Constitutional Council annual report 2018 Constitutional Council Annual report 2018 2 CONTENTS Laurent Fabius Page 4 The Constitution, bulwark of the Republic interview Page 10 CHANGES AT THE CONSTI- TUTIONAL COUNCIL Page 20 EX ANTE DECI- CONSTITUTIONAL SIONS IN REVIEW P.20 PRIORITY PRELIMINARY 2017-2018 RULINGS ON THE ISSUE OF CONSTITUTIONALITY (QPC) P.42 3 Constitutional Council - 2018 Annual Report Page 64 INTERNA- TIONAL RELA- TIONS Page 74 A FEW OF THIS YEAR’S EVENTS Page 78 The Constitution 60 years on 4 INTERVIEW Laurent Fabius President of the Constitutional Council Last year was the beginning of a new parliamentary term and saw intense activity including disputes concerning the election of deputies and senators, and the usual large number of petitions for priority preliminary rulings on the issue of constitutionality (QPC). How would you sum up the activity of the Constitutional Council last year? The Constitutional Council’s judicial activity continued at a brisk pace. With a total of 18 ex ante (DC) decisions since September 2017, we issued rulings on the first Acts of Parliament of the new legislature. These included the Amended Finance Act, the 2018 Social Security Financing Act, as well as the 2018-2022 Public Funding Planning Act, the act relating to the guidance and achievement of students, the Common European Asylum System Act, the act ratifying certain ministerial orders (“ordonnances”) relating to employment law, the organic law on organising a consultation on the assumption of full sovereignty by New Caledonia, the act relating to the protection of personal data and the act on freedom to choose The Constitution, bulwark of the Republic interview 5 Constitutional Council - 2018 Annual Report one’s career and continuing professional to this routine judicial activity, I should training. So, all in all, we accomplished quite mention disputes arising from the legislative a lot. and senatorial elections amounting to As regards priority preliminary rulings on a total of 319 electoral disputes and the issue of constitutionality (QPC), the 232 disputes relating to campaign spending. number of petitions from the Council of State The assistance we obtained from deputy (Conseil d’État) and the Court of Cassation rapporteurs from the Council of State and (Cour de Cassation) continued unabated the Court of Audit (Cour des Comptes) was given that - in a short space of time - we have invaluable in the handling of these cases. ruled on a total of 69 cases since September 2017. These cases covered a variety of Several decisions handed down by the issues even though criminal and tax law Constitutional Council this year have still represent the lion’s share. In about two triggered a lot of comment. Which thirds of cases we ruled ex post (on QPCs) decisions do you think were the most that legal provisions were compliant with the significant? Constitution, whilst occasionally expressing It is difficult to rank them. Our ruling on the reserves as to interpretation. In one third of “solidarity offence” is without a doubt one cases, our college handed down rulings of of the year’s most important ones, in that for partial or total non-compliance. In addition the first time we had to define “fraternity” - interview 6 INTERVIEW the only word of the Republic’s three-word The Council’s international activity is motto that the Constitutional Council had growing at a brisk pace. Given the current never had to rule on. The ruling of October European and global environment, do you 2017 on the three percentage points rise in think judges talking among themselves is corporation tax also attracted much com- really relevant? ment, not so much for the legal arguments put Definitely. forward but because of its impact on pub- Ever since my appointment, the members lic finances. The Council demonstrated that and I have sought to open up the Council to its decision had proper legal grounding and international issues. We are developing such took full account of the Act being unconsti- a “dialogue of judges” in particular with tutional. Another major ruling this year, that the German Federal Constitutional Court in many have welcomed as a step forward in the Karlsruhe - who came to see us in Paris in rule of law, concerned the wording of deci- December 2017, and with the constitutional sions handed down by criminal courts. For courts in other Southern European ‘Latin’ countries - Italy, Spain and Portugal – whom the first time, the Council ruled that a court we met in Albi in September 2018 – and judgement should give de- with the European Courts in tailed reasoning for its sen- Luxembourg and Strasbourg, as tencing rather than simply well as with the courts in other determination of guilt. On We can see that French-speaking countries. Such another matter, we have our rulings coincide talks have become essential