In France, the Council of State (French: Conseil d'État) is an organ of the French national government that provides the executive branch with legal advice and acts as the administrative court of last resort. The Council is primarily made up of high-ranking legal officers.
Composition
A General Session of the Council of State is presided over by the Prime Minister or, in his absence, the Minister of Justice.[1] The Council's Vice-Chairman is ceremonially considered to be the top bureaucrat of France. The current Vice-Chairman is Jean-Marc Sauvé.
Other members of the Council include by decreasing order of importance:
- Department Heads
- Councillors in ordinary
- Councillors extraordinary
- Masters of Petitions
- Senior Masters
- Masters
The Vice-Chairman is appointed by Order-in-Council on the recommendation of the Minister of Justice and is selected from among the Council's Department Heads or councillors in ordinary.[2] Division Heads are similarly appointed and selected from among the councillors in ordinary.[3]
Councillors in ordinary, Masters of Petitions, and Senior Masters are appointed based on seniority from the preceding rank.[4] Appointees from outside the Council may be judges from administrative courts [5] or may come from other entities[6]. Masters are recruited from graduates of the National Administration Academy.[7]
The Council convenes in the Palais Royal in Paris.
The Council is divided into 6 divisions:
- Litigation (section du contentieux) — see below.
- Report and Studies (section du rapport et des études) writes the annual report, conducts studies and helps in ensuring the proper execution of litigation decisions.
- Finances (section des finances), the Interior (section de l'intérieur), Social Security (section sociale), and Public Works (section des travaux publics) reviews all orders and all statutory instruments issued by the Cabinet as well as any other order requiring review (décrets en Conseil d'État). Such reviews are nonbinding, but are mandatory.
The Council of State may also examine legal problems brought before the Cabinet.[8] It is also charged with the inspection of administrative courts.[9]
The front of the Palais Royal
History
The Council of State's origins go back to the 13th Century when it appears under various names, sometimes as Conseil privé or Conseil des parties ("Privy Council") and sometimes as Conseil d'État. It brought together lawyers (legists was probably a more accurate term) to advise the King on law suits against the Crown. Officially established in 1557, this was the largest of the King's Councils (see Conseil du Roi) made up of the Chancellor of France, dukes of peerage, ministers and secretaries of State, the Comptroller-General, 30 Councillors of State, 80 Masters of Petitions, and the Intendants of Finance.
The kings, who had the power to dispense justice and hand down judgments as the court of last resort, let that power be exercised by courts and parlements. But the king still retained the power to override them at will. In particular, the kings continued to decide great issues and to make decisions when the acts of their administration were disputed. The decisions of the King’s Council of State were regarded as being issued under “restrained justice”, that is, the self-restraint of the sovereign. The legists also assisted the King in the development of new laws in addition to their exercise of “restrained justice”.
For more on the French government administration during the "ancien régime", see Ancien Régime in France.
The current Council of State was created under the French Consulate in 1799 as a judicial authority responsible for lawsuits brought against the State and assistance in the drafting of highly important laws. The First Consul (later Emperor) presided over Council sessions, and the Council performed many of the functions of a Cabinet. After the Bourbon Restoration, the Council was retained as an administrative court but without its former prominence. Its role was more precisely defined by the Act of 1872.
Advisory role
Certain types of statutory instruments must be examined by the Council for advisory approval, including:
- All draft legislation prior to being proposed to Parliament except when proposed by members of Parliament themselves.
- Orders-in-council, signed by the Prime Minister and cabinet ministers; any such order is a form of delegated legislation outlining how a statute or act of Parliament is to be carried out or put into effect. Typically, a law will authorize, prescribe, or prohibit an action defined in broad terms and require an order-in-council to give the specifics of its application.
The advisory workload is divided between the Council's administrative sections according to which ministry or department is targeted by the order.
Administrative Justice
The Council acts as the supreme court of appeal for administrative law courts. It hears both appeals against orders and other executive decisions from the French President and the Cabinet ministers and appellate cases from lower administrative courts. Its decisions are final.
