2023-07-19 10:30:00
APPOINTMENT – Jean-Denis Combrexelle has just been appointed director of cabinet for Élisabeth Borne. He was previously a member of the Council of State and judged the actions brought against the government during the health crisis. What to think of the impartiality of a judge who is supposed to objectively criticize the action of the government to become its personal adviser a few months later?
Mr. Combrexelle is the former president of the litigation section of the Council of State for the period 2018-2021. He also chaired the social section from 2014 to 2018. After having been chief of staff to the Keeper of the Seals from May 23, 2022, he has just been appointed chief of staff to the Prime Minister.
“This appointment affects the dignity of his former functions and the independence of the Council of State”
The Council of State is both an administrative jurisdiction and an adviser to the Government. On the one hand, it examines draft laws, ordinances or decrees. On the other hand, it judges the appeals against these same regulatory acts taken by the ministers.
This is why the function of counter-power of the institution has always been questioned, not to mention that its members do not have the status of magistrate, they are appointed civil servants. Despite everything, their impartiality remains guaranteed by law.
With this very recent designation of the former number 2 of the supreme jurisdiction, it must be admitted that the government no longer even feigns the separation of powers with administrative justice.
Moreover, the academic Paul Cassia, professor of law at the Sorbonne, does not hesitate to denounce an appointment which “affects the dignity of his former functions and the independence of the Council of State”.
The former No. 2 of @Council_State becomes chief of staff @Elisabeth_Borneafter having been that of @E_DupondM.
This appointment affects the dignity of his former functions and the independence of the @Council_State (see preamble and pt 13 of the Charter of ethics jur. adm.). pic.twitter.com/qdrwlBqpBX— Paul Cassia (@PaulCassia1) July 17, 2023
It will indeed become more and more complicated to explain to litigants that appeals against government action are dealt with in complete impartiality. And what about the trials already judged by this senior official in particular.
The summary proceedings almost all rejected
From October 30, 2020, the Council of State was seized of a whole bunch of proceedings in summary proceedings to have the measures taken by the government during the health crisis annulled.
Whether it is the confinement of the population, the wearing of masks, through the closing of bars, restaurants and ski lifts, practically everything has been rejected en bloc. The administrative court saw neither urgency nor “serious and manifestly unlawful interference with a fundamental freedom”.
However, on the merits, some lawyers are beginning to obtain cancellations, two years later. For example, Me Gaëtan Rothdiener has just obtained the cancellation of measures pronounced by Olivier Véran. They concerned the control of the vaccination obligation of liberal health professionals.
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