The Distinction between Fault of Service and Personal Fault: A Foundation of Administrative Personality

Extract

[...] Here, it is possible to understand that the public person progresses towards a negative behavior, since it commits more and more faults. The term faulty designates, according to the Larousse dictionary, a person who provokes or causes something bad to arise. The responsibility for fault is therefore a pecuniary responsibility incurred by public persons for a proven or presumed fault born of a decision, an action, a delay to act, or even an abstention. Historically, public persons have undergone a major evolution. [...]

[...] After having reported the fault of service, it is essential to launch the notion of personal fault within French administrative law. B. Personal fault: an individual responsibility of the public agent Since a decision of the Court of Conflicts dated July 'Pelletier', it is possible to distinguish the personal fault of the agent from the fault of service. For Edouard Laferrière, a State Councillor, 'the personal fault detachable from the function is the one that reveals the man with his weaknesses, his passions and his imprudence'. [...]

[...] It is a matter of the exclusive jurisdiction of the administrative judge. This fault of service may be linked to the adoption of an irregular legal act. It may result from a material fact. Thus, resulting from an irregular act, the act causes harm and therefore entails the responsibility of the administration. The principle is that 'Any illegality is faulty'. A judgment of the Council of State dated February 'Driancourt', establishes this principle. This means, among other things, that any illegality entails responsibility. [...]

[...] However, there are still exceptions where simple fault is required, whether for the judicial judge or the administrative judge. When the judicial decision violates the law of the European Union, for example. This is what is demonstrated by the decision of the Council of State « Gestas » dated June In addition, simple fault may be required in the event of a reasonable delay in judgment, under the precision of the European Convention on Human Rights. Finally, the control missions, it is the case of figure where a public authority is charged with controlling a company or an activity. [...]

[...] It is necessary to address the distinction between fault of service and personal fault as the foundation of administrative personality Then, the evolution of the regimes of responsibility passing from serious fault to simple fault (II). I. The distinction between fault of service and personal fault: a foundation of administrative personality The distinction between fault of service and personal fault as a foundation of administrative personality leads to analyzing fault of service as a responsibility imputable to the public person But also, personal fault as an individual responsibility of the public agent A. [...]