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The Constitutional council is a French institution created by the Constitution of the Fifth Republic of the October 4th 1958. It takes care of the regularity of the principal elections and referendums. He comes to a conclusion about conformity with the Constitution of the laws and certain payments before their coming into effect and also intervenes in certain circumstances of the parliamentary life and public.

He is located at the top of any hierarchy of courts neither legal nor administrative. It is not a Supreme court since the Council of State and the Court of appeal are respectively at the legal top of the orders administrative and . However, its decisions are essential “on the public authorities and all the administrative authorities and jurisdictional. ” The French Constitutional council thus has fact a great authority on the whole of the French institutions.

The Général de Gaulle had as a concern of avoiding what he regarded as an American drift leading to the shape of “Gouvernement of the judges”: for him, “the supreme court, it is the people. ” The recourse to the Council was then restricted in its initial design with the more high ranking authorities of the State, and its competences were in fact very limited. With the passing of years, the Council however developed a extensive Jurisprudence.

The Constitutional council necessarily had to adapt to political alternations, with the European construction, but also by gradually asserting a true place of jurisdiction, being in particular inspired by the administrative jurisprudence.

The Constitutional council sits street of Montpensier, with the Palais Royal, close to the Council of State.

Structure

Organization

A general secretary, named by decree by the President of the Republic, directs the administrative services and the legal department made up administrators of the parliamentary assemblies, magistrates of the legal or administrative order, or academics.

A service of documentation is associated with the legal research tasks. A finance department, a service of the foreign relations, a data processing department and a clerk's office for the electoral businesses supplement the flow chart. The other personnel is in charge of the tasks of reception, secretariat, restoration and transport.

The Constitutional council enjoys financial autonomy; its president into fixed the budget whose equipment is registered in the finance bill with the title of the mission “Public authorities”.

Its members are given a remuneration of approximately 16.000 euros monthly per anybody, of a vehicle of function (Peugeot 607 or Renault Vel Satis) to which are added entertainment expenses.

Composition

The French Constitutional council is composed of nine members renewed per third every three years. The members are designated respectively by the President of the Republic and the President of each assembly of the Parliament (Sénat and National Assembly). The former Presidents of the Republic form, of right, part with life of the Constitutional council. However, if they occupy a function incompatible with the membership of the Council, they cannot sit.

The President of the Constitutional council is indicated by the President of the Republic among the members (to profit from this prerogative, De Gaulle had had to see its restricted right of nomination with three members instead of four). He convenes the Council, chairs the meetings, appoints the rapporteurs and, especially, its voice is dominating in the event of division of the voices.

N.B. : In the event of prevention of the President, as it was the case of Roland Dumas, blamed in a politico-financial business then finally released in 2003, the presidency in fact is ensured by the oldest member of the Council (Yves Guéna at the time of the Dumas business).

The mandate of the advisers is nine years nonrenewable. However, in the event of nomination to replace a member prevented from finishing his mandate, the mandate of the substitute can be prolonged duration of a complete mandate if, with the expiry of the mandate of the replaced adviser, replacing it this function did not occupy during more than three years.

The advisers lend oath in front of the President of the Republic, but the members of right are exempted.

No qualification of age or profession is necessary to become member of the Constitutional council. The function of advising is incompatible with those of member of the government or the Economic and Social Council, like with any electoral mandate. Throughout their function, the members of the Council cannot be named with a public employment, nor to receive promotion by selection if they are civils servant. The members of the Council can be (and are sometimes, like Jean-Claude Colliard) nevertheless professors of university.

The members of the Constitutional council can choose to cease their functions. They can be declared outgoing of office in the event of incompatibility or permanent physical incapacity noted by the Constitutional council.

Very former president of the Republic is member of right of the Constitutional council, however before Valery Giscard d'Estaing starting from 2004, then Jacques Chirac since 2007, only the former presidents Vincent Auriol and Rene Coty had sat there.

List Presidents of the Constitutional council

Leon Christmas: of 1959 with 1965
Gaston Palewski: of 1965 with 1974
Roger Frey: of 1974 with 1983
Daniel Mayer: February 21st 1983 with the February 19th 1986
Robert Badinter: February 19th 1986 with 1995
Roland Dumas: of 1995 with 2000
Yves Guéna: of 2000 with 2004
Pierre Mazeaud: February 27th 2004 with the March 3rd 2007.
Jean-Louis Debré: entered in function the March 5th 2007.

List members of the French Constitutional council

See also: List of the members of the French Constitutional council

List general secretaries of the Constitutional council

Jacques Boitreaud, Adviser of State: from 1959 to 1962
Pierre Aupépin de Lamothe-Dreuzy, Adviser of State: from 1962 to 1983
Bernard Poullain, Adviser at the Court of appeal: from 1983 to 1986
Bruno Genevois, Adviser of State: from 1986 to 1993
Olivier Schrameck, Adviser of State: from 1993 to 1997
Jean-Eric Schoettl, Adviser of State: from 1997 to 2007
Marc Guillaume, Adviser of State: from 2007 with today

Procedure

The Constitutional council is an public authority whose meetings follow the rate/rhythm of the requests of which it is seized. He does not sit and returns decisions only in plenary session. The deliberations are subject to a rule of quorum, under the terms of which the effective presence of seven judges is required, except case of major force. In the event of division, the voice of the President is dominating.

