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# Book Review

Théo Ducharme, *La responsabilité de l'État du fait des lois déclarées contraires à la Constitution* (LGD), Paris 2019, Bibliothèque constitutionnelle et de science politique 152). xvii + 544 pp. ISBN 978-2-275-06911-1. € 60 (paperback)

Reviewed by **Jonas Knetsch**: Professor of Civil and Comparative Law, École de droit de la Sorbonne, Université Paris 1 Panthéon-Sorbonne, E-Mail: jonas.knetsch@univ-paris1.fr

https://doi.org/10.1515/jetl-2022-0005

One of the nightmare scenarios of any PhD candidate in law is to find out that legislation or case law related to the research topic chosen are on the verge of changing when preparing defence before the thesis committee. When engaging in research on State liability for unconstitutional legislation, Théo Ducharme must have known that he was walking on quicksand and that it would require excellent knowledge of the ongoing evolutions of French administrative and constitutional law to release a work that is not immediately out-of-date. It is all the more impressive to see how accurately and precisely Ducharme addresses this highly sensitive issue in the book under review.

Readers of the Journal of European Tort Law, unfamiliar with the French legal system, might wonder about the idea of dedicating a 544-page book on a subject which, in other countries, is addressed by legal scholars as briefly as necessary, that is in a few lines only. In many jurisdictions, neither the State itself nor the members of the legislature are subject to liability for harm caused by unconstitutional legislative acts.<fnref n="1" /> The German Federal Court of Justice held in 1987 that there was no State liability for unconstitutional legislation, as the existing legislative framework requires an individual administrative act as the cause of action.<fnref n="2" /> In the United Kingdom, the supremacy of Parliament and a strict view of the idea of separation of powers prevent the courts from declaring unconstitutional legislative acts and consequently from addressing State liability cases in such a context.

In the field of constitutional litigation, the legal situation in France has changed significantly over the last 20 years. It is only since the major 2008 reform of the Constitution that the Constitutional Council (*Conseil constitutionnel*) has been allowed to review acts of Parliament on the grounds of a breach of individual

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<footnote n="1">1 For a comparative survey, see *P Popelier, Constitutional Tort Liability and the Prudent Legislature, 5 Legisprudence 69* (2011).</footnote>

<footnote n="2">2 Federal Court of Justice, 12 March 1987, ref III ZR 216/85.</footnote>
constitutional rights. According to art 61-1 of the French Constitution, the *Conseil constitutionnel* may be requested by referral of the supreme courts of both the civil and administrative branch (the *Conseil d'État* and the *Cour de cassation*) to rule on whether a legislative act complies with the constitutionally protected rights and liberties.<fnref n="3" /> As a result of this ‘legal revolution’, it is nowadays very common for French lawyers to raise the argument of unconstitutionality in private or public law litigation to win their case.

The starting point of Ducharme’s work is the question of whether an indivi-
dual can claim damages for harm caused by a legislative act deemed unconstitu-
tional by the *Conseil constitutionnel*. While the law is defined by general and im-
personal rules, he demonstrates that acts of Parliament can indeed ‘engage’ (en-
trer en relation) with a single person or group of individuals, regardless of any
individual administrative action (pp 56–62). He cites as examples statutory rules
prohibiting the manufacturing of certain goods or restricting land rights for cer-
tain properties. One could also think of legislative acts that limit access to work
positions or specific marketplaces.

In the following chapters, it becomes clear that the admission of State liability
for unconstitutional legislation is a logical consequence of general developments
of French administrative law, as France’s highest administrative court, the *Conseil
d’État*, has brought drastic changes to the rules regarding the liability of public
authorities. Indeed, until the late 20th century, a particularly high standard of
fault was required to engage the liability of the administration for harm caused
by the public authority or one of its agents. Over the last years, the number of
situations in which the French State is liable only for ‘serious fault’ (*faute lourde*)
has diminished significantly<fnref n="4" /> and the State’s immunity for legislative injustice
had become a shrinking ‘island of irresponsibility’ (*îlot d’irresponsabilité*) in the
ocean of State liability.

