The administrative jurisdiction in France is the branch of the judiciary responsible for judicial review, adjudicating and overseeing the French public administration of the state, territorial collectivities, and social security administrations, as well as resolving disputes involving them. In France, such disputes are handled by specialized judges: administrative judges.
This administrative jurisdiction generally evolved from the administration itself, which prior to 1872 judged its own disputes.
Administrative courts are fully independent tribunals, separate from judicial tribunals. They form one of the two jurisdictional orders in France, the other being the judicial order.
Proceedings are primarily written: lawyers rarely plead orally, except in certain disputes, such as those involving immigration law.
Status
The administrative jurisdiction was not explicitly recognized in the body of the 1958 Constitution until the 2008 constitutional reform and the introduction of the priority question of constitutionality. Previously, the Council of State was mentioned only as a consultative body, not as a judicial one.
In its decision of on the Validation Law, the Constitutional Council recognized that the independence of the administrative jurisdiction, as established by the law of 24 May 1872, is one of the fundamental principles recognized by the laws of the Republic (PFRLR)—granting it constitutional value (similar to the judicial order under Article 64 of the Constitution).
Furthermore, part of its jurisdiction, and incidentally its existence, was also constitutionalized—again as a PFRLR—by the Constitutional Council's decision of on the Competition Council, regarding the annulment and reform of decisions taken by administrative authorities in their exercise of public authority. To this end, the Constitutional Council relied on the "French conception of the separation of powers," characterized by Articles 10 to 13 of the laws of 16 and 24 August 1790, which prohibit judicial tribunals from interfering in state affairs under penalty of forfeiture, and by the decree of 16 Fructidor Year III, which bars these jurisdictions from hearing administrative acts of any kind.
Types of appeals and powers of the administrative judge In French administrative litigation, there are four main types of appeals, distinguished by the powers available to the judge.
Appeal for abuse of power The appeal for abuse of power is the historic remedy in French administrative litigation. It is based on the principle of cassation through the annulment of an act violating a rule of law. The judge's powers are minimal. The grounds for an appeal for abuse of power are thus limited to questions of legality. There are two categories of grounds: internal legality grounds and external legality grounds. External legality grounds include the incompetence of the act's author, formal defects, and procedural defects. Internal legality grounds include errors of law, errors of fact, and violations of the law. The parties' main claims can only seek the annulment of the act or the dismissal of the application. Consequently, the judge's powers are limited. Initially, the judge could only grant annulment or dismissal claims. The judge may also order the losing party to pay costs not included in the taxable costs.
In principle, the annulment of an act results in its disappearance and the retroactive elimination of all effects it produced. The retroactivity of annulment is central to the principle of legality in administrative law. After annulment, the act is deemed never to have existed legally. This distinguishes annulment from abrogation, which eliminates the act only prospectively.
However, the powers of the judge in abuse of power appeals have expanded under the influence of the Council of State. First, the administrative judge can modulate the temporal effects of annulment since the Council of State's plenary decision of 11 May 2004, Association AC! and Others. In the name of protecting legal certainty, when the retroactive annulment of an illegal act's effects could have excessively severe consequences, the judge may modulate the timing of those effects or even deem past effects definitive. Second, the administrative judge has extended its power of injunction beyond the investigative phase (e.g., ordering document production). Since the law of 8 February 1995, it can issue injunctions to ensure enforcement of res judicata. These injunctions may include penalties. They do not dictate the decision the administration must take but require it to make a decision to comply with the judgment. Thus, the greater the administration's discretionary power, the less directive the injunction can be. Conversely, if the administration is in a bound competence situation, the injunction can specify the required decision.
Objective full litigation appeal The objective full litigation appeal is also a challenge to the legality of an administrative act. Like the appeal for abuse of power, the grounds invoked concern the internal and external legality of the administrative act.
However, the application's claims may seek the reform of the act, i.e., its rewriting by the judge. In the case of an illegal sanction, the judge may substitute a legal sanction.
Subjective full litigation appeal The subjective full litigation appeal does not concern the legality of an administrative act. It is an appeal challenging the liability of a public entity to obtain compensation for harm.
