Introduction
The Constitutional Council was created by the Constitution of the Fifth Republic on 4 October 1958. It is a recent institution, without any institutional precedent.
The Constitutional Council is not situated at the summit of a hierarchy of judicial or administrative courts. In that sense it is not a Supreme Court.
I. Basic texts
General texts
- Constitution: Title VII, Articles 56 to 63
- Ordinance No. 58-1067 of 7 November 1958 incorporating an institutional act on the Constitutional Council, amended by Ordinance No. 59-223 of 4 February 1959 and by Institutional Act No. 74-1101 of 26 December 1974 (Official Journal of 9 November 1958, 7 February 1959 and 27 December 1974);
- Decree No. 59-1292 of 13 November 1959 on the obligations of members of the Constitutional Council (Official Journal, 15 November 1959);
- Decree No. 59-1293 of 13 November 1959 on the organisation of the General Secretariat of the Constitutional Council;
- Main texts related to the Constitutional Council and its organisation (ordinance of 1958, decrees, institutional act, standing orders...)
French presidential election
- Referendum Act No. 62-1292 of 6 November 1962 on the election of the President of the Republic by direct universal suffrage, amended by Institutional Acts No. 76-528 of 18 June 1976, No. 83-1096 of 20 December 1983, Nos. 88-35 and 88-36 of 13 January 1988, No. 88-226 of 11 March 1988 and No. 90-393 of 10 May 1990 (Official Journal, 7 November 1962, 19 June 1976, 21 December 1983, 15 January 1988, 12 March 1988 and 11 May 1990);
- Decree 2001-213 of 8 march 2011 implementing act 62-1292 of 6 november 1962 relating to the election of the President of the Republic by universal suffrage
Electoral disputes - Incompatibilities
- Regulations governing the procedure to be followed before the Constitutional Council in disputes concerning the election of deputies and senators (Official Journal, 31 May 1959), amended by the decisions of the Constitutional Council of 5 March 1986 (Official Journal, 6 March 1986), 24 November 1987 (Official Journal, 26 November 1987) and 9 July 1991 (Official Journal of 12 July 1991);
- Regulation governing the procedure to be followed before the Constitutional Court in complaints concerning the conduct of referendums (Constitutional Council decision of 5 October 1988; Official Journal, 6 October 1988).
Overseas territory
- Organic law n° 99-209 of 19 march 1999 laying down the status of New Caledonia
- Organic law n° 2004-192 of 27 february 2004 laying down the status autonomous status of french Polynesia
- General code of territorial collectivities : article LO 6213-5 and LO 6313-5
II. Composition and organisation
1. Composition
The Constitutional Council is composed of nine members, one-third of whom are replaced every three years. The members of the Council are appointed by the President of the Republic and by the Presidents of each of the Parliamentary Assemblies (Senate and National Assembly). Former Presidents of the Republic are de jure life members of the Constitutional Council, provided they do not occupy a post incompatible with the mandate of Council member.
The President of the Constitutional Council is appointed by the President of the Republic from among the members.
The members are appointed for a non-renewable nine-year term. However, where a member is appointed to replace another member who is unable to complete his term of office, the term of office of the replacement may be extended for the duration of a complete mandate if, on expiry of the mandate of the member who was replaced, his replacement has not occupied the post for more than three years.
The members take an oath before the President of the Republic.
There are no age or professional qualifications for membership of the Constitutional Council. The office is incompatible with that of member of the government, the parliament, the European Parliament, or the Economic and Social Council. During their term of office, members of the Council cannot be appointed to public posts or be promoted on merit if they are civil servants.
Members of the Constitutional Council can freely relinquish their functions and can be compulsorily retired from office in the event of incompatibility or permanent physical incapacity established by the Constitutional Council.
2. Procedure
The Constitutional Council is a permanent court whose sessions are organised as and when applications are referred to it. It only sits and passes judgment in plenary session. Its deliberations are subject to a quorum rule which requires the actual presence of seven judges.
In electoral disputes the examination of the case is entrusted to one of the three sections composed of three members chosen by lot, each of whom must have been appointed by a different authority.
The procedure is exclusively written inquisitorial and, except where referral is mandatory, both parties are represented. There is no provision for dissenting opinions. Neither the session or plenary sitting discussions nor the votes are published.
3. Organisation
A Secretary General appointed by decree by the President of the Republic heads the administrative services and the judicial service which is composed of administrative staff of the parliamentary assemblies, members of the judiciary or administrative courts and academics.
