6. Court structures
• More than one set of courts
• Each with own jurisdiction
• Administrative courts
7. Court structures
• More than one set of courts
• Each with own jurisdiction
• Administrative courts
• “Ordinary” courts
8. Court structures
• More than one set of courts
• Each with own jurisdiction
• Administrative courts
• “Ordinary” courts
• Contrast common law
– Pyramid structure
14. France: Ordinary courts
• Civil courts
– Tribunaux d’instance
– Tribunaux de Grande instance (above €10,000
unless specialist jurisdiction; to be consolidated)
– Irish equivalent?
15. France: Ordinary courts
• Civil courts
– Tribunaux d’instance
– Tribunaux de Grande instance (above €10,000
unless specialist jurisdiction; to be consolidated)
– Irish equivalent?
• Commercial: tribunaux de commerce
– Disputes between traders over money
– Not career judges – lay judges elected by local
business community
– Irish equivalent?
– No separate commercial courts in all civil law
jurisdictions eg Italy
16. France: Ordinary courts
• Civil courts
– Tribunaux d’instance
– Tribunaux de Grande instance (above €10,000
unless specialist jurisdiction; to be consolidated)
– Irish equivalent?
• Commercial: tribunaux de commerce
– Disputes between traders over money
– Not career judges – lay judges elected by local
business community
– Irish equivalent?
– No separate commercial courts in all civil law
jurisdictions eg Italy
• Absorbed Ecclesiastical courts
18. France: Ordinary courts
• Employment tribunals: Conseil de prud’hommes
– Lay judges, representing employers and employees
– Irish equivalent?
19. France: Ordinary courts
• Employment tribunals: Conseil de prud’hommes
– Lay judges, representing employers and employees
– Irish equivalent?
• Variety of other courts of first instance eg social
security, disability
20. France: Ordinary courts
• Employment tribunals: Conseil de prud’hommes
– Lay judges, representing employers and employees
– Irish equivalent?
• Variety of other courts of first instance eg social
security, disability
• Courts of appeal: general jurisdiction
23. French court structure: Cour de
cassation
• Highest court of “ordinary” courts
• Civil, criminal matters
24. French court structure: Cour de
cassation
• Highest court of “ordinary” courts
• Civil, criminal matters
• Origins: Tribunal de cassation
– Function to ensure courts don’t deviate from text of
legislation
– Originally courts referred doubtful questions of
construction to legislature
– This changed quickly: became proper court (cour)
27. French court structure: Cour de
cassation
• Can construe statutes
• Can quash judgments of lower ordinary courts
28. French court structure: Cour de
cassation
• Can construe statutes
• Can quash judgments of lower ordinary courts
• Can’t substitute its view on the merits
29. French court structure: Cour de
cassation
• Can construe statutes
• Can quash judgments of lower ordinary courts
• Can’t substitute its view on the merits
• Lower court not bound to follow view in the first
instance, but bound in the second instance
– Contrast eg Corte di Cassozione in Italy
31. French Cour de cassation
• Only answers questions of law, not fact
32. French Cour de cassation
• Only answers questions of law, not fact
• Structure
33. French Cour de cassation
• Only answers questions of law, not fact
• Structure
• Over 80 trial judges (conseillers)
34. French Cour de cassation
• Only answers questions of law, not fact
• Structure
• Over 80 trial judges (conseillers)
• 40 case management judges (conseillers
référendaires)
35. French Cour de cassation
• Only answers questions of law, not fact
• Structure
• Over 80 trial judges (conseillers)
• 40 case management judges (conseillers
référendaires)
• Office of the prosecutor (parquet général)
– Headed by the Chief Prosecutor (procureur général)
– Judicial officer charged with giving legal advice to Court –
civil and criminal matters
– Equivalent to Rapporteur public (formerly Commissioner
of Government) in Council of State (Conseil d’Etat)
36. French Cour de cassation
• Only answers questions of law, not fact
• Structure
• Over 80 trial judges (conseillers)
• 40 case management judges (conseillers
référendaires)
• Office of the prosecutor (parquet général)
– Headed by the Chief Prosecutor (procureur général)
– Judicial officer charged with giving legal advice to Court –
civil and criminal matters
– Equivalent to Rapporteur public (formerly Commissioner
of Government) in Council of State (Conseil d’Etat)
• Barristers (avocats) need to pass special exam
40. French Cour de cassation
• Stare decisis vs jurisprudence constante
41. French Cour de cassation
• Stare decisis vs jurisprudence constante
• Style of judgments
– Contrast eg
• Irish Supreme Court
• House of Lords
• German Court
43. French court structure: Administrative
courts and Conseil d’Etat
• Rationale for separate administrative courts
– Contrast English mandamus, quo warranto
44. French court structure: Administrative
courts and Conseil d’Etat
• Rationale for separate administrative courts
– Contrast English mandamus, quo warranto
• Conseil d’Etat: Created 1799, but not an
independent court for 90 years
45. French court structure: Administrative
courts and Conseil d’Etat
• Rationale for separate administrative courts
– Contrast English mandamus, quo warranto
• Conseil d’Etat: Created 1799, but not an
independent court for 90 years
• Reformed to add:
– Administrative tribunals (first instance)
– Administrative courts of appeal (cours
administratives d’appel, 1989)
– Contrast eg Germany, Austria: separate
administrative courts long beforehand
47. Conseil d’Etat
• 6 divisions
– 5 administrative: home affairs, finance, research,
public works, welfare
– 1 litigious
– Members are traditionally members of both
• Independence problems? ECHR
48. Conseil d’Etat
• 6 divisions
– 5 administrative: home affairs, finance, research,
public works, welfare
– 1 litigious
– Members are traditionally members of both
• Independence problems? ECHR
• Official president: Prime Minister
50. Conseil d’Etat
• Powers
– Advisory
• Obligatory consultation before legislation made
• Discretionary consultation by government in other
administrative matters (eg Islamic headscarves 1989,
International Criminal Court 1999)
