However in this case such was not the case

This is a new stage in community integration that comes through the Council of State, by a decision of 30 October (No. 298.348). This important decision shows clearly the commitment of the high administrative court to register approach resolutely European. The Council of State is in effect, admits for the first time, the possibility for a litigant to avail of a directive in support of an action against an individual act.

This reversal of jurisprudence marks an evolution of the spirits. Since 1978, and a famous judgment Cohn-Bendit, the Council of State considered that the Community directives are not directly invoked by an individual before the French judge. This jurisprudence does not match that of the Community judge: in 1974, in a case Van Duyn, the Court of justice of the European Communities (ECJ) found that a litigant may directly invoke the provisions of a directive not transposed, provided that they are precise and unconditional. A decision by the French administrative judge was therefore removed in 1978, is taking the letter of the Treaty (which provides that directives are binding only States as to the results to be achieved, but leave them the choice of the means to use).

The last dam survey

The European Union today took another dimension. The Constitution now establishes an obligation of transposition of directives. Most of the courts of the other Member States have gradually rallied to the position of the Court of Luxembourg. In France, the practical consequences of the judgment in Cohn-Bendit gradually reduced over time: the judge has thus recognised the possibility of invoking a directive against a regulatory act. The same possibility was opened to the litigant against an individual decision through the technique of "exception", when such a decision has been made pursuant to a regulatory act, itself contrary to a directive. The Council of State lifted the last dam on October 30, accessing, thirty-one years later, the wish of the Government Commissioner in the case of Cohn-Bendit: ' has the level of the European Community, it should y have no Government of judges or judges war. " There must be room for dialogue of the judges.

Remains that this direct effect of directives is not without limits. The Council of State resumes here the conditions laid down by the Community judicature: on the one hand, a directive is not applicable between individuals: it creates rights for public authorities. On the other hand, the provisions relied upon must be non-conditional and specific. However, in this case, such was not the case. The applicant, a magistrate with trade union activities and considering himself a victim of discrimination, requested the benefit of a directive of 27 November 2000. It organizes a suitable device of burden of proof for cases of discrimination. But opening the Faculty for the States to depart in some cases to this new regime, it is not unconditional. Consequence: the applicant could not rely on it. It was therefore subject to the French common law, which imposes on those who feels discriminated against to prove it. Often difficult to bring proof...

But - another contribution of the case-, the administrative judge decides to establish, through purely Praetorian, a regime very similar evidence of that provided for by the directive of 27 November 2000: once the applicant refers to a bundle of evidence in support of his thesis, it enters a mechanism of presumption. The burden of proof then weighs on the administration. This is not the first time that the Council of State found in European law the source of inspiration for a principle that spent by judicial means; This method is not recall decision KPMG on March 24, 2006, which had enshrined the principle - not writing - of legal security in French law, inspired by Community law. This judgment of October 30, 2009 is, without doubt, a new manifestation of the emergence, by successive keys, a real European public law common to all Member States of the Union.