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I.  Introduction

The French courts are among those that do not, as a rule, cite other court decisions or academic authority.  Such a citation as a reason for the decision reached by the court could be grounds for a legal challenge for annulment.[1]  In addition, the judgments of the Cour de Cassation, France’s Supreme Court for civil and criminal matters, and to a lesser extent those of the administrative courts, are also known for their brevity and specific style.  Guy Canivet, the former First President of the Cour de Cassation, believes that these are the reasons why French courts do not overtly use foreign law.  In one of his lectures, he explained these reasons in the following way:[2]

In France, the Cour de Cassation and the other jurisdictions are structurally inhibited, by the traditional style in which a decision must be written and the prohibition to mention precedents, to expressly refer to foreign laws in the body of the decision.

This does not mean, however, that foreign law has no significance for the French courts, in particular its two highest courts.  In fact, there is a growing trend by these courts to inform themselves about such law in diverse ways.[3]  This report first examines the use of foreign law by the Conseil d’Etat, France’s Supreme Court for administrative matters.  The Conseil d’Etat was the first to break with tradition in recently citing a judgment of the English High Court of Justice in one of its decision.  The report then addresses the use of foreign law by the Cour de Cassation and finally looks at the citation of European Court of Human Rights caselaw by French courts.

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II. Use of Foreign Law by the Conseil d’Etat

France has a dual court system, with civil and criminal courts as well as administrative courts.  Administrative courts form a three-tier hierarchy headed by the Conseil d’Etat, below which are the regional administrative courts and the administrative tribunals.  The Conseil reviews the decisions of the lower administrative courts.

Information on foreign laws are generally found in the conclusions of the Commissaire du government (Government Commissioner) or in the file prepared by the reporting judge.  Under administrative procedure rules, once an action is filed before an administrative court, a reporting judge is appointed to the case and is charged with putting together a file that will be presented later to the court.  The completed file is then handed over to the Government Commissioner who, contrary to its name, studies and researches cases as a neutral party.  The Commissioner prepares an opinion (referred to as conclusions) setting forth the facts and analyzing the legal issues that should be raised.  The Commissioner’s opinions are generally very well researched and written, as well as creative.[4]  In important cases, they are published either in legal journals or in the Recueil des Arrêts du Conseil d’Etat, the official publication of the Conseil d’Etats decisions.[5]   

According to Roger Errera, a former member of the Conseil d’Etat, the Government Commissioners’ opinions show that there has been an interest in foreign laws principally in the following fields: civil liability, extradition, and civil liberties.[6]  Errera’s analysis is summarized in subparts A-C, below.

A. Civil Liability

In one of the earliest cases, decided in 1895, which dealt with state liability arising from the injuries sustained by a state arsenal employee where there was no fault on either side, Errera noted that the Commissioner quoted Belgian and Luxembourg law.[7]  In a 1994 case where the court had to decide whether the principle of confiance légitime (legal theory related to legitimate expectations) should be the basis for state liability in cases of violation of such principle, the Commissioner referred to the law of Germany, Luxembourg, and the European Court of Justice.[8]  In 2001, when the Conseil had to decide the extent of state liability for negligent supervision of banks, the Commissioner quoted the laws and practices of the United States, Great Britain, and Germany.[9]  

Two major medical liability cases gave the opportunity to the Commissioners assigned to them to further use foreign laws in their opinions.  In the first case, a mother was told by the hospital that her child would be normal following an amniocentesis.  The child was born with Down syndrome.  The mother had notified the hospital that she would rather have an abortion than an abnormal child.  The Conseil found that the state hospital was at fault for failing to notify the mother of the significant margin of error of an amniocentesis.  As a result, she had not asked for another test.  In this case the Commissioner had quoted American and British caselaw on wrongful life.[10]  In the second case, the Paris Administrative Court and, on appeal, the Conseil, found that the Paris Hospitals Administration was not at fault for giving a transfusion to a Jehovah’s Witness who had explicitly refused it, considering his critical state at his admission.  Both Commissioners involved in the case had quoted American, English, and Canadian caselaw.[11]

B. Extradition

In the case of Mme. Aylor, Errera noted, the Commissioner looked at the laws and practices of Germany, Italy, Austria, Denmark, Switzerland, and Great Britain, where extradition was requested by a state that still applied the death penalty to the offense committed.[12]  In another extradition case, the law and practice of the state of California regarding the death penalty was cited.[13]

