The Administrative Judge's Evolution in Interpreting European Directives

Extract

[...] It was therefore necessary to review this position and make the administrative judge the common law judge of directives. II) The administrative judge became the common law judge of directives Becoming the common law judge of directives, the Council of State had to reverse its Cohn-Bendit judgment which allowed the administrative judge to be the judge of directives through all forms of control, thus expanding its office An awaited jurisprudential reversal: the Dame Perreux judgment By a judgment rendered on 30 October 2009, Dame Perreux, the Council of State held that 'any litigant may rely, in support of an appeal against an administrative act not governed by a regulation, on the precise and unconditional provisions of a directive, when the State has not taken, within the deadlines set by it, the necessary transposition measures'. [...]

[...] Or, since he has deployed a whole arsenal of jurisprudence, the administrative judge is truly the common law judge of the directives. In fact, now a directive can be invoked directly (under respect of the conditions set by the Dame Perreux ruling) against an administrative act that is not regulatory, and therefore also unilateral. A regulatory act is also contestable. But also when a law 'serves as a screen' between the administrative act and the directive, the administrative judge can examine the law in relation to the directive (CE Rothmans) it has expanded its office. [...]

[...] As a result, the French administrative judge has long considered that directives conferred no rights on applicants to invoke them against administrative acts. In fact, directives could not be invoked to contest the conventional nature of an administrative act before the administrative judge. However, this very restrictive position of the judge has been gradually relaxed. It is therefore necessary to ask to what extent the administrative judge has received the directives in his contentious proceedings in order to allow applicants to invoke them in support of a recourse. [...]

[...] Dissertation: The Administrative Judge Facing European Directives According to Professor Bertrand Seiller, 'the Cohn-Bendit jurisprudence has long symbolized the reluctance of administrative judges towards European Union law' (B. Seiller, Administrative Law 1. Sources and the Judge, 7ème edition, p. 75). We can specify 'vis-à-vis the directives'. For reference, a directive from the European Union law is a text that 'binds all member states as to the result to be achieved, while leaving national authorities the choice of form and methods' (Article 288 of the TFEU). Since a directive is an international law text (EU law remains a particular international law), it applies in the internal legal order. [...]

[...] On the other hand, the State must not have taken the necessary transposition measures within the deadlines set. Thus, when an invoked directive has no direct effect, it cannot allow for the contestation of an administrative act (CE March 2010, Alsace Nature). But if a directive has not been transposed into internal law and its provisions are unconditional and precise, then it can be invoked (CE March 2011, M. Jin). By doing so, the administrative judge recognizes itself as the common law judge of EU directives, without going through somewhat indirect contentious means of its previous jurisprudences. [...]