Extract
[...] II. The essential but residual maintenance of a serious fault A. The maintenance of a serious fault for certain still delicate activities Certain activities of the administration, which present significant risks or a particular degree of difficulty, continue to remain subject to the regime of serious fault. The rule for particularly delicate police activities, on the ground and in action, remains serious fault (this fault is nonetheless abandoned for more administrative activities such as border police: CE April 2017, M. [...]
[...] Today, the distinction between simple and heavy fault still exists, because the particular gravity of the heavy fault remains useful to actually characterize it when it is necessary and to distinguish it from the simple fault, but it is really the latter that the administrative judge is concerned with. [...]
[...] This retreat of the serious fault has nonetheless occurred relatively late, from the end of the 20th century,ème century. B. The substantial retreat of the serious fault in administrative jurisprudence If the Council of State has sometimes taken decisions quite early where it indicated giving up on the serious fault (CE Amoudruz, for police activities not presenting particular difficulties), it is essentially from the 1990s that important jurisprudence reversals have taken place. In the matter of medical acts, the Council of State abandoned the requirement of a serious fault with the decision CE, Ass Époux V. [...]
[...] What reasons justify the continued maintenance of a serious fault in order to engage administrative liability? The Retreat of Gross Fault in Administrative Liability: The idea of the possibility of engaging the responsibility of the administration is, at its origin, anything but an evidence. Until the XIXème Until the XIXème century, the law of administrative responsibility was relatively non-existent, limited to certain specifically provided domains by law (e.g. the law of 28 pluviôse an VIII for damages caused in the course of public works) and it was still largely the irresponsibility of the public power that prevailed, according to the inherited conception of the Ancien régime and the adage « the King can do no wrong According to Laferrière's formula, since « the proper of sovereignty is to impose itself without justification or compensation, the damages caused by public persons have long been perceived as the inevitable counterpart of the satisfaction of the general interest With the emancipation of the Council of State as a judge of administrative activities and therefore, of the damages they are likely to cause in the context of public service activities (TC Blanco), the question of the degree of the intensity of the fault necessary to engage the responsibility of the administration has been raised The Council of State initially distinguished between whether the fault committed had to be characterized as personal or service-related (TC Pelletier), or even the necessity of a fault, the regimes of faultless liability based on the risk that developed relatively quickly (CE Cames) The common law of liability for fault was separated between the existence of a simple or serious fault to engage the responsibility of the administration. [...]
[...] Rendering justice is also still considered a complex activity requiring the maintenance of serious fault (CE Darmont and L. 141-1 of the judicial organization code), with the exception of the aforementioned case of excessive slowness of procedures. However, within the framework of the public service of justice, it is worth noting that a succession of simple faults can lead to the characterization of a serious fault of a serious nature (Cass Bolle). Finally, the control activities of the administration over activities subject to specific and technical regulations remain subject to a serious fault (CE Caisse dép. [...]
