The Constitutional Council was established by the by the Constitution of the Fifth Republic adopted on 4 October 1958.
It is a court vested with various powers, including in particular the review of the constitutionality of legislation. The Constitutional Council is not a supreme court that is hierarchically superior to the Conseil d'État or the Cour de Cassation.
I. Composition and organisation
The Constitutional Council is comprised of nine members who are appointed for nine-year terms. The members are appointed by the President of the Republic and the presidents of each of the Houses of Parliament (Senate and National Assembly). Following the constitutional amendment of 23 July 2008, the appointment procedure involves the issue of an opinion, according to different procedures depending upon the appointing authority, from the Constitutional Law Committee of each House. The appointment of a candidate presented by the appointing authority may be blocked by a three-fifths majority vote.
One third of the Council is replaced every three years. The President of the Republic and the President of each of the appointing Houses each appoint one member to the Council every three years. Members may not be reappointed. However, if an individual is appointed to replace a member who has resigned or is unable to conclude his mandate, upon expiry of that appointment the substitute member may thereafter be appointed for a nine-year term, provided that his term in office as a substitute did not exceed three years.
The members appointed shall take an oath before the President of the Republic.
Former Presidents of the Republic are members of the Constitutional Council as of right.
No prerequisite as to age or profession is required for membership of the Constitutional Council. Such office is however incompatible with membership of the Government or the Economic, Social and Environmental Council and with appointment as a Rights Spokesperson. It is also incompatible with the holding of any elected office. Its members are also subject to the same professional incompatibility requirements as Members of Parliament. A former President of the Republic, who is a member as of right, may not sit at the Council if he holds a position which is incompatible with his status as a member of the Council. Moreover, for the duration of their term in office, the members of the Council may not be appointed to public-sector employment or be granted promotion on the basis of selection if they are public officials.
Any member appointed may resign from office. They may also be removed from office in the event of incompatibility or permanent physical incapacity as ascertained by the Constitutional Council.
The Constitutional Council is a court, the hearings and sessions are determined by the applications it receives.
When it is seized of proceedings concerning the constitutionality of a law prior to enactment, the Council must rule within one month, or eight days in urgent cases.
If it is seized of an application for a priority preliminary ruling on the issue of constitutionality, the Council has three months to deliver its decision. During that period, the parties are granted the opportunity to present their observations and to file responses.
The Council sits and rules in plenary form at all times. Its decisions and opinions are delivered by at least seven members (quorum requirement). In the event of a tie, the President has the casting vote. No dissenting opinions may be issued. Discussions, deliberations and votes are not made public.
The investigation of cases is allocated to a member of the Council who is appointed as the rapporteur by the president, except in electoral disputes. In such disputes, the investigation is allocated to one of the three sections comprised of three members chosen at random, each of whom must have been appointed by a different authority.
Proceedings are conducted in writing and the parties are granted the right to make representations. In cases involving electoral disputes, the parties may request that they be heard and in cases involving an application for a priority preliminary ruling on the issue of constitutionality a public hearing is held.
A secretary general, appointed by decree of the President of the Republic, directs the four services of the Council :
- a legal service comprised of a magistrate from the ordinary courts, a magistrate from the administrative courts, an administrator from the National Assembly and university lecturers. The registry is annexed to the legal service.
- a documentation service responsible for legal research;
- an administrative and financial service responsible for the management of the Council;
- an external relations service responsible for the Council's publications, its relations with all other courts, universities and French institutions and international relations.
The powers of the Constitutional Council, which are set out in the Constitution, are specified and completed by organic laws. The powers vested in it by this legislation may be subdivided into two categories :
1. Judicial powers, including two distinct forms of litigation
a. Normative litigation
- As the court responsible for assessing the constitutionality of legislation, the Constitutional Council exercises both ex ante and ex post reviews.
