Constitutional Council (France)

Overview 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. Examination of laws by the council is compulsory for some acts, such as for organic bills, those which fundamentally affect government, and treaties, which 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 (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 National Assembly, the prime minister, 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. Enactment of legislation . 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 ordonnances), and government regulations, which are enacted by the prime minister and his government as decrees and other regulations (arrêtés). 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. 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 , 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. ==History and evolution==

While since the 19th century the judicial review that the Constitutional Council brings to bear on the acts of the executive branch has played an increasingly large role, the politicians who have framed the successive French institutions have long been reluctant to have the judiciary review legislation. The argument was that un-elected judges should not be able to overrule directly the decisions of the democratically elected legislature. This may also have reflected the poor impression resulting from the political action of the parlements – courts of justice under the ancien régime monarchy: these courts often had chosen to block legislation in order to further the privileges of a small caste in the nation. The idea was that legislation was a political tool, and that the responsibility of legislation should be borne by the legislative body. From 1958 to 1970, under Charles de Gaulle's presidency, the Constitutional Council was sometimes described as a "cannon aimed at Parliament", protecting the executive branch against encroachment by statute law voted by Parliament. All but one referral to the Constitutional Council came from the prime minister, against acts of Parliament, and the council agreed to partial annulments in all cases. The only remaining referral came from the president of the Senate, Gaston Monnerville, against the 1962 referendum on direct election of the President of the Republic, which Charles de Gaulle supported. The Council ruled that it was "incompetent" to cancel the direct expression of the will of the French people. In 1971, however, the Council ruled unconstitutional (Decision 71-44DC) some provisions of a law changing the rules for the incorporation of private nonprofit associations, because they infringed on freedom of association, one of the principles of the 1789 Declaration of the Rights of Man and of the Citizen; they used the fact that the preamble of the French constitution briefly referred to those principles to justify their decision. For the first time, a statute was declared unconstitutional not because it infringed on technical legal principles, but because it was deemed to infringe on personal freedoms of citizens. In 1974, authority to request a constitutional review was extended to 60 members of the National Assembly or 60 senators. Soon, the political opposition seized that opportunity to request the review of all controversial acts. In January 2005, Pierre Mazeaud, then president of the Constitutional Council, announced that the council would take a stricter view of language of a non-prescriptive character introduced in laws, sometimes known as "legislative neutrons". Instead of prescribing or prohibiting, as advocated by Portalis, such language makes statements about the state of the world, or wishes about what it should be. Previously, such language was considered devoid of juridical effects and thus harmless; but Mazeaud contended that introducing vague language devoid of juridical consequences dilutes law unnecessarily. He denounced the use of law as an instrument of political communication, expressing vague wishes rather than effective legislation. Mazeaud also said that, because of the constitutional objective that law should be accessible and understandable, law should be precise and clear, and devoid of details or equivocal formulas. The practice of the Parliament putting into laws remarks or wishes with no clear legal consequences has been a long-standing concern of French jurists. In 2004, one law out of two, including the budget, was sent to the council at the request of the opposition. In January 2005, Pierre Mazeaud, then president of the council, publicly deplored the inflation of the number of constitutional review requests motivated by political concerns, without much legal argumentation to back them on constitutional grounds. On 29 December 2012, the council said it was overturning an upper income tax rate of 75% due to be introduced in 2013. The council ruled on 28 March 2025 that politicians can be barred from office immediately if convicted of a crime, meaning opposition leader Marine Le Pen could be barred from the 2027 presidential election due to a embezzlement trial. ==Controversies==

