The Emergence and End of Application of the Theory of Administrative Acts Filed Separately (acte détachable) in Administrative Contract Disputes under French Law

Abstract

French law has long held that administrative contracts are a relationship between contracting parties as if they were the law that has to be respected. The person who shall file
a lawsuit to challenge the contract's legality or performance under the agreement, therefore,
has to be only one of the contracting parties. If he is a third party to the contract, he has no right to sue the contract. Until the verdict was reversed by the Council of State as the normative case (Grand Conference): Martin case of 1905, the Council of State laid down the principle that the third party to the contract could file a lawsuit to request the court revoke administrative acts that were separated from contracts. However, the normative judgment has been criticized for
its fairness and effectiveness in resolving administrative contract disputes in practice. This led to the reversal of the Council of State’s decision in the Département du Tarn-et-Garonne case dated April 4, 2014. This judgment (decision in the Département du Tarn-et-Garonne case) opens the way for the third parties having an interest in the case to file a lawsuit regarding administrative contract disputes in the same way as the contracting parties. This judgment marks the end of the application of the theory of administrative acts filed separately in administrative contract disputes under French law. This article will study the development of the theory of administrative acts filed separately in administrative contract cases, the judgment of the relevant courts, the support, and criticism of the scholars from the past when the said theory was first created until the present has canceled its application in the French administrative courts.