Swami Vevekananda Subharti University,

U.P: MEERUT

Topic: Constitutional Council of France

Subject: Comparative Constitution

Submitted by

Sherab Dorji

BA LLB

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 Contents
Sl. No Topic Page No
1 Acknowledgement 3
2 Introduction 4
3 Basic Texts 4
4 Presidential Elections 5
5 Compositions 5
6 Procedure 6
7 Organizations 7
8 Jurisdiction 7
9 Consultative Powers 8
10 Nature and effects of Decisions 9
11 Powers and Task 11
12 Enactment and Legislation 12
13 Conclusion 14
14 References 15

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 Acknowledgement

The success and final outcome of this project required a lot of guidance and assistance from
many people and I am extremely privileged to have got this all along the completion of my
project. All that I have done is only due to such supervision and assistance and I would not
forget to thank them.

I respect and thank Dr. Reena Vishnoi for providing me an opportunity to do the project
work at home and giving us all support and guidance which made me complete the project
duly. I am extremely thankful to her for providing such a nice support and guidance, although
she had busy schedule managing the corporate affairs.

Also I would thank my family member for all the support, love and care they have showered
upon me.

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 FRANCE CONSTITUTIONAL COUNCIL

Introduction
The Constitutional Council was created by the Constitution of the Fifth Republic on 4 October 1958. It is
a court with competence for various matters, including, in particular, the constitutional review of
legislation.

The Constitutional Council is not situated at the summit of a hierarchy of judicial or administrative
courts. The Constitutional Council is not a supreme court placed above the Conseil d’État and the Court
of Cassation.

Basic texts
 The Constitution: Title VII, Articles 56 to 63 and Article 54 (Title VI); Articles 7, 16, 37, 41, 46,
74 and 77;
 Ordinance no. 58-1067 of 7 November 1958
 Decree no. 59-1292 of 13 November 1959 on the obligations of members of the
Constitutional Council;
 Decree no. 59-1293 of 13 November 1959 on the organisation of the General Secretariat of
the Constitutional Council
 Priority preliminary rulings on the constitutionality of enacted legislation (La question
prioritaire de constitutionnalité)
 Institutional Law no. 2009-1523 of 10 December 2009 on application of Article 61-1 of the
Constitution;
 Decision no. 2009-595 DC of 3 December 2009, concerning the institutional law on
application of Article 61-1 of the Constitution;
 Decree no. 2010-148 of 16 February 2010 implementing Institutional Law no. 2009-1523 of
10 December 2009 on application of Article 61-1 of the Constitution;
 Decree no. 2010-149 of 16 February 2010 on continuation of legal aid in the event of
examination of a priority preliminary question on constitutionality by the Conseil d’État, the
Court of Cassation or the Constitutional Council;
 Rules of Procedure of the Constitutional Council concerning priority preliminary rulings on
constitutionality.
 Review of legislation pertaining to the overseas territories
 Institutional Act no. 99-209 of 19 March 1999 on the Statute of New Caledonia (Article 99 to
107);

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  Institutional Act no. 2004-192 of 27 February 2004 on the Autonomous Statute of French
Polynesia (Article 12);
 Code of Local Government: Articles L.O. 6213-5 (Saint-Barthélemy) and L.O. 6313-5 (Saint-
Martin).

Presidential elections
 Referendum Act no. 62-1292 of 6 November 1962 on the election of the President of the
Republic by direct universal suffrage;
 Decree no. 2001-213 of 8 March 2001 implementing the Law of 6 November 1962 on the
election of the President of the Republic by direct universal suffrage (Official Gazette of 21
March 1999);
 Constitutional Council decision of 24 February 1981 (drawing lots to establish the list of
candidates)
 Electoral disputes Incompatibilities
 Regulation governing the procedure to be followed before the Constitutional Court in
complaints concerning the conduct of referendums;
 Regulations governing the procedure to be followed before the Constitutional Council in
disputes concerning the election of deputies and senators;
 Electoral Code (Articles directly concerning the Constitutional Council): L.O. 136, L.O. 136-1, L.O.
137 to L.O. 153, L.O. 159, L.O. 160, L.O. 176-1, L.O. 179 to 189, L.O. 292, L.O. 297, L.O. 303, L.O.
319, L.O. 325.

