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Case:
D. 1909, III, 57 Case Compagnie des Chemins de Fer de l’Est
Date:
06 December 1907
Translated by:
Tony Weir
Copyright:
Professor B. S. Markesinis

D. 1909, III, 57
Case Compagnie des Chemins de Fer de l’Est

6 December 1907

The Minister of Public Works seeks the dismissal of the application on the ground that the decree of 1 March 1901 cannot be attacked for excès de pouvoir in as much as it is a regulation of public administration;

Given that according to the laws of 11 June 1843 (art. 9) and 15 July 1845 (art. 21) regulations of public administration may prescribe the steps required toensure the good order, security, maintenance, functioning and development ofthe railways, and that the railway companies seek a declaration that the measurescontained in the regulation of public administration of 1 March 1901 go beyondthe powers delegated to the Government by the laws cited above;

Given that under article 9 of the law of 24 May 1872 the acts of the various administrativeauthorities may be annulled for excès de pouvoir;

Given that although it is true that the acts of the head of state in regulating the public administration pursuant to powers delegated to the Government by thelegislature have as full an authority in the particular case as the powers sodelegated nevertheless, in as much as they emanate from an administrative authority,they remain subject to the control envisaged by article 9 of the law alreadycited; that therefore it is appropriate for the Conseil d’État,in its contestative jurisdiction, to check whether the measures decerned by thepublic administration fall within the powers conferred on it;

So far as the complaint is based on the fact that the powers delegated to the head of state by the laws of 11 June 1842 (art. 9) and of 15 July 1845 (art. 21) were exhausted the ordinance of 15 November 1846 and that its provisions could therefore not, in the absence of a further delegation of powers by thelegislator, be altered by the decree in question;

Given that when the head of state is tasked by the legislator to implement a law by a regulation of public administration, his mandate is not exhausted by the first regulation he promulgates pursuant to that law; rather, in the absence of any exception inferable from the purpose of the law or any explicit provision in it, such delegation necessarily includes the right of the government to modify its original regulation in order to implement the law in the light of experience or as seems justified by novel circumstances.

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