A documentation and computer service assists in legal search operations. The secretariat also comprises a financial service and a recently created registry. The remainder of the staff are responsible for reception, secretarial, catering and transport services.
The Constitutional Council is financialy autonomous. The President of the Council establishes its budget, the amount of which is included in the Finance Bill under the heading of common expenditure.
III. Powers
The powers of the Constitutional Council, which reflect its specific area of jurisdiction, can be divided into two categories:
1. Judicial authority, covering two types of disputes:
a. Normative and abstract proceedings which are optional in the case of ordinary laws or international agreements and mandatory for institutional acts and the rules of procedure of the parliamentary assemblies. This supervision is exercised after Parliament has voted but before promulgation of the law, ratification or approval of an international agreement or entry into force of the rules of procedure of the assemblies. Optional referral can take place on the initiative either of a political authority (President of the Republic, Prime Minister, President of the National Assembly or of the Senate) or of 60 deputies or 60 senators.
b. Electoral and referendum disputes.
The Constitutional Council decides on the lawfulness of presidential elections and the conduct of referendums of which it announces the results. It also decides on the lawfulness of parliamentary elections and the rules on eligibility and incompatibility of members of parliament.
Referrals on electoral matters to the Council, which are readily available to the electorate, have increased considerably following the enactment of legislation on the organisation and supervision of the funding of electoral expenses on which, in the case of candidates for parliamentary and presidential elections, the Council adjudicates. As of 31 December 1993 the Council had delivered 1,633 decisions on electoral questions as against 516 decisions on legislation.
2. Consultative powers
The Constitutional Council gives its opinion when officially consulted by the Head of State whenever Article 16 of the Constitution is applied and thereafter on decisions taken within that context.
Moreover, the Government consults the Council on texts concerning the organisation of voting in presidential elections and referendums.
IV. Nature and effects of judgments
All decisions are reached by the same formal procedure, comprising approval of the applicable texts and procedural stages, presentation of the reasons in the form of recitals analysing the arguments put forward, setting out the principles applicable to the case and replying to the application. Finally, the operative part, divided into articles, sets out the solution adopted.
1. Types of decision
The various types of decision can be identified by the letters which follow the serial number and precede the date. A distinction is made between:
- decisions on electoral disputes concerning parliamentary elections, which bear the initials of the chambers AN (National Assembly) or S (Senate) and a reference indicating the constituency or département;
- decisions on the apportionment of powers between the legislative and regulatory authorities bear the letters L (legislative review) or FNR (fin de non recevoir - objection to admissibility; ie examination in the course of drawing up the act);
- finally, decisions concerning the constitutionality of rules are classed DC (control of conformity).
2. Legal effects of decisions
The decisions of the Council are binding on the public authorities and all administrative and judicial authorities. No appeal lies against them. The legal force of the decision attaches not only to the judgment itself but also to the necessary reasons in support of it. However, the Constitutional Council does allow appeals on matters of material error.
Decisions on conformity lead to the total or partial censure of the law but not its annulment, since they are handed down before the legal act which is required for implementation (promulgation, ratification).
The effects of decisions concerning electoral disputes range from the voiding of ballot papers to the electoral procedures themselves and can include declaring that a candidate is ineligible and/or dismissing an elected candidate from office.
3. Publication
The decisions of the Constitutional Council are notified to the parties and published, sometimes with the text of the referral from Parliament, in the Official Journal.
An annual compendium of decisions is drawn up under the high authority of the Council about three months after the end of the reference year. It comprises the full text of decisions (not of opinions), an analytical table and, since 1990, an English translation.
Conclusion
1. Results
In the three months from January to March 1994, the Constitutional Council delivered as many decisions on the constitutional verification of rules as in the 25 years from 1958 to 1974!
This enormous increase is chiefly due to the combination of two factors:
- first of all, case law: in 1971, when giving judgment on the law governing associations, the Council incorporated in the rules of reference the text of the preamble to the Constitution and, incidentally, that of the 1946 Constitution and the 1789 Declaration of the Rights of Man and the Citizen. This development in case law establishes the role of the Council as the guarantor of rights and freedoms.
- secondly, constitutional factors: the 1974 revision extended the right of referral, hitherto reserved exclusively to the Presidents of the Assemblies, to a minority of parliamentarians.
2. Projects
Several proposals for reform have been put forward from time to time. These concern:
- the introduction of in concreto review of laws at the instigation of members of the public;
- the use of oral procedure in full jurisdiction procedures;
- the procedures for appointing members.
Bibliography
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