Council of State Ruling on Defender of Rights' Recommendations

Extract

[...] The Defender of Rights is an independent administrative authority. An independent administrative authority is an institution entrusted by the State to carry out missions in sectors considered essential in the name of the State. They have been institutedare intended to prevent direct intervention by the Government. The Defender of Rights is tasked of protectingstrives to protect the fundamental rights and freedoms of citizens. To do this, it precontains 3 characterscharacteristics : it s'it is an authority with powers, acting on behalf of the State and independent of it in order to ensure impartiality. [...]

[...] The Defender of Rights may make this report public in accordance with the same article 25. Following this legislative reminder regarding the Defender of Rights' attributions, the judges of the Palais-Royal develop a distinction of the recommendations taken by the Defender of Rights. An implicit distinction by the Council of State judges of the Defender of Rights' recommendations In its ruling of 22 May 2019, the Council of State judgesare based on an implicit distinction of the recommendations issued by the Defender of Rights. [...]

[...] With regard to this provision, the Defender of Rights acts only if he is seized. There is no voluntary intervention from his part. When he is seized, in accordance with Article 25 of this same organic law, " the Defender of rights can make any recommendation that appears to him to be of a nature to guarantee the respect of the rights and freedoms of the person injured to settle my difficulties raised before him or to take measures to that end. [...]

[...] Following the non-renewal of her contract, the colleague seized the Defender of Rights for facts of harassmentiselement of moral and discrimination having as author his superior hierarchical In a decision of December The Defender of Rights recommends to the minister to pay to the collaborator a bonus that her superior hierarchical would have unjustly retained, to suppress the discriminatory mentions of the superior hierarchical at the collaborator. The DThe Defender of Rights also recommends the implementation of an internal investigation in order to determineto determine'it is necessary to initiate a disciplinary procedure against the superior hierarchical and the implementation of measures to prevent retaliation against the collaborator. The superior hierarchical contests this recommendation. [...]

[...] However, it is worth questioning the nature of the Defender of Rights' activity. It does not seem to be an authority of rregulation. In its decision of 22 May 2019, the Council of State sets an exception to theimmunityIt is apparent that it covered the Defender of Rights' recommendations. Despite the fact that the recommendations do not bear the characterisregarding a decision of an administrative body, the mere fact that it is made public by the Defender of Rights can make the recommendation susceptible to a challenge for lack ofisof power. [...]