Henri Capitant Law Review (English)

Yearbook of French Law 2015 to mid-2016

1 - Constitutional Law 2015 to mid-2016 - Julie Benetti

This past year, the fight against terrorism has dominated constitutional developments in France, reflecting the profound trauma left by the terrorist attacks of January and November 2015. After the relative national consensus that followed the first attacks against the satirical newspaper Charlie Hebdo and a kosher grocery store in the east of Paris, the intensity of the debates illustrated the ambivalent political uses of the Constitution in the face of terrorism.

As the charter of rights and freedoms placed under the supervision of the Constitutional Council, the Constitution was first of all called upon, including in an unusual manner by the President himself, to review the law on intelligence. But with the new bloody attacks on 13 November and the French President's decision to declare a state of emergency, another constitutional logic was at work, that of a Constitution of exception, the foundation of the Nation's values. Initiated by the Head of State, the projet de révision constitutionnelle de protection de la Nation (draft constitutional reform for the protection of the Nation) sparked off four months of intense controversy before the Executive was forced to abandon it, in the absence of an agreement between the two assemblies (I).

Serious times do not prevent business as usual. For memory, we will also review the revival, almost ten years after its last use, of Article 49, paragraph 3, of the Constitution, the most emblematic provision of rationalised parliamentarism, the "new" Constitutional Council after the appointment of former Prime Minister Laurent Fabius as president and, already, the first preparations for the upcoming presidential elections in 2017 (II).

  • Constitution and terrorism

Law on intelligence.

 

            Despite their importance in detecting threats on national security and their impacts on privacy and the exercise of individual freedoms, until recently intelligence activities in France were governed by a fragmented set of rules. Adopted barely five months after the January 2015 attacks, but without being circumscribed to the fight against terrorism, the law on intelligence was, in the minds of its promoters, supposed to bridge the gaps in French law by providing a general legal framework for intelligence service activities "determining principles, defining techniques and reinforcing supervision" (according to the preamble of the bill).

The bill immediately fuelled criticism for extending use of intelligence techniques to certain vaguely identified objectives ("subversion of the Republican form of institutions" or "collective violence susceptible of seriously jeopardising public peace") and dismissing all intervention of the judicial court on grounds that intelligence activities contribute to the prevention – rather than repression – of offences and are thus part of "administrative policing". The argument is convenient and customary in France where the purpose of so-called "preventive" measures and the competence of administrative authorities to oversee them, prevail over the degree of violation of individual freedom of which the judicial court is in principle the natural guardian (Article 66 of the Constitution). In this case, the legislator was criticised for failing to create sufficient guarantees for use of intelligence techniques and for only subjecting their use to the Prime Minister's authorisation given on the basis of a non-binding opinion of a new, umpteenth administrative authority, the Commission nationale de contrôle des techniques de renseignement (National Supervisory Committee for Intelligence-Gathering Techniques), the Council of State hearing any appeals at first and last instance.

Since the 1980 "security and freedom" law , referral to the Constitutional Council by the parliamentary opposition has become almost systematic to review the balance the legislator has struck between preserving public order and guaranteeing freedoms. The law on intelligence was no exception to the rule. But, in addition to the appeal lodged by over sixty French members of parliament and the less frequent appeal of the President of the Senate, it led to a more than unusual referral to the Constitutional Council by the Head of State. Since 1958, no French President had used this possibility to review laws, including in periods of cohabitation, any divergent interpretation with the Constitutional Council being carefully avoided. But, "concerning such an important law for our Republic, it is my responsibility to refer to the Constitutional Council", explained François Hollande when he submitted the law to the court's review without actually contesting its constitutional nature. Taking the albeit limited risk of seeing the most emblematic provisions of the law censured by the Constitutional Council, the President was above all counting on the court to bestow constitutional status upon the "intelligence" law that he could raise against its detractors. Apart from the censure of three provisions, the Council concluded in its decision of 23 July 2015 on the conformity of the law with the Constitution.

 

State of Emergency.

