Henri Capitant Law Review (English)

French Constitutionalism

French Constitutionalism, part 1/4 - Elisabeth Zoller

Contents

I – The institution (Part 1/4)

A – The Constitutional Council: “the regulatory body for the activities of the public authorities”

1) Initial description

2) Doctrinal description

B – The Constitutional Council: “the constitutional public authority”

1) The Social Security Finance Act decision

2) The nature of the institution

II – Practice (see Part 2/4)

A – The Constitutional Council’s involvement in state functions

B – Review of external constitutionality

C – Review of internal constitutionality

III – Spirit (see Part 3/4)

A – Methods

1) Procedural methods

2) Methods of interpretation

B – Techniques

1) Review techniques

2) Techniques of persuasion

Conclusion (see part 4/4)


Introduction

Constitutionalism is a political doctrine that aims to guarantee political freedom, i.e. the freedom we enjoy in respect of political power, as opposed to civil liberty, which we enjoy in respect of our peers. As Montesquieu demonstrated in his immortal works, political freedom is only possible if government is moderate, and for government to be moderate, power must be limited or, in his words, it is necessary that “by the arrangement of things, power checks power”. It is therefore important to separate the three powers it exercises, namely legislative, executive and judicial power, and ensure that through their reciprocal interactions, they mutually impose moderation on each other. Constitutionalism is therefore closely connected to the separation of powers insofar as, when powers are separate, the government is always moderate and rights are necessarily guaranteed. A proper arrangement of separate powers provides an effective guarantee of rights, which is not assured unless powers are separate. That is the theory that underpins constitutionalism and is proclaimed in Article 16 of the Declaration of the Rights of Man and of the Citizen: “Any society in which the guarantee of rights is not assured, nor the separation of powers determined, has no Constitution”.

Once the libretto had been written, it needed to be put to music and each country has played its part, according to its history and national culture, giving the constitutionalism of the liberal state several different faces. French constitutionalism is one of them. Its primary characteristic is that unlike those other, venerable forms of British, American and even German constitutionalism – since there was such a thing in 19th century Germany, French constitutionalism is relatively recent. It is just 60 years old. France had had constitutions before 1958 (in fact it had had so many that people had lost count) but it was unfamiliar with constitutionalism. The path from theory to practice is often fraught with difficulty.

Once the necessity of separate powers has been established, the difficulty is knowing what to do, first to create, and then maintain, the separation. At the end of the 18th century, the principle was essentially sanctioned in political terms: it depended on political mechanisms, the most important of which was the regularity of free elections; these place those who govern under the control of those who are governed and make the former dependent on the latter, who force those in power to limit their own actions, failing which, they risk losing their votes. This was the substance of the message delivered by Montesquieu in two separate chapters of The Spirit of Laws, each of which reflected the other. If power exceeds its limitations, by adopting laws that restrict freedoms or undermine the independence of the judiciary, the verdict of the ballot box should, in principle, act as a disincentive, because those in power know that, if they persist, elections will put other people in power, who will apply a different policy.

As it was originally understood, the separation of powers appeared to be a remarkable new way of guaranteeing moderate government; it was a machine that worked by itself. The difficulty was that Montesquieu believed it was only achievable in a monarchical state – “Democracy and aristocracy are not, by definition, free states,” he warned – because, as soon as the state becomes a republic and the most dangerous power is no longer the monarch, but the one in which popular sovereignty rests (in other words, the elected assembly), the machine no longer works by itself. This was the great discovery made by the Americans. Reflecting on Montesquieu’s theory, in light of the experience gained by the young republican states of America, and which Jefferson had presented in his Notes on his own state, Virginia, Madison came to the conclusion that while regular elections were, admittedly, an essential guarantee of the effective application of the separation of powers, it was also necessary to take “ancillary precautions”  and in particular, to establish checks and balances between the powers and set ambition against ambition, for example, by using federalism, which frees up the centre and divides powers across several different levels; symmetric bicameralism, which slows down the legislative process, and the right of veto, which halts the legislative process either permanently or temporarily, depending on whether it has a definitive or purely suspensive effect. Hamilton added judicial review of the constitutionality of laws, the old principle of common law put forward by Coke in the 16th century and revived by John Marshall in the ruling on Marbury v. Madison to remedy the futility of the three others when one party has control of both legislative and executive power, as the Americans learned from experience following the election of Thomas Jefferson as President of the United States in 1800.

When the constitution was written in 1791, French revolutionaries were familiar with what had happened in the United States following on from their conversations with Jefferson, who at the time was the US ambassador in Paris, and to whom some of them, including Lafayette, were very close. It is more than likely that he had told them about the developments he had seen in America and the additions made by Madison. But the French situation being as it was, there were three checks that were not available to them: federalism, which would have perpetuated the many customs of the provinces of the ancien régime, which means that people changed laws as often as they changed carriages; asymmetric bicameralism, which would have maintained the division of society into classes, which they rejected, and imposed the creation of a “Commons” chamber, or in other words, the Third Estate, and an aristocratic chamber, made up of people from the privileged classes; and judicial review of the constitutionality of laws, which would have perpetuated the omnipotence of the Parliaments in another form. The only element they retained was the right of veto, which was still difficult to implement in practice. The clumsy use Louis XVI made of the veto, to prevent the law that required priests to swear an oath to uphold the Civil Constitution of the Clergy, set both the Assembly and the people against him. The Revolution pushed the situation to extremes in a headlong rush.

Following the Restoration and the July Monarchy, the remedy of checks and balances developed in the United States fell out of fashion, as it was no longer in the people that sovereignty lay. France had returned to a system of monarchy and it was less a question of reining in the lower house than making it the engine of political reform (winning universal suffrage) based on the model of the English parliamentary system. The difficulty was that, once deprived of the checks and balances, which in England prevented the House of Commons “from drawing all power into its impetuous vortex”, the French republican regime finally fell into a regime of assembly and imploded in 1958, during the Algerian war. The crisis of 1958 resulted in a new constitution, which founded a new regime and the starting point for French constitutionalism today.

