Rights and Liberties, Liability of the French State and Judicial Review

On 24 December 2019 the Conseil d’Etat ruled that indemnification can be granted under French law on the ground of a prejudice suffered due to the application of a law ruled contrary to the Constitution by the Conseil Constitutionnel.

The Conseil d’Etat now leaves the door open to a new possibility for indemnification, within the framework of a QPC examination (Question Prioritaire de Constitutionnalité) or by application of Article 61 of the Constitution (subject to conditions). Based on the hierarchy of norms, this new kind of liability of the State is stated in three decisions dated 24 December 2019 (req. N°425981, N° 425983 and N°428162).

This new regime lives now next to the already existing liability due to the application of the law (responsabilité du fait des lois) based on equal treatment before public burdens (principe d’égalité des usagers devant les charges publiques).

A QPC is a question raised by a tribunal or a court aiming at determining the conformity of a law to the Constitution. Article 61-1 of the French Constitution states in this respect that during an instance before a tribunal or a court (private or public), a plaintiff can support the view that a law contravenes rights and liberties guaranteed by the French Constitution. In such a situation, the Conseil Constitutionnel can be seized after remand of the case by the Conseil d’Etat or the Cour de Cassation.

The general principle under French administrative law is that the French State can be sued simply because of the application of a law, provided that (i) the plaintiff has suffered a prejudice qualifying as important and specific (grave et special) and (ii) the law in question does not exclude the possibility for a plaintiff to be indemnified. This type of liability is applicable even if the French State is not considered as being in default with the application of the law and is named liability without misconduct (responsabilité sans faute de l’administration).

This possibility started in France at the beginning of the 20th century (Conseil d’Etat, case Couitéas – 1923), with the admission of liability without misconduct of the French State due to an administrative decision of non-enforcement of judicial decisions. In such a case, in the general interest, the French State may decide not to enforce a judicial decision, but in turn, has to indemnify the plaintiff. The ground for indemnification is the breach of equal treatment before public burdens principle (principe d’égalité des usagers devant les charges publiques). This principle is taken from the French 1789 declaration of the human rights and the citizen: each member of the community has to bear a certain amount of public burdens, but equal treatment shall prevail.

This principle has expanded thereafter with the admission of such a claim against a law (and not against an administrative decision only) by the Conseil d’Etat in 1938 (Conseil d’Etat, case Société la Fleurette – 1938). Such a case establishes that, in the silence of the said law, a plaintiff shall not bear a charge created by a law that he/she would not normally lie with, it being specified that, in the event of silence of the said law, such law shall not be considered as excluding the liability of the French State (Conseil d’Etat case Coopérative Agricole Ax’ion – 2005).

The liability of the French State can also be triggered due to its obligations to ensure the application of its international conventions, to indemnify all the prejudices resulting from the application of a law passed illegally because contrary to an international convention (e.g. ECHR) (Conseil d’Etat, case Gardelieu – 2007).

Now, according to the new decisions of the French Conseil d’Etat dated 24 December 2019, the other grounds for indemnification are (1) that the decision of the Conseil Constitutionnel does not decide that no indemnification shall be granted either (i) by excluding it expressly or (ii) by letting alive all or only a part of pecuniary effects caused by the law, that an indemnification would challenge, (2) the existence of a prejudice and (3) the link between the prejudice and the unconstitutional application of the law.

As a consequence, a plaintiff may be indemnified in the following conditions : (i) no express exclusion of indemnification by the Conseil Constitutionnel (ii) no all or part of pecuniary effects left alive by the Conseil Constitutionnel that an indemnification would challenge (iii) and (iv) a link between the prejudice and the unconstitutional application of the law.

According to the decision of the Conseil d’Etat, certain pecuniary effects of the law declared unconstitutional may prevail upon an indemnification. In this respect, it is reasonable to think that an administrative judge would apply an economic balance check between the necessity of indemnifying the plaintiff and the profit of letting alive all or only a part of pecuniary effects caused by the unconstitutional law. An economic balance check is already applied in other circumstances (expropriation with the application of the théorie du bilan coûts / avantages), by the Conseil d’Etat (Conseil d’Etat case Ville Nouvelle Est – 1971).

