Today, in response to an appeal by the Syndicat de la Magistrature (magistrates' trade union), the Conseil d’État first recognised that it is the role of the administrative courts to settle any dispute regarding the President of the Senate's decision to appoint a qualified person to the High Council of the Judiciary. The Conseil d'Etat then ruled that Dominique Lottin's appointment to the High Council of the Judiciary was legal. It took the view that honorary judges no longer belong to the judiciary once they have retired.
On 2 February 2023, the President of the Senate nominated Ms Dominique Lottin as a qualified person to the High Council of the Judiciary. The role of this institution is to participate in the appointment and disciplining of judges to guarantee the independence of the judiciary. The Syndicat de la Magistrature applied to the Conseil d'État to annul this nomination on the grounds that it was unlawful because it appointed an honorary judge, whereas article 65 of the French constitution requires the appointment of a person who is not a member of the judiciary .
Former judges are entitled to claim honorary status when they retire, provided they have not been subject to disciplinary proceedings or compulsory retirement. This status, which requires them to respect a duty of confidentiality, mainly enables them to continue to enjoy certain privileges attached to their previous role (such attending official judicial ceremonies), and even to exercise certain judicial and extra-judicial functions.
The Conseil d’État heard the case in its most solemn session, the Assemblée du Contentieux , comprising 17 judges. Firstly, it recognised that it was the responsibility of the administrative court to settle disputes relating to any "actions concerning the nomination, appointment or election of members" of the High Council of the Judiciary. The Assembly also noted that this institution forms part of the organisation of the judicial public service.
The Conseil d'État also took the view that, while retaining an honorary link with their former jurisdiction, and although they may be called upon to exercise certain judicial or extra-judicial functions, honorary judges cannot be considered as belonging to the judiciary due to their rupture with the service through retirement.
Consequently, the Conseil d'Etat dismissed the appeal lodged by the Syndicat de la Magistrature.
Read the decision (in French)