*
NEW CONSTITUTIONAL ADJUDICATION IN FRANCE:
THE REFORM OF THE REFERRAL TO THE FRENCH
CONSTITUTIONAL COUNCIL IN liGHT OF THE
ITALIAN MODEL
Pasquale Pasquino*
I.
OnJuly 21, 2008, the French Parliament passed a constitutional reform
modifying a number of Articles1
of the text approved by a popular
referendum fifty years earlier, in 1958, when the French Fifth Republic was
established under the leadership of General de Gaulle. One provision is of
speCial significance for those who are interested in the development of
constitutional justice in democratic regimes - the norm, which goes under
the number 61-1. The text runs as follows:
"If, during proceedings in progress before a court of.law, it is
claimed that a legislative provision infringes the rights and
freedoms guaranteed by the Constitution, the matter may be
referred by the' Conseil d'Etat or by the Cour de Cassation to
the Constitutional Council, which shall rule within a determined
period. An Institutional Act shall determine the conditions for
the application of the present article."2
This short and slightly cryptic article represents a conceptual revolution
in the secular history of the French public and constitutional law. In the
following pages I have examined the reasons behind this representation;
Distinguished Professor in Law and Politics, New York UniverSity; Directeur de recherche - CNRS
Centre de Theorie et Analyse du Droit - Paris EHESS. I am very grateful to Justices Guy Canivet
and Olivier Dutheillet of the French Constitutional Council and to Gustavo Zagrebelsky, emeritus
ChiefJustice of the Italian Constitutional Court, for many conversations that greatly helped me to
understand the topic I discuss in this article. Lauren Jones helped in editing the English text.
1. Mostly minor changes have been enacted concerning 47 articles among the 89 of the 1958
Constitution.
2. This is the official translation available on the website of the French Constitutional Council; here
we read moreover: "The versions in italics [the constitutional amendments] of articles 11, 13, 25
[...], 34-1, 39, 44, 56, 61-1, 65, 69, 71-1 and 73 of the Constitution will come into effect in the manner
determined by statutes and Institutional Acts necessary for their application". As we will see the
Institutional Act (loi organique) concerning the article 61-1 has been approved by the Council of
ministers during the spring 2009; it has to be discussed and approved by the Parliament probably
in the fall. The French text of 61-1 says: «Lorsque, a l'occasion d'une instance en cours devant une
juridiction, il est soutenu qu'une disposition legislative porte atteinte aux droits et liberUs que La Constitution
garantit, le Conseil constitutionnel peut etre saisi de cette question sur renvoi du Conseil d'Etat ou de la Cour
de cassation qui se prononce dans un delai determine. Une loi organique determine les conditions d'application
du present article.»
106 Indian J. Const. L.
towards the end of the article, I will further seek to establish this representation
by comparing the mechanism of constitutional adjudication3
in France under
the 5th
Republic with the one introduced in Italy in 1948, which was impliCitly
the model of the French reform of referral to the Constitutional Council.
n.
A very limited form of constitutional adjudication was introduced in
France, after the first unsuccessful attempt in 1946 by the constitution
promulgated by de Gaulle. As is well known,4 it evolved significantly as a
work in progress over the years, most notably because of two important
events: first, because of a decision of the Constitutional Council itself in
1971; secondly, and more importantly, because of a constitutional reform of
the mechanism of referral passed in 1974 under the preSidency of Valery
Giscard d'Estaing.
In most countries of the European continent - with the important
exception of Austria5 - Constitutional Courts were established after the
Second World War as a reaction to the authoritarian regimes that dominated
a large part of the continent until recently. First Italy and Germany (1948
and 1949), then the South European post fascist regimes at the end of the
1970s, and eventually, after the collapse of the Soviet Empire in 1989, the
countries of Central and Eastern Europe all introduced jurisdiCtional organs
in their new constitutions with the task of constitutional review over Acts of
Parliament. The French constitutional history, which parted with the
authoritarian regime in 1871, instead followed a different path. The only
large state on the continent free from a recent totalitarian past, France
entertained and cultivated until 2008 - as did the UK - the old ideology of
parliamentary sovereignty, which is not only part of its constitutional matrix
since the Revolution but goes back to the Bodinian doctrine of the sovereignty
of the legislative power.6
Starting from 1958 this ideology was de facto even if not expliCitly
seriously weakened by the constitutional decision of shifting a Significant
amount of normative power traditionally attributed to the Parliament, to
the government (the executive power). Article 34 of the Constitution clearly
limited the powers of the "legislative body," leaving a full range of discretion
to executive measures and regulations? The original task of the
3. In Europe this expreSSion is used to deSignate the centralized system of Judicial Review which
exists nowadays in almost all Continental countries.
