The French judiciary system is based on two separated orders, the judicial one and the administrative one, with respectively the Cour de Cassation and the Conseil d’État as highest jurisdictions. From 1831, the administrative tribunals have been employing as a law expert a special magistrate called Commissaire du Gouvernement. Despite his appellation, which literally means “government commissioner”, this magistrate became actually independent from 1852 and was not the “voice” of the authorities anymore(1).  Before both the lower administrative courts and the Conseil d’État, he played a major role during the proceedings. He used to “tell the law” and gave his opinion not especially about the case but about the possible or necessary evolution of the law. He also attended the judges’ deliberations for the verdict but he didn’t vote with them. Obviously his considerations could be in favour of the applicant’s claims or opposed to them; it depends on the case and on the law. Very often in the administrative law history, the Conseil d’État had followed the recommendations of the Commissaire (called the “conclusions”) and made a significant change in its case law. In summary, the Commissaire du Gouvernement is definitely closer of a human “law encyclopaedia” than a party through the proceedings like a prosecutor. Nevertheless, his status was criticized by the European Court of Human Rights (ECtHR) in the early 2000’s and few convictions finally bind France to react properly. The authorities started to reform the administrative judicial system, including the age-old and  venerated Commissaire du Gouvernment. France was convicted in 2001, when the Grand Chamber of the ECtHR found a violation of the article 6 of the European Convention on Human Rights (ECHR) in the case Kress. But the complete implementation was a quite long, surprising and “painful” process. Indeed, the French government and domestic administrative courts tried at first to override the judgment. But they couldn’t keep up this position endlessly. Anyway, in the aftermath of the Kress judgment, the French reaction can be described as an opposition or a kind of “national resistance” (Part I).
But other issues and pending cases before the ECtHR have finally persuaded the government that the enforcement of European standards as they are interpreted by the Strasbourg Court was the only possible settlement. From 2005, has begun a second phase and France finally took some measures in order to overhaul its Commissaire du Gouvernement which became the Rapporteur Public (Part II).

I. French authorities’ first posture: the opposition (2001-2005)
The applicant in the case Kress v. France claimed that the attendance of the Commissaire du Gouvernement to the Conseil d’Etat deliberations, just before the verdict, constitutes a breach of the article 6 of the ECHR because it jeopardizes the rules of a fair trial. The French government strongly disagreed with the answer of the Strasbourg Court and explained that the institution of the Commissaire du Gouvernement was basically misunderstood (A). So France decided to not follow the ECtHR and simply establish a new
and ironical custom (B).

A. Some major discrepancies between the ECtHR and the French government
In the judgment Kress v. France, on 7th June 2001, the ECtHR should tell whether the attendance of the Commissaire du Gouvernement to the courts deliberations is problematic, in consideration of the rules of a fair trial, especially when the Commissaire has told just before general conclusions opposed to the applicant’s claims. The answer was positive and France was convicted with a violation of article 6 § 1 of the ECHR. The Court has taken into consideration the British “doctrine of appearances” and has considered that the Commissaire “could legitimately be regarded by the parties as taking sides with one or other of them”(2). The French government was surprised by this judgment mainly because the preview case-law of the European Commission of Human Rights (ECmHR) about the Commissaire seemed lay in an opposite way(3). But the authorities and lawyers were also really upset by the misinterpretation of the Commissaire’s role. On the one hand, France was convinced that the appearances were respected because the Commissaire symbolically gave up his right to vote during the deliberations, where he is obviously present because he is a magistrate considered as a judge among others. On the other hand, France considered that this institution was really unique and traditional, maybe “disconcerting”(4) from outside, and can exist thanks to the States’ margin of appreciation. The Kress v. France judgment was therefore seen like an irrelevant mistake and its enforcement would involve substantial amendments of the domestic
institutions(5). All those elements – which were the basis of the opposition – explain why France did not seriously change her system and appeared stubborn.

B. Stubbornness and humour as answers to the ECtHR
According to the French law, the organisation of the administrative judicial system mainly depends on the executive power, not on legislative acts. That is the reason why the government was theoretically competent to enforce the Kress judgment; but it stayed apathetic. Whereas the French government didn’t take any measure, the administrative courts held their preview case law(6) (from the “Esclatine case”(7), 1998) and they unequivocally repeat again, in spite of the ECtHR’s point of view, that the attendance of the Commissaire du Gouvernement to the debates doesn’t break the rules of a fair trial... Within the Conseil d’État, magistrates decided regardless to establish a brand new ceremonial in order... to make fun of the ECtHR! The Commissaire of Governement, after he has told his conclusions and just before the beginning of the judges’ deliberations, conspicuously put away his lectern and silently sat somewhere in the room; he is still there but pretends that he does not interfere at all in the judges’ discussion. But this joke didn’t eraser the deep problem that the ECtHR previously staged: the Commissaire du Governement, even speechless, even if he symbolically let behind him his opinion (through the ritual of the lectern) stayed physically in the room where judges work on the verdict. According to the “doctrine of appearances”, the parties may think he could influence the judgment by his attendance as such.
Basically, France was reluctant to really change the institution because she expected that the ECtHR would understand in the end that there was no real problem with the attendance of the Commissaire because he was nothing more than a law expert. France first answer was not a mere provocation but also a try to show that critics towards the Commissaire were just pointless.
However, the ECtHR convicted France again in few cases and the French government finally decided to get it over with its opposition and then started a serious implementation.
II. From the Commissaire... to the Rapporteur Public: the implementation (2005-2009) Between 2001 and 2006, France was convicted by the ECtHR in few cases for similar reasons. So, a concrete implementation of cases Kress and others started from 2005. The first step was the most substantial: the French government decided to remove the Commissaire du Gouvernement from the deliberations (A). In 2009, the implementation was probably closed by a change in the name of this magistrate, especially because the “gouvernement” mention was confusing (B).

