Constitutional law final (L7-L12)

why are there 11 steps to pass a bill

rationalized parliament after 3rd/4th republics, but too inefficient: today, there is a need for a way to pass bills more efficiently

11 steps to pass a bill

1. bill drafted by the govt or private members

2. council of state

3. council of ministers

4. bill tabled before NA or Senate

5. standing committees

6. discussion in plenary sittings

7. amendments

8. adoption

9. possible referral to the CC

10. bill sent to the PR for promulgation

11. bill enters into force the following day of its publication in the official journal

article 39 FR

both the PM and MPs shall have the right to initiate legislation

—> ~80% of total bills come from the govt

pre-parliamentary stages of passing legislation

• initiated by govt or MPs (mostly by govt)

• govt bills discussed in council of ministers after consultation w/ council of state

• tabled in NA or Senate? If finance or social security, tabled before NA = better represents the taxpayer

  • govt bill has to annex an impact study to bills, to show expected benefits = to avoid practice of ministers bragging about (in fact useless) bills, like Debré’s speech after art. 34

  • Private Member bills tabled before the House of the member, can be inadmissible under art. 40 (if MP bill would result in less public revenue or more public spending) or art. 41 (if not a part of art. 34 or contract to a delegation under art. 38)

parliamentary stages of passing legislation

• examination in standing committees (8), major change in 2008: text discussed in Plenary sitting in both houses I no longer Govt bill but the text AMENDED, REDRAFTED BY THE COMMITTEE = more power to Parliament

  • Exception: if special bills (finance, social security, constitutional revision) = govt version

• govt can participate in committee works (art 31) and can raise art. 40 and 41 objections or add amendments

art 31 FR

the Government shall have access to both houses

= translates to prerogative to participate in committees when examining both Govt & Private member bills

determination of parliamentary agenda

used to be the prerogative of the Govt, but improved in 2008: 2 weeks out of 4, priority to the Govt, 1 week, priority to the Houses, 1 day of sitting per month: agenda determined by each House upon initiative of opposition groups

—> BUT Govt can always ask for priority, for finance, social security & state of emergency bills to be on the agenda

rationalization of parliament in process of passing legislation

many exceptions given to finance, social security, and in some cases state of emergency or constitutional revision bills = e.g. Govt’s version is reviewed in standing committees (not revised, redrafted Parliament version), exception to default timetable for discussion if accelerated procedure for these special bills

—> MAIN ARTICLES: 44§3 & 49§3 = legislative process is streamlined by the govt

Govt prerogatives during discussion of bills

right to amend (art 44), right to address either House whenever they request (art 31), inadmissibility (40, 41), withdrawal of a bill, accelerated procedure

art 44 FR

§1: MPs and the govt have the right of amendment
§3: vote bloqué (v dangerous!) Govt can call a vote on all or a part of the text, on the sole basis of the amendments of the Govt = avoid MPs debating each paragraph, take it or leave it

joint committee

called when it is impossible to pass a bill or if the govt has triggered accelerated procedure, then proposes a text on the provisions still under debate
= govt is a key player: no amendment shall be admissible w/o the consent of the Govt
—> if joint committee fails, NA may reach final decision

art. 24 FR

Parliament’s role: Parliament shall pass statutes. It shall monitor the action of the Government. It shall assess public policies.

written questions

MPs can ask a minister any question that relates to their portfolio, minister has 2 months to reply, both Q&A are published in the Journal officiel
—> recently, huge increase in number, not rly j about controlling the govt anymore

oral questions

during at least one sitting per week, either w/ or w/o debate —> w/ debate, forbidden to end w/ a vote (could lead to too easily overthrowing the govt, like 3rd and 4th Reps)

questions to the government

every week, on TV = very successful and efficient as MPs want to show constituents they’re doing a good job, most interesting and most used form of questioning, Q are asked in real time

EU resolutions

Govt lays before the Houses drafts of EU legislative acts (88-4: + committee for European affairs), Houses can pass EU resolutions to weigh in on governmental action… but merely influential, not binding on the Govt

how is EU law actually passed?

