Henri Capitant Law Review (English)

Constitutional review in France

Editorial - Camille Broyelle, Professor at the University Panthéon-Assas (Paris-II) and Wanda Mastor, Professor at the University of Toulouse Capitole (Toulouse-I)

The constitutionality of French laws may be reviewed at two separate stages. The nature of these reviews is very unusual, for several reasons. Firstly because, traditionally, political and constitutional theories were profoundly hostile to such reviews; historically, France is not a country known for its system of judicial review. Secondly because the current system has been constructed in successive stages since 1958, and each stage reflects a particular function that has been allocated to the constitutional framework of the law. The current system is not the result of a homogeneous and coherent conception of constitutional justice. Lastly, the constitutional review of a French law is exceptional because of the methods adopted, and this is the direct consequence of the factors mentioned above. Since 1958 a limited number of important individuals [such as the President of the Republic, the Prime Minister, etc.] have had the discretionary power to refer laws to the Conseil constitutionnelor Constitutional Council, which is empowered to review the constitutionality of the law in question, before it is promulgated. In 2008 another form of constitutional review was introduced, namely the “Question prioritaire de constitutionnalité” (QPC), or “Priority Preliminary Ruling on the Issue of Constitutionality”. Thanks to this device the constitutionality of a law may now be challenged in the course of legal proceedings, after the law has come into effect. In such case the law will also be referred to the Constitutional Council for a ruling on its constitutionality.

The history of the Constitution, the evolution of political ideas, and the transformations of the French legal system and the environment in which it operates all serve to explain the hybrid nature of the French system of constitutional review. That is the subject of this article. 

In spite of legal and political traditions that were hostile to all constitutional review, the right to review the constitutionality of a law did not arrive in virgin territory when it was introduced in 1958. There is no doubt that, after the Revolution, the theory of the law as the “expression of the general will”, and the theory of the sovereignty of the legislature radically excluded all forms of constitutional review (E. Zoller). However, the idea that the legislature should be subject to the law runs through political thought, and was nourished in the 19th century by studies devoted to the American model (Tocqueville, Laboulaye). In consequence the dual concept of constitutional justice made an early appearance in legal theory and today’s mechanisms for reviewing constitutionality both before and after promulgation reflect that view. On the one hand, constitutional justice is seen as a means to regulate the public powers, and on the other it is a means to protect rights and freedoms (F. Saint-Bonnet). If neither of these models has taken shape in positive law, they definitely structure legal and political thought.

Thanks to the criticisms that were levelled against the operation of the parliamentary regime under the Third Republic, the debate, which had been latent since the Revolution, was revived at the turn of the 19th and 20th centuries. Various scandals and the instability of the government weakened Parliament, which was criticised for being both impotent and omnipotent. The theory of the État légal or “Legislative State” or “rule by law” (Carré de Malberg), namely of a state dominated by the law (in reality, dominated above all by [parliamentary and other] assemblies), showed its limits. The issue of constitutional review re-emerged as a subject of discussion, but came up against a number of obstacles (M.-J. Redor): no constitutional value was given to the Declaration of the Rights of Man and the Citizen of 26 August 1789 (against which norm would the law be checked?); there was the fear of granting the ordinary courts the power to review [constitutionality], which was first and foremost political; and, more generally, there was the principle of the separation of powers and the dogma of the law as an “expression of the general will”. The debate produced no more than a few vain attempts at reform.

It did, however, mark a turning point. One of the protagonists in the discussion, C. Eisenmann, a disciple of Kelsen, suggested a solution. His study of the Austrian constitutional court showed that the obstacles of sovereignty and the separation of powers could be avoided: constitutional review by the courts did not mean that the judge had become sovereign; in the case of an unconstitutional law, the judge’s role consisted merely of indicating that the law had been adopted at the end of an “irregular” procedure (a legislative procedure instead of the constitutional route). In a calmer light, constitutional review may be based on a political system dominated by the theory of national sovereignty (L. Favoreu and W. Mastor). The idea was later revived by G. Vedel who argued that the constitutional judge is merely a “pointsman”.

