The French Constitution and European Union law: An Approach through the complexity of legal power relations

“The Pathology of the idea is in idealism, where the idea obscures the reality it is intended to translate and takes itself as the only reality. The disease of the theory is in doctrinism and dogmatism, which close the theory onto itself and petrify it. The pathology of reason is the rationalization which accounts for reality in a coherent but partial and unilateral system of ideas, and which knows neither that a part of reality is irrationalizable, nor that rationality’s mission is to dialogue with the irrational”       

Edgar Morin, Introduction to complex thinking, Le Seuil, 2005

Introduction

Subject to ample commentary, the crisis between the European Union (hereafter “the Union”) and Poland ¹ , in connection with a radical conception of the legal sovereignty of the Member States leading to the questioning of the primacy effect of European law over national constitutions, calls for clarifying France’s position on the same issue. Each of the Member States has a specific doctrine on systemic relationships between internal legal orders and that of the Union, which, in certain situations, can generate crises inherent in the institutional structure of the latter ² , according to the postures of legal influence adopted by certain national courts and the fluctuation of political influences within them.

It is well known that the doctrine of the CJEU is the preeminence of the law of the Union over the national law, including constitutional law, of the Member states. It was fixed from the outset by the van Gend & Loos decision of February 5, 1963 ³ and above all by Costa v E.N.E.L. the following year ⁴ whose central motivation is so rational in its institutional analysis, confident in its pedagogy and coherent in its solution that it deserves to be fully cited:

By contrast with ordinary international treaties, the EEC Treaty has created its own legal system which, on the entry into force of the Treaty, became an integral part of the legal systems of the Member States and which their courts are bound to apply.

By creating a Community of unlimited duration, having its own institutions, its own personality, its own legal capacity and capacity of representation on the international plane and, more particularly, real powers stemming from a limitation of sovereignty or a transfer of powers from the States to the Community, the Member States have limited their sovereign rights, albeit within limited fields, and have thus created a body of law which binds both their nationals and themselves.

The integration into the laws of each Member State of provisions which derive from the Community, and more generally the terms and the spirit of the Treaty, make it impossible for the States, as a corollary, to accord precedence to a unilateral and subsequent measure over a legal system accepted by them on a basis of reciprocity. Such a measure cannot therefore be inconsistent with that legal system.

The executive force of Community law cannot vary from one State to another in deference to subsequent domestic laws, without jeopardizing the attainment of the objectives of the Treaty set out in Article 5 (2) and giving rise to the discrimination prohibited by Article 7.

The obligations undertaken under the Treaty establishing the Community would not be unconditional, but merely contingent, if they could be called in question by subsequent legislative acts of the signatories. 

Wherever the Treaty grants the States the right to act unilaterally, it does this by clear and precise provisions (for example Articles 15, 93 (3), 223, 224 and 225).

Applications, by Member States for authority to derogate from the Treaty are subject to a special authorization procedure (for example Articles 8 (4), 17 (4), 25, 26, 73, the third subparagraph of Article 93 (2), and 226) which would lose their purpose if the Member States could renounce their obligations by means of an ordinary law.

The precedence of Community law is confirmed by Article 189, whereby a regulation ‘shall be binding’ and ‘directly applicable in all Member States’.

This provision, which is subject to no reservation, would be quite meaningless if a State could unilaterally nullify its effects by means of a legislative measure which could prevail over Community law.

It follows from all these observations that the law stemming from the Treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as Community law and without the legal basis of the Community itself being called into question.

The transfer by the States from their domestic legal system to the Community legal system of the rights and obligations arising under the Treaty carries with it a permanent limitation of their sovereign rights, against which a subsequent unilateral act incompatible with the concept of the Community cannot prevail. Consequently Article 177 is to be applied regardless of any domestic law, whenever questions relating to the interpretation of the Treaty arise.

Clarified and reinforced by the court decisions that followed, this rationale ⁵ , since then constantly reasserted, has been maintained, with certain nuances ⁶ , following the evolution of the treaties ⁷ , subjecting to strict and closely monitored conditions ⁸ the invocation by the Member States, on the one hand, of a level of protection of fundamental rights by the national Constitution higher than that of the Union as they result specifically from the Charter of Fundamental Rights (CFR) ⁹ , on the other hand, the protection of the national identity of Member States inherent in their fundamental political and constitutional structures ¹⁰ . To ensure the Member States comply with these requirements, the Union can use the infringement procedure and its accessory sanctions ¹¹ , which are considered applicable even when the breach comes from a national court ¹² . To this dogma of pre-eminence, several high courts in the Member States have put up a more or less reasoned and nuanced resistance ¹³ but none, until now, has placed itself in a deliberate rupture with the foundations of the Union, as was theatrically the case with the judgment rendered on October 7, 2021 by the Polish Constitutional Court ¹⁴ .

Although less disruptive, the doctrine of the French Constitutional Council is nevertheless situated in an imperfect dialectical relationship between the Constitution and Union law (I), whereas in the area of competence which is allotted to it, the Council of State has engaged in a sophisticated dialogue with the CJEU (II). 

I – From imperfect dialectics

At first hesitant about its role in the systemic relations between the national legal order and that of the Union (A), the Constitutional Council’s position leads to equivocal solutions which also raise the question of their practicability (B).

A – Hesitations

In the French republican tradition, judicial review of the conformity of statutory law with the Constitution only appeared with the Constitution of October 4, 1958, which created the Council ¹⁵ . But it was not until 1971 ¹⁶ that the Council granted itself the power to exercise judicial review with regard to the declarations of rights referred to in the Preamble to the Constitution ¹⁷ . Since then, in the national legal space, the constitutionality block thus constituted has been in competition with the international commitments ratified by France, in particular with the law resulting from the European treaties, according to a hierarchy provided for, first, by article 55 of the Constitution, which confers on treaties, under the conditions they define, an authority superior to that of statutory law, and second, by paragraphs 14 and 15 of the Preamble of the Constitution of 1946 ¹⁸ . Restricting itself strictly to the powers it derives from the Constitution ¹⁹ , the Council nevertheless had to rule on the inevitable interference between the fundamental law of the Republic and the European treaties.