In this perspective, it is reasonable to think that the application of an unconstitutional law may survive if it is more interesting from an economic point of view. This mentioned carve out is quite important as it gives the possibility to the Conseil Constitutionnel to let alive, even if the law is declared unconstitutional, and then cancelled, parts of its pecuniary effects.

In addition to the breach of equal treatment before public burdens principle (principe d’égalité des usagers devant les charges publiques), it can be suggested that other principles may underpin this kind of liability: preservation of legal safety (sécurité juridique) and /or granted rights (préservation des droits acquis), and / or economic balance check, to take into account all the adverse financial effects that an indemnification would cause.

The claim for indemnification can obviously be barred by effluxion of time, it being specified that the 4 (four) years period during which such a claim can be brought only starts if the prejudice resulting from the application of the law may be known in its reality and its scope by the plaintiff, without the possibility for him or her to be regarded as ignoring the existence of his / her right to claim until the declaration of unconstitutionality.

The indemnification request has to be brought before the administrative judge (Tribunal Administratif). It remains however to be seen whether legal practitioners will try to use these decisions of the Conseil d’Etat to sue the French State before the judicial order (ordre judiciaire). Under French law, the French Conseil d’Etat is the highest court entitled to address administrative cases and is part of the administrative order (ordre administratif) whereas the judicial order (ordre judiciaire) is composed of judiciary tribunal and courts (jurisdictions judiciaires) and is competent for private matters. How dealing with the fact that a tribunal or a court may apply deliberately after the declaration of unconstitutionality a law previously declared unconstitutional outside the scope of the carve out of the ratio decidendi of the Conseil d’Etat? Would Article 141-1 of the Code de l’organisation judiciaire, which gives competence to the judicial order in the event of indemnification of a prejudice due to malfunction of judicial public service, apply? It is reasonable to think that such indemnification would not be allowed even if legal practitioners may wish to test it, and may be, open this possibility, for the residual adverse effects on the plaintiff of the law declared unconstitutional.

A lack of indemnification by the French State may also give rise to a lawsuit before the ECHR (European Convention on Human Rights), a plaintiff would still have in fine, the right to be indemnified on the basis of the application of a law declared unconstitutional. From a theoretical point of view, and on the basis of the hierarchy of norms, letting a country member of the European Council apply a law declared unconstitutional could raise issues.

Up to date 24 December 2019

Hogan Lovells advises Timberland Investment Resources Europe

Hogan Lovells has assisted Timberland Investment Resources Europe (TIR) in setting up its second investment vehicle in Luxembourg.

The firm helped TIR, one of the few private investment management firms that offers investment solutions in the forestry sector, to set up a Reserved Alternative Investment Fund (RAIF). The Hogan Lovells team advised on the initial structuring of the fund, including tax, through to the first closing of the fund, which occurred in January 2020 for circa EUR 75 million. The current target is to double this amount by the end of the year.

This fund is one of a few on both sides of the Atlantic investing in timberland and forestry assets.

This work shows the client’s continuous trust in Hogan Lovells. The firm previously advised TIR on the launch of their first Luxembourg fund (TIR Europe Forestry Fund) in 2016.

The Hogan Lovells Luxembourg team was led by Pierre Reuter (partner) and included Simon Recher (associate), Mathilde Soetens (trainee), with support from the London team led by Erik Jamieson (partner) and Ollie Phillips (associate). On the tax side, the team included Gérard Neiens (partner), Jean-Philippe Monmousseau (counsel), Pierre-Luc Wolff (senior associate), and Grâce Mfuakiadi (associate).

Steve Ryan Comments on Minneapolis Legal Market Growth

Steve Ryan was interviewed in a September 2019 Law.com article on trends in the Minneapolis legal market, in which he discussed the aspects that make Minneapolis an appealing location for firms to open new offices in.

Ryan cites access to a strong pool of talent and thriving business community as major draws for out-of-town firms.

“It’s a really underappreciated market when it comes to the economic dynamism of the geography,” said Steve Ryan. “It’s an incredible place for businesses to thrive. There’s incredible access to talent.”

Read the full article here.

Ten Clifford Law Offices Lawyers Named to 2020 Best Lawyers® list

Ten Clifford Law Offices lawyers have been included in the 2020 Edition of The Best Lawyers in America. Since it was first published in 1983, Best Lawyers has become universally regarded as the definitive guide to legal excellence.

