Association Internationale des Hautes Juridictions Administratives
International Association of Supreme Administrative Jurisdictions


Mr Didier-Roland Tabuteau
 - Vice-President
Place du Palais Royal, 75001 Paris, France
France Council of State

1. National judicial organisation

1.1. General presentation of the judicial organisation and position of the administrative jurisdictional order

There are two orders of courts in France: the judicial order and the administrative order, each made up of common-law courts and specialized courts.

The judicial courts include the civil courts (regional court, small claims court, commercial court…) and the penal courts (police court, criminal court and court of Assizes). All appeals of the civil and penal court judgments are brought before the court of appeal except for the appeals of rulings of the court of Assizes which lies with another court of Assizes. The rulings of the courts of appeal may be subject to appeal before the Court of Cassation, the supreme court of the judicial order.

 The administrative courts include the administrative tribunals, created by the decree-law of September 30, 1953, the administrative courts of appeal, created by the law of December 31, 1987, and the Council of State, created by the article 52 of the Constitution of Frimaire 22nd, Year VIII (December 13, 1799). The Council of State has both an advisory mission and a jurisdictional mission. The specialized administrative courts are numerous, and include especially, the Court of Auditors, the regional chambers of accounts, the Court of budgetary and financial discipline, the National Court of the right of asylum, the university jurisdictions or the disciplinary jurisdictions of the professional orders.

Finally, the Constitutional Council, created by the Constitution of October 4, 1958, examines the conformity of laws with constitutional norms. It can be seized after the vote of the law and before its promulgation, or on the occasion of the referral of a priority question of constitutionality (QPC) by the Council of State or the Court of Cassation in the framework of a proceeding pending before one of the two orders of courts.


1.2. Key dates in the evolution of the administrative jurisdictional order and the control of administrative acts

If the principle of separation of the administrative and judicial authorities originates in the edict of Saint-Germain-en-Laye of February 1641, it was established, in its modern accepted meaning, by the revolutionary law of August 16 and 24, 1790. The creation, in Year VIII (1799), of the councils of prefecture and the Council of State, heir of the king’s council, completed the birth of French administrative justice.

Under the French Revolution, the power wished to avoid the intrusions of the judge in his activity, so it formally forbade the courts to "disturb in any way whatsoever, the operations of the administrative bodies, nor to call before them the directors for reason of their function" (Article 13 of the law of August 16-24, 1790) and "to know acts of administration". At first, the administration chose to judge itself by a mechanism of hierarchical appeal, the "minister-judge". The creation of the Council of State by the Constitution of the year VIII (1799), the passage to justice delegated with the law of May 24, 1872, the Council of State ceasing to give simple opinions on the settlement of disputes and judging "In the name of the French people", and finally the definitive abandonment of the theory of the minister-judge in 1889 (Coucnil of State, December 13, 1889, Cadot) marked the gradual affirmation of the Council of State as a fully competent jurisdiction and independent.

With the creation of administrative courts by the Decree-Law of September 30, 1953 and the Administrative Courts of Appeal by the law of December 31, 1987, the administrative jurisdictional order is now complete.


1.3. Criteria of competence of the administrative jurisdiction

The administrative jurisdiction settle disputes arising from the action of the public administration, understood as all activities or functions which implement prerogatives of public authorities in order to satisfy needs of general interest or which aim to fulfill public service missions. In its organic sense, the administration includes the state, the local authorities and the public institutions that depend on it. In its functional sense, the administration is also made up of private-law legal persons charged with the performance of an administrative public service, whether or not they exercise prerogatives of public authorities. The administrative jurisdiction is specifically the judge of the legality of the administrative acts and the responsibility of the public authorities and the public services.

Two criteria are theoretically used to determine the competence of the administrative judge: on the one hand, a material criterion - the existence of prerogatives of public authorities or a public service - and, on the other hand, an organic criterion - the presence and action of a public person, that is to say the State, local authorities, independent public authorities, public institutions... These two criteria are sometimes attenuated, for instance in the presence of an industrial and commercial public service or when a private person makes use of prerogatives of public authorities or if it is charged with the execution of a public service.

According to a constitutional principle, only the administrative judge can hear disputes aimed at the annulment or the reformation of the decisions taken by the public authorities in the exercise of prerogatives of public authorities (decision of the Constitutional Council of January 23, 1987, Conseil de la concurrence), such as, for example, the expulsion of illegal foreigners. The public service criterion also determines the competence of the administrative jurisdiction in the case of an administrative public service, but it does not exclude, in the case of a public industrial and commercial service, the competence of the judicial judge.

In case of difficulty in determining the jurisdictional order, the Dispute Tribunal, created by the law of May 24, 1872 and composed equally of members of the Council of State and the Court of Cassation, settle the conflict of competence.

