Government commissioner (France)

In France, name commissioner the government indicates several very different functions, for example:

in front of some jurisdictions, it acts of a member of the jurisdiction itself intervening with the audience to analyze the litigation and to propose a solution
before certain commissions or assembled, it is about a representative of the Gouvernement or administration

In front of the administrative jurisdictions and the Court of the conflicts

In front of the administrative courts, administrative courts of call and contentious formations of the Council of State

It is in this function that name “commissioner government” is at the same time most famous and most ambiguous.

The Constitutional council, seized by the Prime Minister pronounced the delegalisation of the name of “commissioner government” in front of the administrative courts, the administrative courts of call and the contentious formations of the Council of State. A decree in the Council of Ministers, after opinion of the Council of State, could thus change the name it soon, with the profit of names like “police chief with the law” or “police chief of the right”. See #Changement name .

History

The government commissioner is a function created by the ordinances of the February 2nd and March 12th 1831 in front of the Council of State and it is called at the time “Master of the requests making function of public ministry” or “police chief of the king”.

The name under which this function remains most known, that of “government commissioner”, was introduced under the second Republic in 1849.

It is today a magistrate (in front of a administrative court or a administrative court of call) or a member of the Council of State (in front of the Council of State), which “exposes publicly, and in all independence, its opinion on the questions which present to judge the requests and on the solutions that they call. ” (of the Code of administrative justice).

Its role

In the Esclatine stop of the July 29th 1998, the Council of State thus describes the role of the police chief (in a formulation who points out that of his stop Gervaise of July 10th, 1957): it “has the role of exposing the questions which each recourse presents to consider contentious and to make known, by formulating in all independence its conclusions, its appreciation, which must be impartial, on the circumstances in fact of the species and the legal provisions applicable as its opinion on the solutions which calls, according to its conscience, the litigation subjected to the jurisdiction to which it belongs”; it is not a part with the litigation and pronounces its conclusions after the instruction closure, these conclusions not being subjected to a contradictory discussion by the parts.

The old R731-7 article of the Code of administrative justice, such as it resulted from the Décret n° 2005-1586 of December 19th, 2005, laid out: “assists with deliberated. It does not take share there. ”. This provision was not compatible with the position of the European Cour of the human rights expressed by the stops Loyen against France of July 5th, 2005 and Martinie against France of April 12th, 2006, which took themselves the continuation of the stop Kress against France of June 7th, 2001.

As from on September 1st, 2006, the decree n° 2006-964 of August 1st, 2006, modifying the regulatory part of the code of administrative justice, changed gives it. It lays out that within the administrative courts and of the administrative courts of call: “The decision is deliberated out the presence of the parts and the Government commissioner” (of the CJA), while with the Council of State: “Except contrary request for a part, the Government commissioner assists with deliberated. He does not take share there. ” ().

These various modifications aim putting an end to the reserves European Court of the human rights on the question, and at clarifying the operation of the jurisdictions concerned with the eyes of the justiciable ones.

Conclusions

The conclusions of the government commissioner correspond to his opinion on the business which it freely develops with the audience. They must be justified and it cannot rely on wisdom of the jurisdiction.

The parts can before require communication of the general direction of the conclusions of the government commissioner the audience.

These conclusions, which remain its exclusive property, are often only oral. It is completely free to communicate or not those which it wrote in writing with those which require it of him after the audience. It can also publish them. It is never obliged there.

With the audience, the parts cannot speak after the Government commissioner, since its intervention is after the instruction and debate closure. They have however the possibility, devoted by the practice, to produce a “note on of deliberated” to supplement their oral observations or to answer the conclusions of the Government commissioner. This possibility was integrated in the code of administrative justice (CJA) by the decree n° 2005-1586 of December 19th, 2005. The decision of the formation of judgment must mention the production of such a note (CJA). If need be, the formation of judgment can also stripe the business of the role to reopen the instruction, by subjecting the new elements to the debate between the parts.

Certain conclusions of commissioners government in front of the Council of State are true small treaties of right which marked the administrative law and help to include/understand the most important jurisprudences.

Mode of nomination

Since the decree n° 2005-1586 of December 19th, 2005, the article of the Code of administrative justice provides that the commissioners the government to the Council of State “are appointed by decree of the vice-president of the Council of State taken on a proposal from the president of the section of the dispute”. For the administrative courts and the administrative courts of call, they are indicated, according to the article of the same Code, “by decree of the vice-president of the Council of State taken on a proposal from the president of the jurisdiction and after assent of the Superior council of the administrative courts and the administrative courts of call” (C.S.T.A.C.A.A.).

