Since the landmark Blanco case ruling passed by the French Tribunal des conflits (Conflicts Court) on 8 February 1873, administrative judges have been responsible for resolving disputes in administrative law.

Administrative law is governed by specific rules which differ from those set out in the French Civil Code. In principle, the Civil Code applies solely to private law matters, which typically involve relations between individuals.

The independence of administrative law from the Civil Code is rooted in the requirements of public service or public interest. Public service and public interest not only define the jurisdiction of administrative courts, but also form the foundation of administrative law.

However, administrative law does not have complete autonomy from civil law. Administrative judges occasionally apply provisions of the Civil Code or its underlying principles, and they may also be required to enforce aspects of criminal law, competition law and consumer protection law.

The French judicial system is composed of two court systems, judicial and administrative.

Except in cases where jurisdiction between these two court systems is explicitly determined by law, jurisdiction is allocated based on the following criteria:

• the applicable legal regime (administrative law or private law);
• the nature of the party involved (administrative authority, private law legal entity or natural person); and
• the concepts of public interest, public service and prerogative of public power, which help to define other concepts, such as administrative agreements, public works and public domain.

As a result, in the absence of specific legislative provisions, jurisdiction between the two court systems must be determined on a case-by-case basis.

However, case law provides a framework for defining the areas of jurisdiction of each court system. For example, disputes arising from administrative acts generally fall under the jurisdiction of the administrative judge (Conflicts Court16 June 1923, Septfonds, Lebon p. 498).

Legal action brought by claimants before administrative courts can be divided into two categories:

• recours pour excès de pouvoir,or ultra vires action, aims to ensure compliance with the law, and is where a claimant seeks to have an administrative act annulled. In this case, the administrative nature of the act determines the jurisdiction of the administrative judge.
• recours de plein contentieux,or comprehensive litigation, primarily seeks to establish the liability of the administrative authority involved. In this case, the jurisdiction of the administrative judge is determined by the nature of the administrative authority and the applicable legal regime governing the disputed situation.

International law aside, primary legislation is composed of the Constitution and laws. In this regard:

• the Constitution cannot be challenged either before an administrative judge or before any other judge; and
• laws can be challenged before the administrative judge, although the latter does not have the authority to annul them (only the Constitutional Council has this authority).

Challenges to the validity of a law may take two forms, as follows:

• Priority question of constitutionality (question prioritaire de constitutionnalité) – in the context of a litigation before the administrative judge, the claimant may raise a priority question of constitutionality based on the grounds that a law is unconstitutional. This procedure aims to ensure that a legislative provision does not infringe on rights and freedoms guaranteed by the Constitution. For a priority question of constitutionality to be referred by the administrative judge to the Constitutional Council (Conseil constitutionnel), the claimant must demonstrate that:
1. the challenged law is relevant to the dispute or proceedings, or forms the basis of the case;
2. the challenged law has not already been declared constitutional in a previous ruling of the Constitutional Council, unless there have been changes in circumstances; and
3. the question is serious.

Should the question be referred to the Constitutional Council and the latter consider that the law infringes rights and freedoms guaranteed by the Constitution, the Constitutional Council will annul the law.

• Control of the conventionality of the law.

The administrative judge may review the compatibility of French laws with international treaties, even if these laws were enacted after the treaty (Council of State, 20 October 1989, Nicolo, case No 108243). In such cases, if a law is found to be incompatible with a treaty, the judge sets it aside and proceeds to rule on the dispute.

Administrative acts may be challenged through an ultra vires action before the administrative judge, seeking their annulment or modification (Conflicts Court, 16 June 1923, Septfonds, Lebon p. 498).

This challenge is typically based on the administrative act’s non-compliance with superior legal standards, such as, where applicable, general principles of law, regulatory provisions, legislative provisions, the Constitution or international treaties.

An administrative act that affects only one natural person or legal entity is referred to as an individual administrative act.

The legality of individual administrative acts can be challenged before the administrative judge through an ultra vires action, without any specific conditions.

However, it should be noted that, while the addressee of an individual administrative act always has standing to challenge it, it is not certain that other categories of claimants will be entitled to do so. Exceptions may include trade unions, associations or members of a deliberative assembly, where applicable.

Agreements entered into by public bodies and private entities are either:

• administrative agreements, which are governed by a legal framework distinct from private law; or
• private law agreements.

In principle, agreements entered into between public bodies and private entities are subject to private law (and are qualified as private law agreements), unless they are qualified, by law or case law, as administrative agreements.

In this regard, third parties:

• are entitled to challenge the validity of administrative agreements before administrative courts by virtue of 2014 Council of State case law (Council of State, 4 April 2014, Département de Tarn-et-Garonne, case No 358994);
• are not entitled to challenge the validity of private law agreements before the courts, as there is no challenge before the judicial judge analogous to that created by the Council of State case law.