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French constitutionalism is a creature of circumstances. In 1958, it was necessary to move France out of the regime of assembly, since it resulted in unstable government which, in the short term, made it impossible to settle the Algerian question and implement the economic reforms needed for the country to modernise, and in the long term, forced the country to swing from one extreme to another, from the regime of assembly to the regime of the providential man.

As Michel Debré explained in 1958 when, as Minister of Justice, he presented the draft constitution to the Conseil d’Etat, it was necessary to find “a weapon against the deviation of the parliamentary regime”; in other words, it was a matter of preventing the regime of assembly and therefore reinventing the ways of ensuring a separation of powers. Given the impossibility of relying on the political correctives which, in other democracies, curb the propensity of the popularly elected chamber to dominate the other bodies, either because, having been tried in the past, they did not produce the expected results (symmetric bicameralism was discredited as a result of the Senate’s obstinate opposition to votes for women under the IIIrd Republic, which meant that in 1946, it was taxed with being an antidemocratic institution), or because they were discarded in view of the principle of national sovereignty (such as a Supreme Court or Constitutional Court), the authors of the constitution relied on a legal corrective, but one that was very different to the constitutionality of laws being checked by a judge. Drawing inspiration from the idea of the “inherently legislative arena” found in the opinions of the Conseil d’Etat since 1807 and in the conclusions of the government commissioner, Romieu, on the rulings given at the start of the 20th century, the authors of the constitution limited Parliament’s power by separating the areas over which it had jurisdiction from those of the Executive, so “that the Government and Parliament each assume full powers for their areas of responsibility”, all under the control of an independent body, the Constitutional Council, which is responsible for ensuring the correct relationship between laws and regulations.

The introduction of the Constitutional Council had two major consequences. First, at the political level, it marked an end to French-style parliamentary sovereignty, since the law’s compliance with the Constitution was now controlled and sanctioned. Secondly, at the legal level, it changed the notion of constitution as it was traditionally understood in French law, giving it full legal value and quite simply, making the law a true law, because it was sanctioned by the Constitutional Council. In other words, the country moved from a descriptive to a normative constitution and, although there was no shortage of criticism, it has not reversed that decision. Sixty years after the adoption of the 1958 Constitution, French constitutionalism has taken shape and is now established. There is certainly room for improvement and no shortage of suggestions on what is needed. But no-one is considering abolishing the Constitution and creating a new one on an entirely different basis. The idea of a VIth Republic, which would mark a return to classic parliamentarianism, removing the election of the President of the Republic by universal suffrage, misfired. The French constitutionalism set in motion by the Constitution of 4 October 1958 has reached cruising speed. An abundance of constitutional litigation has developed: the tables of contents of the case law of the Constitutional Council fill over 3,700 pages; every day, the ordinary and administrative courts use the constitutional law that it produces; it lies at the heart of great parliamentary battles; lawyers need to know it to defend their clients and judges to decide on their rulings, in both the criminal and civil courts; and in universities, constitutional litigation has been established as a new branch of law and lecturers now have to devote several compulsory classes to different levels of legal studies. Why is this the case?

Simply because, for the last 60 years, French constitutionalism has been supported by an institution (I), the Constitutional Council, whose practice (II), based on the various missions that the authors of the constitution entrusted to it turn like planets around a sun, the law, in accordance with the spirit (III) of French legal culture, which guarantees rights through the law rather than through judges, with the result that French constitutionalism is legislative, rather than judicial.

I – The institution

French constitutionalism is supported and embodied by an institution, the Constitutional Council, the precise nature of which has long been debated. In 1962, when it declared that it was not competent to rule on the constitutionality of a referendum law, it justified its decision by emphasising that it was simply “the regulatory body for the activities of the public authorities”. This description became increasingly controversial after the famous freedom of association decision. Legal opinion took the view that the institution was no longer the same and that by extending its powers to protecting the rights and freedoms guaranteed in the Preamble to the Constitution, the Constitutional Council was doing something other than regulation. It was doing what judges normally do: protecting individuals and their rights. Its members had become real judges, were forming a court and were naturally moving towards becoming a true constitutional court. The Constitutional Council allowed the rumour to continue, without either confirming or denying it, until 2011, when it was examining the Finance Act for 2012, and in the course of discussing a recital that had gone unnoticed, described or rather re-described itself, given the precedent set in 1962, as a “constitutional public authority”.

A – The Constitutional Council: “the regulatory body for the activities of the public authorities”

1) Initial description

The Constitutional Council was never originally intended to be a court. Its main role was to oversee the split between laws and regulations and to prevent the French Parliament from extending its powers beyond those granted to it by the Constitution. Michel Debré made this clear when presenting the draft constitution to the Conseil d’Etat: “It is not in the spirit of the parliamentary regime, or the French tradition, to give the courts, i.e. anyone under the jurisdiction of the courts, the right to examine the value of the law. The draft has therefore posited a particular institution that only four authorities can refer questions to: the President of the Republic, the Prime Minister, and the presidents of the two houses of Parliament.” The Constitutional Council was thus positioned not as a court, between civil society and the state, but as a council with decision-making power between the four constitutional public powers authorised to refer to it. It faced the consequences of this decision in 1962, when it was asked to rule on the revision of the Constitution that General de Gaulle wished to implement.

