On 6 December 2021, the French Council of State and ACA-Europe organised the seminar “The judicial review of regulatory authorities” in Paris, France.
The discussions on 6 December 2021, which were devoted to disputes involving the acts of regulatory authorities, led the participants to address the various issues identified by the general report in turn. Several points were highlighted in particular.
With regard to the courts competent to hear such disputes (administrative, civil and constitutional courts), the discussions highlighted the wide variety of solutions adopted by national legislations. The assignment of disputes involving regulatory acts to a particular court rarely stems from the idea that there is a ‘natural court’ with jurisdiction over such acts. On the contrary, the solutions are often the result of history or the legal and political context that prevailed at the time the laws in question were adopted. The participants also stressed that the solution adopted at a particular time for a given regulatory authority often dictates the solution adopted later for other similar authorities.
Furthermore, the discussions highlighted the complexity and the often non-binary nature of the division of powers: the court competent to hear disputes concerning the same regulatory authority may vary, depending on the acts concerned (regulatory or not), on whether or not sanctions are involved, and on whether or not subjective rights are at issue. This complexity can lead to jurisdictional conflicts or referral difficulties. In contrast, the participants insisted that the fragmentation of the disputes had no impact on the intensity of judicial review or on the effective protection of rights.With regard to the admissibility of appeals against the acts of regulatory authorities, the discussions revealed that this type of dispute is not very specific. The competent courts assess admissibility using their usual analytical framework (the applicant’s interest in taking action or the infringement of a subjective right). However, this leads national courts to adopt different solutions, in particular for appeals against soft-law acts adopted by these authorities. In countries that require the applicant to state that one of his rights has been infringed, a direct appeal against a soft-law act setting out the regulatory authority’s doctrine on a given subject is not, in principle, permitted: the applicant may subsequently challenge individual decisions concerning him and thereby assert his subjective rights. In other countries, on the other hand, the admissibility of appeals against soft-law acts (guidelines, recommendations, etc.) is widely accepted, even before individual decisions are taken, in order to defuse possible subsequent infringements of individuals’ rights.
Some participants also pointed out that regulatory authorities whose acts are challenged before the courts sometimes seek to minimise the ‘decision-making burden’ of their soft-law acts, in order to avoid or delay the moment of judicial review.
With regard to the internal organisation of the courts and the investigation of appeals, the discussions highlighted the particular need for expertise and specialisation. There is not only a need for technical expertise and specialisation in each sectoral regulatory authority’s own area of competence (energy, electronic communications, personal data, etc.). There is also a need for legal specialisation: the participations underlined how complex and specific regulatory law had become.
The discussions made it possible to mention the various tools, used to varying degrees by national courts, which enable judges to meet this need for specialisation and expertise: the presence of expert members within the chamber; recourse to external expertise; the importance attached to iterative exchanges with the parties in the course of the investigation; the particular role of ‘quality testing’ or ‘truth testing’ played by oral exchanges in the context of preliminary or trial hearings; the importance of initial and ongoing training for judges, etc. The courts therefore need not only to become technically ‘more competent’ in understanding the parties, but also to encourage the parties to be as clear and didactic as possible in presenting their own arguments.With regard to the extent of judicial review of the acts of regulatory authorities, the discussions confirmed the existence of a wide margin of discretion on the part of the authorities concerned, while emphasising the trend towards greater judicial review. The participants stressed the particular importance of full judicial review of the procedure for adopting the acts of regulatory authorities (respect for the rights of defence, the obligations of prior consultation or consultation, the principle of impartiality, etc.).
It also became clear during the discussions that the technical nature of the subject matter should not be a hindrance to judicial review: the participants insisted that the judge had all the tools at his disposal to understand the contested acts and to check the accuracy and relevance of the facts on which the regulatory authority based its decision.
As regards the place occupied by the courts in the regulatory ecosystem, the discussions underlined the interest that judicial review represents for the regulatory authorities themselves: although the judge may be led to annul or reform certain regulatory decisions, it generally makes it possible to guarantee the legal quality of the regulatory acts submitted to the judge’s examination; the existence of in-depth judicial review also encourages the regulatory authorities to ensure that the reasons for their decisions are well founded, that the procedural rules are complied with, and that their acts are factually sound. The discussions also highlighted the fact that judicial review could reinforce the independence and impartiality of these authorities.
Conversely, the participants stressed that regulatory disputes brought the courts into contact with a particularly innovative and demanding area of public action. In this area, it is particularly important for them to show flexibility in their internal organisation or in their investigative techniques, to ensure that they hand down judgments within appropriate time limits and to assess the social and economic impact of their judgments.