LexInter | February 8, 2009 | 0 Comments


The fact that gave rise to this conflict is as simple as it is sad; a five-year-old child, Agnès Blanco, was run over and seriously injured by a wagon loaded with tobacco led by four workers from the Bacalan tobacco factory in Bordeaux, across the street that separates the store from the hangar of this establishment.

The father of the child brought before the civil court of Bordeaux, under articles 1382 and following, an action which was directed both against the four workers as co-perpetrators of the injury caused to his daughter, and against the ‘State as civilly responsible for the imprudence of its officials.

This action tended to condemn the workers and the State jointly and severally to pay him an indemnity of 40,000 francs. The declinatory brief of the prefect of Gironde denied any jurisdiction to the court to hear the case, both with regard to the workers and to the State.

The judgment of the civil court, dated July 17, 1872, having rejected on these two points the declination, the decree of conflict which is submitted to you has claimed knowledge of the action, for the administrative authority only as long as it was directed against the State, leaving unquestionably to the judicial authority the right to hear the debate between Sieur Blanco and the workers.

The conflict being reduced to these terms, the question it raises is that of which of the two administrative and judicial authorities, the one which has general jurisdiction to hear actions for damages brought by individuals against the State, such as civilly responsible for the personal faults of its agents in the various public services, while the special laws for these services have not taken care to regulate this responsibility and to designate which of the two authorities would be responsible for assessing it.

This question has been the subject of constant dissent between the Court of Cassation and the Council of State, which, in two opposing directions, have shown equal firmness in maintaining their respective doctrine.

Before entering into the discussion, it is important to specify the point to which the controversy now appears to be reduced.
The Court of Cassation recognizes, with the Council of State, that our laws constituting the separation of administrative and judicial powers, (Laws of December 22, 1789 – January 8, 1790 (sect. 3, article 7), of August 16-24 1790 (title 2, article 13), of 16 Fructidor year III), prohibit the judicial authority from any examination, any criticism, either of the administrative regulations, of the orders and instructions given by the administration to its agents, or of the omission of these various measures.

It therefore accepts that the civil courts have no jurisdiction to hear claims made against the State by individuals, in order to obtain compensation for damages which would have resulted for them, either from the execution of regulations and other acts of administrative authority, or the omission of measures that prudence could have ordered this authority, and which they would reproach it with, for not having taken (judgment of June 3, 1840, de Rotrou). On this first point, therefore, there can be no difficulty.

But the same is not the case with actions for damages brought against the State by individuals, when they are no longer based on the execution or on the omission of certain administrative measures, but of course. faults or personal negligence on the part of State officials in the employment for which they are assigned. In this case, which authority is competent to rule on the substance of the debate?

It is on this point that a radical, absolute disagreement has constantly existed between the Court of Cassation and the Council of State. In 1850 and 1851, the matter was brought before the Conflict Tribunal. In the various cases before the Tribunal, it was a question of proceedings instituted against the postal administration, at the rate of faults or even of crimes alleged against its agents; the Tribunal considered that, in order to decide whether these facts had been accomplished by its agents in the exercise of their functions and to what extent they might be liable to engage the responsibility of the State, it was necessary to examine and d ” assess the regulations relating to the letter post service; that by engaging in such an examination, the judicial authority would interfere in the assessment of administrative acts which the laws on the separation of powers forbade it to know. Also, in these various cases, it is on the basis of the particular circumstance of administrative acts to be examined and assessed, that the Tribunal ruled in favor of administrative jurisdiction (see, in particular, May 20, 1850, Manoury ; July 17, 1850, Letellier; April 7, 1851, Cailliau). Letellier; April 7, 1851, Cailliau). Letellier; April 7, 1851, Cailliau).

The current Conflict Tribunal recently issued two similar decisions in terms of their reasons and their mechanism, about conflicts brought up by the prefect of the Rhône in proceedings brought against the State by the Paris-Lyon-Méditerranée railway company, due to accidents caused by the exposure of barrels of powder and which the company attributed to the recklessness of State officials in the packaging and stowage of these powders. If these various decisions did not settle in principle the question which concerns us, it must nonetheless be recognized that they have singularly reduced the scope of them because henceforth the doubt no longer exists except in the case where, to assess the principle and extent of the State’s responsibility for a fault alleged against its agent,

This appears to be precisely the case in the present case.
On the one hand, in fact, the fact of imprudence reproached with the workers of the Bordeaux tobacco factory, in the operation of the wagon which overturned and injured the young Blanco, relates very directly to their employment.

On the other hand, it does not appear, and it would be very difficult to conceive, that there could be in the administration of tobacco, any administrative regulation whatsoever which would have had the aim and the effect of regulating the consequences of a similar fact from the point of view of the responsibility which would result from it for the State vis-à-vis third parties.

