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The examples of both the United States and France, which represent countries of common and civil law tradition respectively, have been studied to identify and analyze the principal constitutional issues raised by the use of administrative sanctions by administrative agencies,

1.1 Delegation and separation of powers

The first objection that was raised against the use of administrative sanctions by administrative agencies was that imposition of sanctions by the executive was contrary to the principle of separation of powers. According to this concept, the government is divided into three branches: the legislative, which is empowered to make laws, the executive, which is required to implement the laws, and the judicial, which is charged with interpreting the laws and adjudicating disputes under the laws. Under this constitutional doctrine, one branch is in principle not permitted to encroach on the domain or exercise the powers of another branch. Representative democracies such as the United States and France have given this concept a constitutional value[8]. Contrary to the idea conveyed by this concept, in reality there is no strict division of powers. Even the original wording of both the Constitutions of the United States and France[9] blends the powers among the three branches of government. For instance, the President of the United States takes part in the legislative function by proposing laws and by having a veto power over laws enacted by Congress[10]. Similarly, the French Prime Minister is entitled to participate in the legislative function through the proposition of laws[11]. It is therefore accepted that the principle of separation of powers reflects more a general governmental system than an intractable form of organization. Then, it is the function of the constitutional courts[12] to determine the degree of flexibility that can be allowed in the application of this principle.

Delegation of legislative power

Separation of powers is a basic principle of the U.S. Constitution, but up to 1935, the Supreme Court had never held that Congress had violated this principle by delegating its power to the executive branch. The reasons for legislative delegation are well understood. When adopting a legislative programmeme, Congress cannot foresee all the problems that those administering the programmeme will encounter or the adjustments that will be needed as the programmeme develops. As early as 1825 Chief Justice Marshall, in Wayman v. Southard, held that officials administering a general statutory programme must be permitted to “fill up the details”[13] In other words, he recognized that the executive should be vested with regulatory powers to implement the law. In 1935, against the backdrop of the Great Depression, the Supreme Court, in the Panama Refining Co. v. Ryan, 293 U.S. 388, accepted the general delegation of power in the National Industry Recovery Act (Congress to the President and the President to the Secretary of Interior), but struck down the particular delegation as one which was excessive because the Court believed insufficient standards were included in the law to govern those actions entrusted in the President. Shortly after, the Panama Refining ruling, the Supreme Court in Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935), declared unconstitutional another major feature of the National Industry Recovery Act[14] also on grounds of unconstitutional delegation of legislative power. The following year legislation regulating prices and labor relations in the bituminous coal industry was ruled unconstitutional on the same grounds in Carter v. Carter Coal Co., 298 U.S. 238 (1936). Since then, no federal delegation of legislative power has been found unconstitutional by the Supreme Court, although in the last decades the delegations have grown increasingly broad.

Delegation of judicial power

In the United States, Congress is vested with legislative power through the Constitution, and Congress can delegate this power. However, in the creation of administrative agencies, not only have the agencies been empowered with legislative authority that has been delegated to them by Congress, but the agencies have also been given judicial powers by Congress. This raises the question as to whether these judicial powers, which Congress itself does not possess, can be delegated to governmental agencies[15].

In a unanimous decision in 1935 regarding the powers of the Federal Trade Commission, a federal agency, the Supreme Court held, to the extent that the agency exercises any executive function (as distinguished from executive power in the constitutional sense), it does so in the discharge and effectuation of its quasi-legislative or quasi-judicial powers or as an agency of the legislative or judicial departments of the government. Humphrey’s Executor v. United States, 295 U.S. 602 (1935). Without this recognition, the existence of administrative agencies would be unconstitutional, as they exercise many types of powers.