1 – From compartmentalization

To settle conflicts between national and supranational norms, the Council first ruled, in a 1975 decision ²⁰ , that it is not responsible, when appealed to review the constitutionality of a statute, to examine compliance with the provisions of a treaty or an international agreement. In doing so, the Constitutional Council implicitly distributed competences on that matter, on the one hand, by reserving to itself the review of statutory law with regard to the Constitution, and on the other hand, by referring the examination of its compatibility with the conventional provisions of direct effect to the ordinary, judicial and administrative courts ²¹ which, sooner ²² or later ²³ , assumed the responsibility to fully exercise the so-called function of “ordinary court applying EU law.” ²⁴ It follows that the relationship of European law with the Constitution is to be examined as much in the case law of the Constitutional Council as in that of the Council of State and, more incidentally, of the Court of Cassation, according to their respective areas of jurisdiction.

2 – To interference

This position of principle of the Constitutional Council on the narrowness of the power conferred on it by article 61 of the Constitution leaves aside three questions: that of the examination of the contradiction of an international treaty before ratification or approval with the Constitution in application of its article 54, that of the constitutionality of a law transposing a European directive, and finally that of the articulation of checks on constitutionality and conventionality, since the introduction, by the constitutional reform of 2008 ²⁵ , of an article 61-1 in the Constitution establishing what the organic law adopted for its application ²⁶ entitles “priority preliminary ruling on the issue of constitutionality.”

In the legal order of the Union, the Constitutional Council is, according to the case law of the CJEU in principle, bound by the cooperation obligations imposed on any court of a Member State ²⁷ . Although it freed itself on its own authority by its aforementioned decision of 1975, ²⁸ it could not avoid being confronted with the articulation of Union law with the Constitution. 

In the first place, this compartmentalization of legal orders can only be practiced in the constitutionality review of statutory law. It cannot obviously be raised during the preliminary assessment of conflicts with the Constitution of the treaties in the course of ratification, in application of article 54 ²⁹ . In this case, in order to authorize the ratification without amending the Constitution, the Constitutional Council ensures that the treaty does not contain “a clause contrary” to it or that it “does not affect the essential conditions of exercise of national sovereignty,” ³⁰ and since 2004, the criteria for review widened to whether the treaty challenges “constitutionally guaranteed rights and freedoms.” ³¹

Thus, when appealed to review the primacy of Union law over the Constitution during the ratification process of the Treaty establishing a Constitution for Europe ³² and then of the Treaty of Lisbon ³³ , the Council had to rule on the normative rank of the Constitution relative to the European treaties. It did so under new conditions since the constitutional statute of June 26, 1992 ³⁴ , introduced an important modification by creating an article 88-1 constitutionalizing the participation of France in the Union ³⁵ . While confirming, by the aforementioned decision of December 20, 2007, that “these constitutional provisions allow France to participate in the creation and development of a permanent European organization, endowed with legal personality and vested with decision-making powers resulting from “transfers of powers granted by the Member States,” ³⁶ the Council distanced itself from the general and absolute conception of the prevalence of EU law over all norms of the Member States resulting from the aforementioned decision of the CJEU, by posing as an intangible principle that, “the Constitution is placed at the top of the internal legal order.” ³⁷ From which it follows that under national law, the supremacy conferred on international conventions does not apply to provisions of constitutional value. No French court could therefore leave unapplied a provision of constitutional value by judging it incompatible with a treaty.

With reference to this principle, in its decision of 2004 ³⁸ , the Council examined the scope given to religious freedom by article 10.1 of the Charter of Fundamental Rights of the European Union (“CFR”) ³⁹ and by article 9 of the” European Convention on Human Rights (“ECHR”) with regard to the case law of the ECtHR leaving States a wide margin of appreciation to reconcile freedom of worship with the principle of secularism ⁴⁰ . It proceeded with the same reasoning ⁴¹ for the assessment of conflict with the Constitution of article 47 of the CFR, which builds on the procedural guarantees of article 6 of the ECHR, imposing the publicity of the judicial debates, with national provisions which restrict this requirement.

Secondly, in the context of the constitutionality review of statutory law, the Constitutional Council cannot avoid assessing the conformity with the Constitution of those statutes which transpose Union directives ⁴² . This raises two questions, on the one hand, the conformity of the statute with the directive, that is to say the accuracy of the transposition, and on the other hand, the conformity of this statute with the Constitution, which, when the statute transposes an unconditional and precise provision of a directive, leads to examining the contradiction of this same directive with the Constitution. This control has been inevitable since the introduction into the Constitution in 1992 of provisions relating to the Union, and in particular Article 88-1. It is therefore on this constitutional basis, and not on principles drawn from the legal order of the Union, that the Constitutional Council, since 2004, sets the principle and the limits of its control under the terms of evolving case-law, today fixed in the following principles ⁴³ . First, it follows from Article 88-1 of the Constitution that “the transposition into domestic law of an EU directive [or the adaptation into domestic law of an EU regulation] results from a constitutional requirement.” In the second place, however, the Council reserves the power to obstruct it when this transposition [or adaptation] “goes against a principle inherent in the constitutional idea of ​​France, unless the constituent power has consented to it.” Thirdly, “In the absence of a challenge to such a rule or principle, the Constitutional Council is not competent to review the conformity with the Constitution of legislative provisions which are limited to drawing the necessary consequences of unconditional and precise provisions of a directive or of the provisions of a regulation of the European Union.” Fourth, in the latter hypothesis “it is the exclusive prerogative of the courts of the European Union, appealed to if necessary for a preliminary ruling, to monitor compliance by this directive or this regulation with the fundamental rights guaranteed by the [law of] the European Union.” Fifth, this appeal to the CJEU for a preliminary ruling could only be decided by the ordinary court, judicial or administrative; the Constitutional Council does not consider itself bound to implement the preliminary ruling mechanism provided for by Article 267 of the TFEU ⁴⁴ for contingent reasons arising from the time limits within which it must issue a decision ⁴⁵ . Within this limit, it can nevertheless declare non-compliant with article 88-1 of the Constitution a legislative provision manifestly incompatible with the directive which it aims to transpose.” ⁴⁶

