Extract
[...] In addition, the judicial judge can interpret laws, it would therefore have been paradoxical to say that he was not authorized to interpret a regulatory act. Nevertheless, this solution was incomplete, in fact the judge could interpret a regulatory act, but the civil judge was incompetent to assess the legality of administrative acts, which made it difficult to apply European Union law since a judicial judge could not directly set aside an administrative act contrary to European law. The solution given by the Tribunal of Conflicts in the SCEA de Chéneau judgment therefore facilitates the application of European Union law, in accordance with the Simmenthal jurisprudence of 9 March 1978 of the Court of Justice of the European Union according to which the judge will leave 'unapplied any possibly contrary provision of national law, whether it is prior or posterior to the Community rule' The law of the European Union therefore has a strong influence on French courts, whether administrative or judicial. [...]
[...] Thus, it can be said that this theory has been applied in this case, because the judicial judge can interpret an administrative act if other acts dealing with the same subject and having the same form have already been interpreted by the administrative judges beforehand. The judicial judge is therefore exempt from an obligation to refer to the administrative judge on the basis of a subjective criterion, drawn from the legality or manifest illegality, in view of the administrative jurisprudence, of the contested administrative act. Therefore, the administrative judge can now consider that the private law act does not need to refer to the judicial judge due to its clarity. [...]
[...] Council of State October 2011, SCEA du Chéneau - In what way can the exclusivity of the principle of the administrative judge's competence for the assessment of the legality of an administrative act be nuanced by this ruling? [...]
[...] From now on, only a serious difficulty related to the assessment of the legality of an administrative act will lead the civil judge to refer the question to the administrative judge. In addition, the authors wondered if this jurisprudence could be applied in the other direction, that is, if an administrative judge seized of a conflict where a private law act was contested could interpret it himself, also in view of a established jurisprudence. In principle, except in exceptional cases, the administrative judge is therefore the only competent to assess the legality of an administrative act, except if the administrative jurisprudence is clear enough that the judicial judge can himself assess the legality of an act. [...]
[...] There are indeed legal exceptions such as Article 111-5 of the Penal Code, which gives competence to penal jurisdictions to interpret and assess the legality of administrative, regulatory, or individual acts, when the solution of the penal process depends on this examination. In addition, one can observe through the decision of July of the Constitutional Council, Law relating to the conditions of stay and entry of foreigners in France, that 'the legislator has, in the particular case of the prefectural decree of return to the border, intended to derogate, by Article 10 of the referred law, from the usual rules of distribution of competences between the orders of jurisdiction by relying on the competence recognized to the judicial authority in matters of individual liberty and notably of privative penalties of liberty as well as in what concerns the questions related to the state of persons; he also considered that a transfer of competence to the court of first instance sitting in the form of a preliminary ruling met a concern for good administration of justice. [...]