Congress has also determined that administrative agencies can mete out some forms of sanctions. Agencies can impose and enforce administrative fines[16]. In Oceanic Steam Navigation Co. v. Stranahan, 214 U.S. 320 (1909), the Court recognized that it was already commonplace in the early twentieth century for agencies to exercise judicial type powers in imposing appropriate monetary penalties and enforcing such penalties. In upholding the agency’s actions, where Congress had authorized penalties by statute, the Court reasoned, enforcement and collection of the penalty was at least as much of an executive as a judicial function. The powers exercised by administrative agencies are typically seen as something less than full judicial authority and are often called quasi-judicial powers.

Congress can determine, through legislation, how to categorize conduct[17] which violates the legislation. For example, Congress can make it a crime, with criminal sanctions, to violate administrative regulations. In that instance, however, adjudicating such violations would not be within the jurisdiction of an administrative agency. There are some recognized limits on the delegation of the judicial function to administrative agencies. Congress may not delegate to executive officers the power to prescribe a criminal penalty or to define the scope of its application[18]. These powers are left to district court judges appointed under the authority of the Constitution.

In France, it was only in 1989 that the Constitutional Counsel had to determine whether or not the imposition of sanctions by an administrative agency violated the principle of separation of powers recognized by Article 16 of the Declaration of Human and Citizen Rights of 1789[19]. In the Audiovisual High Counsel case (Decision 88-248 DC of 17 January 1989), the Constitutional Counsel held that the imposition of sanctions by an administrative agency did not violate the principle of separation of powers provided that such power was exercised by an independent administrative agency and in the framework of an administrative authorization. A few months later, the Constitutional Counsel broadened the scope of the delegation of judicial power to an administrative agency by recognizing that a power of sanction could be vested in any administrative agency exercising prerogatives of public power[20] (Decision 89-260 DC of 28 July 1989 regarding the Commission des operations de bourse). However, it set two limits on the delegation of judicial power to administrative agencies. First, administrative agencies are not allowed to inflict any sanction resulting in deprivation of liberty (imprisonment). Second, Parliament is required to provide for sufficient safeguards in the law to ensure that sanctions imposed by an administrative agency do not jeopardize or encroach on the rights and liberties guaranteed by the Constitution.

The Constitution of 1958 clearly delineates the scope of the laws enacted by Parliament and that of the regulations adopted by the executive. To this effect, it contains two separate articles: Article 34 which lists the issues and topics that must be determined by law; and Article 37 which provides that all issues not expressly mentioned in Article 34 are to be dealt with through regulations. According to the provisions of Article 34, offences and related sanctions must be created by law. In French criminal law, offences are divided into three categories according to their degree of seriousness, namely, crimes, délits and contraventions[21]. It should be noted that the wording of Article 34 mentions only the first two categories of offences (offences and délits), which are the most serious ones, leaving out contraventions. It has been inferred from the exclusion of contraventions from the scope of Article 34 that contraventions and their sanctions could be prescribed by regulations. Although this interpretation may, from a legal viewpoint, seem to be in conflict with the nullum crimen nulla poena sine lege principle (principe de légalité des délits et des peines)[22], it has been widely accepted in practice. Like in the U.S., Parliament is responsible for determining through legislation whether a conduct should qualify as a crime, a délit or a contravention based primarily on how the society as a whole perceives a violation.

1.2 Protection of constitutional rights

Questions have been raised as to whether the use of administrative sanctions converts an otherwise criminal matter into a civil matter. Legal implications are significant because if a sanction is considered criminal, procedural and other legal protection must then be accorded to defendants. In fact, defendants have claimed in the U.S. that making a penalty civil is just an attempt to avoid protections which would otherwise be available to them. Therefore, the important question here is not whether the matter is civil or criminal but whether the persons who are dealt with by law enforcement agencies are accorded their constitutional rights. Protection of constitutional rights was clearly the motive that led the French Constitutional Counsel to restrict the delegation of judicial power to administrative agencies in the Commission des operations de bourse case (see section 1.1.1 above).

