Speech by Jean-Marc Sauvé in Hunter Valley, Australia on March 4th 2010.
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Dear colleagues and friends,
Ladies and gentlemen,
My first words will be to congratulate and thank my friend Garry Downes for inviting me to attend your meeting and to make a presentation in front of such a distinguished audience. It is certainly the first time that the Vice-president of the Conseil d'Etat takes part to a meeting of the Australian Administrative Appeals Tribunal Conference. Dear Garry, let me tell you how much your French colleagues appreciate the very strong feelings you demonstrate toward France, a country that you discovered back in 1967. You told me that together with your wife and daughter you lived for a while in Paris close to Saint-Eustache church, located just a few hundreds of meters away from the Palais-Royal. Only the Mayor of Paris has authority to grant a title of honorary citizen of Paris and I cannot do it at his place, but please let me know if you eventually apply for it and I will give you my support. You are the most Parisian of all Australians...
This event illustrates very well the close relation that exists between our two countries in spite of the huge distance. It is also a positive step toward building closer cooperation links between judges belonging to different legal systems. I will address this last point just before concluding this presentation but let me submit some observations on the first one, at this early stage.
Australia and France are extremely far away from each other according to geography. However history has brought our countries closer. I will recall just one historical experience.
It goes back to the very establishment of the British settlement in Botany Bay. Just a few weeks after this settlement, two French Navy frigates engaged in a scientific expedition made a call in Botany Bay. They had good relations with their British counterparts. The commanding officer was the comte de Lapérouse. His detachment left on March 10, 1788 and for decades no one could get any information on what had happened to them. Even a few days before being executed in 1793, King Louis XVI asked: "Avez-vous des nouvelles de Monsieur de Lapérouse?" ("Have you got news from Monsieur de Lapérouse?"). Lapérouse and his men, considered as heroes in France, had lived the last happy days of their lives in Australia, just before their expedition turned to an enigma in maritime history. They were probably the very first Frenchmen to discover Australia.
Coming here today does not make me feel like I am entering a legal world that would be alien to mine, on the contrary. I wish to stress how similar the challenges of judging the administration in a modern democratic society are in every part of the world. An important step was taken when the Federal Court of Australia and the Administrative Appeals Tribunal joined the International association of supreme administrative jurisdictions in 2004, just 6 years ago. The fact that they have offered so quickly to host our 2010 Congress, extending such a generous hospitality, is a bright symbol of their commitment to the goals of this network of jurisdictions willing to work together.
Another important symbol is the fact that also attend this meeting two of my most distinguished colleagues representing members of the IASAJ. I wish to acknowledge the presence of Mrs Marion Eckertz-Höfer of Germany and Sir Robert Carnwath from the United Kingdom. Their participation shows how similar our questioning can be.
It's now time to get closer to my subject. If you allow me to do so, I will first describe how our system is shaped and later develop different challenges that ought to be faced if we wish to exercise our mission fully and adequately.
1. The French administrative justice system: principles of organization.
Indeed in my country the Conseil d'Etat is the spinal cord of the whole system aimed at judging the administration. All of you are aware that, as for judging the administration and if you compare our two systems, they do follow the same direction and pursue the same goal but they have used very different roads. Nowadays the roads tend to come closer than before.
I think that you don't expect me to be very lengthy on the historical background. However if I had to face the challenge of summing up the French Administrative justice system, what it was originally, how it developed and what it has become today, I think I would use the word "miracle". "Miracle" is a word which recalls something quite specific in French administrative law theory, thanks to Professor Prosper WEIL. Professor WEIL is a well-known and respected scholar who many years ago wrote an article which title was: "Le miracle du Conseil d'Etat". Using this word, the author wished to capture the complex evolution of this institution.
Its original mission was not to judge in the full meaning of this word. It was to regulate according to law the activity of public authorities from inside the administration. Its members did not have the status of judges and enjoyed very limited independence from the Executive branch.
