1. Introduction
In the 18th century, French administrative disputes were taken away from common courts and given to administrative courts within the administration, gradually gaining independence. Today, French Administrative Justice comprises three levels: 42 administrative tribunals, 9 administrative courts of appeal, and the Supreme Administrative Court (Council of State). The Council of State plays a pivotal role in reviewing the legality of decrees and shaping case law. French administrative law is primarily shaped by judicial decisions, though statutes and decrees are increasingly influential. Legislative intervention in evidence rules between administrations and citizens has been minimal, leading to a gradual clarification of obligations through litigation before administrative courts. However, the lack of clear rules on proving facts should be improved, especially given the challenges posed by digitization, artificial intelligence, and big data. Legislation and case law are beginning to address these challenges, albeit in an ad hoc manner.
2. The absence of statutory principles and rules governing proof of facts in French administrative law
Judges and legal scholars most often clarify the applicable principles and rules in French administrative law. Indeed, few general provisions are found in statutory or subordinate legislation governing proof of the facts in the administrative procedure and before the administrative courts, but that does not mean that no obligation exists, particularly on the part of public administrations.
The Code of Relations between the Public and the Administration (CRPA) adopted in 2015 aims to standardize administrative procedures but lacks general provisions on proof of facts, aside from specific documentation requirements. While principles like good administration and the duty to give reasons for decisions exist, there is no general obligation of due care on public administrations. Consequently judicial review ensures the legal and factual soundness of administrative decisions.
In contrast, tax law with the Book of Tax Procedure and the Taxes General Code provides detailed evidence rules, reducing legal uncertainty. Historically, tax authorities had significant power in evidence matters, but fairness has improved over time. In general administrative law, the burden of proof is determined by case law, which has enabled it to take account of the inequality between administrations and citizens.
French administrative justice relies on case law and subordinate legislation for evidence principles. The judge’s role is inquisitorial, allowing free assessment of evidence, with investigative powers outlined in the Code of Administrative Justice. Burden of proof before administrative courts varies by appeal type.
For illegality proceedings, there is no burden of proof (as clearly stated by CE, 26 nov. 2012, Brigitte Cordière, n° 354108). Exceptions exist, such as in disciplinary cases where the administration must prove fault.
In administrative liability cases, claimants usually bear the burden of proof, with exceptions like presumptions regarding fault, causality or damage occasionally established by statutory or case law.
3. The inquisitorial procedure and the freedom of evidence as key tools in matters of factual evidence in French administrative law
In the case of administrative procedure, specifying more broadly in the applicable legal texts, and more generally in the Code of Relations between the Public and the Administration, what evidence is expected, and by whom it must be provided, would help to avoid inertia on the part of administrations and citizens. This would also reduce the inability of citizens to provide adequate evidence – and therefore the failure of their request –, and consequently this would reduce the number of disputes before the courts. The inquisitorial procedure and the freedom of evidence before the administrative courts nevertheless allow the system to function overall. They are particularly necessary insofar as the evidence expected in administrative proceedings is rarely specified.
Few rules in the ‘Code des Relations entre le Public et l’Administration’ specify permissible evidence in administrative procedures. Specific rules govern evidence such as certification of sending dates, delivery receipts, proofs of entitlement, identity proofs, and conformity certifications. In contrast, tax law operates under a ‘legal proof system’, where statutory rules determine permissible evidence types and their convincing value. In other administrative procedures, evidence of facts can generally be provided by any means with free convincing value, termed the ‘free proof system’. However, case law has addressed issues of unlawfully obtained evidence, particularly in violation of privacy rights. A case involving a public servant’s dismissal due to unauthorized private activities monitored by a detective agency prompted the Supreme Administrative Court to balance privacy rights with the administration’s right to obtain evidence (CE, sect., 16 juillet 2014, M. Ganem, n° 355201).
Administrative procedures often lack clear rules on evidence provision, which can lead to citizens facing difficulties in proving their case, especially if they lack legal representation. However, administrative judges possess investigative powers, allowing them to collect evidence that the administration may have overlooked or that citizens may require. This inquisitorial approach helps to balance the burden of evidence between parties. The article published in the REALaw 2024-1 issue and of which this blogpost is a summary details various investigative powers available to administrative judges, such as expert opinions, site inspections, witness hearings, and document verifications. It emphasizes the importance of a prima facie piece of evidence to trigger the inquisitorial system and highlights exceptions, such as secrecy of documents protected by law. Furthermore, the article discusses the increasingly demanding nature of the inquisitorial principle for administrative judges. The Council of State expects judges to rigorously investigate cases, particularly when serious allegations are made and when doubt persists after parties have presented their evidence. This expectation reflects contemporary debates on proof standards, especially regarding behaviors like discrimination and harassment that are difficult to prove.
The principle of freedom in assessing evidence is also important in this respect. With few exceptions, both administrations and administrative judges have freedom in assessing evidence. While tax law often determines the value of different types of evidence, in other administrative procedures, the convincing value of evidence is more important than the types themselves. The article emphasizes the absence of a general legislative principle on the required degree of certainty for a fact to be considered proven and the use of the principle of firm conviction similar to criminal law standards, where the judge must form a conviction based on all documents in the case file. However, there may be concerns about the lack of reflection on the judge’s degree of conviction when assessing evidence, potentially leading to discrepancies in legal certainty. Appeals to higher courts provide a legal solution to challenge judgments and ensure consistency in evidence assessment.
