Where Judicial Politics Are Legislative Politics: the French Constitutional Council

Yale University

From the SelectedWorks of Alec Stone Sweet

1992

Where Judicial Politics are Legislative Politics: The rF ench Constitutional Council Alec Stone Sweet

Available at: https://works.bepress.com/alec_stone_sweet/60/ West European Politics

ISSN: 0140-2382 (Print) 1743-9655 (Online) Journal homepage: http://www.tandfonline.com/loi/fwep20

Where Judicial Politics Are Legislative Politics: The French Constitutional Council

Alec Stone

To cite this article: Alec Stone (1992) Where Judicial Politics Are Legislative Politics: The French Constitutional Council, West European Politics, 15:3, 29-49, DOI: 10.1080/01402389208424919 To link to this article: https://doi.org/10.1080/01402389208424919

Published online: 03 Dec 2007.

Submit your article to this journal

Article views: 232

View related articles

Citing articles: 10 View citing articles

Full Terms & Conditions of access and use can be found at http://www.tandfonline.com/action/journalInformation?journalCode=fwep20 Where Judicial Politics Are Legislative Politics: The French Constitutional Council

ALEC STONE

Judges on France's ordinary and administrative courts make law and policy by interpreting and applying statutes, but the Consti- tutional Council is overtly involved in policy-making. The Council serves as a type of 'third' chamber of the French parliament, where it may annul unconstitutional legislation, 'constitu- tionalise' various legal principles, and sometimes even prescribe the precise terms of legislation. This 'court-like' body, thus, plays a significant and growing role in French policy-making.

'If the average Frenchman', wrote a Fourth Republic proponent of judicial review, 'were asked, "what is democracy?", he would not hesitate to answer: "It's the sovereignty of the people whose will is expressed by the majority vote of the elected assemblies'".1 This 'Rous- seauian orthodoxy' - the identification of legislation with the 'general will' and legislators with popular sovereignty - has been enshrined in French constitutions since the early moments of the Revolution of 1789, producing a separation of powers doctrine that rigidly circumscribes judicial authority. The subservience of the judiciary to the work of the legislator is grounded in French law. Judicial review (in the American sense) was made a punishable offence in the penal codes of 1791, and no judge since has ever struck down or refused to apply a statute for being unconstitutional. Despite this prohibition, French judges (not unlike their counterparts elsewhere) make law all of the time. In the ordinary and administrative courts, law is made most frequently when judges are required to determine the applicability and meaning of one or more statutes in litigation before them. This process, banal to common law lawyers, has resulted in a quiet but significant transformation of the judicial role and function in France. Most spectacularly, during the Fourth Republic, courts and particularly the Council of State began to discover and catalogue an array of constitutional principles that could be invoked by parties to litigation. These 'general principles of law' include such elastic notions as 'individual liberty', 'equality before the law', 'freedom of conscience', and 'non-retroactivity'. 30 JUDICIAL POLITICS AND POLICY-MAKING IN W. EUROPE French doctrine (predisposed to counter charges of usurpation) has it that these principles have been 'deduced as a matter of statutory interpretation', from the 'general spirit of legislation', based 'on the assumption that the legislator is anxious to preserve the essential liberties of the individual'.2 Perhaps. In any case, the primacy of judicial interpretation - and thus the meaningful capacity to make policy - has been secured in all but name. The ordinary and administrative courts, in sum, are national policy-makers to the extent that the aggregate effect of their decisions is to clarify, reinforce, or reshape general norms enshrined in code law. Carrying some of these themes forward, this article's focus is on a different sort of policy-maker - the Constitutional Council. My thesis is that the Council, France's constitutional court, functions as a specialised, third chamber of parliament.3 The thesis is offered as a useful conceptual and analytical device for students of French judicial politics and policy-making; it is not meant in itself to prejudge the fierce normative debates that have attended the development of the Council as a powerful legislative actor. In its most simple form, the argument is derived from analysis of certain structural elements of the French constitutional review mechanism, the policy-making effects of which have been magnified by jurisprudential creativity. The Council's impact on policy outcomes and the policy-making environment will also be examined. The third chamber thesis will be explicitly laid out and defended in the conclusion.