C. Civil Liberties

Numerous examples of the use of foreign law can be found in the field of civil liberties, Errera said.  In a 1999 case, for example, the Commissioner cited the law of numerous European countries as the Conseil had to decide whether a statute prohibiting the publication of polls two weeks before an election violated Article 10 of the European Convention on Human Rights (concerning freedom of expression).[14]  In 1990, the constitutional case law of Germany, Spain, the United States, Austria, Italy, Norway, Portugal, and Canada was examined to determine whether the French law on abortion was compatible with the right to life set forth in Article 6 of the International Covenant on Civil and Political Rights, and Article 2 of the European Convention on Human Rights.[15]

Finally, as mentioned earlier, the Conseil broke with the tradition of not citing cases by expressly citing, in its own decision, a decision of the English High Court of Justice concerning labeling under EU law.  In the Case of Société Techna S.A. rendered on October 29, 2003, the Conseil addressed the issue of whether the decree transposing EU directive 2002/2/EC (relating to the Percentage Ingredient Declaration of Compound Feed) into French law should be suspended pending a determination of the Directive’s validity by the European Court of Justice.  The Conseil stated that it was suspending the decree for the same reasons cited by the English High Court in suspending the Directive in England.[16]

In addition to the Government Commissioners’ opinions, studies on foreign laws and practices may be found in the public annual report prepared by the Conseil.  These studies are prepared by French and foreign contributors.  The 2009 report, for example, contains a study entitled “Foreign experiences in matters of contracts,”[17] while the 2008 report addressed “The right to healthy housing, putting health at the centre of English housing policies.”[18]

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III.  Use of Foreign Law by the Cour de Cassation

The Cour de Cassation is referred to as the guardian of the law.  It only reviews questions of law, not questions of fact.  The Court’s essential purpose is to ensure that the interpretation of the law is uniform throughout the country.[19]  The Court’s decisions are usually short, unsigned, and without concurrences or dissents.  The Court reviews approximately 17,000 to 22,000 cases a year.  The Court has six chambers: five civil chambers (three strictly civil; a commercial, economic, and financial chamber; and a social chamber) and a criminal chamber.  It is composed of a First President, six chamber presidents, eighty-nine judges, and sixty-six assistant judges.[20]

As in the case of the Conseil d’Etat, references to foreign laws may be found in the opinions of the Avocats Generals (General Advocates), who have a role similar to the role of the Government Commissioners in administrative cases, or the file prepared by the reporting judges.  Until recently, these documents were rarely published and focused entirely on national law.[21]  It is under the presidency of its former First President, Guy Canivet, that the Cour de Cassation started to develop a greater interest in foreign law.[22]  Canivet was First President of the Cour de Cassation from 1999 to 2007, at which time he was appointed to the Constitutional Council.

In addition to the opinions of the General Advocates or the conclusions of the reporting judges mentioned above, the Cour de Cassation sometimes resorts to outside neutral institutions or universities to prepare comprehensive studies on the state of foreign law on issues before it.  This way of proceeding is seen as increasing “the reliability and up-to-date nature of the research” and as “insulating the court from criticism of bias or obvious incompetence” where the judges are not in a position to read the foreign texts.[23]

The Court, for example, requested that the Société de législation Comparée (French Comparative Law Institute) prepare two research reports, one on the case of wrongful birth and the other on whether a person who has caused a car accident that led to a miscarriage could be charged with manslaughter.[24]  These studies were circulated in advance to all the parties.[25]

In a 2007 case, the Cour de Cassation ruled that same sex marriages are invalid under French law and that a marriage is a union between a man and a woman under the Civil Code.  The Court had asked the Institute of Comparative Law of Lyon to provide a study on how other countries dealt with the issue.  The study had considered the laws of several American States, Great Britain, Denmark, Sweden, Germany, the Netherlands, Belgium, and Spain as well as a decision of the South African Supreme Court.[26]

In the opinion of Canivet, the analysis of the jurisprudence of the Cour de Cassation shows that recourse to foreign law is found, for example, each time that:

...the national law has the need to be completed or modernised; when the judge rules on the great societal issues; when the question is common to several countries; when the solution has an economic dimension that exceeds the limits of the legal system in which it applies; and finally when it is a question of deciding purely technical matters.

Finally, the Cour de Cassation also benefits from information communicated by judges who have been sent on duty abroad (juges de liason).  This was the case when the court had to deal with the issue of the professional confidentiality of religious ministers versus the needs of a criminal investigation.  In this case, the General Advocate found information on other countries’ solutions through the juges de liason network.[27]  The Court also entered into a judicial cooperation agreement with Great Britain in 1994, which was extended to Ireland in 2007.  Under this agreement, exchanges of judges are organized to further their knowledge of the laws of the other participating countries.[28]

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IV. Citation of European Court of Human Rights Caselaw