We are therefore in the presence of an action for damages brought by an individual against the State for a quasi-offense, that people in his service would have committed in the performance of the job for which they are assigned. , and apart from any administrative regulation which could specify and limit the State’s responsibility towards third parties.

Which authority is competent to rule on this action? In the absence of a special text which determined jurisdiction, the question can only be decided by the application of general principles.
It is here that we find ourselves facing the two conflicting doctrines of the Court of Cassation and the Council of State.

The first is entirely based on the idea that Article 1384 of the Civil Code, which declares masters and principals liable for damage caused by their servants and servants, is applicable to the State as well as to individuals; hence the consequence that the judicial authority alone would be competent to draw the legal consequences of this responsibility, both with regard to the State and with regard to private individuals (Civ., req. April 1, 1845 , DP45.1.261; December 19, DP55.1.37).

The doctrine of the Council of State contains, at the same time, a direct contradiction to the thesis of the judicial authority, and the reasons which serve as foundations for administrative competence.

On the one hand, in fact, it disputes that Article 1384 is applicable to the State and that the responsibility of the State, in the event of fault, negligence or errors committed by its agents, must be assessed according to the principles and provisions of civil law.

On the other hand, it establishes the administrative competence for the assessment of this responsibility on two grounds: the first, based on the principle of the separation of powers, from which would derive the incompetence of the judicial authority to rule on the complaints made against the State on the occasion of public services; the second, taken from the legislation of 1790 on the liquidation of the public debt, according to which it would be only for the administrative authority to declare the debtor state, that is to say to rule on the actions which tend to have a debt borne by the State recognized (see in particular Conseil d’Etat, 6 December 1855, Rotschild; 20 February 1858, Carcassonne; 1 June 1861, Bandry; 7 May 1862, Vincent; 29 May 1867 , Bourdet).

We will not focus on this second reason. The legislative texts from which it is drawn, by attributing to the National Assembly, first of all, to the administrative authority, then, full jurisdiction to know all the difficulties that may arise in relation to the debt rights claimed against the State, seem to have had in view only the liquidation of arrears. On the other hand, they confuse, in the generality of their terms, all debts whatever their cause, without distinguishing between them according to whether they concern the State public power or the State civil person. Now, this is a distinction that reason commands, that the law of November 5, 1790 on the domain of the State has always recognized and practiced for forty years. The laws on the liquidation of the public debt could only leave it aside precisely because of their exceptional and transitory nature. This rule that it is only for the administrative authority to constitute the debtor State, apart from not being based on a solid basis, therefore, if taken in an absolute sense, has the serious drawback of ‘singularly exaggerating the doctrine of the Council of State to which it unfortunately lent its formula.

That if one understands it in this restricted sense, only in accordance with the jurisprudence of the Council of State, that it concerns only the actions brought against the State public authority, to the exclusion of those brought against the State person civil law, it is no longer necessary to refer to it the legislation on the liquidation of the public debt, because it is no more than the application to a certain category of actions of the first more general rule, of after which the judicial authority would be incompetent to hear all claims made against the State by individuals on the occasion of public services.

But is this rule really the direct and immediate consequence of the principle of the separation of administrative and judicial powers?

To fully understand the meaning and the scope of this principle in our modern law, it is important to become acquainted with the thought of the Constituent Assembly which established it there and for us, this thought is revealed, not only by the prohibition made to the judges to disturb in any way the operations of the administrative bodies, but also and especially by the creation within the administration of a jurisdiction to rule on all the disputes which could give rise to the administrative action in management of various public services.

This origin of administrative justice has often been contested, only to date it from the year VIII, when, in this great work of reorganizing the French administration due to the genius of the First Consul, it received, by the institution of the prefecture councils and the Council of State, the main bodies through which it operates today and which gave it its final form.

But we must not lose sight of the fact that in the field of administrative litigation, the prefecture councils did little more than inherit, by virtue of the law of 28 Pluviôse Year VIII, the powers which had successively belonged to, from first to district and departmental directories, and lastly to central departmental administrations; just as the Council of State, by virtue of the decree of November 5, Year VIII, only received the final jurisdiction which had first belonged to the meeting of ministers in the Council of State, under the presidency of the king, then, after the abolition of this council, to each of the ministers in his ministerial department to resolve all contentious matters.

These new institutions therefore only reorganized administrative justice, so as to give litigants guarantees similar to those they found before the civil courts, but they did not create administrative justice, because, this justice, it had emerged entirely from the very work of the Constituent Assembly.

