Constitutional Council (France)

The Council and the enactment of legislation in France

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. Whether the Council is a court is a subject of academic discussion, but some scholars consider it the supreme court of France.

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). 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".

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.

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.

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.

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 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.

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.

Thus, it can be argued that the Council's role as a constraint to the government is likely to increase over the years.

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.

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.

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.

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.

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

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.

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, sometimes known as "legislative neutrons". Instead of prescribing or prohibiting, as advocated by Portalis, 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. The practice of putting into laws remarks or wishes with no clear legal consequences has been a long-standing concern of French jurists.

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.

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.

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

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. 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. In 1999, because of the Elf scandal, Roland Dumas put himself on leave from the Council and Yves Guéna assumed the interim presidency.

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.

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), 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. 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. Votes are by majority of the present members; the president of the Council has a casting vote in case of an equal split. For decisions about the incapacity of the President of the Republic, a majority of the members of the council is needed.

As of 2015, the current members are:

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

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.

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

Location

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