Change of name

In France, name police chief of the right (or another analog) could soon appoint the “government commissioners” in front of some jurisdictions: it is members about the jurisdiction itself intervening with the audience to analyze the litigation and to propose a solution of right.

The change of name aims highlighting their independence and at distinguishing them from the “government commissioners” before certain administrative commissions, where it is representatives about the administration. The goal is thus to avoid some ambiguities or some errors concerning the function.

It seems to be suggested for the first time by Mr. Leon Christmas, then president of the Constitutional council, after the business Canal, Robin and Godot (Council of State, stop of October 19th, 1962), at one time when the relations between the Council of State and the general de Gaulle passed by a particularly delicate phase.

This change is become again of topicality following various recent debates on the function (in particular after several stops of the European Cour of the human rights). Of November 30th, 2006 in right of the Constitutional council allows to carry out these changes by lawful way. A decree as a Council of State and the Council of Ministers should normally intervene to carry out this change. No date is announced for the moment but the reform is in hand and, according to several sources, it seems that it is the name of “police chief of the right” which must probably be retained (rather than that of “police chief to the Law”, one moment considered), but no decree is still appeared with the Official journal.

In front of the Court of the conflicts

Article 6 of the law of the bearing February 4th, 1850 on the organization of the court of the conflicts lays out: “The functions of the public ministry will be filled by two selected government commissioners every year by the President of the Republic, one among the Masters of the requests to the Council of State, the other in the parquet floor of the Court of appeal. ”

The Court can rule only after having heard the conclusions of the government commissioner (Article 4 of the law), which is fully independent.

If the rapporteur belongs to the Council of State, then the government commissioner must be a magistrate of the Court of appeal, and reciprocally (Article 7 of the law).

In front of the regional courts of the accounts

The L212-10 article of the Code of the financial jurisdictions lays out: “Each Regional court of the accounts comprises one or more Government commissioners, selected among the magistrates members of the body of the regional courts of the accounts, which exert the functions of the public ministry and are the correspondents of the public prosecutor close the Court of Auditors. ”.

The public ministry of the financial jurisdictions is arranged hierarchically like that of the legal jurisdictions and it requires the application of the fines envisaged by the law. It can make call of the judgments. The function of commissioner Government of the regional courts of the accounts is thus very different from that exerted in front of the Council of State sitting at the dispute, owes the administrative courts of call or the administrative courts.

In front of various other councils, assemblies, commissions and jurisdictions

In this last case, a government commissioner is a person, generally a Fonctionnaire, charged to represent the Gouvernement or the administration. It is a very other role which that of the government commissioner in front of the contentious formations of the Council of State.

Government commissioners thus are found:

assisting the members of the Government in front of the parliamentary assembled (see below),
during the examination of the projects of decrees or the projects of laws in front of the administrative sections of the Council of State,
near CNIL,
near the National Commission of commercial equipment,
near certain organizations of Social security, like the National bank of old-age insurance of the paid workers, the National bank of old-age insurance of the liberal professions, or the union of the national banks of social security.
near SAFER
near the boards of directors of the port authorities
in the procedure in determination of the compensations of expropriation (see below)

Before the assembly members of Parliament

In front of the parliamentary assembled , one calls Government commissioners the people charged to assist the members of the Gouvernement (article 31 subparagraph 2 of the Constitution of October 4th, 1958). They are named by a collective decree of the Prime Minister contresigned by the minister whom the police chiefs will assist. The decrees carrying nomination of commissioners Government preserve their validity throughout all debate for which they were established, even in the case of successive readings.

In the procedure in determination of the compensations of expropriation

It is finally the name of the civil servant ensuring a kind of expertise in the name of the administration in front of the civil judge at the time of the procedure in determination of the compensations of Expropriation (R13-7 article of the Code of expropriation due to public utility). The decree n° 2005-467 of the bearing May 13rd, 2005 modification of the code of expropriation due to public utility, modifying this article, in order to ensure the conformity of the procedure the requirements of the European Convention of the human rights, specified that:

the nomination police chief of the temporary civil servant, in this function, the director of the tax services “cannot relate to agents having, on behalf of the authority expropriante, delivered the opinion of estimate preliminary to the offers of allowance”,
“the commissioner Government exerts his missions in the respect of the principle of contradiction guiding the suit at law. ”

The Court of appeal had recently to judge a business concerning the procedure of expropriation and brought some precise details. Several comments of academics can also be consulted.

References

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