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l i o c u n 2 The QPC 4 14 celebrates Interview The Constitutional Council stayed the course amid 10years the coronavirus tempest, The roots of the priority consistently preliminary ruling on the protecting issue of constitutionality 16 fundamental Robert Badinter, President of the Constitutional freedoms Council from 1986 to 1995, Minister of Justice from 1981 to 1986 Laurent Fabius, President of the Constitutional Council

A look back at the QPC 20

Anne Levade, Professor at Panthéon-Sorbonne University (Paris I), President of the French 30 Association of Constitutional Law Bertrand Mathieu, Professor of Law, Decisions President Emeritus of the French Association Ex ante of Constitutional Law constitutional review QPC 2020: A collective 36 outlook on the citizen’s Priority prerogative 26 preliminary rulings on the issue of Nicole Maestracci, Member of the Constitutional Council, Chair of the QPC 2020 constitutionality Technical Committee ANNUAL REPORT 2020 ANNUAL 62 3 SHARING THE MAJOR 104 CONSTITUTIONAL DEBATES

Toward a Sustainable Towards a constitutional Future: Environmental litigation framework Jurisprudence from providing for France’s Constitutional indemnification 108 Council Breaks New Ground 106 Mathieu Disant, Professor of Law at Panthéon-Sorbonne University (Paris I)

Daniel C. Esty, Professor at Yale Law School 110 120 CHANGES AT INTERNATIONAL THE COUNCIL RELATIONS

Continuity in the Interview Constitutional Council’s operations Papa Oumar Sakho, President of the Constitutional Council during the public of Senegal 122 health crisis 114

Marta Cartabia, President of the Italian Constitutional Court 128 4 Laurent Fabius

President of the Constitutional Council

INTERVIEW ANNUAL REPORT 2020 ANNUAL 5

We see a striking analogy with The Constitutional events during the “security state of emer- gency” instituted in response to the ter- Council stayed rorist attacks of 2015: the effectiveness of constitutional review was guaranteed to the course amid a large extent by the priority preliminary ruling on the issue of constitutionality the coronavirus (QPC). Initially, public authorities refrained tempest, from seizing the Constitutional Council to review the law instituting a public consistently health state of emergency. Only when Parliament voted to extend the law was protecting the matter referred to us, via the direct channel, by the President of the Republic, fundamental the President of the Senate and the par- liamentary opposition. Nonetheless, freedoms through the QPC, the Council was peti- tioned very early on to address the major issues raised by implementation of the initial public health state of emergency in terms of public freedoms. The Council thus had to rule on the timetable for municipal elections, the criminal offen- ces instituted to prosecute failure to comply with the lockdown rules, as well as the particular rules for pre-trial deten- tion provided for under the public health state of emergency.

In 2020, the health crisis arising Didn’t the urgency of the health cri- from the COVID-19 pandemic has sis compel the Council to stray from plunged the world into a human trag- its established course of protecting edy unprecedented since the Second liberties? World War, disrupting the exercise of No. There was no “eclipse of funda- our fundamental freedoms. How did mental rights” during this period; these the Constitutional Council weather this rights enjoyed the same level of protec- singular period? tion as at any other time. Throughout the By remaining true to its course: pro- health crisis, the Constitutional Council tecting freedoms. continued to fulfil its role, defending fun- They say that the key measurement of damental freedoms. We set out rules to the strength of a fundamental law is its ability govern the processing of personal med- to help a society overcome hard times. The ical data for tracing purposes, as well as Constitution of 1958 rose to the challenge of lockdown and isolation measures. In par- the health crisis, once again demonstrating ticular, we stressed that pre-trial deten- its resilience in critical situations. Even at tion during the lockdown period could the height of the crisis, the rule of law never not be extended without a court order. broke down and the Constitutional Council Of course, the Council itself had to continued to fulfil its role as guardian of the alter its functioning to take account of the Constitution. Looking back, it is clear that health constraints. I made sure that the the Council proved up to the task. body continued operating in conditions //... 6

that would best preserve everyone’s be limited in time (they are terminated health. We held QPC public hearings and without delay when no longer necessary) deliberation sessions in the Grand Salon and in geographic scope (they may only of the Montpensier wing. Lawyers who so be enacted in areas where the virus is desired had the possibility of participat­ actively circulating), and that they be ing via videoconference. We had to limit intended solely to protect health. public access to hearings – our internal On several points, the Council firm­ rules of procedure so allow – but these ly specified how public authorities and restrictions posed few difficulties as we the competent courts must interpret the broadcast our hearings on our website. law. For instance, this legislation could in While these practical solutions proved useful and even necessary under the cir­ cumstances, experience shows that there is no substitute for « Throughout the health crisis, the “face-to-face” dialogue. We Constitutional Council continued therefore reinstated our rule to fulfil its role, defending that arguments must be heard directly, without videoconfer­ fundamental freedoms » encing, once it became pos­ sible to do so without endan­ gering health. When it comes to discussions within the College itself, no case serve as a framework for a gener­ including between sessions, we remain al lockdown measure such as that which strongly attached to face-to-face meet­ the public health state of emergency ings, which we endeavour to cultivate as made possible. Constitutional review is an art form. an abstract exercise by its very nature. However, faced with this type of meas­ Commentators have noted that the ure, assessments of the choices made Constitutional Council’s endorse- by Parliament must obviously take into ment of the measures implement- account the very particular dynamics of a ed upon termination of the public health crisis linked to a pandemic, which heath state of emergency was high- is difficult to compare with security-based ly nuanced. How would you present risks, for example. this decision? Called upon to review certain provi­ Other decisions by the Council, such sions of the act organising the termination as those rejecting several provisions of the public health state of emergency, of the law aimed at combating online we paid close attention, in accordance hate speech and the law establishing with our established case law, to ensur­ security measures to apply to the ing a proper balance in Parliament’s perpetrators of terrorist offences approach to reconciling the constitu­ at the completion of their sentence, tional requirement of protecting health were also quite consequential. with respect for fundamental rights and Besides the health crisis, many freedoms. This mechanism could only be other issues examining respect for fun­ deemed constitutional if subject to a set damental freedoms have mobilised the of conditions, in particular that poten­ Council in recent months. The two laws tial restrictions on individual­ freedom that you mention dealt with freedoms ANNUAL REPORT 2020 ANNUAL 7

that are essential to our democratic fraternity in humanitarian aid, the con- order. In contrast to the cursory inter- stitutional requirement of acting in the pretation of these decisions made by best interests of a child, not to mention some parties, the rulings themselves in the affirmation that protection of the no way challenge legislators’ prerogative environment, the common heritage of all to fight dissemination of hateful content mankind, constitutes a constitutionally on the Internet or to impose security valid objective: all these advances have measures on the perpetrators of ter- been brought about thanks to the QPC rorist offences upon their release from and the Constitutional Council. This “cit- prison. However, in accordance with the izen’s prerogative” stands out as a proce- Constitution, the Council is responsible dure that enables everyone to help keep for ensuring that the methods adopted our legacy of fundamental and universal for this purpose are at once necessary, freedoms in line with the times. appropriate and proportionate to the The QPC has matured considera- objectives pursued. We have made this bly over the past ten years. Two recent clear. It is up to Parliament to draw the examples point to its potential as a mul- relevant conclusions. tiplying agent to uphold the fundamental principles of law. This year marks the 10th anniversary The Council of State handed down of the QPC. What is your assessment a decision in December 2019 in which of the implementation of this new it recognised a principle of government right granted to citizens involved in liability for laws declared unconstitu- a trial to contest the application of a tional. This ruling opened a new chapter law that they consider incompatible for constitutionalism while honing the with key legal principles? effects of the QPC. Since then, whenev- Ten years in the life of a judicial er it has been called upon to review a procedure is a relatively short period of case, the Constitutional Council has, in time, but it is enough for an initial seri- practice, almost systematically opted to ous assessment. For the QPC, which I allow implementation of this compensa- like to call the “citizen’s prerogative”, this tion mechanism. past decade has been quite intense. From the outset, we must keep in mind the radi- « The QPC marked an important step cal change it represented in our historically “legicentric” towards greater respect for our society. As of 2010, citizens fundamental rights » have been entitled to chal- lenge any statute passed by Parliament by invoking the supreme law of the land in our country: In another QPC ruling handed down the Constitution. The QPC marked an in May 2020, confirmed and clarified in July important step towards greater respect 2020, the Constitutional Council reversed for our fundamental rights. For exam- its case law, bringing unratified ordinances ple, the right to legal counsel while in into the ambit of the Council’s protection police custody, protection of public of fundamental rights and freedoms as of liberties during a state of emergency, the expiry of the enabling period. Without the need to consider the principle of calling into question other means of appeal //... 8

based on separate grounds, and without in Is citizens’ knowledge of the QPC any way affecting the role of Parliament, the commensurate with the protection only institution entitled, via express ratifi­ it can offer them? cation, to endow ordinances with the force The QPC is a revolution, but rather of statute law as of their signing, the innova­ a “velvet revolution”. Looking ahead to tion we set out consolidates review of non- the ten-year anniversary of this citizen’s ratified ordinances that affect citizens’ prerogative, we wanted to gauge public opinion with regard to the proce­ dure. We commissioned a survey among one thousand people. The « Thanks to the QPC, the results showed that more than 80% of respondents see the QPC Constitution appears more like in a positive light, as a step for­ a living legacy at the service of ward for citizens. However, they remain largely unfamiliar with the citizens » procedure. To promote awareness of the QPC among a wider audi­ ence, we decided to organise a major event in November 2020 in rights and freedoms. The Constitutional the form of a web-based broadcast bring­ Council is thus the arbiter of constitution­ ing together people involved in the QPC, ality in all legislative matters. representatives of the executive branch, Thanks to the QPC, the Constitution members of Parliament, presidents of appears more like a living legacy at the ser­ supreme courts, lawyers and citizens. vice of citizens. This conclusion comes out clearly in the extensive academic research Calls for constitutional amendments, programme we initiated, in the context of an increasing number of appeals, etc. the ten-year anniversary of the procedure, many of the initiatives proposed by to establish a trans­parent legal and socio­ citizens to strengthen environmental logical assessment of the QPC. The results protection have a legal focus. How of this research are published in a special did the Constitutional Council find issue of our journal, Titre VII. They were itself involved in this momentum of discussed at a seminar held at the Council, environmental activism? attended by more than 50 researchers, all As the guardian of the fundamental members of the College, and the members principles of law, this year the Council of the QPC 2020 Technical Committee enshrined environmental protection as chaired by our colleague Nicole Maestracci. a new constitutionally valid objective. This event was an opportunity to assess Going against the current with regard to both the significant progress achieved decisions handed down by the supreme thanks to the QPC, and the continued courts of other countries, we recog­ room for improvement in the procedure. nised the extraterritorial dimension of Periodic evaluations must now be car­ this objective by designating the envi­ ried out so that we may, together with all ronment the “common heritage of all those who have an interest in the success mankind”. With this dimension in mind, of the QPC, ensure that the progress thus we validated the law prohibiting the achieved when it comes to protecting the export of pesticides on the grounds of rights and freedoms guaranteed by our their toxicity,­ even though such poisons Constitution is indeed genuine. may be authorised in other countries. ANNUAL REPORT 2020 ANNUAL 9

This environmental dispute will undoubt- ment of free access to education applies edly grow more intense. to higher education. At the same time, we specified that this requirement does What are the other significant deci- not preclude the levying of modest tui- sions of the past year? tion fees, taking into account the finan- I note an increased role for labour cial capacity of students, where appro- law in constitutional litigation. In the priate. With regard to “Parcoursup”, we area of collective bargaining, the Council affirmed the existence of a constitutional recog nised for the first time the principle right of access to administrative docu- of freedom of contract, while regulating ments and considered that each insti- the powers of the Minister of Labour in tution of higher education must report this area. We also addressed key issues on the criteria according to which appli- in the field of higher education, handing cations are examined. Many important down an unprecedented interpretation decisions were taken this year in the area affirming that the constitutional require- of individual freedoms. In particular, the //... 10

Council had to clarify the scope of the perceived as being complex, not very principle that “no one shall be arbitrari­ intuitive and insufficiently suited to a ly detained”. We judged that Parliament consultation intended for a wide audi­ could not authorise the continuation ence. Another issue was the absence of of isolation or restraint measures in provisions relating to the organisation psychiatric care settings beyond a cer­ of a public debate or audiovisual infor­ tain period in the absence of oversight mation campaign. Several improvements by the courts. We pointed out that the were recommended, such as examining public health state of emergency did not the desirability of designing a public allow the extension of pre-trial detention information system. without a court order. Lastly, I would like to mention the modernisation of our As soon as you took office, you case law on “legislative riders”: while sought to deepen relations between emphasising that this review in no way the Constitutional Council and the anticipates judgements regarding the outside world. How was this policy constitutionality of the content of such expressed in 2020? provisions, we now recall the initial scope The College as a whole shares my of each bill, and then demonstrate, for conviction that the rule of law grows each provision struck down, why it must stronger as supreme courts adopt a glo­ be regarded as having no direct or even bal perspective. indirect link with the spirit of the law. We now take every opportunity to meet our fellow citizens, in schools, uni­ What lessons can you draw from versities and other venues. Since 2019, the initial application of the Shared the Constitutional Council has regularly Initiative Referendum (SIR) procedure, which led to heated debates in 2019? « we cannot stress strongly enough After having moni­ tored the entire process, that the end – combating the crisis – as is our duty, we found does not justify the means – attacking that the bill to prevent the the fundamental principles of law privatisation of Groupe ADP (formerly Aéroports that hold our societies together. de Paris) had not obtained Constitutional judges, keep watch! » the support of at least one- tenth of registered voters. Then, as we do for elec­ tions and referendums, we made a point of commenting on the first organised sessions outside of Paris. This implementation of this procedure. The year we held public QPC hearings in electronic system for collecting support Pau and later in Lyon, during which we yielded reliable results. Nonetheless, enjoyed in-depth exchanges with magis­ we found that the procedure also suf­ trates, lawyers, law professors and stu­ fered from shortcomings and a number dents. I have consistently been delight­ of flaws, while raising certain questions: ed with the welcome extended to us and for example, the non-ergonomic design the original initiatives that these events of the dedicated site, which was often inspire, such as the work of the students ANNUAL REPORT 2020 ANNUAL 11

at Lyon Law School who took up the chal­ countries from challenging the European lenge of drafting decisions, constructively legal order by taking advantage of a loop­ and on a volunteer basis, and who thus hole? These questions must be answered. came to appreciate the complexity of the Since 2007, the Constitutional task. We will once again hold select hear­ Council has asserted that the Constitution ings in different French cities once the recognises “the existence of a Community health situation permits. legal order integrated into domestic law We maintain a continuous dia­ and distinct from international law”. While logue – verbal and non-verbal – with our the Council’s case law ensures the protec­ forei­ gn counterparts. Verbally, through tion of France’s constitutional identity in regular exchanges, such as the seminar terms reminiscent of the “Solange” case on “Global Constitutionalism” organised law on which our German colleagues rely, each September by Yale University, which the harmonious nature of this integration brings together presidents and members is also one of the mainstays of our case of supreme courts for several days to dis­ law, as evidenced by what we consider cuss the current challenges of constitu­ to be the constitutional requirement to tional justice. This year’s virtual seminar transpose directives. Especially in times was an opportunity to share experiences of crisis – economic, security-based, regarding the health crisis and the climate health-based – which are liable to fan emergency. Through these compared the flames of national egocentrism, we visions, each participant’s legal reasoning must not forget that the strength of the is strengthened by an understanding of European Union lies in the community of the arguments embraced by other legal law, including through shared protection professionals. We also engage in word­ of fundamental rights. This remains one of less dialogue, attentive to foreign trends our most precious assets. and practices regarding the protection of fundamental freedoms. In this respect, we observe that the health crisis has served to “disinhibit” certain political leaders, who have taken advantage of the pandem­ ic to weaken the rule of law. Faced with such behaviour, we cannot stress strongly enough that the end – combating the cri­ sis – does not justify the means – attack­ ing the fundamental principles­ of law that hold our societies together. Constitutional judges, keep watch!

What is your reaction to the ruling handed down by the Karlsruhe Constitutional Court on 5 May 2020 challenging the constitutionality of the European Central Bank’s policy of repurchasing public securities? I admit to being somewhat perplexed. What is the impact of the Constitutional Court’s decision on European finan­ cial mechanisms? How can we prevent 12 COMPOSITION OF THE COLLEGE

08 03 06 01

04 05 07 09 02

MEMBERS AS AT 1 SEPTEMBER 2020

01—François Pillet 07—Nicole Maestracci 02—Dominique Lottin 08—Michel Pinault 03—Alain Juppé 09—Corinne Luquiens 04—Claire Bazy Malaurie Former presidents of the French 05 Laurent Fabius, President Republic are automatically lifetime — members of the Constitutional Council. 06—Jacques Mézard Currently, only former President Valéry Giscard d’Estaing sits at the Council. ANNUAL REPORT 2020 ANNUAL 13 A COLLEGIAL BODY

Three are appointed by the President of the Republic, three by the President of the National Assembly and three by the All decisions within the 9 President of the Constitutional Council “Sages“ Senate. are taken by a NINE- MEMBER college, known as the “Sages”. They are appointed for The President of the Republic selects the NINE-YEAR President of the Council from among these terms. NINE MEMBERS, one-third of whom are appointed EVERY THREE YEARS.

Several principles come together to ensure the body’s independence: MEMBERS OF THE CONSTITUTIONAL COUNCIL MEMBERS OF THE CONSTITUTIONAL

Non-renewable A rule barring members from terms. An holding any elected obligation office or practising any to exercise other occupation. reserve.

Any citizen enjoying The composition The Constitutional Council is civil and political rights of the Council is a collegial body: all rulings are may serve on the moving toward handed down in plenary session. Constitutional Council. gender equality. A quorum of seven members is In practice, seats are required for rulings, and decisions attributed to figures are taken by majority vote. recognised for their Members may disagree on any expertise. given topic: in the event of a tie, the President holds a casting vote. w

14 The QPC celebrates Instituted by the constitutional revision of 2008, the priority preliminary ruling on the issue of constitutionality, known as the QPC (question prioritaire de constitutionnalité), came into force on 1 March 2010. Since then, the Council is no longer seized solely by political authorities before a law is promulgated: any citizen involved in a lawsuit can challenge the law applied in his or her case by invoking the Constitution, the supreme law of the land in our country. The 10-year anniversary of the QPC is an opportunity to draw up an initial assessment of this “citizen’s prerogative” which has led to remarkable progress in the exercise of fundamental rights common to all.

10years 740 ANNUAL REPORT 2020 ANNUAL w

15 The QPC celebrates

QPC decisions handed down by the Constitutional Council between

1 March 2010 and 10 YEARS THE QPC CELEBRATES 1 March 2020 740 10years QPC 2020 special report To mark this anniversary, the Constitutional Council is enriching its website with a special video programme in which all Council stakeholders look back on the past decade and consider what the future has in store for this procedure. The video will be available on the website of the Constitutional Council as of late November. 16 Robert Badinter

President of the Constitutional Council from 1986 to 1995 Minister of Justice from 1981 to 1986

PERSPECTIVE ANNUAL REPORT 2020 ANNUAL 17

As Dean Georges Vedel pointed out, this The roots of the measure was not intended to impede access to Robert Badinter the Constitutional Council, but was necessary to priority preliminary prevent the body from being overwhelmed by ruling on the issue of proceedings initiated by members of the public. Moreover, in my opinion, involving the nation’s constitutionality highest courts in this screening procedure was a way of instilling throughout the French judiciary n 1989, bicentennial of the Declaration the culture of respect for fundamental rights on of the Rights of Man and of the Citizen, which the American justice system and those of I published an article in Le Monde1 in which many European countries are based. I denounced the ambiguity faced by peo- And so it was: the draft constitutional pleI subject to trial in France. Since October 1981, amendment creating the exception of unconsti- they have been entitled to bring cases before the tutionality was approved in 1990 by the National European Court of Human Rights in Strasbourg by Assembly, with a left-wing majority2. Amongst invoking inconsistency of a law with the European the opponents at the time were two young Convention for the Protection of Fundamental and energetic deputies – Nicolas Sarkozy and Rights and Freedoms. On the other hand, they François Fillon. were denied access to the Constitutional Council The bill was rejected by the Senate, which in Paris, where the violation of their fundamental had a right-wing majority, but we obviously could rights could be established. not stop there. This institutional imbalance, which made In 1993, the Vedel Committee for insti- French citizens fully-fledged participants with tutional reform pronounced in favour of the regard to the Convention but mere spectators exception of unconstitutionality. It is true that this with regard to the French Constitution, could no Committee included some of the most active longer continue. It had to be remedied by intro- promoters of this initiative, particularly professors ducing an “exception of unconstitutionality” into Guy Carcassonne and Olivier Duhamel. A new French law. draft constitutional amendment was thus intro- As President of the Republic, François duced in the Senate. However, the exception of Mitterrand was no fan of constitutional review. He unconstitutionality did not appear in the constitu- preferred parliamentary primacy to judicial over- tional law adopted in 19933... THE QPC CELEBRATES 10 YEARS THE QPC CELEBRATES sight. I undertook to convince him by pointing out Fortunately, attitudes evolved over time, that we had before us a unique opportunity: while and we know what happened next. In 2007, our country celebrated the bicentennial of the the Balladur Committee was formed. Édouard Declaration of Human Rights, he could tell citizens Balladur, after having fought against judicial review that, thanks to the exception of unconstitutional- in 1993 as Prime Minister for a split government ity and the opening of constitutional jurisdiction (left-wing President with a right-wing majority in to those subject to it, every citizen could demand Parliament), came to the conclusion that it was respect for his or her fundamental rights and preposterous to grant French citizens access freedoms. The political aspect of the argument to judicial review of the European Convention intrigued him – especially as he was convinced for the Protection of Fundamental Rights and that the Senate would oppose this draft consti- Freedoms while denying them the same access tutional amendment out of hostility towards the regarding the French Constitution. left-wing majority. The time had come, and the rest is parlia- I therefore set to work with the first mentary history. The fact remains that 20 years President of the Court of Cassation, Pierre were lost because Parliament, particularly the Drai, the Vice-President of the Council of State, Senate, was hostile to any initiative strengthening Marceau Long, and Bruno Genevois, Secretary the powers of the Constitutional Council. General of the Constitutional Council, to draw up the procedure for the exception of uncon- 1 Le Monde, 3 March 1989. stitutionality. We created a complex screening 2 Draft constitutional law of 30 March 1990, N° 1203, adopted by the National Assembly on 25 April 1990 procedure. (1st reading) and 21 June 1990 (2nd reading). 3 Constitutional Law N° 93-952 of 27 July 1993. 18 10 years of QPC in numbers Data for the period from 1 March 2010 to 1 March 2020

— SINCE THE ESTABLISHMENT OF THE QPC —

In total, the Constitutional On average, 2 QPC decisions are Nearly 1/3 of provisions Council has handed down rendered by the Constitutional reviewed are judged 740 QPC decisions. Council each week. unconstitutional (total or partial unconstitutionality The average time frame for QPC procedures account with or without deferred effect). handing down a decision is for approximately 80% of 74 days. Constitutional Council rulings.

— NUMBER OF DECISIONS RENDERED BY YEAR —

120 110 100

80 81 74 75 67 68 66 60 64 64 61

40

20

0 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019

SE AS A QPC (IN CA %) ) HE % T IN G ( IN T R 0,2 N 4 R A 3 5 E C F I E L R P P N A 8 O I 1,1 F T

O C

I

S D

U S 45,6

I

T

R

A

T U S

56 J 53,1 24

Natural person Company Association Court of Cassation Council of State Local government Trade union Ex officio rectification Other cases ANNUAL REPORT 2020 ANNUAL Other: Federation, Professional order, Professional establishment 19 — GEOGRAPHICAL BREAKDOWN OF REFERRALS —

Saint-Denis Douai 3 5 7 Amiens Rouen 1 Metz Caen 6 Paris Reims 3 8 5 13 Versailles 74 Nancy 4 Rennes 18 9 62 2 Colmar 21 6 3 Orléans 2 14 Angers 1 Dijon 4 Besançon Nantes 1 Basse-Terre Bourges Lyon Chambéry 1 1 Bordeaux 16 Riom 6 Fort-de-France 2 7 15 18 Grenoble Nîmes Agen 1 12 Toulouse Papeete 7 10 Aix-en-Provence 9 4 7 Montpellier Pau 23

Marseille 2 Bastia Administra- Court of tive Court of Appeals Appeals

Nouméa 1 THE QPC CELEBRATES 10 YEARS THE QPC CELEBRATES

EWED BY BRA ) EVI NC % R H O IN NS F ( O L ED SI A T I W P V 4 O (I O R N D P % A 6 F 18 S 11 ) O N N O I 11 T W

U O

L D 19 6

O K

S

54 A E

13 R 3 B

22 21 12

Constitutionality Constitutionality with reservation Public law Criminal law Tax law Total unconstitutionality Environmental law Civil law Total or partial unconstitutionality with deferred effect Business law Social law Partial unconstitutionality Other solutions 20

IIIII Anne Levade

Professor at Panthéon- Sorbonne University (Paris I) President of the French Association of Constitutional Law

A LOOK BACK AT THE QPC

IIIII Bertrand Mathieu Professor of Law President Emeritus of the French Association of Constitutional Law ANNUAL REPORT 2020 ANNUAL 21

t all started one morning in July 2008. BM – Certain developments raise A few hours before the first meeting of questions. the Balladur Committee, the constitu- tional experts sitting on the Committee Firstly, the question of whether the Imet in a café on Place de l’Alma at the invita- Council will be able to resist the temptation tion of Guy Carcassonne. The initial discussions to legislate from the bench like the European focussed on topics that appeared essential Court of Human Rights. and, unsurprisingly, one garnered unanimous Secondly, the relationship between the agreement: the introduction of an ex post judi- Constitutional Council and Parliament. By cial review mechanism. Our reasons may have modulating the effects over time of decisions diverged, but in the end we all agreed to join to repeal provisions, by temporarily substitut- forces. That was the crux of the matter, because ing a new provision for that judged unconsti- the subject would not generate an immediate tutional (N° 2010-10 QPC) and by indicating consensus in the Committee. to legislators the path to follow (N° 2019-827 We then had to agree upon the form such a QPC), the Council encroaches on the work mechanism would take. Due to the need for legal and agenda of Parliament. This can go even certainty, the option of diffuse review by trial further, e.g. when the Council of State infers judges was quickly ruled out. On the other hand, that the national government holds liability for a screening procedure had to be put in place to an unconstitutional legislative provision (CE prevent the Council from being overwhelmed. 24 December 2019 N° 425981). In reality, while President Debré put forth the idea of entrusting this reform was necessary, the fears of those the Council with review of treaties and other who saw it as a new phase in the decline of law international agreements. This proposal played and a weakening of political institutions vis-à- its role as a “scarecrow”, but was not explored vis the judiciary were not entirely unfounded. in any depth. That was the first step. On 29 October, the Balladur Committee recommended in its report AL – Strictly speaking, I am not worried that “a new right be granted to those subject to about the future of the QPC because it seems to me that two major challenges trial: the ‘exception of unconstitutionality’”. have already been met. The battle was not yet won. The Élysée Palace had already made it clear that the issue The first concerned the consequences was to be considered! However, the future of its priority status. After the momentary Article 61-1 was adopted with little resistance. tension between the judges responsible for THE QPC CELEBRATES 10 YEARS THE QPC CELEBRATES Then came the most technical – and thus delicate screening and the Constitutional Council, we – stage: the draft organic law relating to applica- have seen that the former have managed to tion. The political obstacles removed, it was time adapt, while the latter has found new ways to face the legal obstacles. of establishing a dialogue with the Court of The thorniest was of course the link with Justice by using the preliminary ruling proce- judicial review of international agreements, dure. This is perfectly normal: the two types of which served as the justification for according review do not overlap. It will be interesting to priority status to the preliminary ruling on the see whether the Council eventually considers issue of constitutionality. In the end, it took two it useful to request an opinion from the Court and a half years for the QPC to enter into force; in Strasbourg. ten years later, it is time to take stock. The second was the ex ante review, The authors of these words share an initial which some people said was doomed to dis- – positive – observation. The QPC is a success: appear. This is not the case, and I am happy the public have adopted it, the Council has been to note that the QPC has even strengthened transformed, and the Constitution irrigates all this procedure. branches of law, including parliamentary debates. For the rest, the nuanced nature of the topic dictates that each of us should take up the pen in his or her own name. 22 Pau and Lyon, two new destinations for Constitutional Council hearings outside the capital

Since February 2019, the Constitutional Council has regularly held select public n February 2019, the Council sat on hearings addressing priority preliminary rulings on the issue of the Metz Court of Appeals, followed in constitutionality (QPC) outside of May by hearings in the Administrative Paris. Two hearings “outside the Court of Appeals in Nantes. walls of the Palais-Royal” were On 6 November 2019, the organised in 2020. ConstitutionalI Council held a public hear- ing at the Pau Court of Appeals. Subsequently, on 4 March 2020, it moved to the premises of the Administrative Court of Appeals in Lyon. Two cases focussing on tax issues (priority preliminary rulings on the issue of constitutionality N° 2019-812 and Watch the video 2019-813) were on the agenda of the hearing held at the of the Constitutional Pau Court of Appeals. Onlookers in attendance at the Lyon Council’s trips to Pau and Lyon Administrative Court of Appeals attended the review of pro- visions from the Commercial Code and the Labour Code bit.ly/qpcpaulyon (QPC N° 2019-830 and 2019-831). Hundreds of citizens from Pau and Lyon were present in the courtrooms and broadcasting rooms set up for the occasion to witness the adversarial exchanges between the claimants, the intervenors and the Government representative, as well as the discussions prompted by ques- tions to the parties from the Council members. As Laurent Fabius, President of the Constitutional Council, points out, these extramural hearings are all the more justified as “the priority preliminary ruling on the issue of constitutionality – which is celebrat- ing a decade of existence this year – is everyone’s concern as it is open to anyone involved in a trial”. By moving outside the walls of the Palais-Royal, the Council’s nine members give more citizens the chance to discover the reality of consti- tutional justice in the courts of appeal or administrative courts of appeal close to their homes. These “travelling” hearings are also an opportunity for the President and members of the Council to meet the magistrates and lawyers of the local jurisdiction, who are liable to raise QPCs in the course of any legal proceedings.

ANNUAL REPORT 2020 ANNUAL Eager to broaden the Council’s travels through personal interactions with professors and students in the Council’s host cities, President Fabius 23

has chosen to come to these cities a second In Lyon, a group of students even had the time in order to present the decisions rendered opportunity to submit to President Fabius, in the intervening period by the Constitutional before the start of his lecture, the decisions Council on the cases heard. His addresses, at they themselves had written on the cases heard Pau Law School on 15 November 2019 and the previous week. This exercise, which was at Lyon III University on 12 March 2020, conducive to fruitful exchanges, offered an allowed for more in-depth discussions with opportunity for President Fabius to explain students regarding the role and missions of the Constitutional Council’s QPC case law in the Constitutional Council and the work of its a small, interactive setting. members.