It was, therefore, only a matter of time before the *Conseil d’État* had to deal
with State liability cases in which harm was not caused by administrative action,
but by the mere unconstitutionality of an act or omission of Parliament. In one of
the central passages of his book (pp 186–213), Ducharme exposes why it is crucial
to locate the trigger for liability in the field of legislative action and not within an

<footnote n="3">3 On this procedure, see eg in English, *O Pfersmann, Concrete Review as Indirect Constitutional Complaint in French Constitutional Law: A Comparative Perspective*, 6 European Constitutional Law Review 223 (2010); *F Fabbrini, Kelsen in Paris: France's Constitutional Reform and the Introduction of A Posteriori Constitutional Review of Legislation*, 9 German Law Journal 1297 (2008).</footnote>

<footnote n="4">4 For a thorough analysis of the developments in the field of French State liability, see *D Fairgrieve, State Liability in Tort. A Comparative Law Study (2003) 14–16* ('vestiges of immunity').</footnote>
*acte administratif* interposed between the unconstitutional attitude of Parliament and the loss caused. Claiming that the separation of powers is not a decisive argument, he condemns the cases in which lower administrative courts, such as the Paris Administrative Court, were reluctant to attribute the fault directly to the legislative power rather than to the administration. Recognising the liability of the State for unconstitutional legislation is also essential to preserve the public finances of local and regional administrations, as their action is limited to the implementation of an unconstitutional legislative act in a concrete situation. In times of far-reaching decentralisation of France's public administration, the work raises an interesting issue: why should the cost of compensation be a financial burden for local authorities, while there is no obligation for them to exercise a preventive control of the constitutionality of legislative acts?

In order to give more substance to his plea for an evolution in the case law of the *Conseil d'État*, the second part of his work is dedicated to the structure of a State liability regime for unconstitutional legislation. In particular, it considers the issue of the legal entity to which the defective legislative action should be attributed (pp 247–290).

From a French law standpoint, there is no other option here but to attribute the unconstitutional act of Parliament to the State itself, which is also what Ducharme is defending in his work. As members of the *Assemblée nationale* and the *Sénat* enjoy wide parliamentary immunity and, in accordance with the general structure of State liability under French law, courts have no choice but to hold the State, considered as a legal person (*personne morale*), liable for unconstitutional legislation. A direct liability of the State also reflects the idea that the legislature is one of the State's 'bodies' (*organes*) and that, in any case, it is impossible to identify individual members of the Parliament whose behaviour might be qualified as wrongful in the law-making process. According to the author, the unconstitutionality is no less than a *faute de service* attributable to the State, incompatible with the liability of public officers, whatever their legal status.<fnref n="5" />

While this solution may appear sound and consistent in continental European jurisdictions, lawyers and legal scholars with a common law background might be surprised by such an outcome. In particular, the fact that the concept of 'State' (*État*) is at the heart of Ducharme's investigation may be disturbing, as there is no equivalent to it in countries such as the United Kingdom. As is widely known, the legal terminology used in the UK refers to the Crown or to the executive government.

<footnote n="5">5 On the concept of 'faute de service' and its counterpart, the 'faute personnelle' of a public servant, see *Fairgrieve* (fn 4) 20–23. See also *J Bell/F Lichère, Contemporary French Administrative Law* (2022) 238–248.</footnote>
ment, but it lacks an operational concept of State, which makes it more difficult to
conceive a liability of ‘public authorities’ for defective legislation.<fnref n="6" /> It would not
occur to any British lawyer to claim for damages in tort against the UK Parliament.

As for the scope of State liability for unconstitutional legislation under French
law, the work does not elude an element of additional complexity, that is the ex-
act wording of a declaration of unconstitutionality pronounced. It is not uncommon
for the Constitutional Council to decide that a legislative provision, declared
unconstitutional, shall be repealed ‘as of a subsequent date determined by the
decision’.<fnref n="7" /> This ‘modulation of the temporal effects’ (*modulation dans le temps*)
has a major influence on the subsequent State liability litigation, as claims for
damages are barred as long as the time limit given to replace the legislative provision
has not expired. As the author points out in his work (pp 336–340), the *Conseil constitutionnel* would do well to take into account this dimension when deciding constitutional review cases.

