Preliminary questions, administrative law, judicial jurisdiction, Court of Justice of the European Union, CJEU, Constitutional Council, administrative judge, jurisdiction conflicts
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Abstract
The concept of preliminary questions in administrative law, its jurisdiction, and implications on the administrative and judicial orders.
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[...] On the other hand, the field of the QPC is by nature more restricted than that of preliminary questions. According to Article 61-1 of the Constitution as well as the Organic Law of Application of 10 December 2009, the nature of the question can only relate to the « rights and obligations that the Constitution guarantees." The role of the administrative judge in this matter, in relation to the contentious orders, has been clarified by a CE, Ass December 2020, CFDT Finances and a., decision, following two decisions of the Constitutional Council in May and July 2020. [...]
[...] It suspends its decision until the decision on the preliminary question. This provision of the CAJ is related to the hypotheses where the administrative judge must seize the judicial judge. The hypotheses are generally quite classic and concern questions that by their nature belong to the judicial order: the state and capacity of persons, nationality, protection of individual freedom and real estate property rights, functioning of the public service of justice, validity of agreements concluded in application of the labor code, etc. [...]
[...] The Member State is liable to sanctions if it does not comply. Thus, in 2018, the CJEU ruled that France had failed to meet its obligations under the European Union law, the State Council having failed to refer the matter to the CJEU as a preliminary ruling, in the context of a tax dispute (CJEU October 2018 European Commission v. French Republic, Case C-416/17). The administrative judge initially showed great reluctance towards this mechanism of the preliminary question in the context of Community law. [...]
[...] The second exception consolidates the theory of clear act when it appears manifestly, « in view of established case law that the contestation can be accepted by the judge seized in the main case. This jurisprudence of the Council of State has since been confirmed and applied by the Council of State to administrative jurisdictions (CE Fédération Sud santé sociaux). More recently, the multiplication of new forms of prejudicial or assimilable questions has led to a renewal of the administrative judge's relationships with the mechanism. [...]
[...] Preliminary Questions and the Role of the Judge The organization of justice in France is characterized by a dual jurisdictional system, with, on one side, the judicial order and, on the other, the administrative order. As a result, certain conflicts of jurisdiction may arise, either in the course of the entire dispute (the Tribunal of Conflicts will then have to determine the competent jurisdiction), or simply in the course of means raised before a judge who is properly seized but will not be so for a specific part of the dispute, which will lead an order of jurisdiction to have to pose a preliminary question to the other. [...]