2. Organisation of the administrative jurisdictional order

2.1. Key founding texts

 The article 61-1 of the Constitution, resulting from the constitutional revision of July 23, 2008, establishes the jurisdictional dualism.

Nevertheless, the Constitutional Council had already recognized the constitutional value of the existence and the independence of the administrative jurisdiction by a decision of the July 22, 1980, Loi de validation, and a field of competence constitutionally protected by its decision of January 23, 1987, Conseil de la concurrence.

The contentious powers of the administrative courts are specified by law in the Code of Administrative Justice. The rules of procedure are also governed by this code. In addition, there are other codes which govern, in whole or in part, certain procedures before the administrative jurisdiction, such as, for example, the Code of Financial Jurisdictions or the Code of Entry and Stay of Foreigners and the Right of Asylum. .

2.2. Organisation and competence of the administrative jurisdiction

2.2.1. General organisation of the administrative jurisdictional order

Is administrative justice rendered by specialized courts or by specialized chambers set within jurisdictions with a general competence? Does the administrative jurisdiction include several levels of jurisdiction (first instance, appeal, cassation)? Are there specialized administrative courts?

In France, control of the administration is provided by administrative courts independent of the administration (separation of administrative and judicial functions) and entirely separate from the judicial courts (jurisdictional dualism). There is thus a complete administrative jurisdictional order, from the first instance to the cassation.

The administrative tribunal is the administrative court of common-law in first instance. The appeal of their judgments is, in principle, brought before the administrative courts of appeal, whose rulings lie, in appeal, with the Council of State. In addition to its role of cassation, in which capacity, like the Court of Cassation, it only exercises control over the proper application of the rules of procedure and law by the jurisdictional decisions contested before it, the Council of State is also, in certain disputes such as that of the regulatory acts of the ministers, judge in first and second resort. Exceptionally, he is also an appellate judge, particularly in the framework of the procedure for provisional judicial emergency order (Article L. 521-2 of the Code of Administrative Justice).In addition, there are specialized administrative courts in various fields, such as financial matters (regional chambers of accounts and Court of Auditors), social assistance (departmental commissions and central social welfare commission) or disciplinary matters (Court of budgetary and financial discipline, Superior Council of Magistracy, Ordinal Courts, University Courts ...).

2.2.2. Internal organisation of administrative courts and composition of the bench of judges

Are administrative courts organized in chambers or divisions? Are these chambers or divisions specialized? Are there several degrees of formation of the court (single judge, collegiate panels with three, five ... judges, full court)?

The administrative courts (42 in all since 2009, with the creation of the one in Montreuil, the 5th administrative court in the Paris region) and the administrative courts of appeal (eight in all) are organised in chambers, the number and specialisation of which vary depending on the staff of the court and the internal organisation choices made by the court administrator. The Council of State has only one division in charge of court matters, the Litigation Division. The other 'administrative' divisions as they are known assume the advisory functions of the Council of State.

In administrative tribunals, the chambers are composed of a president, a public rapporteur (equivalent of the Advocate General before the Court of Justice of the European Union) and two or three rapporteurs. The administrative courts of appeal retain a similar organization with, in addition, a president-assessor. At the Council of State, the chambers have a dozen members, including a president, one or two assessors and one or two public rapporteurs.

Depending on the importance of the cases and their significance to case law, petitions that are examined by more than one judge are brought before the bench, the composition and staff of which vary. Before the tribunals and courts, the bench normally consists of three members, but it may be enlarged depending on the importance of the case. In the Council of State, the most restrictive of such benches is the chamber that considers the matter alone and is composed of three members. At the immediately higher level two chambers sit jointly on a panel which is composed of nine members, generally presided over by one of the three deputy presidents of the division. If the case is more delicate or more sensitive, it may be examined by the Litigation Division, which is composed of 15 members as defined by Article R.222-18 of the code of administrative justice, and is presided over by the president of the division. At the very highest level is the Judicial Assembly, the composition of which is laid down in Article R.122-21-1 of the same code. Presided over by the Vice-President of the Council of State and composed of 17 members, this tribunal hands down decisions with the highest authority in case law.

As an exception to the principle laid down in Article L. 4 of the Code of Administrative Justice according to which judgments are rendered in collegial formation, administrative judges are sometimes led to decide alone on certain disputes. First of all, there are disputes relating to the matters set out in Article R. 222-13 of the Administrative Justice Code (benefits and rights granted under the heading of social assistance or social action, driving license, pensions...). In addition, when ruling as a judge of provisional measures (emergency procedures), the administrative judge is led to judge alone. In all these cases, he can refer the dispute to a collegial formation if the difficulty of the case justifies it.

