The Conseil d’État issues a reminder of the rules guaranteeing the independence and impartiality of administrative justice

Décision de justice
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In considering an appeal lodged by the Bouches-du-Rhône department, the Conseil d'État, in its most solemn session, reiterated the rules guaranteeing that decisions handed down by the administrative courts are made independently and impartially. In addition to their status, which protects them from any outside pressure or interference, members of the Conseil d’État and administrative judges [magistrats] are required to avoid any conflicts of interest. Whilst exercising an administrative function does not in itself affect the impartiality of a member of the administrative court, there are a several situations in which members are required to recuse themselves from proceedings. The Conseil d'État ruled that there had been no breach of the principle of impartiality in this case.

The Bouches-du-Rhône department appealed to the Conseil d'Etat against a ruling handed down by the Marseille administrative court in a case that had been heard by a panel including a judge who had been previously employed by the local authority involved in the case. The Conseil d'Etat dismissed the appeal after restating the framework in which an administrative judge performs their duties. It noted that, under the general principles applicable to the office of judge in a state governed by the rule of law, the administrative court has guarantees and rules, and that it monitors the proper application of these guarantees and rules to ensure its independence and impartiality.


A status to ensure independence, and rules to guarantee impartiality

First of all, the Conseil d'État pointed out that the independence of the administrative courts, whose decisions are made on behalf of the French people, derives from the principle of the separation of powers. Also, members of the administrative courts have a status that guarantees this independence and enables them to judge free from any pressure.  They may not receive, accept or presuppose any instructions from any authority whatsoever.

The Conseil d'État then pointed out that the rules – now enshrined in the French Code of Administrative Justice, together with the Administrative Courts Ethics Charter and the recommendations of the Board of Ethics – require each member of the administrative courts to perform their duties impartially, without bias or preference towards any one party, and to behave in a manner that prevents any legitimate doubt in this regard.

In this respect, the Conseil d'État emphasised that, regardless of compliance with any rules laid down by the legislator (for example, to provide for conflicts of interest or stipulate a restrictive period), the fact that a member of the administrative court previously held a position in the local authority (or concurrently holds such a position or will hold one in the future) cannot, in and of itself, constitute grounds for doubting the member’s impartiality.


Case-by-case verification of administrative court members’ compliance with the principle of impartiality

However, each member is required to recuse themselves from proceedings in certain situations where there may be doubts concerning their impartiality. The Conseil d'État listed these situations.

Firstly, a member of the administrative court must not participate in judging cases involving administrative decisions in which they made the original ruling, in which the original ruling was made under their authority, or in which they participated in the preparation or defence.

Secondly, a member must not participate in other cases where there is a serious reason to doubt their impartiality. The Conseil d'État clarified the method used to identify such cases. The method involves a combination of several criteria (i.e. the nature of the administrative functions performed or likely to be performed in the future, the administrative authority for which these functions were performed, the time passed since they were performed, and the subject matter of the dispute).

Finally, it is for each member of the administrative court to decline to sit in judgement on a case if they consider in good conscience that they should recuse themselves; they are not required to provide justification for this.

In the case in question, the Conseil d'Etat carried out this verification and concluded that the situation of the Marseille Administrative Court judge did not fall within the scope of the rules defining conflict of interest nor within the restrictive period set by the legislator. They had not taken part in the legal defence of the disputed decision, nor were they in any other situation in which there would have been a serious reason to doubt their impartiality.  The Conseil d’État, therefore, concluded that this judge’s participation in the ruling on the case had not affected the legality of the composition of the court that had ordered the Bouches-du-Rhône department to pay a back-to-work allowance to a former contract employee.


Read the decision (in French)