INTRODUCTION

 

With each decision of the Council of State on the office of the judge of excess of power, it is common to return to the prediction of Maurice Hauriou in his note under the Boussuge ruling of 1912. Let us not deviate from the ruler :

 

THEappeal for excess of power, wrote the Toulouse dean, is “ like this temporary star of Gemini, which we see in the sky, and whose luminous exaltation has perhaps already disappeared for hundreds of years, it is so far from us. We still admire it, and it is already no more, or, at least, it is nothing more than a museum piece, a delicate art object, a marvel of legal archeology ". It must be said that at the beginning of the 20th century, the admission of third party opposition in the annulment dispute was surprising: it seemed to mean that the appeal for excess of power was no longer a “ trial made to an act » whose nobility was exhausted in strict objectivity.

 

More than a century later, the appeal for excess of power is still there. But it has changed a lot: systematization of the power of injunction, substitution of legal basis or reasons, modulation over time of its effects... No doubt he learned the harsh lessons of the Huron of Rivero. One fortress, among others, nevertheless seemed to resist this profound movement which takes shape around the idea according to which behind the act attacked, there are those administered:The judge of excess of power always placed his office at the time of the enactment of the contested act, without any consideration for subsequent circumstances. So,changes in factual or legal circumstances potentially affecting the act did not concern the judge and any means to this effect was ineffective.In such a case, it was up to the citizen to ask the administration to repeal the act which had become illegal following such circumstances: this is the meaning of the case law.Despujol of 1930 concerning regulatory acts.

 

But in thedecision commented here, which concerned the contestation by the ELENA association and others of the list of safe countries drawn up by the OFPRA, the Litigation Section of the Council of State largely cracked the surrounding wall of this fortress by judging, in accordance with the conclusions of public rapporteur Sophie Roussel, that:

 

 

 

“When presented with conclusions tending to the annulment of a regulatory act, the judge of the excess of power assesses the legality of this act on the date of its enactment. If he judges it illegal, he declares its annulment.

Thus seized of admissible conclusions for annulment,the judge may also, in the alternative, make conclusions requiring him to pronounce the repeal of the same act on the grounds of illegality resulting from a change in circumstances of law or fact subsequent to its enactment, so that illegal attacks that a regulatory act is likely to have on the legal order can always be sanctioned. It then decides as a priority on the conclusions for the purpose of annulment..

In the event that the request for annulment is not granted and the act has not been repealed by the competent authority since the application was filed,it is up to the judge, since the act continues to produce effects, to rule on the subsidiary conclusions. The judge then rules in light of the applicable rules and the circumstances prevailing on the date of his decision.».

 

Such a development, although it may seem major, was nonetheless expected (I). However, it will be noted for the moment incomplete, because it excludes individual acts and specific decisions, before seeing the practical consequences (II).

 

I – AN EXPECTED DEVELOPMENT

 

It has been a long time since the judge of excess power has been deaf to the sirens of passing time:case lawAC Association! is here to remind him.

 

But, if we consider more particularly the question of the moment at which the judge decides, the metamorphosis is more recent. This is how in a notable decisionAssociation of Accidental Americans of July 19, 2019, the Council of State estimatedthat it was up to the judge to abuse his powers – in the name of the “useful effect” of his decisions – when seized of an action for annulment against a decision refusing to repeal an act which had become illegal following circumstances of fact or law subsequent to its enactment, to place itself on the date on which it ruled to resolve the dispute. Such a posture has flourished in the litigation of refusal decisions: we will remember, for example, the resounding case lawMunicipality of Grande-Synthe. Such a development was precisely justified by the fact that the legality debated in such litigation is, precisely, “legality for the future”, as Sophie Roussel clearly underlines in her conclusions.

 

With regard to the dispute over positive acts, the movement has until now been confined to the dispute over suspension measures pronounced by the French Anti-Doping Agency. In a decisionStassen of February 28, 2020, the 7th and 2nd chambers together had in fact ruled, at the invitation of the public rapporteur Guillaume Odinet that

 

“ when faced with an appeal seeking the annulment of a provisional suspension measure, taken as a precautionary measure on the basis of Article L. 232-23-4 of the Sports Code, the judge of the excess of power assesses the legality of this decision on the date of its issuance and, if it judges it to be illegal, declares its annulment. Having regard to the useful effect of such an appeal, it is also up to the abuse of power judge, seized of conclusions to this effect, to assess the legality of the decision on the date on which he rules and, he judges that it has become illegal, to pronounce its repeal ". If the reasons for the Stassen judgment were not written in these general terms which make up the great principled judgments, the fact remains that they gave a glimpse of ELENA.

 

A remark before considering the practical consequences: the attentive reader will have noted that the reasons for the decision commented here only deal with regulatory acts, therefore excluding all other unilateral acts.Of course, the Council of State was only seized of a regulatory act here, but one could have imagined that it would opt for a more general formulation, including non-regulatory acts.. The hypothesis is also considered by Sophie Roussel in her conclusions. The public rapporteur considers that such a solution could be transposed to non-regulatory acts, but invites the Section to proceed “by successive keys » and to keep for subsequent litigation the question of the applicability of ELENA to appeals against individual or specific decisions.

 

II – PRACTICAL CONSEQUENCES

 

Several contentious consequences of this decision, not necessarily dealt with clearly in the reasons for the decision, but which emerge more clearly from the conclusions of Sophie Roussel:

 

Admissibility. It must be emphasized, as the consequences are important, that the ELENA case law does not open up new means in excess of power, based on changes in factual or legal circumstances. She allows toformulate conclusions for repeal subsidiary to main conclusions for annulment. From then on, theThe admissibility of such conclusions is subject to the admissibility of the main conclusions. They cannot, moreover, be formulated as the main. In short, all the rules for the admissibility of subsidiary conclusions apply.

 

Invocable means. A fundamental question must be resolved here. We know that in excess of power, the means are crystallized once the litigation deadline has expired, in accordance with Intercopie case law. However, such a rule would be strictly unsuitable for conclusions for repeal due to new factual or legal circumstances, precisely because of the possibility that such circumstances may arise after the expiry of the appeal period. Since then,the means in support of these conclusions – which will necessarily boil down to the presentation of the new circumstances and a comparison of these with the contested act – may be invoked until the conclusion of the investigation and even for the first times on call.

 

Consequences. Such conclusions cannot succeed, for lack of purpose, if the act is annulled or if, before the judge makes a ruling, the administration has itself repealed the act.But if this is not the case and the conclusions are founded, the judge may repeal the act. It should be noted, however, that the Litigation Section took care to specify that it was open to the administrative judge, “having regard to the object of the act and its scope, the conditions of its preparation as well as the interests present », to decide thatthe repeal will only be effective at a later date, which it sets. We will have recognized the transposition of Association AC case law!

 

 

Finally, where one might think that this is yet another swipe at the recourse for excess of power, it seems rather, as evidenced by the conclusions of Sophie Roussel, that this monument of administrative litigationis reinforced by the acceptance that the rules which govern it are not immutable, but entirely focused on the purpose of the REP as expressed by the judgmentLady Lamotte: “ensure, in accordance with general principles of law, respect for legality ”, which can take many paths.