State liability for legislative acts under french administrative law ; La responsabilité de l'Etat du fait de l'action normative en droit administratif français

Abstract

Every citizen living in society has to bear the consequences ensuing from applying regular domestic laws and regulations. This principle, however, only applies to the extent that the burdens imposed do not turn out to be excessive. In the opposite case, based on the liability without fault for violation of equal treatment with regard to public burdens, the author of the law or regulation needs to bear the exceptional burden caused by his intervention. Although appearing to contribute to a certain equilibrium between the State and the persons subject to its administration, this regime nevertheless seems to be implemented with some difficulty into domestic law. Indeed, confronted with the impossible task to permanently reconcile diverging interests, the judge rather tends to preserve the State's prerogatives. Such protection can be explained by financial considerations, but the true reason seems to be the will not to critisize the work of the legislator. This being given, such an interpretation of the regime of State liability for legislative acts encounters problems where damage is caused by an irregular law or regulation violating European Community law. Although an analysis of the case law shows that the courts have surmounted their scepsis with regard to holding the State liable for administrative acts violating European Community law, they preserve a very protective attitude towards the legislative activity. Today, the Conseil d'Etat still refuses to hold the State liable for laws in contradiction with European Community law and makes use of numerous juridical mecanisms to maintain this immunity. Such opinion of the French administrative judge appears to be very criticable, given that there seems to be no serious juridical argument preventing the recognition of such a liability without fault regime for legislative acts of the State. Furthermore, the approval of such regime could be possible notably by implementing existing rules into the State's domestic law. ; Tout citoyen vivant en société doit supporter ...