THE STRUCTURAL SETTING OF FRENCH CONSTITUTIONAL POLITICS In several crucial respects, the French Council is unlike any constitutional court in any other western democracy. First, its 'constitutional review' authority - the power to declare legislative acts unconstitutional and therefore void - is exclusively a priori and abstract. 'Abstract review' lacks formal 'judicial' status in that it is constitutional review in the absence of litigation. The proceedings are instead initiated by politicians who refer legislation directly to the constitutional court for a ruling. A priori review is abstract consideration of legislation that has not yet entered into force. This mode of review contrasts sharply with the more familiar and widely spread 'concrete review', which is trig- gered by an existing judicial 'case or controversy'. The US Supreme Court may only engage in concrete review; the constitutional courts of Austria, Germany, Portugal and Spain possess powers of both concrete and abstract (but not a priori) review, although abstract review activities constitute only a tiny fraction of each court's caseload.4 THE FRENCH CONSTITUTIONAL COUNCIL 31 The Council lacks 'judicial' status in another important way. Unlike all other western constitutional courts, the Council is detached from the judicial system. The Council may neither instruct nor hear cases on appeal from the judiciary. Some otherwise influential constitutional law specialists have sought to convince attorneys and judges of the need to integrate the Council's jurisprudence into their own advocacy and decision-making, but their project has so far been unsuccessful. As Favoreu has lamented, judges do not feel bound by the Council's jurisprudence.5 The relationship between the Council and the administrative courts is more complicated. The traditional rule, according to which the Council of State (France's highest administrative tribunal) is bound by the impact of a Council decision but not by its argumentation, has not broken down. The first part of this rule is actually quite unremarkable: the Council of State is bound by the terms of statute, and since a Constitutional Council decision is the final stage of the legislative processes, its effect must be respected. In the past decade, both the Constitutional Council and the Council of State have made efforts to harmonise their jurisprudence in the interest of coherence, not because either body has felt obliged to do so. The magnitude of the role that politicians play in the French system of review is also exceptional. Politicians appoint Council members to nine- year terms. The President of the Republic, the President of the National Assembly, and the President of the Senate each names one member every three years. Unlike rules governing the recruitment and composition of other constitutional courts, there exist no formal prerequisites for membership beyond age (a minimum of 18 years) and citizenship. No prior legal training is required (as is mandatory for every other European constitutional court), and there is no means of blocking appointments. In practice, the single most important criterion for selection is partisan affiliation. Since the Council's creation in 1958, former government ministers and parliamentarians have always constituted a majority of its members. Though only four professional judges have ever been appointed, certain eminent law professors have had enormous influence on the Council's jurisprudential development, notably, François Luchaire in the 1970s, Georges Vedel in the 1980s, and since 1989, Jacques Robert. Until the mid-1980s, the Council's right-wing character was virtually an axiom. The Socialists appointed their first Council member only in 1983, increased their share to four in 1986, and finally achieved a majority in 1989. Until the mid-1980s, political and scholarly criticism of the Council focused on the partisan nature of the its composition, but, since that 32 JUDICIAL POLITICS AND POLICY-MAKING IN W. EUROPE time, has centred more on the Council's jurisprudential activism and expanding influence over the legislative process. Unfortunately, we can not adequately study the link between the Council's composition and its decision-making, because it deliberates and votes in official secrecy and neither dissenting nor concurring opinions are permitted. Thus, although the recruitment of Council members is partisan and calcu- lations of advantage to be obtained by appointments are made by public authorities, this influence is almost impossible to measure. The power to initiate constitutional review is also monopolised by national politicians, for only pending legislation (a bill adopted by parliament but not yet signed into law by the President) is eligible for referral. Until 1974, only four officials - the President of the Republic, Prime Minister, President of the Assembly, and President of the Senate - could petition the Council for a ruling. In 1974, however, a constitutional amendment extended this power to any 60 deputies or 60 senators. A referral automatically suspends a bill's promulgation pending a ruling on its constitutionality. No authority may block such referrals, and, since no 'political question' doctrine exists, the Council must render a judgment within 30 days. Decisions of the Council are final, and no appeal is possible.

Judicial Creativity and Discretion The Council is clearly not a judicial body in the way that the term 'judicial' has traditionally been understood in both common and civil law theory. Judicial bodies are those that meet certain minimum criteria: they must (1) be composed of judges who are (2) primarily engaged in settling disputes brought by (3) real-life litigants who (4) argue a concrete case or controversy before them according to (5) fixed, contradictory procedures.6 The Council partially satisfies only the first two criteria. For most of this century, French legal science was extraordinarily hostile to any form of review that was not performed by the courts. But by the end of the 1970s, consensus had been reached among doctrinal specialists that the Council ought to be considered a 'judicial' or 'court-like' body, because it possesses the power to determine the content and applicability of constitutional law.7 It makes little differ- ence, these specialists argue, what process yields the opportunity to make such determinations; the result is the same. The Council certainly performs a powerful judicial role in the legislative process. Like all constitutional jurisdictions, the Council makes final decisions with respect to the constitutionality of legislation, and these decisions are in the form of and constitute a jurisprudence. Although an adequate treatment of the evolution of this jurisprudence is THE FRENCH CONSTITUTIONAL COUNCIL 33 well beyond the scope of this piece, familiarity with the parameters of the Council's decision-making is essential to an understanding of French constitutional politics. As is well known, the framers of the Fifth Republic expected the Council to function as a guarantor (one of several) of executive power and control over the assemblies. Unlike other European constitutional courts, the Council was not expected to engage in substantive constitutional review and was not granted jurisdiction over a bill of rights. In fact, the present constitution did not originally contain a general list of rights binding on legislators. Although the preamble to the 1958 Constitution declares the 'solemn attachment' of the French people to the preamble of the 1946 Constitution, the framers insisted that neither preamble possessed constitutional status. This was necessary, they stated, in order to avoid a 'government of judges' situation.8 In a famous 1971 decision, the Council 'incorporated' the preamble into the Constitution and asserted jurisdiction over it.9 In doing so, the Council elevated certain texts proclaimed or alluded to in the 1946 preamble to constitutional or higher law status. The following texts now constitute the French bill of rights and, when combined with the constitutional text proper, make up the Council's jurisprudential norms of reference: 1. the 1789 Declaration of the Rights of Man (simply mentioned in the 1946 Preamble), which includes rights of due process, equal treatment under the law, free speech and conscience and property ownership; 2. the 'Fundamental Principles Recognised by the Laws of the Republic' (FPRLR), mentioned but not enumerated in the 1946 preamble; and 3. 'the political, economic and social principles particularly necessary to our times' (the 1946 principles), which constitute the vast bulk of the 1946 preamble, proclaiming, among others, the following: equality of the sexes; the right to work, to join a union, to strike and to obtain social security; and the responsibility of the state to guarantee a secular school system and to nationalise all industries that have taken on the character of a monopoly or public service. The 1946 preamble, therefore, gives expression to radically opposed notions of individual and collective rights and of the proper relationship between state and society. Because of its proclamation that property rights were 'sacred', the 1789 declaration was dear to the political right and an anathema to the left. The 1946 principles constituted the then majority's (the left's) version of a bill of rights, and the vague phrase, 34 JUDICIAL POLITICS AND POLICY-MAKING IN W. EUROPE the FPRLR, was actually a bid by centre and centre-right Catholics to protect the private school system. What is certain is that had the framers foreseen the preamble's incorporation by the Council, only the 1946 principles would have stood a chance of inclusion. In fact, due to the 'outmoded conception' of property rights that it contained, the direct incorporation of the 1789 text into the 1946 Constitution was rejected overwhelmingly by the Constituent Assembly.10 In retrospect the Council's 1971 decision and subsequent jurisprudence of the Preamble radically expanded the Council's own capability for discretionary law making. From a legislator's perspective, this jurisprudence introduced an extraordinarily high degree of uncertainty into the policy-making process. This was so because the content and nature of the obligations contained in the preamble were unknown, in dispute or in outright contradiction. Since 1971, virtually all of the Council's most important decisions, at least measured by legal and political impact, have been based on the preamble. Moreover, as will be shown in case studies below, the Council has used these decisions to construct a general hierarchy of norms binding on legislators, subordinating the 1946 principles to the dictates of the 1789 document. The 'Juridicisation' Phenomenon Table 1 summarises the Council's constitutional review activities. Several points about these numbers should be made. First, referrals to the Council are the most effective means of opposition available to parliamentary minorities. The 1971 decision and the 1974 amendment combined to reinforce this fact, by expanding the system's procedural and substantive capacity to generate review. Not surprisingly, since 1974, every budget and nearly every important or controversial piece of legislation has been the subject of referral. Second, after 1974, virtually all petitions have been made by parliamentary minorities. French constitutional politics are, therefore, opposition politics; if the opposition cannot win in parliament, it goes to the Council. Last, while the opposition has little to lose in initiating review, it can reasonably expect to win something. In the 1980s, half of all petitions resulted in full or partial annulment. As I have argued elsewhere, the Council's impact on legislative processes has been extensive and transformative, and, indeed, French policy-making processes can often be described as 'juridicised'.11 I do not wish to repeat the whole of this argument beyond making the following essential points. Most important, the Council's impact on legislative processes and outcomes is both direct and indirect. Once petitioned, the Council's legislative role is a direct one, as a negative THE FRENCH CONSTITUTIONAL COUNCIL 35

