French State Liability Law – from Path Dependency to Europeanisation?, by R Widdershoven

This is the fifth 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 16^th 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, her comment can be accessed here), 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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1. Introduction

In their inspiring book Contemporary French Admininstative Law (Cambridge University Press 2022, p. 209-366), John Bell and François Lichère distinguish four major influences currently shaping French administrative law: path dependency, the constitutional turn, the European environment and social change. In this comment I focus on two of these influences, path dependency and European environment, and examine the question whether and to what extent these two influences have shaped and are still shaping the very French administrative law concept of state liability. So, this comment is a piece of comparative law in action, inspired by Bell and Lichère.

In the comment I assume that between both influences, path dependency on one hand and European environment on the other, there may be a certain tension. From the viewpoint of path dependency, a legal order will tend to handle new situations and present and future problems by using established approaches from the past (Bell and Lichère 2022, p. 299). After all, as Bell has stated in another publication, ‘Legal development is […] also explained by the internal dynamic of the law, the pressure of established ways of dealing with issues’ (John Bell, Path Dependency and Legal Development (2013) 87 Tulane Law Review 787). On the other hand, there are the forces of change of which Europeanisation is an important one. France has become a commited member of the European Union and has embraced the European Convention of Human Rights (ECHR). Both sources of European law have affected many aspects of French administrative law to some extent (See Bell and Lichère 2022, p. 304, for examples). At the same time French law has been selective in this regard and has maintained the French established approach in relation to other aspects.

2. Main Features of Europeanisation of State Liability Law

This comment examines the tension between path dependency and Europeanisation in relation to state liability, with a focus on EU law. The Europeanisation of state liability started with the famous case of Francovich, wherein the Court of Justice recognized the EU principle of state liability for loss and harm caused to individuals as a result of breaches of EU law for which the State can be held responsible (CJEU 19 November 1991, joined case C-6/90 and C-9/90, EU:C:1991:428). This principle applies to every infringement of EU law by a Member State, irrespective of the national body whose (in)action has caused that infringement, an administrative autority, the legislator or a national court adjudicating in last instance (see for the latter CJEU 30 September 2003, nr.C-224/01 (Köbler), EU:C:2003:513).

In addition the Court of Justice established three conditions under which individuals harmed have a right to compensation on the basis of EU law (CJEU 5 March 1996, joined cases C-46/93 and C-48/93 (Brasserie du Pêcheur & Factortame), EU:C:1996:97; CJEU 8 October 1996, joined cases C-178/94 et al (Dillenkoffer), EU:C:1996:375): namely (1) the rule of EU law infringed is intended to confer rights on them; (2) the infringement of that rule is sufficiently serious (or, in case of a judicial infringement, manifest) and (3) there must be a direct causal link between the infringement and the loss or harm sustained by those individuals. These conditions are necessary and sufficient to found a right in favour of individuals to obtain redress on the basis of EU law. However, a Member State can incur liability under less strict conditions on the basis of national law. So, Europeanisation of state liability in Francovich and subsequent case law is a form of judicial mimimum harmonisation.

What is clear from the outset is that the EU influence on state liability law is only concerned with national infringements of EU law, or in French liability law terms, with fault liability. The equally important action for no-fault liability in France, according to which the State may be liable for lawful state action on basis of principle of equality before public burdens (Bell and Lichère 2022, p. 257), is not touched upon by the Court of Justice’s Francovich case law. To the contrary, in the case of FIAMM the Court of Justice has explicitly refused to recognize the existence of a EU principle of no-fault liability of the European Union (CJEU 9 September 2008, case C-120/06 P (FIAMM and Fedon v Council of the EU and Commission of the EC), EU:C:2008:476), which implies that such a principle does not exist in relation to the Member States either. So, no-fault liability is not included in the remainder of this comment.

3. Conferring Rights on Individuals

The first condition under which a Member State may incur liability for infringements of EU law, is that the rule of law infringed has been intended to confer rights on individuals. This relativity or Schutznorm requirement is well-known from German State liability law and is applied in the Netherlands as well  for instance. In French fault liability law, such requirement seems not to apply. It is not mentioned as a condition for fault liability by Bell and Lichère in their chapter 8 on state liability. Moreover, it seems not to fit well in the distinctive feature of French administrative law – and of the concept of faute the service as well – which focusses on the functioning of the administration and ‘does not ask whether individual rights are affected, as German law does’ (Bell and Lichère 2022, p. 240, referring to A. Jacquemet-Gauché, La responsabilité de la puissance publique en France and en Allemagne, Paris: LGDJ 2013, p. 481).

