In 1994, Susan Rose-Ackerman asked the
following provocative question: American administrative law under siege: Is Germany
a model? (107 Harv. L. Rev. 1279 (1994), also available here). She noted: "The American regulatory state is under attack. Economists
criticize the irrationality of substantive policies. Political scientists
attack administrative policymaking and implementation as cumbersome,
disjointed, and adversarial. Law professors argue that the administrative
process is legalistic, time-consuming, and ineffective. Commentators, including
some now on the federal bench, argue that judicial scrutiny has induced agencies
to make fewer rules and to seek less accountable ways of making policy. . . . The
criticisms have built to such a crescendo that the system seems in crisis"
(internal citations omitted). To evaluate the debate over American
administrative law, the article contrasted the US system with Germany's quite different
structure and concluded that "appearances are deceiving. Although reform is
needed, many critics have overstated their case. The most popular reform
proposals would destroy much of value in the American system."
On the occasion of the recent publication of the 2011 Public
Report of the French Conseil d'Etat with the interesting title "Consulting
differently, participating effectively" (Rapport
public 2011: Consulter autrement, participer effectivement), I would like
to suggest that we are witnessing what could be called a reverse US-French
administrative rapprochement: that is to say, a noteworthy transformation of certain
aspects of the French administrative model seemingly in a direction recalling
the US model. This idea will sound controversial: after all, the French droit administratif model and the US
common law model (coupled, however, with the fundamental 1946 statute, the
Administrative Procedure Act) developed as two distinctive -sometimes opposing-
systems presenting their own historical particularities. This original divergence,
I would argue, does not challenge the very basis of the latest developments suggesting
an administrative rapprochement. Nevertheless, it is a useful reminder, as Susan
Rose-Ackerman's article also suggests in a different context, that a clear-cut "siege-solution
model" might oversimplify things, and offers a cautionary note on what foreign experiences
might teach us.
I hope to take up some of these questions in future posts,
but I would limit this inquiry here to two aspects drawn from the Public Report
of the Conseil d'Etat: the proposed expansion of impact assessments (études d'impact) and the codification of
the non-contentious administrative procedure (procédure administrative non contentieuse), i.e., the procedure
within the administration and not before courts. [The full version of the
Public Report is not available online, and a paper version will become
available after July 8; however, links to the principal proposals of the
Conseil d'Etat and a Q&A document are available here]
Pursuant to article 39 of the French Constitution (as
amended in July 2008) and Organic Law No. 2009-403 of 15 April 2009, government
bills must be accompanied by an impact assessment (IA). This law sets out in
detail in article 8 the content requirements to be met by these studies: The
impact assessment shall evaluate the economic, financial, social and
environmental consequences as well as the financial costs and benefits expected
from the provisions of the bill. This language is similar to the US model of
cost-benefit analysis (CBA) accompanying major regulations. Two noteworthy
differences between the French impact assessment system and the US CBA model:
the latter places an emphasis on "net-benefit maximization," while the former explicitly
attempts to accommodate social and environmental considerations, in other
words, includes (political) value judgments. Furthermore, CBA is required prior
to the adoption of major regulatory policies, whereas in the French system, IAs
pertain to legislative policy since the statutory requirement is only that they
accompany bills.
In its 2011 Public Report, the Conseil d'Etat seeks to
bridge this gap by proposing the gradual expansion of the IA requirement to also
cover decrees adopted in application of statutes or in the exercise of the
autonomous regulatory powers of the executive. In other words, if adopted, this
proposal would now introduce a French version of regulatory CBA. One could
welcome this potential development on the grounds that it is precisely in the
regulatory arena, where regulatory measures are of a more technical nature than
are general statutes, that the net-benefit maximization promise of CBA appears
more appealing. However, such a development would also bring to the fore the
cautionary tales drawn from the US experience; indeed, US scholars have pointed
to measurement difficulties associated with CBA as well as to the flaws and
limitations of this model that render it an inappropriate metric in several
policy areas (for some recent examples, see Douglas Kysar, Regulating from
Nowhere: Environmental Law and the Search for Objectivity (2010); Susan
Rose-Ackerman, Putting Cost-Benefit Analysis in Its Place: Rethinking
Regulatory Review, 65 U. Miami L. Rev. 335 (2011)). Therefore, in expanding IA
to cover administrative policymaking France need also be conscious of the inherent
limitations of this approach as showcased in the US experience.
The second focal point of the Public Report for our purposes
concerns the organization of consultation processes. As our previous post explained, France has had its share of experimentation with processes
purporting to solicit public input and bring the administration closer to the
citizens: public inquiry (enquête
publique), public debate (débat
public), deliberation (concertation).