4 March 2020

Public QPC hearing at the Lyon Administrative Court of Appeals

On 4 March tive and judicial magistrates of 2020 at 10.56 Lyon, who had the chance to am, the TGV dialogue freely and easily with from Paris entered Lyon Part- the President and members Dieu station with President of the Council regarding

Laurent Fabius on board, ac- the institution, the priority 10 YEARS THE QPC CELEBRATES companied by the eight other preliminary ruling on the issue members of the Constitutional of constitutionality, rights and Council, as well as the Secre- freedoms, etc. This would tary General and staff. have been inconceivable some After Metz, Nantes and Pau, it fifteen years ago, when the was time for Lyon, capital of the Constitution, hidden behind IIIII Gauls, to be the setting for the the loi-écran doctrine where- fourth hearing of the Constitu- by judges could base their Régis Fraisse tional Council outside of Paris. decisions solely on statute law, President of the Lyon This choice makes perfect was almost absent from the Administrative Court of Appeals sense considering that two courts, and the Constitutional members of the Lyon Adminis- Council looked more like a trative Court of Appeals have regulator of public authorities served in the Constitutional than a court in itself. Council’s Legal Department, As for the challenge, it was one from 2001 to 2011 and the particularly present in the other from 2011 to 2014. afternoon hearing. Would an- What an honour! But what a yone show up in the middle of challenge too. school holidays? Would they The honour was primarily understand the significance of bestowed on the administra- the QPC? //... 24

By all accounts, the event was hundred students and profes- trade union advocates to the a success! sors at Jean Moulin Lyon III jurisdiction of a given region The three large courtrooms University. violates the principle of equal- set aside for the occasion, two As for the QPCs listed, they ity before the law, the rights of of which were equipped for were easily understandable to the defence and the right to live broadcasts, were filled an audience that heard them effective judicial remedy. to capacity and could not for the first time at the hear- 5.34 pm: The TGV left accommodate all the people ing: one related to commercial Part-Dieu station for Paris, eager to attend this excep- operating permits to judge but there remains a shared tional hearing. Of particular whether the obligation to take impression that such hearings, note was the presence of into account the impact of which allow citizens outside students who had undertaken development projects on city the capital to meet their to compose draft decisions to centres unduly infringed on constitutional decision-makers be compared with the official freedom of enterprise, while and contribute to dialogue decisions that President the other concerned labour between judges, should Fabius was to make public the courts, the issue being wheth- continue. following week before several er limiting the competence of

12 March 2020

Conference by Laurent Fabius at Lyon Law School

The Constitutional Council’s A special opportunity meeting at Jean Moulin University (Lyon III) Law School, with Dean for dialogue Hervé de Gaudemar, was an op- portunity for students to develop with students greater insight into the constitu- tional process. Familiar with the Council’s case law, which they have been working on since their first year, many students enrolled in un- dergraduate, master and doctorate programmes attended the event in two lecture halls. They were Thanks go out to able to deepen their knowledge of Pascale Deumier and constitutional litigation by listening Philippe Blachèr, to and interacting with President ANNUAL REPORT 2020 ANNUAL Fabius. The President particularly Professors at Lyon III University Law School highlighted three points: //... 25 the central role of parties to sions”; “Public Law”), Master 2 they sometimes prefer to the proceedings; the im- (“Fundamental Public Law”) render intermediate deci- portance of oral arguments and Institutes of Legal Studies sions that complement the during the hearing; and (“Preparation for the National wording of the law through the specific implications of School for the Judiciary”), “interpretive reservations”. As the QPC. An explanation explored the preparatory such, in one of the two cases, of QPC decisions handed work on the contested pro- the Constitutional Council down served to complement visions, examined the rele- did not strike down the law; academic learning by putting vant constitutional case law, instead, it simply supplement- issues of constitutionality into attended the hearings at the ed the provision in order to context. invitation of the Lyon Admin- place employees defended The event was also an op- istrative Court of Appeals, by lawyers and those de- portunity for some students deliberated on the meaning fended by trade unions on to better understand the of their decisions and then an equal footing. In so doing, constraints and difficulties of took part in the difficult ex- the Council does not merely exercising judicial judgement ercise of drafting. Their draft carry out review – i.e. assess and drafting a constitutional decisions were sent to the the relationship between the decision. In fact, some 40 Constitutional Council, where law and the Constitution by students, supervised by pro- they were read by President means of interpretation – but fessors Pascale Deumier and Fabius who offered students also gives concrete form to Philippe Blachèr, took part a precise and personalised legislative standards, provid- in an exercise consisting in analysis of their work during ing a detailed response to writing draft decisions on the a dedicated meeting prior to a legal problem raised by a two cases presented at the his lecture at the Law School. litigant. Lyon hearing (QPC 830 and The students were struck by 831). This group, composed of the fact that constitutional volunteers from a variety of judges do not decide on the programmes – Master 1 (“Judi- continued application of a law cial Culture”; “Legal Profes- with a simple “yes” or “no”;

As a law student, it is not always easy to find the time or the means to travel to Rue de Montpensi- er in Paris to attend the hearings of the Constitu- tional Council. However, it is essential to understand the role and 10 YEARS THE QPC CELEBRATES functioning of this body, insofar as every citizen involved in a trial has been able to seize the Council – under certain conditions – since the priority preliminary ruling on the issue of constitutional- ity came into force ten years ago. Amandine Holding a hearing on two QPCs in Lyon was a wonderful oppor- tunity to observe the legal debates closely, but also to better Brunet understand the underlying issues. Student at the Institute of Legal Before this hearing, I was given the chance to conduct research Studies at Lyon III University and coordinate students to draw up one of the two draft deci- Law School sions, which were then submitted to the Constitutional Council. Although I had come to a decision based on my research, the oral arguments of the applicants’ lawyers and the position expressed by the government representative enriched my thinking. The experience of playing the role of a Council member made me realise how important it is to consider the full impact of each QPC decision on economic and social life. The feedback provided by President Laurent Fabius on our draft decisions during his visit to the Lyon III Law School was very instructive and I am very grateful to him. I encourage students to attend the hearings both at the Palais-Royal and outside of Paris. 26

Nicole Maestracci

Member of the Constitutional Council Chair of the QPC 2020 Technical Committee

QPC 2020: A COLLECTIVE OUTLOOK ON THE CITIZEN’S PREROGATIVE

ANNUAL REPORT 2020 ANNUAL This article is taken from the October 2020 Titre VII special issue, “QPC 2020 – 10 years of the citizen’s prerogative”. 27

Looking ahead to the 10th necessary to identify the difficulties or obsta- anniversary of the priority cles, whether material, cultural or procedur- al, that had hindered the development and preliminary ruling on the issue of effectiveness of the QPC. constitutionality, two years ago the The second part of the call for research Constitutional Council initiated a projects called for an assessment of the state of case law in certain disputes. It aimed to wide-ranging research programme verify whether the fact of examining a mat- aimed at establishing a ter of living law, the conditions of application transparent legal and sociological of which were known, had made it possible assessment of the QPC. Below is to carry out a more detailed and concrete assessment of possible violations of funda- a look back on this initiative, which mental rights. examined both the reality behind To answer these questions, the the implementation of the QPC Constitutional Council wanted to seek out an external, independent and academic per- and how it is perceived by the spective. The call for projects was therefore various stakeholders concerned. addressed not only to legal experts but also to sociologists, politicians and economists, taking a multidisciplinary approach that was not necessarily easy to implement. Researchers were also asked to take a comparative approach. Since France was one en years is too short a time to of the last countries to make an exception of truly take stock of a reform, but unconstitutionality available to citizens tak- it is long enough to say whether ing part in a trial, it was particularly useful to the reform in question has met compare this assessment with that of other theT expectations of its advocates. In creating European constitutional courts. the QPC, the essential objective of the 2008 A Technical Commi˜ee, which I had the constitution revision was to grant citizens a honour and pleasure of chairing, was set up new right, the right to challenge the consti- to select, evaluate and follow up on projects. THE QPC CELEBRATES 10 YEARS THE QPC CELEBRATES tutionality of a legislative provision already in The diversity of the skills called upon, as force. well as the experience and availability of the Indeed, it should be recalled that members of this commi˜ee, made it possible prior to this reform, citizens were excluded to work abundantly and efficiently in a very from constitutional review. Only the high- tight time frame. est government authorities or 60 members Of the 30 projects submi˜ed, 16 were of Parliament could refer a matter to the selected. The commi˜ee held several meet- Constitutional Council and they could only ings and met with all the teams halfway do so before a law was promulgated. As for through the process. In addition, the project citizens seeking recognition of a fundamental rapporteurs were ožen in contact with the right or freedom, they could refer the ma˜er teams up until the dražing of the final reports. to the European Court of Human Rights, but The Constitutional Council’s different lacked access to the Constitutional Council. departments also made sure that the teams The primary ambition of the QPC 2020 had access to all the documents, files and sta- programme launched by the Constitutional tistical data necessary for their research. Council in early 2019 was therefore to under- The research papers were submitted stand, beyond any purely quantitative assess- in January 2020 and discussed at a closed ment, the changes introduced by this reform seminar held on 5 March at the premis - for citizens, judges and lawyers. The question es of the Constitutional Council, which was whether and to what extent the initial brought together the 16 teams, the Technical objectives had been achieved. Finally, it was Committee and the nine members //... 28

of the Constitutional Council. The debates the Constitutional Council unless they are proved to be open, free and exciting. accompanied and supported by a stakehold- The summaries of each paper discussed er pursuing a concordant strategy. were published in a special issue of the jour- Generally speaking, applicants are nal Titre VII devoted to the QPC 2020 initi- rarely ordinary citizens, with the exception of ative. The final reports are available on the cases dealing with tax issues. On the other website of the Constitutional Council. hand, the QPC has attracted a massive num- ber of stakeholders. In 45% of QPCs, interest groups have intervened in one way or anoth- er. They sometimes appear as the principal Nearly applicant in cases alleging abuse of power regarding the implementing act of the con- tested law. In such cases, the applicants artifi- cially create a dispute in order to gain access to the Constitutional Council. However, they have most often participated in support of 200 an individual’s application, in the form of an researchers involved intervention or sponsorship, to obtain a deci- in the QPC 2020 sion in line with their strategic objectives. A number of obstacles to the use of programme the QPC have been identified, which I shall simply list without claiming to be exhaustive. It is no easy task to encapsulate the First of all, the cost of the QPC procedure main lessons of such rich and thorough appears to be a serious barrier, at least for research in a few words. These papers made some litigants. Secondly, the choice of this it possible to establish solid results, while also procedure is not self-evident for litigants who identifying several uncertainties. This work do not fully appreciate the potential of consti- did not claim to be exhaustive; on the con- tutional review compared with other national trary, it aimed to shift the focus and open up or European remedies. Finally, uncertainty new perspectives. as to the direct advantage for the applicant First of all, it served to identify gaps in of a provision potentially being struck down our knowledge due to a lack of accessible data. weighs heavily when it comes to balancing While the system for observing the case law the costs and benefits of such a procedure. of the Constitutional Council and the institu- From that point of view, the motivations on tions responsible for screening is satisfactory the basis of which the Council modulates and easily accessible, the same cannot be said the effects of its decisions are generally of other courts, particularly trial and appeals courts, which remain a blind spot for the QPC. Neither the num- This work did not claim to be ber of referrals nor their outcome is known. The two regional studies that exhaustive; on the contrary, it aimed examined the attitude of magistrates to shift the focus and open up towards the QPC noted substantial disparities depending on individual new perspectives courts, magistrates and disputes. The research then sought to identify the profiles and motivations of appli- considered insufficient and are not cants and intervenors. While all those subject always understood. to trial seem to see the QPC as a step forward, With respect to lawyers, research it is clear that some have embraced it more shows that while they have a positive image than others. of the QPC, involvement in the procedure As such, the most vulnerable and/ remains irregular. Paris-based lawyers, and or modest citizens have difficulty calling on more particularly lawyers for the Council of ANNUAL REPORT 2020 ANNUAL 29

State or Court of Cassation, appear to be Titre VII special issue, better armed and more present. This situa- “QPC 2020 – 10 years of tion can also be explained by the fact that the the citizen’s prerogative” QPC remains a highly marginal activity for Summaries of the work carried out under most law firms. the QPC 2020 programme are published Lawyers’ strategies vary according to in a dedicated issue of the journal Titre VII, available as of October 2020 on the the type of litigation, but generally speaking, website of the Constitutional Council. the question of useful effect comes up as an essential component in the decision to use this procedure. Moreover, it is often the case that lawyers, at the same time as they file a QPC case, explore judicial review of interna- bit.ly/titrevii tional agreements, which they consider more appropriate to obtain an immediate remedy. The research also highlights the diver- sity of the objectives pursued by the par- the issue of strengthening the adversarial ties. Indeed, appeals do not focus solely on nature of the procedure, especially by includ- obtaining the repeal of a law. They may also ing expert testimony or amicus curiae briefs, seek clarification and amendment of the case and that of presenting the reasoning behind law of supreme courts. From this perspective, decisions in greater detail, as well as the ever- the QPC may appear to lawyers as the sur- lasting question of continuing professional est and fastest way to obtain satisfaction. The education for judges and lawyers. QPC may also be aimed at an objective spe- This work opens up many reflections cific to the associative, professional or eco- and perspectives for the Constitutional nomic environment concerned, with a focus Council itself, but also for all parties involved on internal or external communication. in QPCs. They also offer the prospect of con- One final question is raised repeatedly tinued research and the organisation of regu- in many of the studies: the difficulty of rec- lar, free and stimulating dialogue between the onciling the abstract nature of constitutional members of the Council and the academic review and the difficulties arising from the world. concrete application of the law. This is what In conclusion, I would once again some researchers have called the “tangibility like to thank the members of the Technical deficit”. This phenomenon appears particu- Committee who nourished and enlightened THE QPC CELEBRATES 10 YEARS THE QPC CELEBRATES larly when it comes to adapting the materi- this work thanks to their complete availability. al consequences of a potential decision to My thanks also go to all the research teams strike down a provision. However, from a who carried out exciting work in an extremely broader standpoint, the question concerns short time frame. the fact that the introduction of the QPC has This high-quality, collective research not profoundly, or at least explicitly, modified has made it possible to look back on these 10 the abstract nature of constitutional review. years of the QPC with a perspective that is Nonetheless, a citizen filing a QPC is moti- all the more valuable in that it is independent, vated by a concrete problem arising from a objective and shared. provision that applies to him or her, and a constitutional review procedure that deals with a matter of “living law” cannot by defini- tion be entirely abstract. This difficult task of reconciling the dual nature of review in the Depuis context of the QPC – at once abstract and février concrete – inspires a complex reflection that 2019, le is far from complete. Conseil constitutionnel tient I have only touched on the points that Watchrégulièrement the video en régionof the appear essential to me. There are many oth- seminarcertaines of de 5 ses March audiences 2020 ers that deserve our attention, in particular publiques sur les questions bit.ly/seminaireqpcprioritaires de constitutionnalité (QPC). 30

Environmental protection, mobility, taxation, municipal elections, fight against online hate speech and terrorism, free higher education, and of course the unprecedented COVID-19 health crisis... again this year, the scope of the issues addressed by the Constitutional Council was extremely broad. Whether through the shared initiative referendum (SIR), ex ante (DC) and ex post (QPC) constitutional review, the Council ruled on a multitude of subjects at the heart of French civic and political life. ANNUAL REPORT 2020 ANNUAL CONTENTS DECISIONS IN Pag Page 62 / Page 36/ Page 32 e 102 / 2019-2020 /

Other categoriesofdecisions Priority preliminaryrulings ontheissueofconstitutionality Ex ante Ex Shared Initiativ constitutionalreview e Referendum 31 32 ANNUAL REPORT 2020 Panthéon-Sorbonne University (Paris I) Professor emeritusof PublicLaw at Director of theConstitutional Law INTERVIEW Verpeaux Michel Research Centre

II

I I I

Council nomenclature in theConstitutional SIR: anew acronym Referendum Initiative Shared to counter Law N°2019-486 of 22May 2019, ation of Paris This airports. billwas intended status of national public service for theoper issued concerning the billaimedat affirming the Council? What istheroleofConstitutional Council. conferred new powers ontheConstitutional Council of 7November 1958. These two acts rated into theOrdinance ontheConstitutional 2013, provisions certain of whichwere incorpo- plemented by theOrganic Law of 6December 11byArticle therevision of 23July 2008, sup Citoyenne orRICinFrench). Initiated Referendum (Référendum d’Initiative to distinguish itfrom theCIR,orCitizen of French voters. Hence theadjective “shared” must subsequentlysupported be by one-tenth tives intheEuropean Parliament. The proposal i.e. 185 parliamentarians,excluding representa- Parliament, deputiesandsenators combined, least of one-fifth themembers of theFrench cess may beappliedtobill sponsored a by at the constitutional revision of 2008. This pro- tive PartagéeorRIPinFrench) established by Initiative Referendum (Référendum d’Initia- What istheSIR? Decision N°2019-1 RIPof 9May 2019 was This new procedure was introduced in These three letters refer to theShared - - 33

known as “PACTE”, on business growth and collection operations the complaints regard- transformation, and this aspect was validated ing publication and updating of the number by the Constitutional Council through a DC of expressions of support collected, as well as decision issued on 16 May 2019, i.e. after the those regarding the adoption of measures to SIR decision. In the latter, the Council consid- provide voters with truthful information. After ered that the proposal had indeed received the a few uneventful months, on 12 March 2020 the support required from parliamentarians. It also Constitutional Council announced five other determined the number of expressions of voter decisions, N° 2019-1-3 to N° 2019-1-7, on referral support necessary (4,717,396). The signature from various voters. collection period was then opened from mid- On 26 March 2020, by a penultimate night on 12 June to midnight on 12 March 2020. decision in this series, N° 2019-1-8 RIP, the Incidentally, if the closing date had fallen during Constitutional Council noted the official and the lockdown order, would it have been neces- authenticated number of signatures collected sary to extend the 9-month period provided for over the nine-month period, thereby compar- in the organic law of 6 December 2013? ing the figure that had to be reached with the At the parliamentary stage of the initiative, number that was indeed reached, i.e. 1,093,030 the Constitutional Council must, via preven- registered voters in favour of the bill. The body tive review, verify fulfilment of the conditions thus drew the objective conclusion that the set out in paragraphs 3 and 6 of Article 11 of bill had not received the support of at least the Constitution, ensuring that no provision one-tenth of registered voters. This “decision”, of the bill is unconstitutional. This is a new form of ex ante review and not one of the conditions regarding control of referendum operations pro- As in the other Electoral Observations, vided for in Article 60 of the Constitution. It is also a new the Council also wished to make case of mandatory review by recommendations as to necessary the Constitutional Council provided for in paragraph 1 of changes, particularly with regard to the Article 61, amended in 2008 unsatisfactory conditions in which the to this effect. This new cate- gory of decision is neverthe- “electoral campaign” was conducted REFERENDUM SHARED INITIATIVE less subject to the conditions of genuine litigation and must satisfy the requirements of an adversarial debate, even if the notion of parties is even more delicate to deter- listed as such in the Official Journal and on the mine in the case of SIR decisions than for DC Council’s website, is in reality a simple state- decisions. In formal terms, it is similar to deci- ment of the number of supporters of the pro- sions dealing with unequivocal constitutional posed law. The Council did not in fact “decide” disputes, whether DC or QPC decisions. anything, it merely noted the figure. After this initial stage, the Council was grant- The Council wanted to conclude this series ed the authority, via the organic law, to ensure of decisions by Decision N° 2019-1-9 RIP of the validity of operations to collect support for 18 June 2020, entitled Observations of the a bill. It can examine and rule on all complaints Constitutional Council (on the operations of from any registered voter. gathering support for the bill aimed at affirming the status of national public service for the oper- Why did the Constitutional Council issue ation of Paris airports). Following the example several decisions? of its Observations on the legislative elections Following this decision N° 1, and during the of 11 and 18 June 2017 (see ELEC Decision N° signature collection phase, the Council initially 2019-28 of 21 February 2019), the Council took announced two decisions, N° 2019-1-1 RIP of 10 stock of the difficulties involved in managing the September 2019, Mr Paul Cassia, and N° 2019-1- electronic support collection system, as well as 2 RIP of 15 October 2019, Mr Christian Sautter. those relating to the impossibility of anonymous With these two decisions, the Constitutional support, which may have had the effect of dis- Council included in its control of signature suading voters. As in the other Electoral //... 34 ANNUAL REPORT 2020 // the Constitutional Council. another organic law thepowers specifying of amendment, this new provision will require of uncertaintiesregarding thesuccess of this and onemillionregistered voters). Regardless originating from one-tenth of parliamentarians the wording applicablesince 2008(initiative but subjectto lessrestrictive conditions than of the current 11relating Article to the SIR, 69Article strongly inspired by theparagraphs tled “Citizen participation” whichincludesanew on 29August 2019, insertedanew Title XIenti- the revitalisation of democratic life, introduced necessary. The proposed constitutional law for million citizens. tive to originate from apetition signedby one therulesandbysimplifying allowing theinitia- declared a desire to “go on the SIR by further” vests” crisis,thePresident of theRepublic failure of theproposed law. such anoperation despite verythe difficult, and thecoronavirus crisisare likely to make cedure. The deteriorated economic situation start of theShared Initiative Referendum pro- wasundertaking suspended, as it were, by the ed for inthelaw of 22May 2019. Indeed, that step towards further privatisation, asprovid- operatingADP airport company to move one What isthefutureofSIR? panied by democratic safeguards. process of gathering supportmust beaccom- conducted. Although itisnotthe anelection, ditions inwhichthe“electoral campaign” was ticularly withregard to theunsatisfactory con- recommendations as to necessary changes, par Observations, theCouncil alsowishedto make ... To doso, aconstitutional revision willbe In 2019, inaneffort to resolve“yellow the It would have beenlogical for theGroupe N° 2019-1-9 RIPonline - Read theDecision bit.ly/201919rip for theoperation of Paris airports. the status of national publicservice of theConstitution, aimedat affirming pursuant to paragraph 3of Article 11 gather supportfor the billintroduced concerned monitoring initiatives to business of theConstitutional Council Over thepast year, part of the implementation of theinitial Taking stock Referendum – Shared Initiative I ered it necessary, as per the practice followed in procedure, the Constitutional Council consid- mentation of the Shared Initiative Referendum French electorate. ofatleastone-tenththe garner thesupport oftherequirementsequently fallenshort to of 1,093,030registered voters, andhadcon - 2020, thatthebillhadreceived thesupport its Decision N°2019-1-8RIPof26March period, the ConstitutionalCouncil noted,in State. Honorary Section President at the Council of Organisation Act, chaired by Mr. Jean Massot, November 1958ontheConstitutionalCouncil 45-4ofOrder3 ofArticle N°58-1067of7 plaints by thepanelprovided forinparagraph Council, aswell astheprocessing ofcom- ination ofappealsby theConstitutional n particular, thisactivityincludedtheexam- Following –imple- thisinitial –andpartial At theendofsignature collection electoral and referendum matters, to provide viaits observations Decision N° 18 June 2020.In sodoing, it calledforseveral improve- tial developments. poten- ments andputforth nearly 100% elec procedure forcollecting procedure It confirmed thatthe

2019-1-9 RIPof troni ­ c

35 support, organised in 2013 through an organic act of Parliament, produced reliable results. In particular, preliminary verification of the regis- tration of internet users in the Single Electoral Register (Répertoire Électoral Unique or REU), by means of a dedicated electronic form, made it possible to ensure that individuals express- ing their support were in fact registered voters. st Moreover, monitoring operations identified very few attempts at identity theft. However, the Constitutional Council implementation1 stressed that this electronic procedure for of the SIR procedure collecting support also suffered from certain shortcomings and a number of flaws, starting with the overall non-ergonomic design of the dedicated website, which was often perceived as being complex, not very intuitive and insuf- ficiently suited to a consultation intended for a wide audience. Nonetheless, the gap between 9 months the number of signatures recorded and the period for gathering threshold of one-tenth of the electorate was public support significant enough to maintain that the obsta- (13 June 2019 - cles that may have prevented some voters from 12 March 2020) expressing their support for the bill had no impact on the outcome of the procedure. It is possible, however, that these difficulties may have contributed to a loss of confidence in the procedure and discouraged some voters from 1,093,030 participating. The Council therefore made sev- voter signatures collected eral proposals to improve this electronic system. Evoking further reflections and possible REFERENDUM SHARED INITIATIVE Of which developments with regard to the issues raised, 7,937 submitted in town halls or the Constitutional Council noted that some voters sympathetic to a bill may be discouraged consulates abroad from expressing their support by the extreme- ly high number of signatures required (around 4.7 million) and by the fact that, even if this number were attained, a referendum would remain merely hypothetical (an examination of the bill by the two Assemblies is sufficient to 95% of signatures end the procedure). deemed valid Finally, while the absence of provisions for the organisation of a public debate or a media campaign on a bill introduced under Article 11 of the Constitution did not lead to irregularities in the case in question, it may nevertheless have generated some misunderstanding and dissatis- 4,243 faction. As such, the desirability of designing a complaints public information system should therefore be from voters considered. 36 DECISIONS IN

24 DC referrals from 1 September 2019 to 10 31 August 2020 declarations of constitutionality 6 declarations of partial unconstitu­ tionality 147paragraphs: the longest decision this year ANNUAL REPORT 2020 ANNUAL 37 DECISIONS IN

Ex ante constitutional review

Since its creation in 1958, the Constitutional Council has worked to verify the constitutionality of laws passed by Parliament prior to promulgation of said laws by the President of the Republic. As part of this procedure, known as ex ante review, the Council issues a “Decision of Constitutionality” (DC). While organic laws are automatically examined by the Constitutional Council, so- called “ordinary” laws are only examined if referred to the body. This can be done by the President of the Republic, the Prime Minister, the President of either parliamentary assembly, 60 deputies or 60 senators. The following pages provide an overview of the DCs that marked the period from September 2019 to August 2020. 38 ANNUAL REPORT 2020 the Constitutional Council. nuclear (ARENH)were electricity” referred to mechanism for “regulated access to historical and Climate Act reforming partially the provisionsCertain of 62 Article of theEnergy CLIMATE ACT ENERGY AND such limitations are linkedto constitutional Man andoftheCitizen of1789,provided that 4ofthe Declaration oftheRights Article on freedom ofenterprise,whichderives from Parliament is entitled to impose limitations the Citizen of1789.According tothiscaselaw, the Declaration oftheRightsMan andof of enterprise,whichderives 4of from Article applied itscaselawonfreedom the ConstitutionalCouncil of enterprise. gard oftheprinciple freedom determined by decree, indisre- electricity suppliersataprice generated electricitytoother per year of historicalnuclear sell up to 150terawatt-hours particular, forforcing EDFto provisions were criticised,in determined by decree. These electricity suppliersataprice to offerannuallyforsaleother France (EDF)mayberequired nuclear generatedelectricitythatÉlectricitéde T In decidingthiscase, maximum volume ofhistorical terawatt-hours currently, ofthe terawatt-hours, from onehundred for anincrease toonehundred fifty he disputedprovisions provided ENTERPRISE, ISJUSTIFIEDENTERPRISE, THE CONSTITUTIONAL AN INFRINGEMENTOF MEASURE, ALTHOUGH THAT THEDISPUTED EDF’S FREEDOMOF BY THEGENERAL COUNCIL RULED INTEREST disputed measure, althoughaninfringement pursued. withregarddisproportionate totheobjective est, andthattheresulting constraintsare not requirements orjustifiedby thegeneralinter- the market, thereby increasing prices forend purchaseto more on expensive electricity theircustomers,wouldbeforced ed toserve need volume energy the to nuclear of access avoid asituationinwhichsuppliers,without to 150terawatt-hours,legislators intendedto By raisingthemaximumvolume ofelectricity competitiveness oftheFrench nuclearfleet.