Indeed, the law of September 7-11, 1790, detached from that of August 16-24, 1790 of which it forms an annex, by attributing to the district and department directories the judgment of litigation relating to matters of direct contributions and public works , already recognized the principle of administrative justice. In truth, it only contained special powers which did not cover the whole of administrative litigation, that is to say the generality of complaints to which administrative action in all its forms could give rise; but, for these disputes, there was no need for an express attribution of competence, because it was sufficient, on the one hand, to remove them from the judicial authority, of the prohibition which was placed on him to disturb, of some anyway, the operations of the administrative bodies, and, on the other hand, to give them judges, of the general rule of the administrative hierarchy, under which the citizens who claimed to be infringed in their rights by the acts of the administration could bring their complaints before the higher administrative authority. This last rule, for not having been formulated in the law of August 16-24, 1790, is nonetheless certain. We quickly find its legal consecration: it is first of all the decree of October 7-14, 1790, according to which complaints of incompetence with regard to administrative bodies are not, in any case, within the jurisdiction of the courts and must be brought to the king, head of the general administration; it is then the law of April 27, May 25, 1791, which,

Here, gentlemen, the true origins of administrative justice in our modern law, such as we find them, stripped of their primitive obscurity, in a famous report on the councils of prefecture, presented in 1850 to the Council of State by Mr. Boulatignier , this eminent master of administrative science, who left in the jurisprudence of the council, during a period of more than thirty years, the indelible traces of a cooperation as fruitful as it is active.

We are therefore justified in affirming that the administrative jurisdiction has emerged completely, at least in its essential lines, from the work of the Constituent Assembly; and that thus, in the organization of the public powers, it had, from the beginning, parallel to the judicial authority, its marked place and its own domain.

It is now that we can see in all its extent what was, in the thought of the Constituent, the scope of the prohibition made to the judicial authority to disturb, in any way whatsoever, the operations of the administrative bodies. This does not only mean that the judges will have to refrain from deciding, by way of general and regulatory provisions, to annul or correct the acts of the administrative authority, to criticize their legality. This also means that they are radically incompetent to deal with all the demands made against the administration on the grounds of public services, whatever their purpose, and even though they would tend, not to annul, reform or interpret. by the judicial authority the acts of the administration, but simply to have pecuniary sentences pronounced against it in compensation for the damage caused by its operations. And it was so, even though it was a matter of a stranglehold by the administration on private property, it is special laws which, since 1810, have attributed to the judicial authority the settlement of compensation. in the event of expropriation.

It was because the Assembly did not want it to be able to disturb its operations in any way. She wanted to keep the administrative authority its complete freedom of action vis-à-vis the judicial authority, so that its responsibility remained complete vis-à-vis the legislative body, which was to have exclusive control over its progress and of his actions.

This is why, for the judgment of complaints to which administrative action could give rise, a special jurisdiction was instituted within the administration, closely linked to its action, being inspired by its needs, and represented, to the highest degree. elevated in the hierarchy, by the ministers meeting in the Council of State, and acting, in this part of their mission, like all the other branches of the public service, under the control of the National Assembly.

It is in this order of ideas that Thouret, in his report on the law of 16-24 August 1790, delimited the judicial power in relation to the administrative power, in these terms: “The judicial power, distinct from the administrative power, is circumscribed within the limits of distributive justice for the judgment of private disputes between citizens and for the punishment of crimes. “And later, the learned Henrion de Pansey, as if he wanted to draw the logical consequence of this proposition, said:” If the ordinary or territorial judge does not have the right to hear administrative cases, it is not not, in this regard, that its competence is constrained, it is that it has never extended so far. ”

In the presence of these two quotations which most clearly determine the respective domain of judicial authority and administrative jurisdiction, we can now conclude that if the State as a civil person, considered either as owner or as contracting and because of the relationships that arise from these situations between him and individuals, is subject to ordinary courts, it is not as a public authority responsible for ensuring the functioning of the various administrative services, unless, however, that special laws for these services have not exceptionally submitted to the judicial authority, as happens, in matters of customs, indirect taxes, registration,expropriation for public utility and even simple temporary occupation for fortification work.

But these exceptions only confirm the rule of our public law, which places in the natural domain of administrative competence all claims made against the State for public services (see, in particular, the judgment of August 6, 1841, Dekeister case, reported in M. Boulatignier’s report, DP62.3.4.).

This rule being established, it seems to us that it includes, in the generality of these terms, claims of the nature of that which concerns us in the present case, that is to say the claims made against the State for good reason. faults committed by its agents in the performance of public services.

We have seen that the only reason given by the Court of Cassation for bringing these claims within the jurisdiction of the courts was based on the fact that article 1384 was applicable to the State.

But this is a simple affirmation which is based neither on the terms of article 1384, nor on the character of the code in which this article is placed, the object of which is to govern the relations between individuals and not the relations between them. administration with citizens.

