Law-screen

The theory of the law-screen relates to the acts which the administrative judge refuses to control owing to the fact that they result directly from the application of a law.

Today, this theory does not apply any more but as regards control of the conformity of such an act to the Constitution. It does not apply any more if one such act is contrary with a treated international.

As regards conformity with the Constitution

The administrative judge does not control the constitutionality of a lawful act possibly unconstitutional but in conformity with a Loi. Indeed, the administrative judge does not exert control on the constitutionality of the laws, tries reserved for the Constitutional council, and the law makes then screen with the constitution. See the article Stop Arrighi. On the other hand, if no law interposes, the judge controls the conformity of the act to the Constitution.

As regards conformity with the international treaties

For including/understanding here well the theory of the law screen, it should be recalled that in French right, the international treaties have an authority higher than that of the laws (article 55 of the Constitution of 1958).

When the law was former to the treaty, the application of this principle did not pose a problem.

However, when the law was posterior with the treaty, the Council of State made it prevail on a treaty or a derived Community act. It was said whereas the law , expression of the general will (article 6 of the Déclaration of the Human rights and the citizen of 1789 ), made “screen” between the administrative act and the treaty.

This position, finding its origin in the Stop '' Arrighi '', EC, November 6th, 1936, was developed in several stops of the Council of State, in particular in what one called “semolina” jurisprudence: EC, March 1st, 1968, '' National union of the semolina manufacturers of France ''.

Let us note that this position was in contradiction, as from 1975, with that of the Court of appeal, to see the stop '' Société of the coffees Jacques Vabre '', mixed room, May 24th, 1975; like with that of the Constitutional council (decision of October 31st, 1988).

The Council of State ended up yielding and giving up the theory of the law-screen (as regards conformity with the international treaties) in the stop '' Nicolo '', EC, October 20th, 1989 (see the detailed article). In this stop the control of conventionality of the laws by the administrative judge is marked, i.e. that at the time of a recourse exerted against an administrative act, the administrative judge agrees to control “compatibility with an international engagement of the law on the base of which this act was enacted”.

This control of conventionality can be observed in many stops, the such stop '' Ministre for Defense against Diop '' (GAJA, n° 116) EC, Ass, November 30th, 2001,

Sources

Internet site of the Council of State
Internet site of the Constitutional council
Internet site of the Court of appeal
Course of Administrative law , Jacqueline Morand-Deviller, Montchrestien, 9th edition, ISBN 2-7076-1418-1

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