As regards electoral dispute, the instruction is entrusted to the one of the three sections made up of three members designated by the fate but of which each one must be named by a different authority. As regards constitutional dispute, the instruction is entrusted to a rapporteur, who then has a plenitude of jurisdiction, and returns to the Council a proposal for a decision.

The procedure is written and contradictory. There is no possible dissenting opinion. The debates in session and plenary session as well as the votes neither public, nor are published. The procedure is thus completely secret.

However, since a decision of June 28th, 1995, the Council can authorize the parts and their representatives to be made hear in front of him within the only framework of the procedure of the dispute of the election of the deputies and senators.

Sasine

The Constitutional council can be seized by the President of the Republic, the Prime Minister or chair it National Assembly or Sénat. Since 1974, it can also be seized by 60 senators or 60 deputies. (cf Article 54 of the Constitution of 1958)

To check constitutionality of a law, the Constitutional council must be seized after the vote of the law by the Parliament but before the promulgation by the President of the Republic. To know constitutionality of the treaties, the Council is received after the signature of the treaty, but before the ratification of this one. In all the cases it cannot be seized directly by the justiciable ones during a lawsuit by way to prejudicial question, contrary for example to the Supreme court of the United States of America or the Federal Constitutional Court in Germany. The reforms in this direction all were given up, and the preceding president Pierre Mazeaud publicly specified that it was unfavourable with such a reform.

Sasine by the ordinary citizen of the Constitutional council was evoked the July 14th 1989 by the president of the Republic François Mitterrand. However, the bearing Bill constitutional n° 1203 revision of articles 61,62 and 63 of the Constitution and instituting a control of constitutionality of the laws by way of exception deposited to the National Assembly on March 30th, 1990 was not adopted with the Senate. The objective of this project was to open with any person the possibility of disputing, by way of exception at the time of a jurisdictional procedure, the constitutionality of provisions of laws, since these provisions would carry reached to its basic rights. In addition, this reform would have involved the prospect for a cancellation of laws declared unconstitutional a posteriori , i.e. after their coming into effect.

Objections of unconstitutionality

the incompetence : only a constitutional law can derogate from the Constitution. There is positive incompetence when an authority encroaches on the prerogatives of another and negative incompetence when this authority fully into practice does not put its own competence
the vice of procedure : they are the irregularities made during the legislative procedure, and in particular the ignorance of the right of amendment
the violation of the Constitution : it is mainly about the non-observance of the basic rights. However, the Constitutional council declared that it did not profit from a power of appreciation identical to that of the legislator in order to restrict the charges of arbitrary ranges against him.
the misuse of power : the Constitutional council can thus censure provisions which were taken only in one financial interest.

The structure of the decision

All the Décision S are taken in the same forms, including/understanding the visas of the applicable texts and the elements of procedure, the reasons presented by considering analyzing the called upon means, indicating the principles applicable and answering the request, a final device divided into articles stating the adopted solution. The Constitutional council does not publish the dissenting opinions.

On the model of the stops of the Council of State, the Décision is made of only one sentence structured in four parts:

the sasine includes/understands the name and the quality of the applicants, the date and the identification of the text submitted
the visas ( " CONSIDERING… " ) indicates the texts and the standards to which refers the constitutional judge
the considering ( " considering that… " ) exposes the reasoning of the judge in general
the device ( " decide: article 1… " ) exposes the decision

Various types of decisions

The various types of Décision S are identifiable by the letters which follow their classification to the role and before their date.

One distinguishes:

- the Decision S related to the electoral dispute of the parliamentary elections for which the initial ones of the rooms YEAR (National Assembly) or S (Senate) and the references of the district or the department are mentioned;

- the Decision S relating to the dispute of the elections chief clerks, ref.;

- the Décision S bearing on the distribution of competences between the legislative power and lawful are associated with the letters L (legislative downgrading) or FNR (fine not to receive, i.e. examination under development of the law);

- finally, the Décision S relating to the control of constitutionality of the Norme S are classified cd. (conformity control). Among those, the decision LP are relating to the " laws of the pays" from New Caledonia. They are controls by article 77, first subparagraph, 2nd indent, of the Constitution:

: After approval of the agreement during the consultation envisaged in article 76, the organic law, catch after opinion of the assembly deliberating on New Caledonia, determines, to ensure the evolution of New Caledonia in the respect of the orientations laid down by this agreement and according to the methods necessary to its implementation:
: (...)
: - rules of organization and work of the institutions of New Caledonia and in particular the conditions under which certain categories of acts of the deliberating assembly could be subjected before publication to the control of the Constitutional council (...)

To date, only two decisions LP were returned: the first, on January 27th, 2000 (decision 2000-1 LP Law of the country relating to the institution of a general tax on the services ) and the second, on April 5th, 2006 (decision 2000-2 LP Law of the country relating to the representativeness of the trade-union organizations of paid ).

