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The Conseil d'Etat

                                                                                                                                   Joëlle Godard                                                                       Lecturer in Law
The University of Edinburgh

The Conseil d'Etat, sitting in the Palais-Royal in Paris, was created in its modern form by
Napoleon at the end of 1799 but was in fact a carry-over of the "Conseil du Roi" from the Ancien Régime which was giving advises to the King on legal and administrative matters.

Now, as first body of the State, the Conseil d’Etat has both judicial and administrative functions. Its members are, at the same time, judges of the "administration" (public service) and its central legal advisers. 

The judicial function of the Conseil

As judge of the "administration", the Conseil d’Etat is the supreme court of the administrative hierarchy of courts. 

In France, there is a dual system of courts : the courts of the ordre judiciaire (civil and criminal) and the ordre administratif (or administrative courts) which have exclusive 
jurisdiction when a case involves the State or a State employee or corporation as party.

The development of a separate administrative jurisdiction is without parallel in common law countries which possess a single jurisdiction for all types of cases. In France, it has been the result of special circumstances operating at the time of the Revolution and having its roots in the "Ancien régime". In 1789, the revolutionaries determined to avoid the jurisdictional conflicts of the Ancien Regime by removing the jurisdiction of the courts in respect of administrative activity. The famous Law of 16-24 August 1790 which was in part inspired by the Montesquieu theory of the separation of powers (in order that there be no abuse of power, it is necessary that power curb power) but  for the revolutionaries the separation of powers was the release of the administrative authorities from the control of the judiciary. The fact that the civil courts were not competent to deal with litigation involving the administration soon led ministers to turns to the Conseil d’Etat for its advice. However, in this latter role the Conseil did not initially act in a truly judicial fashion, for although from as early as 1806 a  special judicial committee sat to hear such cases, it only made recommendations, the final decision being taken by the head of the state or his ministers. It is only with the passing of the law 24.5.1872 that the Conseil d'Etat have sovereign power to pronounce judgment in administrative cases.

The Conseil d'Etat in 1872 was not conceived as an independent body, but rather evolved into one. Without its independence from government pressure, the development of the judicial section of  the Conseil d'Etat into a respected court is difficult to conceive.

The administrative courts exercise the sort of control over the legality of administrative actions and have the power to annul administrative acts and decisions and also regulations. They also can afford redress in the form of damages to those who have suffered injury or damage as a result of a wrongful act on the part of a public servant acting in the course of his duties.

The Conseil d'Etat offers positive guarantees to the citizen against the arbitrary or unjust action of the administration and affords guarantees to the administration against undue  interferrance by ordinary courts. French administrative jurisprudence has followed a development familiar to common law lawyers : it is case law and uncodified, unlike French civil and criminal law.  The Conseil d’Etat has succeeded in imbuing the administration with a respect for legality of action, though the Conseil d’Etat as an administrative court has been aided in this task by its role of technical counselor of the government.

The Conseil d’Etat as legal adviser of the State

The rôle of the administrative divisions of the Conseil d’Etat  is to give the government confidential advisory opinions on proposed legislation, the appropriate division revising bills and draft decrees, etc., in conjunction with the relevant ministry.

All members of the Conseil have to undertake both judicial and advisory duties, being simultaneously assigned to an administrative division and the Judicial Division.  The
interpenetration of administrative and judicial functions is a good thing. If administrative judges were isolated from the active administration, if they cease to be in constant contact
with the needs and constraints of administrative life, they would lose their specific  character. Instead of building a law adapted to the necessities of the public service, they would be inspired by a fosilised law bearing no relationship to the realities of the active administration. Administrative judges must have an administrative training, and they have to sustain it to retain an understanding of administrative life.

To fulfill these two rôles -as judge and adviser of the government- the Conseil d’Etat is divided into six sections, five administrative and one judicial.  The members of the Conseil, are mainly recruited directly through the competitive examination of the Ecole Nationale d'Administration.  Once appointed, an auditeur (generally at the age of 26) will become a Maître des Requêtes and will remain in the Conseil d’Etat until he is pensioned as a Conseiller d'Etat (at 65, with a possibility of extension to 68). At the moment, there is 89 Conseillers d'Etat, 141 Maîtres des Requêtes and 20 Auditeurs. A certain proportion of the higher echelons are appointed for four years by the government among other civil servant. The detached-service activities of the members of the Conseil d'Etat give them some experience of the administration and they also take with them the viewpoint of the Conseil. On the other hand, the contact of the young and the old is also advantageous. All have their functions on the Conseil d’Etat. The constant infusion of young blood and new ideas into the Conseil keeps it in touch with the times.

However, the Conseil d’Etat has also some problems. Since the end of the First World War, the increase in the number of cases brought to the Conseil d’Etat has grown considerably.

In 1988, the Conseil d’Etat which was then hearing 7,000 to 8,000 cases a year, had a backlog of over 25,000 cases. So, an intermediate level of appellate jurisdiction (five Administrative Courts of Appeal) has been created in January 1989 (Act of 31 December 1987). Being somewhat of an intermediary between the Council of Ministers and the active administration, and largely independent of either, the Conseil d'Etat is in a position to exert its influence on both.

This robust institution has survived the vicissitudes of two monarchies, two empires and five republics, not to mention a foreign occupation. Even with change of governments, the lack of a stable majority

In its present condition, the State in Scotland doesn't seem likely to attempt to form its own equivalent of the Conseil d'Etat. Fortunately or otherwise, Scotland does not have the benefit of a Napoleon to start the ball rolling. However, the development of Judicial Review is important to the people of Scotland and there are many lessons which can be learned from the French model and which might be worthy of consideration.

This article was published The Journal of the Law Society of Scotland 1993, 38(5), 195-196

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