A Comp~rtson. by David K. Allen. A thes5s submitted to the Faculty of Law in conformity with the requirements for the.degree of Master of laws

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1 A Comprtson between the Nature and Scope of the General Principles of French Administrative Law and their Counterparts in Englsh Administrative Law ' _'. 9. j i / by David K. Allen _ ' of # A thes5s submitted to the Faculty of Law in conformity with the requirements for the.degree of Master of laws. : / :. McG un-iversj. Montré{ll Quécec t'canada. August 9}7 o David K. Allen 978-0'

2 > I i) The fist chapter do8ists a compratl.ve discuaaion of the right ta. a beating' in the two lega systems. The French rule of droits de la dél.ence ia contrasted with th: English audi alter partem principle analy8ing in each case the nature and scope of the princip)e.. The second chapter contains a comparis ' of the rulea governing the / citizen's right to have decisions affe ing him de by an biaaed '.' - J body. The hrd chapter analyses the nare 0; the othér leading general principles of French administrati e law for example the principle of equality o citiul'ls and the principl ' designed to protect the liberties of the individual and considera the origin of t'he principlea and their level in thehierarchy of sources of legality. The final cnapter considera to what extent rules equivalent to the French princip les discussed in Chapter 3 exist in tyisb l.v. ''''' I- l' > ' > Le premier chapitre se compose d'une discussion comparative du droit du citoyen de d'velopper des objections contre une dcisiôn que / l'administration s'apprête a prendre contre lui. La rlgle francaise. X es droits de la d'fence est mise en contraste angai?udi atetam partem. dans-e but de faire avec le principe ;; ressortir l'essence t.. dej deux principes et leur portée respective. Le deuxième chapitre comprend une comparaison dés règles qui gouvernent. le droit du citoye de se faire couter par un tribunal impartiel en ce qui concerne une décision qui le touche. Le troisième chapitreanalyse nature des autres premiers principes généra du droit_raneais-administratif par exemple le principe. de l' galid des -citoyens et les principes destüés l la 'protection des libert's individllelles et considère l'origine des principes et leur niveau dans l'hiérarcbie des sources de la légalité. Le ernier chapitre conidlre dan. uel mesure des rlgles euijalentes > r aux principes' francais discut's dans le troisilme chapitre existent le droit anglais.

3 ii) ACKNOWLEDGEMENTS A nerofpeople have assisted. in one way or another. n the i ). preparation f this thesis and lt i8 pleasant dut Y ta record my thanka d gratitude ta them /' First and most of ail MY thanks are due.to my supervisor Professor Stephen Scott of the Facuty of Law McGill University. As / the whole thesis hâls been written/ sinee MY year of residenc'e st McGill Professor Scott has had he rote st a distance of 3000 IÙ.les. extra burden of carrying out a supervisor's Ris helpfut comments and I suggestions have been of enormous assistance. and he has been more than with his time. both in commenting on draft chapters by post ieneroub d by his. willingness to arrange meetings ':0 diseuss the thesis on the occasions when he has been in Englànd. l am also grateful ta the Director and Staff of the Institute of Advanced Legal Studies in London where the vast majority of the thesis was writteo. Their extension of the facilties of the library to) Q and their friendly assistance are mueh appreciated. The assistance of the Librarian and Staff of the '/'. univ Library at Leicester University where the final work on the thesis was done has ilso Dèen most valuable. :t! i? - ' l'. J t 'L >'. ' l' t' < II.- 'i-'. o.j. l am partiularly gràteful ta Mrs. M. Connor for her decipheing of my untidy manuaeript and her efficient and speey typing. Finally bùt not least would like to thank my wife not only for her patient endurance of my absence during long hot summer days. but also for ber valiant efforts to curb some of my'worst excesses of Btyle. August 977 David Allen

4 ' Hi). ABBREVIAIONS : f ' v '- a) The follo!'ing abbeviationhave FRENCH LAW < i) Reeots fi li been used: / / ::-. A.J.D.A. l' Actualité - Jutidique: Droit Adminis'tratif This is a stecialised monthy j oumal' whieh f con tains aw reports 'and aso notes and f! articles i D. Récueil Dalloz. The eading series of gene'al h c A l s. ' f law e 't:.s. Recu i Sirey. A leading series of general law ' 7 rep j' t' 'f' ts combined with the Recueq Dailoz since 9 5. Rec. R cueil des Arrêts du'e=onseil d-'-é-at sinc 955 entitled Recueil' des Dcisions du Conseil 'd'ttat). The main series of reports for au l' Il ' d:ecisiops of the Conseil d '-ttat. ' ii) Periodicals { A.J.D.A. See above. '- <> E.D.C.E. Etudes et:. Documents du Conseil d'état. This il l' t!. : ft j. /. t R.D.P. /' is -an oficial publication of tbe Conseil d'etat. Rewe du Droit Public et de la Science Politique en France et h l'étranger:.

5 iv). l_'.- t'>'''''''''_'''' -If l' b) ENGLISH taw.. i) Reports i A.C - Appeal Cases <> J of Lords and Judicial CoDlDÎttee of the Privy Coune'il Cases> i. t. ' l' Ch. D) Q.B. AU E.R. M' / 'vi+- / :- : ''.' ' lf:i ;' ;!' - fi -. ' - ' p W.L.R. H) Articles 'Jo CJ. L.Q.R. M.L.R. I.L.J.r C.L.P. Chancery Division cases and appeals therafrom). Queen's Beneh Division cass tharefrom). All England Reports geeral and appeals law reports). Weekly Law Reports general law reports). Cambridge Law Journal a general 'periodi.eal). Law Quarterly Review a general periodical). li' Modern Law Review a general periodcal). Industrial Law Journal. Curret Legal Problems. t '-. /. / - '

