The Constitutional Council (French: Conseil constitutionnel; French pronunciation:[kɔ̃sɛjkɔ̃stitysjɔˈnɛl]) is the highest constitutional authority in France. It was established by the Constitution of the Fifth Republic on 4 October 1958 to ensure that constitutional principles and rules are upheld. It is housed in the Palais-Royal in Paris. 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), or passed by the government as a decree, which has law status in many domains, a right granted to the government under delegation of Parliament.
Since 1 March 2010, individual citizens who are party to a trial or a lawsuit have been able to ask for the Council to review whether the law applied in the case is constitutional (a posteriori review). In 1971, the Council ruled that conformity with the Constitution also entails conformity with two other texts referred to in the preamble of the 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.[1][2]
Members are referred to as les sages ("the wise") in the media and the general public, as well as in the Council's own documents.[3][4][5] Legal theorist Arthur Dyevre notes that this "tends to make those who dare criticise them look unwise."[6] Since 2016, Laurent Fabius has served as President of the Constitutional Council (Président du Conseil constitutionnel) following his appointment by President François Hollande.
Powers and tasks
Overview
The Council has two main areas of power:
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, ensure proper conduct and fairness, and 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, the winning candidate used illegal methods, or the winning candidate spent more than the legal limits for the campaign.
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 that France has signed, such as the European Convention on Human Rights. Their declaring that a law is contrary to constitutional or treaty principles 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.
Examination of laws by the Council is compulsory for some acts, such as for organic bills, those which fundamentally affect government, and treaties, which 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 National Assembly, the Prime Minister of France, 60 members of the National Assembly, or 60 Senators[7] can submit a statute for examination by the Council before its signing into law by the President. In general, it is the parliamentary opposition that brings laws that it deems to infringe civil rights before the Council.[8]
Another task, 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.[9]
For historical reasons, there has long been political hostility in the nation to the concept of a "Supreme Court"—that is, a powerful court able to quash legislation, because of the experience of citizens in the pre-Revolutionary era.[10][11][12]
Whether the Constitutional Council is a court is a subject of academic discussion,[11][13] but some scholars consider it effectively the supreme court of France.[14]
The Constitution of the French Fifth Republic distinguishes two 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).[10] 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 by a statute as secondary legislation. 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".[15]
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.[8]
If the Prime Minister thinks that some clauses of existing statute law instead belong to the domain of regulations, he can ask the Council to reclassify these clauses as regulations.[16][17]
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 reluctance was based in the French revolutionary era: pre-revolutionary courts had often used their power to refuse to register laws and thus prevent their application for political purposes, and had blocked reforms. French courts were prohibited from making rulings of a general nature. Also, politicians believed that, if courts could quash legislation after it had been enacted and taken into account by citizens, there would be too much legal uncertainty: 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 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, is forwarded to the appropriate supreme court (Council of State if the referral comes from an administrative court, Court of 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. The decision applies to everyone and not only to the cases at hand.[18]
History and evolution
Meeting room
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 who have 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 resulting from the political action of the parlements – courts of justice under the ancien régime monarchy: these courts often had chosen to block legislation in order to further the privileges of a small caste in the nation. The idea was that legislation was a political tool, and that the responsibility of legislation should be borne by the legislative body.[10][11][12]
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: they believed that Parliament should be able to ensure that it did not infringe on such rights. However, the Council's activity has considerably extended since the 1970s, when questions of justice for larger groups of people became pressing.[19]
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 direct election of the President of the Republic, which Charles de Gaulle supported. The Council ruled that it was "incompetent" to cancel the direct expression of the will of the French people.[20]
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 of 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 of citizens.[21][22]
In 1974, authority to request a constitutional review was extended to 60 members of the National Assembly or 60 senators.[23] Soon, the political opposition seized that opportunity to request the review of all controversial acts.[8]
The Council increasingly has discouraged "riders" (cavaliers) – amendments or clauses introduced into bills that have 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.[24][25] In January 2005, Pierre Mazeaud, then President of the Constitutional Council, announced that the Council would take a stricter view of language of a non-prescriptive character introduced in laws,[26] sometimes known as "legislative neutrons".[27][28][29] Instead of prescribing or prohibiting, as advocated by Portalis,[30] such language makes statements about the state of the world, or wishes about what it should be.
Previously, such language was considered devoid of juridical effects and thus harmless; but Mazeaud contended that introducing vague language devoid of juridical consequences dilutes law unnecessarily. He denounced the use of law as an instrument of political communication, expressing vague wishes rather than 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.[28][31] The practice of the Parliament putting into laws remarks or wishes with no clear legal consequences has been a long-standing concern of French jurists.[32]
As of 2004[update], 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.[28]
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) each filter the requests coming from the courts under them.
Lois organiques, and other decisions organizing how this system functions, were subsequently adopted. The revised system was activated on 1 March 2010.[33][34][35]
On 29 December 2012, the council said it was overturning an upper income tax rate of 75% due to be introduced in 2013.[36]
Controversies
In 1995, Roland Dumas was appointed president of the Council by François Mitterrand. Dumas twice attracted major controversy. First, he was reported as party to scandals regarding the Elf Aquitaine oil company, with many details regarding his mistress, Christine Deviers-Joncour, and his expensive tastes in clothing being published in the press.[37]
In this period, the Council issued 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 Parliament redefined the rules of responsibility of the President of the Republic by the French constitutional law of 23 July 2008.[38] In 1999, because of the Elf scandal, Dumas took official leave from the Council and Yves Guéna assumed the interim presidency.[39]
In 2005, the Council again 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 participated in the campaign after obtaining a leave of absence from the Council. This action was criticized by some, including Jean-Louis Debré, president of the National Assembly, who thought that prohibitions against appointed members of the council conducting partisan politics should not be evaded by their taking leave for the duration of a campaign. Veil defended herself by pointing to precedent; she said, "How is that his [Debré's] business? He has no lesson to teach me."[40]
Membership
Office of the President of the French Constitutional CouncilLaurent Fabius, current President of the Constitutional Council
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.[41] The President of the Constitutional Council is selected by the President of the Republic for a term of nine years. If the position becomes vacant, the oldest member becomes interim president.
