Thursday, October 05, 2023

Chevron viewed from France

Guest Blogger

For the Balkinization Symposium on The Chevron Doctrine through the Lens of Comparative Law

Duncan Fairgrieve & François Lichère 

In France, the issue of interpretive deference to executive agencies is captured in slightly different legal terms than in US, but there are nonetheless some points of similarity in the French doctrinal analysis and case law.

In general terms, the review of administrative decisions in France is, in institutional terms, undertaken by the French administrative courts, whose Conseil d’Etat (CE) has developed a large and sophisticated body of case law. As in the US, the legal acts of agencies, departments, and authorities are subject to judicial review as are the actions of French Independent Administrative Authorities (Autorités Administratives Indépendentes, or AAI), the functional equivalents of US independent regulatory agencies, outside of the core executive.

Even though the same principles of review apply across the public sector and judicial no-go areas of non-justiciability are very limited under French law, one can detect elements of deference in the relevant case law. This can be seen in the courts’ varying degrees of scrutiny. The ‘intensity of scrutiny depends on the nature of the discretion given and the subject-matter about which decisions are taken’ (John Bell & François Lichère, Contemporary French administrative law, Cambridge University Press, 2022, available online) chapter 7).

If a topic is very technical, as is often the case for decisions undertaken by an AAI, the French courts will vary the intensity of control so as to undertake only light-touch review, a fortiori where the agency exercises a degree of discretion and/or where it has a high degree of expertise concerning the subject matter under review. However, this does not imply a lack of judicial review. There are many cases where the decisions of French AAIs have been reviewed by the courts, such as in the sphere of competition law or energy regulation.

On the other hand, the administrative courts will undertake hard-look review where the agency’s decision involves fundamental rights or civil liberties, such as, for instance, a classic case involving pluralism in the media (CE 17 janvier 1990, Union nationale des associations des professions libérales, Recueil, p. 958). The influence of the European Courts of Human Rights of Strasbourg is also marked in this respect—leading to a more robust judicial approach to administrative action touching upon matters of individual rights.

Another element to consider is that many US cases, including the Loper case coming before the Supreme Court this term, involve the extent of judicial deference to statutory interpretation undertaken by an agency. This would relate stricto sensu in French administrative law to judicial review based upon a misinterpretation of the law (erreur de droit) where it is alleged that the agency erred in its legal interpretation of a statutory provision. The first point to make here is that in European legal systems, it is the responsibility of the courts to give a definitive interpretation of the law, not the executive, and as a result any such interpretation by the administration (including administrative agencies) is subject to review by courts. Nevertheless, under French law, there may be an understandable tendency, particularly in technical areas, for the Courts to give some weight to the initial decision-makers’ interpretation of legislation (at the EU level – see M. Bernatt, Transatlantic Perspective on Judicial Deference in Administrative Law, 22 Colum. J. Eur. L. 275 (2016), page 312), but this is not the same as deference as understood in the U.S. and it is clear that the judge will have the final word on this issue, even if the court takes the expertise of the public agency into account.

It should also be noted that the French courts have shown that they are willing to intervene in case of silence on the part of the legislator. In the Abgrall case, the Court examined an administrative  decision authorizing the organization of an automobile race circuit, and decided that the authorities had to take into account potential noise pollution, despite the lack of reference to such consideration in the enabling statute (CE, Section, 1 July 2005, Abgrall, N° 256998). 

In more specific terms, it is difficult to assess what would be the approach of the French administrative courts in the exact circumstances of a case like Loper or Chevron, itself. The issue in Loper involves the regulation of ocean fishing, an industry whose regulations are mainly set at European Union law level nowadays. However, EU member states do have some discretion to establish detailed protocols, thereby leading to judicial review of French regulations before French administrative courts in this and other regulatory areas.

Furthermore, the European Convention of Human Rights is applicable to many aspects of judicial review of administrative action (conclusions Keller on the « Dahan » case, RFDA 2013.1175), since the European Court of Human Rights applies proportionality control, which is equivalent to maximum scrutiny. Although Loper itself is a case in administrative law, not constitutional law, the petitioners may raise issues related property rights and the government’s ability to impose costs on its citizens. In Europe, including France, the fundamental right at stake would be the so called ‘liberté d’entreprendre’ - within the meaning of administrative law, not constitutional law or EU law, which can be translated as ‘freedom of enterprise.’ In such a case, the court would likely apply a ‘maximum scrutiny’ test. However, it is not sure there would be a breach of such a fundamental right in the given circumstances in Loper in which the government requires a regulated industry to foot some of the costs of its regulatory activity. In addition, in the context of the European Convention, freedom of enterprise might conflict with other rights so the courts would engage in balancing themselves to weigh the burdens imposed on both the public bodies and the affected citizens and businesses.

Moreover, in the sphere of administrative sanctions, there has been an important evolution towards maximum scrutiny, in cases where this concerns citizens or firms, or even if they concern civil agents, due to the consequences of sanctions on the person concerned.

Finally, the courts may adopt an asymmetric approach. In ruling on an individual case, they sometimes apply a maximum scrutiny of certain public actions and a more restricted one for others.

Consider, for example, two Conseil d’Etat cases from 2013 and 2020 concerning the regulation of eel fishing. The first adopted a minimum scrutiny called ‘the manifest error test’ and the second applied maximum scrutiny to another application of the same principle (‘principe general du droit’ which are case law principles developed by administrative courts to impose on Agencies). Here, the relevant provision was article 3 of the Environmental Charter, appended to the constitutional text in 2005 (‘anyone must, under the conditions defined by statute, prevent the damage they are likely to cause to the environment or, failing to do so, limit their consequences’). The CE provided minimum scrutiny in assessing whether the regulation or administrative decision breached a fundamental right. In that case, the challenge by the National Fishing Federation of a regulation which authorized professional fishermen to fish for certain types of eels in various specific circumstances was dismissed on the ground that the regulation was not ‘manifestly disproportionate’ in light of the combination of Article 3 and the legislative objective of maintaining a professional fishing activity (CE 12 July 2013, n° 344522 Fédération Nationale de la Pêche en France). However, a more recent case adopted a maximum scrutiny approach towards the adaptability of the regulation of fishing – in this case, the legislative provisions in question were more precise and the court also decided to apply the precautionary principle. (CE 8 July 2020, ADRM, n°428271).

These cases show that in practice the approach of the French courts varys considerably depending upon the issue at stake, the wording of the relevant legislation, and overall circumstances. The terms of the relevant debate in France are quite different from those in the United States, due to contextual differences such as the way the State is organized, and the existence of separate administrative courts. Whilst there is less explicit deference to the executive, with French judges favoring a more graduated approach of review, it is possible to detect, on closer analysis, some similar considerations, particularly when the decision-making body subject to review has particular expertise especially as regards technical matters. 

François Lichère is Professeur agrégé de droit public à l'Université Jean Moulin Lyon 3 et Directeur de la Chaire de droit des contrats publics,

Duncan Fairgrieve is Professeur de droit comparé et Dean, Campus de Londres, Université Paris Dauphine PSL; Directeur, English Track in Law (M302) et co-Directeur Programme UPD-Barbri; Senior Fellow in Comparative Law, British Institute of International & Comparative Law, London. d.fairgrieve@BIICL.ORG

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