A jurisdictional dualism strongly anchored in the political and institutional history of the country

The strict separation between the two orders of judicial and administrative jurisdiction in France is the legacy of a long historical tradition.

This fundamental choice was reaffirmed during the French Revolution with the law of 16 and 24 August 1790 on judicial organization, Art. 13 of this law states that “judicial functions are distinct and will always remain separate from administrative functions”.

This jurisdictional dualism acquired a constitutional value under the Fifth Republic with the decision of the Constitutional Court (Conseil Constitutionnel) of January 23, 1987 “Conseil de la Concurrence” by which the national constitutional judge, in accordance with the French conception of the separation of powers, established the principle according to which the annulment or reform of decisions taken by the administrative authority in the exercise of its prerogatives of public power is ultimately the responsibility of the administrative jurisdiction constitutes a “fundamental principle recognised by the laws of the Republic” (Decision n° 86-224 DC of January 23, 1987, loi transférant à la juridiction judiciaire le contentieux des décisions du Conseil de la concurrence).

Lastly, the Constitutional Court completed this constitutionalisation of judicial dualism with its decision of 3 December 2009 on the organic law on the application of the aforementioned Art. 61-1 of the Constitution, indicating that the constituent power has given jurisdiction to decide to refer to the Constitutional Court the «question prioritaire de constitutionnalité» raised by the justiciable, to the Conseil d’État and to the Cour de Cassation, both described as “courts placed at the top of each of the two levels of jurisdiction recognised by the Constitution” (Decision No. 2009-595 DC of December 3, 2009, loi organique relative à l’application de l’article 61-1 de la Constitution).

The Conseil d’État and the double tier of jurisdiction

Located at the top of the administrative jurisdiction as a court of cassation, the Conseil d’État also has the power to rule, by way of derogation from the jurisdiction generally exercised by the administrative courts, as a court of first and last instance on a number of disputes exhaustively outlined in the Code of Administrative Justice.

The administrative courts of appeal were, for their part, created by the law of 31 December 1987, reforming administrative litigation in order to respond to the congestion faced by the Council of State, which was, until then, a court of appeal. In the interests of good administration of justice and with a view to preventing the risk of congestion, some minor disputes do not give rise to appeal, and the courts also rule, in some matters, as courts of first and last instance.

Lastly, there are currently 42 administrative courts of first instance spread throughout the territory, following territorial jurisdictions covering, most often, several departments.

An effective jurisprudential discipline

In view of the essentially jurisprudential nature of French administrative law and the need to guarantee respect for the principle of equality of litigants before the administrative justice system, the administrative courts of first instance and administrative courts of appeal have always shown great discipline in the application and respect for the jurisprudential solutions enshrined by the Conseil d’État.

Compliance with the requirement for consistency in administrative jurisprudence throughout the territory is reinforced by the procedure for contentious opinions, as provided in Art. L. 113-1 of the Code of Administrative Justice. This article allows any court to refer a new question of law that presents a serious difficulty and arises in multiple disputes to the Conseil d’État.

It should, however, be specified that this spirit of responsibility shown by the courts of first instance and appeal in the exercise of their office by consigning themselves to respect and apply the case law of the Conseil d’Etat in their judicial decisions cannot prevent the latter from exceptionally deciding, for disputes justifying it, to bring about jurisprudential reversals that could seem highly desirable to them in particular with regard to certain strong developments that have occurred in the meantime. This then leads them, in a way, to play the role of ‘spurs’ by anticipating what the Conseil d’État will adjudicate, in turn, at the cassation stage by returning to its previous case law.

The conditions for an effective and demanding dialogue with the Court of Justice of the European Union

The French administrative court considers the case law of the Court of Justice of the European Union with the utmost attention and is guided by it each time it rules on disputes that require the application of European Union law. It is, moreover, not uncommon for the Conseil d’État to cite judgments of the Court of Justice in its decisions, adopting their reasoning when it seems necessary.

In accordance with now solidly established case law, the Conseil d’État considers that the provisions of Art. 267 of the Treaty on the Functioning of the European Union, under which national supreme courts are required to refer matters to the Court of Justice of the European Union for a preliminary ruling whenever they encounter a question of interpretation of European Union law, apply only in the event of serious difficulty (so-called “clear act” theory).

The Conseil d’État also ruled, more recently, that if the lack of knowledge by a national court ruling in the last instance of the obligation to refer a question for a preliminary ruling to the Court of Justice of the European Union in the event of serious difficulty in the interpretation of European Union law constitutes one of the elements that the national judge must take into consideration to rule on a claim for compensation based on the manifest disregard of European Union law by a judicial decision, such ignorance does not, however, constitute an autonomous cause for the liability of a Member State therefore that the obligation provided for in Art. 267 of the Treaty does not create a right to a reference for a preliminary ruling for individuals (Conseil d’Etat, April 1, 2022, société Kermadec, n° 443882).

 In the very rare cases where a discrepancy appears between the case law of the Conseil d’État and that of the Court of Justice of the European Union, the national courts apply the case law of the Conseil d’État until the contradiction has been resolved through the dialogue of the courts.

Posted by Bruno Bachini

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 Bruno Bachini is a maître des requêtes at the French Conseil d’Etat.

This piece present the key points made in a chapter published in Administrative Justice, Regional Courts and Legal Certainty – A  Comparative Overview, V Parisio (ed) (Giappichelli 2025).