Judicial Control over Regulatory Acts

Extract

[...] Such a restriction applies to the appeal by way of exception of the legality of the regulatory act and in the context of an appeal against one of the acts taken on its basis. It also applies, as the judge specifies in the present case, to an appeal against a decision refusing to repeal a regulatory act. It follows that such grounds can only be raised in support of an appeal for abuse of power against the regulatory act itself. B. [...]

[...] Thus, the limits of the judge's control over the abuse of power on regulatory acts are based, according to the judge, on certain considerations and only touch certain illegality A. The Foundation of the Limits of Judicial Control by Exception on Regulatory Acts The judge bases the limitation of his power of control by the means of abuse of power on regulatory acts on the expiration of the deadlines for appeals. Such a solution consecrates the principle of legal security to the detriment of the principle of legality which recalls that which the high jurisdiction has retained in its decision of July Czagaj considering 'that the principle of legal security, which implies that situations consolidated by the effect of time cannot be challenged without a time limit, prevents an administrative individual decision from being indefinitely contested' The refusal to rule on the legality of an act on the grounds that the deadlines for appeals have expired, either after two months from the publication of the act, may seem normal, as the contentious deadlines are among the conditions of admissibility of the appeal, nevertheless, and in the case of a regulatory act, the subject of the dispute in the present case, the judge sets a new rule by rejecting its contestation by way of exception, whereas it is a constant jurisprudence that the illegality of a regulatory act can always be invoked by way of exception, that is to say in support of an appeal against an act taken on its basis: CE May 1908, Poulin or on the occasion of a request for its abrogation: 3 February 1989, Alitalia, without the expiration of the deadlines for contentious appeals being able to be invoked usefully. [...]

[...] This refusal concerns the appeal by way of exception, that is, the one directed against an individual act taken on the basis of the regulatory act or in connection with an appeal based on the refusal to abrogate the act tainted with irregularity. The judge limits this exclusion of appeal by way of exception to defects of form and procedure, which implies that other forms of illegality can still be raised. Such a solution seems to break with an old jurisprudence that consecrated a real opening of the courtroom to the litigants harmed by an illegal act. [...]

[...] To answer this question, the judge first notes the extent of his control through action on regulatory acts and then specifies the limits of his control (II). I. The extent of the control through action exercised by the judge on regulatory acts The Council of State affirms in the present decision that 'the control exercised by the administrative judge on an act that presents a regulatory character concerns the competence of its author, the conditions of form and procedure in which it was issued, the existence of an abuse of power and the legality of the general and impersonal rules that it enunciates'. [...]

[...] The control exercised by the judge on the internal legality of regulatory acts The Council of State specifies that its control over a regulatory act covers, apart from cases related to external legality, "the misuse of power and the legality of the general and impersonal rules it enunciates?, as long as it has not been decided to modify or abrogate them". This is the case of the opening of the appeal for abuse of power based on the internal legality of the act. The abuse of power is constituted when the act was taken for a purpose other than that declared by the administration. It was censured, for the first time by the judge in 1875 (CE November 1875, Pariset). [...]