Electronic copy available at: http://ssrn.com/abstract=1929807Electronic copy available at: http://ssrn.com/abstract=1929807
1
The Melki Way: The Melki Case and
Everything You Always Wanted to Know
About French Judicial Politics (But
Were Afraid to Ask)
Arthur Dyevre
Max Planck Institute for International and Comparative
Public Law
Im Neuenheimer Feld 535
69120 Heidelberg
Germany
arthurdyevre@hotmail.com
Abstract
Both the ECJ Melki ruling and the new French system of priority constitutional
referral have received considerable scholarly attention, whether from the
perspective of EU law or from that of domestic or comparative constitutional law.
This paper looks at the Melki story primarily from the standpoint of domestic
judicial politics. The decision of the Cour de cassation to send a reference for a
preliminary ruling to the judges in Luxembourg on the conformity of the new
interlocutory procedure with EU law cannot be separated from the context in which
it occurred. Nor can the strong reactions that it elicited be properly understood
without examining the background of the constitutional reform and the role which
EU law and the ECHR have come to play in the French legal system. As what was
initially a modest reform was successfully reframed by the Council and its allies in
the legal academy as a “legal revolution” promising to bring human rights back to
its homeland, the new concrete review mechanism posed a growing threat to the
Cour de cassation‟s influence. The reform, it is argued, threatened to undermine
not only its grip on the lower civil courts but also to chip away at the considerable
autonomy it had enjoyed in developing ECHR law in the French context. In these
circumstances, the Melki reference may be viewed as a last-ditch (and with
hindsight poorly judged) attempt to use EU law to derail a reform that was on its
way to reconfigure inter-court relations in France at the expense of the Cour de
cassation. With the Melki route – killing the priority referral mechanism by
dragging the ECJ into the domestic “guerre des juges” – blocked, the Court is now
isolated and under pressure to apply the new procedure in a way that is more
favourable to the Constitutional Council.
Electronic copy available at: http://ssrn.com/abstract=1929807Electronic copy available at: http://ssrn.com/abstract=1929807
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1. Introduction
Both the ECJ Melki ruling1 and the new French system of priority
constitutional referral have received considerable scholarly attention,
whether from the perspective of EU law2 or from that of domestic or
comparative constitutional law.3 This paper looks at the Melki story
1 Cases C-188/10 and C-189/10, Aziz Melki and Selim Abdeli [2010] ECR 00000.
2 Florence Chaltiel, „La Cour de justice de l'Union européenne poursuit le dialogue sur les
rapports entre conventionalité et constitutionnalité (A propos de CJUE, 22 juin 2010)‟ (2010)
153-154 Petites affiches 6 ; Caterina Drigo „La Corte di giustizia riafferma il proprio primato: la
questione prioritaria di costituzionalità al vaglio dei giudici di Lussemburgo‟ [2010] Diritto
pubblico comparato ed europeo 1484 ; Asteris Pliakos, „Le contrôle de constitutionnalité et le
droit de l'Union européenne: la réaffirmation du principe de primauté‟ [2010] Cahiers de droit
européen 487 ; Daniel Sarmiento, „Cuestión prejudicial y control previo de constitucionalidad.
Comentario a la sentencia Melki del Tribunal de Justicia de la UE‟ (2011) 37 Revista española
de Derecho Europeo 97 ; Fabrice Picod, „Question prioritaire de constitutionnalité et droit de
l'Union européenne‟ (2010) 509 La Semaine Juridique - édition générale 949 ; Denys Simon and
Anne Rigaux, „La priorité de la question prioritaire de constitutionnalité : harmonie(s) et
dissonances(s) des monologues juridictionnels croisés‟ (2010) 29 Les Cahiers du Conseil
constitutionnel 63 ; Denys Simon and Anne Rigaux, „Le feuilleton de la question prioritaire de
constitutionnalité: Drôle de drame, Quai des brumes, Le jour se lève?‟ [2010] (6) Europe 1 ;
Sinisa Rodin, „Back to Square One – Past, Present and Future of the Simmenthal Mandate‟
(2011) 40 Documentos de Trabajo CEU 1,19.
3 Gerald L. Neuman, „Anti-Ashwander : Constitutional Litigation as a First Resort in France‟
(2010) 43 N.Y.U. J. Int'l L. & Pol. 15 ; Jérôme Roux, „La Cour de justice et le contrôle incident de
constitutionnalité des directives de l'Union : remarques sur un obiter dictum‟ [2010] Recueil
Dalloz 2524 ; Bertrand Mathieu, „La Cour de cassation tente de faire invalider la question
prioritaire de constitutionnalité par la Cour de Luxembourg‟ (2010) 464 La Semaine Juridique
4
primarily from the standpoint of domestic judicial politics. The decision of
the Cour de cassation to send a reference for a preliminary ruling to the
judges in Luxembourg on the conformity of the new interlocutory procedure
with EU law cannot be separated from the context in which it occurred. Nor
can the strong reactions that it elicited be properly understood without
examining the background of the constitutional reform and the role which
EU law and the ECHR have come to play in the French legal system. As
what was initially a modest reform was successfully reframed by the
Council and its allies in the legal academy as a “legal revolution” promising
to bring human rights back to its homeland, the new concrete review
mechanism posed a growing threat to the Cour de cassation‟s influence. The
reform, it is argued, threatened to undermine not only its grip on civil courts
lower in the hierarchy but also to chip away at the considerable autonomy it
had enjoyed in developing ECHR law in the French context. In these
circumstances, the Melki reference may be viewed as a last-ditch (and with
hindsight poorly judged) attempt to use EU law to derail a reform that was
on its way to reconfigure inter-court relations in France at the expense of
the Cour de cassation. With the Melki route – killing the priority referral
mechanism by dragging the ECJ into the domestic “guerre des juges” –
blocked, the Court is now isolated and under pressure to apply the new
procedure in a way that is more favourable to the Constitutional Council.
