The ECJ and the French administrative supreme court : Je t'aime, moi non plus? A Study in Judicial Diplomacy (original) (raw)

2022, HAL (Le Centre pour la Communication Scientifique Directe)

The history of the relationship between the Court of Justice of the European Union (ECJ) and the French supreme administrative court, the Conseil d'État, 1 is as complex as it is long. It is, simultaneously, highly conflictual yet also an illustration of the ability and willingness of an institution to adapt to a system which represented no less of a revolution for itself than for the supreme courts of other Member States. The first decades of European integration were evidently not well received by the Conseil which, with the support of most French scholars specialising in administrative law-albeit not those who specialised in European law-primarily sought to defend its own competences from the imposition of an external influence. The 'defiant nationalism' 2 of the Conseil d'État stands in stark contrast with the successive (barring a few exceptions) French Presidents and Governments' European ambitions and the country's political elite's willingness to present France as a leader of European integration. In fact, Lord Denning's famous remark on the incoming tide of Community law 3 and the anxiety he expressed about the powers of the ECJ could very well have been formulated by a member of the Conseil d'État. Yet, one could have expected the relationship between the French administrative supreme court and European integration to be much easier considering. The Conseil had significant advantages over many other national courts in adapting to the requirements of this new legal order. Core features of European Community law at the time, such as the style of legal writing, in particular that of judgments (including the use of 'considérants' in the grounds of decisions), the use of concepts such as general principles of law, or the judicial interpretation of very vague provisions, would have been extremely familiar to French administrative lawyers. They did not, in and of themselves, require them to learn a different way of writing or reading judgments or even to work from translated documents. The influence of French administrative law is felt in numerous aspects of early Community law and perhaps most significantly in procedural law and judicial practice, which made communication between courts easier. The reaction of the Conseil d'État was nonetheless just as strong and more overtly conflictual than that of the British Court of Appeal and House of Lords (now Supreme Court), illustrating the depth of the adaptations required by the ECJ's interpretation of the treaties and the principles of direct effect and primacy. This resistance may be explained partly by a concern, similar to those expressed by other supreme courts such as the House of Lords, over a loss of control on the national legal system. The loss is both that of the court itself, as it finds itself under the authority of another jurisdiction for part of the law it is called upon to apply, and that of the national legal system, as sovereignty is limited for the benefit of the construction of a supranational legal order. In this sense, the sources of the Conseil d'État's discomfort with European Community law were not unique. However, this court's 1 The Conseil d'État is exclusively competent for matters which relate to administrative law and the judicial review of non-legislative acts. The 'private law' or 'judiciary' court system in France is headed by the Cour de cassation and covers all other areas of the law, including civil, commercial and labour law as well as criminal law. The Conseil constitutionnel is has an exclusive competence to review the constitutionality of legislative instruments. 2 'Nationalisme ombrageux', phrase employed by Roland Drago, note ss CE ass. 27 juillet 1979, n° 9664,