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Who may apply to the Constitutional Council ?

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REVIEW OF THE CONSTITUTIONALITY OF LEGISLATION

ELECTIONS – MANDATES – REFERENDA

REVIEW OF THE DIVISION OF POWERS

OTHER POWERS



REVIEW OF THE CONSTITUTIONALITY OF LEGISLATION

Mandatory review

The mandatory review is an ex ante review (Article 61, subparagraph 1 of the Constitution, Article 17 of Ordinance no. 58-1067 of 7 November 1958 on the Constitutional Council).

- Organic laws are referred to the Constitutional Council by the Prime Minister prior to promulgation.

- Regulations of the National Assembly and of the Senate, or amendments thereto, are referred to the Constitutional Council by the president of the relevant assembly prior to application.

- The bills referred to under Article 11 of the Constitution prior to submission for referendum: pursuant to the Constitutional Law of 23 July 2008, amending Article 11 of the Constitution, a referendum may be organised on the initiative of one fifth of the Members of Parliament with the support of one tenth of the voters included in the electoral rolls. It is for the Constitutional Council to examine these proposals, according to procedures to be determined by an organic law (which has not yet been enacted).

Optional review :

Ex ante review :

- Obligations under international law may be submitted to the Constitutional Council prior to ratification or approval by the President of the Republic, the Prime Minister, the President of either House or by sixty Members of the National Assembly or sixty Senators. Powers of referral to Members of the National Assembly and Senators were extended under Constitutional Law no. 92-554 of 25 June 1992 (Article 54 of the Constitution, Article 18 et seq of Ordinance no. 58-1067 of 7 November 1958 on Constitutional Council).

- Ordinary laws may be referred to it by the same authorities prior to promulgation: the President of the Republic, the Prime Minister, President of either House or sixty Members of the National Assembly or sixty Senators. Powers of referral to Members of Parliament were extended under Constitutional Law no. 74-904 of 29 October 1974 (Article 61, subparagraph 2 of the Constitution, Article 18 et seq of Ordinance no. 58-1067 of 7 November 1958 on the Constitutional Council).

- Dependent territory laws for New Caledonia may also be referred to it prior to promulgation or within ten days of a new resolution by the Congress, the High Commissioner, the Government, the President of Congress, the president of a provincial assembly or eighteen Members of Congress (Article 104 of Organic Law no. 99-209 of 19 May 1999 laying down the Statute of New Caledonia, adopted on the basis of Article 77 of the Constitution).

Ex post review

(Article 61-1 of the Constitution inserted by the Constitutional Law of 23 July 2008 and Chapter II a of Ordinance no. 58-1067 of 7 November 1958 on the Constitutional Council):

If it is argued during proceedings in progress before a court – including administrative courts and the ordinary courts – that a legislative provision violates any of the rights and freedoms guaranteed under the Constitution, the Constitutional Council may be seized of this question by reference from the Conseil d'État or the Cour de Cassation. This procedure of an "application for a priority preliminary ruling on the issue of constitutionality" provided for under Organic Law no. 2009-1523 of 10 December 2009 enables any party to proceedings to dispute the constitutionality of any legislative provision in force during the course of court proceedings. Questions may be raised at first instance, on appeal or before the Court of Cassation.

The Constitutional Council may only be called upon to rule on the issue of the compatibility of the law with the rights and freedoms guaranteed under the Constitution if such a question is referred to it by the Conseil d'État or the Cour de Cassation (depending upon whether the application is pursued before the administrative courts or the ordinary courts). Such referrals may only be made if the contested provision is applicable to the dispute during which the question was raised and provided that it has not already been upheld as constitutional by the Constitutional Council. The courts of first instance and the appeal courts must also simply ensure that the question is not lacking in seriousness. As regards the Conseil d'État and the Cour de Cassation, this third precondition requires that they ensure that the question is new or is serious in nature.

ELECTIONS – MANDATES – REFERENDA

Members of the National Assembly and Senators :

Electoral disputes :

(Article 59 of the Constitution and Article 33 et seq of Ordinance no 58-1067 laying down the basic law on the Constitutional Council)

The Constitutional Council may be seized by any individual included in the electoral roll of a constituency in which a Member of Parliament or Senator whose election has been contested was elected, or by the individuals who stood as candidates.

The Council may be seized either directly upon request in writing to its General Secretariat or indirectly through the State representative who shall forward to it the requests addressed to it. The Council must be seized within ten days of the proclamation of the results of the count.

Requests must state the name, first names and capacity of the applicant, the name of the individuals elected in the contested election and the reasons why this election should be annulled. They must be accompanied by documentation in support of the arguments.

Ineligibility :

If a Member of Parliament is found to be ineligible after the proclamation of the results and expiry of the time limit during which the election may be contested, he shall automatically be stripped of his mandate. The Constitutional Council may issue such a ruling upon request by the bureau of the House of Parliament of which he is a member or the Minister of Justice or, if the individual has been convicted after the election, by the public prosecutor from the court which issued the conviction (Articles L.O. 136 and L.O. 296 of the Electoral Code).