6 . r..- l'''''.jf'l'!jl'''''''-._... ' v) -- TABLE OF ONTENTS ' Âbstract: i Acknowledgements '. / ' Abbreviations Hi 'h Introduction. vi PAGE t ' y r CHAPTER THE RIGHT Ta A BEARING ;;.:;. CHAPTER' 2 THE RULE AGAINST BIAS 5 S'. CBAPTER 3 THE OTHEll LEADING GENERAL PRINCIPLES 74 OF FRENCH ADt-;.INISTRAUVE LAW CRAPTER.4 RULES OF ENGLISaJLAW CORRESpONDING TO ps J '. i. Conclusion Bibliography 0 ri - - THE LEADING GENERAL PRINCIPLES OF FRENCH ADMINISTRATIVE LAW. > ' 46! /! ls0 l- l'.... c.. -- i

7 4 - vi) INTRODUCTION. The very existence of administrative Law may be said to reptesent. a concession of some kind by governments. ' In a totalitarian.state there is Little likelihood of a coherent body of administrative law as onatitudonallt states know it given the overt'iding demanda of state interest. ) Even in constitutional or democratic states governnts ' relying on the theory of the duly elected representative are'histori- cally reluctant to submit the legality of their actiities. tora determination by the ourts. Clearly citiens' rights may becdeveloped J in areas such as consumer protection whre government policy and administrative convenience are unlikely to be hindered. For the citizen this i8 not eno}lgh: his rights before administrative bodies' are vital: for him there is'no logical difference between a tort ;.. committed against him by his neighbour and tort committed againat him by the state.2) e expects fair lay. Administrative Law may then be said to represent a ompromise two powerful interests: that: of the state in ensuring that its polices are carried out unhindered and that of the citizen in asser.ting that ' t'- _/ of l such rights as he has against the state are duly preserved: that the statè as wall s the ciizen ia subject to the rule of law. As open democracy understood broadly) has increased. so has the realistion bat good adminiration i8 not incompatible with judicial protection.r' i { : of the citizen's rights vis-à-vis'he state but that its enda are c better served by a reconciliation of the two interests. At the sa time. the inrease o government ha le to a eorreative inrease ) Se e.g: A. A. Morgan Soviet Administrative Legality Stanford University Press 962) pp.8l-l. 2) See for example rsmith RYe-Co. v. Brand [869] L.R. 4 H.L.'7. - C.P.R. v. Rol [902].C. 220

8 vii).' f state control over the life of the citizen and a corresponding risk of excessively arbitrary executive action. That the pendulum swings in English 'law between these intere.ts can be realised from the otherwise confuaing remarks of Lord Reid in. Ridge V6 Baldwin 3) where h said: We do not have a developed system t of administrative law - perhaps because until fairly recently'we did t need ' it. If and Lord Denning in Sreen v. A.E.U. 4) who said: It may now truly be aaid that we have a developed system 'of administrative law. Given the unlikelihood of such a radical change in so short a period of time. tt is not unreasonable to conclude that there is room for dispute over the coherence of English aw at any given time. J!._ Law mirroing. 4 society is flexiblé and administrative law is _ '. particularly susceptible to the evrçrecuring flqctuations in the delicate balance between individual and state interest. This is as j. true of Frech as of Englsh aw. Whére they do differ ia in Cheir approach to maintaining the proper balance in an area where the prima ;: oddè in bath systems are firmly in. favour of the state. Thel parl' tieular aspect 'of this control which it ia proo8ed to eonsider in this. discusion s the relative approaehes to the enforcement of admnistrative morality undersoood broady) eontrastoing les principes gédraux du droit in the French law with those codlldon aw presumptions and ruls of statutory interpretation in the English law tat seem to correspond most elosely to the principes gén6raux. This study approaches the subject by corisidering first the French law on a partieular topie then f' the English insofar as an exact correlation can be made). The reason.for this treatment is that tbe dvelopment 3) [964] A.C. 40 at 72. 4) [97]' 2 tl.b. 75 at 89. since 944 of the géneral..

9 $ yws:;. l i.mxtxiiij. 32!Q) vii-i) - principl.es Qf Law in Eirench acilninistrative.law represents a more coherent approaèh to the subject than the English law. It ia suggested that it is not enough ta make camparisons' sily on the basis of the particular rebults achieved by the rules developed ) by the two systems. The rules must be considered ithin the context of the systems within which they operat as the nature of the system plays an important part in determining the potèntial'of the rules. The façt that French administ'rative Law op'erates as' a ystem in itself whereas English administrative Law remains an area of he general Law ia of coursk highly significt. Factors 8uch as this the nature of stare. deciais and the different nature of the legal rule in the two systems 6 r although not cena to the discussion; must constantly be borne in.. mind as imprtant elements in this contexte The purpose this study is to examine and evaluate the rules developed by the 'courts in the two legl!-. systems for enforcing administrativ morality. This ia not ta dény'the importance of enacements by the respective legislatures of Law8.incorporating requirements of fair'play hut it is submitted at a comparison of the rules developed by the courts is particularly likely to be significant not onlyin relation to the conclusions in similar areas of the law that they have reached but aso the ways in which they reach tbose conclusions. The light that such a coarlson sheds on the &le of the courts in relation to the legialature8 and the desirability of such creativity ib also felt J.' ta be of interest. One particular factor to-he discussed is the comparative potential of the two systems. Although in neinhér system 8 there an enacted requirent that general princip les of law be adbered to unlike for example Article 383) of the Statte of the International Court of Justice) France unlike England cloes have a written constitution.

10 ix) -'. The extent to which les principes généra can be said to be derived.- from generalized requirements of liberty equahty and fraternity enshrined in the Preambe to the Contitution of 958) will be dia- ' cussed in the texte For now it may simply be questioned whether if itis felthat the French Constitution does provide the basis for t!les prlncipes gnérauxtt it is a necessary corollary that the absence' of a written cqnstitution in Ensland entails the on-feasibility of. f recourse to such principles or whether such a conclusion is only - c. ' justified in relat{on ta the question of the level on which such principles if they exist operate. The firat chapter cantains a comparative discussion of the right A / ta a hearing in the two systems and the second chapter considera the requirement of n unbiased abritrator. The third chapter describes f t). ' the nature and role of the other leading principes généraux in French law and the four th chapter discusses the extent ta which English law l contains équivalent rules.. /. / '..'.

