Editor’s Note: Today we publish the 2016 Report on French constitutional law, which appears in the larger 44-country Global Review of Constitutional Law, now available here in a smaller file size for downloading and emailing.
—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, & Guillaume Tusseau, Professor of Public Law at Sciences Po Law School, Member of the Institut universitaire de France
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.
II. 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.”
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 three-fifths. 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 laws of the Republic,” principles, and objectives having constitutional value (eg the fight against tax evasion, the protection of the public order, and the pluralism of ideas, thoughts, and opinions). As a consequence, both civil and political “first generation” rights and social “second generation” rights have been constitutionalised.
The constitutionality of organic acts and of the standing orders of the two Houses of Parliament are mandatorily controlled by the Conseil before they come into force. Other, ordinary statutes may be referred to the Conseil constitutionnel. Until the constitutional amendment of 2008, this facultative ex ante review was the only procedure to assess the validity of a statute. Moreover, only constitutional authorities could require this control. From 1958 to 1974, the President of the Republic, the Prime Minister, the President of the National Assembly, and the President of the Senate were the only authorities who enjoyed this prerogative. In 1974, 60 deputies and 60 senators were also entitled to require constitutional review. Granting this right to the opposition resulted in more numerous saisines, and considerably developed constitutional justice. In these cases, the Conseil has one month, which can be shortened to eight days, to hand down its decision. If the Conseil concludes that the text is constitutional, it can be promulgated and come into force. If it is declared unconstitutional, in totality or in part, it cannot. In the case of a partial invalidity, the provisions that can be severed from the unconstitutional ones can be promulgated. The Conseil controls that Parliament respects its own competence and does not encroach on the organic legislator’s jurisdiction nor grant too much discretionary power to other legal actors, and that the procedure following which the text has been adopted is the correct one. It also controls the content of the text, and mostly that human rights are respected. In the latter case, the Conseil has been adamant that “the Constitution does not confer on the Conseil Constitutionnel a general or particular discretion identical to that of Parliament” (74-54 DC ruling). As a consequence, it mostly quashes a statute when the balance between constitutional concerns results in an irrational or disproportionate curtailment of one of them. This general attitude of self-restraint contributes to alleviate possible accusations of ‘gouvernement des juges’ (government by the judges).
Although commonly said to be satisfactory, this system has remained problematic. Indeed, ordinary judges are allowed, on the request of ordinary litigants, to set aside a statute that does not comply with an international norm, whereas the Conseil constitutionnel, which enjoys a monopoly to quash a statute for its incompatibility with the Constitution, can only do so before it is promulgated and only at the request of a few political actors. Once a statute has escaped this control, its constitutionality can never be questioned. This changed in 2008, when the “priority preliminary ruling on the issue of constitutionality” (question prioritaire de constitutionnalité—QPC) was established. Concretely, “If, during proceedings in progress before a court of law, it is claimed that a legislative provision infringes the rights and freedoms guaranteed by the Constitution, the matter may be referred by the Conseil d’Etat or by the Cour de Cassation to the Conseil constitutionnel” (article 61-1 of the Constitution). The litigant who wants to invoke the unconstitutionality of a statute needs to prove that the statute applies to the suit, that it has never been declared constitutional by the Conseil constitutionnel (or, if that is the case, that the circumstances have changed; see eg 2010-14/22 QPC ruling), and that the question is not devoid of any seriousness. If the judge is satisfied that these cumulative conditions are met, they immediately transfer the file to the relevant Supreme Court, which acts as a second filter for the demand. Once the question has been transferred, the Conseil has three months to decide following a truly adversarial procedure and after a public oral hearing. Consequently, as of 1 January 2017, 603 QPC decisions had been handed down. In this case of ex post review, a declaration of unconstitutionality results in the derogation of the pre-existing norm. The latter is cancelled for the future, and the Conseil is allowed to postpone the effects of the derogation it pronounces.
III. Constitutional Controversies
Two main constitutional controversies emerge from the case law of year 2016.
The first is related to the four rulings (five including a first one at the very end of 2015) issued in connection with the state of emergency. These decisions are evidently important because of the pressure this situation places on French society, the state, and constitutionalism. The state of emergency is a measure of exception that can be decided by the Council of Ministers, in application of an Act of 3rd of April 1955, in situations involving imminent danger resulting from serious breaches of public order or in circumstances which, due to their nature and seriousness, have the character of public disaster. Its initial implementation is limited to 12 days. It can be extended only by a statute. It enables the Minister of the Interior and its local representatives (préfets) to limit or prohibit circulation in some places, forbid public meetings or close public places, authorize administrative searches and seizures, ban someone from entering specified areas, or detain someone under house arrest. After the terrorist attacks of the 13th of November 2015, a meeting of the Council of Ministers the same night decided that the state of emergency should immediately be applied. Since then, it has been extended five times and should remain in force until the 15th of July, 2017.
