In France, the (; Council of State) is a governmental body that acts both as legal adviser to the executive branch and as the supreme administrative court (one of the two branches of the French judiciary system). Established in 1799 by Napoleon as a successor to the King's Council (), it is located in the Palais-Royal in Paris and is primarily made up of top-level legal officers. The Vice President of the Council of State ranks as the most importanthttps://www.legifrance.gouv.fr/loda/article_lc/LEGIARTI000043824648/2021-12-02 | Décret n°89-655 du 13 septembre 1989 relatif aux cérémonies publiques, préséances, honneurs civils et militaires civil servant in France.
Members of the Council of State are part of a Grand Corps of the French State (Grand corps de l'État). The Council of State mainly recruits from among the top-ranking students graduating from the École nationale d'administration, which has been renamed as the Institut national du service public.
Composition
A General Session of the Council of State is presided over by the Prime Minister or, in their absence, the Minister of Justice.Code of administrative justice, article L121-7 However, since the real presidency of the Council is held by the Vice-President,Council's Website the Vice President of the Council of State usually presides at all but the most ceremonial assemblies. This is also done for obvious reasons pertaining to the separation of powers.
Other members of the Council include, in decreasing order of importance: Department heads (Présidents de section) Councillors ordinary (Conseillers d'État ordinaires) Councillors extraordinary (Conseillers d'État en service extraordinaire) Masters of Requests (Maîtres des requêtes) Master of requests extraordinary (Maîtres des requêtes en service extraordinaire) Senior masters (Auditeurs de première classe) Masters (Auditeurs de deuxième classe)
The Vice-President of Council of State is appointed by Order-in-Council on the recommendation of the Minister of Justice and is selected from among the Council's department heads or councillors ordinary.Code of administrative justice, article L133-1 Division heads are similarly appointed and selected from among the councillors ordinary.Code of administrative justice, article L133-2
Councillors ordinary, masters of requests, and senior masters are appointed based on seniority from the preceding rank.Code of administrative justice, articles L133-3, L133-4, L133-5. Appointees from outside the Council may include administrative law judgesCode of administrative justice, L133-8 or may come from outside the justice system.Code of administrative justice L133-7 Masters are recruited from among the graduates of France's National Administration Academy.Code of administrative justice, article L133-6 The Council sits in the Palais Royal located in Paris.
The Council is divided into 7 divisions: Administrative Claims (section du contentieux) — see below. Report and Studies (section du rapport et des études): writes the annual report, conducts studies and helps to oversee judgments and verdicts are carried out. Finances (section des finances), the Interior (section de l'intérieur), Welfare and Social Security (section sociale), Public Works (section des travaux publics) and Administrative Issues (section de l'administration, created by a March 2008 order) review any and all Cabinet-issued orders and statutory instruments and examine and sign off on all Orders of Council (décrets en Conseil d'État). These reviews, though mandatory, are not binding. The Council of State also studies legal issues and problems brought before the Cabinet.Code of administrative justice, L112-2 In addition, it is responsible for carrying out administrative court inspections.Code of administrative justice, L112-5
History
The Council of State originates from the 13th century, by which time the King's Court (Curia regis) had split into three sections, one of which was the King's Council (Curia in consilium, later Conseil du roi), which too broke up into three distinct parts: the Conseil secret 'Privy Council', the Conseil privé 'Private Council', and Conseil des finances 'Council of Finances'. Reorganized under Louis XIV into two major groupings, the Conseil d'État privé, finances et direction was the direct ancestor of the Council of State. It brought together legal advisors and experts to advise the King on claims against the Crown. Officially established in 1557, this was the largest of the King's Councils made up of France's High Chancellor, lords of peerage, Ministers and Secretaries of State, the Comptroller-General, 30 Councillors of State, 80 masters of requests, and the Intendants of Finance. The judicial portion of the Council was known as the Conseil d'État privé or Conseil des parties.
French kings had the power to dispense justice and hand down judgments as the court of last resort and delegated this judicial power to royal courts and parlements. But the French king still retained the power to override them at will. Specifically, French kings maintained their privilege to decide major issues and hand down judgment when administrative acts were in dispute. The judgments of the King's Council of State were regarded as being issued under the King's residual proper jurisdiction (justice retenue), that is, the sovereign's reserved power to dispense justice in certain matters. Legal advisors also assisted the King in developing new laws and, by delegated jurisdiction, directly exercised sovereign rights (jura regalia).
For more on French government administration during the Old Regime, see Ancien Régime in France.
