Council of State (France)

Missions

Advisory function

The Council of State is to advise Government French. It examines the Bills and of ordinance S, before those are not subjected to the the Council of Ministers, as those of the projects of Décret that the Law qualifies “ decree in Council of State ”. The Council of State gives an opinion on the legal regularity of the texts, their form and their administrative opportunity. This opinion can take the form of a modified text, or a note of rejection. The meetings are taken place behind closed doors, and the opinion is transmitted only to the government, which is free to make it publish or not. The Government can not hold any account of the opinion, but the Constitution makes nevertheless the consultation obligatory. The Government can submit to the Parliament only the text Bill which it subjected to the Council of State or the version of the text modified by the Council of State, and in no case a version worked out after the opinion of the Council of State, and not subjected to him. In 2003, the Constitutional council sanctioned the non-observance of this rule by partially invalidating a law (Relative law with the election of the regional advisers and representatives in the European Parliament like with the government aid with the political parties 2003-468 cd.) . The Council can in addition be consulted freely by the Government on any question or difficulty of legal order or administrative.

It indicates to the Government which are, among the Community text projects, those which touch with legislative questions and must consequently be transmitted to the Parliament.

The Council of State addresses each year to the President of the Republic a public report/ratio, which states in particular the reforms of a legislative nature, lawful or administrative, that he proposes with the government.

In 1991, the annual report of the Council of State, written by Francoise Chandernagor, had alerted on the legal insecurity, which had with the complexity of the laws and the legislative proliferation.

Judicial office

The Council of State is the supreme level of the administrative jurisdiction, which judges the recourse directed against the public authorities.

It judges in first and the last arises the recourse for abuse of powers directed in particular against the decrees and the acts of the collegial organizations to national competence and the dispute of the regional elections and the election of the French representatives to the the European Parliament.
It is qualified in call for the dispute of the cantonal municipal elections and within the framework of certain emergency procedures such certain ordinances returned by the judge of the referred S of the administrative court.
Seized by a appeal, he is the judge of cassation (judge of the respect of the right by the lower jurisdictions) of the jurisdictional Décision S returned by the other administrative jurisdictions ruling in last spring, than they are the jurisdictions of common right (the administrative courts of call and the administrative courts) or the specialized jurisdictions (such as the Court of Auditors or the disciplinary sections of the national councils of the professional orders).

Management of the administrative courts and the administrative courts of call

The body of the administrative magistrates gradually developed: its management, which was reserved for the ministry for the Interior until 1990, was then transferred to the Council of State. Under the authority of the Vice-president, the General secretary of the Council of State ensures the management of the body of these magistrates, and in particular of their career. He is assisted of a Superior council of the administrative courts and administrative courts of call, with the role consultatif.
The Vice-president of the Council of State is also the principal director of the budget of MT and CAA.

The Council of State publishes a quarterly letter to make known the administrative jurisdiction, in France and in the world: the Letter of administrative justice (LJA).

History

One can make go up the origin of the Council of State to formations which, as from the 13th century and under various names, whose sometimes Council of State, brought together lawyers (legists then were said) around the king. Terms such as to advise main State or requests , always used, date from the Ancien Mode. The kings, who held the capacity of justice and judged in last spring (the image of Saint-Louis returning justice under the oak of Vincennes remained) have it after the Moyen-âge let exert by courts, the Parliaments . One speaks about deputy justice (at the Parliaments). However, if the Parliaments decided in last spring of the litigations between the subjects of the kingdom, like continuations against them, the kings continued to decide by them same when the acts of their administration were disputed. One then speaks about restrained justice (by the sovereign). The legists assisted the king as well for the development of the laws as for the exercise of restrained justice.

The Révolution preserves the principle of the justice restrained for the administrative dispute. The 16 August 24th law 1790 relating to the legal organization poses the principle of the subtraction of the administrative dispute to the control of the ordinary courts (known as legal ):

“the legal functions are distinct and will remain always separate administrative offices. The judges will not be able, hardly of breach, to disturb, in some manner that it is, the operations of the administrative bodies, nor to quote in front of them the administrators for reason of their functions” (16 August 24th, 1790 law, contains 2, article 13).

The decree of the 16 fructidor year III confirms the principle of separation by affirming, in an unique article, that “iterative Defenses are made with the courts know acts of administration, of some species which they are, with sorrow of right”.

