First Administrative Challenge launched by ASER against the Prime Minister of France

The submitted arguments proceeded on three grounds.

First, that the contested licences were unlawful because the Prime Minister had failed to follow the prescribed procedure set out in governing legislation by not consulting with the CIEEMG prior to issuing the licences. Code of Defence, Articles R2335-11 and R2335-15

Second, that by issuing the licences the Prime Minister had breached France’s international obligations due to the alleged violations of Article 6(3) and Article 7(7) ATT and Articles 1 and 2 EU Common Position. The main argument in this respect was that the Prime Minister had knowledge, at the time of authorisation, that the exported arms would be used in the commission of war crimes.

In turn, the claimants argued that this was in violation of relevant domestic legislation  that requires compliance with international commitments, including treaty obligations and broader public policy positions on arms exports. Code of Defence, Article L.2335-4

Third, that the decision to issue these licences amounted to an ‘unlawful or irrelevant regulatory act’ under domestic law that should have been annulled by the French Prime Minister. Code of Relations between the Public and Administration

Decision of the Administrative Court

While the Administrative Court of Paris did recognise its jurisdiction to analyse what the government had contested was a non-justiciable political act, it dismissed the claim on all three grounds.

The particular crux of the court’s reasoning was that the ATT and EU Common Position do not have direct effect in domestic law and do not create justiciable rights, and therefore could not ground the claimant’s challenge.

Decision on Appeal 

The Court of Appeal of Paris dismissed the case on appeal based on a lack of jurisdiction.

It did not examine the substance of the legal challenge as, in contrast to the lower court, it agreed with the government’s argument that the contested licensing decision was a political act that cannot be scrutinised by a Court of law.

On 27 January 2023, the Council of State upheld the decision that the Courts do not have the jurisdiction to scrutinise general arms exports licencing decisions, as they are considered in the purview of the government’s foreign policy decisions.