only EU commission can initiate bills, but co-decision: EU parliament must agree to bills
—> national parliaments don’t directly intervene but can weigh in during drafting, often through their Govt who actually has a role in the EU

art 88-6 FR

FR Parliament can challenge EU law on the principle of subsidiarity, saying it would be better at the national level

art. 34-1 FR

added 2008, to end the habit of passing Statutes devoid of binding effect (legislative “neutrons”), doesn't have full legal force like statutes, but can morph into one

—> if an issue of confidence, not included (prevent practice of 3rd and 4th where resolutions exerted a lot of pressure on the Govt)

inquiry committees

created at the initiative of the MPs, created unless 3/5 refuses, 6 month limit, cannot inquire into facts which an investigative judge is doing (SoP), rapporteur can subpoena docs and people, but PR cannot be summoned
—> committee drafts a report: can lead to changes in the law

art. 35 FR

A declaration of war shall be authorized by Parliament. YET this article is almost never applied…

1. modern warfare: defensive, in a nuclear war, no time = PR uses art. 16 to be swift

2. if authorized under Chpt VII of UN Charter = not under art. 35, Security Council Resolution takes precedence

information missions

successful as easy to create, but limited investigative powers compared to inquiry committees, e.g. Rwanda 1998

Cour des comptes (audit court)

assists Parliament in monitoring Govt action: implementation of France & Social Security Acts through public reports (did the govt spend public funds wisely?)

art 50-1

Govt declaration, then each House votes and can express their opinion on policies, but can’t lead to issue of confidence

—> similar purpose to 34-1, gives Parliament tool to convey a stance w/o passing a legislative neutron

motion of no confidence (art. 49)

49§1: Govt gives general policy statement, PM can decide to make it an issue of confidence (some govts do, some don’t, Borne chose not to)
49§2: NA passes motion of no-confidence, needs 1/10 members to table, then maj. of members = 289, almost impossible (abstentions deemed to support Govt)
49§3: PM can make passing finance or social security bill an issue of no confidence, passes unless resolution is tabled within 24 hours and passed

art 16 FR

PR exceptional powers: “Where the institutions of the Republic, the independence of the Nation, the integrity of its territory or the fulfillment of its international commitments are under serious and immediate threat…”

REQUIRES formal consultation of the PM, the PR of both Houses & the CC, Parliament shall sit as of right = the NA shall not be dissolved

art 36 FR

triggers a state of siege, by the exec in the Council of Ministers, continuation after 12 days requires Parliament’s assent BUT has never acc been triggered

state of emergency (statutory law of 1955)

different from PR exceptional/emergency powers, has same triggering conditions as the state of siege, Parliament determines its duration = most widely used during serious breaches of public order, e.g. after Paris Bataclan attacks 2015 and during Covid

are there judicial checks under art. 16?

CC must be consulted, but PR isn’t bound by their decision, however still politically salient as it is well-reasoned & publicized in Journal officiel

—> Conseil d’État said its a political question so not justiciable

—> After DG used for 5 months in 1961 unnecessarily, 2008 amendment: after 30 days, can be referred to CC if still necessary, after 60 days, CC can ex officio (as of right) check if still necessary

how do emergency powers increase the power of the exec? + examples from covid and 2015 terrorist attacks

depending on severity of the threat, legislative & judicial prerogatives may be vested in the exec

COVID: after triggering state of emergency, PM could limit freedom of movement w/ sanctions

2015: Départements could forbid demonstrations of any kind, restrict freedom of movement, allow administrative searches (w/o being authorized by a judge)

procedural checks on emergency powers

majority of Constitutions state that a state of emergency will lapse after a definite period of time, if it isn’t appropriately renewed by the legislature (e.g. 2015-2017 FR: extended many times) = can threaten FR

substantive checks on emergency powers (political + legal check)

political check: opposition can contend that emergency powers are no longer needed (art. 50: if motion of no confidence is passed, PM will tender resignation of his Govt)

legal check: Courts through judicial review, prohibit any derogation from absolute rights (torture, slavery, punishment w/o law = art 15 ECHR)

substantive checks on emergency powers: proportionality

art 4 of ICCPR: derogations should only be those STRICTLY REQUIRED by the situation = proportionality test, w/ a minimal impairment of rights

substantive checks on emergency powers: America as an example (Rasul v Bush, Hamdi v Rumsfeld, Hamdan v. Rumsfeld, Boumediene v Bush)