Initially, only administrative acts having legal effect could be challenged before administrative courts.

However, since the 2016 Fairvesta and Numéricable case rulings, the Council of State accepts the ultra vires action brought against what is known as “soft law”, provided that challenging the “soft law”, while not having direct legal effect, is likely to have significant consequences, particularly of an economic nature, or is intended to substantially influence the behaviour of those to whom such law is addressed (Council of State, 21 March 2016, Société Fairvesta, case No 368082; Council of State, 21 March 2016, Société Numéricable, case No 390023).

Additionally, since the 2020 Gisti case ruling by the Council of State, claimants may challenge general documents issued by public authorities, regardless of whether they are formalised in documents such as circulars, instructions, recommendations, notes, presentations or interpretations of positive law, when they are likely to have significant effects on the rights or situations of individuals other than those responsible for implementing them (Council of State, 12 June 2020, Gisti, case No 418142).

Public entities may carry out an economic activity subject to specific conditions (Council of State, 31 May 2006, Ordre des avocats au Barreau de Paris, case No 275531):

• public entities may only carry out an economic activity within the limits of their powers;
• such economic activity must be justified by public interest, which could be the result of, among other things, the lack or inadequacy of private sector initiatives; and
• public entities must comply with competition law.

In this regard, any interested party may challenge the assumption of an economic activity by a public entity, based on a failure to meet these conditions.

The jurisdiction of the administrative judge can be altered by legislation under specific conditions defined by the Constitutional Council.

In principle, the legislator cannot overstep the constitutionally reserved jurisdiction of administrative courts, which concerns disputes relating to the annulment or revocation of acts issued by administrative authorities in the exercise of prerogatives of public power.

However, in the interests of “the proper administration of justice”, the legislator may assign overall jurisdiction to one of the two court systems. This exception allows the judicial judge to hear cases that would typically fall under the jurisdiction of the administrative judge. Such a derogation must be justified by the genuine need to unify the litigation (Constitutional Council, 23 January 1987, No 86-224 DC).

The jurisdiction of the administrative judge cannot generally be overridden by an agreement. Since the jurisdiction of the administrative judge is a public policy rule, the parties to an agreement cannot bypass it by including a provision in their agreement that assigns disputes, which should ordinarily be heard by the administrative judge, to the judicial judge (Conflicts Court, 10 December 2018, Syndicat mixte pour l’aménagement et l’exploitation de la station d’Isola 2000, No C4143).

However, in certain circumstances, the legislator may permit the parties to an administrative agreement to include an arbitration provision, which would prevent a dispute from being brought before the administrative court.

In such cases, a dispute that would typically be heard before the administrative court may instead be referred to an arbitrator. In particular, this option is available to parties involved in public partnership agreements.

Claimants may lodge an appeal against an administrative act before the administrative judge only if they have a legitimate interest in pursuing an action. This is a fundamental requirement for the admissibility of an appeal.

The justification for bringing proceedings is assessed in different ways, as follows.

• Ultra vires action – claimants are deemed to be justified in bringing proceedings when they can demonstrate a sufficiently direct and certain justification in obtaining the annulment of the challenged administrative act; this is typically the case when the challenged administrative act adversely affects the claimant’s legal position.

• Comprehensive litigation – claimants are deemed to be justified in bringing proceedings when they can demonstrate the existence on a genuinely injured right; it should nevertheless be noted that the assessment of the justification in bringing proceedings is not always clear in comprehensive litigation and sometimes refers to sufficiently direct and certain justification in obtaining the requested annulment or measure.

Associations have the right to challenge administrative acts even if they are not directly affected by them.

Their right to challenge is assessed based on the following factors:

• the scope of the administrative act in relation to the association’s territorial area of operation – eg, except in matters relating to public freedoms, an association of national scope is not entitled to challenge a decision that has a limited territorial application; and
• the association’s corporate purpose; this purpose must be sufficiently precise in relation to the administrative act for the association to justify its right to act.

For example, an association whose corporate purpose includes defending consumer interests is not entitled to challenge a ministerial decree approving the execution of a public partnership agreement for the design, construction, maintenance and financing of a transport infrastructure project (Council of State, 23 December 2016, Assoc. Études et consommation CFDT du Languedoc Roussillon, case No 392815).

The purpose of voluntary intervention in administrative litigation is to allow a third party to become involved in proceedings between original parties. Intervention is admissible before all administrative courts if the following conditions are met:

• the party must be a third party to the dispute, meaning they have not been summoned, impleaded, or represented in the proceedings, either before the court where the intervention takes place or before subordinate courts in the same case;
• the intervention must be presented in a separate submission and should not delay the judgment of the main case;
• the party must have standing to intervene, meaning they must have legal personality and, if acting on behalf of another, be authorised to do so; and
• the party must have an interest in intervening, meaning they must demonstrate a sufficient interest in the case, considering the nature and subject matter of the dispute.

