Chapter 5: The Constitutional Council PDF

**Chapter 5 : The Constitutional Council** For a long time, the French legal tradition granted great primacy to the law : legicentrism (law is infaillible) Idea deeply influenced by **J.J Rousseau** and illustrated in Art 6 of the DRMC : "***The law is the expression of the general will***" Obstac...

**Chapter 5 : The Constitutional Council** For a long time, the French legal tradition granted great primacy to the law : legicentrism (law is infaillible) Idea deeply influenced by **J.J Rousseau** and illustrated in Art 6 of the DRMC : "***The law is the expression of the general will***" Obstacle for constitutional review : as the general will can't make mistakes, then the law can't go wrong = **no need to review the statute.** With the C of the 5th Republic, a Constitutional Council is created in 1958. Competent for checking the conformity of the laws with the C before the laws are promulgated. It was the initial setting. **Its role gradually increased : progressively, the CC turned into a constitutional court.** In the reform of 2008, some said that we should change the name of the CC and call it Constitutional Court but it was not adopted. (Another remain of legicentrism) **70s : important events : fondamental decision on July 16 1971 : block of constitutionality created thanks to the Décision Liberté d'association**→ **All the texts referred to in the preamble of 1958 C gained constitutional value.** Introduced a qualitative change : Art 56 of C : mentions equality, liberty but with the 1789 DRMC it adds a lot of liberties. Constitutional reform of 1974 modified Art 61 of the C : extended the number of authorities able to refer a law to the CC. Before : PRR, PM, PR of Senate and PR of NA. Then : 60 members of NA and 60 members of the Senate : in practice it means that the opposition would refer laws to the CC Introduced a quantitative change : this reform allows more interventions of the CC because before this change, the CC want frequently activated. It then became a very important institution. August 23 1985 : law (statute) expresses the general will only when the C is respected. 2008 : reform created a ex post review : QPC **I- The membership of the CC** ***2 categories :*** - **The classic :** appointed members : 9 members ( 3 appointed by the PRR, 3 by the PR of NA, 3 by the PR of SEN) = appointed for 9 years, renewed every 3 years. **Robert Badinter** mentioned in some articles that the members of the CC have the duty to be ungrateful : in order to stand dependent The candidates that want to be members of the CC (the appointments) are subject to the opinions of the committees of the Assembly and the Senate : house and comity present to hear the candidate and passes a vote and the appointment is blocked when there is a negative vote representing 3/5th of the members of the commission. Limit : need to have the approval of 3/5th is a big control. - **Members by right :** Former presidents The formers presidents of the 4th Republic could take part of the CC as a way to be nice = **René Cotty, Vincent Auriol.** 2007-2012 : PR Sarkozy then he sat at the CC. Most of them refused to sit at the CC. A lot of constit reforms insist in the fact that former presidents shouldn't be members. Laurent Fabius is at the head of the CC. Special status for the members : to ensure their independence : - Their term of office is not renewable, 9 years and that's it. (There are exceptions : finish the mandate of someone who died\...) - They can't be removed, they are protected - Rules concerning incompatibility : rules on the activities that they can have outside the CC (can't have another activity on the side but before it wasn't the case : 60-70s the CC was still developing) : they can't be members of the GOV, Parliament, European Parliament, they can't hold any elected office and can't have leadership positions in political parties If one rule is broken, a member is required to resign by a specific procedure. - They must respect secrecy, the confidentiality of the deliberation = can't reveal what was the vote on a case\... - They can't express their political position on issues that may be the subject of a decision by the Council. (there have been controversies in the last few years : participation of certains meetings\...) **II - The missions of the CC** ***A) The consultative powers of the CC*** In certain cases, the CC would be asked to give an opinion : it would be consulted Art 16 (special powers of the PRR in times of crisis) : clear example : The PRR must consult the CC when he decides to use the special powers granted by Art 16. Opinion of the CC is published. The measures taken by the PRR under Art 16 also require a consultation of the CC. Since 2008 : after 30 days of application of Art 16 : the President of NA, Senate, 60 senators or members of the NA an ask the CC to analyse if the conditions of application of Art 16 are still met, / after 60 days the CC can make that analysis by itself. ***B) The CC as an electoral judge*** The CC is competent to act as a judge for specific elections. = in charge of regulating the presidential election : review eligibility go the candidates (check the 500 signatures, establish the official list of candidates, supervise the legality of the electoral operation, examine and rule on the objection made concerning te election, will hear the appeals against the decisions of the National Comity on Campaign Accounts