The Constitutional Council may also rule a candidate ineligible, either in relation to an electoral dispute (above) or upon request by the National Commission of Campaign Accounts and Political Financing [Commission nationale des comptes de campagne et des financements politiques, CNCCFP]. Should this occur, it may rule that any candidate whose campaign account exceeded the threshold for election expenses or was not filed in accordance with the conditions and the time limit required under Article L. 52-12 of the Electoral Code shall be ineligible for a maximum period of three years.

The same penalty may be imposed on any candidate whose campaign account was duly rejected in cases involving intentional fraud or particularly serious breaches of the rules on the financing of election campaigns.

If the Constitutional Council has ruled that an elected candidate is ineligible, it shall annul his election or, if it has not been disputed, shall remove him from office (Articles L.O. 136-1 and L.O. 296 of the Electoral Code).

If the Member of Parliament has failed to file the declaration(s) relating to his assets in breach of Article L.O. 135-1 of the Electoral Code, the Commission on Financial Transparency in Political Life will contact the office of the relevant House of Parliament. The Constitutional Council, which shall be seized in turn by the former, shall issue a ruling if appropriate that the Member of Parliament shall be ineligible for one year and remove him from office by the same decision (Articles L.O. 136-2 and L.O. 296 of the Electoral Code).

When seized of a challenge in relation to an election, the Constitutional Council may also rule that any candidate who has engaged in fraudulent acts with the objective of or effect of undermining the sincerity of the count shall be ineligible for a maximum period of three years (Articles L.O. 136-3 and L.O. 296 of the Electoral Code).

Incompatibility:

The Constitutional Council may also be seized by a Member of Parliament, the office of the House of which he is a member or again by the Minister of Justice if there is any doubt regarding the compatibility of the functions or activities carried on by this Member of Parliament with his national mandate. If the Constitutional Council issues a ruling of incompatibility, the Member of Parliament must regularise his situation within a time limit of thirty days. Should this not occur, the Council shall remove him from office (Articles L.O. 151-2 and L.O. 297 of the Electoral Code).

If requested by the office of one of the two Houses of Parliament or the Minister of Justice, the Constitutional Council may also remove from office a Member of Parliament who has failed to comply with Articles L.O. 149 or L.O. 150 of the Electoral Code. Article L.O. 149 limits the practice of the barrister's profession to Members of Parliament registered with a bar council and Article L.O. 150 prohibits any Member of Parliament from including or consenting to the inclusion of his name followed by an indication of his status in any advertising relating to a financial, industrial or commercial enterprise. The Constitutional Council may also remove a Member of Parliament from office if he has failed to declare to the bureau of his House of Parliament the list of professional activities or of general interest which he intends to pursue during his mandate or the fact that there are no such activities (Articles L.O. 151-3 and L.O. 297 of the Electoral Code).

President of the Republic :

Election :

(Articles 7 and 58 of the Constitution, Law no. 62-1292 of 6 November 1962 on the election of the President of the Republic by universal suffrage)

- Organisation of the election: the Constitutional Council is consulted principally by the Government when drafting legislation relating to elections. It is also consulted by various independent administrative authorities, including in particular the National Commission of Campaign Accounts and Political Financing.

- Challenges to the list of candidates in a presidential election: the Council may be seized by any person who has been sponsored with any challenges to the establishment of that list which it has endorsed after satisfying itself of the eligibility of candidates and that the candidates' consent has been obtained. Challenges must be received by it before the end of the day following that on which the list of candidates was published in the Journal Officiel. The Conseil shall issue its ruling as soon as possible.

- Hindrance or death of a candidate: the Council may be seized by the President of the Republic, the Prime Minister, the President of either House or by sixty Members of the National Assembly or sixty Senators, or under the conditions applicable to the presentation of a candidate in the presidential election (that is, five hundred elected officials originating from at least thirty departments or overseas territories, provided that no more than ten of these have been elected from the same department or the same overseas territory). The Constitutional Council may, or as the case may be must, order that the election be postponed.

Disputed counts: any voter is entitled to challenge the regularity of a presidential election by including a note of his objection in the official record of voting operations (kept by the president of the voting station). The official records are subsequently forwarded to the Council by the electoral count boards.

The State representative shall report directly to the Constitutional Council within forty-eight hours of the conclusion of the count regarding operations in a polling station in which legal or regulatory conditions and procedures have not been complied with. Moreover, within the same time limit of forty-eight hours, any candidate may report directly to the Council regarding the conduct of electoral operations as a whole. The Constitutional Council shall examine and rule permanently on objections prior to proclaiming the results of the count.

