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THE CONSTITUTIONAL COUNCIL AND THE PROTECTION OF FUNDAMENTAL RIGHTS (Rada Konstytucyjna a ochrona praw podstawowych)

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Verpeaux M.

Przegląd Sejmowy

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2010

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issue 1(96)

101-123

EN

To increase the powers of the Constitutional Council was one of the most important amendments to the constitution, proposed by the committee on the modernization and rebalancing of the institutions of the Fifth Republic. The functions of the Council had to be considerably extended, and its role in the review of constitutionality of law deeply modified. The committee's proposed new wording of Article 61-1 of the constitution establishes a mechanism for submission of a complaint - as an exception - under a court proceedings. This mechanism would include an assessment on the conformity of a statute with fundamental freedoms and rights, thereby excluding the review of parliamentary procedure or the review of the division of normative authority between a statute and a regulation. The above-mentioned procedure would be applied 'as an exception', upon request of the court hearing the case (paragraph 1), but also on request of the person subject to a trial which in a particular process may include administration (paragraph 2), or on request of the Council of State, the Court of Cassation or their subordinate courts, or any other court. According to the proposal presented by the Committee, any district court would submit application to the Constitutional Council. This mechanism would allow to challenge constitutionality of statutes adopted before 1958 and those which avoided review after 1958, particularly because of the lack of the right to submit applications by Deputies (before 1974) and because of the lack of a political will for submission of applications (after 1974). The above-described strengthening of powers of the Council would make it possible to find the desired balance between the review of constitutionality of statutes and the review of conformity with international agreements. What is at stake is the survival of the principle of supremacy of the constitution in the domestic legal order. These innovative ideas are partly consistent with the opinions of present members and president of the Council.

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THE REFORM OF THE REVIEW OF CONSTITUTIONALITY OF LAW (REFLECTIONS ON THE DRAFT OF ARTICLES 61-1 AND 62 OF THE CONSTITUTION PRESENTED BY THE BALLADUR COMMITTEE) (Reforma kontroli konstytucyjnosci prawa ....Komitet Balladura)

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Bernaud V., Stéfanini M. F.-R.

Przegląd Sejmowy

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2008

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issue 6(89)

157-179

EN

The article presents an assessment of the reform, prepared by the Committee on Modernization and Restoration of Balance of the Institutions of the Fifth Republic. The reform is aimed at supplementing preventive review of statutes with ex-post review, thereby making it possible, during proceedings in progress before the court, to apply to the Constitutional Council for examination of conformity of a statute with the provisions concerning the fundamental rights and freedoms guaranteed by the Constitution. The solutions provided for in Article 61-1 of the Constitution enable the procedure of implementation of this new form of review in a constitutional act to be freely specified. The application for a review is referred to the Constitutional Council, on the initiative of the subject entitled to do so, through the Council of State or the Court of Cassation. In the opinion of the authors, such selection on the part of the supreme courts does not seem necessary or desirable. The establishment of a new form of review has received a relatively positive assessment. It is regarded as necessary element of improvement of the French system of fundamental rights' protection. However, it is uncertain whether the lack of such review would have an adverse impact on the status of the citizens. There are, of course, other forms of review of constitutionality of law which provide protection of rights and freedoms (e.g. the review of conformity of international agreements with the constitution). The implementation of the reforms will obviously induce changes in the functioning of the Constitutional Council and its relations with Parliament. 11.

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THE CONSTITUTIONAL COUNCIL AFTER THE CONSTITUTIONAL AMENDMENTS OF JULY 2008 (Rada Konstytucyjna we Francji po zmianach konstytucyjnych z lipca 2008 r.)

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Chmielarz A.

Przegląd Sejmowy

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2010

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issue 1(96)

125-143

EN

French Constitutional Council is a special example of a European constitutional court. Apart from the review of constitutionality of law, it performs the function of electoral tribunal. The French model of review of constitutionality of law is called French exception (l'exception français). The constitutional bill Nr. 2008-724 of 23 July 2008 on modernization of institutions of the Fifth Republic introduced amendments to the French Constitution, concerning inter alia the legal status and the position of the Constitutional Council in the system of government. These amendments relate to the procedure for appointment of members of the Constitutional Council, their consultative competences in the case of use of extraordinary powers by the President of the Republic, the Council's jurisdiction in the field of review of legislation in the aspect of authority, the review of parliamentary bills subjected to a referendum, as well as review concerning legislative initiative of the government.. The aim of the amendments is, above all, to depoliticize the Constitutional Council, to broaden the scope of its competences and the role in the review of legislation. Of special importance is the introduction of the institution of prejudicial questions, which implies conferring on the Council the power of a posteriori review of constitutionality of statutes. In this context, a notion of 'l'exception d'inconstitutionnalité' appears in the French constitutional doctrine. This fundamental change of the model of review of the constitutionality of law in France strengthens the position of the Constitutional Council as a constitutional court and a guarantor of supremacy of the constitutional norms. The constitutional amendments of July provide a basis for further development of the review of constitutionality of law, referring not only to institutional norms contained in the constitution, but also to the principles guaranteeing protection of fundamental freedoms and rights of the individual. The French model of constitutional court and the system of review of constitutionality of law has been changed in the direction of stronger protection of constitutional norms. The Constitutional Council has become to be similar to the constitutional courts of other European countries, particularly to the German Federal Constitutional Court. At the same time, it maintains its identity in relation to appointment of members and review of constitutionality of law.

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3 Przegląd Sejmowy

2 2010

1 2008

1 Bernaud V.

1 Chmielarz A.

1 Stéfanini M. F.-R.

1 Verpeaux M.

THE CONSTITUTIONAL COUNCIL AND THE PROTECTION OF FUNDAMENTAL RIGHTS (Rada Konstytucyjna a ochrona praw podstawowych)

THE REFORM OF THE REVIEW OF CONSTITUTIONALITY OF LAW (REFLECTIONS ON THE DRAFT OF ARTICLES 61-1 AND 62 OF THE CONSTITUTION PRESENTED BY THE BALLADUR COMMITTEE) (Reforma kontroli konstytucyjnosci prawa ....Komitet Balladura)

THE CONSTITUTIONAL COUNCIL AFTER THE CONSTITUTIONAL AMENDMENTS OF JULY 2008 (Rada Konstytucyjna we Francji po zmianach konstytucyjnych z lipca 2008 r.)