The Constitutional Council ruled thatthe The ConstitutionalCouncilruled customers benefitfrom the that allsuppliersandtheir ity supplymarket, toensure competition intotheelectric- of theinitiative tointroduce is intended,inthecontext ar electricityatafixed price a historicvolume ofnucle- to otherelectricitysuppliers imposed onittoofferforsale France.in ity obligationThe of nucleargeneratedelectric- monopoly ontheproduction al interest. Indeed, EDFhasa prise, isjustifiedby thegener- of EDF’s freedom ofenter- [Constitutionality –reservation] Energy andClimate Act 07 November 2019 N° 2019-791 DC DECISION

- 39

consumers. As such, by seeking to ensure the cannot, without disproportionately infringing competitive operation of the electricity market on freedom of enterprise, authorise the Ministers and guarantee price stability on that market, for Energy and the Economy to set a price with- Parliament was deemed to have pursued an out taking sufficient account of the economic objective of general interest. conditions for the production of electricity by The Constitutional Council then noted nuclear power plants. the various safeguards introduced by legisla- Subject to this interpretative reservation, tors to limit the curtailment of EDF’s entre- the Constitutional Council found the contest- preneurial freedom. ed provisions to be constitutional. With regard to the rules for determining the price of historical nuclear electricity to be sold by EDF to other electricity suppliers, the Constitutional Council noted that, pending adoption of the decree establishing the methods for determining said price, the transitional mech- anism set out by the law in question provides that, in order to revise the price, the Ministers responsible for energy and the economy may take into account, inter alia, changes in the con- sumer price index and changes in the maximum overall volume of historical nuclear electricity that may be sold. However, the Council consid- ered that these provisions, which do not provide for any other method of determining the price,

EDF has a monopoly on the

production of nuclear IN 2019-2020 DC DECISIONS electricity in France. 40 ANNUAL REPORT 2020 to review several provisions of the The Constitutional Council was calledupon ACT ORIENTATIONMOBILITY and modernising theway itmonitors legislative riders. regarding 1of Article theCharter for theEnvironment electronic platforms, itscaselaw whileclarifying relating to thesocialresponsibility charters of Orientation In Act. particular, itstruck down those to private personsthe 34, withoutattributing Article and inparticular it by theConstitution, jurisdiction conferred on to exercise infullthe incumbent onParliament Council recalled thatitis Instance. the Tribunal deGrande within thejurisdictionof to suchapproval shallfall platform andtheworkers. Anydisputerelating of alegalsubordinate relationship between the it provides forshallnotconstitutethe existence andthefulfilmentofcommitments charter In theevent ofapproval, theestablishmentof ter totheadministrative authorityforapproval. persons withwhomithasdealings,refer themat- form may, afterconsultingtheself-employed Once it hasdrawn upsuch acharter, the plat- procedures forexercising itssocialresponsibility. specifyingtheconditionsand draw upacharter by meansoftwo-orthree-wheeled vehicles, may orgoodsdelivery chauffeured services transport people electronicallytoproviding withaview A The Constitutional activity consistsinconnecting which aplatformoperatorwhose sets outtheconditionsunder 44,which Article was Council the mong theprovisions referred to THE CONSTITUTIONAL COUNCIL AN UNPRECEDENTED REVIEW WITH REGARD TO ARTICLE 1 SUBJECTED THEFORWARD- CONTAINED INTHELAW TO OF THECHARTER FOR THE LOOKING PROVISIONS ENVIRONMENT Mobility contested provisions were intended to prevent of alegalrelationship ofsubordination. The they are infactcharacterised by theexistence dealings asanemployment contractwhere with theLabourCode,forreclassifying said ship, isresponsible, thecourt inaccordance independently inthecontextofsaidrelation- exercisehas drawnupacharter theiractivity mercial relationship withaplatformwhich although inprincipleworkers enjoying acom- ments, theConstitutionalCouncilnotedthat, such fallswithinthescopeoflaw. damental principlesoftheLabourCode,andas tics ofemployment contracts, isoneofthefun- law and,inparticular, theessentialcharacteris- Determining thescopeofapplicationlabour Constitution, maybedeterminedonlyby law. task oflayingdown that,pursuanttothe rules In lightoftheseconstitutional require- Mobility Orientation Act [Partial unconstitutionality] 20 December 2019 being unilaterally defined being unilaterally defined mer are subject,theselast tions towhichthefor- platform andtheobliga- granted toworkers by the may cover boththerights approved. hasbeenthe charter by theplatform andwhen with commitmentsmade it isbasedoncompliance such reclassification when N° 2019-794 DC Those commitments DECISION

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in the charter. In particular, the charter must power of construal and decision of the same specify “the quality of service expected, the nature as that of Parliament. It cannot judge methods and implementation of control of the the appropriateness of the objectives attributed activity by the platform and the circumstanc- to government action by Parliament, provided es that may lead to a termination of the com- that such objectives are not manifestly incom- mercial relations between the platform and the patible with the implementation of this consti- worker”. The charter may thus concern rights tutional requirement. and obligations liable to constitute indications Through this review, the Council held, of a relationship of subordination between the inter alia, that the objective set out for govern- worker and the platform. ment action by Article 73 of the law, i.e. bring- At the same time, when the platform sub- ing about complete decarbonisation of the mits a request for approval of its charter, the land transport sector by 2050, was not man- government is solely responsible for verifying ifestly incompatible with the requirements of compliance with specific provisions of the Article 1 of the Charter for the Environment. Labour Code. Finally, this decision by the Constitutional The Constitutional Council inferred from Council broke new ground with respect to this that the contested provisions allowed review of “legislative riders”, provisions that are platform operators themselves to set down unrelated to the primary provisions of the bill, in the charter aspects of and thus have no place in their relationship with the law in question. The self-employed workers body further clarified that could not lead the What is a legislative the reasoning tradition- rider? A rider is a provision court to recognise the ally followed in applica- inserted into a bill by an amendment existence of a legal rela- tion of Article 45 of the that violates Article 45 of the tionship of subordination Constitution. Constitution by being insufficiently and, consequently, the linked to the subject matter of the After recalling the existence of an employ- bill in question. The Constitutional provisions of this article, ment contract. They thus Council may strike down legislative it stated that “it is the allow platform operators riders on its own initiative, even role of the Constitutional IN 2019-2020 DC DECISIONS to lay down rules which if they are not mentioned by Council to declare pro- are a matter of law and, legislators when requesting review visions introduced in consequently, infringe on of the bill. breach of this procedur- the scope of the law. The al rule to be contrary to Constitutional Council the Constitution. In this therefore struck down case, the Constitutional the wording “and respect of the commitments Council shall not comment on the conformity undertaken by the platform in the matters list- of the content of these provisions with other ed in items 1 to 8 of this Article” appearing in constitutional requirements”. It recalls the ini- paragraph 39 of Article 44. tial scope of the bill, before demonstrating, for Furthermore, the Constitutional Council each provision struck down, why it must be subjected the forward-looking provisions con- regarded as having no direct or even indirect tained in the law to an unprecedented review link with the spirit of the law. The observations with regard to Article 1 of the Charter for the submitted to the Constitutional Council by the Environment. Government on these issues are now also made Recalling that pursuant to Article 1 of the public on the Constitutional Council’s website, Environment Charter, “Everyone has the right where they serve to support of its decision. to live in a balanced and healthy environment”, it ruled that the objectives attributed by law to government action could not contravene this constitutional requirement. However, the Constitutional Council does not have a general­ 42 ANNUAL REPORT 2020 Act for 2020. several of articles theSocialSecurityFinancing 2019, theConstitutional Council ruledon With itsDecision N°2019-795 DCof 20December FINANCING ACT SOCIAL SECURITY to be paid by operators of certain healthdevices. to bepaidby operatorsof certain 23institutingacontribution tutionality ofArticle ofinterpretation,ject toareservation theconsti - Financing Act. grounds forinclusionintheSocial Security security revenue were tooindirect toconstitute effects ofthe“bonus-penalty” systemonsocial freedom tochoose theirprofessional future. The from theLaw of5September 2018 oncitizens’ a reform ofunemployment insurance resulting ance contributionswere insteadanadditionto Finance Act, employers’unemployment insur- all sources ofincome)provided forinthe2018 a socialsecuritycontributionleviedonvirtually in theCSG(ContributionSocialeGénéralisée - tain socialcontributionsinreturn foranincrease the overall reform introducing areduction incer- financing laws.Far from beinginseparablefrom tions donotfallwithinthescopeofsocialsecurity employers’ unemployment insurancecontribu- employmentnumber ofshort-term contracts. onthe contribution ratesdependinginparticular to a modulation of unemployment insurance rity payroll taxes payableby employers, leading culation ofthegeneralreductions in social secu T The ConstitutionalCounciladmitted, sub- thatThe ConstitutionalCouncilruled “bonus-penalty” systeminthecal- effectsoftheneutralise certain aimed, from 2021onwards, to down 8ofthislaw, Article which he ConstitutionalCouncilstruck - the revaluation of certain benefits and pensions the revaluation benefits andpensions ofcertain the provisions law, ofordinary sets the article the Constitution.By wayofderogation from 81 ofthelawinquestiontobe consistentwith surcharge. since thepricetheyare paiddoesnotincludethis capacityoftheoperatorsmedicaldevices, tory This increase isin factunrelated tothecontribu- operator aprice lower than the approved rate. establishments when the latter have paid the the nationalhealthinsuranceschemeto interpreted asincluding thesurcharge paidby thattheamountreimbursed ruled cannotbe the Citizen of1789,theConstitutionalCouncil of theDeclaration oftheRightsMan andof 13 ment encumbrancesguaranteedby Article from theprincipleofequalityvis-à-visgovern- of taxpayers’ capacitytocontribute,following in respect ofthemedicaldevicesitoperates. totheamountreimbursed culated inproportion payable by eachoperatorconcernedshallbecal- amount determinedby law. The contribution the difference between thisbaseandamaximum The totalamountofthecontributionisequalto minus thediscountsgrantedby theoperators. year inrespect ofthemedicaldevicesinquestion, the nationalhealthinsuranceschemeduringone devices is defined asthe amount reimbursed by medical due by companiesoperatingcertain The Constitutional Council deemed Article The ConstitutionalCouncil deemed Article In lightoftherequirement totakeaccount The basisforcalculatingthiscontribution

[Partial unconstitutionality – 20 December 2019 N° 2019-795 DC Social Security Financing Act DECISION reservation]

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provided by the basic compulsory social security the reform and shifting the financial burden schemes at 0.3% for the year 2020, while main- of contributing to balancing public accounts taining this revaluation at the level of inflation to the remaining insured persons who receive for pensions provided to insured persons whose pensions above this amount. total pensions provided by It ruled that this differential both the basic compulsory old- revaluation, the effect of which age and invalidity insurance is passed on from year to year, schemes and the compulsory THE DISPUTED permanently modifies the rel- supplementary schemes are less DIFFERENTIAL ative levels of benefits paid to than or equal to €2,000 per REVALUATION SYSTEM each insured person, alleviating month. the burden on three-quarters of The Constitutional IS BASED ON OBJECTIVE retirees and recipients of disa- Council noted in this respect AND RATIONAL CRITERIA bility pensions, and shifting it that, by introducing this dif- RELATING TO THE to the remaining quarter. The ferential revaluation of certain consequences of this policy benefits and pensions provid- PURPOSE thus affect the contributory ed by the basic compulsory nature of the old-age and disa- schemes, Parliament intended bility insurance schemes. both to limit social expenditure and to pre- However, in view of its exceptional and serve the purchasing power of the majority limited nature, the disputed differential of retirees and beneficiaries of invalidity pen- revaluation system is based on objective and sions. By adopting a threshold of €2,000 for rational criteria relating to the purpose of the total amount of pensions, Parliament acted the law and does not create a clear breach of in accordance with its objectives, exempting equality vis-à-vis government encumbrances. 77% of insured persons from the exception- al sub-inflation revaluation introduced by DC DECISIONS IN 2019-2020 DC DECISIONS

The applicants denounced 10 articles of the law. 44 ANNUAL REPORT 2020 FOR 2020 FINANCE ACT printing. Freedom ofexpression andcommu- freedom ofcommunication,speech,writingand tax fraudandevasion withtheexercise of the constitutionallyvalid objective ofcombating ered tolaydown reconciling rules thepursuitof lic freedoms. On thisbasis,legislatorsare empow- citizens are entitledregarding theexercise of pub- concerning thefundamentalguaranteestowhich sible forlayingdown rules Parliament isalsorespon- ing therighttoprivacy. is pursuedwithoutviolat- tax fraudandevasion objective of combating constitutionally valid ble forensuringthatthe Parliament isresponsi- Council recalled that lations. of taxandcustomsregu- purpose ofinvestigating offencesandbreaches works andthesitesofplatformoperators,for collect andutilisedatamadepubliconsocialnet- and customsadministrations,onatrialbasis,to C Finance Ac the Constitutional Council ruledonthe By thisdecision,running 147 paragraphs, more than60senators. submitted by more than60deputiesandthelast by to thebody through three appeals, thefirst two The Constitutional the provisions authorisingtax downprecisea interpretation of the ConstitutionalCouncillaid cles oftheFinance Act for2020, alled upontoreview- several arti t for 2020, whichhadbeenreferred TAX FRAUD ANDTAX EVASION IS PURSUED WITHOUTVIOLATING PARLIAMENT ISRESPONSIBLE OBJECTIVE OFCOMBATING CONSTITUTIONALLY VALID FOR ENSURINGTHAT THE THE RIGHTTO PRIVACY

sight by tax and customs administrations, thereby sight by taxandcustomsadministrations, thereby provisions, Parliament soughttostrengthen over- however, itnotedthat,by adoptingthecontested dom ofexpression andcommunication. theyalsoviolatetheexercisesuch services, offree- to discourage or leadtorestrictions on the use of of therighttoprivacy. Insofar astheyare liable by authorisingthegovernment toutilisecom - that, specified, theConstitutionalCouncilruled the objective pursued. be necessary, appropriate and proportionate to limitations ontheexercise ofthisfreedom must respect forotherrightsandfreedoms. To bevalid, out asaprerequisite fordemocracy, safeguarding nication isallthemore precious since itstands As regards the aimsofcontestedmeasure, In light of the constitutional framework thus In lightoftheconstitutional frameworkthus Finance Act for 2020 [Partial unconstitutionality] 27 December 2019 sions constitute a violation sions constituteaviolation lation, thecontestedprovi- cross-checking andcorre- data through aggregation, ner, andtoexploitthese an undifferentiated man- in communication services lished ononlinepublic pub number ofpersons, of datarelating toalarge to collectlargevolumes means makingitpossible puterised andautomated N° 2019-796 DC DECISION

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pursuing a constitutionally valid objective of com- mentioned platforms, thus excluding content bating tax fraud and tax evasion. accessible only after entering a password or The Constitutional Council then examined registering on a specific site. Furthermore, all the safeguards established such content must be une- by the law in question in quivocally made public by order to set out parameters THE RESULTING the users of those sites. The for the implementation of Constitutional Council these measures and to limit LIMITATION OF FREEDOM stressed that, consequently, the risk of invasion of privacy OF EXPRESSION AND only content relating to the and violation of freedom of COMMUNICATION IS person having deliberately expression and communica- disclosed it may be collected tion. It thus set out the con- NECESSARY, APPROPRIATE and utilised. Data revealing ditions governing use of this AND PROPORTIONATE TO a person’s supposed racial or mechanism. THE OBJECTIVES PURSUED ethnic origin, political opin- In particular, it noted ions, religious or philosoph- that data liable to be collect- ical beliefs or trade union ed and utilised must meet certain cumulative membership, genetic and biometric data, and conditions. The content in question must be data concerning life, health or sexual orien- freely accessible on an online public commu- tation may not be utilised for the purpose of nication service managed by one of the above- investigating offences or breaches.

//...

The Council set out rules governing use by tax and customs authorities of IN 2019-2020 DC DECISIONS data published on social networks.

L’ATTEINTE PORTÉE À L’EXERCICE DE LA LIBERTÉ D’EXPRESSION ET DE COMMUNICATION EST NÉCESSAIRE, ADAPTÉE ET PROPORTIONNÉE AUX OBJECTIFS POURSUIVIS 46 ANNUAL REPORT 2020 use of the automated personal data collection aware ofaviolationtaxlaw, thusmaking ers formalnoticetofilethereturn, are already government authorities,havingsenttaxpay- of receipt of formal notice. In such a situation, for failure to file a tax return days within thirty infringements punishableby a40%surcharge mated collectionanduseofdatatoinvestigate downstruck theprovisions allowing forauto- totheobjectivesand proportionate pursued. and communication is necessary, appropriate the resulting limitation offreedom ofexpression tions. It thus follows that pliance withthesecondi- tax evasion, subjecttocom- combating taxfraudand tionally valid objective of privacy andtheconstitu- ance between the right to ensuring anadequatebal- with safeguards capableof the contestedmechanism or breaches, thelawprovides ing aspecificsetofoffences that,regardCouncil ruled - cerns, theConstitutional tive pursued. totheobjec- in proportion will becarriedoutinanappropriate mannerand cessed inthecontextofrelevant procedures tion, contestation and rectification of data pro- recording, storage, consultation, communica thatthecollection, sion ofthecompetentcourt, - mentioned guaranteesandunderthesupervi must alsoensure, incompliancewiththeafore- competent authorities for thosepurposes. The data strictlynecessary to collect and store only cessing makeitpossible algorithms usedforpro- that supervision, court ity mustensure, under author- the regulatory and useofsaiddata, purposes pursued,atthetimeofbothcreation tionality ofdataprocessing withregard tothe At the same time, the Constitutional Council At thesame time,theConstitutionalCouncil In lightofthesecon - It heldthat,inorder toensure thepropor- OF THEPROGRAMME MAY BE RE-EXAMINED ONTHEBASIS THE CONSTITUTIONALITY OF THISEVALUATION procedures inreviewing these acts. The Council applies expedited the parliamentaryopposition. the Constitutional Council by are systematically referred to is not automatic, finance acts expenditure. Although examination determines government revenue and Each year, theFinance Act of financelaws Constitutional review -

resulting violationsoftheaforementioned rights inlightofthe fraud andtaxevasion, particularly sions regarding itseffectiveness incombatingtax programme anddrawingtherelevant conclu- Parliament will be responsible for evaluating the after thethree-year trialperiodsetoutby law, of maintainingtheprogramme inquestion investigation of such an offence, these provisions mentation ofsuchamechanismforthesimple system unnecessary. As such, by allowing imple- sised that,whenitcomes titutional Councilempha- the objective pursued. regarded to asproportionate nication whichcannotbe of expression and commu- right toprivacy andfreedom constituted a violation of the to assessing the advisa Finally, theCons of thisevaluation. re-examined on the basis the programme maybe The constitutionalityof mentioned conditions. pliance withtheafore- and freedoms andcom- ­bi lity lity ­

preparing anddrafting all The Legal Department, the Secretary General, under thedirection of assists theCollege in its decisions. meet intheDeliberation decisions behindclosed Constitutional Council The members of the Room to take their doors. 47

DC DECISIONS IN 2019-2020 48 ANNUAL REPORT 2020 health stateofemergency. Consequently, theydo in thecrisis situation that justified thepublic criminaloffence unintentional to constitutean to any person who has committed an act liable lawand applyinthesameway those ofordinary paragraph II, ofthelawinquestion are similar to thattheprovisions Council ruled 1, ofArticle disaster, theConstitutional liability intheevent ofahealth ditions forincurringcriminal four referrals. 88-paragraph decisiononthese Council handeddown its 11 May, the Constitutional Sunday, 10May. On Monday, this textontheafternoonof referrals concerning liamentary subsequently received twopar- the Constitution. The Council President oftheSenate, 61of pursuanttoArticle evening by thePresident oftheRepublic andthe T interpretative reservation andonerejection. isolation measures, itpronounced one reservations. Concerning quarantine and two rejections partial andthree interpretative for “tracing” purposes, theCouncil pronounced processing of personal dataof amedicalnature state of emergency. However, withregard to the provisions of thelaw extending thepublichealth The Constitutional Council validated several STATE OF EMERGENCY PUBLIC HEALTH With regard tothecon- to the Constitutional Council that to theConstitutionalCouncilthat Saturday, 9May 2020,wasreferred menting itsprovisions, adoptedon state ofemergencyandsupple- he lawextendingthepublichealth PROTECTING HEALTH VALID OBJECTIVE OF CONSTITUTIONALLY PARLIAMENT WAS PURSUING THE legislators fromInsystem. establishingsucha thattheConstitutiondoesnotpreclude ruled state ofemergency, theConstitutionalCouncil incompetence. inal law, norare theyunderminedby negative not violatetheprincipleofequalitybefore crim- deemed Parliament tohave reconciled these same Declaration. whichderivesopinions, ofthe 11 from Article the righttocollective expression ofideasand of enterprise,whichderives 4,and from Article to privacy, whichderives 2,freedom from Article With regard tothestatusofpublichealth In lightoftheserequirements, theCouncil supplementing theprovisions Declaration of 1789, the right Declaration of1789,theright 2and4ofthe tected by Articles nent ofpersonalfreedom pro- movement, whichisacompo- freedoms include freedom of borders. These rightsand those residing within French and freedoms recognised forall ciled withrespect fortherights of protecting healthisrecon- constitutionally valid objective Parliament toensure thatthe this context,itisincumbenton of thepublichealth state [Partial unconstitutionality – Act extending and N° 2020-800DC of emergency 11 May 2020 DECISION reservation]

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The Constitution does not exclude the possibility of declaring a public health state of emergency.

constitutional requirements in a balanced way Constitutional Council recalled that individu- by adopting the measures authorising the Prime al liberty, the protection of which is entrusted Minister to regulate or prohibit the movement to the judiciary, must not be encumbered by of persons and vehicles and to regulate access to unnecessary rigour. Limitations on the exercise

means of transport and the conditions for the use of this freedom must be appropriate, necessary IN 2019-2020 DC DECISIONS thereof, as well as to order the temporary closure and proportionate to the objectives pursued. and regulate the opening of establishments open In its assessment of the proportionality of the to the public and places of assembly. With regard limitations on individual freedom resulting from to such places, the Council noted in particular those measures, the Council noted in particular that they did not extend to residential premises. that, by seeking through the provisions in ques- Having examined the system of quarantine tion to ensure that persons to whom they apply applicable to persons liable to be affected by are isolated from the rest of the population by the disease at the root of the health disaster that subjecting them, where necessary, to complete led to the declaration of the public health state isolation so as to prevent the spread of the dis- of emergency, and the system for placing and ease, Parliament was pursuing the constitution- maintaining affected persons in isolation for an ally valid objective of protecting health. initial period of 14 days, renewable for a maxi- As for the scope of application of the meas- mum period of one month, the Constitutional ures, they may only apply to persons having trav- Council found that measures involving com- elled during the previous month in an area where plete isolation, which implies a ban on “any and the infection is actively circulating and who enter all exit”, constitute a deprivation of liberty. The or are already present in France, arrive in Corsica same applies to rules requiring the person con- or in one of the areas mentioned in Article 72-3 cerned to remain in his or her home or place of of the Constitution. accommodation for a period of more than 12 Considering the safeguards Parliament intro- hours per day. duced into the system governing these measures, On the basis of Article 66 of the Constitution the Council noted, in particular, that should a and in accordance with established case law, the person be placed in isolation, the decision, which //... 50 ANNUAL REPORT 2020 sons affectedby COVID-19 andthose whohave ed to allow the processing of data to “trace” per- ment measures intheevent ofahealthemergency. confine- rently inforce forquarantineandsolitary as thedeadlineforrepealing thelegalregime cur- the lawunderreview, sets1June thearticle 2020 intoforce of individual freedom. Asoftheentry 13ofthelawinquestionforviolating Article a judicialjudge. than 12hoursadaywithouttheauthorisationof or herhomeplaceofaccommodationformore requiring theperson concernedtoremain inhis the extensionofquarantineorisolationmeasures 66oftheConstitution,permit ments ofArticle visions cannot,withoutdisregarding therequire- via aninterpretative thatthesepro reservation, - in othercases. by ajudicialjudgeisprovidedatic intervention for appointed beforehand by theprefect, nosystem- andcustodyjudge, the authorisationofliberty not continuebeyond aperiodof14dayswithout leaving the place of quarantine or isolation may measures prohibiting thepersonconcernedfrom Health Code provide that quarantine or isolation L.3131-17ofthePublic paragraph IIofArticle as possible. as being respected if a as judge soon intervenes that individualfreedom canonlybeconsidered measures, theConstitutionalCouncilrecalled disease attheroot ofthehealthdisaster. liable tobeaffectedby the of the persons affected or tionate tothecondition andpropor- ate, necessary where theyare appropri- implemented onlyincases that thesemeasures are out conditionstoensure the lawunderreview set an extension. medical opinion establishing the need for such ed beyond aperiodof14daysonlyfollowing a cate. The measures inquestionmaybeextend- - only betakenonthebasisofamedicalcertifi is subjecttoamedicaldiagnosisofinfection,can With regard to theinformation system intend down The ConstitutionalCouncilalsostruck The ConstitutionalCounciltherefore held, However, whiletheprovisions containedin However, with regard to the control of these The Councilheldthat BEING RESPECTED IFAJUDGE INDIVIDUAL FREEDOMCAN ONLY BECONSIDERED AS INTERVENES AS SOONAS POSSIBLE - formulated an initial interpretative reservation High CouncilonPublic Health. Council ofState following advisement ofthe ical imagingevidencespecified by decree ofthe to COVID-19 or to the diagnostic and med- to virological orserological statuswithregard ed, processed and shared to data relating solely of thepersonalhealthdatathatmaybecollect- purposes. forfourspecified to theextentstrictlynecessary tioned personaldatamaybeimplementedonly lection, processing andsharingoftheaforemen- objective pursued, the Councilnotedthat col- nature ofthecontested provisions vis-à-visthe stitutionally valid objective ofprotecting health. ination. Legislatorswere thuspursuingthecon- 19 epidemicby identifying thechainsofcontam- the government’s disposal to combat the COVID- Parliament intendedtostrengthen themeansat ered that, by adopting the contested provisions, visions violatetherighttoprivacy. data information systems.In sodoing, these pro - tion systemandaremodelling ofexistinghealth concerned, inthecontextofanadhocinforma- with them,withouttheconsentofpersons fering from COVID-19 andpersonsincontact personal datarelating tothehealthofpersonssuf- provisions authorisetheprocessing andsharingof specified, theCouncil noted that the contested the modalitiesthereof. personal datamustbejustifiedby anobjective ing, storage,consultationandcommunicationof tional right to privacy that the collection, record - Council recalled thatitfollows from theconstitu- been incontactwiththem,theConstitutional The ConstitutionalCouncil nonetheless Moreover, Parliament restricted thescope To on theappropriate andproportional rule However, the Constitutional Councilconsid- In lightoftheconstitutional frameworkthus ations and in determining ations andindetermining the conduct of such oper in lance mustbeobserved involved, vigi- particular of amedicalnature are that, where personaldata for the first timeruled ate tothisobjective. It priate - manner proportion implemented inanappro- in thepublicinterest and

also -

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by ruling that the requirement for deleting Via a second interpretative reservation, the the name, registration number in the national Council ruled that the regulatory authority will identification directory of natural persons, and be responsible for setting out data collection, address of the persons concerned in sections of processing and sharing procedures that ensure the data processing procedure intended for epi- the strict confidentiality of the information con- demiological surveillance and research regarding cerned and, in particular, a specific clearance the virus must also extend to the telephone or mechanism, within each organisation, for the electronic contact details of said persons. Failure agents involved in the implementation of the to delete said data would constitute a violation information system and the traceability of access of privacy. to said system. With regard to the categories of persons With a third interpretative reservation, who may have access to such personal data it ruled that although Parliament authorised without the consent of the person concerned, organisations contributing to the system to use the Council considered that, while the list is subcontractors to carry out their tasks in the con- particularly extensive, the broad nature of this text of the system under review, said subcontrac- group is necessary due to the number of pro- tors act on behalf and under the responsibility cedures involved in organising collection of the of the organisations themselves. To be consistent information needed to combat the spread of the with respect for the right to privacy, any use of epidemic. subcontractors must comply with the require- However, the Constitutional Council struck ments of necessity and confidentiality referred down the second sentence of paragraph III of to in this decision. Article 11, judging that the provision in question The Constitutional Council also took into violates the right to privacy account Parliament’s by including in this group inclusion of a sunset clause organisations that pro- for this mechanism, which vide social support for the WHERE PERSONAL DATA may not apply longer persons concerned. The OF A MEDICAL NATURE ARE than strictly necessary to Constitutional Council INVOLVED, PARTICULAR combat the spread of the noted that, for social sup- COVID-19 epidemic or, IN 2019-2020 DC DECISIONS port that is not directly VIGILANCE MUST BE OBSERVED at the latest, more than related to the fight against IN THE CONDUCT OF SUCH six months after the end of the public health state the epidemic, there is no OPERATIONS reason why access to the of emergency declared by personal data processed the law of 23 March 2020. in the information sys- In addition, any personal tem should not be subject to the consent of data collected, whether medical or not, must be the persons concerned. deleted three months after collection. In its overall assessment, the Constitutional Council also took account of the provisions specifying that the staff of these organisa- tions are not authorised to communicate the identification data of an infected person, without his or her express consent, to persons having come into contact with him or her. Furthermore, and on a more general level, these agents are bound by professional secre- cy and as such may not, under penalty of the offence provided for in Article 226-13 of the Criminal Code, disclose to third parties infor- mation of which they become aware through the mechanism in question. 52 ANNUAL REPORT 2020 appropriate, necessaryandproportionate. limitations onfreedom of expression that are not the law aimedat combating onlinehate speech,citing the Constitutional Council struck down provisions of abuses of freedom of expression andcommunication, M While reaffirming that theConstitution allows Parliament to p ONLINE HATE online public communication services and the andthe online publiccommunication services ofthewidespreadand inview development of provisions that,inthepresent stateofthemedia shall bedefinedby law”. It inferred from these be responsible forsuchabusesofthisfreedom as with freedom, butshall speak, write,andprint citizen may, accordingly, the rights ofman. Every of themostprecious of ideas andopinionsisone free communication of Citizen of 1789:“The Rights ofMan andofthe the Declaration ofthe 11ofing toArticle recalled that, accord- Constitutional Council these provisions, the content. online towithdraw certain munication services ofoperatorsonlinecom- categories various obligating rules guage ofwhichestablishesnew In considering tained in Article 1,thelan- tained inArticle two setsofprovisions con- Council, down which struck this lawtotheConstitutional ore than60senatorsreferred AND PROPORTIONATE TO THE APPROPRIATE, NECESSARY FREEDOM OF EXPRESSION FREEDOM OFEXPRESSION PARLIAMENT HADLIMITED A MANNERTHAT WAS NOT AND COMMUNICATION IN THE CONSTITUTIONAL COUNCIL RULED THAT OBJECTIVE PURSUED SPEECH the objective pursued. be necessary, appropriate to andproportionate itations ontheexercise ofthisfreedom must other rightsandfreedoms. It follows thatlim- uisite fordemocracy, safeguarding respect for concerning theexercise oftherightfree Constitution, Parliament maysetoutrules recalled 34ofthe that,onthebasisofArticle and expression viatheseservices. opinions, thisrightimpliesfreedom ofaccessto in democraticlifeandexpression ofideasand forparticipation oftheseservices importance The ConstitutionalCouncilfurther Act to combat onlinehate [Partial unconstitutionality] it standsoutasaprereq- the more precious since and communicationisall freedom ofexpression Nevertheless,parties. and therightsofthird mental topublicorder nication thatare detri- expression and commu- exercise offreedom of inhibit abusesofthe provisions designedto also empowered toenact and print.Parliament is tospeak, writeliberty communication andthe N° 2020-801 DC 08 June2020 DECISION speech unish unish

53

The Constitutional Council handed down minors, as well as calls to commit terrorist acts or an unprecedented ruled that the dissemination glorifying such acts, constitute abuses of freedom of pornographic images depicting minors, as of expression and communication that seriously well as calls to commit terrorist acts or glorify- undermine public order and the rights of third ing such acts, constitute abuses of freedom of parties. expression and communication that seriously By requiring publishers and hosts, at the undermine public order and the rights of third request of the government, to withdraw con- parties. tent that the latter considers contrary to Articles In light of the constitutional framework 227-23 and 421-2-5 of the Criminal Code, thus defined, the Constitutional Council Parliament sought to inhibit such abuses. struck down Article 1, paragraph I, of the law However, under the terms of the contest- under review, which allows the administrative ed provisions, determination of the unlawful authority to require hosts or publishers of an nature of the content in question was not based online communication service to remove cer- on its manifest nature, but rather on the sole tain content associated with terrorism or child assessment of the government. In addition, fil- pornography and, in the event of failure to ing an appeal to contest the request for with- comply with this obligation, provides for a drawal was not suspensive and the one-hour penalty of one year’s imprisonment and a fine period within which the publisher or host must of €250,000. remove or make inaccessible the content in As mentioned above, the Constitutional question did not offer the possibility of obtain- Council ruled in unprecedented terms that the ing a decision from a judge before taking the dissemination of pornographic images depicting required action. Finally, a host or publisher fail-

//...