Obviously, as it antedates the current Constitution, the 1955 Act could not be referred to the Conseil constitutionnel. Due to the broad political consensus between the majority and the opposition on the necessity to implement and extend without delay the full effects of the state of emergency, none of the acts extending it adopted since November 2015 were referred to the Conseil. As a consequence, it is through applications for priority preliminary ruling on the issue of constitutionality, raised by persons subject to trial pursuant to article 61-1 of the Constitution, that the Conseil was asked to rule on those matters.
The Conseil tried to strike a fair balance between the protection of public order, obviously threatened by terrorism, and the guarantees of individual freedoms, which can be infringed by some of the measures enforced under the state of emergency. Each of the decisions is adamant that “the Constitution does not exclude the possibility that the legislator may establish a regime to govern the state of emergency […] in this context, it belongs to it to ensure that a balance is struck between, on the one hand, the prevention of public order offences and, on the other hand, the respect for the rights and freedoms granted to all persons resident in the Republic.” Several fundamental rights were alleged to be imperilled by the state of emergency.
The 2015-527 QPC ruling related to house arrest. As far as the maximum period of time during which an individual placed in such a position is required to remain at home is set at 12 hours per day, the Conseil considered that this measure, which can only be decided against someone if there are serious grounds to think that her behaviour may represent a threat for public security and order, should be regarded as a restriction of freedom but not as a deprivation of freedom which, according to article 66 of the Constitution, should be under the supervision of the Judicial Authority. However, the Conseil insisted that the order placing a person under house arrest, its duration, the conditions governing its application, and the supplementary obligations with which it may be associated should be under the monitoring of the administrative courts, charged with ensuring that such a measure is suitable, necessary and proportionate to the goal pursued. Finally, home arrest should cease when the state of emergency ends, and in case the legislator decides its extension, such measures could not be prolonged without being renewed. Under these reservations, the house arrest was considered constitutional. The 2016-535 QPC ruling addresses the policing of meetings and public places. The Conseil also insisted that such measures, placed under the monitoring of the administrative courts, should be suitable, necessary, and proportionate with the grounds that gave cause for them. It also stated that their duration should not be excessive, having regard to the imminent danger that led to the declaration of a state of emergency. In the 2016-536 QPC ruling, the Conseil allowed administrative searches, even at night and in a private residence, as far as they were justified on the ground of emergency or if it appeared impossible to carry them out during daytime. It admitted that the administrative authority could access all computer data. But copying them was considered unconstitutional. This measure was equivalent to a seizure, and data having no link with the person whose conduct constituted a threat may also be copied. In this respect, the legislator had not achieved a reasonable balance between the safeguard of public order and the right to privacy. The legislator amended the law accordingly. But the new version was referred to the Conseil, which again censored some of its provisions regarding delay of conservation of some data (2016-600 QPC ruling). The last decision to be mentioned was also related to administrative searches conducted immediately after the terrorist attacks of November 2015, before the first act prolonging the state of emergency had created new guarantees to protect rights and freedoms. The Conseil decided that since administrative searches were submitted to no condition and no guarantee was granted, the balance between the safeguard of public order and the right to protect private life was not respected. Although it decided to derogate immediately the questioned norm, the Conseil decided that, in order to protect the public order, this would have no effect on the validity of the penal procedures that had begun before its decisions (2016-567/568 QPC ruling).
The second important controversy that deserves attention in 2016 is related to Decision 2016-741 DC of 8 December 2016, which deals with the statute relating to transparency, the fight against corruption and the modernisation of economic life. This long ruling dealt with a statute that addressed a wide array of topics. The Conseil has been seized by four of the six authorities that are allowed to activate ex ante review: The President of the Senate, 60 senators, 60 deputies, and the Prime minister. The latter’s referral only targeted article 23 of the statute, which extended the jurisdiction of the Tribunal of Paris regarding financial delinquency. This provision did not appear in the initial governmental bill. It was introduced during the debate by a member of the Legislation Committee. It raised several practical difficulties, especially as this tribunal could hardly face such a huge workload immediately. This is why the Conseil quashed it. From the viewpoint of judicial politics, it is remarkable how the Prime Minister was able to obtain before the Conseil what he could or would not oppose during the process of adoption of the statute.