In truth, we have recognized that the State, as owner, as a civil person capable of binding itself by contracts under the terms of common law, was, from this double point of view, in its relations with individuals, subject to the rules of civil law.

But it is not a question of the owner State or civil person; it is about the State public power, to which one comes to ask account of a damage caused by its employees in the accomplishment of their service. However, in general principle, the State as public power is not subject to the rules of civil law; neither is it to the judicial competence; it could only be otherwise if a law had formally declared it.
However, we do not find in our legislation any general law which has declared to the State this civil responsibility, this judicial competence.

We do have, it is true, some special laws which, for specific cases, have recognized the principle of the responsibility of the State for the faults of its agents, and the judicial competence to apply this responsibility. Such is, for example, the law of 6-22 August 1791 on customs (title 18, article 19), which declares the Régie responsible for the acts of its employees in the exercise and for the reason of their functions; such is again the law of July 15, 1845 on the railways (article 22) which subjects the State to a similar responsibility, when the railroad is operated at its expense and for its account.

But there would certainly have been no need for these special provisions if, as a general rule, Article 1384 and judicial jurisdiction had been applicable to the State.
We can draw only one more argument to prove that this general rule does not exist.

And now should we regret it? We cannot.

It seems to us impossible, for good reason and in good justice, to assimilate completely the State to a simple private individual for its relations with its agents and for the consequences which can derive from the point of view of its responsibility vis-à-vis some thirds.

And first of all, the role of the State in the performance of public services is not voluntary, but compulsory; it is imposed on him not in a private interest, but in the interest of all.

Second, we must consider the importance and scope of these services and (leaving aside the army and sea to speak only of administrative services) the enormous number of agents of all kinds, civil servants public, auxiliary agents, employees, service people they need; the conditions of their appointment and promotion which, often regulated by law or by general regulations, do not always leave the administration the freedom of its choice; the infinite variety of jobs, and consequently of the relations which are established between the State and its agents on their occasion.

There are as many reasons there which show that the responsibility of the State, for the faults of its agents can be neither general nor absolute; that it must be modified according to the laws and special regulations for each service, according to their needs, also according to the nature of the jobs. Well, all these considerations, by their nature, escape judicial authority; in many cases they would be for her, we are not afraid to say it, a real embarrassment; on the contrary, they naturally fall within the domain of administrative jurisdiction, better placed than the judicial authority to interpret the laws and regulations of the administration, to know the needs and necessities of each service,

Now while admitting that, in general thesis, article 1384 of the civil code and judicial jurisdiction, for the case it provides, do not concern the State as an administration, is it possible to reserve the cash to look for distinctions drawn, either from the nature of the service on the occasion of which the action for liability is brought against the State, or from the quality of the agent who will have committed the damage on which the action is based ? Thus, in the present case, it is about a tobacco factory which has a great resemblance to a private industry. These are acts of recklessness accused of simple workers who are outside the administrative hierarchy. We do not hide from ourselves all that these two circumstances may have favorable to admit the responsibility of the State, but we persist in thinking that, even in these circumstances, we must not weaken the rule of administrative competence for appreciate this responsibility. On the one hand, in fact, the tobacco service, whatever resemblance its operation may offer with private industry, is nonetheless a public service, like all the other services which together constitute our financial system. However, all these services are branches of the administration; the State, in their management, always acts as a public power, and, as such, it is only justiciable with regard to them by administrative jurisdiction,

In truth, the Council of State has sometimes distinguished, among the various public services or rather among the various acts of public power, those which were of an exclusively political character; but it was never to claim in their regard the competence of the administrative jurisdiction; it was, on the contrary, to decline this competence. As for the administrative services proper, the only ones we have to deal with, whatever their external aspect, whether they relate to the high administrative police, to the economic or financial management of the country, they all have the same character of administrative services, and, as such, they are subject only to administrative jurisdiction, with the exceptions determined by law.

There remains the circumstance that it was simple workers who caused the accident. But it is always a delicate matter and which involves an interference in the interior details of a service, to appreciate the exact relations which exist between the State and the various individuals it employs there, and the consequences which may derive from it. of these relationships vis-à-vis third parties. However, such interference, such an assessment, essentially administrative in its object, cannot belong to the courts. Moreover, whatever the character of the individuals who caused the accident, it is certain that the alleged facts relate directly to an administrative service, since it is precisely this circumstance which is the basis demand. Gold,

This principle, it is important to maintain it in all the energy which its founders intended to impart to it; this is what we ask you to do by confirming the conflict raised by the prefect of the Gironde, before the civil court of Bordeaux, in the proceedings initiated by Sieur Blanco against the State.

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