Rights and Liberties, Liability of the French State and Judicial Review

On 24 December 2019 the Conseil d’Etat ruled that indemnification can be
granted under French law on the ground of a prejudice suffered due to the
application of a law ruled contrary to the Constitution by the Conseil Constitutionnel.

The Conseil d’Etat now
leaves the door open to a new possibility for indemnification, within the
framework of a QPC examination (Question Prioritaire de
Constitutionnalité) or by application of Article 61 of the
Constitution (subject to conditions). Based on the hierarchy of norms, this new
kind of liability of the State is stated in three decisions dated 24 December
2019 (req. N°425981, N° 425983 and N°428162).

This new regime lives now next to the
already existing liability due to the application of the law (responsabilité du fait des lois) based on equal
treatment before public burdens (principe d’égalité des usagers devant les
charges publiques). 

A QPC is a question raised by a tribunal
or a court aiming at determining the conformity of a law to the Constitution.
Article 61-1 of the French Constitution states in this respect that during an
instance before a tribunal or a court (private or public), a plaintiff can
support the view that a law contravenes rights and liberties guaranteed by the
French Constitution. In such a situation, the Conseil Constitutionnel can
be seized after remand of the case by the Conseil d’Etat or
the Cour de Cassation. 

The general principle under French
administrative law is that the French State can be sued simply because of the
application of a law, provided that (i) the plaintiff has suffered a prejudice
qualifying as important and specific (grave et special) and (ii) the law
in question does not exclude the possibility for a plaintiff to be indemnified.
This type of liability is applicable even if the French State is not considered
as being in default with the application of the law and is named liability
without misconduct (responsabilité sans faute de l’administration). 

This possibility started in France at the
beginning of the 20^th century (Conseil d’Etat,
case Couitéas – 1923), with the admission of liability without
misconduct of the French State due to an administrative decision of
non-enforcement of judicial decisions. In such a case, in the general interest,
the French State may decide not to enforce a judicial decision, but in turn,
has to indemnify the plaintiff. The ground for indemnification is the breach of
equal treatment before public burdens principle (principe d’égalité des
usagers devant les charges publiques). This principle is taken from the
French 1789 declaration of the human rights and the citizen: each member of the
community has to bear a certain amount of public burdens, but equal treatment
shall prevail. 

This principle has expanded thereafter
with the admission of such a claim against a law (and not against an
administrative decision only) by the Conseil d’Etat in 1938 (Conseil
d’Etat, case Société la Fleurette – 1938). Such a case
establishes that, in the silence of the said law, a plaintiff shall not bear a
charge created by a law that he/she would not normally lie with, it being
specified that, in the event of silence of the said law, such law shall not be
considered as excluding the liability of the French State (Conseil d’Etat case Coopérative
Agricole Ax’ion – 2005). 

The liability of the French State can also
be triggered due to its obligations to ensure the application of its
international conventions, to indemnify all the prejudices resulting from the
application of a law passed illegally because contrary to an international
convention (e.g. ECHR) (Conseil d’Etat, case Gardelieu –
2007). 

Now, according to the new decisions of the
French Conseil d’Etat dated 24 December 2019, the other
grounds for indemnification are (1) that the decision of the Conseil
Constitutionnel does not decide that no indemnification shall be
granted either (i) by excluding it expressly or (ii) by letting alive all or
only a part of pecuniary effects caused by the law, that an indemnification
would challenge, (2) the existence of a prejudice and (3) the link between the
prejudice and the unconstitutional application of the law.

As a consequence, a plaintiff may be
indemnified in the following conditions : (i) no express exclusion of
indemnification by the Conseil Constitutionnel (ii) no all or
part of pecuniary effects left alive by the Conseil Constitutionnel that
an indemnification would challenge (iii) and (iv) a link between the prejudice
and the unconstitutional application of the law. 

According to the decision of the Conseil
d’Etat, certain pecuniary effects of the law declared unconstitutional may
prevail upon an indemnification. In this respect, it is reasonable to think
that an administrative judge would apply an economic balance check between the
necessity of indemnifying the plaintiff and the profit of letting alive all or
only a part of pecuniary effects caused by the unconstitutional law. An
economic balance check is already applied in other circumstances (expropriation
with the application of the théorie du bilan coûts / avantages), by
the Conseil d’Etat (Conseil d’Etat case Ville
Nouvelle Est – 1971).

In this perspective, it is reasonable to
think that the application of an unconstitutional law may survive if it is more
interesting from an economic point of view. This mentioned carve
out is quite important as it gives the possibility to the Conseil
Constitutionnel to let alive, even if the law is declared
unconstitutional, and then cancelled, parts of its pecuniary effects.

In addition to the breach of equal
treatment before public burdens principle (principe d’égalité des usagers
devant les charges publiques), it can be suggested that other principles
may underpin this kind of liability: preservation of legal safety (sécurité
juridique) and /or  granted rights (préservation des droits
acquis), and / or economic balance check, to take into account all the
adverse financial effects that an indemnification would cause. 

The claim for indemnification can
obviously be barred by effluxion of time, it being specified that the 4 (four)
years period during which such a claim can be brought only starts if the
prejudice resulting from the application of the law may be known in its reality
and its scope by the plaintiff, without the possibility for him or her to be
regarded as ignoring the existence of his / her right to claim until the
declaration of unconstitutionality. 

The indemnification request has to be
brought before the administrative judge (Tribunal Administratif). It
remains however to be seen whether legal practioners will try to use these
decisions of the Conseil d’Etat to sue the French State before
the judicial order (ordre judiciaire). Under French law, the
French Conseil d’Etat is the highest court entitled to address
administrative cases and is part of the administrative order (ordre
administratif) whereas the judicial order (ordre judiciaire) is
composed of judiciary tribunal and courts (jurisdictions judiciaires)
and is competent for private matters. How dealing with the fact that a tribunal
or a court may apply deliberately after the declaration of unconstitutionality
a law previously declared unconstitutional outside the scope of the carve out
of the ratio decidendi of the Conseil d’Etat? Would Article 141-1
of the Code de l’organisation judiciaire, which gives competence to
the judicial order in the event of indemnification of a prejudice due to
malfunction of judicial public service, apply? It is reasonable to think
that such indemnification would not be allowed even if
legal practitioners may wish to test it, and may be, open this
possibility, for the residual adverse effects on the plaintiff of the
law declared unconstitutional.

A lack of indemnification by
the French State may also give rise to a lawsuit before the ECHR (European
Convention on Human Rights), a plaintiff would still have in
fine, the right to be indemnified on the basis of the application of a
law declared unconstitutional. From a theoretical point of view, and on the
basis of the hierarchy of norms, letting a country member of the European
Council apply a law declared unconstitutional could raise issues. 

Up to date 24
December 2019.