DR.

RAM MANOHAR LOHIYA

NATIONAL LAW UNIVERSITY LUCKNOW

Final Draft
World Legal Systems

Topic:- “Relevance of Constitutional Council In French

Legal System”

Submitted to: Submitted by:

Mr. Shashank Shekhar Shivam Jaiswal

Assistant Prof. (Law) ROLL NO. 122

RMLNLU Sem- VIII, Sec- B

. B.A.L.LB (Hons)

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 Acknowledgment
Apart from the efforts taken by me, the success of this project depends largely on the
encouragement and guidelines of many other people who have been instrumental in the
success. The contributions of many different people, in their different ways have made this
possible.

My deepest thanks to Mr. Shashank Shekhar (Asst. Prof) without whose valuable support,
guidance and advice this project would have been a distant reality. I would also like to thank
the library staff for working long hours to facilitate us with required material going a long
way in quenching our thirst for education. I would also like to thank my seniors for guiding
me through tough times they themselves have been through, and lastly I would like to thank
my friends for keeping alive the spirit of competition in me.

Thank you.....

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 Table of Contents

 Introduction…………………………………………………….…..4

 Composition of The Council …………………………………..…..6

 Powers of the Council…………………………………………........8

 Legal authority of the decision of the Council …………………..10

 Conclusion………………………………………………….……….11

 Bibliography…………………………………………………….......12

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Introduction

The Constitutional Council was established by the by the Constitution1 of the Fifth Republic
adopted on 4 October 19582. It is a court vested with various powers, including in particular
the review of the constitutionality of legislation. Prior to this the Third Republic was in
effect, namely, from 1875 to 1940, no agency was provided by this Constitution to ensure
control over the conformity of the laws with the Constitution. This gap in the institutions had
to be envisaged in conjunction with the circumstance that the ordinary courts and at their
head the two Supreme Courts, the Court of Cassation, and the Conseil d’etat, have not
assumed authority either to annul a law on the ground of unconstitutionality, or even to
declare a statutory provision unconstitutional in a proceeding where this is made an issue by
one of the parties, and to draw there from the logical consequence that the case should be
decided as if such provision were without legal effect.3

Jurists even deduced that, during the Third Republic, in France, there existed no superiority
of the Constitution over ordinary law, which was practically correct, but legally questionable.
The Framers of 1946 resolved, without in any sense conferring on the ordinary courts a
power of control over the constitutionality of the laws, to create an organism designed to
prevent any contradiction between legislative provisions and those of the Constitution for a
Constitutional Committee had been created by articles 91 and 92 of the Constitution of
October 27, 1936. Nevertheless, the present Constitutional Council differs most obviously
from this Committee, in both its composition and its competence.4

It may be thought that what determined the Framers of 1958 constitution to create a Con-
stitutional Council destined to play a much more important role in the constitutional life of
the country has direct connection with the new conception of the relations between statute
and regulation. We know that henceforth the legislative power of Parliament can be exercised
only in certain matters enumerated in Article 34 of the Constitution. However long the list of
so-called legislative matters established by this Article may be, and however important each
of the categories included in this enumeration, it nevertheless remains that Parliament cannot
legislate outside of the cases thus enumerated and that in con- sequence in every other subject

1
articles 56-63
2
Waline, Marcel; The Constitutional Council of the French Republic, The American Journal of Comparative
Law, Vol. 12, No. 4 (Autumn, 1963), pp. 483
3
Waline, Marcel; The Constitutional Council of the French Republic, The American Journal of Comparative
Law, Vol. 12, No. 4 (Autumn, 1963), pp. 485
4
Which has been established by the 5th Republic 1958

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matter the executive power alone has regulative competence. And such was the principal
reason for the creation of the Constitutional Council, namely, to prevent Parliament from
legislating outside of the matters which were assigned (and, moreover, reserved) to it by
Article 34 of the Constitution. But from the moment that it was decided to establish the
Constitutional Council, the Framers thought to utilize it also for other purposes.5

The Constitutional Council is not a supreme court that is hierarchically superior to the
Conseil d'État or the Cour de Cassation. It is a recent institution, without any institutional
precedent. The Constitutional Council is not situated at the summit of a hierarchy of judicial
or administrative courts. In that sense it is not a Supreme Court.6

Composition and Organisation of the Council

The Constitutional Council is comprised of nine members who are appointed for nine year
terms7. The members are appointed by the President of the Republic and the presidents of
each of the Houses of Parliament (Senate and National Assembly). Following the
constitutional amendment of 23 July 2008, the appointment procedure involves the issue of
an opinion, according to different procedures depending upon the appointing authority, from
the Constitutional Law Committee of each House. The appointment of a candidate presented
by the appointing authority may be blocked by a three fifths majority vote. One third of the
Council is replaced every three years. The President of the Republic and the President of each
of the appointing Houses each appoint one member to the Council every three years.
Members may not be reappointed.