11 . l ' CHAPTEll' I 'l'he RIcihr TO À HEARmG { l' a) FRANCE } ' 'Although the actual recognton of droits de la d'lence as a '/ principe g4'r: d.d' noqccur unt.l945 in the of Ch;on ) Aramu Betloir Matt6i Tabti C.E. 26 October 94C. p.2l3). tij' i there had beau an extensive an ever-developng tacit acknowledgement of ità existence culminating in Trompiet-Gravier C.E. 5 Y 944 R.D.P. p.257) in wh i ch' the ccommissaire du gouvernementochenot -. aynthesised the previons case law and provided a sound base for further develapments.l) The requirement of a contradictory.procedure which' gives the.. 'f citizen the 'right to dispute an administrative decision i8 in certain.' < -- cases for exampie inquiries see Auby an Drago pp.67-s)2) re-. quired by tatut. Also the creation of new administrative juris-...'ci :'rictions uch'as the discipiinorgansain o the professios 3) 4) or the' Cour des Comptes lnvolved the necessity for 'Pfocedura safeguards qver these bodies wieided by the Conseil d'at which.. controis Ehem by way of'cassation. These were developed Y Jurisprudence to a sophisticated degree5) and soo provided th: requirement for a' optrajictory OgCal step ta extend such the pocedre. m there ie was not! requirements gra<lually ta areaa of. /' :- l'. i n J. ' '. } - c' - e / the purelyadministrative dqmain..' -=-- ). See pp.3-4 for discussion of this case. / IÇ 2) These are fairly unusual. Yor exampe see 6 June 959 expropri-. ation id the interests of public welfare) 3) See e.g.!!t C.E. 20 June 93 Rec. p.736). 4) The mainfunctions of the Cour des Comptes are to supervise the 5). 6) legality of public expenditure and to investigate the seandrds of financial administration Bet by public authorities. See Jeanneau pp See e:g. Neveu CE. 6 February 933).. -. i c

12 . 2 This applicati can be traced back to the field of the di8cipinary law of the public service. In Ledochowaki C.E. ;9 June 903{ the Conseil d'éat extended to' ffic:rs other tn general officers the law o 4 August ) This Law allowed the Head of ' State to pension off officers other than general officers after they' had cmpleted in a case ere thirty years of service but the Conseil d'état required. the Head of State based his decision on reasons giving the decision a penal character that' the officer be given the opportunity Il ta present his defence. A re generally cited Qasi of tlje principle of 'droits de la d'fnce i8 article 5 of the law of 22 #ril l'90s 8) wbich afforded - to civil servants the benefit of the communication of their dosser Cl before any discilinaty measure was taken against them.!nis also provided an'invaluable foundation for later developments. The case Law developed steadily. In Ripeyroles C 27 N9V7. ember 930 Rec. p.76) the requiremértt of a contradictory procedure '..'. was cearly stated'where the Minister of Public Education withdrew the aard o'f a scholarship to a nofçe::ihe minor's father had - fahed to malte an accurate statemént of bis means witbout allowing 'the father the opportuîîity to give!is sid of the ase. Also in 'Hartfig C.E. 28 April 937 Rec:;. p.446) wher an arcbitect accused _. of cheating was banned from architectural competitions for five ' yeara it was held that tpishment in this case was of so seriou8 ' ' a nature tbat the archilect slloud have beh given_ an opport;unity to.) defend himseli. 9) The deteation of the C. il ;at te.ontiie f. ' ' 'IIr-': 7) See dso note t':o 8) '.or a brief bacltground see Odent 962 E.D.C.E. '.44)- Q 9)' See also' here Fuster C.E. 9 July 937 Rec. p.680) Dame Hoarau C.E. 8 JUly 937. Ree. p. 743) J Duvancbelle C.E'. '2 July 93? Rec. p. 747).. -. li

13 . 3 the development of the principe cao further he seen from their ' attitude ta the diffeent statutes btweer 939 and 945 which sought to impoe restrictions on the rights of citizens aff8cted byadministrative decisions. Exampes of this can be seen in their attitude to the awof ljuly 940 which gave ta the govemment the power ta -' remove all civil and military agents from their duties on the sde ep0l. of the competent minister and without any other formalities. la) A further example ia. the case of Grivel C.E. 2 January 944) with its liberpretation of the aw of '4 September 94 in reaion to the' suspension thè communication of th dossier during hostilities. This case was conc;rned with)lnterpretation of the dècrees of l September 939 which suspended the procedure of the communication of thedossie in relation to title 4 of the statute of September 4 94 the genera civil servants' statute which conditionally provided for the statute of the re-establishment of this guarantee. Despite the conditiona nature of title 4 it was elxpressed as a rule of principle. which would. have tohe completed by public administration regulations) and the caim by the Administration thatthe decrees of 939 were applicable unti the end of hostilities the Conseil d'état hed that M. Give who nad ben dismissed from hispost of head of the collège de Nogent-le-Rotrn ' - entitled under title 4 ta the communication of his dossier: hen'cè inter- ') prting an.equiv9cal situation in a ibertarian way and tacity giving was. :. I if effect to the general principe of droits de la d4fence. The trenft of the case aw and the achivements of.forty yeats.. were summed up in a case of major lmportance Trompier-Graviar C.E..' 5 May 944 R.D.P. p.257) with the iljlpqrtant conclusions of M. Chenat.. la) See Piron C.E. 24 July 942 Rec. p.233) Bertouci C.E. 2 NOVëmber 943. Rec. p.257) Duplat C.E. 4 February 944. 'Rec. p.46). J. f

