Source De La Legalite Administrative

In view of this multitude of sources of law, part of the doctrine no longer speaks of the “principle of legality” but of the principle of legality of administrative action: the law in the strict sense (i.e. the legal norm adopted by the national parliament) is no longer the exclusive source of administrative law, which now includes all legal norms applicable under the Constitution, starting with the Constitution itself. The administration is governed by the rule of law, whether international, European or national. However, the term “principle of legality” is still the most commonly used, although in some jurisdictions (including the French system) it is probably literally inaccurate. At the same time, international judicial cooperation has developed, including through international treaties; In particular, European regional integration has forced the French administration to respect European law. Thus, while in the 1920s the exclusive source of French administrative law was law, international, or even European or Community law, is increasingly imposing itself on both the administration and the administrative judge. The administrative judge who hears cases similar to those of the judge will seek, as far as his possibilities, the sources of administrative law in order not to apply the ordinary law, even if these sources are essentially identical to those of private law. whereas, therefore, according to the abovementioned laws, the administrative authority alone is competent to hear the hearing; (TC 8 February 1873, Blanco, No. 00012).

I – Constitutional sources II – International standards III – Legal and administrative norms IV – Legal norms Originally, the main source of administrative law was the administrative act, it was simply a matter of subordinating the lower administrative authorities to the higher administrative authorities. Very quickly, this principle of legality was extended to laws, then the gaps were filled by the General Principles of Law (DPI) created by the Council of State itself. Then, little by little, constitutional and treaty norms were integrated as a source of administrative law. The Conflicts Tribunal first affirms that administrative liability cannot be governed by ordinary law: it has its own rules. International treaties are an increasingly important source of domestic law. Traditionally, the sole purpose of international treaties is to regulate relations between states (this is called the dualistic conception of the international order and the internal order). For example, the UN Treaty or the NATO Treaty. These contracts do not have a direct impact on individuals.

The text of the Constitution is a source of legality of the administration in that it establishes rules of competence, procedure and substantive rules that bind the administration. It is an important source of administrative law, consisting of treaties and agreements to which must be added secondary legislation, i.e. legislation developed by international organizations. The international written sources of administrative legality are declarations and international conventions or treaties. Administrative action is not free: it is limited by the obligation to comply with certain legal norms. This is the importance of the principle of legality, one of the cornerstones of administrative law. To understand their scope, it is necessary to study which activities are thus limited, what rules they restrict, and what is the degree of this restriction. The principle of administrative legality governs all administrative acts, but only them. Its scope therefore extends mainly to the action of administrative bodies and, for the rest, to the administrative action of individuals. As we have seen, the primary purpose of administrative law is to restrict the government, its services and its agents by law.

Essentially organic conception that finds its inspiration in the traditional political vision of French public law. A) The principle of legality applies to all activities of administrative bodies. If the regulation, by its general and impersonal nature, participates in the nature of the law, the case law nevertheless decides that it is an administrative act subject to the principle of legality (CE, Chemins de fer de l`Est, 1907). The 1958 constitution did not change that. Stand-alone regulations remain administrative acts (EC, Consulting Engineers, 1959), as do section 38 regulations, until they are ratified. Thus, the Government is prohibited from infringing, by regulatory measures, the general principles of law and, in particular, the principle of judicial review of administrative action. The General Principles of Law (DPI) These are jurisprudential rules that are essentially set by the Council of State, they are reference standards. The 1945 Aramu judgment of the Council of State is the first application of the legal category of IPRs. DMPs are unwritten principles discovered by the administrative judge. The judge can rely on several sources to consecrate them.

Exceptionally, IPRs could be enshrined contra legem, in particular with the judgment of the Council of State of 1950, Dame Lamotte, which establishes as IPR the fact that an appeal for excess of power is opened even without a text against an administrative act. DMPs have sub-legislative and supradecretal values, i.e. they are below the law but superior to regulation. The rules applicable to administration should not be based solely on administration. They must come from external authorities: parliament, international treaties, courts. The principle of legality is only effective if it is accompanied by an effective control system. It is up to the judge to carry out this verification. In France, there is a court specializing in the supervision of the activities of the administration and has the monopoly of control of the activities of the administration (see brochure on administrative courts). However, there are also alternative dispute resolution methods that do not require recourse to the judge and can be useful.

We are thinking in particular of the Ombudsman of the Republic or the Ombudsman (see fact sheet on independent administrative authorities). The 1st judgment is the judgment of the Council of State of June 28, 1918 HEYRIES.