The following is a guest post from Nicolas Boring, the foreign law specialist covering French-speaking jurisdictions at the Law Library of Congress. Nicolas has previously blogged about Telework and the French “Right to Disconnect”, Report on Right of Huguenots to French Citizenship, “Bastille Day” Is About More Than the Bastille, and others.
The U.S. Supreme Court is often in the news, and this seems even more true in the days since the recent passing of Justice Ruth Bader Ginsburg. Most people would agree that the Supreme Court is one of the most important government institutions of the United States, due to its power of judicial review rooted in the famous Marbury v. Madison case.
As a foreign law specialist for the Law Library of Congress, specializing in French law (though I cover other French-speaking countries as well), I find it interesting to compare U.S. laws and institutions with their counterparts in France. In this blog post, I will describe some aspects of judicial review in France, as well as the institution that is responsible for reviewing the constitutionality of French legislation, the Conseil Constitutionnel (Constitutional Council).
1. A Brief History of Judicial Review in France
For a long time, there simply was no judicial review of legislation in France. France, like many other countries of the Romano-Germanic legal tradition, adhered to a principle of parliamentary supremacy; the parliament, being the representation of the people’s will, could not be challenged. The Conseil d’Etat (Council of State), France’s highest jurisdiction in matters of administrative law, confirmed this principle in a 1936 decision in which it refused to even consider whether a piece of legislation was contrary to constitutional law. In fact, the Third Republic, which lasted from 1870 to 1940, did not have a supreme constitution by which other legislation could potentially be struck down. Rather, the three constitutional laws of 1875, which organized the government and political institutions, were themselves ordinary laws that could be amended or repealed by an ordinary piece of legislation. That is actually how the Third Republic ended: shortly after France’s defeat by Germany at the beginning of World War II, the French Parliament voted on the Constitutional Law of 10 July 1940, which gave full powers to Marshall Philippe Pétain and marked the beginning of the infamous Vichy Regime.
Only in the post-war years was the idea of subjecting legislation to some sort of constitutional review given some practical expression. The 1946 Constitution, which established the Fourth Republic, established a Constitutional Committee, which had the authority to declare a bill contrary to the Constitution. Its powers were extremely limited, though, as it could only invalidate a bill before it was signed into law. Perhaps more importantly, the Constitutional Committee could only intervene if it was appealed to by both the French president and a majority of the Council of the Republic (which was the name of the Senate under the Fourth Republic, although with very reduced powers compared to what it had under the Third and what it would have under the Fifth Republic). In practice, the Constitutional Committee was only convened a handful of times between 1946 and the end of the Fourth Republic in 1958.
The 1958 Constitution, which instituted the Fifth Republic and is France’s current constitution, established an institution that was similar to the Constitutional Committee, the Constitutional Council. The Constitutional Council was more powerful than its predecessor in the early years of the Fifth Republic, but not dramatically so. Under the original version of the 1958 Constitution, the Constitutional Council could review legislation under only two circumstances. First, the Constitutional Council automatically reviews bills for lois organiques before they can be signed into law. These are laws that have to do with the organization and functioning of government. They complement the Constitution and are situated between the Constitution and ordinary laws in the French hierarchy of norms. Secondly, the Constitutional Council can review bills for ordinary laws before they are signed into law, but only if it is asked to do so by either the President of the Republic, the Prime Minister, the President of the National Assembly, or the President of the Senate. This was expanded a bit in 1974 so that, in addition to the four officials listed previously, the Constitutional Council may also be asked to review a bill by a group of 60 members of the National Assembly or 60 senators. In neither case the Constitutional Council could strike down a law after it had been signed and promulgated. That is, until the constitutional reform of July 23, 2008, which introduced the “priority question of constitutionality” (question prioritaire de constitutionalité, often referred to under the acronym QPC).
It is worth noting, as a parenthesis, that French courts had cracked open – if only a little bit – the door of judicial review well before the 2008 constitutional reform. In a famous 1975 decision, the Cour de cassation, which is France’s highest jurisdiction in matters of civil and criminal law, ruled that it had the authority to overturn legislation based on article 55 of the Constitution, which states that international treaties have a higher authority than French laws. The Conseil d’Etat adopted a similar approach in a 1989 decision, although it limited its authority to overturning legislation that was adopted prior to the international treaty, and not after (the Cour de cassation found that it could overturn laws adopted both before and after a treaty). These decisions remain very important, especially because they allow French courts to strike legislation that is contrary to international and European agreements, such as the European Convention on Human Rights. With regard to constitutional review, however, these decisions are quite limited; neither the Cour de cassation, nor the Conseil d’Etat have the authority to invalidate a law on constitutional grounds other than through the aforementioned article 55.