In voluntary intervention, the third party intervener merely supports the arguments of one of the original parties, without introducing any new legal argument to the original claim or defence.

Therefore, the third-party intervener must limit themselves to aligning with the submissions already presented by the original parties to the administrative court.

Despite its limited scope, voluntary intervention has undeniable practical value:

• there are instances where the intervener may present the party’s claim more convincingly than the party itself;
• an intervention can strengthen the credibility of the appeal; and
• it may be significant for the claimant, for various reasons, not to face their adversary alone, particularly when the latter is an administrative authority or, for example, a major public works company.

There is no disclosure or discovery procedure in France.

Before the administrative judge, the procedure is inquisitorial (Council of State, 30 October 2009, Perreux, case No 298348).

The judge alone directs the instruction of the case and, as such, requests the parties to provide all the evidence necessary to reach a ruling. The judge is therefore the person who orders the communication of the documents deemed necessary. The judge may also order the consultation of an expert, decide on a site visit, order an investigation, etc.

In this regard, the parties may request measures of inquiry which the judge may or may not agree to implement.

The judge’s investigative powers are intended to remedy the inequality that may exist between the public entity and the other party in an administrative dispute.

Under French law, anyone has the right to access administrative documents held by public or private persons entrusted with a public service mission.

Administrative documents include files, reports, studies, accounts, minutes, statistics, instructions, circulars, ministerial notes and responses, correspondence, opinions, forecasts, source codes and decisions produced or received, as part of their public service mission, by the State, local authorities and other public or private bodies entrusted with such a mission.

This right of access to administrative documents is one of the “fundamental guarantees granted to citizens for the exercise of public freedoms” within the meaning of Article 34 of the Constitution (Council of State, 29 April 2002, Ullmann, case No 228830).

In case the relevant administration refuses to give access to the administrative document requested, the claimant may lodge a request to the Commission for Access to Administrative Documents (hereinafter “the Commission”). The Commission will issue an opinion on the refusal.

If the administration continues to refuse to issue the administrative document, despite having been provided with a favourable opinion from the Commission, the claimant may lodge an appeal before the administrative court.

Live evidence refers to the testimony or statements given by witnesses in person during a trial or hearing. Cross-examination is the process where one lawyer questions the other side’s witness to challenge their credibility.

The French administrative litigation system does not include procedures such as “live evidence” and “cross-examination”, as found in common law systems (such as in English or American law). French administrative litigation operates differently, with its own procedural rules that are based on an inquisitorial rather than adversarial model (see 8.1 Disclosure/Discovery).

The procedure before the administrative judge is mainly written. In other words, the parties submit to the judge in writing the details of their claims, as well as the documents, exhibits or elements they deem necessary for the resolution of the dispute. In this context, discussion of any new argument, document or information within the framework of the written procedure must be possible.

However, the written nature of the procedure does not rule out the possibility for claimants and defendants to present oral observations during the hearing which, with a few exceptions, can only expand upon the arguments presented in the written briefs. The administrative judge may also hear witnesses in person and question both the claimants and defendants.

By way of exception, the interim proceedings (procédures de référé), as emergency proceedings, may be oral, thus allowing for the investigation to be conducted during the hearing.

In principle, claimants can always file an administrative appeal before taking legal action, but this is never mandatory.

Natural person and legal entities are entitled to first appeal to the administrative authority through an appeal for leniency or a hierarchical appeal, with the possibility of an amicable settlement. During this process, they can raise considerations of opportunity and fairness. Furthermore, an administrative appeal can help avoid unnecessary legal proceedings.

However, in certain cases, individuals are required to exhaust a prior administrative appeal before they can bring their case before the administrative court. If this mandatory step is not followed, the judicial appeal will be inadmissible.

This obligation may be established by legislative or regulatory provisions, or by a provision in an agreement. For instance, the general administrative provisions of public works agreements (which are given contractual value by the agreements referring to them) require that the administrative authority co-contractors may only bring a claim before the competent administrative court after submitting a memorandum to the contracting authority outlining the grounds and subject of their claim.

In principle, claimants do not have to exhaust all specific administrative remedies before lodging an appeal before administrative courts. As a consequence, claimants can challenge administrative acts directly beforehand to the administrative judge.

Only in exceptional cases is there an obligation to exhaust all legal remedies (see 9.1 Preliminary Requirements above).

In addition to the previously mentioned instances of compulsory prior administrative appeals, there is the rule of prior administrative decision, as outlined in Article R. 421-1 of the Code of Administrative Justice.

This rule requires the claimant to direct their claim, otherwise it will be inadmissible, against an explicit or implied decision issued by the administrative authority. Consequently, the claimant must obtain such a decision before bringing the matter before the administrative court.

