2.2. Illegality as a Sufficient Condition of Fault

The established common law view of French administrative law is that the invalidity of an administrative act is per se sufficient to constitute fault capable of giving rise to liability. This notion is generally perceived as a fundamental principle of French administrative law.⁹ However, a detailed analysis reveals that there has been a good deal of academic debate and judicial equivocation on this point.¹⁰ Only in the last thirty years has it been unambiguously accepted that illegality per se suffices to constitute fault. Before that there was no equivalence between public law illegality and fault. This stance was underpinned by strong policy concerns, which strike a chord in comparative law terms. The development of the administrative case law and the accompanying academic commentary will be traced in this section.

2.2.1. Traditional Theory

The traditional school of thought was that an invalid administrative decision did not ipso facto entail administrative fault. This was advocated by a number of authors,¹¹ and found favour with certain Commissaires du Gouvernement.¹² A number of cases were cited as disproving the illegality–fault equation. In the case of Vuldy, the Conseil d'Etat refused to impose liability in damages when a decision preventing the applicant (p.31) from constructing a seven-floor building was declared invalid on the basis of an erreur de fait.¹³ It was held that this illegality could not ‘in the particular circumstances of the case, be regarded as constituting a fault which could give rise to the liability’ of the public body concerned. Likewise, commentators cited the case of Monpillié, where damages were denied for loss caused by a hygiene order which had been annulled on the basis of vice de forme.¹⁴ The case of Grellet also purportedly supported the traditional thesis in rejecting a damages claim pursuant to an administrative act quashed for erreur de droit.¹⁵

These cases were cited as proof that a claimant in a damages action against a public body needed to show something more than the mere unlawful nature of the administrative decision in order to aver fault. Distinctions were drawn between the various heads under which an administrative act could be held invalid, and only those grounds considered to be of a sufficient ‘gravity’ would entail a fault capable of giving rise to liability. As Louis Trotabas wrote in 1933:

A hierarchy has been formed in the sphere of administrative legality. A category of ‘higher’ legality can be identified, the violation of which constitutes a faute de service. Below this is a ‘second zone’ of legality which evidently must be abided by, but the breach of this is not serious enough to entail state liability.¹⁶

Although there was a certain consensus on the concept of a hierarchy of heads of unlawfulness,¹⁷ the exact articulation of that hierarchy was contentious. Many agreed that the gravity of certain heads of unlawfulness, such as violation de la chose jugée¹⁸ and détournement de pouvoir¹⁹ meant they should, by their very nature, be severe enough to constitute fault.²⁰ But, there was a good deal of disagreement about the exact categorization of (p.32) other causes of invalidity, in particular those relating to incompétence and erreur de droit.²¹ This debate should not unduly keep us, but one fundamental criticism may be levelled at the traditional theory. In determining the relative seriousness of the breach, it is problematic to attach such great importance to the grounds on which the administrative act is annulled; this allows only a very narrow evaluation of the seriousness of the breach.²² Reference to European law illustrates that other elements should be relevant in determining whether a breach is serious enough to warrant the imposition of liability, such as the clarity and precision of the rule which had been breached, whether the breach was intentional, and whether it was excusable or not.²³

It is very illuminating from a comparative law perspective to investigate the theoretical foundation underpinning this traditional theory. In academic commentary, the main argument invoked against the wide notion of fault encapsulated in the illegality–fault parity was that it would encourage exponentially increasing litigation.²⁴ It was felt that this would have two main detrimental effects. First, it was contended that public authorities would be discouraged from becoming involved in new activities for fear of potential liability actions.²⁵ Secondly, an explosion in damages liability would rapidly deplete the financial resources of the public purse.²⁶ This latter consideration was particularly acute in relation to the smaller collectivités locales, which had a modest budget and could not rely upon central government to underwrite their debts.²⁷ The administrative judiciary never openly adverted to financial concerns in judgments, but it has been strongly argued that this exerted an influence on decisions.²⁸