Administrative Sanctions: Shift to Full Contentious Judge Office - published: 17/09/2025

Extract

[...] The guarantee of the rights of the administered is supposed to be particularly important in this matter, and it would seem detrimental to their guarantees that the judge cannot take into account new circumstances of law. It is thus this main characteristic that sets the limits of the office of the judge of abuse of power in the matter of contentious proceedings of sanctions. In reality, as indicated by the rapporteuse publique Claire Legras in her conclusions under the judgment ATOM, 'if the need to apply the new law, softer on sanctions subject to the principle of necessity of penalties, did not present itself, the judge of abuse of power would be a perfectly effective judge in the matter of administrative repression'.5 But the principle of application of the softer law (retroactivity in mitius) is a general principle of procedure of both constitutional (art DDHC) and conventional value, the respect of which is paramount But maintaining a contentious case of abuse of power results in depriving a new text of effect before the judge, which consecrates a milder sanction. [...]

[...] of the proportionality of the sanction retained with the gravity of the facts reproached. This shift in the judge's control has further deepened in 2015 when the judge accepted to perform a normal control of the disciplinary sanctions imposed on detainees 1he June 2015, Boromée). Thus, as Jean-Marie Woehrling considers, the judge of abuse of power is no longer the judge of restricted control and the appeal for abuse of power is no longer « a supplementary mechanism of the limits of full contentious proceedings4. [...]

[...] He did not, however, check whether the sanction imposed was proportionate to the gravity of the fault committed. The reason for this was that the judge did not wish to interfere in a domain where administrative considerations of opportunity should take precedence. The administration had the competence and reasons to impose an administrative sanction, which the judge did not have, and yet he had to be able to maintain competence to annul a decision containing one or more manifest errors. [...]

[...] However, it was with great reservations that the judge of excess of power first applied this principle. For example, in disciplinary law, in particular - which represents a large part of administrative sanctions law - the administrative judge maintained a simple control of manifest error of appreciation for a long time (V. CE Touzard, préc.). But subsequently, the judge of excess of power benefited from advances that profoundly modified the conditions of his intervention. Firstly, the important process of opening the judge of excess of power's courtroom to the examination of the internal administrative measures, initiated by the rulings Hardouin and Marie in 1995 and then pursued, allowed for a much broader examination by the administrative judge of many administrative sanctions, measures of internal order and administrative sanctions being for a large part of them synonymous. [...]

[...] Despite its new prerogatives in terms of injunction, the powers of the judge of excess of power remain significantly more limited than those of the judge of full jurisdiction. In fact, he will hardly be able to order the administration to impose a new sanction because his office as a judge of pure legality is not the same as that of full contentious jurisdiction, which focuses more on subjective rights and a situation between two parties Ass March 1994, La Cinq). [...]