An administrative decision is a legal act that unilaterally emanates from an administrative authority or a private person in charge of a public service of an administrative nature and that modifies or refuses to modify the rights or obligations of the administered, regardless of their consent. Examples: refusal of a building permit, rejection of a residence permit.
It can also take the form of a decree, an order, or a circular.
It is possible to contest this type of decision regardless of its author or content if it does not constitute a simple opinion, information, or a mere declaration of intent formulated by an administration. Example: unfavorable opinion of a security commission.
The Motivation of the Decision
Before contesting your decision, it is advisable to verify that it is properly motivated. The Code of Relations between the Public and the Administration (art. L211-2) subjects certain individual administrative decisions (as opposed to regulatory acts) that have an unfavorable or derogatory character to mandatory motivation, in law and in fact.
The motivation must be clear, precise, adapted to the circumstances, and should not be limited to mentioning the law. The reasons for the decision may be indicated in an attached document.
The motivation of the decision must be communicated without delay except in cases of absolute urgency. If it is not communicated immediately, the interested party can request it within 2 months of administrative or contentious appeal.
In this regard, the Commission for Access to Administrative Documents (CADA), which is an independent administrative authority responsible for ensuring freedom of access to administrative documents and public archives, can be seized by persons who have been denied access to administrative documents, particularly a motivated decision.
The administrative judge can annul a decision if it is not or insufficiently motivated.
The Decision Requires the Implementation of an Adversarial Procedure
Moreover, except in cases where a request is being ruled upon, individual administrative decisions that must be motivated require the implementation of an adversarial procedure (art.121-1 Code of Relations between the Public and the Administration), which means that these decisions are only made after the interested person has been able to present written or oral observations (art. 122-1 Code of Relations between the Public and the Administration).
As an exception, the adversarial procedure does not take place in four situations (art. L121-2 Code of Relations between the Public and the Administration):
- In case of urgency or exceptional circumstances;
- In cases where the implementation of such an adversarial procedure would be likely to jeopardize public order or the conduct of international relations;
- When legislative provisions have established a specific adversarial procedure;
- For decisions made by social security organizations and by France Travail, except when they take measures of a sanctioning nature.
Article L211-2 Code of Relations between the Public and the Administration:
Natural or legal persons have the right to be informed without delay of the reasons for unfavorable individual administrative decisions concerning them. To this end, the following decisions must be motivated:
1° Those that restrict the exercise of public liberties or, in general, constitute a police measure
2° Those that impose a sanction;
3° Those that subordinate the granting of an authorization to restrictive conditions or impose constraints;
4° Those that withdraw or abrogate a decision creating rights;
5° Those that oppose a prescription, foreclosure or forfeiture;
6° Those that refuse an advantage whose attribution constitutes a right for persons who meet the legal conditions to obtain it;
7° Those that refuse an authorization, except when the communication of reasons could be likely to harm one of the secrets or interests protected by the provisions of a to f of 2° of article L. 311-5;
8° Those that reject an administrative appeal whose presentation is mandatory prior to any contentious appeal in application of a legislative or regulatory provision.
To contest the unfavorable decision, you have the option of exercising an administrative appeal and/or a legal appeal.
I. Administrative Appeal
Administrative appeal is a means of recourse that directly addresses the administration to re-examine a decision and rule again. In some cases, the administrative appeal may be mandatory before taking the matter to court. This is called a mandatory prior administrative appeal (Rapo). This is the case, for example, for tax disputes, foreigner-related issues, or full jurisdiction appeals.
The administrative appeal can take the following forms:
- A gracious appeal:
The gracious appeal is addressed to the author of the contested decision (mayor, prefect, academic inspector, for example). The gracious appeal can be requested in multiple situations.
Example: gracious appeal to the mayor following a refusal of a building permit.
- A hierarchical appeal:
The hierarchical appeal is addressed to the administrative authority superior to that of the author of the decision.
Example: a hierarchical appeal can be addressed to a prefect against a decision made by a mayor, or to the Minister of the Interior for a decision made by a prefect.
It is possible to file a hierarchical appeal without having first made an administrative appeal or without waiting for the response to the administrative appeal.
Deadlines and appeal processes:
To contest an administrative decision, you must act within the specified deadlines so that your request is not rejected. Generally, the appeal must be filed within two (2) months following:
- The notification of the contested decision, when it is an individual act of which the applicant is the recipient; or
- The publication in the case of a regulatory or individual act where the beneficiary is a third party (example: publication of an anti-parking decree).
The notification of the decision made against you must specify the deadlines and appeal processes. If this is not the case, these deadlines are not enforceable against you (Article R421-5 of the Administrative Justice Code), which means that you can still contest the decision even after the deadline, without however exceeding one year (Council of State, Assembly, July 13, 2016, 387763).
The gracious or hierarchical appeal provides an additional period to file a contentious appeal before the administrative court. Indeed, you have two (2) months to refer the matter to the administrative court after an unfavorable decision, but this period is interrupted by the administrative appeal and a new two (2) month period begins to run in case of refusal (Art. L411-2 of the Code of Relations between the Public and the Administration).