Composition, procedure and organisation

Composition
The Constitutional Council is composed of nine members. 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). Since the constitutional reform of 23 July 2008, the appointment process includes a
referral for opinion to the Constitutional Law Committee of each chamber of parliament, under
procedures that vary according to the appointing authority. The appointment of a candidate proposed
by the appointing authority can be blocked by a three-fifths majority vote.

One third of the Council’s members are renewed every three years. The President of the Republic and
the President of each chamber each appoint one member to the Council every three years. Members
may not be reappointed. However, if they were appointed to replace a member who resigned or was
unable to serve his or her full term of office, upon expiry of the latter the replacement member may be
appointed for a nine-year term, provided that he or she served as a replacement member for less than

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three years. 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 or her 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 or her replacement has not occupied the
post for more than three years.

The members appointed take an oath before the President of the Republic.

Former Presidents of the Republic are de jure members of the Constitutional Council

The President of the Constitutional Council is appointed by the President of the Republic from among
the members.

There is no age or occupation requirement in order to become a member of the Constitutional Council.
The office is nonetheless incompatible with being a member of the Government or the Social and
Environmental Council or with the Office of Rights Defender (Ombudsperson). It is also incompatible
with any electoral mandate. Members are also subject to the same professional incompatibilities as
Members of Parliament. 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.

Procedure
The Constitutional Council is a court whose sessions are organised as and when applications are referred
to it. When asked to give a ruling on the constitutionality of legislation before it is enacted, the
Constitutional Council must deliver its decision within one month or within eight days in urgent cases.

When asked to give a priority preliminary ruling on the constitutionality of enacted legislation, the
Constitutional Council has three months to deliver a decision. During this period the parties are afforded
the possibility of submitting observations under an adversarial procedure.

The Constitutional Council only sits and passes judgment in plenary session. Its deliberations are subject
to a quorum rule which requires the actual presence of seven judges. If opinions are equally divided, the
President has the casting vote. There is no provision for dissenting opinions. The Council’s discussions, in
select or plenary session, and its votes are neither conducted in public nor published.

Each case is examined by a member of the Council, appointed rapporteur by the President. This does
not apply to electoral disputes. 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.

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The procedure is written and both parties are represented. However, the parties in electoral disputes
may ask to be heard. Moreover, when a priority question on constitutionality (question prioritaire de
constitutionnalité) is examined, a hearing is held.

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 service assists in legal research operations. The secretariat also comprises of: financial
service, an external relations service, an information technology service and a registry for electoral
disputes. The remainder of the staff is responsible for reception, secretarial, catering and transport
services.

The Constitutional Council is financially autonomous. The President of the Council establishes its budget,
the amount of which is included in the Finance Bill under the heading public authorities (pouvoirs
publics).

IV. Jurisdiction
The powers of the Constitutional Council can be divided into two categories:

Judicial authority, covering two types of disputes:

a. Normative reviews
As the court responsible for assessing the constitutionality of legislation, the Constitutional Council
performs both ex ante and ex post reviews.

Ex ante reviews:
The Constitutional Council is required on a mandatory basis to examine organic laws and the rules of
procedure of the houses of parliament prior to promulgation of the former and prior to the entry into
force of the latter. It may also be required to examine international undertakings prior to their
ratification or approval. As regards ordinary legislation, the Council may be required to examine laws
prior to their promulgation. In the latter two cases, the referrals to the Council are made in different
ways, depending upon the act under review, i.e. either by a political authority (the President of the
Republic, the Prime Minister or the president of the National Assembly or the Senate), or by at least 60
Members of Parliament or 60 senators.

Since 1999, the Constitutional Council has also had the power to examine the constitutionality of
dependent-territory laws passed by the Congress of New Caledonia.