The validity of several provisions was tested against the objective of constitutional value or legislative accessibility and intelligibility (eg par. 3ff, 11ff, 32ff, and 109ff). It was created by the Conseil in 1999 (99-421 DC ruling) in order to improve the quality of legislative drafting, which has been a major problem for more than 25 years. Accordingly, the Conseil proprio motu quashed a provision that would have implied a practical contradiction (par. 146). The Conseil similarly imposed the principle according to which a statute needs to lay down rules and to be normative, and not merely declaratory, aspirational or hortatory (2005-512 DC ruling). While this last principle had not been much used, the Conseil decided to revive it by considering that “The provisions of Article 134 of the contested law, which are limited to conferring on the ordinary general assembly of a limited company the power to entrust a manager with oversight of technological advancements, are devoid of any normative scope. Therefore, this Article should be declared unconstitutional” (par. 99).
Ensuring that no abuses were committed during the parliamentary procedure, the Conseil quashed several provisions for having been irregularly introduced into the statute, especially because they resulted from amendments that had no connection, even indirect, with the original content of the bill, and consequently qualified as “riders” (eg par. 50, 82, 107, 120, and 122 to 135). The validity of a provision regarding the creation of a digital repository to ensure information for citizens on the relations between Interest Representatives and public powers, shared by the parliamentary assemblies, governmental and administrative authorities, and territorial collectivities was questioned because it might infringe on the principle of separation of powers. The Conseil rejected this argument, but only after clarifying the way the said provisions needed to be interpreted in order to preserve the autonomy of the two houses of Parliament (par. 25, 28, and 29).
The respect of several substantive constitutional principles was also guaranteed by the Conseil within the framework of its traditional “proportionality control.” Regarding penalties imposed on firms for violating payment rules, the Conseil reiterated that “Article 61 of the Constitution does not grant the Constitutional Council general powers of assessment and judgement of the same nature of those belonging to the Parliament, but only grants it the competence to decide on the constitutionality of the contested laws under its consideration. If it is necessary to inflict penalties related to an infraction under the legislature’s power of assessment, it falls on the Constitutional Council to ensure that there is no manifest disproportionality between the infraction and the penalties incurred” (par. 88). In general, no manifest disproportion was found because of the general interest the legislator had in view and the appropriateness of the means it resorted to (eg par. 60). According to this kind of self-restrained reasoning, the Conseil controlled the respect of freedom of enterprise by underlying that “The legislator is free to subject the freedom of enterprise, as resulting from Article 4 of the 1789 Declaration, to limitations associated with constitutional requirements or which are justified by the public interest, provided that this does not result in harm that is disproportionate to the objective pursued” (par. 41). Nevertheless, “the obligation of certain companies to make public the economic and tax indicators corresponding to their activity country by country, allows all of the operators in the market or exercising these activities, particularly their competitors, to identify essential elements of their industrial and commercial strategies. Such an obligation infringes on the freedom of enterprise in a manifestly disproportionate way in terms of the objective sought” (par. 103). Regarding this provision, the Conseil moreover decided to make use of a technique it had devised at the time when it was not able to review the constitutionality of statutes after they were promulgated (85-187 DC ruling). In the present case, it repeats that: “The constitutionality of a law already enacted may be examined upon reviewing the legislative provisions that modify it, complete it or affect its scope.” As the cancelled provisions are similar to older ones resulting from an Act of 2013, the latter are simultaneously declared unconstitutional (par. 104; see similarly par. 140).
No manifest or irrational disproportion was perceived when the Conseil ensured that the principle of equality was respected: “The principle of equality does not prevent the legislature from regulating different situations in different ways, nor from departing from equality in the public interest, provided that in both cases the resulting difference in treatment is directly related to the subject matter of the law providing for the different treatment” (par. 38; see also par. 3ff, 93 ff.). Neither was it regarding freedom of contract and the stability of contracts (par. 54 and 60), nor regarding the right of property (par. 52ff). Various provisions related to the creation of penal offenses were criticised for being too imprecise, or for violating the principle of the legality of offenses and penalties. Although several among them were immune from this defect (see eg par. 9, 15, and 91), some were declared unconstitutional: “By issuing offences regarding the infringement upon obligations, the content of which has not been defined by the law but by the office of each parliamentary assembly, the legislature infringed upon the principle of the legality of offences and penalties” (par. 36). This consequently led the Conseil to quash other provisions that were intrinsically connected to the quashed one. Similarly, the Conseil cancelled a provision that did not define precisely enough the offense of false accusations (par. 139).
As a representative example of “catch all” contemporary legislation under the Fifth Republic, this statute led the Conseil constitutionnel to make use of most of the procedural tools it has developed since 1958 to ensure the primacy of the Grundnorm, both as far as legislative procedure, the quality of legislation, separation of powers, and fundamental rights are concerned.