In the last chapter of his monograph, Ducharme addresses the issue of the
legal nature of this kind of State liability. Is it a new form of fault-based liability
or strict liability? He is strongly in favour of the former qualification, arguing that
there is no other way to analyse the violation of the Constitution as a fault of the
State. It is obvious that the *Conseil d’État*, which has jurisdiction over State liability
cases, is reluctant to acknowledge openly a failure of the legislative branch,
due to the idea of separation of powers. However, for the sake of consistence,
administrative courts should deduce ‘legislative fault’ from the sole declaration
of unconstitutionality and not hide behind the idea of strict liability. Moreover, it
would be incoherent to give administrative courts the power to deviate from the
decisions of the Constitutional Council by reassessing the State’s fault. Leaving
aside political considerations, the most appropriate solution would be the acknowledgement
of an automaticity between the declaration of unconstitutionality
and State liability for fault (pp 431–435).

As is so often the case in book reviews, the preceding lines do not reflect the
subtle demonstration given by the author. Since it was released in late 2019,
Ducharme’s monograph has become a reference work on the issue of State liability
for unconstitutional legislation. It is a major contribution to French public
law, also considering that legal scholarship has long been silent on an issue
which seems to have been identified as such only in 2011.<fnref n="8" />

<footnote n="6">6 See eg *M Loughlin*, *Foundations of Public Law* (2010) 183–206. See also among French authors, *D Baranger*, *Uncovering the Foundations of Administrative Law*, Jus Politicum 2016, no 16, 111.</footnote>

<footnote n="7">7 Art 62(2) of the French Constitution.</footnote>

<footnote n="8">8 *M Disant*, *La responsabilité de l’État du fait de la loi inconstitutionnelle, prolégomènes et perspectives*, Revue française de droit administratif 2011, 1181.</footnote>
If the reviewer had to express a regret, it would be a certain under-exploita-
tion of legal sources on civil liability, in particular in the second part of the book
where Ducharme seeks to develop a coherent liability regime. References to the
concept of ‘civil fault’ (*faute civile*) as well as to the assessment of ‘reparable loss’
(*dommage réparable*) would have made the demonstration even clearer and more
convincing. Unfortunately, it is one of the undisputable trademarks of French tort
law to be built on two series of liability rules and to be discussed separately by
either private or public law professors.<fnref n="9" /> It would be most desirable if highly pro-
mising tort law scholars such as Théo Ducharme were willing to transcend the
boundaries between State liability and civil liability, which – despite appear-
ances – are two sides of the same coin.

In any case, those critical remarks should not obscure the fact that the mono-
graph is a continuously excellent work on a topical issue, which is sensitive both
from a technical and a legal policy standpoint. In 2019, it won the prestigious
annual thesis prize of the *Conseil constitutionnel* and, for this reason, has been
published with a preface by Laurent Fabius, former Prime Minister and Minister
for Foreign Affairs and now President of the *Conseil constitutionnel*.

On a more scientific level, it has probably been even more rewarding for Théo
Ducharme that, in two landmark decisions of 24 December 2019,<fnref n="10" /> two months
after the publication of his work, the *Conseil d’État* finally agreed to the principle
of State liability for unconstitutional legislation. While the *Conseil d’État* does not
adopt all the ideas expressed by the author, rejecting for instance the idea of a
fault-based liability, it is not unlikely that Ducharme’s superb academic work
weighed in the balance towards this major evolution of French public law.<fnref n="11" />

<footnote n="9">9 *E Steiner*, French Law. A Comparative Approach (2nd edn 2018) 170.</footnote>

<footnote n="10">10 Conseil d'État, 24 December 2019, nos 425981 and 425983. The solution was confirmed by the Constitutional Council two months later (28 December 2020, no 2019-828/829 Question Prioritaire de Constitutionnalité [QPC]). On this case law, see in the English language *Bell/Lichère* (fn 5) 259-261; *M Disant*, Towards a constitutional litigation framework providing for indemnification, Annual Report of the French Constitutional Council 2020, 108f (<https://www.conseil-constitutionnel.fr/sites/default/files/2020-10/cc-annual-report-2020.pdf>).</footnote>

<footnote n="11">11 The findings of the rapporteur public refer explicitly to the reviewed book as a major doctrinal source in favour of State liability for unconstitutional legislation.</footnote>