Liability for Fault in Administration

• The question of the foundations of responsibility raises the issue of the causal event of responsibility.
• It is necessary to distinguish between liability for fault and liability without fault.

Liability for Fault

• Administrative liability is generally based on proving fault.
• The administration is only held liable if a service failure caused the damage for which the victim seeks compensation.
• Duez states that without fault of the public service, there can be no administrative liability.

Functions of Liability for Fault

• Liability for fault serves to sanction the administration's behavior, thereby regulating it..
• Delvolvé suggests that fault allows the administration to know its limits of action.
• However, legal texts do not define fault, granting judges considerable discretion in determining its existence.

Sanctioning and Regulatory Function of Liability for Fault

• Lochak states that the obligation to compensate punishes the faults committed.
• In the fault-based liability system, compensating the victim also condemns the administration for its wrongful behavior.
• Litigation regarding fault-based liability increasingly departs from the restorative function.
• The goal is to both stigmatize administrative fault and prevent future misconduct.

Moral Connotation of Fault

• Liability for fault has a moral dimension, implying disapproval of the administration's actions; it indicates a breach of duty.
• Liability for fault stigmatizes the administration's defective conduct.
• The sanctioning function of liability for fault aims to condemn the faulty administration.

Sanctioning Function of Liability for Fault

• Conseil D'état "Affaire du sang contaminé" in 1993 involved a claim for liability for fault, despite a legal compensation system for hemophiliac contamination victims.
• The victim's pursuit seeks not only compensation but also to stigmatize the administration's defective conduct
• The CE declared the State responsible for hemophiliac contamination because the minister delayed prohibiting distribution of contaminated blood, without needing to prove serious misconduct regarding blood transfusions
• The willingness to stigmatize the State's wrongful behavior was evident in the Mediator drug case (Conseil d'État, 2016) and the asbestos regulation case (Conseil d'État, 2020).
• Similar issues arose in litigation during the COVID-19 crisis.
• In TA Paris, 2020, plaintiffs sued the State for fault, but the lack of causality between the crisis and State failures prevented compelling the State to compensate COVID-19 victims.
• These actions highlighted and stigmatized the French State's misconduct, such as poor management of protective mask stocks.
• Conseil D'état "Ministre de l'éducation nationale c/ Giraud" in 1988 established that the administration's failure to replace a teacher in required subjects constitutes a service failure.
• The victim's compensation was a small amount, indicating that the judgment mainly aimed to sanction the State for failing to provide instruction and prevent future similar conduct.

Sole Intention to Condemn the Administration

• Benoit Plessix notes that administrative liability is sometimes "disconnected from the payment of compensation," with some authors referring to a "departure from the restorative function."
• Litigants increasingly seek solely to condemn the administration to stop its wrongful behavior, reflecting a sanctioning and regulatory function of liability for fault

Emphasis on Condemnation in Recognizing Past Harms

• This reflects a sanctioning function, condemning the administration for past actions.
• In Conseil d'État "Papon" 2002, the CE acknowledged a particularly severe fault by the French State in facilitating the deportation of Jews, serving a symbolic and moral function.
• Conseil d'État advisory opinion in 2009 indicated that symbolic reparation for the 2GM massacre was provided by Chirac's speech commemorating the Vel d'Hiv roundup.

Sole Intention to Condemn to Prevent Future Harm

• Liability "for the future" is a regulatory function, prompting the administration to cease its wrongful behavior.
• In TA Paris "Oxfam France" 2021, the plaintiffs in the "Affaire du siècle" sought not compensation but to stigmatize the State's climate inaction, aiming to end the conduct, thus fulfilling a regulatory function.
• The request for nominal compensation shows disregard for financial restitution
• Similar cases include air pollution (TA Paris 2023) and soil pollution (TA Paris 2023) cases.
• The requesters sought to avoid future harm by stigmatizing the State instead of receiving compensation for past damages, as evidenced by multiple lawsuits seeking only symbolic damages of one euro.

Counter-Example: State Liability Due to Laws Violating International Law

• While the CE can set aside implementing conflicting international law (Nicolo 1989), it generally does not accept engaging the State liability for violating international/European law.
• In Conseil D'état "Arizona Tobbaco et Phillip Morris" 1992, the court rejected the minister's refusal to raise cigarette prices based on French law, which conflicted with a European directive demanding price freedom.
• The CE held the State liable for fault but clarified that the implementing decree, not the law itself, was faulty.
• The administrative court avoids morally judging the legislature's work.
• The Gardedieu ruling aligns with this precedent.
• In Conseil D'état, "Gardedieu" 2007, the CE recognized State liability for a law conflicting with European law for the first time.
• The CE avoided using the term "fault," but allowed compensating all types of damages caused by an non-conforming law, suggesting that it is not liability for faut .
• This is a unique form of liability, falling between traditional fault-based and no-fault liability.
• The symbolic value of fault explains the judge's hesitance to attribute liability for fault to the legislature due to symbolic reasons and lack of moral judgment.
• Conseil D'état "Société Hôtelière Paris Eiffel Suffren" 2019 had the CE acknowledge State liability for unconstitutional laws identified through a QPC
• As in the Gardedieu case, the CE did not connect this situation to liability for fault, maintaining the unique nature of this liability regime.

