BLANCO STOP
LexInter | October 13, 2007 | 0 Comments

BLANCO STOP

Considering the exploit initiating the proceedings, of January 24, 1872, by which Jean Blanco had the State summoned before the civil court of Bordeaux, in the person of the prefect of Gironde, Adolphe Jean, Henri Bertrand, Pierre Monet and Jean Vignerie, employed in the tobacco factory in Bordeaux, for, whereas, on November 3, 1871, his daughter Agnès Blanco, aged five and a half, was passing on the public road in front of the tobacco warehouse, when ‘ a wagon pushed from the inside by the aforementioned employees overturned her and passed over her thigh, from which she had to undergo amputation; that this accident is attributable to the fault of the said employees, to hear jointly condemn the said employees as co-authors of the accident and the State as civilly liable for the acts of its employees, to pay him the sum of 40,000 francs to indemnity title;
Considering the declination proposed by the prefect of the Gironde, April 29, 1872; Considering the judgment rendered on July 17, 1872, by the civil court of Bordeaux, which rejects the objection and retains knowledge of the cause, both against the State and against the aforementioned employees; Having regard to the conflict decree issued by the prefect of Gironde, on the 22nd of the same month, claiming for the administrative authority knowledge of the liability action brought by Blanco against the State, and reasoned: 1 ° on the necessity to assess the part of the responsibility incumbent on the agents of the State according to the variable rules in each branch of public services; 2 ° on the prohibition for the ordinary courts to hear claims tending to constitute the debtor State, as it results from the laws of December 22, 1789, July 18, August 8, 1790, of the decree of September 26, 1793 and of the decree of the Directory of 2 Germinal year 5; Considering the judgment of the civil court of Bordeaux, dated July 24, 1872, which postpones ruling on the request; Considering the laws of August 16-24, 1790 and of Fructidor 16, year 3; Considering the ordinance of June 1, 1828 and the law of May 24, 1872; prohibition for the ordinary courts to hear requests tending to constitute the debtor State, as it results from the laws of December 22, 1789, July 18, August 8, 1790, the decree of September 26, 1793 and the decree of the Directory of 2 germinal year 5; Considering the judgment of the civil court of Bordeaux, dated July 24, 1872, which postpones ruling on the request; Considering the laws of August 16-24, 1790 and of Fructidor 16, year 3; Considering the ordinance of June 1, 1828 and the law of May 24, 1872; prohibition for the ordinary courts to hear requests tending to constitute the debtor State, as it results from the laws of December 22, 1789, July 18, August 8, 1790, the decree of September 26, 1793 and the decree of the Directory of 2 germinal year 5; Considering the judgment of the civil court of Bordeaux, dated July 24, 1872, which postpones ruling on the request; Considering the laws of August 16-24, 1790 and of Fructidor 16, year 3; Considering the ordinance of June 1, 1828 and the law of May 24, 1872; of the decree of September 26, 1793 and of the decree of the Directory of 2 Germinal year 5; Considering the judgment of the civil court of Bordeaux, dated July 24, 1872, which postpones ruling on the request; Considering the laws of August 16-24, 1790 and of Fructidor 16, year 3; Considering the ordinance of June 1, 1828 and the law of May 24, 1872; of the decree of September 26, 1793 and of the decree of the Directory of 2 Germinal year 5; Considering the judgment of the civil court of Bordeaux, dated July 24, 1872, which postpones ruling on the request; Considering the laws of August 16-24, 1790 and of Fructidor 16, year 3; Considering the ordinance of June 1, 1828 and the law of May 24, 1872;
Considering that the action brought by Sieur Blanco against the prefect of the department of Gironde, representing the State, aims to have the State declared civilly responsible, by application of articles 1382, 1383 and 1384 of the Civil Code, of damage resulting from the injury which his daughter is said to have suffered as a result of workers employed by the tobacco administration;
Considering that the responsibility, which may fall on the State, for damage caused to individuals by the fact of the persons it employs in the public service, cannot be governed by the principles which are established in the Civil Code, for person-to-person relationships;
That this responsibility is neither general nor absolute; that it has its special rules which vary according to the needs of the service and the need to reconcile the rights of the State with private rights;
That, therefore, under the terms of the aforementioned laws, the
DECIDES:
DECIDES: Article 1: The conflict decree dated July 22, 1872 is confirmed. Article 2: Are considered null and void, with regard to the State, the exploit initiating proceedings of January 24, 1872 and the judgment of the civil court of Bordeaux of July 17 of the same year. Article 3: Transmission of the decision to the Keeper of the Seals for execution.

