The French system of administrative justice has its origins in the legislation of the revolution and in the administrative organization of the Consulate. In 1790 the Constituent Assembly, consecrating the essence of solutions already acquired at the end of the ancient regime, built a system consisting of two elements for the resolution of the administrative dispute. On the one hand, it prohibited the ordinary courts from hearing about the disputes arising from the functioning of the administration: a prohibition connected with the principle of the separation of powers, but inspired above all by distrust of the ordinary courts, suspected of hostility towards the administration. This prohibition contained in the law of 16-24 August 1790 and reaffirmed by that of 16 Fruttidoro year III (2 September 1795), constitutes the rule, essential for French administrative law, of the “separation of authorities, administrative and judicial”. On the other hand, the Constituent Assembly, after considering the establishment of administrative courts, renounced it for a simplification criterion, and handed the decision on administrative litigation to the administrative bodies themselves, district and department directors., council of the king and ministers.
Organization. – This second part of the system soon disappeared. To give a minimum guarantee to private individuals, the Consulate, without creating real administrative courts, used two of the councils provided for in the constitution of year VIII for the resolution of the administrative dispute, namely the Council of State and the prefecture councils, which in addition to advisory functions had that of judging the contentious complaints directed against the administration. Thus the French legislation found itself on the road which it has always followed on the whole and which, with numerous reforms in detail, has led to the organization in force. Complemented by the gradual creation of a series of special jurisdictions: Court of Auditors, Audit Council (for military recruitment litigation),
In no case, administrative justice is exercised by bodies of active administration. – For a long time this principle suffered a notable exception, in the case of the judge minister. It was believed that when the minister decided on contentious complaints brought before him, in his capacity as superior or judge, he pronounced as judge of first instance. Indeed, for a long time he had been recognized as the common law judge in the first instance for administrative disputes. But this theory, in both respects, was completely discarded by jurisprudence, starting from about 1890.
The administrative justice is, all of it, delegate. – In the constitution of the year VIII, administrative justice, in the second degree, was reserved to the head of state; the Council of State did nothing but issue opinions, to which the head of state could not adhere (in fact, he always complied with them) and which only his signature transformed into sentences. The law of May 24, 1872 conferred a power of jurisdiction on the Council of State and the tribunal of conflicts; Now only a trace remains of reserved justice: in the matter of maritime prey, in the event of an appeal, the president of the republic decides by decree.
Administrative jurisdiction is exercised by courts, most of which still consist of advisory administration bodies. Some of the jurisdictions created after the World War are solely courts, with the sole function of judging (court of pensions, administrative court of Alsace and Lorraine, etc.); but most of them continue to be constituted by the organs of the advisory administration: prefecture councils, council of state, etc. The principle of the reform of the year VIII therefore still applies today. But reforms have been made to the organization of these councils also charged with contentious attributions, to ensure the best exercise of these, especially with the elimination of the influence of active administration. By replacing the departmental prefecture councils with 22 interdepartmental prefecture councils, decr. 6 September 1926 improved its composition and put an end to the presidency – to be sure, theoretical – of the prefect. The consultative powers of the prefecture councils, without being suppressed, have been greatly reduced; they have become almost exclusively judicial bodies, so that the decree of 5 May 1934 was able to extend their jurisdiction, attributing to them the litigation of responsibility and contracts of local administrations. As for the Council of State, a series of reforms, from 1830 onwards, ended up differentiating between it the consultative organ and the judicial organ. It exercises its jurisdictional powers through the litigation section (divided in turn into two judicial bodies and in subsections of instruction) and pleuary assembly of litigation (decrees 5 May and 11 July 1934) which are distinct from administrative bodies (administrative sections; general assembly). The members of the council belonging to political personnel or active administration (ministers, councilors of state in extraordinary service) are excluded from the litigation bodies; only the councilors of state in ordinary service belong to it, belonging to career staff, appointed mostly following a competition, and whose participation in the consultative powers of the Council of state has the sole effect of giving them, the actual functioning of the administration, that deep knowledge that makes them particularly suited to exercise their jurisdictional powers. It is universally recognized in France that the Council of State offers all the desirable guarantees of legal competence and impartiality; and it should be noted that in the functioning of administrative justice, it plays a very eminent part. The Council of State is in fact the ordinary judge in the first instance, and any dispute that the law does not attribute to another court can be brought before it. On the other hand, with regard to other jurisdictions, the Council is both an appeal judge and a cassation judge, so that all administrative litigation is subject to its control. The jurisprudence of the Council of State actually constitutes administrative law; and the right elaborated in this way,
Competence. – According to proexchangerates, there is a negative element of the revolutionary system, the prohibition to ordinary courts of knowing about “administrative acts”. If we refer to the reasons that inspired it, it is certain that the prohibition refers to all administrative acts; and so it was first understood. But following the emergence of the idea that only the ordinary courts provided individuals with sufficient guarantees against the administration, the notion of “administrative acts” was restricted, including only those administrative acts which present a specifically administrative character, leaving to the ordinary courts those acts whose nature does not differ from that of all private acts and which, juridically, are ”
In this definition of the administrative act, doctrine and jurisprudence have gone through various stages. For a time the question was settled by distinguishing between acts of empire and management. From about 1900, another interpretation prevails which has its basis in the theory of public management built above all by M. Hauriou. It proceeds from the idea that most acts performed to ensure the functioning of public services (as opposed to management in the private field), even when they belong to the same general legal categories as other acts of private law (e.g., to category of contracts), however, have particularities in which the prerogatives of the administration are manifested, as public power. Therefore such acts are of nature ” This determination of competence therefore leads to the attribution of the vast majority of disputes involving public services to administrative justice; and thus the litigation of responsibility for damages caused by the functioning of public services, both of local administrations and of the state; and so, too, the litigation of contractual transactions concluded for public services, for the reasons set out.
In conclusion, jurisdiction depends less on the nature of the act considered in itself than on its legal regime, on the nature, civil or administrative, of the fundamental rules that govern the act or operation that gives rise to the dispute. If the solution to this is to be sought in the application of rules of administrative law, the competence is administrative; it is judicial only in cases where the solution can be ensured by applying the rules of private law.
Thus the raison d’etre of administrative justice has been transformed. In the current conception, its justification is no longer the need to protect the administration against the alleged hostility of the courts, but the advantage, for the good administration of justice, of reserving disputes to a specialized judge whose solution depends on the application of those rules and of those special juridical theories, which constitute that law, distinct from civil law, which is administrative law. Reciprocally, it is the existence of administrative justice which, by adapting the general principles of law to the conditions of public services, has allowed the formation of administrative law as an autonomous legal discipline.