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Case:
Dame Cachet
Date:
03 November 1922
Translated by:
Professor Bernard Rudden
Copyright:
Professor B. S. Markesinis

Conseil d’Etat

Having seen the application of Madame Cachet . . . asking that it please the Council to annul a decision dated 25 May 1921 whereby the Finance Minister rejected her appeal against a decision of the director of the Rhone Department Registry allowing her compensation of 121 francs 50 for loss of rent, and ordered her to pay back the said sum;

Having seen the Act of 9 March 1918;

Considering that the director of the Rhone Registry awarded Madame Cachet compensation for loss of rent amounting to 121 francs 50; that she, considering this insufficient, applied to the Finance Minister to obtain a greater amount; that, as regards her claim, the Minister, taking the view that Madame Cachet’s property fell into the category of agricultural holding and could therefore not benefit from the compensation awards provided for by the Act of 9 March 1918, believed himself entitled, not only to reject the claim for an increase of compensation submitted, but also ex officio to cancel the compensation of 121 francs 50 awarded by the Director;

As regards the Finance Minister’s cancellation of the 121 francs 50 compensation awarded by the Registry Director:
Considering that, as a general proposition, while ministers have power themselves to annul ex officio any administrative decision which confers rights but is vitiated by illegality of such a nature as to entail its annulment in legal proceedings, they can do so only while the limitation period for legal challenge is unexpired; that, where proceedings have been commenced, the minister, after expiry of the period and so long as the Conseil d’Etat has not issued a decision, may still himself, in order to bring the matter to a satisfactory conclusion, annul the challenged act in so far as it was the object of the said legal proceedings; but he can do so only within the limits of such annulment as was sought by the applicant, and has no power to infringe the vested rights of a party under a decision which, within the relevant limitation periods, has been neither challenged nor recalled;

Considering that these general principles are to be applied to the special procedure introduced by the Act of 9 March 1918;

Considering that, under article 30(4) of the Act of 9 March 1918, claims for compensation made by the owners designated in that article are, in each Department, to be sent to the Registry Director, and that under paragraph 9 of the said article, that officer fixes the amount of compensation ‘by delegation from the Minister’; that within two weeks of being notified of this decision the owner may lodge an appeal with the Minister who is to take a decision within one month, saving always the opening of proceedings before the Conseil d’Etat;

Considering that the Registry Director’s decision is executive in character and creates rights and so, under the general principles set out above, can be modified ex officio by the Minister only on legal grounds and within the two week period mentioned above;

Considering that it emerges from the investigation that the Registry Director’s decision of 30 November 1920 awarding Madame Cachet compensation of 121 francs 50 was notified to her more than two weeks before the decision of the Finance Minister of 25 May 1921; hence Madame Cachet had a vested right to benefit from the compensation of 121 francs 50 awarded her by the Registry Director, and the Finance Minister could not lawfully order her to repay;

On Madame Cachet’s submissions for obtaining higher compensation;

Considering that it emerges from the investigation that Madame Cachet’s property forms in total an agricultural holding; that consequently the agreement between Madame Cachet and her tenant Mr. Bramas was not a residential but a farming lease and so outside the provisions of the Act of 9 March 1918; that the Finance Minister was thus justified in refusing, for this reason, to accept the submissions in the claim if which he was seised . . (Decision of the Minister annulled in so far as it ordered repayment of the sum of 121 francs 50; for the rest, Madame Cachet’s submissions rejected).

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