File n° 6 

	Le Conseil d'État (Council of State)
	Key Points  The Conseil d’État is the highest administrative court in France. It passes rescinding rulings concerning judgements made by the administrative appeal courts and also has the power to judge certain disputes in the first and last instance such as applications for judicial review of administrative action brought against decrees.  The Conseil d’État also plays the role of adviser to the Government. In accordance with article 39 of the Constitution, bills are referred to it before they go to the Council of Ministers. It is also consulted on draft ordinances, as is stated in article 38 of the Constitution as well as on the most important decrees, referred to as “decrees in Conseil d’État”. The Government may refer any other matter for regulation or any specific legal question to the Conseil d’État for opinion. See also file 30

The Conseil d’État is, de jure, presided over by the Prime Minister, although in practice, it is run by its Vice-President (France’s number one civil servant). It is the heir to a very old tradition and has a double role: it is an administrative body which advises the Government and is also the supreme administrative court. The Conseil d’État is made up of three hundred members (State councillors, legal advisers and legal assistants) two thirds of whom practice at the Conseil d’État itself, whilst the other third hold high-ranking positions in other administrations.

I. – the Conseil d’État, heir to an old tradition

The origin of the Conseil d’État is old. This institution can be seen as one of the heirs of the curia regis which was made up of important people close to the King and helped him govern his kingdom in the Middle Ages. As time passed, the curia regis, divided itself up into several bodies such as the Chamber of Accounts or the Parliament. One of these, the Council of the King, preceded what was then to become the Conseil d’État. The name itself was first used in 1578 under the reign of Henri III.

The legal advisers and the State councillors have existed since the 13th century. The former reported to the Conseil d’État on administrative and legal matters whilst the latter deliberated with the King.

The ancestor of the present Conseil d’État appeared under the reign of Louis XIV. It was called the “Private Conseil d’État” and was in charge of internal administrative questions and litigation.

However the Conseil d’État took on its present-day appearance during the French Revolution. In 1790, the Constituant Assembly decided that the administration should no longer be submitted to the judiciary. Cases involving public authorities have, since then, been examined by special courts. It was, strictly speaking, the Consulate which, with article 52 of the Constitution of 22 Frimaire, Year VIII (December 13, 1799) created the Conseil d’État. It has a double role; as an administrative body, the Conseil d’État takes part in the drawing-up of the most important legal documents and as a court, it judges disputes in which the administration is a party.

Eventually the law of May 24, 1872 provided the Conseil d’État with the structure it still possesses today. From that time it has set the main principles of French administrative law, thus leading to the construction of the State governed by the rule of law.

Also since that time, the Conseil d’État has continuously asserted itself as the guarantor of freedom and of the legal functioning of the administration, thus reconciling as well as possible the interests of the State and those of the litigants.

II. –adviser to the Government

The Conseil d’État plays a role of adviser to the government by examining all draft bills (as laid down in article 39 of the Constitution) and all draft ordinances (article 38 of the Constitution) before they are submitted to the Council of Ministers. It is also consulted on the most important draft decrees, called “decrees in Conseil d’État”. Its opinion is based on the legality of the texts, their form and their appropriateness, from an administrative and not a political point of view.

The Conseil d’État may also be consulted by the Government on any question of a legal or administrative nature. This was the case in 1989, for example, when the question of the compatibility of wearing the so-called “Islamic” headscarf with the secularism of State schooling, was raised for the first time.

The Conseil d’État also advises the government on which drafts or proposals for European instruments being drawn up on a European scale are matters for statute and must thus be submitted to the parliamentary assemblies in accordance with article 88-4 of the Constitution.

When a matter is referred to the Conseil d’État for opinion, it is sent to one of its four administrative sections (finance, social, the interior and public works).

The Interior Section deals with matters concerning the Prime Minister and the Ministries of Justice, the Interior, National Education, Culture and Communication, Relations with the Parliament, Youth, Sport and Overseas Territorial Units.

The Finance Section is consulted on matters concerning the Ministries of the Economy and Finance, Defence, Foreign Affairs and Cooperation and the Civil Service.

The Public Works Sections has responsibility for matters concerning the Ministries of Agriculture, Fishing, Equipment, Transport, Housing, Tourism, Industry and Post and Telecommunications.

The Social Affairs Section is in charge of questions concerning the Ministries of Employment, Solidarity, Health and War Veterans.

For the most important questions (e.g. draft bills or ordinances), the General Assembly of the Conseil d’État makes a decision after the relevant section has given its opinion. Nonetheless, in urgent cases and upon a decision by the Prime Minister, a matter may be referred directly to the Standing Committee of the Conseil d’État, without prior examination in a section. This standing committee is much smaller than the General Assembly.

In addition, the Conseil d’État addresses a public report each year to the President of the Republic. This report may contain proposals for reforms which are liable to improve the organization or the working of administration, of the laws or regulations in force. The Report and Studies Section prepares this annual report along with other studies. It is also involved in the implementation of the decisions taken by administrative courts. 

III. – the highest court of the administrative court system

The Conseil d’État is the highest level of the administrative court system and it judges the disputes between individuals and administration in the widest sense of the word (State, local authorities, public entities, and private persons in charge of public services such as professional bodies or sporting federations).

Thus it passes rescinding rulings concerning judgements made by the administrative appeal courts and specialized administrative courts such as the Refugee Appeal Commission. In addition, it also judges in the first and last instance, appeals brought against decrees or the actions of collegial bodies with a national remit (e.g. the jury of a national competitive examination or a body such as the High Council on Audiovisual Matters) as well as electoral disputes concerning regional elections and elections of French representatives to the European Parliament. It has an appeal remit for matters concerning municipal and cantonal election litigation.

Like the Court of Cassation in the ordinary court system, the Conseil d’État ensures the unity of jurisprudence at a national level. The judgements made by the Conseil d’État in the field of litigation are supreme and are not liable to appeal except in an application to reopen proceedings or in the rectification of a material error.

The Litigation Section plays this jurisdictional role. It is made up of ten sub-sections each specialized in different types of litigation (foreigners’ rights, public tenders, taxation etc.).

Since 1990, the Conseil d’État has also been responsible for the running of administrative courts and administrative appeal courts. Previously this matter fell within the remit of the Ministry of the Interior. The Conseil d’État is also in charge of the running of the body controlling administrative judges and it is helped in this task by an independent consultative body which was set up in 1986 and is called the High Council of Administrative Courts and Administrative Appeal Courts.