Nevertheless, it is only under the Consulate that is installation a true administrative justice, so that, during all the revolutionary period, one can dispute the acts of the administration only in front of the administration itself.

The Council of Actual position is instituted by the constitution of the 22 frimaire of year VIII (December 13rd 1799), that of the Consulat:

“Under the direction of the consuls, a Council of State is charged to write the Bills and the payments of public administration, and to solve the difficulties which rise out of administrative matter” (Constitution of the 22 frimaire of year VIII, article 52) .

The Council of State of year VIII is charged to prepare the Bills, and to assist the Head of the State in the judgment of the administrative dispute (the “ difficulties”). The Council appears in several articles of the constitution, and its members, named by the First consul, enjoy a high statute. The ranks are those of today: listener, Master of the requests, adviser of State. They are members of the Council of State who present and defend the projects of the government in front of the legislative Body. Vis-a-vis justice, they profit from the same immunity as the members of Parliament: the continuations must be authorized by the Council. Cherished by Bonaparte, the Council holds an important place during the Consulat and the Empire, holding in particular a key function in the drafting of the Civil code French.

In its contentious function, the Council has at the time only one advisory role, the system remains that of restrained justice, the Décision being allocated to the Head of the State. In the facts, this last almost always follows the opinions of the Council (its successors will make in the same way), all the more easily as the Council refuses to appreciate the Décision S of the administration taken for “political” reasons.

The Restauration looks at this Napoleonean institution with mistrust. The Council, even if it is not mentioned any more in the Charte (which holds place of constitution then) is preserved, but its opinions are requested less, and the activity is centred on its contentious function. The Council finds a little gloss under the Monarchy of July, and the Second Republic in 1849 reinforces it while putting an end to restrained justice. The Council receives deputy justice. In its contentious function, it does not give any more of the opinions, certainly generally followed, but returns “in the name of the French people” of the executory stops, just like the courts of the legal order. At the same time, the function of commissioner the government is created. Napoleon III returns to the justice restrained in 1852, while giving, like his/her uncle, a great role with the Council.

The Third Republic incipient, by the law of May 24th 1872 on the organization of the Council of State, returns to the council deputy justice. It institutes also the function of vice-president of the Council of State. The Council settles with the Palais Royal, in its current buildings, in 1875. The Palais of Orsay, which it occupied previously, had burned during the Commune. This same year 1875, by the stop (Council of State, February 19th, 1875), the council gives up his doctrines according to which it must abstain from judging Décision S of the government taken for political reasons for interests. January 21st, 1921, the Court of the conflicts carries a serious blow to the unit of the administrative order, with its stop Business firm of the African west (vat of Eloka), which goes, by principle, to put the industrial and commercial Public services under the jurisdiction of the legal order. This introduction of the private law into the administrative sphere, answering the postulate criticable that the legal judge is better capable to defend the interests of the individuals, involves today a great complexity of the relations between the two orders of jurisdiction.

Starting from 1945, the advisers of State will be for the majority resulting from the National school of administration lately created. In 1953 are created the administrative courts, resulting from the interdépartementaux councils of prefecture. These courts form a first degree of jurisdiction, and the Council of State intervenes henceforth in the majority of the businesses only like appelate jurisdiction. In 1958, the Council takes part in the drafting of the news constitution. Michel Debré, then Minister of Justice and future Prime Minister, who coordinates work, is a former adviser of State, just like Georges Pompidou, his successor in Matignon. The relations between the Council and the general De Gaulle during the first years, marked by the war of Algeria, are sometimes tended, even execrable. Thus, if the stop (Council of State, March 2nd, 1962) recognizes with the Head of the State the possibility of exerting the legislative power, in accordance with article 16 of the Constitution (full powerss) , without control of the Council of State, the stop (Council of State, October 19th, 1962) cancels the measurements taken by the president within the framework of the special capacities entrusted by the law chief clerk of April 13rd, 1962, comparing them to ordinances, submitted to the administrative judge. More serious, the general meeting of the Council of State (advisory formation), of agreement with the majority of the doctrines, considers illegal the use of article 11 to register in the constitution the election of the President of the Republic by the direct suffrage. The opinion, normally confidential and reserved for the Government, is published in the press. De Gaulle passes in addition to. It considers one moment an in-depth reform of the Council, but the project will be abandoned. In 1987, are created the administrative courts of call, second degree of jurisdiction between the administrative courts and the Council of State, to reduce the load of this last. For many businesses, the contentious formations of the Council of State do not intervene any more but in cassation. At the same time, the magistrates of the administrative order see themselves confirming, to ensure their independence, of the guarantees close to those of the magistrates of the legal order, particularly irremovability.