14 - 4. dame Trompier-Gravier who had a concession to sell newspapers from a kiosk onothè Boulevard St. DetS in Paris this concession l' revoked by the Prefect of the Seine on the grounds thatshe had extorted money from the man who managed the kiosk for her. The Conseil d'état decided that such a measure could not be t without a hearing being given. In his?; conclusions M. Chenot the colllllissaire du el gouvernemebt ared that 'when an administrative decision takes on the '. character of a sanction which will have a sufficienty serioue effect on an individual the case aw requires that the party affected be placed in a positon toc dispute the easons for the measure that affects h ' ld ' /. This therefore àppied the guarantees made to civil servant by article 65 of the law of 22 April 905 to all citizens affected by '.. ; administrative sanctions adapted ta the particular situation of noncivil servants Article 65' could now be seen not sa much as l an isolated formslity benefiting civii serva but as a particulàr application of a rule of universal effect. As logical conclusion ta this in Champion Aramu Bellir Matt'i' Tabtf C.E. 26 October 945 Rec. p.2) the Conseil d'état for the'first time recognised the notion of droits de la d'fence as a principe g'n'rai '. This ase concemed the purging of the administration of public servants who had collabdrated wit the enemy during the Second World War.ll} :.Acco rding to article 2 of the ordonnance of 6 December 943 measures of purging coud not be taken by the administrative àuthorities until the advice of a lioljllllission d'purationf' had bee given and paragraph 5 adde'cl la commission d'epuration entend les personnes. qui lui sont d'f4r4es ll This somewhat laconic text was held to import an obligatfon For the background to these cases e of M. Chenot in C.E. 26 October 945 the excellent conclusions

15 o 5 f >l on the coumisaion to adhere to the priiiciple of droits de la dfence :' it results from these prescriptions article 5) and reovr from the general principles of law applicable even where not provided for by a text that no sanction can legally be pronounced under this heading unless the affected party has beeu put in a position to present his defence effectively. 2) The fact that the principle had its origins in the disciplinary law of the public' srvice resuted for many years in the noeion that the principle could only apply when the Administration was employing. f d. l' 3) h 'h.. d a sanct0n a lscplnary naure 0T t at t e crltlclze measure presented an analôgy to a disciplinary sanceion as in Trompier-Gravier. IL we analyse the measure taken by the l?refect ''0 wit regard to Mme. Trompier-Gravier we may be sure that the decision. in question presents the character of a disciplinary sanction. Chenot). At the same time however the jurisprudence of the Conseil d'état was extendin'g the scope of the appliçability of the princip le to cases where there was no such disciplinary lement. Jeannea cites severa early instances4) but perhaps the most interesting is Nègre C.E. 2' June 949 Rec. p.304). M. Nègre 'who was di;-ector-genera of the publiç body the Agence France-Presse was di'smissd' in 9;;? Despite the fact chat the appointment of the direetor-general was at the r ' discretion of the Government and that the dismissal was not for disciplinary reasns the Conseil d'état considered that such a <- 2) See dso Maillou C.E. 22 May '946 Rec. p.46) J Reytier C.E. 27 November 946 Rec. p.28) Donnat C.E. 4 July 947 Rec. p.298) Lawless C.E. 22 October Ree. p.384). Also Jeanneau pp.a2-83. ' 3) See Jeze Revue de Droit Public 944 p.256 Ponteau C.E. 29. January 947 Rec. p.36). '. 4) p.as Salua C.E. 29 July 943 Rec. p.2) Herv' C.E. 6 June 949Rëë7 p.l73) Dame Percehaie C.E. 4 August 9'+4 Rec.p.222)! Badoc C.E. 27 June 945 Rec. p.l4)' 'Camard C.E. 20 June 947 p.276)

16 6. meaathe scope of article 65 of the aw of 22 April 905 same time it removed M. Nàgre from his post and was ten on per considerations. The effect of this' decision was tendedlto all ic servants envisaged by article 65 ' J / / / / in Ministre des Postes' T'l 9 December 955 Rec. p.585. The rue had thus developed cons' erably. sas C.E. lt now had express l ' recognition a8 a principe gener'al. 'which gve it a far more autboritative status' than hi.therto: ie las not iimited tô civil servants ut appled o 'allzen8 affected adversely by admini;êràtive ) l sanctions and it was not limited to situations where a disciplinary sanction was being applied. lt is neces8ary now to coqsider the /. ' It. ecope of the principle today in an attempt to detect the nature of occasions when a citizen Will be ablé to have recourse to its protection. The basic scope of the principle is to be found in Tro!pier- ' Gravier in the words of M. Chenot quoted above. As we shal see the scope of the audi alteram partem rule in English law depends on the meaning given to such wards as fair and hearing and the nature -. of the act which the affected citizen has suffered. Simiar. in France the meaning of sanction and the nature of the serious - effectll leave room for considerable debate and fexibility. The qurstion what must be the nature of the sanctioo inflited in order o enable the injured party to secure ridress is not one susceptible of an easy ansver. It may be useful to list a few inscanes where the nature of the dministrative act has been characterised as a sanction. ln Dame Haurau C.E. a July 936 Rec. p.743) a sanction was found to arise. from the exclusion of a pupil.' 5) See above

17 -- J _ 7 from a school; swlarly in Gilles C.E. 0 February 960 Rec. 'p.98) though n the facts in the latter casethere was no relief); so too in Camard C.E. 20 June 947 Ree. p.276) from withdrawal'of per- : mission to run a cine; n Ligue pour la protection des re8' ' -' -- ' j.- ' > abandonnées C.E. 3 October 952 hc. p';4b6)' from withdrawal of recogniti of publc utility; in Bontemps C.E. 5 Octobe4 Rec ) from withdrawa of agreement to set up afinancial.. establishment; in Ministre de l'intérieur c. Rohmer C.E. 8 January 960 Rec. p.2) from being forbidden to act as a business agent / / / in Alsace-Lorra. 6) Others bave been witbdrawal of approva Qf a sanitary establishment for children in Association 'La ChaumUre des Pastourelles C.E. 7 January 955 Heco p.l); C&quaDt C.E. 4 January 955. ReJ. p.2 7). withdrawa of approva of a hoi' camp; Chapon C.E. 2 January 956 Ree. p.473) withdrawa of Resistance dal; Union Syndicale des ouvriers metaurgistes de la Î egion parlslenne C.E. 3 February 959 Rec. p.ll9). withdrawa of ': /ecognition as a centre for profe88ioal reclassification af'ter a pôiticai strike As we have seen it is JIear that when the action taken is of a 'ct discl'plinan nature tle/iinciple 0 will appy aince there is held to be a sanction but as some of the exampes indicate. the effect l of the principle has been extended. 7) takes the view that. a measure takthe character of a- sanction when there i8 a desire to punish a transgression perpetrated by the person against. ; whom the measure is taken. e meaning of thistis carified by the / words of Commissaire du' gouvernement Braibant in Ministre de l'intérieur c. Rohmer C.E 8 January 960 Rac. p.2) whih are i 6) But see Birr C.E. 9 December 924 Rec. p.033) for a directiy-contradictory decision. 7) 953 E.D.C.E p.62.

