etat, in the Gardedieu[7] decision (s. CFAL, p. 261), established a new liability regime, which does not refer to the fault of the legislator, but only to a breach of European Convention on Humans Rights by a French legislation. The finding of such a violation is sufficient to give rise to a right to compensation for all the resulting damage. As regards liability for court decisions, the Conseil d’Etat aligned itself with the criteria of the Court of Justice in a 2008 Gesta decision[8] (s. CFAL, p. 249), whereas the case law had previously been more restrictive.[9]
Although the court has communicated widely on the consecration of these regimes, as a sign of a good will to Europeanise, to date they remain platonic and have never been implemented. On the contrary, the Conseil d’Etat take care never to engage its own liability. One of the difficulties (perhaps not unique to France) is that the same institution (the Conseil d’Etat) decides the case in the first instance as a last resort. It is then up to it to rule on its own liability and on the existence of any previous fault. Up to now, it has systematically refused to find such a fault. This may be justified because of the circumstances of the case, but it raises the problem (denied by the court) of a Conseil d’Etat that is both judge and party to the proceedings[10].
Beyond the procedural issue, regarding the substantive rules of law, the Conseil d’Etat refuses to accept liability for the content of a court decision that is nevertheless in breach of European Union law. For instance, in one case where there was an infringement of Articles 63 and 65 TFEU and a failure to comply with the obligation to make a reference for a preliminary ruling, the Conseil d’Etat – the very authority that failed to make a reference for a preliminary ruling – considered that the infringement was not a serious breach or, to use French terms, that there was no “faute lourde”.[11]
2/ The second example concerns the condemnation of France by the ECtHR because of undignified detention conditions and violation of the right to an effective remedy (guaranteed by Art. 13 ECHR). For many years, France has been confronted with prison overcrowding, with prisoners being kept in conditions that are often unsanitary and undermine their dignity. Faced with the inertia of the public authorities and the lack of political will for real change, appeals have been lodged with the administrative court, with the support of associations (primarily la section française de l’Observatoire international des prisons). Two points of tension are recurrent. The first is the unworthy conditions of detention (in the face of which the prison administration is slow to implement renovation work in the establishments and to take measures such as the de-ratings of the cells or the distribution of hygiene kits). The second point is the lack of an effective remedy to challenge this infringement of the fundamental rights of detainees.
For a while, the situation seemed peaceful. Indeed, in 2008, in a case concerning the prison in Marseille (‘les Baumettes’)[12], the Conseil d’Etat used the référé liberté (recourse that allows the administrative judge to take urgent measures, within a period of 48 hours, and to order any measure likely to put an end to an infringement of a fundamental freedom) to order measures to improve detention conditions. The ECtHR was therefore able to consider that the existence of the référé liberté constituted an effective remedy, which was warmly welcomed by the Conseil d’Etat.[13] However, France was finally condemned once again in 2020 by the ECtHR, in a judgment J.M.B. c. France. At the invitation of the ECtHR, the legislator intervened to try to remedy the situation by introducing a preventive remedy, which can be invoked before the judicial judge – but which remains deficient in many respects.[14] Above all, to return to the administrative judge, one point remains complicated: the Conseil d’Etat still refuses to set up a system for monitoring the injunctions it has issued against the administration.[15] In practice, this means that the prison administration may be tempted not to implement these injunctions and that detainees have the greatest difficulty in asserting their rights, despite the increasing number of legal remedies.[16] Litigation has therefore not yet completely dried up and new developments are to be expected – all of which are future points of contention between French and European judges.
These examples show, as John Bell and François Lichère point out, that European law is indeed a vector for the formation and transformation of French administrative law. These examples also highlight the ambiguity of the French administrative judge’s openness to European law – which is a crucial point, since it is this same judge who, as we have said, is responsible for developing the substance of the law and laying down the rules. As long as it does not affect the autonomy of the court and its power, Europeanisation is generally welcomed, but there is a resistance as soon as the court is likely to be hindered and/or challenged in its action, especially when this constraint comes from another judge.
2. What impact does Europeanisation have on French administrative law?
John Bell and François Lichère take a (implicitly) nuanced position: they postulate neither a generalized rapprochement between the different States nor a total renunciation of what constitutes the identity of French administrative law. The book is part of an approach to foreign law based on the highlighting of cultural traditions (and differences) and of the pedagogical presentation of their history and national specificities. This perspective, long adopted by John Bell, becomes “trendy” for some time in France too, after a period that was devoted to highlighting the globalisation of administrative law, by erasing the differences between the different legal systems.