Lawyers on The Best Lawyers in America list are divided by geographic region and practice areas. They are reviewed by their peers on the basis of professional expertise.

Several of the recognised attorneys at Clifford Law Offices have been listed in Best Lawyers for years. Robert A. Clifford has been listed as a Best Lawyer for over 25 years.

The following lawyers were named to the 2020 The Best Lawyers in America list:

  1. Richard F. Burke, Jr. (Recognised in Best Lawyers since 2015)
  2. Robert A. Clifford (Recognised in Best Lawyers since 1993)
  3. Bradley M. Cosgrove (Recognised in Best Lawyers since 2019)
  4. Sean P. Driscoll (Recognised in Best Lawyers since 2018)
  5. Kevin P. Durkin (Recognised in Best Lawyers since 2011)
  6. Keith A. Hebeisen (Recognised in Best Lawyers since 2011)
  7. Shannon M. McNulty (Recognised in Best Lawyers since 2015)
  8. James C. Pullos (First year recognised in Best Lawyers)
  9. Henry Simmons (Recognised in Best Lawyers since 2019)
  10. Robert P. Walsh (Recognised in Best Lawyers since 2018)

“Best Lawyers was founded in 1981 with the purpose of highlighting the extraordinary accomplishments of those in the legal profession. After three decades, we are proud to continue to serve as the most reliable, unbiased source of legal referrals worldwide,” says CEO Phillip Greer.

About Clifford Law Offices

Clifford Law Offices is ranked as one of the top law firms in Illinois and the country. They are recognised leaders in aviation litigation, complex personal injury, wrongful death cases, medical malpractice, products liability, premises liability and transportation litigation. Clifford Law Offices also has a reputation in class action litigation, whistleblower cases and commercial litigation cases.

Singapore: the International Convention on Mediation

The signing ceremony for the United Nations Convention on International Settlement Agreements Resulting from Mediation (“Singapore Convention on Mediation”) was held on 7 August 2019 in Singapore.

There is a great expectancy by the players involved in internacional commercial disputes concerning what really wait from this point in the mediation international scenario.

It is true that the Covention is a milestone. An international convention is very likely to bring us various benefits, and contribute with the development of mediation as an adequade method of dispute resolution in the international arena. Many users are expecting the same positive effects that New York Convention has brought to arbitration.

The text of the Convention gives a wide interpretation of the term Mediation and sets grounds under which the recognition and enforcement of the agreement could be denied by State courts.

It seems there will be no more escuses not to consider Mediation as an option for the ones who are involved in actual ou potential conflicts.

Singapura is giving us the example, by leading an International Mediation Competition during the week of the Singapore Convention signature, and, thus, putting together many of the young generation representatives, that will be soon dealing with international dispute resolution.

AVELLUM successfully represents the client in GAFTA appeal

The GAFTA Board of Appeal satisfied in full the Client’s claim of approximately $150,000 (USD) seeking compensation for damages specified in a washout agreement that were caused by the failure to comply with the contract.

A washout agreement is a settlement agreement by which a party seeks to terminate the contract, without declaring a default, with compensation paid by the party who refuses to fulfil the contract. Typically, the compensation is the difference between the contractual price of the goods and the market price of the goods on the day of such a refusal.

The question of whether the parties concluded a washout agreement arises more and more often in trade disputes and has become the “cornerstone” of the case.

Iryna Moroz, partner of AVELLUM, commented as follows: “Our biggest challenge was that the parties discussed the agreement verbally through brokers. In addition, there were no formal labour or contractual relations between the representative of the counterparty and the company represented by him. These circumstances served as a ground for the counterparty to challenge the conclusion of the contract.

However, English law is flexible as to the form of a contract, which can be concluded either verbally or in writing using all possible means of communication. The authority of the company’s representatives is presumed in English law. That is why the existence of formal labour relations or other corporate restrictions in no way affects the possibility of concluding a contract.”

The AVELLUM team successfully proved that the parties had actually agreed the washout agreement verbally through the broker. Furthermore, arbitrators confirmed the general position of English law that any person who represents a company may enter into a contract, regardless of his or her position in the company and the existence of formal labour relations.

The AVELLUM team was led by partner Iryna Moroz with support of senior associate Dmytro Koval.