Combination of the various types

Since its decision 2005-510 cd. " Law of orientation and program for the future of the école" of April 21st, 2005 (considering 22 and following), the Constitutional council can proceed to the legislative downgrading (of type L) in a decision relating to the control of constitutionality (of type cd.). He makes it only if the applicants call upon the presence of provisions of lawful nature in support of their sasine.

Legal effects and authority of the decisions

The sasine (Article 61) of the Council suspends the time of promulgation of a voted law (last subparagraph of article 61). The decisions of nonconformity lead to the censure total or partial of the law but not to its cancellation since they are marked before the promulgation, legal document which ensures the application of it. A law declared contrary with the Constitution by the Council can is to be promulgated if the unconstitutional provisions were declared divisible of the remainder of the law, that is to say to be abandoned. The President of the Republic can finally ask for a new deliberation on the law (art 10c).

The Décision S are essential (or must impose itself) erga omnes on the public authorities and all the administrative authorities and jurisdictional. They are insusceptibles of recourse (article 62c). “The absolute authority of the judged thing” implies that the Council cannot take a decision twice on the same text, nor (at least in theory) that " public authorities and administrative authorities and juridictionnelles" can contradict the decisions. This authority does not stick only to the device but also to the reasons which are the necessary support (decision 1962-18 L of January 16th, 1962), and also applies within the framework of the control of the treaties (decision of September 2nd, 1992, 312 cd.). In this last case, two assumptions allow a new audit process: on the one hand “if it appears that the Constitution, once revised, remains contrary with one or more stipulations of the treaty” (this formulation is very strange, since to know if the Constitution remains contrary with the treaty, it is necessary precisely that the Council has already an appreciation: are they obvious cases of contrariety? In this case the procedure of revision of the Constitution should make it possible to avoid it…), in addition “if it is inserted in the Constitution a new provision which causes to create an incompatibility with one or more stipulations of the treaty of which acts” (even notices).

In the electoral field, the Constitutional council however admits the recourse in correction of material error. The effect of the decisions as regards electoral dispute varies, energy of the cancellation of bulletins to that of electoral operations themselves, and can comprise the declaration of ineligibility of a candidate and/or the compulsory resignation of an elected official.

Official publications

The decisions are notified with the parts and are published in the Journal officiel de la R3epublique fran1caise (Laws and decrees), with the text of parliamentary sasines since 1983, and the observations of the government since 1995.

The Web site of the Constitutional council, very complete, carries out a second analysis for each Décision the texts of sasine, the whole of the exchanged arguments, the decision, a documentary file and of the General secretary. The place of the authorized comments of the General secretary seems to be done increasingly important. Of aucuns could see a questioning there of the secrecy of deliberated. For as much, they bring sometimes major precise details to the decisions themselves. The fact that the legal doctrines are inspired some more and more poses problem, since, if their moral authority is obvious, such comments do not have juridically a normative value. Thus the interpretation of the Council Decisions by the doctrines appears conditioned.

An Annual Collection of the decisions is published under the high patronage of the Council approximately three months after the year under review. It includes/understands the full text of the decisions (not opinions), an analytical table, with, since 1990, its translation in English, and Spanish of 1995 with 1998.

" Books of the Council constitutionnel" are an official publication of jurisprudence, compared constitutional law and doctrinal analyzes. One also finds there official statements, relative in particular to the prices decreed with remarkable theses of constitutional law. These Books are published, in version paper, by the Dalloz editions and are put on line free on the official site of the Council, with approximately a one month shift.

Great decisions of the Constitutional council

1962 : the Constitutional council declares itself inefficient as regards laws chief clerks: they go in the direction of the general interest because they are voted by the people, the Constitutional council does not have a sufficient legitimacy to make appear its point of view.
" Right of association " (July 16th 1971): integrate into the Bloc of constitutionality the preamble to 1946 and the Basic principles recognized by the laws of the Republic. This decision thus marks a fundamental stage in the rise to power of the institution.
IVG (January 15th 1975): the Council refuses to control a law compared to a treated, and delegates this power to the ordinary judge. By doing this, it explicitly integrates the Déclaration of the Human rights and of the Citizen to the Bloc of constitutionality
Blocage of the prices and incomes (July 30th, 1982) recognizes in one considering of principle the intrusion of the law in the field of the payment (here, the fixing of a police fine)
International penal court (January 22nd, 1999): the Constitutional council devotes the penal irresponsibility of the Head of the State in front of the ordinary jurisdictions throughout his mandate, unless seizing the High Court of justice according to the methods envisaged by title IX of the Constitution of 1958.
Confiance in the digital economy (May 18th 2004): the Council will not censure a law transposing a European directive and doing nothing but take again the latter, except manifest contrariety with the constitution.

One can also quote a Council Decision of State, in 1960: " EKY" company; who asks the administrations to respect the Preamble to the Constitution of 1958. It is to some extent the starting point of the creation of the block of constitutionality finally obtained in 1971. -->

Current rhythm

From January to March 1994, in three months, the Constitutional council as many returned decisions under the control of constitutionality of the Norme S than of 1958 to 1974, in fifteen years.

