Redefining Abuse of Power: Impact on Jurisdictional Competences and Individual Freedoms in French Administrative Law

Extract

[...] Following this, it seems essential to question the relevance of maintaining these two distinct theories by the jurisprudence relative to their new effects on the distribution of competences between the administrative judge and the judicial judge. The jurisprudential evolution has progressively operated a restriction of the theory of abuse of power to the benefit of the theory of usurpation, whose field has expanded leading and leading to a centralization of the competences of abuse of power and usurpation within the administrative jurisdiction (II). [...]

[...] Abuse of power is brought under the competence of the judicial judge for its characterization, cessation, and repair. Thus, its restriction by this new definition has significant consequences. The judicial judge can no longer sanction public persons, the administration, unless they, by intervening either outside their competences or by taking a manifestly illegal decision, infringe an individual freedom or property right, up to its extinction. The Tribunal of Conflicts creates a competition between the two jurisdictional orders, judicial and administrative, by weakening the judicial judge of its title as guardian of individual freedoms and property rights, and by granting a certain degree of greater freedom to the administrative judge who can rule in this case on the attacks of the administration on individual freedoms when this attack has not resulted in their extinction. [...]

[...] Is the maintenance of the theories of abuse of power and usurpation by case law with regard to their new effects on the distribution of competences between the administrative judge and the judicial judge still relevant? The Future of the Theories of Abuse of Power and Usurpation Dissertation Professor René Chapus qualified the theory of abuse of power as 'crazy of the house' in that it allows the judicial judge to censor the administration. Nevertheless, the case law, by redefining the criteria of abuse of power, in close relation with the theory of usurpation, now limits this qualification. [...]

[...] We also note, concerning the theory of usurpation, that all competences have been transferred to the administrative judge. If previously the Tribunal des Conflits, by a decision Époux Binet c. EDF, of May although leaving the appeals against an irregular usurpation to the competence of the administration, had however entrusted the demand for compensation for the prejudice born of the irregular usurpation to the judicial judge. Decision on which the Tribunal des Conflits returns by entrusting the administrative judge with the entirety of the contentious proceedings of the irregular usurpation, including the demand for compensation. [...]

[...] Indeed, the theories of abuse of power and usurpation are both linked to the respect of individual freedoms and private property. But also, these two theories lead to various consequences, particularly the distribution of competences between the administrative judge and the judicial judge who, as stated in Article 66 of our Constitution, has the role of guardian of individual freedoms. The jurisprudential evolution of these two theories now tends towards the reduction of this role by a desire for simplification by merging these two theories and leaving the judicial judge with competences not only when the administration infringes on individual freedoms or the right to property, but only when this infringement leads to their extinction. [...]