Constitutional Council (France)

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The 1789 Declaration of the Rights of Man and of the Citizen

The Constitutional Council (French: Conseil constitutionnel; French pronunciation: ​[kɔ̃sɛj kɔ̃stitysjɔˈnɛl]) is the highest constitutional authority in France. It was established by the Constitution of the Fifth Republic on 4 October 1958, and its duty is to ensure that the principles and rules of the constitution are upheld.

Its main activity is to rule on whether proposed statutes conform with the Constitution, after they have been voted by Parliament and before they are signed into law by the President of the Republic (a priori review); since 1 March 2010, individual citizens party to a trial or lawsuit can also ask for the Council to review whether the law applied in the case is constitutional. In 1971, the Council ruled that conformity with the Constitution entails conformity with two texts referred to by the preamble of that constitution: the Declaration of the Rights of Man and of the Citizen and the preamble of the constitution of the Fourth Republic, both of which list constitutional rights (e.g., freedom of speech).

The Council and the enactment of legislation in France

This article refers extensively to individual articles in the Constitution of France. The reader should refer to the official translation of the Constitution on the site of the French National Assembly. Another recommended reading is the Constitutional Council overview on the Council web site.

The Government of France consists of an executive branch (President of the Republic, Prime Minister, ministers, and their services and affiliated organizations), a legislative branch (both houses of Parliament), and a judicial branch. The judicial branch is, unlike for instance the federal judiciary of the United States under the Supreme Court, not organized into a single hierarchy (administrative courts fall under the Council of State, civil and criminal courts under the Court of Cassation), and some of its entities also have advisory functions. For historical reasons there has long been a hostility to having anything resembling a "Supreme Court"—that is, a powerful court able to quash legislation.[1][2][3] Whether the Council is a court is a subject of academic discussion,[2][4] but some scholars consider it the supreme court of France.[5]

The Constitution of the French Fifth Republic distinguishes two distinct kinds of legislation: statute law, which is normally voted upon by Parliament (except for ordonnances) and government regulations, which are enacted by the Prime Minister and his government as decrees and other regulations (arrêtés).[1] Article 34 of the Constitution exhaustively lists the areas reserved for statute law: these include, for instance, criminal law.

Any regulation issued by the executive in the areas constitutionally reserved for statute law is unconstitutional unless it has been authorized as secondary legislation by a statute. Any citizen with an interest in the case can obtain the cancellation of these regulations by the Council of State, on grounds that the executive has exceeded its authority. Furthermore, the Council of State can quash regulations on grounds that they violate existing statute law, constitutional rights or the "general principles of law".[6]

In addition, new acts can be referred to the Constitutional Council by a petition just prior to being signed into law by the President of the Republic. The most common circumstance for this is that 60 opposition members of the National Assembly, or 60 opposition members of the Senate request such a review.[7]

If the Prime Minister thinks that some clauses of existing statute law instead belong to the domain of regulations, he can also ask the Council to reclassify these clauses as regulations.[8][9]

Traditionally, France refused to accept the idea that courts could quash legislation enacted by Parliament (though administrative courts could quash regulations produced by the executive). This goes back to the French revolutionary era: pre-revolutionary courts had often used their power not to register laws and thus prevent their application for political purposes, and had blocked reforms. French courts were then prohibited from making rulings of a general nature. Also, it seemed that if courts could quash legislation after it had been enacted and taken into account by citizens, it would introduce legal uncertainties: how could a citizen plan his or her actions according to what is legal or not if laws could a posteriori be found not to hold? Yet, in the late 20th century, courts, especially administrative courts, began applying the consequences of international treaties, including law of the European Union, as superior to national law.

A 2009 reform, effective on 1 March 2010, enables parties to a lawsuit or trial to question the constitutionality of the law that is being applied to them. The procedure, known as question prioritaire de constitutionnalité, is broadly as follows: the question is raised before the trial judge and, if it has merit, it is forwarded to the appropriate supreme court (Council of State if the referral comes from an administrative court, Cour de Cassation for other courts). The supreme court collects such referrals and submits them to the Constitutional Council. If the Constitutional Council rules a law to be unconstitutional, this law is struck down from the law books; this decision is valid for everybody and not only for the cases at hand.[10]

Powers and tasks

The Council has two main areas of power:

  1. The first is the supervision of elections, both presidential and parliamentary and ensuring the legitimacy of referendums (Articles 58, 59 and 60). They issue the official results, they ensure proper conduct and fairness, and they see that campaign spending limits are adhered to. The Council is the supreme authority in these matters. The Council can declare an election to be invalid if improperly conducted, or if the elected candidate used illegal methods, or if he spent for his campaign over the legal limits.
  2. The second area of Council power is the interpretation of the fundamental meanings of the constitution, procedure, legislation, and treaties. The Council can declare dispositions of laws to be contrary to the Constitution of France or to the principles of constitutional value that it has deduced from the Constitution or from the Declaration of the Rights of Man and of the Citizen. It also may declare laws to be in contravention of treaties which France has signed, such as the European Convention on Human Rights. Their declaring that a law is contrary to constitutional or treaty dispositions renders it invalid. The Council also may impose reservations as to the interpretation of certain provisions in statutes. The decisions of the Council are binding on all authorities.