This formidable rise results primarily from the continuation of two elements:

jurisprudential initially when, in its decision of the July 16th 1971 Right of association , the Council incorporates in the Bloc of constitutionality the text of the preamble to the Constitution, and by incidental way, the Préambule to the Constitution of October 27th, 1946 and the Déclaration of the Human rights and the Citizen of 1789. This jurisprudential projection, which devotes the role of the Council like guarantor of the rights and freedoms, makes it possible this one not to be satisfied with the constitutional control of the Constitution of 1958.
then when the revision of the October 29th 1974 gives to 60 Députés or 60 senators the right of sasine, hitherto reserved with the executive and the Presidents of the assemblies, thus opening it with the minority.

Competences

Expression of a jurisdiction ratione materiae, the prerogatives of the Constitutional council can line up in two categories:

Two categories of competences

A jurisdictional competence

Normative dispute

Competences as regards Control of constitutionality

the control of constitutionality (DC) is:

optional (if the Council is received by the President of the Republic, the Prime Minister, the President of one of the two Assemblies or since the constitutional law of October 29th, 1974 by 60 deputies or 60 senators) for:

ordinary laws under the terms of article 61 subparagraph 3 (in particular finance laws, laws authorizing the ratification of a treaty, laws entitling the government to resort to ordinances of article 38 subparagraph 3, laws ratifying these ordinances);
international engagements under the terms of obligatory article 54 subparagraph 3.

for:

the organic laws;
payments of the parliamentary assemblies: National Assembly and Senate, as well as the Congress (which is the meeting of the two assemblies envisaged by the article 89 for the revision of the Constitution).

Control is abstracted, a priori and is exerted by way of action after the vote by the Parliament but before the promulgation of the law, the ratification or the approval of an international engagement and the coming into effect of the payments of the assemblies. Since 1999, the Constitutional council can also examine conformity with the Constitution of the laws of the country adopted by the congress of New Caledonia (LP).

It is brought to define the legal nature of certain texts: thus, one can say that he is judge of the distribution of competences between the law and the payment, because the Constitutional council can be seized either in the course of parliamentary discussion by the president of the assembly or Government (FNR), or a posteriori by the Prime Minister to downgrade a provision of legislative form (L).

Incompetences

The Council refuses to carry out a control of constitutionality:

of the laws chief clerks (Decision n° 62-20 cd. - November 6th, 1962 - Relative law with the election of the President of the Republic by the universal direct suffrage, adopted by the referendum of October 28th, 1962)
of the laws " constitutionnelles" (Decision n° 2003-469 cd. - March 26th, 2003 - Constitutional revision relating to the decentralized organization of the Republic): the Council refuses to employ in its jurisprudence the term of " law constitutionnelle" (doctrinal term), but the term of " employs rather; revision constitutionnelle" , which is not subjected to a control of constitutionality by the Constitution;
of the already promulgated laws, but the Council attenuated this impossibility while agreeing to control a law already promulgated at the time of a control made a priori on a new law which amends the promulgated law (85-187DC January 25th, 1985, state of emergency in New Caledonia)
of the ordinances of old article 92 (transitional provisions aiming at setting up the new mode), and in particular the organic ordinances of 1958-1959, because the competence of the Constitutional council on these texts was not envisaged.

Electoral dispute and comparable

the Constitutional council is the judge of the regularity of various operations:

parliamentary elections (National Assembly and Senate) (Article 59);
presidential elections (Article 58);
Referendum S nationals (Article 60).

For these two last operations, he also proclaims the results.

Largely opened to the voters, sasines of the electoral matter Council saw their number increasing considerably following the vote of the legislation organizing and controlling the financing of the electoral expenditure, which thus forms fully part of the control of the elections parliamentary and presidential by the Council. Thus, at December 31st, 2006, the Council had returned 2514 electoral matter decisions for 751 decisions on the dispute of the standards (including 541 cd.).

Moreover, one generally associates with this dispute, two dispute related:

control of the incompatibilities of the members of Parliament (I).
forfeiture of the members of Parliament (D).

An advisory competence

the Constitutional council gives opinions on the implementation of article 16 of the Constitution (extraordinary capacities of the President of the Republic in the event of serious threat of the institutions).

it must deliver an obligatory opinion, justified, published, but not conforms, on the condition of the meetings of the criteria of application of article 16. It is about the appreciation (even if the opinion of the Council is not in conformity (he does not bind the President), it acts all the same of a dependant competence for this last: " the President takes the measurements required by the circonstances") :

of the serious character and the urgency (" a serious threat and immédiate"), which weighs on:

institutions of the Republic;
integrity of the territory;
the independence of the Nation;
or execution of international engagements.

this threat must, moreover, stop the regular operation of the constitutional public authorities:

electorate (title I of the Constitution)
President of the Republic (title II)
Government (title III)
Parliament (title IV)
legal authority (title VIII).

During the implementation of article 16, the Constitutional council must deliver an opinion obligatory, justified, not published and not conforms for each note taken in the application of article 16 by the President (generally, of the legislative decisions). The control of the Council is a control:

of proportionality (" measurements required by the circonstances") ;
finalist: measurements must have the aim of restoring the continuity of the State (to cease the interruption of the " regular operation of the public authorities constitutionnels").

