Conseil d'État

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In France, the Conseil d'État (English: Council of State and sometimes Counsel of State) is an organ of the French national government. Its functions include assisting the executive with legal advice and being the supreme court for administrative justice. Its members are (for the most part) high level jurists.

1 Organisation
2 History
3 Litigation
4 See also
5 External links

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Organisation

Image:Conseil d'Etat Paris WA.jpg

The Conseil d'État is headed by a vice-president (it is theoretically presided by the prime minister assisted by the justice minister, but all functions are actually assumed by the vice-president). Its members are generally former graduates of the École nationale d'administration. The vice-president of the Conseil is considered, for ceremonial purposes, the foremost civil servant in France.

The current vice-president is Renaud Denoix de Saint Marc.

The Conseil is seated in the Palais Royal in Paris.

The Conseil is divided into 6 sections:

The litigation section (section du contentieux) — see below.
The section of the report and studies (section du rapport et des études) writes the annual report, conducts studies and helps in ensuring the proper execution of litigation decisions.
The finance section (section des finances), interior section (section de l'intérieur), social section (section sociale), public works section (section des travaux publics) reviews all ordinances, all statute projects drafted by the Council of Ministers as well as all decrees for which that review is compulsory (décrets en Conseil d'État). Such reviews are nonbinding, but they are compulsory.

The Conseil d'État may also review legal problems addressed to it by the Ministers. It is also charged with the administration and the inspection of administrative courts.

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History

The Conseil d'État was created under the Consulate in 1799 as a judicial authority responsible for lawsuits against the State, and also charged with helping in the drafting of the most important legislation. The First Consul (later Emperor) presided over its 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 better defined by the law of 1872.

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Litigation

The Conseil for the system of administrative justice. It hears both recourses against decrees and other executive decisions from the President of the Republic and the cabinet ministers, as well as appelate cases from lower administrative courts. Its decisions are final.

While the Conseil is not a court, strictly speaking, it functions much as one with respect to litigation. Plaintiffs are represented by lawyers drawn from the same exclusive bar as the Court of Cassation.

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First instance litigation

The Conseil hears cases against decisions of the national government (decrees, regulations issued by ministers, decisions by committees with a national competency) as well as recourses pertaining to regional elections.

The Conseil d'État examines the conformance of regulations and administrative decisions with respect to the Constitution, (higher) administrative decisions, the general principles of Law, statute law, international traties and conventions. The general principles of Law are principles that are not found in any statute, yet derive from the spirit of the body of law; they are discovered by the Conseil and thus made into case law.

The Conseil has full latitude to judge on the legality of any decision from the executive branch, except for the very narrow category of "acts of government" where it judges itself incompetent. The Conseil itself has judged that such acts are restricted to:

relationships between the executive branch and the legislative branch (whether to submit a law project to parliament...)
acts that cannot be separated from the foreign policy of France.

See the analysis on the Conseil's site for more information (in French).

As such, the Conseil acts as a powerful check on the actions of the executive.

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Appellate jurisdiction

The Conseil is the appellate jurisdiction for decisions of administrative courts (the 37 tribunaux administratifs)regarding local elections.

It is the cassation jurisdiction for decisions by administrative courts of appeal (the 8 cours administratives d'appel), meaning that it hears cases in which the plaintiff argues that the court of appeal ignored or misinterpreted law.

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Procedure

The procedure is inquisitorial: the litigant writes a letter to the Conseil, stating precisely what happened and why he feels that the defendant acted illegally; the Conseil then starts an inquiry, asking the other party (generally, a government or government agency) for precisions, and so on until the Conseil has a clear picture of the case. The litigant does not have the burden of proof: the Conseil may well decide that the litigant was right and the government was wrong if the information supplied by the litigant was sufficient to enable it to find the missing proofs. Of course, both parties may supply supplemental information until the case is ready for final judgment.

In some cases, it is unclear whether a case should be heard before administrative courts or judiciary courts. In this case, the tribunal des conflits, made of equal number of members of the Conseil d'État and of judges from the Court of Cassation and presided by the Minister of Justice is summoned.

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Main Decisions of the Conseil d'État

As it renders final judicial review over almost all acts of the executive branch, the decisions of the Conseil d'État may be of considerable importance, often not for the actual case judged, but for the implications on the interpretation of law. While France is a civil law country and there is no formal rule of stare decisis, lower courts follow the jurisprudence constante of the Conseil d'État. The major decisions of the Conseil d'État are collected into books and commented by academics; the official site of the Conseil carries a list of comments on important decisions. The interpretation of points of law forms the Conseil's doctrine.

The decisions are named after the individual(s) or body who has appealed to the Council. The name of male individual used to be preced by Sieur, the name of female individuals by Dame or Demoiselle and the name of widows called by their husband's name Dame veuve.

Among the important decisions, let us cite:

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 judged upon by the Conseil (reversal of previous doctrine).

May 28, 1954 - Barel. Freedom of opinion of civil servants.
The administration cannot exclude people from applying for civil service positions solely on the basis of their political opinions. (Some Communists were refused admittance at the École nationale d'administration).

October 19, 1962 - Canal, Robin & Godot
The executive branch may take decisions by ordinance only in the narrowly defined field authorized by the habilitation law. The executive cannot decide the creation of courts whose procedures and absence of recourse are outside of the general principles of criminal law.
This decision was the source of strong tensions between the Conseil and president Charles de Gaulle.

February 3, 1989 - Alitalia corporation
The executive branch has the duty to cancel illegal regulations, even if they were initially legal. Regulations must conform to European Union directives whose transposition period has expired.

October 27, 1995 - Commune of Morsang-sur-Orge, the "dwarf throwing case".
The respect of human dignity may be included in "public order". (A mayor had prohibited a dwarf throwing attraction on grounds of public order, since this attraction did not respect human dignity.)
This decision nevertheless stops short of including morality in public order.

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

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