The state of emergency regime was created in France by the law of 3 April 1955 in a context of uprising in Algeria to reinforce the means of civil authorities and thereby avoid declaring the state of siege that would have transferred competence to the military and fuelled the idea of a war of independence. Applied on two occasions since the end of the conflict in Algeria, once in a crisis in New Caledonia in 1984 and then at the time of urban riots in 2005, the state of emergency may only in principle be declared in the event of imminent danger (or natural disasters). Its application entails a considerable extension of the administration's law enforcement powers which may take exceptional measures required to safeguard public order, departing from standard legality and restricting freedoms (particularly house arrests, day and night-time house searches, bans on meetings or traffic restrictions).

When Paris had just been hit in the evening by a series of terrorist attacks, François Hollande declared the state of emergency on 14 November 2015 at midnight, on the entire "Metropolitan territory and Corsica" before extending it four days later to overseas territories. As, after twelve days, the state of emergency may only be authorised by statute, Parliament was called to extend it by three successive laws of 20 November 2015, 19 February 2016 and 20 May 2016. We cannot rule out the possibility of further extensions, with the risk of establishing the state of emergency as an almost ordinary, not to say normal situation, when in essence it is an emergency situation governed by an exceptional and by nature temporary regime.

This widespread use of the state of emergency apparently justified by the permanence and seriousness of the threat of terrorism further came with a risky and ultimately aborted attempt at rendering it constitutional. Unlike the state of siege, provided for by article 36 of the Constitution, or the full presidential powers often referred to as "Article 16" (used by Charles de Gaulle in 1961, in conjunction with the state of emergency, during the putsch by generals in Algeria), the state of emergency, as we have said, merely has a basis in law.

Three days after the attacks of 13 November, François Hollande made use for the first time since his election of the possibility that the French President has had since the 2008 reform of addressing all members of parliament in Congress in Versailles, and announced firstly a modification of the 1955 law, and secondly the inclusion of the state of emergency in the Constitution.

The law of 3 April 1955 had hardly been revised since the start of the fifth Republic. Claiming the need to adapt it "to changing technologies and threats", according to the wish expressed by the President four days earlier before Congress, the law of 20 November 2015 not only extended application of the state of emergency under the 1955 law, but very hastily reinforced "the effectiveness of its provisions". It extended the government's rights as regards house arrests (Article 6) and introduced the possibility of "disbanding associations or de facto groupings that participate in acts seriously violating public order or whose activities facilitate or encourage such acts" (Article 6-1). Inversely, the provisions on supervision of the press were removed and new guarantees were introduced for administrative searches (Article 11). Advantage was also taken of the discussion to introduce the principle of a real-time parliamentary review of measures taken under the state of emergency (Article 4-1).

This modification of the 1955 law which was already substantial per se was supposed, as François Hollande said before Congress, to involve a revision of the Constitution to "enable the public authorities to take action in accordance with the Rule of law against terrorism of war". Opportunely invoking the proposal made by the Balladur Committee in 2008 which itself had taken up the idea of the 1993 Vedel Committee of including the state of emergency in the Constitution, the French President justified the reform by stating that the other emergency constitutional regimes (state of siege and Article 16) were unsuited to the fight against terrorism: "we need a suitable instrument to take emergency measures, for a certain amount of time, without resorting to the state of siege and without compromising the exercise of public freedoms".

Tabled on 23 December 2015 before the National Assembly, after the Council of State’s opinion on the draft had compelled the government to present another version, the proposed constitutional law for the "protection of the Nation" intended to insert a new article 36-1 into the Constitution. Dissociated from the state of siege regime, the constitutional state of emergency regime did not alter any of the conditions for declaring and extending the state of emergency, which were practically identical to the provisions of the 1955 law. But by authorising statute to determine administrative policing measures required by the state of emergency, the reform above all sought to enshrine this emergency regime in the Constitution to protect it from any censure by the Constitutional Council.

This risk of non-constitutionality, invoked in support of the reform, is in fact highly relative since both in 1985 and 2015 and by means of censuring a provision of the law of 20 November 2015 authorising the seizure of computer data, the Constitutional Council did not challenge the legislator’s latitude to define emergency policing measures. The alleged fragility of the state of emergency regime in the light of France’s international engagements was not recognised either, as the Council of State considered that the law of 18 November 2005 extending application of the 1955 law was not incompatible with any of the stipulations of the European Convention on Human Rights.