2.2.3. Do administrative courts have advisory powers (advice to the administration, government, parliament, etc.)?

According to Article 39 of the Constitution, the Council of State is responsible for advising the Government on the main draft texts. The Council of State must thus be requested on all the bills coming under the domain of the law which are elaborated on the initiative of the Government, before they are adopted by the Council of Ministers, that is to say the draft laws, but also the draft ordinances. It is also requested of the principal decrees, the "decrees in Council of State" which are taken on express authorization of the legislator for the application of the laws. In all these cases, the Council of State gives an opinion on the drafting quality of draft texts, their legal regularity and their "administrative expediency", which covers their usefulness and their adequacy with regard to the objectives pursued by the Government.

Since the constitutional revision of July 23, 2008, the Council of State can also be referred to for legislative proposals, emanating from the Parliament.

Finally, all draft Community legislation sent to the French government by the European Commission to ascertain whether the provisions being considered would fall under French law if adopted by the French authorities, is referred to the Council of State. If such is the case, the draft legislation is sent to the French Parliament for an opinion.

In all other cases, consultation of the Council of State is not mandatory but the Government may always ask for an advise on "difficulties in administrative matters", for example if certain questions raise debates in public opinion or, prior to the development of a reform, raise questions of principle that must first be decided. In this case, the Council of State does not examine a draft text but answers one or more questions. At the request of the Government, the Council may also draft studies on subjects of public interest.

The administrative courts and the administrative courts of appeal may also be required to give an opinion on questions submitted to them by prefects. Questions falling under the purview of the prefects of the region are referred to the administrative court of appeal; the others to the administrative court. Such referrals are not very frequent in practice.

The dual nature of the powers vested in the French Council of State entails a distinction between two types of divisions: the administrative divisions and the Litigation Division. A member of the Council of State may belong concurrently to an advisory division and to the Litigation Division. In line with established and prevailing custom, this dual membership has led the members concerned by a case brought before the Litigation Division, and pertaining to a text of which they became cognisant on the administrative bench, to abstain from the judgement.

It became apparent that this customary rule and the scope applicable thereto ought to be enshrined in rules of procedure and included in the code of administrative justice. Article R.122-21-1 was therefore added to the code via Decree no. 2008-225 of March 6, 2008, which covers any violation, albeit apparent, of the principle of impartiality by the bench hearing the case, itself enshrined in the European Convention on Human Rights via Article 6(1). Moreover, in its ruling of November 9, 2006 in the case of Sacilor-Lormines versus France, the European Court of Human Rights admitted the principle that the same body may combine advisory and judicial functions, provided that the impartiality of the court, in particular as regards its composition, is in no way compromised in a given case.

This guideline for the case law of the European Court was confirmed by the decision in the case of Union fédérale des consommateurs Que choisir de Côte d’Or versus France of June 30, 2009. Pertaining to a dispute about the decree declaring the acquisition of land and the construction of the Eastern branch of the Rhine-Rhone high-speed rail link, this case was brought before the court on the grounds of a breach of Article 6(1) on account of a lack of independence and impartiality on the part of the bench, in this case the Litigation Division of the Council of State. The association contended that these provisions had been misunderstood since the Council of State examined the decree at issue first in the administrative division and then in the Litigation Division. The court pointed out that it was not required to rule in the abstract, but to assess, in concrete terms, whether the opinion given in the advisory division had constituted "a type of pre-judgement". The Court held that the members on the bench who had ruled on the legality of the decree were different from those of the advisory division that handed down the opinion of the Council of State on said decree and that consequently it was not necessary to investigate whether the opinion of the advisory division on the draft decree and the action taken to cancel the decree itself constituted "one and the same case" or "one and the same decision" within the meaning of the ruling in the aforementioned case of Sacilor-Lormines versus France.

2.2.4. Tools and documentary resources available to judges

Each Council of State official has a fixed IT workstation and every judge a laptop. They are all connected both to the internal network (one for the Council of State and one for the administrative courts of appeals and administrative courts) and to the Internet. Taking advantage of the renovation of its premises, the Council of State has embarked on adapting the conference rooms so that laptops can be used. All management tasks as well as an increasing proportion of judicial work (case management software, computer-aided decisiondrafting applications, legal databases inside and outside the Council of State, electronic procedures) are performed using the IT tool. On the one hand, the administrative jurisdiction has deployed two applications (Télérecours and Télérecours Citoyens) to refer to the courts by dematerialized way (see below). On the other hand, judges use the Ariane application, which is a legal database internal to the administrative court and which contains all the decisions it renders as well as, sometimes, their analysis and the public rapporteurs’ conclusions.

In addition to the electronic documentation, the library of the Council of State holds some 60,000 volumes and about 250 subscriptions to periodicals pertaining chiefly to the different areas of public law. An inter-library loan system is used for documentary resources in other areas, particularly private law. Each court also has its own documentation service.

2.3. Status of administrative judges

How is the recruitment of judges organised (competitive exam, political appointment, peer election…)? What are their statutory guarantees while in office, particularly in terms of independence?


