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Du principe de protection de la confiance légitime en droits allemand, communautaire et français

Abstract : The jurisprudential and doctrinal uncertainties relating to the material legal origins of the general principle of legitimate expectation do not appear, for the want of another probative systemisation, to be able to challenge the « deduction chain » according to which it descends from the principle of the rule of law (« Rechtsstaat »), by way of the nomocratic principle of reliance on the Law. The theories of democracy and of a social State are, indeed, too far off to be considered as grounds. Furthermore, the category of fundamental rights stemming from an autonomous system with respect to the rule of law can in no way give rise to the protection of the interests of trust. Finally, the good faith and proportionality demanded, far from being able to genuinely make up the source of this protection, innervate the heart of the mechanism which is inherent to it. This constant mechanism of German and Community law turns out to be triply subjective insofar as it involves the analysis of the behaviour of the public authority which raised the expectations, requires the reconstitution of the expecting person’s state of mind and, insofar as, ultimately, it is dependent upon the value judgement of the judge who has to assess, case by case, whether or not the base of trust exists, whether or not the expectation is legitimate, whether or not it should indeed be protected following a balance of interests and, if so, according to what mode of protection. This high degree of subjectivity, inevitably induced by the nature of the fundamental elements of theory on the one hand, and by the logic of the mechanism on the other, seems particularly illadapted to the traditionally objective conception of French public law, for which a possible transposition of the principle of protecting legitimate expectation could even present a certain danger. The benefit which our internal legal order could draw, if this mechanism was, despite all, to be accepted, would besides be minimal, all the more so as the French system has already set up similar principles ensuring equivalent or closely related guarantees and which are, consequently, also vectors of subjective legal reliance. The protection of legitimate expectations can therefore at the very most be considered as the explanatory principle federating these scattered instruments of French positive law.
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Contributor : Sylvia Brunet <>
Submitted on : Tuesday, December 10, 2019 - 6:18:07 PM
Last modification on : Tuesday, December 17, 2019 - 10:50:03 AM

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Sylvia Brunet. Du principe de protection de la confiance légitime en droits allemand, communautaire et français. Dalloz, pp.711, 2001, Nouvelle Bibliothèque de thèses, 978 2 247 09855 2. ⟨hal-02403298⟩

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