However it became, as time went by, an independent protector of the respect of the rule of law by all public entities. It achieved this by being both, on the one hand, an independent advisor to the government and, on the other hand, a sovereign court in the field of administrative law whose independence is very strong. It built an ambitious body of case law which is legally binding for every single public officer, including the President, the Prime minister and members of the Cabinet whenever they act as administrative authorities. At the same time, the Conseil became the centre of a comprehensive network of administrative courts, which includes now 42 administrative tribunals and 8 administrative courts of appeal.
As you may have noticed, we at once raise an issue which is more than sensitive for us: the very narrow unity of the Conseil in both of its capacities, as legal advisor of the government and highest administrative judge. The fundamental link between those two capacities are in my eyes essential. I am quite aware that this may seem a bit odd for the distinguished common law judges who are in attendance, but each of our systems has its own specific aspects. As far as we are concerned, we view this fundamental link between our advisory work and our mission as the highest administrative judge, not as a threat for our independence, but on the contrary as the cornerstone of the enforcement of the rule of law by public authorities. It works that way in France because of the central place that our institution has taken. At the same time, when it comes to judging a given case, we have put in place all necessary means aimed at avoiding any form of conflict of interest, from an individual viewpoint.
In a way it can be said the Conseil has retained its original name but has changed thoroughly from the inside. To that extent, and as paradoxical as it may seem to you, it can be said that the Conseil is probably one of the most Anglo-Saxon type institutions on the continent...
1.1 Certain key dates
Under its present form, the Conseil was established by Article 52 of the Constitution adopted on 13 December 1799. This Constitution was issued by Napoléon Bonaparte just a few weeks after he came to power. Thus the rule of law in France is enforced by an institution created by a dictator having come to power after a coup d'Etat. Article 52 reads as follows:
"A Council of State shall be responsible for drafting the bills and regulations of public administration and for solving difficulties arising in administrative matters".
Since 1799, certain key dates in the evolution of French administrative courts are to be underlined:
- In 1872 the Conseil was given full authority to issue its own judgments as a sovereign court, "in the name of the French people" instead of submitting proposals to the Head of State - which he in practise always followed.
- In 1873 public legal persons were declared liable for all torts they may commit. From now on, the Conseil was in charge of granting compensation to all of those who may have suffered damage from any wrongdoing from civil servants and agents acting in such capacity.
- In 1953 in most cases authority to settle cases as a first instance court was transferred from the Conseil to administrative tribunals (now forty two). The Conseil became then in charge of looking into appeals filled in against judgments issued by tribunals.
-In 1987 six (now eight) administrative courts of appeal were established. They have authority to settle appeal cases arising from administrative tribunals, whereas their own judgements may be challenged in front of the Conseil acting as a "juge de cassation" i.e. in charge of legal review.
- In 2001 a new administrative justice code was issued in order to simplify the rules of procedure being observed by all administrative courts in the country. It was also aimed at developing urgent and provisional measures to be taken by judges, before the case is settled as a whole.
1.2 The Conseil d'Etat acting a legal advisor
The advisory role of the Conseil goes back to its very beginning. The drafting of the five Napoleonic codes (the civil code, the penal code, the civil procedure code, the criminal instruction code and the commercial code) took place within the Conseil. The advisory work being done within the Conseil is carried out by bodies called "administrative sections". Each section includes a chairman and approximately twenty members of the Conseil.
Each administrative section is in charge of looking into draft bills or decrees having been drafted within governmental directories and agencies. When we have to look into a draft bill or decree, we study it and have to deliver our opinion and say whether we agree with it or not. After various cross examinations, the relevant section decides whether to accept the draft submitted by the government - usually including amendments agreed upon by the section - or to give a negative opinion.
Sometimes, the Conseil has to reject draft bills or decrees the Government has submitted, on the ground that they are not consistent with constitutional law or principles or with treaty law - including EU law - which in the French legal system prevails on national law, including statutory law - however it does not prevail on the Constitution itself. When such a negative piece of advice is being issued, the government remains free not to follow it, but it practically almost always follows our views. In some important cases, drafts follow a second stage and have to be sent to the general assembly which is the highest advisory body in the Conseil.
