Comparative Law Spring 2002 Professor Susanna Fischer

1. Comparative Law Spring 2002Professor Susanna Fischer CLASS 34 FRENCH ADMINISTRATIVE LAW & PROCEDURE April 10, 2002

2. German Administrative Law: Focus on Individual Rights • German administrative law and procedure is centered around the protection of individual rights. • This concern for protecting the rights of a litigant is clear from the legal requirement that the court must point out defects in the claim’s form or the demands for relief.

3. German Administrative Hearings • The hearing is adversarial, usually heard by a single judge. • But the judge depends to a great extent on the report prepared during the preparatory phase, sometimes by another reporting judge.

4. Administrative Judgments/Orders • Summary judgment (Gerichtsbeschied) – without a hearing (rare) • Court order (Beschluß) e.g. order for evidence – doesn’t conclude trial • Judgment on Procedural Grounds (Prozeßurteil) concludes trial • Judgment on the Merits (Sachurteil) concludes trial • Interlocutory judgment (Zwischenurteil) • Partial judgment (Teilurteil)

5. Costs • Costs orders will be made in final judgment. Who bears the costs of administrative proceedings?

6. Costs • Costs orders will be made in final judgment. Who bears the costs of administrative proceedings? Loser bears the costs, which are taxed by the court.

7. Damages • German administrative courts do not award damages – if you want damages for contractual or delictual (eg tortious) liability, you claim for these in the civil, not the administrative courts.

8. Appeal • If not appealed, an administrative judgment becomes final and absolute • There are 3 types of appeal in administrative proceedings. What are these?

9. Appeal • Berufung – appeal against decision of Verwaltungsgericht seeking reversal (1 month time limit). A rehearing. • Revision – appeal on point of law usually against decision of Oberverwaltungsgericht(1 month time limit to file; 2 months for grounds) • Beschwerde – Request for relief from court order

10. German Administrative Law: Themes to Keep in Mind • Separate administrative courts that are part of judiciary • Judicially review administrative acts and decisions • Protest procedure designed to keep disputes from clogging courts • Procedure is heavily inquisitorial but has adversarial hearing • Heavy emphasis on individual rights rather than reviewing rulemaking process

11. French Administrative Law: Themes to Keep in Mind • Separate administrative courts that are outside judicial system and are part of executive branch • Judicially review administrative acts and decisions • No protest procedure like German one • Procedure is heavily inquisitorial but has adversarial hearing • Less heavy emphasis on individual rights rather than reviewing rulemaking process

12. French Administrative Law • Like German administrative law, French administrative law concerns public law and public power • Like the German administrative law, French administrative law is founded on the principle of legality (principe de legalité) or rule of law • Remember that in France there was no power to judicially review the executive until 1872 (even though the Conseil d’Etat was created by Napoleon in 1799)

13. French Administrative Courts are not part of the judicial branch • They are part of the executive branch (though set up to be separate from administrative functions). This does raise questions about conflict of interest.

14. Sources of French Administrative Procedure • Lower Administrative Courts tribunaux administratifs/cours administratives d’appel: Code of the Administrative Courts and the Administrative Courts of Appeal (from 1989) • Conseil d’Etat: ordonnance of 31 July 1945 and decree of 30 July 1963. • Case law plays a more significant role here than elsewhere in French law

15. Judicial Review in the French Courts • Administrative actions are heard in administrative courts. 3 tier system of general administrative courts: • Administrative Courts tribunaux administratifs (1st instance) • Administrative Courts of AppealCours administratives d’appel • Conseil d’Etat (court of 1st instance in small number of cases e.g. Judicial review against decrees of PM or President) • Also some specialized administrative courts

16. Costs • Costs orders will be made in final judgment. Who bears the costs of French administrative proceedings?

17. Costs • Costs orders will be made in final judgment. Who bears the costs of administrative proceedings? In France, each party bears their own avocat’s fees but winner gets dépens (court fees including witness expenses and certain other fees determined by reference to an official scale) – though court has discretion to assign costs differently.