—Corinne Luquiens, Member of the Constitutional Council; Nefeli Lefkopoulou, PhD Candidate at Sciences Po Law School; Eirini Tsoumani, PhD Candidate at Sciences Po Law School; Guillaume Tusseau, Professor of Public Law at Sciences Po Law School
I. Introduction
As in many other countries, the pandemic dominated French constitutional politics in 2020. Three major events may nevertheless seem to be rather independent from it. The first is the adoption of a reform of the pensions system by the National Assembly. For the first time under President Macron, Prime Minister Edouard Philippe decided to overcome parliamentary filibustering by resorting to Article 49, Section 3 of the Constitution. This provision allows him, after deliberation by the Council of Ministers, to make the passing of a Bill an issue of confidence before the National Assembly. In that event, the Bill shall be considered passed unless a motion of no-confidence is adopted. Two motions of no-confidence were tabled by the left and the right oppositions, but both were rejected in March, leading to the adoption of a most controversial reform. The second event is related to the Citizens’ Climate Convention. 150 citizens were selected by lot to make proposals in order to identify measures to reduce greenhouse gas emissions that would be consistent with social justice. President Macron promised to follow all the recommendations resulting from this unique participative process and to translate them into law. One of the 149 recommendations calls for a constitutional amendment that would introduce climate defence and environmental preservation in Article 1 of the Constitution. President Macron declared his intention to have this amendment put to a referendum after its adoption by the two houses of Parliament. However, a constitutional amendment is not so easy, as the third and last element proves. Because the conditions for it could not be met in order to convert the Economic, Social, and Environmental Council (ESEC) into a Council of Citizen Participation, most of the reform had to be achieved through an amendment of the ESEC’s organic act, which is easier to pass. Yet, most of what took place in 2020 was influenced by the Covid crisis and the debates it prompted regarding the Executive’s action. Of the local elections that had to take place in March, only the first round could be organised, the second being postponed until June. The turnout was quite low, and led to results that confirmed the difficulties of the President’s party, while ecologist forces gained ground. The ensuing partial renewal of the Senate, which represents territorial communities, confirmed the hold the right had on the majority. On July 3rd, the Prime Minister tendered his resignation, and Jean Castex was appointed President Macron’s next Prime Minister.
II. Major Constitutional Developments
The Constitutional Council’s activity was impacted by the pandemic and the public health state of emergency regime (or regimes) that was (or were) created to deal with it. So was its membership, as former President and ex officio member of the Constitutional Council Valéry Giscard d’Estaing died from Covid at 94. Prime Minister Philippe imposed lockdown by decree on March 16th.[1] Within one week, Parliament adopted an act providing for a new regime of public health state of emergency,[2] which was established for two months. Whereas this initial act was not referred to the Constitutional Council, the act proroguing the public health state of emergency for two additional months until July 10th was. In Decision 2020-800 DC, the Council assessed the validity of the limitations to basic liberties that may be imposed once this regime has been enabled in the Council of Ministers. After admitting that the legislator was competent to establish such a regime, it mainly relied on public health protection, understood as an objective of constitutional value, in order to assess the proportionality of the limitations to fundamental rights such as freedom of movement, the right to privacy, free enterprise, freedom of expression, the right to family life, and the right to a fair trial. The Constitutional Council considered that the Prime Minister could be empowered, “in the case of a public health catastrophe that puts the population’s health in danger due to its serious nature,” to limit or prohibit the movement of vehicles, close places open to the public and meeting places, decide the requisition of persons, goods and services, impose quarantine and isolation measures, authorise the collecting and processing of personal medical data. According to the Council, the vast majority of these measures were framed by the legislator in such a way and with such guarantees that they were adapted to their objective, as well as limited to what was necessary. In ruling 2020-846/847/848 QPC, the Council moreover upheld the validity of the penal sanctions attached to the violation of the rules limiting freedom of movement. Nevertheless, in its March ruling, when individual liberty was at stake, it made it clear that the intervention of a judge might be required. Regarding what is known abroad as habeas data, the Council struck down provisions regarding the collection, recording, retention, consultation and disclosure of personal information insofar as they allowed sharing them with actors not directly involved in combatting the spreading of the epidemic. It also quashed a provision allowing quarantine and isolation pursuant to the legislation that was in force before the adoption of the examined act and that did not impose sufficient guarantees to protect personal liberty. With respect to the separation of powers, it also denied the legislator the right to impose on the Prime Minister to follow the advice of an independent administrative agency, as well as to impose on the administration to refer “without delay” to the National Assembly and the Senate a “copy of all the acts” they adopt during a crisis.