In some cases, examination of laws by the Council is compulsory. Organic bills, those which fundamentally affect government and treaties, need to be assessed by the Council before they are considered ratified (Article 61-1 and 54). Amendments concerning the rules governing parliamentary procedures need to be considered by the Council, as well. Guidance may be sought from the Council in regard to whether reform should come under statute law (voted by Parliament) or whether issues are considered as règlement (regulation) to be adopted with decree of the prime minister. The re-definition of legislative dispositions as regulatory matters initially constituted a significant share of the (then light) caseload of the Council.

In the case of other statutes, seeking the oversight of the Council is not compulsory. However, the president of the Republic, the president of the Senate, the president of the Assembly, the prime minister, or 60 members of the National Assembly, or 60 senators[11] can submit a statute for examination by the Council before its signing into law by the President. In general, it is the parliamentary opposition which brings laws that it deems to infringe civil rights before the Council.[7]

Another task of the council, of lesser importance in terms of number of referrals, is the reclassification of statute law into the domain of regulations, on the Prime Minister's request. This happens when the Prime Minister and his government wish to alter law that has been enacted as statute law, but should instead belong to regulations according to the Constitution. The Prime Minister has to obtain reclassification from the Council prior to taking any decree changing the regulations. This, however, is nowadays only a small fraction of the Council's activity: in 2008, out 140 of decisions, only 5 concerned reclassifications.[12]

History and evolution

While since the 19th century the judicial review that the Constitutional Council brings to bear on the acts of the executive branch has played an increasingly large role, the politicians that framed the successive French institutions have long been reluctant to have the judiciary review legislation. The argument was that un-elected judges should not be able to overrule directly the decisions of the democratically elected legislature. This may also have reflected the poor impression that the political action of the parlements – courts of justice under the ancien régime monarchy – had left: these courts often had chosen to block legislation in order to further the privileges of a small caste. Whatever the reasons, the idea was that legislation was a political tool, and that the responsibility of legislation should be borne by the legislative body.[1][2][3]

Originally, the Council was meant to have rather technical responsibilities: ensuring that national elections were fair, arbitrating the division between statute law (from the legislative) and regulation (from the executive), etc. The Council role of safekeeping fundamental rights was probably not originally intended by the drafters of the Constitution of the French Fifth Republic: it was thought that Parliament should be able to see for itself that it did not infringe on such rights. However, the Council's activity considerably extended in the 1970s.[13]

From 1958 to 1970, under Charles de Gaulle's presidency, the Constitutional Council was sometimes described as a "cannon aimed at Parliament", protecting the executive branch against encroachment by statute law voted by Parliament. All but one referral to the Constitutional Council came from the Prime Minister, against acts of Parliament, and the Council agreed to partial annulments in all cases. The only remaining referral came from the President of the Senate, Gaston Monnerville, against the 1962 referendum on the direct election of the President of the Republic, which Charles de Gaulle supported; and the Council ruled itself "incompetent" to cancel the direct expression of the will of the French people.[14]

In 1971, however, the Council ruled unconstitutional (Decision 71-44DC) some provisions of a law changing the rules for the incorporation of private nonprofit associations, because they infringed on freedom of association, one of the principles given in the 1789 Declaration of the Rights of Man and of the Citizen; they used the fact that the preamble of the French constitution briefly referred to those principles to justify their decision. For the first time, a statute was declared unconstitutional not because it infringed on technical legal principles, but because it was deemed to infringe on personal freedoms.[15][16]

In 1974, the possibility to request a constitutional review was extended to 60 members of the National Assembly or 60 senators.[17] Soon, the political opposition seized that opportunity to request the review of all controversial acts.[7]

The Council increasingly has frowned upon "riders" (cavaliers) – amendments or clauses introduced into bills but having no relationship to the original topic of the bill; for instance, "budgetary riders" in the Budget bill, or "social riders" in the Social security budget bill. See legislative riders in France.[18][19]