TABLE 1 CONSTITUTIONAL REVIEW AND THE COUNCIL: 1958-1990* 1959-73 1974-80 1981-90 Number of Referrals 9 66 183 Referring Authority President of the Republic 0 0 0 Prime Minister 6 2 2 President of the National Assembly 0 2 0 President of the Senate 3 0 2

Parliamentarians (total) - 62 179 Deputies - 49 101 Senators - 13 78

Result Number of Decisions Rendered 9 46 123 Number of Decisions Censuring Referred Text 7 14 66 Number of Decisions Favorable to Referred Text 2 32 57 * Due to multiple referrals, the number of referrals since 1974 is larger than the number of decisions. decision constitutes a veto. But the Council also exercises an indirect impact to the extent that opposition groups systematically invoke the authority of past decisions and threaten referral, and thus future Council censure is used to convince the majority to compromise initially-held policy choices during parliamentary stages of the legislative process. Many of the most important reforms of the past decade have been substantially altered as a result of such 'juridicised' debates for essentially anticipatory reactions. Second, a kind of structured com- plicity exists between the Council and opposition politicians. Petitions provide the Council with the opportunity to build constitutional law and - the same thing - to make policy; Council decisions serve to expand the grounds of constitutional debate within parliament and in future petitions.

THE COUNCIL LEGISLATES Students of French policy-making have good reason to conceptualise the Council as a third legislative chamber. Council decisions are more than additions to a jurisprudential corpus; they are also important political events. As the case studies that follow illustrate, every decision consti- 36 JUDICIAL POLITICS AND POLICY-MAKING IN W. EUROPE tutes, both in timing and in impact, the final stage of one legislative process and sometimes the opening stage of another. The examples that follow are taken largely from the 1981-87 period, an era of 'radical reform' and intense political struggle over a polarised legislative agenda. A radical reform (une grande réforme) here denotes legislation that seeks a meaningful and non-incremental transformation in governmental capacities or in the balance of power between state and private actors. Radical reforms strain the confines of existing law, jurisprudence and established administrative procedures. From 1981- 85, and for the first time in the Fifth Republic, a Socialist government sought to actualise the 1946 principles and to promote 'liberty', largely understood as the rights of workers, women and the secular collective. The right, on the other hand, wanted to maintain the spirit of 1789 declaration and defend 'liberty', understood primarily as rights to property and of individuals against a collectivist state. The right's return to power in 1986 brought another series of grandes reformes, but in a neo- liberal direction. The Council, as a result, enjoyed unprecedented opportunities to develop previously unexplored areas of law. The Council's decisions on Socialist nationalisation in 1982 and on the press and audiovisual reforms of 1984 and 1986 are among its most controversial and important. These decisions capped unusually rancor- ous, even for the French, legislative processes that were also fully juridicised - that is, constitutional debate came to dominate and eventu- ally overwhelm the legislative one. Each decision was a complex annulment of the government's preferred text; each annulment was based on the preamble; and each led to a second legislative process, the purpose of which was to implement the Council's policies as a means of securing promulgation. What is arguably the most important Council ruling in history was rendered on 16 January 1982, on the very centrepiece of the left's programme, a bill to nationalise five industrial conglomerates, 36 banks and two financial investment companies.12 The bill had been adopted after nearly three months of tortuous constitutional debate in parliament. In each of its parliamentary readings, the right had raised 'motions of unconstitutionality' (exceptions d'irrecevabilité) against the bill. Such a motion, written and presented in the form of a judicial decision, interrupts the chamber's work for a debate on the bill's constitutionality; the motion is then put to a vote and, if passed, the bill is rejected. Subject to strict party discipline, these motions were defeated in the assembly, but adopted by the right-wing dominated Senate. Refusing to compromise, the government had the assembly override the Senate's veto, and the bill was immediately referred to the Council by no fewer than 174 senators and 122 deputies. THE FRENCH CONSTITUTIONAL COUNCIL 37 The fate of the legislation proved to be tied to the resolution of the central controversy of French constitutional law, the nature of the relationship between three seemingly contradictory texts: art.34 of the 1958 Constitution, the 1789 declaration, and the 1946 principles. Article 34 grants to parliament the power to legislate in certain speci- fied subject matters, a grant that includes the exclusive authority to nationalise and to privatise. In French legislative discourse, appeals to the sanctity of art.34 are appeals to majority rule and parliamentary sovereignty, that is, to Rousseauian orthodoxy. The 1789 declaration, however, lists constraints on law making, since art.17 declares, 'property being inviolable and sacred, no one can be deprived of it in the absence of public necessity, legally declared, obviously warranted, and without just and prior compensation'. Finally, the 1946 principles, intended to supersede the 1789 text, proclaim an obligation to nationalise in certain circumstances: 'Every asset, every enterprise, whose exploitation is or has acquired the character of a national public service or of de facto monopoly, must become the property of the collective'. In the absence of constitutional review and of an enforceable preamble, these contradictions, like so many others in French constitutional history, would be harmless. Article 34 would simply have triumphed without a fight. The Council ruled that nationalisations were constitutional in principle, under art.34, but that the authority to nationalise could only be exercised in accordance with 'principles and rules possessed of constitutional status', that is, those dwelling in the preamble.13 However, it vetoed the bill on the grounds, among others, that the compensation formula did not meet the constitutional requirements laid down by art. 17 (1789). The Council then went on to state in great detail how the Socialists should have handled payment in the first place, and, in effect, elaborated a new compensation formula. The government was left with few choices, since the Council had made it clear that the nationalisations could go forward only after the compensation scheme had been corrected. Deciding against escalating to constitutional crisis, the government drafted a second nationalisation bill, that mechanically adopted the Council's preferred