In 1995, Roland Dumas was appointed president of the Council by François Mitterrand. Dumas twice attracted major controversy. First, he was reported as party to scandals regarding the Elf Aquitaine oil company, with many details regarding his mistress, Christine Deviers-Joncour, and his expensive tastes in clothing being published in the press. In this period, the council issued some highly controversial opinions in a decision related to the International Criminal Court, in Decision 98–408 DC, declaring that the sitting president of the republic could be tried criminally only by the High Court of Justice, a special court organized by Parliament and originally meant for cases of high treason. This, in essence, ensured that Jacques Chirac would not face criminal charges until he left office. This controversial decision is now moot, since the Parliament redefined the rules of responsibility of the president of the republic by the French constitutional law of 23 July 2008. In 1999, because of the Elf scandal, Dumas took official leave from the Council and Yves Guéna assumed the interim presidency. In 2005, the council again attracted some controversy when Valéry Giscard d'Estaing and Simone Veil campaigned for the proposed European Constitution, which was submitted to the French voters in a referendum. Simone Veil had participated in the campaign after obtaining a leave of absence from the council. This action was criticized by some, including Jean-Louis Debré, president of the National Assembly, who thought that prohibitions against appointed members of the council conducting partisan politics should not be evaded by their taking leave for the duration of a campaign. Veil defended herself by pointing to precedent; she said, "How is that his [Debré's] business? He has no lesson to teach me." In 2025, council president Richard Ferrand’s nomination by Emmanuel Macron was met with widespread criticism from the opposition and legal scholars due to his particularly close relationship with the president and limited legal training. He was confirmed by one vote. ==Membership==

, current President of the Constitutional Council The council is made up of former Presidents of the Republic who have chosen to sit in the Council (which they may not do if they become directly involved in politics again) and nine other members who serve non-renewable terms of nine years, one third of whom are appointed every three years, three each by the president of the republic, the president of the National Assembly and the president of the Senate. The president of the Constitutional Council is selected by the president of the republic for a term of nine years. If the position becomes vacant, the oldest member becomes interim president. Following the 2008 constitutional revision, appointments that the president of the republic makes to the council are subject to a parliamentary approval process, where the relevant committee in the Senate and the National Assembly votes on the appointee. If greater than three-fifths of the members of either committee vote against confirming the appointee, then the appointee must be withdrawn by the president of the republic. A quorum of seven members is imposed unless exceptional circumstances are noted. Votes are by majority of the members present at the meeting; the president of the council has a casting vote in case of an equal split. For decisions about the incapacity of the president of the republic, a majority of the members of the council is needed. Current members The members of the Constitutional Council are sworn in by the president of the republic. Former presidents have the option to sit if they choose to do so. Sitting members , the current sitting members of the Constitutional Council are: Non-sitting members , the following members do not sit but can if they choose to: President of the Constitutional Council , the following individuals have served as President of the Constitutional Council: } == Publications ==

The council created a periodical in 1996, , from October 2010 (No. 29) . This was done in view of a better communication over the council's decisions, especially following the 1993 controversy over the decision to strike down a government bill on the right of asylum, during which Prime Minister Édouard Balladur had publicly attacked the institution. Decisions of the council traditionally include an extremely short and purely formal judicial opinion, often relying of plain statements if not tautologies, leaving its rationale and its use of principles and precedents open to interpretation. Before 1996, secretaries general occasionally contributed articles in law reviews in order to clarify the council's intents. Starting in 1996, the "Decisions and Documents of the Constitutional Council" section included analyses of recent decisions, formally called "commentaries" from November 2008. Commentaries became extensive, widely read and used by the legal community and the media. They are written by the council's Legal Office and secretary general, and unsigned; they are not approved by the council itself, although the office and secretary general assist with the bulk of the legal research for its decisions. They do not have the force of law, although they are increasingly mentioned in arguments before the council, and occasionally in lower courts. They are however still commonly referred to as the " commentaries" (). The purpose of the , as summed up by its then-editor, was also to "express the policy of dialogue of the Constitutional Council with academia as well as with foreign courts". Each issue included a special feature, as well as an article on a foreign constitutional court, authored by legal scholars and researchers. With the separate publication of commentaries from 2010, it was more clearly turned into a law journal, upon which it became the . It ran until April 2018, with two to four issues every year, published both in print and online. In September 2018, it was succeeded by , named after title VII of the Constitution, which establishes the council. Publication is exclusively digital, on the council's website and on the Cairn.info portal. Two issues are published every year, in the spring and autumn. The council has released annual reports () since 2016, in French and English. ==Location==

The council sits in the Palais-Royal (which also houses the Ministry of Culture) in Paris near the Council of State. ==See also==