Administrative law, unilateral administrative act, judicial control, act causing harm, grievance, abuse of power, legality principle, Council of State, administrative authority, public interest
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Abstract
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Abstract
This document discusses the concept of unilateral administrative acts causing harm and the control exercised by judges over such acts, highlighting the conditions for their admissibility and annulment.
Contents
The notion of the act causing prejudice
An enforceable decision
A decision modifying the legal situation
The judge's control over acts causing prejudice
The grievance as a condition of admissibility of the appeal
The opening of the appeal against the act causing prejudice
The notion of the act causing prejudice
An enforceable decision
A decision modifying the legal situation
The judge's control over acts causing prejudice
The grievance as a condition of admissibility of the appeal
The opening of the appeal against the act causing prejudice
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Extract
[...] The abuse of power concerns the situation where the public person acts with an intention other than that which they declared as the search for a private interest, (CE March 1934, demoiselle Rault) The error of law 'sanctions the violation of all the rules - excluding the rules of competence of form and purpose - that are imposed on the author of the act, that is, in practice, those that relate to its content itself and the factual and legal grounds on which it proceeds'4. [...]
[...] These acts may materialize through information notes as the high jurisdiction has specified in its decision of 10 January 2007, Syndicat national CGT. The same applies to purely declaratory acts that contain only wishes. The Council of State has considered in this context that 'an announcement made in the context of a speech is not a prejudicial act', CE October 2015, Comité d'entreprise du siège d'Ifremer) Similarly, interpretative circulars, internal order measures, and guidelines when they are limited to organizing services are not considered as prejudicial acts. [...]
[...] In third place, after a certain period of time, the appeal is no longer receivable. It is a matter of respecting the two-month deadline from the notification of the individual act or the publication of the regulatory act. The opening of the appeal against the act causing harm It is a matter of analyzing the cases that open the way to the annulment of the act by the judge seized by an appeal for abuse of power. There are cases of opening the appeal for abuse of power for external illegality or for internal illegality. [...]
[...] In fact, the effects of the unilateral administrative act on the legal situation of its recipients are a source of concern due to the risks of abuse, hence the need for the submission of the administration to the control of the judge. This is the counterpart of the excessive rights recognized to the public person acting in the public interest. In fact, as Jean Rivero has written, "public power is not characterized only by 'more derogations' but also by 'fewer derogations'. [...]
[...] The same applies to the circular which misinterprets the legislative or regulatory provisions (CE December 2002, Dame Duvignères). For internal order measures, in this case those taken in the field of penitentiary, many have considered that the punishment of cell inflicted on a detainee is a prejudicial measure (CE 17 February 1995, Marie), the same applies to the isolation, CE July 2003, Remli. For what concerns the guidelines, the judge considered in his decision of 11 December 1970, Crédit foncier, that by referring to the standards contained in its own directives, the public entity "intended without renouncing to exercise its power of appreciation and without issuing any new condition to define general orientations?"." These examples show the role of the judge in the qualification of the legal nature of the unilateral administrative act. [...]