The keystone of this construction is that the Constitutional Council claims for itself the power to rule that a directive is contrary to a principle inherent in the constitutional identity of France. However, it refrained from giving a definition of this phrase, casting doubt as to the scope of its review. It is only in a recent decision, ⁴⁷ that, without giving criteria, the Council distinguished what is governed by such a principle ⁴⁸ from what is foreign to it. ⁴⁹

By delegating the review of the compatibility of national law with EU law to the judicial and administrative courts, the Council has given them discretion to exclude the application of national law, even when it has been declared compatible with the Constitution, ⁵⁰ which they have done in many cases. To prevent the surge of an uncontrolled transformation of domestic law caused by fundamental rights from European sources, the constitutional reform of July 23, 2008 ⁵¹ established a system of control of the compliance of the law with rights and freedoms guaranteed under the Constitution, when the question is raised during a judicial proceeding; this control being exercised by the Constitutional Council upon appeal from the Council of State or the Court of Cassation. Further, the organic statute setting the procedural modalities of this appeal ⁵² intended to compel the Council of State and the Court of Cassation to appeal to the Constitutional Council before deciding on the arguments contesting the conformity of the provision under review with the international commitments of France and in particular Union law ⁵³ . The Court of Cassation having appealed to the CJEU on the matter for a preliminary ruling on the interpretation of the treaties with regard to this text, ⁵⁴ the Constitutional Council immediately gave a reading compatible with the obligations of national courts drawn from article 267 of the TFEU, thus ruling out the “priority” nature of the preliminary ruling on the issue of constitutionality. ⁵⁵ This did not prevent the CJEU from reasserting the primacy of Article 267 of the TFEU over any national law provision that would, in the words of advocate general M. J. Mazák, “require courts to rule as a matter of priority on whether to submit to the Conseil constitutionnel the question on constitutionality referred to them, inasmuch as that question relates to whether domestic legislation, because it is contrary to EU law, is in breach of the Constitution of the French Republic.” ⁵⁶ In passing, the advocate general insisted on the existential nature for the Union of the principle of primacy ⁵⁷ and the obligations it imposes on any national court, “including a constitutional court.” ⁵⁸

The Council immediately introduced a limit to this new procedure, ruling that compliance with the constitutional requirement to transpose directives does not fall within the “rights and freedoms guaranteed under the Constitution” and cannot therefore be invoked in the context of a priority preliminary ruling on the issue of constitutionality ⁵⁹ .

However, in the specific case of reviewing compliance with the Constitution of the statute laying down the rules relating to the European arrest warrant in application of the Council Framework Decision of 13 June 2002 ⁶⁰ , the Council rejected these limitations ⁶¹ . This application had required a modification of the Constitution ⁶² by the insertion of an article 88-2, which in its current version, provides “Statutes shall determine the rules relating to the European arrest warrant pursuant to acts adopted by the institutions on the European Union.” When reviewing a priority preliminary ruling on the conformity with the Constitution of article 695-46 of the Code of Criminal Procedure relating to the European arrest warrant, which excludes any appeal against the decision to extend the effects of the warrant to other offenses than those which were initially targeted ⁶³ , the Constitutional Council, for the first time, authorized itself, on the specific basis of article 88-2 of the Constitution, to appeal to the CJEU for a preliminary ruling in order to verify whether the exclusion of any appeal procedure was imposed by the directive. By this decision, the Council therefore, in this hypothesis at least, considered itself bound by the obligation incumbent upon any court of a Member State for the application of EU law. In its preliminary ruling, the CJEU regarded it as such ⁶⁴ .

In addition to being generally excluded in the review of the constitutionality of the law, the obligations of the Constitutional Council towards the Union are therefore, by exception, variable and resting on different constitutional bases depending on the categories of secondary legislation of the Union that need be introduced into the internal legal order: flexible but incomplete with regard to the statutes transposing regulations and directives (art. 81-1) but complete with regard to those which lay down the rules for applying the European arrest warrant (art. 81-2), in which case the time limits imposed on the Council to give a ruling would be unenforceable. In the Constitutional Council’s case law, the primacy of Article 267 of the TFEU can be eclipsed ⁶⁵ .

B – Ambiguity

This review of the case law of the French Constitutional Council on the extent to which the Constitution takes into account the primacy of Union law raises two questions of systemic consistency: the first relates to the ability of the Council to promote, in the internal order, a uniformity of interpretation of fundamental rights from a constitutional source with those guaranteed by the CEDF, the second is about the sustainability of these positions in the legal order of the Union.

1 – On the harmonization of fundamental rights

Although it is consistent with the prerogatives conferred on it by the constituent power, ⁶⁶ the Constitutional Council’s position with regard to the legal order of the Union is not conducive to a harmonized application in the internal order of rights and freedoms from a constitutional source with those from a conventional source. By separating the functions of interpretation, between itself, for the rights and freedoms guaranteed by the Constitution and the judicial or administrative courts, for those protected by the ECHR and the CEDF, under the control of one or the other European courts, the Constitutional Council favors divergent visions of fundamental rights with identical content, which is not compatible with the legal certainty essential to the rule of law even if, ultimately, the case law of the two European courts prevails. The procedure of the priority preliminary ruling on the issue of constitutionality which was intended to coordinate the two categories of reviews failed to achieve this goal; so that it is not uncommon that in the essential field of the protection of freedoms, a statute declared in conformity with the Constitution by the Council is then judged incompatible with the law of the Union and excluded in its application by a judicial or administrative court, ⁶⁷ which, even if the inconsistency is clearly assumed, ⁶⁸ ultimately affects both the authority of the constitutional court and the citizen’s feeling of attachment to the historical republican pact.