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Ex post reviews:
Since 1 March 2010 and following the constitutional amendment of 23 July 2008, the Constitutional
Council has had the power to consider whether a legislative provision already in force violates the rights
and freedoms guaranteed under the Constitution, acting on referrals by the Conseil d'État or the Cour
de Cassation. In such cases, the constitutional reviews are conducted on the initiative of applicants,
since the questions are raised in applications filed during proceedings before a court. Such cases involve
applications for priority preliminary rulings on questions of constitutionality QPC (Question prioritaire de
constitutionnalité).

As the court responsible for delineating the statutory and regulatory fields, the Constitutional Council
may also be asked by the president of the relevant house of parliament or by the Prime Minister during
parliamentary discussions, or ex post by the Prime Minister, to issue rulings with a view to reclassifying
certain legislative provisions, i.e. amending by decree legislative provisions whose content is regulatory
in nature.

Following the amendment of 23 July 2008, the Constitutional Council may be called upon to verify
whether the conditions under which bills are tabled comply with those laid down in an organic law
(Organic Law 2009-403 of 15 April 2009).

Lastly, the Constitutional Council rules on the division of powers between the State and certain overseas
territories (to date: French Polynesia, Saint-Barthélemy and Saint-Martin).

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 parliamentary and presidential candidates, the
Council adjudicates. On 4 October 2012, the Council had given 2871 decisions on electoral questions and
889 on legislation (including 650 DC).

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.

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It verifies that the implementation conditions continue to be met at the request of either the President
of one of the chambers of parliament or of 60 deputies or senators after 30 days or of its own motion
after 60 days or at any time thereafter.

Moreover, the Government consults the Council on texts concerning the organisation of the election of
the President of the Republic and referendums. The Council also issues observations on past
parliamentary and presidential elections, as well as on upcoming elections, with the aim of proposing to
the public authorities all kinds of measures likely to improve the conduct of such elections.

V. Nature and effects of decisions

All decisions are reached by the same formal procedure, comprising:

 the approval of the applicable texts and procedural stages;

 the 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;
 an operative part, divided into articles, sets out the solution adopted.

Types of decision
The various types of decision can be identified by the letters which follow the registration number of the
application.

Decisions are classified as follows:

 decisions on the constitutionality of legal rules carry the letters DC (review of

conformity) or LP (laws passed by the Congress of New Caledonia);
 decisions on applications for a priority preliminary ruling on the constitutionality of
enacted legislation, which carry the letters QPC;
 decisions on the division of powers between legislative and regulatory authorities
carry the letters L (laws down-graded to regulations) or FNR (fin de non recevoir –
objection as to admissibility, i.e. examined while the law was still being drafted);

 the decisions on the division of powers between the state and overseas
communities authorities carry the letters L-OM;
 decisions on parliamentary electoral disputes carry the letters AN (Assemblée
nationale) or S (Sénat) and an indication of the constituency or department;
 decisions relating to the incompatibility rules for Members of Parliament (carrying
the letter I) or to their removal from office (carrying the letter D);
 decisions relating to presidential elections (carrying the letters PDR).

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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 in electoral cases.

Decisions on conformity (DC) lead to the total or partial striking down of the law but not its annulment,
since they are handed down before promulgation of the law, the legal act required to bring it into force.

Rules of procedure of either chamber of parliament that are held to be unconstitutional cannot be
applied.

Where a clause of an international commitment is ruled to be unconstitutional by the Constitutional

Council, authorisation to ratify or approve the commitment concerned may be given only after an
amendment of the Constitution.

Where a decision of unconstitutionality is given by the Constitutional Council in response to an

application for a priority preliminary ruling on the constitutionality of enacted legislation, the
provision(s) in question are repealed with effect from the date of publication of the decision or a later
date specified in the decision. Under Article 62 of the Constitution, the Council may determine
conditions and limits for challenging the effects of an unconstitutional provision.

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.

Publication
The Council’s decisions are notified to the parties and published in the “Journal Officiel de la République
Française Lois et décrets” (Official Gazette of the French Republic) with the text of Parliament’s referral
(since 1983) and the Government’s observations (since 1995).

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), and
an analytical table, with an English translation since 1990.

Since 1996, the Constitutional Council has also published a quarterly review entitled “Les cahiers du
Conseil constitutionnel” (formerly published twice yearly).