At the time, General de Gaulle, whose life was being threatened daily, took the view that, without the historical legitimacy that had brought him to power, his successors would only enjoy the same level of legitimacy if the “received a direct mandate from all citizens” and that under these conditions, “the President of the Republic should henceforth be elected by universal suffrage”. He appeared to have been considering this for some time, but the political circumstances meant that he decided to proceed earlier than expected. In any event, the Constitution was to be revised. However, rather than using the procedure provided for in the Constitution, which does not exclude a constitutional referendum to finalise it, but which assumes the agreement of the Senate, which he rightly presumed he would not secure, he opted for a legislative referendum, explaining to the country that “the President of the Republic can put to the country, by means of a referendum, any bill — I emphasise, he repeated, any bill — relating to the organisation of the public authorities, which clearly includes the method used to elect the president”. It was stretching the legislation beyond what lawyers would generally accept and the vast majority of them, starting with the Conseil d'Etat, concluded that the procedure used was an uncomfortable fit. The Constitutional Council intervened on two occasions, once to give an opinion on the consultation and once to rule on the constitutionality of the procedure used, once the results were known. It is the latter that is most important for understanding how the Constitutional Council viewed its role at the time.

Examining the discussions that took place between members on this matter shows that the majority of them did not view themselves as “constitutional judges”, at least in the sense that the term has in Germany or the United States. As a result, at its session on 6 November 1962, when the Council examined the constitutionality of the referendum law adopted by the people referred to it by the President of the Senate, there were just four members out of ten (two former presidents of the Republic, Vincent Auriol and René Coty, a doctor, Louis Pasteur Vallery-Radot, and one of the authors of the Universal Declaration of Human Rights, René Cassin) who took the view that the Constitutional Council should assert itself as the guardian of the Constitution and should not shirk its responsibilities on the basis of clerical arguments, a “trick” according to Pasteur Vallery-Radot, a “subtle manoeuvre” according to Vincent Auriol, of defending the Constitution on the grounds that it could not identify a piece of legislation that gave it this express power. The Council did not agree, however, and in the absence of a text on which to base its authority, it added that it “was apparent from the spirit of the Constitution that it was a regulatory body for the activities of the public authorities” and ultimately, that “the laws that the Constitution intended to refer to in article 61 were solely those voted for by Parliament and not those which, having been adopted by the people following a referendum, constituted a direct expression of national sovereignty”. If the Constitutional Council had viewed itself as a judge, a real judge, it would not have described itself as a regulatory body. Judges are not regulators, even if their judgments are in the field of public law; the litigation section of the Conseil d'Etat is not a body that regulates the activities of the administrative authorities. The fact that the Council has never used the phrase since suggests it was not a happy choice.

Ten years later, on 16 July 1971, the Constitutional Council produced its famous decision on association agreements, in which it decided, having regard to “the Constitution and its preamble” that it could directly apply “the fundamental principles recognised under the laws of the Republic and solemnly reaffirmed in the preamble to the Constitution”, or in concrete terms, “the principle of freedom of association” which means that “the establishment of associations may not be subject to prior action by the administrative authorities, or even by the judicial authorities”. As a result, it concluded that the article of the law it had been asked to examine, according to which “the acquisition of legal capacity by declared associations (was) subject to a prior control of their legality by the judicial authorities” was not in line with the Constitution. For the first time, the Constitutional Council was doing something other than regulating the activities of the public authorities: it was protecting a freedom; it was interested in human rights. What had changed?  Why was this the case?

2) Doctrinal description

Legal opinion seized on the idea of a change in the institution. Until then, the essential argument went, the Constitutional Council had applied the Constitution. This was not surprising, it continued, because it had been created specifically to apply constitutional rules directly. It had provided evidence of this on many occasions. A year earlier, it had even applied the Preamble, asserting, having regard to the Constitution “and its preamble”, that this was compliant with a decision by the Council of the European Communities to replace contributions by Member States with the Communities’ own resources. In this instance, it had justified compliance by referring the preamble of 1958 back to the preamble of the 1946 Constitution, which proclaimed France’s loyalty to its traditions, compliance with the rules of international public law – including the Pacta sunt servanda rule, directly at issue here – and which, subject to reciprocity, agrees to the limitations on sovereignty necessary for the organisation and defence of peace, both objectives that form part of the Communities’ goals. But in any case, the constitutional rules applied by the Council were formal rules relating to areas of jurisdiction or the separation of powers. It had never been concerned with basic rules, or rules relating to rights and freedoms. Yet here was the Constitutional Council starting to protect rights and freedoms in just the same way as a judge! Legal opinion saw it as a revolution.

Within the institution, with the sole exception of François Luchaire, no-one saw things in this way. No member of the Council drew a distinction between their roles as a regulator of the activities of the public authorities and as defender of rights and freedoms. Without even asking the question, the Constitutional Council applied Article 16 of the Declaration of the Rights of Man, on the basis that the separation of powers and guarantee of rights were not two separate things, but went hand in hand. That said, the result was not that the Constitutional Council was being transformed into a court, let alone a constitutional court, i.e. “a court created specially and exclusively to deal with constitutional litigation, sitting outside the usual court apparatus and independent of it, like the public authorities”.  By applying the preamble, it was simply extending the range of its sources, not adding anything to them. The Council did not have to “take great care” as François Luchaire said, because the process was entirely obvious to it. And it was right, because as it subsequently explained in a note, guaranteeing rights is “the corollary of the principle of the separation of powers set laid down in Article 16 of the Declaration of 1789”.

The revolution that the law professors saw in the decision of 1971 was therefore no such thing. At best, it could be said that it was going to be interpreted as such, and effectively that was what happened. Hardly had the decision been made, than legal opinion predicted the arrival of a constitutional judge of the kind found in the United States, Germany or Italy.  In his comment on the decision, Jean Rivero asked whether it was not a French version of a Marbury v. Madison, suggesting that the Constitutional Council was almost a supreme court, or at the very least, on the point of becoming one. In 1981, in the memorable summary conclusions he pronounced following the symposium in Aix-en-Provence devoted to European constitutional courts, the professor of political freedoms won unanimous support by asserting:“Thus it is that constitutional law is becoming a real form of law, when for a long time, people questioned whether it was a law like any other, sanctioned by judges”. But the major turning point came in 1984, when the most senior member, Doyen Louis Favoreu, confidently and categorically asserted that “this (had) not been done by replicating the American model of the Supreme Court, but by developing a properly European model, based on a new institution, the Constitutional Court, a high court that is independent of the ordinary court system and was specially formed to deal with constitutional questions”. The assertion that, because it protected rights and freedoms, the Constitutional Council was a court, a real constitutional court such as those found in Germany, Austria or Italy, had been made. This steadily became more established, spread abroad and, of course, drew some analyses that were highly critical of the system, even today, since the institution is not based on the criteria of a reference model.