While the Council is strictly speaking not a court, it functions much like one by hearing lawsuits and claims against the State. Plaintiffs are represented by barristers drawn from the Supreme Court Bar; any such barrister is known as Counsel at Senior Court.
Original jurisdiction
The Council hears cases against decisions of the national government (decrees, regulations issued by ministers, decisions by committees with a national competency) as well as recourses pertaining to regional elections.
The Conseil d'État examines the conformance of regulations and administrative decisions with respect to the Constitution, higher administrative decisions, the general principles of Law, statute law, international treaties and conventions. The general principles of law are principles that are not found in any statute but derive from the spirit of the body of law; they are discovered by the Conseil and thus made into case law.
The Conseil has full latitude to judge on the legality of any decision from the executive branch, except for the very narrow category of "acts of government" where it judges itself incompetent. The Conseil itself has judged that such acts are restricted to:
See the analysis on the Conseil's site for more information (in French).
As such, the Conseil acts as a powerful check on the actions of the executive.
Appellate jurisdiction
The Council of State has appellate jurisdiction for local elections decisions from any of the 37 administrative courts.
It has final appeal jurisdiction for decisions originating from any of the eight courts of administrative appeal, meaning that it hears cases in which the plaintiff argues that the court of appeal ignored or misinterpreted law.
Court procedure
The Council's court system is inquisitorial by nature whereby a plaintiff submits a complaint to the Council stating precisely what happened and why he feels that the respondent acted unlawfully. The Council then begins a formal investigation, asking the adverse party, i.e., the Government or a government agency or office, to provide a detailed answer to the Council's satisfaction. The plaintiff does not have the burden of proof; instead, the Council may decide that the plaintiff has cause and the Government was in error if the plaintiff's information was sufficient to locate hidden evidence. Of course, both parties may submit additional information until the case is ready for final judgment.
In some cases, there may be some confusion as to whether a case should be heard before an administrative law court or judicial court, in which case the Court of Jurisdictional Disputes, or tribunal des conflits, sat by an equal number State councillors and Supreme Court justices and chaired by the Minister of Justice, is convened to decide to whom the matter shall be vested.
Major rulings the Council of State
As it renders final judicial review over almost all acts of the executive branch, the decisions of the Conseil d'État may be of considerable importance, often not for the actual case judged, but for the implications on the interpretation of law. While France is a civil law country and there is no formal rule of stare decisis, lower courts follow the jurisprudence constante of the Conseil d'État. The major decisions of the Conseil d'État are collected into books and commented by academics; the official site of the Conseil carries a list of comments on important decisions. The interpretation of points of law forms the Conseil's doctrine.
The decisions are named after the individual(s) or body who has appealed to the Council. The name of male individual used to be preceded by Sieur, the name of female individuals by Dame or Demoiselle and the name of widows called by their husband's name Dame veuve.
Important rulings include:
- February 19, 1875 - Prince Napoléon
The fact that a decision has been taken with political considerations does not make it an "act of government" that cannot be judged upon by the Conseil (reversal of previous doctrine). A prince had been removed from the army for political reasons. The council stated that his case had to be heard but was not founded because the law said that his position was revocable.
- October 27, 1995 - Commune of Morsang-sur-Orge, the "dwarf throwing case".
The respect of human dignity may be included in "public order". (A mayor had prohibited a dwarf-throwing attraction on grounds of public order, since this attraction did not respect human dignity.)
This decision nevertheless stops short of including morality in public order.
- March 3, 2004 - The asbestos case.
The State may be held responsible for not taking appropriate measures, according to the current scientific knowledge, for protecting the workers' health (against asbestos), even if the workers work for private employers.
References
-
- This article is based in part on material from the French Wikipedia.
- ^ Code of administrative justice, article L121-7
- ^ Code of administrative justice, article L133-1
- ^ Code of administrative justice, article L133-2
- ^ Code of administrative justice, articles L133-3, L133-4, L133-5.
- ^ Code of administrative justice, L133-8
- ^ Code of administrative justice L133-7
- ^ Code of administrative justice, article L133-6
- ^ Code of administrative justice, L112-2
- ^ Code of administrative justice, L112-5
See also
External links