4. See notably John Bell, French Constitutional Law, Oxford: Clarendon Press, 1992.
5. Where the first European Constitutional Court was introduced by the republican constitution in
1920.
6. Les six livres de La Republique : Book 1, chapter 10 (1576).
7. A recent astonishing example is the new reform of the University passed by the government of
President Sarkozy by Simple executive orders, and without any parliamentary debate.
New Constitutional Adjudication in France 107
Constitutional Council - conceived of as a political body subservient to the
President more than as a court - was to enforce the strict limits imposed by
the Constitution upon parliamentary normative powers.8
This body was
actually created to act as a guardian of the separation of powers between the
Parliament and the government in their capacity as normative actors. De
Gaulle was very keen on preventing the Parliament, and within it political
parties, from abusing its power vis-a.-vis the government acting under the
leadership of the President of the Republic, meaning de Gaulle himself.
There was indeed at the outset no preoccupation with having a mechanism
to protect citizens' rights. This helps to understand the unusual and quite
unique character of the mechanism of referral to the Constitutional Council.
According to the original text of Article 61, only very few political actors,
actually the apex of the political system, were allowed to activate the
Constitutional Council:
"Acts of Parliament may be referred to the Constitutional
Council, before their promulgation, by the President of the
Republic, the Prime Minister, the President of the National
Assembly, the President of the Senate." [Emphasis Supplied]
Notice that referral and decision of the Constitutional Council have
to take place before the promulgation of the statute approved by the
Parliament.9
This rule allowed the rescue and survival of the traditional
French ideology of souverainete de la loi [the sovereignty of the statute laws],
a point worth a short comment.
Since its inception at the time of Revolution, the French constitutional
doctrine, defying any possible logic and cognitive dissonance, maintained,
at the same time, that the Constitution is a rigid text - meaning that the
Parliament cannot modify it according the procedure used to enact statutes
- rule of the majority - and that the loi (statutes) is the expression of the
general will. This obscure expression means, on one side, that the statutes
have obliging force for all the citizens, both those who agree with the content
of the legal decision and those who do not. But, on the other hand, it also
means that the statute is "right,"lo which seems to imply that it is never in
contradiction with the Constitution. Like in the Peoples' Republic of China
8. The Constitutional Council has moreover mandatory scrutiny over any change of the standing
orders of the Parliament.
9. "The Constitutional Council" - we read in Art. 61 - "must deliver its ruling within one month". It
is not possible to discuss here the consequences upon the Council's work of this temporal
constraint, but they are extremely important. The reasons of it are instead evident: without this
strict obligation for the delay of the decision the parliamentary opposition would be able to
considerly and needlessly slow down the legislative power of the majority.
10. Echoing JJ. Rousseau, Social Contract, Book II, chapter VI « La volonte generale est toujours
droite ».
108 Indian J. Const. L.
nowadays, there was de facto - according to the French classical doctrine - no
real hierarchy of norms between the constitution and the statute laws,11 since
both the constituent power and the legislative power are sovereign. The
consequence is that the alleged constitutional rigidity is a fiction or a wish, a
hope, in sum, a sort of invocation. It implies, that in no case may a statute
contradict the Constitution. So this rigidity, implying no superiority, has the
peculiar property of being flexible! In this traditional context, which was
accepted by part in doctrine but entirely in practice of the Third and Fourth
Republic, the Constitution of 1958 introduced a real limit to the power of
the Parliament, which is not allowed to step over the roles and functions that
the fundamental law attributes to the executive branch. Hence, at least in a
sense, the superiority of the constitutional provisions was taken seriously
and a watchdog was instituted in order to protect the governmental power.
The mechanism was activated by the highest political authorities and works
to stop in ovo any overflOwing of Parliament's legislation beyond its limited
competences. The idea was, in sum, that abuses of parliamentary power
had to be prevented ex ante before a mistake Le. an abuse enters in the
books, since at that point the statute will be written in stone and cannot be
removed by the executive power. That was the reason of the ex ante control.
