Key Constitutional Council Decisions: From Associations to QPC
The French Constitutional Council (Conseil constitutionnel) has rendered several landmark decisions that have transformed French constitutional law. Beginning with the 1971 Associations decision and extending through the introduction of the priority preliminary ruling on constitutionality (question prioritaire de constitutionnalité, QPC) in 2010, these decisions have expanded the scope of constitutional review, defined fundamental rights, and shaped the relationship between French law and international obligations.
The Associations Decision (1971)
The decision Liberté d’association (Decision 71-44 DC of 16 July 1971) is the most important decision in the history of the Constitutional Council. The Council reviewed the constitutionality of a law that would have required prior administrative approval for the creation of associations. The Council struck down the law, ruling that it violated the fundamental principle of freedom of association recognised by the preamble to the 1958 Constitution.
The significance of the Associations decision lies in its incorporation of the preamble of the 1958 Constitution into the bloc de constitutionnalité (the set of constitutional norms against which legislation is reviewed). The preamble refers to the Declaration of the Rights of Man and of the Citizen of 1789, the preamble of the 1946 Constitution, and the fundamental principles recognised by the laws of the Republic (principes fondamentaux reconnus par les lois de la République). By holding that these texts had constitutional force, the Council transformed itself from a political regulator into a guardian of fundamental rights.
The IVG Decision (1975)
The decision Loi relative à l’interruption volontaire de grossesse (Decision 74-54 DC of 15 January 1975) addressed the relationship between French constitutional law and international treaties. The Council reviewed the constitutionality of the law legalising abortion and rejected the argument that the law violated international obligations. More importantly, the Council held that it would not review the compatibility of statutes with international treaties, as this function belonged to the ordinary courts.
This decision established the théorie de l’écran législatif (legislative screen) in constitutional review: the Council would not examine whether a statute violated a treaty, because treaty review was a matter of conventionality (contrôle de conventionalité) rather than constitutionality. The decision left to the ordinary and administrative courts the task of ensuring that French law complied with international obligations, a role they would fully assume after the Arrêt Nicolo (1989).
The Nationalisations Decision (1982)
The decision Loi de nationalisation (Decision 81-132 DC of 16 January 1982) reviewed the constitutionality of the socialist government’s programme to nationalise major industrial enterprises and banks. The Council upheld the nationalisations in principle but imposed significant conditions regarding the calculation of compensation for shareholders.
The Council held that the right to property, guaranteed by Article 17 of the Declaration of 1789, required that compensation for nationalised assets reflect their full value. The decision established that the Council would rigorously review the proportionality of measures affecting property rights, balancing the public interest in nationalisation against the rights of shareholders. The decision marked one of the first occasions on which the Council struck down provisions of a major government programme.
The QPC Decision (2010)
The decision Question prioritaire de constitutionnalité (Decision 2009-595 DC of 3 December 2009) reviewed the constitutionality of the legislation implementing the QPC procedure, introduced by the constitutional revision of 23 July 2008. The Council upheld the new procedure, which allows litigants to challenge the constitutionality of already-promulgated statutes before any court.
The QPC procedure transformed French constitutional review by introducing a posteriori constitutional review alongside the traditional a priori review. Under the QPC, if a litigant claims that a statute violates constitutional rights, the matter may be referred to the Constitutional Council for a binding determination. The Council has rendered hundreds of QPC decisions, striking down numerous statutory provisions and shaping French law across virtually every field.
The Bloc de Constitutionnalité
The Constitutional Council has progressively expanded the bloc de constitutionnalité through its case law. The core of the block includes the 1958 Constitution itself, the Declaration of the Rights of Man and of the Citizen of 1789, the preamble of the 1946 Constitution (including the social and economic rights it recognises), and the fundamental principles recognised by the laws of the Republic.
The Council has also recognised the Charte de l’environnement of 2004 as part of the constitutional block, giving constitutional status to environmental protection. The Council’s jurisprudence has established that all elements of the constitutional block have equal normative force, requiring the legislature to respect each of these fundamental texts.
Judicial Dialogue
The Constitutional Council has developed a practice of dialogue with European courts, particularly the European Court of Human Rights and the Court of Justice of the European Union. In several decisions, the Council has referenced European jurisprudence and adjusted its own doctrines to ensure consistency with European human rights standards.
The relationship between the QPC and European remedies has been carefully managed by the Council. The Council has held that litigants may pursue both a QPC and a conventionality challenge simultaneously, but that the QPC takes priority in the sense that the constitutional question must be examined before the conventionality question. This priorité ensures that French constitutional law is applied before international obligations, while preserving the full effectiveness of European remedies.