18 8 r-. worth quoting. Sanctions are of an essntially repressive nature. They proceed from an intention to punish l.nfringementithjl;' precise reulstio or of principles of professional c!th In principle they take on a' personal character. 8) of a More precision than this i5 probably not feasible. The next logieal step would no 'i';[ doubt be an attempt ta deflne repessivell. but none of the authorities seem ta have essayed sueh a task and indeed àny definition beyond a certain degree of generality woul impose excessive limitations 'on the flexiblity of the law. sa neeesssry to this area Similar commnts are necessary in relation to any attempt to define further the serious effect' of the sanction. Unless the steps taken by the administration entail' su;ficiently serious consequences for 'the aggrieved party he will be'unable ta rely on the protection of the principle of droits de la défence. Again pecision as ta the degree of seriouaness required ia impossible and unnecessary:-'the judge. it is felt has to be.left an exténsive r i8cretionary power; such matters as the effect of the decision in the particular case on the particular individual will determine his decision. The other side of the coin la effect of the action taken no matter how serious the ular individual he will be unable' ta have recourse to of the principle if the action tken i5 not regarded as ha character of a sanction. Bence the Conseil d'état refused to d the protection of the 8) See further on this Ruzie D. 96 Jurisprudence p. 9. The _:-- notion that the steps takén: in r to be regarded as a sanction must have beên taken on ersonal cqnsiderats - ia of course the corollary of non-applicability o IIdroits de la défence where the asure waa taken for reasns of general interest as l'dsed below. - f

19 9 protection of the principle ta indiviùualsbanned from racecourses '-' as undesirables Cauderatz C.E. 5 December 947 Rac. p.456); or to a foreigner whose decree of naturalisation Had been revoked Abonico C.E. 23 Oecember 949 Rec. p.572)'; or for refusais or withdrawals of permissions given in the famewjk of economic legisation - f. Soci't B4arn.Use pour la recherche erc. C.E. 8 May 946) t or the c0sing of pùbjc house Dames Hubert rpelle C.E. Decmher t flit- t 946 Rec. p.300) as these acts were not règarded as sanctions. - j..-l''' There are variou8 classifications of situations where the act 40ne r appears to be a sanction but ia not considered ta be such hy the case law. The fo0wng are the main exampls of these 'classifications. Where the adminisétion ossesses a di retionary power of 'l : l' J '... 9) h h d appreclatlon t ere s no requlrement t at t e aggrleve party receive the benefits of a contraditory proceur Examples of this are the refusai of the Minister to allow an educational ' establishment to receive pupils holding-bursaries;ministre de l'education Nationale c. École de chirurgie dentaire etc. C.E. 29 June 960'Rec. p.426) and the dismissal of probationary civil servants judged unsuitable for establishment at the end of their probation where the appreciation of the probationer's suitability /./--. for establishment or dismdssal at the end of the probatiowas not a matter for the Conseil d'tat: Lesage C.E. 27 April 960 A.J.D.A ) and the refusal of a woking icenëe to a soiety of deferred credit Union Mutuelle Immobilière C.E. 5 July957 Rec. p.484). / 9) Se Puispye <C.E. 962 A.J.D.A.> p.8). Although the case law does not make this very clear the discretionary -power of appreciation seems to arise in cases where for policy reasons the administation has the power of exclusive determination unless'presumably these were for example a flagrantly unwarranted act a0wing recourse to be had to d'tournement de - pouvoir). This may be expressly stated by statute or implied in a articular contt. Beyond thi$; any rationalisation ia e%tremely difficult. '

20 . 0 There are also administraive aets whieh although affeetifig f individual situtionll are justified by reason of the general ' interest without its being neeessary to allow a hearing to the. affectéd party. This rule finds its elearest expression in the case of Dame Cozie-Savoure C.E. 20 February 953. lrée. p.86). this invoved the.withdrawa without a hearinof a licence of a dispenàary by any fact. whieh was held to be justified as it was not motvated.. 20) personal to the affeéted party. Indeed the reason was thatthe allocation f the licence was iega as t exceeded the number of licences 'permiùed by statpte. J:' Connected to this is perhaps the major exception ta the applieability of the principle of droits de la dfence in a situation. often involving an apparent ;anction; lindivual policy measures 'where tqe deeision taken i8 regaided by the ourt as baving been taken on policy grounds. Thedespite harm Jone to indiviâual itrestsrindividuai freedomb the prineiple will not appy. 2) '-./ This can be seen in a line of cases starting from Dames Hubert et Crpelle C.E. Deeember 946 Ree. p.300) which concerned the cng of a public house. The Conseil d'état stated thât in view of. the fact that the deeision eomplained about had the eharacter of a poliey measure made for the purpose of preserving order health and public moralityt in the absence of statutory requirements there was no dut Y to give the aggrieved parties the opportunity to present their side of the case. Other examples include tn/expulsion froid 20) See 8) See a80 Albonico C.E. t3 December 949 Rec. p.s72) 'Collin C.E. 27 April 953 Rec. p.97) Borel C.E. 23 Oetober953 Rée. p.453). ' 2) -For cr. icism of this t see Monge 956 D. p.23.. A -.'

