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The First Preliminary Reference of the French Constitutional Court to the CJEU: Révolution de Palais or Revolution in French Constitutional Law?

Published online by Cambridge University Press:  06 March 2019

François-Xavier Millet  and
Nicoletta Perlo

Extract

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A preliminary reference on the part of the Constitutional Council was, in several respects, not to be expected. It was debatable whether it would consider itself as a “court or tribunal” within the meaning of Article 267 of the Treaty on the Functioning of the European Union (TFEU) and, therefore, whether it would refer a case to the European Court of Justice (CJEU) at all. The French constitutional court could also have resorted to the acte clair doctrine so as to escape from their obligation to ask for the interpretive guidance of the CJEU. However, the main reason why a reference was not awaited by legal actors lies in the limited jurisdiction of the Constitutional Council. Until the introduction in 2008 of the so-called QPC, that is, question prioritaire de constitutionnalité (the Priority Preliminary Reference mechanism on issues of constitutionality), the Conseil constitutionnel had a very limited jurisdiction compared to its European counterparts. Its main mission was to assess the conformity of parliamentary bills and treaties with the Constitution and only with the Constitution. Its review could only take place ex ante, between the adoption and the promulgation of a text. By opening the way to an ex post review of statutes with regard to the rights and freedoms guaranteed by the Constitution, the QPC brought about a major change in the French adjudication system: statutes are no longer immune from constitutional challenge once they are in force. However, treaties and other international or European commitments are no parameters of constitutional review. The Conseil constitutionnel made this clear in 1975 and never seriously changed track, despite minor qualifications to the rule. In their seminal IVG ruling on the Voluntary Interruption of Pregnancy Act, they held that it was not up to them to review the compatibility of bills with treaties, in spite of Article 55 of the Constitution. Consequently, the task of the constitutional judges does not go beyond the assessment of laws with regard to the Constitution. This is the main reason that explains why, on the face of it, the Conseil constitutionnel was unlikely to refer a case to the CJEU. Why would it seek the interpretation or ask for the review of a European text if this text is immaterial for it and if the yardstick of its examination is the Constitution and only the Constitution? Yet, it happened. For the first time, the Conseil referred a case to the CJEU on 4 April 2013. Although this is undoubtedly a major legal breakthrough, we will see in due course that this is probably more a révolution de palais than a true revolution in French constitutional law.

Type
Part Two
Information
German Law Journal , Volume 16 , Issue 6: Special issue – Preliminary References to the Court of Justice of The European Union by Constitutional Courts , December 2015 , pp. 1471 - 1490
Copyright
Copyright © 2015 by German Law Journal GbR 

References

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