Mr Robert Badinter’s presidency of the Constitutional Council (1986-1995) was a pivotal moment because, as the former Minister of Justice explained in 2008:

“Personally, my view was that it was in the Council’s best interests for everyone to view it as a court. At a time when citizens are concerned about judicial guarantees of their freedoms, in all Western democracies, constitutional courts are enjoying a higher level of prestige and moral authority than political bodies. In addition, I thought that asserting the position of the Constitutional Council as a proper court would allow it to take its place in the circle of European constitutional courts, in which I wanted it to play an exemplary role. I also recognised that it is easier to create a corpus of legal rulings from the case law of a court than by simply collating a series of decisions from a body that is essentially viewed as political. Because the choices the Council faced were these: either assert its role as a court or remain as a committee of “Wise Men”. In my view, there could be no possible hesitation: we had to keep moving towards the making the Council into a court” .

The frustration was that neither the National Assembly nor the Senate fully supported this vision. Robert Badinter explained that, to make the institution into a real constitutional court, he embarked on “aligning the procedures used in the Council with the principles of due process”, which was both legitimate and justified, insofar as the judge’s role is to hear the parties and allow each of them to speak (audi alteram partem), and he tells how he decided to write “to the presidents of the two houses of Parliament, announcing that the member of the Council appointed as a rapporteur for a case submitted to the Council by those referring it for an opinion, would make contact with the rapporteur of the committee to which the law had been referred in each assembly, and with a representative of those making the referral, so that they could share any useful observations to support their respective positions.” His approach came to nothing. The offices of the two houses of Parliament considered that “the mandate of the rapporteur ended with the final vote on the law and could not extend to the procedure of examining its compliance with the Constitution.” President Badinter conceded that, if it was impossible to establish a proper trial involving both parties, he would have to resort to expedients and the only option was therefore to improve the Council’s internal rules. “That was the aim of the excellent internal guide written by the secretary general, Bruno Genevois, whose content has been expanded over successive presidencies but remains the foundation of the procedure in effect. Its fundamental inspiration was unequivocal: ensure respect for the rights of those seeking an opinion and the representatives of the Government’s general secretary, improve the adversarial nature of the procedure by exchanging submissions, examine the case in more depth by hearing those seeking an opinion, the Government’s secretary general and any expert who might be helpful in terms of providing the rapporteur with information and insights, so that they can inform the members of the Council more effectively during the debate. Finally, improve the presentation of the annual compilation of decisions and perhaps comment on them, so that their content and scope are accessible to the public as well as specialist lawyers. Personally, I was keen for the Constitutional Council to hold a public hearing, which would allow the arguments of the petitioners and the Government, or even the representatives of parliamentary groups, to be heard by the Council, just as they would be in court. It was not the time to realise that ambition, which is now available thanks to the exception of unconstitutionality.”

It was believed that the time had come with Nicolas Sarkozy’s election as head of state. A series of major changes then took place. First, the Constitution was revised so that a law could be examined by the Constitutional Council to check its constitutionality after it had been promulgated. The Constitutional Act no. 2008-724 of 23 July 2008 (art. 29) thus added an Article 61-1 to the Constitution, as follows:

“(para. 1) If, during proceedings in progress before a court of law, it is claimed that a legislative provision infringes the rights and freedoms guaranteed by the Constitution, the matter may be referred by the Conseil d'État or by the Cour de Cassation to the Constitutional Council which shall rule within a determined period.

“(para. 2) An Institutional Act shall determine the conditions for the application of the present article. »

Secondly, the Institutional Act no. 2009-1523 of 10 December 2009, on the application of article 61-1 of the Constitution, would insert Chapter II bis of Order no. 58-1067, the Institutional Act on the Constitutional Council, and give it priority in the handling of the issue of constitutionality raised, both before the court asked to give an opinion on the matter (Art. 23-2, para. 5) and the supreme courts (the Conseil d'Etat and the Court of Cassation), if the question was transferred to them (Art 23-5, para. 2).  The constitutionality of a promulgated law could therefore now be examined by the Constitutional Council, but it was not immediately understood that in any case, this was not a matter of dragging things out. Yet the speed involved was going to make it very difficult to engage in extensive discussions on constitutionality involving public opinion, as they exist in states that support judicial constitutionalism. At the time, even the sharpest minds were unable to see this and believed that this time, everything was going to change. Citizens were going to be able to take ownership of the Constitution because there was now a supreme court to which they could turn to exercise their rights and freedoms. France would be aligned with Germany or the United States. The President of the Constitutional Council, Jean-Louis Debré, seemed the most confident. He announced a supreme court:“The new constitutional provisions reflect a modern view, similar to that of our European neighbours, of the constitutional Supreme Court”.

The following year, when the day came to celebrate the entry into effect of the reform, the President of the Republic, Nicolas Sarkozy, calmed the enthusiasm down a notch, recalling at the outset:

“In our Republic, the Constitutional Council is the guardian of the separation of powers”.

His words represented a swing of the pendulum back towards “the regulatory body for the operation of the public authorities” and continued:

“I do not believe that it (the Constitutional Council) is intended to become a Supreme Court sitting above all the other courts and establishing a judicial opposing force, competing with the legislative and executive powers, That would be contrary to the spirit of the reform and our Constitution. Our democracy has nothing to gain from a permanent dispute between the various powers and the various authorities through which it expresses itself.”

