The monitoring of the constitutionality of laws enables the checking of the conformity of such laws to constitutional provisions. The introduction of the monitoring of constitutionality in France in 1958 strengthened the power of the Constitution and led to jurisprudence with significant consequences.

I. – the Constitutional Council

The Constitutional Council is made up of nine appointed members and certain ex officio members.

1. – Appointed members

The President of the Republic, the President of the Senate and the President of the National Assembly each appoint three constitutional councillors (one every three years) for a nine-tear term. The length of this term and its non-renewable nature aims at guaranteeing their independence. There are no professional qualifications and there is no age limit to be a member and so every person of French nationality with full political and civil rights is eligible. In practice, the members of the Constitutional Council are often former politicians, high-ranking civil servants or lawyers.

2. – The President

The President of the Republic also appoints the President of the Constitutional Council from among its members. Any of the members may be so-appointed but the President of the Republic usually chooses a member whom he has just appointed. The procedure concerning an interim presidency of the Constitutional Council is not laid down in any law but when the then President, Roland Dumas, put himself “on leave” in 1998, he himself handed over all his powers provisionally to the oldest member of the council, before leaving the council definitively in 2000.

The President of the Constitutional Council carries out the chairmanship of the sittings, appoints the rapporteur for each file and has the casting vote in the case of a tie.

3. – Ex Officio Members

Former Presidents of the Republic are all life ex officio members of the Constitutional Council. In practice former presidents have rarely sat on the council. Two former presidents of the IV^th Republic, Vincent Auriol and René Coty, sat sporadically until 1962. General de Gaulle did not sit. Valéry Giscard d’Estaing only began sitting from June 2004. Incompatibilities of office also apply to the ex officio members of the Constitutional Council and so Valéry Giscard d’Estaing could not have sat before the end of his final electoral term of office in April 2002.

4. – The status of members of the Constitutional Council

The appointed members of the Constitutional Council take an oath before the President of the Republic. Their office entails a duty to preserve secrecy and is incompatible with any the exercise of any national, local or European elected position. It is also incompatible with any political activity irreconcilable with the independence required to carry out their duties. Constitutional councillors are also subject to the same professional incompatibilities as M.P.s and may not be appointed to any public post during their term of office.  

The members of the Constitutional Council receive an allowance which is equal to the salaries earned by the two upper echelons of State officials.

They must refrain from all actions which could compromise the independence and the dignity of their office and in particular from taking any public position on matters liable to be the subject of a decision by the council. The deliberations and votes must also be kept secret.

In addition, constitutional councillors may not be removed, nor appointed for an extra term by the appointing authorities unless they were previously appointed for a period of less than three years as a replacement for a member whose office was terminated before the normal period. Only the Constitutional Council itself may declare the withdrawal from office of one of its members who has not fulfilled his duties. This procedure has never been used. 

II. – the monitoring procedures of constitutionality

1. – The monitoring of ordinary laws (article 61, paragraph 2 of the Constitution)

The Constitutional Council’s jurisdiction only applies to laws passed by the Parliament. On two occasions the Constitutional Council has declared laws passed by referendum to be outside its jurisdiction.

Matters may be referred to the Constitutional Council by the President of the Republic, the Prime Minister, the President of the Senate, the President of the National Assembly or, since the constitutional revision of 1974, by 60 M.P.s or 60 Senators. The referral must take place in the period between a bill being passed by Parliament and its promulgation, i.e. in a two-week period. Such a referral postpones the promulgation of the bill.

The Constitution does not provide for any such monitoring after promulgation. Nonetheless, since a decision of January 25, 1985, the Constitutional Council has accepted that the constitutionality of a law which has been promulgated “may well be contested upon the examination of legislative provisions which modify it, supplement it or affect its field of application”.

The Constitutional Council has one month to make its declaration although this time limit may be shortened to eight days in urgent circumstances upon the request of the Government.

When the Constitutional Council declares the law in conformity with the Constitution, it may be promulgated.

On the contrary, a decision which declares the whole law to be unconstitutional blocks its promulgation. The legislative procedure which has led to the passing of such a law is annulled and there is no other solution than to begin again from the beginning, unless the reason for the non-conformity constitutes a decisive obstacle which implies, for example, a prior revision of the Constitution itself.

The Constitutional Council may also decide that a law is partly in conformity with the Constitution. In such a case, the law may be promulgated except for the articles or parts of articles which have been declared unconstitutional (and on the condition such articles or parts of articles are “separable” from the rest of the provisions).

2. – The monitoring of international commitments
(article 54 of the Constitution)

This form of monitoring deals with treaties as well as all other international commitments. The procedure which is followed is the same as that for laws and such matters can be referred to the Constitutional Council by the same people (although the referral by 60 M.P.s and 60 Senators was only introduced in 1992) up until the ratification of the treaty. If the treaty is not in conformity with the Constitution then the latter must be revised prior to any ratification.

3. – Obligatory monitoring (article 61, paragraph 1 of the Constitution)

Institutional laws and the Rules of Procedure of the assemblies (the National Assembly, the Senate and the Congress) must be systematically referred, before their promulgation, to the Constitutional Council, by the Prime Minister.

III. –  the content and the carrying-out of decisions

1. – The content of decisions

The procedure is written and inquisitorial. Although the text of the referral (since 1983) and the observations of the Secretary General of the Government (since 1984) are published in the Journal Officiel, the procedure remains confidential. This enables a debate between those who have referred the matter and the Secretary General of the Government, who is in charge of defending the law.

As regards international commitments, institutional laws and parliamentary Rules of Procedure, the Constitutional Council must check the conformity to the Constitution of the entire text.

The Constitutional Council may declare the legislative provisions in conformity subject to certain interpretations, either by detailing the way in which they must be interpreted (neutralizing interpretation), by adding to them (constructive interpretation) or by making clear the way in which they must be applied (directive interpretation).

2. – The carrying-out of decisions

A treaty which is declared unconstitutional cannot be ratified without a revision of the Constitution.

A provision of parliamentary Rules of Procedure which is declared unconstitutional cannot be applied whilst that of a law cannot be promulgated. In the case of a law, the President of the Republic may, nonetheless, promulgate the law minus the provision(s) or request a new deliberation of Parliament (article 10 of the Constitution).