Conseil constitutionnel annual report 2017 i Proclamation of the results of the election of the President of the Republic, 10 May 2017 Conseil constitutionnel Annual Report 2017 2 INTERVIEW Laurent Fabius President of the Conseil constitutionnel 2017, an intense year 4 THE YEAR AT contents THE CONSEIL CONSTITUTIONNEL 8 2017, ELECTION YEAR 11 3 Conseil constitutionnel - Annual Report 2017 CONSTITUTIONAL DECISIONS REVIEW EX ANTE 17 2016-2017 PRIORITY PRELIMINARY RULINGS ON THE ISSUE OF CONSTITUTIONALITY 39 THE WOMEN AND MEN OF THE CONSEIL 58 INTERNATIONAL ACTIVITY 65 A FEW OF THIS YEAR’S EVENTS 71 4 INTERVIEW Laurent Fabius President of the Conseil constitutionnel 2017, an intense year 5 Conseil constitutionnel - Annual Report 2017 2017 was a very busy year for elections. What impact did this have on the schedule of the Conseil constitutionnel? Laurent Fabius: For the first time since 1958, the presidential, legislative and sen- atorial elections were held the same year. For these three elections, the Conseil con- stitutionnel has important duties. Article 58 the organic law dated 25 April 2016. of the Constitution states that “The Conseil Firstly, to avoid certain disadvantages of constitutionnel shall ensure the proper past procedures, sponsorships were to conduct of the election of the President of be sent by post only; no hand deliveries the Republic”. This mission covers duties to to the Conseil headquarters were allowed. be carried out before, during and after the Secondly, we had to publish the sponsor- vote: an opinion on the preparatory texts ships as they arrived, twice weekly. We did issued by various authorities in charge of this on a dedicated website specifically organising and monitoring elections; re- designed for the election period. The public ceipt, validation and publication of can- was very interested: nearly 1.3 million visits didates’ “sponsorships”; establishment of were recorded. As we commented in our the official list of candidates; supervision “observations on the presidential election”, of compliance with election procedures; published in mid-July, these organic mod- examination of claims; announcement of ifications did not have any significant neg- the results of the first and second rounds; ative consequences on the total number of finally, review of any litigation concerning sponsorships addressed to the Conseil, as campaign accounts. We benefitted from 14,586 sponsorship forms were received the help of assistant rapporteurs from the – of which, 14,296 were validated –, com- Conseil d’État (Council of State) and the pared to about 15,000 in 2012. As for the Cour des comptes (Court of Audit), who number of candidates, there were about as provided assistance for litigation con- many as for previous elections: eleven can- cerning the legislative elections – we re- didates in 2017; ten in 2012; and twelve in ceived nearly 300 petitions – as well as 2007. Overall, the presidential election the senatorial elections. In this election progressed smoothly. year, the Conseil’s greatest challenge was to be both quick and effective: I believe we What significant jurisprudential decisions have achieved our goal. These many missions, been made by the Conseil constitutionnel since added to our “usual” tasks, were fully ac- the last annual report? complished by the Conseil constitutionnel. L.F.: Ex ante decisions were made on pe- 2017 was an intense year for the Conseil titions that arose from the final days of the constitutionnel. last administration: the law on transpar- ency, the fight against corruption and the For the 2017 presidential election, the rules for modernisation of the economy; the “21st sponsorships were partially modified. What were century Justice” law; the “media” law; the the effects of these modifications? law on equality and citizenship; the law on L.F.: Two main innovations were introduced the extension of the offence of obstruction – not by the Conseil constitutionnel itself, of access to abortion; the budget law and as it was sometimes suggested, but through the law on financing Social Security. We 6 INTERVIEW also ruled on two major laws from the new When you arrived at the Council, you also legislature: the organic law on confidence in expressed a desire to increase international political life and the law on authorisation to activities. use Ordonnances1 to take measures for the L.F.: Yes, a reciprocal opening of juris- strengthening of social dialogue. With re- dictions, in Europe and internationally, gard to priority preliminary rulings on the is indispensable. This is our objective, for issue of constitutionality (QPC) – we now example, as we develop our relationship review about 80 per year – we rendered with the German Federal Constitutional several especially important decisions in Court in Karlsruhe, which welcomed the particular concerning the offence of reg- college of the Council in October 2016; ularly consulting terrorist Internet sites; they will return the visit in December 2017. administrative searches and seizures in the In