Judicial Law-Making in European Constitutional Courts

Monika Florczak-Wątor

• Publisher: Routledge
• Year: 2020
• ISBN:
  9781000062250
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book analyses the specificity of the law-making activity of European constitutional courts. The main hypothesis is that currently constitutional courts are positive legislators whose position in the system of State organs needs to be redefined.

The book covers the analysis of the law-making activity of four constitutional courts in Western countries: Germany, Italy, Spain, and France; and six constitutional courts in Central–East European countries: Poland, Hungary, the Czech Republic, Slovak Republic, Latvia, and Bulgaria; as well as two international courts: the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU). The work thus identifies the mutual interactions between national constitutional courts and international tribunals in terms of their law-making activity. The chosen countries include constitutional courts which have been recently captured by populist governments and subordinated to political powers. Therefore, one of the purposes of the book is to identify the change in the law-making activity of those courts and to compare it with the activity of constitutional courts from countries in which democracy is not viewed as being under threat. Written by national experts, each chapter addresses a series of set questions allowing accessible and meaningful comparison.

The book will be a valuable resource for students, academics, and policy-makers working in the areas of constitutional law and politics.

Part I

Western European Constitutional Courts

1 The French Constitutional Council as a law-maker: from dialogue with the legislator to the rewriting of the law

Julien Mouchette

DOI: 10.4324/9781003022442-2

The concept of the Constitutional Court as a ‘negative legislator,’ formulated by Hans Kelsen,¹ is well known to jurists. In the Kelsenian model, the Constitutional Court exercises a power of censorship of the law by annulling unconstitutional law. In this way, it exercises a legislative function, but only a ‘negative’ function: it undoes the law without being able to make it. Georges Vedel, President of the French Constitutional Council (CC), once declared that ‘the CC has the right to use erasers, not to use pencils.’² In other words, the CC does not participate in the drafting of a bill and simply acts as a ‘negative legislator,’ a role described by the dyad ‘annulment/rejection.’

Today, however, in countries governed by the rule of law, constitutional courts influence the legislative process as to the content, and also the procedure. The difference in nature between legislative and judicial functions seems to be overshadowed by the activity of the Constitutional Court. Undoubtedly, the Kelsenian proposition of the negative legislator is simply no longer appropriate as a description of the current function of constitutional courts.³ Indeed, it rules on the effects over time of an invalidation of the law, as well as on its material scope. It sets out in directives the manner in which a law is to be interpreted and applied. Sometimes it provides a legal framework for future action by the legislator. Therefore, the Council intervenes in the optimization of the legislative process. By its very nature, the constitutionality review generates an intervention, sometimes a far-reaching one, in the exercise of the legislative function.

The French Constitutional Council (CC) is consistent with this observation. The existence of an ex ante constitutionality review necessarily has an impact, upstream, on the law-making process. This phenomenon can only be reinforced by the implementation of an ex post constitutionality review (QPC) in 2008. On its own initiative, the CC has developed methods to escape the constraints of this dyad, ‘annulment/rejection.’ It is concerned to ‘save’ the law from annulment. However, very often these methods lead it to the verge of rewriting the law. But the question here is about the intensity of this influence.

1 Hans Kelsen, ‘La garantie juridictionnelle de la Constitution’ (1928) RDP (Revue du droit public) 252.

2 Georges Vedel quoted by Robert Badinter, ‘Du côté du Conseil constitutionnel’ (2002) RFDA (Revue française de droit administratif) 208.

3 Christian Behrendt, Le juge constitutionnel, un législateur-cadre positif (Bruxelles Paris Bruylant LGDJ, 2006) 537.

The purpose of our study is to present these methods and to show how the Council’s normative function is expressed and how it relates to the normative function of the legislator and government authority from a practical point of view. Indeed, the introduction of a constitutionality review in France in 1958 strengthened the authority of the Constitution and gave rise to case law with important consequences on the way in which the legislator makes law. However, not all laws are subject to such control; some have been excluded by the CC itself.

1 Exclusion of certain laws from constitutional review

In accordance with Article 61 of the Constitution, Institutional Acts before their promulgation and Rules of the assemblies (National Assembly, Senate, Congress, High Court) before their enforcement are automatically forwarded to the CC, which decides on their conformity with the Constitution within one month (a period that may be reduced to eight days in cases of emergency, at the request of the Government). Apart from this systematic control, which is mandatory, only ordinary laws passed by Parliament can be referred to the Council a priori and a posteriori in order for it to verify their conformity with the Constitution.⁴ Indeed, the CC has declared itself incompetent with regard to constitutional laws and laws adopted by referendum.