2. The Question Prioritaire de Constitutionalité (QPC)
The QPC is a procedure by which a party to a lawsuit may challenge a law for violating a right or freedom guaranteed by the Constitution. The way it works is that, when a party argues that a law violates his/her constitutionally guaranteed rights or freedom, the court must immediately decide whether the question should be admitted. The criteria for a QPC to be admitted are that the challenged legislative provision must apply to the litigation, it must not have already been declared as constitutionally valid by the Constitutional Council, and the question must be novel but not frivolous. If the court admits the question, it then sends it to the supreme jurisdiction of its order. Administrative courts would therefore send a QPC to the Conseil d’Etat, and civil and criminal courts would send it to the Cour de cassation. If the supreme jurisdiction agrees that the QPC is admissible, it then sends it to the Constitutional Council. The Constitutional Council must render its decision within 3 months. During that time, the parties are invited to submit written arguments, and then to participate in oral arguments. If the Constitutional Council finds that the challenged provision is constitutional, the court where the question originated must proceed with its case and apply the legislation. If the Constitutional Council finds that the provision is unconstitutional, then it is struck and becomes inapplicable. However, the Constitutional Council may, if it deems it appropriate, delay the abrogation of the challenged provision to a later date, so as to give Parliament the opportunity to rectify the constitutional defect. For example, in a decision of October 2, 2020, the Constitutional Council found that article 144-1 of the Code of Criminal Procedure, which has to do with pretrial detention of suspects during investigations, was contrary to the Constitution. But striking this provision down immediately would create a legal void that would have problematic consequences, including possibly delaying the release of individuals whose detention was no longer necessary. The Council therefore ruled that article 144-1 would be abrogated on March 1, 2021, giving the legislature time to rectify the situation.
The QPC procedure was a significant innovation in French law, and its introduction greatly broadened the role of the Constitutional Council. As some commentators have observed, the introduction of the QPC procedure also increased the roles of the Conseil d’Etat and the Cour de cassation, which act as gate-keepers for questions of constitutionality.
3. The Composition of the Constitutional Council
The make-up of the Constitutional Council, and the manner in which its members are appointed, are significantly different from the U.S. Supreme Court. The Constitutional Council’s composition is governed by article 56 of the French Constitution, which sets the minimum number of judges to nine. Contrary to the justices of the U.S. Supreme Court, members of the Constitutional Council are not appointed for life (with an exception discussed below). They are appointed for terms of nine years, and to help ensure their independence, their terms are not renewable (except if they were initially nominated to replace a member who died before the end of his/her term, in which case the replacement may finish the decedent member’s term and then have a full term of his/her own).
The appointment of Council members is staggered, so that one third of the Council is replaced every three years. Three of the nine members are nominated by the President of the Republic, three are nominated by the President of the National Assembly, and the other three by the President of the Senate. In the past, these three officials could simply appoint their choices to the Council, but the 2008 constitutional reform, which introduced the QPC procedure, also gave the French Parliament the power to veto an appointment. Indeed, each nominee must now be reviewed and voted on by a permanent commission in the National Assembly and Senate. If the total number of votes against the nominee add up to three-fifths of the votes of both commissions combined, then the nominee must be withdrawn.
There is one exception to these rules on appointments and term limits; former presidents of the Republic have the right to sit on the Constitutional Council for life. That is why there are currently ten members on the Constitutional Council, one of them being Valérie Giscard d’Estaing, who was president of France from 1974 to 1981. He is currently the only former president sitting on the Constitutional Council. Nicolas Sarkozy, who was president from 2007 to 2012, only sat on the Council for about a year after the end of his presidential term, before resigning in 2013. François Hollande, who was president from 2012 to 2017, renounced his right to sit on the Council after the end of his presidential term.
Several possible reasons help explain this exception. Anecdotally, it may have been a way for General de Gaulle, who was the 1958 Constitution’s leading architect, to thank President René Coty, the last president of the Fourth Republic. Indeed, René Coty was the one who convinced Parliament to allow de Gaulle to return to power and design a new constitution. On a more general level, allowing former presidents to sit on the Constitutional Council may have also been a way to supplement their retirement income, thus ensuring that they had a comfortable life after leaving office. Finally, it may also have been another expression of the French president’s role as guarantor of the Constitution, as stated in article 5 of the Constitution. A seat on the Constitutional Council was seen as barely more than an honorific at the beginning of the Fifth Republic, so giving former presidents an automatic right to sit was not particularly controversial at first. As the institution has gained in power and prominence over the years, however, this rule has become increasingly criticized. In fact, a bill was submitted to the French Parliament in 2019 that, among other things, proposes to amend the Constitution to do away with this rule.