866 ; Philippe Manin, „La question prioritaire de constitutionnalité et le droit de l'Union
européenne‟ [2010] L'Actualité Juridique Droit Administratif 1024.
5
In reconstructing (and to some extent debunking) the Melki story, I
first stop at its main protagonists and figures, which include judicial as well
as non-judicial actors. Next, I describe what the constitutional status quo
was prior to the introduction of concrete review by the constitutional
revision of July 2008. In the section that immediately follows, I then discuss
how the reform might have developed had it not been “hijacked” by the
Constitutional Council and the constitutional law professors‟ lobby. In the
last three sections, I chart the succession of events that culminated in the
ECJ Melki judgment, from the adoption of the organic law implementing the
new Article 61-1 of the Constitution to the Cour de cassation‟s final decision
on the merits. Especially striking is the short timeframe and the pace at
which the courts – domestic and supranational – responded to each other‟s
move when the application of the priority referral mechanism was in its
early stage and early jurisprudential pronouncements were likely to shape
its future development in decisive manner.
2. A Multi-Character Story
The Melki story features a rich collection of characters appearing at
different points in the unfolding legal-political drama. Judicial actors have,
of course, assumed centre-stage. The Cour de cassation, the French supreme
court for civil and criminal law matters, is for many – and for French
constitutional scholars in particular – the main villain in the plot. On the
other hand, the Constitutional Council and the Conseil d’Etat, the supreme
court for administrative issues, are supposed to be the great heroes of the
constitutional saga. Somewhat reluctantly drawn in the domestic judicial
6
battle, the Court of Justice – the supranational guest star, as it were, in
what is still primarily a French production – makes an important
appearance but as a rather ambiguous character, sometimes viewed with
suspicion. Moreover, without really showing its face in any act of the play,
the European Court of Human Rights (ECtHR) remains an invisible
presence in the controversy over the role of supranational law in the French
legal system.
Not to be overlooked, however, is the part played by non-judicial
actors in the reconfiguration of French judicial politics, which constitutes
the backdrop of the Cour de cassation‟s reference to the ECJ. That the law
professoriate often acts as a kind of specialised interest group promoting its
own legal agenda is not exactly a novel proposition in European Union
studies.4 Yet the public debate surrounding the adoption of the priority
referral mechanism and the Cour de cassation‟s behaviour in dealing with it
shows that what holds for EU law scholars holds equally well for French
constitutional law professors. Expanding the influence of the Constitutional
Council was in their own interest as constitutional law “experts”. So it
should come as no surprise that the most prominent among them proved
4 See Martin Shapiro and Alec Stone, „The new constitutional politics of Europe‟ (1994) 26
Comparative Political Studies 397, 415 (characterizing legal scholarship as a form of “highly
specialized lobbying”); Harm Schepel and Rein Wesseling, „The Legal Community: Judges,
Lawyers, Officials and Clerks in the Writing of Europe‟ (1997) 3 European Law Journal 165
(documenting the close links between EU institutions and EU law scholars).
7
ardent advocates of the new procedure.5 Enjoying comparatively better
access to the media than other legal academics (who might have been less
enthusiastic about the reform), they worked relentlessly to praise, to
celebrate, and to promote the new procedure. Along with Profs. Guy
Carcassonne, Dominique Rousseau and Olivier Duhamel (three of the most
frequent legal contributors to Le Monde, the influential Parisian
newspaper), the likes of Bertrand Mathieu (president of the French
association of constitutionalists), and Jean-Claude Colliard (who in addition
to his academic credentials is a former member of the Constitutional
5 This appears to confirm the hypothesis that when a court‟s jurisdictional specialization is
congruent with the specialization of a sub-section of the law professoriate the former‟s and
latter‟s interests will converge. The fact that in the Kelsenian model judicial review is
entrusted to a constitutional court rather than to a supreme court with a more
comprehensive subject-matter jurisdiction means that its institutional interests are more
likely to be aligned with the section of the legal academy called on to comment on its
operations. The relative cosiness that characterises the relations between constitutional
law scholars and constitutional courts across much of Europe is further reinforced by the
fact that law professors are in a privileged position to fill vacancies on these courts. A
scholar will be less inclined to criticise an office to which she herself aspires. For an
argument to that effect in the German context see Bernhard Schlink, „German
Constitutional Culture in Transition‟ (1993) 14 Cardozo Law Review 711. For a tentative
theorisation of the connection between public opinion, legal scholarship and judicial power
see Arthur Dyevre, „Unifying the Field of Comparative Judicial Politics: Towards a General
Theory of Judicial Behaviour‟ (2010) 2 European Political Science Review 297, 320-323. At
a more general level, this fits the theory of interest-group mobilisation developed by Nobellaureate
Mancur Olson in The Logic of Collective Action (Harvard University Press,
Cambridge (Mass.), 1965).
