La Constitution (France) - Edition 2012 (French Edition)

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Jefferson in Paris: The Constitution, Part I

As explained above, the referendum was not a reflection of a simple yes or no vote to Europe. Indeed, campaigns run by political parties were crucial in attuning to salient issues. In France, the campaign was long, impassioned and intense, while in the Netherlands, the campaign started little less than a month before the referendum took place. Because of its length and intensity, it had a polarising effect and was able to activate issue preferences. Hobolt and Brouard explain that partisanship had not a large influence in France. In other words, party attachment did not play a key role in the vote.

The contrary was the case for the Netherlands: the majority of the voters were in fact swayed by their party. In the Netherlands, the referendum on the Constitution was initiated by a parliamentary resolution, and it was the first since Thus, when the campaign started about one month before the referendum, the mainstream political parties were more on the defense rather than providing strong arguments in favour. The parties against the Constitution effectively used their campaigns and the media to gain votes. A particular aspect of campaign effects can be found in France.

Bolkestein infamously said that he would love to get a Polish plumber for his house in northern France, as he was not able to find a competent French plumber 5. Evidently, most discourses comprising the debate on the European Constitution in touched on issues that were not or only indirectly related to the Constitution itself. Rather, they reflected other concerns of political parties and voters about domestic or European topics. In France, voters expressed their concerns about unemployment, the free movement of services, and the level of the welfare state. These apprehensions were not new, nor did they seize to play a role after It makes sense, therefore, to employ a broader perspective on these matters and analyse how they can be understood beyond the scope of the Dutch and French referenda.

This approach implies that we find is plausible to assume that the grievances of European citizens, as expressed in their rejection of the European Constitution, were partly directed, albeit indirectly, at the state of the Union in general and not necessarily at the content of the Constitution proposal.

As indicated before, the concerns expressed in the context of the Constitution proposal were not new. The arguable flaws of European integration were felt years before. At its inception, the founders of the European project indicated their willingness to develop social and fiscal integration alongside financial integration in a non-binding manner. This went fairly well until the oil crisis of the 70s forced the European welfare states to make severe budget cuts and reform their public sector organisations, thus directing their attention to merely domestic needs.

This shift started the misalignment among Member States in basically every field except the market. Furthermore, the expansion of the European Union after the turn of the century introduced states into the European Union with different levels of welfare states.

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In an attempt to protect their welfare states against the perceived threat of devaluation, Member States became even more sceptical towards integration. The expansion introduced the inequality between Member States which facilitated the phenomenon of social dumping, in which employees make use of the freedom of services but remain bound to their national labour market system and the wages they get paid.


What we are left with, are the consequences of having a single market and the four freedoms of goods, capital, services, and labour, without being able to respond to the inevitable challenges that occur due to this organisation. People in Europe are not offered the same social protection or working conditions. The lack of fiscal policy in the EU causes countries to offer low taxes in order to attract big companies and therewith creating job opportunities, leading to a downward spiral of tax standards in Europe.

They felt that European integration was not heading in the right direction. Eurobarometer survey results underlined this conclusion. The dissatisfaction expressed in remains relevant today, as the underlying problems are still unsolved. After the financial crisis and the refugee crisis, Member States are even more reluctant and sceptical towards cooperation, and showcased a downright lack of solidarity in the context of the refugee crisis.

People have further displayed their lack of faith in European cooperation by voting for nationalist parties in virtually each Member State in recent years. The problems are also acknowledged by the EU itself in the person of the Jean-Claude Juncker who vowed to make Europe more social at the start of his term.

Nonetheless, the EU needs cooperation of the Member States to be able to streamline these issues on a European level, as much as the Member States need the EU to tackle them domestically. In terms of competences, both the EU and the Member States remain handicapped as it is. Understood as such, it fits in a larger narrative which ought to be fully understood by European politicians should they wish to accelerate the integration process once more.

If the Conseil constitutionnel declares the agreement incompatible with the French Constitution, the EU procedure will be delayed, until the Constitution is amended. Worse, if the constitutional amending process cannot be completed, [26] France is prevented from ratifying the EU agreement, causing the collapse of the conclusion procedure at the EU level. Even if the Conseil constitutionnel declares the agreement compatible with the French Constitution, the Members of Parliament who activated Art. In other words, cases brought before the Conseil constitutionnel pursuant to Art.

Regarding the grievances, the applicant Members of Parliament claimed that CETA introduced binding rules that could affect the definition of national legal standards and, therefore, infringe the essential condition for exercising national sovereignty. They also contested the constitutionality of the stipulations dealing with investments in Section F of Chapter 8 of the agreement, and claimed that this agreement infringed the principle of precaution laid out in Art.

The Conseil constitutionnel entirely rejected these claims and declared that CETA does not contain unconstitutional clauses. Indeed, some extracts are unclear, incomplete, if not questionable, and give the impression that the Conseil constitutionnel is not totally at ease with its ruling. Given the specificity of EU mixed agreements, its margin of manoeuvre is actually quite narrow. This can explain why the Conseil constitutionnel has to use a very specific and innovative reasoning in order to define its task II.