In addition, the Government consults the Council on the relative texts:

with the organization of the poll for the election of the President of the Republic (Article 58);
with the national referendums (Article 60).

These reasoned opinions are not given public and are not, in theory, in conformity (although in practice, the Government follows them).

It is estimated inefficient when it is seized for any other question.

The characteristic of the control of conventionnality and the control of constitutionality of the treated S

The position of the Constitutional council

Of the Constitution of 1958 heading Of the treaties and international agreements precise in its article 54 that “if the Constitutional council, received by authorities competent for this reason declared that an international engagement comprises a contrary clause with the Constitution, the authorization to ratify or to approve international engagement in question can intervene only after revision of the Constitution”. This article, modified in 1992 (constitutional law n° 1992-554), makes it possible to the Constitutional council to examine whether the provisions of an engagement of international law or Community legislation impose, before his integration in the French legal order, a modification of the Constitution. The Council thus does not take a decision on the law of ratification, but on the treaty itself.

In its of April 9th, 1992 known as “Maastricht I”, the Council decides that “the respect of national sovereignty does not make obstacle so that France can conclude, subject to reciprocity, of international engagements in order to take part in the creation or the development of a permanent international organization, equipped with the legal and invested personality decision-making powers by the effect of transfers of competence authorized by the Member States; However if the international engagements subscribed for this purpose contain a contrary clause with the Constitution or bearing reached with the essential conditions of exercise of national sovereignty, the authorization to ratify calls them a constitutional revision”. He judges here that the institution of the single currency, the creation of a European citizenship impose a revision of the Constitution. A similar control will intervene for the ratification of the treaty of Amsterdam, as for that of the Treaty Establishing a Constitution for Europe. The decision 2004-505 cd. will be thus at the origin of the constitutional revision of March 1st, 2005. In the decision known as " Voluntary interruption of grossesse" (IVG) the Council is not estimated qualified, in accordance with the article 61c, to control the conformity of a law to the stipulations of a treaty or an international agreement (decision n°1975-54 of January 15th, 1975). It justifies this position by a difference in nature between the control of constitutionality of the laws (art 61c), which returns to him, and conventionnality of the laws controls it (Article 55c) which is “relative and contingent” (field of application limited of the treaty, requirement of reciprocity in the execution of engagement). For the Council in 1975, “a contrary law with a treaty would not be, for as much, opposite with the Constitution”.

It thus implicitly then explicitly (in 1986) entitled the jurisdictions known as ordinary to know conventionnality of the laws (conformity of the laws to international engagements): Stop Jacques Vabre of the Court of appeal (1975), Stop Nicolo of the Council of State (1989).

The problem of the control of constitutionality of the derived Community legislation

In its decision of April 9th, 1992, the Council specifies that the Community legal order is a clean legal order, which does not belong to the institutional order of the French Republic. Faithful to its jurisprudence of December 30th, 1976, he denies any specificity with the Community legislation, contrary with the clear-cut position of the Court of justice of the Communities (Van Gend in Loos 1963, Costa 1964), affirming the principle of primacy and the specificity of the Community legislation.

The question of knowing if the Constitutional council controls or not the constitutionality of the derived Community legislation is major, since more half of the standards in the legal order interns are Community legislation today. In its decision 2004-496 cd. of June 10th, 2004 , confirmed quickly during the summer 2004, the Council is stated inefficient to control the constitutionality of laws which are the transposition of unconditional and precise directives, except when this transposition runs up against a special provision and express of the Constitution. It bases this incompetence and the obligation of transposition on article 88-1 of the Constitution, which specifies that “the Republic takes part in the European Communities and the European Union, consisted of States which chose freely, under the terms of the treaties which instituted them, to exert some jointly their competences”. Under the above mentioned reserves (unconditional and precise directive; absence of constitutional provision contrary express), the directive made, to some extent, screen between the law and the Constitution, or the law is the mirror of the directive. It is true, the Council would appreciate if not the constitutionality of the directives themselves, and could thus blame the obligation of transposition.

The decision 2004-505 cd. of November 19th, 2004, Treaty establishing a Constitution for Europe , is major in more than one way:

it devotes the primacy of the French Constitution on the right of the Union, neutralizing the I-6 article of the treaty. Juridically, the " Constitution européenne" remain a treaty (e.g. existence of a clause of denunciation by the Member State) and this treaty changes neither the nature of the European Union nor the former range of the principle of primacy.
it alleviates the possible tensions between the Charter of the Basic rights and the Constitution of the Republic: is the field of application of the Charter limited to the Community context (?), the secularity is preserved (the Council aims at a stop of the CJCE which was however not yet final at the time…), the dedication of the rights of the minorities is in conformity with the constitutional requirements
the transfer of new competences to the European Union requires a constitutional reform (clause-footbridges, principle of subsidiarity,…)
the prerogatives of the French Parliament are extended, which requires a revision: the Constitution envisages precise cases of decisional vote of the Parliament, and these new prerogatives limit the range of attributions of the French executive, traditionally in load of the international businesses.