This bias prompts a series of questions: does the Europeanisation of French administrative law have an impact on the specific characteristics of this law? Even if the aim of the book is not to measure the way in which European law influences French administrative law, the question of perspectives is inevitable. Are we witnessing a hybridisation of administrative law under European influence? Does each national judge reinterpret, as much as s/he can, in his/her own way and according to his/her own logic, the European rights? This would mean that several Europeanised administrative laws (one for each State; each system remaining marked by its national specificities) coexist and not one administrative law of all European States.
In my opinion, the tensions mentioned above highlight that the orientations pursued by the different institutions – especially by the courts – are not the same (in particular because of their history and the powers they hold). Whereas the Conseil d’Etat has a historical perspective of “légicentrisme” and remains a judge close to the administration, the ECtHR and the CJEU correspond to a different conception, perhaps closer to the German model: the promotion of the rule of law and fundamental rights, and hence the submission of all powers to respect for the law, with the judge as the protector of the individual against the state and the administration.
Do these (supposed or real?) differences of conception and these differences of relation to the law and to power in general constitute (or not?) a limit (unsurpassable or to be overcome?) to the Europeanisation of French administrative law? I would be very interested to hear the views of the two eminent authors, but also of the discussants of the book, in the collective discussion to come.
Posted by Anne Jacquemet-Gauché, Professor of public law (Clermont Auvergne university, France)
Suggested citation: A. Jacquemet-Gauché, “Discussion of the book “Contemporary French administrative law” J. Bell/ F. Lichère, 2022, Cambridge University Press”, BACL blog available at https://wp.me/p80U0W-1ro
[1] This is a (classic) reference to the Jubilee Book published by the Conseil d’Etat in 1952 and which celebrated “the radiation of the Conseil d’Etat and administrative law abroad” (Le Conseil d’Etat, Livre jubilaire publié pour commémorer son cent cinquantième anniversaire. 4 nivôse an VIII, 24 décembre 1949, Paris, 1952, 693 p.).
[2] See, however, for French doctoral work, among others: J. Sirinelli, Les transformations du droit administratif par le droit communautaire. Une contribution à l’étude du droit administratif européen, LGDJ, 2011, 618 p., also, focusing on the Conseil d’Etat: J. Teyssedre, Le Conseil d’Etat, juge de droit commun du droit de l’Union européenne, LGDJ, 2022, 594 p.
[3] This is not a criticism. On the contrary, it would be utopian to try to integrate all these details into a pedagogical book, which must present the whole of French administrative law in a relatively small volume of pages, which is already a feat given the immensity of the subject.
[4] CE Ass., 20/10/1989, Nicolo, Rec. 190.
[5] CJCE, 5/03/1996, Brasserie du Pêcheur SA contre Bundesrepublik Deutschland ; The Queen contre Secretary of State for Transport, ex parte Factortame Ltd et autres, C-46/93 et C-48/93, Rec. I-01029.
[6] CJCE, 30/09/2003, Köbler c/ Republik Österreich, C-224/01, Rec. I-10239.
[7] CE Ass., 8/02/2007, n° 279522, Gardedieu.
[8] CE, 18/06/2008, n° 295831, Gestas.
[9] Useful precision: the Conseil d’Etat reserves the application of this case law to cases in which European Union law is at issue. The non-liability of the content of court decisions that have become final remains the rule when only domestic law is at issue.
[10] CE, 9/10/2020, n° 414423, Lactalis Ingrédients SNC, note A. Jacquemet-Gauché, AJDA, 2020, p. 2579. In this case, the Conseil d’État also refutes the applicant’s arguments relating to a breach of the right to an independent and impartial tribunal guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union resulting from the fact that the national court would be ruling on a violation that it had itself committed, but without substantiating them.
[11] CE, 1/04/2022, no 443882, Société Kermadec, note J. Prévost-Gella, AJDA, 2022, p. 1641.
[12] CE, 2212/2012, n° 364584, Section française de l’Observatoire international des prisons.
[13] CEDH, 21/05/2015, n° 50494/12, Yengo c/ France.
[14] Loi n° 2021-403, 8/04/2021 tendant à garantir le droit au respect de la dignité en détention (law aimed at guaranteeing the right to respect for dignity in detention). This law allows a person detained in unworthy conditions to bring the matter before a court, which may order the prison administration to put an end to this condition “by any means”. However, the main solution proposed is a prison transfer, which has two disadvantages: the prisoner is far from his or her family and, above all, insofar as the other prisons are also overcrowded, there is no chance that the violation of dignity will cease in the new prison. This only displaces the problem.
[15] See F. Blanco, « L’exécution des décisions de condamnation dans le contentieux des conditions de détention », in S. Niquège (dir.), Les contentieux des conditions de détention, Mare & Martin, (to be published).
[16] See N. Ferran, « Le recours en responsabilité au secours de l’exécution des ordonnances de référé-liberté rendues dans le contentieux des conditions de détention ? », AJDA, 2022, p. 2396.
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