The Bloc de Constitutionnalité: Norms of French Constitutional Review
The bloc de constitutionnalité (constitutional block) is the set of norms that the Constitutional Council applies in its review of legislation. It comprises the written Constitution of 1958, the texts to which its Preamble refers, and the unwritten fundamental principles recognized by the laws of the Republic. The concept was developed by constitutional scholars — notably Claude-Émile and Louis Favoreu — to describe the expanded range of norms that the Council began to apply after its landmark 1971 Freedom of Association decision. The bloc de constitutionnalité is the supreme source of law in the French legal order, against which all legislation, regulations, and administrative acts must conform.
The 1958 Constitution
The core of the bloc is the Constitution of 4 October 1958 itself. Its ninety-two articles establish the institutional framework of the Fifth Republic: the President of the Republic, the Government, the Parliament, the Constitutional Council, the judiciary, the Haute Cour, and the Court of Justice of the Republic. The Constitution defines the distribution of legislative competence between Parliament and the Government (Articles 34 and 37), the procedures for adopting legislation, the treaty-making power, and the amendment procedure under Article 89.
The Constitution also contains provisions with direct normative significance for individual rights. Article 1 establishes the Republic’s principles: “indivisible, laic, democratic, and social.” Article 2 establishes equality before the law and freedom of conscience. Article 3 establishes universal suffrage. Article 4 regulates political parties. Article 66 provides that “no one shall be arbitrarily detained” and that the judiciary is the guardian of individual liberty. These provisions are directly enforceable in constitutional review.
The Declaration of the Rights of Man and of the Citizen (1789)
The 1789 Declaration, incorporated into the bloc through the Preamble of the 1958 Constitution, is the primary source of individual rights and liberties in French constitutional law. Its seventeen articles establish the foundational principles of French republicanism: liberty, property, security, and resistance to oppression (Article 2); the principle of legality in criminal law (Articles 7–8); the presumption of innocence (Article 9); freedom of opinion and expression (Articles 10–11); the guarantee of property rights (Article 17); and the principle of equality (Article 1, Article 6).
The Constitutional Council has applied the 1789 Declaration to protect a broad range of rights. It has struck down legislation that infringes freedom of expression, that imposes disproportionate penalties, that violates the presumption of innocence, or that interferes with property rights without adequate compensation. The Council has also derived more specific rights from the Declaration’s general principles, including the right to personal liberty, the right to privacy, the right to a fair trial, and the right to an effective remedy. The 1789 Declaration provides the primary framework for the Council’s protection of civil and political rights.
The Preamble of the 1946 Constitution
The Preamble of the 1946 Constitution — also incorporated through the 1958 Preamble — adds a social dimension to French constitutional law. It proclaims “political, economic, and social principles as particularly necessary to our time.” These include the right to work, the right to strike, trade union freedom, the right to social security and health protection, the right to education, the right to culture, the equality of men and women, and the right to asylum.
The Constitutional Council has given effect to these social rights in its review. It has held that the right to work imposes a positive obligation on the state to pursue full employment policies, though the obligation is one of means rather than result. The right to strike has been protected against legislative restrictions that go beyond what is necessary to protect public order. The right to health protection has been applied to review legislation affecting access to healthcare and the organization of the health system. The right to housing has been recognized as a constitutional objective with legal effect.
The Fundamental Principles Recognized by the Laws of the Republic (PFRLR)
The PFRLRs are unwritten constitutional principles derived from republican legislation enacted before the Preamble of the 1946 Constitution. The Constitutional Council first recognized this category in the 1971 Freedom of Association decision, holding that the 1901 Law on Associations had elevated freedom of association to the status of a fundamental principle of the Republic.
The PFRLRs include, among others: freedom of association (1971); individual liberty and the right to a fair trial; academic freedom and the independence of university professors; freedom of conscience; the independence of administrative courts; the right to an effective remedy; and the right to a defence. The Council continues to identify new PFRLRs, drawing on the tradition of republican legislation. The PFRLR doctrine gives the Council a dynamic and historically grounded source of constitutional norms, enabling it to protect principles that, while not explicitly stated in any written text, are fundamental to the French conception of rights and liberties.
The Charter for the Environment (2005)
The Charter for the Environment, adopted by constitutional statute on 1 March 2005 and incorporated by the 2005 constitutional revision, added environmental rights and duties to the bloc de constitutionnalité. Its ten articles establish: the right to a balanced and healthy environment (Article 1); the duty to protect the environment (Article 2); the precautionary principle (Article 5); the polluter-pays principle (Article 4); the principle of sustainable development (Article 6); and the right of access to environmental information and public participation in environmental decision-making (Article 7).
The Constitutional Council has applied the Charter in review of legislation, striking down or constraining laws that fail to respect environmental rights. The Charter has been used to uphold the precautionary principle in public health and environmental regulation, to require environmental impact assessments for major projects, and to ensure that environmental protection is taken into account in legislative decision-making. The Incorporation of the Charter demonstrates the dynamic character of the bloc de constitutionnalité, which continues to evolve through constitutional amendment and judicial interpretation.
Organic Laws
Under Article 46 of the Constitution, organic laws (lois organiques) occupy an intermediate position between the Constitution and ordinary legislation. They specify the procedures for the operation of constitutional institutions, including the Constitutional Council itself, the Council of State, the Court of Cassation, and the High Authority for Transparency in Public Life. Organic laws must be submitted to the Constitutional Council for mandatory review before promulgation to ensure their conformity with the Constitution.
The relationship between organic laws and the bloc de constitutionnalité is complex. Organic laws are subordinate to the Constitution but superior to ordinary legislation. The Constitutional Council reviews organic laws against the full bloc de constitutionnalité. The Council has occasionally invalidated provisions of organic laws that conflict with constitutional rights or principles, demonstrating that even implementing legislation is subject to constitutional constraints.
The Bloc in QPC Proceedings
The introduction of the question prioritaire de constitutionnalité (QPC) in 2008 transformed the operation of the bloc de constitutionnalité. The QPC allows a litigant in any court to challenge the constitutionality of a legislative provision that applies to pending proceedings. The Constitutional Council then reviews the challenged provision against the bloc de constitutionnalité and may strike it down, either immediately or with deferred effect.
In QPC proceedings, the Council applies the same bloc de constitutionnalité as in abstract review. The QPC has dramatically increased the Council’s opportunities to define and apply constitutional norms, generating hundreds of decisions that have elaborated the content of the bloc in concrete contexts. The procedure has also required the Council to refine its proportionality analysis, balancing rights against the public interest objectives that legislation pursues. The QPC has made the bloc de constitutionnalité a living source of law, directly accessible to ordinary litigants and applicable in concrete disputes.
Evolution and Significance
The bloc de constitutionnalité is not a closed or static set of norms. It has expanded over time through constitutional amendment (the Charter for the Environment), judicial recognition (the PFRLRs), and the elaboration of existing norms through the Council’s jurisprudence. The bloc reflects the French conception of constitutionalism: a historically grounded, republican tradition that combines written texts with unwritten principles, individual rights with social solidarity, and national norms with openness to European and international law. The concept of the bloc de constitutionnalité is essential to understanding the structure of French constitutional review and the protection of fundamental rights in the French legal order.