 


 

Analysis by the Council of State

By the Blanco judgment , the Conflict Tribunal enshrines both the State’s liability for damage caused by public services and the competence of the administrative court to hear it.

A child was run over and injured by a wagon in a state-run tobacco factory. The father had taken legal action to have the State declared civilly responsible for the damage, on the basis of articles 1382 to 1384 of the civil code. The conflict was high and the Conflict Tribunal assigned jurisdiction to hear the dispute to the administrative jurisdiction.

The Blanco stopthus enshrines the responsibility of the State, putting an end to a long tradition of irresponsibility, which found exceptions only in the event of contractual liability or legislative intervention, such as the law of 28 pluviôse year VIII for damages of public works. However, it subjects this responsibility to a specific regime, considering that the responsibility that may fall on the State for public service cannot be governed by the principles established in the Civil Code for individual-to-individual relationships. The need to apply a special regime, justified by the needs of the public service, is thus affirmed. The corollary of the existence of special rules lies in the competence of the administrative jurisdiction to know of this responsibility, in application of the law of August 16 and 24, 1790, which prohibits the courts of justice to “disturb, in any way whatsoever , the operations of administrative bodies “. Even beyond liability, the judgment recognizes the public service as the criterion of the competence of the administrative jurisdiction, affirms the specificity of the rules applicable to public services and establishes a link between the substance of the applicable law and the competence of the administrative jurisdiction. which prohibits the courts from “disturbing, in any way whatsoever, the operations of administrative bodies”. Even beyond liability, the judgment recognizes the public service as the criterion for the competence of the administrative jurisdiction, affirms the specificity of the rules applicable to public services and establishes a link between the substance of the applicable law and the competence of the administrative jurisdiction. which prohibits the courts from “disturbing, in any way whatsoever, the operations of administrative bodies”. Even beyond liability, the judgment recognizes the public service as the criterion for the competence of the administrative jurisdiction, affirms the specificity of the rules applicable to public services and establishes a link between the substance of the applicable law and the competence of the administrative jurisdiction.

If the Blanco judgment is in many respects the founder of administrative law, the subsequent development of case law must lead to qualifying the rules it sets out in terms of the distribution of powers. The public service is no longer an absolute criterion for the jurisdiction of the administrative judge: in particular, disputes relating to industrial and commercial public services are in principle subject to judicial jurisdiction (see TC January 22, 1921, Société commerciale de l’Ouest African, p. 91). However, the transformation of the tobacco and matches service into a public enterprise has made it a public service of an industrial and commercial nature, so that a different solution would be applied today to the case. As regards public services managed by private persons, it is necessary that the damage results both from the performance of a public service and from the exercise of a prerogative of public power (e.g .: 23 March 1983,SA Bureau Véritas and others, p. 133). Finally, the law sometimes modifies in certain areas the distribution of powers between the two orders of jurisdiction, such as the law of December 31, 1957 transferring to the courts the litigation of damages of any kind caused by vehicles, among which should be counted the Blanco case wagon .

The law of administrative liability, since the Blanco judgment, was built on an essentially jurisprudential basis, independently of civil law. It does not follow, however, that the solutions identified by the administrative judge are radically different from those identified by the judicial judge, nor that the civil code or the principles on which it is based never apply to administrative liability, such as The ten-year responsibility of the constructors shows it. And if the main specificity of administrative law initially resided in the absence of a general and absolute character of the State’s responsibility, it was recognized more and more widely, including in the absence of fault, whether in the area of ​​risk or that of the breach of equality before public charges. This results in a regime in some cases more favorable to victims than civil law, for example in matters of medical liability (Ass. April 9, 1993 , Bianchi , p. 127).

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