While the judicial order’s magistrates are gathered in one single body, the administrative judges belong to two different bodies: that of the Council of State’s members and that of the members of the administrative courts and administrative courts of appeal.

However, if the rules applying to them have long been found in various text, the Council of State’s members, like those of the administrative courts and the administrative courts of appeal, are from now on subject to the provisions of the administrative justice code.

The members of the administrative courts traditionally do not have the capacity of “magistrates” in the meaning of the French Constitution, a status reserved for the members of the judiciary order. In fact, they come under the general status of public service. In the eighties, this situation saw an evolution which reinforced the statutory independence of the administrative court members, such that the primary trend today is to liken them to magistrates; this, incidentally, is how they are referred to in certain texts and all the rules governing their career’s development ensure them, de facto, complete independence.

Recruitment process

There are two sorts of procedures for recruiting administrative judges: recruitment by competition and recruitment by appointment. Since 1945, auditors (the top ranked among Council of State members) have been recruited via the École Nationale d’Administration (ENA), as are the judges in the administrative courts and the administrative courts of appeal. While, for the judicial order, the National School of Magistrates prepares exclusively for the exercising of magistrate’s duties, the National School of Administration prepares indiscriminately for the high level civil service. The administrative court’s history, originally one with the active administration, explains the existence of this common melting pot for training of future administrators and administrative order magistrates.

Provision is also made for a specific form of recruitment for judges of the administrative courts and administrative courts of appeal, in the form of an additional recruitment competition geared towards experienced law students. Originally designed as an exceptional device, temporary measure, it has been crucial in meeting the demand arising from an increase in litigation. It has become a regular method of recruitment and constitutes an important path, in terms of quality and quantity, to a career as an administrative judge. Candidates for the administrative magistrate complementary test must pass tests that are specifically legal (as opposed to the National School of Administration’s test, more general) and, once appointed, receive specific internal training, also attended by the magistrates appointed via the exterior round and those from the ENA.

In addition to recruitment by competition, there is an 'external round', which enables the government to appoint a limited percentage of members of its choosing to the administrative courts. The proportion of appointments via each of the two procedures varies depending on the court in question, the external round being more restricted in the supreme court. Some of the external appointments to the Council of State are reserved for members of the administrative courts and the administrative courts of appeal. The external round appointments are justified by a concern to recruit people who have gained professional experience in other civilian or military institutions (diplomats, prefects, officers, engineers, etc.), or in other, mainly legal professions (academics, lawyers, etc.), who can bring valuable skills to the administrative courts. Depending on the case, they are decided on the basis of a proposal or pursuant to the opinion of the Vice-President of the Council of State.


At the Council of State, the rules for promotion are similar to the common law of civil in the promotion level; however, they greatly diverge with respect to promotion. There are two levels in the grade of Councillor of State, eight in that of maître des requêtes (master of petitions), four in auditor first class, and seven in auditor second class. The promotion level is based on seniority. The grade promotion derogates from common law insofar as no list is established of officers slated for promotion. All promotions are made by decree, on a proposal from the Minister of Justice. Yet only those whose names are introduced by the Council of State’s Vice-President deliberating with the section presidents may be promoted. In addition, the introductions must be submitted for the Council of State superior commission’s opinion. If, theoretically, the promotions within the Council of State are made by selection, in practice the introductions are made according to the order on the list, that is, by following the rule of seniority, which makes it possible to ensure the Council of State’s members true statutory independence.

The single body of the administrative courts and administrative courts of appeal incorporates three grades: councillor, first councillor, president. Grade promotion is made by selection through registration on the list of officers slated for promotion, which is established by proposition from the Higher Council of Administrative Courts and Administrative Courts of Appeal. Magistrates are therefore entered on the list in order of merit as long as they meet the required seniority requirements. Hierarchical advancement is achieved by seniority, except for access to the three last levels of the president’s grade, which is made by selection, and after registration on an annual roster of eligibility, established by proposition from the Higher Council of the Administrative Courts and Administrative Courts of Appeal.

The administrative magistrates may, if they wish, temporarily leave their jurisdiction to accomplish the statutory mobility instituted for body members recruited through the National School of Administration. This mobility may be exercised both in the “active” administration and in the private sector.

They also may exercise external temporary duties through placement, temporary assignment, delegation, detached position, or leave of absence.

3. Procedural rules before the administrative courts

3.1. Types of plea

What kind of petition may applicants file before administrative courts? May applicants only request the invalidation of an administrative act? May administrative courts rule on compensatory claims?

 French administrative law has competencies both regarding the appeals of full jurisdiction (sanctions, liability, indemnification…) and law litigation.

The law litigation includes three types of appeals: appeal for excess of power, appeal to assess legality and appeal to declare illegality.