However, if an individual is appointed to replace a member who has resigned or is unable to

conclude his mandate, upon expiry of that appointment the substitute member may thereafter
be appointed for a nine year term, provided that his term in office as a substitute did not
exceed three years. The members appointed shall take an oath before the President of the
Republic. Former Presidents of the Republic are members of the Constitutional Council as of
right. No prerequisite as to age or profession is required for membership of the Constitutional
Council. Such office is however incompatible with membership of the Government or the

5
Supra note 3.
6
Sweet, Alec Stone, "The Constitutional Council and the Transformation of the Republic" (2008). Faculty
Scholarship Series. Paper pp 795
7
Article 56 of the 5th republic.

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Economic, Social and Environmental Council and with appointment as a Rights
Spokesperson. It is also incompatible with the holding of any elected office. Its members are
also subject to the same professional incompatibility requirements as Members of Parliament.
A former President of the Republic, who is a member as of right, may not sit at the Council if
he holds a position which is incompatible with his status as a member of the Council.
Moreover, for the duration of their term in office, the members of the Council may not be
appointed to public sector employment or be granted promotion on the basis of selection if
they are public officials. Any member appointed may resign from office. They may also be
removed from office in the event of incompatibility or permanent physical incapacity as
ascertained by the Constitutional Council.

The Constitutional Council is a court, the hearings and sessions are determined by the
applications it receives. When it is seized of proceedings concerning the constitutionality of a
law prior to enactment, the Council must rule within one month, or eight days in urgent cases.
If it is seized of an application for a priority preliminary ruling on the issue of
constitutionality, the Council has three months to deliver its decision.

The Council sits and rules in plenary form at all times. Its decisions and opinions are
delivered by at least seven members (quorum requirement). In the event of a tie, the President
has the casting vote. No dissenting opinions may be issued. Discussions, deliberations and
votes are not made public.

The investigation of cases is allocated to a member of the Council who is appointed as the
rapporteur by the president, except in electoral disputes. In such disputes, the investigation is
allocated to one of the three sections comprised of three members chosen at random, each of
whom must have been appointed by a different authority.

Proceedings are conducted in writing and the parties are granted the right to make
representations. In cases involving electoral disputes, the parties may request that they be
heard and in cases involving an application for a priority preliminary ruling on the issue of
constitutionality a public hearing is held.

A secretary general, appointed by decree of the President of the Republic, directs the four
services of the Council: a legal service, a documentation service responsible for legal
research; an administrative and financial service responsible for the management of the
Council; an external relations service responsible for the Council's publications, its relations

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with all other courts and universities. The Constitutional Council has financial autonomy; its
president sets the budget. This in turn is an attempt to make the institution fully autonomous8

Powers

The powers of the Constitutional Council, which are set out in the Constitution, are specified
and completed by organic laws. The powers vested in it by this legislation may be subdivided
into two categories:

1. Judicial powers, including two distinct forms of litigation

a. Normative litigation

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

Ex ante review:

The Constitutional Council is seized on a mandatory basis with basic laws and the regulations
of the Houses of Parliament prior to promulgation of the former and prior to the entry into
force of the latter9. It may also be seized of an international commitment prior to its
ratification or approval. For ordinary legislation, the Council may be seized of a law prior to
its promulgation. In these last two cases, the Council may be seized in different ways
depending upon the act under review, 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 Senators10.

Ex post review:

Since 1 March 2010 and following the constitutional amendment of 23 July 2008, the
Constitutional Council may consider whether a legislative provision which is already in force
violates the rights and freedoms guaranteed under the Constitution11, acting on a referral by
the Conseil d'État or the Cour de Cassation. In such cases, constitutional review is conducted

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www.conseil-constitutionnel.fr
9
Article 61 (2) of the Constitution also permits the President of the Republic, the Prime Minister, or the
President of either Assembly to request the Constitutional Council to pass on the conformity or non- conformity
of a law with the Constitution, until its promulgation
10
www.conseil-constitutionnel.fr
11
Sweet, Alec Stone, "The Constitutional Council and the Transformation of the Republic" (2008). Faculty
Scholarship Series. Paper 79 pp. 1

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on the initiative of an applicant, since the question was raised by application filed during
proceedings before a court. Such cases involve applications for a priority preliminary ruling
on the issue of constitutionality

As the court responsible for delineating jurisdiction between the statutory and the regulatory
fields, the Constitutional Council may also be seized on the one hand during discussions
before Parliament by the president of the relevant House or by the Prime Minister, or on the
other hand ex post by the Prime Minister in order to reclassify a legislative provision, that is
to amend by decree a legislative provision the contents of which are regulatory in nature.

Following the amendment of 23 July 2008, the Constitutional Council may be called upon to
verify whether the terms under which bills are tabled comply with the conditions laid down
by an organic law (Organic Law no. 2009403 of 15 April 2009)12.

b. Electoral disputes and referenda

The Constitutional Council oversees the regularity of the election of the President of the
Republic and referenda, the results of which it proclaims. Article 58 of the Constitution. "The
Constitutional Council watches over the regularity of the election of the President of the
Republic. It investigates complaints and proclaims the results of the vote."