– Judicial
• Rarely first instance
• Mainly appeals on point of law only
• Can be referred question for advice on points of law
by lower administrative courts
52. Conflicts of court jurisdiction?
• Decided by Tribunal des conflits (Jurisdiction
disputes court)
– Positive conflict: eg administration considers a case
should be in administrative courts
• Préfet is told
• If préfet can’t agree with court, referred to
jurisdiction disputes court
– Similar if negative conflict ie no court thinks it’s
competent
– Mixed cases: Jurisdiction disputes court can be
asked to decide the case if courts come to
conflicting outcomes (happens rarely)
56. Conseil constitutionnel
• Created by founders of (current) Fifth Republic
(1958 Constitution)
• Members: les sages
• Former presidents have right to sit
57. Conseil constitutionnel
• Created by founders of (current) Fifth Republic
(1958 Constitution)
• Members: les sages
• Former presidents have right to sit
• Others chosen by politicians:
– President of the Republic (3)
– President of the National Assembly (3)
– President of Senate (3)
60. Conseil constitutionnel
• Decisions bind judges and unappealable
• Roles
– Supervising elections and judging any litigation
resulting from elections (eg election expenses,
eligibility of candidates)
– Judging constitutionality of statutes, international
treaties
• Before promulgation
• Eg Corsica decision (1991) – acknowledging existence
of separate Corsican nation contravenes Article 1
French Constitution (“France is an indivisible, secular,
democratic and social Republic”)
• Eg Carbon tax (December 2009)
– Judging ability of President to be able to exercise
functions
62. Conseil constitutionnel
• Who can refer to Conseil?
– President, PM, President National Assembly/Senate,
60 members of National Assembly/Senate
– Or (since March 2010) if compatibility of statute
with constitution is raised by party in case and
referred by Cour de cassation or Conseil d’Etat
63. Conseil constitutionnel
• Who can refer to Conseil?
– President, PM, President National Assembly/Senate,
60 members of National Assembly/Senate
– Or (since March 2010) if compatibility of statute
with constitution is raised by party in case and
referred by Cour de cassation or Conseil d’Etat
• Limits of conseil’s powers
– Not acts
• Passed after referendum
• Amending Constitution
• Not referred to Conseil
• Incorporating European directives into French law
– Not compatibility of French act with EU law
75. German court structure
• Lay involvement in commercial matters and
labour matters
• Highest ordinary court: Bundesgerichtshof –
Federal Court of Justice
76. German court structure
• Lay involvement in commercial matters and
labour matters
• Highest ordinary court: Bundesgerichtshof –
Federal Court of Justice
• Each branch has its own federal court
77. German court structure
• Lay involvement in commercial matters and
labour matters
• Highest ordinary court: Bundesgerichtshof –
Federal Court of Justice
• Each branch has its own federal court
• Plus Federal Constitutional Court
79. German court structure
• Administrative courts
– First instance, High Courts in each state (Länder)
– Federal Administrative Court
(Bundesverwaltungsgericht)
• Review on point of law
• “Revision” possible to lower judgment (contrast
cassation)
– All non-constitutional public law matters unless
expressly assigned by statute to fiscal/social courts
– Eg asylum, planning, environmental matters
80. German court structure
• Administrative courts
– First instance, High Courts in each state (Länder)
– Federal Administrative Court
(Bundesverwaltungsgericht)
• Review on point of law
• “Revision” possible to lower judgment (contrast
cassation)
– All non-constitutional public law matters unless
expressly assigned by statute to fiscal/social courts
– Eg asylum, planning, environmental matters
• Contrast Conseil d’Etat:
– No advisory functions
– Wholly independent from executive
83. Constitutional courts
• State constitutional courts (Länder)
• All courts subject to review by Federal
Constitutional Court (Bundesverfassungsgericht,
BVerfG)
84. Constitutional courts
• State constitutional courts (Länder)
• All courts subject to review by Federal
Constitutional Court (Bundesverfassungsgericht,
BVerfG)
• Bundestag (parliament), Bundesrat (federal
council) each choose half of members
85. Constitutional courts
• State constitutional courts (Länder)
• All courts subject to review by Federal
Constitutional Court (Bundesverfassungsgericht,
BVerfG)
• Bundestag (parliament), Bundesrat (federal
council) each choose half of members
• 12 year non renewable term
86. Constitutional courts
• State constitutional courts (Länder)
• All courts subject to review by Federal
Constitutional Court (Bundesverfassungsgericht,
BVerfG)
• Bundestag (parliament), Bundesrat (federal
council) each choose half of members
• 12 year non renewable term
• Bundestag delegates to judges election board
87. Constitutional courts
• State constitutional courts (Länder)
• All courts subject to review by Federal
Constitutional Court (Bundesverfassungsgericht,
BVerfG)
• Bundestag (parliament), Bundesrat (federal
council) each choose half of members
• 12 year non renewable term
• Bundestag delegates to judges election board
• Age of judges: 40-68
90. German court structure
• Conflicts of jurisdiction?
• Court where case is filed decided whether it has
jurisdiction
91. German court structure
• Conflicts of jurisdiction?
• Court where case is filed decided whether it has
jurisdiction
• If decides no jurisdiction, may transfer cases to
another court
92. German court structure
• Conflicts of jurisdiction?
• Court where case is filed decided whether it has
jurisdiction
• If decides no jurisdiction, may transfer cases to
another court
• Contrast:
– France: Tribunal des conflits
– Italy: Court of cassation decides conflicts