Guantanamo bay… series of cases in which Court checked suspension of habeas corpus:

Rasul v Bush: foreign nationals have right to habeas corpus (even w/o citizenship)

Hamdi v Rumsfeld: “enemy combatants” have the right to habeas corpus

Hamdan v Rumsfeld: special tribunals created by Bush administration were insufficient under Geneva Convention & art 5

Boumediene v Bush: detainees have a right to habeas corpus (even if alien enemy combatants) = affirmed supremacy of the Constitution and judiciary’s role as an enforcer of SoP

proposed solution to life tenure SCOTUS

Pres commission on the SC: 18 years in office, 1 member appointed every 2 years (to prevent irregularities: Trump 3 in 1 term, Obama 2 in 2 terms)

court packing SCOTUS

Congress can change the number of Justices —> e.g. FDR attempt in 1937, so he could appoint 1 judge for each who was over 70 years old (to tilt Court in his favor) however rejected

—> BUT Court did switch jurisprudence in West Coast Hotel case to permit one of his policies to go into effect = “the switch in time that saved nine”

selection and confirmation processes SCOTUS

to guarantee political considerations are taken into account… unfortunately April 2017: Republican Senate killed filibuster rule (60 votes) for SC nominations = Gorsuch, Kavanaugh, Barrett & Jackson all confirmed w/ less than 60 votes

independence SCOTUS

Framers wanted to insulate federal Courts from majoritarian control = Federalist no. 78, life tenure during good behavior as a barrier against encroachments & oppressions of the legislature = could ensure impartial administration of the law

CC composition, term & appointment

composition: former PRs are ex officio life members, but currently no former PR in it, next amendment contemplates ending it

term: non-renewable 9 years

appointment: 3 by PR (+ PR who has tie breaking vote when members abstain), 3 by PR of Senate & 3 by PR of NA

CC independence

to be a member of CC, can’t have an electoral mandate (MP), can’t be a minister, can’t be member of Econ, Social and Environmental council, no public function or any professional activity (except literary & artistic work), can’t be attorneys at the same time (but many are after), have to keep information privileged (less openly politicized as US)

CC impartiality

• take an oath before the PR to abide by constitution, keep deliberations privileged, can’t speak out on matters of public debate related to their function

• must withdraw from cases where their impartiality isn’t guaranteed = e.g. QPC 2023 where Sarkozy & Fillon were petitioners = a former advisor to Fillon recused themself

marshall on judicial review (Marbury v Madison) quote

“It is emphatically the province and duty of the judicial department to say what the law is.”

Hamilton on judicial review (federalist paper 77-78) quote

“Every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void (…) To deny this, would be to affirm, that the deputy is greater than his principal.”

diffused judicial review in the US

every court can review BUT SCOTUS has final word, mostly abides by stare decisis, lots of cases involving whether state law is compatible w/ federal law (esp the C)
—> Martin v. Hunter’s Lessee (1816) asserted ultimate Supreme Court authority over state courts when interpreting federal law

jurisdiction of SCOTUS

only original subject matter jurisdiction if affecting Ambassadors, public ministers, consuls, or where a State is a party = 95% is appellate jurisdiction by writ of certiorari, assent of 4 justices to hear cases (hears less than 15% asked each year)

political question doctrine

Baker v. Carr (1962): SoP, court won’t hear cases in which there is:

• a commitment of the issue to anther branch

• a lack of standard for resolving the issue

• the impossibility of resolving the case w/o making a policy determination

• the political decision already made = lack of respect frothier branches

• potential for multiple pronouncements by various branches on the question

FR: initial reluctance of judicial review

because of the “infallibility of the will of the people” (Rousseau) = people are rational, Parliament can’t get it wrong so shouldn’t be second-guessed by judges
—> also historical mistrust of judges and their tendency to acquire power during Ancien Regime

art 61-1

reform 2008, created QPC = ex post Constitutional review

ex ante review of institutional acts CC?

yes, can be referred to CC, an institutional act can be downgraded to an ordinary law

ex ante review of ordinary statutes CC + EU transposition?

