Administrative Evidence in France

The Burden of Proof in Administrative Proceedings

French administrative procedure, governed by the Code de justice administrative (CJA), departs from the civil law model in significant respects. Unlike private law disputes, where the claimant bears the burden of proof (onus probandi) under Article 9 of the Code de procédure civile, administrative litigation operates on a principle of inquisitorial co-operation between the judge and the parties. The burden is not fixed on any single party; rather, the juge administratif actively gathers evidence and structures the evidentiary process through the mechanism of the instruction.

The general principle, affirmed by the Conseil d’État in Decision No. 12648 (1978), is that the party who invokes a right or makes an allegation must produce the evidence to support it. However, the administrative judge may shift the evidentiary burden where one party has exclusive access to relevant information — a situation that commonly arises in cases against the administration. The Conseil d’État in Decision No. 200932 (2009) established that where an administrative decision is challenged for lack of justification, the administration must produce the documents and evidence on which it relied.

The Instruction Process

The instruction is the investigative phase of administrative proceedings, during which the judge examines the admissibility and merits of the claim. The rapporteur public (public rapporteur), formerly known as the commissaire du gouvernement, presents an independent, non-partisan analysis of the case and proposes a solution. The instruction is written in nature, although the Code de justice administrative permits oral hearings and the hearing of witnesses in appropriate cases.

The parties are required to exchange written submissions (mémoires) within time limits set by the court. The judge may issue mises en demeure (formal notices) requiring a party to produce specific documents or face sanctions, including the exclusion of late-filed submissions. The président de la formation de jugement may also order the production of documents held by the administration or by third parties, using the court’s investigative powers (pouvoirs d’instruction).

The judge’s active role in gathering evidence is one of the defining features of French administrative procedure. Article R. 611-1 CJA requires the parties to produce all evidence on which they rely, but Article R. 612-1 gives the court the power to order the production of additional evidence ex officio. The court may also request observations from any person or entity likely to have relevant information.

Expert Reports and Expertise

Expert evidence in administrative proceedings is primarily obtained through the expertise procedure governed by Articles R. 621-1 to R. 621-14 CJA. The judge may appoint one or more experts (expert) to report on technical questions. The expert is selected from a list maintained by the Cour d’appel or, exceptionally, chosen by the judge for specific qualifications. The expert must be independent and impartial, and must disclose any potential conflicts of interest.

The expert’s mission (mission d’expertise) is defined by the court and may include factual investigation, technical analysis, or assessment of damages. The expert produces a written report, which is communicated to the parties, who may submit observations. The report is not binding on the court but carries significant weight in technical disputes. The costs of the expertise are initially borne by the party requesting it, although the court may apportion costs between the parties at the conclusion of the proceedings.

The Conseil d’État in Decision No. 359810 (2013) clarified the evidentiary value of expert reports, holding that the judge must assess the report in the light of the parties’ observations and may not rely solely on the expert’s conclusions without independent judicial reasoning.

Référé-Expertise

The référé-expertise (urgent pre-trial expert investigation), governed by Article R. 532-1 CJA, allows a party to obtain a court-ordered expert examination before the main proceedings are initiated. The applicant must demonstrate a legitimate reason (motif légitime) for preserving or establishing evidence before trial, particularly where evidence is at risk of destruction or where the facts require urgent technical investigation.

The référé-expertise is granted by the president of the Tribunal administratif or a designated juge des référés. The judge defines the scope of the expertise, appoints the expert, and sets the timetable. The procedure is widely used in construction disputes, medical liability claims, and environmental damage cases where early technical assessment is essential. The report produced in a référé-expertise may be used in subsequent proceedings and often facilitates settlement between the parties.

Written Procedure and Presumptions

French administrative litigation is predominantly written. While oral hearings occur, the bulk of the evidence is exchanged in writing, and the judgment is based on the written submissions and documents in the court file. The principle of the contradictoire (adversarial process) requires that all evidence be communicated to both parties and that each party has an opportunity to respond. The judgment must reference the documents and submissions on which it relies.

The administrative courts apply various presumptions (présomptions). The most significant is the présomption de légalité (presumption of legality) attaching to administrative acts. A party challenging an administrative decision must rebut this presumption by demonstrating that the decision is unlawful. Certain categories of acts benefit from a strengthened presumption, such as regulatory acts adopted after public consultation. The Conseil d’État may also apply a présomption de régularité (presumption of regularity) to administrative procedures where the administration demonstrates that proper procedure was followed.

The reform of the Code de justice administrative (Decree No. 2019-1502 of 30 December 2019) modernised the evidentiary framework, introducing electronic filing, case management systems, and enhanced powers for the judge to control the duration and scope of the instruction. The reform also strengthened the confidentiality of certain categories of administrative documents while ensuring that evidence essential to the resolution of disputes remains accessible to the parties and the court.