8
Council) did much to raise expectations about the impact of the reform; and
were, of course, the first to lambaste the Cour de cassation when it appeared
to stand in the way of the great constitutional revolution.6
Finally, we should not forget the legislative branch and in particular
the Legal Affairs Committees in the two parliamentary chambers, the
Senate and the National Assembly. As gate-keeper and agenda-setter, the
Committees and their respective chairman – Hughes Portelli and Jean-Luc
Wasserman – played a key role in the implementation of the constitutional
reform. More crucially for the equilibrium shift in the French judiciary that
would ensue, Parliament – captured by those favourable to the expansion of
the Constitutional Council‟s remit – reacted swiftly to what had then come
to be described as the systematic sabotage of the reform by the Cour de
cassation. As we shall see, the threat of legislative override is now a sword
of Damocles hanging over the Court. Next time around, its judges will no
doubt think twice before defying the Constitutional Council.
3. The Constitutional Status-Quo
By their very nature, institutional reforms redistribute powers and create
winners and losers with gains and losses commensurate to the importance
of the reform.
6
Unsurprisingly, the EU-law commentariat took much less disapproving a view of the Cour
de cassation’s behaviour throughout the Melki saga. See e.g. Denys Simon and Anne
Rigaux, note 2; Jacqueline Dutheil de la Rochère, „La question prioritaire de
constitutionnalité et le droit européen‟ (2010) 46 Revue Trimestrielle de Droit Européen
577.
9
3.1. Institutional Limits on the Expansion of Constitutional Law
Who stood to win most from the introduction of concrete review in the
French legal system? The Constitutional Council, of course. Under the
constitutional status quo, the French provision for the judicial review of
legislative acts was arguably the most restrictive, in procedural terms, when
compared with those existing for other European constitutional courts.
First, only politicians (MPs, Prime, Minister, President of the Republic, etc.)
could refer laws to the Council. Second, statutes could be reviewed only
before promulgation. Thus a bill once promulgated could no longer be
challenged on constitutional grounds. These limitations, however, did not
prevent the Council to emerge from a position of relative obscurity at the
beginning of the Fifth Republic to become a key player in the legislative
process.7
The rise of the Council is precisely what made possible the resurgence
of constitutional law scholarship as the leading sub-field within public law
(droit public). Because the supreme administrative court, the Conseil d’Etat,
was the judicial body dealing with public law matters, the leading scholarly
figures of public law were primarily specialists of the Conseil d’Etat‟s
jurisprudence. In fact, constitutional law could hardly pretend to be a field
in its own right. Not until the 1970s, when the Constitutional Council began
to transform the Constitution‟s preamble into hard law, did constitutional
7
See Sylvain Brouard, „The Politics of Constitutional Veto in France: Constitutional
Council, Legislative Majority and Electoral Competition‟ (2009) 32 Western European
Politics 384; Alec Stone, The Birth of Judicial Politics in France (OUP, Oxford, 1992).
10
law emerge as a respected and autonomous discipline, enabling figures such
as Louis Favoreu to gain name-recognition by writing almost exclusively on
constitutional issues.8 Nevertheless, the absence of concrete review or of an
individual complaint mechanism meant not only that the Constitutional
Council was isolated from the rest of the judiciary; it also meant that
arguments grounded in constitutional law had little traction and thus
barely featured in litigation before the ordinary courts. French
constitutional scholars could only glance with envy at Italy and Germany,
where constitutional law could be invoked before even the humblest
tribunal. There, unlike in France, no lawyer could afford to ignore
constitutional law. All this to say that constitutional law scholars, too, were
among those who stood to reap net benefits from the reform. After all, what
is good for the Council is also good for constitutional law academics.
3.2. Better Off Under the Status Quo: the Conseil d’Etat and the
Cour de cassation
For the Cour de cassation and the Conseil d’Etat, by contrast, the reform
looked more like a bane than a boon. First, the introduction of concrete
review is bound to upset the hierarchies in place in the judicial system.
Circumventing their supreme court, lower courts may use the procedure to
displace established precedents so as to gain more leeway in their decisionmaking.
A cursory look at the experience of other legal systems reveals that
8
See Bastien François, „Le juge, le droit et la politique : éléments d‟une analyse politiste‟
(1990) 1 Revue Française de Droit Constitutionnel 49.
11
the relations between supreme and constitutional courts are not exempt of
frictions. In Spain, Italy, Germany or Belgium, to mention but a few
examples, supreme court judges regularly complain about the activism of
their constitutional colleagues.9 Famous is, of course, the tug of war –
known as the Guerra dei due Corti – between the Italian Constitutional
Court and the Corte di cassazione.10 As several commentators have noticed,
many aspects of the Melki narrative are reminiscent of the Italian judicial
saga.11 Second, another reason is that through a generous infusion of
supranational law, the two supreme courts had come to operate as quasiconstitutional
courts. Article 55 of the French Constitution stipulates that
international treaties have priority over ordinary legislation. Encouraged by
an early decision of the Constitutional Council, which had refused to equate
the violation of a treaty obligation with a violation of the Constitution,12 the
9 Jörg Menzel, „Hundert Bände Verfassungsrechtsprechung‟ in Jörg Menzel (ed.),
Verfassungsrechtsprechung (Mohr Siebeck, Tübingen, 2000) 1, 24-27 (highlighting episodes
of tension between the Federal Constitutional Court and the Bundesgerichtshof, Germany‟s
supreme court for civil and criminal matters); Leslie Turano, „Qui Custodiet Ipsos
Custodes ?: The Struggle for Jurisdiction Between the Tribunal Constitucional and the
Tribunal Supremo‟ (2006) 4 ICON 151 (discussing the Spanish Constitutional Tribunal‟s
rampant conflict with the Tribunal Supremo, which culminated in the latter‟s issuing a
ruling to order constitutional judges to pay damages to a claimant whose constitutional
case had been dismissed).
