France France (), officially the French Republic ( ), is a country primarily located in Western Europe. It also comprises of Overseas France, overseas regions and territories in the Americas and the Atlantic Ocean, Atlantic, Pacific Ocean, Pac ...

, the Council of State (french: Conseil d'État, links=no, ) is a governmental body that acts both as legal adviser to the

executive branch The Executive, also referred as the Executive branch or Executive power, is the term commonly used to describe that part of government which enforces the law, and has overall responsibility for the governance of a state. In political systems ...

and as the

supreme court A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...

for administrative justice. Established in 1799 by

Napoleon Napoleon Bonaparte ; it, Napoleone Bonaparte, ; co, Napulione Buonaparte. (born Napoleone Buonaparte; 15 August 1769 – 5 May 1821), later known by his regnal name Napoleon I, was a French military commander and political leader wh ...

as a successor to the King's Council (''Conseil du Roi''), it is located in the

Palais-Royal The Palais-Royal () is a former royal palace located in the 1st arrondissement of Paris, France. The screened entrance court faces the Place du Palais-Royal, opposite the Louvre. Originally called the Palais-Cardinal, it was built for Cardinal R ...

Paris Paris () is the capital and most populous city of France, with an estimated population of 2,165,423 residents in 2019 in an area of more than 105 km² (41 sq mi), making it the 30th most densely populated city in the world in 2020. Si ...

and is primarily made up of top-level legal officers. The Vice President of the Council of State ranks as the ninth most important

civil servant The civil service is a collective term for a sector of government composed mainly of career civil servants hired on professional merit rather than appointed or elected, whose institutional tenure typically survives transitions of political leaders ...

in France. Members of the Council of State are part of a Grand Corps of the French State (''Grand corps de l'État''). The Council of State mainly recruits from among the top-ranking students graduating from the École nationale d'administration.

Composition

A General Session of the Council of State is presided over by the

Prime Minister A prime minister, premier or chief of cabinet is the head of the cabinet and the leader of the ministers in the executive branch of government, often in a parliamentary or semi-presidential system. Under those systems, a prime minister is ...

or, in their absence, the

Minister of Justice A justice ministry, ministry of justice, or department of justice is a ministry or other government agency in charge of the administration of justice. The ministry or department is often headed by a minister of justice (minister for justice in a ...

.Code of administrative justice, article L121-7
/ref> However, since the real presidency of the Council is held by the Vice-President, the Vice President of the Council of State usually presides at all but the most ceremonial assemblies. This is also done for obvious reasons pertaining to the separation of powers. Other members of the Council include, in decreasing order of importance: * Department heads (''Présidents de section'') *

Councillors A councillor is an elected representative for a local government council in some countries. Canada Due to the control that the provinces have over their municipal governments, terms that councillors serve vary from province to province. Unl ...

ordinary (''Conseillers d'État ordinaires'') * Councillors extraordinary (''Conseillers d'État en service extraordinaire'') * Masters of Requests (''Maîtres des requêtes'') * Master of requests extraordinary (''Maîtres des requêtes en service extraordinaire'') * Senior masters (''Auditeurs de première classe'') * Masters (''Auditeurs de deuxième classe'') The Vice-President of Council of State is appointed by Order-in-Council on the recommendation of the Minister of Justice and is selected from among the Council's department heads or councillors ordinary. Division heads are similarly appointed and selected from among the councillors ordinary. Councillors ordinary, masters of requests, and senior masters are appointed based on seniority from the preceding rank. Appointees from outside the Council may include administrative law judges or may come from outside the justice system. Masters are recruited from among the graduates of France's National Administration Academy. The Council sits in the Palais Royal located in

. The Council is divided into 7 divisions: * Administrative Claims (''section du contentieux'') — see below. * Report and Studies (''section du rapport et des études''): writes the annual report, conducts studies and helps to oversee judgments and verdicts are carried out. * Finances (''section des finances''), the Interior (''section de l'intérieur''), Welfare and Social Security (''section sociale''), Public Works (''section des travaux publics'') and Administrative Issues (''section de l'administration'', created by a March 2008 order) review any and all Cabinet-issued orders and statutory instruments and examine and sign off on all Orders of Council (''décrets en Conseil d'État''). These reviews, though mandatory, are not binding. The Council of State also studies legal issues and problems brought before the Cabinet. In addition, it is responsible for carrying out administrative court inspections.