Administrative non-contractual liability is recognized as distinct from civil liability and falls under the administrative judge's jurisdiction since the Tribunal des Conflits' decision of 8 February 1873, Blanco. This decision recognizes the state's non-contractual liability in the performance of a public service mission. This liability is fault-based and requires the triad of fault, damage, and causation. Alongside the fault-based non-contractual liability regime, there is a no-fault non-contractual liability regime that includes only two of the three elements: damage and causation. The administration committed no fault, but the damage arises from its action. Compensation is awarded based on the principle of equality before public burdens, derived from Article 17 of the Declaration of the Rights of Man and of the Citizen of 1789. There is also a third type of non-contractual liability: liability without act, notably in the name of national solidarity. A typical example is the state's liability for gatherings under Article L. 211-10 of the Internal Security Code.
Administrative contractual liability applies exclusively within contractual relationships between the administration and its co-contractor (and third parties for regulatory clauses in the contract, e.g., internal regulations of a public service in a public service concession contract), unlike non-contractual liability, which anyone can invoke if conditions are met.
To bring a liability action against a public entity, the litigation must be linked. This is a admissibility condition for all appeals but is particular in liability cases. Linking the litigation means the application must target an administrative act, not merely conduct. Thus, in abuse of power and objective full litigation appeals, linking is automatic since the object is an administrative act. In liability cases, there may not be an underlying act. Therefore, before filing with the competent administrative court, the applicant must submit an indemnity claim to the administration, quantifying the compensation (unless the damage extent is unknown). Only after an express or implied response can the applicant file with the administrative judge. The applicant's grounds must demonstrate a faulty generating fact, damage causing prejudice to the victim, and causation. Indemnity claims must request an amount from the judge. The judge assesses the damage's reality, the administration's faulty actions, and causation. The judge also evaluates the prejudice amount using tools like loss of chance or indemnity reference frameworks from the National Office for Compensation of Medical Accidents. The judge awards compensation based on the prejudice evaluation, per the prohibition on administrative liberality and the ban on judging supra petita.
Interim relief There are various types of interim relief, each with different judicial powers.
Emergency interim relief Emergency interim relief addresses situations requiring swift judicial intervention, which substantive appeals—with judgment delays up to a year—cannot provide. Urgency is key, but assessed differently based on the judge's statutorily required response time.
Freedom interim relief The freedom interim relief was created by the law of 30 June 2000. It is an emergency procedure where the judge must rule within 48 hours. It allows the administrative judge to end a situation causing a "serious and manifestly illegal" infringement of fundamental rights and freedoms. The judge's powers are maximal, as they can order all necessary measures to end the situation. For instance, in the Vincent Lambert case, the emergency judge suspended the execution of the decision to stop treatments and ordered a medical expertise.
Suspension interim relief The suspension interim relief allows the administrative judge to suspend a decision's execution where there is serious doubt as to its legality and it harms the litigant's interests. It compensates for the non-suspensive nature of substantive appeals. Suspension interim relief must be accompanied by a substantive appeal, or it is inadmissible. The judge can suspend the disputed act but not reform it, as that requires substantive jurisdiction given the limited time to rule.
Other interim relief These are interim relief procedures enabling the judge to order useful measures quickly. The judge's powers are determined by the relief's purpose and the often temporary nature of the decision, which implies substantive re-examination.
Administrative courts The Council of State is the supreme administrative court: it acts as a court of cassation for other administrative courts while retaining first-instance and appellate jurisdiction. The general administrative courts are the administrative tribunals and administrative courts of appeal. The terms "administrative justice" and "administrative court" are often used, by abuse of language, to refer only to courts governed by the Code of Administrative Justice (or even just administrative tribunals and administrative courts of appeal).
Specialized administrative courts also exist.
Council of State
Judicial review of administrative bodies was established by Article 52 of the Constitution of the Year VIII. From the outset, it had a dual mission: participating in drafting important texts and adjudicating administrative disputes. An entrance examination was instituted to recruit auditors, a new title in administration—the titles of masters of requests and councilors of state were taken from the old King's Council.
Thereafter, the existence of the Council of State was not questioned. It remained in the Charter of 1814, though with a lesser role. The law of maintained it and reformed its duties: it granted it delegated justice (i.e., the ability to render justice "in the name of the French people"). The same year, the Tribunal of Conflicts was created to resolve attribution conflicts between administrative and judicial jurisdictions.
Judicial activity This now constitutes only half of its activity, involving only the litigation section. Quantitatively, the Council has reduced its litigation activity due to the creation of administrative courts of appeal (1987).
First and last instance judge