1. Comparative Law Spring 2003 Professor Susanna Fischer FRENCH ADMINISTRATIVE/MISCELLANEOUS COURTS FRENCH CIVIL PROCEDURE March 18, 2003

2. Reforms for the Conseil d’Etat By 1953 there was a large backlog of cases for the Conseil d’Etat so it was reformed to reduce waiting times. Other first instance administrative courts were created: tribunaux administratifs But the amount of administrative litigation soared so that the backlog of cases was back up by 1987. A new intermediate tier of administrative courts, the Cours administratives d’appel, were created. Also a filter committee was created to weed out hopeless cases. Has the problem of delay been solved?

3. Conseil d’Etat How many members does the Conseil d’Etat have? How are they trained? How is the Conseil d’Etat organized?

4. Conseil d’Etat How many members does the Conseil d’Etat have? 300. Prime Minister is the president How are they trained? Usually at ENM. See http://www.justice.gouv.fr/anglais/minister/e nm.htm#INFO http://www.justice.gouv.fr/anglais/minister/e nm.htm#INFO How is the Conseil d’Etat organized? There are 6 Divisions, of which one is litigation and 5 are administrative. The litigation division has 10 sections. Each has a president. Members are part of both a litigation and an administrative division. This is controversial. Why

5. European Court of Human Rights The ECHR found that Luxembourg’s Conseil d’Etat violates Art. 6(a) of the European Convention, which provides that there is a right to have cases heard by an impartial and independent court.

6. What does the Conseil d’Etat do?

7. Advisory functions – advises before decrees are adopted or ordonnances are made or government bills adopted by Cabinet (see 1958 Constitution Arts. 37-39). Also advises government more generally. Judicial function – review administrative acts. Generally acts as an appellate court on points of law, but hears a small number (3000) of cases at first (and last) instance like applications for judicial review of decrees of President/PM or ordonnance, litigation about regional elections, cases about senior civil servants. Also hears some appeals from Cours Administratifs d’Appel in limited areas.

8. Administrative Courts Tribunaux administratifs There are 35 of these courts of first instance, 27 in France. Each has a President and at least 3 judges (conseillers) Larger courts (like Paris) are divided into divisions Most cases were brought in Paris because of the jurisdictional principle that found jurisdiction where the authority being reviewed had its legal base, which was usually Paris. There have been efforts to decentralize by changing the jurisdictional rules

9. Administrative Courts How long is the average waiting period for an administrative case to be heard? Do the administrative courts do anything apart from adjudicating administrative litigation? How long is the average waiting period for an administrative case to be heard? 22 months Do the administrative courts do anything apart from adjudicating administrative litigation? Limited advisory role

10. Administrative Courts of Appeal Created in 1987. There are now 6 of these courts: in Bordeaux, Lyon, Marseilles, Nancy, Nantes, and Paris. President is generally a member of the Conseil d’Etat. Each court has 2-4 divisions. 5 judges will hear a case, although 7 judges may hear a more important case Hear most appeals on points of fact and law against decisions of the tribunaux administratifs. Small advisory role.

11. Specialist Administrative Courts Give some examples of specialist administrative courts.

12. Specialist Administrative Courts Give some examples of specialist administrative courts. There are about 50 of these. An example is the Audit Court (oversee parliamentary budget) and the Regional Audit Courts (that oversee financial management of local government authorities) There are also specialist administrative courts dealing with immigration, public finance, social welfare payments, professional discipline etc..

13. Comparing Ordinary and Administrative Courts What are the main similarities and differences between the ordinary and administrative courts in France?

14. Comparing Ordinary and Administrative Courts What are the main similarities and differences between the ordinary and administrative courts in France? The hierarchy of courts has become similar, but the right of appeal may be more limited in the administrative court system. There is always a right of appeal on the law at least in the ordinary court system, whereas some administrative cases may not have that right if heard at first instance by the Conseil d’Etat.

15. Tribunal des conflits (Jurisdiction Disputes Court) What does this court do?

16. Tribunal des conflits (Jurisdiction Disputes Court) What does this court do? Determines whether an administrative court or an ordinary court should hear a particular dispute. How does it do this? Court comprises Minister of Justice, 3 conseillers d’Etat, 2 judges of Cour de Cassation and 2 other judges elected by the others. Serve 3 year term. No appeal (either appel or cassation) possible. Hears about 40 cases per year.

17. Constitutional Court Conseil Constitutionnel: What does this court do? Who are the members of the court?

18. Conseil Constitutionnel The Constitutional Council or Conseil Constitutionnel, is in charge of the constitutional review of certain statutes, standing orderer of Parliament and treaties. before they are enacted and of the control of national elections (Parliament, President of the Republic, Referendum).Conseil Constitutionnel The Constitutional Council has 9 active members: 3 appointed by the president, 3 by the president of the National Assembly, and 3 by the president of the Senate. Former presidents are also life members.

19. Contrast In Germany, the constitutionality of Parliamentary statutes can be reviewed after they are promulgated; in France, they cannot be. What is the position in the U.S.? Which approach makes more sense to you?

20. Haute Cour de Justice What was this court originally designed to do, and how was it changed and why?

21. Haute Cour de Justice What was this court originally designed to do, and how was it changed and why? The court was established pursuant to arts. 67 and 68 of the 1958 Constitution to try the President of the Republic for high treason and members of the government for offences committed while in office. But no government scandals (though many existed) were brought before the court, so it was reformed to limit its jurisdiction just to treason committed by the president of the Republic. A new court was created, the Cour de justice de la République, to try government ministers.

22. Haute cour de justice Has this court ever tried a case against a President?

23. Cour de Justice de la République How many judges does this court have?

24. Cour de Justice de la République How many judges does this court have? 15 in total – 3 from the Cour de Cassation and 12 Members of Parliament (half from National Assembly and half from Senate, elected by secret ballot by peers). What was the first case heard by the Cour de Justice de la République? Was this case a travesty of justice?