In case of failure of the administrative appeal, you can make a contentious appeal before the administrative judge.
Whether in the context of a gracious appeal or a hierarchical appeal, the administrative authority generally has a period of two (2) months to respond to your request.
- If you do not receive a response from the administration after two (2) months, it means that your request is accepted. This is what is called the rule of silence means acceptance (SVA).
Example: you contest a unilateral administrative decision in the context of an appeal filed on March 1st, the implicit decision of acceptance occurs on May 1st.
- However, there are exceptions where silence kept for two (2) months constitutes a rejection of the request. Example: the request concerns relations between the administration and its agents.
Administrative mediation
- When you have a dispute with a public service or an administration, you can resort to administrative mediation before taking the matter to court. For certain categories of decisions, prior mediation is mandatory before initiating proceedings before the administrative court. This may be the case if you are a civil servant or if your dispute concerns individual decisions made by France Travail (Decree No. 2022-433 of March 25, 2022).
- The role of the mediator is to help you initiate a dialogue with the administration to reach an agreement.
II. Contentious appeal (referral to the administrative judge)
- Unless there is an obligation to make a prior administrative appeal (Rapo), you can directly refer the matter to the administrative judge to contest an administrative decision.
- You can also refer the matter to the judge after the failure of an administrative appeal at the expiration of the two (2) month period.
How is the contentious appeal made?
The administrative judge can annul the contested decision.
A file must be prepared including:
- Your petition with the presentation of facts and legal arguments;
- The contested decision or the acknowledgment of receipt of your administrative appeal in case of implicit rejection;
- The supporting documents to substantiate your request.
The file can be sent by mail or deposited at the court registry. You can also submit your petition online via Télérecours citoyens when addressing the administrative court.
The assistance of a lawyer is not mandatory unless the dispute concerns a sum of money or a contract concluded with an administration or public body.
Jurisdiction of the administrative court
The competent court depends on the subject of the dispute: it may be the administrative court in whose jurisdiction the administration that made the decision is located; it may be another administrative court depending on the nature of the litigation, for example, regarding naturalization or an entry visa to France, the administrative court of Nantes has jurisdiction.
Depending on the decision, it is sometimes necessary to address specialized courts: these can judge at first instance and on appeal in specific areas. The National Court of Asylum, for example, judges appeals filed against decisions of the French Office for the Protection of Refugees and Stateless Persons (OFPRA) concerning asylum applications.
Emergency procedure
Referring the matter to the administrative court does not suspend the effects of the challenged decision. To avoid serious or irreversible effects, you can ask the judge to take an urgent provisional measure through a référé procedure. This can be an injunction or a suspension, for example.
Contesting the decision of the administrative court
If the decision of the administrative court is not in your favor, you can contest this decision. To do this, you must appeal to:
- The administrative court of appeal.
- Or in some cases, the Council of State.
The court to be addressed as well as the conditions are indicated in the notification letter accompanying the court’s decision.
The assistance of a lawyer before the administrative court of appeal is mandatory unless the dispute concerns a major highway violation.
The use of a lawyer at the Council of State is mandatory except in the following cases:
- Appeal for excess of power against an act of an administrative authority;
- Disputes in electoral matters;
- Appeal in cassation against a decision on pension and social assistance matters.
What to do in case of an unfavorable decision by the administration?
- Read carefully the decision of the administration you are contesting. It indicates the ways and deadlines according to which the appeal can be exercised.
- Make an administrative appeal (gracious and/or hierarchical) especially by registered mail with acknowledgment of receipt and keep proof of sending it, while respecting the indicated deadline.
- Try to reach an amicable agreement with the help of a mediator. In the case of disputes related to France Travail or if you are a civil servant, mediation may be mandatory before referring to the judge.
- If you have first made a gracious appeal, you can make a hierarchical appeal before referring to the judge.
- Two (2) months after your administrative appeal, in case of its failure, refer the matter to the administrative judge.
- In case of urgency, you can introduce a référé before the administrative judge.
- You can also refer the matter to the Defender of Rights and, in certain specific cases, to a specialized mediator, to find an amicable solution.
- You can call upon Equitas which will provide you with legal assistance.
APPLICABLE REFERENCES
Articles L410-1 to L412-8 of the Code of Relations between the Public and the Administration (general rules for administrative appeals); Articles L211-2 to L211-6 of the Code of Relations between the Public and the Administration (decisions concerned and motivation); Articles L231-4 to L231-5 of the Code of Relations between the Public and the Administration (exceptions to the rule of silence meaning acceptance); Article L232-4 of the Code of Relations between the Public and the Administration (communication of reasons for an implicit rejection decision); Articles R213-10 to R213-13 and articles L213-11 to L213-14 of the Code of Administrative Justice (mandatory preliminary mediation).
Decree No. 2022-433 of March 25, 2022 relating to the mandatory preliminary mediation procedure applicable to certain public service disputes and certain social disputes; Order of March 30, 2022 relating to the implementation of a mandatory preliminary mediation procedure applicable to certain public service disputes in the Ministry of National Education.
Council of State, Assembly, July 13. 2016, 387763.