- Appeal against decisions by the National Commission of Campaign Accounts and Political Financing : the said commission may, following a procedure in which all parties are afforded the right to make representations, approve, reject or amend the campaign accounts of candidates and stipulate the amount of the lump-sum reimbursement of campaign expenses within six months of the date on which campaign expenses were filed. Any candidate whose accounts have not been approved may submit a full judicial appeal to the Constitutional Council within one month of notification of the decision.

Incapacity of the President of the Republic :

(Article 7 of the Constitution and Article 31 of Ordinance no. 58-1067 of 7 November 1958 on the Constitutional Council)

The Constitutional Council may be seized by the Government. It may issue a ruling either of temporary incapacity (in which case the President of the Senate will take on the functions of the President of the Republic) or of permanent incapacity (in which case a new election will be held, except in cases involving force majeure as ascertained by the Council).

Referenda

(Article 60 of the Constitution and Chapter VII Ordinance no. 58-1067 of 7 November 1958 on the Constitutional Council)

Organisation of referendum operations : the Council is consulted by the Government. It is informed without delay of any measures adopted in this regard.

Disputes: Any voter is entitled to dispute the regularity of the count by including a note of his objection in the official record of voting operations. The official record is forwarded to the Council by the electoral count board. Moreover, the State representative or, for French nationals resident abroad, the Minister of Foreign Affairs, shall report directly to it within forty-eight hours of the conclusion of the count regarding operations in a polling station in which legal or regulatory conditions and procedures have not been complied with.


REVIEW OF THE DIVISION OF POWERS

Laws and regulations :

- Procedure for reclassification (Article 37, subparagraph 2 of the Constitution and Article 24 et seq of Ordinance no. 58-1067 of 7 November 1958 on the Constitutional Council): the Constitutional Council may be seized by the Prime Minister if the latter wishes to amend by decree a legislative provision enacted within the regulatory domain following the entry into force of the 1958 Constitution.

- Examination of objections of inadmissibility (Article 7 of the Constitution and Article 31 of Ordinance no. 58-1067 of 7 November 1958 on the Constitutional Council): if during the course of the legislative process it appears that a proposition or an amendment does not fall within the domain of the law or runs contrary to a delegation of legislative powers made to the Government, the Government or the President of the House of Parliament concerned may object that it is procedurally inadmissible. The Constitutional Council may only intervene in the event of disagreement between the Government and the President of the House of Parliament concerned; it may thereafter be seized either by the Government or by the President of the House of Parliament concerned.

Status of certain overseas territories :

Similar provisions have been enacted in relation to French Polynesia (Article 12 of Organic Law no. 2004-192 of 27 February 2004 on the self-governing status of French Polynesia), Saint-Barthélemy and Saint-Martin (Articles L.O. 6213-5 and L.O. 6313-5 of the General Local Authorities Code)

If the Constitutional Council has ruled that a law promulgated after the entry into force of Organic Law no. 2004-192 on self-governing status of 27 February 2004 (French Polynesia) or Basic Law no. 2007-223 of 21 February 2007 laying down statutory and institutional provisions relating to overseas territories (Saint-Barthélemy and Saint-Martin) was enacted in relation to matters falling within the jurisdiction of the overseas territory, insofar as the law applies to that territory, it may be amended by the Assembly (French Polynesia) or the Territorial Council (for the other two territories).

The Constitutional Council may be seized in relation to each of these three territories by the Prime Minister, the President of the National Assembly or the President of the Senate.

For French Polynesia, it may also be seized by the President of French Polynesia acting upon a resolution by the council of ministers or by the President of the Assembly of French Polynesia pursuant to a resolution adopted by that assembly.

For the other two territories, it may also be seized by the President of the Territorial Council pursuant to a resolution adopted by the council.

OTHER POWERS

Exceptional powers of the President of the Republic (Article 16 of the Constitution, Article 52 et seq of Ordinance no. 58-1067 of 7 November 1958 on the Constitutional Council):

The Constitutional Council must be consulted by the President of the Republic in relation to the application of Article 16 of the Constitution, and in relation to measures adopted in accordance with that Article.

The Constitutional Council may also be seized by the President of the National Assembly, the President of the Senate, sixty Members of the National Assembly or sixty Senators thirty days after the exercise of exceptional powers in order to examine whether the prerequisites for the application of Article 16 continue to be met. It must carry out this examination automatically sixty days after the exercise of exceptional powers and at any time thereafter.

Review of the compatibility of the tabling of a bill under the terms laid down by an organic law (Article 39, subparagraph 4 of the Constitution, as in force following the enactment of Constitutional Law no. 2008-724 of 23 July 2008 and Article 26-1 of Ordinance no. 58-1067 of 7 November 1958 on the Constitutional Council. The reference organic law is Law no. 2009-403 of 15 April 2009):

Government Bills may not be included on the agenda if the Conference of Presidents of the first House to which the Bill has been referred declares that the rules determined by the organic law for the tabling of bills in either of the Houses of Parliament have not been complied with. In the event of disagreement between the Conference of Presidents and the Government, the Constitutional Council may be seized by the President of the House concerned or by the Prime Minister.