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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.

Contents 1 Composition 2 History 3 Advisory role 4 Administrative Justice 4.1 Original jurisdiction 4.2 Appellate jurisdiction 4.3 Court procedure 4.4 Major rulings of the Council of State 5 French Institute of Administratives Sciences 6 References 7 Further reading 8 See also 9 External links

[edit] 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 France's top fonctionary. The current Vice-Chairman is Jean-Marc Sauvé.

Other members of the Council include by decreasing order of importance:

• Department heads (président de section)
• Councillors ordinary (conseiller d'État ordinaire)
• Councillors extraordinary (conseiller d'État extraordinaire)
• Masters of requests (maître des requêtes)
• Senior masters (auditeur de première classe)
• Masters (auditeur de deuxième classe)

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 ordinary.^[2] Division heads are similarly appointed and selected from among the councillors ordinary.^[3]

Councillors ordinary, masters of requests, and senior masters are appointed based on seniority from the preceding rank.^[4] Appointees from outside the Council may include administrative law judges ^[5] or may come from outside the justice system ^[6]. Masters are recruited from among the graduates of France's National Administration Academy.^[7] The Council sits in the Palais Royal located in Paris.

The Council is divided into 6 divisions:

• Administrative Claims (section du contentieux) — see below.
• Report and Studies (section du rapport et des études): writes the annual report, conducts studies and helps to oversee judgments and verdicts are carried out.
• Finances (section des finances), the Interior (section de l'intérieur), Welfare and Social Security (section sociale), and Public Works (section des travaux publics) review any and all Cabinet-issued orders and statutory instruments and examine and sign off on all Orders of Council (décrets en Conseil d'État). These reviews, though mandatory, are not binding. The Council of State also studies legal issues and problems brought before the Cabinet.^[8] In addition, it is responsible for carrying out administrative court inspections.^[9]

[edit] History

The Council of State originates from the 13th century by which time the King's Court (Curia regis) had split into three sections, one of which was the King's Council (Curia in consilium, later Conseil du roi), which too broke up into three distinct parts: the Conseil secret 'Privy Council', the Conseil privé 'Council Attendant', and Conseil des finances 'Council of Finances'. Reorganized under Louis XIV into two major groupings, it was the Conseil d'État privé, finances et direction that was the direct ancestor of the Council of State. It brought together legal advisors and experts to advise the King on claims against the Crown. Officially established in 1557, this was the largest of the King's Councils made up of France's High Chancellor, lords of peerage, Ministers and Secretaries of State, the Comptroller-General, 30 Councillors of State, 80 masters of requests, and the Intendants of Finance. The judicial portion of the Council was known as the Conseil d'État privé or Conseil des parties.

The kings, who had the power to dispense justice and hand down judgments as the court of last resort, delegated this judicial power to royal courts and parlements. But the French king still retained the power to override them at will. Specifically, French kings maintained their priviledge to decide major issues and hand down judgements when administrative acts were in dispute. The judgments of the King’s Council of State were regarded as being issued under the King's residual proper jurisdiction (justice retenue), that is, the sovereign's reserved power to dispense justice in certain matters. Legal advisors also assisted the King in developing new laws and directly exercized residual jurisdiction.

For more on French government administration during the Old Regime, see Ancien Régime in France.

The current Council of State was created under the French Consulate in 1799 as a judicial body responsible to adjudicate claims against the State and assist in the drafting of crucial 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 an 1872 Act of Parliament.

[edit] Advisory role

Certain types of statutory instruments must be examined by the Council for advisory approval, including:

• All draft legislation prior to being introduced before 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 statutory law will authorize, prescribe, or prohibit an action defined in broad terms and require an order-in-council to define its scope and application.

The advisory workload is divided between the Council's administrative sections according to which ministry or department is targeted by the order.

[edit] Administrative Justice

The Council acts as the supreme court of appeal for administrative law courts. It hears both claims against national-level administrative decisions (e.g., orders, rules, regulations, and decisions of the executive branch) and appeals from lower administrative courts. The Council's decisions are final and unappealable.

While strictly speaking the Council is not a court, it functions as a judicial body by adjudicating suits and claims against administrative authorities. Plaintiffs are represented by barristers drawn from the Senior Court bar whose members are licensed to argue cases before the Council and French Supreme Court; any such barrister bears the title Counsel at Senior Court.

[edit] Original jurisdiction

The Council hears cases against decisions of the national government, e.g., orders, ministerial rules and regulations, judgments handed down by committees with nation-wide jurisdiction, as well as suits concerning regional and EU electoral matters.

The Council of State evaluates how well regulations and administrative decisions comply with higher sources of law, i.e., the Constitution, higher administrative decisions, the general principles of law, statutory law, and international treaties and conventions. The general principles of law are not codified or spelled out in statute, but rather are derived from the spirit of the body of law; in other words, these principles have been established and laid out over time by the Council through administrative case law.

