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Table of Contents

  1. Acknowledgments
  2. Chapter one: Defining the constitution
  3. Chapter two: Parliamentary sovereignty
  4. Chapter three: The rule of law and the separation of powers
  5. Chapter four: The royal prerogative
  6. Chapter five: The House of Commons
  7. Chapter six: The House of Lords
  8. Chapter seven: The electoral system
  9. Chapter eight: Parliamentary privilege
  10. Chapter nine: Constitutional conventions
  11. Chapter ten: Local government
  12. Chapter eleven: Parliamentary sovereignty within the European Union
    1. Van Gend en Loos v Nederlandse Tariefcommissie (case 26/62) [1963] ECR 1.
    2. Costa v ENEL (case 6/64) [1964] ECR 585 - ECJ
    3. Costa v ENEL (case 6/64) [1964] ECR 585 - Italian Constitutional Court
    4. Franz Grad v Finanzamt Traunstein (case 9/70) [1970] ECR 825
    5. Politi SAS. v Ministry for Finance of the Italian Republic (Case 43-71) [1971] ECR 1039.
    6. Internationale Handelsgesellchaft mbH v Einfuhr- & Vorratsstelle fur Getreide & Futtermittel (Case 11/70) [1970] ECR 1125; before the ECJ
    7. Syndicat Generale des Fabricants de Semoules [1970] CMLR 395 - (French Conseil d'Etat)
    8. Internationale Handelsgesellchaft mbH v Einfuhr- & Vorratsstelle fur Getreide & Futtermittel (Solange I) [1974] 2 CMLR; (German Federal Constitutional Court)
    9. Minister for Economic Affairs v SA Fromagerie Franco-Suisse 'Le Ski' [1972] CMLR 330; before the Belgian Cour de Cassation
    10. Administration des Dounaes v Societe Cafes Jacques Vebre Jacques Vabres [1975] 2 CMLR 336 - before the French Cour de Cassation
    11. Frontini v Minister delle Finanze [1974] 2 CMLR 372 (Italian Constitutional Court)
    12. Blackburn v Attorney-General [1971] 2 All ER 1380
    13. European Communities Act 1972
    14. Van Duyn v The Home Office (case 41/74) [1974] ECR 1337.
    15. Walrave v Koch (case 36/74) [1974] ECR 1405
    16. DeFrenne v Sabeena (case 43/75) [1976] ECR 455
    17. Administrazione Dealla Finanze dello Stato v Simmenthal (case 106/77) [1978] ECR 629
    18. Minister of the Interior v Daniel Cohn-Bendit [1980] 1 CMLR 543; (before the French Conseil D'Etat)
    19. Macarthys Ltd v Smith [1979] 3 All ER 325
    20. Garland v British Rail Engineering Ltd [1982] 2 All ER 402
    21. Marshall v Southampton Area Health Authority (case 152/84) [1986] ECR 723; [1986] 1 CMLR 688.
    22. Von Colson and Kamann v Land Nordrhein-Westfalen (case 14/83) [1984] ECR 1891
    23. On the Application of Wunsche Handelsgesellschaft (Solange II) [1987] 3 CMLR 225; before the German Federal Constitutional Court
    24. Marleasing SA v La Commercial Internacional de Alimentacion SA (case C-106/89) [1990] ECR I-4135
    25. Francovich and Bonifaci v Italy (cases 6/90 and 9/90) [1991] ECR I-5357; [1993] 2 CMLR 66
    26. Duke v GEC Reliance Ltd [1988] 1 All ER 626
    27. Litster and others v Forth Dry Dock and Engineering Co Ltd and another [1989] 1 All ER 1134
    28. Factortame Ltd and others v Secretary of State for Transport [1989] 2 All ER 692
    29. Factortame Ltd and others v Secretary of State for Transport (No 2) (Case C-213/89) [1991] 1 All ER 70
    30. R v Secretary of State for Transport, ex parte Factortame (no.2) [1991] 1 All ER 70 (House of Lords)
    31. Thoburn v Sunderland City Council and other appeals [2002] EWHC 195 Admin; [2003] QB 151; [2002] 4 All ER 156
  13. Chapter twelve: The governance of Scotland and Wales
  14. Chapter thirteen: Substantive grounds of judicial review 1: illegality, irrationality and proportionality
  15. Chapter fourteen: Procedural grounds of judicial review
  16. Chapter fifteen: Challenging governmental decisions: the process
  17. Chapter sixteen: Locus standi
  18. Chapter seventeen: Human rights I: Traditional perspectives
  19. Chapter eighteen: Human rights II: Emergent principles
  20. Chapter nineteen: Human rights III: New substantive grounds of review
  21. Chapter twenty: Human rights IV: The Human Rights Act 1998
  22. Chapter twenty-one: Human rights V: The impact of The Human Rights Act 1998
  23. Chapter twenty-two: Human rights VI: Governmental powers of arrest and detention
  24. Chapter twenty-three: Leaving the European Union