The decision of the Constitutional council " Right of auteur" of July 27th, 2006 brings on point a new nuance in the objective to extend the field of its control, without to declare it qualified by principle for the checking of the compatibility of the national laws with the Community treaties. Thus, it rises from this decision that under the terms of article 88-1 of the Constitution, the Constitutional council is not qualified to control a law of transposition taking again a Community directive. Nevertheless, it is also specified that the Community legislation takes precedence over the national right only insofar as it is not contrary with a " principle inherent in the constitutional identity of France" (what seems to point out the " provisions expresses" decision of 2004 " Economy numérique"), and this by reference to article 1-5 of the draft treaty of European Constitution. This decision seems contrary with the jurisprudence of the Court of justice of the European Communities. Moreover, the vague expressions employed by the Constitutional council would deserve to be better defined in order to put a final point at the question of a possible hierarchy between the constitutional standards.

Positions of certain doctrines

Certain doctrines affirm that in what acts of the control of conventionnality one can say that the Constitution is lower than these treaties.

This position is not valid for all the Community treaties, but only treaties and for the European Convention of the human rights.

Community legislation

This position comes from a particular interpretation of article 54 Constitution of October 4th, 1958 which affirms that " if the Constitutional council (...) declared that an international engagement comprises a contrary clause with the Constitution, the authorization to ratify or approve international engagement in question can intervene only after the revision of Constitution."

One can interpret this sentence in two manners. The Constitutional council stresses the fact that the authorization to ratify or approve engagement can intervene only after the revision of the Constitution: there cannot thus be authorization if there is incompatibility.

Those which are, on the contrary, for the superiority of the treaties on the Constitution, stress the fact that it is the Constitution which is modified (thus which is subjected) in the event of incompatibility, and not the treaty. Moreover, the Constitution envisages in its article 55 only the fact that " the treaties or agreements regularly ratified or approved have, as of their publication, an authority higher than that of the laws, provided, for each agreement or treaty, of its application by the other partie." The Constitution thus does not specify if the treaties are higher or lower than the Constitution.

European human rights

Zielinski stop of 1999: direct judgment of the Council by the Court, on the basis of article 6-1 of Convention (there already had been before indirect judgments). The Council was inclined thereafter in front of this jurisprudence.

Doctrinal problems related to the Constitutional council

The Constitutional council is recognized by the majority of the lawyers as being a progress for better guaranteeing the existence of the Rule of law in France. However, he is criticized by certain constitutionnalists, particularly within the framework of the control of constitutionality of the laws which it is charged to carry out.

First of all, it is necessary to notice that the Constitutional council is a European exception. Indeed, the whole of the European constitutional jurisdictions are Constitutional courts, whose impartiality is less prone to guarantee than in France. The model of the courses constitutional is thus very different from that of the French Constitutional council, and undoubtedly much more modern.

Legal competence of the judges

No condition of legal competence of the members of the Constitutional council exists. France is thus the exception in Europe, since it is necessary to be, at least, lawyer, to be a constitutional judge. In various European country, for example, qualities required are:

Austria: to be a judge, civil servant or professor of university;
Germany: to be a supreme federal magistrate (for six of them at least), to meet the conditions to be a German judge;
Italy: to be a magistrate, law professor or lawyer;
Spain: to be a magistrate, professor or lawyer;
Portugal: to be a judge (for six of them at least) or lawyer;
Belgium: to have been during 5 years high-ranking magistrate or member of Parliament.

Even if it quasi totality of the current French constitutional judges have legal competences, nothing prevents, within sight of the legal texts currently in force, to name a personality not having legal competences.

Thus, Jean-Louis Debré, Guy Canivet and Jacqueline de Guillenchmidt is former magistrates of the legal order, Valery Giscard d'Estaing, Pierre Steinmetz, Pierre Joxe, Olivier Dutheillet de Lamothe, Renaud Denoix de Saint Marc and Jacques Chirac is énarques, Jean-Louis Pezant was public law professor. Pierre Joxe is former First president of the Court of Auditors, Renaud Denoix de Saint Marc is former Vice-president of the Council of French State, Guy Canivet is former First president of the Court of appeal. Olivier Dutheillet de Lamothe, Renaud Denoix de Saint Marc and Jacqueline de Guillenchmidt is advisers of State.

On the contrary, Dominique Schnapper is docteure in sociology, director of studies of EHESS.

Place du legal department of the Council

The Constitutional council, like the whole of the European constitutional courts is assisted of a legal department, composed of 3 people: a legal Magistrate (specialized in Private law and criminal Law), a administrative Magistrate (specialized in Administrative law, Revenue duty, electoral Right, Right of the environment…), an administrator of the National Assembly (specialized in parliamentary Right, budgetary and financial). Working under the authority of the General secretary of the Constitutional council, this legal department itself is assisted of a service of documentation, and receives the assistance of high level trainees.

In the other constitutional courts, the constitutional judges can have at the disposal one or more collaborators who are clean for them, or, the legal department is composed of a greater number of members. This system was not reproduced in France, for reasons “of effectiveness” and economy.

One can put the question of the dependence of the members of the Council at the legal department of the Constitutional council for decision making, insofar as it could take a dominating place in the process of the decision making of the Council.