It should be noted also that the government, whenever it wishes to, may request advice from the Conseil on all matters except on those that involve pending litigation. Some advice can be quite technical, but others have an important echo in the society or the economy. For instance during the last decade the Conseil has issued some important advice regarding how to adapt French public utilities to the new competition rules issued by the European Union. Such matters involve thousands of jobs and have a great impact on how huge sectors of the economy are being shaped.
Some other pieces of advice that we deliver have a great weight in the debates within Parliament and the society as a whole. For instance, when I return to Paris in 10 days I will have to chair a meeting where we will have to say if it is lawful to limit the use of the complete Islamic veil when women use public utilities or even walk on the streets. This topic is difficult and we must say what the relevant law is, in a complicated and nervous context both amongst politicians and citizens.
1.3 The Conseil d'Etat as the Supreme administrative court
The Conseil d'Etat acting as the Supreme court in the field of administrative law issues approximately 9 000 judgments each year. This work is undergone by the Litigation section, which is the most numerous section in the Conseil. The Litigation section then serves in different capacities:
- It may serve as first and last instance judge, as for approximately 20% of the cases settled by the Conseil each year. In this case all matters - law and/or facts - can be debated before us. Most cases are of high importance, such as governmental decrees or ministerial decisions, decisions made by certain public agencies, individual cases involving certain high-ranking civil servants.
- It may serve as a "juge de cassation" for all judgments issued by an administrative court of appeal, and also for some judgments of administrative tribunals in certain minor cases which cannot be appealed. We review the whole case within all its legal aspects but do not look into the facts which have been debated before the previous court. If the judgment challenged before us is quashed, the Conseil is then free to settle the case right away - then acting either as an appeal or first instance judge - or to send it back to the court which judgement has been successfully challenged. If the case is sent back, the court or tribunal has to compel with what has been ruled by the Conseil.
- It may also serve as an appeal judge, in some cases especially for litigation involving local elections, provided that national elections - in order to elect the President of the Republic or members of Parliament - are to be challenged before the Constitutional Council and not us.
The Litigation section is divided into ten chambers, each one being specialised in certain fields of law. A chamber includes a chairman and two senior members assisting him and approximately ten rapporteurs. It also includes two "rapporteurs publics" who are also members of our institution. Most of the proceedings between the parties are submitted under a written form. After a preliminary review has taken place within the chamber, the case is being settled on a court session.
There are different levels of court sessions, depending on how important the case is, which involve between three and seventeen judges on the bench. During the public hearing the parties are able to deliver some oral remarks. An important step during the public hearing is the presentation made by the "rapporteur public" who sums up the case and the relevant case law and submits its own proposal as for settling the case.
The most important issue at stake before the Conseil is whether precedents, if they do exist, should be maintained, adapted or reversed. A change in international or domestic law is often the reason why a precedent is being reversed. Though a precedent is not legally binding in theory, as it can be in Common law systems, administrative courts submitted to the authority of the Conseil practically always follow it, since their judgments could otherwise be successfully challenged.
1.4 Administrative courts of appeal and tribunals
In the country we have 8 administrative courts of appeal with 245 judges on last 1 January. They issued approximately 28 000 judgments last year. As first instance courts we have 42 administrative tribunals with 736 judges on the bench at the same date. These tribunals issue usually between 180 and 190 000 judgments each year.
The basic principles of organization and fundamental rules of procedure within the courts and tribunals are close to those applying to the Conseil d'Etat. The main differences come from the fact that:
- on the one hand, the oral proceedings are more developed in front of them than they are in front of us;
- on the other hand, their advisory role is very limited, unlike what happens in front of us.
An important aspect to be stressed is that the management of these courts and tribunals relies on the Conseil d'Etat itself. The budget funds that are granted to us are attributed at the level of the whole administrative justice system and we manage it, which gives us a high level of autonomy. At the same time, appointing and promoting judges is under the responsibility of a high council which I chair myself. This gives us an efficient protection against possible partisan interference.
At this stage I wish to underline two elements that will echo the very valid points made by my friend President Eckertz-Höfer this morning.
