Administrative Judge Control Evolution

Extract

[...] The Council of State has very clearly judged that it did not belong to it to control the Constitution in the light of an international treaty, which amounts to considering that in the event of a conflict between a treaty and the Constitution, it is for the administrative judge to apply the Constitution Ass October 1998, Sarran). The Council of State had previously judged that it had to interpret the stipulations of an international treaty in the light of a fundamental principle recognized by the laws of the Republic that it had itself extracted Ass July 1996, Koné). It appears, ultimately, that the conventionality control exercised by the administrative judge reinforces the internationalization of administrative law as soon as it submits the administration to the respect of France's international commitments. [...]

[...] The QPC makes it possible to give primacy to the Constitution over the law before the administrative judge, provided that the individual wishes to do so. It should be noted that when assessing the conditions, the administrative jurisdiction is called upon to interpret the Constitution, although the bulk of the interpretation falls to the Constitutional Council when it rules on the constitutionality of the law. Laws are subject to constitutional norms, but the superiority of the treaty over the law also reveals that the law is a source of administrative law only in respect of international treaties. [...]

[...] However, this recognition renders the general principles of law, which are inspired by most of its provisions, useless: the administrative judge preferring to refer to a written source of a higher level. Also, administrative law has known for a few years a movement of codification. Several codes that do not aim to compile only legislative and regulatory texts but to codify the jurisprudential work of the Council of State have in this regard been adopted. A second mutation of traditional sources concerns the development of regulatory sources in relation to legislative sources. [...]

[...] The control of the administrative judge, a control servant of the law The traditional sources of administrative law, although diverse and constituting the main source of control for the administrative judge have nonetheless undergone a mutation The diversity of traditional sources of administrative law Traditionally, the law is the major source of administrative law. In most cases, it is in relation to the law that the administrative judge controls the legality of administrative acts. Regulatory sources traditionally complement and clarify these legislative sources since the institution by the Constitution of year VII of a regulatory power for the application of laws. [...]

[...] If the supra-decretal value of the general principles is commonly admitted Sect June 1959, Syndicat général des ingénieurs conseils), their exact position in the hierarchy of norms, particularly in relation to laws, is often debated. It seems that the thesis of Professor Chapus, which attributes to them a value infra-legislative, is the most in line with positive law since the Constitutional Council had been able to proclaim that a law could derogate from a general principle of law (Con. Const June 1969, Protection des sites). If traditional sources of administrative law continue to exist and are diverse, they have nonetheless undergone an important mutation. [...]