After a first fruitless attempt in the Constitution of 27 October 1946, constitutional review was introduced in the Constitution of 4 October 1958. The mechanism that was introduced at that time (laws to be reviewed before promulgation by a specific authority, namely the Constitutional Council, to which a matter may be referred by a handful of public authorities [such as the President and the Prime Minister]) was intended to limit Parliament in order to strengthen the role of the Executive. It was conceived as an instrument of rationalised parliamentary government, an “arm against the deviation of the parliamentary regime” (M. Debré).

In 1971, it underwent profound change. For the first time in relation to a law, the Constitutional Council referred to “the Constitution, particularly the Preamble”, in Decision no. 71-44 DC of 16 July 1971, Liberté d’association or Freedom of Association. By means of this reference, it settled the doctrinal debate relating to the legal value of the Preamble and proposed a set of reference norms, consisting more particularly of the Declaration of the Rights of Man and the Preamble to the Constitution of 1946. By agreeing to check a law against the “constitutional corpus” (L. Favoreu), instead of merely checking it against the main body of the Constitution of 1958, the Constitutional Council gave a new purpose to constitutional reviews: henceforth such reviews would be seen as a means of protecting rights and freedoms, which the constituent power confirmed by allowing sixty deputies, i.e. members of the lower house of parliament, and sixty senators, to also refer laws to the Constitutional Council (Constitutional Law of 29 October 1974). 

Having appeared accidentally as part of a mechanism that was intended to restrict the legislature and maintain a certain balance among the powers [that make up the state], the right to check that a law respected fundamental rights and freedoms was marked for a long time by an unusual distinctive feature, namely it was limited in time and could only be exercised before the law came into effect, and only by a small group of public authorities. However, the purpose of such a review required that it be implemented at any time on the initiative of the main interested parties, i.e. the citizens. The idea of a review that could be made in exceptional circumstances, on the initiative of parties that were likely, in the course of legal proceedings, to be subject to unconstitutional statutory provisions, then reappeared in the 1990s. Two proposed reforms were suggested, one in 1990 and the other in 1993, however, neither came to fruition.

The debate was finally revived in 1975 when the Court of Cassation acknowledged that it was possible to check that a law was consistent with the Treaty of Rome (Jacques Vabre, 24 May 1975) and the Council of State adopted the same position in 1989 (Nicolo, 20 October 1989). In fact, it revealed an anomaly: how could one justify the fact that it was impossible to challenge the law vis-à-vis the Constitution, when in any trial, before any judge, the parties could have a law that was contrary to the Treaty set aside? Even though it took precedence in the domestic legal system, the Constitution was less well protected than the Treaty. In 2008, the constituent assembly eliminated the inconsistency. On 21 July 2008, the Congress [consisting of both houses of the French Parliament] that met in Versailles made it possible, by only one vote, to review the constitutionality of a French law after it had been promulgated. The main features were laid down in the Institutional Law of 10 December 2009, which stipulated that such reviews could be made by means of a “Question prioritaire de constitutionnalité” (QPC), or “Priority Preliminary Ruling on the Issue of Constitutionality”. 

The constitutional protection of rights and freedoms appeared as part of a preliminary centralised mechanism, which had its own logic (i.e. to protect the executive against the excessive power of the legislature), and the right to review a law after it had been promulgated, which came into existence in 2008, was conceived within this framework, like the proposed reforms that preceded it. The mechanism of the priority preliminary ruling on constitutionality is marked by this in several ways.

First of all, the law in question is still reviewed by a central authority. While any person may, in the course of legal proceedings, assert that a statutory provision is contrary to the Constitution, the issue is not settled by the judge who is dealing with the dispute. It is sent to the Council of State and the Court of Cassation (if the conditions laid down in Article 23-2 of the Order [1] of 7 November 1958, as amended by the Institutional Law of 10 December 2009, have been fulfilled) or put directly to these high courts, and then referred by them to the Constitutional Council (if the conditions for reviewing a law laid down in Articles 23-4 and 23-5 of the Order of 1958, have been met). When a law is reviewed further to a request for a priority preliminary ruling on constitutionality, the examination is a matter for the Constitutional Council, as when a law is reviewed prior to promulgation.

