Extract
[...] The questions that were then raised at the Council of State are as follows: A circular issued by the Prime Minister to his government services, aiming for a uniform application of a legal provision, must it meet the formal and procedural requirements of the exercise of regulatory power? Can the Prime Minister, by means of a circular, anticipate the application of a law with a delayed entry into force without thereby violating its provisions? The Council of State, by a decision dated 16 May 2022, answers the first question in the negative and the second in the affirmative, thereby rejecting the request made by the NAVSA. [...]
[...] This competence of the Prime Minister corresponds to an autonomous capacity for direction and coordination of the different services attached to the government. And that the circulars taken in application of this competence of internal coordination of the services of the administration do not have the effect of enacting a regulatory norm, and therefore do not require responding to the requirements previously cited that apply to the exercise of his regulatory power. And it is by this second competence recognized to the Prime Minister that the Council of State rejects the request for abuse of power of the circular of 25 February 2020, considering that he has not acted outside his competence in that he is not exercising his regulatory power." In this way, the Council of State recalls the clear differentiation between the two types of prerogatives of the Prime Minister: a first bearing on his regulatory power, rigorously delimited, and a second on the general management of the government, autonomous but internal to the administration without normative scope. [...]
[...] In this case, measure 9 of the circular of 25 February 2020, which asks ministers, secretaries of state and regional prefects to reduce the use of plastic from now on, is therefore a legal and proportionate means of preparing all state services to comply with the future obligations set by the law of 10 February 2020. And that the implementation of anticipated measures is not without legal basis since it is in line with the legislator's objectives set by the law of 3 August 2009. [...]
[...] By a request and a reply brief filed on 12 October 2020 and 29 July 2021 with the Secretariat of the Council of State, the National Federation of Sales and Automatic Services (NAVSA) requests the Council of State, on the one hand, to annul for excess of power measure 9 of the circular of 25 February 2020, aiming for an early application of a law, as well as the implicit rejection decision of the Prime Minister to his gracious appeal. On the other hand, it requests that the State be ordered to pay the sum of ?3,000 under Article L. 761-1 of the Code of Administrative Justice. Considering, first of all, that the aforementioned circular did not limit itself to giving internal instructions to government services but to issue a disguised regulatory act, and, in this case, would have acted in disregard of the formal and procedural rules by acting beyond its competence. [...]
[...] Consequently, the Prime Minister's proactive action, in addition to complying with the legal framework, pursues objectives that are in line with the will of the legislator, which cannot be cancelled for non-compliance with these same provisions. Thus, anticipation through circular does not constitute a circumvention of the law, but an instrument to ensure the coherence and effectiveness of the implementation of environmental public policies, ensuring that the different services of the administration are ready to apply the legal measure fully on the date set by the legislator, even if it means that they have already anticipated the application of such measures. [...]