This provision allows the administrative authority the opportunity to grant the requested relief.

Additionally, the preliminary decision initiates the time limit for appealing to the administrative judge.

In principle, the time limit for lodging a claim is two months from the notification or publication of the challenged administrative act.

In order for the time limit for appeal to be enforceable against the claimant, the administrative authority must mention this time limit in the administrative act. If this information is not provided, the person to whom the decision is addressed may challenge it, except in special circumstances, within one year. This period begins either from the date the express administrative act was notified to the individual or from the date it is established that they became aware of it (Council of State, 13 July 2016, Czabaj, case No 387763).

To initiate a claim before the administrative court, the claimant only needs to provide, in support of the claim, the administrative act being challenged.

Should the claimant intend to challenge an implied refusal resulting from the administrative authority’s silence for more than two months on a request the claimant’s made, the claimant shall provide, in support of the claim, the proof of the date on which the request was submitted to the administrative authority.

The claimant shall provide the administrative act or, alternatively, the proof of the date on which the request was submitted; otherwise the claim is inadmissible.

In addition to this mandatory evidence, the claimant is free to provide any other evidence that may help demonstrate the merits of the claim.

Initiation of the Claim

Claimants must present the facts, their legal arguments and their request in support of their initial claim.

In practice, claimants sometimes submit at first a summary claim (requête sommaire) briefly outlining the facts, their legal arguments and their request, so that the time limit for appeal is met. In a second stage, claimants submit a further pleading (mémoire complémentaire) to the administrative court in which they can strengthen their initial legal arguments and, if relevant, present new arguments.

Investigation

Given the adversarial nature of the proceedings, once the claim is registered with the administrative court, the latter invite the defendant(s) to submit their defence within a specific time limit.

In most cases, claimants are then allowed to respond to the defendant(s)’ defence by submitting a reply (mémoire en réplique), and the defendant(s) can respond to this by submitting a new defence. These exchanges can be extended.

The administrative court always informs the parties of the time limits within which they must submit their various statements.

Hearing and Judgment

Once the administrative court considers that the case is ready for trial, it closes the investigation and sets a hearing date. Following deliberation, the administrative court issues its judgment, generally a few days (or weeks) after the hearing date.

There is no initial sifting process at first instance and on appeal, claims are directly investigated by administrative courts and lead to a ruling on the case.

However, there is an initial sifting process on appeal in cassation (pourvoi en cassation). In order to prevent an excessive volume of actions against administrative court of appeal’s decisions, appeals in cassation before the Council of State are subject to a prior admission procedure.

The Council of State may refuse to admit appeals in cassation that are inadmissible, or that are not based on any serious grounds. In such a case, the appeal in cassation is rejected by a Council of State’s decision without having been the subject of any adversarial investigation. In practice, the Council of State refuses to admit more than two-thirds of appeals in cassation, but this rate can vary from year to year.

Should the Council of State allow the appeal in cassation, the appeal is subject to an ordinary investigation procedure and to the procedural stages described in 9.5 Procedural Stages.

The Administrative Justice Code sets out a range of procedures for a claim to be expedited in urgent situations. The three main interim procedures are presented below.

Interim Suspension Procedure

The interim suspension procedure (référé suspension)allows the claimant to obtain the suspension of an administrative act.

Two specific admissibility conditions and two substantive conditions must be met for the administrative court to order the suspension of the challenged administrative act.

• Admissibility conditions:
1. the claimant must lodge an appeal on the merits requesting the annulment of the administrative act; and
2. the appeal on the merits must itself be admissible.
• Substantive conditions:

1. there must be an emergency to suspend the challenged administrative act, which is the case when the administrative act jeopardises in a sufficiently serious and immediate way public interests, or the situation of the claimant or the interests the claimant intends to defend; and
2. the claimant must provide grounds that can raise serious doubt as to the legality of the challenged administrative act.

When an interim suspension procedure is initiated, the administrative court must render a decision without undue delay.

Interim Fundamental Freedoms Procedure

The interim fundamental freedoms procedure (référé liberté) allows the claimant to obtain all measures required to protect a fundamental freedom that has been violated by a public entity or by any other entity entrusted with a public service mission.

Three substantive conditions must be met for the administrative court to order all measures required to protect the fundamental freedom in question:

• the claimant must prove that the urgent situation requires that a measure to protect the fundamental freedom be taken within 48 hours;
• the claimant must rely on “fundamental freedom” within the meaning of Article L. 521-2 of the Administrative Justice Code; and
• the claimant must demonstrate that the violation of the fundamental freedom is serious and clearly unlawful.

When an interim fundamental freedom procedure is initiated, the administrative court must render a decision within 48 hours.