Following the 2008 constitutional revision, appointments that the President of the Republic makes to the Council are subject to a parliamentary approval process, where the relevant committee in the Senate and the National Assembly votes on the appointee. If greater than three-fifths of the members of either committee vote against confirming the appointee, then the appointee must be withdrawn by the President of the Republic.[42]
A quorum of seven members is imposed unless exceptional circumstances are noted.[43] Votes are by majority of the members present at the meeting; the president of the Council has a casting vote in case of an equal split.[44] For decisions about the incapacity of the President of the Republic, a majority of the members of the council is needed.[45]
Current members
The members of the Constitutional Council are sworn in by the President of the Republic. Former presidents have the option to sit if they choose to do so.[41] The members of the Constitutional 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.[41]René Coty, Vincent Auriol, Valéry Giscard d'Estaing, Jacques Chirac and Nicolas Sarkozy are the only former Presidents of France to have sat in the Constitutional Council.[46]
Sitting members
As of 2022[update], the current sitting members of the Constitutional Council are:[47]
Current sitting members of the Constitutional Council
The council created a periodical in 1996, Les Cahiers du Conseil constitutionnel, from October 2010 (No. 29) Les Nouveaux Cahiers du Conseil constitutionnel.
This was done in view of a better communication over the council's decisions, especially following the 1993 controversy over the decision to strike down a government bill on the right of asylum, during which Prime Minister Édouard Balladur had publicly attacked the institution. Decisions of the council traditionally include an extremely short and purely formal judicial opinion, often relying of plain statements if not tautologies, leaving its rationale and its use of principles and precedents open to interpretation. Before 1996, secretaries general occasionally contributed articles in law reviews in order to clarify the council's intents. Starting in 1996, the Cahiers "Decisions and Documents of the Constitutional Council" section included analyses of recent decisions, formally called "commentaries" from November 2008.[48]
Commentaries became extensive, widely read and used by the legal community and the media. They are written by the council's Legal Office and secretary general, and unsigned; they are not approved by the council itself, although the office and secretary general assist with the bulk of the legal research for its decisions. They do not have the force of law, although they are increasingly mentioned in arguments before the council, and occasionally in lower courts.[48] Since 2010, they are no longer published in the subsequent issue of the periodical, but online at the same time as the decision.[49] They are however still commonly referred to as the "Cahiers commentaries" (commentaires aux Cahiers).
The purpose of the Cahiers, as summed up by its then-editor, was also to "express the policy of dialogue of the Constitutional Council with academia as well as with foreign courts".[50] Each issue included a special feature, as well as an article on a foreign constitutional court, authored by legal scholars and researchers. With the separate publication of commentaries from 2010, it was more clearly turned into a law journal, upon which it became the Nouveaux Cahiers. It ran until April 2018, with two to four issues every year, published both in print and online.[51]
In September 2018, it was succeeded by Titre VII, named after title VII of the Constitution, which establishes the council. Publication is exclusively digital, on the council's website and on the Cairn.info portal. Two issues are published every year, in the spring and autumn.[52][53]
The Council has released annual reports (rapports d’activité) since 2016, in French and English.[54]
Location
Palais Royal entrance to the Constitutional Council from Rue de Montpensier
Court of cassation, general discussion, mostly dealing with common law jurisdictions
Court of Appeal (France)—Court of Appeal in France. Differs considerably from appeals process in common law countries, in particular, certain types of court cases are appealed to courts called something other than "court of appeal"
Court of Appeal, Court of Appeals—redirect to Appellate court, the courts of second instance and appeals process in common law countries, which differs considerably from French appeal process
^Arthur Dyevre (April 2017). "The French Constitutional Council". In Jakab, Andras; Dyevre, Arthur; Itzcovich, Giulio (eds.). Comparative Constitutional Reasoning. Cambridge University Press. pp. 323–355. doi:10.1017/9781316084281.011. ISBN9781316084281.
^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.
^ abcTony 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."
^ abcJames Beardsley, "Constitutional Review in France", The Supreme Court Review, Vol. 1975, (1975), pp. 189–259
^ abcMichael 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
^ abDenis 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
^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
^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."
^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."
^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.
^Alec Stone, The Birth of Judicial Politics in France: The Constitutional Council in Comparative Perspective, Oxford University Press, ISBN0-19-507034-8, chapter III
^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
^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.
^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."
^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").
^ abcOrdonnance 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.")
Alec Stone, The Birth of Judicial Politics in France: The Constitutional Council in Comparative Perspective, Oxford University Press,1992, ISBN0-19-507034-8
Martin A. Rogoff, "French Constitutional Law: Cases and Materials" – Durham, North Carolina: Carolina Academic Press, 2010.[1]
Articles
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
F. L. Morton, Judicial Review in France: A Comparative Analysis, The American Journal of Comparative Law, Vol. 36, No. 1 (Winter, 1988), pp. 89–110
James Beardsley, Constitutional Review in France, The Supreme Court Review, Vol. 1975, (1975), pp. 189–259
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