Session 1 : Ideological Background of the Constitution, Constitutional Rules and Civil Procedure

Frédérique Ferrand (France) Session 1 : Ideological Background of the Constitution, Constitutional Rules and Civil Procedure 1.1 Keynote Speech on general aspects of the topic Prof. Frédérique Ferrand, Tenured Professor, University Jean Moulin Lyon 3, France International Association of Procedural Law Seoul Conference 2014 1 Session 1 : Ideological Background of the Constitution, Constitutional Rules and Civil Procedure Frédérique Ferrand Keynote Speech Constitution and Civil Proceedings Summary I. Introduction II. Constitution and Access to the Court A. Access to a Court of First Instance B. Is There a Constitutional Right to a Mean of Recourse? III. Constitution and Course of Civil Proceedings A. Institutional Constitutional Procedural Guarantees B. Functional Constitutional Procedural Guarantees IV. Constitution and Transnational Dialogue or Conversation Between Courts V. Conclusion I. Introduction « Une bonne Constitution ne peut suffire à faire le bonheur d’une nation. Une mauvaise peut suffire à faire son malheur »1 : A good constitution is not enough to make the happiness of a nation. A bad one can be enough to make its misfortune. This sensible statement made by a famous French professor of constitutional law (Guy Carcassonne) shows what important role the basic, fundamental law of a country often plays. Concept of Constitution - What is a constitution? What are its form, aims and contents? The concept of a constitution goes back to ancient Greece. Aristotle (384-322 B.C.), in his work of political philosophy Politics2 defines the constitution in the following way: “« one citizen differs from another, but the salvation of the community is the common buiness of them all. This community is the constitution3; the virtue of the citizen must therefore be relative to the constitution of which he is a member ». A constitution can be described as the supreme law of the land. It is mostly located at the top of the legal system and all laws, decrees and orders must be consistent with its principles. However, this highest ranking may be challenged with regard to international treaties4, especially 1 Guy CARCASSONNE, La Constitution, Paris, Seuil, coll. Points, 1996, p. 33. 2 ARITOTLE, Politics, transl. by Benjamin JOWETT, Univ. of Adelaide, webedition published by eBooks@Adelaide. 3 The first sentence of Aritotle’s book Politics contains the following statement: « Each state is a community of some kind » (book 1, first sentence, p. 1). 4 With regard to the ranking of the European Convention on Human Rights (ECHR) in Italy and Spain, see Charlotte GIRARD, « Ce qu’appliquer la Convention en droit interne veut dire – Le rôle des doctrines nationales », in Stéphanie HENNETTE-VAUCHEZ/Jean-Marc SOREL, Les droits de l’homme ont-ils constitutionnalisé le monde ?, Bruxelles, Bruylant, 2011, pp. 125 et seq. On the ranking of EU law and of the ECHR in France, Germany and Austria, see Christophe de ARANJO, Justices constitutionnelles et 2 International Association of Procedural Law Seoul Conference 2014 Frédérique Ferrand (France) those relating to a regional economic institutional integration such as the European Union5, as the European Court of Justice (ECJ) has ruled several times on the ground of the precedence principle6. On the other hand, since the entry into force of the Lisbon justices européennes des droits de l’homme, Étude comparée France-Allemagne, Brussels, Bruylant ed., 2009, pp. 189 et seq and pp. 343 et seq. In France, according to the Constitution, in the domestic legal order, the prevailing norm is the constitution (see e.g. Cass. Ass. Plén., 2 June 2000, No 99-60274 : « la suprématie conférée aux engagements internationaux ne s’appliquant pas dans l’ordre interne aux dispositions de valeur constitutionnelle ») ; international treaties rank before national statutes. In Germany, in the domestic legal order, the highest norm is the Basic Law (constitution), then 2° the general rules of international law and EU law; 3° federal statutes and international conventions such as the ECHR. The main difference between France and Germany is the ranking of the ECHR (2° in France as an international treaty, 3° in Germany). 5 See e.g. the decision given by the French Constitutional Council, 19 November 2004, 2004-505 DC, Traité établissant une Constitution pour l’Europe; see also 27 July 2006, No 2006-540 DC, Loi relative au droit d'auteur et aux droits voisins dans la société de l'information (« 19. Considérant, en premier lieu, que la transposition d'une directive ne saurait aller à l'encontre d'une règle ou d'un principe inhérent à l'identité constitutionnelle de la France, sauf à ce que le constituant y ait consenti ». The Italian Corte costituzionale (sentenza No 232/1989, 21 April 1989) has ruled that primacy of EU law does not apply to fundamental constitutional principles. Also the German Bundesverfassungsgericht hold that the Basic Law has priority over EU law where the “Verfassungsidentität” is at