2 – On the integration of legal orders

Ineffective in the internal order, the Constitutional Council’s position is on several points at odds with the legal order of the Union. This could lead, in certain circumstances, to the initiation of an infringement action against France. ⁶⁹ The crux of this hiatus is ultimately the Constitutional Council’s refusal to recognize the primacy of Union law over the Constitution. From this, it deduces that the basis of its jurisdiction remains strictly constitutional, that, therefore, except as otherwise provided in the Constitution, it is not subject to the cooperation obligations to which any national court is bound in the legal order of the Union, as they were reasserted in the Melki decision; ⁷⁰ that it is not competent to review the conformity of a statute with the law of the Union; finally, that it has the duty to rule out a statute transposing a Union directive that would be contrary to France’s constitutional identity.

Until now, this dogmatic posture has, however, had no effect likely to provoke an institutional crisis with the Union since, in accordance with the autonomy of judicial procedure recognized to the Member States, ⁷¹ it is ultimately on the judicial or administrative court that rests the implementation of the primacy of Union law and the duty of cooperation that it imposes; eventually it is this judicial or administrative court which, in the various cases, decides the compatibility of a provision of constitutional value with Union law. In addition, while giving itself the power to do so, the Constitutional Council has so far refrained from declaring a statute transposing an unconditional and precise provision of a directive or a regulation contrary to a principle inherent in the constitutional identity of France.

In practice, in order to avoid contradictions in the interpretation of fundamental rights from constitutional and European sources, in the preparatory work for its decisions, the Constitutional Council uses the technique of interpretation in conformity. Although this technique does not appear in decisions, it has nevertheless, in several cases, yielded concrete results, ⁷² in particular the integration of the principle “ne bis in idem” in the guarantees drawn from article 8 of the Declaration of 1789. ⁷³

This desire for convergence is complemented by repeated doctrinal initiatives inviting academic jurists and specialized practitioners to analyze the Council’s case law on the question, to theorize it and to compare it with that of the constitutional courts of the other Member States. ⁷⁴ In addition, the Council’s decisions and those of the CJEU relating to this subject are widely commented and the general theme of the relationship between the Constitution and European law gives rise to innumerable publications. In addition, there is a sustained policy of judicial diplomacy within organizations bringing together the high courts of the Member States or by participating in regular working sessions with the CJEU. ⁷⁵ While taking an active part in these integration policies, ⁷⁶ the Council of State has, for its part, recently taken the path of judicial cooperation with the CJEU.

II – Towards dialogical sophistication

Equally fluctuating has been the Council of State’s case law on the application of the principle of primacy of treaties over the Constitution. Long reluctant to acknowledge the impact of Union law in the internal order (A), the administrative jurisdiction has, conversely, for a few years, engaged in close cooperation with the CJEU by fully using the resources offered by preliminary rulings (B). ⁷⁷

A – Reluctance

Respectful of a democratic legitimacy involving the sovereignty of Parliament and therefore of legislation in the internal order, the Council of State, while admitting without difficulty, in application of article 55 of the Constitution, the primacy of international conventions over prior statutes, ⁷⁸ refused for a long time to acknowledge primacy over later statutes ⁷⁹ by seeking refuge in a singular position compared to the Court of Cassation ⁸⁰ , or compared to that of the Member States courts ⁸¹ and breaking with European case law ⁸² . It was not until 1989 ⁸³ that it acknowledged the primacy effect of international treaties, especially European ones, on all internal laws, including later ones, thus assuming the competence the Council delegated to it in its 1975 decision. ⁸⁴ Since then, it has developed case law drawing multiple consequences in its role as ordinary court applying EU law. ⁸⁵

Nevertheless, conforming to the doctrine of the Constitutional Council, the Council of State excluded the Constitution from its conventionality review by stating in principle that “if article 55 of the Constitution provides that ‘Treaties or agreements duly ratified or approved shall, upon publication, prevail over statutory law […],’ the supremacy thus conferred on international agreements does not apply, in the internal order, to provisions of a constitutional nature.” ⁸⁶ To justify this assertion, the authorized commentary on this decision specifies that the Constitution “is the supreme text from which all the authorities of the State, and in particular its judicial bodies, derive their power,” ⁸⁷ while in several public speeches, the Council of State’s Vice-President considered that it is a necessary consequence of article 54 of the Constitution. ⁸⁸ This decision was later confirmed in later case law: in a decision dated March 5, 1999, ⁸⁹ then, more specifically on EU law, in a decision dated December 3, 2001. ⁹⁰

Significantly different is the position of the Court of Cassation. When reviewing the primacy of the law of the Union on the same provision of constitutional value ⁹¹ , it resorted to the same argumentation as the Council of State regarding the generality of international agreements, but avoided ruling on the European treaties, not concerned in the case at hand ⁹² , to take into account “their original specific nature.” ⁹³ Then, in its 2010 decision, ⁹⁴ it did not hesitate to appeal to the CJEU to review the compatibility with article 267 of the TFEU of a provision of the organic statute adopted for the application of article 61- 1 of the Constitution.