History

The Council of State originates from the 13th century, by which time the King's Court (''Curia regis'') had split into three sections, one of which was the King's Council (''Curia in consilium'', later '' Conseil du roi''), which too broke up into three distinct parts: the ''Conseil secret'' 'Privy Council', the ''Conseil privé'' 'Private Council', and ''Conseil des finances'' 'Council of Finances'. Reorganized under

Louis XIV Louis XIV (Louis Dieudonné; 5 September 16381 September 1715), also known as Louis the Great () or the Sun King (), was List of French monarchs, King of France from 14 May 1643 until his death in 1715. His reign of 72 years and 110 days is the Li ...

into two major groupings, the ''Conseil d'État privé, finances et direction'' that was the direct ancestor of the Council of State. It brought together legal advisors and experts to advise the King on claims against the Crown. Officially established in 1557, this was the largest of the King's Councils made up of France's High Chancellor, lords of peerage, Ministers and Secretaries of State, the Comptroller-General, 30 Councillors of State, 80 masters of requests, and the

Intendant An intendant (; pt, intendente ; es, intendente ) was, and sometimes still is, a public official, especially in France, Spain, Portugal, and Latin America. The intendancy system was a centralizing administrative system developed in France. In ...

s of Finance. The judicial portion of the Council was known as the ''Conseil d'État privé'' or ''Conseil des parties''. The kings, who had the power to dispense justice and hand down judgments as the court of last resort, delegated this judicial power to royal courts and

parlement A ''parlement'' (), under the French Ancien Régime, was a provincial appellate court of the Kingdom of France. In 1789, France had 13 parlements, the oldest and most important of which was the Parlement of Paris. While both the modern Fr ...

s. But the French king still retained the power to override them at will. Specifically, French kings maintained their privilege to decide major issues and hand down judgements when administrative acts were in dispute. The judgments of the King's Council of State were regarded as being issued under the King's residual proper jurisdiction (''justice retenue''), that is, the sovereign's reserved power to dispense justice in certain matters. Legal advisors also assisted the King in developing new laws and, by delegated jurisdiction, directly exercised sovereign rights (''jura regalia''). ''For more on French government administration during the Old Regime, see Ancien Régime in France.'' The current Council of State was established by the

French Consulate The Consulate (french: Le Consulat) was the top-level Government of France from the fall of the Directory in the coup of 18 Brumaire on 10 November 1799 until the start of the Napoleonic Empire on 18 May 1804. By extension, the term ''The Co ...

government in 1799 as a judicial body mandated to adjudicate claims against the State and assist in the drafting of important laws. The

First Consul The Consulate (french: Le Consulat) was the top-level Government of France from the fall of the Directory in the coup of 18 Brumaire on 10 November 1799 until the start of the Napoleonic Empire on 18 May 1804. By extension, the term ''The Co ...

(later

Emperor An emperor (from la, imperator, via fro, empereor) is a monarch, and usually the sovereign ruler of an empire or another type of imperial realm. Empress, the female equivalent, may indicate an emperor's wife ( empress consort), mother ( ...

) presided over Council sessions, and the Council performed many of the functions of a

Cabinet Cabinet or The Cabinet may refer to: Furniture * Cabinetry, a box-shaped piece of furniture with doors and/or drawers * Display cabinet, a piece of furniture with one or more transparent glass sheets or transparent polycarbonate sheets * Filin ...

. After the

Bourbon Restoration Bourbon Restoration may refer to: France under the House of Bourbon: * Bourbon Restoration in France (1814, after the French revolution and Napoleonic era, until 1830; interrupted by the Hundred Days in 1815) Spain under the Spanish Bourbons: * Ab ...

, the Council was retained as an

administrative court An administrative court is a type of court specializing in administrative law, particularly disputes concerning the exercise of public power. Their role is to ascertain that official acts are consistent with the law. Such courts are considered s ...

but without its former prominence. Its role was more precisely defined by an 1872 Act of Parliament. The Council of State was originally a

court of first instance A court is any person or institution, often as a government institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accorda ...

and last instance, but since the creation of the tribunaux administratifs in 1953 and the cours administratives d’appel in 1987, it has increasingly become a supervisory court, with a role as an appeal court in a small number of areas. The Council of State hears appeals on questions of law from lower courts and gives advisory opinions on the law on reference from lower courts. Below it are 42 administrative courts of first instance (''tribunaux administratifs'') and 8 administrative courts of appeal (''cours administratives d'appel'').