In the beginning, the legal department of the Council is at the disposal of the rapporteur, i.e. of a member of the Constitutional council designated by his President to direct the instruction of the constitutional “lawsuit”. The legal department can initially be expressed on the decisions to come with a certain independence; however it is held with a requirement for honesty to the rapporteur: it must obligatorily follow its directives. This service has the role of providing an technical assistance to the members of the Council. The members of the legal department attend the meetings of the Constitutional council and establish the official report of the debates. The legal departments take part obviously in the decision-making, in particular by the drafting of a preliminary draft of decision, submitted to the rapporteur, who can decide following giving to it. This preliminary draft will be then subjected to the Council.

However, the control of constitutionality, and particularly, with regard to the control of the Fundamental freedoms, is specific in what it is primarily about a control of good sense , by-report/ratio to a relatively reduced textual standard. Legal control strictly speaking can, according to this reflection, secondary being by-report/ratio with a human control simply , calling more upon the inward conviction of the constitutional judge.

Impartiality

The impartiality consists in the absence of party taken. This quality necessary of a Juridiction is the object of a debate of the constitutionnalists, with regard to the model of the Constitutional council, in opposition to the others European Constitutional courts.

Impartiality of the judges

The problem of the impartiality of the judges arises with an obvious acuity, since they are named by more the high ranking authorities of the State (President of the Republic, President of the National Assembly, President of the Senate), and this, in a discrétionnaire way, i.e. without possible counter-signature nor dispute.

These named personalities are it often following a notorious political career. One can thus quote the example of Simone Veil (minister of Health, President of the European Parliament, minister of state, Minister for the Social Affairs, Health and the City) or of Pierre Joxe (Minister of Industry, chair socialist group the National Assembly, Minister of Interior Department and Decentralization, Minister of Interior Department, Minister for Defense.

Certain French politicians put thus regularly causes this institution of it, in particular by showing it to make decisions initially political. The problem which is then mentioned is not so much a problem of impartiality, but especially of the distribution of the seats to the Council, with 7 representatives named by authorities from right-hand side, and 2 by authorities of left.

However, the Constitutional council, even when it is in political agreement with the President of the Republic, the Government, the Parliament, do not hesitate to censure provisions which are contrary with the Constitution, and this, regularly. For example, in 1971, the decision Right of association showed this independence, since the Constitutional council was completely same political edge, and however decided against the whole of a law, by positioning same manner as a guard of the Fundamental freedoms. Robert Badinter could speak “to have about ingratitude” of the members of the Council towards those which named them.

More recently, the Constitutional council was the framework of a political debate tended at the time of the examination of the Loi for the equal opportunity. Rare event, of the police force had been deployed around the seat of the Council in Paris the day of the deliberation, and a conference envisaged the following day had been cancelled “because of the current circumstances”. The Constitutional council did not censure 2 articles, and gave less of them a neutralizing interpretation (little noticed) of famous article 8 of the law, instituting the Contract First Engages (CPE), demanding that the employer justifies, in front of the judge, of a serious reason for dismissal.

The relative law with the wage equality between the women and the men of March 23rd, 2006 also knew an important censure, since articles 9,14,18,21 to 26,30 and 31 of this law was declared contrary, and articles 27 and 29 were the object of a reserve of interpretation of the Council. They are there only examples, and the Constitutional council regularly returns decisions of nonconformity to the Constitution, even when they are politically discussed provisions. There would be no censure if the Constitutional council were more one political body that jurisdictional.

Neutrality in the public political debate

The members of the Constitutional council are held with an oath-taking. They swear indeed, in front of the President of the Republic of “good and accurately to fulfill their functions, to exert them in any impartiality in the respect of the Constitution”

However, only the named members are held with this oath-taking, and not the members of right, i.e. the former Presidents of the Republic. Valery Giscard d'Estaing, thus, was already expressed publicly on many matters interesting the Constitutional council in the most point.

Moreover, even on the assumption of a member named by more the high ranking authorities of the State, a simple “setting on leave” of the Constitutional council can thus make it possible, temporarily, not to more bind the members of the Council to their oath. It is thus what carried out Simone Veil (only assumption to date) at the time of the referendum relating to the Traité establishing a Constitution for Europe, while at the same time the Council rules for the control of the operations chief clerks, as a judge of the elections national policies.

Impartiality of the rapporteur

He is envisaged, under organic ordinance of November 7th, 1958, that a member of the Constitutional council presents a report/ratio to the Council on the appreciation of the conformity of the law submitted with the Constitution.

This rapporteur is appointed by the President of the Constitutional council.

However, the legal departments of the Council establish before the “risk of sasine”, in particular member of Parliament, and can then prepare the legal work of analysis of the texts before this sasine is effective. Indeed, the Constitutional council has little time to make a constitutional “lawsuit”: between 8 days and 1 month, but 13 days on average. The analysis of the legal text and the objections of unconstitutionality invocables thus already began before sasine, and the rapporteur can thus be indicated in a semi-official way before sasine.

The rapporteur is dominating in the procedure of the constitutional lawsuit. Indeed, it with the responsibility for the instruction. It writes, with the assistance of the legal departments, a preliminary draft of decision. Its personal orientation will thus influence directly the constitutional lawsuit and engages already the decision of the Constitutional council. It must thus be particularly impartial.