Minister of the Interior v Daniel Cohn-Bendit [1980] 1 CMLR 543; (before the French Conseil D'Etat)

Opinion of the Commissaire du Gouvernement (M. Genevois)

M. Daniel Cohn-Bendit is a famous person. In the index of names at the end of the work which the late historian Adrien Daasette devoted to May 1968 the name of Daniel Cohn-Bendit has 44 references. Only General de Gaulle, with 46 references, has more; he easily outdoes Georges Pompidou, who only has 30 references.

The part played by M. Cohn-Bendit in the troubles of May 1968, when he was a student of sociology at the Faculty of Arts of Nanterre led the Minister of the Interior to issue an order for his deportation on 24 May 1968. You confirmed the legality of that order by a decision of 9 January 1970.

Basing himself on the fact that the political and social climate fundamentally changed in France since 24 May 1968, M. Cohn-Bendit on 9 December 1975 requested the Minister of the Interior to cancel the deportation order affecting him. The Minister rejected the request by a decision dated 2 February 1976 in which he indicated 'that it is not at present possible to give a favourable answer to it.'

Within the time limit for requesting judicial review, M. Cohn-Bendit referred the decision of the Minister to the Tribunal Administratif of Paris, on two sets of grounds.

(a) Referring to the case law considered in a decision of 20 November 1974,3 from which it appears that the refusal to cancel a deportation order is subject to a limited supervision by the courts as regards excess de pouvoir.

Cohn-Bendit submitted that the decision of the Minister contained both an error of law and a clearly erroneous exercise of discretion.

(b) M. Cohn-Bendit relied also on the provisions of Community law.

He submitted that the decision of the Minister misapplied the provisions of Article 48 of the EEC Treaty relating to the free movement of workers on the territory of the member countries of the European Economic Community.

According to him, his character as a worker results from the fact that by a contract in writing dated 19 November 1975 he held a contract of employment with the Nouvel Office d'Edition et de Diffusion giving him the post of assistant literary director.6

He also invoked violation by the Minister of the Interior of the provisions of a directive of the Council of the European Communities, no. 64/221 of 25 February 1964 on the co-ordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health.

Directive 64/221 contains two sets of provisions.

One set relates to substance: reasons of public policy (ordre public), public security or public health which restrict freedom of establishment must be based exclusively on the personal conduct of the individual concerned (Art.3(1)); in particular, previous criminal convictions shall not be automatically sufficient to justify them (Art.3(2)).

The other provisions relate to procedure: apart from covering legal remedies in Articles 8 and 9, the directive lays down in Article 6 that the person concerned shall be informed of the grounds of public policy, public security or public health upon which the decision taken his case is based, unless this is contrary to the interests of the State involved.

Mr Cohn-Bendit has inferred from these provisions that all decisions as to the conditions for movement and stay of nationals of the European Economic Community must be formally reasoned: the grounds of public policy (ordre public) must be made known to the person concerned. Since' that was not done in the present case the decision of the Minister was, it is argued, void.

In reply to that argument, the Minister of the Interior, while denying that the provisions of Community law can be effectively invoked by a national of a member country of the European Economic Community who has had a proper deportation order made against him, went on to justify his decision by arguments relating to the personal conduct of M. Cohn-Bendit. He mentioned in that connection convictions in the German courts for participation by M. Cohn-Bendit in a demonstration against the police, for insult to the authorities (outrages) and voies de fait and, finally, for obstruction of traffic.