Taking into account the political circumstances that originated the
global reform of the constitution of the 4th
Republic which took the name of
the 5th
one, it is pretty clear, as already stated, that de Gaulle wanted to
guarantee himself an instrument of control upon the political parties and
the Parliament. But after his death, the institution he helped to create started
to walk on its own legs slowly becoming a constitutional court able to protect
both the political minority in the parliament and citizen rights.
m.
Two major events are at the origin of this Significant metamorphosis.
It is in fact at the beginning of the 1970s that the Constitutional Council
started to change its main function and entered slowly into the family of the
European Constitutional Courts. The first step is the famous decision of
July 16, 1971 on freedom of association, which consecrated the unexpected
but important role played by Jean-Paul Sartre and Simonne de Beauvoir in
the history of French constitutionalism.12 It is not important to enter here in
the factual details of the case, but I need to draw the attention of the reader
11. That shows its radical opposition to Kelsen's legal theory; see R. Carre de Malberg, Confrontation
de La theorie de La formation du droit par degres avec les idees et les institutions consacrees par le droit positif
franfais relativement asa formation, Paris: Sirey, 1933.
12. See, generally, Alec Stone, The Birth of judicial Politics in France, Oxford: Oxford University Press,
1992, at 67.
New Constitutional Adjudication in France 109
to a peculiarity of the last French constitution. Unlike most of the constitutional
texts written after the Weimar Verfassung (1919), the Constitution of 1958
does not include a list of fundamental rights. Conceived of as a rationalization
of the dysfunctional and highly fragmented parliamentary system of the 4th
Republic, de Gaulle's Constitution simply describes the structure of the
separation of powers. Nonetheless, the text starts with a short Preamble where
we read:
"The French people solemnly proclaim their attachment to the
Rights of Man and the principles of national sovereignty as
defined by the Declaration of 1789, confirmed and
complemented by the Preamble to the Constitution of 1946 [...]."
The legal status of this Preamble was unclear, as well as the meaning
of the term "attachment". But we know that when during the debates of the
Comite Consultatif Constitutionnel,13 one of its members, Dejean, asked if it
had legal binding value, the representative of de Gaulle's government,
Raymond Janot, answered formally that it did not!14 In 1971, the Council
held the opposite position making the Preamble a yardstick for its decision
on freedom of association, so that since then the Declarations of Rights of
1789 and 1946 are used as standards for constitutional interpretation (this set
of standards goes under the name of bloc de constitutionnalite). This paramount
decision would have been without any significant impact if the Parliament
had not passed a crucial constitutional reform in 1974, opening up the referral
from 4 political actors as it was originally limited to 60 members of the two
houses of the Parliament [saisine parlementaire]. The reform that Giscard and
his government were able to push through the Parliament radically changed
the role of the Council. Since 1975, the parliamentary opposition has been
able to send any major piece of legislation approved by the majority to the
Constitutional Council in order to have it reviewed and actually often
modified.
Thanks to these two events the organ that was at its origin the guardian
of the Parliament became the watchdog of the elected majority, and the late
embodiment of the Montesquieuian anti-absolutist doctrine of the
"intermediary bodies", the function of which is of moderating and containing
the power of the government!
13. The Constitution of 1958 was not prepared by a Convention, but by de Gaulle's government that
presented it to a simple Consultative Committee composed of 39 members before submitting the
text to popular ratification.
14. See Avis et debats du Gonseil Gonsultatif Gonstitutionnel, p. 101.
110 Indian J. Const. L.
Since 1974, France developed its own specific model of constitutional
adjudication which is normally qualified as centralized, abstract and a priori.
I shall come back at the end to the abstract character of the constitutional
adjudication, but it is beyond doubt that the Constitutional Council has
been so far the only agency called to pronounce on the constitutionality of a
statute before the application of it, more exactly before the promulgation of
the statute law so that, in the French legal system, all the statutes in the
books are by definition constitutional. Evidently this system faces a problem:
not only have the statute laws passed before 1974 not been scrutinized by
the Council, but this is also the case after '74 of the (few) statutes that the
opposition has not referred to the guardian of the constitution. The official
ideological answer until recently has been that the certainty of the law is more
important than keeping some skeletons in the closet - or, out of metaphor,
some statutes that contradict the constitution! The answer apparently was
not entirely persuasive, since in that case there would be no reason for the
reform of the referral introduced in 2008. Be that as it may, for 35 years
France lived with this quasi-unique system, which is now put in question
and modified by the constitutional reform.
