Council of State Role

The Conseil d'État embodies French administrative law's distinctive tradition, combining supreme administrative court functions with government advisory roles in an institution dating to Napoleon.

Historical Prestige and Evolution

The Council's authority derives from institutional continuity and expertise:

Napoleonic Foundation: Created in 1799 as government advisor: - Drafting laws and decrees - Resolving administrative disputes - Training administrative elite - Embodying state continuity

Jurisdictional Development: Gradual judicial independence: - 1872: "Delegated justice" replacing "retained justice" - Administrative law autonomy from civil law - Distinctive principles elaboration - European law integration challenges

Elite Institution: Recruitment and culture: - ENA graduates dominating (traditional) - Career paths between advisory and judicial sections - Revolving door with ministries - Technical expertise valorized

Contemporary Functions

The Council operates through dual structures:

Advisory Sections: Government consultation on: - All government bills (mandatory) - Decree legality and drafting - Administrative complexity resolution - European law transposition - Major administrative reforms

Advisory opinions remain confidential but influence through: - Legal quality improvement - Constitutional pitfall warnings - Administrative coherence - Inter-ministerial arbitration - Technical expertise provision

Judicial Sections: Supreme administrative jurisdiction over: - Minister and decree legality - First instance for major cases - Appeal from administrative courts - Cassation for specialized jurisdictions - Urgent liberty procedures

Administrative Law Development

The Council created distinctive legal principles:

General Principles of Law: Judge-made rules including: - Equality before public service - Administrative act revocability - Rights of defense - Legal certainty - Legitimate expectations - Proportionality

Public Service Theory: Distinctive French conception: - Continuity requirements - Adaptation necessity - User equality - Public power prerogatives - Exorbitant law application

State Liability: Expansive responsibility doctrine: - Fault-based liability (service failures) - No-fault liability (risk, equality before public burdens) - Legislative fact liability - International engagement breaches

Checking Executive Power

Despite institutional proximity, the Council constrains government:

Regulatory Review: Controlling decree legality: - Ultra vires doctrine - Procedural requirements - Substantive limitations - Proportionality review - Rights protection

Individual Protection: Remedies against administration: - Annulment of illegal acts - Urgent suspension procedures - Damages for harm - Injunction powers (recent)

Systemic Influence: Shaping administrative behavior: - Preventive legal compliance - Internal legal services strengthening - Risk aversion tendencies - Proceduralization effects