The Council struck down DC DECISIONS IN 2019-2020 DC DECISIONS provisions obliging operators to withdraw unlawful content within 24 hours. 54 ANNUAL REPORT 2020 or disseminated. or disseminated. which the content in question was formulated an in-depthevaluation inlightofthecontext in in thecaseofpress offencesinparticular, callfor offences maybeofahighlytechnical nature or, though the legal elements inherent in some such with regard to all such potential offences, even tor wasobligatedtoexamine reported content the reason cited uponreporting. The opera- of said content necessarily extended beyond removal ofsuchcontent.Consequently, review numerous criminalqualificationsjustifyingthe intothelaw ful content,legislatorshadinserted were required toremove onlymanifestlyunlaw- of suchcases. all reported content, regardless of the number sanctions, theoperatorwasrequired toexamine Consequently, toavoid the risk ofcriminal vention ofajudgeortoanyothercondition. obligation wasnotsubjecttothepriorinter- it was considered manifestly unlawful. The of saidcontentandthelegalgrounds onwhich the personreporting thecontent,location had beenreported, alongwiththeidentityof imposed ontheoperatoronceillegalcontent rights ofthird parties. expression thatunderminepublicorder andthe to inhibitabusesoftheexercise offreedom of ments glorifying such acts. It thus intended order andtoavoid thedissemination ofstate- to prevent actionsthatgravely disturbpublic adopting theseprovisions, Parliament sought nature. is manifestly unlawful due to a hateful or sexual make inaccessiblewithin24hourscontentthat operators, subjecttoprosecution, toremove or question requiring onlineplatform certain down 1,paragraphII,ofthelawin Article totheobjectiveproportionate pursued. and manner thatwasnotappropriate, necessary freedom ofexpression andcommunicationina that ParliamentCouncil ruled had limited year’s imprisonmentandafineof€ mentioned periodcouldbesentencedto one ing tocomplywiththerequest withintheafore- Second, whileonlineplatformoperators However, theobligationtowithdrawwas The Constitutional Council noted that, in The Constitutional Council also struck On these grounds, the Constitutional 250,000. 250,000. down. 8 obligations towithdraw, 3,4,5,7, i.e.Articles to accompanytheimplementationofthese the otherprovisions ofthelaw intended necessary, appropriate andproportionate. and communicationinamannerthatwasnot infringed theexercise offreedom ofexpression not itwasmanifestlyunlawful. They therefore draw allcontentreported tothem,whetheror encourage onlineplatformoperatorstowith- liability, thecontestedprovisions couldonly absence ofspecificgrounds forexemption from incurred as of the first failure to comply and the prescribed period,thefactthatpenaltywas ful nature ofthecontentreported withinthe the difficultiesinassessingmanifestlyunlaw- Constitutional Councilconcludedthat,given than forrepeated offences. incurred foreachfailure towithdraw, rather fine of€ festly unlawfulcontentwaspunishableby a gation toremove ormakeinaccessiblemani- frame. impossible toprocess withintherequired time- simultaneous reports thatwouldbedifficultor liability were foreseen, e.g.alargenumberof No otherspecificgrounds forexemption from examinationofthe content notified”. necessary result from the absence of proportionate and “the intentionalnature oftheoffence...may nation ofthescopethisclause,citingthat used didnotallow foranunequivocal determi- platform operatorsfrom liability, thelanguage 6-2,grounds forexonerating Article online new provide, inthefinalitemofparagraphI documentsthatlegislatorsintendedto tary tially unfoundedreports. tent reported andtheriskofnumerous poten- assessing themanifestunlawfulnessofcon- oftheabovementionedin view difficultiesin timelimit short within 24hours,aparticularly operators tofulfiltheirobligationwithdraw

and 9 of As a consequence of these two rejections, On thebasisofalltheseelements, Finally, failure tocomplywiththeobli- Fourth, although it is clear from parliamen- Third, Parliament obligedonlineplatform 250,000. In addition, thepenaltywas the law under review, were also struck

Secretariat employing a is supportedby several Constitutional Council departments grouped together inaGeneral total of 70 people. members of the The work of the 55

DC DECISIONS IN 2019-2020 56 ANNUAL REPORT 2020 the periodfrom 11July to 30October 2020, taken by thePrime Minister mayonlyapplyto objective ofprotecting health. were thuspursuingtheconstitutionallyvalid risks associatedwiththeepidemic. Legislators is actively circulating, inorder tolimitthehealth inareasparticularly where thevirus take measures torestrict movement, to empower publicauthorities to 19 epidemic,Parliament intended vector forthe spread oftheCOVID- ment ofpersonsandvehicles isa that,sincethemoveCouncil ruled - al framework,theConstitutional Declaration of1789. protected 2and4ofthe by Articles is acomponentofpersonalfreedom freedoms includefreedom ofmovement, which residing withinFrench borders. These rights and the rightsandfreedoms recognised forallthose protecting healthisreconciled withrespect for ensure thattheconstitutionallyvalid objective of recalled onParliament incumbent thatitis to theConstitutionalCouncil public transport, movement ofpersonsandvehicles aswell as C health emergency. organising thetermination of thenational validated provisions certain of thelaw The Constitutional Council clarifiedand OF EMERGENCY PUBLIC HEALTH STATE TERMINATION OFTHE The Council noted that the measures to be The Councilnotedthatthemeasures tobe In lightofthisconstitution- under certain conditions,theunder certain graph 1toregulate orprohibit, Article ed tothePrime Minister by oncerning thepossibilitygrant- 1, paragraphI,sub-para- THUS PURSUINGTHE CONSTITUTIONALLY LEGISLATORS WERE VALID OBJECTIVE OF PROTECTING HEALTH spreading. It remained asignificantriskoftheepidemic for whichParliament considered thatthere port, may only be prohibited in territories where mayonlybeprohibited interritorieswhere port, cles, aswell asaccesstocollective passengertrans- beforemental liberties theadministrative court. pension orapetitionforprotection of funda- measures maybesubjecttoapetitionforsus - 1,paragraphI,subparagraph under Article the law, theConstitutionalCouncilnotedthat, information currently available. ly ill-suitedtothepresent situation,asperthe provided thatsuchassessmentisnotmanifest- question legislators’ assessmentofthatrisk, same nature asthatofParliament, tocallinto general power anddecisionofthe ofconstrual Constitutional Council,whichdoesnothave a In addition,movement of personsandvehi- In accordance withparagraphIV, these Analysing thesafeguards provided forin when nolongernecessary. shall beterminatedwithoutdelay stances oftimeandplace. They and appropriate tothecircum- tionate tothehealthrisksinvolved cle, theymustbestrictlypropor - arti same the III of paragraph to COVID-19 epidemic.According of combatingthespread ofthe lic healthandforthesolepurpose taken onlyintheinterests ofpub- the contestedmeasures maybe would not be appropriate for the would notbeappropriate forthe health state of emergency termination of thepublic Act organising the N° 2020-803 DC [Constitutionality] 09 July2020 DECISION

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The public health state of emergency ended on 11 July 2020, except in French Guiana and Mayotte.

the virus has been seen to be circulating actively. speak, write, and print with freedom, but shall The Constitutional Council further ruled that be responsible for such abuses of this freedom rules prohibiting movement of persons cannot as shall be defined by law”. Freedom of expres- be construed as a ban on said persons leaving sion and communication, which serves as the

their homes or immediate neighbourhood. foundation for the right to collective expression IN 2019-2020 DC DECISIONS Lastly, no measures that may be adopted pur- of ideas and opinions, is all the more precious suant to the contested provisions may apply to since it stands out as a prerequisite for democra- travel that is strictly essential for family, profes- cy, safeguarding respect for other rights and free- sional and health reasons. doms. It follows that limitations on the exercise From all of the above, the Constitutional of this freedom, and the associated right, must be Council judged that, in adopting the con- necessary, appropriate and proportionate to the tested provisions, Parliament reconciled the objective pursued. abovementioned constitutional requirements On these grounds, the Council ruled that in a balanced manner. the power conferred on the Prime Minister to With regard to the possibility granted to order the temporary closure of certain categories the Prime Minister by Article 1, paragraph I, of places of assembly and establishments open to 2°, subparagraph 2, to order the temporary clo- the public is contingent upon the activities taking sure of certain categories of places of assembly place on said premises making it impossible, by and establishments open to the public and, by their very nature, to guarantee implementation paragraph I, sub-paragraph 3, to regulate gath- of measures liable to counter risks of propagation erings of persons, meetings and activities taking of the virus. Such closures may also be ordered place on public land and in places open to the when the establishments concerned are located public, the Constitutional Council recalled that, in certain parts of the country where the virus under the terms of Article 11 of the Declaration is seen to be actively circulating. In either case, of 1789: “The free communication of ideas the sole legitimate purpose of such temporary and opinions is one of the most precious of the closures is to address the increased risk of contam- rights of man. Every citizen may, accordingly, ination arising from public use of such premises. //... 58 ANNUAL REPORT 2020 violation of these regulations or prohibitions protecting health. to theconstitutionallyvalid objective of being necessary, appropriate andproportionate of ideasandopinionsfulfilled the conditionsof Parliament ontherighttocollective expression thatthelimitationsimposedby Council ruled the spread ofthe COVID-19 epidemic. health andsolelyforthepurposeofcombating on grounds relating to the interests of public to above and,inparticular, mayonlybebased tions and safeguards asthe measures referred Prime Minister are subject to the same condi- measurestion, theregulatory adoptedby the organisation ofevents onpublicland.In addi- system thatappliesto tion forthedeclaratory system of prior authorisa Minister to substitute a did notauthorisethePrime Furthermore, Parliament tive ofprotecting health. stitutionally valid objec therefore meetsthecon- contact. Such regulation who are notordinarily in sometimes from faraway, a large number of people, demic by bringingtogether to thespread oftheepi- greater riskofcontributing open to the public present a ings takingplaceonpubliclandandinplaces order tolimitthespread oftheepidemic. ditions underwhichsuchevents mustbeheldin this authorityisintendedtodeterminethecon- that meetings, theConstitutionalCouncilruled provisions toregulate gatherings,activitiesor of movement ofpersonsandvehicles. those applicabletotheregulation orprohibition subject tothesameconditionsandsafeguards as to bepubliclyaccessible.Moreover, theyare also ofestablishmentsthatareor parts not intended public. They donotapplytoresidential premises sites orestablishmentsthatare accessibletothe closure measurestion, temporary applyonlyto ally valid objective ofprotecting health.In addi- These measures therefore fulfiltheconstitution- Lastly, withregard tothefactthatrepeated On allthese grounds, theConstitutional It notedthatgatherings,activitiesormeet- As forthepower conferred by thedisputed - - EXPRESSION OFIDEAS AND EXPRESSION THE LIMITATIONS IMPOSED NECESSARY, APPROPRIATE OPINIONS FULFILLEDTHE BY PARLIAMENT ONTHE CONDITIONS OFBEING RIGHT TO COLLECTIVE AND PROPORTIONATE principle of legality of offences and penalties. missed thecomplaintallegingdisregard forthe constitutes anoffence.On thesegrounds, itdis- ditions underwhichfailure tocomplytherewith authorityandthecon- enacted by theregulatory of theobligationsandprohibitions thatmaybe Parliament hadadequatelydeterminedthescope ly proportionate to the health risks involved and tothehealthrisksinvolvedly proportionate and nonetheless requires thatsuchmeasures bestrict- COVID-19 1,paragraphIII epidemic.Article sole purposeofcombatingthespread ofthe 2020, intheinterest ofpublichealthandforthe measures, from 11Julyitory 2020to30October orprohib- regulatory authoritytotakecertain ry graphs I and II of the Act authorise the regulato- application. trary sufficiently clearandprecise astopreclude arbi- law andtodefinecrimesoffencesinterms to setoutthescopeofapplicationcriminal the Declaration of1789,obligeParliament itself 8of of offencesandpenaltiesbasedonArticle Constitution, as well as the principle of legality Council recalled 34 ofthe that Article constitute acriminaloffence,theConstitutional The Constitutional that Council ruled It notedinthisrespect 1,para- thatArticle within the previous 30 days. within theprevious 30days. or prohibition committed lations ofthesameobligation preceded by three other vio- stitutes anoffenceonlywhen ulations or prohibitions con- that aviolationofsuchreg- 1 of the Public Health Code L.3136- paragraph ofArticle it follows from thefourth no longernecessary. Finally, without delaywhentheyare and thattheybeterminated stances of time and place, appropriate tothecircum - Constitutional Council hasoccupied the Montpensier wing of thePalais- Since 13March 1959, the Royal. 59

DC DECISIONS IN 2019-2020 60 ANNUAL REPORT 2020 order through intimidation orterror. It notedthat public ed termsthatterrorism seriouslydisrupts inunprecedentConstitutional Councilruled - prevent themfrom re-offending. obligations andprohibitions inorderto certain to terrorist offences, assoontheyleave detention, measure aimedat subjectingtheperpetratorsof 1oftheAct Council Article creating asecurity and more thansixty deputieshadreferred tothe firstly, andsecondly, more thansixtysenators of theConstitution. the requirements 2,4and9 arisingfrom Articles provisionscertain to ofthis Act asbeingcontrary offences. down struck The Councilnevertheless act andaimedatpreventing therecurrence ofsuch level ofriskposedby theperpetratorofaterrorist ditions, forsecuritymeasures basedonthehigh to theParliament toprovide, con- undercertain breaches of publicorder that it is open and ruled valid objective constitutionally the ofpreventing that theobjective of ofcombatingterrorism ispart T to theConstitutional Council. prevent themfrom re-offending was referred to obligations andprohibitions inorder to offences, assoonthey leave detention, at subjecting theperpetrators of terrorist The Act creating asecuritymeasure aimed TERRORIST OFFENCES PERPETRATORS OF TO APPLY TO THE SECURITY MEASURES Inthese provisions, examining the The President oftheNational Assembly, at the end of their sentence, observed at theendoftheirsentence,observed the perpetratorsofterrorist offences security measures tobeapplied considering theAct establishing Council, when he Constitutional exercise of constitutionally guaranteed rights and exercise ofconstitutionally guaranteedrightsand breaches order ofpublic the against balanced is upon Parliament toensure thattheprevention of strictures. Itby anyunnecessary isincumbent maythat not personalbe constrained liberty 2,4and 9oftheDeclaration of1789, Articles it mustcomplywiththeprinciple,enshrinedin character ofapunishment. neither apunishmentnorsanctionhavingthe and deterrecidivism. This measure isaccordingly that specificcompetence.Its purposeistoprevent decidedis upon,byregionalthe exercising court of risktheypose,asassessed,atthetimethatit guilt oftheconvictedperson,butonhighlevel It served. been has sentence the on not based is the continueddetentionofindividualsaftertheir by theregional withcompetencetoorder court ed down, butrather attheendofsentence, atthetimesentenceishand- by thetrialcourt the completionofsentence,itisnotdecided consideration ofacriminalconvictionandfollows noted that,thoughthismeasure isimposedin ed by theParliament, theConstitutionalCouncil breaches ofpublicorder. valid objective constitutionally the of preventing the objective of ofcombatingterrorism ispart However, althoughitisnotpunitive innature, In analysingthenature ofthemeasure adopt- offences at thecompletion measures to applyto the Act establishing security perpetrators of terrorist [Partial unconstitutionality] of theirsentence N°2020-805 DC 7 August 2020 DECISION 61

freedoms. These include the freedom to come and measure may be imposed for a period of one year, go, a component of individual freedom; the right it may be extended for a further period of up to to respect for personal privacy that is protected by five or, in some cases, ten years. If the person was Article 2 of the Declaration of 1789; and the right a minor at the time of the commission of the to lead a normal family life pursuant to the tenth offence, these maximum periods are set at three paragraph of the Preamble to the Constitution and five years respectively. The maximum periods of 27 October 1946. Any interference with the are applied in consideration of the penalty that exercise of these rights and freedoms must be may be imposed, regardless of the quantum of the appropriate, necessary and proportionate to the sentence actually handed down. objective of prevention being pursued. Thirdly, on the one hand, although the con- With reference to the constitutional frame- tested measure can only be ordered against a work thus set out, the Constitutional Council person convicted of a terrorist offence, it can be ruled that, through the provisions in question, applied if the person was sentenced to a custodi- Parliament intended, as it was entitled to do, to al sentence of five years or more, or three years if combat terrorism and prevent the commission of the offence was committed by a repeat offender. acts constituting a serious threat to public order. On the other hand, it may be imposed even if the It pursued the constitutionally valid objective of sentence was partially suspended. Thus, it follows preventing breaches of public order. from the contested provisions that the security However, although Parliament is free to measure may be imposed if the minimum cus- enact security measures based on the high level todial part of the sentence is at of at least three of risk posed by the perpetrator of a terrorist act, months’ duration, even though the sentencing as assessed on the basis of objective factors, and court did not consider it appropriate to rule that aimed at preventing the recurrence of such offenc- the suspended part of the sentence could take the es, this power is subject to the proviso that there is form of probation or a probationary suspension, no available measure that is less prejudicial to the notwithstanding the fact that these measures are constitutionally guaranteed rights and freedoms designed to ensure that the person is monitored and is sufficient to prevent the commission of after his or her term of imprisonment. such acts, and that the conditions for implement- Fourthly, the measure can only be imposed on

ing such measures and their duration are appro- the grounds of the level of risk the person poses, IN 2019-2020 DC DECISIONS priate and proportionate to the objective pursued. as characterised, in particular, by the very high Compliance with this requirement is all the more probability that he or she will re-offend. However, necessary where the person has already served his while the security measure can only be imposed or her sentence. after a prison sentence has been served, there is no In this respect the Council noted, as a first requirement that, while serving their sentences, observation, that the contested measure makes the person concerned should have been afforded it possible to impose, cumulatively if necessary, access to measures conducive to their reintegra- various obligations or prohibitions which infringe tion into society. the freedom to come and go, the right to respect Finally, extensions of the security measure for personal privacy and the right to lead a nor- may be approved under the same criteria as mal family life. This applies in particular to the the initial decision, without there being any obligation to take up residence in a specific place; requirement that the level of risk the person the obligation to report periodically to the police poses be corroborated by new or additional or gendarmerie units, up to three times a week; information. the prohibition on engaging in certain activities; In the light of all these grounds, the the prohibition on associating with certain per- Constitutional Council inferred that the con- sons or appearing in certain places, categories of tested provisions failed to comply with the places or areas; and the obligation to comply with aforementioned constitutional requirements. conditions relating to health, social, educational It declared Article 1 of the referred Act and, or psychological care. consequently, Articles 2 and 4 thereof, which Secondly, the duration of the security meas- were inseparable from it, to be in breach of ure increases its harshness. While the contested the Constitution. 62 DECISIONS IN

12 provisions struck down QPC51 referrals from 1 September 2019 to 8 31 August 2020 interpretative reservations 7 branches of law reviewed: tax law, criminal law, public law, social law, business law, civil law, environmental law ANNUAL REPORT 2020 ANNUAL 63 DECISIONS IN

Priority preliminary rulings on the issue of constitutionality

Since 2010, the Constitutional Council has been empowered to review laws that have already entered into force. This mechanism, known as the “priority preliminary ruling on the issue of constitutionality” (QPC), is carried out at the initiative of members of the public. In the course of a trial, a person may seek to verify that the law that applies to his or her own case is consistent with the Constitution. Depending on the nature of the dispute, the request is brought before the Court of Cassation or the Council of State, which decides whether or not to refer it to the Constitutional Council. If the provisions reviewed are deemed unconstitutional, they are “struck down”. As such, they permanently cease to apply. Overview of QPCs from September 2019 to August 2020. 64 ANNUAL REPORT 2020 reduction intaxes. able energy,as suchdoesnotallow and a for ofrenewtaken intoaccountintheproportion - energy generatedfrom thisrawmaterial isnot in greenhouse gasemissions.Consequently, the tions precluding theriskofanindirect increase the oilinquestionwasproduced undercondi- offering nopossibilityofdemonstratingthat palm oil from being considered as biofuels, prohibit fuels derived from incorporated. However, they totheshareportion ofbiofuels amount ofthetaxleviedinpro - biofuels, viaareduction inthe porate a minimum quantity of fuelstoincor- ing orimporting encourage companiesproduc - of 28December 2018. Finance Act for2019,i.e.LawN°2018-1317 visions inquestionwere introduced by the guaranteed by theConstitution. The pro- was consistentwiththerightsandfreedoms 266quindeciesoftheCustomsArticle Code paragraph ofsectionB-2 V of T advantageous regime tax intended for biofuels. the Constitution, to exclude palmoilfrom an Parliament was empowered, withoutviolating the QPC,Constitutional Council ruledthat Seized by theCouncil of State through PALM OIL TAXATION OF These provisions seekto whether thelanguageoffinal issue ofconstitutionality, tojudge onthe ruling priority preliminary aupon, inthecontextof called he ConstitutionalCouncilwas EMISSIONS WORLDWIDEEMISSIONS INTENDED TO COMBAT GREENHOUSE GAS PARLIAMENT Declaration oftheRightsMan andofthe house gases. not necessarilyemitalesseramountofgreen- oilseed plants,theproduction ofwhichdoes oil-based fuelsandthoseproduced from other tified difference intreatment between palm- the environment, andforestablishinganunjus- ods ofpalmoilcultivation were notharmfulto meth- possibility ofdemonstratingthatcertain setting outanoverarching exclusion, withno Constitutional Council noted that, by instituting Constitutional Council notedthat,by instituting vis-à-vis government encumbrances. not, however, leadtoaclearbreach ofequality to theobjectives pursued. This assessmentmust ment onobjective andrationalcriteria related equality,the principleof it mustbaseitsassess- Intax. particular, ensure to with compliance taking intoaccountthecharacteristicsofeach

On the basis of Article 13oftheOn thebasisofArticle The applicantcompanycriticisedthelawfor In light of this constitutional framework, the In lightofthisconstitutionalframework,the constitutional principlesand assessed, inaccordance with capacityistobe contributory accordingtherules towhich responsible for determining recalled thatParliament is Constitutional Council 34 oftheConstitution, Citizen of1789andArticle [Inclusion of palm-oil-based incorporation of biofuels] biofuels inthescope of the steering onthe tax Total Raffinage France N° 2019-808 QPC 11 October 2019 [Constitutionality] DECISION in question was not manifestly improper with in questionwas notmanifestlyimproper with from thecultivation oftheraworganicmaterials ment oftheenvironmental consequences arising current stateof knowledge, Parliament’s assess bogs –theCouncilconsidered that,asperthe leading todeforestation andthedrainingofpeat oncarbon-richland,thus tion –particularly areawide surface devoted topalmoilproduc - andthesignificantexpansionofworld- industry such asforests or peat bogs,forfoodpurposes. exploitation ofcarbon-richnon-agriculturalland, ed forbiofuelproduction, thusleadingtothe by replacing foodcrops withothercrops intend- from fossil fuels,andindirect emissionscaused to reduce both direct emissions,particularly emissions worldwide.In thisrespect, itsought Parliament greenhouse combat to intended gas the steeringtaxonincorporationofbiofuels, Citing thestrong growth ofthepalmoil - ment encumbrances. gard fortheprincipleofequalityvis-à-visgovern- Council dismissedthecomplaintallegingdisre - cultivated in theworld.On thesegrounds, the edge andtheconditionsinwhichpalmoilis aim pursued,asperthecurrent stateofknowl- ed objective andrationalcriteriarelated tothe greenhouse gasemissions, Parliament hadadopt- that prevent theriskofanindirect increase in palm oilcouldbeproduced underconditions of thetaxanypossibilitydemonstratingthat cluded that,by excluding from thecalculation i.e. environmental protection. regard tothegeneralinterest objective pursued, As such,theConstitutionalCouncilcon- leads to massive deforestation. production Palm oil 65

QPC DECISIONS IN 2019-2020 66 ANNUAL REPORT 2020 A higher education befree for all. Council ruledontherequirement that public N° 51-598 of 24May 1951), theConstitutional of 48 Article of theFinance Act for 1951 (Law Ruling ontheconstitutionality of paragraph 3 HIGHER EDUCATION FREE ACCESS TO PUBLIC to publichigher education.Nonetheless, forthis requirement offree access toeducationapplies 1946 thattheconstitutional Constitution of27October 13 ofthe Preamble to the concluded from paragraph Constitutional Council edented interpretation, the higher education. charging offeesforaccessto paragraph, precluded the sidered asarising from that education, whichtheycon- the principleoffree public ticular, that they argued 1946 Constitution.In par- 13 ofthe Preamble to the visions violatedparagraph tions arguedthatthesepro- may besetby decree. fees inpublicinstitutions With andunprec anew - The applicantassocia- itive examinationanddiploma istration, tuition,testing,compet- and procedures forcollectingreg- by theCouncilofState, therates ccording totheprovisions referred APPLIES TOAPPLIES PUBLICHIGHER ACCESS TO EDUCATION REQUIREMENT OFFREE THE CONSTITUTION OF COUNCIL CONCLUDED 27 OCTOBER 1946 THAT THE CONSTITUTIONAL INTERPRETATION, THE OF THEPREAMBLETO FROM PARAGRAPH 13 CONSTITUTIONAL UNPRECEDENTED WITH ANEW AND EDUCATION cation andequal accesstoeducation. constitutional requirements offree publicedu- where appropriate. into accountthefinancialcapacityofstudents, clude thelevyingofmodesttuitionfees,taking level ofeducation,therequirement doesnotpre- With regard tothecomplianceofcon- en droit, gestion, sciences AES, sociales Union nationale des étudiants access to publicinstitutions économiques, politiques et ing failure to comply with the ing failure tocomplywiththe missed thecomplaintsalleg- access toeducation. higher educationandequal requirements free of public fees incompliancewiththe these of theamounts setting for under judicialsupervision, ministers are responsible, It heldthatthecompetent tutions andpaidby students. public highereducationinsti- amounts offeescollectedby shall determinetheannual powerthat theregulatory merelyin question provide noted thattheprovisions Council Constitutional the constitutional requirements, tested provisions withthese of higher education] N° 2019-809 QPC 11 October 2019 [Constitutionality] On thesegrounds, itdis- et al. [Tuitionet al. fees for DECISION

numerous specialiseddigitalresources covering supported by alibrary of 18,000 books and The work of theConstitutional Council is several branches of law. 67

QPC DECISIONS IN 2019-2020 68 ANNUAL REPORT 2020 T and, where applicable, visa,isconstitutional. Member State andwhodoesnot possess the required travel document territory aforeign national whoisnot acitizen of aEuropean Union ofaspect thepenaltysystem appliedto aircarriers transporting into French and theRight of Asylum, theConstitutional Council ruledthat aspecific 625-1L. 625-5 andL. of the Code of Entry andResidence of Foreigners Called uponto review aQPCrelating to Articles COUNTRY INTO THE ILLEGAL ENTRY IN THEEVENT OF OFAIRCARRIERSLIABILITY ing an air carrier to be penalised even penalised be to when carrier air an ing fest irregularity. did notcontainanymani- at thetimeofboarding and documents were presented establishes thattherequired whereparticular thecarrier this fineshallbewaived in The secondprovides that required by applicablelaw. and, where applicable, visa possess thetravel document State andwhodoesnot European Union Member al whoisnotacitizen ofa intoFrenchports aforeign nation- territory These provisions were criticisedfor allow a fineonanyaircarrierthattrans- on 31July 2019. The firstimposes Council by theCouncilofState referred totheConstitutional inquestionwereprovisions he OF INSPECTION OPERATIONS THE CARRIER PERFORMANCE PROVISIONS INQUESTION SERVED TO DELEGATE TO

INCUMBENT SOLELY ON CONSIDERED THAT THE THE APPLICANT THUS PUBLIC AUTHORITIES - It in order torespond tothequestionraised. had todeterminethenature ofitsreview thus considered thattheprovisions inques- said documentswere issued. The applicant the competentgovernment when services ty affectingthemhadnotbeendetectedby time ofboarding andwhere theirregulari- it hadverified thetravel documentsatthe

noted inthat regard that thecontested

in France of aforeign national carriers intheevent of arrival Air France [Liabilityof air documents necessary to not inpossession of the Constitutional Council from European law, the alties foraircarriersstems of 1789. of Man andoftheCitizen Declaration oftheRights 12ofthetion ofArticle lic authorities,inviola- incumbent solely onpub- of inspectionoperations the carrierperformance todelegateto tion served enter thecountry] N° 2019-810 QPC 25 October 2019 [Constitutionality] As thissystemofpen- DECISION

agent ofthecompany. careful examinationofsaiddocumentsby an are those likely to appearduringa regular required documentsatthetimeofboarding, responsible fordetectingwhenverifying the and under penalty ofafine,the carrier is in applicationofthecontestedprovisions thatthemanifestirregularitiesruled which, safeguardConstitutional Council rights,the of “governmentcise authority” to necessary istrative police powers inherent intheexer- to delegateprivate personsgeneraladmin- of 1789,from whichstemstheprohibition 12oftheDeclarationvisions violatedArticle constitutionality. ontheirthe bodywasfullycompetenttorule Directive of28June 2001.Consequently, al andprecise provisions containedinthe not asimpletranscriptionofuncondition- provisions, specifictonational law, were In response totheallegationthat pro-

Asylum isconstitutional. and Residence ofForeigners andtheRightof L. law, and acts, andtheprincipleofequalitybefore the may bepunishedexcept forhisorherown ation ofpenalties,theprinciplethatnoone andindividualis- ciples ofproportionality complaints allegingviolationsoftheprin- oftheforeigner intocountry.entry agents upontheirissueandatthetimeof documents ascarriedoutby government involve aircarriersin theinspectionofthese obligation, Parliament didnotintendto 625-5, paragraph 2 of the Code of Entry 625-5, paragraph2oftheCodeEntry It concludedthat,inintroducing this The ConstitutionalCouncilalsorejected ruled thattheprovisionsruled ofArticle carriers intheinspection of documents ascarried intend to involve air out by government Parliament didnot agents. 69

QPC DECISIONS IN 2019-2020 70 ANNUAL REPORT 2020 limited number ofMEPs inFrance alonewas sincetheelectionofa unjustified, particularly old ofrepresentativeness. In their view, itwas at least5%ofthevotes cast. allocated tolistshavingobtained the highestaverage. Seats are only tion ballot,according of to therule representa proportional party-list - single nationalconstituency, by place, withintheframeworkofa stipulate thattheseelectionstake to the European Parliament. They izens residing inFrance are elected which therepresentatives ofEuropean Union cit- doms guaranteedby theConstitution. Law of25June 2018,withtherightsandfree- asperthewordingthis article, containedinthe O votes cast. to lists having obtainedat least 5% of the European Parliament are onlyallocated Constitution by providing that seats inthe ruled that Parliament hadnot violated the Parliament, theConstitutional Council of representatives to theEuropean the Law of 7July 1977 ontheelection Called uponto review 3of Article ELECTIONS IN EUROPEAN REPRESENTATIVENESS The applicantscontestedthis 5%thresh These provisions definetheconditions under concerning the conformity of of concerning theconformity ority issueofconstitutionality Constitutional Councilapri- of State referred the to n 1August 2019,theCouncil REPRESENTATIVENESS 5% OF THRESHOLD CONTESTED THIS THE APPLICANTS -

tending to favour the establishment of stable and tending to favour theestablishment of stableand modalities tosetforth defining electoralrules, the French lawmaking body isempowered, when 4oftheConstitution, although anteed by Article equal suffrageandpluralismofcurrents ofideas applicants allegedaviolationoftheprinciples any representation attheEuropean level. The and woulddeprive alargenumberofvoters of from gainingaccesstotheEuropean Parliament would prevent broad-based politicalmovements have consequencesinsofarasit disproportionate Parliament. Moreover, thisthreshold would stable andconsistentmajorityintheEuropean insufficient tofulfiltheobjective ofensuringa rents ofideasandopinionsguar- the principleofpluralismcur - and oftheCitizen of1789,aswell Declaration oftheRightsMan 6ofthe Constitution andArticle 3ofthe paragraph 3ofArticle by guaranteed suffrage equal of recalled that,asper theprinciple and opinions. The ConstitutionalCouncil applicable to European representativeness 25 October 2019 N° 2019-811 QPC Ms Fairouz H. al. al. [Constitutionality] [Threshold of DECISION elections]

et et could single-handedly achieve such an objective, could single-handedlyachieve suchanobjective, cluded that,althoughnosingleMember State Parliament. The ConstitutionalCouncilcon- tal tothesmoothfunctioningofEuropean tion ofrepresentation thatwould bedetrimen- In sodoing,theysought toavoid afragmenta- European politicalgroups ofsignificantsize. uting totheemergenceandconsolidationof andopinionswithin thebody, whilecontrib- by strengthening theinfluenceofsuchideas ideas andopinionsexpressed inFrance, there- European Parliament ofthemaincurrents of they soughttopromote representation inthe 88-1 oftheConstitution.On theonehand, the European Union asprovided forinArticle oftheFrenching participation Republic in legislators pursuedatwofoldobjective regard - allocation ofseatsintheEuropean Parliament, of ideasandopinions. violation oftheprinciplepluralismcurrents between voters orcandidates,wouldconstitutea this objective, affectsequality disproportionately of coherent which,inview majorities,anyrule It notedthat,by establishingathreshold for allocated to lists having obtained at least 5% of therefore constitutional. opinions. undermine pluralismofcurrents ofideasand ately affectequalsuffrageanddoesnotunduly - adopted asystemthatdoesnotdisproportion Parliament at5%ofthevotes cast,legislators threshold forallocationofseatsintheEuropean thatby settingthe Constitutional Councilruled the objectivefestly ill-suitedto pursued,the that the have beenachieved by othermeans,provided tive setby theFrench lawmakingbodycould not competenttoexaminewhethertheobjec- powers.sory - to exercise andsupervi itslegislative, budgetary of majoritiesenablingtheEuropean Parliament arrangements thatwouldfavour theformation legislators were justified in choosing election the votes cast. This 5%threshold ofrepresentativeness is Recalling thattheConstitutionalCouncilis Seats are only arrangements chosenare notmani- 71 QPC DECISIONS IN 2019-2020 72 ANNUAL REPORT 2020 to collective bargaining. the scope of contractual freedom withrespect the Minister of Labourinthisarea, specifying Constitutional Council defined thepowers of restructuring of professional branches, the In thecontext of aQPCrelating to the BRANCHES PROFESSIONAL RESTRUCTURING OF which wassetoutinLawN fewer than 5,000 employees, fewer than5,000 employees, branch tobemergedhas ed, inparticular, whenthe procedure maybeinitiat- conditions. This economic terised by similarsocialand of anotherbranchcharac- branchwiththatfessional lective agreements ofapro- integrate thescopeof col- the Minister ofLabourto and securingcareer paths. ernisation ofsocialdialogue 2016 onlabour, themod- T N of whichwassetoutinLaw and L.2261-34ofthesameCode,wording their professional future, L.2261-33 andArticles September 2018on citizens’ freedom tochoose o 2016-1088of8August These provisions allow the Labour Code, thewording Code, the Labour of I and L.2261-32of V ofArticle of State were thoseofparagraphs on 2October 2019by theCouncil he provisions referred tothebody o 2018-771 of 5 2018-771of5 UNPRECEDENTED WAY, THAT BARGAINING FROM DERIVES FREEDOM OFCONTRACT IN MATTERS OFCOLLECTIVE PARAGRAPHS 6AND8OF CONSTITUTION OF1946 THE PREAMBLETO THE COUNCIL RULED, INAN AND ARTICLE 4OFTHE THE CONSTITUTIONAL DECLARATION OF1789 sations withnegotiatingpowers inthemerged of thescopecollective agreements”. several branchessoastoenhancethecoherence meet. The procedure canalsobeused“to merge that branchhasnotbeenestablishedordoes for negotiationandinterpretation competentin or localities,ifthestandingjointcommittee covers it when regions geographical select only

