The Conseil Constitutionnel is France’s highest authority on constitutional matters and routinely scrutinises new laws to ensure that they are within the spirit of the French constitution.
They are in the news this week because they will make a crucial ruling on pension reform (more on that later) – which is why protesters barricaded the court entrance on Friday morning.
What does the council do?
Founded in 1958 (the start of the Fifth Republic and the current French constitution) the council’s role is twofold; it scrutinises any new laws or decrees to check that they are constitutional and it oversees all elections and referendums in France.
It’s not to be confused with the Conseil d’Etat (state council), which advises the government in advance on new laws and also acts as an arbiter in disputes between the state and members of the public – more info on that here.
It doesn’t get involved in court cases – after various appeal courts, the highest court authority in France is the Cour de Cassation.
Who makes up the council?
The council is made up of nine people, who are known as the wise (the wise ones). You will sometimes hear them referred to as The Sages of the Palais-Royal or The sages of rue de Montpensiernamed after the street the council building is found on.
Members serve nine-year, non-renewable terms which are staggered so that every three years, three new members arrive on the council.
Members are invited onto the council – the president gets to pick three, the head of the Assemblée nationale (lower house of parliament) picks three and the leader of the Sénat (upper house) picks three. The idea is to have a balance of different politics, although the wise are supposed to be non-political and make their decisions based solely on legal and constitutional grounds.
They tend to be tend to be former lawyers, business people, senior civil servants and retired politicians. Ex presidents automatically get a seat on the Council, although they almost always turn it down. Former prime ministers don’t automatically get a place but they are often picked – the current council includes two ex-PMs – Laurent Fabius and Alain Juppé.
What exactly does it do?
Once new laws are passed through parliament, or new decrees published, they are passed to the Constitutional Council for approval – a bill cannot become law without this approval.
The council publishes a decision based on what the majority of them decide after private deliberations – notes on how these discussions went and who was for and against are kept, but are not available to the public until 25 years has passed.
They have three options; they can either approve a bill entirely, approve most of it but demand changes (known as censure) or reject it entirely.
The council has only rejected completely one bill in its 60-year history, but it’s not unusual for them to request changes on particularly contentious issues. For example, during the pandemic they scrutinised France’s lockdown rules and other Covid-related restrictions and while most were approved the council ruled that it was unconstitutional to regulate gatherings in private homes – which is why Covid rules in France included only a recommendations that people keep gatherings in private to fewer than 10 people, not a rule.
This is why laws sometimes change between being passed by parliament and appearing on the statute books.
They examine both the bill itself and the process of it becoming law.
Once the Constitutional Council has ruled on something, there is no right of appeal.
What about the pensions decision?
The reason it is in the news now is that on Friday it will rule on the controversial pension reform, which has been the cause of strikes and protests since January.
As is usual, the Council will examine both the bill itself – is it unconstitutional to require people to work until they are 64 – and the way it was passed – did the government act in an unconstitutional (albeit legal) way in forcing the bill through without allowing a vote in the Assemblée nationale?
They will also scrutinise a request for a referendum submitted by opposition parties, using the new process of Shared initiative referendum. This type of referendum, which is different to a standard referendum which France holds from time to time, was created in 2008 but has never been successfully used, partly because it is extremely complicated.
To hold a referendum of this type first the Constitutional Council must agree, then at least 185 MPs or Senators must back it, and then 10 percent of all registered voters in France (roughly 5 million people) must sign a petition backing it. These signatures must all be checked against ID and verified to ensure that they are real people and properly registered voters – this checking is done by the Constitutional Council in its secondary role as election administrator.
After that, both houses of parliament have six months to consider a law on the subject of the referendum – only if they do not do so is a referendum finally called.
OPINION: The Constitutional Council could prolong pensions battle for another 15 months
As well as being complicated, this process is also time-consuming, so any referendum on pension reform could not happen before summer 2024 at the earliest.
The council’s decision on pension reform is expected on Friday evening – you can find the latest news on the decision itself and the reaction of the country (expect protests, possibly violent) HERE.