Advisory role

Certain types of statutory instruments must be examined by the Council and receive its advisory approval, including: * All draft legislation proposed by non-parliamentary members and prior to being introduced before Parliament. * Orders-in-council, signed by the Prime Minister and cabinet ministers; any such order is a form of delegated legislation outlining how a statute or act of Parliament is to be carried out or put into effect. Typically, a statutory law will authorize, prescribe, or prohibit an action defined in broad terms and require a government order to define its scope and application. The Council's advisory workload is divided between its administrative sections with respect to the ministry or department affected by the government order.

Administrative justice

The Council acts as the supreme court of appeal for administrative law courts. It hears both claims against national-level administrative decisions (notably orders, rules, regulations and decisions of the executive branch) and appeals from lower administrative courts. The Council's decisions are final and unappealable. While strictly speaking the Council of State is not a court, it functions as a judicial body by adjudicating suits and claims against administrative authorities. Plaintiffs are represented by

barrister A barrister is a type of lawyer in common law jurisdictions. Barristers mostly specialise in courtroom advocacy and litigation. Their tasks include taking cases in superior courts and tribunals, drafting legal pleadings, researching law and givin ...

s drawn from the Senior Court bar whose members are licensed to argue cases before the Council and

Court of Cassation A court of cassation is a high-instance court that exists in some judicial systems. Courts of cassation do not re-examine the facts of a case, they only interpret the relevant law. In this they are appellate courts of the highest instance. In th ...

; any such barrister bears the title of Counsel at Senior Court (''Avocat aux Conseils'').

Original jurisdiction

The Council hears cases against decisions of the national government, notably government orders, ministerial rules and regulations, judgments handed down by committees, commissions, and boards with nationwide jurisdiction, as well as suits concerning regional and EU electoral matters. The Council has judged that such acts are restricted to: * relationships between the executive branch and the

legislative branch A legislature is an assembly with the authority to make laws for a political entity such as a country or city. They are often contrasted with the executive and judicial powers of government. Laws enacted by legislatures are usually known ...

, e.g., whether a bill should be submitted to Parliament; * acts that are part and parcel of

foreign policy A state's foreign policy or external policy (as opposed to internal or domestic policy) is its objectives and activities in relation to its interactions with other states, unions, and other political entities, whether bilaterally or through ...

. In this role, the Council provides a powerful check on the actions of the executive.

Appellate jurisdiction

The Council of State has

appellate In law, an appeal is the process in which cases are reviewed by a higher authority, where parties request a formal change to an official decision. Appeals function both as a process for error correction as well as a process of clarifying and ...

jurisdiction over local election judgments from any of the 37 administrative courts. It acts as a final

court of cassation A court of cassation is a high-instance court that exists in some judicial systems. Courts of cassation do not re-examine the facts of a case, they only interpret the relevant law. In this they are appellate courts of the highest instance. In th ...

for decisions originating from any of the eight appellate administrative courts, meaning that it hears cases in which the plaintiff argues that the appellate court ignored or misinterpreted the law. Should it decide that the original appellate court took the wrong decision, the Council of State will in most situations transfer the case to a different administrative court of appeal, to be re-judged. However, in the interest of swifter decision-making and correct interpretation of the law (''bonne administration de la justice''), it also has the right to rule on the case without transferring it, thus acting as an appellate court in last resort (''jugement en dernier ressort'').

Court procedure

Like nearly all French courts, the Council's court system is inquisitorial, and proceedings are initiated by a statement of claim detailing the factual background of the case and why the

appellant In law, an appeal is the process in which cases are reviewed by a higher authority, where parties request a formal change to an official decision. Appeals function both as a process for error correction as well as a process of clarifying and ...

should be granted relief. The Council then begins a formal investigation, asking the appellee, i.e., the government or a government agency or office, to satisfy the Council with a detailed statement of defense. Burden of proof does not lie with the

plaintiff A plaintiff ( Π in legal shorthand) is the party who initiates a lawsuit (also known as an ''action'') before a court. By doing so, the plaintiff seeks a legal remedy. If this search is successful, the court will issue judgment in favor of t ...

; instead, the Council decides whether or not the appellant has cause to bring suit and whether the government was in error if information provided by the appellant is sufficient to locate previously undisclosed evidence. Of course, both parties may submit additional pleadings and information until the case is ready for final judgment. The formation of judgement depends on the importance of the case, for the

jurisprudence Jurisprudence, or legal theory, is the theoretical study of the propriety of law. Scholars of jurisprudence seek to explain the nature of law in its most general form and they also seek to achieve a deeper understanding of legal reasoning ...

