Extract
[...] The Council of State does not rule on the substantive legality of the decrees, since no means were raised by the requesting association, which was awaiting a cascading annulment of the various acts, following the illegality of the ordinances. [...]
[...] In fact, as long as the ordinance taken has not been ratified by Parliament, it has a regulatory value, it is a unilateral administrative act that can be contested before the Council of State.4 On the other hand, when the legislator ratifies the ordinance, the ordinances acquire a legislative value and can no longer be contested before the administrative judge; thus 'the challenge in terms of rights and freedoms, of the provisions of an ordinance falling within the domain of the law is only receivable through a priority constitutional question'. (§4). However, the question of the legislative value of an unratified ordinance is raised once the enabling period has passed. [...]
[...] Thus, the Council of State rejects the means and affirms that 'the difference in treatment that results, since it is only a criterion for distinguishing between equal merit, does not appear to be manifestly disproportionate in light of this objective.' (§14). In view of the general interest and the objective of the ordinance, the decree is not contrary to the principle of equality. The Council of State, in 19257, The Council of State, in 1925, established the principle of retroactive annulment. [...]
[...] In this sense, the law of 6 August 2019 on the transformation of the public function authorizes the Government, in the conditions provided for in Article 38 of the Constitution, to take by ordinances measures on the equality of access to public jobs. In fact, Article 38 of the Constitution allows the Government to act in the legislative field as soon as the Parliament votes an enabling law. Thus, on the basis of the enabling law of 6 August 2019, the Government took an ordinance on 3 March 2021 and, on the same day, adopted a decree of application. [...]
[...] The Council of State affirmed that when an administrative act is annulled, the act should disappear from the legal order, for the future and for the past. Thus, the disappearance of an annulled act leads to the disappearance of all acts that have been issued on the basis of the annulled act. In fact, an illegal act cannot serve as the basis for the issuance of other acts. The association requested the annulment of the decrees on the basis of the illegality of the ordinance and the decree. Consequently, the contested decrees taken for the application of the decree of March are legal. [...]