IV.
The text of 61-1 which I quoted at the beginning of this article refers
to an institutional act specifying the new referral mechanism; this loi organique,
as I said, has now been approved by the Cabinet and published. The
Parliament may change some details but we now have a clearer idea of how
the new system will work. Before considering it and spelling out the
consequences and possible difficulties that will emerge from its enforcement,
a few introductory considerations may be useful. The idea of introducing in
France the so called "exception of unconstitutionality"15 is not new. It goes
back to 1990 and to the man who had been the Attorney-General of the first
socialist government, who promoted the abolition of the death penalty in
France and was later on, between 1986 and 1995, President of the
Constitutional Council. Robert Badinter tried unsuccessfully to introduce
the Italian mechanism that allows an ordinary judge to send a question
concerning the possible unconstitutional character of a statute that she has
to apply in litigation before her to the Constitutional Court in Rome. A
similar attempt was repeated three years later in 1993, when a committee
chaired by the most prominent French public law professor, Georges Vedel,
15. This is the expression used in Italy to speak of the type of referral to which I shall come back in the
text.
New Constitutional Adjudication in France 111
proposed a basically similar reform, once again unsuccessfully. The
conservatives opposed it, and the socialists themselves were not enthusiastic.
It is, therefore, somehow paradoxical prima facie that a reform that was in
the political program of the socialist party for many years is likely to succeed
under a conservative preSidency. History has its own paradoxes, but there
are at least three reasons that can help us to understand the political reversal
at the origin of the reform: [1]. The introduction of the exception of
unconstitutionality was one of the many aspects of a set of constitutional
amendments prepared by a Committee created by the president Sarkozy. It
is important to take into account that two of the members of the Balladur
(from the name of its chair) are law professors who had been largely involved
in the previous attempts made by Badinter and Vedel. Guy Carcassonne
and Olivier Duhamel, both Parisian professors of constitutional law, certainly
played an important role in persuading the Committee to accept the proposal
of the 61-1. [2]. Moreover, this reform seemed popular, more than many
others, relative to technical aspects of the French constitutional system. [3].
Finally, the reform may represent an attempt to bring under the control of
the French (constitutional) jurisdiction decisions which have been escaping it.
This implies the follOwing: In countries like France, Italy, the United
Kingdom, and other member-states of the European Union there now exist
three partially overlapping legal orders: 1. the internal law under the
supremacy of the constitution of each member state; 2. the legal regulations
of the European Union which have preeminence over the possibly conflicting
norms of each member-state (ordinary courts of the member state are now
authorized to directly apply the European norm and to dismiss the national
one in case of conflict)16 ; and 3. the jurisprudence produced by the European
Court of Human Rights in Strasbourg, which enforces the rights and prinCiples
established by European Convention. The states that ratified the Convention
and are members of the Council of Europe17
know a different modality to
internally implement the prinCiple of the Convention. In France, starting
from 1975, ordinary courts were allowed to ignore French statutes if they
contradicted the Convention. SurpriSingly enough, this practice was the
consequence of a decision of the Constitutional Council that, in the famous
16. See the decision Flaminio Costa v. ENEL, [1964] ECR 585, confirmed by a decision. See Simmenthal,
1978, 106fl7.
17. 47 states are members of the Council of Europe, including Russia, Ukraine and Turkey, countries
that are not as of now members of the European Union.
112 Indian J. Const. L.
decision Interruption Volontaire de Grossesse (abortion) claimed that it had no
authority in adjudicating legal conflicts that are not under the direct
jurisdiction of the French internal lawl8
. This choice of the Constitutional
Council was at the origin of what is called in France controle de conventionalite.
This principle means that ordinary judges may refuse to apply a French
statute when they believe that it is in contradiction with the legal principles
of the Convention of Human Rights that France subscribed to in 1950.