21 .f Indo-China df an individùa jdgë'd 'te) -be a r anger to publie security '.Àndréani C.E.: lq DecinbtJ954 Rec. p.656) )lld poliey measures :0aien' by. vipe'f 'the ste of emegecy i Algeria' insuted by - -- ':: :. - the law of 3 April 95: p.590). Dame Bourokba CE. 6 DecembeJl95S Rec. 2/2) P l' '. hme o ey measures are not pwl Dts not aken 'in consideratio of the person' against whom the have a deleterious effet. but are measures taken in the general ioterest. The individual affeeted is onl indirectly envisaged unlike the situ- '. ation where discipunary measures are taken specificahy against an. individual for beytid bim it is public-- arder which lootivates the a:ision. A loorerecent example concerns the presidential decree of 2 j June 968 whih pronouneed the dissolution of eleven left-wing movements. Seven of these bodies sought before the Conseil d'ttat to have the de cree insofar it pertaineq to them) annuled. 23) This ) ; attempt met in ail but two cases 24) with failure in the deeision of the Assembly of 2 July 970 on the basis that the measures were taken in order to main tain public arder and that the principle of droits de la qéfence did not apply in such situations. The hw of 0 January 936 which constituted thele'gal base of the decree was eearly a polièy stâtute conrned as it was with giving the public authorities the power. to re-estabr{'sh or maintain public order. <- 22) See aso Forestier C.E. 2S January 957 Rec. p.60) Laboratories Gei{Q' C.E. 25 April 958 Ree. p.236) Ministre de la Sante publlque c. Prat-Flottes C.E. 2 June 959 Ree. p36). c 23) Regulations'such as thh decree) falling within Article 34 of the 958 Constitution are tequired by the Conseil d'etat to conform with both statute and the general principles of law. The Conseil d'état does not' however have the power to question the constitutionality of a duly enacted and promugated' statute. See Nicholas 970 Public Law 25). ' 24) For the exceptions see Dorey Stobnicer C.E. 2 July 970 l?ec. p.s04). This vas 'because they h'ad not rovoked armed 'demonstrations in the streets or 'intended force against tbe repubican form of govemment whièh were requirements of the statute. '.

22 2 A'majo difficulty bere s preented in the que st fora factor diatinguishing a policy measurel'fi a san'ction for' he protection afforded ta 'an aggrieved party will be non-existent in the former. case and as we shall see fairly extensive in the latter case. ]. A ' typial situation wbich. appeara to offer a boice 'is Verot- C.E.. 5'y?50 Rèc. p. 63) where ;;e withdra.wal of approval f an architect could be seen ap a repression of - as a sanction involving the protecion ) > professionai mistake of the principle) or as done with the oject of saferding the interests for which the Hini.ter of Reconstruction whose decision it was) is responsible -- r- ;;'' and bence a poliey deciaion not requiring a contradictory procedure. 25)- AIJ Commissaire du Gouvemement Braibant makes cear in bis con cl lus ions in Ministre 2e 'l'interieur c. Rohmer et Faist C.E. 8 Ja ary 960 Rec. p.2) it is only afte analyaing the reasons for tbe a 'nistrative deci;ion in.each casi that it ls permisjible to make a pronouft<g6liiiet a8 to its nature. the samê administrtive / measgre may on tbe o'ne band stimes have the character of a sancti or on the other band be manifestation of a discretinary power; there also tbe characterisation issubordinated ta an examination of the conditions in wbieh it intervened. In the.case of licences or permission-to carry on an activity ' a distinction is drawu between the witbdrawal of a licence and the refusal of a lience. In the former case tbe principe of drôits r de la d'fence ba.s to be observed ainée 'Î'ompier-Gravier Ç.E. 5 May 944. R.D.P. p.2si) This may be illustrated by suell cases as École de Commerce de Batia C.E. -9 October 956. Rec. p.657) which 25) In tbe instance ie was held to be a sanction taken as a disciplinary measure to puni sb him for his bahaviour during the occupation;

23 r l'. ' - involved the vithdrawal of State recognition of a tecbnical IIchool. 26) The con'trary Û true where tne action is taken for policy reasons as in Socit Laboratoires Geill C.E. 25 April 958 Ree. p.236) wbere a pharmaceuical permit was withdrawn for reaaons of public health. In the latter case the principle does not apply in the absence of statutry-provision. as the act done doe. not pre.et the charaeter of a sanction. Sucb was Union Mutuelle immdbililre' C.E. 5 July 957 Rec. p.296) where a-request fqr permission to function made by a society of deferred credit was-turned down. HowoQt p. ever in Dame Ruard C.E 4 May 962 Rec. p.296) on reasonably «/ h' <II similar fcts each case concerned an enterprise functioning normally -. J in the case.of Madame Ruard ahe was the head of a driving schoot which had to be authorised under new legislation) the Conseil Jtta'!. lfo' t. held that the princip le was aplicable. An important factor her as in Ministre de t'in.'rieur e. Rohmer' C.E. 8 January 960 Rec.- p.2) will' be the natureq'f the:'reaeons 'tivating the anistrative authoritywhich in that 'case allowed the court to determine whether or. ' the measures complained of had the cbaraeter of a sanction. ahould not however be taken as constituting an abandonment of the. - This! notion that whère a licence ia refuse-d tq.e principle of droits de la '. défeace doea not apply but as à. new baais from ic:h 'such cses will be considered. In the instant set it is quite possible that the Conseii d'état heeded thé advice of thé commissaire 'du gouvernement M. Chardeau) to take into consideration 0 tnat Mme. Ruard had beeu carrying on that pofes'8ion for several yeara and that the effect of theocontested dlciaioowas ta deprive ber of a right whicb she had previously poasels.ed u 26) 9 See a80 Ministre de l'education natiale c. École dentaire francaise C.E. 9 June 960 Rec. po-426) and tjtilon syndicale des ouvriers metallurgiate. de la region parisi-enn--e--c.e.3- '.bruary 959 Rac. p.9).

