French Administrative Law Codes: Codification of Public Law

French administrative law represents a distinct legal tradition founded on the principle that disputes involving public authorities are subject to special rules administered by separate administrative courts, rather than the ordinary courts. This droit administratif has been progressively codified through several major codes, most notably the Code of Administrative Justice, the Code of Relations between the Public and the Administration, and the General Code of the Property of Public Persons. These codes systematise the jurisprudence of the Conseil d’État and the principles of French public law.

Code of Administrative Justice (Code de Justice Administrative)

The Code of Administrative Justice (CJA), enacted by Ordinance 2000-387 on 4 May 2000, codifies the organisation and procedure of the French administrative court system. Promulgated to consolidate and clarify the fragmented legislative and regulatory texts governing administrative litigation, the CJA entered into force on 1 January 2001. It is divided into five parts: the organisation of administrative courts (Part I), the jurisdiction and functions of administrative courts (Part II), the administrative tribunals of first instance and their procedure (Part III), the administrative courts of appeal (Part IV), and the Conseil d’État as the supreme administrative court (Part V).

The CJA establishes the structure of administrative courts at three levels. At first instance, tribunaux administratifs (administrative tribunals) have general jurisdiction over administrative disputes, with 42 tribunals located throughout metropolitan France and overseas territories. At the appellate level, cours administratives d’appel (administrative courts of appeal), established in 1987, hear appeals from the administrative tribunals in all matters except those reserved to the Conseil d’État as the court of first and last resort. The Conseil d’État (Council of State) serves as the supreme administrative court, hearing appeals in cassation from the administrative courts of appeal and certain cases at first and last instance, including actions against decrees and regulatory acts of ministers. The CJA codifies the procedural guarantees applicable to administrative litigation, including the right to an adversarial hearing, the obligation to state reasons, the availability of interim relief (référé), and the procedures for appeals in cassation.

Code des Relations entre le Public et l’Administration

The Code des Relations entre le Public et l’Administration (CRPA), enacted by Ordinance 2015-1341 on 23 October 2015 and effective 1 January 2016, codifies the rules governing the relationship between citizens and the administration. The CRPA represents a major step in making administrative procedure accessible and transparent, consolidating provisions previously scattered across numerous statutes and regulations. It is organised into four parts: exchanges with the administration (Part I), unilateral administrative acts and contracts (Part II), access to administrative documents and the reuse of public information (Part III), and the regulation of complaints and disputes (Part IV).

The CRPA codifies fundamental procedural guarantees. Citizens have the right to be heard before an adverse individual administrative decision is taken (droit d’être entendu), subject to exceptions for urgency, public order, and cases where the decision is taken on the application of the person concerned. The administration must respond to requests for information within one month, and silence maintained for two months constitutes a rejection (rejet implicite), a rule designed to prevent bureaucratic inertia from blocking citizens’ rights. The CRPA guarantees the right to present written observations, the right to legal representation, and the right to consult one’s file before an adverse decision is taken. It also codifies the rules on implicit decisions, providing that in certain cases silence maintained for two months constitutes acceptance (accord implicite) rather than rejection, implementing a 2013 reform that reversed the traditional rule. The CRPA codifies the right to administrative documents (droit d’accès aux documents administratifs), subject to exceptions for personal privacy, medical confidentiality, commercial secrecy, and national defence.

General Code of the Property of Public Persons

The General Code of the Property of Public Persons (Code Général de la Propriété des Personnes Publiques, CGPPP), enacted by Ordinance 2006-460 on 21 April 2006, codifies the rules governing property owned by the state, local authorities, and public institutions. The CGPPP distinguishes between the public domain (domaine public), which consists of property held for public use or assigned to public services and cannot be alienated without special procedures, and the private domain (domaine privé), which is subject to ordinary private law rules. The classification determines the applicable legal regime: public domain property is inalienable and imprescriptible, while private domain property may be sold and acquired by prescription.

Key Administrative Law Principles

French administrative law rests on foundational principles developed through the jurisprudence of the Conseil d’État. The principle of legality (principe de légalité) requires that all administrative action have a legal basis and comply with superior norms, including the Constitution, treaties, statutes, and general principles of law. The distinction between gestion publique (public management) and gestion privée (private management) determines whether administrative law or private law applies to particular activities of the administration. The theory of public service (service public), developed through the Blanco decision (Tribunal des Conflits, 1873), held that liability of the state for injuries caused by public services is governed by special administrative law rules, not the Civil Code. The decision established that the administrative courts have jurisdiction over claims arising from public services and that liability may arise without fault based on the principle of equality before public burdens.

The theory of public authority (puissance publique) distinguishes between acts of public authority (actes de puissance publique), which are subject to administrative law and administrative jurisdiction, and acts of management (actes de gestion), which may be subject to private law. The administrative police powers (pouvoirs de police administrative) enable the administration to take measures necessary to maintain public order, security, and health, subject to strict proportionality review. The theory of administrative contracts distinguishes administrative contracts from ordinary private contracts, applying special rules including the théorie de l’imprévision (unforeseeability), which permits judicial revision of contracts where extraordinary circumstances fundamentally alter the economic balance, and the théorie du fait du prince, which entitles the contractor to compensation where the administration exercises its regulatory powers to the detriment of the contract.

State liability (responsabilité de l’État) in French law extends beyond the ordinary fault requirement of civil law. The Conseil d’État has recognised liability without fault (responsabilité sans faute) based on the principle of equality before public burdens, particularly for damage caused by public works, by the application of legislation, and by the execution of judicial decisions.

The Conseil d’État

The Conseil d’État plays a dual role as the supreme administrative court and as the government’s legal adviser. As a court, it adjudicates appeals in cassation from the administrative courts of appeal and hears certain cases at first and last instance, including challenges to decrees and regulatory acts. As a legal adviser, it reviews draft legislation, ordinances, and decrees before their adoption, ensuring legal quality and consistency with the existing legal order. The government may also consult the Conseil d’État on any legal question. The Conseil d’État’s dual function embodies the French conception of administrative law: a specialised body combining legal expertise with practical knowledge of administration.

The development of French administrative law through the Conseil d’État’s jurisprudence is marked by landmark decisions. Blanco (1873) established the autonomy of administrative law. Cadot (1889) eliminated the doctrine of minister-judge, making the Conseil d’État the general judge of administrative disputes. Société des Grands Moulins des Antilles (1928) extended state liability for damage caused by legislative acts. Dame Lamotte (1950) established that any administrative decision may be challenged before the administrative courts, even without an express statutory provision. Société du Vésinet (1963) recognised general principles of law binding on the administration. Ville de Paris v Driancourt (1975) confirmed the broad scope of administrative police powers subject to proportionality review.