3.1. The Notion of Faute de Service

In contrast with administrative decisions, the physical acts or agissements of public bodies cannot be quashed. Standards of legality may still sometimes have some relevance. Occasionally, the agissement may constitute a (p.103) faute de service due to the violation of rules laid down in statutes, regulations, or secondary legislation.³²⁷ But, in the majority of cases, no such breach will be apparent. In these cases, determining whether agissements give rise to fault cannot be made by reference to legality. Instead reference will be had by the courts to the whole circumstance of the incident in order to determine whether a faute de service has occurred. In this section, the characteristics of a faute de service will be presented.

Neither the courts nor the legislature have given a specific definition of faute de service. The judiciary has dealt with faute merely on a case-by-case basis without undertaking any work of synthesis.³²⁸ Indeed, the room for manœuvre afforded by the lack of an overarching definition has been jealously guarded by the courts, allowing them to decide their own ‘policy of compensation’.³²⁹ This inevitably has meant the Herculean task of defining the notion of faute has been left to academics.³³⁰

There has been much discussion in academic writing about the notion of faute de service.³³¹ Many commentators now see the basis of faute de service as the breach of an obligation,³³² and this is given some support in the case law.³³³ A cornerstone of French administrative law is that the administration is under a general duty to administer competently.³³⁴ In determining whether a faute has occurred, focus has been placed by many academics upon the breach of the standard of normal operation of the administration:³³⁵ thus, a malfunctioning of the administrative machinery gives rise to a fault.³³⁶

(p.104) The emphasis upon the systemic failure of the administration has had several important consequences. First, courts will often refer to fault as deriving merely from the defective organization and functioning of the administration.³³⁷ This has been of particular significance in the medical sphere,³³⁸ where the notion of a defective medical service was used to circumvent the requirement of faute lourde for liability deriving from individual medical acts. This notion of the dysfunctional administration has also been invoked in other areas of administrative activity.³³⁹ Using this technique, the impugned administrative activity is compared to an abstract model of proper administration as a basis for assessing fault.³⁴⁰ From this perspective, faute de service has parallels with the notion of maladministration used by the Local Government Ombudsman (LGO) in determining remedies for injustice at a local government level.³⁴¹ Indeed, the LGO often refers to maladministration as ‘administrative fault’ in his reports.³⁴² Similarities between droit administratif and the principles of intervention by the LGO have not gone unnoticed.³⁴³

Secondly, there is sometimes a tendency of the French courts to look to results rather than reasonable behaviour.³⁴⁴ The mere fact that something has gone wrong can constitute administrative fault, even if the individuals were in fact doing their best, and could not reasonably have been expected to have done better. Examples of this tendency towards—in common law terms—a form of strict liability include administrative fault deriving from the mere fact that a hospital ventilator³⁴⁵ and firefighting equipment were defective.³⁴⁶ In another case, faute was found simply on the basis that food poisoning had occurred in a school canteen,³⁴⁷ without (p.105) any investigation of the conduct of the defendants. This tendency towards the imposition of an obligation on the administration to guarantee a result has been detected by commentators,³⁴⁸ although the cases they cite are not always that persuasive.³⁴⁹

Thirdly, the emphasis upon fault as a systemic failure in providing public services has led some to declare that the actual state of mind of the administrative agent responsible for the wrongdoing is not relevant to the determination of fault.³⁵⁰ Others have disagreed with this premise,³⁵¹ and with some justification: the courts have on occasion taken account of motives or intention, for instance referring to the ‘bad faith’ of the administrator,³⁵² or taking account of the state of mind of those who are alleged to be liable for misstatement.³⁵³ Although it would thus seem that state of mind is not entirely irrelevant, the focus upon the anonymous organizational fault does indeed sideline considerations of the blameworthiness of individual conduct.³⁵⁴

Fourthly, perceiving fault as an organizational failure has led some to overlook the fact that administrative liability may indeed derive from an individual's carelessness.³⁵⁵ Although the act giving rise to fault may indeed be an anonymous faute de service,³⁵⁶ for instance where the exact author of the impugned act is unknown,³⁵⁷ there are also many cases of liability arising from an identifiable individual's wrongdoing.³⁵⁸

The notion of the defective functioning of the administration has thus become a cornerstone of French administrative law. To further understand the finding of faute de service, we will also turn to the specific factors of which the courts take account. The French case law reveals that factors such as the foreseeability of loss and the difficulties of the particular administrative activity are important in determining whether a faute de service has occurred. As these elements have a comparative law dimension, further analysis will be postponed until we make the comparative law analysis in section 4. Our attention will now be turned to the phenomenon of graded fault in French administrative law.