stake, see BVerfG, 22 November 1986, 2 BvR 197/83, Solange II, BVerfGE 73, pp. 339 et seq. Before the change of case law contained in the Solange II judgment, the Bundesverfassungsgericht had ruled (29 May 1974, 2 BvL 52/71, Solange I, BVerfGE 37, pp. 271 et seq.) that the European Community “stills lacks, in particular, a codified catalogue of fundamental rights, the substance of which is reliably and unambiguously fixed for the future and a decision as to whether, at the time in question, the Community law standard with regard to fundamental rights generally binding in the Community is adequate in the long term measured by the standard of the Basic Law with regard to fundamental rights”; “As long as this legal certainty … is not achieved in the course of the further integration of the Community, the reservation derived from Article 24 of the Basic Law applies”. 6 The European Court of Justice (ECJ) has ruled that according to the precedence principle, European law is superior to the national laws, even to those of constitutional origin. The precedence principle applies to all European acts with a binding force. Therefore, Member States may not apply a national rule which contradicts to European law. The ECJ enshrined the precedence principle in the Costa v. Enel case of 15 July 1964 (case 6/64). Since the ECJ has ruled that national constitutions should also be subject to the precedence principle (ECJ, 17 December 1980, Internationale Handelsgesellschaft mbH v. Einfuhr- und Vorratsstelle für Getreide und Futtermittel, case 11/70, No 3 : « in fact, the law stemming from the treaty, an independent source of law, cannot because of its very nature be overridden by rules of national law, however framed, without being deprived of its character as community law and without the legal basis of the community itself being called in question. Therefore the validity of a community measure or its effect within a member state cannot be affected by allegations that it runs counter to either fundamental rights as formulated by the constitution of that state or the principles of a national constitutional structure »), it is a matter for national judges not to apply the provisions of a constitution which contradict European law. However, since the Maastricht treaty introduced a provision stating that the Union shall respect the national identities of the Member States (see now Art. 4.2. TEU and infra under IV), the ECJ has several times referred to the relevance of particular constitutional requirements in Member States in order to justify an exception, see e.g. ECJ, 6 September 2006, C-88/03, Portuguese Republic v. Commission of the European Communities; 13 October 2004, C-36/02, Omega Spielhallen- und Automatenaufstellungs-GmbH v. Oberbürgermeisterin der Bundesstadt Bonn; 8 September 2010, C- 409/06, Winner Wetten GmbH v. Bürgermeisterin der Stadt Bergheim. See also Leonard F.M. BESSELINK, « National and constitutional identity before and after Lisbon », Utrecht Law Review, Vol. 6, Issue 3, Nov. 2010, p. 46 : “once, as a result of what some metaphorically call a ‘dialogue’ of courts, it has emerged that a certain rule of principle belongs to that identity, the ECJ proves to be sensitive to this identity”. International Association of Procedural Law Seoul Conference 2014 3 Session 1 : Ideological Background of the Constitution, Constitutional Rules and Civil Procedure treaty, Article 4.2 of the Treaty on European Union (TEU) requires the Union to “respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government »7. Constitution has been defined as containing “the most important rules for the state, which means those which determine the form of the state and of its government”8. The powers of the constitutional organs (Parliament, government etc.) are organised as well as the relationships between the state and the citizens. Besides establishing the institutions of government and the manner in which they function toward each other and toward the people, a constitution may also set forth the rights of the individual and a government's duty to respect those rights. Jürgen Habermas, a famous German philosopher, makes a distinction between a liberal and a republican conception of a constitution: in the republican conception, a constitution aims at founding and justifying the sovereignty of a State, whereas the liberal view gives the constitution the function of limiting power (Macht)9. In a State under the rule of law (État de droit, Rechtsstaat), there should be no arbitrary power, and individual rights should be respected. A constitution is at the same time a political and a legal act since it does not only regulate the distribution of powers but also gives a political orientation towards specific values in a specific geographical and human space unit. Due to this specific nature, the national constitution “should only be done for the nation to which one wants to adapt it’ and has been compared to “a garment that, if well made, should only fit one person”10.

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