The appeal for excess of power allows asking for cancellation of a unilateral administrative act due to its illegality, that this illegality results from the incompetence of the act’s perpetrator, a formal or procedural technicality, an abuse of power or violation of the law. Administrative contracts cannot be subject to this type of appeal, except in the context of the prefectural application for judicial review enabling the prefect to obtain the direct cancellation of all local governments’ acts, including contracts.

The appeal to assess legality permits obtaining, on a court’s referral, of the judge’s assessment of the legality of an administrative, unilateral or contractual act without any direct consequences.

The declaration of illegality, which can only be exercised by exception, has no effect on the act referred to and is only authorised in relation to that which is judged.

In full jurisdiction litigation, the judge’s powers are much broader than in the law litigation of legality since he/she may, beyond the cancellation, pronounce sentences and, more generally, substitute his/her own decision for that which is deferred to him/her. This litigation is exercised in very different domains, mainly contractual and extra-contractual liability litigation, but also in some special disputes, such as tax, electoral disputes, facilities classed for environmental protection, or the litigation regarding edifices in danger of decay.

Finally, it is important to mention a third category of litigation: litigation of suppression corresponding to the exercise, not of appeals against an act or related to an act, but of proceedings against persons with a view to pronounce a penalty in cases of damage to material integrity or the allocation of public domain (traffic violations). This type of litigation also encompasses lawsuits exercised before the disciplinary courts.

3.2. Emergency procedures

 Are there any emergency procedures available before administrative courts? In the affirmative, do they cover the whole field of administrative law or do they concern only specific areas of administrative action (individual freedoms, public procurement, etc.)?

 There are particular procedures for petitioning judges hearing interim applications, within a relatively short period, for provisional or precautionary measures to protect the petitioner's rights.

The law draws a clear distinction between an interim relief judge ruling in summary proceedings – in which case, the petitioner must demonstrate the urgent nature of the case in order for the judge to rule on a provisional measure within a few days (summary suspension, summary release, summary relief) – and said judge ruling in what can be referred to as ordinary summary proceedings (summary verification, summary examination, summary judgement).

In each of the courts, the judge hearing the interim application is a magistrate ruling alone. More recently, said magistrate has been either the president of the administrative court or the administrative court of appeal, or an experienced magistrate appointed by the president of the court to assume the duties of interim relief judge. In the Council of State, judges hearing interim applications include the president of the Litigation Division as well as officials of the Council of State appointed by him/her.

The interim stay of execution enables to obtain, in case of emergency, the suspension of the execution of an administrative decision until a judge has ruled on this decision’s legality. The petitioner must demonstrate that there is serious doubt about this legality. The judge in chambers pronounces within a delay ranging from 48 hours to one month or more, depending on the emergency.

The freedom summary proceeding will enable to obtain from the judge in chambers all the measures required to safeguard a fundamental freedom that the administration is alleged to have seriously and obviously illegally infringed upon. The judge then pronounces within 48 hours even if it is not withdrawn at the end of this period.

The conservation summary proceeding enables asking the judge for any useful measure even before the administration has made a decision. The requested measure must be necessary and must not oppose an existing administrative decision. The judge pronounces within a delay ranging from a few days to one month.

There are other types of summary proceedings for which the emergency condition is not required:

  • the establishment summary proceeding that enables to obtain the appointment of an expert to quickly establish facts likely to be the cause for a dispute before the court;
  • the inquiry summary proceeding that permits ordering an expertise or any other inquiry measure, even in the absence of any administrative decision;
  • the provision summary proceeding that allows asking an advance on an amount due by the administration.

In addition to the above-mentioned summary proceedings, there are urgent proceedings specific to certain disputes.

  • The proceeding to oppose rulings of escort to the border is an urgent proceeding enabling foreigners to continue, and, in that event, to obtain without further delay the cancellation of the prefectorial rulings ordering their being escorted to the border due to the irregularity of their situation on the French territory. Since the applicant is deprived of his liberty (either because of his detention or because of his house arrest), his appeal must be tried within 72 hours by the administrative judge.
  • In tax matters, for example, the tax summary proceeding allows disputing a refusal opposed by the administration to a petition for deferment of a debt lodged in case of a contestation of an imposition.
  • The audiovisual summary proceeding enables the president of the “Conseil Supérieur de l’Audiovisuel” (Audiovisual Council) to ask the president of the Council of State’s litigation section to order the companies of the audiovisual sector to comply with their obligations.
  • In contractual matters, the pre-contractual summary proceeding allows asking the judge to sanction the dereliction of advertising responsibilities and competitive call for bid required in relation to public contracting and public service delegation.

Finally, there are also special regimes of suspension of administration acts subject to the only condition of existence of a serious doubt as to the legality of the act in question and instituted for the benefit of the prefect in the context of oversight over the local governments’ acts as well as various public authorities.

3.3. Procedural principles before administrative courts

What are the rules governing the conduct of litigation before administrative courts? What are the guarantees offered to litigants? What are the principles governing the relationship between judges and litigants?

