BCL Law Notes Comparative Public Law Notes
A collection of the best BCL notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through applications from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor". In short, these are what we believe to be the strongest set of BCL notes available in the UK this year. This collection of notes is fully updated for recent exams, also making them...
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France: Review of Law & Fact
Internal legality
Substitute judgment on all internal legality matters
No error of law<>fact dichotomy — review both in the same way
Normal power <> discretionary powers
Historical overview
Violation directe de la loi original basis for challenging error of law
Error of law developed
Error of law expanded towards facts
Qualification of facts subject to review by 1914
Then finally error of fact
Manifest error developed in 1960s
Positive law
Grounds
Open in all cases — but quite narrow
Violation directe de la loi (breach of the Constitution)
Error of law
Error of fact
Qualification des fait
Détournement de pouvoir (misuse of power)
Further grounds open depending on
If tied power — Review for qualification of facts
If discretionary power — Manifest error / proportionality (of facts or of law)
General grounds — narrow & for straightforward cases
Violation directe de la loi (Constitutional breach)
Rare — usually breach of Constitutional principle or other very important norm
Protected for symbolic value — and as threat of damages actions
EG 2004 — refusal by PM to implement legislation concerning NHS tariffs — refusal to implement challenged overturned as violation directe de la loi
Art 21 requires PM to implement all legislation
Error of law
Construed narrowly fundamental error of law
Not misinterpretation of text
EG
Basing decision on legislation that has been repealed or is invalid
Basing decision on incorrect criteria — eg legislation that applies to cars applied to motorbikes
Incorrect legal basis — basing decision on incorrect statute
Error of fact
Where underlying facts wrong
Camino (1916) (prefect suspended mayor for mishandling affairs — had made undertakers carry coffin through dodgy route quashed – no truth in story — insufficient basis – improper exercise of discretion)
Detournement de pouvoir (Misuse of power)
Narrow — using power for aims that are alien to objectives of legislation — usually involves element of fraud
Akin to misfeasance in public office
Pursuing public interest different from that intended by legislation
Boosting public finances – Beauge (1924) (order prohibiting dressing & undressing on beach purpose = to promote municipal bathing establishment <> not public decency)
Pursuing private interest not permitted by legislation
Of public official – Rault (1934) (R rented out pianola — mayor regulating holding of dances – purpose = stop work avoidance <> encouraging patronising of own personal village Inn)
Public interest must be dominant purpose & public interest must be served — if so doesn't matter that some private interest also served
EG decision to build road through certain route to benefit Peugeot factory — Peugeot had partially financed project yes, but public purpose dominant & served — not quashed
Particular grounds — depending on nature of discretion
= difficult cases separated from the above
Competences liées — Qualification des faits (characterisation / application of law to facts) [referred to as “normal control”]
Review of qualification – application of law to facts – involving evaluative judgments
Established by Gomel (1914) (power to prohibit construction if required to preserve view of architectural value – building would obstruct view of Place Beauveau CE considered that Place was not of ‘architectural value’)
Framed as protection of property rights — freedom to deal with own property shouldn’t be unduly restricted
UK – Re Ripon Housing Order; ex parte White & Collins (1939) (power to acquire part of private park – acquired land court considered whether land was a private park)
Dame Ebri (1975) (whether particular landscape formed ‘picturesque’ site — if so, restrictions applied as to how site could be dealt with different applications of “picturesque” — narrow definition from legislative intent —CE’s view in advisory capacity would have taken into account site itself & directly neighbouring lands that frame it — Minister’s definition took into account full landscape provided it had continuity)
CE went to inspect site — good example of inquisitorial tendencies
Shows CE very close to reviewing merits of decision
In France, claim not to reserve merits does not reflect the reality
Discretionary power — Erreur manifeste
Similar to Wednesbury reasonableness in UK
But distinction between competence liée and discretionary power not clear
Court increasingly characterising powers as liées rather than discretionary — even though legislative shift is towards giving greater discretion to decision-makers
Where technical/scientific assessment needs to be made, may only review for manifest error even though apparently competence liée
EG whether a hair lotion was poisonous – Societe Toni (1951)
Simple legal error will still be corrected: Dunkirk institute case (1980) (Legislation permitted private schools to apply for contract of association with State if satisfy certain conditions — but no explicit obligation on Minister to grant if conditions met — Dunkirk Institute for nurses applied — satisfied conditions but insufficient employment for nurses in the North generally discretionary power — but rejection was manifest error — completely excluded consideration of the Dunkirk area more specifically)
Argued no equal access to private & public education as required by Statute — as no existing private school
School presented evidence of demand for education
IE akin to failure to take into account relevant consideration
NB — first instance judge characterised as competence liée
Simple factual error will be corrected: Camino (1916) (prefect suspended mayor...
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A collection of the best BCL notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through applications from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor". In short, these are what we believe to be the strongest set of BCL notes available in the UK this year. This collection of notes is fully updated for recent exams, also making them...
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