B – Followed by commitment

The position thus adopted by the Council of State led it to follow and deepen the case law of the Constitutional Council on the control of statutes transposing Union directives. It first did so in a decision dated February 8, 2007. ⁹⁵ After citing the main argument of the Constitutional Council, the Council of State adds, with regard to its own competence that “the constitutional review of regulatory acts directly ensuring this transposition must be exercised according to particular modalities in the event that precise and unconditional provisions are being transposed;” it then completed the review methodology established by the Constitutional Council by detailing several phases. First of all, “…it is up to the administrative court, appealed to on the basis of alleged disregard of a provision or a principle of constitutional value, to determine whether there is a rule or a general principle of [European] Community law which, having regard to its nature and scope, as interpreted in the current state of the case-law of the Community courts, guarantees through its application the effectiveness of compliance with the provision or the constitutional principle invoked.” Then, “…if so, it is necessary for the administrative court, in order to ensure the constitutionality of the decree, to find out whether the directive which this decree transposes is in conformity with this rule or this general principle of community law.” An alternative then opens up. First possibility: “in the absence of serious difficulty, the administrative court must rule out the argument invoked,” and otherwise “appeal to the Court of justice of the European Communities for a preliminary ruling, under the conditions provided for by article 234 of the Treaty establishing the European Community [now 267 of the TFEU].” Second branch: “on the other hand, if there is no rule or general principle of Community law guaranteeing the effectiveness of compliance with the provision or the constitutional principle invoked, it is up to the administrative court to directly examine the constitutionality of contested regulatory provisions.” In accordance with the methodological rules thus laid down, the Council of State suspended its decision and appealed to the CJEU for a preliminary ruling on the validity of the directive in question with regard to the general principle of equality under European law, the constitutional equivalent of which resides in the article 6 of the Declaration of 1789.

This first step in the preliminary ruling dialogue was followed by others that refined the method. Thus, in a decision dated April 10, 2008, ⁹⁶ the Council of State extended the review procedure to the case where the directive disregards, not a constitutional provision, but a guarantee of the ECHR (in this case Articles 6 and 8). In such a case, it indicated that “when an argument alleging that a statute transposing a directive is itself incompatible with a fundamental right guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and protected as a general principle of Community law is invoked before the administrative court, it is up to the administrative court to first ensure that the statute carries out an exact transposition of the provisions of the directive.” Then, if this is the case, “the argument alleging disregard of this fundamental right by the transposition statute can only be assessed according to the procedure for reviewing the directive itself.” In the present case, to avoid bringing such an action before the European court, the Council of State noted that with regard to the same provision, the CJEU had already ruled following an appeal for a preliminary ruling from another national court (the Court of Arbitration – now Constitutional Court – of Belgium) and it drew its own decision from the preliminary ruling of the CJEU. ⁹⁷ Thus, regarding the validity or the interpretation of a directive, the cooperative dialogue with the CJEU can extend to several jurisdictions of the Member States.

Finally, in a 2016 decision ⁹⁸ drawing the consequences of the Melki decision, ⁹⁹ the Council of State, addressing a priority preliminary ruling on the issue of constitutionality, granted to itself the power to raise ex officio the difficulty of interpretation of a directive, when the interpretation or assessment of its validity determines the constitutionality of the statute in question, and to appeal to the CJEU. In an unprecedented interpretation, refraining from appealing to the Constitutional Council, the Council of State enjoined the petitioner to assess, following the CJEU’s decision, whether it was necessary to request another review of the conformity of the contested provision with the Constitution. Thus, in such a hypothesis, the conventionality review takes precedence over that of constitutionality.

Conclusion

The analysis of the French high court decisions compared to those of the CJEU reveals that the systemic relations between the legal order of the Union and the national Constitution, in addition to generating contradictory solutions, meet complex requirements, manipulating malleable criteria such as, generally, the national identity, inherent in the fundamental political and constitutional structures of the Member States ¹⁰⁰ , and specifically, the principles inherent in the constitutional identity of France ¹⁰¹ , whose content and application can promote convergence or instead stir up oppositions. ¹⁰²

The implementation of these rules is, moreover, guided by ethical principles governing the attitude of both jurisdictional orders: on the part of the Union and its court, respect for identities national, on both sides, loyal cooperation, respect and mutual assistance for the accomplishment of the missions arising from the treaties; ¹⁰³ all subjective principles which leave the various jurisdictions the latitude conducive to strategies of power or submission, domination or resistance, integration or separation.

In the aforementioned conclusions, ¹⁰⁴ Advocate General Miguel Poires Mauro, insists on the complexity of this mechanism of avoiding conflicts of fundamental norms: “…an examination of the compatibility of Community acts with the constitutional values and principles of the Member States may be carried out only by way of Community law itself and is confined, essentially, to the fundamental values which form part of their common constitutional traditions. Community law having thus incorporated the constitutional values of the Member States, national constitutions must adjust their claims to supremacy in order to comply with the primordial requirement of the primacy of Community law within its field of application. This does not mean that the national courts have no role to play in the interpretation to be given to the general principles and fundamental rights of the Community. On the contrary, it is inherent in the very nature of the constitutional values of the Union as constitutional values common to the Member States that they must be refined and developed by the Court in a process of ongoing dialogue with the national courts, in particular those responsible for determining the authentic interpretation of the national constitutions.”

In order for this subtle irenic dynamic to reach its goal, it is also necessary that, on both sides, it be activated by judges reacting with flexibility in consideration of the foundations of the Union enumerated by Article 2 of the TEU and that they appreciate the value of the rule of law….

But the question is now out of the circle of judges; it mobilizes the political balance of power within the Union and, in some Member States, agitates the rhetoric of the tribunes of the people. Are then put in motion the ideological ingredients of simplifying irrationality.

“Simplifying thought is incapable of conceiving the conjunction of the one and the many (unitas multiplex). Or else it unifies abstractly by canceling out diversity. Or, on the contrary, it juxtaposes diversity without conceiving of unity.”

Edgar Morin, op.cit.