addition to strengthening ties with con- context of the state of emergency; surveil- stitutional courts in French-speaking coun- lance and monitoring of wireless transmis- tries (through the ACCPUF association), we sions; and conditions for custody. We have are increasing our contact with the consti- a very short period for review – a maximum tutional courts in Italy, Spain and Portugal: of three months for a QPC; one month or the first meeting will be held at the end as little as eight days for an ex ante review. of October 2017, in Spain. We are deep- These deadlines have been systematically ening the European dialogue with judges met. This means that all of my colleagues from the Court of Luxembourg – where and our teams under the coordination of I travelled last March for the 60th anniver- the Secretary-General had a consider- sary of the Treaty of Rome – and with the able workload this year, and I would like court in Strasbourg. We have a special re- to congratulate them. lationship with the Algerian Conseil consti- tutionnel, which has asked us to share our One of the main focuses of your term as president now seven-year experience with QPCs; concerns the “jurisdictionalisation” of the Conseil they plan to set up a similar mechanism in constitutionnel. How has this manifested itself? Algeria as of 2019. More generally, in our L.F.: This aspect of my work is very impor- work methods, we always take into account tant to me. With this in mind, we have tried considerations of “comparative law”. to improve our writing by making the style of our decisions simpler and giving more depth You have also sought to open the Conseil up on to their grounds, even if that means letting the national level. What are the main advances go of some “immutable” traditions. We have of this past year? increased the extent of oral arguments in L.F.: Indeed, work to inform and teach the QPC cases, creating a direct dialogue be- public about the Conseil constitutionnel tween Council members and the parties. We is essential. To this end, we created, with have also clarified the scope of ourex ante the Ministry of Education, a national review of constitutionality; in all such “DC” competition called “Let’s Discover our decisions (ordinary laws, organic laws, trea- Constitution”, which seeks to raise aware- ties, rules of procedure of the assemblies) we ness among pupils concerning the great now focus specifically on the exact nature principles of our Republic; it was success- of the articles we are ruling on, in order to fully implemented last year and will be held dismiss the notion that the Council is writing again in the fall of 2017. Another initiative a blank cheque covering the constitution- towards greater openness, and to make the ality of all of the provisions that we have not Council a place for meeting and exchanges, examined ex officio. will take place next October 4, anniversary 7 Conseil constitutionnel - Annual Report 2017 of our Constitution, at Palais-Royal: we are website, is an opportunity to share with the organising the first Nuit du droit (“Law widest public possible our jurisdictional Night”), which I hope to extend to all the authority, our operations, and our deci- regions of France in 2018. Several debates sions. Ultimately, we would like to make the are planned for this year with prestigious Conseil constitutionnel a model for a digital guests, for a large audience, on four major Constitutional Court. The Conseil consti- themes of public interest with serious legal tutionnel is opening its door wider every issues at their core – the fight against ter- day to accommodate our citizens: this is rorism and protection of civil liberties; the goal of all of these actions. artificial intelligence; environmental pro- tection; labour law. We have also started important work on digital modernisation, which concerns not only our website but also our work methods. The website will be entirely renovated at the beginning of 2018. We already have a “Conseil consti- 1 tutionnel” app available for free download Ordonnance: a statutory instrument issued by the Council of Ministers in an area of law normally re- on mobile phones and tablets. This annual served for primary legislation enacted by the French report itself, available free of charge on our Parliament. 8 A YEAR AT THE CONSEIL CONSTITUTIONNEL 14,296 VALIDATING SPONSORED CANDIDATES FOR Présidentielle THE PRESIDENTIAL ELECTION 2017, the Internet site The election campaign Between 24 February and 17 March 2017, to the French presidency the Conseil constitutionnel validated the has an official period sponsorships necessary for the establishment during which candidates can be put forward. A list of the official list of candidates for the is published and updated presidential election. twice a week, naming the citizens or “sponsors” who, The organic law dated 25 April 2016 by virtue of their status as introduced two important new features in elected representative have the system for collecting and processing proposed a candidate in the proper form.