COHN BENDIT STOP
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Analysis by the Council of State
By this decision, the Council of State established its case law relating to the applicability of Community directives: if they do not have direct effect and cannot therefore be invoked directly in support of an appeal for excess of power directed against an individual decision, even after the time limit left to the Member States to ensure their transposition, it is possible to argue that the national law which served as the basis for the contested decision is incompatible with the objectives set by the directive .
Daniel Cohn-Bendit, who had been the subject of an expulsion order by the Minister of the Interior on May 25, 1968 because of his active participation in the events of May 1968, asked, in 1975, the Minister of interior, to repeal this decree. He deferred to the administrative judge the refusal which was opposed to him. Seized by the Minister of the Interior of an appeal against the judgment of the Administrative Court of Paris, which had stayed proceedings pending a ruling by the Court of Justice of the European Communities on the preliminary question he had put to him, the Council of State annulled the judgment of the administrative tribunal and rejected Daniel Cohn-Bendit’s request, the case no longer having, moreover, when the Council of State ruled, only a legal interest, since the Minister of the Interior had finally decided to grant the request of the person concerned. The applicant argued in particular that the refusal to revoke the expulsion order against him was contrary to the directive adopted on 25 February 1964 by the Council of the European Communities. The Council of State dismissed the plea by considering that “whatever … the details contained [the directives] intended for the Member States, [they] cannot be invoked by the nationals of these States in support of an appeal against an individual administrative act “. The applicant argued in particular that the refusal to revoke the expulsion order against him was contrary to the directive adopted on 25 February 1964 by the Council of the European Communities. The Council of State dismissed the plea by considering that “whatever … the details contained [the directives] intended for the Member States, [they] cannot be invoked by the nationals of these States in support of an appeal against an individual administrative act “. The applicant argued in particular that the refusal to revoke the expulsion order against him was contrary to the directive adopted on 25 February 1964 by the Council of the European Communities. The Council of State dismissed the plea by considering that “whatever … the details contained [the directives] intended for the Member States, [they] cannot be invoked by the nationals of these States in support of an appeal against an individual administrative act “.
By this decision, the Council of State therefore defines a two-step position on the applicability of directives in national law: they cannot be invoked directly in support of an appeal against an individual administrative decision, even after time allowed to the Member States to ensure its transposition and even though this transposition has not been ensured; on the other hand, in the same hypothesis of failure to transpose within the time limit set, the applicant may plead incompatibility with the objectives set by directive of national law on the basis of which the decision he is challenging was taken. This position is based on a strict interpretation of Article 189 of the Treaty of Rome which stipulates that the directives bind the Member States “as to the result to be achieved”, which they define, leaving them the choice of the form to be given. to reach them. By adopting this position, the Council of State has separated itself from the Court of Justice of the European Communities, which judges that directives that have not been transposed can be directly invoked by litigants in support of ” an appeal against an individual decision (CJEC, 4 December 1974,Van Duyn , p. 1337).
If, initially, the divergence of case-law between the Court of Justice of the European Communities and the Council of State was underlined, the subsequent developments led to a rapprochement of the positions of the two jurisdictions in practice, without however putting an end to the theoretical difference. On the one hand, the CJEC clarified its case-law by ruling that the directive could only be invoked directly by individuals, in the event of failure of the state concerned in its transposition obligations (CJCE, April 5, 1979, Ratti , p. . 1629), by deducing in particular that a directive could not be invoked against an individual (CJEC, February 26, 1986, Marshall, p. 723). On the other hand, the Council of State has, in practice, given full effect to the directives. First of all, he admitted that they could be invoked directly in support of an action for abuse of power against a regulatory act, whether taken to ensure its transposition (September 28, 1984, Confédération nationale des Sociétés protection of animals in France , p. 512) or not (December 7, 1984, French Federation of Societies for the Protection of Nature, p. 410). Then, it logically extended to them the benefit of article 55 of the Constitution which grants to treaties and agreements regularly ratified and approved the superiority over the laws (Ass. 28 February 1992, SA Rothmans International France and SA Philip Morris France , p. . 81). Finally, it very liberally admitted the admissibility of the pleas based on the conflict with national law against a directive. In particular, he ruled that national law could be incompatible with the objectives of a directive insofar as it did not include a tax exemption that it provided for (Ass. 30 October 1996, SA Cabinet Revers et Badelon, p. 397). Finally, he admitted that the absence of any positive norm, logically interpreted by the case-law as giving the public persons concerned complete freedom of action in the field in question, could be regarded as incompatible with the objectives of a directive which provided for procedural rules in the area in question (Ass. 6 February 1998, Tête et Association de safeguard de l’Ouest lyonnais , p.30).