To exercise its public service mission, the Administration takes acts that you can challenge before the administrative judge (Without forgetting to go, if necessary, through the box administrative appeal before grabbing it!).
There are mainly two kinds. These are the regulatory acts that are binding on everyone, and the individual acts that apply to a person, or a group of people, in particular.
To exercise their missions, the executive power and all the administrative authorities holding regulatory power issue regulations. That is to say, general and impersonal measures that all citizens must respect.
The president of the Republic
The President of the Republic has very limited regulatory power. According to article 13 of the Constitution, it only exercises it to issue decrees taken after deliberation in the Council of Ministers or within the framework of international relations.
The Prime Minister
According to the Constitution, the Prime Minister, as head of government is the main depositary of regulatory power, for this purpose he has:
- a general regulatory power (Article 21 of the constitution).
- It issues decrees which specify the terms of application of a law (specifies the date of entry into force, etc.).
- the power to issue autonomous regulations (Article 37 of the constitution)
- a regulatory police power
These decisions will apply throughout the territory
The constitution does not grant them specific regulatory powers (CE May 23, 1969, the Brabant distillery company). However, as heads of service, responsible for the organization and operation of the ministries for which they are responsible, the Prime Minister may delegate part of his activities to them. It is mainly a question of taking all the necessary measures allowing the concrete application of a decree. These regulations are mainly ministerial orders.
Independent administrative authorities (AAI)
The National Commission for Informatics and Freedoms (CNIL), the Superior Audiovisual Council (CSA), the Commission for Access to Administrative Documents (CADA), the Competition Council, etc.
These AAIs have limited regulatory power directly related to the missions entrusted to them and with regard to their specificities.
Territorial communities and local authorities
It is with the constitutional revision of March 28, 2003, which creates an article 72 paragraph 3, that the local authorities (municipalities, departments and regions) will be endowed with full regulatory power.
They are structures distinct from the administration with autonomous powers (they manage their staff, their budgets, etc.). Municipal, departmental and regional councils have the power to issue regulations throughout the territory for which they are responsible.
Certain local authorities such as mayors, prefects and presidents of general councils have police powers and will take all necessary acts in the exercise of this mission.
All the regulated professions are grouped together in Orders such as the Bar Association, the Order of Physicians, etc. These orders benefit from regulatory power ordinal making it possible to unify the rules and uses of their professions (conditions of access to the profession, disciplinary measures, etc.).
Private persons responsible for carrying out a public service mission
The administration can entrust legal persons governed by private law with the management of a public service whose mission is to serve and satisfy the general interest. To carry out this mission, these legal persons will be endowed with regulatory power.
These acts can be taken by a public body in the exercise of its missions. They are imposed on the people concerned without having to inform them or obtain their consent. They could be acts which, binding on their addressees, will have to be executed automatically or simple decisions without real binding force.
These individual decisions are used by the administration to create obligations, rights, or issue authorizations (refusal of a residence permit, a building permit, etc.).
They are automatically enforceable. This means that once taken, these decisions must be applied without having to verify their conformity or their merits. The principle is to challenge them before the judge a posteriori, after their executions.
The citizen who refuses to apply the act taken against him may be prosecuted in criminal proceedings. This, in general, dissuades any person not to apply the act taken against him.
Repressive texts provide for and penalize certain breaches (police regulations, tax evasion, etc.). The wide variety of administrative sanctions includes:
- Warnings and reprimands pronounced in disciplinary matters; the fines ; withdrawals of benefits, approvals or authorizations; closures or even deletions of establishments or installations; the ban on exercising a profession ...
Very often, the “recalcitrant” citizen will have to carry out proceedings before the administrative and repressive courts in order to challenge the decision and hope to win the case.
To be obeyed, the administration also has recourse to the constraint (impoundment of a vehicle, requisition order to force a person to leave the premises, etc.).
The texts and especially the case law frame this power of constraint and only authorize it:
- If the decision to be executed is based on a text of general application
- If the individual offers real resistance to comply
- If no penal or administrative provision allows sanctioning the breach
In any case, even if these criteria are not fulfilled, the administration will always have the means to act by making use of “the action ex officio”. This action based onEmergency will in itself justify the use of forced execution.
The directors of public establishments (penitentiaries, schools, hospitals, etc.) are the guarantors of the proper functioning and organization of their services. They can take all the acts necessary in the exercise of their missions (internal regulations, disciplinary sanctions, proposals, recommendations…).
These measures will be declared illegal a posteriori if they infringe on protected freedoms or rights or if they undermine the career prospects of the persons concerned.
They are sent by the ministers, rectors, prefects (in their capacity as head of service) to all their subordinates. These are instructions, recommendations and explanations provided as soon as a new text appears (law, decree, etc.).
There are 2 kinds of flyers:
Non-imperative circulars (formerly called interpretative)
They expose, comment on and explain the principles of a policy to their agents and users. They are used to communicate on how to interpret and understand laws and regulations to promote their homogeneous implementation throughout the territory.
These measures cannot be challenged before a judge, as they do not cause any grievances. They have no more value than a memo that delivers a "manual" on how a text should be applied.
Mandatory circulars (formerly called regulatory)
These circulars, under the pretext of explaining texts, will add new provisions, set new rules, or even set out measures contrary to the text they apply.
They may be the subject of an appeal from their publication in the Official Journal (CE January 12, 2009, National Prison Union FO)
Note: They are distinct from European Union directives which, taken to harmonize the laws of the Member States, are mandatory. To avoid any confusion, the Council of State now prefers to call them “guidelines” (CE 19 September 2014).
The directives do not impose anything and do not change anything of the text which they transpose. They serve to guide and set a course of action, to specify the general criteria of a text so that all administrative services apply it in the same way on the territory. This ensures equal treatment of all users of the public service.
However, the authority to which it is addressed retains its freedom of appreciation. This means that a directive does not have any direct effect on the citizens and that it cannot in any case modify their legal situation. As a result, a directive does not have any regulatory character.
However, the citizens will be able to take advantage of a directive before the administrative judge to contest the text from which they originate.