Interim Useful Measures Procedure

The interim useful measures procedure (référé mesures utiles) allows the claimant to obtain any useful measure (eg, communication of administrative documents) before the administration has made a decision.

Five substantive conditions must be met for the administrative court to order any useful measures:

• there must be an emergency to take the useful measures;
• the requested measures must necessarily be useful;
• the requested measures must not prevent the execution of an administrative act;
• the requested measures must not give rise to any serious objection; and
• the requested measures cannot be obtained on the basis of an interim suspension procedure or interim fundamental freedoms procedure.

When an interim useful measures procedure is initiated, the administrative court shall render a decision without undue delay.

Additionally, the interim provisional measures procedure (référé provision) needs to be mentioned.

The interim provisional measures procedure allows a claim for an advance payment on a sum owed by an administrative authority. Only one condition is required for the administrative judge to grant the request: the existence of the obligation on which the creditor relies must not be seriously disputable. In other words, there must be no serious doubt about the existence of the alleged debt.

The interim provisional measures procedure is not subject to the condition of urgency, nor to the demonstration that it is necessary for the claimant to obtain the requested provision.

Although this procedure is not conditioned by urgency, it is worth mentioning here because the administrative court shall render a decision without undue delay.

When an appeal against an administrative act is lodged by a claimant, the administrative judge reviews both the merits of the administrative act and the manner in which it was made.

The judge’s review focuses solely on the legality of the administrative act (and not on its appropriateness).

In this context, it is customary to distinguish between two legal grounds for illegality:

• internal legality (merits) – the judge reviews the merits of the administrative act, which allows for the sanctioning of any direct violation of the law. This includes reviewing the legal and factual grounds for the act as well as its objectives, which may lead to a finding of misuse of power; and

• external legality – the judge assesses whether the administrative act complies with the applicable rules regarding jurisdiction, form, and procedure.

France has a written Constitution dating from 4 October 1958.

Pursuant to the hierarchy of norms, administrative acts must comply with the Constitution and are therefore subject to constitutional control by a judge who is, in principle, an administrative judge. If it appears that an administrative act does not comply with the Constitution, the judge will annul the challenged administrative act.

Moreover, as part of a litigation before the administrative judge, claimants can also invoke the non-compliance of a law with the Constitution through the question of constitutionality, which can be submitted to the Constitutional Council upon a referral decision by the Council of State (see 3.1 Challenging Primary Legislation above).

Additionally, the Constitutional Council has recognised its jurisdiction to assess the constitutionality of administrative acts, particularly in the context of electoral disputes.

Claimants may challenge an administrative act on the grounds that the procedure for its adoption was not properly followed.

In such cases, claimants must lodge an ultra vires action before the administrative judge, arguing that a procedural error exists on the grounds of external legality (see 10.1 Scope of Judicial Review: Merits v Process).

For this argument to succeed, however, the procedural error must be sufficiently serious to have influenced the administrative act or to have deprived the affected parties of a legal guarantee (Council of State, 23 December 2011, Danthony, case No 335033).

Claimants may lodge an ultra vires action before the administrative judge when the administrative authority has made a factual error in justifying its decision.

This factual error encompasses two distinct scenarios.

• Material inaccuracy of facts – the material inaccuracy of facts occurs when the administrative act is based on a fact that is materially inaccurate, meaning the fact either does not exist, has disappeared, or has not yet occurred (Council of State, 14 January 1916, Camino, case No 59619).
• Error in the legal qualification of facts – the error in the legal qualification of facts occurs when the facts at hand do not properly justify the administrative act issued by the administrative authority (Council of State, 4 April 1914, Gomel, case No 55125). In this case, the judge reviewed whether the administrative authority has correctly applied a specifically defined rule of law to given facts.

Under French public law, administrative authorities shall themselves exercise the powers granted to them by law or regulations. Such a rule is referred to as the principal of non-delegation of powers (principe d'indisponibilité des compétences).

In accordance with this principle, administrative authorities may not:

• refuse to issue a decision that falls within its powers;
• abandon its powers to another administrative authority or to any natural person or legal entity;
• issue a decision on the basis of the opinion given by another administrative authority or another natural person or legal entity, when such an opinion is not required by law or regulations.

In all these situations, any interested person may bring a challenge on the basis that the administrative authority abdicated or fettered their competence.

The principle of impartiality is a general principle of law that applies to all French administrative authorities. It guarantees to natural persons and legal entities that all French administrative authorities examine their requests or claims without bias. Natural persons and legal entities may challenge the legality of an administrative act on the basis that the decisions-maker was biased.

When imposing an administrative sanction on a natural person or a legal entity, the administrative authority will comply not only with the principle of impartiality as general principle of law but also as laid down in Article 6-1 of the European Convention for the Protection of Human Rights and Fundamental and to avoid Freedoms (hereinafter the European Convention on Human Rights).