In January 2005, Pierre Mazeaud, then president of the Council, announced that the Council would take a stricter view of language of a non-prescriptive character introduced in laws,[20] sometimes known as "legislative neutrons".[21][22][23] Instead of prescribing or prohibiting, as advocated by Portalis,[24] such language makes statements about the state of the world, or wishes about what it should be. Previously, this language was considered devoid of juridical effects and thus harmless; but Mazeaud contended that introducing vague language devoid of juridical consequences just dilutes law unnecessarily. He denounced the use of law as an instrument of political communication, expressing vague wishes instead for effective legislation. Mazeaud also said that, because of the constitutional objective that law should be accessible and understandable, law should be precise and clear, and devoid of details or equivocal formulas.[22][25] The practice of putting into laws remarks or wishes with no clear legal consequences has been a long-standing concern of French jurists.[26]

As of 2004, one law out of two, including the budget, was sent to the Council at the request of the opposition. In January 2005, Pierre Mazeaud, then president of the Council, publicly deplored the inflation of the number of constitutional review requests motivated by political concerns, without much legal argumentation to back them on constitutional grounds.[22]

The French constitutional law of 23 July 2008 amended article 61 of the Constitution. It now allows for courts to submit questions of unconstitutionality of laws to the Constitutional Council. The Court of Cassation (supreme court over civil and criminal courts) and the Council of State (supreme court over administrative courts) filter the requests coming from the courts under them. Lois organiques and other decisions organizing how this system functions were subsequently adopted, and the system was activated on 1 March 2010.[27][28][29]

On 29 December 2012, the council said it is overturning an upper income tax rate of 75% due to be introduced in 2013.[30]

Controversies

In 1995, Roland Dumas was appointed president of the Council by François Mitterrand. Roland Dumas attracted major controversy twice. First, he appeared in scandals regarding the Elf Aquitaine oil company, with many details regarding his mistress, Christine Deviers-Joncour, and his expensive tastes in clothing appearing in the press.[31] Then, the Council put forth some highly controversial opinions in a decision related to the International Criminal Court, in Decision 98–408 DC, declaring that the sitting President of the Republic could be tried criminally only by the High Court of Justice, a special court organized by Parliament and originally meant for cases of high treason. This, in essence, ensured that Jacques Chirac would not face criminal charges until he left office. This controversial decision is now moot since the rules of responsibility of the President of the Republic were redefined by the French constitutional law of 23 July 2008.[32] In 1999, because of the Elf scandal, Roland Dumas put himself on leave from the Council and Yves Guéna assumed the interim presidency.[33]

In 2005, the Council attracted some controversy when Valéry Giscard d'Estaing and Simone Veil campaigned for the proposed European Constitution, which was submitted to the French voters in a referendum. Simone Veil had done so after obtaining a leave of absence from the Council, which was criticized by some, including Jean-Louis Debré, president of the National Assembly, as a dubious procedure – to follow their reasoning, what is the use of prohibiting appointed members of the council from conducting partisan politics if they can put themselves on leave for the duration of the campaign? She defended herself by pointing to precedent and famously remarked "How is that his business? He has no lesson to teach me." about Debré.[34]

Membership

The Council is made up of former presidents of the Republic who have chosen to sit in the council (which they may not do if they become directly involved in politics again), and nine other members who serve non-renewable terms of nine years, one third of whom are appointed every three years, three each by the president of the Republic, the president of the National Assembly, and the president of the Senate.[35] The president of the Council is selected by the president of the Republic.

Following from the 2008 constitutional revision, appointments to the Council will be subject to a Parliamentary approval process (Constitution, articles 13 and 56). As of August 2009, these provisions are not operational yet since the relevant procedures have not yet been set in law.

A quorum of seven members is imposed unless exceptional circumstances are noted.[36] Votes are by majority of the present members; the president of the Council has a casting vote in case of an equal split.[37] For decisions about the incapacity of the President of the Republic, a majority of the members of the council is needed.[38]

As of 2017, the current members are:[39]

The members of the Council, except for former presidents of the Republic, are sworn in by the president of the Republic[35]

The members of the Council should abstain from partisanship. They should refrain from making declarations that could lead them to be suspected of partisanship. The possibility for former presidents to sit in the Council is a topic of moderate controversy; some see it as incompatible with the absence of partisanship.[35]

René Coty, Vincent Auriol, Valéry Giscard d'Estaing, Jacques Chirac, Nicolas Sarkozy, and François Hollande are the only former presidents to have sat in the Council.