compensation policy.14 Not surprisingly, this 'corrected' bill, that raised the costs of nationalising by a full 25 per cent, was approved by the Council on 11 February 1982 and promulgated the same day.15 As a matter of concrete impact, the Council's decision had the effect of holding the reform hostage until stockholders had received sufficient ransom. To most politicians, the jurisprudential stakes at hand were far less salient; as Michel Rocard complained, 'instead of stating the law, 38 JUDICIAL POLITICS AND POLICY-MAKING IN W. EUROPE [the Council] is stating the price'.16 But Rocard was wrong. In terms of constitutional law, the decision proved to be the Council's most significant since 1971, establishing a general hierarchy of legal norms to be protected by constitutional jurisprudence. First, the Council declared that the 'sacred and inviolable' nature of the right of property contained in art. 17 (1789) had not been eroded and, in fact, was even supplemented by an unwritten principle that the Council now elevated to constitutional status: the right to engage in free enterprise (the liberté d'entreprendre). The Council then ruled that the 1946 principles (as well as the FPRLR) could only 'complement' the 1789 declaration and could never contradict or limit the enjoyment of the rights that the latter text contains. Line 9 (1946) was judged to have no legal effect on the question at hand. The Council thus imposed an interpretation of the preamble that was wholly antithetical to the founders' intent in 1946. The discordant terms of the preamble were fully harmonised: as a legal text, the 1789 declaration must, in all instances, take precedence over the 1946 text, which henceforth may serve only a complementary and never a contradictory jurisprudential function. Along with nationalisations and privatisations, media politics dominated the legislative agenda of the past decade, and no other policy area was more controversial. In 1984-86 successive governments sought to reshape the legislative regimes governing the press and audiovisual sectors; that enterprise yielded three Council decisions, including the two longest and most complex in history. Dense and technical, neither the legislation nor the jurisprudence can be comprehensively examined here. I will instead focus on the most intractable legislative-constitutional problem that confronted policy-makers: how best to secure and then guarantee 'media pluralism', defined as the possibility for French citizens to exercise meaningful choice from among a range of infor- mation sources representing diverse ideological views.17 The general purpose of the 1984 press bill was to establish an enforceable anti-trust policy to counter the rapid concentration of the news- paper industry that had begun in the early 1970s. The anti-trust rules then in place required a strict one person/one paper standard, but they had never been enforced. Indeed, the rules had been openly flouted by the right wing (RPR) deputy and press baron, Robert Hersant. In a series of shady deals during the 1970s, Hersant was able to amass a press empire that included 19 dailies, seven weeklies, and 11 periodicals. After the 1981 elections, Hersant mobilised his papers, especially his flagship daily Le Figaro, vigorously to oppose the Socialist government and to promote Jacques Chirac's emerging neo-liberal agenda. Thus, while the government could justly claim that its bill was designed to THE FRENCH CONSTITUTIONAL COUNCIL 39 protect diversity in the industry and to restore respect for the rule of law, its partisan aspects were crudely evident. The legislative battle was waged primarily in the language of constitutional law, but arguments were no less recognisable as pro- or anti- Hersant. For Socialists, the collective had a responsibility to restrict the rights to property when their exercise had the effect of infringing the enjoyment of non-economic rights. Freedom of the press was conceived as the right of readers to choose from among a variety of papers representing the diversity of opinion within society. This right could no longer be guaranteed, claimed one minister, because 'certain men' had engaged in 'fraud', 'cheating', and 'embezzlement'. The opposition argued that talk of rights only obscured the government's true motive, which was to take revenge on Hersant. For the right, freedom of the press was conceived in terms of ownership, of what Jacques Chirac called the 'inseparable principles of the freedom of expression, the right of private enterprise and the rights to property'.18 The bill submitted to parliament bore slight resemblance to the one finally adopted nearly a year later. Of the original 42 articles, 26 were substantially rewritten, and most of these changes were made under the threat of referral. In its final rendition, the law relied on a 'fixed market ceiling' anti-trust mechanism - maximum percentages of total circulation for daily newspapers that any press group could fill. The law forbade any one group from controlling more than (1) a 15 per cent share of the national (Parisian) market or 15 per cent of the total regional circulation or (2) 15 per cent of the national market and ten per cent of the regional market. A special regulatory body, the Commission on Financial Accountability and Press Pluralism (CFAAP), was created to police the rules and to force sell-offs if necessary. Rejected by the Senate on constitutional grounds, the bill was adopted by the National Assembly and referred to the Council by opposition of both chambers. In one of its most complex decisions ever,19 the Council annulled parts of ten different articles of the law. As a matter of constitutional interpretation, the Council agreed with the government that at issue was the protection of the rights of readers to choose. Relying on art.11 of the 1789 declaration (consecrating freedom of expression), the Council deduced that 'pluralism', though not mentioned in any constitutional text, was 'an objective possessed of constitutional status'. It then went on to declare this extraordinarily general rule: henceforth law-makers could never weaken the protection of a constitutional right or liberty, but could only strengthen that protection. This is now known as the 'ratchet effect'. In terms of its concrete legislative impact, the decision destroyed the 40 JUDICIAL POLITICS AND POLICY-MAKING IN W. EUROPE bill and saved the Hersant empire. Though the Council affirmed legislative competence to set fixed ceilings, it ruled that the CFAPP could not apply the ceilings to 'existing situations' and press groups could not be forcibly dismantled unless: (1) these situations had been illegally acquired or (2) pluralism was actually threatened. The Council then judged that neither condition had been met. In so ruling, it wilfully ignored the lengthy parliamentary discussions of the illegality of Hersant's situation. It also unambiguously substituted its judgment for that of the government and of the majority, declaring that pluralism was 'not currently weakened in a manner so serious that it would