This was why the proposed reform seeking to enshrine the state of emergency in the Constitution came under heavy criticism from part of the French doctrine for diverting the Constitution away from its purpose by legitimising ex ante, in the name of the fight against terrorism, future violations of rights and freedoms. From a more political perspective, we can also think that François Hollande was hoping, after the attacks of 13 November, to take advantage of the national sentiment of unity to at last leave a constitutional mark on his term as president. The integration of forfeiture of nationality into the proposed reform got the better of this ambition.

Forfeiture of nationality.

            François Hollande had indeed announced in his address to Congress on 16 November 2015, that he wished to extend forfeiture of French nationality to any "individual convicted of a violation of the fundamental interests of the Nation or an act of terrorism, even if they are born French, and I repeat "even if they are born French", where they also have another nationality". However, from his address, it emerged that this measure would accompany the proposed constitutional reform on the state of emergency rather than be integrated in it. Furthermore, "rules concerning nationality" must be set by statute pursuant to Article 34 of the Constitution and the legislator has already stepped in in the past to stipulate that "An individual who acquired French nationality" (by naturalisation or by marriage) may be declared to have forfeited his French nationality, "unless forfeiture would have the effect of making him stateless".

            But no doubt in order to secure support of the parliamentary right wing for the reform and when the Minister of Justice, Christiane Taubira, had thought she could announce a few days earlier that this measure would not be included in it, the constitutional bill tabled before the National Assembly finally included, after Article 1 on the state of emergency, an Article 2 authorising statute to set "the conditions in which a person born French who holds another nationality may be declared to have forfeited his French nationality where he is convicted of a crime that constitutes a serious attempt on the life of the Nation".

The inclusion of this purely symbolic sentence in the proposed reform immediately fractured the political consensus with which François Hollande’s proposals appeared to have met before Congress. In particular, the parliamentary majority was divided over this presidential initiative considered contrary to left-wing values and discriminatory for French people holding dual nationality. Even governmental solidarity did not hold out: resolutely opposed to the proposal that, as Minister of Justice, she was supposed to defend before the assemblies, Christiane Taubira absconded from the task by resigning from the Chancellery before the debate began in Parliament.

At the government's initiative, the drafting of Article 2 of the proposed reform was amended in the National Assembly to remove all reference to dual nationality and to people born French. According to this new version, forfeiture could be inflicted on any French person, by birth or acquisition, whether or not they had another nationality. But when the proposal was submitted to the Senate, it restored the condition of dual nationality on grounds of the risk of creating stateless citizens. Drawing conclusions from the disagreement between the two assemblies, François Hollande decided, on 30 March 2016, "to end the constitutional debate" by abandoning the entire proposed amendment. After four months of sterile controversy, this was a new political setback for the no doubt most buffeted presidency of the entire fifth Republic.

  • Business as usual

Return of article "49-3" against a backdrop of dissensions among the parliamentary majority

            It was last used in January 2006 under Dominique de Villepin’s government. Then first secretary of the Socialist Party, François Hollande had denounced the Prime Minister’s decision of resorting to the provisions of Article 49, paragraph 3 of the Constitution: "Article 49-3 is an act of brutality. It is a denial of democracy". Turning the situation back to front, nine years later it was the right wing that criticised Manuel Valls' government for "forcing through" the bill for growth, activity and equal economic opportunities defended by Economy and Finance Minister Emmanuel Macron.

Criticised for interrupting the parliamentary discussion, use of Article 49-3 gives the executive the exceptional means of seeing its bill "considered passed" in the absence of a vote, the deputies having no other option to reject the bill but to censure the government. Designed in 1958 to remedy the absence of a majority then deemed unobtainable, the system offers such facilities to overcome divisions or to counter the majority’s hostility to a bill that even after the appearance of a united and coherent parliamentary majority in 1962, the successive governments continued to use it extensively. The misuses of Article 49-3, employed more than eighty times in fifty years, led to a framework for its use being included in the Constitution in 2008. It is now limited to financial bills (finance laws and social security financing laws) and to "one other Government or Private Members' Bill per session". It nonetheless remains the most powerful coercive arm that a government has over its majority.