CC can provide guidelines when ruling a law as unconstitutional for what is necessary… EU transposition? DC June 2004: not CC’s jurisdiction but for the ECJ under Foto-Frost, HOWEVER DC July 2006: if it would conflict with an inherent principle of France’s constitutional identity, CC would review —> QPC Oct 2021 Air France

what are QPCs for?

in concreto, based on case law (also by Cour de Cassation & Conseil d’État), about whether statute conflicts w/ fundamental rights and freedoms enshrined in Constitutional Bloc

CC control of referendum

CC oversees the voting process by means of its delegates, examines claims & proclaims results, can annul partially or wholly the election

—> art 11§3: referendum concerning subject matter from §1 can be referred to CC, if it is in the subject matter or if it might result in an unconstitutional provision

fundamental rights vs public liberties

FR: protected at the constitutional or international (EU) level = supra-legislative, to protect against ANY abuse of power from ANY branch, can be claimed by legal and natural persons (Citizens United v FEC 2010)

public liberties: protected by the legislature (through Statutes) intended to bar exec overreach, can only be claimed by natural persons (e.g. freedom of assembly, demonstration—> many have become fundamental liberties)

is there a hierarchy of FR?

in France, no as CC is inconsistent, depends on level of scrutiny HOWEVER in times of emergency, only some FR can be derogated from (art 15 ECHR)

scope of FR protection

has become much broader, vertical and horizontal, esp w/ 2nd generation of rights: positive duty, e.g. right to employment (but not protected as much in US as in the EU) = primarily restrains the government (not so much private individuals)

why are FR beyond the reach of political majorities (leg & exec)?

because original constituent power (Constitution) & international community (ECHR, EUCFR) have decided to secure certain values at a higher level

how to review the conformity of a statute that restricts FR (both at Constitutional and European levels)

is the restriction proper to achieve its goal, is it necessary and narrowly-tailored, are the means proportionate to the aim

differences in protection of FR between Constitutional and European levels + example

ECtHR: will secure minimal level of protection, but when national identity is involved, Court shows restraint = e.g. less prone to harmonization when involving religious freedoms, gives broader margin of appreciation
—> ex: ECtHR GC Lautsi v. Italia 2011, whether crucifixes should be present in State schools, no European consensus on the question = decided this was within margin of appreciation of the State

national protection of FR

national courts check that FR are sufficient protected during litigations, are they compatible w/ those secured at treaty/Constitutional level

monism vs dualism

monism: national & international law are in the same national legal order (most states, Kelsen)
dualism: national & international law are in 2 separate legal realms, can only invoke treaty provisions AFTER they’re transposed into national law (UK)

US qualified monism

self-executing provisions of treaties override State law, EARLIER federal legislation…. HOWEVER domestic effects can be undone by LATER federal legislation

cour de cassation Jacques Vabre 1975 + conseil d’état Nicole 1989

litigants can raise a claim of incompatibility of a statute with an international treaty before judicial courts…
Clear primacy of international law over both previous and subsequent FR law

= reiterated by Conseil d’état in Nicolo = can even set aside statute incompatible w/ treaty if enacted after = no lex posterior rule (supremacy of later law)

what is the domestic court’s main responsibility regarding FR

to apply FR of the Convention in their jurisdiction, the quicker the better = ideally from the outset to the end = however the Court instituted by that treaty can review member State’s interpretation, e.g. ECtHR review how state interpret ECHR

ECJ Costa v ENEL 1964

established principal of direct effect: individuals can invoke EU law before national courts, w/o waiting for transposition, EU is Sui generic legal order = no lex posterior rule
= a domestic subsequent MS law incompatible w/ community law cannot prevail = primacy upheld in Simmenthal 1978

ECJ Foto-frost 1987

ECJ has exclusive jurisdiction to declare an EU act invalid = supremacy of ECJ

ECtHR Proportionality test

1. applicability of the right?

2. interference w/ a right?

3. was the interference justified?

