1971 Freedom of Association Decision: Constitutional Principles
The 1971 Freedom of Association decision (Décision Liberté d’association, no. 71-44 DC), rendered by the Constitutional Council on 16 July 1971, is one of the most important decisions in French constitutional history. It transformed the Constitutional Council from a political regulator into a genuine guardian of fundamental rights, fundamentally altering the character of French constitutional law. The decision marks the beginning of modern French constitutionalism and is cited in virtually every case involving fundamental rights.
Background
In 1971, the French government proposed legislation requiring prior administrative approval for the creation of associations. Under the existing 1901 Law on Associations, associations could be formed simply by filing a declaration. The proposed law would have allowed prefects to refuse recognition to associations deemed contrary to public order. The government’s motivation was to prevent the formation of political groups that might challenge state authority, particularly in the aftermath of the 1968 protests.
The 1901 Law on Associations was itself a landmark of French republican legislation. Enacted during the Third Republic, it had established freedom of association as a fundamental principle of French law. The proposed amendment would have reversed this tradition by subjecting the creation of associations to prior administrative authorization, a significant restriction on a freedom that had been exercised without such control for seventy years.
The Decision
The Constitutional Council, acting on a referral from the President of the Senate, struck down the provisions requiring prior authorization. The Council held that freedom of association is a fundamental principle recognized by the laws of the Republic, possessing constitutional value. The decision was the first time the Council had invalidated legislation on fundamental rights grounds, marking a decisive break with its previous practice of limiting review to the procedural division of powers between Parliament and Government.
Constitutional Reasoning
The Council’s reasoning was innovative. The Constitution of 1958 does not explicitly mention freedom of association. However, the Council looked to the Preamble of the 1946 Constitution, which reaffirms the fundamental principles recognized by the laws of the Republic. The Council found that the 1901 Law on Associations had elevated freedom of association to the status of a fundamental principle. The reasoning established that unwritten fundamental principles could have constitutional force, even without textual basis in the 1958 Constitution.
The Council’s methodology involved several steps. First, it identified a fundamental principle recognized by republican legislation. Second, it determined that the 1901 Law had given this principle legislative recognition. Third, it concluded that the 1946 Constitution’s reference to these principles gave them constitutional status. Fourth, it held that the 1958 Constitution, through its reference to the 1946 Preamble, incorporated these principles into the constitutional block. This chain of reasoning allowed the Council to draw on a rich tradition of republican legislation as a source of constitutional norms.
Expansion of the Constitutional Block
The decision incorporated the Preamble of the 1946 Constitution and the Declaration of the Rights of Man and of the Citizen (1789) into the constitutional block (bloc de constitutionnalité). This meant that the Council could review legislation against a broad range of fundamental rights, not merely against the procedural provisions of the 1958 Constitution. The decision effectively gave constitutional status to the entire body of fundamental rights recognized by the 1789 Declaration and the 1946 Preamble, dramatically expanding the scope of constitutional review.
The expansion of the constitutional block had profound consequences. The Council could now review legislation for compliance with freedom of expression, equality before the law, the presumption of innocence, and other fundamental rights. Social and economic rights from the 1946 Preamble—including the right to work, trade union freedom, and the right to strike—became constitutional standards. The environmental rights in the 2004 Charter for the Environment were later added to the block, continuing the expansion that the 1971 decision initiated.
Impact on French Constitutionalism
The 1971 decision marked a watershed moment. Before it, the Constitutional Council was primarily an arbiter of the division of powers between Parliament and the Government. After it, the Council became a full-fledged constitutional court with jurisdiction over fundamental rights. The decision effectively constitutionalized the French legal order, giving the Council the power to protect individual rights against legislative encroachment. The transformation was all the more remarkable because it occurred not through constitutional amendment but through judicial interpretation.
Subsequent Developments
The 1971 decision opened the door to the 1974 constitutional amendment allowing 60 deputies or 60 senators to refer legislation to the Council, dramatically expanding access to constitutional review. It also laid the groundwork for the question prioritaire de constitutionnalité introduced in 2008. The decision remains a cornerstone of French constitutional law, cited in virtually every case involving fundamental rights. Its legacy includes the expanded protection of individual rights, the development of constitutional principles by the Council, and the integration of French constitutional law with European and international human rights law.