Furthermore, the article discusses certain types of evidence having greater value than others. Written evidence typically plays a more important role than oral evidence, although oral investigation procedures are becoming more prominent, as evidenced by recent legislative changes allowing for oral investigation sessions before administrative courts
4. Impact of digitalization, artificial intelligence and big data on evidence principles and rules
On the one hand, the procedure before the administrations and the administrative courts is in principle written, digitization has not reversed the theory of proof; the principle of written procedure has even made the transition easier. On the other hand, the development of AI and big data in administrative matters is still in its infancy, and the concerns mainly relate to the development of the tools and their applications, in particular data processing and automating administrative tasks. However, the impacts of these tools on administrative proof are huge. Many of the tools developed from digitization, artificial intelligence and big data are means of collecting and checking data, and not only for criminal investigations.
Legislation in France is embryonic at the moment. It does not set a general framework on AI, big data and proof of facts in administrative law. Yet it poses serious problems because of the specific nature of the evidence generated by these new tools.
4.1 Digitization
Digitization leads to the necessary adaptation of administrative and litigation procedures. These adaptations were not specific to evidence but encompassed the entire case statement, including proof of facts. The principle of written procedure facilitated the transition from paper-based to digital processes, mainly by specifying equivalent standards for paper and digital documents. The article explains that disputes have arisen, however, over proving that the system has malfunctioned, over how to calculate the starting points for sending, receiving and consulting the documents necessary for the procedure and over how to ensure that the lawyers registered with the application comply with these deadlines.
4.2 Artificial Intelligence and Big Data
This article explores the impact of AI and Big Data on administrative proof. It notes that while these technologies are extensively used by French public administrations, their use raises various legal challenges and questions regarding their admissibility as evidence.
The article discusses specific cases where AI and Big Data were used, such as the implementation of digital health passes during the COVID-19 pandemic and the use of facial recognition by police authorities. Judicial decisions regarding the admissibility of such evidence highlight the need for careful consideration of privacy rights and proportionality of its use.
Moreover, the paper underscores the importance of establishing a legal framework, possibly in the Code of Relations between the Public and the Administration, to regulate the use of these technologies in administrative procedures, suggesting including the principle of prohibiting the storage of evidence and the principle of prohibiting the reuse of data as evidence.
4.3 Algorithmic proof
The article delves into the complexities surrounding evidence based on algorithms in administrative proceedings. One key challenge highlighted is the difficulty in understanding how algorithms work and the evidence they provide, both for citizens and judges. This complexity is compared to the challenges presented by medical evidence, indicating that grappling with intricate evidence is not a new phenomenon in legal proceedings.
The cases discussed in our article illustrate the evolving role of algorithms in administrative proceedings. For instance, in a tax case, an administrative court acknowledged the evidential value of an accounting algorithm used by a company to identify anomalies in reported data, leading the tax authorities to reassess the company’s turnover. Another court clarified that while the tax administration does not need to disclose the algorithm created by itself, it must explain how it factors into the evidential reasoning. Another case involving public procurement highlights the challenge of assessing the evidential value of algorithms. The court criticized the use of algorithms by the municipality’s administrative staff in evaluating risks associated with different ways of contract execution, emphasizing the need for literal explanations, not only figures, to enable informed decision-making by elected officials. This case suggests that as algorithms play a larger role in administrative proceedings, judges may need to adopt strategies such as displacing the subject of proof to ensure the validity of evidence derived from complex algorithms.
The article ultimately calls for the establishment of clear statutory rules and principles governing the use of AI, big data, and algorithms in administrative procedures to address the potential shortcomings of relying solely on judicial review post-facto.
5. Conclusion
Concerning French administrative law, it is necessary to emphasize the lack of consideration of the role and place of evidence in administrative procedure, and the subsequent absence of a complete legal framework for the proof of facts. It is not difficult to understand once you know that there are no principles of administrative procedure in France (J-B Auby and G della Cananea, ‘Quelques traits d’évolution actuelle des droits administratifs européens’ (2023) Droit administratif 10 n°1). The reason is that all eyes have been on the litigation administrative procedure for centuries, to such an extent that there is a traditional reference to the ‘non-litigation administrative procedure’ rather than to the ‘administrative procedure’ (P Idoux, ‘Le droit administratif de demain, droit essentiellement procédural ?’ (2023) 10 Droit administratif n°11). The fact that French administrative law is historically a judge-made law explains also the greater attention to the litigation procedure and the reason why so few administrative procedures are specified by the legislature. This also reveals the confidence placed in French civil servants’ investigation and in the administrative judges’ ability to find the appropriate evidence rules between administration and citizens in specific cases and to take a pragmatic approach. But the evidence that comes with tools based on AI and Big Data certainly implies that rules should be thought of beforehand, and in all fields of administrative activities. And this is certainly Parliament’s duty to do so.
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Posted by Caroline Expert-Foulquier, Associate Professor in public law, University of Limoges
