The regime governing the disappearance of administrative decisions, including repeal and withdrawal, is presented, highlighting the balance between legality and legal security.
Extract
[...] Thus, illegal acts can only be withdrawn within a period of four months following their decision-making (article L. 243-3 of the CRPA). The administration can, on the other hand, abolish at any time and « for any reason a regulatory or non-regulatory act, if necessary after defining transitional measures (article L. 243-1 of the CRPA). The administration even has the obligation to abolish an illegal decision (from the outset or following factual or legal circumstances) or without object (article L. 243-2 of the CRPA). [...]
[...] First, the repeal and withdrawal by the administration itself or at the request of a third party of an unlawful act are possible, but only within a period of four months from the date of the decision (Article L. 242-1 of the CRPA). The lapse of the unlawful act within the same period even becomes an obligation for the administration when the request comes from the beneficiary of the unlawful decision. Then, there are cases where the administrative act disappears without any time limit. Repeal may thus occur in the event of the disappearance of the condition that justified the administrative decision (Article L. 242-2 1° of the CRPA). [...]
[...] The withdrawal of administrative acts by the administration's will therefore follows a regime based on a balance aiming to reconcile two opposing principles: legality and legal security. However, upon closer inspection, legal security does not exist except on the condition that the principle of legality is observed. It then results in a destabilizing paradox that fully measures the comment of Professor Paul Cassia, who observes that the principle of legal security "is an instrument of protection against the instability of the law who does not necessarily play in favor of individuals ». [...]
[...] In practice, the end of administrative acts is subject to a complex legal regime due to the need to reconcile two contradictory principles. In fact, the principle of legality, which is the foundation of the administration's action in a state of law, is countered by the principle of legal security, which aims to conserve the acquired rights of the administered. And, to this problem comes to be grafted that of the latitude that the administration has in the exercise of its prerogatives in order to achieve its objectives. [...]
[...] In this context, the end of an administrative act can be the result either of its withdrawal or its abrogation. The first hypothesis leads to a retroactive effect in that the administrative decision is deemed to have never existed. The second only aims at the situation of a disappearance of the act for the future. This widely accepted definition in the doctrine has been taken up by Article L. 240-1 of Code of Relations between the Public and the Administration (hereinafter CRPA). [...]
