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.