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The State condemned for air pollution: "an illustration of the government of judges"

2021-08-05T14:05:16.410Z


FIGAROVOX / TRIBUNE - The Council of State has ordered the State to pay 10 million euros to militant associations, believing that the government has not taken sufficient measures to limit air pollution. The judicialization of government action is at its height, worries ...


Christian Saint-Étienne is professor emeritus at the National Conservatory of Arts and Crafts - Chair of Industrial Economics.

His latest book “Le Libéralisme strategège” was published by Éditions Odile Jacob.

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The struggle for power between politicians and judges has been recurring in France for centuries.

Under the Ancien Régime, the Judges weakened royal power on several occasions.

The Fifth Republic, on the contrary, had tried to limit the judicial power to the benefit of the Executive.

However, a double case law, European and national, today constrains political action not only in legality, which is proper to the Judge, but also, more and more openly, in terms of opportunity.

This drift has just been illustrated, moreover on August 4, by a decision of the Council of State which condemns the State to pay 10 million euros to the association

Les Amis de la Terre

as well as to several organizations. and associations engaged in the fight against air pollution.

In July 2020, the Council of State had "

ordered

" the government to act to improve air quality in several areas in France, under penalty of a penalty of 10 million euros per semester of delay. "

If measures have been taken, the Council of State believes today that they will not improve the situation in the shortest possible time, because the implementation of some of them remains uncertain and their effects have not been evaluated. This is why he condemns the State to pay the fine of 10 million euros to the association Les Amis de la Terre (…). The Council of State will assess the actions of the Government for the second semester of the year 2021 at the beginning of the year 2022 and will decide whether theState will have to pay a new penalty

», Explains the Council of State in the press release which presents its judgment.

Only the Legislature can write the law and dictate obligations to the government.

Christian Saint-Etienne

It is clear that the Administrative Judge does not judge here in legality but in expediency.

Let us project ourselves into another context. An association of Veterans could have had the State condemned in 1871 for not having equipped our soldiers with machine guns in the war of 1870, like the German armies who had observed - as well as French military attachés - their use, to the States -United during the Civil War. In 1941, the same association would have condemned the State for not having formed armored divisions against the German army, especially since a French colonel, de Gaulle, had defended this new approach.

Likewise, today, an association campaigning in favor of the “reindustrialisation of our economy” could have the State condemned for having implemented the 35-hour working week in 2000-2002 and for not having delayed the starting age for retirement. retirement at age 65, two measures which are massively responsible for the cost of labor that blocks our competitiveness. And so on.

It is appropriate to open here a debate, not of legal semantics, but of political strategy within the framework of the regime of representative liberal democracy with separation of powers. Only the Legislature can write the law and dictate obligations to the government. The latter, within the framework of the rule of law thus established, tries to advance the economic, social, environmental, military and diplomatic situation of the country as best it can, by making mistakes but also by recording successes. over time.

It is therefore not up to the judge to evaluate government policies but to a parliamentary office for the evaluation of public policies to judge them, under the control of the elected representatives of the people.

Provided that this Office exists, of course, which is not the case.

It must be created urgently, through a parliamentary constitutional review.

We must stop the drift towards the power of unelected Judges.

Let us create in the Constitution a parliamentary tribunal of 60 members which, by a qualified majority, will have the right to annul a decision of the Constitutional Council and a judgment of the Court of Cassation or the Council of State

Christian Saint-Etienne

But we must go further if we want to break the drift towards the power of unelected Judges. This revision should be used to create in the Constitution a parliamentary tribunal of 60 members (half the National Assembly and half the Senate and in proportion to all parties) that can be referred to by the government or 150 parliamentarians, at least one third of whom opposition, and which may, by qualified majority, annul a decision of the Constitutional Council and a judgment of the Court of Cassation or the Council of State.

It is not a question of duplicating the excesses of the countries of Central Europe which want to attack the rule of law for the benefit of a government, but of re-establishing the separation of powers with a tool - the Parliamentary Tribunal - which makes it possible to break what we can call the “double opportunity” power of judges.

The power of "simple opportunity" will be called the capacity of judges to assess whether or not a State official or a community has respected the law in the sense of not doing what is prohibited, or even doing what is explicitly ordered. by law in the form of specific measures enacted, measure by measure, by the law itself.

But only a parliamentary office can "evaluate" policies - "double opportunity power" - according to general objectives set by law.

Finally, in this case, the Council of State condemns the State to pay a sum to an Association, which will lead to the multiplication of disputes. In this regard, a law should provide that any condemnation of “the State” will be supplemented by the expression “therefore the taxpayer”. We condemn "the state - therefore the taxpayer" to pay sums to private interests. The state, on the financial level, is only a fiction, which the Judges apparently forgot.

Source: lefigaro

All news articles on 2021-08-05

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