Dec. 8, 2014
The Conseil d'État (French State Council)l issued a ruling Sept. 19, 2014, Agence pour l'enseignement français à l'étranger, which does not involve a regulated sector but is very instructive for all of them.
Indeed, the term "guidelines" is common in how each and designates certain documents prepared by the regulatory authorities. These give themselves this appellation to documents made ex ante to give operators the "outline" of the future action of the regulator. Thus, the "guidelines" would produce legal certainty while maintaining flexibility, since in the future the authority will continue to set its position on a case by case basis.
This convinced the Conseil d'État, which expressed his support for the "droit souple (soft law)" in its annual report in 2013.
Now comes the case: it was necessary that the "hard right" come bless the "soft law".
In this case, was challenged before the administrative judge an "instruction" from this Agency for French Teaching Abroad for the "consideration of the financial situation of the parents" seeking a scholarship to the child. A local agency for awarding grants had rejected a request no meeting the criteria developed in the statement. Parents have acted appeal for abuse of power. They both lost before the Cour administrative d'appel de Paris (Administrative Court of Pari) that before the Conseil d'État.
However, the Council recognizes that the Agence pour l'enseignement français à l'étranger has no regulatory power. But the judgement takes in considération that:"l'instruction en cause a énoncé, à l'intention des commissions locales, des lignes directrices, sans fixer de normes à caractère général qui se serait imposée de matière impérative à ces commissions"!footnote-8 .
Triumph of soft law!
Thus, organizations, "agencies", may take "general guidelines" here which do not contain any threshold and generating no rights, on which the commission take real decisions. These are based on the first document, but because of the "flexibility" of it, the one whose solution is affected by the particular decision does'not have the right to appeal.
All the beauty and effectiveness of "soft law". The judge, after having boasted, now offers it royal way.
Sept. 19, 2014
Thesaurus : 03. French Council of State