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 theacte clairdoctrine 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), theConseil constitutionnelhad 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 placeex ante, between the adoption and the promulgation of a text. By opening the way to anex postreview 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. TheConseil constitutionnelmade this clear in 1975 and never seriously changed track, despite minor qualifications to the rule. In their seminalIVGruling 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, theConseil constitutionnelwas 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, theConseilreferred 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 arévolution de palaisthan a true revolution in French constitutional law.
François-Xavier Millet* There are instances in which judges prove to be philosophers without knowing it. One could wish that this happened more often when human rights are concerned. There is probably not enough thinking about the philosophy that actually underpinsor should underpinhard cases in the 21 st century. It is assumed that liberalism is the main underlying philosophy in Europe. It praises the multifaceted individual and values free choice. However, judges should always keep in mind where human rights come from, what conditions their exercise and what their function is in a democratic society. The burqaalso sometimes (and inaccurately) referred to as niqabraises key questions as to the competing concepts of rights and religious freedom in Europe. 1 The answer will vary according to one's point of view. For instance, a strictly liberal approach should not see major problems in wearing the full-face veil as long as it is the result of a free choice. For the libertarians, the burqa is most probably an acceptable garment inasmuch as it does not cause any harm to others. 2 Although they will start with utterly different philosophical premises, communitarians 3 1 On the different aspects of this issue, see D. Koussens and O. Roy (eds.), Quand la burqa passe à l'Ouest. Enjeux éthiques, politiques et juridiques (Presses universitaires de Rennes 2014). 2 See in general J. Brennan, Libertarianism: What Everyone Needs to Know (Oxford University Press 2012). For a forerunner of libertarianism, in connection with the so-called harm principle, see
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