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

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of the ongoing evolutions of French administrative and constitutional law to release a work that is not immediately out-of-date.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.^[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.^[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 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.^[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 individual can claim damages for harm caused by a legislative act deemed unconstitutional by the Conseil constitutionnel. While the law is defined by general and impersonal rules, he demonstrates that acts of Parliament can indeed ‘engage’ (entrer 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 certain 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^[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 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.^[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, but it lacks an operational concept of State, which makes it more difficult to conceive a liability of ‘public authorities’ for defective legislation.^[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 exact 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’.^[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.^[8]

If the reviewer had to express a regret, it would be a certain under-exploitation 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.^[9] It would be most desirable if highly promising tort law scholars such as Théo Ducharme were willing to transcend the boundaries between State liability and civil liability, which – despite appearances – are two sides of the same coin.

In any case, those critical remarks should not obscure the fact that the monograph 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,^[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.^[11]