3.2.1.4. Emergency Services

Traditionally, the courts required claimants to meet the standard of faute lourde in actions against the fire service regardless of the type of firefighting activity concerned.⁴¹⁷ Recently the courts have effected a volte face in this sphere. In Hannappes, the required standard of fault of firefighters was lowered to faute simple.⁴¹⁸ It is true that this decision was presaged by (p.113) the banishment of faute lourde in cases concerning other rescue services, so a common standard of faute simple now applies to actions against the emergency medical service (SAMU)⁴¹⁹ and coastguards.⁴²⁰ Nonetheless, the abandonment of gross fault in relation to the fire services was in stark contrast to an uncompromising assertion of faute lourde for the liability of firefighters in the earlier case of Sauvi.⁴²¹ Despite the lowering of the standard of fault from faute lourde to faute simple, it is likely that the courts will still be restrictive in determining the fault of the defendant fire brigade.⁴²²

3.2.1.5. Conclusion

An overview has thus been given of the main areas of administrative activity which are, or have been, affected by the stipulation of faute lourde. This analysis is not exhaustive, and other areas do exist in which faute lourde applies as the necessary level of fault. This is most notably the case of the prison service.⁴²³ We will now move on to examine the notion of faute lourde and analyse the reasons given by academics and the judiciary for the existence of graded standards of fault.

3.2.2. Defining Faute Lourde

Providing a definition of faute lourde is a difficult task.⁴²⁴ The lower courts have much discretion in the characterization of conduct sufficiently careless to constitute a faute lourde.⁴²⁵ In essence, the courts will refer to the various factors of which account is taken in respect of the finding of faute simple, which will be discussed in greater depth below.⁴²⁶

Faute lourde is commonly said to be simply an especially serious fault.⁴²⁷ CG Alain Seban has underlined the ‘flagrant nature’ of the fault, (p.114) observing that the proof of faute lourde ‘presupposes a gravely deficient operation of a public service; [so that] even when the activity is of a highly technical nature, the fault “jumps out at you” ’.⁴²⁸ Indeed, the ‘flagrant nature’ of the fault has long been one of its attractions: it avoids the judge having to scrutinize too closely sensitive administrative decision-making.⁴²⁹

Faute lourde may also arise, not only from seriously negligent actions of the administration, but also from unlawful decision-making. The nature of faute lourde comes into its own in respect of unlawful decisions. Derogating from the modern French administrative law premise of unlawfulness implies fault,⁴³⁰ only certain forms of unlawful decision-making will be considered wrongful.⁴³¹ Various factors will be taken into account in assessing the seriousness of the illegality. The specific head of unlawfulness is not conclusive. Motives and intention of the defendant authority⁴³² and the difficulty of the decision-making are relevant.⁴³³ Repeated unlawfulness has been significant, so that the sum of a series of illegalities amounted to an overall faute lourde in one case.⁴³⁴