24 4 - A final situation where an aggrieved party will not be allowed - : to avail himaelf of the 'protection of the principle ia when he has # placed himself in a position irreconcilable with the exercise of his functions when these furictiona eompris functioning of the a participation in the The case law here has developed trom stdltes Demoiselle Minaire C.E. 2 October 937 c. p.843» ') to situations where public servants adopt an attitùde incompatible -. - '- <ifllth their occuption as in Gicquel C.E. 2 April 950 Rec. p.225). 27) nidon of the righ to strike in the Preamble ta the 958 Constitution. lt ia time that the scope has been somewhat limited sincel the recogé' However one clear situation bere it stil applies i where a public set:vant abandons his post without good reason. In 'order therefore for the principle of droits de la dfence ) to apply there must have been an act with the character of a u.:; c._ sanction of a certain seriousness taken o and not being a policy measure. personal considerations As we have seen a poicy measure involves motives of the 'preservation of public order publialth l 0:' security or evlen it -rias argued by couml.ssaite du ouvemement Bertrand in Krivine et Frank C.E. 2r July 970 Rec. p.499) a theory of exceptional circumstances justifying derogations from thè rules of. procedure though in the case cited this was not taken up '.. by the Conseil d'état). We have now to consider just what these droits de la défence cdnsiat of; what is 'thé nature of the protection afforded to an. individual who is entitled to rey on the benefit of the principle..'. l The Conseil d'état concluded in C.E. 24 July 946 Rec. p.2ll) th-at the aggrieved party was not put l.n; a position where he W8S 27) Thi. case involved a refusai o a publjc servant ta witb a-decision assigning him to work in Coutances havina proviou.ly b.en eœplqr0i in Saint-Kalo. comply he

25 5 i ae ta present his defence effectively before'e competent -. authorities and hence decided in his favour. Effectively is ).' ; the key ward here for its interpretationby. the Conseil a'ftat bas provided the basic content of the principe.28). - Firstly the aggrieved party bas the right ta be informed that.a sanction is evi8aged against him If he is not told then the Conseil-d'ttat will annul the act jone.contrary to his interests as in Pioro C.E. 3 Juy 9';;7 Rce:. p.43s) where four coidmunist mayors J. and tliènty-nine deputy mayors were suddenly dismissed without s_ warning. If for legitimate reasons he cannat be found at his home address or if he ha moved house the Ad.mistraÙon must fnd him as in Demoiselle Grenier.C 22 January'hl94 7 Rec. p.24) 29) But if /tïe has made i-t -iosile fo the Adminitrilo to find him as in Demoiselle Roussillon C.E. 8 May 948 Rec. g.239) by leaving t). his lst own address and eaving no forwarding address then the 0 sanction taken ':cannot be impued for this reasoit' alone. If it is e:lear from the circud8tances that he was aware of the Administration' s ) - :.:. I.'.Jt..).-;Çt 'c;;t.::-- '9 notify. him of intentions for example if a de cree of-suspension has previosly been made then the Admin;s tration Js freed from its obligation: o. him this -must 'u in no doubt that a sanétion conerning 3 November 953 Rec. p.488). JO) him is proposed Gil0t C.E. AÏthough the Conseil 'd'tat does'not demand a formal communication of the proposed sanction such as a registered letter there are J ) 28) èe al80 De Robin C.E. 8 Januari 958 Rec. p ) Dri de la Forte C.E. 9 November.l47. Ree. p.428) d'amade C.E. 27 March 957 Rec. p.2ls). 29) seeajko Le Grontee eé.e. 27 January }954 Rec. p.sos). JO) See.J8o Sieur Francàis et Sieur Coudert C.E. 26 January 955 Rec-. p.660).

26 6 --/.tiimits to the informaity whi:ch is ba.ed on what hl rea80able - the partiular case 3) lt iij difficult to underatand why uae < should not be made of- the registered letter as a means of Ïrmit:in disputes. Such a letter-eoud also be useful i informing the ag- t. '--' grieved party hat his dossier if require) and also e grounds - of complaint were avalable on request for te latter neéd not at in present be made available less requested by the injured citizen. Se. Perefettini Ç.E. 0 July 935). The dossier must be œade available if a reevt tatute 80 proviaes in a case of this kind. 32).. Be is entited to reeeive ony the essential grodnds of complaint contained in the dossier those necessary in order for hito be able / to argue his caseeffectivey. a in Dumesnil C.E. 6 November Ree. p.256) which case -:s it clear that the sanction can only t be taken-on che basia of the. grounds of complaint whicb were com- icated. The communication may be written or verbal Association La Chaumière des Pastourelles C.E. 7 JanuaJ:Y 955 Rec. p.ll) l î l < which arguably carries informality too far. for in thease of a œerely vebal communication a failure of mery or a disagreement over the grounds of complaint said to have been communicad May. 'l. hinder an effeetie dèféûce. lrregularities in the means of co munication-may be waived if his defence sho that one'way or another he had owledge of ail tbe easenttal grouads of complaint. 3) 3) 32) On this. see 'Ministre de-l'a iculture c. Société de 'la Vienne C.E. 8 November 963 Rec. p.532 This is usually provided for. See article 65-of the law of o 22!pril '905 which has been devetoped to c;over al! public servants: and also the Consil d'etat has interpreted the statutes broadly and extended cheir benefitsto-anyone who -has any connection with the Administration. See Petetin C.E. 3 July 935 Rec. p.759) the doctor of the Minister of Laboqr although not paid by bim; and Pioro C.E. 3.July 957 Re. p.435) mayors and de put y mayors of Paris- arrondis.ements. See Berthet C.E.9 January 955)..

27 7 / It appears that in the absence of a precise text. the Conseil d'état allovs a wide power to the ni8tration todetetmine the Jo ' form of the defence. Usually this is carried out by the production of a memoir which willbe -8UJed ta the decidillg authotity anel should the case arise icated previoualy to any bodies whose consul tation is provided for. ' A matter involving delicate balances is that?0f the length of time that shoula elapse betweeh the notification that a sanction ia threatened and the sanction iuelf.' E88entally the affected pa-:.t:y must e had time to understand tn!! ramifications of the contj plated ction and to prepare his defence.eriously. lt ia difficult if nosvimpossible. ta be more specifie-than this for what constitutes suitable.iterval will clepenel on 8uch matters as the facts of the casé the form in'which the eomœunication vas.. -!D&de the nature of the growlde of eomplaint and of the defence raisad and ultimately the good sense of the court. Thre days. was regarded as suffcint in Muller C.E. 2 January 955 Rece p.4) and two yeara and nine mouths vas heu to be too long delay in '. Ministre de l'asieulture c. Societe de la Vienne C.E. 8 November 963 Bec. p.532) though nolmally of course the grounds for complaint vill be that the delay as tao Short)) d in Cohen.' C.E. '5 July 957 Rec. p.449) communication of the grounds of f'compntr:t the time of the hearillg was held to -.lbe sufficient on' the facts. Such cases serve tà dmonstrate.the futility of r. 34. In this case the Minister sent anotice to the Preaident of the Soci't6. an artificial inaemination)restablishmen.t lfsting various- breaches of regulation collllli.tted by the SociétE. He allowed a aonth within vhich these vere ta be remedied failïng which he would propose ta th. consultative comittee that the establiant he closed. ears and lime ldontha aft;er thia tbe Minister iàaued tji decree cloaing the establishment. lt was beld that thi. could not constitute tbe formal notice whicb sbould esay bave been accorded to the Prsident in order for him to present an effective clefence prial: to the opuatrion I;'of 'the sanction. 'lb. Hinbt.r.hould have lent a freah notice making it clear tbat';-. suc.tion vould he ta.bn idiatel d effectively. /