The principle of impartiality has thus both a subjective and an objective dimension (which may correspond, respectively, to the concepts of “actual bias” and “apparent bias” in the UK. 

On its subjective dimension, impartiality depends on the decision-maker’s personal beliefs and behaviour. On its objective dimension, impartiality consists of determining whether, regardless of the decision-maker’s personal beliefs, there are ascertainable facts which may raise doubts as to his impartiality.

Natural persons and legal entities may challenge the legality of an administrative sanction on the basis of a lack of subjective or objective impartiality of the decision-maker.

The principle of equality is a general principle of law that applies to all administrative authorities (Council of State, 9 March 1951, Société des concerts du Conservatoire, case No 92004).

The principle of equality requires that, unless justified by considerations of public interest, natural persons or legal entities in similar situations should be treated the same, and any differences in treatment must be proportionate to the differences in their situations.

However, the principle of equality does not prevent identical treatment for natural persons or legal entities in de jure or de facto different situations, nor does it preclude discrimination that is proportionate to objective differences, such as domicile or residence.

Claimants may challenge an administrative act that does not comply with the principle of equality as defined above. Should the administrative judge find that the challenged administrative act does not comply with such a principle, the judge will annul the administrative act.

On 3 May 1974 France ratified the European Convention on Human Rights. As a member of the European Union, France is also subject to the Charter of Fundamental Rights of the European Union solemnly proclaimed on 7 December 2000.

Natural persons and legal entities may challenge the legality of any administrative act before administrative courts on the grounds that it is non-compliant – or that the law on which it is based is non-compliant – with one or more of the rights guaranteed by the European Convention on Human Rights or by the Charter of Fundamental Rights of the European Union (provided that, in the latter case, the purpose of the challenged administrative act is to implement European Union Law).

Should such an appeal be lodged, the administrative court will annul the administrative act that is non-compliant with the European Convention on Human Rights or with the Charter of Fundamental Rights of the European Union and disregard any legislative provision that is not compliant with this text.

Claimants may bring an ultra vires action before the administrative judge against an administrative act that violates the principle of proportionality.

In this context, claimants must invoke an error in the legal classification of the facts, which forms part of the internal legality of the administrative act (see 10.1 Scope of Judicial Review: Merits v Process).

The administrative judge’s review of the legal classification of facts can occur in various fields, but with different levels of intensity. In some areas, the review is limited, focusing only on manifest errors of assessment.

It is only in certain areas that a full review of the proportionality of an administrative act is conducted. For example, in matters of administrative police, administrative acts must fully comply with the principle of proportionality (Council of State, 19 May 1933, Benjamin, Lebon p. 541). Administrative police acts must therefore be appropriate, necessary, and proportionate. As a result of this proportionality test, acts that excessively infringe upon protected rights and freedoms are annulled.

In addition to the previously mentioned defects of illegality, three other grounds of illegality may lead to the annulment of administrative acts.

• Misuse of powers – this occurs when an administrative authority exercises its powers for a purpose other than the one for which they were granted. This typically happens when a decision is made solely in the interest of the authority itself.
• Incompetence of the author of the act – an administrative act adopted by an authority lacking the necessary competence is considered illegal. This incompetence may be material, territorial, or temporal. It is a matter of public policy and the judge may raise it ex officio.
• Formal defects – formal defects relate to the proper presentation and drafting of administrative acts. Failure to adhere to these formal requirements may result in the annulment of the act.

Claimants may only lodge appeal before administrative courts against administrative acts.

However, some administrative acts, by their very nature, cannot be challenged. These include the following.

• Acts of government – this category encompasses acts of the executive branch that pertain to relations between constitutional administrative authorities or the conduct of international relations. For example, a decree by the French President of the Republic dissolving the National Assembly falls under this category and therefore cannot be challenged.
• Decisions that do not give rise to grievances – this category includes internal measures – ie, decisions made by the administrative authority that, due to their minor nature, are considered to have no legal consequences for those affected. For instance, a decision to reassign a civil servant to a different post, which does not result in any significant change to their situation, falls within this category and therefore cannot be challenged.

When a legal action is initiated, the administrative judge notifies the defendant of the claimant’s petition initiating proceedings (requête).

The judge sets a time limit for the defendant to respond to the claimant’s briefs. The defendant may file observations until the administrative court declares the investigation closed.

In practice, and by way of illustration, the following grounds for defence may be raised:

• the court’s lack of jurisdiction (subject matter and territorial jurisdiction);
• the inadmissibility of the claim (nature of the act, status of the party, forms and time limits for appeal);
• the ineffectiveness of the arguments invoked (some arguments cannot be raised, notably in appeals challenging the validity of an administrative agreement (see the “Tarn-et-Garonne” ruling (Council of State, 4 April 2014, Département de Tarn-et-Garonne, case No 358994)), where only arguments related to the damaged interest of the petitioner could be invoked); or
• the lack of merit of the arguments invoked.