be necessary to apply [anti-trust provisions] to existing situations'. The Council's decision, not to mention its spectacular legislative effect, is impossible to reconcile with the oft-repeated claim that the Council does not exercise discretionary powers comparable to those of parliament. What was left of the bill was promulgated. But bereft of an effective enforcement mechanism, it could not fulfil its intended purpose. Not only did the law make it legally impossible for any other group to increase its market share to the level enjoyed by Hersant, but also the press baron was emboldened to acquire more regional dailies. By March 1986, when the right returned to power, the Hersant press group controlled more than 38 per cent of the national market and more than 26 per cent of the regional one, including an absolute monopoly in the nation's largest multi-paper regional market, the Rhône Valley. In comparative terms, the percentage of the total French market controlled by Hersant is greater than that controlled by any press group in any western democracy. One of the first measures undertaken by the Chirac government was to 'liberalise' the press regime by, among other things, removing the fixed market ceilings established by the 1984 law. The Socialists immediately attacked the bill on the grounds that it would not protect pluralism as least as well as the regime to be abrogated, with reference to the jurisprudence of the 'ratchet effect'. The majority reluctantly agreed to add market ceilings, but these were fixed at 30 per cent and would only be applied to a single, unified market for all dailies. Hersant's share under this formula would have fallen somewhere between 28 and 29 per cent, provoking the Socialists' condemnation of the measure as an 'amnesty bill'.20 In a short decision that broke no new ground, the Council reaffirmed that pluralism was an objective of constitutional status and annulled the anti-trust provision.21 Inexplicably the Council chose not to rely on its own jurisprudence of the 'ratchet effect', presumably because the raising of fixed ceilings did not weaken the legislative protection of pluralism. The Council did accept other criti- THE FRENCH CONSTITUTIONAL COUNCIL 41 cisms made by the petitioners, namely that the provision was poorly worded and, therefore, would not provide an effective guarantee of pluralism. The Chirac government's audiovisual bill was designed to privatise the broadcast industry and to deregulate the communications sector as a whole. The left, seeking an effective means of structuring privatisation, sought to extend the constitutional politics of press pluralism to the audiovisual industry. The government could respond that broadcasting was unlike the press sector in at least one crucial respect. In 1986 private capital did not pose an existing challenge to pluralism, since the state's longtime broadcasting monopoly constituted the only important concentration in the field. Moreover, because the bill would create wider access to broadcasting rights, its legislative effect, at least at this stage in the development of the industry, could only be to favour pluralism. That said, the government actively sought to encourage the formation of media groups. The French telecommunications industry, the government argued, was far less concentrated and therefore less competitive internationally than the German, Dutch or even the British ones. Nevertheless, fear of Council censure led the government to include anti-trust provisions. In brief, for television channels, rules were based upon a maximum interest (25 per cent) any one person or group could hold; for radio frequencies, the bill relied on generous fixed ceilings for maximum potential audience. The Socialists argued that the law as written would allow unacceptably high degrees of concentration of ownership and the formation of multi-media conglomerates. On 18 September 1986 the Council agreed and annulled 14 articles of the legislation and provided instructions as to how the bill should be re- vised.22 In October a single bill to 'correct' both the press and audiovisual legislation was adopted and promulgated, with the government choosing to incorporate the precise language of the decisions directly into the censured provisions. As a result, an elaborate anti-trust regime governing the whole of multi-media communications, inclusive of cable and satellite broadcasting, emerged with strict limits on the development of multi-media groups. In these and many other cases, the Council exercised its veto authority over important legislative priorities. It also, however, demon- strated its creative capacity to recast the policy-making environment, to encourage certain legislative solutions and undermine others and to insert the precise terms of its jurisprudence into legislative provisions. The virtual constitutionalisation of anti-trust mechanisms based on fixed market ceilings provides a dramatic example. For the Socialists, fixed ceilings were the tools of preference to dismantle the Hersant press 42 JUDICIAL POLITICS AND POLICY-MAKING IN W. EUROPE group. The Council's decision not only thwarted this objective, but had the perverse effect of freezing Hersant's dominance. Once in power, the right, which was virulently opposed to fixed ceilings in principle, was unsuccessful in eradicating them. The Chirac government then felt obliged to extend complex and multi-dimensional ceilings to the whole of communications, in spite of the fact that one central priority of its programme was to permit the emerging audiovisual sector to develop free from such shackles. The anti-trust formulas now prevalent in this area have acquired a kind of indirect constitutional value of their own. This result can only be understood by taking into account constitutional politics and the Council's power to legislate. The 1981-87 period was one of nearly continuous judicial-political confrontation. While in power ministers and leading politicians of both left and right complained of a 'government of judges' situation and made more or less veiled threats to abolish the Council, to alter its institutional mandate and to overturn its decisions by referenda.23 In 1986 the Minister of Justice even proposed that a charter of rights be codified by parliament to curb the Council's 'vast discretionary power'.24 The intensity of these unprecedented public attacks testifies to the resilience of the Rousseauian orthodoxy of parliamentary sovereignty. When in opposition, however, the same politicians have contributed mightily to the Council's development as a powerful policy- maker, defending the legitimacy of review by way of the ideology of constitutionalism. The aggressive doctrinal effort to defend and legitimise constitutional review in France rests on the view that the Council performs the vital and essential role of protecting basic rights against abuses by the legislature. Primarily in its jurisprudence of the preamble, the Council is engaged in codifying a bill of rights. These rights are most effectively '«institutionalised', or elevated