Procedure Adopted BY Conseil D'etat IN France

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PROCEDURE ADOPTED BY Conseil d’Etat IN FRANCE

BY

S j tUBRAZY

The machinery of the Court is relatively simple. The tribunal can be moved by the filing of a petition by the aggrieved subject. On the receipt of a requete (petition) it is allocated to one of the nine subsections into which the Judicial Section of the Conseil d’Etat is divided. The requete having been allocated to a subsection it is the duty of its president to assign it to a rapporteur (reporter, recorder, judge). The rapporteur is a member of the Conseil d’Etat and will follow to the end the cases assigned to him. In consultation with the president of the subsection and subject to the directions of the subsection, it is his duty to complete the case and get it ready for final orders. It is his business to notify the department concerned of the institution of the requete and invite observations in respect thereof, to settle the time limits for the parties, etc.

The Conseil d’Etat does not, however, content itself with deciding the issue upon the material presented to it by the zeal or endeavours of the parties alone. However, much it may rely upon the diligence of the complaining party, the Conseil d’Etat itself participates in the preparation of the case, through its rapporterr. It is his business to propose the measures d’instruction. For it is one of his duties to secure for the tribunal which is to render final decision, all the material which is considered necessary to enable the tribunal to reach with reasonable confidence a well‑informed an i well‑grounded determination of the question before it.

In this sense the Conseil d’Etat acts inquisitorially, it may be moved of itself to inquire further. No doubt it will not move unless induced to do so by the complaining party‑the complainant must after all make out a prima facie case‑but if in course of the instruction a prima facie case appears and the material for its solution is not available, the instructing body (rapporteur) will bestir itself to obtain the material‑for its own purposes, so to speak, and almost without further reference to the complainant. The complainant having made out a prima facie case, it is the Court’s duty to satisfy itself as to the truth of the matter. The Coaseeil d’Etat believes itself to have as great an interest in the administration as the aggrieved subject himself.

In a large number of cases the prayer is for annulment of an illegal decision of a Minister or public authority, and the question at issue i; what were the grounds for the official act and whether the grounds we: u sufficient to warrant the act. What material ought to be produced, and by whom, as will enable the Tribunal to reach a satisfactory conclusion is a  question in each particular case and is determined after taking into consideration the conduct of the parties, all the relevant circumstances, tai; particularity of the allegations and denials, and the final probabilities. The phrases generally used in the judgment that ‘it resulte de l’instruction III follows from the instruction) or ‘it resulte de l’examen du dossier (it follows from the examination of the documents on the file) or ‘it ressort des pieces au dossier (it follows from the material brought forward in the cause) that the plaintiff’s or the Minister’s allegation is or is not establi (established) gi;‑,°s some indication of the material required by the Tribunal, which  rapporteur must collect during the instruction.

The procedure followed is a written one, no one being orally examined, and is throughout contradictorire, i.e., each party is entitled to see and comment in writing upon all the documents produced by the otherone. Neither party can communicate any argument or information which is not open to the inspection and reply of the other.

 PROCEDURE ADOPTED BY Conseil d’Etat IN FRANCE

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