Administrative Sanctions: Shift to Full Contentious Judge Office

Extract

[...] He did not, however, check whether the sanction imposed was proportionate to the gravity of the fault committed. The reason for this was that the judge did not wish to interfere in a domain where administrative considerations of opportunity should take precedence. The administration had the competence and reasons to impose an administrative sanction, which the judge did not have, and yet he had to be able to maintain competence to annul a decision containing one or more manifest errors. [...]

[...] The guarantee of the rights of the administered is supposed to be particularly important in this matter, and it would seem detrimental to their guarantees that the judge cannot take into account new circumstances of law. It is thus this main characteristic that sets the limits of the office of the judge of abuse of power in the matter of contentious proceedings of sanctions. In reality, as indicated by the rapporteuse publique Claire Legras in her conclusions under the judgment ATOM, 'if the need to apply the new law, softer on sanctions subject to the principle of necessity of penalties, did not present itself, the judge of abuse of power would be a perfectly effective judge in the matter of administrative repression'.5 But the principle of application of the softer law (retroactivity in mitius) is a general principle of procedure of both constitutional (art DDHC) and conventional value, the respect of which is paramount But maintaining a contentious case of abuse of power results in depriving a new text of effect before the judge, which consecrates a milder sanction. [...]

[...] The idea was also not to paralyze administrative action by excessive judicial supervision. Regarding retroactivity in mitius in the field of disciplinary sanctions, the judge of excess of power also considered that it did not apply, having regard to the proper nature of the repression of this contentious matter (CE Nov n° 191630). Furthermore, in this matter (contentious of public agents), the texts are marked by a relative stability, which is explained in particular by the important power of appreciation left to the administration in the functioning of its service within a predetermined framework. [...]

[...] Nevertheless, having the administrative sanctions referred to the judge of full jurisdiction has many advantages. It is therefore towards this solution that the Council of State has tended with its judgment ATOM adopted by the assembly of contentious matters. B. The shift of contentious matters of certain administrative sanctions to a full contentious judge office As the rapporteuse publique Claire Legras pointed out in her conclusions on the judgment ATOM, This contentious case has clearly set the limits of the judge's office for excess of power, but particularly in terms of taking into account the principle of retroactivity in mitius in the context of administrative sanctions. [...]

[...] In fact, he will hardly be able to order the administration to impose a new sanction because his office as a judge of pure legality is not the same as that of full contentious jurisdiction, which focuses more on subjective rights and a situation between two parties Ass March 1994, La Cinq). This is what results from the decision ATOM, where the judge now positions himself as a judge of full contentious jurisdiction specifically in the case of administrative sanctions imposed on the administered. [...]