The tradeunionsandemployers’ organi - [Restructuring of professional cinéma, del’audiovisuel et de l’action culturelle CGT employers’ organisations in Representative employee and ble tothemergingbranch. collective agreement applica- solely by theprovisions ofthe the mergershallbegoverned the branchresulting from Failing suchanagreement, tions in themerged sectors. governing equivalent situa tive agreement provisions sions toreplace the collec- instituting commonprovi- ment, withinfive years, toreachingview anagree - initiate negotiationswitha sectors are then invitedto syndicats duspectacle,

Fédération nationale des [Partial unconstitutionality 29 November 2019 N° 2019-816 QPC – reservation] DECISION branches]

et al. al. et - regard totheobjective pursued. such limitationsare with notdisproportionate provided thattheinfringementsresulting from ments orwhere justifiedby thegeneralinterest, dom inaccordance withconstitutionalrequire - is empowered toimposelimitationsonthisfree- 4oftheDeclaration of1789.ParliamentArticle the Preamble totheConstitutionof1946and bargaining derives from paragraphs6and8of freedom ofcontractinmatterscollective inanunprecedentedCouncil ruled, way, that ture professional branches,theConstitutional powers oftheMinister ofLabourtorestruc- the branchresulting from themerger. organisations isassessedthereafter atthelevel of following themerger. The compositionofthese the firstrecomposition ofrepresentative bodies negotiate suchareplacement agreement until at leastonepre-merger branchmaycontinueto In reviewing theprovisions relating tothe bargaining, theCouncil recognised for thefirst time theprinciple of freedom of of collective contract. In the area area Articles 4 and 16 of the Declaration of 1789, 4and16oftheDeclaration of 1789, Articles out contravening therequirements arisingfrom pointed out that Parliament could not, with- the mergedbranch,Constitutional Council on theprovisions ofthecollective agreement of ing freedom ofcontract. the extentofitsjurisdictioninconditionsaffect- to justifythemerger. Parliament thusmisjudged isterial authorityinassessingthegrounds liable assessed, thusleavingexcessive latitudetomin- the criteriaby whichsuchcoherence couldbe It heldthatParliament hadnotdetermined coherence ofthescope ofcollective agreements”. to “merge several branchessoastoenhancethe ed theprovision allowing theMinister ofLabour their comments. organisations andpersonsconcernedtosubmit es cannotbedecidedwithoutfirstinvitingthe question. Furthermore, themergerofbranch- byinterest restructuring thebranchesin served account ofthegeneral take administrativecourt, ofthe underthesupervision turing undertaken, therequirementin particular thatanyrestruc- guards andconditionsprovided forby thelaw, branches, theCouncilnotedvarious safe- majority ofcaseswhere itispossibletomerge objective ofgeneralinterest. companies. In sodoing, Parliament pursuedan to, aswell asregulating competitionbetween employees andtheguaranteesapplicablethere- select working andemployment conditionsfor These powers includesettingout particularly surate withthepowers grantedthemby law. empowering themwithresources commen- ing socialdialoguewithinthesebranchesand sional branches,withtheaimofstrengthen- sought toremedy the fragmentation ofprofes- that, inadoptingtheseprovisions, Parliament branch. within thenew mon stipulationstogovern equivalent situations Moreover, theyare alsorequired toadoptcom- merger order issuedby theMinister ofLabour. sional andgeographicalscopedeterminedby the agreement are obligedtodosowithintheprofes- whowishtonegotiateareplacement partners visions infringethisfreedom, insofarassocial The Councilnotedthatthecontestedpro- With regard totheeffectsof therestructuring However, theConstitutionalCouncilreject - Inorder avoid to criticismslevelledthe in However, theConstitutionalCouncilruled

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QPC DECISIONS IN 2019-2020 74 ANNUAL REPORT 2020 replacement agreement. sentative status to opposetheextensionof employers’ organisations having lost their repre - ed agreements. The sameapplies totherightof dom andtherighttomaintain legallyconclud- branchdoesnot infringecontractualfreenew - tions have losttheirrepresentative statusinthe branchagreementor anew whensaidorganisa- possibility ofsigningthereplacement agreement union organisationsintheformerbranches that denyingtherepresentative employee trade theConstitutionalCouncilnoted social partners, turing of brancheson the representativeness of situations specifictothatbranch. agreement ofthe mergedbranchwhichgovern the applicationofprovisions ofthe collective concluded agreements, automaticallyterminate unduly infringingtherighttomaintainlegally that thesesameprovisions couldnot,without theConstitutionalCouncilruled reservation, to maintainlegallyconcludedagreements. branch, doesnotconstituteabreach oftheright by the collective agreement of the merging instead situationsequivalent tothosegoverned situations specifictobranchinquestion,govern the mergedbranchwhich,ratherthangoverning those provisions ofthecollective agreement of tive mentioned above, rendering ineffective of thegeneralinterest objec- Consequently, andinview branch. panies inthenew for employees andcom- imposing aunifiedstatus of collective bargaining, by event ofabsenceorfailure tiveness ofthemerger, inthe sions was to ensure the effec- Parliament’s intentioninadoptingtheseprovi- date ofthemerger. ment agreement withinfive years oftheeffective tiations notleadtotheacceptanceofareplace- agreement forthemergedbranchshouldnego- cally terminatingtheapplicationofcollective ments are infringedby theprovisions automati- general interest. such actionwasjustifiedby sufficientreasons of interfere withlegallyconcludedcontractsunless Finally, withregard totheeffects oftherestruc- However, by wayofaninitialinterpretative Nevertheless, theCounciljudgedthat It noted that these constitutional require FREEDOM OFCONTRACT CONDITIONS AFFECTING MISJUDGED THEEXTENT OF ITS JURISDICTION IN PARLIAMENT THUS - that theseprovisions couldnot,withoutinfring- fore via asecond interpretative ruled, reservation, following therecomposition. The Councilthere- no longermeetthecriteriaforrepresentativeness tions theninprogress ofthoseorganisationsthat could result intheexclusion from thenegotia- ies following themerger, thecontestedprovisions before therecomposition ofrepresentative bod- replacement agreement withinfive years and branches have initiatednegotiationsonthe resentative organisationsineachofthemerged oppose the potential extension ofsaid agreement. nonetheless bedeniedtherighttosign,opposeor replacement agreement. Such organisationsmay tinuing to participate in the discussions on the However, inthespecificcasewhere therep- ing themerger, from con- representative bodies follow- after the recomposition of the levelbranch ofthenew their representative statusat organisations having lost employers’ andemployee aspreventingbe construed ing contractualfreedom, the publicwas designed accommodate hearings A courtroom providing on prioritypreliminary space for members of rulings ontheissueof in theearly 2010s to constitutionality. 75

QPC DECISIONS IN 2019-2020 76 ANNUAL REPORT 2020 impartiality ofmagistrates. impartiality the protection ofindividualrightsand the the orderly functioningoftheproceedings, judge are sufficienttoensure police power ofthepresiding recording techniquesandthe cants claimedthatadvances in appli- communication. The ing freedom ofexpression and forinfring- icised inparticular tion ofthisban. viola in obtained document or publishinganyrecording or andfrom transferringcourt, of ahearinganadministrative orjudicial audiovisual recording device,asofthestart fine, from usinganyphotographic,soundor T hearings of administrative orjudicialcourts. sound oraudiovisual recording devices during Constitution, prohibit theuseof photographic, Parliament could, withoutviolating the of State, theConstitutional Council ruledthat Reviewing onaQPCreferred by theCouncil JUDICIAL COURTS ADMINISTRATIVE OR HEARINGS OF RECORDING OFTHE These provisions were crit- any person,underpenaltyofa dom ofthepress. They prohibit Law of 29July 1881onfree- were 38terofthe thoseofArticle he provisions covered by thisQPC - INFRINGING FREEDOM OF EXPRESSION AND OF EXPRESSION IN PARTICULAR FOR THESE PROVISIONSTHESE COMMUNICATION WERE CRITICISED the exercise ofthisfreedom mustbenecessary, for otherrightsandfreedoms. Limitationson requisite fordemocracy, safeguarding respect the more precious sinceitstands outasapre- dom ofexpression andcommunicationisall Rights ofMan and oftheCitizen, thatfree- 11oftheDeclaration ofthe the basisofArticle objective ofthebanwas adesire toavoid any of properadministration ofjustice.Afurther pursued theconstitutionally valid objective The ConstitutionalCouncilrecalled, on video oraudio recording of the these devices.In sodoing,it tion associatedwiththeuseof preventing- therisksofdisrup tioning oftheproceedings, guarantee theorderly func- ban, Parliament intendedto by introducing thecontested the Councilpointedoutthat framework thusspecified, ate totheobjective pursued. appropriate- andproportion Ms Claire [General L. ban on hearings of administrative or In theconstitutional 06 December 2019 N° 2019-817 QPC judicial courts] [Constitutionality] DECISION ests couldbecompromised. ening theriskthataforementioned inter- dissemination isliabletoattract, thusheight- munications couldincrease theattentionsuch Moreover, developments inthefieldofcom- in turnconstituteadisruption. images orrecordings whichmay prevents thedisseminationof such devicesduringhearings ceedings, thebanonusing theproin themselves- disrupt recording not do that devices sible touseaudioandvideo also noted that, while it is pos- tion ofinnocence of theaccused. criminal matters,thepresump - actorsand,insafety of judicial ipants intheproceedings, the andotherpartic of theparties respect totherightprivacy recordings from thehearingsmightcausewith prejudice thatthebroadcasting ofimagesor The ConstitutionalCouncil - THE BROADCASTING OF THE RIGHTTO PRIVACY THE HEARINGS MIGHT THE HEARINGS CAUSE PREJUDICETO OF THEPARTIES, THE SAFETY OFJUDICIAL PRESUMPTION OF ACTORS ANDTHE INNOCENCE proportionate totheobjectivesproportionate pursued. provisions, whichcouldbesubjecttoexcep - Finally, thebanarisingfrom thecontested is necessary, appropriate and expression andcommunication on the exercise of freedom of of thecontestedprovisions thattheinfringementruled the ConstitutionalCouncil presiding judge. to thepolicepower ofthe ceedings themselves, subject including duringthepro - ceedings by anyothermeans, from reporting onthepro- journalists,and inparticular hearings, the tators attending tions, doesnotprevent spec- hearings hasbeen banned inFrance For allofthese reasons, Visual orsound recording of since 1954.

77

QPC DECISIONS IN 2019-2020 78 ANNUAL REPORT 2020 des semenciers, arguedthattheseverity of plantes, joinedbydes Union the française insecticides andacaricides. particular, in include, fungicides, herbicides, thereof.export products France in the also but impede notonlythesaleofsuch or theenvironment. They thus human health,animalhealth Union duetotheireffectson approvednot by European the ucts containingactive substances in France prod - ofphytosanitary duction, storageandcirculation for all. They prohibit thepro- sustainable andaccessiblefood in theagriculturalandfoodsectorhealthy, of 30 October 2018onbalancedtraderelations ing ofwhichwassetoutinLawN°2018-938 the Rural andMaritime Fishing Code, theword- T mankind. the environment, thecommon heritage of constitutionally valid objective of protecting the Constitutional Council confirmed the phytopharmaceuticalcertain products, production, storage andcirculation of Ruling onaQPCrelating to thebanon PRODUCTS PHYTOPHARMACEUTICAL The Union desindustriesdela protection The products inquestion paragraph IV of Article L. 253-8 of L.253-8of paragraph IVofArticle State,Council of the concerned Council on7November 2019by QPC, referred totheConstitutional he provisions addressed inthe ENVIRONMENT AS THE PROTECTION OFTHE COMMON HERITAGE CONSTITUTIONALLY VALID OBJECTIVE OF ALLMANKIND CONSTITUTES A to which“the existenceof future andthevery ing of the preamble to theCharter, according of itsdecisionisexplicitlybased ontheword- a constitutionallyvalid objective. This aspect common heritageofallmankind constitutes using them,choosinginsteadtoobtaintheir which authorisetheseproducts willnotstop countriesenvironment insofarasimporting objectivethe to ofprotecting the and health cant claimedthatsuchabanwasunrelated a breach offreedom ofenterprise. The appli- companiesconstitutedducing orexporting ban introduced by theseprovisions forpro- the consequencesresulting from theexport tion oftheenvironmentthe as for theEnvironment, protec- the preamble to theCharter that,basedonit thenruled Citizen of 1789. the RightsofMan andofthe 4oftheDeclaration of Article dom ofenterprisederives from Council first recalled that free French companies. supplies from competitorsof protection des plantes [Ban on theproduction, storage Union des industries dela and movement of certain phytopharmaceutical In unprecedented terms, The Constitutional 31 January 2020 2019-823 QPC [Constitutionality] DECISION N° products] - the samenature as thatofParliament. As a generalpower anddecisionof ofconstrual that theConstitutionalCouncildoesnothave active substances. It pointedoutinthisregard context oftheEuropean approval procedure for the toxicity ofwhichhadbeenestablishedinthe stances containedintheproducts inquestion, resulting from disseminationoftheactive sub- damage tohumanhealthandtheenvironment visions, Parliament soughttoprevent potential that, inadoptingthecontestedlegislative pro - expressed, theConstitutionalCouncilnoted oftheworld. ronment inotherparts ities carriedoutinFrance mayhave ontheenvi- may takeintoaccountthepotentialimpactactiv- of entrepreneurial freedom. Assuch,Parliament mental andhealthprotection withtheexercise ly valid objectives of environ- reconciling the constitutional Parliament isresponsible for cluded, for the first time, that Constitutional Council con- constitutional provisions, the Constitution. the Preamble to the 1946 the eleventh paragraphof of protecting health,asper stitutionally valid objective own needs”. other peoplestomeettheir ity offuture generationsand ent generationshouldnotjeopardise theabil- choices designedtomeettheneedsofpres- in order toensure sustainabledevelopment, other fundamentalinterests oftheNation ... to safeguard the environment along with the heritage ofallmankind...care mustbetaken ronment ...theenvironment isthecommon mankind are inseparable from its natural envi- of suchproducts anywhere intheworld, and lished in Francesale from in the participating ed provisions wastoprevent companies estab- Parliament’s intentionin adoptingthecontest- by Parliament. call intoquestiontheprovisions thus adopted would notbeappropriate fortheCouncilto in lightofthecurrent stateofknowledge, it In lightoftheconstitutional frameworkthus Based onthesevarious It alsorecalled thecon- The ConstitutionalCouncil deemed that - ACTIVITIES CARRIED OUT IN OTHER PARTS OFTHE ON THEENVIRONMENT PARLIAMENT MAY TAKE IN FRANCE MAY HAVE INTO ACCOUNT THE POTENTIAL IMPACT

such, WORLD

declared constitutional. protecting heathandtheenvironment. and theconstitutionallyvalid objectives of manifestly unbalanced,freedom ofenterprise reconciled, inamannerthatwasnotjudged adopting the contested provisions, Parliament Constitutional Councilconcludedthat,by was well inlinewiththeconstitutionallyvalid prise imposedby thecontestedprovisions Union, thelimitationonfreedom ofenter- likely tobeauthorisedoutsidetheEuropean duction andmarketing ofsuchproducts were Consequently, despitethefactthatpro- harm tohumanhealthandtheenvironment. thus indirectly contributingtotheresulting The contestedprovisions were thus accordingly. years to adapt their business ban aperiodofjustover three the companiessubjectto substances, Parliament gave taining unapproved active products con- phytosanitary storage andcirculation of the banonproduction, into force of2022 the entry by differing until 1 January notedthat,Council further and theenvironment. objectives ofprotecting health From allof theabove, the The Constitutional 79

QPC DECISIONS IN 2019-2020 80 ANNUAL REPORT 2020 benefit of that person’s successors. honour of aperson sentenced to death for the in instituting legal proceedings to restore the stressed that Parliament would bejustified validated theprovisions inquestion, but rehabilitation, theConstitutional Council Called uponto review alaw relating to judicial REHABILITATION JUDICIAL Criminal Procedure, a request for judicial penalties associatedwithrepeat offences. future prosecutions, forthe application of account by judicialauthoritiesintheevent of may continue tobetaken into expunge thesentence,which it doesnotautomatically mentioning them.However, tions andincapacities,from ence ofsuchdisqualifica- becomes aware of theexist- mance ofhisorherduties, - person who,intheperfor conviction andprohibits any ities resulting from acriminal disqualifications andincapac- inal offence.It removes all reintegration ofapersonconvictedcrim- teed by theConstitution. procedure, withtherightsandfreedoms guaran- Procedure, relating tothejudicialrehabilitation 785and786oftheCodeCriminal Articles O According 786oftheCode to Article Judicial rehabilitation aimstopromote ality concerning compliance of ality concerningcomplianceof priority issueofconstitution- a Council the Constitutional ofCassationreferred Court to n 11December 2019,the PERSON CONVICTED OF A CRIMINALOFFENCE REINTEGRATION OFA AIMS TO PROMOTE REHABILITATION

JUDICIAL those sentenced toothercriminalpenalties or and whosesentencehasbeen carriedout,and ment between personssentencedto death He arguedthatthisdifference further intreat- or herbehalfintheyear ofhisorher death. time orexecution of thesentence. berehabilitated without any conditions asto to thecountry”. In of theoffence“rendered distinguishedservice the personconvictedhas,sincecommission 789ofthesameCode,whereed forinArticle time-barred, except inthespecialcaseprovid- ofthesentence,whether executed orexpiry period offive years. from the This periodruns inal offencemayonlybesubmittedaftera rehabilitation forpersonsconvictedofacrim- mitting sucha request on his out, ofthepossibilitysub- sentence hadbeencarried tenced todeath,andwhose the relatives ofapersonsen- provisions inquestiondeprived ofthesentence, the expiry periodoffive years asfromary compliance withaprobation- rehabilitation conditional on of anapplicationforjudicial by making theadmissibility persons sentenced to death] admissibility of requests for Mr Gérard F. [Conditions of judicial rehabilitation for The applicantarguedthat,

28 February 2020 N° 2019-827 QPC this case,heorshemay [Constitutionality] DECISION via the Constitutional Law of 23 February 2007, via theConstitutional Lawof23February 2007, 66-1into theConstitution introduced Article alty by theLawof9October 1981,Parliament ed out that, after the abolition of thedeath pen- of thelaw. cumstances andisdirectly related tothepurpose tested provisions isbasedonadifference incir- difference intreatment resulting from thecon- fulfil theconditionslaiddown by law. Thus, the sentenced todeathandexecuted were unableto integrity oftheirformerstate.Asaresult, those period,ofbeingrestoredprobationary tothe worthy, through goodbehaviourduringthe theirsentence,have provedserved themselves to personswho,afterhavingbeenconvictedand that judicialrehabilitation mayonlybegranted ofCassation established caselawoftheCourt longer applied.In this respect, itfollows from person convicted,oncethesentenceimposedno rehabilitationthe conductof conditionalon Parliament intendedtomakethebenefitof od following theexecution ofthesentence, Code ofCriminal Procedure. 785ofthe with thefirstparagraphofArticle son intheyear ofhisorherdeath,inaccordance from beingsubmittedby relatives ofsuchaper - carried out. They alsoprevent sucharequest sentenced todeathandwhosesentencehasbeen rehabilitation from beingsubmittedby aperson tested provisions prevent arequest forjudicial framework, itnotedthatthecon- equal guarantees. and thatallcitizens mustenjoy based onunjustified distinctions, apply, suchdifferences mustnotbe uations andpersonstowhichthey cedure dependingonthefacts,sit- provide fordifferent ofpro - rules of 1789,thatwhileParliament may Rights ofMan andoftheCitizen and 16oftheDeclaration ofthe Council recalled, 6 asperArticles of penalties. the principleofproportionality aswell aslaw andthecourts, violated theprinciplesofequalitybefore the pardoned by thePresident oftheRepublic, However, theConstitutional Councilpoint- By peri afive-year imposing probationary In constitutional this of light In particular, theConstitutional

TREATMENT RESULTING FROM THE CONTESTED FROM THECONTESTED CIRCUMSTANCES AND PROVISIONS ISBASED IS DIRECTLY RELATED ON A DIFFERENCE IN ON ADIFFERENCEIN TO THEPURPOSE OF THE DIFFERENCE IN THE DIFFERENCEIN - THE LAW to thedeathpenalty”. Under theseconditions, according towhich“No onemaybesentenced

provisions tobeconstitutional. garded andfoundthecontested disre hadbeen courts law andthe principles ofequalitybefore the missed thecriticismthat Constitutional Council dis of redemption. honour onthebasisofevidence carried out,torestore hisorher and whosesentencehasbeen of apersonsentencedtodeath ceedings, opentothesuccessors justified ininstitutinglegalpro- Parliament wouldtherefore be On thesegrounds, the France in1981. penalty was abolished in The death - - 81 QPC DECISIONS IN 2019-2020 82 ANNUAL REPORT 2020 Parcoursup applications were examined. report onthecriteria according to which each higher education institution must the Constitutional Council ruledthat right of access to administrative documents, Confirming theexistence of aconstitutional ALGORITHMS LOCAL PARCOURSUP covered by a“national framework” established of eachprogramme. These characteristicsare informed ofthecharacteristics during whichcandidatesare pre-enrolment procedure precededis by anationwide tutions ofhighereducation programmes in public insti undergraduate initial in ment Code ofEducation, enrol- students inhighereducation. on orientationandsuccessfor N° provisions wassetoutinLaw The wording ofthecontested anteed by theConstitution. the rightsandfreedoms guar- of theCodeEducation with L.612-3,paragraphI Article ance ofthelastparagraph O

2018-166 of 8 March 2018 Under thetermsof ality relating tothecompli- priority issueofconstitution- the Constitutional Council a Council ofState referred to n 16January the 2020, - EXAMINING APPLICATIONS ACCESS TO INFORMATION THESE PROVISIONSTHESE WAS THE MAINCRITICISMOF THAT THEY RESTRICT FOR ENROLMENTIN CONCERNING THE PROCEDURES FORPROCEDURES UNDERGRADUATE PROGRAMMES CRITERIA AND their programmes. tutions totakeaccountofthespecificfeatures of They maybesupplementedby individualinsti- by order oftheMinister ofHigher Education. for examining applications, in accordance with for examiningapplications, inaccordance with mittee setsoutitsown criteriaandprocedures Regarding accesstonon-selective pro- France [Communicability andpublic examine undergraduate enrolment Union nationale des étudiants de disclosure of algorithms usedby higher education institutions to [Constitutionality –reservation] grammes offered. Eachcom- institution foreachofthepro- committees setupwithinthe by applicationexamination basis ofproposals submitted takes thesedecisionsonthe The headoftheinstitution teristics oftheprogramme. knowledge, andthecharac- educational goals,skillsand coherence between applicants’ of theinstitutionbasedon ment isdecidedby thehead requested. In thiscase,enrol - capacity oftheprogrammes of applicationsexceeds the applicants whenthenumber for amechanismselecting grammes, thelawprovides N° 2020-834QPC

03 April2020 applications] DECISION

of State, the provisions in question thus reserve According toestablishedcaselawoftheCouncil basis foranindividualadministrative decision. rithmic processing usedasanexclusive orpartial communication andpublicdisclosure ofalgo- between Government andthePublic relating to of theCodeRelations application oftwoarticles same time,theyexclude to theirapplication.At the negative decisionwithregard gogical reasons justifyinga cations, aswell asthepeda- tutions forexaminingappli- implemented by theinsti- the criteriaandprocedures may obtain information on addressed by theQPCstipulatethatapplicants the generalcriteriaestablishedby theinstitution. The provisions oftheCodeEducation access to administrative constitutional right of confirmed the confirmed the existence of a The Council documents. OF THEDELIBERATIONS OF PARLIAMENT SOUGHTTO TEACHING STAFF WITHIN MAINTAIN THESECRECY THE INSTITUTIONS mic processing isutilised, tobe indissociable for examiningapplications, where algorith- determination ofthesecriteria andprocedures contested provisions, Parliament considered the explained, theCouncilnoted that, through the objective pursued. are withregard notdisproportionate tothe resultinginfringements from limitations such tified by the generalinterest, provided thatthe with constitutionalrequirements orwhere jus- impose limitationsonthisrightinaccordance Citizen of 1789.Parliament isempowered to the Declaration oftheRightsMan andofthe tive 15of documents isguaranteedby Article first time,thattherightofaccesstoadministra- mittees, norby anyotherreason. secrecy ofthedeliberationsadmissionscom- exclusion an bysuch neither the justified was nationale desétudiantsdeFrance claimedthat platform known as “Parcoursup”. The Union cations forenrolmentdigital formulatedonthe rithms institutionsmayutilisetoprocess appli - access, by applicantsorthird tothealgo- parties, Citizen of1789,inthattheywouldexclude any the Declaration oftheRightsMan andofthe istrative 15of documents,arisingfrom Article vening therighttocommunicationofadmin- programmes. They were denouncedascontra- applications forenrolment inundergraduate ing thecriteriaandprocedures forexamining that theyrestrict accesstoinformationconcern- ing theirapplication. selves before a decision hasbeentakenconcern- teria andprocedures, normayapplicantsthem- used by highereducationinstitutionsforthe algorithmic processing methodsthatmaybe access toadministrative documentsrelating to In light of the constitutional framework thus In lightoftheconstitutionalframeworkthus forthe The ConstitutionalCouncilruled, The maincriticismoftheseprovisions was communication ofthesecri- third maynotrequest parties may bedisclosed.Assuch, examining theirapplication criteria andprocedures for information relating tothe been taken. Moreover, only sion concerningthemhas such access,oncethedeci- to applicantswhorequest examination ofapplications,

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QPC DECISIONS IN 2019-2020 84 ANNUAL REPORT 2020 ing and weighting of the various general criteria ing andweighting ofthe various general criteria tion. They may thusbeinformedoftherank- well asthepedagogicalreasons justifyingarejec- once a decision has been takenin their regard, as and procedures forexaminingtheirapplications upon request,information relating the criteria to that applicantsmayobtainfrom theinstitution, Government andthePublic. provided forby theCodeofRelations between them, under the conditions of ordinary law be communicatedtothosepersonswhorequest expected andthegeneralcriteriamaytherefore documents relating totheskillsandknowledge itisnotclassified. parties, The administrative provide foraccesstothisinformation by third mittees. Althoughthelawdoesnotspecifically examination ofapplicationsby admissionscom- have accesstothegeneralcriteriagoverning the supplemented by eachinstitution. They also programme, assetoutatthenationallevel and successful completionofthe and knowledge expected for information on the skills candidates have accessto Council alsonotedthat of theestablishment. mittee, andthenby thehead tion by theadmissionscom- of the meritsof each applica- they require anassessment algorithm. On thecontrary, application cannotbebasedexclusively onan utilised, decisionstakenwithregard toeach ination. Furthermore, whensuchmethodsare outthisexam- algorithmic processing tocarry Institutions are entitled,butnotrequired, touse institutions examineenrolment applications. in thatitsetsouttheconditionsunderwhich procedure isnotentirely automated,particularly general interest. decisions. In sodoing,itpursuedanobjective of their independenceandtheauthorityof toensuring within theinstitutionswithaview secrecy ofthedeliberationsteachingstaff procedures, Parliament soughttomaintainthe istrative documentsspecifyingthesecriteriaand Consequently, by restricting accesstotheadmin- from theassessmentmadeofeachapplication. In addition, the contested provisions stipulate The Constitutional Moreover, thenationwidepre-enrolment ONLY BENEFITS APPLICANTS RIGHT OFCOMMUNICATION COUNCIL NOTED THAT THIS THE CONSTITUTIONAL THEMSELVES question tobeconstitutional. and declaredof thatarticle the provisions in ly dismissedthecomplaintalleging violation tothatobjective.proportionate It according- justified by anobjective ofgeneralinterest and 15oftheDeclarationfrom of1789are Article access toadministrative documentsarising ed provisions on the exercise of the right of that thelimitationsimposedby thecontest- thus setout,theConstitutionalCouncilruled form ofareport. ate, suchinformationmaybedisclosedinthe outthatexamination. Whereto carry appropri - extent towhichalgorithmicprocessing wasused examined andspecifying,ifapplicable,the teria according towhichthe applications were for applicants’ privacy, from disclosing the cri- pre-enrolment procedure andwithduerespect moreover withregard bedisproportionate to Declaration of1789.Such infringementwould 15oftheof therightguaranteedby Article institutions wouldconstituteaninfringement examining theapplicationsacceptedby the tion relating to the criteria and procedures for the lackofthird-party accesstoanyinforma- pre-enrolment procedure has been completed, applicants themselves. Once thenationwide that thisrightofcommunicationonlybenefits utilised by admissionscommittees. used by anyalgorithmicprocessing mechanisms may alsoextendtoinformationonthecriteria communication provided forby theseprovisions for theexaminationofapplications. The right of fications andadditionstothesegeneralcriteria established by theinstitutions,aswell asspeci- Subject totheinterpretative reservation However, theConstitutionalCouncilnoted at the end of the nationwide at theendofnationwide exempting each institution, documents, be interpreted as of accesstoadministrative without infringingtheright tested provisions couldnot, therefore held that the con - teaching staff. The Council cy of the deliberations of will tomaintainthesecre- pursued, grounded in the the generalinterest objective Salon of theMontpensier Council’s QPChearings During thehealth crisis, were heldintheGrand the Constitutional wing. The Secretary General also attends hearings. 85