Manuel Valls' decision to make the passing of the "Macron" bill an issue of a vote of confidence was made against a backdrop of parliamentary revolt by the Socialist group's left wing. Since April 2014, the "rebels" of the majority, gathered under the collective "Vive la gauche", had regularly demonstrated their objection to the economic tendencies of the executive by abstaining, ultimately threatening the government's bill with being outvoted. In February 2015, the risk was considered sufficiently serious to convince the government, after more than 110 hours of public debate, to make the passing of a leading – and marathon – bill of its economic policy an issue of a vote of confidence. As the resolution of no-confidence tabled by the opposition was rejected, the "Macron" bill was thus considered passed by the National Assembly.

The reform of the French Labour Code instigated by Manuel Valls' government in spring 2016 marked a new step in the disunity of the majority. With the parliamentary debate threatening to get bogged down, the Executive immediately decided to resort to Article 49, paragraph 3 on first reading, to pass the bill aiming to introduce new liberties and new protections for companies and working people, known as the "labour law". In an unprecedented situation under the fifth Republic, the rebel deputies of the majority attempted in response to table a resolution of no-confidence against their own government. Although their attempt ultimately failed, it nonetheless points to an unprecedented breakdown in majority discipline.

A "new" Constitutional Council?

            Appointed by French President Jacques Chirac on 23 February 2007, Jean-Louis Debré presided over the fate of the Constitutional Council for nine years. His term of office particularly saw the introduction, under President Nicolas Sarkozy, of the "question prioritaire de constitutionnalité" (an application for a preliminary ruling on the conformity of a legislative provision with the Constitution - QPC) which has been a real revolution in French legal tradition marked by "legicentrism" and mistrust of the courts. To the ex ante review of laws introduced in 1958 but dependent on a referral to the Constitutional Council by political authorities, an ex post review was added in 2010 by way of an action based on the rights and freedoms guaranteed by the Constitution (Article 61-1 of the Constitution).

            The QPC met with immediate success among respondents and catapulted the Constitutional Council into the circle of European constitutional courts. The strengthening of its court-like nature particularly through the internal rules of procedure followed for QPCs or more trivially, the creation of a courtroom, has not however extinguished the criticism repeatedly directed against the institution since the outset, particularly against its composition.

The appointment by the Head of State on 19 February 2016, of former Prime Minister and Minister of Foreign Affairs Laurent Fabius to succeed Jean-Louis Debré who had also had a long political career before joining the Constitutional Council continues to fuel the sentiment that the institution (whose members also include former Prime Minister Lionel Jospin) is excessively politicised. We shall also recall that unlike most foreign constitutional courts, members of the Constitutional Council are not required to meet any qualification criteria. Above all, the absurd presence of former French Presidents in the college as ex officio members continues, despite François Hollande's election promise to put an end to it.

            The new President Laurent Fabius has set himself the goal of designing "the Constitutional Council of the future". The justification of decisions, which is sometimes too succinct, could therefore be improved. But only the constituent power can de jure do away with the category of ex officio members and at last match the composition of the Constitutional Council with its judicial mission.

The first preparations of the 2017 Presidential election

            Politics in France revolve around the presidential election. The growing success of primary elections further accentuates this phenomenon. The election process begins with a first round to choose the parties' candidates and, several months before the official day, the future presidential election is already being decided. In the absence of an undisputed leader, the Socialist Party had already held a primary for the last two presidential elections, its choice of candidate in 2006 being made by militants (Ségolène Royal), and in 2011 by a "citizen" primary open to all left-wing sympathisers (François Hollande). While the battle is already on for 2017, the right-wing is now applying the principle and the war of candidates is raging (with the announced duel between Nicolas Sarkozy and Alain Juppé). Meanwhile, in the Socialist Party, the prospect of a candidacy by the highly unpopular outgoing president makes a new primary election more than a mere possibility.

            On the way to becoming a first natural step in presidential elections, which they introduce and reproduce exactly, "primaries" could eventually rival the institutional system of qualification for the presidential election. This system has in fact recently been changed by the organic law of 25 April 2016 which drew conclusions from the repeated criticism of the official rules for presenting candidates for the presidential election. Rather than substituting it with a new system of sponsorship by citizens, the legislator chose to perpetuate the system of presentation by elected representatives inherited from 1958. However, the organic law broke new ground by requiring that the name and function of all the representatives sponsoring the candidates be made public, whereas thus far this was only the case for the five hundred presentations required per candidate. The change may seem slight, but it should end the controversy fuelled at each election by the extreme right-wing candidate over the inequality between sponsors and thus between candidates which stemmed from the former system.

 

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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