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Report No. 01

Chapter VI

The Law in France

50. It is common knowledge that under the French system of administration, there is a dichotomy of courts, unlike in England and America-one set of courts dealing with the disputes between the State and the citizen known as the Administrative Courts and the other set dealing with the disputes between a citizen and a citizen. The Council of State (Council d'etat) is at the apex of the hierarchy of administrative courts just as the Court of Cassation is at the head of the civil courts.

The Council of State has both judicial and administrative functions, sections of that body dealing with the two matters being different. Its administrative functions are mostly consultative. In case of conflict of jurisdiction between the two categories of courts, there is a Court of Conflict to resolve the dispute and the personnel of this body is partly drawn from the Council of State and partly from the Court of Cassation.

51. The development of the law relating to the liability of the State for the claims of the citizen against the State was through the Council of State. It is somewhat curious that while French Law started with the absolute immunity of the officer and the State in respect of tortious acts, through a process of evolution it has established absolute liability of the State and partial liability of the officer. The maxim that "A King can do no wrong" is replaced by the maxim that "the State is an honest man".

It is unnecessary to follow the vicissitudes through which the evolution had to pass but a great change was effected in 1870 by a decree and the celebrated Pelletier case in 1873. A distinction was drawn between personal fault (faute personnelle) and service-connected, fault (faute de service). In respect of the former, the officer alone was liable to be sued in the civil court while in respect of the latter, the State alone was liable in the administrative courts.

But the meaning of "personal fault" was developed by jurists. A public officer was liable if there was wilful malice or gross negligence on his part. To this a further qualification was added by Haurion that he should not be acting within the scope of his official functions. It may, therefore, be stated that in the droit administratif of to-day a public officer is liable personally only when he has acted wilfully, maliciously, with gross negligence or outside the scope of his official functions.

If he acts within the scope, he is not liable, for, he committed no personal fault but a service-connected fault for which the administration alone is liable. It was felt that the strict rule of personal liability might impede effective administration, for, if an officer knew that his exercise of judgment in doubtful cases might expose him to a suit for damages, he might be disinclined to act in all such cases. If he was a man with low pay and slender resources, it would be inequitable to saddle him with liability.

52. The State's responsibility for the injuries of a private citizen inflicted by the administration is treated logically as an extension of the principle that when private property is acquired by the State from a citizen the latter should be paid just compensation by the State. On that analogy, if for the benefit of (the members of) the State a person is injured, all the other persons should make good the injury. Gradually the basis of liability was shifted from that of fault to one of risk as under the Workmen's Compensation Acts. It enabled administrative law to view the basis of such liability in a new light:

"The Council of State", says Schwartz on 'Administrative Law',1 "has for many years assumed that one of the fundamental principles of French public law derived from the equalitarian ideal that inspired the men of the French Revolution was that which provided for an equal distribution among the citizenry of the costs of government in the absence of a legislative disposition to the contrary. If a particular citizen is damaged by the operation of an administrative service, even if there is no fault, the principle of equality in sharing the expense of government is violated.

The victim of the administrative act that caused the damage is in effect asked to assume a burden not imposed on other citizens, a burden thrust upon him, by the operation of a public service that functions for the benefit of the community as a whole. In such cases, it has been asked by French jurists, is not the State, even though it has not committed a fault, under an obligation to vindicate the principle of equality before the costs of government by removing the additional burden that has fallen upon the one injured and, by assuming it itself, distributing it among the entire body of the citizenry?

Such indeed, is the master principle that tends more and more to govern the jurisprudence of the French Council of State. The law of State liability is aimed at restoring the equality that has been upset at the expense of a particular individual. In the absence of fault on the part of the administration, stated the Government Commissioner in his conclusions in an important case before the Council of State, the basis of State liability is to be found in Article 13 of the Declaration of the Rights of Man. That article laid down the principle of the equality of citizens before the costs of government.

It is, in actuality, not permissible for a public activity even though it be legal, to cause certain individuals damage that they alone must bear; that would be to make them carry more than their share of the costs of the State. All public activity is intended to benefit the community as a whole. It must, therefore, be paid for by the entire community. Consequently, individual damage caused by such activity which, by upsetting the balance sought by the Declaration of Rights, destroys the equality of the citizenry before the costs of government, should lead to reparation. Such reparation, which by means of the tax system, is actually made by the whole body politic restores the equality thus destroyed."

1. P. 292.

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