Constitutional Council of France - The Council and The Enactment of Legislation in France

The Council and The Enactment of Legislation in France

This article refers extensively to individual articles in the Constitution of France. The reader should refer to the official translation of the Constitution on the site of the French National Assembly. Another recommended reading is the Constitutional Council overview on the Council web site.

The Government of France consists of an executive branch (President of the Republic, Prime Minister, ministers, and their services and affiliated organizations), a legislative branch (both houses of Parliament), and a judicial branch. The judicial branch is, unlike for instance the federal judiciary of the United States under the Supreme Court, not organized into a single hierarchy (administrative courts fall under the Council of State, civil and criminal courts under the Court of Cassation), and some of its entities also have advisory functions. For historical reasons there has long been a hostility to having anything resembling a "Supreme Court", that is, a powerful court able to quash legislation. Whether the Council is a court is a subject of academic discussion, but some scholars consider it the supreme court of France.

The Constitution of the French Fifth Republic distinguishes two distinct kinds of legislation: statute law, which is normally voted upon by Parliament (except for ordonnances) and government regulations, which are enacted by the Prime Minister and his government as decrees and other regulations (arrêtés). Article 34 of the Constitution exhaustively lists the areas reserved for statute law: these include, for instance, criminal law.

Any regulation issued by the executive in the areas constitutionally reserved for statute law is unconstitutional unless it has been authorized as secondary legislation by a statute. Any citizen with an interest in the case can obtain the cancellation of these regulations by the Council of State, on grounds that the executive has exceeded its authority. Furthermore, the Council of State can quash regulations on grounds that they violate existing statute law, constitutional rights or the "general principles of law".

In addition, new acts can be referred to the Constitutional Council by a petition just prior to being signed into law by the President of the Republic. The most common circumstance for this is that 60 opposition members of the National Assembly, or 60 opposition members of the Senate request such a review.

If the Prime Minister thinks that some clauses of existing statute law instead belong to the domain of regulations, he can also ask the Council to reclassify these clauses as regulations.

Traditionally, France refused to accept the idea that courts could quash legislation enacted by Parliament (though administrative courts could quash regulations produced by the executive). This goes back to the French revolutionary era: pre-revolutionary courts had often used their power not to register laws and thus prevent their application for political purposes, and had blocked reforms. French courts were then prohibited from making rulings of a general nature. Also, it seemed that if courts could quash legislation after it had been enacted and taken into account by citizens, it would introduce legal uncertainties: how could a citizen plan his or her actions according to what is legal or not if laws could a posteriori be found not to hold? Yet, in the late 20th century, courts, especially administrative courts, began applying the consequences of international treaties, including law of the European Union, as superior to national law.

A 2009 reform, effective on 1 March 2010, enables parties to a lawsuit or trial to question the constitutionality of the law that is being applied to them. The procedure, known as question prioritaire de constitutionnalité, is grossly as follows: the question is raised before the trial judge and, if it has merit, it is forwarded to the appropriate supreme court (Council of State if the referral comes from an administrative court, Cour de Cassation for other courts). The supreme court collects such referrals and submits them to the Constitutional Council. If the Constitutional Council rules a law to be unconstitutional, this law is struck down from the law books; this decision is valid for everybody and not only for the cases at hand.