LexInter | October 3, 2015 | 0 Comments


May 5, 1944 – Widowed Lady Trompier-Gravier- Rec. Lebon p. 133
Council of State
on litigation
N ° 69751

Published in Recueil Lebon


M. Barjot, Rapporteur
M. Chenot, Government Commissioner
Reading of May 5, 1944

Having regard to the summary request and the amplifying memorandum presented for the widowed lady Trompier-Gravier, née Tichy [Marie-Gabrielle], residing in Paris [14th], tending that the Council should annul a decision, dated December 26 1939, by which the Prefect of the Seine withdrew from her the authorization to occupy a newspaper kiosk of which she was the holder; Having regard to the decrees of the Prefect of the Seine of March 13 and December 11, 1924 and January 22, 1934; Considering the law of December 18, 1940;
Whereas it is common ground that the contested decision, by which the Prefect of the Seine withdrew from the widowed lady Trompier-Gravier the authorization which had been granted to her to sell newspapers in a kiosk located on Boulevard Saint-Denis, in Paris , had for motive a fault of which the applicant was made guilty;
Considering that given the nature of the withdrawal of the authorization in the aforementioned circumstances and the seriousness of this sanction, such a measure could not legally take place without the widowed lady Trompier-Gravier having been enabled to discuss the complaints against her; that the applicant, not having been previously invited to present its means of defense, is justified in maintaining that the contested decision was taken in irregular conditions by the Prefect of the Seine and is therefore vitiated by excess of power ;
DECIDES: Article 1: The decision of the Prefect of the Seine dated December 26, 1939 is annulled. Article 2: Dispatch of this decision will be sent to the Minister of the Interior.

Analysis by the Council of State

By this judgment, the Council of State affirms the existence of a general principle of respect for the rights of the defense when an administrative decision takes on the character of a sanction against the person concerned.

Ms. Trompier-Gravier, who held an authorization to sell newspapers in a kiosk on Boulevard Saint-Denis in Paris, had this authorization withdrawn on the grounds that she wanted to extort funds from her manager. The Council of State, seized of an appeal from the person concerned against this decision to withdraw, ruled in favor of the applicant, ruling that “given the seriousness of this sanction, such a measure could not legally be taken without the lady widow Trompier-Gravier would have been in a position to discuss the complaints formulated against her “. The Council of State did not take part on the merits of the case in question,

The Dame Veuve Trompier-Gravier judgment enshrines a long-standing development in case law which had already had the opportunity to affirm the existence of a principle of respect for the rights of the defense in judicial proceedings (June 20, 1913, Téry, p. 736) or, based on article 65 of the law of April 22, 1905, with regard to measures relating to a civil servant taken into consideration of his person. The judgment of May 5, 1944 extends this procedural guarantee to all measures taken by the administration on condition that two conditions are met: the measure must take, for the person concerned, the character of a sanction; it must be serious enough for the person concerned. This is the case, for example, for an administrative decision hindering the exercise of a professional activity (Sect. 8 January 1960, Minister of the Interior v. Rohmer and Faist , p. 12), for the withdrawal of the ‘approval of an association (Ass. 31 October 1952,League for the Protection of Abandoned Mothers , p. 480), for the withdrawal of a fiscal license granted to a company (Sect. 25 October 1985, Société des Plastiques d’Alsace , p. 300), for the termination of a contract (Sect. 19 March 1976, Minister of economy and finance v. Bonnebaigt , p. 167), for the downgrading of a wine appellation (Sect. 9 May 1980, Société des establishments Cruse , p. 217), the rejection of a request for exercise of a regulated profession when this rejection is based on facts not mentioned in the applicant’s request (25 November 1994, Palem , p. 753).

The decree of November 28, 1983 extended the scope of the principle of respect for the rights of the defense in matters which were not initially concerned, in particular police measures, even if the measures taken under the empire of the United Kingdom remain out of scope. emergency, in case of exceptional circumstances or measures taken by virtue of a necessity of public order (June 13, 1990, SARL Pub 90 , p. 162). Thus, the following measures must be taken while respecting the rights of the defense: dissolution of an association (June 26, 1987, Federation of National and European Action , p. 235); prohibition of the sale to minors of a magazine (January 19, 1990,French Society of Reviews , p. 553). In addition, the Council of State has admitted that measures which do not have the character of sanction but which are taken into account of the person and are for him or her of sufficient gravity are subject to respect for the principle of the rights of the defense (e.g. ., for the decisions by which the social security funds decide on the repayment of sums by the doctors: April 30, 1997, National Association for the ethics of liberal medicine and others , p. 174).
Respect for the rights of the defense includes two essential requirements: the person concerned must be informed sufficiently early of what a measure will be taken against him and of the facts against him, so as to be able to prepare his defense ( January 20, 1956, Nègre , p. 24); when the texts provide for the communication of his file to the person concerned, it must be complete. In addition, in disciplinary matters, the person concerned may be assisted by a lawyer, unless the texts expressly provide otherwise.

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