¹ The Conseil d’Etat is the administrative Supreme Court in France.

² See CE 22 December 1978 Cohn-Bendit Rec 524.

³ In the French constitution, the Conseil constitutionnel is the equivalent of a constitutional court.

⁴ They are similar to the standing committees of the British Parliament.

⁵ The number of permanent committees was raised from six to eight by the constitutional reform of July 2008: see Art 43 of the Constitution, providing that ‘Government’s and Members’ bills shall be referred to one of the standing committees, the number of which shall be limited to eight in each assembly. At the request of the Government or the assembly having the bill before it, Government’s and Members’ bills shall be referred for consideration to committees specially set up for this purpose’.

⁶ Since the reform of July 2008, these have been recognised by the constitution in a new Art 51-2 C.

⁷ The constitutional reform of July 2008 has recognised committees of inquiry in a new Art 51-2: ‘To exercise missions of control and assessment as defined in paragraph 1 of article 24, committees of inquiry can be created in each assembly in order to collect information according to rules determined by statutes’.

⁸ There was already an information gap: in November 1978, a bill implementing the Sixth Directive on VAT was rejected by the French Parliament. It was eventually passed a month later. However, it showed a real lack of information and understanding of the Government’s position in the Council of Ministers.

⁹ They were concerned that in the long run, it would weaken their power further.

¹⁰ This may seem paradoxical but even the socialists, who advocated delegations with strong powers of control, did not believe that the Constitution should be amended.

¹¹ This suspicion may have been caused by the fact that no other permanent structure of control existed prior to this. Furthermore, the delegation was mirroring the representation of political parties within each chamber. This had not been done before.

¹² It has been argued convincingly that much too much was made of the constitutional obstacles: see Fuchs-Cessot, A, Le parlement à l’épreuve de l’Europe et de la cinquième république (Paris, Librairie générale de droit et de jurisprudence, 2004) 228–35Google Scholar.

¹³ Acts of the European Community institutions were transmitted by the Commission but late. Often the reports and opinions of the delegation were written on the basis of active research of the committee members themselves.

¹⁴ This is mainly due to the composition of the delegations. All permanent committees and all parliamentary parties were represented in the delegation of each chamber; they were essentially miniature chambers in terms of composition.

¹⁵ This was not included in the 1979 reform and on that basis members of the French Government refused to come before either delegation until 1984. From 1984, the foreign affairs minister agreed to come once a year before the delegations convened together. However, members of the Commission and of the European Parliament appeared regularly before the delegations.

¹⁶ These mechanisms for control are included in Arts 49 and 50 of the French Constitution. In a new Art 34-1, the reform of July 2008 has given the possibility for each chamber to adopt resolutions on the topics of their choice.

¹⁷ See CC 59-2 DC 17, 18 and 24 June 1959 Standing Order of the Assemblée Nationale.

¹⁸ See Art 20: ‘The Government shall determine and conduct the policy of the Nation. It shall have at its disposal the civil service and the armed forces. It shall be responsible to Parliament in accordance with the terms and procedures set out in articles 49 and 50’.

¹⁹ Furthermore, the sorting and identification of those proposals within the scope of Art 34 delayed their reception by the delegations.

²⁰ See Art 54 of the Constitution: ‘If the Constitutional Council, on a reference from the President of the Republic, from the Prime Minister, from the President of one or the other assemblies, or from sixty deputies or sixty senators, has declared that an international treaty or agreement contains a clause contrary to the Constitution, authorization to ratify or approve the international treaty or agreement in question may be given only after amendment of the Constitution’.

²¹ Art 89 creates a two-part constitutional amendment procedure: first, the constitutional bill must be adopted in identical terms by each chamber of Parliament and, then, the bill must adopted by referendum or by a 3/5 majority of all Members of Parliament convened in a single chamber—the Congrès.

²² In addition, there was also a revision of the constitution in March 2003 in order to implement the Council decision regarding the European arrest warrant.

²³ See Boyron, S, ‘The French Constitution and the Treaty of Amsterdam: a lesson in European integration’ (1999) 6 Maastricht Journal of European and Comparative Law 169 CrossRefGoogle Scholar.

²⁴ On analysis, the revision of 1992 seems indeed to be a watershed. Prior to the 1992 revision of the constitution only five revisions took place over a 45-year period. Since the Maastricht Treaty revision, there have been 17 revisions of the constitution: an average of one a year. The 1992 revision seemed indeed to have been a catalyst for a general rethink of the French Constitution.

²⁵ It takes its name from the chair: Professor Vedel, a university law professor.

²⁶ The socialist party lost its majority in the Assemblée Nationale and Mitterrand was unable to pursue the reform further.

²⁷ Even though some of these revisions implemented major constitutional changes (such as the reduction of the presidential mandate to a five-year term), all had a limited ambit.

²⁸ The Conseil constitutionnel had previously identified that these provisions of the Maastricht Treaty were not compatible with the French constitution.

²⁹ This is the case in Holland and in Italy.

³⁰ See Art 88-2 of the Constitution: ‘Subject to reciprocity and in accordance with the terms of the Treaty on European Union signed on 7 February 1992, France agrees to the transfer of powers necessary for the establishment of the European Economic and Monetary Union. Subject to the same reservation and in accordance with the terms of the Treaty establishing the European Community, as amended by the Treaty signed on 2 October 1997, the transfer of powers necessary for the determination of rules concerning freedom of movement for persons and related areas may be agreed. Statutes shall determine the rules relating to the European arrest warrant pursuant to acts adopted under the Treaty of the European Union’.