1.  The origin of which is a serious attack on the independence of the courts.
2.  O. Pfersmann, “La primauté: double, partiellement directe, organiquement indéterminée », in Cahiers du Conseil constitutionnel, n° 18 (dossier: Constitution et Europe) – July 2005 ; Opinion of advocate general Miguel Poiares Maduro, Case C-127/07, Société Arcelor Atlantique et Lorraine e.a, pt 15: “Those concurrent claims to legal sovereignty are the very manifestation of the legal pluralism that makes the European integration process unique.”
3.  CJEC, 5 February 1963, van Gend & Loos, Case 26-62 ; B. Bonnet, “Les rapports entre droit constitutionnel et droit de l’Union européenne, de l’art de l’accommodement raisonnable,”, Conseil constitutionnel | “Titre VII”, 2019/1 N° 2 | pp 11-21.
4.  CJEC, 15 July 1964, Costa v E.N.E.L., Case 6-64.
5.  CJEC, 13 February 1969, Walt Wilhelm, Case 14-68, 17 December 1970, Interlationale Handelsgesellschaft, Case 11-70.
6.  CJEU, 5 April 2016, Aranyosi and Caldararu, Joined Cases C-404/15 and C-659-15.
7.  Didier Blanc, “Assurer le caractère commun du droit de l’Union: de l’uniformité d’application à l’homogénéisation ? Une main tendue au bout du bras de fer,” in Réseau des normes, réseau des juridictions (ed. H. Gaudin), LGDJ, 2021.
8.  J.-P. Jacqué, “La CJUE de l’Union européenne et la théorie des ‘contre limites,’” 2005, accessible via the following link: <http://www.droit-union-europeenne.be/432984946>.
9.  Article 53 CFR; CJEU, 26 February 2013, Melloni, Case C-399; 23 February 2013, Fransson, Case C-617/10; 24 June 2019, Poplawski, Case C-573/17. 
10.  Article 4, §2 of the Treaty on European Union (“TEU”); CJEU, 8 September 2017, M.A.S. and M.B., Case C-42/17.
11.  Article 258 of the Treaty on the Functioning of the European Union (“TFEU”).
12.  CJEU, 12 November 2009, Commission v Spain, Case C-154/08.
13.  See for Italy, Germany and Spain: X. Magon, “Le juge constitutionnel et le droit européen,” Annuaire de Droit européen, 2004, Vol. II, 2006, pp. 119-147. Regarding Germany specifically: C. Langenfeld, “La jurisprudence récente de la Cour constitutionnelle allemande relative au droit de l’Union européenne,” Titre VII, n° 2, April 2019 and, most recently, the German Federal Constitutional Court’s decision regarding the PSPP purchases of the European Central, dated 5 May 2020.
14.  Polish Constitutional Tribunal, Judgment in the name of the Republic of Poland, Warsaw, 7 October 2021, Assessment of the conformity to the Polish Constitution of selected provisions of the Treaty on European Union, Ref. No. K 3/21.
15.  Articles 56 to 63 of the Constitution.
16.  Cons. Council, 16 July 1971, n° 71-44 DC, Loi complétant les dispositions des articles 5 et 7 de la loi du 1er juillet 1901 relative au contrat d’association.
17.  “The French people solemnly proclaim their attachment to the Rights of Man and the principles of national sovereignty as defined by the Declaration of 1789, confirmed and complemented by the Preamble to the Constitution of 1946, and to the rights and duties as defined in the Charter for the Environment of 2004.”
18.  Al. 14 “The French Republic, faithful to its traditions, shall respect the rules of public international law. It shall undertake no war aimed at conquest, nor shall it ever employ force against the freedom of any people.”
19.  Cons. Council, 15 January 1975, n° 74-54 DC, Loi relative à l’interruption volontaire de la grossesse.
20.  Ibid, recitals 1 to 7.
21.  Cons. Council, 3 September 1986, n° 86-216 DC, Loi relative aux conditions d’entrée et de séjour des étrangers en France; Cons. Council, 29 December 1989, n° 89-268 DC, Loi de finances pour 1990.
22.  Court of Cass., mix. cham., 24 May 1975, n° 73-13.556, Jacques Vabre: Bull. civ., n° 4. 
23.  Council of State, Ass. 20 October 1989, n° 108243, Nicolo.
24.  CJEU, 9 March 1978, Simmenthal (see above); G. Canivet, “Le droit communautaire et l’office du juge national,” Droit et Société, 1992 n°20-21, pp. 133-141.
25.  Constitutional statute n° 2008-724 of 23 July 2008 on the modernization of the institutions of the Fifth Republic, art. 29.
26.  Organic statute n° 2009-1523 of 10 December 2009 relating to the application of article 61-1 of the Constitution.
27.  See, in particular, CJEU decisions of 9 March 1978 Simmenthal (above) pts 21 and 24; of 20 March 2003, Kutz-Bauer, C-187/00, Rec. p. I-2741, p 73; of 3 May 2005, Berlusconi e.a. C-387/02, C-391/02 and C-403/02, Rec. p. I-3565, pt 72, of 19 November 2009, Filipiak, C-314/08, pt 81.
28.  It was reminded of its obligations by the CJEU decision Aziz Melki and Sélim Abdeli of 22 June 2010, Joined Cases C‑188/10 and C‑189/10, pt 56.
29.  “If the Constitutional Council, on a referral from the President of the Republic, from the Prime Minister, from the President of one or the other Houses, or from sixty Members of the National Assembly or sixty Senators, has held that an international undertaking contains a clause contrary to the Constitution, authorization to ratify or approve the international undertaking involved may be given only after amending the Constitution.”
30.  Cons. Council, 9 April 1992, n° 92-308 DC, Traité sur l’Union européenne (Maastricht I, II, III), recital 14; Cons. Council, 31 December 1997, n° 97-394 DC, Traité d’Amsterdam, recital 7.
31.  Cons. Council, 19 November 2004, n° 2004-505 DC, Traité établissant une Constitution pour l’Europe, recital 7
32.  Article I-6 of the Treaty, Decision 19 November 2004, n° 2004-505 DC (above), recital 13.
33.  Cons. Council, 20 December 2007, decision n° 2007-560 DC, Traité de Lisbonne modifiant le traité sur l’Union européenne et le traité instituant la Communauté européenne.
