Constitutional Council of France

The Constitutional Council (Conseil Constitutionnel) was established by the Constitution of the Fifth Republic on 4 October 1958. It is the highest constitutional authority in France. Its duty is to ensure that the principles and rules of the constitution are upheld. It considers conformity with the Constitution, and, since 1971, conformity with two texts referred to by the preamble of that constitution: the Declaration of the Rights of the Man and of the Citizen and the preamble of the constitution of the Fourth Republic, which are considered to be general principles of constitutional law.

The Council can only do so when issues are brought before it, it has no power to judge otherwise. Thus statute legislation can only be judged to be unconstitutional if it is brought before the Council before it is signed, after it is passed by Parliament: it is not possible to bring legislation to the Council afterward. However, executive decisions and regulations can be quashed by the administrative courts and the Conseil d'État. Furthermore, courts, especially the Court of Cassation, may refuse to follow decisions that they deem contrary to French Law or to treaties such as the European Convention on Human Rights.

The Council sits in the Palais Royal in Paris, near the Conseil d'État.

Membership in the Council is by appointment, and also is a right open to former presidents of the Republic. Members of the Council are not judges and the Council is not a court.

Membership

The Council is made up of:

• nine members who serve non-renewable terms of nine years, one third of whom are appointed every three years; one member each is appointed by the president of the Republic, the president of the National Assembly, and the president of the Senate;
• former presidents of the Republic who have chosen to sit in the council (which they may not do if they become directly involved in politics).

The president of the Council is selected by the president of the Republic.

As of 2007, the current members are:

• Jean-Louis Debré, president of the Council, named president of the Council by the president of the Republic on February 23, 2007;

• Valéry Giscard d'Estaing, former president of the Republic;
• Olivier Dutheillet de Lamothe, named by the president of the Republic in March 2001;
• Dominique Schnapper, named by the president of the Senate in March 2001;
• Pierre Joxe, named by the president of the National Assembly in February 2001;
• Pierre Steinmetz, named by the president of the Republic in February 2004;
• Jacqueline de Guillenchmidt, named by the president of the Senate in February 2004;
• Jean-Louis Pezant, named by the president of the National Assembly in February 2004.
• Renaud Denoix de Saint Marc, named by the president of the Senate in February 2007;
• Guy Canivet, named by the president of the National Assembly in February 2007;

The members of the Council, except for former presidents of the Republic, are sworn in by the president of the Republic.

The members of the Council should abstain from partisanship. They should refrain from making declarations that could lead them to be suspected of partisanship. The possibility for former presidents to sit in the Council is a topic of moderate controversy; some see it as incompatible with the absence of partisanship.

However it must be noted that Pierre Joxe has been appointed by a socialist president of the National Assembly, while the eight other appointed members have been selected by conservative politicians. It is therefore considered that there is an 9-1 conservative majority at the Council, which would reach 10-1, should Jacques Chirac decide to join.

René Coty, Vincent Auriol and Valéry Giscard d'Estaing are the only former presidents to have sat in the Council.

Both the Council and the Conseil d'État tend to adopt similar approaches to law and constitutional rights.

Powers and tasks

The Council has two main areas of power:

1. The first is the supervision of elections, both presidential and parliamentary and ensuring the legitimacy of referendums (Articles 58, 59 and 60). They issue the official results, they ensure proper conduct and fairness, and they see that spending limits are adhered to. The Council is the supreme authority in these matters. The Council can declare an election to be invalid if it was improperly conducted, or if the elected candidate used illegal methods, or if he spent for his campaign over the legal limits.
2. The second area of Council power is the interpretation of the fundamental meanings of the constitution, procedure, legislation, and treaties. The Council can declare dispositions of laws to be contrary to the Constitution of France or to the principles of constitutional value that it has deduced from the Constitution or from the Declaration of the Rights of Man and of the Citizen. It also may declare laws to be in contravention of treaties which France has signed, such as the European Convention on Human Rights. Their declaring that a law is contrary to constitutional or treaty dispositions renders it invalid. The Council also may impose reservations as to the interpretation of certain provisions in statutes. The decisions of the Council are binding on all authorities.

In some cases, examination of laws by the Council is compulsory. Organic bills, those which fundamentally affect government and treaties, need to be assessed by the Council before they are considered ratified (Article 61-1 and 54). Amendments concerning the rules governing parliamentary procedures need to be considered by the Council, as well. Guidance may be sought from the Council in regard to whether reform should come under statute law (voted by Parliament) or whether issues are considered as règlement (regulation) to be adopted with decree of the prime minister. The re-definition of legislative dispositions as regulatory matters initially constituted a significant share of the (then light) caseload of the Council.

In the case of other statutes, seeking the oversight of the Council is not compulsory. However, the president of the Republic, the president of the Senate, the president of the Assembly, the prime minister, or 60 deputies or senators can submit a statute for examination by the Council before its signing into law by the President. In general, it is the parliamentary opposition which brings laws that it deems to infringe civil rights before the Council.