Due process

The U.S. Constitution guarantees no deprivation of life, liberty, or property without due process of law[23]. In the administrative law context, these requirements take the form of notice and a hearing. In adjudications where a rule is being enforced against an individual, and the essence is a factual dispute, rather than the development of a rule of general application, due process has been interpreted by the Supreme Court to require a hearing, in other words, the right to present evidence and argument (like a trial), rather than written submissions alone. In Londoner v. Denver, 210 U.S. 373 (1908), the Court held that due process required that the person charged should have the right to support his allegations by argument, however brief, and, if need be, by proof, however informal, rather than be limited to the right to file a complaint and written objections, as the local procedure provided.

Although most hearings are held before the agency acts, there is no absolute requirement that a hearing be held at any particular time. The Court had decided that the demands of due process do not require a hearing at the initial stage or at any particular point or at more than one point in an administrative proceeding so long as the requisite hearing is held before the final order becomes effective. Opp. Cotton Mills v. Administrator, 312 U.S. 126 (1941). This principle has been modified as entitlement programmes have grown in the last few decades, particularly in welfare benefits programmes where the government supplies the recipient the basics of life, such as food and shelter. In these instances, where the government is looking to terminate benefits, the Court has held that the timing of an opportunity for a hearing to contest the termination of benefits must be held before the benefits are cut-off, as the consequences of wrongful termination are so significant. Goldberg v. Kelly, 397 U.S. 254 (1970). In true emergency situations, summary seizures by the government have been permitted, with an opportunity to be heard occurring after the fact. These emergencies must be determined to be necessary to secure an important governmental or general public interest; there has been a special need for very prompt action, and a responsible governmental official, working under narrowly drawn statutory authority, has determined it was necessary and justified in a particular instance.

Extension of criminal law principles of constitutional value to administrative sanctions

In France, the Constitutional Counsel held that the ex post facto principle[24] (le principe de non-retroactivité des sanctions pénales), embedded in Article 8 of the Declaration of Human and Citizen Rights of 1789[25], does not apply only to sanctions imposed by a criminal court but also to all punitive sanctions irrespective of the nature of the authority empowered to inflict such sanctions, thus including administrative agencies (Decision 155 DC of 30 December 1982). Likewise, the principle of proportionality applicable to criminal sanctions (le principe de proportionnalité des peines)[26], whereby a criminal sanction should be commensurate to the violation committed, is also applicable to administrative sanctions; this led the Constitutional Counsel to strike down the provision of a law providing for excessive monetary fines (Decision 237 DC of 30 December 1987). In the Audiovisual High Counsel case, the Constitutional Counsel went further by proclaiming that all constitutional principles applicable to criminal sanctions had also to apply to administrative sanctions. As a result, in addition to the ex post facto and proportionality principles, the nullum crimen nulla poena sine lege principle (le principe de légalité des délits et des peines) and the principle of compliance with defence rights[27] (le principe du respect des droits de la defense) in criminal proceedings apply to administrative sanctions.

While the Seventh Amendment of the U.S. Constitution guarantees the right of trial by jury “in Suits at common law, where the value in controversy shall exceed twenty dollars”, the Supreme Court held in Atlas Roofing Co. v. Occupational Safety and Health Review Commission, 430 U.S. 442 (1977), that it would be wrong to infer from this Amendment that the U.S. Constitution guarantees a right to a jury trial in the U.S. administrative system. The Court reasoned that agency adjudications should not be viewed as a creature of common law but of statutory creation, for which it felt Congress has complete control. If the government was involved in enforcing some statutorily created obligation, then Congress could delegate their adjudication to an administrative agency, making a jury trial incompatible, without violating the Seventh Amendment’s requirement that a jury trial is to be preserved in suits at common law.

