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This chapter examines the French Conseil d'Etat and French administrative law, arguing that whilst the Conseil d'Etat is in some ways a quintessentially French institution, there are some ways in which it shares the features of the common law and its institution, the importance of the case law, the authority of its judgments, the position of its members, and it's place within the Constitutional arrangements.

Contradictory institutional demands for both judicial independence and expertise in administrative disputes are related to theoretical and everyday requirements of objectivity and subjectivity. This chapter describes the development of the radical French separation of powers — in reaction to the roles of the pre-Revolutionary Parlements and in response to the theories of Montesquieu and Rousseau — and the consequent assumption of judicial functions by the Consei d'Etat within the French administration. It shows how the judicialization of their exercise enabled the Conseil d'Etat broadly to satisfy those demands, and thus help entrench the French distinction between public- and private-law courts. The chapter contrasts the English emphasis on judicial independence, identified with the abolition of prerogative courts and the revolutionary settlement, and confirmed by Blackstone amongst others. The 20th-century Hewart—Robson debate on administrative tribunals, their subordination to the supervisory jurisdiction of the ordinary courts after the Donoughmore Inquiry, and the relatively limited administrative expertise of judges on the Crown Office List, it explains as indicative of an enduring problem — securing both judicial independence and adequate judicial expertise — for an institutional English distinction between public- and private-law courts.

A distinction between public and private in substantive law is presented as similar to the institutional distinction between private- and public-law courts in its dependence on a satisfactory separation of powers. This chapter describes the contribution of the Conseil d'Etat's dynamic extension of its judicial role (in determining, inter alia, state liability and proportionality) to the entrenchment of the French institutional and substantive distinctions. It shows, in contrast, that the English separation of powers has not facilitated the entrenchment of an English substantive distinction, which is thus not in convergence with the French. Rather, it shows how it has contributed to continuing administrative immunities, judicial restraint in English public law, and general uncertainty about the judicial role in administrative disputes, evident in the doctrine of ultra vires, unease about justiciability, and related debate about distinguishing public and privatelaw.

This chapter examines ‘how’ and ‘why’ comparative law developed at the Conseil d’Etat. It shows that the growing use of comparative law does not depend solely on subjective factors such as the willingness of judges to use it; rather, it relies on a method, which, although still in development, may already be giving rise to a new form of judicial creative process.

This chapter presents the first country case. The French example is illuminating because the EU procedural mandates were transposed into a policymaking environment traditionally described as “statist” and suspicious toward interest groups. This pattern has its origins in the French Revolution and the “republican” perception of the state which would squarely oppose the deliberative-participatory model of chapter 1. Chapter 3 examines how the EU push for new mechanisms of public accountability has translated into institutional practice in the electronic communications sector. It situates these developments in the historical context of the evolution of the French administrative model and state-society relations. It also discusses whether these new processes may gradually give rise to a different perception of the administrative state, one that will be more open to participatory influences in all sectors of administrative policymaking.

This chapter deals with how the Council acts as both legal advisor of the government and highest administrative judge. It identifies the key issues and changes that lie before the French administrative justice system in the years ahead. It deals with problems such as how to address the massive increase in the number of claims; how to reconcile determining an ever increasing number of claims and retaining high quality standards; how to make the Council of State and administrative courts more effective; and what approach they should follow in order to fulfill adequately their mission in the framework of European law.

Assessing French theory and practice of the use of comparative arguments by courts, in particular by the three French highest courts, the Conseil constitutionnel, the Cour de cassation, and the Conseil d´Etat, the chapter suggests that in spite of not being visible on the surface, there is comparative exchange going on. For reasons peculiar to the legal and judicial tradition, such an exchange does, however, take on particular form. First, it is not openly displayed. Comparative reasoning in courts is primarily used as a tool of internal debates, not as an instrument for external justification. Secondly, because of the historical constitutional balance within the legal system, comparative law has traditionally been seen as a matter for the legislator and legal scholarship, not for the courts.