LUGAN STOP
LexInter | October 13, 2007 | 0 Comments

LUGAN STOP

Considering the request, registered on June 20, 1995 at the Litigation Secretariat of the Council of State, presented for Mr. Bernard LUGAN, residing rue de l’Horloge in Charroux (03140) Allier; M. LUGAN asks the Council of State:

1 °) to condemn the State (Minister of National Education) to a fine of one thousand francs per day in order to ensure the execution 1 °) of the decision of June 22, 1994 (requests n ° 127 330 and n ° 133 014) by which the Council of State annulled the deliberation of June 27, 1990 of jury 109 of the 3rd subsection of the 21st section of the National Council of Universities designating Ms. Lamarre for the post of history professor open to Lyon-III University, together with the implicit decision of the Minister of National Education rejecting the administrative appeal by Mr. LUGAN against this deliberation; 2 °) of the decision of June 22, 1994 (request n ° 131 232) by which the Council of State, on the one hand, annulled the deliberation of April 24, 1991 by which the committee of specialists of the University of Lyon-III rejected the candidacy presented by M. LUGAN for the post of professor of contemporary history put up for competition in this university for the year 1992 , together the implicit decision of the Minister of National Education rejecting the administrative appeal of Mr. LUGAN against this deliberation; on the other hand, ordered the State to pay a sum of 10,000 F to Mr LUGAN under article 75-I of the law of July 10, 1991; together the implicit decision of the Minister of National Education rejecting the administrative appeal of Mr. LUGAN against this deliberation; on the other hand, ordered the State to pay a sum of 10,000 F to Mr LUGAN under article 75-I of the law of July 10, 1991; together the implicit decision of the Minister of National Education rejecting the administrative appeal of Mr. LUGAN against this deliberation; on the other hand, ordered the State to pay a sum of 10,000 F to Mr LUGAN under article 75-I of the law of July 10, 1991;

2 °) to order the organization of a new competition for professor of African history in modern and contemporary times, as well as a new meeting of the committee of specialists to allow him to present his candidacy in sufficient conditions of impartiality;

3) to grant him compensation of 10,000 F under article 75-I of the law of July 10, 1991;

Having regard to the other documents in the file;

Considering law n ° 80-539 of July 16, 1980 amended by laws n ° 87-588 of July 30, 1987 and 95-125 of February 8, 1995;

Considering the law n ° 91-647 of July 10, 1991;

Considering decree n ° 63-766 of July 30, 1963, modified in particular by decrees n ° 81-501 of May 12, 1981 and 90-400 of May 15, 1990;

Considering, ordinance n ° 45-1708 of July 31, 1945, decree n ° 53-934 of September 30, 1953 and law n ° 87-1127 of December 31, 1987;

After hearing in open court:

– the report by Mr. Philippe Boucher, State Councilor,

– the observations of SCP Richard, Mandelkern, lawyer of Mr. Bernard LUGAN,

– the conclusions of Mrs. Pécresse, Government Commissioner;

Considering that under the terms of the provisions of article 2 of the aforementioned law of July 16, 1980 as amended, applicable in the present case,: “In the event of non-execution of a decision rendered by an administrative court, the Council of State may, even ex officio, impose a fine against legal persons governed by public law to ensure the execution of this decision “;

Considering, on the one hand, that, by decisions n ° 127330 and 133014, dated June 22, 1994, the Council of State ruling on the litigation annulled the deliberation of June 27, 1990 of jury 109 of the 3rd subsection of the 21st section of the National Council of Universities designating Ms. Lamarre for the post of history professor open at the University of Lyon-III, together with the implicit decision of the Minister of National Education rejecting the administrative appeal of Mr. Bernard LUGAN against this deliberation; that, on the other hand, by a decision n ° 131232 of the same day, it also annulled the deliberation of the committee of specialists of the University Lyon-III dated April 24, 1991 on the basis of which Mr. Morsel a been appointed professor of

On the conclusions tending that in execution of res judicata, the Minister of National Education declares vacant the posts occupied by Mrs. Lamarre and Mr. Morsel and organizes a new recruitment competition:

Considering, in the first place, that in its decisions n ° 127330 and 133014 mentioned above of June 22, 1994, the Council of State rejected as late the conclusions directed against the decree published in the Official Journal of the French Republic of December 21, 1990 appointing Mrs. Lamarre as professor of modern history at the University of Lyon-III and that it emerges from the documents in the file that the appointment of Mr. Morsel as professor of contemporary history at the same university published in the Official Journal of the French Republic of December 21, 1991, has not been the subject of any legal appeal; that the final nature of these appointments, which created rights for their beneficiaries, prevents the Minister of national education can legally report them or declare them obsolete; that, consequently, Mr. LUGAN is not justified in requesting that the Minister be condemned under penalty of 1000 F per day to execute the decisions of the Council of State ruling on the Litigation by declaring vacant the posts occupied respectively by Mrs. Lamarre and M. Morsel;

Considering, secondly, that the Minister of National Education was not either required, in execution of res judicata, to open a new competition intended to allow the recruitment into the body of university professors at the University of Lyon-III of a professor of African history in modern and contemporary times;

Considering, however, that it is for Mr. LUGAN, if he believes it to be justified, to request, in execution of res judicata, compensation for the damage resulting for him from the faults constituted by the illegalities with which the annulled decisions were tainted by the Council of State in its decisions of June 22, 1994;

On the conclusions relating to the lack of execution of the State’s sentence to pay Mr LUGAN the sum of 10,000 F under article 75-I of the law of July 10, 1991:

Considering that in execution of the aforementioned decision of the Council of State n ° 131232, it was up to the Minister of National Education to take the necessary measures for the payment of the sum of 10,000 F that the State had been ordered to pay to M. LUGAN; that at the date of this decision, this sum has not been paid; that it is necessary, in these circumstances, to pronounce against the State (Minister of National Education), failing for him to justify this execution within two months from the notification of this decision, a fine of 1,000 F per day until the date on which the aforementioned decision has been executed;

On the application of article 75-I of the law of July 10, 1991:

Considering that it is necessary, in the circumstances of the case, to apply the provisions of article 75-I of the law of July 10, 1991 and to order the State to pay Mr. LUGAN the sum of 10,000 F he claims for the sums incurred by him and not included in the costs;

 

DECIDES:
Article 1: A penalty is imposed on the State (Minister of National Education) if it does not justify having, within two months of notification of this decision, paid Mr. LUGAN the sum of 10 000 F that he was ordered to pay in application of the decision n ° 131232 dated June 22, 1994 of the Council of State ruling on the Litigation and until the date of this execution. The rate of this penalty is fixed at 1000 F per day, from the expiration of the two-month period following the notification of this decision.
Article 2: The State (Minister of National Education, Research and Technology) will communicate to the Litigation Secretariat of the Council of State a copy of the acts justifying the measures taken to implement the aforementioned decision of the Council of State.
Article 3: The surplus of the conclusions of the request of Mr. LUGAN is rejected.
Article 4: The State will pay Mr. LUGAN the sum of 10,000 F under article 75-I of the law of July 10, 1991.
Article 5: This decision will be notified to Mr. Bernard LUGAN and to the minister national education, research and technology.

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