at a been petitioned regarding judicial level. These exchanges the Personal Data Protec- with the major of view with other courts enable tion Bill, which prompted us us to sharpen our thinking to specify for the first time political and media and decision-making, and this how we review laws trans- must surely be true for them posing EU Directives and issues of the day.” also. On a broader level, in set legal precedents as to such times where tensions are algorithm-based govern- unfortunately on the increase in Europe and ment decisions. Finally, I would like to mention internationally, I believe it is important that our rulings on homeland security and anti- constitutional courts should unite in support terrorism cases, such as when we once of fundamental democratic principles. again disallowed provisions that created the offence of regularly surfing terrorist websites. Following on from “Law Night” (“Nuit du Generally we can see that our rulings Droit”) held last year at the Constitutional coincide with the major political and media Council, a national event will take place on issues of the day. This can be explained both 4 October 2018. Can you tell us more? by the very short time frame in which we The first “Nuit du Droit” held at the deliberate - never more than three months ex Constitutional Council on 4 October 2017 post (QPC), never more than a month ex ante was a big success. More than 1,000 people (DC) - and by the specific features of our ex heard an interesting exchange of views on ante review and, more recently, by the fact several major issues in the public eye that that we are petitioned more and more rapidly raise important legal questions such as the in the form of QPCs on aspects of recently fight against terrorism, artificial intelligence, voted legislation for which we had not been employment and environmental protection. petitioned ex ante. This is what occurred with In 2018, the “Nuit du Droit” is being held the 30 October 2017 Homeland Security and again but with a new goal: on 4 October Anti-Terrorism Act, on which we had not been throughout France, many organisations –such petitioned ex ante but where several provisions as courts, universities, bar associations and were quickly put to us ex post by QPC. companies – will put on events relating to 7 Constitutional Council - 2018 Annual Report the importance of law in society at large. The events strive to make a wider public aware as The events strive to the principles of law, its institutions and its professions, while showing how it safeguards to make a wider our freedoms, guarantees legal security, allows disputes to be settled peacefully and public aware as to ensures that the economy and society run smoothly. The law, which governs all aspects the principles of of living together, is often poorly understood “ by our fellow citizens. The “Nuit du Droit” is law, its institutions held on our Constitution’s anniversary and is and its professions, designed to be a time to celebrate, learn and consider how the law impacts our lives. while showing how The planned constitutional reform started it safeguards our being debated in Parliament. To what extent will the Constitutional Council be freedoms, guarantees involved? The Government is planning to introduce into legal security, allows Parliament three different bills on this subject: a constitutional bill, an organic bill and an disputes to be settled ordinary bill. The Constitutional Council did not have any specific role to play during the peacefully and ensures preparation of these bills. Contrary to what our that the economy and name suggests and what is widely believed, we do not in fact offer “advice” or opinions society run smoothly.” to the Executive on institutional reform. This is the role of the Council of State as legal adviser to the Government. If these bills are discussed and become law then the role of the Constitutional Council varies depending on the type of law voted. For an ordinary act we will check compliance with the Constitution, if we are petitioned to in fact planned to abolish the right for former do so. In the case of an organic law, we have a Presidents of the Republic to sit on the legal duty to get involved. For a constitutional Constitutional Council for life. There will be law, if the Executive chooses to hold a a temporary exception for former Presidents referendum we will probably be petitioned who sat in the Council in the course of the ahead of the vote. Ever since the year 2000 previous year. Former Presidents of the and the so-called “Hauchemaille” ruling in the Republic sitting in the Constitutional Council run-up to the referendum on the five-year is a peculiarity related to the circumstances presidential term, the Constitutional Council prevailing when the Council was founded in now deems itself competent to rule on appeals 1958.