Council of State Ruling on Personal Fault and Administrative Law

Extract

[...] This rigidity had to evolve to better protect the victims, without ever renouncing the principle of competence laid by Pelletier. 1. From initial compartmentalization to accumulation of responsibilities (Lemonnier) In the pure logic of Pelletier, if the victim seized the judicial judge and he declared that it was a service fault, she was sent before the administrative judge (loss of time and money). Worse, if the fault was personal, the victim obtained the condemnation of the agent. But at the end of the 19th century, officials were often insolvent. [...]

[...] It is against this 'derivation' that the Council of State stands up. In its considerations, the Court explains that 'the decree of 19 September 1870 could not, by repealing Article 75, extend the jurisdiction of the judicial courts.'2 The repeal has lifted the lock on the door, but it has not changed the owner of the house. The litigant can now knock directly on the door of the court (admissibility), but the judge must check if he has the right to enter the matter (jurisdiction). [...]

[...] The judgment Pelletier has also survived doctrinal criticism that saw in the dual jurisdiction a useless complexity. It embodies the 'French compromise': a state of law where the administration is subject to the law and the judge, but to a special judge who knows the needs of public service. Conclusion In the end, the decision Pelletier of July is a monument to legal intelligence. Faced with a political crisis (the Moral Order) and procedural crisis (the repeal of Article 75) that threatened to paralyze the State through the judiciary, the Conflict Tribunal invented a balanced solution. [...]

[...] This is the birth of the distinction of faults. II. The dogmatic foundation of the modern administrative liability law The major contribution of the judgment Pelletier resides in the positive construction of a criterion for the distribution of competences based on the nature of the fault. By refusing the judicial competence for administrative acts, the Court does not organize impunity; it organizes the transfer of responsibility to the State and its natural judge, the administrative judge, while leaving a window open for the personal responsibility of the agent before the civil judge. [...]

[...] This is the time of the 'Moral Order', a period where administrative authoritarianism is perceived by the executive power as a necessary bulwark against social disorder and revolutionary or bonapartist resurgences. It is precisely in this context of extreme political tension that the Pelletier affair breaks out. The dispute originates from the application of the state of siege, an exceptional regime that transfers the police powers from civil authority to military authority. General de Ladmirault, a figure of the repression of the Bloody Week, is then commander of the first military division and governor of Paris. [...]