10 Nicola Assini, L’oggetto del giudizio di constituzionalità e la ‘‘guerra delle due Corti’’
(Giuffrè, Milan, 1973).
11 See Mathieu note 3 at 867.
12
Constitutional Council, Ruling of 15 January 1975, no. 74-54 DC.
12
ordinary courts in the two hierarchies began to use Article 55 to disregard
legislative measures in the name of transnational law – which, in practice,
essentially meant EU law and ECHR law.13 Hence the Cour de cassation
and the Conseil d’Etat could not set statutes aside for unconstitutionality
but they could set statutes aside for “unconventionality”
(inconventionnalité).14 France had thus something resembling a
decentralised system of judicial review, albeit one based on international
treaties rather than on the Constitution.
This being said, there was a number of reasons to expect that the
reform would have a more disruptive effect on the Cour de cassation than on
the Conseil d’Etat. For a start, the civil/criminal courts differ significantly
from their administrative counterparts in matters of organisation. The
Conseil d’Etat exerts much tighter control on the lower echelons of its
judicial hierarchy than does the Cour de cassation. Whereas all magistrates
sitting on the civil and criminal courts (including the Cour de cassation) are
recruited through the Ecole nationale de la magistrature, their colleagues
from the administrative courts are either graduates from the prestigious
Ecole nationale d’administration (ENA) or civil servants recruited via a
special (and less distinguished) examination. In practice, it is the former
who rule the roost in what is effectively a two-tier career system. Virtually
13
See Elisabeth Lambert Abdelgawad and Anne Weber, „The Reception Process in France
and Germany‟ in Helen Keller and Alec Stone Sweet (eds.), A Europe of Rights: The Impact
of the ECHR on National Legal Systems (OUP, Oxford, 2008) 107.
14 Neumann note 3 at 17-18.
13
all the members of the Conseil d’Etat are énarques, as are the presidents of
the Administrative Courts of Appeals, who are all at the same time
members of the Conseil d’Etat. What is more, the Conseil d’Etat controls the
budget of the administrative courts and manages the careers of its low-rank
judicial personnel. The Cour de cassation, by contrast, has no comparable
prerogatives. Indeed, both the budget and the human resources of civil and
criminal courts are not in judges‟ hands but managed directly from the
Ministry of Justice.15 These considerations suggest that lower
administrative courts – more docile towards their supreme court – would be
less subversive in their use of the new interlocutory procedure. The Cour de
cassation, by contrast, had good reasons to fear that more numerous and
less subservient civil court magistrates would behave in less predictable
fashion.
Another difference between the Cour de cassation and the Conseil
d’Etat regards their relative degree of affinity with the Constitutional
Council on the one hand and with the executive branch on the other.
Regarding the Constitutional Council, many foreign observers might find it
more than a little intriguing that the two institutions are housed in the
same Parisian palace. More importantly though, the all-important office of
secretary general of the Council is traditionally filled by a member of the
Conseil d’Etat. Akin to a super law clerk, the secretary general prepares the
15
See Hélène Pauliat, „Le modèle français d‟administration de la justice: distinctions et
convergences entre justice judiciaire et justice administrative‟ (2008) 125 Revue Française
d‟Administration Publique 93.
14
Council‟s deliberations and seems to have ample opportunities to influence
its members. Add to that that yet another Conseiller d’Etat, Renaud Denoix
de Saint-Marc, sits on the Council since 2007, and it becomes clear that the
Conseil d’Etat had some reassurance that its institutional interests would
not be entirely disregarded by the constitutional judges. Even more striking
are the links between the Conseil d’Etat and the executive. Unlike the Cour
de cassation, the Conseil d’Etat is not only a judicial body, but doubles as
advisory committee to the executive branch. The government has the
obligation to consult it when sending bills to the legislature and on enacting
secondary legislation. Moreover, it is fairly common for a Conseiller to
leapfrog from one civil service job to the next – generally at the highest level
of responsibility – throughout her career, with shorter or longer spells back
at the Palais Royal. In other words, the Conseil, at least its personnel, is
closely entangled with the administration of the state. While providing the
Conseillers, who tend to have a strong esprit de corps, with unmatched
career opportunities, this situation also nurtures a culture of legal
protectionism. The Conseil d’Etat is not viewed as a particularly proEuropean
court. EU scholars need no reminder that it was the last of all
high courts in Western Europe to accept the supremacy of EU law. Whereas
the Cour de cassation had embraced supremacy early on, in 1975, it took
fourteen years more to the Conseil d’Etat and repeated clashes with the ECJ
to follow suit.16 Not that it has had a particularly easy ride with the ECtHR
16
A story brilliantly recounted in Karen Alter, Establishing the Supremacy of European
Law (Studies in European Law, OUP, Oxford, 2001) 124-180.