Ex ante review :
The Constitutional Council is seized on a mandatory basis with basic laws and the regulations of the Houses of Parliament prior to promulgation of the former and prior to the entry into force of the latter. It may also be seized of an international commitment prior to its ratification or approval. For ordinary legislation, the Council may be seized of a law prior to its promulgation. In these last two cases, the Council may be seized in different ways depending upon the act under review, either by a political authority (the President of the Republic, the Prime Minister or the president of the National Assembly or the Senate), or by at least 60 Members of Parliament or 60 Senators.
Since 1999, the Constitutional Council may also examine the constitutionality of dependent territory laws adopted by the Congress of New Caledonia.
Ex post review :
Since 1 March 2010 and following the constitutional amendment of 23 July 2008, the Constitutional Council may consider whether a legislative provision which is already in force violates the rights and freedoms guaranteed under the Constitution, acting on a referral by the Conseil d'État or the Cour de Cassation. In such cases, constitutional review is conducted on the initiative of an applicant, since the question was raised by application filed during proceedings before a court. Such cases involve applications for a priority preliminary ruling on the issue of constitutionality [question prioritaire de constitutionnalité, QPC].
-As the court responsible for delineating jurisdiction between the statutory and the regulatory fields, the Constitutional Council may also be seized on the one hand during discussions before Parliament by the president of the relevant House or by the Prime Minister, or on the other hand ex post by the Prime Minister in order to reclassify a legislative provision, that is to amend by decree a legislative provision the contents of which are regulatory in nature.
- Following the amendment of 23 July 2008, the Constitutional Council may be called upon to verify whether the terms under which bills are tabled comply with the conditions laid down by an organic law (Organic Law no. 2009-403 of 15 April 2009).
- Finally, the Constitutional Council rules on the division of powers between the State and certain overseas territories (to date: French Polynesia, Saint-Barthélemy and Saint-Martin).
b. Electoral disputes and referenda
The Constitutional Council oversees the regularity of the election of the President of the Republic and referenda, the results of which it proclaims. It rules on the regularity of elections of Members of Parliament, and hence their eligibility; it also takes action where a Member of Parliament is in a situation of incompatibility, or is likely to be so.
Easily accessible to voters, applications to the Council relating to elections have increased considerably following the approval of legislation organising and controlling the financing of electoral expenses which the Council oversees for candidates in parliamentary and presidential elections (on appeal). Accordingly, as at 4 October 2012, the Council had issued 2871 rulings in relation to elections and 889 rulings in disputes relating to legislation (of which 650 were conformity rulings)
2. Consultative powers
The Constitutional Council issues an opinion if consulted by the Head of State regarding the implementation of Article 16 of the Constitution, and also in relation to decisions taken within this framework. It assesses whether the conditions for implementation continue to be met either upon request by the president of one of the Houses of Parliament or by 60 Members of Parliament or 60 Senators after 30 days, or automatically after 60 days and at any time thereafter.
Moreover, the Government consults the Council on texts relating to the organisation of counts for elections of the President of the Republic and referenda. The Council also provides observations on past parliamentary and presidential elections as well as on upcoming elections with the goal of recommending to the public authorities all measures capable of improving the conduct of these elections.
III. Nature and effects of decisions
All decisions are structured in the same manner and include:
- an overview of the applicable texts and procedural issues,
- the reasons provided, in the form of recitals analysing the grounds for challenge, specifying the applicable principles and responding to the application,
- a final provision divided into articles stating the solution adopted.
1. Types of decision
he different types of decision may be identified by the letters placed after the case number, which follows the year in which the application was registered. A distinction is drawn in particular between:
- rulings on ex ante constitutional review, which are classed as DC (décision de conformité, conformity decision) or LP for the dependent territory laws of New Caledonia;
- decisions on applications for a priority preliminary ruling on the issue of constitutionality, which are designated as QPC;
- decisions bearing the letter L (déclassement législatif, legislative rereclassification) and FNR (fin de non-recevoir, objection of inadmissibility) on the review of the division of powers between the legislative and regulatory fields;
- decisions designated as LOM concerning the division of powers between the State and the overseas territories;
- decisions associated with electoral disputes for parliamentary elections which are classified as AN (Assemblée Nationale, National Assembly) or SEN (Senate), which also contain references to the constituency or department;
- decisions relating to the incompatibility regime for Members of Parliament (designated as I) and their removal from office following a finding of ineligibility (designated as D).
