Obeying the principle of the separation of powers between the judiciary and the executive by the law of August 16 and 24, 1790, Napoleon Bonaparte will institute in the constitution of 1799 (of Year VIII) a new administrative jurisdiction, the Council of State .
It was not until the law of May 24, 1872 that the administrative courts became independent by exercising their missions "in the name of the French people" and no longer only in the service of the State. The Constitutional Council has elevated the principle of the independence of administrative jurisdictions to the rank of fundamental principle recognized by the laws of the Republic.
The Prime Minister is the legal president of the supreme jurisdiction, but it is the Vice-President of the Council of State who heads the institution.
Article 61-1 of the constitution and the constitutional revision of July 23, 2008 entrust two missions to the Council of State. He is an adviser to the parliament and the government to draft laws (1) and judge of the administration (2).
Advisory functions to public authorities
Provided for in Articles 38 and 39 of the Constitution, it provides a mandatory opinion on the legal regularity of draft laws and ordinances, with regard to internal and European law, before submitting them to a vote in parliament. It is only an opinion, the advisers can neither discuss the merits of it nor call into question the action of the government which remains free to follow their opinion or not.
Its opinion is also required for decrees and certain individual acts (individual measure of naturalization, recognition of the public utility of an association, etc.).
The advisory missions of the public and judicial authorities are strictly delimited. A judge cannot exercise the functions of judge and adviser in the same case. Just as the judges of the contentious section will not be able to have access to these files to judge a case. The strict separation of these two functions guarantees the independence of the magistrates in their office.
There are 5 sections:
- The interior section: competent for matters under the authority of the Prime Minister and the ministers of justice, interior, national education, higher education and research, culture and communication , relations with Parliament, youth, sports and overseas.
- The finance section: matters falling within the competence of the ministries of economy and finance, foreign affairs and cooperation
- The public works section: matters falling within the competence of the ministers responsible for agriculture, fisheries, equipment, transport, housing, tourism, industry and post and telecommunications.
- The social section: responsible for matters coming under the ministers responsible for employment, solidarity, health and ex-combatants.
- The administration section: Competent for all questions relating to the civil service; questions relating to relations between administrations and users; reform of the state and public services; non-contentious administrative procedure; national defense (except for questions relating to ex-combatants and victims of war and pensions); to order and public property.
Since the constitutional revision of 2008, the Council of State can be seized for opinion by the President of the National Assembly or of the Senate on a bill, if they deem it necessary.
The Council of State ultimately settles disputes between individuals and the administration in the broad sense (State, local authorities, public establishments, private persons entrusted with a public service mission such as professional orders or sports federations, etc.) .
The Council of State ensures the unity of administrative jurisprudence. The judicial function is entrusted to the Litigation section, the decisions of which are not subject to appeal.
He is the judge of cassation for all judgments rendered in the last resort by the administrative courts. Like the Court of Cassation, it does not re-judge the case but checks the application of the law.
However, if the law is misinterpreted, it does not refer a case to an administrative court to be retried (unlike the Court of Cassation). As allowed by article L. 821-l of the CJA, he will judge the case himself and his decision, which will replace that of the trial judges, will not be subject to appeal.
He is the judge of first and last resort against decrees and ordinances; disputes relating to the recruitment and discipline of officials appointed by decree of the President of the Republic; decisions rendered by Independent Administrative Authorities; appeals against regulatory acts of ministers and general circulars.
He is an appeal judge in disputes over municipal and cantonal elections; summary freedoms and preliminary questions on the assessment of administrative acts.
He is a referral judge when the administrative courts refer him to give his opinion on a new or complex question of law posing a serious difficulty in a case or to answer a priority question of constitutionality (QPC) sent by the parties to the dispute.
Members of the Council of State are non-magistrate officials.
- the Vice President of the Council of State
- the vice-presidents of the sections
- state councilors
- masters of requests
- 1st and 2nd class auditors.
The formation of the litigation section in charge of judicial remedies.
Simple cases are investigated and judged by a collegiate (3 judges) or by a single judge for the simplest cases.
It is made up of 4 bedrooms.
- The "base" chamber meets with at least 3 judges from among:
president of the chamber, two assessors, councilors of state, master of requests and rapporteurs
- The united chamber: when a complicated case requires the meeting of two or three chambers
Deputy president of the chamber of the litigation section, the presidents of each chamber, an assessor from each chamber, a rapporteur
- The litigation section: (9 judges)
President of the litigation section, the 3 deputy presidents, the presidents of the chambers, a rapporteur
- The litigation assembly:
The vice-president of the Council of State, the presidents of the 7 sections, the 3 deputy presidents of the litigation section, the president of the chamber in charge of the case, the 4 most senior chamber presidents in their function, a rapporteur
Note: The Council of State remains subject to the decisions of the conflict tribunal responsible for conflicts of jurisdiction between the courts of the judicial and administrative order.