to constitutional status binding on legislation, when they constitute the basis of an annulment. Up to 1989 the Council has used the 'principle of equality' (appropriated from the Council of State's jurisprudence) to annul legislation 11 times; the FPRLR, five times; the 1789 declaration, 18 times; and the 1946 principles, only twice.25 This activity is not politically neutral, precisely because the preamble has long been a site of intense ideological conflict. Judged by the tenets of traditional political discourse on rights, the Council's work has so far been conservative, at times reactionary, especially on those rights that have been most in dispute. The Council's most important early decisions on rights, including those that relied upon the 1789 declaration, were celebrated (and in most cases initiated) by the left. In 1971 the Council declared 'freedom THE FRENCH CONSTITUTIONAL COUNCIL 43 of association' to be a FPRLR, annulling a bill to deny radical groups certain administrative privileges. The Council annulled a 1977 bill to grant police wide authority to stop and search vehicles on the basis of another FPRLR, that it called 'individual liberty'. And in its leading decision on penal law, the 1980 'Security and Liberty' decision, the Council 'constitutionalised' a number of principles of due process and the rights of the accused found in the 1789 declaration and in the FPRLR.26 But the left's own version of a charter of rights, the 1946 principles, has fared much worse. Only one such principle - the right to strike - has served as the basis for annulment. In 1979 and 1987 the Council ruled that this right had been abridged by legislation. If it won a victory of sorts, the Council took pains to place strict limitations on its exercise, invoking unwritten constitutional principles, such as the 'continuity of public service', to offset it. When in conflict with principles found elsewhere, the 1946 text has consistently lost out. In the nationalisation decision, the concept of property rights contained in the 1789 declaration was judged to take precedence over that contained in the 1946 document. In a November 1982 decision on the Socialists' municipal elections law, the Council struck down a provision that sought to require that all ballots contain at least 25 per cent women candidates; the attempt to actualise the 1946 principle of 'equality of the sexes' had fallen victim to art.6 (1789) that guarantees French men equality under the law. In January 1984 the Council annulled a bill that would have given all faculty equal rank for the purposes of university elections and, thereby, would have established meaningful rights of participation for the majority of teachers who were not full professors; in an extremely creative judgment, the Council relied on art.11 (1789) on free expression and a FPRLR labelled 'professorial independence'.27 While many of these decisions have provoked disgruntled politicians to attack the Council publicly, one line of jurisprudence has so far been immune to such reactions: decisions on changes in the penal codes. This has been the case even for highly politicised and controversial legislation. The 'Security and Liberty' bill, for example, was the very first Council ruling on what was unquestionably a grande réforme. Although the bill was the subject of ferocious debate and although a number of provisions were annulled by the Council, neither the government nor its parliamentary supporters protested against the decision. In August and September 1986 the Council rendered five decisions on a series of bills (the lois Pasqua) that together constituted a central plank of the Chirac government's platform: the tightening of the penal codes.28 The government sought to restrict the rights of accused, leng- then sentencing requirements for certain crimes and widen the discre- 44 JUDICIAL POLITICS AND POLICY-MAKING IN W. EUROPE tionary powers of the security forces. The fact that by 1986 the Council's rulings in the area added up to a relatively coherent and knowable jurisprudence contributed to the nearly complete juridification of the parliamentary processes by which these bills became law. At first resist- ant to compromise, the Chirac government allowed the reforms to be gradually but substantially rewritten. Left to a small group within parliament, each bill was discussed with regard to its constitutionality and to relevant Council decisions. Deputies involved possessed ad- vanced legal training and tended to see the exercise as a technical one, relatively divorced from partisan concerns. In the end, the bills came out far less draconian than promised. The Council even expressed its appreciation of the effort, citing with approval in one decision a Socialist amendment, accepted by the right, requiring the police to obtain judicial permission before photographing and fingerprinting certain sub- jects.29 The legislation was referred to the Council, which annulled provisions contained in two of the five bills. The annulments were minor matters, and no negative political reaction to them is recorded. This appears to be a general phenomenon, for none of the Council's dozen or so decisions on legislation seeking to revise the penal codes has provoked protests or charges of usurpation. Politicians appear to accept that constitutional control over penal law is not only legitimate but also healthy. This is probably so primarily because the constitutional principles at issue had long been enshrined in parliamentary work. Moreover, neither right nor left views them as partisan possessions, contaminated by ideological bias. When the Council 'constitutionalised' these principles, its action reflected a consensus, one that had existed before the Council was born and one that had long inspired, in concrete ways, code law. When the Council reviews nationalisations, anti-trust regulations, the redrawing of electoral boundaries, and so on, it is on very different ground. In these areas, the Council is implicated in highly-charged ideological disputes, however much the vocabulary of constitutional law has come to infect them. The continually reiterated argument by law professors that the Council functions to protect the rights of French citizens is one designed to bolster Council legitimacy.30 But it begs an important empirical question: whose and which rights are being protected? Ultimately, the claim constitutes not only an implicit admission that the Council makes law, but an assertion that review is justified because courts make better law than do legislatures. The view that the Council is a necessarily better situated or efficacious defender of rights than is parliament, at least until the Council is granted the power of concrete review may be disputed. The 1981-85 period, as Safran has shown, provides an extraordinary THE FRENCH CONSTITUTIONAL COUNCIL 45 example of what can be done when parliament is under the direction of a government devoted to the extension and protection of individual rights and due process.31 The Council's accomplishments in this area pale in comparison.