Location

Palais Royal entrance to the Constitutional Council from Rue de Montpensier

The Council sits in the Palais Royal in Paris near the Conseil d'État.[40]

See also

References

  1. 1 2 3 James Beardsley, Constitutional Review in France, The Supreme Court Review, Vol. 1975, (1975), pp. 189–259
  2. 1 2 3 Michael H. Davis, The Law/Politics Distinction, the French Conseil Constitutionnel, and the U. S. Supreme Court, The American Journal of Comparative Law, Vol. 34, No. 1 (Winter, 1986), pp. 45–92
  3. 1 2 Denis Tallon, John N. Hazard, George A. Bermann, The Constitution and the Courts in France, The American Journal of Comparative Law, Vol. 27, No. 4 (Autumn, 1979), pp. 567–587
  4. ↑ François Luchaire, « Le Conseil constitutionnel est-il une juridiction ? », Revue du droit public et de la science politique en France et à l'étranger (RDP), janvier-juin 1979 (volume 1), pp. 27–52
  5. ↑ Marcel Waline, The Constitutional Council of the French Republic, The American Journal of Comparative Law, Vol. 12, No. 4 (Autumn, 1963), pp. 483–493 lists reasons for the Council to be considered as a court: "If it be admitted that a judicial authority is characterized by the effect of res judicata attaching to its decisions, it must necessarily be concluded that the Constitutional Council is a court, and even the supreme court of the State"
  6. ↑ Lionel Neville Brown, John Bell, Jean-Michel Galabert, French administrative law, 5 ed., 1998, Clarendon Press, ISBN 0-19-826555-7; see p. 220 for the general principles of Law.
  7. 1 2 3 Tony Prosser, Constitutions and Political Economy: The Privatisation of Public Enterprises in France and Great Britain, The Modern Law Review, Vol. 53, No. 3 (May 1990), pp. 304–320; see p. 307 "The number of references has steadily grown; it is no exaggeration to claim that any important controversial legislation is now likely to be referred."
  8. ↑ Article 37 of the Constitution: "Provisions of statutory origin enacted in such matters may be amended by decree issued after consultation with the Council of State. Any such provisions passed after the coming into force of the Constitution shall be amended by decree only if the Constitutional Council has found that they are matters for regulation as defined in the foregoing paragraph."
  9. ↑ An example of such reclassification is decision 2008-210 L of 7 May 2008, with scholarly commentary in Commentaire de la décision n° 2008-210 L du 7 mai 2008 – Nature juridique de dispositions du code de la route ("Comments on decision 2008-210 L of 7 May 2008 – Juridical nature of provisions in the Road code") in Les Cahiers du Conseil constitutionnel, Cahier n° 25 ("The Constitutional Council's notebooks"): the name of the administration with which certain administrative procedures should be filed is not the domain of statute law, but of regulation.
  10. ↑ http://www.conseil-constitutionnel.fr/conseil-constitutionnel/root/bank_mm/anglais/en_ordinance_58_1067.pdf
  11. ↑ Note that this is not 60 members of Parliament: all members on the referral petition must be from the same house of Parliament, though of course members from both houses can submit petitions at the same time and with the same arguments.
  12. ↑ Constitutional Council, Index of 2008 decisions
  13. ↑ Pascal Jan, Le Conseil constitutionnel, Pouvoirs n° 99 2001/4, pp. 71–86, Le Seuil, ISBN 2-02-048213-4.
  14. ↑ Alec Stone, The Birth of Judicial Politics in France: The Constitutional Council in Comparative Perspective, Oxford University Press, ISBN 0-19-507034-8, chapter III
  15. ↑ Jérôme Favre, La décision du Conseil constitutionnel du 16 juillet 1971. L’invention d’un nouveau pouvoir juridictionnel., Revue d'étude politique des assistants parlementaires, nr 2
  16. ↑ M. Letourneur, R. Drago, The Rule of Law as Understood in France, The American Journal of Comparative Law, Vol. 7, No. 2 (Spring, 1958), pp. 147–177
  17. ↑ Loi n°74-904 du 29 octobre 1974 portant révision de l'article 61 de la Constitution
  18. ↑ Constitutional Council, État de la jurisprudence du Conseil constitutionnel sur le droit d'amendement ("State of the Constitutional Council case law on the right of amendment")
  19. ↑ Les Cahiers du Conseil constitutionnel, Cahier n° 22, Commentaire de la décision n° 2006-544 DC du 14 décembre 2006
  20. ↑ Véronique Champeil-Desplats, N'est pas normatif qui peut. L'exigence de normativité dans la jurisprudence du Conseil constitutionnel. ("Anything that can be normative is not. The exigence of normativity in the case law of the Constitutional Council"), in Les Cahiers du Conseil Constitutionnel, nr 21, 2006