Taking all these into account, it is possible to claim. that the status quo
preceding the reform of 2008 was based on a double mechanism of protection
of the rights of the French citizens: on one side, the control ex ante, exercised
by the Constitutional Council on request of the political minority inside the
Parliament, able to cancel statutes before their promulgation, or more often
to modify them or to offer constitutional interpretation of them; and, on the
other side, the so-called controle de conventionalite by which the ordinaryjudges,
and at the end ofthe day the highestjurisdictions19, were able to refuse enforcing
the French law in case of conflict among internal statute and rights on one
hand, and principles protected by the European Convention on the other.
Sometimes, this status quo has been presented as a good one, notably
when it was necessary to defend France vis-a.-vis criticisms of limited
constitutional adjudication. But the present government thought it necessary
to change the status quo and introduce the possibility for the citizens as litigants
in a trial to call upon the protection of their (internal) constitutional rights
vis-a.-vis statute laws; breaking the dogma of the sovereignty of statutes.
With the help of the organic law it is possible to understand the basic
mechanism that will regulate the new type of referral. The parties in a trial
may ask the judge to send the Constitutional Council a preliminary question
(question prejudicielle) in order to check the constitutionality of a statute that
the judge needs to put into effect to adjudicate the conflict among the litigants
or to convict the defendant in a criminal process. Let me first consider the
steps of the procedure before commenting on them:
18. See Decision 74-54 DC of 15 January 1975 [http://www.conseil-constitutionnel.fr/conseilconstitutionnelJenglish/case-law/case-Iaw.25743.html],
here the specific arguments.
"5. A statute that is inconsistent with a treaty is not ipso facto unconstitutional.
6. Review of the rule stated in Article 55 [concerning international treaties] cannot be effected as
part of a review pursuant to Article 61 [concerning the Constitutional Council], because the
two reviews are different in kind.
7. It is therefore not for the Constitutional Council, when a referral is made to it under Article
61 of the Constitution, to consider the consistency of a statute with the provisions of a treaty
or an international agreement".
19. The Cour de Cassation and the Conseil d'etat, respectively the supreme courts of civil/criminal and
administrative litigations.
New Constitutional Adjudication in France 113
a. the judge cannot take the initiative (like in Italy or in Germany) to
send the question motu proprio, she has to be asked by one of the
parties, and only concerning the right and liherties covered by the hloc
de constitutionnalite;
b. the judge accepting the request from the party has to produce arguments
in order to justify it on the basis of three explicit criteria (loi organique:
art. 23-2): I) the statute challenged has to be necessarily used in the
adjudication of the trial - we can call it the criterion of relevance; II)
the statute has not to have been considered constitutional if checked
by the Constitutional Council in the ex ante procedure, but that clause
can be bypassed in presence of "of new circumstances" (I shall come
back on this important specification) - criterion of novelty; III) the
question asked by the party has to be serious - criterion of non-futility;
c. if the judge accepts the request, her motivated preliminary question
cannot directly reach the Constitutional Council since the reform
introduces - again a difference from the Italian system - a filter between
the ordinary judge and the organ in charge of constitutional
adjudication: the request will be scrutinized by the two highest courts
of the French judicial system, the Cassation Court and the Council of
State, which have the task of verifying the fulfillment by the ordinary
judge of the three mentioned criteria.
I shall later refer to some other important procedural details of the
organic law. Here, I will comment on the aforementioned provisions. The
need for the judge to produce reasons to accept the preliminary question as
well as the circumstance that the parties (meaning their counsels) have to be
at the origin of the "preliminary question" of constitutionality will have
paramount consequences inside the French legal system. Until now,
constitutional adjudication has been the exclusive field of a very limited
number of specialists - essentially the members of the Constitutional Council
plus some political authorities, their legal advisors and few academics
interested in constitutional litigation (contentieux constitutionne~. Not only the
public at large but also judges, counsels and law students had no practical
interest in that technical discipline since in their activity as legal practitioners
neither the judges nor the advocates were ever involved in constitutional
litigation. The monopolistic mechanism of saisine parlementaire (the referral
from the political minority in the Parliament) excluded all of them from the
constitutional court cases. Before the reform, the Constitutional Council had
held no hearings and no advocate had been involved in an adversarial
procedure and decision. The new system of referral will have the effect of
114 Indian J. Const. L.
percolating the teaching and the culture of constitutional justice inside the
entire legal system, from Law Schools to the special school for the judges
(the Ecole Nationale de la Magistrature).20The Ministry ofJustice is preparing
teaching programs for the judges and the different bars are preparing similar
programs for their members. In the future, constitutional law in France will
become more similar to the way this discipline is taught in the US and other
countries that have judicial review, since even if the ordinary judges will
never be authorized to cancel a statute law, they will increasingly be involved
in the procedure that opens the door of the Constitutional Council.