 The rules of the litigious administrative proceeding are firstly the task of the administrative judger, through, on the one hand, the establishment of the proceeding’s general rules, like that of the regularity of the court’s composition, notably in relation to the rule of impartiality, and, on the other hand, the general rules of procedure, of which some are general rules of law, like the proceeding’s contradictory nature (the general rules may be excluded by law only).

These rules have gained, for several years, from the influence of the European Convention for the Protection of Human Rights and Fundamental Freedoms, in particular its article 6, and from Community law. They are also subject to the Constitutional Council’s protection, which established as principles of constitutional value both the rule of respect for the defendant’s rights and its corollary, the rule of the audit in the presence of the parties.

The litigation administrative proceeding is essentially written; in addition, it is inquisitorial (the judge controls the legal proceeding and leads the inquiry).

The formalization of these rules in the code of administrative justice comes under the regulatory power, which is principally responsible for drawing up the rules of the administrative court proceeding, the legislator setting the procedural rules guaranteeing freedoms.

Respect of impartiality lies with both the relevant jurisdiction’s members, who may spontaneously abstain from sitting and ask to be replaced (art. R. 721-1 of the code of administrative justice), and with the party in the proceeding who may demand the magistrate’s impeachment if there is “a serious reason to question his/her impartiality” (art. L. 721-1 of the code of administrative justice).

This challenge request must intervene at the end of the hearing, at the initiative of the party him/herself or his/her agent serving as proxy. This request, addressed to the court’s clerk of court, must, under penalty of inadmissibility, specifically indicate the challenge’s grounds and be accompanied by particular exhibits to justify it. The court member referred to in the challenge request shares his/her observations before this request is adjudicated upon.

The jurisprudence came to specify the situations in which it is possible to question a judge’s impartiality. For example, it is the case, when an agency or agent having taken a stand on a question makes a decision, a fortiori a judgment, on the same question; it is the same if a public agent has a particular interest in a case where he/she must make a decision. If a judge cannot take part in the judgment of his/her decision, the author of a claim similarly cannot take part in the judgment given following this claim’s filing.

3.4. Reference standards for the control exercised by administrative judges

 In relation to which norm (regulations, laws, international conventions, constitution ...) do administrative judges control administrative acts? Are they competent to control the conformity of laws and regulations with the Constitution (constitutional judicial review)? Are they competent to control the conformity of laws and regulations with international treaties (judicial review of international law)?

 Control of the legality of an administration’s act or policy is made in reference to a prioritized and complex set of written or non-written standards and where rules of domestic law can be found (Constitution and rules of constitutional value, laws, general rules of law, administrative regulations) as well as rules from community law (treaties, secondary community legislation, general rules of community law) and international conventions, notably the European Convention for the Protection of Human Rights and Fundamental Freedoms. In domestic law, the Constitution prevails over international law; however, this latter prevails over the law, even subsequent.

In France, the Constitutional Council judges the conformity of laws with the Constitution. On the other hand, the administrative judge can control the conformity of a regulatory act with the Constitution if this act does not simply take back the content of a law, as well as the conformity of a regulatory act with the international treaties. Since the Nicolo decision issued by the Council of State in 1989, the administrative judge can also check the conformity of laws with international treaties, and, where they do not comply, dismiss the application in the submitted dispute.

3.5. Scope and nature of administrative judicial review

 May administrative judges control all acts taken by the administration? Are certain acts exempted from this control?

 Two categories of acts cannot be appealed against: the government’s acts and measures of interior order.

The government’s acts are political acts due to the matters in which they intervene. These are, on the one hand, the acts or domestic law related to the relationships between the constitutional public authorities and, on the other hand, acts of international law related to the relationships between the French State and the foreign States or international organizations.

The measures of interior order are acts of a scope that is considered too weak to be review by the judge. They essentially include measures for management and internal discipline in military and penitentiary establishments and educational institutions, whose significance is considered too low to be submitted to the administrative judge’s oversight. However, the judge accepts to have competency regarding these measures which would have appreciable effects on protected rights and liberties or on a statutory situation.

 Which degree of control is used by administrative judges? Does this degree of control vary according to the nature of the challenged act and/or the margin of appreciation left to the administration?

 The rule of legality has varying requirements as it is interpreted and implemented by the administrative court. Notably, it is important to bear in mind that it does not exclude administrative authorities having freedom of action illustrating what is called their “full power to act”.

When the administration has a choice between enacting a decision and abstaining from any decision or between two or more decisions of different content but equally compliant with the law, the judge is not always bound to oversee the appropriateness of the choice made by the administration.