First in front of our courts in France one can challenge the legality of both individual rights on the one hand, and regulations and by-laws on the other hand. The difference here stands with respect to who has legal grounds to do so. In the case of an individual decision our system is fairly close to the German system insofar as just the relevant person (being an individual citizen or a legal person such as a private company) can challenge it in front of the administrative court, arguing that his or her subjective rights have been violated. However in the case of a regulation or a by-law it can also be challenged in court provided that the plaintiff shows that he or she has interest with challenging this legal norm in court. It does not go as far as an actio popularis would go and the plaintiff (who again can be an individual or a legal person) has to explain that this legal norm, according to its content, may have a negative impact on his own interests. The concept of interest is assessed by the court in a pragmatic way. As for legal person, the core element is of course its purpose: if it is a trade union it will be to defend the interests of the workers, or if it is an ecological NGO it will be to defend a clean environment and so on.
My second point here will be to elaborate on the question of the intensity of the review that we exercise on discretionary measures; this goes back to the principle of proportionality that our German colleague has insisted on. Depending on the content of the decision which is being challenged, our review will be restricted, normal or intensive.
Our review is usually normal, which means that we review the matter as if we were acting as an administrative body ourselves. When the Government wishes to expel an alien on the grounds that his presence on French territory threatens national security, we exercise our review performing a test of proportionality when this foreigner who has his family in France argues that this measure violates his right to family life. We quash this decision when we come to the conclusion that the balance between the requirements of public policy on the one hand and the right for this alien to enjoy his family life on the other hand fails to meet this test of proportionality. The same rationale prevails when we exercise legal review of a decision which authorizes or, the other way round, forbids a planned merger between private companies. In this case we exercise our control according to a strict test of proportionality with respect to the relevant markets or the impact on competition.
We choose a restricted type of review in the case of highly technical matters: in those cases we quash the decision only when we identify a gross lack of proportionality.
We exercise a particularly demanding form of review in fields where issues of civil liberties are at stake. One example can be found in the limitations of the right to demonstrate in the streets. If public authorities wish to ban a demonstration, the court will assess in a very precise and demanding way what kind of threats to public order the demonstration was actually creating. Here public authorities know that the limitations to civil liberties they wish to introduce are submitted to a close scrutiny of the courts and this serves as a powerful deterrence.
2. The key challenges ahead of us
It is time to identify the key issues and changes that lay before the French administrative justice system during the years ahead. These are issues and changes that we cannot avoid to take into account, if we wish to fulfil adequately our task to the benefit of the society as a whole, and also to retain what is most essential: our legitimacy and the confidence of the people.
My feeling is that these issues and answers can be summed up in a few questions:
- What is to be done to address the massive increase in the number of claims?
- How can we conciliate settling an ever increasing number of claims and retaining high standards of quality in the manner in which we settle such increasing claims?
- What has to be done to have the Conseil and administrative courts become more effective?
2.1. What is to be done to address the massive increase in the number of claims?
I don't know in detail whether administrative tribunals in Australia are confronted or not to this problem, but in France we have to face, if not a tsunami, but at least very high waves in terms of increase in litigation.
This evolution is all the more significant in France since, at the same time, the number of cases submitted to civil courts, commercial courts and labour courts has remained pretty stable, if not has decreased. At the level of all administrative jurisdictions 18 000 cases were registered in 1968, 62 000 in 1987 and 210 000 in 2009. As you may notice, the increase in a 40-year period of time is almost from 1 to 12.
This very sharp increase, if one tries to analyse its causes, is due to a combination of factors:
- on the one hand, the claims administrative courts have to settle in their traditional capacity are expanding by thousands;
- on the other hand we notice that in some new fields litigation is expanding also. There the problem comes not so much from the number of claims per se than the crucial importance of what is to be settled for economic growth and social harmony.