In July, after the expiration of the state of emergency properly so called, Parliament adopted an act “organising the exit from the public health state of emergency.” Because it maintained a kind of law of exception by granting the Prime Minister extraordinary powers to fight the pandemic, it was referred to the Constitutional Council. With respect to the Executive’s power to limit freedom of movement and close public and meeting places, the Council deferred to the legislator’s appreciation of the needs for public health protection, provided the measures were strictly proportionate to the risk. As they complied with the principles laid down in Article 8 of the Declaration of the Rights of Man and the Citizen as well as in Article 34 of the Constitution, it also admitted the validity of the penal sanctions established by the same act.
On October 14th, the public health state of emergency was enabled again pursuant to the legislative provisions enacted in March, and prorogued again by Parliament until February 16th, 2021. Simultaneously, the transitory regime provided for in the Act of July 9th was prorogued until April 2021 in the territories in which the public health state of emergency was not in force. As a result, the former automatically came into force to replace the latter. Decision 2020-808 DC examined the relevant bill and refused to second-guess the majority’s decision to choose so long a period until a new intervention of the Parliament was necessary. It also admitted the constitutionality of an automated treatment of private health data, provided it met the conditions made explicit in its previous decision in May. The Council also admitted wide delegations of legislative powers pursuant to Article 38 of the Constitution in order to address the consequences of the pandemic. Consequently, there was a substantial consolidation – both explicit and implicit – of the constitutional law of states of emergency in 2020.[3]
Another major ruling released by the Constitutional Council amid the pandemic was Decision 2020-801 DC dealing with a problem that appears to be of great interest all over the world today: the regulation of Internet. Over sixty senators referred a Private Members’ Bill, tabled in the National Assembly, to fight against online hate content. This bill was scrutinized in light of the constitutional framework regarding freedom of expression and communication, which the Constitutional Council considers as especially valuable, since its exercise is a condition of democracy and a guarantee for other rights and freedoms.
Nevertheless, the Constitutional Council admitted that the legislator has the right to enact rules concerning the right to free communication and is entitled to introduce provisions designed to stop abuses of freedom of expression and communication that undermine public order or interfere with other rights. However, any interference with the exercise of this freedom has to be necessary, appropriate and proportionate to the pursued objective.
In the first place, the Constitutional Council struck down a provision allowing the administrative authority to ask hosts or publishers of an online communication service to remove, within one hour, certain types of contents of a terrorist or child pornographic nature. Though acknowledging the fact that the legislator had intended to stop the previously mentioned abuses, the Council noted that whether the content at issue was illegal did not depend on its manifest character, but only on the authority’s discretion. Moreover, within one hour, there was no possibility to obtain a court ruling, since an appeal did not stay the proceedings. In addition, the host or publisher who failed to comply with the request could be sentenced to a one-year prison sentence and a € 250,000 fine. For these reasons, the Constitutional Council held that the legislator had violated freedom of expression and communication in a manner that was not appropriate, necessary and proportionate to the objective it had in mind.