15
either. Its double function as judicial body and as government advisor has
been a big bone of contention between the two courts, some fretting that the
Strasbourg court might rule it as inconsistent with the principle of judicial
impartiality deriving from Article 6 of the Convention.17 Despite occasional
frictions with the Constitutional Council, some on the Conseil d’Etat may
see it as a useful counterweight to the two supranational courts. One able to
oppose the legitimacy of the Constitution to the forces of legal integration.
4. Changing the Institutional Configuration of the
Judiciary: The New Concrete Review Mechanism
The introduction of concrete review had already been mooted in the early
1990s. But nothing came out of the constitutional debate at the time. It
would take President Nicolas Sarkozy‟s grand constitutional reform for
concrete review to find its way into the Constitution. In what has become a
hallmark of President Sarkozy‟s reforms, the actual constitutional revision
turned out to be somewhat less of a rupture with the past (to use the
President‟s election slogan) than when first floated. Voted into law with the
rest of the constitutional overhaul on 23 July 2008, the brand-new Article
61-1 specified:
If, during proceedings in progress before a court of law, it is claimed
that a statutory provision infringes the rights and freedoms, guaranteed by
the Constitution, the matter may be referred by the Conseil d’Etat or by the
17 Jean-François Flauss, „Actualité de la Convention européenne des droits de l‟homme‟
[1996] L‟ Actualité Juridiques Droit Administratif 383.
16
Cour de Cassation to the Constitutional Council, within a determined
period.
An Institutional Act shall determine the conditions for the
application of the present article.
Note the absence of reference to “priority” or to any equivalent concept. As
we shall see in the next section, the word is something of a Johnny-comelately.
It did not appear until the vote on the institutional act (organic law)
implementing the provision.
Looking at Article 61-1 and comparing it with similar interlocutory
procedures in place in other countries, the mechanism strikes as
exceptionally restrictive. Concrete review usually means that any judge
whatsoever can refer a constitutional issue directly to the constitutional
tribunal. Not so with the French referral mechanism. As illustrated in
Figure 1, the Conseil d’Etat and the Cour de cassation operate as filter.
They have the duty, and therefore the power, to decide whether a question
is worth sending to the Constitutional Council.
<<Figure 1 about here>>
The addition of a filter would seem to be a concession to the two supreme
courts – a guaranty that the reform would not upset the operations of the
two judicial hierarchies too much. After all, what else could have been the
rationale for this procedural innovation?
17
In any case, the text approved in the summer of 2008 suggested that
referrals would be few and far between and thus the impact of the reform
rather modest.
That was, however, without counting with the Constitutional Council
and its supporters in the legal academy.
5. Reframing the Reform: The Constitutional
Council and the Constitutional Law Lobby
The parliamentary debates on the implementing legislation began in April
2009 with the government presenting a draft bill on the “question of
constitutionality” (question de constitutionnalité).18 The bill did not yet
speak of a “priority constitutional referral” (question prioritaire de
constitutionnalité), but it already specified that whenever a statutory
provision is challenged both on constitutional and on treaty grounds, the
judge in the main cause would have to examine the constitutional question
first.19 This was a departure from the assumption some had made during
the debates leading to the adoption of Article 61-1. In the Senate report on
the constitutional amendment, the prevailing idea was still that the
ordinary courts would decide the treaty questions before making referrals to
18 See Assemblée nationale, Projet de loi organique relatif à l‟application de l‟article 61-1 de
la Constitution, Document no. 1599, 8 April 2009.
19 Article 23-2, point 3
18
the Constitutional Council. This, it was then argued, would ensure that the
Council would not be overburdened with referrals.20
In a remarkable reversal, the notion that supranational law had
crowded out the Constitution and that the opportunity should seized upon to
restore it to its place at the apex of the legal order began to take hold among
legislators. In hearings before the legal affairs committees of the two
chambers, EU law scholars argued that it was “unnecessary” and “pointless”
to require the judge in the main cause to consider constitutionality before
conventionality.21 However, they were both out-numbered and out-voiced by
their constitutional law colleagues. Before the National Assembly‟s Legal
Affairs Committee, Bertrand Mathieu, Guy Carcassonne and Jean-Claude
Colliard emphasised the “need” to give priority to the Constitution over
treaty law.22 Betrand Mathieu, again, and Guillaume Drago, yet another
constitutional law professor, made the same point before the Legal Affairs
20 Sénat, Rapport no. 387, 11 June 2008 (available online: http://www.senat.fr/rap/l07-
387/l07-3871.pdf, accessed 15 September 2011) at 178. See also Neumann note 3, at 23.
21
So Anne Levade and Paul Cassia before the National Assembly‟s Legal Affairs
Committee, Assemblée nationale, Commission des lois constitutionnelles, de la législation
et de l‟administration générale de la République, 23 June 2009, Compte rendu no. 58, and
30 June 2009, Compte rendu no. 63.
22
As did Professor Nicolas Molfessis, a private law lawyer, but with one foot firmly in
constitutional law, see the debates in the National Assembly note 20 above.