Secondly, the role of the Constitutional Council is virtually the same as when it reviews constitutionality before promulgation. Its examination is separate from the dispute. Provided the conditions for the referral have been met, the question is sent to the Constitutional Council which then settles it, even if the outcome of the dispute could be settled independently of the priority preliminary ruling on constitutionality. In this regard, the priority preliminary ruling on constitutionality mechanism is radically different from the “preliminary question” [in legal proceedings] mechanism. As is the case when the constitutionality of a law is reviewed prior to promulgation, the search for the unconstitutionality is an objective in itself; the fact that it was triggered in the course of a trial between two parties is secondary. The effects of the Constitutional Council’s decision are as serious as when a declaration of unconstitutionality is made prior to promulgation. When a law is found to be unconstitutional prior to promulgation, it does not enter the domestic legal system, i.e. it is not promulgated. When a law is found to be unconstitutional after promulgation, it is removed from the domestic legal system, i.e. it is repealed.

Carried out in exceptional circumstances, the constitutional review of a law is seen, in some ways, as an objective check on the law’s compliance with the Constitution. Other aspects indicate, however, that such a step is an exceptional measure. For example, when a law is reviewed post promulgation, the review does not concern disembodied statutory provisions; it relates to the law as interpreted by the courts (Decision no. 2010-39, Priority Preliminary Ruling on the Issue of Constitutionality (QPC), 6 October 2010) or as applied by the public authorities ([Court of Cassation] 1st Civil Division, 16 November 2010).As the product of the long evolution of the concept of constitutional justice, the French constitutional review mechanism is therefore hybrid. 

First and foremost, reviews that are carried out both before and after the promulgation of a law, must now take account of the rise of [European] Union law, which takes precedence over the constitutional law of the Member States, although it does not challenge the supremacy of those constitutions. European constitutional courts have had to adapt their function, which is now incorporated in a “legal system that forms part of the domestic legal system and [is] distinct from the international legal system” to borrow the wording of the French Constitutional Council (Decision no. 2004-505 DC of 19 November 2004, Treaty establishing a Constitution for Europe). This does not mean that the domestic courts are subject to the international courts; the relationship with the Court of Justice of the European Union is rather based on cooperation, while the European Court of Human Rights is able to act as a check on the activities of the national courts. When it refers a preliminary question [in legal proceedings] to the [European] Court (Decision no. 2013-314P QPC of 4 April 2013, Jérémy F), the Constitutional Council does not submit to its hierarchical authority but rather respects its jurisdiction (which, in this case, derives from Article 267 of the Treaty of the European Union: when an issue relating to the interpretation of the treaties or the validity or the interpretation of the acts of the Union “is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court.”)

The aim of this study is to show the wealth of these many developments which have made the French system of constitutional review so unusual. In 1958, nobody could have foreseen how important these reviews would come to be, when historically they were so far removed from the French idea of the sovereignty of the law. The arguments that could be described as “cultural” have been steadily weakened as a result of the changes initiated by the Constitutional Council itself (such as Decision no. 71-44 DC of 16 July 1971, Liberté d’association (Freedom of Association)), the constituent power (granting of the right to refer laws to the Constitutional Council to members of parliament and the introduction of priority preliminary rulings on issues of constitutionality) and the construction of Europe. Other changes are on the way, whether wished for by the majority (the removal of the category of ex-officio members), the subject of deep division (reviews on the consistency of international commitments with the Constitution), or with only isolated support (the introduction of separate opinions [which would enable members of the Council who are not in agreement with the majority to make known their dissenting or concurring views]). 

Marie-Elodie ANCEL

  • Job: Professeur à l’UPEC, Université Paris-Est Créteil
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Laurent AYNES

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Christine BIQUET

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Pascale BLOCH

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Mircea BOB

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Sami BOSTANJI

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Bruno CAPRILE BIERMANN

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Philippe DELEBECQUE

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José Angelo ESTRELLA FARIA

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Antonio GAMBARO

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Yves GAUDEMET

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Judith GIBSON

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Marie GORE

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Michel GRIMALDI

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Ichiro KITAMURA

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Elena LAUROBA

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Paul LE CANNU

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Yves LEQUETTE

  • Job: Professeur à l’Université Panthéon-Assas, Paris II
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Alain LEVASSEUR

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Philippe MALINVAUD

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Thibault MASSART

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Igor MEDVEDEV

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Fernando MONTOYA

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Ngoc Dien NGUYEN

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Rozen NOGUELLOU

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Soo-Gon PARK

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Hans SCHULTE-NÖLKE

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