The actual nature of the enforceable decision (on the example of France)

Abstract

In public law, an enforceable decision means an act adopted by an administrative body or a court, the execution of which is mandatory for everyone, regardless of social, economic or other status. Such a decision has immediate legal consequences and must be implemented in accordance with the procedure prescribed by law.

Traditionally, in civil law, “enforceable” means: the act is accompanied by the right of compulsory execution; the subject possessing this right can apply coercion to the property or person of the debtor; the goal is to “mobilize” the disobedient person — that is, to ensure the execution of the decision, even by force. Why did this concept enter administrative law? Historically, for a long time, ministers and administrative bodies themselves performed the function of judges in the first instance of administrative disputes. Their decisions then had the force of court decisions. Therefore, they were materially enforceable — that is, they could actually be enforced.

When administrative bodies were deprived of the right to administer justice and it was transferred to the courts: a blurred line appeared: between previously issued court decisions and ordinary administrative acts issued by them. This historically developed “judicial” image contributed to the idea that administrative acts also carried a strong, polysemic meaning of “enforceability.”

The principle of enforceability implies that:

• When a decision of an administrative body or court enters into legal force, its execution is mandatory;


• A decision can only be suspended or annulled by law or a court;


• This principle protects the legal order of the state and the efficiency of public administration.

The doctrinal unanimity of the enforceable decision has the power to dispel all criticism. Nevertheless, it is interesting to examine the true content of the concepts approved by everyone. In the present case, such an investigation would allow us to realize that the enforceable character cannot be the basis of such a principle. Its natural proximity to the binding character of decisions hinders it. Moreover, this feature, by killing logic, results in the degradation of the valid principle.