19
Committee of the higher chamber, where no other academic lawyer was
heard.23
They did not have to wait long for their lobbying efforts to pay off. In
early September, the National Assembly‟s Legal Affairs Committee adopted
an amendment – tabled by the Committee‟s chairman, Jean-Luc
Wassermann – inserting the word “priority” in the draft legislation, thus
giving the procedure its final name: question prioritaire de constitutionnalité
– soon to become “QPC” in the jargon of French lawyers.24
The campaign of the reform‟s proponents was not over, however. Once
secured the final vote on the implementing legislation, they went on to
publicise the new mechanism. The Constitutional Council sent a package,
complete with a DVD outlining the QPC, to the members of all bar
associations across the country. Its President, Jean-Louis Debré described
the new procedure as a “very important advancement for the rule of law”
and as “the end of a French exception in Europe”.25 Meanwhile, Marc
Guillaume, the Council‟s secretary general, and Denys de Béchillon, another
law professor, penned an editorial in the daily Les Echos presenting the
23
Sénat, Commission des lois, 23 September 2009 (http://www.senat.fr/compte-renducommissions/20090921/lois.html,
accessed 15 September 2011).
24
Assemblée nationale, Commission des lois constitutionnelles, de la législation et de
l‟administration générale de la République, 3 September 2009, Compte rendu no. 73.
25 See Le Figaro, 25 May 2010, http://www.lefigaro.fr/politique/2010/05/25/01002-
20100525ARTFIG00801-un-progres-pour-l-etat-de-droit-dans-notre-pays.php (accessed 15
September 2009).
20
freshly promulgated reform.26 And, of course, the pages of legal periodicals
were replete with articles by constitutional law professors exalting the new
procedure.27 By raising the expectations about its impact, the proponents of
the reform implicitly suggested that a reluctance to send referrals to the
Council would be regarded as judicial treason. In an interview published in
Le Monde shortly after it came into force, the Council‟s President made the
message even more explicit: “the filter should not become a stopper”.28
6. Mounting Tensions
The new referral mechanism took effect on 1 March 2010. After that, the
courts moved in an accelerated sequence of judicial tit-for-tat. As shown in
Figure 2, the short timeframe in which the courts spelled out their position
on the new procedure is not one of least remarkable aspect of the Melki
story.
<<Figure 2 about here>>
26
‘La question prioritaire de constitutionnalité : rendez-vous le 1er mars’ Les Echos, 28
December 2009.
27
See e.g. Dominique Rousseau, „Vive la QPC ! La quoi ?‟ (2010) 26 Gazette du Palais 13 ;
Bertrand Mathieu, „La question prioritaire de constitutionnalité : une nouvelle voie de droit‟
(2009) 52 La semaine Juridique 54 ; Michel Verpeaux, „Le Conseil constitutionnel : juge de
la question prioritaire de constitutionnalité‟ [2010] L‟Actualité Juridique Droit
Administration 88.
28 Le Monde, 28 May 2010, http://www.lemonde.fr/politique/article/2010/05/28/je-veux-que-
la-procedure-de-question-prioritaire-de-constitutionnalite-fonctionnerapidement_1364308_823448.html
(accessed 15 September 2011).
21
No less than five decisions on the compatibility of the new discipline with
EU law were rendered in less than three months.
The Cour de cassation made the opening move. In two sets of
proceedings involving respectively Sélim Abdeli and Aziz Melki, two
undocumented Algerian nationals who had been arrested in an area close to
the French border with Belgium, the defense contended that their arrest
contravened both EU law (the Schengen Agreement) and the Constitution.
The judge in the main cause – the juge des libertés et de la detention (judicial
body deciding on matters of provisional detention) – sent the question to its
supreme court in accordance with the new priority referral procedure. On 16
April, the Cour de cassation decided not to refer the question to the Council
but to seek an expedited ruling from the Court of Justice on the
compatibility of the new mechanism with EU law. The move immediately
met with violent criticism from the side constitutional law scholars. A
stream of articles condemning the Cour de cassation appeared in major
newspapers as well as in law journals.29
29 See Guy Carcassonne and Nicolas Molfessis, „La Cour de cassation à l‟assaut de la
question prioritaire de constitutionnalité‟ Le Monde, 23 April 2010 ; Bertrand Mathieu note
3 ; Dominique Rousseau and David Levy, „La Cour de cassation et la question prioritaire de
constitutionnalité : pourquoi tant de méfiance ?‟ (2010) 115-117 Gazette du Palais 12. On
constitutional law blogs the contributors did not mince their words either, see
(constitutional law) Professor Didier Ribes on http://www.bfdc.org/ and the posting „La Cour
de cassation flingue d‟entrée de jeu le caractère prioritaire de la question de
constitutionnalité (Cass., QPC 16 avr. 2010, n° 10-40002)‟ on
22
The language used by the Cour de cassation in formulating its
question to the Court of Justice was rather blunt:
Does Article 267 of Treaty on Functioning of European Union... preclude
legislation such as that resulting from Article 23-2, paragraph 2, and Article
23-5, paragraph 2, of Order no. 58-1067 of 7 November 1958, created by
Organic Law no. 2009-1523 of 10 December 2009, in so far as those
provisions require courts to rule as a matter of priority on the submission to
the Constitutional Council of the question on constitutionality referred to
them, inasmuch as that question relates to whether domestic legislation,
because it is contrary to European Union law, is in breach of the
Constitution?30
According to the Court, the question followed from two related
considerations. First, because a constitutional provision, Article 88-1,
incorporates EU mandates the legislature to act in conformity with legal
obligations resulting from EU law, the Constitutional Council had the power
to review legislative enactments for inconsistency with EU. Second, by
virtue of Article 62 of the French Constitution, all public authorities are
bound by the decisions of the Constitutional Council. The French high court
reasoned that in light of these provisions the organic law effectively led to
the task of ensuring the supremacy and direct effect of EU law being
http://www.paperblog.fr/3127081/. (Blogs accessed 16 September 2011.) See also on the
radio-waves the recriminations of Olivier Duhamel, „Les juges de la Cour de cassation
sabotent la réforme‟ France Culture, 13 May 2010.
