#14841 - Review Of Law Fact France - Comparative Public Law

France: Review of Law & Fact

Internal legality

• Substitute judgment on all internal legality matters

• No error of law<>fact dichotomy — review both in the same way

• Normal power <> discretionary powers

Historical overview

• Violation directe de la loi original basis for challenging error of law

• Error of law developed

• Error of law expanded towards facts

  • Qualification of facts subject to review by 1914

  • Then finally error of fact

• Manifest error developed in 1960s

Positive law

Grounds

• Open in all cases — but quite narrow

  • Violation directe de la loi (breach of the Constitution)

  • Error of law

  • Error of fact

  • Qualification des fait

  • Détournement de pouvoir (misuse of power)

• Further grounds open depending on

  • If tied power — Review for qualification of facts

  • If discretionary power — Manifest error / proportionality (of facts or of law)

General grounds — narrow & for straightforward cases

Violation directe de la loi (Constitutional breach)

• Rare — usually breach of Constitutional principle or other very important norm

  • Protected for symbolic value — and as threat of damages actions

• EG 2004 — refusal by PM to implement legislation concerning NHS tariffs — refusal to implement challenged overturned as violation directe de la loi

  • Art 21 requires PM to implement all legislation

Error of law

• Construed narrowly fundamental error of law

• Not misinterpretation of text

• EG

  • Basing decision on legislation that has been repealed or is invalid

  • Basing decision on incorrect criteria — eg legislation that applies to cars applied to motorbikes

  • Incorrect legal basis — basing decision on incorrect statute

Error of fact

• Where underlying facts wrong

• Camino (1916) (prefect suspended mayor for mishandling affairs — had made undertakers carry coffin through dodgy route quashed – no truth in story — insufficient basis – improper exercise of discretion)

Detournement de pouvoir (Misuse of power)

• Narrow — using power for aims that are alien to objectives of legislation — usually involves element of fraud

  • Akin to misfeasance in public office

• Pursuing public interest different from that intended by legislation

  • Boosting public finances – Beauge (1924) (order prohibiting dressing & undressing on beach purpose = to promote municipal bathing establishment <> not public decency)

• Pursuing private interest not permitted by legislation

  • Of public official – Rault (1934) (R rented out pianola — mayor regulating holding of dances – purpose = stop work avoidance <> encouraging patronising of own personal village Inn)

  • Public interest must be dominant purpose & public interest must be served — if so doesn't matter that some private interest also served

    • EG decision to build road through certain route to benefit Peugeot factory — Peugeot had partially financed project yes, but public purpose dominant & served — not quashed

Particular grounds — depending on nature of discretion

= difficult cases separated from the above

Competences liées — Qualification des faits (characterisation / application of law to facts) [referred to as “normal control”]

• Review of qualification – application of law to facts – involving evaluative judgments

• Established by Gomel (1914) (power to prohibit construction if required to preserve view of architectural value – building would obstruct view of Place Beauveau CE considered that Place was not of ‘architectural value’)

  • Framed as protection of property rights — freedom to deal with own property shouldn’t be unduly restricted

  • UK – Re Ripon Housing Order; ex parte White & Collins (1939) (power to acquire part of private park – acquired land court considered whether land was a private park)

• Dame Ebri (1975) (whether particular landscape formed ‘picturesque’ site — if so, restrictions applied as to how site could be dealt with different applications of “picturesque” — narrow definition from legislative intent —CE’s view in advisory capacity would have taken into account site itself & directly neighbouring lands that frame it — Minister’s definition took into account full landscape provided it had continuity)

  • CE went to inspect site — good example of inquisitorial tendencies

  • Shows CE very close to reviewing merits of decision

  • In France, claim not to reserve merits does not reflect the reality

Discretionary power — Erreur manifeste

• Similar to Wednesbury reasonableness in UK

• But distinction between competence liée and discretionary power not clear

  • Court increasingly characterising powers as liées rather than discretionary — even though legislative shift is towards giving greater discretion to decision-makers

  • Where technical/scientific assessment needs to be made, may only review for manifest error even though apparently competence liée

    • EG whether a hair lotion was poisonous – Societe Toni (1951)

  • Simple legal error will still be corrected: Dunkirk institute case (1980) (Legislation permitted private schools to apply for contract of association with State if satisfy certain conditions — but no explicit obligation on Minister to grant if conditions met — Dunkirk Institute for nurses applied — satisfied conditions but insufficient employment for nurses in the North generally discretionary power — but rejection was manifest error — completely excluded consideration of the Dunkirk area more specifically)

    • Argued no equal access to private & public education as required by Statute — as no existing private school

    • School presented evidence of demand for education

    • IE akin to failure to take into account relevant consideration

    • NB — first instance judge characterised as competence liée

  • Simple factual error will be corrected: Camino (1916) (prefect suspended mayor for mishandling affairs — had made undertakers carry coffin through dodgy route quashed – no truth in story — insufficient basis – improper exercise of discretion)

• Where Ministry has discretion as to whether to act (eg grant contract), then can only be reviewed for manifest error

  • <> if Minister grants contract on the basis that conditions are satisfied, then full control exercised regarding existence of those conditions

  • IE akin to jurisdictional facts

Proportionality?

Benjamin cases — Discharge of duty to protect the public <> protection of rights

• “Maximum control” in Benjamin (1933) (mayor forbidding speech at conference – of extreme right attacking public education – said in order to maintain order – risk of violent demonstrations went further than necessary – mayor must protect public steps but should do minimum necessary, eg marshalling police to prevent violent protest – breach of right to assembly — annulled)

  • But decision was 3 years after conference had been scheduled

  • Politically unstable period with split between extreme right & left during the depression & between the wars

  • NB also could have been misuse of power — mayor was involved in political demonstrations against the conference

  • Benjamin (No 2) — sought damages based on illegality

    • At that time, required to show faute lourde — but was established — damages granted

• Proportionality? — Dieudonné (2014) (Ministry of Interior issued circular to mayors re anti-Semitic comedian — gave reasons to be employed in banning his shows — shows banned based on right to dignity — D continued to make same statements despite criminal convictions — public order requires avoiding systematic breach of the law ban is legal)

  • Previous decisions following Benjamin said that freedom of expression precluded banning the shows based on public order

  • First reference in CE to proportionality review — adequate, necessary & proportionate

• Imposes expense on administration & interferes with public policy choices as to distribution of resources

• NB Conseil Constitutionnel had adopted & applied proportionality as early as 2008

• Examples

  • Requires evaluative judgment – not simply deference

    • Benjamin (1933) (mayor forbidding holding of a conference – said in order to maintain order went further than necessary – annulled)

    • Action Francaise (1935) (seizure of newspaper could only be justified on grounds of emergency & public order)

    • Dehaene (1950) (limit on right to strike <> right to strike recognised in general terms by Preamble to Constitution limitation of right permitted in certain circs)

    • Sydnicat national de radiodiffusion et de television (1975) (Minister restricting strike rights in order to maintain basic radio & TV service upheld)

  • But in other cases not willing to engage in evaluative/normative judgment

    • Film Lutetia...