Conseil d'État

• 1. Introduction

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  The Conseil d'Etat sits inside the Palais-Royal in Paris, one of the most storied addresses in France. It is a body that does two things at once: it advises the government on the laws it wants to pass, and it judges the government when citizens believe it has broken the law. No other institution in France holds both of those roles simultaneously. That dual identity raises an obvious question: how can a court that helps write the rules also be trusted to police them? The answer lies in more than two centuries of accumulated practice, a membership drawn from the very top of the national administration, and a body of landmark rulings that have shaped French life in ways most citizens never trace back to this institution. To understand the Conseil d'Etat is to understand something essential about how France governs itself.

• 2. From the King's Council

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  The roots of the Conseil d'Etat stretch back to the 13th century, when the King's Court, the Curia regis, gradually divided itself into specialized bodies. One of those bodies, the Conseil du roi, eventually split further into three distinct parts: the Conseil secret, the Conseil prive, and the Conseil des finances. Louis XIV reorganized these groupings, and the resulting Conseil d'Etat prive, finances et direction became the direct ancestor of the modern institution. Officially established in 1557, that council was large by any measure. It brought together the High Chancellor of France, lords of peerage, Ministers and Secretaries of State, the Comptroller-General, thirty Councillors of State, eighty masters of requests, and the Intendants of Finance. The judicial heart of the body was known as the Conseil des parties, and its purpose was straightforward: to advise the King on claims brought against the Crown. French kings held an ancient power to dispense justice personally as the court of last resort, and they delegated that power to royal courts and parlements while retaining the right to override those courts at will. Rulings issued through the King's Council were understood as flowing from what lawyers called justice retenue, the sovereign's reserved right to intervene in certain matters. Legal advisors also helped the Crown develop new laws and, under a delegated authority called jura regalia, directly exercised sovereign rights in the King's name. That tradition of counsel combined with judicial authority would survive the monarchy itself.

• 3. Napoleon's Invention

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  In 1799, the French Consulate government created the current Conseil d'Etat as a formal institution with two explicit tasks: adjudicating claims against the State and helping draft important laws. Napoleon, serving as First Consul and later Emperor, presided over its sessions personally, and the Council performed many functions that today would belong to a cabinet. After the fall of Napoleon and the Bourbon Restoration, the Council survived but lost its former prominence, reduced to the role of administrative court without the political weight it had carried under the Empire. A clearer definition of its responsibilities came only with an Act of Parliament in 1872. That act began a long institutional maturation. The creation of lower administrative courts of first instance in 1953, and of administrative courts of appeal in 1987, gradually transformed the Council from a body that heard nearly every administrative case itself into a supervisory court focused on questions of law. Today, forty-two administrative courts of first instance and eight courts of appeal handle most of the caseload, leaving the Conseil d'Etat to function principally as the apex of the system.

• 4. Who Sits on the Council

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  Members of the Conseil d'Etat belong to a Grand Corps of the French State, a designation reserved for the most senior levels of the national civil service. The Council recruits mainly from the top-ranking graduates of the Ecole nationale d'administration, France's training ground for its highest administrators. The hierarchy within the Council runs from department heads at the top, through councillors ordinary and councillors extraordinary, down through masters of requests, senior masters, and masters at the entry level. The Vice President of the Council of State holds the real presidency of the institution in day-to-day terms, presiding over all but the most ceremonial assemblies; only at those formal occasions does the Prime Minister or, in the Prime Minister's absence, the Minister of Justice, take the chair. The Vice President is appointed by an Order-in-Council on the recommendation of the Minister of Justice and must be drawn from among the department heads or councillors ordinary. That the Prime Minister nominally leads but rarely presides reflects the separation of powers that runs through the entire institution. The Vice President of the Council of State also ranks as the ninth most important civil servant in France, a precise measure of the body's standing within the republic.