- decisions relating to the election of the President of the Republic (designated as PDR).
2. Legal effects of decisions
The decisions are binding on public authorities and all administrative and judicial bodies. They are not subject to appeal. The authority of res judicata is not vested solely in the operative part but also in the reasons, which constitute the necessary support for the operative part. In electoral matters, as is the case for applications for a priority preliminary ruling on the issue of constitutionality, the Constitutional Council nevertheless allows appeals in order to rectify material errors.
Conformity decisions (DC) relating to organic or ordinary laws may lead to the censure of all or part of the law, but not its annulment since they are issued prior to promulgation, the legal act which ensures its application.
The provisions of a regulation of one of the Houses of Parliament which are ruled unconstitutional may not be applied.
If the Constitutional Council considers that an international commitment contains a clause which is unconstitutional, authorisation to ratify or approve that international commitment may only be granted after the Constitution has been amended.
If, after being seized of an application for a priority preliminary ruling on the issue of constitutionality, the Constitutional Council rules a provision unconstitutional, that provision is repealed with effect from the date of publication of the decision or from a later date specified in the decision. The Council may, pursuant to Article 62 of the Constitution, specify the terms and limits subject to which the effects which the provision ruled unconstitutional has produced may be called into question.
The effect of decisions in relation to electoral matters can vary, ranging from the annulment of ballot papers to the annulment of the elections themselves, and may entail a declaration that a candidate is ineligible and/or the removal from office of an elected official.
Decisions are served on the parties and published in the Journal officiel of the French Republic (series "Laws and Decrees") along with, for conformity decisions, the text
referred from Parliament (from 1983 onwards) and the observations of the Government (from 1995 onwards).
An annual collection of decisions is published under the patronage of the Council. It includes the full text of decisions (not of opinions), but also in particular an analytical table which has been translated into English since 1990.
Since 1996, the Constitutional Council has also published a quarterly review entitled "les Nouveaux Cahiers du Conseil constitutionnel" (formerly the twice-yearly "Cahiers du Conseil constitutionnel")
Finally, all rulings since the Council was founded are available on the website of the Constitutional Council (www.conseil-constitutionnel.fr), some of which are accompanied by a commentary written by its legal service.
Since 2010, the Constitutional Council has been issuing two to three times as many decisions each year than it did prior to the reform of the application for a priority preliminary ruling on the issue of constitutionality, and even more than prior to the establishment of referrals from Members of Parliament in 1974. The remarkable expansion of constitutional case law is essentially the result of the interaction between two factors:
- case law first, since according to its decision of 16 July 1971 on "Freedom of association", the Constitutional Council acknowledged unambiguously that the Declaration of the Rights of Man and the Citizen of 26 August 1789 and the Preamble to the 1946 Constitution, to which the preamble to the 1958 Constitution refers, form part of the reference rules of constitutional law, and may therefore be invoked during the constitutional review procedure. This major case law advance established the role of the Council as the guarantor or rights and freedoms.
- secondly, institutionality, as at least two constitutional amendments have been enacted which have been decisive for the Council: in 1974, a minority of Members of Parliament (60 Members of Parliament or 60 Senators) were granted the right to challenge an ordinary law - a right which had previously been reserved for the President of the Republic, the Prime Minister and the president of each of the Houses of Parliament; in 2008, the provision for applications for a priority preliminary ruling on the issue of constitutionality enabled any litigant to argue, by application filed before any court, that the law which is to be applied to him is contrary to rights and freedoms guaranteed under the Constitution. The Constitutional Council may now be seized by referral from the Cour de Cassation or the Conseil d'État.
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