   1. prescribed by law

   2. did it pursue a legitimate aim (e.g. to prevent disorder, to protect another right)

   3. was it necessary & proportionate, concrete analysis w/ specific facts of the case

how ECtHR proportionality test reshape national court control? example

Conseil d’État Gonzalez-Gomez May 2016: Spanish citizen living in France stored gametes in a French hospital, husband dies but wife still wants to have the baby = under FR law, illegal after death, under Spanish, ok for 1 more year
—> Petitioner moves back to Spain but France refuses to transfer gametes = Conseil d’État said that the application of French law to the case was inconsistent w/ privacy under art. 8 ECHR = concrete analysis
—> Gametes transferred to Spain within 7 days

emergency review of FR EU

specific mechanisms for urgent judicial proceedings to give a decreee within hours/days when fundamental rights are at stake = necessitates a fully independent judiciary

emergency review of FR France

art 521-2 Code of administrative justice: if urgent case about serious infringement of fundamental freedoms, urgent applications judge will make a ruling within 48 hours = so far Conseil d’État has recognized 39 fundamental freedoms through this, last one was right to a healthy environment in 2022, Court can order “all measures required” = broad

art 39 Rules of the Court (ECtHR)

interim measures to protect FR: ECtHR can order to parties any interim measure, which are binding

use of EU competences is governed by what principles? (art 5 TEU)

• conferral: if a competence is not conferred upon the EU, then it remains with the MS

• subsidiarity: EU only acts insofar as objectives can’t sufficiently be achieved by MS

• proportionality: Union actions shall not exceed what’s necessary to achieve the objectives of the treaty

EU Parliament

• directly elected by EU citizens every 5 years

• representation is proportional, floor of 6, cap is 96

• exercises legislative, budgetary functions, political control & consultation

The European Council

• defines the general political directions and priorities of the EU (no legislative functions)

• consists of heads of state or govt of MS

Council of the EU

• jointly with Parliament, exercises legislative & budgetary functions, carries out policy-making

• consists of MS ministers

European Commission

• 27 commissioners (1/MS) decide on Commission’s political & strategic direction

• Exclusive right to initiate legislation

• supervises the execution of EU law, ensures external representation of the EU

ECJ

• ensures interpretation and application of the treaties

• consists of 1 judge from each MS, assisted by 11 advocate-generals

constitutional amendment of June 1992

• result from CC DC April 1992: authorization to ratify Maastricht was conditional upon amendment to the C (previously, didn’t amend C for treaties)

• inserted 88-1 to 88-4: Title XV for the EU

• modified art 54: 60 MPs can ask CC to rule on Constitutionality of a treaty

constitutional amendment of March 2005

“Any government bill authorizing the ratification of a treaty pertaining to the accession of a state to the European Union shall be submitted to referendum by the president of the republic”
—> in light of Constitution for Europe, CC 2004 DC, French fears of Turkish accession, BUT may 2005 referendum: still said no
—> 2008 amendment: former can be bypassed by a 3/5 majority in both houses

CC DC 27 July 2006, Copyright & related rights

Because of art 88-1 (participation of the Republic in the EU) “the transposition of a Community Directive into domestic law thus complies with a constitutional requirement;”
—> The CC is under a duty to comply with this requirement; the review it carries out however has a twofold limitation:

1. ”the transposition of a Directive cannot run counter to a rule or principle inherent to the constitutional identity of France, except when the constituting power consents thereto;”

   1. Oct 2021 QPC Air France: identified inherent principle under art. 12 DRMC, cannot delegate to private entities police powers i.e. ‘public force’

2. bc the CC cannot request a preliminary ruling from the ECJ & the CC's limited time to give a ruling, it can only find a statutory provision unconstitutional if it obviously incompatible w/ directive it's meant to transpose

ECJ Melki & Abdeli June 2010

On referral from Cour de Cassation, ECJ ruled:

1. QPC was compatible w/ EU law insofar as courts can at any moment refer a preliminary question to the ECJ (before the QPC existed)

2. QC was not in conflict w/ EU law insofar as National court shall not apply a provision inconsistent w/ EU law

QPC Jeremy F. April 4 2013 referred by CC to ECJ

• when it came not to checking validity but how to interpret an Eu act, CC for the first time referred the question to the ECJ

• As regards the European arrest warrant, is the prohibition any appeal necessary implied by EU law?

• ECJ held no, enabled CC to render a decision striking down the statute that reflected this = dialogue of judges