• 5. Two Roles, Seven Divisions

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  The Council divides its work among seven internal divisions. The Administrative Claims section handles the judicial function. The Report and Studies section writes the annual report, conducts legal studies, and helps ensure that judgments are actually carried out. Five other sections cover Finances, the Interior, Welfare and Social Security, Public Works, and Administrative Issues, the last created by an order of March 2008. Those five sections review all cabinet-issued orders and statutory instruments and examine every Order of Council before it takes effect. That review is mandatory but not binding: the government may proceed even if the Council advises against a measure. On the advisory side, the Council examines all draft legislation proposed by members of the executive before it reaches Parliament, and it scrutinizes every order issued by the Prime Minister and cabinet ministers under delegated legislative authority. The distinction matters: a statutory law typically authorizes or prohibits an action in broad terms, and a government order must then define the precise scope and conditions. The Council checks that second layer of rule-making against the first. It also handles administrative court inspections and studies specific legal questions referred to it by the cabinet.

• 6. How Cases Are Judged

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  The Conseil d'Etat processes roughly ten thousand rulings per year. Its procedure is inquisitorial: the Council itself investigates rather than waiting for parties to present competing cases. A plaintiff files a statement of claim, and the Council then formally asks the government or the relevant agency to provide a detailed defense. The burden of proof does not fall on the plaintiff. Instead, the Council determines whether the information provided is sufficient to locate evidence that the government might not have disclosed on its own. Cases are assigned to different formations depending on their legal importance. Smaller cases without new legal issues go to one of ten chambers. More significant matters go to a united formation of two chambers, and for major fiscal cases three or four chambers may combine into what is called the full fiscal, or pleniere fiscale, chamber. Cases with hard and important new legal issues go to the administrative claims department formation, which handles between twenty and forty cases per year and includes the presidents of the ten chambers, three assistant-presidents, and the department president, reaching fifteen members in total. Fewer than ten cases per year reach the Assemblee du contentieux, the assembly of all department presidents under the Vice President's chair. Whatever the formation, every case is first studied by a single chamber. One distinctive feature of the proceedings is the rapporteur public, a public magistrate who delivers an oral conclusion giving a personal, impartial legal assessment of the case. Lawyers have been able to respond orally after those conclusions since an order of the 7th of January 2009. Unlike in common law systems, those past conclusions and prior rulings do not constitute binding precedent; French judges remain free to overturn earlier decisions in what is called a renversement de jurisprudence.

• 7. Landmark Rulings

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  The Conseil d'Etat's most important rulings are collected in a publication called GAJA, short for Les Grands Arrets de la Jurisprudence Administrative, published by Dalloz editions and written by some of the most influential legal scholars and judges in France, including Bruno Genevois and Prosper Weil. The GAJA explains approximately 120 rulings spanning from 1873 to the present and references several hundred other significant decisions. A ruling of the 19th of February 1875, in the Prince Napoleon case, established that political considerations alone do not place a government decision beyond the Council's jurisdiction. A ruling of the 28th of May 1954, in the Barel case, decided that the government could not bar candidates from applying to the Ecole nationale d'administration solely because of their political beliefs. The October 1962 Canal, Robin & Godot ruling, which restricted the executive's power to create courts by ordinance, generated direct tensions with President Charles de Gaulle. The October 1995 Commune of Morsang-sur-Orge ruling, widely known as the dwarf-tossing case, incorporated respect for human dignity into the concept of ordre public, the body of principles governing the public realm, without going so far as to include morality more broadly in that concept. A ruling of the 3rd of March 2004 held the State responsible for failing to protect workers against asbestos, even when those workers were employed by private companies. The October 2008 Commune d'Annecy ruling established that the rights and duties defined in France's Charter for the Environment carry constitutional force, because the Charter is cited in the preamble to the French Constitution. Rulings are formally named for the appellants, and older decisions used the courtesy title Sieur before men's names and Dame or Demoiselle before women's names, with widows referred to as Dame veuve.