CONCLUSION Conceptualising the Council as a third chamber and as a policy-maker is not in itself a criticism of the Council's role or behaviour. Such a conceptualisation simply yields a more realistic view of the dynamics of French constitutional politics than others available. A bill is normally introduced by the government into the National Assembly; it moves on to the Senate; and, if it is an important bill, it goes to a third place, the Council. That place functions as a specialised third chamber, specialised because its work is meaningfully restricted to decisions about constitutionality. Nevertheless, it is crucial to emphasise that these decisions are not less legislative for being constitutional. Council decisions can never be separated from the legislative processes and outcomes of which they form a part. Put somewhat differently, constitutional jurisprudence is the lasting, written record of a final reading by a third body required to pass on legislation before promulgation. The third chamber thesis has been criticised on two main grounds: that the Council (1) is not self-activating and (2) does not possess the same discretionary powers as the National Assembly and the Senate.32 These criticisms will be addressed in turn. First, if all third chambers must be self-activating, then the Council is not a third chamber by the sole virtue of restrictive definition. However, if such a definition were to be accepted, we might not be able to include the British House of Commons or the French National Assembly in a list of parliamentary chambers. Neither is self-activating and for the same reasons. Both are examples of what Polsby calls 'arena legislatures', to be contrasted with 'transformative legislatures': the former does not legislate, but instead ratifies policy choices made by the executive, while the latter (the US Congress) legislates free from formal outside control.33 The French executive dictates the legislative agenda, the assembly cannot pass laws or adopt amendments over the government's objection, and the Senate's veto is merely suspensive. But the Council is the only institution whose policy preferences the government cannot ignore, reverse or quash. Second, the Council is clearly not the assembly. It is a constitutional court that possesses a priori jurisdiction over legislation. It does, however, exercise discretionary powers that are legislative in nature - that 46 JUDICIAL POLITICS AND POLICY-MAKING IN W. EUROPE is, the legal norms generated by the Council's jurisprudence are general and prospective in precisely the same way that legislation is. When ruling for the first time on a given legislative issue area or where accumulated precedence is thin, the Council enjoys a huge 'margin of manoeuvre', precisely because the existence and applicability of many principles are only known after a Council decision. In consequence, legislative work is constrained by rules and precedents created and policed by the Council. Further, the notion that parliament has greater 'liberty of choice' than does the Council does not stand up to scrutiny. It is an empirical fact, for example, that the Council's impact on the 1982 nationalisation law and dozens of other bills far outweighed that of the National Assembly or Senate; that is, the Council's amendments were more extensive and significant than were parliament's. The primary function of an arena legislature is to legitimise, not to legislate. Carcassonne has written that the Council 'has never crossed the line which would make it a 3rd Chamber, imposing its will on the other two chambers [emphasis added]'.34 But on the one hand, there is nothing in the Council's constitutional mandate to stop it from crossing that line; and, on the other hand, the statement is simply untrue. Exceptions include every total annulment handed down by the Council, as well as the Council's annulments of legislative intent, as when the Council forbade the dismantling of the Hersant press group. For constitutional review to be effective anywhere, the institution that exercises it must be able to impose its will on other institutions. And, if annulments do not constitute such an imposition, no act of the Council or any other institution can. Many French politicians, not limited to those critical of review, think of the Council as a third chamber and employ variations on the meta- phor constantly. In 1986 one parliamentary supporter of constitutional review described the Council's evolution as a gradual transformation 'into a kind of second parliament adding, on its own, to the content of legislation and dictating the conduct of the first parliament'.35 The same year, neo-Gaullist Jacques Toubon called the Council 'a new kind of legislator' and a 'parliament of judges'.36 The very notion of a 'parliament of judges' underlines how ambiguous is the council's place in classic separation of powers schemes. Constitutional lawyers might rail at such characterisations, at such a 'confusion of powers', but the confusion is a genetic one - the Council was born that way. As mentioned above, French doctrinal specialists today conceptualise the Council as a judicial institution, whose principal function is to produce constitutional jurisprudence. This conclusion was reached by defining those institutions that have the power to determine 'what the THE FRENCH CONSTITUTIONAL COUNCIL 47 applicable law is' as essentially judicial or 'court-like' bodies. Because the Council determines what the constitutional law is, it should be treated the same as any other court, as least with respect to doctrinal activity. One scholar writes: 'although the [Council's] intervention is one stage of legislature procedure, it constitutes a judicial stage'.37 This effort, however, cannot separate what the Council does from what parliament does. In a sentence, if the Council is to be considered a judicial body by virtue of the fact that it is at times charged with definitively determining the constitutionality of legislation, then so must parliament. This is the logical result of applying the extended, present- day definition of 'things judicial' to an institution other than the Council. As mentioned above, parliamentary motions of unconstitutionality require parliament to debate and rule on a bill's constitutionality; if the motion passes, the bill is killed. Today these motions are a regular part of legislative life. In the 1981-87 period the National Assembly alone debated and voted on 94 such motions, a figure to be compared with 93 Council decisions. Logic, if little else, might compel the conclusion that the National Assembly behaves more often as a constitutional court than does the Council.38 If the Council's work is more judicial than the legislature's, then it must be for some other reason.39 In conclusion, the Council often behaves legislatively, as a specialised, third chamber of parliament. For its part, the legislature behaves 'judicially' when it debates and rules on motions of unconstitutionality and when its work has been juridicised. In France, both parliament and the Council participate in law making and in the building of constitutional law. The two processes, which can never be separated, are products of sustained and intimate interaction.

