3.2.3. Theoretical Foundations of Faute Lourde

In the past, the introduction of a heightened standard of fault was perceived as a useful tool for reducing the immunity of the administration.⁴³⁵ This has now changed. Faute lourde is no longer seen as a proclaimant tool, but is viewed as a tool for restricting the scope of liability. Deguergue writes that ‘all the authors agree that the principal function of faute lourde is to lighten the liability of public bodies’.⁴³⁶

This limiting function is underpinned by a variety of policy concerns. Those spheres subject to the faute lourde precondition are regarded as especially complex, difficult, or ‘delicate’⁴³⁷ areas of administrative activity.⁴³⁸ (p.115) Thus, the courts take into account the fact that ‘the police must face sensitive situations which require swift decisions with the risk of drastic consequences’.⁴³⁹ Judicial intervention on restricted grounds accords a certain ‘margin of manœuvre’ to public authorities.⁴⁴⁰

The use of faute lourde is justified in other ways. In the regulatory and supervisory spheres, judicial fears of influencing the exercise of discretionary powers⁴⁴¹ or second-guessing decisions on technical matters have been allayed by the application of faute lourde.⁴⁴² Administrative judges are reluctant to substitute their view for that of the primary regulators, and thus they ‘largely defer to [the regulators'] view of the appropriateness of the control—the decisions and measures to be taken’.⁴⁴³

Similarly, deference to the ‘sovereign’ powers of the administration to levy tax has been seen to underpin judicial restraint vis-à-vis tax authorities.⁴⁴⁴

A variant of the common law fear of ‘defensive practices’⁴⁴⁵ has been invoked to justify the application of faute lourde.⁴⁴⁶ It has been argued that the running of the administration would be adversely affected by damages liability based upon faute simple.⁴⁴⁷ Representative of this view is Chapus' warning against a blanket standard of faute simple:

Administrative authorities might be held back from acting with the speed that is sometimes required for fear of committing a fault and thus being the cause of damages liability. In other words, the risk of too frequent an imposition of liability would translate into a certain reluctance to act.⁴⁴⁸

(p.116) This ‘defensive practices’ concern has been particularly predominant in the regulatory sphere. Fonbaustier has explained the application of faute lourde as a means for avoiding the impairment of the functioning of regulatory authorities:

Shouldn't the autonomy accorded to these bodies also entail that they should be able to act—or refrain from acting—with peace of mind and thus, due to the requirement of a faute lourde, to a degree be spared the effects of a Damocles' Sword which would paralyse the exercise of their functions?⁴⁴⁹

Professor Frison-Roche has argued that the recent Conseil d'Etat decision, Kechichian,⁴⁵⁰ concerning the liability of the state for banking supervision, was underpinned by similar policy considerations:

[T]he proper regulation of a system necessitates a dynamic supervisory authority. If an ordinary fault is sufficient to give rise to liability, [the authority] will be tempted to act over-cautiously: the need for a regulatory authority to act boldly means that its activities must not held back by the possibility of liability which is too easily admitted.⁴⁵¹

This ‘defensive practices’ policy concern has predominantly been expressed by academic commentators. However, it has on occasion been openly accepted by the judiciary. CG Rivet famously explained the ‘policy’⁴⁵² of protecting the police against actions in damages as follows: ‘[i]n order to fulfil the difficult task of maintaining order on the streets, the police must not have their activities hindered by the threat of complicated litigation’.⁴⁵³ In a recent case concerning the liability of the ordinary (non-administrative) judiciary, which is subject to the statutory requirement of proof of faute lourde,⁴⁵⁴ an Avocat Général of the Cour de Cassation⁴⁵⁵ declared that one of the underpinning justifications of the statutory limitation was ‘the protection of the independence and freedom of thought of the judiciary, who might be hampered [in their judicial work] or rendered over-cautious for fear of incurring liability and engaging state funds’.⁴⁵⁶

(p.117) Finally, a concern which has influenced the doctrinal writers is the desire to limit the drain on public resources. Touchard has declared that ‘the administrative law judge is a protector of public funds’.⁴⁵⁷ In the regulatory sphere, Cliquennois records that gross fault has been used to protect public finances. An action in damages against the ‘deep-pocketed’ state regulator is often more attractive than one against the regulated body. The obstacle of gross fault avoids the burden of liability being too readily transferred from the controlled—often the primary and real wrongdoer—to the controller.⁴⁵⁸ Similarly, Fonbaustier records in his study on state liability in the regulatory sphere that:

[O]ne should not forget that the Conseil d'Etat is also in a certain manner the ‘protector of public funds’. It is not the requirement of a faute lourde per se but rather the restrictive interpretation [of that notion of fault] made by the administrative judge which allows him, by raising the level of graded fault, to reduce the number of findings of liability of the state and consequently [reduce] the financial burden weighing upon it.⁴⁵⁹

Despite these reasons for the continued use of faute lourde, the administrative courts, urged strongly by the doctrine, have set in motion a ‘decline in the use of faute lourde’.⁴⁶⁰ Prior to charting the most recent manifestations of this decline—and its consequences—it is pertinent to examine the underlying reasons for this trend.

Primarily it has been argued that faute lourde gives a negative impression of accountability. It leads to the administrative judge being ‘suspected of indulgence towards the administration’.⁴⁶¹ Injured parties perceive faute lourde ‘as a sort of presumption of immunity which creates an obstacle to justice being done’.⁴⁶² Secondly, commentators have rejected the fear of defensive decision-making. It has been argued that surgeons and firemen will not change their decision-making ‘in the heat of the moment’: there was little risk of them being personally liable.⁴⁶³ Thirdly, the administrative judiciary has been criticized for protecting state finances:

(p.118) Should the administrative judge systematically prioritise and protect the finances of the State…? Is [the administrative judge] still so marked by its history of gradual extrication from the so-called active administration to develop into the judicial arm, that he must systematically distance himself from the very concept of state liability? This attitude does not relate to that of a modern administrative judge.⁴⁶⁴