Prevalence of the Liability System Based on Fault

• Liability without fault is only subsidiary in administrative law.
• When a victim simultaneously argues liability for and without fault, the judge first reviews claims based on administrative fault, and only if unsuccessful, considers the other argument.
• The dominance of the fault-based liability system is sometimes challenged in favor of greater protection for victims' rights.
• The vagueness of the fault concept grants the JA excessive discretion in accepting or rejecting liability claims.
• Victims face almost insurmountable difficulties, as they bear the burden of proving administrative fault.
• The imprecision actually extends the situations where administrative liability is engaged, rather than benefiting the administration.
• Fault will be established whenever the judge perceives the administration's behavior as inconsistent with its proper conduct.

Regulatory Function and Judicial Discretion

• Fault serves as a regulatory concept; accusing the government of wrongdoing means they went beyond what they were allowed to do, and acted in an erratic, atypical manner.
• Such a label gives the judge significant power to decide.
• No legal definition exists of what exactly constitutes fault, which is up to Judges to decide and up to their convictions.
• The standard is unlike "acting as a reasonable person would" that is used in the context of civil law.
• Administrative misconduct is about what the organization does, not about some person doing harm.

Assessing Wrongful Conduct Attributed to an Administration

• When an action (other than an explicit legal act) led to an adjudication of fault its more challenging to make that call
• When looking at whether that service was done with fault, there's no simple test for a regular person to apply - it's up to the judge!
• The judge will have to turn the question into one that aligns with goals of jurisprudence to determine whether there was fault.
• Fault is a means for preventing government responsibilities turning too systematic
• Fault definitions change what is deemed normal and abnormal; they set the tone for how governments govern.
• The notion of fault is so highly adaptable that it can signify simply failure to maintain public works or delays
• It might mean the government failed when deciding on something, passed on bad info, hurt someone during operation, or made a medical mistake
• These newly discovered faults show the judiciary holds those accountable in innovative areas

Pertaining to Education

• In 1988 when the CE heard Ministre de l'éducation nationale c/ Giraud, they saw it as a service fault to not give a replacement for months in mandatory subjects
• The resulting damages to the victim accounted for just 1/5 of typical wages.
• This reflected the sentiment that the main point was to hold accountable, to incentivize ending non-assured educational scenarios .

Violations of European Law

• In 1992, the CE heard Arizona Tobbaco et Phillip Morris and rejected the minister's reluctance to bump the price of cigarettes following European law, which sought free tobacco pricing.
• The CE will fault a country if there are European Violations; not because of the law, but the enforcement actions.
• According to Daniel Lochak, the 1992 legal action was meaningful because the principle mattered deeply and was symbolic of the compensation owed in future

Duty around Medical Info

• CE Consorts Telle in the year 2000 set precedent that medical authorities should be clear when advising a patient regarding surgery.
• Risks should be expressed if there's significant likelihood the patient faces dire consequences

Obligations Tied to Precautionary Principles:

• Per a ruling in CE "Ministre de l'Emploi et de la solidarité c/ MM. B.T.X, the executive branch needed to act more responsibly!
• The care they show when it comes to worker exposure and asbestos dangers counts as what's needed.

Climate Conditions:

• In TA Paris Oxfam France 2021 they decided inaction on climate issues counts as fault given the Paris accords.

Assessing Fault for Illegal Actions Taken by the Administration

• In cases where fault gets asserted after someone in charge has made a ruling that has harmed somebody, it's hard to decide fault because of how the fault relates to the illegal aspect of that ruling as related to procedure.

Equivalence between Fault and Illegality:

• This means 2 things.
• Conduct Only Constitutes Fault if Illegal; Not having been illegal means no fault. Of course, damages could still be addressed even if conduct wasn't determined fault, although conditions would be stringent.
• Any action deemed illegal may constitute fault, as far back as 1940 where CE offered guidance with Vuldy.
• Simple errors that occurred in the normal course don't trigger responsibility even had administration made some errors.
• Per CE Driancourt in 1973, CE shifted guidance and specified that an action could not be separated from fault.

Handling External Illegalities:

• Equivalence doesn't imply illegality automatically triggers some type of responsibility.

• Illegality can be external, stemming from a procedural or formal defect.

• Some explain differential handling by the indemnification arm to avoid second-guessing the validity of judgements.

• Described in CE Carliez 1981, parents sought approval from officialdom allowing their kid perform a theatre production that sought protecting kids' studies.

• The body ruled the move would break a procedural tenant but didn't deem its impacts rising to the level of "fault based responsibility.

• There just wasn't a good enough reason connecting the mistake and real suffering here.

• Carliez's reasoning gets used (to excuse mistakes) when establishing a lack between cause that the law targets in court.

• The CE makes its points in Société d'habitation à loyer modéré de la Réunion -2008.

• If any instruction means that action could have been legal despite mistakes in procedure then Bussiere would point it out by 2010.

• Carliez 2008 makes the final ruling clear as to why the action shouldn't be pursued legally after the ruling.

• The trouble with this pattern comes from the tendency favoring surface details which matters very little.

• Danthony set approach back in power with all those caveats just described that's sanctioned in court, not really covering whatever the legal framework specifies because from ground there is a more relevant lens .

• There's a vision to use power since 2011.

• Per CE Danthony says, actions of power overstate their bounds. There must be harm to indemnity if that would mean not being victim enough and unable determine.

• This form of analysis just gets left by when judging reasons on how liable.

• Say CE gets to hear something in 2015 and it involves someone illegally quarantined from bad procedure from Danthony's approach it makes CE hesitant and just doesn't seem fitting; there's a flaw.

• Say there was injustice that somehow caused more harm than it should, this ruling may seek finding out how to affect.

• The resulting bias of the action that can't follow usual legal norms can link causally those irregularities once verified it all matters.