A year later, the Constitutional Council confirmed the official position, addressing the ambiguity which had hovered over its exact nature and status for 40 years. Using an expression that admittedly exists in the Constitution, but which it had never used until then, it described or rather re-described itself, given its decision of 1962, as a “constitutional public authority”.

B – The Constitutional Council: “the constitutional public authority”

1) The Social Security Finance Act 2012 decision

On 27 October 2011, during the debate on the bill on social security funding, the Government argued in the National Assembly that the checks carried out by the URSSAF (the administrative body  responsible for collecting social security payments) and the Cour des Comptes (national audit office) on the application of the rules on deducting social-security contributions had shown that they did not cover all public-sector employers; it therefore proposed an amendment to “extend the jurisdiction of the Cour des Comptes to include the supreme judicial bodies (the Court of Cassation, the Conseil d'Etat and the Constitutional Council)”, which members of parliament agreed without any difficulty. When the Act was referred to it on a completely different matter, pertaining to parliamentary procedure, the Constitutional Council swiftly condemned the legislature, citing the separation of powers, for having included it in the “judicial bodies referred to in the Constitution” alongside the Conseil d'Etat and the Court of Cassation, on the grounds that it was “one of the constitutional public authorities”. The description was not new: two members of the Constitutional Council, René Coty and François Luchaire, had already ranked the institution among the constitutional public authorities. But, given the scale of the movement in favour of recognising the Constitutional Council as a true constitutional court, the official confirmation of the description “constitutional public authority” in 2011 had a symbolic value.  

The Social Security Finance Act 2012 decision is of prime importance for three reasons. First, the decision is exemplary in strengthening the independence of the institution by applying “the rule by which the constitutional public authorities themselves determine the funding needed for their operation” and recalling that “this rule is, indeed, inherent in the principle of their financial autonomy, which guarantees the separation of powers”. Secondly, it deals a fatal blow to the theory that it is a constitutional court of the kind that exists in other European democracies, for the simple reason that in French law the courts are not “powers” but authorities. Finally, by describing the Constitutional Council as a “constitutional public authority”, the Social Security Finance Act 2012 placed the Council in a different orbit from that of the judicial authorities, whose mission consists entirely of protecting the rights and freedoms of individuals, towards which people wanted it to turn, on the grounds that it too protected rights and freedoms. The difficulty is that the Defender of Rights also protects rights and freedoms, yet the Constitutional Council had refused to recognise it as a “constitutional public authority” just a few months before applying the same description to itself. It therefore follows that being a constitutional public authority depends on a criterion that neither the judicial authorities nor the Defender of Rights possess. What is it? The answer lies in identifying the functions exercised by the bodies that do have this quality.

Comparing their functions and trying to identify the common thread that unites them, it does seem that by making the Constitutional Council a “constitutional public authority”, the Social Security Finance Act 2012 put the institution on a par with Parliament and the government, which are democratic bodies because they are elected; it compared it with them because, although its members are not elected, the Constitutional Council is also a democratic body on the same basis they are, but not for the same reason or in the same way.

Admittedly, “the method of investiture (and) the functions (of the Constitutional Council) do not make it a representative of the general will in any way”. Its members are not elected, but appointed by the President of the Republic, the President of the National Assembly and the President of the Senate, each of which appoint three members every three years, for a non-renewable term of nine years. One decisive point, however, is that each of these three authorities sits at the head of a constitutional public authority and that each is deemed totally independent in legal terms: the President of the Republic because of the initial will of the authors of the constitution and the duties inherent in the function (Article 5 of the Constitution), which prevent them from being placed in the hands of a party leader, and the President of the National Assembly and the President of the Senate on the basis of parliamentary tradition. All three bodies are deemed to be “above the parties” and above policy, which is the business of the Government and its head, the Prime Minister. Each represents the permanence of the Republic in its own way: the State, in its historical continuity with the President of the Republic, the Nation in its unity and diversity with the President of the National Assembly, and France and its territories with the President of the Senate. Two of them would not have been chosen if the Constitutional Council had been designed as a court. Could we imagine the President of the National Assembly or the President of the Senate being entitled to appoint the members of the Court of Cassation or the litigation section of the Conseil d'Etat? It is therefore right that the Constitutional Council was not designed as a court and even if it might act as one, it is not on the basis of its composition, its decisions or its mission, but its procedure. We will return to this point.

Positioned between the four constitutional public authorities that are the institutions of French democracy – the President of the Republic, the Government, the National Assembly and the Senate, but only made up of the three that are independent of the parties, the Constitutional Council is a democratic body because the sole purpose of all its functions, as we will see, is to help them to ensure that the democratic processes the authors of the constitution wanted function effectively. It is there, as has been said, to ensure that the general will is expressed “in accordance with the Constitution”. The primary raison d’être of the Constitutional Council is therefore not defending an individual whose rights have been infringed, not least because the victim is unable to refer their case to it directly. The Council’s primary raison d’être is to point out to the majority how not to be tyrannical and, while it is true that the introduction of the priority preliminary ruling on the issue of constitutionality (QPC) creates a confrontation, at the instigation of anyone involved in legal proceedings, between the law and the rights and freedoms guaranteed under the constitution, it is not the rights of the individual that justify the possible unconstitutionality of the law, but the defects in the law in terms of the protection it is supposed to provide.  

2) The nature of the institution

In describing itself as a “constitutional public authority”, the Constitutional Council confirmed that it was not a judge in the strict sense of the term, and it was right. As Pierre Chatenet said in 1974, during the debate on the Finance Act for 1975: “We are not a court. The decision was not made for those who referred the matter to us”. The member of the Conseil d'Etat hit on a fundamental point here. The Constitutional Council is not a judge because it does not deal with people involved in legal proceedings. It does not hear individual cases and is never asked to rule on matters that pit individuals against each other, with one side making accusations and the other defending its position. It does not judge anyone, neither the head of state, on the grounds of “a breach of his duties patently incompatible with his continuing in office” (Art 68, paragraph 1 of the Constitution), who is judged by Parliament acting as a High Court – while the European constitutional courts do judge politicians (for example, the German Constitutional Court which, in accordance with a long-established Germanic tradition, judges the Federal President if they are accused by either the Bundestag or the Bundesrat for a “deliberate breach of the Basic Law or another federal law (Art 61, paragraph 1, Basic Law) or the Italian Constitutional Court, which rules on accusations levelled at the President of the Republic (art. 134, Italian Constitution), nor ministers.