However, this statement is perhaps questioned by the recent case of the Court of Justice of 22 December 2022, in JP v Ministre de la Transition écologique, wherein the Administrative Court of Appeal of Versailles referred a preliminary question on the condition of conferring rights in the context of a French case about fault liability (CJEU 22 December 2022, case C-61/12 (JP v. Ministre de la Transition écologique and Premier ministre), EU:C:2022:1015). In particular the court raises the question whether Articles 13(1) and 23(1) of Directive 2008/50, which prescribe the Member States to ensure, first, that the levels of certain dangerous substances in the air of their territories do not exceed the limit values as set by the directive and, second, to take appropriate measures to remedy possible exceedance, confer rights on individuals to claim compensation for damages to their health in cases where there is a direct and certain causal link with the deterioration in air quality. The Court answers this question in the negative, stating that, although the directive’s obligations are ‘fairly clear and precise’, they ‘pursue a general objective of protecting human health and the environment as a whole’ (point 54 and 55 of the judgment, italics added). Because of this general objective, the provisions infringed are not intended to confer rights on individuals.

This judgment can be criticized for several reasons (see eg. the Opinion in the case of advocate-general Kokott of 5 May 2022, EU:C:2022:359). More important for this comment is whether the application of the relativity requirement implies a new approach in French fault liability law. An approach which deviates from the French established approach in this regard and is derived from Union law. If so, Europeanisation would prevail above path dependency. The next question would be whether this line of reasoning will have a spill-over effect outside the area of state liability for infringements of Union law.

4. Sufficiently Serious or Manifest Breach of EU Law

The second European condition for establishing a right to compensation for damages caused by breaches of EU law is, that the breach is sufficiently serious or – in case of judicial breaches – manifest. In this regard French liability law has maintained its established, in general more generous, national approach according to which the mere infringement of the law, including EU law, is already enough for incurring liability.

As regards decisions of administrative authorities, the Conseil d’Etat ruled already in 1973, that ‘unlawfulness, even if is attributable to mere error of assessment constitutes a fault which is capable of giving rise to the liability of public authories’ (Bell and Lichère 2022, p. 248, referring to CE Sect. 26 January 1973 (Ville de de Paris c Driancourt), no. 84768). This standard applies to decisions infringing EU law as well, excluding the more strict EU condition of sufficiently serious breach.

A similar more generous standard applies to infringement of higher law, including EU law, committed by the legislator (Bell and Lichère 2022, p. 259-261). This standard was introduced in 2007 by the Conseil d’Etat in liability cases related to legislation breaching the ECHR (CE Ass. 8 February 2007 (Gardedieux), no. 279522). From the Convention the Conseil d’Etat exported it in 2014 in to liability cases related to violations of Union law (CE 22 October 2014 (Société Métropole Télévision), no. 361464), and in 2019 to cases related to unconstitutional laws (CE Ass. 24 December 2019 (Paris Eifel Sufren), No. 425983). As regards liability for legislative breaches of EU law, recognized in Société Métropole Télévision, the Conseil d’Etat rejected liability based on fault as such, but retained liability for the unlawful effects of laws. In this respect, the literature assumes that the Conseil d’Etat does not like to qualify the infringement of EU law by the legislator as fault and prefers the term ‘manquement’ to ‘faute’ as the latter has a moral and negative connotation (Bell and Lichère 2022, p. 261). Nevertheless, Bell and Lichère conclude that the liability of the legislator ‘is strict liability in the sense that illegality is automatically fault’ (p. 261), excluding the EU standard of sufficiently serious breach. So, the established French approach and path dependency have prevailed above Europeanisation.

