Council of State Ruling on Administrative Decisions Based on Unpublished Guidelines

Extract

[...] In principle, what is the consequence of the administration's silence on a request from an administered? In this case, the prefect of Pas-de-Calais's silence is equivalent to a refusal. This is why the company's requests for building permits have been implicitly rejected. However, this silence constitutes a decision, which has allowed the applicant to introduce an appeal for abuse of power against these implicit decisions of refusal. In principle, today, the administration's silence on a request from an administered person is equivalent to acceptance (Article L. [...]

[...] This falls within the framework of the modernization and simplification of the administration, initiated since the 1960s. However, the principle that silence is equivalent to acceptance poses an important problem. In fact, there are more than fifty exceptions in which silence is equivalent to refusal. And it is the case, as in this case, of the silence vis-à-vis the requests for the delivery of building permits. The silence being equivalent to refusal in this situation is also logical. If the silence on the request for the delivery of an act were equivalent to acceptance, the administered person would not receive their authorization. [...]

[...] The administration has an interest in not proceeding in this way but making evaluation criteria from unpublished guidelines autonomous motives of its decision. In fact, as seen previously, under the ruling Société Bouygues Telecom Since 2017, as soon as a guideline has indirect effects on the administered, it is susceptible to appeal. However, this means that if the evaluation criteria are included in a published guideline, they risk being annulled. But if this guideline is not published, they cannot be used in decisions. Thus, considering them as autonomous motives allows using the criteria without fearing that they will be annulled. [...]

[...] This decision by the Council of State allows administrative authorities to take unfavorable decisions based on reasons identical to those of unpublished guidelines, even though the reasons have not been published and therefore the administrative parties are theoretically unaware of them. 1° Why does the administration adopt guidelines? What is the object of the guidelines identified by the applicant society? The guidelines are soft law acts identified for the first time in the judgment Crédit foncier de France rendered in 1970 by the Council of State. These are more precisely intermediate acts between soft law acts and hard law acts. As they are not decision-making acts, they are in principle not susceptible to appeal. [...]

[...] In fact, the Council of State asserts that decisions are not illegal, even though they are based on motives from unpublished guidelines. However, this should not be possible, since they do not exist legally. But to justify this position, the judges rely on the fact that the motives were explicitly taken up in the opinion of January which, in turn, was published. This decision seems to restrict the scope of the principle by protecting the administration, all the more so since the same criteria have been used since 2010. [...]