Even in electoral disputes, the Constitutional Council does not judge an individual but an operation with its manoeuvres, low blows and fraud. Admittedly, electoral disputes are legal proceedings and there is a lot of similarity between the case law of the Constitutional Council and the Conseil d'Etat in electoral matters. However, like the Conseil d'Etat when it rules on municipal, departmental or regional elections, when the Constitutional Council is judging the lawfulness of elections to Parliament, it is not directly interested in the perpetrators or commissioners of fraudulent acts – it is not the Council that decides whether they have breached the threshold of dishonesty that places them within the scope of the criminal law – but first and foremost, in the conduct of the electoral process itself. Was it carried out in the conditions democracy demands? Regardless of the degree of perversity of the alleged fraud or manipulation, it has no interest in subjective elements and the election will be valid provided that “assuming they are proven, the irregularities reported (have) no influence in the results of the election, given the difference in the number of votes”.

The Constitutional Council is not directly interested in individuals and their rights and freedoms, unless it is in relation to an examination of the constitutionality of the law that the legislature wants or has wanted to apply, when it is giving a priority preliminary ruling on the issue of constitutionality (QPC), a procedure in which people have attempted to identify a complete transformation of the institution; even in this case, however, the Council is still only interested in the individual indirectly. Individuals can never address the Council directly, even if they are a member of parliament and the author of a submission filed to support the request lodged by 60 of their colleagues. A simple citizen in the context of a priority preliminary ruling, cannot refer their case or present arguments through a lawyer claiming that their rights have been breached in the way that citizens can in the United States (judicial review), Spain (recurso de amparo), or Germany (claim of unconstitutionality, known as Verfassungsbeschwerde). Individuals are so far removed from the Constitutional Council that they cannot bring their own case to it. Only one of the Supreme Courts (the Court of Cassation or the Conseil d'Etat) can do so on their behalf and when they do so, their particular fate as an individual involved in legal proceedings counts for so little, that the Council does not require any standing to rule on the question of constitutionality before it. Admittedly, a lawyer attends to present their client’s case insofar as the term ‘case’ is valid, when there is no discussion of the facts that have given rise to it, but only the law that is supposed to govern it. Their role is not so much to defend their client as to challenge the law being imposed on them, and they can only do so impersonally. The impersonality of an examination of the law, even for QPCs, is also emphasised by the Constitutional Council itself, which takes care only to rule on a particular phrase, which it always isolates carefully, in the relevant legislative provision and which in most cases, consists of just a few words. The fundamental point is that the QPC has resulted in an abstract examination, after the event, of the provisions of the law in light of the rights and freedoms guaranteed by the Constitution.

But surely it is clear to everyone that a judge with no litigants, claimants or defendants is not a real judge? Even Kelsen said so. In his founding article on the judicial guarantee provided by the Constitution, he remarked:

“The body tasked with making unconstitutional laws null and void, even if the independence of its members means it is organised like a court, does not really function as a judicial body. As far as it is possible to distinguish between them, the difference between the judicial and legislative functions mainly consists in the fact that the latter creates general norms, while the former creates only individual norms. Yet rendering a law null and void establishes a general norm, since doing so is a general act in the same way as creating a law is, except that it is, so to speak, a creation with a minus sign, and therefore a legislative function. A court that has the power to render laws null and void is consequently a legislative authority.”

The idea to which French legal opinion currently attaches such a high price, which alleges that the Constitutional Council is a judge because “it states the law” is a nice example of the pitfalls of the comparative method when it is not well understood. This argument, which has been analysed to death by legal writers, is borrowed from US law. John Marshall used it in the Marbury v. Madison ruling as the basis of judicial review of the constitutionality of laws: “It is emphatically the province and duty of the judicial department to say what the law is”. The phrase is undoubtedly true in the United States, but it is not pertinent in French law. The “law” to which John Marshall refers is not positive law for a French lawyer, because in French law, the only positive law, or law in effect, if one prefers, is imposed by statute: the law is the expression of the general will and there is no other kind. The old common law, established by the courts, the “perfection of reason” in the words of Blackstone, who constructed it, no longer exists in French law: the fundamental innovation of the French Revolution was to state that there was no longer any positive law that was not the expression of the general will, with the result that all the law is contained in statute. But in common law systems and all states where there is a process of judicial review of constitutionality, there is no confusion between law and statute; statute is not truly deemed positive law unless it conforms to this “higher law”. In France, this “higher law” is now no longer ignored, since it is expressed in the review of constitutionality of the ordinary law, but it is entirely contained within the Constitution and cannot be contained elsewhere.

Based on the above, it is impossible, in French law, to draw a distinction between the legislature that creates statute and the judges who state the law; the legislature necessarily states the law too. What does it do, if it does not state the law? It is clearly the case that, if statute does not state the law, it is merely an exhortation, a wish, a state of mind, and not a statute. The Constitutional Council has deemed that: “Subject to the particular provisions set out in the Constitution, the purpose of the law is to set out rules and must therefore be normative in scope”. Under these conditions, it was natural for the Constitutional Council to be aligned with the legislature, rather than the judicial authorities. This does not mean that it has espoused Kelsen’s thesis, which viewed the activities of the constitutional judge as those of a “negative lawmaker (...) absolutely determined by the Constitution”, a rhetorical figure on which Doyen Vedel commented amusingly, referring to a judge who can “use the eraser but not the pencil” – which we take as proof that, very occasionally, the legislator has discreetly been able to contradict the great lawyer . Nor does this mean that the Constitutional Council never states the law: it certainly does, when it expresses reservations on interpretation, or when it advises the President of the Republic on the use of Article 16, or when it decides whether a law that has been adopted complies with the Constitution. But it does mean that the Constitutional Council has made its decision and that for it, the debate over its status is closed. It is not and does not want to be a constitutional court, in the same way that the Conseil d'Etat is not and does not want to be an administrative court. Perhaps we should recall that the Conseil d'Etat rejected the idea that its members attached to the litigation section should be described as “administrative judges” when this description has been applied without difficulty to members of the administrative courts and administrative courts of appeal since 1986? The reason is that the Conseil d'Etat, like the Constitutional Council, is much too close to the legislative branch to be a court. As it has stated itself, it is an independent constitutional power that revolves around the Parliament, not the judicial authorities, in either the ordinary or administrative courts.

