Fait accompli, administrative judge, judicial authorities, separation of powers, property rights, fundamental freedoms, interim relief, ERDF Society, Bergoend case, Tribunal des Conflits
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Abstract
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Abstract
Tribunal des Conflits judgment on 17 June 2013, reducing the scope of fait accompli and attributing competence to the administrative judge.
Extract
[...] Therefore, it had to position itself on the existence or name of a fait accompli. Traditionally, this was defined as a serious infringement of a fundamental freedom or private property emanating « or by the forced execution of a decision, even if it is legal, when the administration had manifestly not had the power to do so (TC April 1935, Action française). The Tribunal des Conflits could have, in view of this definition, qualified a fait accompli and retained, as a consequence, the jurisdiction of the judicial order. [...]
[...] 13-03.911, Bergoend c. ERDF Society - The fait accompli - Introduction and detailed plan TC June 2013, Bergoend ERDF Society Annecy Léman: In this judgment delivered on 17 June 2013 on referral from the Court of Cassation, the Tribunal des Conflits reduced the scope of the fait accompli, this being understood as one of the most well-known exceptions to the principle of separation of administrative and judicial authorities. In this case, Mr. Bergoend became the owner on 15 June 1990 of a plot on which the ERDF company had installed a pole in 1983, without complying with the rules of prior procedure convention would have had to be concluded with the owners). [...]
[...] A competence reinforced by the development of the preliminary injunction-liberty Recent procedure: law of June establishes article L. 521-2 of the Code of Administrative Justice. The judge administrative may order any measure necessary to cease the infringement of a fundamental freedom when urgency and a grave and manifestly illegal infringement of this freedom are established. [...]
[...] The administrative judge is now competent to rule, for example, in circumstances such as those of TC Action française as regards the seizure of newspapers. - The terms « extinction of property rights mechanically reinforce the competence of the administrative judge (as retained for the commented case). In particular, as regards the irregular encroachment, this decision and that taken by the TC the same year (TC Panizzon Commune de Saint-Palais-sur-Mer) have led to a tightening of this notion around the sole extinction of a property right. Notably, there is no encroachment if restoration is possible (Civ. 1ère Feb n° 19-11-864). B. [...]
[...] 66: « The judicial authority, guardian of individual liberty, ensures the respect of this principle in the conditions provided for by law) - The infringement on the right to property becomes an extinction of property, which, in fact, limits the competence of the judicial judge to the most serious cases II. A reinforcement of the competence of the administrative judge A. The extension of the competence of the administrative judge - the field of individual liberty is more restricted than that of a fundamental freedom. [...]