In its function of advising government, the Council delivered in the last years some outstanding opinions on topical questions, such that of November 27th, 1989, said wearing of sign of membership at a religious community , at the time of the first business of the Islamic scarf or that of August 22nd, 1996, said stay from abroad not arising from the European Union , at the time of the business of “without papers” of the church Saint-Bernard.

Who works with the Council of State?

Members of the Council of State

Members of the Council of State, approximately 350 of which approximately 80 in detachment, form a body of civils servant comprising six ranks: listener of 2nd class, listener of 1st class, Master of the requests, to advise State, president of section and vice-president (these two last categories being at the same time ranks and employment). The listeners of 2nd class are recruited exclusively at the exit of the National school of administration. The Council of State is generally chosen by the pupils best classified, jointly with the general inspection of finances, and in front of the Court of Auditors and the other administrations. On the level of the Masters of the requests, three nominations out of four are made among the listeners of 1st class and the last can be made “with the turn external” by Presidential decree of the Republic, among the civils servant being at least ten years old of public service. On the level of the advisers of State, a nomination on three can be made with the external turn, by decree in the Council of Ministers, among the elderly of more than 45 years.

Juridically, the members of the Council of State are not magistrates (with the difference of the members of other administrative jurisdictions like the financial jurisdictions, the administrative courts of call and the administrative courts) but of the civils servant. Their statute is less protective than the general status of the public office, in particular with regard to the mode of the sanctions and the advance, which is done in theory exclusively with the choice. Nevertheless, the practice came to compensate the gaps of the statute: it leads, in order to guarantee the independence of the Council of State with respect to the political power, so that advance is done mainly with the seniority and so that one does not take disciplinary measures with respect to the members of the Council of State, except exceptional case.

The progression with the seniority does not play for the nominations with functions inside the Council of State (such as commissioner the government to the dispute or president of sub-section), even when these functions also correspond to ranks (president of section or vice-president).

Vice-presidents of the Council of State

The post of vice-president of the Council of State was created by the law of May 24th, 1872. The Council of State is officially chaired by the Prime Minister, but the effective presidency is held by the vice-president, named by decree in the Council of Ministers among the advisers of State. List vice-presidents since 1872:

Odilon Deck-beam (1872-1874)

Paul Andral (1874-1879)

Faustin Hélie (1879-1885)

Charles Ballot (1885-1886)

Edouard Laferrière (1886-1898)

Georges Coulon (1898-1912)

Alfred Picard (1912-1913)

Rene Marguerie (1913-1919)

Henry Hébrard of Villeneuve (1919-1923)

Clement Colson (1923-1928)

Theodore Tissier (1928-1937)

Georges Pichat (1937-1938)

Alfred Porché (1938-1944)

Rene Cassin (1944-1960)

Alexandre Parodi (1960-1971)

Bernard Chenot (1971-1979)

Christian Chavanon (1979-1981)

Marc Barbet spaniel (1981-1982)

Pierre Nicolaÿ (1982-1987)

Long Marceau (1987-1995)

Renaud Denoix of Saint-Marc (1995-2006)

Jean-Marc Saved (since October 3rd, 2006)

Personnel of the Council of State

Approximately 380 people, civils servant and contractual, help with the good performance of the Council of State and the remainder of the administrative jurisdiction. Are centralized in particular in Paris, under the responsibility of the General secretary:

services of management: Direction of the Services of the General secretary, Directorate of the General Services, Department of the Library and the Files
common services: DSF (Direction of the finance departments), DSI (Direction of the information systems), SAI (Service of the real businesses) and Office of the formations
the management of the Administrative courts and the Administrative courts of call: STACAA (Service of the administrative courts and the Administrative courts of call) and Superior council of the administrative courts and the administrative courts of call

Great stops of the Council of State

Jurisprudences of the Council of State and the Tribunal of the conflicts were determining for the formation and the evolution of the Administrative law French. One calls “great stops” the Décision S which had a particular importance from this point of view. The study of the administrative law necessarily passes by the taking into account of these stops.

Panorama of the Council of State

See too

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