Council of State Ruling on ROPA Practice in France

Extract

[...] It distinguishes incompetence (relative to the author of the act), vice of form and procedure (relative to the formalism of the act), abuse of power (relative to the purpose of the act), and violation of the law (relative to both the object and the motives of the act). It is thus of the violation of the law, means of internal legality, of which it is a question in this case. The Council of State operates a control of the agency's decision in relation to Articles L. 1211-5, L. [...]

[...] Council of State June 2024, n° 472649 - Did the Biomedicine Agency overstep its authority in maintaining the ban on the ROPA practice on its website? The Council of State was required to rule, before examining its legality, on the decisive and, by ricochet, attackable nature of the decision of the Director General of the ABM. By a judgment rendered on 19 June 2024, the Council of State rejects the GIAPS's request. First, the Council concludes that the indication concerning the ROPA practice, which states that it is prohibited in France, is admissible because it is 'an interpretation of the positive law that is likely to produce notable effects on the situation of people who wish to resort to this assisted reproductive technology practice'. [...]

[...] In addition, the 'document' of general scope is not inextricably linked to a public service mission. Thus, all documents not emanating from a public authority or emanating from a private person charged with a public service mission are excluded from the field of jurisprudence GISTI. The 'documents' of general scope are precisely those whose signatory is a public authority, but also documents that exist only in electronic form or those appearing on the website of a public authority. There is no restriction on the field; only the source of the document matters. [...]

[...] In a second time, the Council of State controls the conventionality of the prohibition defended by the agency. After some resistance and since the jurisprudence Nicolo (CE October 1989), the administrative judge accepts to control, on the occasion of a recourse exercised against a decision, the compatibility with an international convention of the law on the basis of which the decision was taken. In this case, the Council of State operates a control of the law and, by ricochet, of the agency's decision in relation to the European Convention and concludes that the provisions of the bioethics law would not 'cause a disproportionate infringement of the right to respect for private and family life, as guaranteed by the provisions of Article 8 of the European Convention on Human Rights and Fundamental Freedoms, or would be constitutive of a prohibited discrimination by the provisions of Article 14 of this Convention'. [...]

[...] be challenged before the Council of State outside the procedure provided for in Article 61-1 of the Constitution'. The two foundations, namely the Declaration of the Rights of Man and of the Citizen of 1789 combined with the Preamble of 1946 are an integral part of the block of constitutionality by which the Constitutional Council since its decision Freedom of association of 16 July 1971 accepts to operate its control on laws. The administrative judge is a vigilant guardian of the constitutional acts of administrative acts. [...]