In a decision in 1982, the French Constitutional Counsel held that no administrative sanction in the form of a monetary penalty can be made cumulatively with a criminal sanction (Decision 82-143 DC of 30 July 1982). This rule, in line with the principle ne bis in idem[28], was given a constitutional value. Of interest is the fact that, hitherto, the non-cumulative rule applies only to administrative monetary penalties. There is no guarantee that, in the future, the same rule will apply to other types of administrative sanctions. For instance, the French basic marine fisheries law of 1852 provides that in addition to the criminal sanctions provided for the violation of any provision of articles 6, 7 and 8, the State representative in the region may suspend fishing licences and, in general, all fishing authorizations granted under national or community fisheries law (Article 13).

The principle ne bis in idem is a cornerstone of many countries’ criminal systems. Its importance has been recognized constitutionally in representative democracies such as the U.S. and India, to name but two. The Fifth Amendment of the U.S. Constitution protects against multiple punishments for the same offence by providing that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb”. Likewise, the Indian Constitution of 1997 stipulates that “No person shall be prosecuted and punished for the same offence more than once” (article 20(2)).

[8] Article 16 of the Declaration of the Human and Citizen Rights of 26 August 1789 stipulates that “Toute Société dans laquelle la garantie des Droits n’est pas assurée, ni la separation des Pouvoirs déterminée, n’a point de Constitution (emphasis added).” The constitutional value of these rights has been recognized by the preamble of the French Constitution of 1958.
[9] See U.S. Constitution of 1787 and French Constitution of 1958.
[10] See Section 7 of the U.S. Constitution.
[11] See Article 39 of the French Constitution of 1958.
[12] For example, the Supreme Court in the United States and the Constitutional Counsel in France.
[13] See the Oxford Companion to the Supreme Court of the United States at p. 619. Oxford University Press (1992).
[14] Industry codes of fair competition.
[15] See United States v. Grimaud, 220 U.S. 506 (1911)
[16] Here, fines refer to an amount of money paid as punishment, not just the amount equal to the value of the illegally taken product.
[17] Categorizing conduct is a significant, if inexact, matter. How a society collectively thinks about a violation (e.g. is it a moral wrong or a regulatory offence - malum prohibitum or malum in se) is often responsible for whether that type of conduct is treated as a crime, a civil offence, an administrative or regulatory violation, some hybrid with qualities of several categories or something else. For a discussion see Berg, Astrid, implementing and Enforcing European Fisheries Law, at pp. 113-114, Kluwer Law International (2000).
[18] See Pres. Comm. on Admin. Management at p. 343, Brownlow ed. (1937).
[19] See footnote 9 above.
[20] In French law, the term “public power” (puissance publique) means all powers vested in the State and other public entities. Here prerogatives of public power refer to the specific powers (normally entrusted in the State) that have been delegated to the “Commission des operations de bourse” for the performance of its duties.
[21] Contraventions are the less serious criminal offences. They are similar to strict liability offences in common law, meaning that proving intent of the violator is not necessary. The mere establishment of a violation is therefore sufficient to determine liability and for the imposition of a sanction.
[22] In substance, this principle means that there is no offence without a law and no sanction without a law.
[23] Fifth Amendment of the U.S. Constitution.
[24] This principle refers to ex post facto law that is a law which aggravates a crime or makes it greater than when it was committed. It is unconstitutional to apply the provisions of such a law to a fact or an act that occurred or was committed prior to the enactment of that law. However, a more lenient law enacted after the commission of an act or the occurrence of a fact can benefit the violator provided that no judgement has been passed.
[25] This article reads as follows: «La Loi ne doit établir que des peines strictement et évidemment nécessaires, et nul ne peut être puni qu’en vertu d’une Loi établie et promulguée antérieurement au délit, et légalement appliquée.»
[26] This principle is mentioned in Article 8 of the Declaration of Human and Citizen Rights of 1789. Note that the Eighth Amendment of the U.S. Constitution requires that sanctions must be commensurate to the violation committed. It states that “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
[27] In French law, the term “defense rights” refers to the prerogatives conferred upon the accused to ensure that he can assure his defence effectively in criminal proceedings.
[28] This principle provides that no one can be punished twice for the same action.

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