The Constitutional Council has so little to do with judges that it does things that a sitting judge either does not do, or is prohibited from doing. For example, in terms of procedure, a member of the Constitutional Council who is appointed as the rapporteur for a case does not behave like a judge, even though they have always endeavoured to ensure that all sides are fully involved and that they are aware of all the arguments put forward. It has long been accepted that the Constitutional Council allows arguments other than those presented by those officially seeking an opinion, put forward spontaneously by third parties, to be included in the debate via the “narrow doors” technique: the rapporteur is always aware of them, but does not always take them into account.  The practice has been both criticised and defended by legal writers; President Fabius decided to ensure it was published. There is therefore no doubt that the procedure is adversarial in nature, but it is not judicial. This can be seen in the fact that the rapporteur, unlike a sitting judge, has contact with the outside world, exchanging phone calls with the Government’s Secretary General, the Conseil d'Etat and ministers, which in principle, a judge refrains from doing in order to protect their impartiality. The procedure used, particularly in an a priori review, is essentially inquisitorial, which is not unusual in France and may even seem quite normal, but prompts scepticism, if not outright incredulity, in common law systems, over the allegedly judicial nature of the institution, because ex parte contacts are at odds with the judicial tradition and may even be prohibited by judicial ethics. Similarly, the consultative functions of the Constitutional Council fall outside the judicial orbit and play a similar role to that of certain European constitutional courts, which have been given authority to settle conflicts between bodies. The analogy was suggested by Simone Veil about the “arbitrage function” initially assigned to the Constitutional Council to draw a distinction between laws and regulations and it is certainly attractive, but with one reservation, which is that unlike the German court, for example, the Constitutional Council gives advice, in particular to the President of the Republic: it suggests, but does not make decisions.

The fact is that the Constitutional Council does not have jurisdiction defined by a general clause that would task it, as the German court is, with settling “difficulties relating to the application of the Constitution” or “ruling on disputes between public bodies”. Moreover, when the President of the National Assembly asks for an opinion on the admissibility of an anti-government motion lodged during the implementation of Article 16, the Constitutional Council is not competent to decide on it. Furthermore, even within the context of its purely consultative function, this is not compatible with a judicial function. In the United States, for example, the Supreme Court has never, in the name of the separation of powers, allowed itself to give advice to the President, as a means of protecting the authority of the function and in order not to run the risk of being disowned, the worst possible situation for an institution that relies on the respect given to the word of authority.

Finally, apart from electoral disputes, where it is allowed, and unlike a judge who cannot refuse to accept the consequences of a withdrawal and strike the case from the roll, the Constitutional Council, once a question has been correctly referred to it, must issue a ruling, even in the case of a QPC review. Referral is a matter of public policy. It triggers a review of the act and is not limited solely to the disputed provisions or the grounds invoked. Moreover, the Constitutional Council is authorised to raise grounds on its own initiative (which are called either “grounds” or “grievances” at its discretion), which in principle, an ordinary judge does not do, except in specific circumstances provided for in law (Articles 120 and 125 of the Civil Procedure Code) and, if they are legal grounds, “subject to inviting the parties to present their observations” (Article 16 CPC), a formality with which the Constitutional Council is not obliged to comply and does not necessarily do so. The Council has used the technique of raising grounds on its own initiative from the outset, to review the Institutional Acts that must be referred to it, and about which Georges Pompidou said that “we consider that (it) must analyse them from the first word to the last”, which an ordinary judge would never do.

Taken together, these various elements make it impossible to view the Constitutional Council as a body that belongs to judicial power or the courts, as would necessarily be the case for a constitutional court such as those found in Germany or Italy, or a supreme court of the kind found in the United Kingdom or the United States. The Constitutional Council is a “constitutional public authority” as it said itself, unilaterally describing itself as such as a visible way of removing the ambiguity that had hung over its status for some 30 years. This description resolves, and arguably pre-empts, three problems that have drawn the attention of French legal opinion for a long time:

1) the problem of the grounds for its decisions, which legal writers have consistently criticised, demanding that the Constitutional Council provides reasons in the way a real constitutional judge would; the Council has responded to these criticisms and recently implemented a reform of the grounds for its decisions, making them simpler and more intelligible, but there is no reason to require it to motivate its decision in the way a constitutional court would, given that it is not one, and even less justification for requiring it to provide grounds in the way a court does, with a majority decision flanked by separate opinions;

2) the problem of the legitimacy of the institution, which legal opinion has questioned, wishing that the members of the Constitutional Council were if not elected, then at least confirmed, by an elected assembly, like the judges in the European constitutional courts, forgetting that the solution cannot be transposed to France insofar as the direct aim of all the checks carried out by the Constitutional Council, both main and subsidiary, is not the protection of rights and freedoms but checking the compliance of the law, the essence of the work of Parliament, with the democratic processes enshrined in the Constitution, which would effectively mean giving those under review the right to examine their reviewers, it being noted here that making these appointments subject to a hearing by the standing committees responsible for the constitutional laws in each assembly would only apply to the member appointed by the President of the Republic, the nominations of the Presidents of the houses of Parliament being subject only to the opinion of the relevant committee of the assembly concerned;

3) the problem of the Council’s independence, which is already largely guaranteed by its review of the constitutionality of the Institutional Act that governs it, and which is now strengthened by the absence of any right for the houses of Parliament to scrutinise its finances.