In the second place, the Constitutional Council struck down a provision requiring certain online platform providers to remove or prevent access to content that was obviously illegal because of its hateful or sexual nature within twenty-four hours, when notified by a person specifying his or her identity, the location of the content and the ground on which it was manifestly illegal. The Council held that the legislator was trying to prevent acts, as well as the dissemination of statements eulogizing such acts, that would seriously undermine public order. Thus, it contributed to the objective of stopping abuses of freedom of expression interfering with public order and other people’s rights. Nevertheless, the Council stressed, firstly, that a provider was obliged to remove a content without any prior intervention of a court, which empowered it to determine the illegal character of a publication. Secondly, since various classifications of criminal offenses warranted the removal of a content, the provider had to examine a reported content and compare it with all these offences, however legally technical the operation might be, especially regarding legislation on the press. Thirdly, it had to do it within a very strict time limit of twenty-four hours. Fourthly, although the legislator had apparently intended to provide a ground for exemption from liability for online platform providers, the terms of the law were not clear enough to enable its scope to be precisely determined. However, the fact that a large number of reports could be sent to a provider simultaneously was not taken into account. Lastly, failure to comply with the obligation of removing an illegal content or preventing its access could be punished by a € 250,000 fine per failure, without consideration of repetition. For these reasons, the Constitutional Council came to the conclusion that the Internet providers were likely to remove any content reported to them, whether obviously illegal or not, in order to avoid the risk of sanction. It thus decided that the provisions of the law infringed on freedom of expression and communication in a manner that was not necessary, appropriate and proportionate.
III. Constitutional Cases
1. Decision n° 2019-827 QPC 28 February 2020 – M. Gérard F.
The applicant argued that by making the admissibility of an application for judicial rehabilitation conditional on compliance with a five-year probation period from the expiry of the inflicted sanction, the contested provisions deprived the relatives of a person sentenced to death, whose sentence has been carried out, of the possibility of making such a request in her name. This difference in treatment between people sentenced to death, whose sentence has been executed, and those sentenced to other criminal penalties, or who have been pardoned by the President of the Republic, is claimed to disregard the principles of equality before the law and before the courts as well as the principle of the proportionality of penalties. However, by imposing compliance with a five-year probation period after the execution of the sentence, the legislator intended to subordinate the benefit of the rehabilitation to the conduct adopted by the convicted person. Consequently, those sentenced to the death penalty and executed were unable to fulfill the conditions provided for by the law. Thus, the difference in treatment was based on a difference in situation and directly related to the object of the law. However, the Constitutional Council emphasized that, after the abolition of the death penalty in 1981, the Constitutional Act of 23rd February 2007 introduced Article 66-1 pursuant to which “No one shall be sentenced to the death penalty” in the Constitution. Under these conditions, even though the Constitutional Council validated provisions relating to judicial rehabilitation, it underlined that the legislator would be justified in instituting a judicial procedure, open to the beneficiaries of a person sentenced to the death penalty whose sentence has been carried out, with a view to restoring her honor.
2. Decision n° 2020-799 DC 26 March 2020 – Emergency Organic Act to deal with the Covid-19 epidemic
In order to deal with the consequences of the Covid-19 pandemic on the functioning of jurisdictions, the contested organic act suspended, until 30th June 2020, the period within which the Council of State and Court of Cassation must refer a priority question of constitutionality to the Constitutional Council, as well as the period during which the latter must provide a ruling on the said referral. The Constitutional Council declared that this law was valid since it did not challenge the right to appeal, nor prohibited a ruling on a priority question of constitutionality during this period. Most remarkably, the Council decided that, due to the specific context, the said act could not be blamed for disregarding the procedure of Article 46 of the Constitution for the adoption of organic acts.