A. The end of the Commissaire’s attendance to the administrative courts deliberations In the judgment of 5th July 2005, Marie-Louis Loyen and other v. France(8), the ECtHR found again a violation of article 6 § 1 of the Convention, despite the assertion of the Government. The latter pretended the Commissaire didn’t take any active part during the deliberations, which was wrong actually because he was still allowed to answer judges’ questions. With this new case and few others later on (like APBP in 2002 and Martinie in 2006(9), the government definitely understood that the Strasbourg Court won’t withdraw its “Kress opinion”; it was time for a change.
On 1st August 2006, the government published a very important decree, in which he prohibited the attendance of the Commissaire du Gouvernement during the debates(10). The decree amended the Administrative Justice Code but this act was quite moderated because a distinction was made between the lower administrative courts (Tribunaux administratifs and Cours Administratives d’Appel) and the Conseil d’État. Within the lower courts, the Commissaire really won’t attend the deliberations anymore. But within the Conseil d’État, the rule was a bit different: the Commissaire shall attend the deliberations unless a party to the case refuses. The fact the tradition was kept up in the Conseil d’État proceedings reveals how hard it was for France to reform this very old institution, with its local specificities. Magistrates from the administrative order were and still are really proud of their Commissaire du Gouvernement and the Kress case discredited the ECtHR from their perspective(11).
The implementation was, however, not completely achieved. The fear of a new conviction before the ECtHR persisted because of the magistrate’s ambiguous name...

B. A new appellation given to the magistrate through a final reform The real evolution of Commissaire might be not enough to avoid completely later convictions, especially because there is currently a pendant application before the ECtHR (case UFC Que Choisir de Côte d’Or) about this institution(12). The French government has always been really aware with the confusing name of the Commissaire du Gouvernement, gave at his creation because he should tell the opinion of the Government initially but he quickly became independent. Anyway, applicants before the administrative courts, with an average law knowledge, may not understand he is actually independent and could fear kinds of “pressure from the executive power”, like it exists unfortunately with the Procureur de la République before the criminal courts... According to the “doctrine of appearances”, the last
and best thing to do was changing the Commissaire’s name. The government did it with the decree of 7th January 2009 (entered into force on 1st February 2009) and in each administrative court, including the Conseil d’État, the Commissaire du Gouvernement is henceforth named Rapporteur Public, a more neutral appellation, but maybe not as clear as expected and that’s not completely sure that this Rapporteur “will resist better to the doctrine of appearances”(13). Anyway, the authorities and some law professors14 think the implementation is over and hope from now on that the ECtHR won’t convict France anymore because of this magistrate’s lake of impartiality.

Pierre-Henri Paulet

1) ECtHR, Kress v. France, Application No.39594/98, 7th June 2001, Reports of Judgments and Decisions 2001-VI, § 41.
2) ECtHR, Kress v. France, op.cit., § 81.
3) ECmHR, Bazerque v. France, Application No.13672/88, 3rd September 1991, unpublished.
4) ECtHR, Kress v. France, op.cit., § 62.
5) BORÉ EVENO Valérie, « La Cour Européenne des Droits de l’Homme, la France et le Commissaire du Gouvernement », Petites Affiches, No.169, 24th August 2006, p.3
6) GANDREAU Stéphanie, « La théorie des apparences en droit administratif : vertus et risques de l’importation d’une tradition de Common Law », Revue du Droit Public et de la Science Politique en France et à l’étranger, n°2, 1er mars 2005, p. 319
7) Conseil d’État, Mme Esclatine, 29th July 1998.
8) ECtHR, Marie-Louis Loyen and other v. France, Application No.55929/00, 5th July 2005, unpublished.
9) ECtHR, APBP v. France, Application No.38436/97, 21st March 2002, unpublished; ECtHR, Martinie v. France,
Application No.58675/00, 12th April 2006, Reports of Judgments and Decisions 2006-VI.
10) FIAT Sandrine, « Le Commissaire du Gouvernement n’existe plus, vive le Rapporteur Public ! », Eurojuris-France
(website), 6th February 2009, http://www.eurojuris.fr/fre/a-la-une/zoom-sur/le-rapporteur-public/le-rapporteur-public.html.
11) Let me write a private testimony: two years ago, I heard the Commissaire du Gouvernement from the Conseil d’État told:
“the ECtHR wasn’t not a court of justice, but just a thingummy”…
12) FIAT Sandrine, op.cit.
13) DEYGAS Serge, « Le Commissaire du Gouvernement, une statue déboulonnée », Gazette du Palais, No.48, 17th February
2009, p.4.
14) MOLINET-DUBOST Marianne, « Le Commissaire du Gouvernement : épilogue », Gazette du Palais, No.41, 10th
February 2009, p.4.