Legislative screen theory, administrative law, constitutional law, Council of State, Arrighi decision, European Union law, European Court of Human Rights, priority constitutional question, QPC, control of constitutionality, fundamental rights
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Abstract
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Abstract
The legislative screen theory is a legal concept that limits the control of administrative acts by the administrative judge when they are based on a law, and its evolution in the context of European and international law.
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[...] The foundations and mechanisms of the legislative screen theory A. The definition and foundation of the legislative screen theory - The origins of the theory in the jurisprudence of the Council of State evoke the Arrighi decision of 1936 to explain the emergence of this theory - Explanation of the role of the legislative screen: the administrative judge systematically declares himself incompetent to control the constitutionality of a law. He cannot therefore set aside the application of administrative acts taken in application of this law, as this would indirectly amount to carrying out a constitutional control on this same law. - Principle of the separation of powers: this principle also justifies that the administrative judge declares himself incompetent. [...]
[...] These developments have reduced the scope of the legislative screen and the new control mechanisms that allow it to circumvent its limits. II. The limits and evolution of the legislative screen theory A. The attenuations brought by internal case law - Reform of 2008: the QPC is introduced which allows for indirect constitutional control. - The case of the 'transparent screen' theory: it is an exception, the judge accepts to control certain administrative acts despite their legislative basis when the law is imprecise give the example of CE jurisprudence, Quintin, 1991). B. [...]
[...] The effects of European and international influence on the theory of the legislative screen - The effects of international conventions (such as the European Convention on Human Rights) and the primacy of European Union law. - European and supranational jurisprudence: the Court of Justice of the European Union and the European Court of Human Rights impose control obligations that sometimes escape the legislative screen theory, which sometimes forces the administrative judge to set aside the legislative screen theory. [...]
[...] From then on, a direct control of the legality of administrative acts in relation to the Constitution is not possible, which is why, in such cases, the administrative judge systematically declares himself incompetent for the control of these acts. This notion therefore illuminates the relationships between the judge and the legislator, highlighting the difficulty for the administrative judge to reconcile his mission of protecting fundamental rights with the respect for the legislator's sovereignty. The law-screen theory therefore only fits into the link between administrative law and constitutional law. It only applies in cases where the law is prior to a possible constitutional revision or the creation of a new reference point, such as the introduction of the priority constitutional question 'QPC' with the 2008 constitutional revision. [...]
[...] - The practical consequences: appeals for abuse of power are limited in the presence of a law, which creates a kind of immunity for certain administrative acts. Finally, the legislative screen theory, by acting as a barrier for certain administrative acts taken on the basis of the law, contributes to limiting the control of the administrative judge and preserving the separation of powers. However, in the face of increasing demands for the protection of fundamental rights and the integration of European and international law, this theory has gradually been restricted and relaxed by case law. [...]