As regards to state liability for the judiciary it can be noted that, since the judgment of the Conseil d’Etat in Darmont in 1978, the French State is liable for a ‘faute lourde ou déni de justice’, caused by a judicial decision (CE Ass. 29 December 1978, no. 96004, mentioned in Bell and Lichère 2022, p. 247). This standard of faute lourde (gross fault) applies in liability cases for breaches of EU law by a court, adjudicating in last instance, as well (Bell and Lichère 2022, p. 249-250, referring to CE 18 June 2008 (Gestas), no. 295831). In this regards it matches the standard of manifest breach, introduced by the Court of Justice in Köbler (CJEU 30 September 2003, caseC-224/01, EU:C:2003:513). So, in respect of liability for the judiciary the French and European conditions regarding the degree of unlawfulness are similar. As the French condition (1978) is much older than the European one (2003), the former has not been influenced by the latter. Path dependency and Europeanisation simply go in the same direction.

5. Direct Causal Link between the Breach and the Damage Sustained

The third and final condition under which a Member State may incur liability for infringements of EU law, is that there is a direct causal link between the breach of EU law and the damage sustained. This condition may limit the possibility of succesful claims for damages considerably as it seems to exclude errors in procedure as a basis for a liability claim.

This limitation can be derived from the case of Leth (CJEU 8 November 2012, case C-420/11 (Leth), EU:C:2012:701). which was concerned with a claim for pecuniary damage, namely the loss of value of the house of mrs. Leth, which was caused by the increase of the aircraft noise because of the extension of an airport which had been permitted by the Austrian authorities without an environmental impact assessment having been performed in advance, as prescribed by Directive 85/337. According to the Court of Justice it was doubtful whether the violation of the directive was the actual cause of the loss of value, as the rule infringed, procedural in nature, prescribed an assessment of the environmental impact only, but did not lay down substantive rules in relation to the balancing of the environmental effects with other factors. Or, in other words, if the Austrian authorities had not violated the directive and had performed an impact assessment in advance, the extension of the airport might have been permitted as well, causing the same amount of pecuniary damage. Therefore there seems not to be a direct causal link between the breach of EU law and the damage sustained.

This line of reasoning of the Court of Justice is very French indeed. French fault liability law requires a ‘direct and certain’ causal link between the breach of the law and the damage sustained, in order to create a right to compensation for an individual. Therefore errors in procedure or failures to follow formalities may not be held to have a sufficient causal connection between the unlawfulness and the harm suffered by an individual (Bell and Lichère 2022, p. 249, and pp. 264-265). In this respect, it is established case law of the Conseil d’Etat, that where the same decision could have been validly taken on the basis of the facts known at the time, there is no direct causal link between the unlawful decision and the loss (See eg CE Sect. 19 June 1983 (Carliez), no. 20619, mentioned in Bell and Lichère 2022, p. 249). The loss would have been suffered anyway.

So, as regards the requirement of causal link the European and French standard are very similar. However, the French standard is much older than the European one, meaning that it has not been influenced by EU law. Possibly it is the other way around, but I cannot prove this.

6. Result

To conclude, French state liability law is primarily shaped by path dependency. European influences have been integrated within French liability law to some extent, without however changing the established French model in this respect. In general the French approach is more generous than the EU model (Bell and Lichère 2022, p. 269, p. 304). Firstly, because French law recognizes no-fault liability, while EU law has rejected such a recognition. Secondly, because the French State is fault liable for the mere infringement of the law, including EU law, by administrative authorities and the legislator, and not only for sufficiently serious infringements, being the EU standard. As regards liability for judicial breaches of  EU law and the causation criterion, French and EU liability law are similar, but this similarity is not the result of European influence on French law, as the French solutions regarding these topics are much older than the EU law conditions.

Only regarding one issue there may be a tendency towards Europeanisation of French law, namely in respect of the condition for fault liability, that the rule of law infringed must have been intended to confer rights on individuals. This European relativity or Schutznorm requirementept seems not to apply in purely domestic French State liability law, but has recently been applied in French liability law in respect of infringement of EU law in the case of JT v Ministre de la Transition écologique. Whether this introduction is an incident or the beginning of a new Europeanisation trend, remains to be seen.

Posted by Prof. Rob J.G.M. Widdershoven (professor of European administrative law at Utrecht University, the Netherlands, and advocate general in administrative law at the Dutch Council of State).

Suggested citation: R. Widdershoven, “French State Liability Law – from Path Dependency to Europeanisation?”, BACL blog, available at https://wp.me/p80U0W-1sa.