Lastly, all decisions since the Constitutional Council was first established are available on the Council’s
website (www.conseil-constitutionnel.fr) in some cases along with comments by the Council’s legal
service.

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Powers and Tasks
The Council has two main areas of power:

The first is the supervision of elections, both presidential and parliamentary, and ensuring the legitimacy
of referendums (Articles 58, 59 and 60). They issue the official results, ensure proper conduct and
fairness, and see that campaign spending limits are adhered to. The Council is the supreme authority in
these matters. The Council can declare an election to be invalid if improperly conducted, the winning
candidate used illegal methods, or the winning candidate spent more than the legal limits for the
campaign.

The second area of Council power is the interpretation of the fundamental meanings of the constitution,
procedure, legislation, and treaties. The Council can declare dispositions of laws to be contrary to the
Constitution of France or to the principles of constitutional value that it has deduced from the
Constitution or from the Declaration of the Rights of Man and of the Citizen. It also may declare laws to
be in contravention of treaties that France has signed, such as the European Convention on Human
Rights. Their declaring that a law is contrary to constitutional or treaty principles renders it invalid. The
Council also may impose reservations as to the interpretation of certain provisions in statutes. The
decisions of the Council are binding on all authorities.

In some cases, examination of laws by the Council is compulsory. Organic bills, those which
fundamentally affect government and treaties, need to be assessed by the Council before they are
considered ratified (Article 61-1 and 54). Amendments concerning the rules governing parliamentary
procedures need to be considered by the Council as well. Guidance may be sought from the Council in
regard to whether reform should come under statute law (voted by Parliament) or whether issues are
considered as règlement (regulation) to be adopted with decree of the Prime Minister. The re-definition
of legislative dispositions as regulatory matters initially constituted a significant share of the (then light)
caseload of the Council.

In the case of other statutes, seeking the oversight of the Council is not compulsory. However, the
President of the Republic, the President of the Senate, the President of the Assembly, the Prime
Minister of France, 60 members of the National Assembly, or 60 Senators can submit a statute for
examination by the Council before its signing into law by the President. In general, it is the
parliamentary opposition that brings laws that it deems to infringe civil rights before the Council.

Another task, of lesser importance in terms of number of referrals, is the reclassification of statute law
into the domain of regulations on the Prime Minister's request. This happens when the Prime Minister
and his government wish to alter law that has been enacted as statute law, but should instead belong to
regulations according to the Constitution. The Prime Minister has to obtain reclassification from the
Council prior to taking any decree changing the regulations. This, however, is nowadays only a small
fraction of the Council's activity: in 2008, out 140 of decisions, only 5 concerned reclassifications.

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Enactment of legislation
This article refers extensively to individual articles in the Constitution of France. The reader should refer
to the official translation of the Constitution on the site of the French National Assembly. Another
recommended reading is the Constitutional Council overview on the Council web site.

The 1789 Declaration of the Rights of Man and of the Citizen.

 The Government of France consists of an executive branch (President of the Republic, Prime
Minister, ministers and their services and affiliated organisations); a legislative branch (both
houses of Parliament); and a judicial branch.
 The judicial branch does not constitute a single hierarchy:
 Administrative courts fall under the Council of State,
 Civil and criminal courts under the Court of Cassation,

Some entities also have advisory functions.

For historical reasons, there has long been political hostility in the nation to the concept of a "Supreme
Court"—that is, a powerful court able to quash legislation, because of the experience of citizens in the
pre-Revolutionary era.

Whether the Constitutional Council is a court is a subject of academic discussion, but some scholars
consider it effectively the supreme court of France.

The Constitution of the French Fifth Republic distinguishes two kinds of legislation: statute law, which is
normally voted upon by Parliament (except for ordinances), and government regulations, which are
enacted by the Prime Minister and his government as decrees and other regulations (arrêtés). Article 34
of the Constitution exhaustively lists the areas reserved for statute law: these include, for instance,
criminal law.

