Adjudicating Europe

Since 1 March 2010 ordinary courts in France can challenge conformity of legislation to the French Constitution in a special form of procedure called “la question prioritaire de constitutionnalité” (QPC, translated as “a priority preliminary ruling on constitutionality”). This Reform is now going to be examined by the European Court of Justice through a reference for preliminary ruling made by the French Cour de cassation.

The Reform
We know of only one article published in English that deals with this truly groundbreaking constitutional reform – Federico Fabbrini’s “Kelsen in Paris”. A good deal of information can be found in French at the Cour de cassation’s website and also in the Constitutional Council’s decision No 2009-595 DC of 3 December 2009, which reviewed the Institutional Act (Loi organique) No 2009-1523 of 10 December 2009 that implemented the Reform with effect from 1 March 2010.

The Reform is based on Article 61-1 of the French Constitution [pdf], inserted by Constitutional Act No 2008-724 of 23 July 23 2008:
When during proceedings before a Court of Law, it is claimed that a statutory provision infringes the rights and freedoms guaranteed by the Constitution, a referral may be made to the Constitutional Council by the Conseil d’Etat or the Cour de cassation, and the Constitutional Council shall give its ruling within a specified time.

Institutional Act No 2009-1523 implements Article 61-1 of the Constitution. It amends, among other things, Ordinance No 58-1067 of 7 November 1958 (Institutional Act on the Constitutional Council - [pdf]). Its Article 23-1, second paragraph, which concerns lower courts, now provides:
In all events, the court involved must, when confronted firstly with arguments challenging the conformity of a statutory provision with the rights and freedoms guaranteed by the Constitution and secondly with the international commitments entered into by France, rule in priority on the matter of the transmission of the application for a priority preliminary ruling on the issue of constitutionality to the Conseil d’Etat or Cour de cassation.

Constitutional questions can be raised before the supreme jurisdictions too. Article 23-5 of the Ordinance, second paragraph, provides:
In all events the Conseil d’Etat or Cour de cassation must, when asked to rule on arguments claiming firstly that a provision infringes the rights and freedoms guaranteed by the Constitution, and secondly that it runs counter to the international commitments entered into by France, rule in priority on the transmitting to the Constitutional Council of the application for a priority preliminary ruling on the issue of constitutionality.

The Challege(s)
Compatibility of the Reform with EU law was questioned with regard to the prescribed priority of review of constitutionality (contrôle de constitutionnalité) over the review concerning conformity with international obligations (contrôle de conventionnalité), including EU law. In essence, French courts are required to firstly submit the QPC to the Constitutional Council (in case of lower courts through the supreme jurisdictions) and only then to consider possible conflicts with EU law. This can be in tension with the requirements imposed by the ECJ in Simmenthal, according to which
a national court which is called upon , within the limits of its jurisdiction, to apply provisions of Community law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation, even if adopted subsequently, and it is not necessary for the court to request or await the prior setting aside of such provision by legislative or other constitutional means.

This question is already pending before the Court of Justice (Case C-457/09 Chartry [pdf]). It concerns the system of constitutional review introduced recently in Belgium. It was also raised before the Constitutional Council, which responded in the decision mentioned above (in para. 14):
This priority merely results in specifying the order in which the arguments raised before the court to which the matter is referred be examined. It does not restrict the jurisdiction of said court, once the provisions pertaining to the priority preliminary ruling on the issue of constitutionality have been complied with, to ensure the superiority over national laws of legally ratified or approved treaties or agreements and norms of the European Union.

Nevertheless, two weeks ago the Cour de cassation referred to the ECJ a different question. The reference can be found in French here [pdf], there is an interesting discussion on it at BLOG FRANCAIS DE DROIT CONSTITUTIONNEL. The ECJ has not published it yet.

The Cour asks whether Article 267 TFEU precludes national legislation which would impose on ordinary courts an obligation to decide first, on submitting a question of constitutionality to the Constitutional Council, which was raised before them, if this question concerns a conflict between the provision of domestic law and the Constitution, because it is contrary to EU law?

The part of the last sentence put in italics can sound incomprehensible - is it a conflict with the Constitution or EU law? However, that is the heart of the controversy concerning the reference. The Cour turns a question of conformity with EU law into a question of conformity with the Constitution, namely its Article 88-1, according to which
The Republic shall participate in the European Union constituted by States which have freely chosen to exercise some of their powers in common by virtue of the Treaty on European Union and the Treaty on the Functioning of the European Union, as worded pursuant to the Treaty signed in Lisbon on December 13th 2007.

However, there has been much debate whether Article 88-1 works in this way – whether it really turns questions of compatibility with EU law into questions of conformity with Article 88-1 of the Constitution (thus giving the Constitutional Council the jurisdiction to review domestic laws for their conformity with EU law - see particularly Chloé Charpy, ‘The status of (secondary) Community Law in the French Legal Order: The recent case law of the Conseil Constitutionnel and the Conseil D’Etat’, [2007] 3 European Review of Constitutional Law 436). The Cour de cassation may be well misinterpreting the actual jurisprudence of the Constitutional Council – which, however, has very little means to react, since there is no appeal from the Cour to it (does it remind you of anything?:-)

Two prominent French professors, Guy Carcassonne and Nicolas Molfessis, reacted with anger in this article published in Le Monde, comparing the Cour to the pre-revolutionary Parlements d’Ancien Régime (which became infamous for legislating from the bench and provoking - according to some narratives - the reaction of the French revolutionaries who wanted to turn all courts into law-applying machines). Carcassonne and Molfessis contend:
This “instrumentalization” of Community law contains an unwritten message: the Cour de cassation does not want the Constitutional Council to assess constitutionality of laws. Undoubtedly, the Cour fears, but it is hard to understand why, losing its prestige. This fear is striking even more as the Council of State does not share it and is already playing active role in the reform.

The French government will probably try to persuade the ECJ that the Cour de cassation misconstrued the French legislation on QPC, however, as is well known, the European Court is bound by the interpretation of national law provided by the referring court. So, let’s see.