and the interest of the law. All of the formations belong to the Administrative Claims department. The smaller cases (without new legal issues) are treated by one chamber (known as under-departments, i.e. ''sous-section'', prior to their reorganization in 2016Loi n° 2016-483 du 20 avril 2016 relative à la déontologie et aux droits et obligations des fonctionnaires, Article 62, §16
/ref>). There are 10 chambers. The bigger cases are attributed to united chambers (''chambres réunies''), a configuration made up of two chambers, although, for some important fiscal cases, three or four chambers can be concerned, coalescing into an ''ad hoc'' formation, the "full fiscal" (''plénière fiscale'') chamber. The more important cases are for the ''administrative claims department'' judgement formation (''Section''). Only the very important cases, with hard, new and/or important legal issues are concerned. There are about between 20 and 40 cases per year into this specific formation, which includes the president of the ten chambers, the three assistant-presidents of the administrative claims department and the president of the department, which, in addition to the magistrate responsible of the investigation about the case, reaches 15 members. Conseil d'Etat - salle de l'assemblée générale

Conseil d'Etat - salle de l'assemblée générale

The major cases are resolved by the ''administrative claims assembly'' (''Assemblée du contentieux''). All the presidents of departments are there, under the presidency of the Vice-President of the Council of State. Less than 10 cases per year are concerned. All the cases, even the ones eventually resolved by the ''Assemblée du contentieux'', are first studied by a chamber. Although, as is the general rule in French administrative law, the procedure is written, one of its highlights are the oral ''conclusion'' of the ''rapporteur public'' (public magistrate), giving his personal vision of the case, totally impartial and free, on a pure legal point of view. Reading the conclusions from past cases is often useful to understand the mindset of the judges and the reason of the solution given to the case. Nonetheless, and unlike in common law jurisdictions operating under

stare decisis A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great va ...

, those former judgements do not constitute a binding precedent for French judges, who remain free to adapt or overturn them (in a so-called ''renversement de jurisprudence''). Since an order of 2009 (n° 2009–14, 7 January 2009), there is a possibility for the parties to speak after the ''rapporteur publics conclusions. Lawyers use this possibility only for major cases, when it can make a significant difference (e.g. for the ''Hoffmann-Gleman'' case – 16 February 2009 – concerning the indemnisation of the daughter of a deported Jew during the World War II, involving the French state's responsibility). In some cases, there may be some confusion as to whether a case should be heard before an administrative law court or judicial court, in which case the Court of Jurisdictional Disputes, or ''tribunal des conflits'', made up of an even number of State councillors and Supreme Judicial Court justices, is convened to decide to whom the matter shall be vested. Until 2015, this Court was chaired by the Minister of Justice, whose vote would break any potential tie. As of 2015, court members elect a president amongst themselves for 3 years, and, in case of a tie, the court's composition can be modified to include several more judges.

Major rulings of the Council of State

Exercising judicial review over almost all acts of the executive branch, the Council of State's judgments may be of considerable importance, often not for the actual case judged, but for its importance in shaping legal interpretation. While France is a civil law country and there is no formal rule of precedent (

), lower courts follow the '' jurisprudence constante'' doctrine with regard to the Council of State. The Council's major rulings are collected into law reports and commented on by scholars; th
Council's official website
carries
list of comments on important decisions
The Council has shaped its own legal

doctrine Doctrine (from la, doctrina, meaning "teaching, instruction") is a codification of beliefs or a body of teachings or instructions, taught principles or positions, as the essence of teachings in a given branch of knowledge or in a belief syste ...

which consists mostly of principles deduced from cases but incorporates considerable

derived from

statute A statute is a formal written enactment of a legislative authority that governs the legal entities of a city, state, or country by way of consent. Typically, statutes command or prohibit something, or declare policy. Statutes are rules made by ...

s. Rulings are named for the moving parties (appellants) in the cases and under highly formal courtesy titles. Men's names used to be preceded by ''Sieur'', women's names by ''Dame'' or ''Demoiselle'', and widows were referred to as ''Dame veuve''. About 10,000 rulings per year are given by the Council of State. The most important rulings are collected in a publication called "G.A.J.A" (i.e. ''Les Grands Arrêts de la Jurisprudence Administrative'' – The major rulings of the administrative jurisprudence -), published by Dalloz editions and written by some of the most influential authors or judges of the time in France (e.g. Bruno Genevois or Prosper Weil). The GAJA explains about 120 rulings, from 1873 to now, and quotes several hundreds of other important rulings. Important rulings include: * February 19, 1875 �
Prince Napoléon
br>The fact that a decision has been taken with political considerations does not make it an "act of government" that cannot be adjudicated by the Council ( rescinding a previous

). A prince had been removed from the Army for political reasons. The Council stated that his case had to be heard, but then decided that it was unfounded because the law said that his commission could be revoked. * May 28, 1954 �
Barel
''Freedom of opinion of

civil servants The civil service is a collective term for a sector of government composed mainly of career civil servants hired on professional merit rather than appointed or elected, whose institutional tenure typically survives transitions of political leaders ...