In order to define the extent of its control, the Conseil constitutionnel had to take into account the specific nature of EU mixed agreements. This results in two essential consequences. On the one hand, since EU mixed agreements are at the same time international undertakings made by France and EU secondary legislation, the Conseil constitutionnel establishes a monitoring method based on both Art.

On the other hand, since EU mixed agreements may contain provisions falling under both exclusive and shared competences, the Conseil constitutionnel defines a two-tiered constitutional review based on the division of competence between the EU and its Member States II. In order to define its task, the Conseil constitutionnel starts by replicating the different steps it had already set when he examined, on the basis of Art.

From this point of view, the reader understands from the beginning of the decision that the context is highly sensitive. Indeed, the first constitutional principle the Conseil constitutionnel invokes is the principle of national sovereignty which is proclaimed in different constitutional sources. This can easily be explained. Through any international undertaking, France may consent to limitations upon its sovereignty.

But the sovereignty issue is even more significant in the CETA case. It is an EU mixed agreement. Of course, even in this particular case, Art. Consequently, as far as an EU agreement is concerned, the issue of the articulation between the French constitutional order and the EU legal order is raised. This means that the Conseil constitutionnel does not have a wide leeway when it controls the compatibility of EU agreements with the Constitution.

It remains subject to EU law principles. On the one hand, the Conseil constitutionnel infers from Art. Here, it refers, implicitly at least, to the expression used by the Court of Justice in the seminal Costa v. Enel decision and, therefore, acknowledges the specificity of the EU legal order and its inherent principles, such as the principle of primacy.

This allows the Conseil constitutionnel to invoke the criteria it had progressively developed when it monitored, on the basis of Art.

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Besides, the specific nature of the CETA — international undertaking made by France and EU secondary legislation — leads the Conseil constitutionnel to clarify its mission and to strictly limit it to the control of compatibility of the CETA with the French Constitution. Nevertheless, the CETA case calls into question this same statement and raises a specific issue that will probably stand out again if another EU agreement is brought before the Conseil constitutionnel.

Beyond that, if the Conseil constitutionnel had declared CETA to be incompatible with these constitutional principles, it would have, to some extent, cast a serious doubt on the compatibility of CETA with EU Law — and therefore on its validity. The situation however differs from the control of EU acts which are already in force. In that case, as it is well known, national courts can declare that EU acts are valid but they must not claim that such acts are invalid.

This problem does not exist with an EU international agreement still waiting to be ratified. A preliminary ruling would not help the Conseil constitutionnel to decide whether the French Constitution has to be revised before the national ratification can occur. There is no necessity for the constitutional principle to be interpreted in the same way as the corresponding EU principle. Likewise, there is probably no necessity to verify whether the EU international agreement respects EU principles to establish, afterwards, its compatibility with the French Constitution.

Following this first step in defining the scope of its task, the Conseil constitutionnel then underlines the specificity of EU mixed agreements, which allows him to draw a two-tiered control.

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Through its CETA ruling, the Conseil constitutionnel reveals that controlling the compatibility of an EU mixed agreement with the French Constitution slightly differs from controlling the compatibility of an amending Treaty with the French Constitution: the above-mentioned method that the Conseil constitutionnel had identified in its previous decisions does not apply to all the monitored provisions of an EU mixed agreement. In other words, it adjusts the extent of its control according to the nature of the EU competence. The control is very limited when it comes to exclusive competences whereas it is much wider when it comes to shared and retained competences.

Concerning the provisions that fall under shared or retained competences, the Conseil constitutionnel applies the method attached to the monitoring of international undertakings. The merit of this latter statement can be debated. Indeed, it is worth noting that this solution departs from the approach defended by the French government, which rightly argued that the CETA was brought before the Conseil constitutionnel only because of its mixed nature.

In other words, according to the government, the CETA was submitted to the Conseil constitutionnel only because of the provisions falling under shared competences which need to be ratified by France.

French Constitution of 1791

The government therefore suggested that the Conseil constitutionnel should not control the compatibility of provisions falling under the exclusive competence of the EU. It added that if the Conseil constitutionnel had doubted about the exact division of competences between the EU and its Member States, it would have had to refer to the Court of Justice for a preliminary ruling. Thus, it shall apply regardless of the exclusive or shared competence at stake. Therefore, the choice made by the Conseil constitutionnel to monitor the provisions falling under the exclusive competence of the EU leads to two main comments.

Firstly, this choice can give the impression that the Conseil constitutionnel will accept to control the compatibility of future EU-only agreements with the French Constitution. Such a statement, however, would conflict with the systemic reading of the French Constitution that has prevailed so far.

Indeed, it is long-standing that only agreements submitted to the ratification of the French parliament — a category which cannot include EU-only agreements — can be referred to the Conseil constitutionnel on the basis of Article 54 C. Indeed, this latter provision makes reference to international undertakings whose ratification or approval is to be authorized.

