Council of State, Dame Lamotte, administrative law, abuse of power, General Principles of Law, GPL, French administrative law, legality, legislative arbitrariness, judicial remedy
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Abstract
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Abstract
Commentary on the landmark Council of State judgment of 17 February 1950, Minister of Agriculture v. Dame Lamotte, a sentinel of legality facing legislative arbitrariness.
Extract
[...] - But the legislator could not have wanted to suppress the remedy for abuse of power, because this remedy is of a different nature. It is not only a means of defense of particular interests; it is a guarantee objective of legality. The Council of State thus establishes a presumption of legality and rationality of the legislator. It pretends to believe that the legislator is always respectful of the fundamental principles, unless he expresses the opposite in an explicit manner. [...]
[...] Finally, we will measure the immense legacy of this judgment, which, by sanctuarizing the appeal for abuse of power, anticipated the constitutionalization of fundamental rights and the advent of contemporary administrative democracy (Part 4). 1. The confrontation between legislative exception and private property The case Dame Lamotte is the perfect illustration of the conflict between the state's reason, embodied by a crisis legislation, and the defense of individual rights, embodied by the right of property. To understand why the Council of State had to take a strong stance, one must first measure the thickness of the legislative and administrative wall that it had to cross. [...]
[...] He requests the annulment of the judgment and the reinstatement of the concession decree. The Council of State is therefore seized of a vertiginous question of principle: must the judge apply a law that organizes the denial of justice? Or must he find, in the deep resources of the law, the means to circumvent it without appearing to violate it? 2. The office of the administrative judge: the reinvention of the hierarchy of norms It is in the response to this dilemma that the genius of the judgment resides Dame Lamotte. [...]
[...] ] is open even without text against any administrative act and [ . ] has the effect of ensuring, in accordance with the general principles of law, the respect of legality. 9 This statement calls for a detailed analysis of its components : Component of the formula Legal analysis and scope "Or even without text The REP does not need an enabling law to exist. It is consubstantial to the administrative act. It is a natural right of the citizen vis-à-vis the State. [...]
[...] To prohibit the latter, a specific formula of the type: 'including recourse for abuse of power' would have been needed. In the absence of this diabolical precision, the recourse survives. 2.2. The Recours pour Excès de Pouvoir (REP) is consecrated as a PGD To support this bold interpretation, the Council of State does not limit itself to a hermeneutic rule. It elevates the recourse for abuse of power to the rank of a superior norm. This is the major doctrinal contribution of the ruling: the qualification of the REP as Principle General of Law. [...]