As France has recognized the superiority of a treaty over domestic law,[29] the courts are bound to apply the European Convention for the Protection of Human Rights and Fundamental Freedoms.[30]  The courts have achieved this aim in part by referring to the caselaw of the European Court of Human Rights that has extensively interpreted the Convention’s rights and freedoms.  There are many examples of the Conseil d’Etat[31] or the Cour de Cassation[32] overtly referring to the caselaw of the European Court of Human Rights.  As stated by Canivet, “these references are quite impressive if we keep in mind the French courts’ traditional refusal to cite judicial precedent in their decision.”[33]

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V. Concluding Remarks

France’s two highest courts have recently shown a greater interest in informing themselves about foreign laws.  As a rule, they have not overtly referred to foreign judgments, with the exception of European Court of Human Rights caselaw.  Reference to foreign laws can be found in the preparatory material of the case or in studies prepared by institutions specializing in comparative law.  The future will shows whether this recent trend will continue and grow.

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Prepared by Nicole Atwill
Senior Foreign Law Specialist
March 2010
  

[1] Ch. 2: A Quick Glance at Seven Jurisdictions, in Sir Basil Markesinis & Jörg Fedtke, Judicial Recourse to Foreign Law: A New Source of Inspiration? 64 (UCL Press 2006).

[2] Id. at 65 (quoting Guy Canivet [source unknown]) (translation by the author of this report, N.A.).  Canivet also stated in another article that:

...the French courts, in principle, cannot cite doctrinal authorities or jurisprudence in their judgments, whether it be national, supranational, or foreign.  Additionally, the French decisions of the highest courts are particularly brief because by tradition and in principle they proceed by strictly deductive reasoning which prevents the elaboration of the true motives of the judgment.

Guy Canivet, Ch: 6: The Practice of Comparative Law by the Supreme Courts, in Sir Basil Markesinis & Jörg Fedtke, Judicial Recourse to Foreign Law 317 (UCL Press 2006).

[3] Id. at 65, 66.  See also Sir Basil Markesinis & Jörg Fedtke, Engaging With Foreign Law 220-23 (Hart Publishing 2009).

[4] John Bell et al., Principles of French Law 61 (Oxford Univ. Press 2008).

[5] Id.

[6] Roger Errera, Ch. 10: The Use of Comparative Law before the French Administrative Courts, in Guy Canivet et al., Comparative Law Before the Courts 156 (British Inst. of Int’l & Comp. Law 2004).

[7] Id.

[8] Id. at 156, 157.

[9] Id. at 157.

[10] Id. at 157, 158.

[11] Id. at 158.

[12] Id. at 159 & n.23.

[13] Id.

[14] Id.

[15] Id. at 160.

[16] Conseil d’Etat [CE], Oct. 29, 2003, Societe Techna S.A. et autres, No. 260768, available at Lexbase A9824c9Q (fee database). 

[17] Conseil d’Etat, 2 Rapport Public 2009 (La Documentation Française, 2009), http://www.lado cumentationfrancaise.fr/rapports-publics/094000298/index.shtml.

[18] Conseil d’Etat, Rapport Public 2008 (La Documentation Française, 2008), http://lesrapports. ladocumentationfrancaise.fr/BRP/084000313/0000.pdf.

[19] Ordinance 2006-673 Reforming the Code of Judicial Organization art. 411.2, June 8, 2006, Journal Officiel de la République Française [J.O.] [Official Gazette of France], June 9, 2006, p. 8710.

[20] Cour de Cassation, Institution, http://www.courdecassation.fr/ (last visited Mar. 12, 2010).

[21] Markesinis & Fedtke, supra note 3, at 221.

[22] Id.

[23] Id. at 223.

[24] Guy Canivet, Ch. 12: The Use of Comparative Law Before the French Private Law, in Guy Canivet et al., supra note 6, at 191.

[25] Id.

[26] Markesinis & Fedtke, supra note 3, at 222-23.

[27] Canivet, The Practice of Comparative Law by the Supreme Courts, supra note 2, at 328.

[28] Cour de Cassation, Activité Internationale, http://www.courdecassation.fr/activite_internationale_5/ britanno_irlandais_632/ (last visited Mar. 12, 2010).

[29] 1958 Const. art. 55.

[30] European Convention for the Protection of Human Rights and Fundamental Freedoms, entered into force Sept. 3, 1953, available at the website of the European Court of Human Rights, http://www.echr.coe.int/ ECHR/EN/Header/Basic+Texts/The+Convention+and+additional+protocols/The+European+Convention+on+Human+Rights/.

[31] Bruno Genevois, La Cour Européenne des droits de l’homme vue du Palais Royal, in Paul Tavernier, La France et la Cour Européenne des Droits de L’Homme 1998-2008 at 165-83 (2009).

[32] Canivet, supra note 24, at 189.

[33] Id. at 189 n.28.

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Last Updated: 02/28/2014