LL.M. SEMESTER II COURSE CODE : 204E (Gr-b) - PowerPoint Presentation

1. LL.M. SEMESTER IICOURSE CODE : 204E (Gr-b)COURSE TITLE : comparative administrative lawUNIT Ii : merits of French administrative law, remedies available under French and Indian administrative law2.1 merits of French administrative lawPresented by –Dr. Sangeeta ChatterjeeAssistant ProfessorDepartment of Law,Bankura University

2. INTRODUCTIONFrench administrative justice is a problem-solving justice.It is managed separately from ordinary courts because it is managed by the Council of State (Conseil d’Etat). French administrative justice is characterised by a specific purpose that leads it to check whether the decisions of the public administrations are lawful and to quash them if they are not. In France, its organisation and procedure are original because of the emergence of the administrative courts within the administration itself.

3. FRENCH CONSEIL D’ETATCouncil of State (Conseil d’Etat) is a body of the French National Government.It acts both as legal advisor of the executive branch and as the Supreme Court for administrative justice.It is established in 1799 by Napoleon.It is a successor to the King's Council (Conseil du Roi), which was existed previously.It is located in the Palais-Royal in Paris and is primarily made up of top-level legal officers. The Vice President of the Council of State ranks as the ninth most important civil servant in France.

4. COMPOSITION OF CONSEIL D’ETATA General Session of the Council of State is presided over by the Prime Minister or, in his absence, the Minister of Justice.Other members of the Council include :Department heads (président de section)Councillors ordinary (conseiller d'État ordinaire)Councillors extraordinary (conseiller d'État en service extraordinaire)Masters of requests (maître des requêtes)Master of requests extraordinary (maître des requêtes en service extraordinaire)Senior masters (auditeur de première classe).Masters (auditeur de deuxième classe)

5. ADMINISTRATIVE JUSTICE BY CONSEIL D’ETAT1) The Council acts as the supreme court of appeal for administrative law courts. 2) 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. 3) The Council's decisions are final and unappealable.4) While strictly speaking the Council is not a court, it functions as a judicial body by adjudicating suits and claims against administrative authorities. 5) 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.6) Any such barrister bears the title of Counsel at Senior Court (avocat aux Conseils).

6. HISTORICAL DEVELOPMENTAfter the Revolution of 1789, the Act of 16-24 August 1790 and the Constitution of 3 September 1791, judicial power was delegated to the judges.As regards the settlement of administrative disputes, the solution that prevailed under the Ancien Régime was essentially maintained, that most of a dispute was adjudicated within the administration, and not by the judges, whereas the logic of the separation of powers required that the judges should have jurisdiction over all trials.This is a French specificity because, in other countries claiming to have a separation of powers, this limitation on the jurisdiction of judges does not exist.French administrative law has evolved, under the influence of the Council of State and the French legislator, who have equipped the administrative justice system with tools for solving problems.French administrative judges have been part of administrative commissions which aim to solve problems and which are composed of other categories of professionals and users.

7. FRENCH ADMINISTRATIVE JUSTICE AS A PROBLEM-SOLVING JUSTICEIf problem-solving justice has only a limited approach in French administrative justice and was probably not intended to replace the traditional approach to the trial based on judicial review in respect of the administrative law by citizens and public administrations, certain elements may be nevertheless observed as characteristics of problem-solving justice. The French administrative judge may be a member of a committee set up to deal with problems that involve an administration and citizens. She/he can proceed to conciliation within the court. She/he has tools for solving problems and users can ask her/him to solve a problem.These elements are becoming increasingly important. Although the presence of administrative judges in administrative committees is old, it has developed particularly in recent years. The procedural tools are more recent and reflect the willingness of both the legislator and the Council of State to resolve the problem beyond the settlement of the administrative dispute.

8. CHARACTERISTICS OF FRENCH ADMINISTRATIVE JUSTICEAdministrative judge can be a member of an administrative committee created for problem-solving.Administrative judge can conduct/suggest a conciliation/mediation inside/outside the court.Administrative judge has problem-solving tools.Users can ask an administrative judge to solve a problem.

9. LEGAL LIMITATIONS TO IMPLEMENTATION IN FRENCH ADMINISTRATION OF JUSTICEProcedural requirements intervene as legal limitations to the ‘pragmatic’ tools of French administration of justice.In France, substitution of legal basis, substitution of grounds, neutralisation of grounds and regularization of planning permits have long been possible in administrative justice.The substitution of grounds, which goes further than the substitution of legal basis, since it leads the judge to attribute to the administration a different reason from that stated by it, the judge cannot proceed on his/her ‘own motion’ to the substitution.The principles of independence and impartiality are specifically mentioned as legal limitations in France, although in questionable circumstances sometimes. The court is only concerned with independence and impartiality in the specific case and asks to verify that the judge who presided over the committee does not participate a posteriori in the litigation process.

10. LIMITATIONS RELATED TO THE DEFINING FEATURE OF ADMINISTRATIVE JUSTICEThe relevance of the problem-solving approach to administrative justice can be questioned because of its specificity. One might think indeed that the nature of problems that appear in administrative litigation would not be suitable for a problem-solving approach. The problems caused by the public administrations, and to which the administrative judges must respond, are first of all of a legal nature: the failure to comply with legality, but they are not only. Through the legal problems outlined, which we have seen that they can be solved in a more pragmatic way, problems of a very different nature arise. Financial and economic problems are also developing.Psychological and moral problems, there are many potential examples in civil service litigation and more generally in cases of administrative liability. Social problems also (for example, litigation relating to social benefits and allowances, rights granted as housing assistance). The proof of this is that conciliation and mediation already handle part of these problems.

11. CONCLUSIONIf the French administrative justice can be considered as a problem-solving justice, it can only be done in relation to characteristics that would be specific to administrative justice, and not by simply importing the model of problem-solving courts used in the criminal field. French administrative courts are therefore not problem-solving courts, insofar as they are not entirely oriented towards solving a problem and that despite the increasing importance of problem-solving tools, some of these tools are destined to develop outside it and others are limited.

12. REFERENCE :Caroline Expert-Foulquier, Is French Administrative Justice a Problem-Solving Justice?, Utrecht Law Review, Volume 14, Issue 3, 2018, http://doi.org/10.18352/ulr.470, visited on 06.06.2020.