3.2.1.3. Administrative Police

The sphere of administrative police in France covers a wide number of security and public order related activities, but is distinct from the sister activity of the judicial police, which covers the prevention and apprehension of criminal activity.⁴⁰² Liability in damages of the administrative police has traditionally been subject to a twin regime of faute lourde and faute simple. The latest cases indicate that heterogeneous standards of fault continue to apply.⁴⁰³

Various attempts have been made to give distinguishing criteria delineating the spheres of faute lourde and faute simple in respect of the administrative police. At one time, a distinction was drawn between administrative decisions and administrative activities or agissements.⁴⁰⁴ It was argued that faute simple was the test of breach in the former sphere, whereas the higher standard of faute lourde applied predominantly to (p.111) administrative agissements. This approach was reflected in some of the case law. Faute simple was applied to the administrative decision taken by a local authority to ban the showing of a controversial film.⁴⁰⁵ Contrariwise, the higher standard of faute lourde applied when police were sued for the death of a young man who had been violently ejected from a police station.⁴⁰⁶

This distinction attracted doctrinal disapproval as it provided little guidance when the body exercising police powers had failed to act in a situation in which it was open either to take an administrative decision or make direct physical intervention.⁴⁰⁷ Moreover, applying faute simple in a blanket manner to cases concerning administrative decisions deprived the courts of a potent means of controlling whether an illegality was serious enough to merit a finding of fault.

Another set of criteria came into vogue. This time a dichotomy was drawn between activities of planning or réglementation (measures of a preventive nature) and the implementation or execution of these measures.⁴⁰⁸ Thus in Peydessus, where a local authority was accused of poorly handling the consequences of a flood, the court contrasted the need to prove ordinary faute in relation to the ‘adoption of police measures designed to prevent accidents’ with the stricter requirement of averring faute lourde in relation to the ‘execution of the aforementioned police measures’.⁴⁰⁹

Other cases have adopted a variegated approach along similar lines.⁴¹⁰ In Delavallade, CG Piveteau defended this approach as follows:

Without entering into the doctrinal debate, it would seem to me that this distinction retains, if not a justification, at least a practical relevance in situations where it is possible to distinguish between two successive stages of police activity, the first concerning its conception, the second its execution. To introduce a distinction, a gradation in the preconditions which apply to each of these stages, appears to me, in a general way rather appropriate. Policing is the art of implementation. It is thus equitable to say that, where applicable, the administration is not exposed to the same rigours in the definitional phase as in the implementational phase.⁴¹¹ (p.112)

In turn, however, this dichotomy has been criticized for being inherently uncertain,⁴¹² and the courts have explicitly rejected it in some cases.⁴¹³ Nonetheless the distinction still has relevance,⁴¹⁴ even though many commentators now consider that the determining factor is how difficult or sensitive the impugned police activity actually is.⁴¹⁵

In comparative law terms, the division between réglementation and implementation does seem, at first glance, to echo the policy-operational distinction applied in English law.⁴¹⁶ On closer analysis, however, it becomes apparent that the parallels are only superficial: the character and effect of these dichotomies in English and French law are very different. The underlying premise of the policy–operational distinction is that there are certain issues which are not justiciable in a judicial forum. On the other hand, in French law, the delineation of réglementation and exécution is propounded in order to determine, not the ability of the court to adjudge a dispute, but the test of breach. Moreover, the sphere of French administrative activities labelled as réglementation is reputed to be less complex and thus suitable for a lowered standard of fault; the corresponding English law sphere of policy results in immunity. Thus, the effect of the twin distinctions in English and French law is opposite: a finding of réglementation favours the claimant in French law, whereas in English law a legal challenge of policy decisions in a damages action is bound to fail.