Council of State Case Summaries: Regulatory Power of Territorial Collectivities

Extract

[...] Question: In what conditions is the regulatory power of territorial collectivities exercised? Solution: The Conseil d'Etat specifies that territorial collectivities have regulatory power for the exercise of their competences, however this regulatory power is different from that of the Prime Minister. Articles 34 and 72 of the Constitution require that each law relating to the competences of territorial collectivities specify the rules whose enactment is entrusted to the latter for the exercise of said competences, without this being able to call into question the regulatory power of the Prime Minister. [...]

[...] Council of State July 2015, football club of the Girondins de Bordeaux Headline : The Council of State, by its decision of 9 July 2015, revisits the domain of the transaction concluded by a public person invested with a regulatory power. Facts : In this case, a resolution dated 21 March 2013 of the board of directors of the professional football league modified article 100 of the administrative regulation of the professional football league relating to the conditions of participation of clubs in Ligue 1 and Ligue 2 competitions, by adding a paragraph 'The chairman of the disciplinary committee shall be appointed by the chairman of the board of directors of the professional football league.'the effective management of the company constituting the club must imperatively be implanted on the French territoryais conformin accordance with the provisions of Articles L. [...]

[...] Then, it notes that the principles governing persons invested with a public service mission 'are opposed to an authority vested with regulatory power, which is responsible for exercising this competence in the general interest in view of the various interests it has to take into account, committing, through a contract, to using the regulatory power conferred on it in a particular way'. Therefore, the contract providing for the use of this power in a particular way is illegal. Scope : Just as the exercise of an administrative police power cannot be the subject of a contract, it is not possible for an authority vested with regulatory power to commit by contract to using its regulatory power in a particular sense. [...]

[...] The Council of State is thus going in the opposite direction to this position by refusing to refer the QPC to the Constitutional Council. Council of State, General Assembly November 2012 Hook: The Council of State, on 15 November 2012, revisits the regulatory power of territorial collectivities. Facts: In this case, it is a request for an opinion addressed to the Council of State by the Minister of the Interior and the Minister of State Reform, Decentralization and Public Function regarding the exercise of the regulatory power of territorial collectivities. [...]

[...] Council of State June 2011; 15 November 2012; 9 July 2015 and 26 April 2017 - Case Summaries Council of State April 2017 Catchphrase : By its decision of 26 April 2017, the Council of State revisits the field of competence of the Prime Minister and the transmission of certain of these to another authority. Facts : In this case, it concerns a request for referral of a QPC addressed by the Enedis company to the Council of State in order to verify the conformity of Article L.341-3 of the Energy Code with the Constitution. [...]