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, lichere.francois@hotmail.com
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