History and evolution

While since the 19th century the judicial review that the Conseil d'État brings to bear on the acts of the executive branch has played an increasingly large role, France long has been reticent about judicial review of legislative branch actions. The argument was that un-elected judges should not be able to overrule directly the decisions of the democratically-elected legislature. This may also have reflected the poor impression that the political action of the parlements – courts of justice under the ancien régime monarchy – had left: these courts often had chosen to block legislation in order to further the privileges of a small caste. Whatever the reasons, the idea was that legislation was a political tool, and that the responsibility of legislation should be borne by the legislative body.

Originally, the Council was meant to have rather technical responsibilities: ensuring that national elections were fair, arbitrating the division between statute law (from the legislative) and regulation (from the executive), etc. The Council role of safekeeping fundamental rights was probably not originally intended by the drafters of the Constitution of the French Fifth Republic: it was thought that Parliament should be able to see for itself that it did not infringe on such rights.

In 1971, however, the Council ruled unconstitutional (Decision 71-44DC) some provisions of a law changing the rules for the incorporation of private nonprofit associations, because they infringed on freedom of association, one of the principles given in the 1789 Declaration of the Rights of the Man and of the Citizen; they used the fact that the preamble of the French constitution briefly referred to those principles to justify their decision. For the first time, a statute was declared unconstitutional not because it infringed on technical legal principles, but because it was deemed to infringe on personal freedoms.

The Council still has to deal with technical cases of conformity of laws to the French Constitution. Among these:

• The Council increasingly has frowned upon parliamentary amendments voted into the Finance Law (the budget) for motives unrelated to the finances. Since the budget has to be voted quickly, such amendments, known as "budgetary jumpers" (cavaliers budgétaires) may have a chance to pass, because parliamentarians may hesitate, delaying the budget, to remove them. However, they are an abuse of parliamentary procedure.
• In January 2005, Pierre Mazeaud, then president of the Council, announced that the Council would take a stricter view of language of a non-prescriptive character introduced in laws. Previously, this language was considered devoid of juridical effects and thus harmless; but Mazeaud contended that introducing vague language devoid of juridical consequences just dilutes law unnecessarily. He denounced the use of law as an instrument of political communication, expressing vague wishes instead for effective legislation. Mazeaud also said that, because of the constitutional objective that law should be accessible and understandable, law should be precise and clear, and devoid of details or equivocal formulas.

In 1995, Roland Dumas was appointed president of the Council by François Mitterrand. Roland Dumas attracted major controversy twice. First, he appeared in scandals regarding the Elf oil company, with many details regarding his mistress and his expensive tastes in clothing appearing in the press. Then, the Council put forth some highly controversial opinions in a decision related to the International Criminal Court, in Decision 98-408 DC, declaring that the sitting President of the Republic could be tried criminally only by the High Court of Justice, a special court organized by Parliament and originally meant for cases of high treason. This, in essence, ensured that Jacques Chirac would not face criminal charges until he left office. In 1999, because of the Elf scandal, Roland Dumas put himself on leave from the Council and Yves Guéna assumed the interim presidency.

As of 2004, one law out of two, including the budget, was sent to the Council at the request of the opposition. In January 2005, Pierre Mazeaud deplored the inflation of the number of constitutional review requests motivated by political concerns, without much legal argumentation to back them on constitutional grounds.

In 2005, the Council attracted some limited controversy when Valéry Giscard d'Estaing and Simone Veil campaigned for the proposed European Constitution, which was submitted to the French voters in a referendum. Simone Veil had done so after obtaining a "leave" from the Council, which was criticized by some, including Jean-Louis Debré, president of the National Assembly, as a dubious procedure — to follow their reasoning, what is the use of prohibiting appointed members of the council from conducting partisan politics if they can put themselves on leave for the duration of the campaign? She defended herself by pointing out to precedent [1] and famously remarked "How is that his business? He has no lesson to teach me." about Debré [2].

On March 30, 2006, the Council ruled a controversial labor law (Contrat première embauche or CPE) proposed by the Chirac administration to be constitutional. In the week prior to the ruling, France had been subject to massive protests--including a national strike day on March 28, 2006 with over 1 million demonstrators.

Renewal of 2007

The appointment of a new President of the Constitutional Council, Jean-Louis Debré, in February 2007 to replace Pierre Mazeaud was one of the last important decisions to be taken by Jacques Chirac before the end of his presidential mandate. The mandate of the President Debré will extend till 2016. The Council will also oversee the next presidential election in 2007.

In addition to Debré, Renaud Denoix de Saint Marc and Guy Canivet have been appointed to replace Simone Veil and Jean-Claude Colliard. They all should take office on March 5, 2007.

In addition, Jacques Chirac himself could join the Council if he chooses so as early as May 2007.

Further reading

• Frédéric Monera, L'idée de République et la jurisprudence du Conseil constitutionnel - Paris : L.G.D.J., 2004 [3]-[4];

See also

• Justice in France

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