Self-Restraint of Discretionary Authority in French Administrative Law
| Date | 01 September 1994 |
| Published date | 01 September 1994 |
| DOI | 10.1177/1023263X9400100306 |
| Author | B.J.P.G. Roozendaal |
| Subject Matter | Article |
B.J.P.G. Roozendaal '
Self-Restraint of Discretionary Authority in French
Administrative Law
§I. Introduction
Like other legal systems French administrative law recognizes the phenomenon whereby
the administration lays down general rules for the performance of tasks incumbent upon
it. Whilst these general rules cannot be characterized as legislation in the true sense
of
the word, they can be characterized by the fact that they lack a legislative basis. They
can be compared with what in Dutch administrative law is referred to as, beleidsregels.
In this article I will discuss various aspects connected to the emergence of general rules
in French administrative law. General rules will be presented under terms such as
circulaire,
note
d'instruction,
instruction
de
service
and
directive,
although these are not
the only names under which general rules can be found in French administrative
practice. Therefore, the different terms under which general rules can be presented, will
be defined in §2.
Adistinction will have to be made between the formal classification of the document,
and the legal classification concerning the general rules written down in a governmental
document. Much attention will be paid to the legal significance of the contents
of
circulaires
and
directives.
What developments have taken place concerning the legal
classification
of
these rules and how did we arrive at the current legal classification?
Once it has been made clear what should be understood under a specific form
of
general
rule, attention will be paid to the legal significance of these rules. This will be dealt
with in §§ 3 and 4. In section 3 I will discuss the extent to which the general rules bind
the administration. Is it correct to say that general rules have a binding force, or is an
administrative body entitled to deviate from them? The possibility of subjecting these
general rules to judicial review will be examined in section 4. In what way can a citizen
*Researcher at the Depamnent of Constitutional and Administrative Law at the Erasmus University
Rotterdam. I would like to thank Prof.dr. R.M. van Male for his remarks and helpful suggestions
during the writing of this article.
MJ I (1994)
285
ISelf-Restraint of Discretionary Authority in
french
Administrative Law
challenge these rules or, when desired, enforce their application? It is also of great
importance to know what reasons are given in the French literature on administrative
law for the laying down of general rules. Is an explanation given for the particular legal
qualification of general rules?
Abrief summary of the conclusions will be given in the final section.
§2. General Rules in French Administrative Law
As already mentioned in the introduction, it is not only possible to find general rules
without alegislative basis in France, but also elsewhere. These general rules are not
legislation. In the definition
of
beleidsregels
given in article 1:3 (4)
Algemene
wet
bestuursrecht the
term'
general rules' is also used. It is stated that these rules are in no
way comparable to general rules laid down in legislation. It is not my intention in this
article to discuss Dutch administrative law any further, but this example does show that
general rules laid down without a preceding Act of Parliament or statute are not a rare
phenomenon which is only to be found in France.
In French administrative law one should make a distinction between general rules which
are actes
reglementaires
and other general rules. The authority to lay down
actes
reglementaires
rests upon a legislative power. When using the phrase 'general rules' I
will be referring to those general rules which are not actes
reglementaires.
A.
THE
DIFFERENT KINDS OF GENERAL RULES
General rules, not being
actes
reglementaires,
can be found under different names. One
can find the terms
circulaire,
instruction
de
service,
noted'instruction,
ordre,
noteand
directive.
One can find general rules in simple notes as well, without a specific name being given.
It is necessary to emphasize that the terms being used to describe these general rules
must be seen separately from the legal significance of the term. The legal significance
of the terms can be included under one broad term:
mesure
d'ordre
interieur.
The exact
meaning of this term is not easily determined and a universal definition cannot be found
in the literature on this subject. However, it is firmly established that the
mesure
d
'ordre
interieur contains rules dealing with the internal affairs
of
the administrative
bodies. It is, though, controversial whether certain internal actions like the
mesure
d'ordre interieur of an administrative body can have any external consequences. Some
authors claim that this is possible, whilst others believe the term should be kept purely
for internal actions, which do not have any external consequences. IThis last opinion
1. Sec Delvolvc, I'Acte administratif, (Sircy, 1983), 98, who is of the opinion that when third parties are
involved one cannot speak of
mesures
d
'ordre
interieur.
286 MJ 1 (1994)
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