The Constitutional Council (in French Conseil Constitutionnel) is an independent institution that reviews the constitutionality of legislation in France.
Missions
The Constitutional Council works on the basis of the extended Constitution, commonly known as the bloc de constitutionnalité.
Indeed, the Constitution is not limited to the sole document of 1958, it is also extended to the other texts mentioned in its preamble:
- the Declaration of Human and Civic Rights (1789)
- the Preamble to the Constitution of 1946
- the Charter for the Environment (2004)
Furthermore, the Constitutional Council may identify implicit principles of constitutional value in case laws. There are different categories of principles, each having its own characteristics and conditions:
- the fundamental principles recognized by the laws of the Republic (principes fondamentaux reconnus par les lois de la République). Those principles are established by the Constitutional Council based on laws that have existed under republican regimes prior to 1946 and that have not been contradicted by subsequent republican legislation. Those principles must enunciate rules that are particularly important, such as rights and freedoms.
- the principles particularly necessary for our time (principes particulièrement nécessaires à notre temps). Those principles are listed in the Preamble to the Constitution of 1946, and mostly cover social rights.
- the principles of constitutional value (principes à valeur constitutionnelle). Those principles are identified by the Constitutional Council and constitute legal norms in their own rights. They must be respected by the State, its organs and the legislator.
- the objectives of constitutional value (objectifs à valeur constitutionelle). Those objectives are identified by the Constitutional Council and are mostly used to balance rights and freedoms of constitutional value with other interests. Indeed, to balance a right of fundamental value, the legislator (or the Council) needs to oppose a principle of equal value. For example, the Council has determined that the preservation of public order is an objective of constitutional value, and as such, it may be used to balance communication rights, protected by the Declaration of Human and Civic Rights.
The different Constitutional reviews
The Constitution tasks the Constitutional Council with reviewing the conformity of legislation to the Constitution. This is done in two different ways.
The first method of constitutional control stems from article 61, which allows the Council to review the conformity of pieces of legislation before they are enacted.
Organic laws, specific bills that may be subject to a referendum, and rules of procedures of the Parliament must be reviewed by the Constitutional Council.
However, it is not mandatory for the Constitutional Council to review Acts of Parliament. Acts of Parliament may be referred to the Constitutional Council before promulgation for control by the President of the Republic, the Prime Minister, the President of the National Assembly, the President of the Senate, or a combination of 60 senators or members of the national assembly.
The second mechanism, most relevant for the Guide, was created in 2008 and came into force in 2010 under article 61-1. Up until this reform, it was not possible to challenge the constitutionality of a legal provision that had come into force, since article 61 only applies to laws before they are enacted.
Article 61-1 allows any person involved in an ongoing legal proceeding to apply for a priority preliminary ruling on the issue of constitutionality (prioritaire de constitutionnalité or QPC). In other words, anyone involved in a proceeding before a court may argue that a piece of legislation infringes on rights and freedoms guaranteed by the Constitution. The court will first examine the admissibility of your application. If it deems that it is admissible, it will send it to the supreme court of its order, which will then operate another screening of your application. If the supreme court believes your application is admissible, it will then send it to the Constitutional Council for review.
However, not all provisions may be challenged this way. The Council may only review certain types of legislation: ordinary laws, organic laws, and statutory instruments enacted by the Parliament. The Council will then determine if the provision that is being challenged is in accordance with the extended Constitution of the French Republic. If it is not, the Council may repeal the provisions in dispute.
Furthermore, and as stated by the Constitution, this process can only challenge legislation if they infringe on rights and freedoms guaranteed by the Constitution. This narrows the scope of legislation that may be challenged.
Only the Council and the institution which adopted the law can annul them. The Council can also choose the date from which the law has lost its force, in order to give the Parliament enough time to fix the unconstitutionality.
example The Council may declare that the law you are complaining about was invalid all along and its application in your case violated your rights and freedoms. Or, it can decide that the law will no longer be in force from the day of the judgement, but it was valid and in force when it was applied to you.
The decisions of the Constitutional Council are binding and they cannot be appealed.