Conseil d’Etat

The Conseil d’Etat in dispute resolution
(litigation section)

On the report of the first sub-section of the litigation section

Having seen the summary application and the further particulars filed on 13 and 23 January and 6 February 2001 by Mr. Robert Casanovas, domiciled at 9, rue du Trenc, at Banyuls-Dels-Aspres (66300); Mr. Casanovas requests the Conseil d’Etat to annul the order of 5 January 2001 whereby the president of the Nancy Administrative Tribunal rejected his claim, under article 521-2 of the Administrative Justice Code, calling for the suspension of the decision of 25 June 1999 whereby the Prefect of Meurthe-et-Moselle and the president of the town council of greater Nancy terminated his service as professional captain of the Fire Brigade, and requesting an order for his retroactive reinstatement in that post, under a penalty of 10,000 francs for every day’s delay after receipt of notice of the order;

Having seen the other documents on the record;

Having seen the European Convention on the Protection of Human Rights and Fundamental Freedoms;

Having seen the Administrative Justice Code;

Having heard in public session:
- the report of Mr Donnat, Auditeur,
- the observations of Messrs Waquet, Farge, Hazan, acounsel for Mr. Casanovas, and of Messrs Monod, Colin, counsel for the town council of greater Nancy,
- the submissions of Ms Fombeur, Government Commissioner;

Considering that article L 522-3 of the Administrative Justice Code provides as follows: ‘Where the claim is not a matter of urgency, or where it appears obvious from the claim itself, that it does not fall within the jurisdiction of the administrative tribunal, or that it is inadmissible or groundless, the interlocutory judge may reject it by reasoned order without applying the two first paragraphs of article L 522-1’; that article L 523-1 of the same code provides that ‘Decisions handed down in application of article L521-1, L 521-3, L 521-4, and L 522-3 are final’, while ‘Decisions handed down in application of article L521-2 may be appealed before the Conseil d’Etat’; that it follows from the combination of these provisions which, in the light of the provisional nature of the measures available to the interlocutory judge, are not incompatible with the provisions of article 6-1 and 13 of the European Convention on the Protection of Human Rights and Fundamental Freedoms, that the order whereby the interlocutory judge rejects a claim by making use of the power conferred on him article L 522-3 can be subject only to a motion to quash brought before the Conseil d’Etat, without it being necessary to determine whether the claim before the judge was brought on the basis of article L 521-1 or L 521-2;

Considering that it is appropriate, therefore, to reclassify, as a motion to quash, the ‘appeal notice’ of Mr. Casanovas, directed against the order whereby the interlocutory judge of the Nancy Administrative Tribunal rejected, under article 521-3 of the Administrative Justice Code, the applicant’s claim that the interlocutory judge, on the basis of article 522-2 of the Administrative Justice Code, order the immediate suspension of the decision terminating his services as professional fire-fighter amd his retroactive reinstatement in that post, under a penalty of 10,000 francs for every day’s delay;

Considering that article R 822-1 of the Administrative Justice Code provides as follows: ‘Motions to quash are distributed among the sub-sections as laid down by article R 611-20’, which authorizes the president of the litigation section to decide on that distribution; that, contrary to the argument of the applicant, the fact that the president of the litigation section was wrongly seised as interlocutory judge of an ‘appeal application’ against the challenged order, did not require him, before remitting the motion to one of the sub-sections, to issue a reasoned order declining jurisdiction as interlocutory judge;

Without need to decide on the other grounds of the application;

Considering that article L 521-2 of the Administrative Justice Code provides as follows: ‘On a motion thereto justified by urgency, the interlocutory judge may order any measures necessary to safeguard any basic freedom threatened, by the exercise of the powers of any legal person of public law or private law entity assigned the management of a public service, with a serious and clearly unlawful infringement. The interlocutory judge shall rule thereon within forty-eight hours’;

Considering that, although the decision to terminate the services of a public employee as a consequence of a refusal of tenure does not of itself involve an infringement of a fundamental freedom, the motives behind that decision may, in certain cases, amount to such an infringement; that hence the interlocutory judge of the Nancy Administrative Tribunal was wrong in law to consider that ,‘whatever the reason for it’, a refusal of tenure could not amount to a serious and clearly unlawful infringement of a fundamental freedom; that in consequence Mr. Casanovas is entitled to require the annulment of the challenged order of 5 January 2001;

Considering that under the provisions of article L 821-2 of the Administrative Justice Code the Conseil d’Etat, when it annuls the decision of an administrative tribunal acting as a court of last resort, may ‘settle the matter on the merits if such a course is justified in the interests of the good administration of justice’; that, on the facts of this case, it is appropriate to settle the matter under the interlocutory procedure involved;

Considering that the record shows that the decision of the Prefect of Meurthe-et-Moselle and the president of the town council of greater Nancy terminating Mr. Casanovas’ service as professional captain of the Fire Brigade, was taken, not because of the opinions he uttered outside the service but because of his professional inadequacies; that in these circumstances it amounts to no infringement of any fundamental freedom; that in consequence Mr. Casanovas is not entitled to require, under article L 521-2 of the Administrative Justice Code, the suspension of the order terminating his service as professional fire-fighter and his retroactive reinstatement under a penalty of 10,000 for every day’s delay;

On the submissions as to the application of article 761-1 of the Administrative Justice Code;

Considering that it is not appropriate, in the circumstances of this case, to apply article 761-1 of the Administrative Justice Code and order Mr. Casanovas to pay the urban council of greater Nancy the sum it requests as expenditure incurred and not covered by costs;

DECIDES:
Article 1: The order of 5 January 2001 of the interlocutory judge of the Nancy Administrative Tribunal is annulled;

Article 2; The request of Mr.Casanovas put to the interlocutory judge of the Nancy Administrative Tribunal, and the remainder of his submissions put to the Conseil d’Etat are rejected;

Article 3: The remainder of the submissions of the urban council of greater Nancy is rejected;

Article 4: This decision is to be notified to Mr. Robert Casanovas, to the urban council of greater Nancy, and to the Minister of the Interior.

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