QPC DECISIONS IN 2019-2020 86 ANNUAL REPORT 2020 for suchauthorisation orwhoisdesignated permit issued to the operator having applied permit issuedtotheoperator havingapplied ity generationfacilityissubject toagovernment nance, operationofanelectric- as amendedby thesameordi- L. governed by statutelaw. Act ofParliament inthoseareas may beamendedsolelyby an period ofenablement,they provisionsif, oflaw after the nance mustberegarded as that theprovisions ofanordi - inunprecedentedruled terms Environment. Furthermore, it forthe 7oftheCharter Article affect theenvironment, withinthemeaningof facility constitutesapublicdecisionlikelyto R GENERATION FACILITY AN ELECTRICITY OPERATION OF the legislative of section saidCode. Ordinance N°2011-504 of 9May 2011 codifying 311-5of theEnergyL. Code, asamended by to theConstitutional Council concerned Article The priorityissue of constitutionality submitted 311-1 of the Energy Code, 311-1 oftheEnergy Code, According to Article ation of an electricity generation anelectricityation ofgeneration the decisionauthorisingoper that Constitutional Councilruled the CouncilofState, the referred onaQPC uling by WITH THEREQUIREMENTS CONTESTED PROVISIONS THE CONSTITUTIONAL COMPLIANCE OFTHE OF ARTICLE 7OFTHE COUNCIL REVIEWED CHARTER FOR THE ENVIRONMENT -

information pertaining to the environment in environment the to in information pertaining the extentprovided forby law, tohave accessto “Everyone hastheright,inconditionsandto of anelectricitygenerationfacilityhadadirect administrative decisionauthorisingoperation concernedby theQPC. 311-5, thearticle L. account several criteriaassetoutinArticle grant thispermit,thegovernment takesinto following acallfor tenders.In itsdecisionto According totheapplicantassociation, to operate anelectricity Charter for the Environment: fortheEnvironment: Charter according 7ofthe toArticle Council pointedoutthat, fortheEnvironment.Charter 7ofthe diction andArticle account thescopeofitsjuris- Parliament failedtotakeinto preparation ofthis decision, inthe public participation mechanism allowing for by failing toprovide fora environment. Consequently, and significantimpactonthe Force 5[Authorisation generation facility] The Constitutional unconstitutionality] N° 2020-843 28 May 2020 DECISION [Temporary QPC The Ordinance of 5 August 2013 subsequently L. 311-5oftheEnergy Code. ed forinArticle the preparation ofthepublicdecisionsprovid - ensuring implementation of this principle for for theEnvironment, there existednoprovision 7oftheCharter set out inArticle participation the implementationofprinciplepublic prior totheOrdinance of5August 2013on for theCharter Environment. It noted that, sions withtherequirements 7ofthe ofArticle reviewed compliance ofthecontestedprovi- the permitisirrelevant. ther government decisionsfollowing issuanceof the actuallocationoffacilitymayrequire fur- for theEnvironment. In thisrespect, thefactthat 7oftheCharter within themeaningofArticle decision havinganimpactontheenvironment L.311-5constitutesapublic basis ofArticle ation of an electricity production facility on the this caselawthatthedecisionauthorisingoper- capacity, aswell asthelocationoffacility. duction andtheauthorised but also the method of pro only the holder of the permit mit thusissueddesignatesnot of State, thegovernment per- lished caselawoftheCouncil tection”. According toestab- ject with“environmental pro- the compatibilityofpro- efficiency” ofthefacilityand public domain”, the“energy on “landuse” and“use ofthe ty, theresulting consequences in particular, the“choice ofsites” forthefacili- the government authoritytakesintoaccount, operation of an electricity generation facility, when decidingwhethertoissueapermitfor L.311-5oftheEnergy Code, terms ofArticle implemented. the mannerinwhichtheseprovisions are tobe in accordance withtheprinciplesthussetout, by law, ongovernment authoritiestodetermine, Parliament and,withintheframeworkdefined force ofthisCharter, ithasbeenincumbenton to affecttheenvironment”. into Since theentry pate in the public decision-taking process likely - the possession of public bodies and to partici Accordingly, the Constitutional Council The ConstitutionalCouncilinferred from The Council recognised that, under the - REGARDED AS LEGISLATIVE JUDGED THAT, AS OFTHAT DATE, THEPROVISIONS OF THE ORDINANCEMUST BE TERMS, THECOUNCILTERMS, IN UNPRECEDENTED PROVISIONS L. intotheEnvironmentalinserted CodeArticle lenged onthebasisofsuchunconstitutionality. Subsequently, thesemeasures cannotbechal- would have manifestly excessive consequences. declared unconstitutional before thatdate 1 September 2013onthebasisofprovisions to challengethemeasures adoptedpriorto tutional asof1September 2013.Initiatives stitutional until31August 2013, butconsti- to 18August 2015,mustbe declared uncon- tested wording asapplicable from 1June 2011 thattheprovisions,Council ruled intheircon- Charter. 7oftheEnvironmental the meaningofArticle L. 120-1-1 are thus “provided for by law” within procedureparticipation provided forinArticle visions. The conditionsandlimitsofthepublic L.120-1-1wasintroducedalthough Article fifteen daysfrom thedateofpublication. electronic means,withinaperiodofnotlessthan then allows thepublictosubmitcomments,by available tothepublicby electronic means.It taken onrequest, theapplicationfile,bemade that thedraftdecisionor, where thedecisionis ed forpublicparticipation. requires This article which specificlegislative provisions have provid- ofdecisionsfor do notfallunderacategory ities with an impactontheenvironment which 2013 toindividualdecisionsby publicauthor-

120-1-1, applicableas On allthesegrounds, theConstitutional The ConstitutionalCouncilnotedthat be regarded aslegislative pro- visions oftheordinance must that, asofthatdate,thepro- terms, theCounciljudged 2013. In unprecedented period setat1September oftheenabling as oftheexpiry areas governed by statutelaw, an Act ofParliament inthose could be amended solely by Constitution, said ordinance 38 ofthe paragraph of Article by ordinance, asperthefinal from 1 September 87

QPC DECISIONS IN 2019-2020 88 ANNUAL REPORT 2020 electoral operations. rules for adjustments inarrangements for municipal whilelaying elections, down ground- approved thedeferral of thesecond round of State on26 May 2020, theConstitutional Council Ruling onaQPCreferred to itby theCouncil of TIMETABLE MUNICIPAL ELECTIONS 2020 would stand. 2020 wouldstand. who were electedinthefirstround on15March councillors the municipal the lawfulelectionof law.out inanew In scenarios, these of either rounds ofvoting, underarrangementstobeset first round wouldbeaskedtoreturn forboth elected infullattheendof were councils municipal not ers from municipalities whose is foreseenbe met,it thatvot- tions. Should thisconditionnot organisation ofelectoralopera- the healthsituationallows the latest, undertheproviso that 2020, until June 2020 at the initially scheduledfor22March ponement ofthesecondround, 15 March 2020, and the post Sunday, on held was elections the first round of municipal of electoraloperationsafter the COVID-19 epidemicledtothesuspension (COVID-19 Epidemic Act). 23 March 2020Public Health Emergency Act T The exceptionalcircumstances relating to I, III and IV of Article 19 of the 19ofthe I, IIIandIVofArticle by theConstitutioninparagraphs rights andfreedoms guaranteed on theconstitutionalityof he Council had before it aQPC - AND VOTER EQUALITY ELECTORAL PROCESS THIS HADRESULTED THE PRINCIPLES OF THE PRINCIPLES INTEGRITY OFTHE INTEGRITY MAINTAINED THAT THE APPLICANTS IN ABREACH OF cess thatwasunderway and should therefore Parliament anelectoralpro- couldnotdisrupt end ofJune. In theirview, ontheonehand, authorityaslatethe be setby theregulatory round toanundetermineddatewhichcould municipal elections, postponedthesecond provisions, thefirst round adoptedafter ofthe ing theCouncilonissuesarguedthatthese equality. of integritytheelectoralprocess and voter tained, resulted inabreach oftheprinciples level ofvoter abstention. This had, theymain- Parliament created theconditionsforahigh crisis causedby theCOVID-19 epidemic, The applicants and other parties addressThe applicantsandotherparties - to beheldduringthehealth enabling thesecondround Finally, itwasarguedthat,by unreasonably long deadline. block, thelegislatorhadsetan constitute anindivisibleto round ballot wassupposed the firstround, whenthetwo- more thanthree monthsafter second round totakeplace other hand,by allowingthe municipal elections.On the the purposeofholdingfresh the 15March 2020ballotfor have annulledtheresults of [Changes to themunicipal elections timetable] N° 2020-849 QPC Mr Daniel D. et al. [Constitutionality] 17 June2020 DECISION

tects orpunishes”. This provision andthethird the law“must bethesameforall,whetheritpro- Rights ofMan and of theCitizen provides that process. ple oftheintegrityvoting tial”. This underliestheprinci- universal, equalandconfiden- the righttovote “shall alwaysbe of Article according tothethird paragraph and theguaranteeofrights. tion oftheseparationpowers andthatthiswasaviola- Court, pending before theElectoral out regard toanychallengesthatwere currently first round ofthemunicipalelections,with- ratifyingtheresults of had theeffect ofthe Article 6ofthe1789Declaration oftheArticle The Councilrecalled that, It arguedthattheseprovisions wasfurther 3 of the Constitution, 3 oftheConstitution, THE COUNCIL RECALLED VOTE “SHALLALWAYS BE UNIVERSAL, EQUAL AND THAT […]THERIGHTTO CONFIDENTIAL” ments that have just been presented, the Council ments thathave justbeenpresented, theCouncil intervals. 3oftheConstitution,atreasonable by Article 34oftheConstitutiontolaydownArticle rules lish theprincipleofvoter equality. 3oftheConstitutionestab- paragraph ofArticle With regard totheconstitutionalrequire- Parliament whichisempowered under Parliament shouldhave voided theresults of the 15March 2020 their right to vote, guaranteed their righttovote, guaranteed must becalledupontoexercise specifically require that voters and theseprinciples principles, comply withconstitutional cise ofthisresponsibility, itmust authority. However, intheexer - the deliberative bodyofalocal ed representatives whomakeup the termofofficeelect- may, inthisrole, determine for localassemblyelections, submitted that applicants election. The The

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QPC DECISIONS IN 2019-2020 90 ANNUAL REPORT 2020 authority to set the date of the second round by authority to setthe date ofthesecondround by surrounding thespread oftheepidemic. the publichealthsituationand theuncertainty appropriate havingregard totheseriousnessof second round was,atthetimeofitsadoption, 2020. The timelimitthussetforstagingthe elections shouldtakeplacenolaterthanJune stipulated thatthesecondround ofmunicipal equality. right tovote, theprincipleoffairvoting orvoter approved inorder toavoid anyviolationofthe examined the modalities which Parliament consideration. overriding publicinterest therefore justifiedby an ures. These provisions are tion oflockdown meas - necessitated theimposi- health settingthathad 19 epidemic,inapublic spread oftheCOVID- contribute tothefurther was toprecede it,didnot electoral campaignthat March 2020),andthe tially scheduledfor22 of thesecondround (ini- ensure that the holding Parliament intendedto the firstround ofvoting, vened, toproceed with been made, before it inter- them whenthechoicehad provisions, theCouncilnotedthat,by adopting voting orvoter equality. violation oftherighttovote, theprincipleoffair the procedures ithasadopteddonotresult ina consideration ofoverriding publicinterest andif toral process ifthatmodificationisjustifiedby a only authorisesuchamodificationoftheelec- 3oftheConstitution,ParliamentArticle can it disregards therequirements resulting from of thevote inthefirstround. However, unless lation ofthefirstround, theresults topreserve toacancel- cess, theymakeitpossible,contrary call intoquestiontheunityofelectoralpro- that,althoughthecontestedprovisions ruled do Secondly, Parliament required theregulatory It noted, in the first place, that Parliament The Councilthen Applying thisanalyticaltesttothecontested Environmental Charter of 2004. the Constitution of 1946, andthe and of theCitizen, thePreamble to Declaration of theRights of Man “constitutionality corpus”: the1789 principles contained intheso-called adopted in1958, butalsowiththe the Constitution of the5thRepublic comply not onlywiththerules of that theprovisions inquestion the Constitutional Council checks consistent withtheConstitution, In assessing whether laws are with theConstitution”? “legislative compliance What ismeantby it. Consequently, thecontestedprovisions donot only beheldifthepublichealthsituationallowed turnout, theCouncilnotedthatthisballotcould end of June 2020would be likelyto affect voter epidemic, stagingthesecondround before the issues arguedthat,becauseoftheCOVID-19 addressingother parties the Council on these the Public Health Code. Scientists provided L.3131-19of forinArticle theanalysisofCommittee in particular health situationallowed it,takingintoaccount determination subjecttotheconditionthat no laterthan27May 2020.It hasmadethis a decree oftheCouncilMinisters tobeissued the tworounds, Executive Order N theunityofelectoratebetween to preserve ducted inafairmanner. In particular, inorder of 1 part of the campaign expenses incurred for the ofthecampaignexpensesincurredpart forthe ture ceilingsmaybeincreased by decree andthat Electoral Code,theapplicableelectionexpendi- 2020 provide that,by derogation from the 19oftheActgraph XIIofArticle of 23March compiled forthefirstround. electoralrolls thatwere rolls andsupplementary 22 tions, thesecondround ofvoting initiallysetfor

M Thirdly, althoughtheapplicantsandcertain In addition,subparagraphs6and7ofpara-

A arch 2020 shall be based on the electoral arch 2020 shallbebasedontheelectoral pril 2020provides that,withsomeexcep- and thattheballotiscon- process is notdisrupted paign, thattheelectoral dates during the cam equality between candi- the tworounds ofvoting-- despite thetimebetween toral lawhelptoensure-- ures to revamp the elec- noted thatseveral meas- the electoralprocess. ly affectedtheintegrityof or maynothave adverse - level ofabstention may stances of the case, in the particular circum to assesswhetherornot, the matterisreferred toit, for the Electoral if Court, voter abstention.It willbe in themselves encourage Lastly, the Council o 2020-390 2020-390 - - in the first roundfirst the in heldon15March to 2020 which allow themunicipal councillorselected the vote. ing process ortheprincipleofequalitybefore right tovote, theprincipleoffairnessvot - June 2020atthelatestdoesnotundermine second round ofthemunicipalelectionsuntil the of postponement the that ruled Council lodging appeals. ofthedeadlinefor ond round untiltheexpiry intoforce ofthedecree conveningentry thesec- to thepollingstations’ registration listsfrom the L.68oftheElectoralparagraph ofArticle Code, allowed access,by derogation from thethird vote, the of suspension were the they despite able tocontesttheresults ofthefirstround during theelectioncampaign. ensure there isequalitybetween candidates may be reimbursed. These provisions helpto second round initiallysetfor22March 2020 With regard tothecriticismsofprovisions Taking allthesereasons intoaccount,the Finally, inorder toensure thatvoters were

before the Electoral Court. before theElectoral Court. prevent theseoperationsfrom beingchallenged allocation ofseats. This beingso,theydonot operations ofthefirstround thatgave risetothe is therefore tovalidate retroactively theelectoral to office.Neither theirpurposenoreffect date hasanyimpactonlawfully-basedelections roundsholding oftwonew voting afterthat round toJune 2020at the latestnorpossible that neitherthepostponementofsecond provisionsCouncil notedthatthose merely state continue tobedeemedlawfullyelected,the municipal elections took place on28 round of the June 2020. second The The 91 QPC DECISIONS IN 2019-2020 92 ANNUAL REPORT 2020 arbitrarily detained. – The Judicial Authority, “No 66ofthe Constitution, Article one shallbe measures. remedy infavour ofthepersonsubjectedtosuch employed inpsychiatric care facilities, orforany oversight oftheisolationandrestraint measures far astheydidnotprovide forsystematic judicial protected 66oftheConstitutioninso- by Article that theyviolatedtheindividualfreedom thatis interpreted ofCassation,claiming by theCourt with thereferral challenged thoseprovisions, as lisation measures. locked room orrestrained by meansof immobi- hospitalised maybeisolatedby beingplacedina a psychiatric care facility, apersonwhohasbeen admissionsto which, inrelation toinvoluntary ernisation ofourhealthsystem. N T by thecourts. periodintheabsencea certain of oversight measures inpsychiatric care settings beyond the continuation of isolation orrestraint Constitution, Parliament could not authorise regard to therequirements of 66of Article the the Constitutional having Council heldthat, Court of Cassation (First Civil Chamber), In aruling onaQPCreferred to itby the PSYCHIATRIC HOSPITALS RESTRAINT MEASURESIN FORCIBLE ISOLATION OR o 2016-41of26January 2016onthemod- The Council noted that, under the terms of The Councilnotedthat,under thetermsof associated The applicantandtheotherparties These provisions laydown theframeworkin Health Code,asamendedby Act L.3222-5-1ofthePublicArticle anteed by theConstitutionunder with therightsandfreedoms guar- his QPCconcernedcompatibility or to others. The useofsuchmeasures mustin others. to or immediate orimminentharm tothatperson stitute theonlyavailable meansofpreventing for alimitedperiodwhensuch measures con- consent mayonlybetaken by apsychiatrist in isolation,ortorestrain them,withouttheir place apersonwhoisunderpsychiatric care rivation of liberty. result, isolation and restraint constituteadep- be ordered withouttheperson’s consent.Asa consequence ofthehospitalisation. They may without consentandare therefore notadirect not necessarilyappliedduringahospitalisation thatisolationandrestraintruled measures are ments thathave justbeenrestated, theCouncil totheobjectives pursued. portionate andprofreedom- mustbeappropriate, necessary strictures. Anyrestrictions onthe exercise ofthis ity, by anyunnecessary maynotbeobstructed which istheresponsibility ofthejudicialauthor- ed by statute.” ensure compliancewiththisprincipleasprovid- guardian ofthefreedom oftheindividual,shall The Councilnotedthatthedecisionto Inthe constitutionalrequirelight of the - Freedom oftheindividual,protection of forcible isolation orrestraint measures inapsychiatric Mr Éric G.[Monitoring of [Total unconstitutionality – N° 2020-844QPC 19 June2020 care setting] deferred effect] DECISION

Article the conditionofpersonconcerned. to andproportionate are appropriate, necessary sent isusedonlyincaseswhere suchmeasures restraint whilein psychiatric care withoutcon- confinementor ensure thatplacement insolitary tive conditions andprocedural guaranteesthat these provisions, Parliament established substan- for review. Patient Board CommitteeanditsSupervisory report mustbesenttothefacility’s Clientand tation ofthatpolicy. This made oftheimplemen- tices and the assessment on the use of those prac policy which places limits restraint of patients, the governing theisolationor specifying thepractices produce an annual report the healthcare facilitymust of Parliament. Moreover, gates, and/or to Members orhis/herdele- of Liberty of Places ofDeprivation the Controller-General Treatment Committee, PsychiatricDepartmental available onrequest tothe register mustbe made implementation. This its professionals whooversaw the namesofhealth measure, its duration and the timeanddateof name ofthepsychiatrist whotakesthedecision, which, inrelation toeachmeasure, records the lation orrestraint measures by keepingaregister on theonehand,ensure thetraceabilityofiso- psychiatric care withoutpatientconsentmust, Furthermore, any health care facility providing health professionals appointedforthatpurpose. sion forwhichthetreating facilitymustemploy - those circumstances besubjecttostrictsupervi ty. Therefore, thecontested provisions, tothe the useofanymeasure ofdeprivation ofliber- that thejudicialauthoritybe notified priorto sight ofthejudicialauthority, itdoesnotrequire deprivation be placed under the over of liberty - The Council further ruled that, while ruled The Councilfurther The Council concluded that, in adopting

66 oftheConstitutionr - equires that any equires thatany remain inforce, even temporarily. unconstitutional provision(s) to when itisnot possible to allow any immediate annulment,inparticular cases, theCouncil rules infavour of However, inmore thantwo thirds of create alegal vacuum. cause manifestly excessive effects or an immediate annulment islikely to the effect of anannulment order if The Council may decideto postpone stipulated inthat decision. Council’s decisionoronalater date on publication of theConstitutional a QPCdecisiontakes effect either which isordered inthecontext of of theConstitution, anannulment Under paragraph 2of Article62 immediately orto defer? To strike down repeal was deferred to31 December 2020. admitted topsychiatric care, thedate oftheir finement orrestraint ofpersonsinvoluntarily con - it wouldpreclude anypossibilityofsolitary manifestly excessive consequences,inasmuchas only foralimitedtime,ithasnotsetthatlimitor and restraint maybeordered by apsychiatrist Parliament hasprovided thattheuseofisolation asexpeditiouslypossible. intervene While only bedeemedtosafeguarded ifthecourts 66oftheConstitution. not violateArticle restraint inpsychiatric care withoutconsent,do confinementor extent thattheypermitsolitary On the other hand, individual liberty can can On theotherhand,individualliberty Constitution would entail Constitution would entail be inconsistentwiththe provisions declared to immediate repeal ofthe Constitution. Since the be inconsistentwiththe contested provisions to the Councilfound Constitution. 66ofthe ments ofArticle that satisfytherequire- incircumstancescourt to thejurisdictionofa confinement orrestraint continuation ofsolitary vision thatsubjectsthe there isnolegislative pro- deduced from this that the courts. The Council is subjecttoreview by uation ofsuchmeasures under whichthecontin- laid down theconditions For thesereasons, 93

QPC DECISIONS IN 2019-2020 94 ANNUAL REPORT 2020 of Cassation held that the pro the that held Cassation of ofappeal,theCourt to acourt ment referring thecaseback acts while adhering totheideology expressed sessing filesordocumentswhich condonethose term anda375,000-euro fineforknowingly pos- doning actsofterrorism. ence ofanoffencepossession ofmaterialcon- files ordocuments.It thusrecognised theexist- the ideologyexpressed inthose byaccompanied adherence to ism, whensuchhandlingis which condoneactsofterror - possessing filesordocuments embrace thefactofknowingly 421-2-5 oftheCriminal Code and 321-1 ofArticles visions N 2020 (Criminal Chamber, 5 ofthesameCode. 421-2- 321-1 oftheCriminal CodeandArticle tees “throughcombined effect”the Article of and freedoms whichtheConstitutionguaran- A expression andcommunication. disproportionate infringement of freedom of constitutes anunnecessary, inappropriate, and of possession of material condoning terrorism The Constitutional Council rulesthat theoffence CONDONING TERRORISM POSSESSION OFMATERIAL o

19-80.136) andinthejudg- This offenceprovides forafive-year prison In aDecision of7January the constitutionality of the rights the constitutionalityofrights (Criminal Chamber)concerned Cassation of by2020 Court the tional Councilon25M QPC referred totheConstitu - AUTHORITIES TO ENABLE CONFERRED NUMEROUS THEM TO PREVENT THE COMMISSION OFSUCH POWERS ONTHE ADMINISTRATIVE arch PARLIAMENT - ACTS of habitualaccessing ofterrorist websites, this there was,theyargued,nothingtodistinguish the contentofsuchsitesona digitalmedium, a terrorist website anddownloading orstoring and fundamentaldifference between accessing penalties. Inasmuch asthere isno substantial 321-2ofthesameCoderisestotenyears Article nication medium. The sanctionprovided under circumstance ofuseapublicon-linecommu- “condoning material” occursintheaggravating a fineof100,000euros where possessionofthe imprisonment andafineof100,000euros and 321-4, theapplicablesanctionisseven years of in suchmaterial.In accordance withArticle

offence of «possession» from the offence from offence «possession» the of offence proportionality of offences and ofoffencesand proportionality to thelegality, necessityand tion andtheprinciplesrelating of expression and communica- Cassation, infringedfreedom as interpreted of by theCourt visions identifiedinthereferral, argued thatthelegislative pro- ciation joinedinthereferral organised group. nature oriscommittedby an of possessionisanhabitual euros750,000 where act the of afine and of imprisonment Mr Théo[Possession S. The applicantandtheasso- of material condoning N° 2020-845 QPC [Constitutionality – 19 June2020 terrorism] DECISION reservation]

of the challenge, as well as number of specific criminalisation provisions thatwere thesubject covers a numberofoffencesotherthanthe and 15December 2017)thatthelegislation noted (as it had in its decisions of 10 February sions thatwere thusinterpreted, theCouncil commit terrorist acts. individuals whomightrepeat suchstatementsor to terrorism andtoprevent theindoctrination of nation ofdangerous ideasandstatementsrelated terrorism is bothtoprevent the publicdissemi- offence ofpossessionmaterialwhichcondones ments, theCouncilnotesthatpurposeof tioned constitutionalrequire- to theobjective pursued. appropriate, andproportionate this freedom mustbenecessary, infringements oftheexercise of other rights and freedoms. Any cy andamongtheguaranteesof requisite conditionofdemocra- by of the fact that virtue it is a cation is all the more valuable of expression and communi and print. However, freedom the freedom tospeak,write dom ofcommunicationand the exercise oftherighttofree- and preventing offences,with of safeguarding lawandorder the constitutionally valid aim ofan objective whichispart tion toengageinterrorism, ing incitementandprovoca- oncile thepursuitofobjective ofcombat- it isopentoParliament thatrec toenactrules - this freedom asshallbedefinedby law.” dom, butshallberesponsible forsuchabusesof accordingly, speak,write,andprintwithfree- precious oftherightsman.Every citizen may, cation ofideasandopinionsisonethemost of Manfree communi- andoftheCitizen, “The 11ofthe1789Declaration oftheRights Article communication. tofreedom of December 2017,tobecontrary the latter in itsdecisionsof10Febr With regard tothenecessityofprovi - In thelightof the aforemen- 34oftheConstitution, On thebasisofArticle In itsdecision,theCouncilnotedthat,under

having been deemed by the Council, having beendeemedby theCouncil, uary 2017 and 15 2017and15 uary - MATERIAL CONDONING COUNCIL CONCLUDES THE CONSTITUTIONAL INAPPROPRIATE, AND IS ANUNNECESSARY, ACTS OFTERRORISM DISPROPORTIONATE THAT THEOFFENCE OF POSSESSION OF OF POSSESSION COMMUNICATION EXPRESSION AND EXPRESSION OF FREEDOM INFRINGEMENT ments condoning terrorist actscan,however, on ence northepossessionofthose filesordocu- ideology expressed therein; neithersuchadher- or documentscondoningterrorist acts, tothe the personfoundtobeinpossession ofthefiles requires evidenceofadherence, of onthepart interpretation, the prosecution ofthisoffence condones suchacts. that personintendstocommitterrorist actsor condoning acts of terrorism does not require person found to be in possession ofmaterial hand, thelayingofcriminalchargesagainsta publicdissemination.On theother to further vidual whoaccessesorcollectsthesemessages,to mitting thoseacts,butalsotomonitoranindi- acts ofterrorism andtopunishindividualscom- the publicdisseminationofmaterialcondoning their disposal,enablingthemnotonlytocombat judicial authoritieshadnumerous prerogatives at ject ofthechallenge,administrative and leaving toonesidetheoffencethatwassub- sions are referred tointheCouncil’s decision. vent thecommissionofsuchacts. Those provi - administrative authorities to enable them to pre- Parliament conferred numerous powers onthe vent thecommissionofactsterrorism. Also, criminal procedure provisions designedtopre- Consistent with the Court ofCassation’s ConsistentwiththeCourt The ConstitutionalCouncilconcludesthat, only if it subsequently gives rise only ifitsubsequentlygives rise constitutes publiccondoning ments condoningthoseacts the possessionoffilesordocu- dangerous ideasandstatements, widespread disseminationof acts ofterrorism encouragesthe while thepubliccondoningof ontheonehand,that, ruled, tion are atissue,theCouncil of expression andcommunica- where infringementsoffreedom thatapplyproportionality ments ofappropriateness and put intoeffect. has reached the stage of being intent, even before thisintent by conductrevealing terrorist ing orcollectionisaccompanied to punishthemifsuchaccess- detain andquestionthem With regard totherequire-

// ... 95

QPC DECISIONS IN 2019-2020 96 ANNUAL REPORT 2020 punishing suchanoffence. to itmaynotbeinterpreted asbeingcapableof to theeffectthatprovisions thatwere referred accordingly records aninterpretative reservation of expression andcommunication. The Council infringementoffreedom and disproportionate of terrorism isanunnecessary, inappropriate, offence ofpossessionmaterialcondoningacts Constitutional Councilconcludesthatthe ten years. terms ofimprisonmentuptofive, seven or which, dependingoneachcase,provides for sion ofmaterialcondoningsuchacts,anoffence terrorism mayconstitutetheoffenceofposses- session offilesordocumentscondoningacts rorist actshasnotbeenproven, themere pos- even ifanintentiontocommitorcondoneter- intent tocommitorcondoneterrorist acts. their own, sufficetodemonstratetheexistenceof

complies withtheConstitution. on whichtheprovision inquestion only ifitisneededto explain thebasis records aninterpretation of aprovision the law shouldbeapplied.The Council providing detailsasto clarifying how be at oddswiththeConstitution or possible interpretations whichwould these generally entaileliminating any record interpretative reservations: down, It may inwholeorpart. also the Constitution, oritmay strike them referred to itto beconsistent with may declare theprovisions that were concluded, theConstitutional Council When aconstitutional review hasbeen reservations Interpretative Based on all these considerations, the The ConstitutionalCouncilconcludesthat, 9797

Level 4 of the Montpensier wing, where the Members’ offices and that of the Secretary General are located. QPC DECISIONS IN 2019-2020 QPC DECISIONS 98 ANNUAL REPORT 2020 and place, are constitutional. and appropriate to thecircumstances of time strictly proportionate to thehealth risks incurred made by theregulatory authorities ifthey are orders, exceptions to whichmay onlybe punish therepeated violation of lockdown Council ruledthat theprovisions which by theCourtof Cassation, theConstitutional Ruling onaQPCreferred to iton14May 2020 VIOLATIONS REPEATED LOCKDOWN health needs. That prohibition maybe ordered purposes thatare strictlyessentialtofamilyor hibition onleavingone’s homeother thanfor L.3131-15, apro- 2 ofArticle tions include,insubparagraph Health Code. These prohibi- 15 toL.3131-17ofthePublic L.3131-1andL.3131- Articles arising from theenforcement of the prohibitions orobligations penaltiesforanyviolationof ry L.3136-1 provides forsumma- Code”. L.3131-15ofthat 2 ofArticle enforcement ofsubparagraph obligations arisingfrom the violation oftheprohibitions or Health Code,whichpunishany L.3136-1ofthePublicArticle provisions ofparagraph4 T Paragraph 3ofArticle Constitution guarantees“under the the rightsandfreedoms whichthe cerning theconstitutionalityof asked toconsideraQPCcon- he ConstitutionalCouncilwas COUNCIL ON THE ISSUES COUNCIL ONTHEISSUES ARGUED, INPARTICULAR, THAT PROVISIONS THESE LEGALITY OFOFFENCES AND OTHER PARTIES AND PUNISHMENTS PRINCIPAL OFTHE ADDRESSING THE ADDRESSING THE APPLICANTS INFRINGED THE which a person may leave his or her home and which aperson mayleave his or herhomeand authorities todeterminethe circumstances in under thoseprovisions, sinceitauthorisedthose tion onleavingone’s homeif, in thepreceding for punishmentofanyviolationtheprohibi- health emergency. by thePrime Minister inthecontextofapublic The provisions thatwere challengedprovide offence whichare punishable the constituentelementsof authorities tospecify regulatory Parliament hadleftittothe ments. They maintainedthat legality ofoffencesandpunish- infringed theprincipalof ticular, thattheseprovisions par in argued, issues the on addressing Council parties the 3,750 euros. of imprisonment and afine of a punishmentofsixmonths that event, theviolationcarries had already beenissued.In ment noticesforsuchviolations 30 days,three otherinfringe- M. OussmanG.et al. [Repeated lockdown The applicantsandother [Constitutionality] N° 2020-846- 847-848 QPC 26 June2020 violations] DECISION