34.  Constitutional statute n° 92-554 of 25 June 1992 adding to the Constitution the title “On the European Communities and the European Union.”
35.  Art. 88-1 (resulting from the constitutional statute n° 2008-103 of 4 February 2008 modifying title XV of the Constitution), “The Republic shall participate in the European Union constituted by States which have freely chosen to exercise some of their powers in common by virtue of the Treaty on European Union and of the Treaty on the Functioning of the European Union, as they result from the treaty signed in Lisbon on 13 December, 2007.”
36.  Cons. Council, 20 December 2007, n° 2007-560 DC (above), recital 7.
37. Ibid, recital 10; expression reiterated by Cons. Council, 9 August 2012, n°2012-653 DC, Traité sur la stabilité, la coordination et la gouvernance au sein de l’Union économique et monétaire, recital 9.
38.  Decision n° 2004-505 (above), recital 18.
39.  Article 10.1 of the CFR: “Freedom of thought, conscience and religion. Everyone has the right to freedom of thought, conscience and religion. This right includes freedom to change religion or belief and freedom, either alone or in community with others and in public or in private, to manifest religion or belief, in worship, teaching, practice and observance.”
40.  Decision n° 2004-505 (above), recital 18.
41.  Decision n° 2004-505 (above), recital 19.
42.  G. Canivet, “Le contrôle du Conseil constitutionnel sur les lois de transposition des directives communautaires, Principes fondamentaux et transposition des directives communautaires,” conference in Budapest, 1-3 October 2009: <https://www.conseil-constitutionnel.fr/les-membres/le-controle-du-conseil-constitutionnel-sur-les-lois-de-transposition-des-directives-communautaires>.
43.  Cons. Council, 15 October 2021, n° 2021-940 QPC, Société Air France [Obligation for air carriers to re-route foreigners who are refused entry into France], recital 9.
44.  Cons. Council, 27 July 2006, n° 2006-540 DC, Loi relative au droit d’auteur et aux droits voisins dans la société de l’information, recital 19.
45.  In the cases provided for by article 61 of the Constitution “the Constitutional Council must rule within one month. However, at the request of the Government, if there is an emergency, this period is reduced to eight days.” In matters of priority questions of constitutionality, if article 61-1 of the Constitution requires the Council to rule “within a certain time,” it is the organic statute of 10 December 2009 taken for its application which provides that it decides within three months (article 23-10 Ordinance n° 58-1067 of 7 November 1958 establishing organic statute on the Constitutional Council)
46.  Cons. Council, 27 July 2006, n° 2006-540 DC (above), recital 20.
47.  Cons. Council, 15 October 2021, n° 2021-940 QPC, Société Air France [Obligation for air carriers to re-route foreigners who are refused entry into France].
48.  “The prohibition on delegating to private persons general administrative police powers inherent in the exercise of ‘public force’ necessary to the guarantee of rights,” recital 15.
49.  “The right to safety, the principle of personal responsibility and equality before public charges, which are protected by European Union law,” recital 14.
50.   Cons. Council, 12 May 2010, n° 2010-605 DC, Loi relative à l’ouverture à la concurrence et à la régulation du secteur des jeux d’argent et de hasard en ligne, recital 13. “Firstly, the authority attached to the decision of the Constitutional Council under Article 62 of the Constitution does not restrict the jurisdiction of Courts of law and Administrative Courts to ensure that such commitments shall prevail over a statutory provision which is incompatible with the same, even when the said provision has been held to be constitutional.”
51.  Article 29 of the constitutional statute n° 2008-724 of 23 July 2008 on the modernization of the institutions of the Fifth Republic.
52.  Statute n° 2010-830 of 22 July 2010 on the application of article 65 of the Constitution.
53.  Article 23-5, point 2 of the Ordinance n° 58-1067 of 7 November 1958 establishing an organic law on the Constitutional Council.
54.  Court of Cass, 16 April 2010, Aziz Melki (n° 10-40001) and Sélim Abdeli (n° 10- 40002).
55.  Cons. Council, 12 May 2010, n° 2010-605 DC (above), recital 13 to 15.
56.  Opinion of advocate general M. J. Mazák, 7 June 2010, Joined Case C-188/10 and C-189/10, Aziz Melki and Sélim Abdeli, pt 77.
57.  Pt 73: “the principle of primacy (…) is the cornerstone of EU law. (…) That principle was recalled again, recently, in the declarations annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon signed on 13 December 2007.”
58.  D. Simon, A. Rigaux, “La priorité de la QPC: harmonie(s) et dissonance(s) des monologues juridictionnels croisés,” Nouveaux cahiers du Conseil constitutionnel, n°29, October 2010. Accessible here: <https://www.conseil-constitutionnel.fr/node/2830/pdf>.
59.  Cons. Council, 12 May 2010, n° 2010-605 DC (above), recital 19.
60.  Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA).
61.  Cons. Council, 4 April 2013, n° 2013-314P QPC, M. Jeremy F. [Absence of appeal in the event of an extension of the effects of the European arrest warrant – preliminary question to the CJEU].
62.  Constitutional statute n° 2003-267 of 25 March 2003 relating to European arrest warrant. 
63.  Article 685-46 §4 of the Code of Criminal Procedure (article 17 of the statute n°2004-204 of 9 March 2004).
64.  CJEU, 30 May 2013, C-168/13 PPU, Jeremy F.
