(P.33) 2.2.2. Modern Theory

In more recent times a school of thought developed against the traditional theory. Sharp criticism was made of the view that only breaches of a certain seriousness were sufficient to constitute fault. It was contended that both principle and previous case law supported the proposition that if an administrative act was tainted by any type of unlawfulness, then fault had to arise. This argument was spearheaded by Hélin in his thesis in 1969.²⁹

In terms of principle, the traditional concerns of the cost implications of the illegality–fault parity were refuted. First, it was argued that it was unjust to refuse compensation for loss merely on the basis of financial considerations; this would amount to the courts putting the interests of the public purse before those of an injured victim. Damages payments represented a mere drop in the ocean of public spending.³⁰ Secondly, Vedel asserted that it was improper for a judge in a damages action to advert to the need for budget austerity: it was not permissible to take into account extraneous considerations, such as the financial consequences of their decisions on the defendant.³¹ Thirdly, an important influence was exerted by the parallel civil law of delict.³² It was thought untenable that a claimant would have a better chance of reparation if he or she went before the more generous civil courts,³³ where a mere illegality would give rise to fault.³⁴

It was also argued that many of the cases cited in support of the traditional theory were in fact inconclusive. Indeed, it is clear that the rejected claim in the aforementioned case of Monpillié³⁵ is best explained by lack of the requisite causal link, rather than the purported absence of fault.³⁶ Damages were denied because the sine qua non test of causation was not satisfied. The same administrative act could have been taken lawfully: but for the illegalities, the claimant would still have sustained loss. This also (p.34) accounted for the result in another case, Anduran.³⁷ The non-recovery in Grellet³⁸ was explained by the absence of a legally recognized injury sustained by the applicant.³⁹ It should be observed that the style of the administrative courts' judgments undoubtedly contributed to the misinterpretation of the case law in favour of the traditional view that illegality per se did not necessarily entail fault. The laconic and terse format of Conseil d'Etat judgments created a certain ambiguity in relation to the notion of fault.⁴⁰

Despite the forceful arguments against the traditional theory and in favour of the recognition of fault for any type of illegality, there was a flaw in the reasoning. The traditional theory was supported by the case law relating to erreur de fait⁴¹ and erreur de droit.⁴² It was clear that these grounds of illegality did not per se constitute a fault capable of giving rise to a right to monetary compensation.⁴³

It is indicative of the force of Hélin's thesis that little time elapsed before the administrative courts themselves added the final element to the illegality–fault parity. Overturning its previous case law, the Conseil d'Etat declared in the famous case of Driancourt⁴⁴ that a mere erreur d'appréciation constituted a fault capable of giving rise to liability.⁴⁵ The courts went on to hold that fault automatically arose from procedural illegality,⁴⁶ and from invalidity due to an erreur manifeste d'appréciation des faits.⁴⁷

In modern case law the illegality–fault equation has been constantly reasserted.⁴⁸ Of particular interest is the Community law perspective. Rules which are contrary to EU law are invalid and the administrative courts have been moving towards a principle of liability based on fault deriving from the illegality of the incompatible rule.⁴⁹

(p.35) Most authors now unequivocally support the illegality–fault equation.⁵⁰ But not all. In particular, one can detect an atavistic echo of the traditional theory in Rivero's textbook.⁵¹ It should also be emphasized at this juncture that even if one accepts that every illegality necessarily entails a fault, the mere occurrence of an illegal administrative act is not per se enough for liability. The claimant must also show that the fault arising from the invalidity caused loss. This rather evident proposition is not always asserted with clarity in French texts.⁵²

The illegality–fault equation is still subject to one important exception.⁵³ The French administrative law conception of fault is not a homogenous one: in certain areas, the courts require a higher standard of fault which is known as faute lourde or gross fault.⁵⁴ When the courts require proof of faute lourde, the illegality–fault parity does not apply.⁵⁵ Only certain illegalities will be severe enough to constitute a faute lourde. The courts will take account of a number of factors in assessing the seriousness of the illegality. The specific head of unlawfulness is not conclusive. Account is taken of the motives and intention of the defendant authority,⁵⁶ and the difficulty of the decision-making.⁵⁷

The common law view that the illegality of an administrative decision is a sufficient condition of administrative fault is largely an accurate representation of the contemporary position of French administrative law. Nevertheless, it is to be noted that such an unequivocal assertion does lend this principle an aura of centuries-old eminence which is not reflected in reality. Indeed, it has been shown that it is only in relatively recent times that the case law and academic writing have undergone a significant shift to accepting the illegality–fault parity. Furthermore, the modern administrative law textbooks have not all adopted the approach that is trumpeted as the uncontested norm when viewed from foreign shores.