Contracts and Appeals on Grounds of Excess of Power: The Jurisprudence of the French « Conseil D'Etat »

by Andre Cocâtre-Tilgien, LL.D.,Assistant at the Paris Faculty of LawFrom a definition of contracts as concluded between public authorities and private persons or enterprises, the author derives two reasons why, in French law, it should technically be impossible to appeal before an administrative court: first of all, the very name « contract » implies the competence of the « judges of contracts », i.e. Civil Courts; furthermore, this competence should exclude the possibility of a « parallel recourse » before another jurisdiction.In fact, however, the supreme administrative court, viz. the « Conseil d'Etat », has acknowledged the « receivability » of a number of appeals relating to public contracts and made on grounds of excess of power (*). This was justified by the emergence of a new juridical concept, that of « detachable acts », i.e. decisions, approvals, rejections, preliminaries, etc., which accompany a contract but are not essential parts of it as such. These acts may then fall within the province o...