Extract
[...] The general principles of law are also victims of the competition of other "rights from elsewhere". At the external level, the PGD are competed by international and European law. In fact, the European Convention on Human Rights, European law, and various conventions consecrate fundamental rights and freedoms that were previously protected by PGD. For example, the European Convention on Human Rights consecrates the right to a fair trial, the rights of the defense, or the principle of impartiality. According to Kelsen's hierarchy of norms, these norms benefit from a higher value, the judge will therefore refer to them in priority. [...]
[...] The Council of State no longer consecrates almost any new general principles of law today. In fact, it prefers to rely on written norms, now abundant: Constitution, European Convention on Human Rights, European Union law . In this context of increasing textualization and the rise in power of judges, the place of the PGD seems to be weakened. Thus, has the development of written norms and the diversification of legal sources made the general principles of law obsolete? The multiplication of written norms and the competition of superior or equivalent sources seems to have relegated the general principles of law to the background However, their disappearance is only apparent. [...]
[...] Although they are not consecrated by texts, these principles have a binding legal force. The GPL have long been a central instrument of protection of the rights and freedoms of the administered. Since 1933, the Benjamin judgment of the Council of State reveals its spirit, without however naming them. In 1944 (CE Dame veuve Trompier-Gravier), the judge sets out the principle of respect for the rights of the defense, without always invoking the term of 'principle'. It is at the end of World War II, by its judgment Aramu of 1945, which the Council of State explicitly refers to, for the first time, the PGD, stating that they are 'applicable even in the absence of text'. [...]
[...] If values evolve, the PGDs must evolve to remain legitimate; if they remain frozen, they become outdated and lose their influence in the judge's reasoning and in the hierarchy of norms. If the PGDs have not disappeared and remain useful, their survival depends on a continuous effort by the administrative judge to adapt them and, if necessary, to identify new ones. The judge must go beyond the simple recall of the great historical principles to act in areas where written law is still incomplete or lagging behind. [...]
[...] They constitute a general line of conduct to follow, a minimal foundation of guarantees to ensure the protection of citizens. In addition, they retain a praetorian nature, which allows them to adapt to situations not provided for in the texts, to preserve fundamental guarantees, even in the absence of written basis. The great advantage of PGD is their flexibility and ability to respond to new challenges in a very rapid manner: they allow for quick responses to unprecedented situations without having to wait for legislative intervention. [...]