3. Decision n° 2020-834 QPC 3 April 2020 – Union nationale des étudiants de France
The applicants claimed that restricting access to information relating to the criteria and methods used by higher education institutions to evaluate applications for registration in an undergraduate programme of study violated the right of access to administrative documents. The disputed provisions would exclude any access, both of school applicants and of third parties, to the algorithms that might be used by institutions to process applications using the “Parcoursup” digital platform. The Constitutional Council highlighted that the absence of access to the criteria and methods used for reviewing applications would cause a disproportionate infringement in relation to the objective of protecting the secrecy of the review carried out by the pedagogical team. Consequently, the disputed provisions could not be interpreted as exempting each institution from publishing the criteria by which applications were reviewed. The institutions must also specify, if applicable, to what extent algorithmic process was used to conduct this review. It followed from the foregoing that, subject to the Council’s réserve d’interprétation, the limitations provided by the disputed provisions were justified for reasons of general interest and were proportional to this objective.
4. Decision n° 2020-843 QPC 28 May 2020 – Force 5
The Constitutional Council considered that the decision authorising the operation of an electricity production facility constitutes a public decision, in that it has an impact on the environment, and falls within the scope of Article 7 of the Environmental Charter. In addition, the judge considered that the provisions of an ordinance which, after the authorization period, can no longer be amended by law in matters which fall within the legislative domain, must be regarded as a legislative provision, and not merely as an administrative one, the review of which belongs to the ordinary judge.
5. Decision N° 2020-849 QPC 17 June 2020 – M. Daniel D. et autres
The disputed provisions suspended the local electoral process after the completion of the first round and postponed the organisation of the second round. According to the applicants, the legislator could not interrupt an electoral process that was under way, and therefore should have disqualified the results of the vote of 15th March 2020 in order to organise new municipal elections. They also claimed that, while the two-round election process formed an inseparable unit, these provisions allowed the second round to take place more than three months after the first round, which would constitute an excessive delay. Lastly, by providing for holding this second round during the public health crisis, the legislator created conditions for a high abstention rate. This would result in a violation of the principle of fair elections and the principle of equal vote. The Council ruled that if the disputed provisions called into question the unity of the electoral process, they allowed, contrary to the cancelling of the first round, the preservation of the voting carried out in that round. However, it emphasised that, without violating Article 3 of the Constitution, the legislator can only authorise such a modification of the electoral process on the basis of an overriding reason of general interest. Since the legislator adopted the disputed provisions in order to contain the spread of the Covid-19 pandemic, the disputed provisions were justified. In addition, the legislator provided for the second round of municipal elections to occur at the latest in June 2020. This delay was thus adapted to the severity of the public health conditions and the uncertainty surrounding the progression of the pandemic. Moreover, with regard to the applicants’ argument that due to the Covid-19 pandemic the organisation of the second round prior to the end of June 2020 could affect voter turnout, the Council noted that this election could only take place if the public health conditions allowed it. Consequently, the disputed provisions did not in themselves favour abstention. If applicable, it was up to the electoral court to determine if the level of abstention could, under the circumstances of the case, affect the fairness of the election. Lastly, several measures contributed to ensuring the continuity of the electoral process, equality between candidates during the campaign, and the fairness of the election. Specifically, in order to preserve the unity of the electoral body between the two rounds, the second round of elections would be held using the electoral registers and supplementary electoral registers set for the first round. Increasing the threshold of applicable electoral expenses and obtaining reimbursement of part of the advertising expenses made for the second round of elections initially planned for 22nd March 2020 was equally allowed.
6. Decision n° 2020-803 DC 9 July 2020 – Act organizing the exit from the state of health emergency
The Constitutional Council considered that in the context of the exit from the state of health emergency, the legal provisions that gave the Prime Minister the possibility to regulate or prohibit, under certain conditions, the movement of people and vehicles as well as that of collective means of transport, were constitutional. It was up to the legislator to ensure the conciliation between objectives of constitutional value such as the protection of health and respect for the fundamental rights and freedoms. Furthermore, the power conferred upon the Prime Minister to order the temporary closure of certain categories of institutions open to the public as well as of meeting places was considered constitutional. With the adoption of such a provision, the legislator did not infringe on the right to the collective expression of ideas and opinions in a way that would not be necessary, adapted and proportionate to the objective of the constitutional value of the protection of health. Finally, with regard to the imposition of a criminal penalty for the repeated violation of these regulations or prohibitions, the Constitutional Council held that the legislator had sufficiently determined the scope of the obligations and prohibitions that may be enacted by the regulatory power as well as the conditions under which their violation constituted an offense.