30 Cass., 16 April 2009, No. 10-40.001. (Translation adapted from the English version of the
ECJ ruling, note 1.)
23
transferred to the Constitutional Council in contravention of the
Simmenthal doctrine. Once a question had been referred to the Council, the
judge in the main cause could no longer send a reference to the ECJ, nor set
aside a legislative measure she viewed as contrary to EU law.
Had the ECJ followed this construction of the organic law, it would
almost surely have declared it inconsistent with EU law. Yet the
Constitutional Council on 12 May, followed by the Conseil d’Etat two days
later, proposed a different reading, which promised to make the organic law
EU-law-compatible. Seized through the abstract review procedure by
politicians who challenged the constitutionality of a bill regulating online
gambling, the Constitutional Council jumped on the opportunity to issue a
dictum on the relationship between the priority referral procedure and EU
law. It argued that the judge in the main cause:
…may also take all and any conservatory measures as may be necessary. He
may thus immediately suspend any effect of the statute incompatible with
the law of the European Union, ensure the preservation of the rights vested
in persons coming under the jurisdiction of the courts by international and
European commitments entered into by France and ensure the full
effectiveness of the forthcoming decision of the court. Neither Article 61-1 of
the Constitution nor Articles 23-1 and following of the Ordinance of
November 7th 1958 [as modified by the Organic Law on the Priority
Referral Procedure]…preclude a judge, asked to rule in litigation in which
the argument of incompatibility with European Union law is raised, from
doing, at any time, all and everything necessary to prevent the application
24
in the case in hand of statutory provisions impeding the full effectiveness of
the norms and standards of the European Union;31
Apparently anxious to avert a clash with the Court of the Justice, the
Council added:
Lastly, Article 61-1 of the Constitution and sections 23-1 and following of
the Ordinance of November 7th 1958 referred to hereinabove do not deprive
Courts of law or Administrative Courts, including when they are requested
to transmit an application for a priority preliminary hearing on the issue of
constitutionality, of the freedom, or, when their decisions cannot be
appealed against in domestic law, of their duty to refer to the European
Court of Justice for a preliminary ruling under Article 267 of the Treaty on
the Functioning of the European Union.32
Two days later, the Conseil d’Etat handed a ruling in which it defended the
same reading of the organic law:
…these provisions do not preclude the administrative judge, as ordinary
judicial guardian [juge de droit commun] of the application of European
Union law, to ensure its effectiveness in situation where no priority
constitutional referral has been made or, when it has, upon completion of
the procedure or even at any time during a pending referral if there is
urgent need to prevent a legislative measure from producing effects that are
contrary to European Union law; what is more, the administrative judge
retains the possibility at any time, and whenever it appears appropriate, to
31 CC, 12 May 2009, no. 2010-605 DC, at point 14. (Official translation.)
32 Id. At point 15.
25
send a reference for a preliminary ruling to the European Court of Justice
pursuant to Article 267 TFEU;33
Rejecting the premises of the Cour de cassation‟s reasoning, the Conseil
d’Etat and the Constitutional Council thus presented the Court of Justice
with a deal which preserved most of the Simmenthal doctrine without
simultaneously killing the new procedure. The question now was whether
the Luxembourg Court would sign up to it. Would the ECJ accept that the
existence of an interlocutory procedure such as the one introduced in France
could in some circumstances lead a domestic court to delay the
disapplication of legislative measure deemed inconsistent with EU law?
7. Denouement
Eventually, of course, the ECJ did. It rendered its expedited ruling on 22
June, just nine weeks after receiving the Cour de cassation‟s reference. After
reasserting the essential tenets of its Simmenthal jurisprudence, it first
observed that “under settled case-law, it is for the national court to interpret
the national law which it has to apply, as far as is at all possible, in a
manner which accords with the requirements of EU law”. In light of the
decisions handed by the Conseil d’Etat and the Constitutional Council, the
Court went on to say, “such an interpretation of the national provisions
which introduced the mechanism for review of constitutionality at issue in
33 CE, 14 May 2010, Rujovic, no. 312305, cons. 1. (Translation is mine.)
26
the main proceedings cannot be ruled out”.34 Crucially, though, the Court
made a concession on the immediate effect of EU law supremacy:
In so far as national law lays down an obligation to initiate an interlocutory
procedure for the review of constitutionality, which would prevent the
national court from immediately disapplying a national legislative provision
which it considers to be contrary to EU law, the functioning of the system
established by Article 267 TFEU nevertheless requires that that court be
free, first, to adopt any measure necessary to ensure the provisional judicial
protection of the rights conferred under the European Union‟s legal order
and, second, to disapply, at the end of such an interlocutory procedure, that
national legislative provision if that court holds it to be contrary to EU
law.35
The Court thus accepted the modus vivendi offered by the Conseil d’Etat
and the Constitutional Council.
