How European is French Public Law?, by John Bell

European law can be loved or just tolerated. The European Union and the European Convention have been incorporated parts of French law since 1957 and 1974 respectively. But it took longer for this to effect change in the life of French public law – in the administration, in the courts and in academia. This article suggests that French public law culture sees itself as part of the common European enterprise. In resolving questions of domestic law, EU law and the European Convention have become natural reference points, whilst maintaining the distinctiveness of French national law.

In formal terms, the French Constitution is superior to EU law because it provides the authority to EU law in domestic law under arts. 88-1 to 88-4 of the Constitution. Under art. 88-1, EU law has primacy over incompatible domestic legislation. The supremacy of the Constitution is even more clear in relation to the European Convention because art. 55 of the Constitution confers a status higher than domestic legislation on treaties that have been duly ratified. Consequently, ordinary French courts can give effect to provisions of EU law and ratified treaties even when they conflict with domestic legislation. They are the primary bodies for integrating European law. Formally, it is not unconstitutional for the French legislator to legislate contrary to EU or European Convention law. The Conseil constitutionnel does not rule on such questions. Its function is to rule on the respect for the rights and freedoms that are protected by the French constitution. All the same and as a matter of practice, it tries to avoid incompatibilities with supranational law and its approach influences the other courts. This is especially true when cases are submitted by the Cour de cassation (in private and criminal law) and the Conseil d’Etat (in public law) to the Conseil constitutionnel for a preliminary ruling on the constitutionality of legislation involved in litigation.

NEGOTIATING LUXEMBOURG

Many works give accounts of the struggle of the French public law courts to recognise the supremacy of EU law before 1990.[1] The Constitution was then changed to introduce the specific provisions in arts. 88-1 to 88-4 mentioned above. In later years, the Conseil constitutionnel has held that the transposition of a directive was “a constitutional requirement” which it would enforce. The only exception was where the directive breached a rule or principle “inherent in the constitutional identity of France to which the constituent authority has not consented”.[2]

The Conseil d’Etat developed this idea of a constitutional obligation to transpose EU directives in 2007. In Arcelor,[3] the Conseil d’Etat was faced with a claim that the transposition of a directive breached the constitutional principles of equality and freedom of commerce in that greenhouse gas quotas applied to steelmaking, but not to the manufacture of plastics. The court decided that, where the constitutional principle had an equivalent in EU law, it should decide on that basis and not simply on the basis of the national constitutional principle. It then sent a preliminary reference to Luxembourg on the question of whether the directive breached the principle of equality as a matter of EU law. In other words, the Conseil d’Etat chose to operate as an EU court, rather than simply as a national court in the way the claimant wished.

More recently, when faced with a French Government claim that the CJEU had interpreted EU law in a way which was contrary to the French Constitution, the Conseil d’Etat refused to find a conflict between national security concerns on anti-terrorism measures and EU concerns on data protection. In La Quadrature du Net, on a reference from the French courts, the CJEU decided that general and indiscriminate requirements that data holders retain and hand over information to the state on grounds of national security could only be allowed in limited circumstances. The Conseil d’Etat on 21 April 2021 applied this by interpreting the national legislation so as to make lawful most of what the Government wished to ensure for its anti-terrorism policy but it required the retention to be reviewed more frequently than the Government planned in order to meet EU data protection concerns.  These cases illustrate the desire of the Conseil d’Etat these days to conciliate commitments to the theoretical priority of the national constitution and the practical necessity to ensure that France’s commitment to the (normal) priority of EU law prevails.

The Conseil constitutionnel, guardian of the Constitution, is now adopting a similar position. Its decision in Air France (15 October 2021) concerned the constitutionality of a provision of the immigration code which required a transporter to return a non-EU citizen entering France without a visa to the point at which the immigrant had started the transport, if French authorities so requested. This simply implemented an EU directive. Air France complained that it was contrary to the French Constitution (art. 12 of the Declaration of the Rights of Man) for the state to delegate the exercise of public force to a private individual. The Conseil constitutionnel simply repeated the formula cited above that, unless the directive introduced a breach of the constitutional identity of France in a way that had not been approved by the constituent body, it had no jurisdiction to intervene where the national legislation simply implemented necessary and unconditional provisions of a directive. It added the rider that it would only intervene where the rule or principle of essential French constitutional law did not have an equivalent in EU law. The Conseil was stressing that its role in reviewing the transposition of EU directives should be considered as very limited. If the legality of a directive and its national implementing legislation is questioned, then this is a matter for the Luxembourg Court consistently with its case law in Foto Frost.

