2. The Administrative Law of Liability

(p.30) It has been seen as a ‘miraculous’ paradox that the Conseil d’Etat, set up by Napoleon as a bureaucratic control on executive action in the interests of efficiency, instead developed into a forum for the hearing and settling of disputes relating to maladministration and created a special system of administrative law,⁹⁵ parallel to and distinct from the system of private law. While there remains disagreement as to the defining characteristic or characteristics of administrative law,⁹⁶ most French public lawyers would agree that the modern law combines ‘extraordinary powers’ (prérogatives exorbitantes du droit commun) and ‘extraordinary controls’ (sujétions exorbitantes).⁹⁷ The recognition that the administration has powers greater than and different from ordinary citizens is an important one, reflecting the idea drawn from the principle of the separation of powers that it is the role of the executive to govern and that it must therefore have the means available to do so. As I shall explain, the inherent power of the executive to govern is fully reflected in French law’s treatment of the powers exercised in the interests of health and safety, including as regards products, and contrasts markedly with the starting point of English law.⁹⁸

The ‘extraordinary’ controls on the exercise of these powers have two distinct aspects: control on the legality of actes and the imposition of responsabilité for both actes and activities. The first subjects administrative rule-making and ‘decisions’⁹⁹ to a requirement of legality which requires them to conform to a set of ‘general legal principles’(principes généraux du droit), which concern both the procedure and the substance of administrative actes, as well as to legislation itself.¹⁰⁰ No less important, however, has been the second, a system of special rules governing administrative liability; for although at first the construction of a special set of rules governing liability in the administration was viewed as necessary in order to protect its work from the inappropriately wide principles of private law (whether of delict or contract), subsequently the picture has become more diverse.¹⁰¹ So, while in some areas French administrative liability law still has a protective effect, in other respects it has gone further than private law or in different directions.

(A) Administrative extra-contractual liability

While the French administrative law of liability remains distinct from its private law counterpart, the function of this ‘autonomy’ has changed over the nearly two centuries since the Revolution; for it was conceived as a regime of privilege, but appears now as a regime of special, public responsibility.¹⁰²

Before 1873, the rule was that of a general State immunity, French doctrinal writers carrying on the approach of the ancien régime caught in the maxim, Le roi ne peut mal faire:¹⁰³ as Laferrière put it, ‘it is the nature of sovereignty to impose its will on (p.31) everyone, without the possibility of any claim for compensation’.¹⁰⁴ Only particular legislative support for the imposition of liability allowed an exception to be made to this position, as in the liabilities arising from ‘public works’ which grew up around a provision of 1799.¹⁰⁵ This State immunity was complemented by the existence of a personal immunity in public servants in respect of acts done in the performance of their duties, an immunity guaranteed by the Constitution of 1799.¹⁰⁶ This last rule, which was so disparaged by Dicey,¹⁰⁷ has had a remarkable tenacity in French law, surviving changes of constitution and forms of government, even being revived in 1873 after its formal repeal by the Tribunal des conflits on the basis of the principle of the separation of powers.¹⁰⁸

However, the Tribunal des conflits in the arrêt Blanco took a remarkable step in a new direction, recognising that the State itself could be liable for the deeds of the persons whom it employed in the public service even in the absence of specific legislative authority. In holding that the administration could be liable on the basis of fault for the injuries caused in a traffic accident, it declared that its liability was ‘neither general nor absolute…it has its own special rules which vary according to the needs of the service and the necessity to reconcile the rights of the state with private rights’.¹⁰⁹ Thus, the Tribunal des conflits’ consecration of the ‘autonomy’ of the liability of the administration was aimed at preventing the Civil Codes’ broad delictual liability for fault and vicarious liability of employers for employees¹¹⁰ from applying to the administration; but while this is indeed restrictive, it came in a decision which cautiously accepted liability.

Since Blanco the administrative law of liability has been extended considerably, in a number of ways.

First, there has been a gradual extension of the range of situations where fault will attract liability. In some situations, the courts have replaced an established immunity in the administration with the recognition of liability, as long as very serious fault (faute lourde) is established;¹¹¹ in others, and increasingly, they have replaced a requirement of faute lourde with one of faute simple.¹¹² They have also developed special, ‘public’ understandings of the notion of fault itself, holding that any ‘defective functioning of the administration’ from the point of view of the citizen¹¹³ and any illegality of an administrative acte, such as a decision or an enactment, themselves constitute faute de service so as to attract liability.¹¹⁴ Moreover, while individual public servants have in principle remained immune, the administrative courts have taken a (p.32) generous view of the necessary connection between the activities of the public servant and the ‘functioning of the public service’, so as to impose liability on the administration itself in respect of their actions.¹¹⁵

Perhaps even more remarkable, though, has been the creation of various bases of liability in the administration which do not require proof of fault in any of the above senses.¹¹⁶ These are as varied as the different understandings of ‘fault’ itself. The first example arose in 1895 in a case where a public servant had been seriously injured by a machine while working in a State arsenal. The Conseil d’Etat held simply that the State was liable for the consequences of the claimant’s injury because he had undertaken a risk of danger in the public service.¹¹⁷ This decision reflected the same concern that victims of the machine age should be compensated without the need to prove fault which in private law found expression in juristic suggestions that employers owed their employees obligations as to their safety under their contract of employment and which found judicial recognition in 1896 when the Cour de cassation accepted the idea of a general ‘liability for the deeds of things’ under article 1384 alinéa 1 of the Civil Code.¹¹⁸ But, unlike the private lawyers, the Conseil d’Etat was unfettered by the need to pin this new liability to any particular legislative provision and felt able to justify its decision directly on the notion of risk.

However, many other instances of the imposition of liability without fault on the administration have been developed by the Conseil d’Etat, each one with its own justification, ambit and rules. For our own concern of liability for products, the most obviously significant are those cases which recognise liability without fault where the administration’s things or activities are particularly dangerous and have caused an ‘abnormal harm’.¹¹⁹ However, perhaps most strikingly original (and ‘public’) in their basis are those cases where liability is imposed on the administration on the basis that its action in the public interest has caused a claimant particular harm, thereby upsetting the ‘equality of public burdens to be imposed on citizens’, an idea which is directly linked to the central constitutional notion of equality of citizens.¹²⁰ This has been applied to cases involving administrative actes (such as a ‘decision’ or règlement) which may therefore give rise to liability even if legally valid, such as the refusal of a local authority to remove squatters from the claimant’s property even after a court order.¹²¹ The law of administrative liability without fault lacks even the formal homogeneity of the private law, where it arises either from the ‘deed of a thing’ or of another person.¹²²

Another important area of liability may be found in the law governing ‘public works’.¹²³ In the modern law this consists of a complex of liabilities, differing in basis (proof of fault, presumption of fault or no fault) and according to the category of claimant in question (‘participant’, ‘user’ or ‘third party’).¹²⁴ It is a significant area of law for liability for products, even though at first sight it rests on a relationship with (p.33) immovable property. Strikingly, it governs the liabilities of some categories of private person, where they are involved in ‘public works’ it is an administrative law of liability, but not exclusively a law of liability in the administration.¹²⁵