In addition, subjection to the rule of legality is more or less rigorous depending on whether the jurisdictional oversight is introduced as a “normal control” or a ”restricted control”. It will be restricted in the case where the decision whose legality is to be assessed was made in exercising discretionary power, that is, when the legality of the decision that the administration chose as most expedient has to be assessed. In this case, the administrative judge will control whether the decision is based on a factual error, legal error, or of abuse of power, but the control of the facts’ legal qualification will only consist of censure of the obvious mistakes of assessment. On the contrary, in the usual cases where the administration’s decision is guided by legal criteria and where, therefore, the judge carries out a normal control, all the errors in the legal qualification of the facts will be censured.

In certain cases, normal control and restricted control are exercised according to specific terms. Thus, the restricted control does not include the search for an obvious error of assessment when the decision results from a sovereign administration’s assessment (example of examination juries).

On the contrary, the normal control can be detailed by applying the theory of the audit which allows confronting a decision’s advantages and disadvantages; the decision will only be legal if it is adequately proportional to the facts (example of the legality’s assessment regarding statements of public utility in relation to expropriation).

3.6. Dissident opinions

When judges disagree with a ruling, are they allowed to express a dissenting opinion? In the affirmative, may they express it in all cases?

 French judges are not allowed to express a dissenting opinion because of the rule of secrecy. The rule of secrecy of deliberations has a double meaning: not only does it impose on the judges to deliberate in the absence of both the public and the parties and their lawyers, but it also forbids disclosure, at any period and to anyone, of the nature of the discussions and the pronouncement of each magistrate. Eventually, it leads to the judgment’s irregularity, mentioning that they were given by a consensus of votes or revealing the individual opinion of each of the judges.

3.7. Alternative methods of dispute resolution

Are there alternative dispute resolution methods? Please specify.

 The proliferation of litigations involving small amounts of money, such as the refusal of the law enforcement authorities, or the application of contracts, such as public works, called for the development of dispute resolution methods.

A law of November 18, 2016 gave a new status to mediation and extended mediation to all administrative matters. A compulsory pre-mediation procedure in certain disputes is also being tested.

The right to compromise is given to public corporations to settle their disputes. Most of the time, the transactions they sign with private individuals constitute private law contracts and do not fall within the competence of the administrative judge. The administrative judge nevertheless verifies so ensure transaction does not disregard a rule of public order notably when he/she is asked to approve this transaction.

On the other hand, the public corporations are subject to a ban on principle to appeal arbitration. Only the law can lift this prohibition in certain cases (art. L.311-6 of the code of administrative justice) and, when this appeal of arbitration is authorized, it is optional. The parties in a dispute may decide to have right to appeal only through an appraisement bond and not through an arbitration clause. In the absence of special provisions, the arbitration procedures involving public corporations follow the rules of common law. The arbitral sentence regularly pronounced has legal authority. It can be appealed before the administrative court of appeal.

3.8. Digitised procedures

Is there a specific digital procedure for the submission of claims?

 An application (Télérecours) allows the parties who are represented by a lawyer and the public administrations to request the judge online. Communication among the parties and between the parties and the jurisdiction are thus carried out by dematerialized way.

Télérecours is a computer application that helps to manage the dematerialised communication of appeals, statements of case and procedural documents between the administrative courts and the represented parties as well as the major parties.

- It provides the parties as well as the courts immediate accessibility to the content of all the cases;

- By registering in Télérecours, an administration or a lawyer will be identified in a national directory and will thus authorise all the administrative courts to communicate with it/him/her regarding any case through this channel.

Télérecours has been deployed in all the metropolitan courts in December 2013: its implementation is a tool to modernise administrative justice. The use of this application became mandatory on January 1st, 2017, for all lawyers and the main administrations. Municipalities with fewer than 3,500 inhabitants are free to use it or not. If the request has not been received through teleprocedure, the court requests a new sending via teleprocedure within a time limit that it sets. If this deadline is not respected, the request is rejected as inadmissible. In the same way, any statement which would not have been sent through teleprocedure will be rejected if the user does not regularize its sending after the formal notice sent by the jurisdiction.

Since November 30, 2018, the administrative jurisdiction has also launched an application (Télérecours citoyens) that allows parties which are not represented by a lawyer to refer to the judge by dematerialized way. Like Télérecours, Télérecours Citoyens allows referral, exchange of statements and communication with the jurisdiction. The use of Télérecours Citoyens is not mandatory.

4. Effects and execution of judments

4.1. Powers of administrative judges

May judges amend administrative acts by substituting their own analysis to that of the administration or may they only invalidate them? May they compel the administration to act in a specific way (power of injunction, penalties)?

 For a long time, the administrative judge refused to address injunctions to the administration, including for the execution of his/her decisions. The only recourse for the decision’s beneficiary was to launch another appeal against the administration’s inertia. From now on, the law of February 8, 1995, confers to the administrative courts the possibility of addressing to the administration injunctions to take an execution measure in a determined direction or to rule again in a pre-determined timeframe. The court must be referred to with conclusions in this regard. Public corporations or private law institutions responsible for management of a public service are subject to this injunction. As for individuals, these provisions are useless and the administrative judge has long held injunction power with respect to them.

