Extract
[...] This derogation is based, according to the Constitutional Council in the aforementioned decision and the Court of Conflicts in the present case, on the imperative of good administration of justice. Apart from legislative derogations, the control of legality and the reform of administrative acts issued by the public person within the framework of the exercise of its prerogatives of public power, naturally fall within the exclusive competence of the administrative judge. This competence of principle extends, even if the latter is not seized as the main one. [...]
[...] The competence of the administrative judge by way of prejudicial question « The prejudicial question is that on which the judge seized in the main of a dispute cannot pronounce. He must then adjourn the judgment by bringing the question to the knowledge of another judge1. For the judge, in the present case, if such a question arises, 'the administrative judge is in principle the only competent to rule, if necessary by way of prejudicial question, on any dispute over the legality of such decisions, raised in the course of a dispute falling within the main jurisdiction of the judiciary'. [...]
[...] ] opposes a national regulation [ . ] according to which a national body, established by law in order to ensure the application of the law of the Union in a particular field, is not competent to decide to leave inapplicable a national rule contrary to the law of the Union.' Well before the SCEA du Chéneau decision, the Court of Cassation had to present a similar solution in its decision of 6 May 1996, France Telecom, considering that the civil judicial judge was competent to know the validity of an administrative act in the light of community law. [...]
[...] Commentary on the decision of the Council of State of 17 October 2011, SCEA du Chéneau The dual jurisdiction is a source of conflicts of competence between the judicial order and the administrative order. This conflict can be negative, when the two orders of jurisdiction reject their competence, or positive, when, on the contrary, they claim, respectively, their competence for the same case. It is within this framework that the decision made by the Council of State, on 17 October 2011, SCEA du Chéneau, is situated. [...]
[...] The Prefect of the Brittany region declines the jurisdiction of the judicial authority, estimating that it is up to the administrative judge to rule on the legality of the ministerial decree, even though the dispute opposes two private law persons. This question, according to the prefect, has the character of a prejudicial question that should lead the judicial judge to suspend judgment until the administrative judge has rendered a decision on the legality of the disputed decision. By a decision of 18 April 2011, the Court of First Instance rejected the declinatory plea on which the prefect based his decision to raise the conflict by decree of 9 May 2011. [...]