and Political financing) Article 59 : CC rules in case of a contestation on the regularity of the election of deputies and senators Article 60 : CC is competent to check the regularity of the referendum The CC has certain powers in regard concerning the scope of the law in regard with the regulatory power. Ex : Article 41 of the C allows the GOV and the PR of the Chambers to oppose a vill or an amendment which would be outside the scope of the powers of the Parliament. →The GOV and the PR of the Chambers would say that the bill is inadmissible (irrecevable) because its outside the scope the Parliament because it belongs to the regulatory power. If there is a disagreement on whether it is outside the scope of the Parliament, the CC intervenes and gives its decision. If the Parliaments passes an organic law, it will automatically be reviewed by the CC. Same idea for the rule of procedures of the NA and Senate. (Control the Assemblies) **= check if they respect the C** Ordinary laws : control is optional, CC intervenes only when the law is referred by one of the authorities able to refer it to the CC. Who can send a law to the CC : PRR, PM, PR of the Chambers and since 1974 : 60 senators or 60 deputies. A-priori review : Parliament adopts a law and before its promulgated its referred to the CC. = some important laws who might have been contrary to the C have not been reviewed by the CC because it's optional. Ex : Law on the state of emergency after the terrorist attacks **PROBLEM** : Find a mechanism for the law already promulgated 1989 : proposal defeated on organizing a review after 1993 : also defeated 2008 : reform establishes ex post review = QPC It makes possible to refer to the CC a provision of a law already promulgated that is said to violate the rights and freedoms guaranteed by the C **HOW DOES IT WORK** : Must be done within the context with a trial Ex : dispute with a neighbor that wants t apply a law against you, you can claim that this statute is violating the rights and freedoms guaranteed by the c = individuals don't have direct access to CC, you raise the argument to the judge that will raise the question send it to the CC. 2 level filter for the QPC : 1. **The court in front of which the question is raised** : if in front of judicial court it will be referred to the Court of Cassation / if in front of an administrative court then it will be referred to the State Council 2. **Sent to the CC** →Idea behind that system/those filters : prevent the fact that the CC won't have too many questions arriving at the same time : overburdened At the first level, the judge checks that 3 conditions are met : 1\) The law that is challenged must be applicable to the case 2\) The law must not have had been already declared constitutional 3\) The legal question raised must not lack seriousness. At the second level : Court of cassation / State Council Check if the conditions at the first level are met. BUT : The question must be serious or new. Then it will be sent to the CC. ☇Then the CC has 3 months to rule on the matter, the parties will be able to present their augments and the hearing is public. ➣The CC can stay that the statutes challenged are in conformity with the C, then the 1st Court must apply the law. The CC can say that the statute violates the c, then the law will no longer be applied. = Some laws adopted and that were not reviewed though active : it finally became possible to review them with the QPC review that came into force in 2010. **QUANTITATIVE SUCCESS FOR THE QPC** : More than 10 000 claims have been raised The CC gave more than 1000 decisions under that new procedure = 90 per year In 25% of the cases : the CC finds that the law is unconstitutional. **QUALITATIVE SUCCES FOR THE QPC** : Some laws had not been reviewed but now with this procedure some of them have been declared unconstitutional. **OBSERVATION** : →A very large of the decisions taken under Art 61.1 concern very specific areas : Art 61.1 : "If, during proceedings in progress before a court of law, it is claimed that a statutory provision infringes the rights and freedoms guaranteed by the Constitution, the matter may be referred by the Conseil d'État or by the Cour de Cassation to the Constitutional Council, within a determined period." - Tax law - Criminal law - Legal persons (personnel Morales : corporations (have used this procedure to challenge tax laws. - →When the QPC was created was to make a tool for the citizens. In practice, the citizens don't use that much the QPC but the corporations use it more.\ Another inconvenient : At the beginning, there was some reluctance from the Conseil d'État et Cour de Cassation because they were reluctant to send questions to the CC.The Court of Cassation didn't want the CC to increase its position with this new procedure.\ Now the court of Cassation has reduced its resistance.\ **CONTROVERSY : POWER OF THE JUDGE\ **The power of the judge raises the issue of the legitimacy of the constitutional judge = Tension between the **rule of law** and the **idea of democracy**. Who makes sure that the constitutional judges don't go too far ? There is a way to reverse the decision of a constitutional judge = through a constitutional amendment = revision\ **Louis Favoreu**, law professor : "The legitimacy of the constitutional judge lies in the fact that he does not have the final word." = **there is a way for the people to have the final word through a revision of the C.**