The Council of State. An overlook. Protecting individual liberties and fundamental rights Defending the general interest

Transcription

1 The Council of State An overlook Protecting individual liberties and fundamental rights Defending the general interest Ensuring the quality of public gouvernance R é p u b l i q u e F r a n ç a i s e

2 Jean-Marc Sauvé Vice-president Although the Prime minister has retained in theory the title of President of the Council of State, the Vice-President of the Council of State fully exercises this office in practise. Advising, judging and managing The Council of State advises the government on the preparation of governmental bills, ordonnances 1 and certain decrees. It also answers the government s requests for advice on legal matters and conducts studies both at the request of the government or on its own initiative concerning administrative or public policy issues. The Council of State is also the highest administrative jurisdiction it is the judge of last instance for cases regarding executive power, local authorities, independent public authorities, public administration agencies, or any other agency weilding public authority. By its double function jurisdictional and advisory the Council of State assures that the French administration complies with the law. It is therefore one of the essential components of the rule of law in our country. Finally, the Council of State is in charge of the general management of the administrative tribunals and the administrative courts of appeal. 110 governmental bills, 900 regulatory decrees, 300 non-regulatory texts examined each year. 1) mentioned in article 38 of the French Constitution of 4 October 1958

3 A session of the Public works section bringing together members of the Council of State and representatives of the government. The Litigation section in judgement formation cases are heard that represent a particular difficulty from a legal standpoint. Advising the government The Council of State exercises its advisory role to the government through five specialized sections: the Interior section, the Finance section, the Public works section, the Social section as well as the Administration section which was created in A rapporteur is assigned to gather legal documentation and study the case. The representatives of the ministries, who carry the title of Commissaire du Gouvernement, provide the Council of State with clarifications concerning the general scope of a text, the conditions of its elaboration and rationale for the choices made. The rapporteur then brings the case before the section where it is subject to examination by discussion and vote on any modifications carried out. In addition to these sections, the general assembly brings together all the councillors of State under the presidency of the Vice-President, who is necessarily involved in most governmental bills and ordonnances. Except in rare circumstances, the opinions of the Council of State are not binding, even if in practice they are largely followed by the government. Recently added to the advisory sections responsible for examining texts prepared by the government is the section of reports and studies which is in charge of preparing the annual report, coordinating the studies, keeping legal watch over European law and following issues connected to the enforcement of the Council of State s decisions. Also attached to this section is the international relations delegation that deals with the coordination of international cooperation taken up by the Council of State and the administrative jurisdiction, be it bilateral with many foreign jurisdictions or multilateral through international jurisdiction associations (The International Association of Supreme Administrative Jurisdictions, Association of the Councils of State and Supreme Administrative Jurisdictions of the European Union). Judging the administration Administrative tribunals hear disputes between a public body and a private party (e.g. individual, association, company) or between two public bodies. This competence covers many fields: public liberties, administrative police, taxes, administrative contracts, civil service, public health, competition rules, environmental law, urban and regional development, etc. As the highest grade of the administrative jurisdictional order, the Council of State is at the center of the relation between citizens and public authorities. Only an administrative judge can annul or reform the decisions taken by authorities exercising executive power, centralized or decentralized administrations and their agents, local authorities, or the public agencies placed under their authority or control. As the political and societal contexts have become increasingly complex, administrative disputes have likewise increased on average 10% per year over the past few years. Each year, 170,000 judgements in the administrative tribunals, 26,000 in the administrative courts of appeal and 12,000 at the Council of State.

4 A virtual image of the projected administrative tribunal courtroom of Toulon. The opening of the administrative tribunal in Nîmes. Managing the administrative tribunals and the administrative courts of appeal The Council of State is responsible for the management of 40 administrative tribunals and 8 administrative courts of appeal. To manage the administrative judicial corps, the Council of State is supported by an independent consulting body, the High Council of Administrative Tribunals and Administrative Courts of Appeal (CSTA). Presided by the Vice-President of the Council of State and composed of members of the Council of State, head directors of the central administration, elected representatives of administrative judges and three qualified persons, this body is called on to give a decision on the career management of administrative judges and all the statute and decree drafts concerning administrative jurisdiction. Through its mission and composition, the CSTA represents an important guarantee for the independence of administrative judges, who are irremovable. The management of court registry clerks is shared between the Council of State and the Interior Ministry. While the posts they occupy in the administrative jurisdictions come under the authority of the Council of State, these civil servants actually come from the préfectures or the central administration of the Ministry of the Interior. Finally, the Council of State oversees the management of the budget of the administrative tribunals and the administrative courts of appeal, including especially the allocation of resources for real estate investment and information technology equipment. A significant programme of rehousing, extension or renovation of jurisdiction facilities has been carried out for several years. Additionally, a modern information technology system to manage litigation cases has been set up in the administrative tribunals and the administrative courts of appeal. A HIGH QUALITY JURISDICTION To effectively ensure that administration complies with the law, the Council of State and the overall administrative jurisdiction keep particular watch over: - the unity, consistency and predictability of case law (jurisprudence); - the control over delays of judgement that have sharply dropped over the past decade; - the real and deep control conducted over the administration (the right to apply to the court in France is widely available); - the effectiveness of emergency procedures representing almost 10% of the cases; - the enforcement of decisions of the administrative justice.

5 Members at work in the Parodi Hall. A modern information technology system to manage cases in the Council, courts of appeal and tribunals. The members of the Council of State As the first corps within the French State, the Council of State counts around 300 members recruited by competitive exam or by external appointment (tour extérieur). Usually five posts of auditeurs are available each year to the highest ranked students of the National School of Administration (Ecole nationale d administration ENA). After four years, auditeurs are subsequently promoted to the level of maîtres des requêtes, and then to the rank of councillor of State (conseiller d Etat) after another twelve years. Promotion is tied in exclusively with seniority which affords an important guarantee of independence. Recruitment through external appointment accounts for one out of four maîtres des requêtes and one out of three councillors of State, which are chosen by the government from among high-profiled individuals outside the corps of the Council. A part of the nominations for the external way is reserved to members of the administrative tribunals and the administrative courts of appeal who are nominated by the Vice-President of the Council of State. Furthermore, the Council of State includes councillors of State in extraordinary service who are nominated for four years and who belong only to advisory sections. The external appointment and the extraordinary service provide the Council of State with a rich diversity of profiles and skills. Members are appointed simultaneously or successively to the Litigation section (last instance judge of administrative justice) and to an administrative section (legal advice to the government). Certain colleagues choose to work outside the Council of State, for example by assisting the President of the Republic, the Prime Minister or other members of the Cabinet. They can also be placed on secondment to take over important posts in the French administration. Certain councillors of State sit as national judges in the highest international jurisdictions (e.g. the International Court of Justice, the Court of Justice of the European Communities, the European Court of Human Rights). Finally, certain colleagues request to be placed on temporary leave especially in order to take up posts in the private sector for a limited time. Assistants and clerks Services for users (reception, information), general administration, human resources (training, social benefits), budget and financial management (management control), information technology systems and networks, facilities and technical logistics, documentation resources, communication, etc. The active members of the Council of State are supported daily by 350 agents dealing with registry and administrative duties whereas 30 years ago there were only 150. Since then, the number of consultations and disputes treated by the Council of State have more than doubled and it manages all the administrative tribunals and administrative courts of appeal, i.e. a total of almost 2,500 judges and civil servants.

6 Conseil d État 1 place du Palais-Royal Paris cedex 01 www. conseil- etat. fr Direction de la communication du Conseil d État - Conception graphique : Desgrandchamps N imprimé en France.