Evidently it is possible and even likely that in the next few years judges
will be reluctant to accept questions of constitutionality from the parties, it is
also possible that the second filter represented by the highest jurisdictions,
double checking the questions sent by the ordinary judges, will reduce the
impact of the new mechanism opening up to the citizens access to the organ
in charge of constitutional control of the acts of the Parliament. But the legal
culture in France, dominated until now by the supremacy of the statute law
will in any event be deeply modified. This is a sort of cultural revolution
that in the long run can change the relationship of the French citizens with
their constitution.
It is important in this context to notice that the organic law includes a
provision that will certainly play an important role. The point is the follOwing:
the Cassation Court and the Council of State may use their power of filtering
to keep the door of the Constitutional Council closed21
• They could argue
that the question sent by the ordinary judge has to be rejected since the
statute was already examined by the Council. Alternatively, they may invade
the task of the latter producing constitutional interpretations of the statute in
question. To avoid that, the organic law says in Article 23-7: "The
Constitutional Council gets a copy of each decision by the Council of State
or the Cassation Court denying the referral to a preliminary question of
constitutionality". This provision can work, first of all, as a disincentive over
the highest courts to abuse their filtering power. Moreover, the Constitutional
20. It has to be brought to the attention of the reader that in France, like in most of the continental
legal systems, judges are civil servants hired after the end of the Law School and a competitive
exam.
21. The reasons for the absence of the double filter in Italy, Germany or Spain are not entirely clear;
more than the alleged will to avoid an overloading of the Constitutional Council, (French Judges
have no clerks and it would be not difficult to hire a couple of them for each justice.) they may be
found in the will of the powerful French highest jurisdictions to have a say in the mechanism of
referral coming from the ordinary judges.
New Constitutional Adjudication in France 115
Council can certainly find a way in its control ex ante to reverse and quash
the decision of the two highest judicial bodies.
Another provision of the organic law deserves to be highlighted. I
said, in the status quo preceding the reform, that the ordinary judge had no
possibility of asking for control upon the status law, but she had instead the
freedom, if asked by the parties, to avoid using a French statute if she believed
that it was in contrast with the European Convention of Human Rights. The
fact that international law could bypass the French legal and constitutional
system entirely became in the last years a reason of worry and unease for the
French government. Now Article 23-2 proposes that if the party of the trial
claims that a statute is contrary to the Convention and to the Constitution,
the judge is required to start first with the preliminary question of
constitutionality before engaging in the possibility of suspending the
application of the French statute on the basis of the Convention. This last
legal remedy is still open but may only be exercised after the decision of the
Constitutional Council. It is pretty clear that here, there is an attempt to
reverse the decision of 1975 that gave to ordinary judges the "control of
conventionality" and the will to once again place the French constitutio~al
system and its supreme organ at the center of the mechanism of control on
the acts of the Parliament.
The new referral will also play a role in the transformation of the
Council into a true jurisdiction, and indeed the constitutional litigation starting
in the ordinary courts may end up in the Council where there will be hearings
like in a US Supreme Court. Article 23-9 states: "The parties will be able to
present in an adversarial procedure their arguments. The hearings will be
held in public ..." (italics mine). I reiterate that up to now the Constitutional
Council had no hearings.
v.
Having taken into account so far the important transformations
introduced by 61-1 and by the organic law specifying it: a) the transformation
of legal education because of the significant role that constitutional
jurisprudence will play from now on, b) the direct involvement of the counsels
and judges in the access to constitutional adjudication, c) the restoration of
French Constitutional Law at the center of the control over the statute laws
and d) the transformation of the Council into a real Court ofJustice based
on adversarial procedure, we need to ask two largely connected questions
concerning the concrete implementation of the new system. A) On one hand,
we may want to ask what is actually going to change vis-a.-vis the status quo
116 Indian J. Const. L.
characterized by the ex ante control; B) on the other hand, we have to try to
figure out how the new system of ex post adjudication will coexist with the
traditional ex ante one, which will evidently survive and not be replaced at
all.