This outcome left the Cour de cassation uncomfortably isolated. On 29
June, it handed its final ruling on the issue. The convoluted reasoning
suggests a Court unsure of where it wants to go. The Court concluded that,
since it did not have the power to take the measures necessary to ensure the
provisional judicial protection of the rights conferred under EU law, it had
no choice but to leave the organic law unenforced on this occasion.
Therefore, it refused to send the initial referral to the Council and
instructed the judge in the main cause to set aside the legislative provisions
34 See note 1, para. 50.
35 Id. Para. 53.
27
on the basis of which Aziz Melki and Sélim Abdeli had been arrested as
contrary to EU law.36 This was unlikely to endear the Court to its critiques.
8. Epilogue: The Aftermath of Melki
In later and over the summer new controversies erupted after the Cour de
cassation refused to refer constitutional questions about important pieces of
legislation to the Council.37 Again, the Court faced fierce criticism from
constitutional law scholars.38 But this time, the legislators went out of their
way to punish the unruly high court. The Organic Law on the Priority
Referral Procedure had created a special panel within the Cour de cassation,
chaired by the Court‟s President, to examine the referrals from the lower
courts. In July, Hughes Portelli, President of the Senate‟s Legal Affairs
Committee and……constitutional law professor at University Panthéon-
36 Cass., Melki, 29 June 2010, no. 1040.001.
37 Cass., Mme X et al. v. Fédération nationale des déportés et internés, résistants et patriotes
et autres, 7 May 2010, no. 12009 (dismissing a referral against a law outlawing genocide
and holocaust denial); Cass., M.A…X, 19 May 2010, no. 12020 (declining to refer a
constitutional question about the instructions given to the jury in criminal cases on the
ground that the challenge concerned not the law itself but its construction by the Cour de
cassation) ; Cass., Société Mermoz aviation Ireland Limited, 15 June 2010, no. 12095
(dismissing a referral concerning the conditions under which home medical checks are
covered by the health system on the ground that the statute being challenged had already
been modified).
38 Dominique Rousseau, „La mise en place de la QPC crée un big-bang juridictionnel en
France‟ La Tribune, 21 July 2010 ; Guy Carcassonne et al., „Libérons la QPC ! La Cour de
cassation s‟oppose à la réforme de la question prioritaire de constitutionnalité‟ Le Monde,
16 July 2010.
28
Assas, tabled an amendment abolishing the special panel and entrusting the
examination of the referrals to the Court‟s ordinary chambers. The MPs
adopted the amendment which was attached to a bill on the Judicial Council
(Conseil supérieur de la magistrature), the body overseeing judicial
appointments.39 Asked to review the bill, the Constitutional Council upheld
the amendment despite its long-standing jurisprudence prohibiting similar
legislative riders.40
By decentralising the examination of lower court referrals, the
amendment made it more difficult for the high court judges to coordinate so
as to use the filter strategically. But it would have merely been a minor
setback for the Cour de cassation had it not been followed by constant
threats of legislative override lest the Court failed to demonstrate more
enthusiasm for the new procedure. At the end of the summer, only six
months after the reform took effect, the National Assembly‟s Legal Affairs
Committee carried a series of hearings to make a first assessment of its
implementation. The Cour de cassation‟s president, Vincent Lamda,
denounced a smear campaign against his tribunal. But, isolated, he could
not prevent constitutional scholars – Guy Carcassonne and Bertrand
Mathieu – and MPs alike from literally pillorying the Court.41 Most of the
39 Organic Law of 22 July 2010, no. 2010-830.
40 CC, 19 July 2010, no. 2010-611 DC.
41 Assemblée nationale, Commission des lois constitutionnelles, de la législation et de
l‟administration générale de la République, 1 September 2010, Compte rendu no. 81, and 2
September 2010, Compte rendu no. 82. See also the report by the Committee‟s chairman
29
debates on the future of the procedure actually focused on how to modify the
supreme-court filter so as to prevent the Cour de cassation from acting as a
“stopper”.42
Indubitably the Cour de cassation‟s institutional standing has
emerged seriously diminished from the episode. The Melki case may have
marked the beginning of a durable shift of power within the French
judiciary.
Figure 1. Filtered Concrete Review Introduced by the July 2008
Constitutional Reform
Jean-Luc Warsmann, Rapport d‟information, 5 October 2010, no. 2838,
http://www.assemblee-nationale.fr/13/pdf/rap-info/i2838.pdf (accessed 16 September 2011).
42
The metaphor, which by then had apparently gained wide currency in legal circles, was
used by Professor Guy Carcassonne during his hearing on 1 September 2010.
Send
constitutional
references
Filter
constitutional
references
Rules on
references
received
Constitutional
Council
Conseil d’Etat
Lower
administrative
courts
Cour de
cassation
Lower civil
and criminal
courts
30
Figure 2. The 2008 Constitutional Reform and the Melki Reference,
Timeframe
Constitutional
reform
adopted
Adoption of
implementary
legislation
ECJ Melki
ruling
Reform
enters into
effect
Cour de
cassation
sends
reference to
ECJ
Constitutional
Council
renders ruling
on new
procedure
Cour de
cassation final
decision on
the merits
July 2008 1 March,
2010
Fall 2009 12 May,
2010
16 April,
2010
22 June,
2010
29 June,
2010
Conseil d’Etat
renders ruling
on new
procedure
14 May,
2010