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French Legal News - Administrative Law

On 26 January2005, the court of first instance – tribunal de grande instance – held that the State was liable to pay damages for the miscarriage of justice in the Mourmelon case. Only a particularly serious fault – faute lourde – can justify the State’s liability for failure of the judicial system. In this case, the judge considered that the catalogue of mistakes made during the investigation (loss of evidence, delay in linking similar cases of young people reported missing in the same area of Mourmelon) amounted to faute lourde.

On 19 January 2005, the Upper House of the French Parliament approved a Government amendment to legislation on the development of rural areas. The amendment allows advertisements for wine products to specify the taste and colour of the wine and to mention any prizes or special distinctions obtained. The aim of the amendment is to balance the interests of wine producers against the need to protect public health (according to Health Minister M. Philippe Douste-Blazy, there are around 45,000 alcohol-related deaths each year in France, and Members of Parliament have declared that two-thirds of these can be attributed solely to wine).

Reforming the French education system is proving a difficult task with many teachers’ unions electing to leave a working group established to look into reform of the baccalauréat at the close of the group’s second meeting on 24 January 2005. The group was unable to reach a consensus on any of the topics selected for discussion by the Education Minister M. François Fillion (notably the reduction of examination subjects from over ten to six and the introduction of different forms of assessment such as assessment throughout the year or during training periods). However, the group is still due to report to the Government by 15 April 2005.

On 28 October 2004, the Administrative Court of Lyon confirmed that, according to the rules safeguarding professional secrecy, counsel could not disclose a client’s name or make accessible any document which contains the name. But it also held that where a law firm submitted a tender for a public procurement, it could present its references, without mentioning its clients’ names, in order to verify its professional competence and experience. This ensures the principle of equal access to public procurements.

On 19 October 2004, a decree stipulating the measures required for the enforcement of the 17 June 2004 decree relating to contrats de partenariat was adopted. These ‘partnership contracts’ were created in order to allow public agencies to finance public works and facilities without paying their price immediately after completion when the financial arrangements are particularly complex. These contracts are of a mixed nature – they combine characteristics of concession contracts with those of public procurements.

A decree of 26 October 2004 defines the organisation of the Haute Autorité de santé, a body which is in charge of evaluating medical services and treatment and certifies health institutions.

A decree of 22 October 2004 set up a specific body for urban problem areas (l’Observatoire national des zones urbaines sensibles) within the framework of the 1 August 2003 Act relating to town and urban renewal.

In October 2004, the Commission supérieure de codification publicised its annual report for 2003. It announces codification of the last regulatory part of the Code of Public Health, as well as codification of all regulatory parts of the Code of Environment and of the Monetary and Financial Code before the end of the year. Teams are also working on the Commercial Code and on codification of the regulatory parts of the Code of Education and the Code of Inheritance. Furthermore, the Commission plans to pass on to the Conseil d’Etat the decree on codification of the legislative parts of the Code of Defence, and to adopt drafts for the Codes of Administration, Sport and Transport before the end of 2004. In addition, two decrees of 21 October 2004 provided codification of most of the regulatory part of the Code of Social and Family Action.

On 5 June, union leaders organized a major demonstration against the government’s proposed reform of the French national health system. Their hostility focuses on four main aspects of the proposal. The proposed payment by patients of 1 Euro per medical treatment, which (according to Prime Minister Jean-Pierre Raffarin) is designed to raise patients’ awareness of medical costs, is seen by unions as a first step towards private funding of the health system. On financial aspects, the renewal and/or increase of existing special taxes on income – Contribution au renouvellement de la dette sociale (CRDS) and Contribution sociale généralisée (CGS) – were agreed in principle but most unions would also like the employers’ contribution to be raised. The proposal allows consultants to charge patients who come to see them without any referral above the set national fee. Unions fear this would lead to a two-tier medical system, discriminating against poor patients. Finally, two union organizations have expressed their opposition to the proposed creation of a watch-dog committee that would be granted coercive powers in case of excessive spending. They are concerned that financial considerations would as a result outweigh the quality of health services.

