The Constitutional Council represents a major innovation in French institutional history. Created by the 1958 Constitution, it embodies the break with the republican tradition that made the law the expression of the general will, immune to any control. Its evolution, from a regulatory body of public powers' activity to a true constitutional court protecting fundamental rights, constitutes what some have called "the revolution of the government of judges." Understanding the Constitutional Council requires grasping this historical metamorphosis, its legal implications, and its impact on the balance of powers.
The creation of the Constitutional Council fits into a double filiation: the reaction against the deviations of the assembly regime and the growing influence of the constitutional justice model. The constituent of 1958, drawing on the lessons of the Fourth Republic, intended to establish a "rationalized parliament" and protect the regulatory domain against legislative encroachments. Michel Debré, in his speech before the Council of State on August 27, 1958, presented the future Council as "a weapon against the deviation of the parliamentary regime."
Yet, the French legal tradition was deeply hostile to constitutional review. The Rousseauist conception of the law as the expression of the general will, inherited from the Revolution, opposed the idea that a judge could censure the work of the legislator. The Declaration of Rights of 1789 itself, in its article 6, sanctified the law as "expression of the general will." This mistrust explains the initial status of the Council, conceived not as a court but as a political body, composed of appointed personalities and not professional magistrates.
The influence of foreign models, particularly American and European, however gradually modified this perspective. The United States Supreme Court, since the Marbury vs Madison case (1803), had established the principle of judicial review of constitutionality. In Europe, Austria under Hans Kelsen had established a specialized constitutional court after the war. These experiences nourished the reflection of the French constituents, even if the model retained in 1958 remained cautious and limited.
The evolution of the Constitutional Council can be divided into three distinct periods:
The initial phase (1959-1971) sees a modest Council, essentially devoted to respecting the delimitation of legislative and regulatory domains. Its decisions, few in number, mainly concern the regulation of assemblies and the protection of the regulatory domain. The Council then appears as the "watchdog of the executive" against a Parliament considered too invasive.
The founding rupture (1971) occurs with the "Freedom of Association" decision of July 16, 1971. For the first time, the Council recognizes itself as competent to control the conformity of laws not only to the formal Constitution, but also to the "block of constitutionality" now including the Preamble of 1946 and the Declaration of Rights of 1789. This audacious case law operates what Dean Favoreu qualified as a "legal coup d'état," profoundly transforming the nature of the institution.
The contemporary deepening (since 1974) is marked by the constitutional revision of October 29, 1974 which extends the referral to sixty deputies or sixty senators. This reform, apparently technical, has considerable consequences: it allows the parliamentary opposition to systematically challenge laws voted by the majority, making the Council a permanent arbitrator of political life. The priority preliminary ruling on constitutionality (QPC), established in 2008, completes this evolution by allowing any litigant to challenge the constitutionality of a law applicable to their trial.
The Constitutional Council presents an original composition that reflects its double nature, both jurisdictional and political:
Ex officio members: former Presidents of the Republic are ex officio members of the Council, even if in practice, none have sat regularly since Valéry Giscard d'Estaing.
Appointed members: nine members are appointed for nine non-renewable years, by the President of the Republic and the presidents of each assembly (three each). This pluralistic designation method aims to ensure a certain diversity of sensitivities.
The president is designated by the President of the Republic among the appointed members. His influence is considerable, both on the orientation of case law and on internal functioning. The internal organization of the Council combines discretion and collegiality. Preparatory work is carried out by the general secretariat, directed by the secretary general, a key figure of the institution. Decisions are deliberated in plenary session and are rendered in the name of the entire Council, without dissenting opinions, according to French tradition.
A priori review of ordinary laws represents the historical competence of the Council. This control is exercised within a very short timeframe (one month, reduced to eight days in case of urgency) between the adoption of the law and its promulgation. It presents several characteristics:
The control is abstract: it does not insert itself into a concrete dispute but examines the law in its entirety.