By a judgment of 21 December 1977, the Tribunal Administratif of Paris decided to stay proceedings until the Court of Justice of the European Communities had, under Article 177 (2) EEC, given a ruling on 'whether by refusing to put an end to the effects of a deportation order made earlier against a national of a member-State of the Community and by thereby denying return to and stay in France on the part of such alien who wishes to return there to carry on work which has been offered him by an enterprise, the Minister is taking a special measure within the meaning of Directive 221 of 25 February 1964 and, if so, whether, so long as the Minister does not claim that the security of the State would justify non-communication of the reasons for his decision, he is bound to communicate to the person concerned the said reasons at the time when the decision is notified or whether, on the other hand, communication of the reasons during proceedings for judicial review against the Minister's decision is, for the purposes of Community law, particularly for the application of the above mentioned directive, sufficient compliance with the requirement for legal remedies'.

The Minister of the Interior appealed against that judgment. He asks that it be quashed on the ground that the directive of 25 February 1964 does not apply to the case of M. Cohn-Bendit. That directive, he argues, aims to co-ordinate the statutory, regulatory and administrative provisions laying down a special regime for aliens and not the power which each deported alien has to ask that the decision affecting him be reconsidered.

JUDGMENT

[1] The Ministerial order of 20 December 1978 which cancelled the deportation order which had applied to M. Cohn-Bendit since 24 May 1968 did not have the effect of revoking the decision of 2 February 1976 whereby the Minister of the Interior refused to put an end to the deportation and which Mr Cohn-Bendit appealed to the Tribunal Administratif of Paris. Thus neither the action brought by M. Cohn-Bendit before the Tribunal Administratif nor, consequently, the appeal brought by the Minister of the Interior from the judgment delivered in that action on 21 December 1977 has become purposeless. Therefore the Conseil d'Etat should give judgment on the appeal by the Minister of the Interior.

[2] According to Article 56 of the Treaty instituting the European Economic Community of 25 March 1957, no requirement of which empowers an organ of the European Communities to issue, in matters of ordre public, regulations which are directly applicable in the member-States, the co-ordination of statute and of subordinate legislation (dispositions legislatives et riglementaires) 'providing for special treatment for foreign nationals on grounds of public policy (ordre public), public security or public health 'shall be the subject of Council directives, enacted on a proposal from the Commission and after consultation with the European Assembly. It follows clearly from Article 189 of the Treaty of 25 March 1957 that while these directives bind the member-States 'as to the result to be achieved' and while, to attain the aims set out in them, the national authorities are required to adapt the statute law and subordinate legislation and administrative practice of the member-States to the directives which are addressed to them, those authorities alone retain the power to decide on the form to be given to the implementation of the directives and to fix themselves, under the control of the national courts, the means appropriate to cause them to produce effect in national law. Thus, whatever the detail that they contain for the eyes of the member States, directives may not be invoked by the nationals of such States in support of an action brought against an individual administrative act. It follows that M. Cohn-Bendit could not effectively maintain, in requesting the Tribunal Administratif of Paris to annul the decision of the Minister of the Interior of 2 February 1976, that that decision infringed the provisions of the directive enacted on 25 February 1964 by the Council of the European Communities with a view to coordinating, in the circumstances laid down in Article 56 of the EEC Treaty, special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health. Therefore, in the absence of any dispute on the legality of the administrative measures taken by the French Government to comply with the directives enacted by the Council of the European Communities, the solution to be given to the action brought by M. Cohn-Bendit may not in any case be made subject to the interpretation of the directive of 25 February 1964. Consequently, without it being necessary to examine the grounds of the appeal, the Minister of the Interior substantiates his argument that the Tribunal Administratif of Paris was wrong when in its judgment under appeal of 21 December 1977 it referred to the Court of Justice of the European Communities questions relating to the interpretation of that directive and stayed proceedings until the decision of the European Court.

[3] In the circumstances the case should be referred back to the Tribunal Administratif of Paris to decide as may be the action of Mr Cohn-Bendit.

Judgment of Tribunal Administratif reversed, and case referred back to it for new judgment. Copy of present decision to be sent to Minister of Foreign Affairs, Minister of the Interior and President of the European Court of Justice.