.''
After a number of

Communist Communism (from Latin la, communis, lit=common, universal, label=none) is a far-left sociopolitical, philosophical, and economic ideology and current within the socialist movement whose goal is the establishment of a communist society, ...

s had been refused admission to the École nationale d'administration it was decided that the Government cannot exclude people from applying for civil service positions solely on the basis of their political convictions. * October 19, 1962 �
Canal, Robin & Godot
br>The

may make decisions by

ordinance Ordinance may refer to: Law * Ordinance (Belgium), a law adopted by the Brussels Parliament or the Common Community Commission * Ordinance (India), a temporary law promulgated by the President of India on recommendation of the Union Cabinet * ...

only within a narrowly defined scope authorised by the enabling law. The executive cannot mandate the creation of

court A court is any person or institution, often as a government institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in acco ...

s whose procedures and lack of recourse fall outside the general principles of

criminal law Criminal law is the body of law that relates to crime. It prescribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and moral welfare of people inclusive of one's self. Most criminal law ...

.
This decision was the source of tensions between the Council and then

President President most commonly refers to: *President (corporate title) * President (education), a leader of a college or university * President (government title) President may also refer to: Automobiles * Nissan President, a 1966–2010 Japanese ...

Charles De Gaulle Charles André Joseph Marie de Gaulle (; ; (commonly abbreviated as CDG) 22 November 18909 November 1970) was a French army officer and statesman who led Free France against Nazi Germany in World War II and chaired the Provisional Governm ...

. * February 3, 1989 �
Alitalia corporation
br>The

is responsible for voiding its own unlawful rules and regulations, even if they were initially lawful. Regulatory law must comply with

European Union The European Union (EU) is a supranational union, supranational political union, political and economic union of Member state of the European Union, member states that are located primarily in Europe, Europe. The union has a total area of ...

directives in force. * October 27, 1995 �
Commune of Morsang-sur-Orge
also known commonly as the "

dwarf tossing Dwarf-tossing, also called midget-tossing, is a pub/bar attraction or activity in which people with dwarfism, wearing special padded clothing or Velcro costumes, are thrown onto mattresses or at Velcro-coated walls. Participants compete to throw ...

case".
Respect for human dignity is to be included as part of the ''ordre public'' (the principles governing the public realm in France). In this case a mayor had prohibited a dwarf-tossing event on the grounds was against the "public interest" because it did not respect human dignity. This decision stops short of including

morality Morality () is the differentiation of intentions, decisions and actions between those that are distinguished as proper (right) and those that are improper (wrong). Morality can be a body of standards or principles derived from a code of co ...

as part of the ''ordre public''. * October 30, 1998
Sarran, Levacher et autres
br>The French Constitution prevails on international treaties, including European treaties. The Constitution is the supreme norm, above all other law rules. * March 3, 2004 �
The asbestos case

The State may be held responsible for not taking appropriate measures, in accordance with current scientific knowledge, to safeguard workers' health (against asbestos), even if workers are employed by private employers. * October 3, 2008
Commune d'Annecy
br>As the Charter for the Environment is cited in the preamble of the French Constitution, all the rights and duties it defines have constitutional value.

French Institute of Administratives Sciences

The Council of State is linked to the French Institute of Administrative Sciences (IFSA). The vice-president of the Council of State is the president of the IFSA and its main members are state counselors. In 2009, the Council of State hosted IFSA's annual conference which was organized on the theme: "public security : partnership between public power and private sector."

References

::''This article is based in part on material from the

French Wikipedia The French Wikipedia (french: Wikipédia en français) is the French-language edition of Wikipedia, the free online encyclopedia. This edition was started on 23 March 2001, two months after the official creation of Wikipedia. It has articl ...

''.

External links

Official website

* ttps://web.archive.org/web/20031009043111/http://www.conseil-etat.fr/ce/jurisp/index_ju_la00.shtml Important decisions of the Conseil d'État
English translations of some decisions
{{DEFAULTSORT:Council Of State (France)

Administrative courts Judiciary of France Government of France

Etat (pl. ) is a Norwegian state, county or municipal agency. An is a subdivision of the administration which has been given responsibility for a special area. An agency does not have a board of directors, but it does have a director, appointed by ...

1799 establishments in France Courts and tribunals established in 1799