II – Practice (see Part 2/4)


Marie-Elodie ANCEL

  • Job: Professeur à l’UPEC, Université Paris-Est Créteil
  • Country: France
  • Address: Université Paris-Est Créteil

Laurent AYNES

  • Job: Professeur à l’Ecole de droit de la Sorbonne, Université Panthéon-Sorbonne, Paris I
  • Country: France
  • Address: Université Panthéon-Sorbonne, Paris I

Christine BIQUET

  • Job: Professeur à l’Université de Liège, Belgique
  • Country: Belgique
  • Address: Université de Liège, Belgique

Pascale BLOCH

  • Job: Professeur à l’Université Paris 13 Nord
  • Country: France
  • Address: Université Paris 13 Nord

Mircea BOB

  • Job: Professeur à l'Université de Cluj-Napoca, Roumanie
  • Country: Roumanie
  • Address: Université de Cluj-Napoca, Roumanie

Sami BOSTANJI

  • Job: Professeur à la Faculté de droit et des sciences politiques de Tunis, Tunisie
  • Country: Tunisie
  • Address: Faculté de droit et des sciences politiques de Tunis, Tunisie

Bruno CAPRILE BIERMANN

  • Job: Professeur à l'Université del Desarrollo, Chili
  • Country: Chili
  • Address: Université del Desarrollo, Chili

Philippe DELEBECQUE

  • Job: Professeur à l’Ecole de droit de la Sorbonne, Université Panthéon-Sorbonne, Paris I
  • Country: France
  • Address: Université Panthéon-Sorbonne, Paris I

José Angelo ESTRELLA FARIA

  • Job: Secrétaire général Unidroit
  • Country: Italie
  • Address: Rome, Italie

Antonio GAMBARO

  • Job: Professeur à l'Université de Milan, Italie
  • Country: Italie
  • Address: Université de Milan, Italie

Yves GAUDEMET

  • Job: Professeur à l’Université Panthéon-Assas, Paris II
  • Country: France
  • Address: Université Panthéon-Assas, Paris II

Judith GIBSON

  • Job: Juge, district court, Nouvelle Galles du Sud, Australie
  • Country: Australie
  • Address: Nouvelle Galles du Sud, Australie

Marie GORE

  • Job: Professeur à l’Université Panthéon-Assas, Paris II Présidente du Cercle des Lecteurs
  • Country: France
  • Address: Université Panthéon-Assas, Paris II

Michel GRIMALDI

  • Job: Professeur à l’Université Panthéon-Assas, Paris II
  • Country: France
  • Address: Université Panthéon-Assas, Paris II

Ichiro KITAMURA

  • Job: Professeur à l'Université de Tokyo, Japon
  • Country: Japon
  • Address: Université de Tokyo, Japon

Elena LAUROBA

  • Job: Professeur à la Faculté de droit civil de l'Université de Barcelone, Espagne
  • Country: Espagne
  • Address: Université de Barcelone, Espagne

Paul LE CANNU

  • Job: Professeur à l’Ecole de droit de la Sorbonne, Université Panthéon-Sorbonne, Paris I
  • Country: France
  • Address: Université Panthéon-Sorbonne, Paris I

Yves LEQUETTE

  • Job: Professeur à l’Université Panthéon-Assas, Paris II
  • Country: France
  • Address: Université Panthéon-Assas, Paris II

Alain LEVASSEUR

  • Job: Professeur à la Louisiana State University Paul M. Hebert, Louisianne
  • Country: États-Unis
  • Address: Louisiana State University Paul M. Hebert, Louisianne

Philippe MALINVAUD

  • Job: Professeur à l’Université Panthéon-Assas, Paris II
  • Country: France
  • Address: Université Panthéon-Assas, Paris II

Thibault MASSART

  • Job: Professeur à l’Université d’Orléans
  • Country: France
  • Address: Université d’Orléans

Igor MEDVEDEV

  • Job: Maître de conférences à l'Académie juridique de l'Etat de l'Oural, Russie
  • Country: Russie
  • Address: Académie juridique de l'Etat de l'Oural, Russie

Fernando MONTOYA

  • Job: Professeur à la Faculté de droit de l'Université Externado de Bogota, Colombie
  • Country: Colombie
  • Address: Université Externado de Bogota, Colombie

Benoît MOORE

  • Job: Professeur à la Faculté de droit de l'Université de Montréal, Canada
  • Country: Canada
  • Address: Faculté de droit de l'Université de Montréal, Canada

Ngoc Dien NGUYEN

  • Job: Professeur à la Faculté d'économie et de droit de l'Université nationale du Vietnam, Hô Chi Minh Ville, Vietnam
  • Country: Viétnam
  • Address: Université nationale du Vietnam, Hô Chi Minh Ville, Vietnam

Rozen NOGUELLOU

  • Job: Professeur à l’UPEC, Université Paris-Est Créteil
  • Country: France
  • Address: Université Paris-Est Créteil

Soo-Gon PARK

  • Job: Professeur à l'Université de Kyung Hee
  • Country: Corée du Sud
  • Address: Université de Kyung Hee

Paul-Gérard POUGOUE

  • Job: Professeur à l'Université de Yaoundé, Cameroun
  • Country: Cameroun
  • Address: Université de Yaoundé, Cameroun

Frédéric ROLIN

  • Job: Professeur à l’Université Paris Ouest Nanterre La Défense
  • Country: France
  • Address: Université Paris Ouest Nanterre La Défense

Hans SCHULTE-NÖLKE

  • Job: Professeur à l'Université d'Osnabrück, Allemagne
  • Country: Allemagne
  • Address: Université d'Osnabrück, Allemagne

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