The control is limited: only provisions expressly contested by the petitioners are examined.
The control is definitive: the Council's decision is binding on all public authorities. The control procedure is adversarial, with memoranda exchanged between the different parties (government, assemblies, authors of the referral). Decisions have the absolute authority of res judicata.
Instituted by the constitutional revision of 2008, the QPC profoundly transformed the Council's role by allowing it to exercise a posteriori control. This procedure allows any litigant to argue that a legislative provision violates the rights and liberties that the Constitution guarantees. The mechanism includes several filters:
Judicial filter: the question must be transmitted by the lower court judge to the Council of State or the Court of Cassation.
Filter of the supreme courts: these verify that the question presents a serious and new character.
Filter of the Constitutional Council: it ultimately examines the constitutionality of the contested provision. The QPC has considerably widened the Council's influence, which now rules on sometimes old laws and intervenes in varied domains of law.
Beyond constitutional review, the Council exercises important attributions:
Electoral disputes: the Council ensures the regularity of presidential elections and referendums, and rules on legislative and senatorial elections.
Consultation: the government must consult it on the application of Article 16 (exceptional powers) and on certain organic texts.
Monitoring of ethics: recent laws have entrusted the Council with missions in controlling the assets of political officials.
The notion of "block of constitutionality," forged by doctrine, designates the set of reference norms used by the Council to control the constitutionality of laws. This block includes:
The Constitution of October 4, 1958 in its entirety.
The Preamble of the 1946 Constitution with its rich catalog of social and economic rights.
The Declaration of the Rights of Man and of the Citizen of 1789, essential source of fundamental liberties.
Fundamental principles recognized by the laws of the Republic (PFRLR), a jurisprudential notion allowing the integration of unwritten principles but consecrated by republican tradition.
Principles particularly necessary to our time stated by the Preamble of 1946.
The Charter of the Environment of 2004, integrated in 2005.
The Council's case law has developed several fundamental principles that structure the French legal order:
Protection of fundamental rights: the Council has elaborated extensive protection of individual and collective liberties, going beyond the constitutional text.
Principle of proportionality: the Council verifies that restrictions to liberties are proportionate to the pursued goal.
Legal security: requirement of clarity and intelligibility of the law.
Continuity of the life of the nation: principle used to frame the right to strike in public services.
The Council has developed sophisticated control techniques:
Interpretative reservations: the Council interprets the law to make it conform to the Constitution.
Partial non-conformity decisions: the Council only censures provisions contrary to the Constitution.
Injunctions to the legislator: the Council can invite Parliament to modify the law within a determined timeframe.
The Constitutional Council is the subject of recurrent debates:
Democratic legitimacy: voices are raised to challenge the government of judges and the growing influence of the Council on legislative production.
Opacity of deliberations: the absence of dissenting opinions is criticized in the name of transparency.
Politicization: appointments are often perceived as reflecting the political balances of the moment.
Several reforms are regularly mentioned:
Extension of referral to other actors (citizens, independent authorities).
Introduction of separate opinions to better understand the motivations of decisions.
Transformation into a Constitutional Court with a fully jurisdictional status.
The Constitutional Council embodies the maturation of French constitutionalism. From a technical body, it has become the guarantor of rights and liberties, at the cost of a profound transformation of its nature and methods. Its influence on legislative production is now considerable, making it an essential actor in the balance of powers.
This evolution reflects a broader movement of judicialization of politics, characteristic of contemporary democracies. Faced with the growing complexity of societies and distrust towards traditional institutions, the Council offers an instance of regulation and protection of fundamental principles.
The future of the Constitutional Council undoubtedly lies in its capacity to reconcile several exigencies: independence and responsibility, tradition and modernity, protection of rights and respect for democracy. As Dean Favoreu wrote, "the Constitutional Council has become the place where, day after day, the compromise between democracy and the rule of law is elaborated." This mission, both legal and political, makes it an essential institution of the contemporary French Republic.