The increase rate has remained high in the sectors of public activity which traditionally bring in lots of claims from individual citizens. This is the case for taxes, of course, and also civil servants, civil liberties that is to say all administrative decisions in relation with law and order enforcement. Our administrative tribunals receive yearly thousands of claims in relation with foreigners whose application to get a permanent residence permit in France has been rejected by State authorities. The regulations applying to residence permit change often and foreigners use all legal recourse available in order to stay in the country and delay the moment when they can be expelled and sent back to their country. From their individual standpoint, this is quite normal and logical and I not at all wish to criticize them, but managing this flow of claims raises some difficult questions. Asylum litigation is also huge in France.
In a different sector, our tribunals also have to cope with a very time-consuming type of litigation, which may seem a bit surprising to some of you. This comes from driving licenses. Our authorities are enforcing much more than before the rules applying to over speeding and other driving offences. Depending how serious the offences are, this may bring the person having committed them to lose its driving license. This is why thousands of angry drivers fill in claims each year to challenge these decisions in the courts. Again this type of claim is essential at the level of the individual; therefore we must be in a position to settle such cases within a reasonable period of time.
At the same time we can notice a sharp increase in other and less traditional fields of litigation. Let us identify at least some of them.
This is quite true as far as environmental law is concerned. Legal rules have developed to a considerable extent in this field, both at the national level and at the level of European Union law. This has lots of consequences on different types of decisions being made by public authorities, for example as for authorizing power plants or new industrial or agricultural equipments that may cause some extra pollution. Important projects in the field of housing and urban planning are also being challenged to ensure that they compel with environmental law rules and regulations.
Another field which raises a great deal of complicated litigation is the media. We are facing very quick changes in technology and the number of TV channels is expanding rapidly. Public authorities ought to keep an eye on the evolution of this sector, in particular in order to have competition rules being implemented and to avoid concentration.
The quick development of computer data raises some sensitive issues also. It becomes technically easy to interconnect these data and protecting civil liberties and the individual citizen can also bring in some extra litigation.
Also in the field of economics, after privatising in France important companies that were State-owned before, in part because of the pressure of European authorities, it is now crucial to ensure that competition rules are duly respected in order to avoid new monopolies. This issue is particularly important in France as for telecoms or energy. Everything has to be done to avoid a situation in which, after dismantling public monopolies, we would end up with private monopolies. Privatising does not mean doing away with any kind of regulations, and administrative courts must ensure that public authorities take action in order to have the rules of the game respected by all economic actors.
Even if such an evolution may seem uncomfortable and is indeed very complicated to handle at every stage of administrative justice, the issue is not whether we are going to keep up with this evolution, but what we must do to assume the responsibilities that have been given to us by the Constitution and to do it in a manner that fits with the highly demanding level of expectancies of the society toward the Conseil and administrative justice as a whole.
2.2. How can we conciliate settling an ever increasing number of claims and retaining high standards of quality in the manner in which we settle such increasing claims?
First, we wish to keep an open and fairly easy access to administrative justice. Private companies, individual citizens and groups of citizens acting jointly in order to defend interests or causes that they share have an easy access to the courts which enables them to challenge most regulations or individual decisions affecting their rights or liberties.
Secondly, we must follow with utmost attention the time framework in which we settle cases. For many years, French administrative courts have been criticised for not settling cases in a timely manner. Some people used to say then that French administrative justice is a good one in spite of being too slow. No one can reasonably say this any more: a court system that would be too slow simply cannot be a good one.
If you look at the available data, you may notice that things have changed in the right direction but these progress remain very fragile as a whole. At the national level, a first instance case being submitted to a tribunal is settled in the average time of 1 year 4 months and 8 days. An appeal is settled in the average time of 1 year 1 month and 27 days. However the situation varies, depending on where the tribunal or court is located, in particular in urban areas where the population is highly concentrated.
In the Conseil itself the situation is satisfactory, the average being 9 months and a half. However some particularly difficult cases can still require an extended period of time to get through, and this is in no way something we can take as normal. In other words, we must even within the Conseil increase our efforts aimed at reducing the time we need to settle cases.