The Council has full discretion to adjudicate on the legality of any executive branch decision except for the very narrow category of "acts of government" for which it considers itself forum non conveniens. The Council has judged that such acts are restricted to:

• relationships between the executive branch and the legislative branch, e.g., whether a bill should be submitted to Parliament;
• acts that are part and parcel of France's foreign policy.^[10]

In this role, the Council provides a powerful check on the actions of the executive.

[edit] Appellate jurisdiction

The Council of State has appellate jurisdiction over local election judgments 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 appellate court ignored or misinterpreted the law.

[edit] 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. Burden of proof does not lie with the plaintiff; instead, the Council decides whether or not the plaintiff has cause to bring suit and whether the Government was in error if information provided by the plaintiff is sufficient to locate previously undisclosed evidence. Of course, both parties may submit additional pleadings and 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 even number of State councillors and Supreme Court justices and chaired by the Minister of Justice, is convened to decide to whom the matter shall be vested.

[edit] Major rulings of the Council of State

Exercizing judicial review over almost all acts of the executive branch, the Council of State's judgments may be of considerable importance, often not for the actual case judged, but for its importance in shaping legal interpretation. While France is a civil law country and there is no formal rule of precedent (stare decisis), lower courts follow the jurisprudence constante doctrine with regard to the Council of State. The Council's major rulings are collected into law reports and commented on by scholars; the Council's official website carries a list of comments on important decisions. The Council has shaped its own legal doctrine which consists mostly of principles deduced from cases but incorporates considerable jurisprudence derived from statutes.

Rulings are named for the moving parties (appellents) in the cases and under highly formal courtesy titles. Men's names used to be preceded by Sieur, women's names by Dame or Demoiselle, and widows were referred to 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 adjudged by the Council (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 unfounded because the law said that his position was revocable.

• May 28, 1954 - Barel. Freedom of opinion of civil servants.
  The Government cannot exclude people from applying for civil service positions solely on the basis of their political convictions. A number of affirmed communists were refused admittance to the National Administration Academy).

• October 19, 1962 - Canal, Robin & Godot
  The executive branch may make decisions by ordinance only in the narrowly defined scope authorized by the enabling law. The executive cannot mandate the creation of courts whose procedures and lack of recourse fall outside of the general principles of criminal law.
  This decision was the source of strong tensions between the Council and then President Charles De Gaulle.

• February 3, 1989 - Alitalia corporation
  The executive branch is responsible for voiding its own unlawful rules and regulations, even if they were initially lawful. Regulatory law must comply with European Union directives in force.

• October 27, 1995 - Commune of Morsang-sur-Orge, also known commonly as the "dwarf tossing case".
  Respect for human dignity is to be included under public right and interest (ordre public). In this case, a mayor had prohibited a dwarf-tossing attraction on the grounds of it going against public interest because it disrespected human dignity. This decision nevertheless implies but stops short of including morality under public interest.

• March 3, 2004 - The asbestos case.
  The State may be held responsible for not taking appropriate measures, according to the current scientific knowledge, for safeguarding workers' health (against asbestos), even if workers are employed by private employers.

[edit] French Institute of Administratives Sciences

The Council of State is linked to the French Institute of Administrative Sciences (IFSA). The vice-president of the Council of State is the president of the IFSA and its main members are state councelors. In 2009, the Council of State hosted IFSA's annual conference which was organized on the theme: "public security : partnership between public power and private sector."

[edit] References

This article is based in part on material from the French Wikipedia.

1. ^ Code of administrative justice, article L121-7
2. ^ Code of administrative justice, article L133-1
3. ^ Code of administrative justice, article L133-2
4. ^ Code of administrative justice, articles L133-3, L133-4, L133-5.
5. ^ Code of administrative justice, L133-8
6. ^ Code of administrative justice L133-7
7. ^ Code of administrative justice, article L133-6
8. ^ Code of administrative justice, L112-2
9. ^ Code of administrative justice, L112-5
10. ^ See the analysis on the Conseil's site for more information (in French).

[edit] Further reading

• John Bell, What Is the Function of the Conseil d'Etat in the Preparation of Legislation?, The International and Comparative Law Quarterly, Vol. 49, No. 3 (Jul., 2000), pp. 661-672; with a comparison to the procedures used in the Government of the United Kingdom
• James Beardsley, Constitutional Review in France, The Supreme Court Review, Vol. 1975, (1975), pp. 189-259; discussion of the "general principles of Law"
• Jacqueline Lucienne Lafon, La judicialisation de la politique en France, International Political Science Review / Revue internationale de science politique, Vol. 15, No. 2, The Judicialization of Politics. La judicialisation de la politique (Apr., 1994), pp. 135-142

[edit] See also

• Court of Audit
• Councillor of State
• Constitutional Council
• Justice in France
• Politics of France
• French Supreme Court
• French Institute of Administrative Sciences (IFSA)

[edit] External links

• Official website
• Printed working documents of the Conseil d'Etat (1800-1814)
• Important decisions of the Conseil d'État
• English translations of some decisions