French law

In academic terms, French law can be divided into two areas: private law ("droit privé") and public law ("droit public"). Private law includes, in particular, civil law ("droit civil") and criminal law ("droit pénal"). Public law includes, in particular, administrative law ("droit administratif") and constitutional law ("droit constitutionnel").

However, in practical terms (that is, in terms of what most French lawyers deal with on a day-to-day basis), French law can be said to comprise three principal areas of law: civil law ("droit civil"); criminal law ("droit pénal") and administrative law ("droit administratif"). The announcement in November 2005 by the European Commission that, on the basis of powers recognised in a recent European Court of Justice ("ECJ") ruling, it intends to create a dozen or so European Union ("EU") criminal offences suggests that one should also now consider EU law ("droit communautaire", sometimes referred to, less accurately, as "droit europeén") as a fourth area of law in France, and not simply a group of rules which influence the content of France's civil, criminal and administrative law.

Droit civil

The term civil law refers most usually, in France, not to the French legal system as a whole (cf common law) but simply to the law of obligations, i.e., to tort law and contract law. Hence, tort and contract rules are set forth in France primarily in the Code civil, or Civil Code.

Droit pénal

The major criminal law provisions are set forth in the Code pénal, or Criminal Code. For example, the Code pénal proscribes many offences against the person (homicide, assault, etc.) and many economic offences (theft, laundering, etc.), amongst others. However, a number of criminal provisions are contained in stand-alone legislation which for whatever reason has not been codified (defamation, etc.).

Droit administratif

Administrative law governs the relationship between the State (in its various manifestations) and private citizens or organisations. The rules of administrative law are set forth in particular in the Code administratif, or Administrative Code, although - as with criminal law - there are also a large number of legislative and regulatory texts that stand alone, such as the texts governing the status and powers of industry regulators (most of which have the status of fr:autorité administrative indépendante or AAI).

Droit administratif sectoriel

With the opening to competition of industries such as gas, electricity, broadcasting and telecommunications, the laws introduced to govern such competition in the public utility sectors (collectively known as droit sectoriel) have created the most animated manifestation of administrative law in France today, and keep a large number of lawyers - both avocats (lawyers admitted to the bar) and juristes d'entreprises (in-house lawyers) - gainfully employed. Indeed, the only time most French lawyers will go anywhere near an administrative court is in the context of a dispute with an AAI.

The Example of Electronic Communications Law

Perhaps the most active area of public utility law is the converging domain of telecommunications and broadcasting (collectively known as electronic communications).

The rules applicable to the establishment and operation of electronic communications networks (e.g., building a cellular telephone network), and to the offering of electronic communications services (e.g., offering a service on that same network allowing subscribers to communicate with one another), are set forth in the Code des postes et communications électroniques (Post and Electronic Communications Code). The State is represented in this area by the AAI known as the Autorité de régulation des communications électroniques et des postes (ARCEP).

The rules applicable to any content delivered over an electronic communications network (e.g., providing videos on demand over the aforementioned cellular network) are set forth in a stand-alone law of 1996, which can be referred to as the Broadcasting Act. The State is represented in this area by the AAI known as the Conseil supérieur de l'audiovisuel (CSA).

Both ARCEP and the CSA make decisions affecting market players on a regular basis. Such decisions may be "regulatory" in nature (i.e., they pertain to the sector as a whole) or they may be judicial (i.e., they settle a dispute between two or more market players).

When a market player wishes to contest a regulatory decision, it can appeal directly to France's highest administrative court, the Conseil d'Etat. (Whereas when it wishes to contest a judicial decision, it must appeal to the Court of Appeal, which is a civil court and not an administrative court - see Article L.36-8(IV) of the Post and Electronic Communications Code).

Other Public Utility Laws

Gas / electricity / transport

Droit administratif général

Droit communautaire

Traditionally, Community law has been viewed as a body of rules which are transposed automatically (in the case of a regulation) or by national legislation (in the case of a directive) into French domestic law, be it civil, criminal or administrative.

However, in November 2005 the Commission announced that, on the basis of a (somewhat controversial) ECJ court decision (holding that the EU had the right to require Member States to introduce criminal laws because, in the case at hand, it was necessary to uphold EU legislation on combatting pollution), it intended to create a dozen or so EU criminal offences, creating echos of the federal laws which exist in the United States of America. Indeed, the Commission - led by its Commissioner for Justice and Home Affairs Franco Frattini - insists that the principle created in the ECJ court decision applies across all policies, not just pollution.

Subsequently, in May 2006, the Commission formally submitted to the EU Parliament and EU Council (which have co-decision powers) the first draft directive aiming to put this new prerogative into effect. The draft concerns counterfeiting (for example, of car parts, drugs, children's toys...) and requires each Member State to set the following penalties for what it terms "organised counterfeiters": a period of imprisonment of up to four years and a fine of up to €300,000. It will be interesting to see if either the Parliament of the Council (the latter voting by qualified majority) will accept or reject the proposed directive.

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