2016 Global Review of Constitutional Law

France
DEVELOPMENTS IN FRENCH CONSTITUTIONAL LAW
Corinne Luquiens, Member of the Conseil constitutionnel; Nefeli Lefkopoulou, Ph.D.
Candidate at Sciences Po Law School; Eirini Tsoumani, Ph.D. Candidate at Sciences
Po Law School; and Guillaume Tusseau, Professor of Public Law at Sciences Po Law
School, Member of the Institut universitaire de France
FRANCE
INTRODUCTION
2016 was an important year for the French
Conseil constitutionnel. From an organic
viewpoint, one third of its members were
renewed. From a substantive viewpoint, the
new bench had to face the consequences of
the continuing application of the state of
emergency that has been in force since November
2015. In the 113 rulings it handed
down, the Conseil made use of all the jurisdictional
techniques it has developed over
the years in order to control the activities
of a Parliament that was, despite a socialist
majority in the National Assembly, highly
divided.
THE CONSTITUTION AND
THE COURT
The drafters of the 1958 Constitution meant
to introduce crucial changes regarding the
way the Constitution was made binding on
public authorities. According to Michel Debré,
“The creation of the Conseil constitutionnel
manifests the will to subordinate the
law, that is to say the will of Parliament, to
the superior rule laid down by the Constitution.
It is neither in the spirit of the parliamentary
system, nor in the French tradition,
to give judges, that is to say to give every
litigant, the right to question the value of the
law. The project has therefore devised a special
institution that can only be set in motion
by four authorities: the President of the Republic,
the Prime Minister and the Presidents
of the Houses of Parliament. To this Conseil
other assignments were given, including the
review of Parliament’s standing orders, and
the litigation related to contested elections,
in order to avoid the scandal of partisan invalidations.
The Constitution thus created a
weapon against the deviation of the parliamentary
system.” 1
The Conseil consists of the former Presidents
of the Republic and nine appointed
members, serving non-renewable terms of
nine years. One-third of them are appointed
every three years. Three, among whom is
the President of the Conseil, are appointed
by the President of the Republic, three by
the President of the National Assembly, and
three by the President of the Senate. The Parliament’s
commissions are allowed to veto
a nomination with a supermajority of threefifths.
In March 2016, three new members
were appointed to the Conseil, among whom
its President, Laurent Fabius, is the former
Minister of Foreign Affairs.
The Conseil’s most significant function in the
French statute-centred (légicentriste) context
is that of reviewing the constitutionality of
legislation. The standard of constitutional review
is not limited to the constitutional text
strictly understood. Since the 70-39 DC and
the (more famous) 71-44 DC rulings, it has
grown into a wider “constitutionality block”
consisting of the Preamble to the Constitution,
the Declaration of the Rights of Man
and of the Citizen (1789), the Preamble to
the Constitution of 1946, the Charter for the
Environment, and several unwritten “fundamental
principles acknowledged in the
1
For a general overview, see O Duhamel and G Tusseau, Droit constitutionnel et institutions politiques
(4th ed Le Seuil 2016)
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