First, with regard to constitutional amendment, the question of their control was raised in the late 1980s. In a political context marked by the constitutional revisions involved in strengthening European integration, the doctrine has occasioned a lengthy debate on the question of a possible review of the constitutionality of constitutional laws, following a Council decision of 2 September 1992 on the Treaty on European Union known as the Maastricht Treaty.⁵ By this decision, the Council established the principle of its jurisdiction over constitutional laws and then specified the points on which its control could, if necessary, focus. While the limits on the periods for revision do not permit a substantive examination, the limit on the republican form of government implies that the Council must control the very content of the constitutional laws adopted. The extent of its control here depends on its conception of the ‘republican form’: is it ‘only’ to block the return of the monarchy or, in a broader and riskier approach, to sanction any constitutional law that aims to call into question respect for certain values or principles deemed consubstantial with the republican form (secularism, solidarity, separation of powers, etc.)? However, whatever the approach adopted, the question of the Council’s legitimacy to censor the revision of the constitutional text by the authors of the Constitution comes into sharp focus here. In order to avoid the awkward position in which this alternative would place it, the Council resolved to renounce such control by declaring itself incompetent in a decision of 26 March 2003.⁶ At the source of this decision were some senators who contested the amendment of Article 1 of the Constitution by the addition of a reference indicating that the organization of the Republic is ‘decentralized.’ In their view, this reference directly challenged a principle enshrined in the same article according to which the Republic is ‘one and indivisible.’ This was a highly political issue that could only embarrass the members of the Council. Indeed, it should have determined whether the ‘republican form’ implied a unitary organization of the Republic or whether decentralization was compatible with the republican form. The difficulty that this posed to the members of the Council can be seen in the speed of its response. Only eight days after being referred to it, the Council declared that it ‘does not have the power to rule on a constitutional review under Article 61, Article 89 or any other provision of the Constitution.’⁷ However, the debate in France on the control of constitutional laws is not definitively over. Indeed, the contentious immunity of these laws is still being discussed by academic authors in the light of developments in European law,⁸ and in particular of the model of what exists abroad.

4 In addition to the statutory laws, it is worth adding the special case of so-called ‘country laws’ (lois de pays), which are legislative norms adopted by the deliberative assembly of New Caledonia on the basis of Article 77 of the Constitution.

5 Decision 92–312, of 2 September 1992, § 19. Everything started from the phrase ‘under the condition’. In this decision, the Council ruled that ‘the constituent power is sovereign under the condition, on the one hand, that there are limitations on the periods during which a revision of the Constitution cannot be initiated or continued, which result from Articles 7, 16, and 89 paragraph 4 of the constitutional text, and, on the other hand, that the requirements of the fifth paragraph of Article 89, which stipulate that the republican form of government cannot be revised, are respected’.

6 Decision 2003–469 DC, of 26 March 2003 on the constitutional amendment of the decentralized organization of the Republic.

7 Decision 2003–469 DC, a.m., § 2.

8 See Philippe Blachèr, ‘Le contrôle par le Conseil constitutionnel des lois constitutionnelles’ (2016) RDP 545; Joel Andriantsimbazovina & Helene Gaudin ‘Contrôle de constitutionnalité des lois constitutionnelles et droit européen: débat sur une nouvelle piste’ (2009) 27 Cahiers du Conseil constitutionnel 52.

Second, with regard to referendum laws – that is, laws adopted by the people through referendums – the CC decided not to control them, regardless of their purpose. This solution results from its decision of 6 November 1962 concerning the law of 28 October 1962 amending the method of electing the President of the Republic.⁹ This solution has since been confirmed by the Council in its decision of 23 September 1992.¹⁰ The lack of constitutionality review of the referendum law is due to the fact that it is the ‘direct expression’ of the sovereign, the people. These two decisions of 1962 and 1992 introduced a hierarchy giving referendum law a pre-eminent place over parliamentary law. It was in its 1992 decision that the Council clarified its reasoning. In 1962 the law submitted to the referendum was a constitutional law. However, the referendum law of 1992 was not a constitutional law, but an ordinary law adopted by referendum. The Counc...

Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Table of Contents
• List of figures
• List of contributors
• Introduction
• PART I: Western European Constitutional Courts
• PART II: Central and Eastern European Constitutional Courts
• PART III: European International Courts
• PART IV: Comparative Analysis
• Index