  21. ↑ The phrase neutron législatif ("legislative neutron") was coined by Jean Foyer to designate provisions in statute law that have "null juridical charge" and thus are neutral with respect to the state of law. This phrase uses imagery from particle physics – a neutron has null electrical charge.
  22. 1 2 3 Pierre Mazeaud's 3 January 2005 declaration to the President of the Republic
  23. ↑ Proceedings of the National Assembly, 21 June 1982, third sitting, Jean Foyer: « Cette semaine, le ministre d'État, ministre de la recherche et de la technologie, nous présente un projet dont je dirai, ne parlant pas latin pour une fois, mais empruntant ma terminologie à la langue des physiciens, qu'il est pour l'essentiel un assemblage de neutrons législatifs, je veux dire de textes dont la charge juridique est nulle. » – "This week, the minister of State, minister for research and technology [Jean-Pierre Chevènement] presents us a bill of which I'll say, without talking in latin for once, but instead borrowing my words from the physicists, that it is mostly an assembly of legislative neutrons, I mean of texts with a null juridical charge."
  24. ↑ Jean-Étienne-Marie Portalis, Discours préliminaire du premier projet de Code civil ("Preliminary speech for the first project for a Civil code"): « [La loi] permet ou elle défend ; elle ordonne, elle établit, elle corrige, elle punit ou elle récompense. » ("[Law] permits, or defends; it orders, it establishes, it corrects, it punishes or it rewards.")
  25. ↑ MM. Mazeaud et Debré dénoncent les "lois d'affichage" ("Mr Mazeaud and Mr Debré denounce posturing laws"), Le Monde, 4 January 2005
  26. ↑ Report to the National Assembly on the constitutional law of 23 July 2008 by Jean-Luc Warsmann; see the section Les limites de la « révolution juridique » : la pratique de l’article 41 ("the limits of the juridical revolution: the practice of article 41"), and a list of items that Warsmann contends should never have been in statute law, such as the definition of foie gras and a number of constatations such as « Les activités physiques et sportives constituent un facteur important d’équilibre » ("sports are an important factor of personal equilibrium").
  27. ↑ Constitutional council, Comment saisir le Conseil constitutionnel ? "(How to file a request before the Constitutional Council?)"
  28. ↑ Loi organique n° 2009-1523 du 10 décembre 2009 relative à l'application de l'article 61-1 de la Constitution
  29. ↑ Décision du 4 février 2010 portant règlement intérieur sur la procédure suivie devant le Conseil constitutionnel pour les questions prioritaires de constitutionnalité
  30. ↑ "French 75% income tax thrown out". BBC. Retrieved 29 December 2012.
  31. ↑ John Tagliabue, At a French Trial, a Tale Unfolds of Graft on High, New York Times, 18 April 2003
  32. ↑ Responsabilité pénale du chef de l'Etat ? ("The criminal responsibility of the head of state?"), Affaires Publiques
  33. ↑ Les nouveaux rebondissements de l'affaire Elf – Au revoir Dumas, bonjour Sirven ("Breaking news about the Elf case – Goodbye Dumas, welcome Sirven"), Le Nouvel Observateur, N°1843
  34. ↑ Référendum : Simone Veil répond à Debré (Referendum: Simone Veil responds to Debré), LCI, 6 May 2005. See e.g. "Il n'a pas de leçon à me donner. De quoi se mêle-t-il?", meaning "How is that his business? He has no lesson to teach me."
  35. 1 2 3 Ordonnance n°58-1067 du 7 novembre 1958 portant loi organique sur le Conseil constitutionnel ("Ordinance 58-1067 of 7 November 1958, organic bill on the Constitutional council"). About swearing-in: article 3 says Avant d'entrer en fonction, les membres nommés du Conseil constitutionnel prêtent serment devant le Président de la République. ("Before assuming their duties, the appointed members of the Constitutional council are sworn in before the President of the Republic.")
  36. ↑ Ordonnance n°58-1067 du 7 novembre 1958, article 14
  37. ↑ Constitution, article 56: Le président est nommé par le Président de la République. Il a voix prépondérante en cas de partage.
  38. ↑ Ordonnance n°58-1067 du 7 novembre 1958, article 31
  39. ↑ Constitutional Council, Liste des membres du Conseil constitutionnel en 2008 ("List of members of the Constitutional Council in 2008")
  40. ↑ See description of the Council's offices on the Council's site

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