Administrative Acts and Appeal for Abuse of Power

Extract

[...] This possibility of a REP against circulars was further expanded by the GISTI judgment of 2020, in which the Council of State affirmed that all circulars having notable effects on the situation of certain individuals can now be the subject of a REP. B. The particular case of preparatory measures Preparatory measures refer to the entire set of opinions, consultations, recommendations, and proposals issued during the issuance of the administrative act. Consequently, they are acts taken by the administration to prepare a final decision that will have a decisive and therefore normative character. [...]

[...] However, the admissibility of a REP is subject to three main preliminary conditions. The first is related to the quality of the person acting, they must have an interest in acting, a concept perceived widely by the administrative judge. But they must also act within a certain time limit set for the vast majority of cases to 2 months after the edict of the decision attacked and finally, it is a matter of verifying if the attacked act is susceptible to a REP, it is then the question that is posed in this task. [...]

[...] Therefore, these two cases, they meet the necessary condition of causing harm and are thus susceptible to a REP. II. The late recognition of the possibility of a recourse against non-normative acts of the administrative A. The possibility of a recourse against certain indicative acts If in principle the REP is only open to decision-making acts that have an effect on the legal order, the Council of State has gradually admitted the possibility for soft law to be subject to the REP. [...]

[...] However, this restrictive conception of the possibility of REP against only administrative acts of this kind was a principle nuanced by the case law of the Council of State, insofar as it extends this possibility to certain administrative contracts, but restricts it to certain decisive administrative acts. B. The judicial temperaments: exceptional opening of the REP to certain contracts and internal order measures As seen previously, the Council of State in its founding ruling Dame Lamotte intended to restrict the possibility of REP to only unilateral administrative acts with a decisive character. However, two main exceptions, as an administrative act, derogate from this principle. Firstly, it is a matter of the administrative contract. [...]

[...] Consequently, these two examples were not administrative acts and should not, in theory, be subject to the REP. However, the Council of State has taken a more pragmatic approach. Firstly, regarding guidelines, formerly known as directives, refers to all acts that aim to establish a political framework for the action of a sector of the administration or a service in order to guide the agents who compose it. However, they do not have an imperative character in that their recipients can derogate from them for reasons of general interest that are assessed for each situation. [...]