On 11 May 2004, several decrees taken by the Minister of Social Matters as additions to agreements passed between the State and representatives of unemployed people were declared void by the Conseil d’Etat for failure to comply with the legal requirement of prior consultation of the relevant Committee. More importantly, the Conseil d’Etat ruled – contrary to previous case law – that the annulment did not necessarily have retroactive effects; the illegal acts were thus considered valid for the time preceding the Conseil d’Etat’s decision.

On 9 March 2004, the administrative tribunal of Amiens examined a State liability claim following the loss of frozen gametes by a public medical centre in charge of in vitro fertilization. Material damages for the loss itself were denied on the ground of article 16-1 of the French Civil Code (stating that no proprietary interest can be vested in the human body, its parts or products). Damages for moral suffering deriving from harm caused to the primary victim were also rejected, as gametes, not being legal persons, could not be considered primary victims. Nor were damages awarded for the loss of the chance to become parents, since the plaintiffs were considered young enough to be able to make a further attempt at medically assisted procreation. However, damages amounting to € 10,000 were awarded for the disturbance to the plaintiffs’ lives caused by the loss.

On 25 February 2004, The Government issued a regulation allowing University Paris IX Dauphine to select students applying to degrees in Economics, in derogation to the principle – stated by the 1984 University Act – that pupils who have passed their baccalauréat are all entitled to a place in University. Selection had been current practice at Dauphine University until it was contested by 72 students (who had been turned down) and held illegal by decisions of the administrative tribunal of Paris. The regulation now allows Dauphine University to go back to its usual practice. However, the Minister of Education, Luc Ferry, ensures that this selection process on entry will be confined to Dauphine University and not gradually extended to other universities.

On 19 January 2004, the Upper House of the French Houses of Parliament adopted the text – passed by the Lower House on 14 October 2003 – on Public Health. The text purports to reinforce prevention measures against serious health hazards and to improve communication between health bodies relating to public health and death certificates. New national institutes (e.g., the National Institute for the Prevention and Cure of Cancer and the National School of Public Health), designed to improve professional training, are to be set up.

On 4 December 2003, the Conseil d’Etat clarified the distinction between Acts of State (not subjected to judicial review) and administrative acts (subject to review), and more specifically to the control of ultra vires. Whereas the decision to organize, by virtue of article 73 of the Constitution, a local consultation relating to certain institutional local changes is the prerogative of the President of the Republic and can therefore be categorized as constituting an Act of State, the Conseil d’Etat held that the administrative act then drawn up to organize the actual conditions of the consultation fell outside the category of Acts of State and could therefore be subjected to judicial review. In particular, administrative courts could inquire whether the question presented to the electors was phrased in a clear and sincere way.

An extension of the powers transferred from central to local authorities will come into effect in 2004. One example is the support granted to jobless citizens over 25 who cannot (or can no longer) claim unemployment benefits; as of 1 January 2004, they will become the responsibility of the “départments”. Presently, there are two major French Acts of Parliament relating to the distribution of powers between central and local authorities: the 2 March 1982 Act, known as “loi Deferre” and the 6 February 1992 Act. Since then, several Acts have been passed in order to clarify the allocation of powers and slightly increased those granted to local authorities (“communes”, “départments” and “régions”): the 4 February 1995 Act (“loi Pasqua”), the 25 June 1999 Act (“loi Voynet”), the 12 July 1999 Act (“loi Chevènement”), and the 13 December 2000 Act (“loi SRU - Solidarité et renouvellement urbain”). In 2002, the present Raffarin Government expressed its desire to considerably increase local powers and the first changes are to come into force in January 2004.

On 14 October 2003, the Lower House of the French Parliament adopted measures concerning public health: 1) After the deaths caused by last summer’s heat wave, the initiative provides for various means to improve the communication between hospitals and the National Body for Health Watch. 2) A National Institute for the Prevention and Cure of Cancer is to be set up. 3) A ban was enacted against small packets of cigarettes (considered to be more attractive for young people). 4) Various measures against the use of cannabis are planned, but no steps were taken against the use of alcohol.

 



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