Jurisdictional Organization (France)

the French national jurisdictional organization is the organization of the national courts French, in the internal legal order.

One thus excludes from this organization the whole of the jurisdictions which are not national, which results from a contract or a statute defined between members. One is thus interested only in the courts sanctioned by the administration of State, defined by the law.

The international, European or Community jurisdictions, which lie in an external legal order, will be they also excluded, because they do not emanate from the administration of State, but of other international organizations (European Union, the Council of Europe, the United Nations…)

This jurisdictional organization allows the application of a certain number of principles, generals and commun runs, which must be beforehand exposed.

General principles

The French national jurisdictional organization wished to implement certain principles inherent in an idea of the lawsuit, respectful of fundamental freedoms, thus taking into account the possibility of appealing, the collegial structure of the judges who will return a decision, the speed of the judgment.

Some of these principles were supplemented, specified and sanctioned by the European Convention of safeguard of the human rights and fundamental freedoms, which defends of the civil laws and policies inherent in the human person. This Convention was signed by France in 1950, and is coming into effect in 1953.

Some of its principles result from a historical evolution: it is in particular the case of the principle of separation of the capacities.

Separation of the capacities and jurisdictional duality

The origin of the jurisdictional duality

The contents of the principle of separation of the capacities formulate that the public authorities must be separate and allotted to distinct bodies. Thus, the capacity to enact rules (legislative power) is entrusted at a Parliament, the capacity to make them carry out belongs to a president or a Prime Minister. Montesquieu, in Of the spirit of the laws , associated the judicial power there, i.e. the capacity to regulate the litigations.

However, the Constitution of October 4th, 1958, instituting the Ve République, recognizes only one “legal authority”. This theory thus takes in France an original significance, that the Constitutional council qualified in a decision “the Council of the competition” of the n° 86-224 of January 23rd, 1987 of “French design of the separation of the capacities”.

Indeed, the problem of this distinction of the capacities is that one needs, in this design, to separate the litigations interesting the State, sanctioning the bad application of a text, and depending thus of the executive power, other litigations interesting the private individuals, concerned with a true autonomous and distinct judicial power. It is thus necessary to divide competences of the judge into two, between legal judge and administrative judge. This jurisdictional duality finds its origin in the Loi of the August 16th and 24th 1790 and the decree of the 16 fructidor year III which prohibits with the courts of the legal order to know litigations interesting the administration, and the acts emitted by the executive power or legislative.

By these texts, the legislative power and the executive power were withdrawn from control legal jurisdictions, with the reason that those did not have a sufficient legitimacy to consider acts emanating of authorities proceeding of the vote for all and acting in the name of the general interest. The institution of an administrative jurisdiction as from year VIII (1799) was partially to modify this situation: as from this date, the acts of the administration could be disputed, but in front of a jurisdiction distinct from the legal authority.

The “French design of the separation of the capacities” is thus associated today with the existence of a duality of jurisdictions in our institutional system. There exists a legal jurisdictional order, and an administrative jurisdictional order.

Problems arising from the jurisdictional duality

However, this jurisdictional duality poses a certain number of problems, in particular of the divergences of jurisprudence, which are naturally not posed in systems where there exists one jurisdictional order, like the United States.

In addition, the separation of the capacities evolved/moved, in particular because under the terms of the stops Nicolo of the Council of State in 1989 and Jacques Vabre of the Court of appeal in 1975, the jurisdictions of the two orders recognized competence to judge conformity of a law to a treaty former to the aforementioned law. The initial postulate, according to which the legal jurisdictions could not know acts of the executive power and legislative, is all the more found some skewed.

Double degree of jurisdiction

Beyond the application of the principle of separation of the capacities by the jurisdictional duality, another general principle, more concrete that one, must be studied: it is about the principle of double degree of jurisdiction, i.e. the possibility that each business is judged, in fact and right, twice.

The advantage of a system putting two degrees of jurisdiction is double:

initially, obviously, it makes it possible to limit the legal errors and the absolutism;
then, it makes it possible the parts to present a better argumentation, which will thus have the advantage of being more precise and pointed in call that what will have been made in first authority.

Exception to the principle of the double degree of jurisdiction

In certain types of litigations, the law or the regulation lays out that the court of the first degree returns a decision in first and the last arises. This judgment cannot thus be likely of call.

For example, out of civil matter:

the actions whose rate of competence (claims of the applicant) is lower than 4.000 € are judged by the Magistrates' court in first and the last arises;
the actions judged by the local judge, whose rate of competence is lower than 4.000 €, are not either likely of call.

In the same way, in front of the administrative courts:

many recourse in abuse of power is judged in first and the last arises, a such good number of the litigations concerning the public office;
the recourse indemnitees of an amount of less than 10.000 € are it also.

The principle of the double degree of jurisdiction is limited by these judgments in first and the last arises, but for strict reasons: the stake of the action is supposed to be weak, the risks of errors are limited normally enough, etc the judgments of these jurisdictions can always be the subject of a Pourvoi in cassation.

Lastly, the litigations that the Council of State knows directly are judged in first and the last arises, without possible appeal, but the internal organization of the Council of State offers procedural guarantees rather similar to those of a double degree of jurisdiction. They can be litigations of very important stakes besides.

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