NOTES 1. Louis Rougier, La France à la Recherche d'une Constitution (Paris: Sirey, 1952), p. 82. 2. L.N. Brown and J.F. Garner, French Administrative Law (London: Butterworths, 1973), p. 119. 3. Only the Council's power to review ordinary legislation is at issue here. The Council also possesses jurisdiction over pending organic laws, disputes concerning the delinea- tion between executive and legislative acts and certain electoral disputes. See gener- ally, Bruno Genevois, La Jurisprudence du Conseil Constitutionnel: Principes Directeurs (Paris: Editions STH, 1988). 4. Alec Stone, 'The Birth and Development of Abstract Review: Constitutional Courts and Policy-Making in Western Europe', Policy Studies Journal 19/1 (Fall 1990), pp. 84-7. 5. Louis Favoreu, 'La Décision de Constitutionnalité', Revue de Droit Comparé, No.2 (1986), pp. 628-33. 6. See Martin Shapiro, Courts: A Comparative and Political Analysis (Chicago: Univ. of Chicago Press, 1980), pp. 1-64. 48 JUDICIAL POLITICS AND POLICY-MAKING IN W. EUROPE

7. François Luchaire, 'Le Conseil Constitutionnel: Est-il une Juridiction?', Revue du Droit Public 95/1 (Jan.-Feb. 1979), pp. 27-52. 8. Avis et Débats du Comité Consultatif Constitutionnel (Paris: Documentation Française, 1960), pp. 101-2. 9. 71-44 DC, Recueil des Décisions du Conseil Constitutionnel (1971), p. 29. 10. The vote was 429-119. Débats, Assemblée Nationale Constituante, 7 March 1946, pp. 606-19. 11. Alec Stone, 'In the Shadow of the Constitutional Council: The 'Juridicisation' of the Legislative Process in France,' West European Politics 12/2 (April 1989), pp. 12-34. 12. This account is based on Alec Stone, The Birth of Judicial Politics in France (NY: OUP, 1992), Ch.6. 13. 81-132 DC, Recueil (1982), p. 18. 14. Rapport n°700, National Assembly, 22 Jan. 1982, pp. 3-13. 15. 82-139, Recueil (1982), p. 31. 16. See Le Monde, 20 Jan. 1982, p. 8; Le Monde, 22 Jan. 1982, p. 7. 17. See Stone, Birth of Judicial Politics in France, Ch.7. 18. Débats, National Assembly, 15 Dec. 1983, pp. 6547-8 and 16 Dec. 1983, p. 6605. 19. 84-181 DC, Recueil (1984), p. 73. 20. Débats, National Assembly, 10 June 1986, p. 4135. 21. 86-210, Recueil (1986), p. 110. 22. 86-217, Recueil (1986), p. 141. 23. See John T.S. Keeler and Alec Stone, 'Judicial-Political Confrontation in Mitterrand's France: The Emergence of the Constitutional Council as a Major Actor in the Policy-Making Process', in Stanley Hoffmann, Sylvia Malzacher and George Ross (eds.). The Mitterrand Experiment (NY: OUP; Oxford, UK: Polity, 1987), pp. 161-81; and Stone, 'In the Shadow of the Constitutional Council.' 24. Le Monde, 9 Aug. 1986, p. 6 and 5 Sept. 1986, p. 8. 25. See Louis Favoreu, 'Les Cent Premières Annulations Prononcées par le Conseil Constitutionnel', Revue du Droit Public 103/2 (1987), pp. 442-54, updated in Favoreu, 'Le Droit Constitutionnel Jurisprudentiel', Revue du Droit Public 105/2 (1989), p. 428. 26. 71-44 DC; 77-75 DC, Recueil (1979), p. 33; 80-127 DC, Recueil (1980), p. 15 27. 79-105 DC, Recueil, (1979), p. 33; 87-230 DC, Recueil (1987), p. 48; 82-146 DC, Recueil (1982), p. 66; 83-165 DC, Recueil (1984), p. 30. 28. 86-211 DC, Recueil (1986), p. 130; 86-213 DC Recueil (1986), p. 122; 86-214 DC, Recueil (1986), p. 135. 29. 86-211 DC. 30. See Louis Favoreu, 'Actualité et Légitimité du Contrôle Juridictionnel des Lois en Europe Occidentale', Revue du Droit Public 100/5 (Sept.-Oct. 1984), pp. 1147-1201. 31. William Safran, 'Rights and Liberties Under the Mitterrand Presidency: Socialist Innovations and Post-Socialist Revisions', Contemporary French Civilization 12/1 (1988), pp. 1-35. 32. See Louis Favoreu, 'Le Mythe du Gouvernement des Juges', paper presented at Oxford University at the 'Colloque sur les Aspects Nouveaux des Institutions de la Vcmc Republique'. Oct. 1987. 33. Nelson Polsby, 'Legislatures', in N. Polsby and F.I. Greenstein (eds.), Handbook of Political Science, Vol. 5 (Reading, MA: Addison, Wesley, 1975), p. 277. 34. Guy Carcassonne, 'The Fifth Republic After Thirty Years', in Vernon Bogdanor (ed.). Constitutions in Democratic Polities (Gower: Aldershot, 1988), p. 249. 35. Pierre Pascallon, 'Le Conseil Constitutionnel: Un Deuxième Parlement', Revue Politique et Parlementaire, No.925 (Jan. 1986), p. 3. 36. Le Monde, 5 Sept. 1986. 37. Michel de Villiers, Note 16, Revue Administrative (Nov.-Dec. 1984), p. 587. 38. Bizarre as this may sound, Waline argued that parliament behaved as a 'constitutional jurisdiction' whenever it debated such motions (then under the rubric of the question préalable); the argument was then attractive because no other such jurisdiction THE FRENCH CONSTITUTIONAL COUNCIL 49 existed. Marcel Waline, 'Elements d'une Théorie de la Jurisdiction Constitutionnelle', Revue du Droit Public, Vol.45 (1928), pp. 441-62. 39. My own view is that the Council is more 'judicial' only because its work has increas- ingly conformed to long-standing standards of conduct recognised and approved by the doctrinal community. An important problem with such an argument, however, is that in consequence other policy-makers have been forced or led to conform to these same standards.