This injunction power is matched with a possibility of penalty. This latter must be requested, except before the Council of State, which can pronounce it automatically and in addition enjoys the support of a cell specifically responsible for following the execution of its decisions.

In addition, in the context of an appeal in full jurisdiction, the administrative judge can substitute his own decision for that of the administration (for example, he can modify the quantum of a sanction) - See supra.

4.2. Impact and authority of administrative judgements

To whom do decisions rendered by administrative judges apply (absolute effect – erga omnes - of res judicata, relative effect of res judicata)? What criterion is used to choose between these two options?

In principle, the legal authority of the judged matter is relative: it depends on the dispute’s elements, determined by the parties, its object and its cause. This is true both for the full jurisdiction decisions and for the decisions on appeal for excess of power.

In certain cases, the final judgment is vested with absolute authority. This is the case for judgments pronouncing a cancellation for excess of power whose authority is not limited to the parties in the dispute but, as the cancelled act is supposed to never have existed, affects everyone.

The cancellation of an administrative act implies, as a rule, that this act shall be deemed never to have occurred, but the Council of State stated, in a decision Association AC! in 2004 that the judge may decide to make an exception to this rule, in exceptional cases where the cancellation’s retrospective nature would lead to consequences, on public and private interests, going far beyond that which justifies respect for the principle of legality. Then he/she may decide that the cancellation only takes effect from the time of his/her decision or even that it will come into force at a later date to allow time for the administration to adopt the measures required to avoid a legal vacuum.


4.3. Appeals

 May rulings of administrative courts be challenged? What is the time limit for appeal? Before which authorities / jurisdictions can these rulings be challenged?

 A party to the legal proceeding of first instance who is not satisfied with the administrative court’s judgment may appeal against this judgment within two months from the decision’s notification. Except for in cases of exceptional expense, the petition in appeal must be introduced by counsel and it does not suspend the first instance judgment.

The administrative courts of appeal are most often judges of appeal of the administrative tribunals. However, the Council of State is judge of appeal for disputes related to municipal and cantonal elections, the appeal to assess the legality or for the decisions made by the summary proceedings judge ordering measures required to safeguard a fundamental freedom.

For certain types of disputes, restrictively listed in the code of administrative justice, there is no appeal and the only possibility of opposing the judgment is the appeal to the Supreme Court before the Council of State. As a judge of cassation, the Council of State does not judge the case again. It settles for verifying the respect for rules of procedure and ensuring that the inferior courts properly apply the rules of law.

5. Statistics

5.1. Number of cases and time taken to judge cases (over the last 5 years)











Registered cases

175 762

195 625

192 007

193 532

197 243

212 990


Heard cases

183 182

188 295

188 783

191 697

201 460

209 591

Reserve ratio

104,2 %

96,3 %

98,3 %

99,1 %

102,1 %

98,4 %

Number of cases in stock

149 904

157 262

161 992

164 691

161 046

166 095











Registered cases

28 885

29 857

30 597

31 308

31 283

33 773

Heard cases

29 015

29 930

30 540

30 605

31 283

32 854

Reserve ratio

100,5 %

100,2 %

99,8 %

97,8 %

100,0 %


Number of cases in stock

27 549

27 501

27 530

28 600

28 533

29 463











Registered cases

9 235

9 456

8 727

9 620

9 864

9 563

Heard cases

9 685

9 626

9 553

9 607

10 139

9 591

Reserve ratio

104,9 %

101,8 %

109,5 %

99,9 %

102,8 %

100,0 %

Number of cases in stock

6 320

6 199

5 386

5 461

4 961

5 255



Average time taken to judge ordinary cases








Tribunaux administratifs

1 year,

10 month,

2 days

1 year,

9 month,

4 days

1 year,

9 month,

7 days

1 year,

8 month,

21 days

1 year,

9 month,

21 days

1 year,

9 month,

2 days

Cours administratives d’appel

1 year,

2 month,

11 days

1 year,

2 month,

1 jour

1 year,

1 month,

15 days

1 year,

1 month,

26 days

1 year,

2 month,

13 days

1 year,

3 month,

7 days

Conseil d’État

1 year,

3 month,

9 days

1 year,

1 month,

26 days,

1 year,

2 month,

2 days

1 year,

12 days

1 year,

1 day

11 month,

30 days


5.2. Number of administrative judges

The Council of State has about 300 members of which 200 are active in the Council of State and 100 occupy an external position.

There are about 1230 administrative magistrates.

5.3. Economic and financial data (budget, etc.)

 The budget of the administrative court is increasing over the last years (420 million Euros in 2019, an increase of 3.4% compared to 2018).


© AIHJA - IASAJ Copyright