As to, first, point A), there will, prima facie, be a very limited room
for preliminary questions if we consider that almost any significant statute
has been considered ex ante by the Constitutional Council since 1974.
Undoubtedly, a few statutes avoided constitutional scrutiny since the
parliamentary opposition did not send them to the Council. Famously the
statute banning religious symbols in public high schools (incorrectly known
as the statute forbidding the Islamic scarf) found approval in the Parliament
both of conservatives and socialists. It is, however, pretty certain that in the
next few years there will be a judge in France who will send that statute to
the Constitutional Council. There are unquestionably also a small number
of statutes passed before 1974 that will be scrutinized ex post and declared
contrary to the constitution. But all that will be a marginal increase of the
caseload and a minimalist change in the real functioning of constitutional
adjudication. The second question, B), is much more important. The French
system of constitutional control seems to follow the Kelsenian model of a
negative legislation. The task of the Council looks to be that of a "Super
Judge", in that rather than controlling the legality of the acts of the
administration, it controls the compatibility of a statute, in its abstract phrasing,
with the even more abstract text of the constitution. Evidently this conception
of constitutional adjudication is a fiction. What the members of the Council
have to do when they examine a statute ex ante is to anticipate the possible
future concrete effects of it and seek to modify the text of the statute to avoid
that the anticipated consequences tum out to be an infringement upon the
rights and liberties protected by the constitution.
With the provision of Article 61-1 the task of the Council will be
inevitably modified and should become, over time, similar to the practice of
the Italian Constitutional Court.
The Italian Constituent Assembly introduced an organ in charge of
the guarantee of the constitution in the Charter promulgated in 1948 (see
Articles 134-137), but because of opposition by the social-communist group
and the upholders of the traditional doctrine of Parliamentary sovereignty,
the Assembly was not able to come to an agreement concerning the specific
mechanism of referral. In very general terms, the articles of the constitution
refer vaguely to the Kelsenian model of constitutional syllOgism. Only a few
months after the enactment of the constitution, the Christian Democratic
New Constitutional Adjudication in France 117
government was able to pass the equivalent of an organic law introducing
the "exception of unconstitutionality"22 implying the possibility for the judges
(without any other filter) to send a statute, already extant in the legal system,
to the Constitutional Court if it seemed to be in contradiction with the new
republican democratic constitution. The question had to emerge from a
case or controversy - from a trial for the adjudication of which the judge had
to utilize the statute she considers of doubtful constitutionality. In this
procedure of referral the judge a quo - at the origin of the request - has to
suspend the trial and wait for the decision of the Constitutional Court
concerning the constitutionality of the statute before again starting the trial as
it will be the case in France. The Court has the formal task of judging the
statute as such and of giving a general answer that will be subsequently
applied to any similar situation. I need to remind the reader that the Italian
Constitutional Court is not an appellate court but a guardian of the
constitution and has not to decide the case from which the question emerges.
Nonetheless it is evident, reading the sentences of the Italian Court that the
judgment about the constitutionality of the statute is made, very often,
considering the problems that appear in the concrete application of the
legislative norm, also consideling the specific case the ordinary judge had in
front of her when she sent the preliminary question. What I am trying to say
is that the crucial difference between the ex ante control that has characterized
the French Constitutional Council until now and the judgment ex post typical
of most of the Italian constitutional decisions may consist essentially of the
difference between the anticipation of the effects of the statute in question
and the consideration of the concrete effects of the statute once enforced.
As compared to the members of the French Constitutional Council,
the French Doctrine may, and for a while will be foreign and unfamiliar to
someone used to the adjudication of the Italian Constitutional Court. It seems
to me, in any event, that the door of the Council will be Significantly more
open than in the past only if the constitutional culture of the country will
accept that the arguments to adjudicate a statute ex ante would not cover all
the possible concrete consequences emerging from the application of the
statute laws. It is only from this gap that a new form of constitutional
adjudication can develop, supplementing the control ex ante, and that a
statute, which was already scrutinized, can be sent again by the judges to the
guardian of the constitution, since "new circumstances" (see the organic law,
art. 23.1.2) may appear when the statute is applied and becomes part of the
operating legal system.
22. Constitutional Law n. 1, February 9th, 1948.