It rules on the regularity of elections of Members of Parliament, and hence their eligibility; it
also takes action where a Member of Parliament is in a situation of incompatibility, or is
likely to be so. Easily accessible to voters, applications to the Council relating to elections
have increased considerably following the approval of legislation organising and controlling
the financing of electoral expenses which the Council oversees for candidates in
parliamentary and presidential elections (on appeal). Accordingly, as at 4 October 2012, the
Council had issued 2871 rulings in relation to elections and 889 rulings in disputes relating to
legislation (of which 650 were conformity rulings)13

2. Consultative powers

The Constitutional Council issues an opinion if consulted by the Head of State regarding the
implementation of Article 16 of the Constitution, and also in relation to decisions taken
within this framework14. It assesses whether the conditions for implementation continue to be

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council
13
id
14
Article 16 of the Constitution. The Constitutional Council must be officially consulted by the President of the
Republic before he exercises the exceptional powers which this article confers on him.

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met either upon request by the president of one of the Houses of Parliament or by 60
Members of Parliament or 60 Senators after 30 days, or automatically after 60 days and at
any time thereafter. Moreover, the Government consults the Council on texts relating to the
organisation of counts for elections of the President of the Republic and referenda. The
Council also provides observations on past parliamentary and presidential elections as well as
on upcoming elections with the goal of recommending to the public authorities all measures
capable of improving the conduct of these elections.

Legal Authority of the decision of The Constitutional Council

The decisions are binding on public authorities and all administrative and judicial bodies.
They are not subject to appeal15. The authority of res judicata is not vested solely in the
operative part but also in the reasons, which constitute the necessary support for the operative
part. In electoral matters, as is the case for applications for a priority preliminary ruling on the
issue of constitutionality, the Constitutional Council nevertheless allows appeals in order to
rectify material errors. Conformity decisions (DC) relating to organic or ordinary laws may
lead to the censure of all or part of the law, but not its annulment since they are issued prior
to promulgation, the legal act which ensures its application. The provisions of a regulation of
one of the Houses of Parliament which are ruled unconstitutional may not be applied. If the
Constitutional Council considers that an international commitment contains a clause which is
unconstitutional, authorisation to ratify or approve that international commitment may only
be granted after the Constitution has been amended. If, after being seized of an application
for a priority preliminary ruling on the issue of constitutionality, the Constitutional Council
rules a provision unconstitutional, that provision is repealed with effect from the date of
publication of the decision or from a later date specified in the decision. The Council may,
pursuant to Article 62 of the Constitution, specify the terms and limits subject to which the
effects which the provision ruled unconstitutional has produced may be called into question.

The effect of decisions in relation to electoral matters can vary, ranging from the annulment
of ballot papers to the annulment of the elections themselves, and may entail a declaration
that a candidate is ineligible and/or the removal from office of an elected official.

15
Article 62 (2) of the Constitution provides that "the decisions of the Constitutional Council are not subject to
any review´.

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Conclusion

As discussed in the project, the constitutional council is a relatively new institution to France,
but is nevertheless a strong protector of the constitutional mandate. The council is not strictu
sensu a court, yet it can be regarded as one because it performs the function of judicial
review, which around the world is predominantly performed by the judiciary.

The institution hits upon the civil nature of the French legal system, because unlike the
tradition, it promotes the review of the legislative actions, which involves interpreting the
laws.16 Again, when we analyse the fact that the decision of the council is non appealable and
is in strict sense binding upon all courts and tribunals of French legal system, it points out to
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the fact that, such a practice is against the basic tenets of the civil law setup. The doctrine
of separation of power in France also gets diluted because of the fact that, the former
presidents are a part of the council as well as the nine members are appointed by the
parliament and the executive, to perform a function which is in essence a judicial function
and ultimately has a bearing upon the acts of the executive and legislature18.

The existence of the institution can be attributable to the global presence of such constitution
protecting institutes, which prompted France to adopt one as well. The council is indeed an
institution that reduces the access of parliamentary power and makes the legislature more
sensitive towards the constitutional mandates and legal defects19. The council also influences
the deliberations at early stages of the legislative process because the review of any
controversial provision is certain, which has in turn made it the guardian of the French
Constitution.

16
Raval, Dr. Nayanbala Elements Of Legal Systems and Institutions, 2013 ed. Cyber tech Publications pp. 184
17
Id 190
18
Kritzer, Herbert; Legal Systems of the World: A Political, social and cultural encyclopedia, 2005, Pentagon
Press, New Delhi pp 552
19
ibid

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Bibliography

 Sweet, Alec Stone, "The Constitutional Council and the Transformation of the
Republic" (2008). Faculty Scholarship Series. Paper 79.
 Waline, Marcel; The Constitutional Council of the French Republic, The American
Journal of Comparative Law, Vol. 12, No. 4 (Autumn, 1963), pp. 483-493
 www.conseil-constitutionnel.fr
 Kritzer, Herbert; Legal Systems of the World: A Political, social and cultural
encyclopedia, 2005, Pentagon Press, New Delhi
 Raval, Dr. Nayanbala Elements Of Legal Systems and Institutions, 2013 ed. Cyber
tech Publications

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