NEGOTIATING STRASBOURG

The French public law courts also have to relate to the European Court of Human Rights in Strasbourg. The very long saga of the role of the commissaire du gouvernement has been documented elsewhere.[4] It marked a moment when the French administrative courts had to give way on a cherished feature of French administrative court procedure in the face of what many French commentators considered an implacable view of the European Court of Human Rights about what constituted a fair court procedure. Since then, the French courts have been more subtle and proactive. For example, on the question of laïcité (secularism),[5] the Stasi Report of 2003 reviewed the issue of Muslim clothing in public services and this led to a Law in 2004 banning the wearing of ostentatious religious symbols in schools and in the public service. During the parliamentary deliberations, Jean-Paul Costa, then a judge of the European Court of Human Rights, gave evidence. He was a senior member of the Conseil d’Etat at the time of its earlier advice in 1989, so, unsurprisingly, he suggested that the ban on religious signs did not violate fundamental freedoms. He also expressed the view that the ban on religious signs would be upheld, should it come to his Court. Soon after the French Law was passed, a Section of the European Court of Human Rights in Strasbourg heard Leyla Sahin (earlier hearing of 29 June 2004),a case involving a ban on the wearing of Moslem dress in a Turkish university. The Court drew on the Stasi report and the French Law as indicating a diversity of opinion in Europe and favoured a wide margin of appreciation for national legislators. This view was then upheld in 2005 by the Grand Chamber, in which Costa sat as a Judge. The Strasbourg Court’s ruling was then drawn on with approval by the French Conseil constitutionnel in a decision of 19 November 2004 (para 18). It concluded that the interpretation given by the Strasbourg Court did not create any incompatibility between the EU Charter and French constitutional principles of secularism. That view was confirmed in SAS v France,[6] when the 2010 loi banning the wearing of the full-face veil in public was upheld by the Strasbourg Court.[7] The French managed to get their distinctive view before the Strasbourg Court and to influence its views in a way which did not conflict with fundamental French values.

A more recent example is the problem of overcrowding in prisons. Since Kudla v Poland  in 2000, the European Court of Human Rights has built up a body of case law protecting prisoners against detention in conditions which human dignity is not respected. Included within this has been prison overcrowding. In France, the prison population grew from 47,837 in 2001 to 70,818 in 2019, a rate of over-population of 138%.[8] France had successfully defended one 2015 case (Yengo v France, Appl. no. 50494/12) by showing that the interlocutory procedure in the administrative courts could give rise not only to damages, but also to preventive remedies such as injunctions against prison authorities. In that case brought by a prisoner support group, the Conseil d’Etat upheld injunctions against prison authorities to undertake works. But in a later 2020 case, JMB,  40 prisoners challenged the effectiveness of remedies against prison conditions where prison governors were obliged to take in all prisoners sent to them. As a result, the recommended space of 3 square metres per prisoner could not be respected and privacy in toilets was not possible. In this case, the Strasbourg Court found France violated article 3 of the Convention in not respecting human dignity and article 13 in not providing effective preventive remedies for individual grievances through the administrative courts. The Cour de cassation responded promptly by interpreting the remand in custody provisions of the Code of Criminal Procedure to include respect for human dignity. Although not expressed in art.144 as a ground for refusing to continue remand in custody, the court interpreted art. 144-1 as impliedly requiring respect for this right. That decision, like the earlier decisions of the administrative courts, illustrate the way in which French courts have been imaginative in taking their lead from the Strasbourg Court and developing preventive remedies in the face of apparent powerlessness in the administration to do anything to improve the situation.

But the Conseil constitutionnel put limits on such imaginative re-interpretation of domestic legislation. It stated that the judge required to rule on the seriousness of the claim to a QPC “cannot base his decision on the interpretation of the contested legislative provision which conformity to France’s international agreements requires… Neither is it for the Conseil constitutionnel seised of such a preliminary question of constitutionality to take account of the interpretation in order to decide on its conformity to the rights and liberties which the Constitution guarantees.” In other words, the issue of constitutionality should not be muddled with the issue of how a domestic law can be interpreted consistently with international treaty obligations. This is because the constitution is superior to any treaty. That said, the Conseil constitutionnel proceeded to hold the relevant provisions of art. 144-1 CPP to be unconstitutional because they failed to permit the judge to refuse to continue a remand in custody on the basis that human dignity was not respected. Although the Conseil based the constitutional value of human dignity on the Preamble to the 1946 Constitution, it was clearly finding a way of aligning French law on fundamental rights with the approach of the Strasbourg Court.

