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COHN BENDIT STOP
LexInter | October 13, 2007 | 0 Comments

COHN BENDIT STOP

that the Court of Justice of the European Communities has ruled on two preliminary questions referred to the said Court by the said tribunal, together to reject this request by Sieur Cohn-Bendit. Having regard to the Treaty establishing the European Economic Community; Directive of the Council of the European Communities n. 221 of February 25, 1964; Considering the decree n. 70-29 of January 5, 1970; Considering the ordinance of November 2, 1945; Considering the ordinance of July 31, 1945 and the decree of September 30, 1953; Considering the law of December 30, 1977;
Considering that the decree of December 20, 1978, repealing the expulsion measure of which Sieur Cohn-Bendit had been the subject since May 24, 1968, did not have the effect of revoking the decision, dated February 2, 1976 , by which the Minister of the Interior had refused to put an end to this measure and that Sieur Cohn-Bendit referred to the Administrative Tribunal of Paris; that thus, neither the request presented by Sieur Cohn-Bendit before the administrative tribunal, nor, consequently, the appeal lodged by the Minister of the Interior from the judgment rendered on this request on December 21, 1977, became without object; that it is necessary,
that it is clear from Article 189 of the Treaty of 25 March 1957 that if these directives bind the Member States “as to the result to be achieved” and if, in order to achieve the result which they define, the national authorities are required to adapt the laws and regulations of the member states to the directives intended for them, these authorities alone remain competent to decide on the form to be given to the execution of the directives and to determine themselves, under the control of the national courts, the means suitable to make them produce effect in domestic law. That so, whatever Moreover, the details they contain for the benefit of the Member States, the directives cannot be invoked by the nationals of these States in support of an appeal against an individual administrative act. That it follows from there that Sieur Cohn-Bendit could not usefully support, to ask the Administrative Tribunal of Paris to annul the decision of the Minister of the Interior dated February 2, 1976, that this decision violated the provisions of the directive adopted on February 25, 1964 by the Council of the European Communities in order to coordinate, under the conditions provided for by the Article 56 of the Treaty of Rome, special measures for foreigners in matters of movement and residence justified on grounds of public order, public security and public health; that, therefore, in the absence of any dispute as to the legality of the regulatory measures taken by the French government to comply with the directives adopted by the Council of the European Communities, the solution which the request of Sieur Cohn-Bendit must receive cannot in any way case be subject to the interpretation of the directive of February 25, 1964. That, consequently, without there being any need to examine the means of appeal, the Minister of
Considering that, in the circumstances of the case, it is necessary to refer the matter back to the Administrative Tribunal of Paris to be ruled as it will belong on the request of Sieur Cohn-Bendit;

DECIDES:
DECIDES: Article 1 – The judgment of the Administrative Tribunal of Paris dated December 21, 1977 is quashed.
Article 2 – The case is referred to the Administrative Tribunal of Paris to be ruled as it will be at the request of Sieur Cohn-Bendit.

 


Case law precedents: 1. COMP. Community Court of Justice, SACE Company, 1970-12-17, Collection p. 1213; Van Duynh, 1974-12-04, Reports p. 1337; Rutili, 1975-10-28, Reports p. 1219

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).

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