Decision-making procedures of the Council of State
⚖️ Decision-Making Procedures of the Council of State
🏛️ I. What is the Council of State?
The Council of State is a high-level advisory and/or judicial body in several civil law countries. While structures differ by country, the core roles usually include:
Advising the executive (government) on legislative and administrative matters
Reviewing administrative acts and ensuring their legality
Acting as the highest administrative court in many systems
📚 II. Decision-Making Structure
| Element | Description |
|---|---|
| Composition | Typically includes Presidents, Vice-Presidents, Section Heads, and Counsellors (senior legal experts or former judges/ministers). |
| Divisions/Sections | Organized into Judicial Sections and Advisory Sections. In France and the Netherlands, they are distinct; in Finland, they work under the administrative court system. |
| Types of Procedures | 1. Advisory (e.g., giving opinions on draft laws) 2. Judicial (e.g., reviewing administrative acts, hearing appeals from lower administrative courts) |
| Hearing Format | Involves written submissions, review by reporting judges or rapporteurs, deliberations in chambers or plenary sessions. |
| Deliberation | Decisions made through collegial deliberation, often involving majority voting. Dissenting opinions may or may not be published. |
| Binding Nature | Judicial decisions are binding; advisory opinions are not binding but carry strong persuasive authority. |
🌍 Country-Specific Highlights
🇫🇮 Finland: Council of State (Valtioneuvosto)
Refers to the Government (Cabinet) itself.
Finland does not have a judicial Council of State but has a Supreme Administrative Court (KHO) which functions like France’s Conseil d’État judicially.
Decision-making is collegial and based on legality; all proposals go through legal scrutiny before being approved by ministers.
🇫🇷 France: Conseil d’État
Acts both as the supreme administrative court and legal advisor to the executive.
It reviews the legality of executive decisions, decrees, and regulations.
In judicial matters, it hears appeals from administrative tribunals and appellate courts.
Uses rapporteurs, public rapporteurs, and advisory opinions before deliberation.
🇳🇱 Netherlands: Raad van State
Dual function: advisory on legislation and judicial in administrative disputes.
Composed of Councilors, the King (formal head), and a Vice-President (who leads operations).
Decisions are made after written and oral proceedings, and judgment is rendered by chambers.
⚖️ III. Key Case Law Involving the Council of State (France & Netherlands)
1. France – Conseil d’État: Arrêt Blanco (1873)
Facts:
A child was injured by a government-run tobacco factory. The question was whether the state was liable under private or public law.
Decision:
The Conseil d’État ruled that state liability is governed by public law, not the civil code.
Significance:
Established administrative law as separate from private law.
Gave the Conseil d’État authority over cases involving state liability.
Foundational to French administrative jurisprudence.
2. France – Canal, Robin et Godot Case (1962)
Facts:
President De Gaulle issued an ordinance to establish a special court for political crimes. The court issued death sentences. Victims appealed to the Conseil d’État.
Decision:
The Conseil d’État annulled the ordinance for bypassing legislative scrutiny and violating legal guarantees.
Significance:
Asserted judicial control over executive ordinances.
Showed Conseil d’État’s role in safeguarding constitutional balance.
3. Netherlands – Raad van State: Wilders v. Minister of Security and Justice (2014)
Facts:
Dutch politician Geert Wilders was denied access to classified security documents.
Decision:
The Raad van State held that the denial was proportionate, given the national security interest, but reviewable under administrative law.
Significance:
Demonstrated the Raad's function in balancing individual rights with state interests.
Confirmed that even security-related decisions are subject to judicial oversight.
4. Netherlands – Case on Wind Turbine Regulation (2019)
Facts:
Citizens challenged a new zoning plan allowing wind turbines near residential areas due to health and environmental concerns.
Decision:
The Raad ruled that the national regulation lacked adequate environmental assessment, violating EU directives.
Significance:
Reinforced the Raad’s authority in EU law compliance.
Highlighted environmental and administrative accountability in regulatory decisions.
5. France – Association AC! v. Prime Minister (2004)
Facts:
An association challenged a new regulation affecting undocumented migrants. They requested suspension and retroactive annulment.
Decision:
The Conseil d’État recognized for the first time the possibility to limit the retroactive effect of annulments to prevent legal chaos.
Significance:
Introduced "temporal modulation" of administrative decisions.
Strengthened the Conseil’s capacity to balance legal certainty with justice.
6. France – Mme Duvignères v. Prime Minister (2002)
Facts:
Concerns a ministerial circular that indirectly created binding obligations despite being labeled as "non-binding."
Decision:
The Conseil ruled that if a circular creates general binding rules, it is reviewable and potentially illegal.
Significance:
Limited the executive’s use of informal regulation.
Emphasized transparency and legality in rule-making.
7. Netherlands – SyRI Case (2020)*
Facts:
The Dutch government implemented SyRI, an algorithmic risk profiling system to detect fraud in social welfare.
Decision:
The Hague District Court (supported by the Raad van State's advisory reports) struck it down for violating the right to privacy and lack of transparency.
Significance:
Major judgment on algorithmic decision-making and digital rights.
Marked a critical point in modern administrative law and digital governance.
🧾 IV. Summary of Legal Principles from the Case Law
| Principle | Explanation |
|---|---|
| Separation of Public and Private Law | (Arrêt Blanco) established distinct state liability rules. |
| Judicial Oversight of Executive Acts | (Canal Case, Mme Duvignères) assert that executive decisions are legally reviewable. |
| Balance Between Rights and Public Interest | (Wilders, SyRI) show how rights are balanced against national priorities. |
| Environmental and EU Law Compliance | (Wind Turbines Case) affirms compliance with EU directives. |
| Legal Certainty and Temporal Modulation | (AC! Case) allows courts to limit retroactive effects to maintain order. |
📌 V. Conclusion
The Council of State in different jurisdictions plays a critical role in legal governance, blending advisory and judicial responsibilities. Through landmark rulings:
They uphold the rule of law.
Act as a check on executive and legislative actions.
Ensure that administrative decisions respect individual rights and legal frameworks.
Each country’s Council of State reflects its own constitutional structure, but they share a commitment to fair, transparent, and legally grounded public administration.
RELATED Blog
0 comments