As indicated above (see 9.7 Expedited Proceedings), there are several emergency procedures allowing the claimant to obtain provisional measures:

• the interim suspension procedure (référé suspension), which allows the claimant to obtain the suspension of an administrative act;
• the interim fundamental freedoms procedure (référé liberté), which allows the claimant to implement all measures necessary to protect a fundamental freedom that has been violated by a public entity or by any other entity entrusted with a public service mission (eg, suspension of a refusal of authorisation to enter French territory, injunction issued to the authorities to re-examine the request, prescription of measures to ensure that the interested party may remain on French territory until a decision has been issued on their application for admission, etc); and
• the interim useful measures procedure (référé mesures utiles) allowing the claimant to implement any useful measures (eg, request the issue of administrative documents useful for lodging an appeal, injunction on a mayor to issue an infringement notice (procès-verbal d’infraction) and a works suspension order (arrêté interruptif de travaux), etc) before the authorities have made a decision.

Claimants are entitled to lodge a claim before the administrative judge to seek damages.

The claimant’s legal action takes the form of a claim for compensation and its success depends on the fulfilment of three general conditions:

• the harmful event must be attributable to the administrative authority;
• the claimant must have suffered damage; and
• there must be a causal link between the harmful event and the damage.

First, as a general rule, the harmful event can result from a fault committed by the administrative authority. In this regard, any illegality of an administrative act constitutes a fault that can lead to the liability of the administrative authority, provided that direct and certain damage has occurred.

Second, in certain cases, the harmful event may arise from an act or behaviour of the administrative authority that is not attributable to fault. This is known as “no-fault” liability. It allows for compensation of the victim’s loss without requiring proof of fault.

Liability for fait du prince, or act of state, is an example of no-fault liability. It enables a contracting party to claim full compensation for their losses – both actual damages and lost profits – when their situation is aggravated by a lawful measure taken by the administrative contracting authority acting in a capacity other than that of a party to the agreement.

In principle, the administrative judge has the authority to annul an administrative act that he deems illegal when a contentious appeal has been filed against it.

However, as an exception and in certain circumstances, the administrative judge may not annul an administrative act or a law that he has found to be in violation of a higher legal text.

First, claimants may challenge an administrative act on the grounds that it originates from a higher administrative act that is itself illegal (this is the argument of exception of illegality). Should the judge find that the higher administrative act is illegal, the judge will annul the lower administrative act due to its lack of valid legal basis. However, the higher administrative act will only be declared illegal, not annulled.

Second, claimants may challenge an administrative act on the grounds that it originates from a law that is itself illegal because it violates international treaties. Should the judge find that the law is contrary to the international treaties, the judge will annul the challenged administrative act due to its lack of a valid legal basis. However, the law will remain formally in effect but will no longer be applied in practice by the administrative courts.

In principle, the administrative judge does not have the authority to issue injunctions against the administrative authorities. This self-restraint is grounded in the principle of the separation of administrative courts and administrative authorities.

As a result, claimants are generally prohibited from seeking injunctive relief, except for in any issues related to the enforcement of the judicial decision.

However, in exceptional circumstances, the administrative judge may have the authority to issue injunctions against administrative authorities.

In such cases, the judge can complement annulments and rulings with injunctive measures aimed at clarifying and specifying the required conduct of the party to whom the injunction is directed, ensuring compliance with the obligations imposed by the judicial decision.

For example, based on this reasoning, the Council of State ordered the French government to take all necessary measures to reduce greenhouse gas emissions on national territory in order to meet the targets for emissions reductions (Council of State, 1 July 2021, Commune de Grande-Synthe, case No 427301).

The consequences of the illegality of an administrative act depend on the context in which the administrative judge is seized.

In the context of an ultra vires action, the illegality of an administrative act can have various outcomes. First, the act’s illegality may lead to its annulment by the administrative judge, in which case the annulment will result in the retroactive invalidation of the administrative act. Second, the illegal nature of the act may lead to its repeal, meaning the act will be invalidated, but only for future effects. Third, if an administrative act is challenged by legality exception, it may be declared illegal but not annulled, allowing it to remain in force, albeit with its illegality acknowledged.

The administrative judge has broad powers in the context of comprehensive litigation. Depending on the case, the administrative judge can annul or terminate an agreement, order the payment of a sum of money, set the amount of damages, or amend an administrative act.

In any case, the rulings of the administrative judge are binding on the administrative authority and require its active cooperation. If the administrative authority refuses to comply with the court’s ruling, the administrative judge may be called upon to ensure compliance by issuing injunctions and potentially imposing fines.

Administrative litigation does not have a direct mechanism for protecting claimants from excessive costs. However, there are similar mechanisms in place aimed at reducing legal expenses.