A few days later, the Conseil d’Etat[9] decided that the administration had to give effect to the principles recognised by the European Court of Human Rights in relation to degrading and inhuman treatment. It did issue injunctions requiring the prison authorities to provide covers for the exercise yards, privacy for toilets in cells with multiple occupants, to repair windows and improve lighting. But it did not immediately enjoin the use of containers to hold prisoners or require the provision of toilets in all exercise yards. Rather it asked for further information on the ability of the administration to carry out such improvements. It took the view that the necessity for such improvements depended on the means available to the administration. When the prison authorities had not carried out its injunctions after two years, the Conseil did impose an astreinte, a daily penalty to enforce compliance. But it accepted that some work in relation to replacing containers might take until 2025, five years from the original decision.

So we see here on the one hand the desire to balance the distinct character of the French Constitution and to be aware of the practical limitations on the administration and its priority in relation to European legal provisions. But, on the other hand, there is a very clear influence from Strasbourg shaping the direction of the case law of all three supreme courts.

DIALOGUE

It is now over 40 years since commissaire du gouvernement Bruno Genevois in Cohn Bendit argued that ‘At the European community level, there should be neither a judges’ government nor a judges’ war, there must be room for a dialogue between judges’.[10] Formally, there are references from national courts to the Court of Justice of the European Union and attention paid to the decisions of that Court in general. With Protocol 16, that opportunity for dialogue has opened up with the European Court of Human Rights. But Claes and de Visser are right that this process of requesting a preliminary ruling is more an opportunity for the supranational court to state positions which national courts are meant to follow.[11]

More generally, the French public law courts monitor the Luxembourg and Strasbourg case law for issues that affect them. Within the Section du Rapport et des Etudes, there is a special unit dealing with European law. Its task of the European unit is to ensure that the Conseil is briefed on norms which are developed inside the institutions of the European Union. The Conseil constitutionnel secretariat also monitors what is happening in Strasbourg. Specific decisions that follow or mirror a supranational court are not just the product of special research, but reflect a long-standing engagement with that court’s work as an integral part of a common project.

Informally, there are a number of channels of communication. For many years, the Luxembourg Court has invited visits by delegations of national judges. In such meetings, that Court can brief the visitors on its perspectives on issues and the visitors have the opportunity to present some of their concerns. This is, of course, in addition to the opportunity to contact the national judge in each of the Strasbourg and Luxembourg courts or their cabinets for insights into current developments. Such contacts may well be informal. Apart from visits, there are many conferences in which judges from European courts and other national courts meet and contribute, both in public and in private.[12]

The concept of ‘dialogue’ is difficult.[13] In brief, a dialogue involves a reasoned engagement with the other party. It involves listening, reflecting and responding in a context in which the parties are on some form of equality. It thus differs from hierarchical orders given to inferiors. The evidence that this takes place is often difficult to pin down. The easiest evidence is the formal responses contained in judgments or annual reports. The least clear evidence is the product of informal encounters between significant figures in each court which then find their way into the thinking of the different courts in their subsequent work. Claes and de Visser[14] point to the importance of judicial networks, both physical and virtual in which exchanges and dialogues can happen. These include associations, conferences and professional virtual media groups. Regular gatherings of supreme courts, especially constitutional and administrative courts supplement the direct relationships between supranational courts and national courts. The existence of such networks provides a context of community within which judicial dialogue can take place. In many ways, the existence of contact points between judges, both horizontally and vertically, within the two supranational legal orders is much easier to map than the dialogues which may result from those interactions. All the same, there is a danger that the vertical element dominates.

If we understand the interpersonal element, then it is easier to see how the vertical element does not dominate. One dimension is to look at the particularly close relationship of the Conseil d’Etat with both supranational courts. At the time of writing, the French judge in both courts is a member of the Conseil d’Etat. Members of the Conseil have formed parts of the cabinet of the judges. An early president of the European Court of Human Rights and one of the authors of the Convention itself was René Cassin.  Much later, a previous member of the Strasbourg Court, Costa,  was a member of the Conseil d’Etat and ensured that there were discussions of a formal kind with members of the French Parliament. The French have appointed established judicial figures to both courts. By contrast the British have never appointed a serving judge to the Strasbourg Court.