In order to allow this impartiality, the name of the rapporteur is always secret. The called upon argument is that this secrecy makes it possible to the rapporteur to avoid the “pressures” during the instruction, which lasts during a few weeks. It rises from this principle that no statement, that no part of instruction can be made public. Only sasine, the observations of the government and the possible counterparts are published in the Official journal, during the publication of the submitted, joint law with that of the Council Decision. However, it is envisaged in the procedure that the rapporteur meets the General secretary of the government: the absence of public official report does not make inconceivable of the “pressures”.

Legal security

Authority of the Council Decisions

Under article 62 of the Constitution: " A provision declared unconstitutional cannot be promulgated nor application. - The decisions of the Constitutional council are not likely of any recourse. They are essential on the public authorities and all the administrative authorities and juridictionnelles."

That means that the device of the decisions of the Constitutional council, the reserves of interpretation which are built-in there as well as the reasons which are the support of the device have an effect Erga omnes , except for the component.

On the other hand, the authority of the interpretation of the Constitution by the Constitutional council with respect to an other law, does not profit from the same force. It is what explains the reversals of jurisprudence, even if they are rare, of the Constitutional council. One notes a general tendency of the legislator however conform to it if it does not want to see his weakened work; in the same way the judge generally takes again on his account this jurisprudence, explicitly or implicit, except when the theory of the law-screen is opposed to it.

Legal security and procedure

While at the same time the organic law regulating it authorizes there, the Constitutional council, to date, did not obtain rules of procedure with regard to the control of the constitutionality of the laws. These rules of procedure would make it possible to precisely define the procedure in front of the Council, which results primarily from the practice.

On the other hand, as a judge of the elections national policies and the operations chief clerks, the Constitutional council obtained rules of procedure.

To know the applicable procedure before the Constitutional council, which varies according to the questions which are subjected to him, best is to refer to the analysis made by Pascal Jan in a report/ratio published in the following address: http://www.conseil-constitutionnel.fr/textes/jan2000.htm

Legal security and standards of reference

The Constitutional council spent a certain time before stabilizing his competence, with regard to the standards which it must make respect.

In 1958, the Constitutional council conceived the Constitution like the only text of the Constitution of 1958. In 1971, it added there the Préambule to the Constitution of October 27th, 1946 and the Basic principles recognized by the laws of the Republic. In 1975, it finished the composition of a Bloc of constitutionality by adding to it the Déclaration of the human rights and the citizen of 1789, while excluding from its competence the control of the conformity of the laws to the international treated S.

The Constitutional council estimates itself inefficient to control a standard of constitutional value: he clearly considered relating it at the time of a sasine to the constitutional law of March 28th, 2003, in decision 469 cd. of March 26th, 2003. This jurisprudence comdamne any idea of supraconstitutionnality, and slices with the ambiguity which characterized its former position (decision 92-312 cd.).

More recently, the April 28th 2005, the Council admitted in the standards of reference with which it is charged to control the respect the Charte of the environment. Before, in 2004, at the time of sasine relating to the law for the Confidence in the digital economy, the Constitutional council ensured that it would censure the law compared to a European directive unconditional and precise only in the event of manifest contrariety with a provision express of the Constitution.

The Constitutional council, like any judge, must interpret itself his competences and their extent, and only a provision of constitutional value could limit this freedom. Much more, the Council in the beginning was hardly designed like a constitutional court: the development of the Constitution of 1958 showed that it acted before very for him making observe the legislative procedure. The decision Right of Association of 1971 thus made run much ink, since the Council recognized, for the first time in the French constitutional history, a real normalcy with the Declaration of 1789, apprehended at the origin rather like a historical declaration and symbolic system without legal consequences. Therefore, it gave itself a powerful means of framing the possible restrictions of these rights by the legislator. It is thus the Constitutional council which would have competence to decide itself which are the standards which it is charged to make respect or not. It would undoubtedly be convenient that the standards judged by the council are enumerated limitativement, in the organic law regulating it, in order to guarantee a better legal security.

Legal security and “ Government of the judges ”

The principle even of a constitutional jurisdiction is that it can censure the work of the legislative power by calling upon a contrariety compared to the Constitution. This mission is necessary to guarantee the Rule of law, but, if the competence of the constitutional jurisdiction is too broad, it can lead to a questioning of the public authorities, and particularly of the legislator.

The Declaration of the Human rights and the citizen of August 26th, 1789 lays out in his article 6 that “the Law is the expression of the general will”. The Constitutional council, censuring the law, voted by the Parliament, incarnation of national sovereignty, would thus be opposed, in theory, with the general will. A constitutional jurisdiction is thus an necessary evil for, paradoxically, guaranteeing a certain legal security, and the perenniality of the Constitution.

However, the range of this principle is variable, in what the laws chief clerks lay out of a constitutional immunity, people having directly approved it. The Constitutional council refuses to examine them. He is the same for the constitutional laws, which cannot be to him submitted, the Council being then in position of judge of a standard which it will have to thereafter make respect.

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