IV. Major Cases
Other relevant rulings of year 2016 are the following four:
Rights and Freedoms
- Criminal Prosecution of Negationism Does Not Violate the Constitution
In Decision 2015-512 QPC, the plaintiff argued that the contested provisions infringed on the principle of equality before the criminal law, since the negation of crimes against humanity other than those mentioned in Article 6 of the Statute of the International Military Tribunal annexed to the London Agreement of 8 August 1945 was not punishable, as well as on the freedoms of expression and opinion. The Conseil consolidated the incrimination of negationism by declaring the Article 24bis of the Act of 29 July 1881 to be in conformity with the Constitution. It equally held that by prohibiting denying crimes against humanity perpetrated by the Nazi regime, the freedom of expression is not violated.
- Taxi-drivers’ Freedom of Enterprise
In Decision 2015-516 QPC, the objection alleging a violation of freedom of enterprise was brought to the attention of the Conseil constitutionnel once again after the Decision no. 2015-468/469/472 QPC. In the latter, the challenged provisions of the Transport Code were found to be in conformity with the Constitution. On the contrary, this time the contested second part of Article L.3121-10 of the Transport Code was found to be in violation of the Constitution. The limitations to the freedom of enterprise determined by the legislator were justified neither by the objective pursued nor by any other general interest. By providing that the exercise of the activity of taxi driver is incompatible with the exercise of the activity of the driver of a chauffeur-driven vehicle, the legislator intended to fight against the fraud in the sector of the transport of patients and ensure the full exploitation of parking authorizations on the public highway. However, the Council pointed out that the activity of taxi driver should not be regarded as incompatible with that of the driver of a chauffeur-driven vehicle since the two activities are carried out by means of vehicles comprising distinctive signs and only light sanitary vehicles may be accredited by compulsory health insurance schemes to ensure the transport service for patients.
- Ne Bis in Idem (I-II-III)
A series of three decisions 2016-545 QPC, 2016-546 QPC, and 2016-556 QPC, form part of the long-running constitutional law saga of the ne bis in idem principle. The Constitutional Council compared administrative sanctions to penal ones in order to verify whether provisions applicable to the same persons and facts, but divergent in the quantum of the penalties, were constitutional. By applying the criteria set out in its 2014-453/454 QPC and 2015-462 QPC rulings, and referring to the constitutional objective of fighting tax evasion, the judge reached the conclusion that the contested cumulating is constitutional. The Conseil held that the sanctions provided by the contested provision are both adequate in light of the offenses they punish and proportionate. The judge proceeded only to a reservation of interpretation specifying that a criminal penalty for tax evasion cannot be applied to a taxpayer who has not been definitively been found liable for tax. Regarding the combined application of the contested provisions of articles 1729 and 1741 of the General Taxation Code, the Conseil declared the application to be in conformity with the Constitution and formulated two interpretative reservations. First, the principle of the necessity of offenses and penalties requires that penal sanctions apply only to the most serious cases of fraudulent concealment. The Council specified that the gravity of the offense might be determined by the amount of the fraud or the nature and the circumstances of the taxpayer’s actions. Second, the Constitutional Council stated that the proportionality principle implies that the overall amount of the cumulative penalties may not, under any circumstances, exceed the maximum tariff for any of the penalties imposed.
- Freedom of the Press
In Decision 2016-738 DC, the Conseil cancelled Article 4 of the contested law, which modified the current regime for the protection of the secret of journalists’ sources, allowing such secrecy to be breached in case an overriding reason of public interest justifies it. According to the Conseil, the legislator had not ensured a balanced conciliation between freedom of expression and communication and several other constitutional requirements, in particular the right to private life, the secrecy of correspondence, the safeguarding of the fundamental interests of the nation, and the search for perpetrators. The Conseil emphasized that the secret of journalists’ sources may be limited only if two cumulative conditions are met: the infringement must be justified by an overriding public interest and the measures in question must be strictly necessary and proportionate to the aim pursued by the legislature.
 For a general overview, see O Duhamel and G Tusseau, Droit constitutionnel et institutions politiques (4thed Le Seuil 2016)
 G Drago, Contentieux constitutionnel français (4th edn Presses universitaires de France 2016); D Rousseau, P-Y Gahdoun, and J Bonnet, Droit du contentieux constitutionnel (11th edn LGDJ 2016).
 Conseil d’Etat, Rapport public, De la sécurité juridique (1991); Rapport public, Sécurité juridique et complexité du droit (2006); Etude annuelle, Simplification et qualité du droit (2016)