CE, Sect., 29 novembre 2002 Case Assistance publique v. Hôpitaux de Marseille
29 November 2002
Translated by:
J T Brown
Professor B. S. Markesinis


Given that the Assistance Publique – Hôpitaux de Marseille (“AP-HM”) is applying for a review if Articles 1, 3 and 4 of the judgement of 9 May 2000 by which the Marseilles Court of Appeal in Administrative Matters (i) quashed the implicit decision of rejection resulting from the silence of that establishment (ie AP-HM) relating to the request made on 30 August 1994 by Mme. P., whom AP-HM had recruited as a trainee nurse, to be granted long-term sick leave from 31 August 1993 to 30 August 1994, and then on long-term leave of absence from 31 August 1994 to 28 February 1995, and (ii) ordered AP-HM to meet the costs of expert examination;

Concerning the standing of the claim of Mme. P. before the Marseille Court of Appeal in Administrative Matters:

Given that, pursuant to Article 510 of the Civil Code an adult person subject to guardianship (“majeur en tutelle”) may, subject to the special provisions of Articles 511 and 512 of that Code, when these have been brought into effect by the competent court, act alone in commencing actions relating to his or her patrimonial rights, and defend such actions;

Given that (1) the written evidence produced to the court of first instance does not show that, when it instituted the guardianship of Mme. P., the court of protection (“juge des tutelles”) made any use of the power conferred by Articles 511 and 512 of that Code in order to restrict the range of actions which the person in question could commence alone, pursuant to Article 510 mentioned above; (2) it follows that, in holding that the appeal brought by Mme. P. without the permission of her guardian in view of obtaining the recognition of certain rights to leave, the Appeal Court in Administrative Matters did not commit an error of law;

Concerning the implicit decision of AP-HM:

Given that

(1) although an administrative decision obtained by fraud does not create rights, and can therefore be withdrawn or cancelled by the authority which is competent to make it, even if the withdrawal period under the general law may have expired, it is the duty of all administrative authorities to respect as the case may be, all the legal consequences of that decision as long as it has not been terminated;

(2) consequently, in holding as it did that AP-HM had no power to base itself on a possible fraud undermining the nomination of Mme. P. in order to refuse to grant her the benefit of long sick leave followed by long leave of absence pursuant to Articles 18 and 19 of the (..) decree of 19 April 1988, the Marseille Court of Appeal in Administrative Matters, whose judgement sets out sufficient reasoning, did not commit an error of law;

Given that it follows from the above that the claim of the Assistance Publique-Hôpitaux de Marseille must be rejected;


Article 1: The claim of the Assistance Publique-Hôpitaux de Marseilles is rejected.

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