2023-09-30 13:45:00
JUSTICE – On October 10, an unusual hearing will be held at the Administrative Court of Douai (North). In question, the future of regulated justice professions, which guarantee the exercise of public service missions useful to all.
Regulated justice professions are part of these activities governed by specific laws and administrative regulations. Their access is limited and those who practice them (lawyer, architect, doctor, notary, bailiff, etc.)(1) ) must demonstrate their abilities and qualities to carry out a public service mission.
The Macron law breaks everything
In 2015, the Macron law changed the situation. This reform deregulates several professions, including those of the bailiff and the judicial auctioneer. These two functions are brought together under a single profession created on July 1, 2022: that of “commissioner of justice”.
This public, ministerial officer, appointed by the Minister of Justice, therefore takes over all the tasks of the two professions for which he replaces. It carries out legal missions (seizures, recovery, application of court decisions, etc.) and is responsible for implementing court decisions requiring the sale of movable property at public auction.
This reunification amounts to going back more than two centuries in the history of France. Indeed, at the time of the French Revolution, a comparable status already existed: the bailiff-auctioneer.
Little appreciated by the population, who do not fail to complain about it in the famous lists of grievances, this profession is considered a source of moral excesses. In question, the greed of the actors of a profession (whose income was neither regulated nor guaranteed) and an ambiguous position as “judge and party”.
On the importance of regulation
The profession of bailiff as we know it, in the contemporary sense, was born under the Empire. The decree of June 14, 1813 halved their number, thanks to the establishment of a closed number (2) and regulations that changed little or little until 2015.
The bailiff is then a public officer (to whom public power is delegated) and a ministerial officer (because he holds an office conferred for life by the State).
He thus achieves a balance which makes him independent on the one hand and which on the other hand leaves him room to remember to be “human” in carrying out his missions. The latter are then governed by a single satisfactory rate, on a defined territory, well known for its services. In short, it is about carrying out real public service missions.
It is this balance that, for critics of the reform, the Macron law of August 6, 2015 destroys. Passed thanks to the use of 49.3, it overturns the table. Six regulated professions are impacted: notaries, justice commissioners, commercial court clerks, judicial administrators, legal representatives, council lawyers.
Last February, the Competition Authority (which aims to combat anti-competitive practices and improve the competitive functioning of markets) launched two public consultations.
The objective is to change the freedom of installation of justice commissioners and to revise the map relating to their location. This independent administrative authority, which should in theory regulate the regulated professions of law, seeks to implement the conditions of application of the Macron law.
It is therefore a question for her of“improve access to public or ministerial offices with a view to strengthening the territorial cohesion of services and gradually increasing the number of offices in the territory.” An increase in the number of offices, and therefore in the number of bailiffs in France, which is of little concern to French citizens… Who cares about the fate of the members of this profession, who does not have a very flattering image among the great audience ?
Worrying logic of a “business like any other”
And yet, it reveals a completely worrying logic, which concerns other regulated professions: that of a reduction in the qualitative criteria to be respected in order to exercise a public service mission. A development which is linked to the economic policies of liberalization of sectors of activity and markets across the board, carried out since the end of the 1970s, to the detriment of the sovereign powers of the State.
What does that mean? By breaking the closed number by establishing a 25% increase in staff numbers by 2029, by calling into question the territorial competence of the profession, by lowering the price of its actions, we first witness a decline in the quality of services. Then comes the commodification of acts which concern sensitive situations, linked to human justice. In short, what was a public service mission becomes a business like any other.
Far from being accepted by the profession, the Macron law reform project is now being attacked before the administrative courts. A bailiff based in Hauts-de-France was scandalized by this development. Jean-François Tacheau has decided to hold the State responsible, due to the damage that, according to him, this Macron law has caused to his profession, and more particularly to his study, whose position is peripheral.
An audience that rekindles the debate
On October 10, a hearing will be held at the Administrative Court of Douai, rue de la Comédie. It illustrates the problem of calling into question these so-called “regulated” justice professions. According to Me Tacheau, the Macron law has indeed resurrected the “bailiff-auctioneer”, which he explained previously in an article published in France-Soir, last May.
In his eyes, the independence of the exercise of his profession is threatened. And the litigant’s guarantee is also guaranteed, by calling into question the constituent elements of their property rights (with a very significant extension of territorial jurisdiction, an unlocked numerus clausus and a monopoly that is narrowed to say the least).
This bailiff from the Dunkirk region firstly denounces the economic war born from this reform, which forces customers to compete, making the appearance of ethical problems inevitable.
Beyond what appears to be a desire to defend one’s regulated, and therefore secure, professional activity, the question goes much deeper in the social field. Here again, a look at history clarifies things. Ancient Rome invented officers. The latter execute court decisions, under the authority of a prefect or a judge. And the purpose of their creation is linked to the need to prohibit creditors from executing these decisions themselves, with a view to preserving the imperatives of humanity.
However, the Macron law shakes up the status of bailiffs and tends to make them “the armed wing” of their clients. A predictable, mechanical fact, which goes against the obligations they naturally have towards people with whom they have not contracted. And in particular those they pursue to obtain payment of a debt.
At first instance, following the conclusions of the Government Commissioner, the Administrative Court rejected the request on the grounds that the causal link – i.e. the possible migration of customers due to the increase in territorial jurisdiction – did not been demonstrated.
However, certain clients have indeed denounced contracts which aim to extend this territorial jurisdiction. And others have already been condemned for wrongful termination, having carried out a regrouping impossible to carry out without this extension of competence, which was surprising.
A business context
This Macron reform, a significant element, was put in place by the former president of the National Chamber of Bailiffs. The worlddated July 25, 2020 reports a report for illegal taking of interests against him.
Moreover, Marianne (in his editing from December 1 to 7, 2022), reported suspicions of hidden financing of Emmanuel Macron’s campaign by the same President. Which he firmly denies.
The new National Chamber has taken legal action against the former president, with a view to regaining control of the assets of the ADEC company. This IT service provider, used by the entire profession, also had the same president. The Directorate of Civil Affairs and Seal (DACS) proposed a mediation refused by the current president, Benoît Santoire.
So many cases which have not made it possible for the profession to calmly accept a reform whose principle is not understood or which does not improve the perception of the social usefulness of its crucial function for society, towards the great audience.
In the second instance, as the Ministry of Justice was slow to respond, the Administrative Court was obliged to issue a formal notice against it on August 22 to respond within the month.
The latter having ignored it, the applicant filed a new brief in which he asks the Court for the implementation of article R612-6 of the Code of Administrative Justice which provides that “if, despite formal notice, the defendant has not produced any brief, it is deemed to have acquiesced in the facts set out in the applicant’s brief.”
And only after the deadline expired did the Ministry of Justice submit a defense brief, “refraining moreover from responding to the arguments presented in the request, with a display of positions of principle, a copy of the conclusions of first instance”, according to the applicant. We therefore imagine that this case must be an embarrassment to those around us, in high places, and the judgment of the Court of Appeal is awaited with obvious interest by an entire profession.
Notes :
(1) From one European Union country to another, the number of regulated professions and their type may change. A policy of harmonization is made in this area, strongly recommended to national governments, in the Main Guidelines for Economic Policies (GOPE) published each year by the EU and “reclassified” recently in the form of “work programs“.
(2) Closed number is an expression that comes from Latin where it literally means “closed number”. It indicates a limitation – decided by a public or professional authority – on the number of people admitted to exercise a function or profession.
#Macron #law #administrative #hearing #questions #fate #reserved #regulated #professions #guarantors #justice #human #scale