- than three occasions”, Parliament didnotadopt viously received infringementnotices“on more of the offence, the fact that the person had pre- Moreover, by including,asaconstituentelement family andhealthneeds” isimprecise orunclear. reference to“travel for thatisstrictlynecessary to thedrawingupofareport ofoffence,northe notices” (inFrench, verbalisation), whichrefers neither the concept of “issuing infringement already beenissued. The Councilfoundthat notices forthree other violationsofthebanhad where, intheprevious 30days,infringement residence whenit iscommittedincircumstances es aviolationofthebanonleavingone’s placeof the offencereferred toitforexaminationpunish- ments justmentioned,theCouncilnotedthat decisionsandmeasures.rence ofarbitrary ciently clearandprecise astopreclude theoccur- crimes andotheroffencesintermsthatare suffi- the scopeofcriminallawandtodefinemajor ments require Parliament todetermine,itself, principle ofthelegalityoffencesandpunish- carry”. 34oftheConstitutionand Article crimes andotheroffencesthepenaltiesthey concerning…seriousrules lawshalldeterminethe “The 34oftheConstitution: Article legally enforced.” According to mission of the offence, and promulgated before the com- ofalawpassedand by virtue shall sufferpunishmentexcept obviously necessary, andnoone punishments as are strictly and law shallprovide onlyforsuch Man andof the Citizen, “The Declaration oftheRights 8ofthe1789under Article issued. infringement noticesbeing home couldresult inseveral thorised departure from one’s the vagueness oftheprovisions, asingleunau- Two argued that,becauseof applicantsfurther terms “family orhealthneeds” were toovague. the issuingofinfringementnoticesandthat that there wasalackofclaritywithregard to that prohibition ismonitored. They alsoargued the conditionsunderwhichcompliancewith With regard totheconstitutionalrequire- The Council noted that, DETERMINED THESCOPE UNDER WHICHFAILURE AND THECONDITIONS OF THEOBLIGATION IT CONSTITUTES AN HAD SUFFICIENTLY TO COMPLY WITH THE PARLIAMENT THUS HELD THAT THE COUNCIL OFFENCE Constitution. these provisions to be in accordance with the complaints against these provisions and found been contravened. It alsodismissedtheother ciple oflegalityoffencesandpenaltieshad Council dismissedthecomplaintthatprin- it constitutesanoffence. conditions underwhichfailure tocomplywith determined thescopeofobligationand thus heldthattheParliament hadsufficiently recorded ininfringementnotices. The Council the contestedprovisions, Parliament had,on infringement notice. of thebanongoingout,toincurmore thanone one’s home,whichconstitutesasingleviolation visions donotallow anysingledeparture from imprecise provisions. In particular, thesepro- 30 going outiscommittedwhen,inthepreceding only constitutediftheviolationofbanon the Parliament hasprovided thattheoffenceis stances ofthetimeandplace.Furthermore, may beincurred andappropriate tothecircum- tothehealthrisksthat is strictlyproportionate only be aimed at ensuring that the prohibition

days, thr On these grounds, theConstitutional that,by adopting ruled The Councilfurther ee other violations have already been ee otherviolationshave already been family andhealthneeds.It forthat are strictly necessary exceptions totheban, fortrips Parliament hasprovided two tial elements ofthe ban. Indeed, hand, hadspelledouttheessen- declared, and,ontheother a public health emergency is which canbeenforced when tions ofthebanongoingout, the one hand, punished viola agraph ofL. 3131-15, Article accordance with the last par other exceptions, these can,in authorities mightprovide for possibility thattheregulatory Parliament outthe didnotrule the preparatory work that the that, whileitappearsfrom

held - -

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QPC DECISIONS IN 2019-2020 100 ANNUAL REPORT 2020 under point d)of thesamesubparagraph. Emergency (COVID-19 Epidemic) Act and of the23March 2020PublicHealth subparagraph 2of paragraph 1of 11 Article which theConstitution guarantees under constitutionality of therights andfreedoms the Council was asked to examine the 27 May 2020by theCourtof Cassation, Ruling ontwo QPCs referred to iton PRE-TRIAL DETENTION EXTENSION OF Orders issuedonthe basisofthisEnabling Act to the rightsofdefenceby allowing Executive 66 oftheConstitutionandto ments ofArticle these provisions totherequire were contrary - Council inthismattercontended, interalia,that son andhisorherlawyer. ofthe per- office andthewrittenobservations ten submissionsfrom thepublicprosecutor’s of thesemeasures solelyonthebasisofwrit- criminal matters;and,secondly, theextension our mattersandsixmonthsonappealorin not exceeding three months in misdemean- lawand commensurate withthatofordinary investigation andinhearings,foraperiod on theonehand,forlongerdelaysduring the COVID-19 epidemic,inorder toallow, for thesolepurposeoflimitingspread of conduct anddurationofpre-trial detention T The applicantsandothersaddressing the amend the rules relatingamend therules tothe measures by whichitcould by means of an Executive Order, ered theGovernment totake, he contestedprovisions empow - valid rules and principles. valid rules requirement tocomplywithconstitutionally 38ofthe Constitution, ofthe to itby Article Government, in exercising anypowers granted either theobjective ortheeffectofrelieving the orprinciple. Moreover,rule they maynothave from them, infringeaconstitutionallyvalid or through theconsequencesnecessarilyarising of anEnabling Act maynot,either ofthemselves ofsuchauthorisation. by virtue The provisions of thetermsExecutive Orders itwillissue compel the Government to advise the Parliament same time,itnotedthatthisparagraphdoesnot the area ofapplication ofthosemeasures. At the ures itproposes totakeviaExecutive Orders, and regardinginformation the objective ofanymeas- mit totheParliament by providing itwithprecise Government tojustifyanyrequest itmightsub- 38oftheConstitutionrequiresArticle the ofthecourts. to theintervention emergency, withoutsuchextensionbeingsubject orders expiringduringpublichealthstateof provide foranautomaticextensionofallremand The Councilnotedthatparagraph1of [Authority to extend theperiod of pre-trial detention inthe context of apublichealth et al. al. Mr et Sofiane A. N° 2020-851-852 [Constitutionality] emergency] 3 July2020 DECISION QPC

challenged by way of a QPC. challenged by wayofaQPC. anteed by theConstitutionmayaccordingly be ance with the rights and freedoms that are guar- 61-1ofthe Constitution. Article Their compli- as legislative provisions withinthemeaningof fall within the legislative domain, be regarded authorisation hasexpired, andinmattersthat they must,however, oncethetimelimitfor signature whenthey are ratifiedby Parliament; acquire thestatus oflegislationfrom thetimeof legislative domain. amended by lawinmattersthatfallwithinthe Order issuedonthebasisthereof mayonlybe fixed by law, theprovisions ofanExecutive of the period afterof authorisation the expiry 38oftheConstitution, last paragraphofArticle decided on their ratification. Finally, under the in force even ifParliament hasnotexpressly Act, Executive Orders remain the datesetby theEnabling tabled before Parliament before once aratificationbillhasbeen ance withthesameparagraph, lication. Moreover, inaccord- immediately upontheirpub- such Orders enterintoforce ratification, itstipulatesthat sion toParliament forexpress in principle,withtheirsubmis- to issueExecutive Orders ends, cedure forgrantingtheGovernment authority 38 oftheConstitutionprovides thatthepro- However, whilethesecondparagraphofArticle 61-1,oflegislative provisions.the sameArticle Council mayonlybeseized, onthebasisof and freedoms guaranteedby theConstitution. that necessarilyflow from them,violatetherights which, by themselves orby theconsequences claims thattheprovisions ofanEnabling Act 61-1,of only beseized, onthebasisofArticle Consequently, theConstitutionalCouncilcan withinaspecifiedperiod”.shall give itsruling Cassation totheConstitutionalCouncil,which referred by theCouncilofState of or theCourt anteed by theConstitution,mattermaybe vision infringestherightsandfreedoms guar- before itisclaimedthatalegislative pro acourt, - inthecourseofproceedings inprogress “Where, The provisions ofanExecutive Order On anotherpoint,theConstitutional Under 61-1oftheConstitution: Article THE CONSTITUTIONAL COUNCIL DISMISSED THE ENABLINGACT BREACHED THOSE THE CLAIMTHAT REQUIREMENTS were incompliancewiththeConstitution. the contestedprovisions andheldthat thelatter missed theothercomplaintsmadein relation to Act breached thoserequirements. It alsodis- Council dismissedtheclaimthatEnabling pre-trial detention measure. a court’s incasesofextensiona intervention Constitution withregard tothemodalitiesof requirements 66ofthe stemmingfrom Article was alleged by the applicants could only result Council addedthattheunconstitutionality in casesinvolving deprivation ofliberty. The by thecourts the earliestpossibleintervention 66oftheConstitutionwhichcalledfor Article resulting from them,breach therequirements of selves orthrough anyconsequencesnecessarily these provisions didnot,eitherinandofthem- gency. The Councilaccordingly concludedthat of enforcement ofastatepublichealthemer- was approachingdate during the period its expiry the extensionofapre-trial detentionorder which inconnectionwith by acourt intervention every provisions oftheEnabling Act didnotpreclude nity, theCouncilpointedoutthatcontested - attheearliestpossibleopportu intervene courts freedom mayonlyberegarded asprotected ifthe Constitution, whichconfirmthatindividual ments just referred 66 of the to, and Article In lightoftheconstitutionalrequire- For these reasons, the Constitutional and principles, specifically the and principles, specifically the with constitutionallyvalid rules of the requirement to comply 38oftheConstitution, Article any powers grantedtoitby the Government, inexercising tive or the effect of relieving may nothave eithertheobjec- provisions ofanEnabling Act on thebasisofthoseprovisions. from theExecutive Order issued The Council noted that the The Councilnotedthatthe

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QPC DECISIONS IN 2019-2020 102 ANNUAL REPORT 2020 2020. October 2019 andSeptember following decisionsbetween Council handeddown the Referendum, theConstitutional of theShared Initiative and withintheframework postex delivered by way of exand ante In addition to thedecisionsit decisions Other categoriesof Organic Legislation. LawN°2001-692 onBudgetary nation’s finances, having regard to the terms of the 1 August 2001 consideration onmeasures relating tothemanagementof competence incompiling andpresenting informationforits own the Councilsawneedtoclarify scopeoftheParliament’s 6 of Amended 2020Finance Act N° 2020-289 of23March 2020, 2020 –Thelegalnature provisions ofcertain ofparagraph IXofArticle referrals. In particular, by itsDecision N°2020-286Lof2July for reclassification. It approval grantedonlypartial in theother In fourofthese referrals, theCouncilaccededfullyto request constitutional reviews 2019-279 Lto2020-286L. ment), bearingthenumbers submitted toit for assess- tive nature oftheprovisions rals beingthatofthelegisla- asked todecideinsuchrefer- Constitutional Councilis letter L, the issue which the Decisions (designated by the sions known asReclassifying Council took eight deci Minister, theConstitutional upon referral by thePrime of the Constitution and 38paragraph 2ofArticle

On thebasisof - 103103

On 24 October 2019, the Council handed down a decision relating to the category referred to as AUTR Decisions – “Other Texts and Decisions”. By that decision, N° 2019-2 AUTR of 24 October 2019, Request by Mr Jean Lassalle and others, the Constitutional Council noted that its jurisdiction was strictly delin- eated by the Constitution. That jurisdiction can be clarified and supplemented by means of an Organic Law only if the principles laid down in the Constitution are complied with. The Council can- not be called upon to rule in cases other than those that are expressly provided for by the Constitution or the Organic Law. The Council thus rejected a request from the National Assembly Members who, as applicants, sought a finding of unconstitu- tionality with regard to the decision of the 10 September 2019 Conference of Chairpersons of the National Assembly, a decision pertaining to the allocation of speaking time for the examination of the Bioethics Bill; it being noted that neither the Constitution, nor any provision of an Organic Law adopted pursuant to the

Constitution, gives the Constitutional Council jurisdiction to OF DECISIONS CATEGORIES OTHER rule on an application of this kind.

In the same period, the Council also took two Organisational Decisions (referred to, for this reason, as ORGA Decisions). One of them concerned the appointment of deputy rap- porteurs on the basis of Article 36 of Executive Order N° 58-1067 of 7 November 1958, as amended, which set out the Organic Law on the Constitutional Council (Decision N°2019-145 ORGA of 7 November 2019). The other dealt with the appointment of mem- bers of the unit foreshadowed in the third paragraph of Article 45-4 of Executive Order N° 58-1067 of 7 November 1958, as amend- ed, which set out the Organic Law on the Constitutional Council (Decision N°2019-146 ORGA of 5 December 2019).

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As a living, accessible institution, the Constitutional Council never relents in its scrutiny of the law or its efforts to advance the law through its own jurisprudence, in a manner that is in line with social developments and in compliance with basic freedoms. The Council is committed to sharing the outcomes of its work with a wide audience; since 2018 it has thus been sharingreleasing the six-monthly journal, Titre VII, an online publication which may be downloaded entirely free of charge. The following pages of this Report seek to shed light on some topical issues which, via two quite different sets of themes, majorenrich the discourse about the theory and practice of constitutional justice. debates REPORT 2020 ANNUAL

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SHARING THE MAJOR CONSTITUTIONAL sharingDEBATES major debates 106

ical and committed to a spirit of solidarity. Likewise, the European Union has launched a series of policy initiatives dubbed the Green Deal that make action on climate change and the rebuilding of the economy on a sustain- able basis top priorities. But nowhere is the commitment to environmental protection as a foundation for 21st century society more clear than in the emerging sustainability jurisprudence of the French Constitutional Council. Three recent cases put the Council into a global leadership position in terms of recogni- tion of what might be called the sustainability imperative. Most notably, in its decision in the January 2020 UIPP vs. Prime Minister case, the Council upheld legislation banning the export by French companies of pesticides that contain active ingredients deemed harmful to the envi- ronment and therefore forbidden from sale in IIIII France. In rejecting a challenge which argued that the export ban violated the fundamental legal protection of free enterprise enshrined in Article 4 of the 1789 Declaration of Human and Citizen Rights, the Council asserted in une- Professor quivocal terms that protection of the environ- ment “constitutes an objective of constitution- Daniel C. Esty al value.” In doing so, the Council invoked the Yale Law School “protection of health” found in the Preamble to the French Constitution of 1946 and the logic of the 2004 Charter for the Environment, which declares: “The future and very existence of mankind are inextricably linked with the natu- ral environment; The environment is the com- mon heritage of all mankind; . . . Care must be Toward a Sustainable taken to safeguard the environment along with the other fundamental interests of the Nation; Future: Environmental . . . to ensure sustainable development, choic- es designed to meet the needs of the present Jurisprudence from generation should not jeopardise the ability of France’s Constitutional future generations and other peoples to meet their own needs.“ Council Breaks New This decision reflects two fundamental principles that could become the bedrock on Ground which judicial support for a sustainable future gets built. First, the UIPP decision puts envi- ronmental principles into the highest echelon ountries across the world have of French constitutional protections – trumping emerged from the COVID-19 in this case even the long-enshrined right of pandemic with a commitment free enterprise and establishing sustainability to “build back better”, which for as a fundamental goal so important that other many means more sustainably. constitutional rights may be limited in order to PresidentC Macron has called for France to uphold it. Second, the Constitutional Council’s willingness to view environmental harm beyond develop an economy that will be stronger

ANNUAL REPORT 2020 ANNUAL France as a sufficient justification for the and more sovereign but also more ecolog- export ban makes the sustainability imperative 107

enunciated within French law one of universal sustainability jurisprudence has emerged and application and gives force to the idea that envi- environmental principles in France will be pro- ronment rights must be understood as global in tected henceforth with greater vigor. scope, reflecting the Charter’s broad view of The French judiciary has thus become a the environment as “the common heritage of all driving force for a sustainable future in general mankind”. and action on climate change in particular. Along The UIPP case reinforces the Constitutional with the widely discussed Urgenda case in the Council’s October 2019 decision in Total vs. Netherlands, courts in Ecuador, Columbia, Prime Minister which upheld legislation that Pakistan, Britain, Nigeria, and the Philippines excluded palm-oil-based biofuel from favora- have likewise issued decisions holding both ble tax treatment because of worries that governments and private parties to account palm cultivation leads to deforestation and for violating environmental principles or falling thus increased greenhouse gas emissions. In short of sustainability requirements. But judg- rejecting the constitutional challenge brought es and justices in other nations, including most by the oil company Total, the Council made notably the United States, have been more clear that the priority put on climate change circumspect in their approach to these issues. action (including indirect emissions caused by For example, in the Juliana case in Oregon, the land clearing for palm plantations) by the legis- trial court held that the youth plaintiffs had met lature’s decision to treat palm oil less favorably the burden of demonstrating injury from cli- than other biofuels without looking into the spe- mate change and could proceed with their legal cific environmental impacts of action to have their rights each form of palm cultivation against government inaction was a reasonable exercise of vindicated. But the Appeals legislative discretion. Court above reversed this The Total case again decision and dismissed the demonstrates the sweeping ENVIRONMENT case, noting that the only rem- view of sustainability embed- edy lay with the legislative or ded in the Council’s new juris- RIGHTS MUST BE executive branches of gov- prudence which gives legis- UNDERSTOOD AS ernment – a conclusion that lators considerable latitude reflects the lack of any men- to determine when environ- GLOBAL IN SCOPE tion of the environment in the mental obligations can take U.S. Constitution. precedence over other con- Against this backdrop, stitutional objectives. As in the the sustainability leadership

UIPP case, the Total decision of the French Constitutional DEBATES SHARING THE MAJOR CONSTITUTIONAL reflects a perspective on sus- Council stands out all the tainability as a top-tier societal value and one more. The Council’s clear perspective on the of global scope such that environmental harms need to move toward a sustainable future and anywhere may be considered an appropriate willingness to articulate environmental prin- concern of the French government. ciples – and thus promote action to combat Any doubts about the Constitutional climate change – has blazed a trail that other Council’s willingness to push the boundaries of courts in other countries will surely follow. its review in advancing a commitment to sustain- Perhaps more importantly, the global scope ability and cross-checking the French govern- of the environment that the Council has high- ment’s fulfillment of its constitutional obligation lighted as being of concern may have important to environmental protection should be fur- implications over time in terms of responsibility ther dispelled by the December 2019 Mobility for extraterritorial harm as well as effects on Orientation Act decision. In this matter, the the Global Commons. Indeed, the UIPP deci- Council for the first time substantively reviewed sion could mean that the duty of the State to the sufficiency of a programming law related to ensure the protection of the environment at the the reduction of greenhouse gas emissions in national level becomes a global responsibility, the land transport sector. While the Council which implies that consideration must be given ultimately concluded that the decarboniza- to the damage that activities carried out within tion plan set forth was not “manifestly inade- the national territory may cause to the environ- quate,” the mere fact that this regulation was ment worldwide. scrutinized against the standard of the Charter for the Environment signals that a new 108

post constitutionality review; others have rejected it, notably Italy, even though the issue is currently being revisited in that country. In fact, comparative experience proves that a more extensive review of constitutionality does not necessarily entail an increase in this accountability, particularly as the latter may be curbed by restrictive conditions of commitment, as is the case in Germany. It all depends on the function attributed to accountability, which differs from one system to another, and on the understanding of the relationship between the State and the individual that underlies it. The shift was as predictable as it was inevitable. In this day and age, however questionable the mechanisms may be, a Parliament that is no longer infallible must be accountable. Even if the legal frameworks of the solutions are not the same, it would IIIII have been difficult not to accept, in the realm of constitutional norms, what has been accepted as a contradiction to international Mathieu commitments since the famous “Gardedieu” jurisprudence of 2007. The recognition of Disant this new heading of accountability is also the culmination of the line of reasoning, enshrined Professor of Law at for half a century in administrative case law, Panthéon-Sorbonne according to which any illegality is likely to University (Paris I) trigger the liability of the public authorities. Ignorance of the Constitution is thus equated with the worst form of illegality, without worrying about the fact that legislation is thus reduced to a mere execution of the Constitution – which, in various ways, it clearly is not. This “anti-legality” is stripped of any Towards a afflictive or moral connotation; it can only be objectively wrong, in the sense of “legal fault” constitutional litigation that Hauriou alluded to almost a century ago, and Jèze after him, or of the legislative defect framework providing evoked by the German theory of “Legislative for indemnification Unrecht”. With the shift from invalidity to liability for laws that are unconstitutional, this construction delivers blow after blow, rench constitutional litigation now dispatching the already tired principle of has an indemnity component. Parliamentary unaccountability. By opening up the possibility of The symbol is a potent one, but there is obtaining compensation for harm no reason for applicants to get their hopes or losses resulting from a law that is up. Compensation for loss or harm is subject Finconsistent with the Constitution, a new stage to strict conditions, particularly because in constitutionalism has been reached. the direct cause of the loss or harm must be The solution was long overdue. In identified, not in the law as such, but in the different forms and legal systems, several application of unconstitutional law. In practice, foreign jurisdictions – Belgium, Spain and not all grounds of unconstitutionality will allow Portugal, for example – have recognised this the action for liability to be pursued. It will

ANNUAL REPORT 2020 ANNUAL accountability as an induced effect of the ex not be easy, particularly for the courts which 109

will have to apply this case law, to draw the This is indeed an indemnity dispute based on necessary conclusions from a decision of Article 62 of the Constitution, which should unconstitutionality in compensation matters. be included in the range of levers available to While such a luxury or even the Constitutional Council prestige item is naturally to draw the appropriate a source of pride for the conclusions from the professionals who are unconstitutionality that it pleased with the thought alone can pronounce. that they have it “in stock”, THIS CASE LAW The Constitutional it will remain difficult to AND THE WAY IN WHICH Council must now take access. stock of its determinations The new legal remedy is THE CONSTITUTIONAL of unconstitutionality in based on a subtle balance. COUNCIL ITSELF DEALS terms of the conditions The particularity of the under which this liability is regime of liability arising from WITH THIS NEW AREA incurred and, even though unconstitutional law is that OF STATE ACCOUNTABILITY this poses a real method- it is based on a distinction ological challenge, it must between the office of the UNDENIABLY GIVE also consider the compen- agency responsible for AN ADDITIONAL sation consequences of assessing standards (the QPC cases. This is now a Constitutional Council) DIMENSION TO THE major parameter, and where and the agency responsible QPC PROCEDURE necessary an adjustment for assessing liability (the variable, in the implemen- administrative judge). tation of the power to mod- The competence of the ulate the effects of uncon- former in the field of legal stitutionality. At the risk of disputes does not invalidate absolving the Parliament the competence of the latter in the field of and leaving the idea that citizens sometimes liability. However, in view of the Constitutional have a legal duty to put up with an unconsti- Council’s monopoly on the constitutionality tutional law. review of laws, which the Constitution reserves to the Constitutional Council, it is impossible for the administrative judge to determine for itself the event giving rise to liability where

a breach of the Constitution by the law has DEBATES SHARING THE MAJOR CONSTITUTIONAL occurred. A declaration of unconstitutionality by the Constitutional Council is a necessary and sufficient condition for its identification. Consequently, this case law and the way in which the Constitutional Council itself deals with this new area of State accountability undeniably give an additional dimension to the QPC procedure. Action for damages is possible only within the limits set by a decision of the Constitutional Council, which derives from the Constitution (Article 62-2) the power to stipulate the effects in a temporal sense of the declaration of unconstitutionality and can therefore always decide to close off or restrict the route to any claim for compensation. While the possibility of triggering such liability is the principle (N° 2019-828/829 QPC of 28 February 2020), the Constitutional Council may freely limit, neutralise, qualify or impose as it deems necessary any compensation claims that may be based on the unconstitutionality of the law. 110

In order to carry out its responsibilities in the best possible way, the Constitutional Council is constantly seeking ways to improve its internal procedures. In 2020, faced with the COVID-19 epidemic, it introduced innovations in its operations so as to ensure that there was no disruption to its jurisdictional work. changesIt also embarked on an ambitious energy-saving and sustainable councildevelopment initiative. ANNUAL REPORT 2020 ANNUAL 111

CHANGES changesAT THE COUNCIL council 112 CONSTITUTIONAL COUNCIL KEY FIGURES

— THE GENERAL SECRETARIAT OF THE CONSTITUTIONAL COUNCIL – STAFFING —

As at 31 December 2019, the The largest share of staff mem- The proportion of contract staff of the General Secretariat bers are assigned to: staff, which has traditionally

of the Constitutional Council the been high in the Constitutional stood at 70 individuals, a total Administrative the Legal Council, remains higher than of 57.31 full-time equivalents. and Financial Department that of seconded officials The number of staff remained Department (67% of the total staff constant from one year to the against 33%) but it has fallen 42.9% 20% next. from the 74% figure reached in 2018.

The rate of access to training, i.e. the number of staff members who have completed at least one training course, as a proportion of total staff 75.71% numbers as at 31 December 2019, is 75.71%, up from 71.4% in 2018. This reflects the increased efforts that the Constitutional Council has directed to this area over the past two years.

— VISITOR NUMBERS — — THE CONSTITUTIONAL COUNCIL ON THE On 21 and 22 September 2019, during the INTERNET AND SOCIAL MEDIA — 35th staging of the European Heritage Days, more than Between 1 September 2019 and 31 August 2020, the Constitutional Council’s Internet site received, on average 10,000 people visited the Palais-Royal and were able to go behind the scenes of the 307,780 10,057 Constitutional Council, the Council of visits per visites State and the Ministry of Culture. month per day

1,602 views of the online people (school groups, students, legal professionals, members of the general 32,843 public) visited the Constitutional Titre VII journal Council between 1 September 2019 and 13 March 2020. They included

As at 31 August 2020

29,843 131,738 international150 visitors.

followers followers The admission of visitors had to be suspended from Spring 2020 as a result of the public ANNUAL REPORT 2020 ANNUAL health situation. 113 THE OPERATIONS OF THE CONSTITUTIONAL COUNCIL

The College The President of the Cabinet Constitutional Council Chief of Staff

General Secretariat The Secretary General who, other than in his juridical functions, is supported by the Deputy Secretary General, the head of the Administrative and Financial Department.

LEGAL DEPARTMENT This Department assists, under the direction of the Secretary General, in EXTERNAL RELATIONS DEPARTMENT the essential tasks of the Constitutional Council, providing high-level support to This Department is responsible for the the President and other Members in the Council’s relations with foreign courts, preparation and drafting of all its decisions. universities and other institutions, and for A registry is attached to the Legal certain of the Council’s publications. It also

Department. acts as the general secretariat for the THE COUNCIL CHANGES AT Association of Francophone Constitutional DOCUMENTATION AND Courts, the ACCF (Association des Cours INVESTIGATION ASSISTANCE constitutionnelles francophones). DEPARTMENT It assists all the other departments INFORMATION TECHNOLOGY and the College in the processing DEPARTMENT of litigation files, by providing legal This department is responsible for the research and disseminating monitoring design and management of the Council’s reports. It manages and promotes the digital transformation projects. It is Constitutional Council’s documentary required to provide the most helpful holdings, through a library and a digital service possible to all Members and staff of catalogue. the Constitutional Council in the handling of digital tools. COMMUNICATION DEPARTMENT This department is responsible for ADMINISTRATIVE AND FINANCIAL promoting the institution’s image and SERVICES DEPARTMENT influence. It puts the Council’s activities This department is responsible for the on public view through the production of administrative management of Members and various communication media, the staging staff, the preparation and implementation of events and the use of its digital tools. of the budget, members’ secretariat It is also responsible for relations with requirements, logistics, building maintenance, the press. works, the safety and security of persons and property, and general stewardship. 114 Continuity in the Constitutional Council’s operations during the public health crisis

Like DÉCISIONall public andN° private 2019-791 sector organisations,DC the Constitutional Council has had toLoi adjust relative the practical à aspects of the way it goes about itsl’énergie work in order to meet the challenges t would have been unthinkable et au climat to allow any disruption to the of[Conformité the COVID-19 – Constitutional Council’s ongoing epidemic.réserve] performance of its jurisdictional tasks and, in practice, the Council’s legal activityI continued at a steady pace during the period in question. Thus, from mid-March to the end of May 2020, it handed down 16 decisions, including rulings on the QPCs referred to it immediately before the crisis began. Decisions were issued very expeditiously, in particular Decision N° 2020-800 DC on the law extend- ing the state of public health emergency and supplementing its provisions, which was hand- ed down on 11 May, in response to four refer- rals received on 9 May and as late as 2 p.m. on 10 May. President Fabius personally ensured that work could continue under conditions that best safeguarded the health of all Members and staff. In order to ensure compliance with the phys- ical distancing directives, the QPC public hear- ings and Council deliberation sessions during the period were held in the large function room in the Montpensier wing. The rules of proce- dure for the hearings before the Constitutional Council were used, whereby limits were placed on the number of members of the public in the room, with audio-visual broadcasts of the hear- ings being provided continuously throughout ANNUAL REPORT 2020 ANNUAL the period. Lawyers were given the opportunity 115

to appear via videoconference. Special precau- Secretariat departments. The Republican tions were taken to provide participants with Guard continued to provide security services hydro-alcoholic gel and masks. at the premises. For its internal operations, the Constitutional Staff working conditions throughout the Council was able to turn to secure remote work- period were the subject of regular discussions ing solutions that had been rolled out in previ- with staff representatives. ous years by its IT department. In addition to the Council Members themselves, a large por- tion of the staff of the General Secretariat have thus been provided with tablets. These have enabled the departments to operate by means of teleworking, while work meetings held on the Council’s premises were avoided for sever- al weeks. The Council’s headquarters remained open without interruption, with the Secretary General and his deputy operating in situ to THE COUNCIL’S LEGAL coordinate the work of the various General ACTIVITY CONTINUED AT A STEADY PACE DURING THE PERIOD IN QUESTION CHANGES AT THE COUNCIL CHANGES AT 116 The Constitutional Council’s approach to energy savings and sustainable development

In the DÉCISIONsummer his ambitious plan rests N°of 2019,2019-791 at the on five axes: namely, instigation of President improving the energy Fabius, theDC College performance of the approvedLoi anrelative Energy Savings à building occupied by and Sustainable Development Tthe Council; improving the Council’s Actionl’énergie Plan for the energy performance in its day-to-day Constitutional Council, operations; promoting sustainable et au climat mobility; reducing waste; and promot- for the period 2019- Glass bottles, glass- [Conformité2022. – ing biodiversity. The first objective of this réserve] es, cups and spoons plan is to work towards a 25% reduction in were issued to members the Council’s overall energy consumption. and staff at the end of the The implementation of the plan is being lockdown phase. Extra carafes monitored, under the authority of the Secretary and glasses are available in the meeting rooms, General, by a Sustainable Development Steering for use by visitors. Committee comprising representatives from the The vehicles previously used for members’ various General Secretariat departments. shared transport needs were replaced by two Among the initiatives that have been suc- hybrid vehicles in the summer of 2020. The cessfully completed since the adoption of the Council has funded the installation of electric plan despite the suspension of its implementa- charging stations in the car park of the Louvre tion in the spring due to the health crisis, mention Museum to facilitate their recharging. should be made of the replacement of almost all At the beginning of the summer of 2020, of the Council’s lighting fixtures with latest-gen- two beehives were installed on the roofs of the eration LED lights. This initiative may achieve Constitutional Council. electricity savings by a factor of 3 to 5, depend- In addition to these initial concrete results, ing on the lighting sources concerned. preparatory work for larger-scale projects has The Council’s practice of purchasing plastic progressed, in particular to improve the overall utensils was discontinued at the beginning of thermal management of the building with a view 2020. Six drinking fountains have been installed to saving energy. on the various floors of the Council building, providing cold, hot and sparkling water to all. ANNUAL REPORT 2020 ANNUAL 117

IIIII Brigitte Pastouret

women and men of the Con- Constitutional Council, thus THE COUNCIL CHANGES AT Head of the Administrative stitutional Council by con- promoting biodiversity. The and Financial Services Department and Deputy ducting a workshop in the next areas to be addressed Secretary General of autumn of 2019 to present include sustainable mobility, the Constitutional the initiative. Discussions eco-responsible behaviour, Council during the workshop were and energy consumption rich and fruitful. monitoring. A steering committee com- This participative approach prising representatives from creates a genuine dynamic, Since 2019, under each department meets guaranteeing the rapid im- the leadership of the Pres- every two months to over- plementation of the five axes ident of the Constitutional see the implementation of of the plan and the adoption Council, the General Secre- the various measures. The of new eco-friendly practices tariat has been implement- first results can already be to meet the challenges of ing the Energy Savings and seen in terms of the energy environmental protection. Sustainable Development performance of the building, On the strength of the ar- Action Plan, which is one with the widespread use rangements that have been of the priorities for the of LED light bulbs. With put in place, the Constitu- coming years. regard to waste manage- tional Council is approaching To this end, the Secretary ment, the installation of this ecological transition General wished to prioritise drinking fountains has made with composure, knowing a number of measures to it possible to eliminate that our collective effort is be implemented as soon single-use plastics. Finally, worth more than the sum as possible. He decided to two beehives have been of all our individual efforts.” enlist the support of all the installed on the roofs of the 118 EVENTS

The The 11th annual Salon 11th du Livre Juridique (Legal annual Salon Book Fair), which was du Livre held in the Constitutional Juridique Council’s premises on 12 October 2019, was as in (Legal Book previous years, a highly Fair) successful event. With more than 1,600 visi- 12 tors, this event, which was jointly In addition, this fair is an occasion for the OCTOBER 2019 hosted by the Club des Juristes and awarding of prizes for legal books and legal the Council, gave legal professionals and stu- practice. dents the opportunity to meet prominent legal This year, Olivier Beaud’s book, La République experts and authors and to have their works injuriée, histoires des offenses au Chef de l’État de autographed. la IIIe à la Ve République (The reviled Republic, The day was enlivened by a number of stories of offences against the Head of State from events. A treasure hunt enabled the lucky the 3rd Republic to the 5th Republic) received winners to claim numerous prizes, while at the legal book prize from Claire Bazy Malaurie, the same time exploring the legal publishers’ a member of the Constitutional Council, and stands and the works on display in a game-ori- François Sureau, President of the Jury. The ented atmosphere. And, as is the case every legal practice book prize was awarded to Lionel year, lucky draws were held in the morning Ascensi for Droit et pratique des saisies et confis- and the afternoon for students to win packs cations pénales 2019/2020 (The law and practice of books that would be useful throughout their of criminal seizures and confiscations 2019/2020). years of study.