Each institution, national or supranational, has its own autonomous sphere of work. But as Poitevin-Solis suggests,[15] dialogue is part of the duty of cooperation between judges in their shared activity of advancing European case law in achieving the common projects of the EU or the European Convention. In her view, legal orders are not closed off, but mutually benefit and influence each other.[16] It is not simply a negative approach of self-limitation. After so many years of working together, it is perhaps inevitable that there are no longer sharp lines between national ideas and European ones. There are common ideas, often hotly contested, which have to be applied at national and at trans-national levels.

Posted by John Bell (emeritus professor, University of Cambridge). A longer version of this article will be published in the Liber Amicorum for Patrick Birkinshaw.

Suggested citation: J.Bell, “How European is French Public Law?”, available on REALaw.blog at https://realaw.blog/2022/05/29/how-european-is-french-public-law-by-john-bell/


[1] J. Bell and F. Lichère, Contemporary French Administrative Law (Cambridge: Cambridge UP 2022) (hereafter ‘Bell and Lichère’), pp. 11-13. The present author was told by a senior member of the Conseil d’Etat already in June 1986 that this change would happen as a new generation of senior judges were appointed.

[2] CC decision no 2004-496 DC of 10 June 2004, Digital Economy, Rec. 101, para. 7; CC decision no 2006-540 DC of 27 July 2006, Authorship Rights, Rec. 88, para. 19.

[3] CE Ass. 8 February 2007, Société Arcelor Atlantique et Lorraine, n° 287110, Leb. 55 concl. Guyomar. Also CE Ass. 30 October 2009, Perreux, n° 298348, Leb. 83.

[4] See J Bell, ‘The Role of the Commissaire du Gouvernement and the European Convention on Human Rights’ (2003) 9 European Public Law 309; id. ‘Interpretative Resistance Faced with the Case-Law of the Strasbourg Court’ (2008) 14 European Public Law 137; id.  ‘From ‘Government Commissioner’ to ‘Public Reporter’: A Transformation in French Administrative Court Procedure?’ (2010) 16 European Public Law 533. Bell and Lichère, pp. 17-18.

[5] See generally J. Bell, ‘Secularism French style’ (2017) 23 European Public Law, 237.

[6] [2014] ECHR 695, Application no. 43835/11. M. Hunter-Hénin, ‘Living Together in an Age of Religious Diversity: Lessons from Baby Loup and SAS’ [2015] Oxford Journal of Law and Religion 1.

[7] For criticism, see Ilias Trispiotis, ‘Two Interpretations of “Living Together”’ [2016] CLJ 580.

[8] AJDA 2020, 1068 note Avvenire.

[9] CE 19 October 2020, Garde des sceaux c Section française de l’Observatoire internationale des prisons, no 439372, AJDA 2021, 694 with critical note by J. Schmitz.

[10] Genevois in his conclusions to CE Ass. 22 December 1978, Ministre de l’Intérieur c Cohn-Bendit, no 11604, Leb 524; D 1979, 155. See generally, Bell and Lichère p. 11.

[11] M.Claes and M. de Visser, ‘Are you Networked Yet? On Dialogues in European Judicial Networks’ (2012) 8 Utrecht Law Review 100, 104.

[12] See C. Soulard, ‘Cour de cassation et dialogue des juges’ in F. Lichère, L. Potvin-Solis and A. Raynouard (eds), Le dialogue entre les juges européens et nationaux : incantation ou réalité ? (Bruylant, Brussels 2004), 95 at p.98.

[13] See M. Amos, ‘The Dialogue between UK courts and the European Court of Human Rights’ (2012) 61 ICLQ 557 at pp. 558-9; Claes and de Visser, above note 26, pp. 102-105.

[14] Above note 11, pp. 109-110. The pattern of networks is more fully presented in M. Claes and M. de Visser, ‘Courts United? On European Judicial Networks’ in A. Vauchez and B. de Witte (eds), Lawyering Europe. Europe as a Transnational Field (Hart, Oxford, 2013), 75.

[15] L. Poitevin-Solis, ‘Concept de dialogue entre les juges en Europe’ in Lichère, Le dialogue, above note 12, 19 at pp. 25 and 58.

[16] Ibid, p. 55.