Stay of Execution
Explanation
The general principle in administrative justice is that filing a review does not suspend the execution of the challenged administrative act or judicial decision. This means that the administration continues to execute its decision despite the existence of an appeal against it before the State Council.
As an exception to this principle, the State Council may decide on a stay of execution [sursis à exécution]. This decision requires the presence of three combined conditions. First, the petitioner must submit an explicit request for it. Second, it must appear from the file that the execution may cause severe damage to the petitioner. Third, the review must be based on important new grounds.
The law strictly prohibits a stay of execution in specific cases, even if the mentioned conditions are met. A stay of execution is not permissible if the review aims to annul a regulatory decree [décret réglementaire]. A stay of execution is also prohibited if the challenged decision relates to the preservation of order, security, public safety, or public health.
The law sets precise time limits for deciding on a request for a stay of execution. The opponent is granted a time limit of two weeks at most to reply to the request. After the opponent's reply is deposited, the State Council must decide on the request within a time limit of two weeks at most.
After the end of the phase of exchanging pleadings, the investigation phase begins. The president of the chamber appoints a reporter [rapporteur] within three days, and refers the file to him. The president of the chamber has the right to assume the function of the reporter himself. The reporter undertakes the investigation of the review and conducts what is necessary to clarify the case.
Official legal articles
amend · 1983-11-10: Open the official text
replace · 1993-10-14: Open the official text
Think deeper
Why do you think the legislator absolutely prohibited the stay of execution for decisions related to the preservation of security or public health, even if their execution would cause severe damage to the petitioner?
Flashcards
Does filing a review automatically lead to a stay of execution of the challenged administrative decision?
No, the review does not suspend the execution of the challenged administrative act or judicial decision.
What are the conditions that allow the State Council to decide on a stay of execution?
An explicit request from the petitioner, the possibility of causing severe damage to the petitioner, and the review being based on important new grounds.
Mention two types of decisions for which a stay of execution is absolutely not permissible.
A regulatory decree, and decisions related to the preservation of order, security, public safety, or public health.
What is the maximum time limit given to the opponent to reply to the request for a stay of execution?
Two weeks at most.
When must the State Council decide on the request for a stay of execution?
Within a time limit of two weeks at most from the date the opponent's reply is deposited.
When is the reporter appointed in the lawsuit?
Within the three days following the end of the exchange of pleadings.
What is the function of the reporter appointed by the president of the chamber?
He investigates the review and conducts the investigations he deems necessary to clarify the case.
Practice questions
A citizen filed a review before the State Council to annul an administrative decision. What is the immediate effect of this review on the execution of the decision?
The review does not suspend the execution of the challenged administrative act or judicial decision (Article 77).
In which of the following cases does the law prohibit the State Council from deciding on a stay of execution?
A stay of execution is prohibited if the review aims to annul a regulatory decree or a decision related to public order, security, safety, or health (Article 77).
The opponent deposited his reply to the request for a stay of execution. When must the State Council decide on this request?
The State Council must decide on the request for a stay of execution within two weeks at most from the date the opponent's reply is deposited (Article 77).
The period of exchanging pleadings in an administrative lawsuit has ended. Who has the right to assume the function of the reporter?
The president of the chamber appoints a reporter and may assume the function of the reporter himself (Article 78).
What is the condition related to the grounds of the review for the State Council to accept a request for a stay of execution?
A stay of execution requires that it appears from the file that the review is based on important new grounds (Article 77).
Case problems
A restaurant owner challenged an administrative decision to close his restaurant for reasons related to public health. He submitted an explicit request for a stay of execution of the decision, proved that the closure would cause him very severe material damage, and presented important new grounds in his review. Can the State Council decide on a stay of execution of the closure decision?
Model answer
The State Council cannot decide on a stay of execution of the closure decision.
A stay of execution is not permissible if the review aims to annul a decision related to public health (Article 77).
This prohibition is absolute and applies despite submitting an explicit request, proving severe damage, and having important new grounds.
Self-grading rubric
An employee filed a review to annul an administrative decision transferring him arbitrarily, and requested a stay of execution. The administration (the opponent) was notified of the request. What are the legal time limits granted to the administration to reply, and to the Council to decide on the request?
Model answer
The opponent, which is the administration here, is granted a time limit of two weeks at most to reply to the request for a stay of execution (Article 77).
The State Council decides on the stay of execution request within two weeks at most from depositing the administration's reply.
Self-grading rubric
In a pending lawsuit before one of the chambers of the State Council, the phase of exchanging pleadings between the parties has ended. What is the next procedural step that the president of the chamber must take, what is the time limit specified for it, and what is the role of the assigned person?
Model answer
The next step is to appoint a reporter for the lawsuit and refer the file to him, or for the president of the chamber himself to assume the function of the reporter.
The specified time limit for this is within the three days following the end of the exchange of pleadings (Article 78).
The role of the reporter is to undertake the investigation of the review and conduct the investigations he deems necessary to clarify the case (Article 79).