Conseil d'État (France)

The Council hears cases against decisions of the national government, notably government orders, ministerial rules and regulations, judgments handed down by committees, commissions, and boards with nationwide jurisdiction, as well as suits concerning regional and EU electoral matters.

The Council has judged that such acts are restricted to:

• relationships between the executive branch and the legislative branch, e.g., whether a bill should be submitted to Parliament;
• acts that are part and parcel of France's foreign policy.[17]

In this role, the Council provides a powerful check on the actions of the executive.

The Council of State has appellate jurisdiction over local election judgments from any of the 37 administrative courts.

It acts as a final court of cassation for decisions originating from any of the eight appellate administrative courts, meaning that it hears cases in which the plaintiff argues that the appellate court ignored or misinterpreted the law. Should it decide that the original appellate court took the wrong decision, the Council of State will in most situations transfer the case to a different administrative court of appeal, to be re-judged. However, in the interest of swifter decision-making and correct interpretation of the law (bonne administration de la justice),[18] it also has the right to rule on the case without transferring it, thus acting as an appellate court in last resort (jugement en dernier ressort).

Like nearly all French courts, the Council's court system is inquisitorial, and proceedings are initiated by a statement of claim detailing the factual background of the case and why the appellant should be granted relief. The Council then begins a formal investigation, asking the appellee, i.e., the government or a government agency or office, to satisfy the Council with a detailed statement of defense. Burden of proof does not lie with the plaintiff; instead, the Council decides whether or not the appellant has cause to bring suit and whether the government was in error if information provided by the appellant is sufficient to locate previously undisclosed evidence. Of course, both parties may submit additional pleadings and information until the case is ready for final judgment.

The formation of judgement depends on the importance of the case, for the jurisprudence and the interest of the law. All of the formations belong to the Administrative Claims department.

The smaller cases (without new legal issues) are treated by one chamber (known as under-departments, i.e. sous-section, prior to their reorganization in 2016[19]). There are 10 chambers. The bigger cases are attributed to united chambers (chambres réunies), a configuration made up of two chambers, although, for some important fiscal cases, three or four chambers can be concerned, coalescing into an ad hoc formation, the "full fiscal" (plénière fiscale) chamber. The more important cases are for the administrative claims department judgement formation (Section). Only the very important cases, with hard, new and/or important legal issues are concerned. There are about between 20 and 40 cases per year into this specific formation, which includes the president of the ten chambers, the three assistant-presidents of the administrative claims department and the president of the department, which, in addition to the magistrate responsible of the investigation about the case, reaches 15 members.

General Assembly Room (Salle de l'assemblée générale), where the members of the Council gather to resolve the major cases

The major cases are resolved by the administrative claims assembly (Assemblée du contentieux). All the presidents of departments are there, under the presidency of the Vice-President of the Council of State. Less than 10 cases per year are concerned.

All the cases, even the ones eventually resolved by the Assemblée du contentieux, are first studied by a chamber.

Although, as is the general rule in French administrative law, the procedure is written, one of its highlights are the oral conclusion of the rapporteur public (public magistrate), giving his personal vision of the case, totally impartial and free, on a pure legal point of view. Reading the conclusions from past cases is often useful to understand the mindset of the judges and the reason of the solution given to the case. Nonetheless, and unlike in common law jurisdictions operating under stare decisis, those former judgements do not constitute a binding precedent for French judges, who remain free to adapt or overturn them (in a so-called renversement de jurisprudence).

Since an order of 2009 (n° 2009–14, 7 January 2009), there is a possibility for the parties to speak after the rapporteur public's conclusions. Lawyers use this possibility only for major cases, when it can make a significant difference (e.g. for the Hoffmann-Gleman case – 16 February 2009 – concerning the compensation of the daughter of a deported Jew during the World War II, involving the French state's responsibility).

In some cases, there may be some confusion as to whether a case should be heard before an administrative law court or judicial court, in which case the Court of Jurisdictional Disputes, or tribunal des conflits, made up of an even number of State councillors and Supreme Judicial Court justices, is convened to decide to whom the matter shall be vested. Until 2015, this Court was chaired by the Minister of Justice, whose vote would break any potential tie. As of 2015, court members elect a president amongst themselves for 3 years, and, in case of a tie, the court's composition can be modified to include several more judges.

Exercising judicial review over almost all acts of the executive branch, the Council of State's judgments may be of considerable importance, often not for the actual case judged, but for their importance in shaping legal interpretation. While France is a civil law country and there is no formal rule of precedent (stare decisis), lower courts follow the jurisprudence constante doctrine with regard to the Council of State. The Council's major rulings are collected into law reports and commented on by scholars; the Council's official website carries a list of comments on important decisions. The Council has shaped its own legal doctrine which consists mostly of principles deduced from cases but incorporates considerable jurisprudence derived from statutes.

Rulings are named for the moving parties (appellants) in the cases and under highly formal courtesy titles. Men's names used to be preceded by Sieur, women's names by Dame or Demoiselle, and widows were referred to as Dame veuve.

About 10,000 rulings per year are given by the Council of State.

The most important rulings are collected in a publication called "G.A.J.A" (i.e. Les Grands Arrêts de la Jurisprudence Administrative – The major rulings of the administrative jurisprudence -), published by Dalloz editions and written by some of the most influential authors or judges of the time in France (e.g. Bruno Genevois or Prosper Weil). The GAJA explains about 120 rulings, from 1873 to now, and quotes several hundreds of other important rulings.

Important rulings include:

• February 19, 1875 – Prince Napoléon
  The fact that a decision has been taken with political considerations does not make it an "act of government" that cannot be adjudicated by the Council (rescinding a previous doctrine). A prince had been removed from the Army for political reasons. The Council stated that his case had to be heard, but then decided that it was unfounded because the law said that his commission could be revoked.
• May 28, 1954 – Barel. Freedom of opinion of civil servants.
  After a number of Communists had been refused admission to the École nationale d'administration it was decided that the Government cannot exclude people from applying for civil service positions solely on the basis of their political convictions.
• October 19, 1962 – Canal, Robin & Godot
  The executive branch may make decisions by ordinance only within a narrowly defined scope authorised by the enabling law. The executive cannot mandate the creation of courts whose procedures and lack of recourse fall outside the general principles of criminal law.
  This decision was the source of tensions between the Council and then President Charles De Gaulle.
• February 3, 1989 – Alitalia corporation
  The executive branch is responsible for voiding its own unlawful rules and regulations, even if they were initially lawful. Regulatory law must comply with European Union directives in force.
• October 27, 1995 – Commune of Morsang-sur-Orge, also known commonly as the "dwarf tossing case".
  Respect for human dignity is to be included as part of the ordre public (the principles governing the public realm in France). In this case a mayor had prohibited a dwarf-tossing event on the grounds was against the "public interest" because it did not respect human dignity. This decision stops short of including morality as part of the ordre public.
• October 30, 1998 - Sarran, Levacher et autres
  The French Constitution prevails on international treaties, including European treaties. The Constitution is the supreme norm, above all other law rules.
• March 3, 2004 – The asbestos case.
  The State may be held responsible for not taking appropriate measures, in accordance with current scientific knowledge, to safeguard workers' health (against asbestos), even if workers are employed by private employers.
• October 3, 2008 - Commune d'Annecy
  As the Charter for the Environment is cited in the preamble of the French Constitution, all the rights and duties it defines have constitutional value.