In reality, it looks like the Conseil constitutionnel does not intend to have potential jurisdiction on EU-only agreements. Nevertheless — this is our second comment —, this needs to be put in perspective considering that the stakes are limited. This can be understood as a means for the Conseil constitutionnel to reaffirm — in line with its traditional jurisprudence — the primacy of the French Constitution over EU law, while knowing that, in practice, the primacy of EU law will not be put into question.

The control exerted by the Conseil constitutionnel in the CETA case is totally in line with this idea. It also includes the stipulations in Chapters 1, 21, 26, 27, 28, 29 and 30, insofar as they relate to shared competence between the European Union and its Member States. On this particular point, as will be further analyzed, [64] the ruling is more detailed.

On the contrary, when it comes to the other provisions of the CETA, [65] the ruling appears lapidary. Secondly, the Conseil constitutionnel does not bother identifying the relevant provisions. Given the specific nature of the latter — at the same time international undertakings made by France and EU secondary legislation —, the Conseil constitutionnel used the different methods it had previously identified and mixed them.

If some aspects can be debated, the Conseil constitutionnel has the merit of establishing criteria which aim at preserving the status of the Constitution within the internal legal order while respecting EU law — especially the division of competences between the EU and its Member States, and the competence of the Court of Justice. The latter element can also explain why the Conseil constitutionnel had only a limited room of manoeuvre regarding the substance of the case and, eventually, had to conclude that CETA is compatible with the French Constitution.

If the Conseil constitutionnel affirmed its jurisdiction over the provisions falling under the exclusive competence of the EU, [67] it gave no detail on how it came to the conclusion that these provisions did not violate any principle inherent to the constitutional identity of France. Thus, it mostly quotes and describes the CETA provisions without departing from a literal reading. And, by doing so, choose to ignore the national or the European judicial system depending on which is relevant.

Therefore, the applicants worry that the Investment Court System might more easily condemn France on account of its laws and regulations than a national jurisdiction, bound by the principle of the separation of powers, would. In its answer, the Conseil constitutionnel focuses in the first place on the nature of the prerogatives granted to the Investment Court System.

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It can only issue financial measures when a prejudice is established. In the second place, it underlines that France participates at least through its membership in the EU Council in appointing its members. Before monitoring these provisions, [73] the Conseil constitutionnel emphasises that France will be bound by the CETA once it is ratified and has entered into force. This obligation, which results from Art. It also explains why the Conseil constitutionnel can only make sure that the essential conditions for exercising national sovereignty are preserved by the international commitment for, by nature, an international commitment affects the making of laws.

If such a statement is quite logical, it is however surprising that Art. This latter provision could have better justified the primacy of the CETA over national norms. Indeed, by referring to Art. Even if it has no impact on the present monitoring, it could affect the implementation of the CETA.

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  • Indeed, if the CETA is implemented as a classical international obligation, the reciprocity condition provided for in Art. That would allow France to verify that Canada properly implements the agreement. On the contrary, if the implementation of the CETA is considered as a constitutional obligation to respect EU law in compliance with Art. Actually, the Conseil constitutionnel 's statement tends to reveal, if not a misunderstanding of the legal regime of EU mixed agreements, at least, that it has a different point of view from the Court of Justice.

    There is not much to say about the reasoning of the Conseil constitutionnel that follows this first general statement. Indeed, the Conseil constitutionnel only quotes, [77] in response to each grievance, the appropriate provisions of the CETA. In this regard, it observes that the prohibition of different types of measures listed in Art. In this regard, the Conseil constitutionnel notices that no decision can be taken without the mutual consent of both the EU and Canadian representatives.

    The Conseil constitutionnel also refers to the Statement no. According to the claimants, the CETA also affects the essential conditions for exercising national sovereignty through its provisions on provisional application and denunciation. In this respect, they claim that those provisions do not allow France to escape provisional application nor to denunciate its participation to the agreement.

    Firstly, the claimants argue that provisional application would exceed the provisions falling under the EU exclusive competence and suggest that it also covers provisions falling under shared competences. Since the Conseil constitutionnel confirms that the scope of provisional application does not affect the exercise of national sovereignty, it does not need to answer the criticism according to which a Member State cannot by itself put an end to provisional application.

    Indeed, allowing a Member State to end provisional application on matters falling under EU exclusive competence would be a violation of the division of competences established by the treaties. The solution might have been more complicated if the scope of provisional application had exceeded the provisions falling under EU exclusive competence.

    In this regard, Art. Thus, the EU entity counts for one single party when it comes to provisional application. Henceforth, according to Art. If the Conseil constitutionnel had considered that provisional application also covers provisions falling under shared competences, its task would have been slightly more complicated. This is probably why the applicants tried to link their claim to the scope of provisional application.

    Some of them had previously asked the government to refuse provisional application.