Any regulation issued by the executive in the areas constitutionally reserved for statute law is
unconstitutional unless it has been authorized by a statute as secondary legislation. Any citizen with an
interest in the case can obtain the cancellation of these regulations by the Council of State, on grounds
that the executive has exceeded its authority. Furthermore, the Council of State can quash regulations
on grounds that they violate existing statute law, constitutional rights, or the "general principles of law".

In addition, new acts can be referred to the Constitutional Council by a petition just prior to being signed
into law by the President of the Republic. The most common circumstance for this is that 60 opposition
members of the National Assembly, or 60 opposition members of the Senate request such a review.

If the Prime Minister thinks that some clauses of existing statute law instead belong to the domain of
regulations, he can ask the Council to reclassify these clauses as regulations.

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Traditionally, France refused to accept the idea that courts could quash legislation enacted by
Parliament (though administrative courts could quash regulations produced by the executive). This
reluctance was based in the French revolutionary era: pre-revolutionary courts had often used their
power to refuse to register laws and thus prevent their application for political purposes, and had
blocked reforms. French courts were prohibited from making rulings of a general nature. Also,
politicians believed that, if courts could quash legislation after it had been enacted and taken into
account by citizens, there would be too much legal uncertainty: how could a citizen plan his or her
actions according to what is legal or not if laws could a posteriori be found not to hold? Yet, in the late
20th century, courts, especially administrative courts, began applying international treaties, including
law of the European Union, as superior to national law.

A 2009 reform, effective on 1 March 2010, enables parties to a lawsuit or trial to question the
constitutionality of the law that is being applied to them. The procedure, known as question prioritaire
de constitutionnalité, is broadly as follows: the question is raised before the trial judge and, if it has
merit, is forwarded to the appropriate supreme court (Council of State if the referral comes from an
administrative court, Court of Cassation for other courts). The supreme court collects such referrals and
submits them to the Constitutional Council. If the Constitutional Council rules a law to be
unconstitutional, this law is struck down from the law books. The decision applies to everyone and not
only to the cases at hand.

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 Conclusion
Since 2010, the annual number of decisions by the Constitutional Council has multiplied two or threefold

as compared with the period prior to the reform that introduced priority preliminary rulings on the
constitutionality of enacted legislation and by a far greater factor compared with the period prior to the
introduction of referrals by Members of Parliament in 1974.

The remarkable growth in Constitutional Council case law is essentially the result of a combination of
two elements:

First of all, a case-law development, since in its decision of 16 July 1971 on “Freedom of association”,
the Constitutional Council unambiguously recognised that the Declaration of the Rights of Man and the
Citizen of 26 August 1789 and the Preamble to the 1946 Constitution, both of which are referred to in
the Preamble to the 1958 Constitution, form part of the reference constitutional standards and can
therefore be relied on in constitutional review proceedings. This major advance in the case-law
confirmed the Council’s role as the guarantor of rights and freedoms;

Secondly, institutional changes, since at least two key constitutional reforms for the Council have taken
place: in 1974 it became possible for a minority of Members of Parliament (60 deputies or 60 senators)
to refer an ordinary law to the Council, a right previously confined to the President of the Republic, the
Prime Minister and the President of either chamber of parliament; in 2008, with the introduction of
priority preliminary rulings on the constitutionality of enacted legislation it became possible for any
party to proceedings before any court to challenge the applicable law as incompatible with
constitutionally guaranteed rights and freedoms, a matter which can now be referred to the
Constitutional Council by either the Court of Cassation or the Conseil d’État.

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 References
 Preamble of the Constitution of the Fourth Republic, Wikisource.
 Constitution of the Fourth French Republic, Wikisource.
 David Pollard (Summer 1988). "France's Conseil Constitutionnel - Not Yet a Constitutional
Court?". Irish Jurist. 23 (1): 2–37. JSTOR 44027345.
 https://www.france24.com/en/20100708-anti-veil-law-risks-being-shot-down-france-
constitutional-council-burqa-ump-party-government
 https://www.conseil-constitutionnel.fr/sites/default/files/2019-10/2019rapdf_bd_en.pdf
 https://www.britannica.com/biography/Roger-Frey
 Wikipedia

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