28 8 speculation. and empbasî8e the hoatility of the Conseil d'ttat to precise formulae wich would limit the flexibiity so necessary haré. The decision may only rest on the grounds of complaint / / communicated to the-affècted party and against which he was able to raise a defence..r If ne elements are revealed after the communication but belore the' decision they must be bught to his notice. s held in Richer de Forges C.E.26 July 947 Rec. p.3s7). A final question to be considered i8 whether or not the party / aginst whom a sanction is contemplated has the right to the assistance ot a lawyer. Article 6 of the decree of.'l0 April 954 Of states that lawyers perform thair functions without permission baing required before al jurisdictions and jurisdictional or diaciplinary bodies. This was interpret:ed in' Sieur Lacombe C.E. 4 May 962 Rec. p. 300) as follows: It could ueithr intend neither should it have the effect o'f allowing a lawyer to be present in the cases where the relevant statute excludes him. This was a '. restrictive interpretation; it did not provide for the presence of a lawyer bafere disciplinary bodies a a general rule but merely when individual texts did not exclude him. Moreover 'it left open / the question pf whether if tbe texts neither provided for nor 'excluqed the presence of a laer he was allowd ta act or note Happily this situation has been relieved to a large extent by. the decision in Ministre de l'agriculture c. Lacour C.E. 8 November { 0 C ' D. p.493). ln this case the Conseil d'état stated that the rule laid down by the decre scope except wiere the pesence of 0 April 954 was of general of a lawyer i8 incompatible with the very functioning of the jurisdiction or the bqdy' or is exciudad by statutory3s) di.positins goveming the intèrested 35) See 23)

29 9 parties. Against ChiS)itmay be ard that it is difficut to understand why the presence of a lawyer ahould disturb the functioning of a body given hat te-sanction proposed 8 likely to affect the interests of the party in a fairly serious'way an that the question whether such ad incompatibility exists or not ia to be left ô i judge is likely to cause uncertainty. The presence of a lsll)'er would appear to be a nce8sary safeguard both for the protection of his client and the respectability of the decision of the body in the vast majoritty of cases though there may be some bodies wh08 effective functioning depends on a degree of informality and whose procedures would be inhibited by the presence of a lawyer. t A difficult problem. which as yet remains to be fully resoved is whether the lawyer one admitted to the 'hearing has the right of access to his client's dossier. The Conseil d'état stated in Marcoulet C.E. 30 October 959 Rec. 'p.586) that civil servants ' reguated by the general civil service statute could authorise their lawyer to acquaint himaelf vith their dossier. Ybile admitting the ) /. ' right of the lawyer to ad. oral hearing and not merey ta be present Commissaire du Gouvernement Henry in Ministre de l'agriculture c. Lacour C.E. 8 Novembet D. p.493) 'c:onsidered36) that it was not iegal in the case of a non-civil servant to refuse to comuwncate the dossier to someone ocher'than the individua iq that thé sole fuaction of the communication of the dossier was ta perudt tbe interested party to asure himself chat it contained no itiî-fofei to the public service for ex8lljpe of poli'tical or a l' religioua arder. Agjlin it is arguable that despite this solid argument' there i8 no reason why Marcoulet should not be extended 36) See GuiS2n C.E. June 958 Rec. p.329).

30 20 to all public servants.37) Aa Hà.sire38) argue. this may be becauae the Conseil d'état finds itself torn between its dasire not to ignore the case hw and on tbe other band the wisb to facilitate the defence of affected partie ' Neve;thele.s outmoded case law i l bas been done away wlth befora now a lawyer is far more likely to be able to find item. favourable to his client in the dossier than is the client himself d the dossier may not be copied.:9) Indeed such a pt.ction b- seema a necessary factor in the right ta. ' the presence and aid of a lawyer. Hopefully the Conseil d'gtat will find a way to remedy this situation. Tbe Conseil d'état appears to a large extent to have developed a framework which provides for tbe balance so nece8sary in this area of tne lav between private rights and the public ihterest. - - The notion of contraditory - r- requirement bas beetposed procedure esseutially a jurisdietioal into the purely.administ'rative field. The interesta of good justice and good administration co in ci de in order to eliminate the risks of factuaî error 37)' The personnel Qf the administratonoin France can be divided into three categories. Initially a ditinction has to be drawn between agents publics and agents relevant du droit priv'''. The latter as their title suggests fall within 'the jurisdiction of private rather than public law. The criterion of 'L_> distinction is la participation directe de 'agent } 'edcutipn d'un service public. Sucb di.rect participation cçlnstitutes.an agent public. For example according ta Dame Mezerand T.C. 25 November 963) a help at a school would be an ifagent public if ahe took charge of the day nurser'y'an 'agent l'elevant du droit privé if her rôle was limited to cleaning and stoking the boiler. The fonctionnaire is a separa te Gategory of agents publics and is distinguishabe by his permanent occupation of a'permanent job and bis integration in an ad nistrative hierarchy. Thus for example probationary civil servants would be excluded but. N.B. Branger C.E. 3 December 97 D ) for a contrary yiew). js) Dalloz 964 p ) See Riaudiêre C.E. 3 February 952 Rac. p.68). l '.. '!