State's liability for unfulfilled promises: legality, legitimate expectations, good faith? Analysis from French administrative law. Including notes from Colombia's experience.

Abstract

The regime for France's state liability for the administration's unfulfilled promises got consolidated in the middle of the last century. The administration is not allowed to make promises; these are considered irregular functioning administrative practices, mainly because of their incompatibility with the principle of non-disposability of competences, according to which, any authority vested with a competence must exercise it itself unless otherwise stated; thus, the administration cannot compromise its future action and discretional power to fulfil specific addressee results or benefits. In Colombia, this regime does not exist. However, in certain situations, the administration urges or pressure individuals to perform services without a formal contract, violating the contractual regulation, on the promise or assurance of a future formal contract.

This research addresses from a comparative law perspective the regime of unfulfilled promises in France, and similar cases of “promises” in Colombia. An analysis based on doctrine and jurisprudence, focusing especially on the legal bases used to establish the State’s liability. In France, such actions, may nevertheless give origin to the State's liability for 'service failure' [falla del servicio] in two cases when the administration does not honor its promises. Those two cases are when the promise is contrary to the law, and when the Administration decides not to fulfil the promise, breaching the legitimate expectations from the addressee, despite being able to do. In Colombia, until 2012, when the administration did not comply with the promise, the administrative judge protected the individual's good faith by recognizing unjust enrichment. Despite this, nowadays the priority is the protection of legality. Thus, the main objective of the investigation is to analyze the legal bases used in the two legal systems vis-à-vis this type of situation, concluding that they have been based, from different perspectives, on legality, legitimate expectations and good faith.