The first part of the book looks A richly at the architectural harmony illustrated of the Palais-Royal which, in book on the addition to the Constitutional Council, houses the Council of Constitutional State, the Ministry of Culture Council and the Comédie-Française. In this way, it helps people to appre- ciate the impact that history has on SEPTEMBER those who work there. The second part 2020 of the book acquaints us with the functions and operations of the Constitutional Council by explaining the full extent of its powers: mon- itoring the extent to which laws comply with the n September 2020, a richly illustrated book Constitution; assessing the regularity of national on the Constitutional Council was published polls such as the presidential election and the Iby Les Éditions du patrimoine. Entitled Le legislative and senatorial elections; and mon- Conseil constitutionnel au Palais-Royal (The itoring the integrity of referendum exercises. Constitutional Council at the Palais-Royal), The book sets out details of the Council’s com- this book covers both the history and the pres- position, its organisational structure and the ent-day life of the institution, in text and images. different types of decisions it issues, including he Constitutional Council was established in T the decisions taken since 2010 in the framework 1958 by the Constitution of the 5th Republic of the procedure known as the priority pre- and, since that time, has had its headquarters liminary ruling on the issue of constitutionality

ANNUAL REPORT 2020 ANNUAL in the Montpensier wing of the Palais-Royal. (QPC). 119

The Découvrons notre Constitution Competition

he Découvrons 2020 to select the best projects for the notre Constitution 2019-2020 school year. The winners includ- (Discovering our Constitution) ed the Year 6 “Juno” class from the Moulin competition, which was Blanc secondary school in Saint-Amand-les- launched in 2016, aims to raise Eaux (Lille school district) for its video entitled Tawareness among pupils, from primary to high Découvrons le préambule de la Constitution du school, as to the rights and freedoms that are 27 octobre 1946 (Let’s discover the Preamble to guaranteed by the Constitution and the key the Constitution of 27 October 1946). A group principles on which the Republic is based. of 3rd year pupils at the Jean Rostand second- In order to give the contestants total freedom ary school in La Rochefoucauld-en-Angoumois with regard to both form and content, no sub- (Poitiers school district) were awarded a prize ject is prescribed and any medium may be used. for their video clip Même Avenir (A Shared The work can be based on the text of the 1958 Future). The members of the jury also gave a Constitution itself, or on the Declaration of the special commendation to the Educational Unit Rights of Man and of the Citizen of 1789, the for Newly Arrived Non-Native French Speaking Preamble to the 1946 Constitution or the 2004 Pupils at the Henri de Toulouse-Lautrec sec- Environment Charter. Pupils can express them- ondary school (Toulouse school district) for its CHANGES AT THE COUNCIL CHANGES AT selves through a text, a report, a film, a poster, project entitled Au nom de la loi, j’écris ton nom, an artistic creation or a website. Constitution (In the name of the law, I write your In view of the nationwide measures taken name, Constitution). A prize was also awarded in response to the COVID-19 epidemic, the to a final year class of the La Croix Blanche national jury, comprising members of the secondary school in Bondues (Lille school dis- Constitutional Council and members of the trict) for its comic strip entitled Dessine-moi Directorate-General for School Education, met la Constitution (Draw me the Constitution). as a restricted committee on Tuesday, 30 June

3 Ms Dominique Lottin met with pupils from the DECEMBER La Croix Blanche secondary school in Bondues 2019 Ms Dominique Lottin was welcomed to the school by the Principal, Mr Mazars, and Mr Henry, a school inspector representing the Chief Education Officer of the Lille school district, Ms Valérie Cabuil. Addressing some 140 final year pupils, Ms Lottin began by presenting an overview of the constitutional principles on which the Republic is based and the work undertaken by the Constitutional Council. She then conducted a workshop with 10 pupils who were designing a project to be entered in the Découvrons notre Constitution competition. This workshop enabled the pupils to further their understanding of the rights and freedoms that are guaranteed by the Constitution and to direct Watch the video online questions to Ms Lottin about the ways in which constitutional reviews are bit.ly/rencontrelyceens carried out. 120

As a member of numerous international bodies, the Constitutional Council participates in an intense dialogue between constitutional courts. Again this year, the President and members of the Council met several times with their counterparts around the world. These interactions enable the Council to constantly benefit from the experienceinterna of foreign courts. This chapter provides an overview of these exchanges, which are essential for the protection of fundamental rights. relations ANNUAL REPORT 2020 ANNUAL 121

INTERNATIONAL internaRELATIONS relations 122

It is impossible, Mr President, to discuss 2020 without thinking about the COVID- 19 pandemic. How was this situation expe- rienced at the Constitutional Council of Senegal? Senegal wasn’t spared by the pandemic. There was a rapid increase in the number of individuals who tested positive for the corona- virus. At the Constitutional Council, all our actions were based on the principle of precau- tion. From the very first positive test result, and even before state of emergency was declared, we postponed some planned events, particular- ly the seminar on “The exception of unconsti- tutionality”. We cancelled others, for example the meeting of the Board of the Association of Francophone Constitutional Courts, the ACCF (Association des Cours constitutionnelles fran- cophones), which Senegal had been due to host on 29 and 30 March 2020. So far as the Constitutional Council’s inter- nal operations were concerned, we used tele- work methods wherever possible. IIII I You’ve just mentioned the Board meeting of the Association of Constitutional Courts in Francophone Countries. What Papa Oumar position does Senegal occupy on the Board? Sakho At the 8th Triennial Congress of the Association des Cours constitutionnelles des President of the Pays ayant en partage l’usage du français, the ACCPUF, which was renamed the Association Constitutional Council of des Cours constitutionnelles francophones Senegal (ACCF) at that Congress, the Constitutional Council of Senegal was unanimously elected to the position of Vice-President of our associa- tion. The Constitutional Council of Senegal is set to host and chair the next ACCF Congress, in 2022. We have already begun preparations for this important meeting.

INTERVIEW Is the Constitutional Council of Senegal involved in any cooperative arrangements apart from the ACCF? The Constitutional Council of Senegal is a founding member of the Conference of Constitutional Jurisdictions of Africa (CCJA), the African space of constitutional justice desired by the African Heads of State. Our institution also has close ties with similar jurisdictions such as the French Constitutional Council. Beyond their common membership of

ANNUAL REPORT 2020 ANNUAL the ACCF, these two institutions have always enjoyed friendly, cooperative relations. Two 123

members of our recently created Research and this situation, the Constitutional Council has Documentation Department carried out a work- undertaken a number of initiatives, aimed, in ing visit to the French Constitutional Council in particular, at the Bar Association, by conducting order to immerse themselves in its rich, exten- information seminars. sive experience in the field of constitutionality It should be noted, in the same vein, that review, in particular with regard to priority pre- the Constitutional Council, in its desire to reach liminary rulings on the issue of constitutionality. out to the academic world, has set up a prize I would like to take this opportunity to reiterate for a thesis on subjects falling within its field of my thanks to President Laurent Fabius. competence.

You referred to priority preliminary rul- Has the Senegalese Constitutional ings on the issue of constitutionality. Do Council had occasion to rule on any you employ this method of reviewing the societal issues? constitutionality of legislation? One might reasonably have expected the When the Constitutional Council was cre- Constitutional Council to receive frequent ated in 1992, the Senegalese Parliament set referrals in this period when managing the up, alongside the ex ante review that already COVID-19 pandemic has led to measures existed, an ex post review in the form of what is which restrict people’s freedoms. That hasn’t known as the “exception of unconstitutionality”. occurred. There have been no appeals against Through this type of review, access to the con- the restrictions during this public health emer- stitutional court is open to the ordinary citizen, gency. since it is possible for a litigant, when the settle- ment of a dispute is subject to an assessment of The current scene in Senegal is dominated the constitutionality of the provisions of a law by the debate on what some people regard or the terms of an international agreement, to as the privatisation of the public maritime raise an objection of the grounds of unconstitu- domain and assaults on the environment tionality before the Supreme Court or a court caused by uncontrolled construction of appeal. on the coast. Does the Constitutional In view of the very general terms used by Council have a role to play in dealing the Parliament to state the requirements for with these problems? the initiation of this ex post review procedure, Since the revision of the Constitution in it may be inferred that any litigant who intends 2016, the Senegalese Parliament has introduced RELATIONS INTERNATIONAL to raise this exception does not have to allege new rights for the citizenry. These include rights an infringement of a fundamental right; it is suf- over natural resources, which must be devel- ficient for him or her to show that the law appli- oped in a manner that guarantees transparency cable to his or her dispute is at odds with the and environmental sustainability; the right to a Constitution. healthy environment; and the right to require State and local authorities to preserve the coun- Persons appearing before the courts in try’s land-related heritage. A law that infringed France seem to have a certain partiality any of these rights could be struck down by the for the QPC. Can the same be said, with Constitutional Council. regard to the ”exception of unconstitu- tionality”, of persons appearing before What lies ahead, Mr President, for the the courts in Senegal? Constitutional Council? Referrals to the Constitutional Council by On the domestic front, the Council will, of way of “exception of unconstitutionality” are course, in addition to its traditional tasks, con- still very rare. That is definitely why the scope tinue its awareness-raising activities in order of application of the “exception of unconstitu- to increase citizens’ sense of ownership of the tionality” was extended when the Constitution Constitution. was revised in 2016. The “exception” (which At the international level, the Council will could initially be raised only before the Council continue or initiate efforts to promote bilateral of State or the Court of Cassation and, since cooperation and work to raise the profile of the reform of 2008, before the Supreme Court) the cooperating organisations of which it is a can, in fact, now be raised before the appeal member. courts. Nevertheless, despite the adoption of this less restrictive approach, there has been no noticeable increase in referrals. In view of 124

JAPAN

The 10th Franco-Japanese Law Days were held in Tokyo from 16 to 18 September 2019, organ- ised by the Société de législation comparée (the Society for Comparative Law) in partnership with the Société franco-japonaise de la science juridique (the Franco-Japanese Society for Legal Science). Academics and legal practitioners from both countries engaged in an exchange of views on the “balance of interests”. Ms Nicole Maestracci, a member of the Constitutional Council who was invited to this symposium, spoke on “The temporal effects of the declaration of unconstitutionality by the Constitutional Council“.

GERMANY

In the framework of the regular dialogue with the Karlsruhe Court, two meetings between Laurent Fabius, President of the Constitutional Council, and Andreas Vosskuhle, President of the Federal Constitutional Court, took place in the past year. The presidents of the two courts took part in the solemn ceremony marking the start of the academic year, held on 18 October 2019 at the Faculty of Law of Humboldt University in Berlin. They later exchanged views in Paris at a conference-debate hosted on 5 February 2020 by the Franco-German International Committee of the Paris Bar on “Contemporary challenges of constitutional justice”. Andreas Vosskuhle was succeeded as President of the Karlsruhe Court by Stephan Harbarth on 15 May 2020. On 18 November 2019, a few months before his election, Mr Harbarth, in his capacity as Vice-President of A video of the conference-

meetings in 2019-2020 meetings debate may be found the German Court, on the Constitutional had been received Council’s website by President Fabius at the Constitutional bit.ly/fabiusvosskuhle

ANNUAL REPORT 2020 ANNUAL Council. 125 become acquainted with the workings of the Constitutional Council. This meeting also afforded an opportunity to share experiences on the time limits for handing down judgments within the two courts and on the ex ante con- stitutional review, a mechanism that was intro- CAMBODIA duced in Turkey in 2017 in the wake of a consti- tutional reform.

On 28 and 29 October 2019, at the invitation of the Constitutional Council of the Kingdom of Cambodia, the Association of Francophone Constitutional Courts held its board meeting in Siem Reap under the chairmanship of Richard Wagner, the Association’s new President and Chief Justice of Canada. Corinne Luquiens SLOVAKIA represented the French Constitutional Council, which is an ex officio member of the Association’s board. Discussions focused on an A delegation from the Slovak Constitutional assessment of recent activities, new orienta- Court, led by the President of that Court, Mr Ivan tions for the Association and the scheduling of Fiačan, was received by President Fabius in the upcoming meetings. Constitutional Council on 19 February 2020. The meeting was arranged following the renewal of the bench of the Slovak Court in October 2019, and in response to Mr Fiačan’s interest in initiating coop- eration with France. Discussions between the two presidents focused on the workings of their insti- tutions and their growing role in the defence of AUSTRIA fundamental rights and freedoms.

On 16 January 2020, President Fabius wel- The Association comed Mr Christoph Grabenwarter to the of Francophone Constitutional Council. Mr Grabenwarter, who Constitutional Courts RELATIONS INTERNATIONAL was then the Vice-President of the Austrian The Association of Francophone Constitutional Court and was subsequent- Constitutional Courts (ACCF), which ly appointed as President in February 2020, was established in 1997 at the initiative availed himself of this bilateral meeting to revi- of the French Constitutional Council, talise cooperative ties with the French Council brings together 48 Constitutional and invite President Fabius to the celebrations Courts and analogous institutions marking the 100th anniversary of the Austrian from Africa, Europe, the Americas and Asia. The Supreme Court of Canada Court, scheduled to take place in Vienna in the is chairing the Association until 2022, autumn of 2020. at which time it will pass the baton to Papa Oumar Sakho, President of the Constitutional Council of Senegal. The ACCF, whose aim is to promote the further development of the rule of law, arranges regular meetings between its members in order to foster the sharing of ideas and experiences. It also organises TURKEY training and carries out legal and technical cooperation activities. Against this background, Canadian Chief During a stay in Paris, the President of Justice Richard Wagner, the current the Turkish Constitutional Court, Mr Zühtü President of the Association, has ensured Arslan, was received by President Fabius at that his three-year program gives priority the Constitutional Council on 30 January to the outreach activities undertaken by 2020. Re-elected as President of the Turkish the Courts and the Association’s influence Court in 2019, President Arslan sought to at an international level. 126

From left to right: Mr Linos- Alexandre Sicilianos, President of the European Court of Human Rights until May 2020, Ms Chantal Arens, President of the Court of Cassation, Mr Bruno Lasserre, Vice-President of the Council of State, Mr Laurent Fabius, President of the Constitutional Council, and Mr François Molins, General Prosecutor of the Court of Cassation.

Conference of Presidents of Supreme 12 AND 13 SEPTEMBER Courts of the Council of Europe 2019

On 12 and 13 September 2019, a conference of Presidents of Supreme Courts of Member his con- Constitutional Council’s premises on the States of the Council of Europe ference, afternoon of Thursday 12 October and was was held in Paris, in the context which was chaired by a member of the Council, Ms Nicole of the French presidency of the co-hosted Maestracci. Another member of the Council, byT the Constitutional Mr Michel Pinault, served as the Rapporteur- Committee of Ministers of Council, the Council General for the workshop. Mr Linos-Alexandre the Council of Europe. of State and the Court Sicilianos, President (until May 2020) of the of Cassation, in collab- European Court of Human Rights, honoured oration with the Ministry this workshop with his presence. for Europe and Foreign Affairs, While not disregarding the different fea- brought together several representa- tures of individual national legal systems, this tives of the Supreme Courts of all the Member conference made it possible to reach some States. consensus views on the interpretation of Focusing on dialogue between judges, the the European Convention on Human Rights. conference was structured around three It was an opportunity to reaffirm the impor- themes: the right to an effective remedy tance of the role and cooperation of national before an independent and impartial judge, supreme courts, among themselves and with the relationship between national courts and the European Court of Human Rights. the European Court of Human Rights, and The gathering closed on Friday 13 September freedom of expression in the context of the with presentations by the Minister of Justice, Ms protection of private and family life. Nicole Belloubet, and the Secretary General of The first of these themes was dealt with the Council of Europe, Mr Thorbjørn Jagland. in a workshop which was conducted in the ANNUAL REPORT 2020 ANNUAL 127 his informal network, which Protection Act, namely the need to address was set up in 1999, comprises the impact of new digital practices and the the Portuguese Constitutional harmonisation of standards that apply at the Court, the Spanish Constitutional European level. TTribunal, the Italian Constitutional Court The discussions made it possible, through a and, since 2017, the French Constitutional comparative approach, to highlight the obliga- Council. It aims to meet on a yearly basis to tion common to the four constitutional courts: discuss a legal subject of shared interest as the obligation to guarantee the protection of well as recent developments in case law. This fundamental rights while taking account of third meeting was hosted by the Portuguese changes in society. Constitutional Court and focused on one of the major themes currently facing constitu- tional courts: “Constitutional justice in an age of technological change”. The first topic to be discussed was “Genetics, the individual and the family”. Mr Michel Pinault gave a presenta- tion on “end of life” issues, with special focus Mr Laurent Fabius, on the ways in which the law deals with eutha- President of the nasia and assisted suicide. Constitutional Council, In a second phase of the meeting, each together with Council members of the constitutional courts gave a presenta- Ms Corinne Luquiens and tion on an emblematic decision it had hand- Mr Michel Pinault, took part in the ed down on “privacy and social control”. 3rd “quadrilateral” meeting of the During this session, Ms Corinne Luquiens Romance-language Constitutional outlined the issues that had been considered Courts which was held in in Constitutional Council Decision No 2018- Lisbon from 10 to 12 765 DC of 12 June 2018 on the Personal Data October 2019.

10 TO 12 OCTOBER 3rd meeting of the Romance- 2019 language Constitutional Courts, INTERNATIONAL RELATIONS INTERNATIONAL Lisbon

In the foreground, presidents of the courts (from left to right): Giorgio Lattanzi, Italy; Juan José González Rivas, Spain; Manuel da Costa Andrade, Portugal; Laurent Fabius, France. 128

IIIII Marta Cartabia President of the Italian Constitutional Court ANNUAL REPORT 2020 ANNUAL 129

THE NOTION OF THE REPUBLIC IN THE ITALIAN CONSTITUTION

taly is a democratic of the imminent elections, another lieutenancy Republic.” Those decree, Decree No 98 of 1946, had established are the opening that it would be up to the people to decide, by words of Article 1 means of a referendum, on the institutional of the Italian form of the State (republic or monarchy). Constitution. The This was the most delicate and controver- Republic“I was born before its Basic Charter was sial choice of all the institutional issues. It was adopted: the founding act of the Italian Republic a choice that divided the population and the was the referendum of 2 June 1946, when the political forces themselves, which nevertheless Italian people were asked to vote directly on the acknowledged that the sovereign who reigned choice between the monarchy and the Republic. during the Fascist period had exercised “objec- It chose the latter. tive responsibilities”, as Enrico De Nicola, pro- Elections for the Constituent Assembly were visional head of state during the constituent held on the same day, and one of its tasks would period, put it. RELATIONS INTERNATIONAL be to draft the Constitution. It began work on This led to the decision to leave the last word 25 June 1946, bound by the requirement to to the Italian people. The chosen mode of vot- carry out the will of the people, as expressed ing, universal suffrage, included women, who through the referendum. thus participated in a political consultation for A choice was thus made between a monar- the very first time. chy and a republic, and only afterwards was the In the referendum held on 2 June, the Constitution drafted. majority chose the Republic. At its sitting of How did this situation come about? How 26 June 1946, the President of the Constituent can one explain this sequence of events? Assembly confined himself to formally taking The explanation lies partly in the context of note of the advice received from the Court of the transition that followed the fall of the fas- Cassation concerning the result of the popular cist regime, during the so-called “lieutenancy” consultation, which “solemnly enshrined the period that lasted about two years (from June form of republican government, a form which 1944 to May 1946). It was then that Vittorio had been chosen by the Italian people through Emanuele III, who had reigned during the an act of sovereign will”. Immediately after- two decades of fascism, agreed to hand over wards, and by a large majority, the Constituent all powers to his son Umberto, while retaining Assembly elected Enrico De Nicola as the pro- his royal title. visional Head of State. A first lieutenancy decree, Decree No 151 of The historical and institutional context of 1944, entrusted the Constituent Assembly with this pro-Republic choice also explains the spe- any decision regarding the future constitution- cial legal regime of the republican principle, al system of the Italian State. However, in view one which is subject to special guarantees and is //... 130

shielded from the power of constitutional revi- Republic is a term charged with history and sion. endowed with great semantic richness. The The word “Republic” is the defining, essential Italian Constitution itself uses the term in several element of the text of the Italian Constitution. different meanings. Indeed, it appears in the first and last sentences The first, and narrowest, meaning of the of the Fundamental Charter, drawing an ideal arc concept of Republic, relates to the characteris- that encompasses and unifies the entire constitu- tics of the Head of State. In this first sense, the tional architecture. Republic is the form of State that is opposed As noted above, Article 1 begins with the to the monarchy, not only in the recent history affirmation that “Italy is a democratic Republic”, of Italy, but also, since ancient times, in many while the concluding Article of the Constitution, political communities. Article 139, states that “the republican form can- not be subject to constitutional revision”. The republican form thus serves to define "The republican form thus Italy’s constitutional identity. That is why it is deemed to be a definitive, irreversible choice, serves to define Italy’s inscribed in an “eternity clause”, as it is termed in constitutional identity" other systems. Legally speaking, this means that the republican form cannot be changed, not even through a constitutional revision. The Republic having been established by an act of the constit- As we can read in the first pages of the Prince uent power, it cannot be modified by any of the of Machiavelli: “All States (...) are republics or constituted powers: the republican principle is principalities”. considered to be a “supreme principle”. In a Republic, the Head of State derives his From the time of the first authoritative com- legitimacy from the elective principle and his mentaries, the constitutional notion of the repub- term of office is a temporary one; whereas in a lican form has been inseparable from the demo- monarchy, accession to the throne is, as a rule, cratic form of government, as Article 1, which hereditary and the king holds this office for life. speaks of the “democratic Republic”, makes In Italy, in accordance with this first and most clear. It follows that the guarantee of inviolabil- limited sense, the Head of State is a President ity extends to the adjective “democratic”, which who is elected by the two chambers meeting in describes the form of the State. From a historical a joint session, along with the representatives point of view, in Italy, the Republic and democ- of the Regions. The President remains in office racy were born at the same time. for a period of seven years, as provided for in The Italian Constitutional Court has devel- Articles 83 and 85 of the Constitution. oped a similar interpretative approach. In its case Nevertheless, the Constitution uses the law, it has affirmed and reiterated on several occa- word “Republic” in a second, broader sense, sions that “the Italian Constitution contains cer- referring to all the public authorities that make tain supreme principles that cannot be subverted up the entire system. or modified in their essential content, even by Article 114 of the Constitution states: constitutional revision laws”. The first of these “The Republic is made up of Municipalities, limits to constitutional revision is specifically the Provinces, Metropolitan Cities, Regions and republican principle, as provided for in Article the State”. This formulation echoes the fun- 139. However, it is also necessary to include damental principle contained in Article 5, the principles that “belong to the essence of the which states that “the Republic, one and indi- supreme values on which the Italian Constitution visible, recognises and promotes local autono- is based” (as stated in Decision No 1146 of 1988), my”. From this perspective, the Republic and at the very forefront of which is the democratic the State cannot be understood as being one principle, followed by the principle of equality and the same thing. The Republic is a broad- and the inviolable rights of the individual, for er and richer subject comprising the central example. and peripheral workings of the State along But what is meant by the word “Republic”? with other subjects, including those that are endowed with autonomy. ANNUAL REPORT 2020 ANNUAL What do we understand by “republican form”? 131

There is a sense of harmonious agreement to relationship and the State-community relation- the notion of Republic in the Italian Constitution. ship. At the root of any organised institutional That is why the text of the Constitution provides form is first and foremost a social and political for spaces of autonomy, both local and function- community, which is in and of itself a foundation- al, that are strewn with procedures and connec- al element. In this sense, the idea of the Republic tions which foster unification. is informed by Cicero’s definition of res publica Recently, in Decision No 118 of 2015, the as res populi (De re publica I, 39): everything that Constitutional Court noted that “the unity of the concerns the life of the people belongs to the pub- Republic is one of those elements so essential to lic sphere. Cicero adds a significant clarification: constitutional order that they are excluded from “the term ‘people’ does not mean an assemblage the power of constitutional revision”. At the same of men somehow grouped together in a herd, but time, and in the same decision, the Court stressed rather a large group of men bound together by that “the republican order is based on principles their adherence to the same law and by a certain that include social and institutional pluralism community of interests”. and territorial autonomy, as well as receptiveness It is to this model of life of a shared republi- to supranational integration and international can identity that the Italian Constitution refers, order; but such principles must be developed when it recognises the inviolable rights of each solely and exclusively within the framework of person and at the same time requires each per- the Republic”. son not only to respect the laws, but also to fulfil It is to this varied assortment of public subjects the duty of fidelity to the Republic (Article 54) - made up of the Government and the Regions, and, above all, to carry out the duties of polit- Agencies and Municipalities, Ministries and local ical, economic and social solidarity (Article 2). authorities - that the Constitution entrusts the A Constitution in which the people are not duty to achieve a wide range of social objectives only the object of political decisions that con- drawing on those set out in the second paragraph cern the life of the community, but also play of Article 3, according to which “it is the duty of a part in their adoption and are the authors of these decisions. A Constitution in which the people are distinguished by their "Republic is a term charged with plural character, through the social and history and endowed with great political structures in which the person- ality of each person is developed and RELATIONS INTERNATIONAL semantic richness" through which citizens can “by demo- cratic means, contribute to the determi- nation of national policy” (Article 49). the Republic to remove obstacles of an economic Associations (Article 18), linguistic minorities and social nature which, by limiting the freedom (Article 6), religious denominations (Articles 7 and equality of citizens, prevent the full develop- and 8), families (Article 29), schools and univer- ment of the individual and the effective participa- sities (Articles 33 and 34), trade unions (Article tion of all workers in the political, economic and 39), political parties (Article 49), cooperatives social fabric of the country”. (Article 45), enterprises (Article 41), are all rec- It was precisely when this Article was approved, ognised by the Constitutions as part of the social on 24 March 1947, that the Constituent Assembly fabric, contributing to society as a whole. decided on the choice of the most appropriate ter- The life of the Republic that springs from minology and rejected an amendment designed the fabric of the Constitution is very much to replace the term “Republic” with “State”. like what Tocqueville described in his travels in In so doing it stressed that these were not two America: a social body without respite, in a state equivalent words, since the word “Republic” was of effervescence both in political life and in civil intended to refer to “all the activities and func- society, involved in a continuous movement, tions of the State as such, as well as of the Regions where “all men march at the same time towards and other public authorities”. the same goal; but not everyone is obliged to And in an even broader sense, the word march there in on the same path”. “Republic” refers to the entire political commu- nity, which includes both the State-individual September 2020 Document published by the Constitutional Council 2, rue de Montpensier 75001 Paris

Publication Director: Laurent Fabius Editorial coordination: Sylvie Vormus, Florence Badin Design and production: Agence Cito Translation: Corporate Editions Printing: Frazier Illustrations: Danilo Agutoli (p.20, p.23, p.32, p.106, p.108, p.122, p.128) Photos credits: Eric Feferberg / AFP Photo (p. 4, p. 9) • Geoffroy Van der Hasselt (p. 12, p. 26, p. 47, p. 55, p. 67, p. 75, p. 85, p. 96-97, p. 114-115, p. 117, p. 118, p. 119) • Joël Saget / AFP Photo (p. 16) • Tripelon-Jarry / AFP Photo (p. 39) • FatCamera / iStockphoto.com (p. 43) • Laurence Dutton / iStockphoto. com (p.45) • Bruno de Hogues / AFP Photo (p. 49) • nazar_ab / iStockphoto.com (p. 53) • Martin Bertrand / Hans Lucas / AFP Photo (p. 57) • Benoît Teillet (p. 59) • Januar / AFP Photo (p. 65) • urbazon / iStockphoto.com (p. 69) • Kenzo Tribouillard / AFP Photo (p. 71) • gremlin / iStockphoto.com (p. 73) • Semen Salivanchuk / iStockphoto.com (p. 77) • Pierre Franck Colombier / AFP Photo (p. 81) • JohnnyGreig / iStockphoto. com (p. 83) • Jeff Pachoud / AFP Photo (p. 89) • Fredérick Florin / AFP Photo (p. 91) • All rights reserved (p. 126, p. 127)

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