Thirdly we must safeguard all that has been done in order to maintain the predictability and consistency of the jurisprudence of our administrative law system. This implies within the Conseil different systems of reviewing our rulings as to avoid developing legal solutions that would not be understood elsewhere, or that could be interpreted in diverging ways by the courts and tribunals. The outcome would then be legally insecure and would lead to unfair treatment of claimants, depending on where their case would be looked into.
In that respect, a very interesting system has been developed since the 1987 reform. It enables a tribunal or a court, before settling a case, to ask the Litigation section in the Conseil to deliver within three months the legal answers to what are the core issues being raised by the case. This way, the Conseil at an early stage can deliver its own "roadmap" not only to the relevant court or tribunal, but to all of them in the country. This saves a lot of time and helps to avoid a situation in which many courts and tribunals may adopt diverging approaches before the Supreme court is in a position to make its own point. As you may understand, this helps a lot to improve at an early stage the quality of the rulings being made by the courts and tribunals.
2.3. What has to be done to have the whole system become more effective?
A key issue is to develop our techniques aimed at ensuring that the court rulings are duly executed by public authorities. Important reforms have already taken place back in 1980 and 1995. The administrative judge has since then full authority to give orders to public authorities and, if necessary, to impose a fine on them for not executing its ruling within a reasonable period of time. And I want to go further and develop more explicitly the "roadmap" that should be followed by the relevant public authority in order to meet fully its legal obligations in a given case.
Another issue of crucial importance is to develop fully our legal possibilities to take all appropriate, urgent and provisional measures before we settle the case. Since a very important reform introduced in 2001, the administrative judge is now in a position, much more efficiently than he was before, to order certain provisional measures. The most important one is to suspend all legal effects of a decision made by a public authority, whenever such a decision is legally doubtful and raises some urgent concerns for the claimant. In many cases it may not be acceptable to let an illegal regulation or decision being enforced for months, if not years in the worst case, before declaring it null and void. The claimant rightly wishes the legal system to come to his rescue and, provided that such claimant has some strong legal reasons to ask for this, to block the effects of the regulation or decision until the court issues its final ruling on the case.
It is probably time for me to bring this presentation to its conclusion. I would like to stress what is, in my view, the specific mission of administrative justice with respect of the society as a whole.
Administrative law now develops in an ever expanding spectrum which includes protecting civil rights and liberties, in the most noble and traditional sense, implementing market regulations, social and economic regulations and even more experimental fields such as environmental law, biotechnologies and the information society. On all of these grounds, the administrative judge is facing very sensitive debates in terms of politics, economics and society. The judge must constantly draw a balance between conflicting, though legitimate, rights and preoccupations. The judge must also keep in mind that he or she acts in a society which, unlike what happened 50 or 100 years ago, is more and more open to the rest of the world.
These issues are such that, now more than ever, the judge is in the heart of the relationships between the different powers and the citizens. When delivering his rulings, when stating what the law is, the judge does more than regulating the society, even more than protecting the individual against the misuse of public authority, and in some cases even worse: protect him against arbitrary behaviour. The judge is in charge of ensuring day by day that the very heart of the democratic promise is being respected, that is to say the protection of the rights of the citizen.
Coming to the very end of this presentation, I would like to say that the kind of exchange of views that we are experiencing together today is quite relevant and even necessary. Many authors elaborate on globalization and, at least in Europe and especially in France, they tend to stress the negative impact of this historical trend. However I think that some very positive elements can be identified, one of them being that many people in the world share the ambition to work together in order to improve the way we exercise our demanding mission.
In this respect, experience sharing and as we say in French the "dialogue des juges" is essential. We have been trained in law according to a certain legal tradition. We each consider with pride our own legal traditions, but nowadays the issues to be tackled by all of us are set at a global level. One way or the other, we can contribute to a full, faithful, accurate and reasonable implementation of law, especially when we must implement international rules - particularly in the field of human rights - that should be applied everywhere as consistently as possible. To achieve this goal, there is a great need for a dialogue between us. Many misunderstandings and arguments can be avoided if we go ahead with this dialogue. By doing so, we can make a substantial contribution to promote the rule of law.
I thank you very much for your kind attention.