First, both defendants and claimants may be eligible for legal aid if their financial resources fall below certain thresholds, and, in the case of claimants, if their appeal is not manifestly inadmissible or unfounded. The primary benefit of legal aid is to alleviate the burden of legal costs and attorney’s fees for litigants. This aid is generally intended for individuals, but, in exceptional cases, non-profit legal entities may also be eligible.

Second, fee agreements between lawyers and their clients may include a fee ceiling. In such cases, the total fees payable by the client cannot exceed the specified limit.

Third, in most litigation procedures, the losing party is typically ordered to pay all or part of the legal costs of the winning party. These costs include both procedural costs, such as those related to investigative measures, and non-recoverable costs, such as attorney’s fees.

The “public interest costs” mechanism helps limit the financial burden of legal action for parties involved in cases of public interest, such as those related to environmental protection or human rights.

In administrative litigation, France does not have a mechanism identical to the “public interest costs” system found in some foreign legal systems (notably the UK and the US).

However, similar mechanisms do exist.

Since the law of 18 November 2016 on modernising justice for the 21st century, France has introduced provisions for collective actions, particularly in areas such as consumer rights, discrimination and environmental matters. This mechanism allows for the sharing of legal costs among the parties involved, reducing the individual financial burden.

Moreover, in certain cases, courts may decide, in the interest of fairness, to exempt parties from specific legal costs (including procedural costs and non-recoverable costs), especially in cases involving causes of public interest (such as human rights, environmental protection or transparency). However, this is not an automatic process, and largely depends on the specific circumstances of each case.

The “provisions for wasted costs” mechanism is primarily used in common law systems, such as in the UK. It serves to penalise parties or lawyers who cause unnecessary or excessive costs during legal proceedings.

While there is no direct equivalent in French administrative litigation, similar mechanisms do exist.

First, in cases of abusive litigation, such as manifestly unfounded or dilatory claims, the judge may order the claimant to pay a fine for improper recourse or compensation for the excessive costs incurred by the other party due to the abuse.

Second, if the lawyer’s fees are deemed excessive, the judge has the authority to reduce the amount. When reviewing a request for fee adjustment, the judge will take into account factors such as the client’s financial situation, the complexity of the case, the costs incurred by the lawyer, the lawyer’s reputation and the level of diligence demonstrated in handling the case.

There is no automatic right to a second hearing based on constitutional, international treaties, or legislative guarantees, nor is there any general principle of law that provides for it. The right to appeal exists solely within the limits and under the conditions established by the relevant legal provisions (Council of State, 17 December 2003, Meyet, case No 258253).

In this context, Article R. 811-1 of the Administrative Justice Code establishes the principle that any party involved in proceedings before the administrative court has the right to appeal any judicial decision made during those proceedings.

However, in certain cases, the right to appeal is restricted. For instance, summary judgement issued in pre-contractual summary proceedings (référé précontractuel) can only be subject to an appeal in cassation before the Council of State.

Where an appeal is allowed, claimants must lodge their appeal before the court that has both material and territorial jurisdiction to hear the case.

As a general rule, administrative courts of appeal have jurisdiction to hear appeals against rulings made by administrative tribunals at first instance. In such cases, the appeal must be lodged with the administrative court of appeal corresponding to the jurisdiction where the court that issued the contested decision is located.

However, in certain exceptional cases, the Council of State serves directly as the appellate court. This is notably the case for the appeal lodged against the summary judgment issued in interim fundamental freedoms procedure (référé liberté).

In France, under general principles, any party to a first instance procedure is entitled to appeal against judgments handed down in that procedure. It is therefore not necessary to obtain the approval of the lower or higher court to lodge an appeal.

However, should a court of first instance rule “at first and last instance” (en premier et dernier ressort), its decision may only be appealed in cassation (pourvoi en cassation). This is the case, for example, in matters of consultation and communication of administrative documents or of refusal of law enforcement assistance for the performance of an administrative decision.

In the event of an appeal against an administrative court decision, the appellate judge has a dual mission.

• Verification of the regularity of the challenged court decision – first, the appellate judge must verify the regularity of the challenged court decision. This means that the appellate judge ensures that the trial judge complied with all applicable procedural requirements (eg, jurisdiction, adversarial procedure, reasons for the court decision). Should the appellate judge identify an irregularity in the challenged court decision, the judge will overturn it. In such a case, the appellate judge can decide either: (i) to hear the case; or (ii) to refer it back to the trial judge.
• Rehearing of the case – if the challenged court decision is confirmed to be regular, the appellate judge rehears the case. In such a case, the appellate judge can either: (i) confirm the grounds and the terms of the challenged court decision; (ii) confirm only the terms of the challenged court decision; or (iii) overturn the grounds and the terms of the challenged court decision.