The French Consulate government established the current Council of State in 1799 as a judicial body to adjudicate claims against the State and assist in the drafting of important laws. The First Consul (later Emperor) presided over Council sessions, and the Council performed many of the functions of a Cabinet. After the Bourbon Restoration, the Council was retained as an administrative court but without its former prominence. Its role was more precisely defined by an 1872 Act of Parliament.
The Council of State was originally a court of first instance and last instance, but since the creation of the in 1953 and the in 1987, it has increasingly become a supervisory court, with a role as an appeal court in a small number of areas. The Council of State hears appeals on questions of law from lower courts and gives advisory opinions on the law on reference from lower courts. Below it are 42 administrative courts of first instance (tribunaux administratifs) and 8 administrative courts of appeal (cours administratives d'appel).
Advisory role Certain types of statutory instruments must be examined by the Council and receive its advisory approval, including: All draft legislation proposed by non-parliamentary members and prior to being introduced before Parliament. Orders-in-council, signed by the Prime Minister and cabinet ministers; any such order is a form of delegated legislation outlining how a statute or act of Parliament is to be carried out or put into effect. Typically, a statutory law will authorize, prescribe, or prohibit an action defined in broad terms and require a government order to define its scope and application.
The Council's advisory workload is divided between its administrative sections with respect to the ministry or department affected by the government order.
Administrative justice The Council acts as the supreme court of appeal for administrative law courts. It hears both claims against national-level administrative decisions (notably orders, rules, regulations and decisions of the executive branch) and appeals from lower administrative courts. The Council's decisions are final and unappealable.
While strictly speaking the Council of State is not a court, it functions as a judicial body by adjudicating suits and claims against administrative authorities. Plaintiffs are represented by barristers drawn from the Senior Court bar whose members are licensed to argue cases before the Council and Court of Cassation; any such barrister bears the title of Counsel at Senior Court (Avocat aux Conseils).Literally, "Barrister at the Councils", an antiquated title where council refers historically to a number of different conciliar courts, including the old Council of State and the Supreme Court, which grew out of another conciliar court – the Paris Parlement.
Original jurisdiction The Council hears cases against decisions of the national government, notably government orders, ministerial rules and regulations, judgments handed down by committees, commissions, and boards with nationwide jurisdiction, as well as suits concerning regional and EU electoral matters.
The Council has judged that such acts are restricted to: relationships between the executive branch and the legislative branch, e.g., whether a bill should be submitted to Parliament; acts that are part and parcel of France's foreign policy.See the analysis on the Conseil's site for more information (in French). In this role, the Council provides a powerful check on the actions of the executive.
Appellate jurisdiction The Council of State has appellate jurisdiction over local election judgments from any of the 37 administrative courts.
It acts as a final court of cassation for decisions originating from any of the eight appellate administrative courts, meaning that it hears cases in which the plaintiff argues that the appellate court ignored or misinterpreted the law. Should it decide that the original appellate court took the wrong decision, the Council of State will in most situations transfer the case to a different administrative court of appeal, to be re-judged. However, in the interest of swifter decision-making and correct interpretation of the law (bonne administration de la justice),Code of administrative justice, article L821-2 it also has the right to rule on the case without transferring it, thus acting as an appellate court of last resort (jugement en dernier ressort).
Court procedure Like nearly all French courts, the Council's court system is inquisitorial, and proceedings are initiated by a statement of claim detailing the factual background of the case and why the appellant should be granted relief. The Council then begins a formal investigation, asking the appellee, i.e., the government or a government agency or office, to satisfy the Council with a detailed statement of defense. Burden of proof does not lie with the plaintiff; instead, the Council decides whether or not the appellant has cause to bring suit and whether the government was in error if information provided by the appellant is sufficient to locate previously undisclosed evidence. Of course, both parties may submit additional pleadings and information until the case is ready for final judgment.
The formation of judgement depends on the importance of the case, for the jurisprudence and the interest of the law. All of the formations belong to the Administrative Claims department.
The smaller cases (without new legal issues) are treated by one chamber (known as under-departments, i.e. sous-section, prior to their reorganization in 2016Loi n° 2016-483 du 20 avril 2016 relative à la déontologie et aux droits et obligations des fonctionnaires, Article 62, §16). There are 10 chambers. The bigger cases are attributed to united chambers (chambres réunies), a configuration made up of two chambers, although, for some important fiscal cases, three or four chambers can be concerned, coalescing into an ad hoc formation, the "full fiscal" (plénière fiscale) chamber.