65.  X. Magnon, “La révolution continue: le Conseil constitutionnel est une juridiction… au sens de l’article 267 du Traité sur le fonctionnement de l’Union européenne,” Revue française de droit constitutionnel, 2013.
66.  A. Levade, “Constitution et Europe ou le juge constitutionnel au cœur des rapports de système,” Cahiers du Conseil constitutionnel, n° 18, July 2005; “Le Conseil constitutionnel et l’Union européenne,” Cahiers du Conseil constitutionnel, Hors-série – colloque du cinquantenaire, 3 November 2009; “La construction européenne et son incidence sur les compétences étatiques et la hiérarchie des normes,” Revue française de droit constitutionnel, 2015/2 (n° 102).
67.  For examples of these cases, see G. Canivet, “L’incontournable question de l’application du droit européen par le juge constitutionnel français,” Conference organized by the Academy of European Law on the protection of fundamental rights in the European Union, Trier, 18-19 June 2015: <https://www.conseil-constitutionnel.fr/les-membres/l-incontournable-question-de-l-application-du-droit-europeen-par-le-juge-constitutionnel-francais>.
68.  Cons. Council, 15 January 1975, n° 74-54 DC (above), recital 5 “A statute that is inconsistent with a treaty is not ipso facto unconstitutional,” n°2010-605 DC (above), recital 13 “Firstly, the authority attached to the decision of the Constitutional Council under Article 62 of the Constitution does not restrict the jurisdiction of Courts of law and Administrative Courts to ensure that such commitments shall prevail over a statutory provision which is incompatible with the same, even when the said provision has been held to be constitutional.”
69.  Articles 258 to 261 of the TFEU.
70.  CJEU, 22 June 2010 (above), recitals 40 to 45.
71.  CJEC, 16 December 1976, Case 33-76, pt 6.
72.  G. Canivet, “L’incontournable question de l’application du droit européen par le juge constitutionnel français,” (above); see for instance, Cons. Council, 28 May 2010, n° 2010-1 QPC, Cristallisation des pensions.
73.  Cons. Council, 18 March 2015, n° 2014-453/454 QPC et 2015-462 QPC, M. John L. et autres [Cumulation of two insider trading prosecutions:  misfeasance (manquement d’initié) and intentional tort (délit d’initié)].
74.  See most recently: “De l’intégration des ordres juridiques: droit constitutionnel et droit de l’Union européenne », Titre VII, 2019/1 (N° 2).”
75.  Cons. Council, international activities: <https://www.conseil-constitutionnel.fr/le-conseil-constitutionnel/activites-internationales>.
76.  Council of State, 2020 report, Third part, Etudes, “Débats, partenariats, coopération européenne et internationale,” p. 380.
77.  J.-M. Sauvé, “Le CE et le droit européen et international,” speech delivered at the University of Tokyo on Wednesday October 26, 2016: <https://www.conseil-etat.fr/actualites/discours-et-interventions/le-conseil-d-etat-et-le-droit-europeen-et-international>; “L’autorité du droit de l’Union européenne: le point de vue des juridictions constitutionnelles et suprêmes,” Address by Jean-Marc Sauvé at the Congress of the 25^th anniversary of the Academy of European Law at Trier on 19 October 2017: <https://www.conseil-etat.fr/actualites/discours-et-interventions/l-autorite-du-droit-de-l-union-europeenne-le-point-de-vue-des-juridictions-constitutionnelles-et-supremes>.
78.  Council of State, 1 March 1968, Syndicat des fabricants de semoule, recital 149.
79.  Council of State, 1 March 1968 (above); 22 October 1979, Union démocratique du travail, n° 17541; Council of State Ass., 13 May 1983, SA René Moline, n° 37030.
80.  Court of Cass. mix. cham., 24 May 1975 (above)
81.  The Belgian Court of Cassation, the German Federal Constitutional Court and the Italian Constitutional Court had all recognized the primacy of international law over national law. See: B. Stirn and Y. Aguila, Droit public français et européen, Dalloz, 2014, p. 157.
82.  CJEC, 9 March 1978, Simmenthal (above)
83.  Council of State, Ass., 20 October 1989, n° 108243, Nicolo (above).
84.  Cons. Council, 15 January 1975 (above)
85.  For the detail of this case law, see Jean-Marc Sauvé, speech delivered at the University of Tokyo (above)
86.  Council of State, Ass., 30 October 1998, n°200286, Sarran and Levacher.
87.  <https://www.conseil-etat.fr/ressources/decisions-contentieuses/les-grandes-decisions-du-conseil-d-etat/conseil-d-etat-assemblee-30-octobre-1998-sarran-et-levacher>.
88.  Jean-Marc Sauvé, speech delivered at the University of Tokyo (above)
89.  Council of State, Ass., 5 March 1999, n°194658, Rouquette and autres.
90.  Council of State, 3 December 2001, n°226514, Syndicat national de l’industrie pharmaceutique. 
91.  Article 188 of the organic statute dated 19 March 1999.
92.  Court of Cass., plenary ass., 2 June 2000, 99-60.274.
93.  CJEU, Costa c/ ENEL (above), pt 3.
94.  Court of Cass., plenary ass., 16 April 2010 (above)
95.  Council of State, 8 February 2007, n°2871110, Société Arcelor Atlantique et Lorraine et autres.
96.  Council of State, 10 April 2008, n°296845.
97.  CJEU, 26 June 2007, Case C-305/05, Ordre des barreaux francophones et germanophones e.a.
98.  Council of State, 31 May 2016, n°393881.
99.  CJEU, 22 June 2010 (above).
100.  Article 4, §2 of the TEU
101.  Notion derived from the case law of the Constitutional Council.
102.  F. Fines, “La double identité, nationale et constitutionnelle, des Etats membres de l’Union,” Revue générale du droit, 2021, n°57833.
103.  Article 4, §3 of the TEU.
104.  Opinion of advocate general Miguel Poiares Maduro, 16 December 2008, Case C-127/07, pt 17.