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

Abstract

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.

Dialogical Rule of Law and the Breakdown of Dialogue in the EU

“…There are now numerous examples: the Italian constitutional court that requests the ECJ to revisit the judgment in Taricco as it would lead to a breach of legal certainty in Italy; 112 the Danish supreme court has ruled that it does not see itself bound by 'general principles' following Kücükdeveci, 113 after the ECJ had rejected the reasoning the Danish court offered in its reference; 114 to a lesser extent, the forced mutual recognition of the EAW has also caused problems for the French constitutional council. 115 These cases may seem to the uninitiated a response by constitutional courts to growing euroscepticism, but in fact they are the culmination of a process that has been taking place behind the curtains for a while. It has been merely the fact that the main actors have been the German constitutional court, which has been known to be at least critical of letting go of the supremacy of its constitutional regime; 116 and the courts of relatively new additions to the Union in Poland and the Czech republic, that the breakdown of the dialogue has been able to be played down.…”

Ústavní soudy a předběžné otázky k SDEU: sofistikovaná strategie, nebo věc náhody?

“…V tomto ohledu lze ve vztahu k ústavním soudům odmítnout opačný předpoklad Bromberga a Fengera, který je zmíněný výše, tedy že rozdíly v počtu podaných otázek jsou zejména způsobeny rozdílným počtem řešených případů.112 Conseil constitutionnel. U ní dlouhou dobu platilo, že mohla přezkoumávat ústavnost legislativních aktů pouze ex ante, tedy v období mezi přijetím a vyhlášením textu vnitrostátního zákona 113. Přísné časové limity (měsíc či osm dní) přitom téměř znemožňují podání předběžné otázky SDEU 114.…”