7. Decision n° 2020-869 QPC 4 December 2020 – M. Pierre-Chanel T.
The Council declared the application of the national strategy relating to the public health state of emergency in New Caledonia constitutional. Even if the objective was protecting public health, (which ordinarily falls under the jurisdiction of New Caledonia), these exceptional, temporary measures, adopted in order to respond to a health disaster and its consequences, were linked to the guarantee of public freedoms and therefore fell under the jurisdiction of the French State. The Council also confirmed the legislative value of the ordinance and accepted the right of the elected officials to invoke the jurisdiction of the State, which is part of the rights and freedoms guaranteed by the Constitution, by means of a priority question of constitutionality.
IV. Looking Ahead
France is not done with Covid-19. New prorogations of public health state of emergency regimes or transitory regimes can be expected. One can also expect the Constitutional Council to decide on three controversial bills. The first regards “global security,” and regulates the use of drones by police forces, and limits the possibility to take and broadcast images that allow their identification. Both provisions have been criticized for unduly broadening their powers, and excessively limiting freedom of communication. The second bill, “Reinforcing respect for the principles of the Republic,” targets communitarianism. It addresses a wide array of topics, among which the neutrality of public services, the funding of private associations, the organisation of religious, private schools, and online hate speech. It obviously involves many constitutional principles. The third bill implements the recommendations of the Citizens’ Climate Convention. It will be a test for President Macron’s commitment to participatory democracy. On the political front, local elections in departments and regions are due to take place in 2021. Although they are likely to be postponed, the possibility to campaign and vote satisfactorily remains doubtful. This is all the more complex as they are the last elections before the presidential and legislative elections of 2022, which are already in every politician’s mind. In this respect, the right-wing majority of the Senate may be reluctant to allow President Macron to have his environmental constitutional amendment passed.
V. Further Reading
Xavier Bioy, Droits fondamentaux et libertés publiques (Librairie générale de droit et de jurisprudence, 2020)
Julien Boudon, Manuel de droit constitutionnel. Tome 2, La Ve République (Presses universitaires de France, 2020)
Matthieu Caron, Droit gouvernemental (Librairie générale de droit et de jurisprudence, 2020)
Wanda Mastor, L’art de la motivation, substance du droit : mieux motiver pour mieux juger, (Dalloz, 2020)
Guillaume Tusseau ed., Debating Legal Pluralism and Constitutionalism: New Trajectories for Legal Theory in the Global Age (Springer, 2020)
Suggested Citation: Corinne Luquiens, Nefeli Lefkopoulou, Eirini Tsoumani, and Guillaume Tusseau, France | 2020 Developments in Constitutional Law, Int’l J. Const. L. Blog, Oct. 29, 2021, at: http://www.iconnectblog.com/2021/10/france–2020-developments-in-constitutional-law
[1] Décret n° 2020-260 du 16 mars 2020 portant réglementation des déplacements dans le cadre de la lutte contre la propagation du virus covid-19.
[2] Loi n° 2020-290 du 23 mars 2020 d’urgence pour faire face à l’épidémie de covid-19.
[3] See Guillaume Tusseau, “The Concept of Constitutional Emergency Power: A Theoretical and Comparative Approach” 97 Archiv für Rechts- und Sozialphilosophie (2011) 498. On the National Assembly’s proposals to improve this regime, see the report of the Mission « flash » sur le régime juridique de l’état d’urgence sanitaire, https://www2.assemblee-nationale.fr/static/15/lois/conclusions_MI_flash-RJ_EUS.pdf.
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