These processes, however, do not reflect a holistic approach to citizen
participation in public decisionmaking. The Conseil d'Etat similarly
acknowledges this fragmentation and highlights the need for the rationalization
and the coherent and effective organization of these processes. It therefore
proposes the adoption of a statute-code (loi-code)
"related to the principles of deliberative administration" that would include
the guiding principles of open consultations. This would not constitute a mere
codification of existing provisions, but the legislator could insert new
solutions. The Conseil d'Etat seems to favor open consultations earlier in the
decisionmaking process to the late consultation of special consultative
administrative bodies that it finds to be too numerous. To this effect, the
Conseil d'Etat refers to article 16 of the recent "Warsmann law" (see our
previous post for a more detailed description and assessment of this provision) which it describes as an "ambitious" and "quite radical" measure. All in all,
the reform proposals of the Conseil d'Etat reflect significant aspects of the
US model: the need for codification of the non-contentious administrative
procedure in the "example of other countries" (the US Administrative Procedure
Act is not explicitly mentioned in the documents that are currently available,
but it would be safe to assume that it is cited in the full report); a
preference for open public consultations; the use of the possibilities opened
up by the internet to carry out these processes.
However, in the promotion of these notice and comment-like
processes, one issue stands out: the role of judicial review. The Public Report
refers to article 70 of the Warsmann law, whereby "when an administrative
agency, before taking a decision, consults an administrative body, only the
irregularities susceptible to have exercised an influence on the direction of
the decision... can be invoked against this decision. This provision similarly
applies to open consultations carried out in application of article 16 of this
law." According to the Conseil d'Etat this provision tends to reinforce legal
security by limiting the cases of invalidation of administrative acts issued
after consultation. However, according to the highest administrative court, article
70 comes with problems of its own in that it assigns to the judge an essential
but difficult role. In the words of the Conseil d'Etat: "In fact, how can we
determine and appreciate the influence of the irregularity on the decision? The
formulation ‘only the irregularities susceptible to have exercised an influence
on the direction of the decision... can be invoked against the decision' lead the
judge to reconstruct the chain of events and verify that the agency, even
without the error it committed, would have in any event taken the same
decision. Nevertheless, confronted with a consultative process that is often
complex and long, the judge is led to assume the responsibility of
hierarchizing in view of the diversity of the factual circumstances between the
essential and the accessory. This is an enterprise that resembles more the full
jurisdictional control (contrôle de plein
contentieux) than that of excess of power (excès de pouvoir). The judge is placed in a position of
subjectively evaluating intentions rather than objectively pointing out
irregularities. ... From now on, a substantial flaw is one that would have a real
effect on the content of the decision, a link which is very difficult to
establish." Therefore, the Conseil d'Etat proposes a "more objective
conception of the scope of irregularity that would take into account the length
and complexity of the procedure, the nature of the irregularity notably in view
of the guaranties for interested and third parties and the general interest
attached to the contested activity, according to an approach balancing the
risks and the advantages."
Objections could be raised as to the "objective character"
of the alternative standard of judicial review that the Conseil d'Etat proposes
in that it seems to introduce criteria that call for the evaluation of the
quality of the consultative process. However, the latter is inextricably linked
with the substantive issues that this process concerns, so it would at any rate
call for some sort of substantive assessment on the part of the judge. However,
the key issue here is different: irrespective of the interpretation adopted,
article 70 of the Warsmann law purports to limit "judicial excesses" in the
vindication of participatory processes. To use a vocabulary that would sound
familiar to US scholars, the Warsmann law and the Conseil d'Etat clearly seek
to avoid a "hard look doctrine" à la française and constrain the role of the
judiciary in examining policy and procedural choices made by the agency. This
expressed choice is in sharp contrast with the US experience where courts
beefed up the provisions of the APA and were considered as an important guarantor
of administrative accountability.
But then this is the most interesting point of comparison:
the administrative rapprochement that we talked about in the introduction does
not, at least at the initial stages of the institutional design, lead to a full
convergence of the two models. Will this piecemeal borrowing lead to a
different development of participatory processes in France? If so, would this
divergent development be attributable to the lack of an equally robust -or,
rather, searching- judicial review or more generally to the different French
administrative culture -or is the lack of a strong judicial review of
participatory processes itself a function of the French administrative culture?
Differently put, and to echo the terms of a fundamental question of comparative
law theory: if we accept the possibility of legal transplants, and treat open
participatory processes as such a transplant, will the functions it will
develop hinge on the organism within which it will operate? In a related vein, might
it fail due to the fact that the whole system (participatory processes and strong judicial guarantees) was not
transplanted into this new environment? It is too early to provide any
definitive answers, but the developments in the French administrative system
are certainly an interesting case study for comparative administrative law.