³¹ See Art 88-3 of the Constitution: ‘Subject to reciprocity and in accordance with the terms of the Treaty on the European Union signed on 7 February 1992, the right to vote and stand as a candidate in municipal elections shall be granted only to citizens of the Union residing in France. Such citizens shall neither hold the office of Mayor or Deputy Mayor nor participate in the designation of Senate electors or in the election of Senators. An Institutional Act passed in identical terms by the two Houses shall determine the manner of implementation of this article’.

³² Although the Constitution appears a little untidy at the moment, this will be change with the entry into force of the Lisbon Treaty.

³³ The condition of reciprocity included in Arts 88-2 and 88-3 indicates that France is only bound by its treaty obligations insofar as the other Member States respect them also. This condition is perfectly compatible with international law but disregards the pronouncements of the Court of Justice on the supremacy of European law.

³⁴ See Art 88-1 of the Constitution: ‘The Republic shall participate in the European Communities and in the European Union constituted by States which have freely chosen by virtue of the treaties which established them to exercise some of their powers in common. It shall participate in the European Union in the conditions provided for by the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed on 13 December, 2007’.

³⁵ In reality, the control of the Conseil constitutionnel has been triggered by the President of the Republic for the Amsterdam Treaty (jointly with the Prime Minister in this instance), the Constitution for Europe and the Lisbon Treaty. Members of Parliament have yet to use this prerogative in relation to a European treaty.

³⁶ See Art 88-4 of the Constitution: ‘The Government shall lay before the National Assembly and the Senate drafts of or proposals for Acts of the European Communities and the European Union as soon as they have been transmitted to the Council of the European Union. In the manner laid down by the rules of procedure of each House, resolutions may be passed, even if Parliament is not in session, on the drafts, proposals or instruments referred to in the preceding paragraph, as well as on any document produced by an institution of the European Union. A committee for European affairs is created in each assembly’.

³⁷ In the Assemblée Nationale, there was no resolution adopted by the whole house in 2006 and 2007 and only two in 2005; in the Sénat, there was one resolution adopted by the whole house in 2005 and 2007, but none in 2006.

³⁸ For instance, the creation of the COSAC was first proposed by the President of the French National Assembly in 1989 and the first one was held in Paris the same year. Also in 1990, Mitterrand experimented with the European Assizes in Rome again to bring together MEPs and members of national parliaments.

³⁹ The Treaty of Maastricht had only a declaration attached on this issue.

⁴⁰ See Art 88-6 of the Constitution: ‘The National Assembly or the Senate may issue a reasoned opinion as to the conformity of a draft proposal for a European Act with the principle of subsidiarity. Said opinion shall be addressed by the President of the House involved to the Presidents of the European Parliament, the Council of the European Union and the European Commission. The Government shall be informed of said opinion. Each House may institute proceedings before the Court of Justice of the European Union against a European Act for non compliance with the principle of subsidiarity. Such proceedings shall be referred to the Court of Justice of the European Union by the Government. For the purpose of the foregoing, resolutions may be passed, even if Parliament is not in session, in the manner set down by the Rules of Procedure of each House for the tabling and discussion thereof’.

⁴¹ See Art 88-7 of the Constitution: ‘Parliament may by the passing of a motion in identical terms by the National Assembly and the Senate, oppose any modification of the rules governing the passing of Acts of the European Union in cases provided for under the simplified revision procedure for treaties or under judicial cooperation on civil matters, as set forth in the Treaty on European Union and the Treaty on the Functioning of the European Union, as they result from the treaty signed in Lisbon on December 13, 2007’.

⁴² In the French Constitution, when both chambers of Parliament convene together, they form the Congrès.

⁴³ This threshold is higher than the one required in the amendment procedure.

⁴⁴ See Art 55 of the Constitution: ‘Treaties or agreements duly ratified or approved shall, upon publication, prevail over Acts of Parliament, subject, in regard to each agreement or treaty, to its application by the other party’.

⁴⁵ CC n 54-DC 15 January 1975.

⁴⁶ The Conseil constitutionnel was refusing to extend its control: it claimed that the Constitution only authorised it to interpret statutes as against the Constitution and not as against international treaties and agreements; see Art 61 § 2 and 3 of the Constitution: ‘Acts of Parliament may be referred to the Constitutional Council, before their promulgation, by the President of the Republic, the Prime Minister, the President of the National Assembly, the President of the Senate, or sixty deputies or sixty senators. [The Constitutional Council … shall rule on their conformity with the Constitution … The Constitutional Council must rule within one month. However, at the request of the Government, if the matter is urgent, this period shall be reduced to eight days’.

⁴⁷ See CC n 2006-540 DC 27 July 2006, Intellectual property rights. The Conseil explained that a reference cannot be made for practical reasons: it has to respect too a short time-limit to deliver its decisions.

⁴⁸ Although the Conseil constitutionnel has taken to mentioning cases of the European Court of Justice in a few recent decisions, this remains an exception.

⁴⁹ Art 3 of the Declaration of the Rights of Man.

⁵⁰ Art 2 § 4 of the Constitution.

⁵¹ Art 3 § 1 of the Constitution.

⁵² It is mentioned in the Preamble of the 1958 Constitution and has been integrated to the formal constitution by the Conseil constitutionnel. It proclaims ‘political, economic and social principles particularly necessary to our time’.

⁵³ See Art 53 of the Constitution: ‘Peace treaties, commercial treaties, treaties or agreements relating to international organization, those that commit the finances of the State, those that modify provisions which are matters for statute, those relating to the status of persons, and those that involve the cession, exchange or addition of territory, may be ratified or approved only by virtue of an Act of Parliament. They shall not take effect until they have been ratified or approved. No cession, exchange or addition of territory shall be valid without the consent of the population concerned’.

⁵⁴ CC n 70-39 DC 19 June 1970 Treaty of Luxembourg.

⁵⁵ CC n 76-71 DC 29-30 December Election of the European Parliament.

⁵⁶ CC n 92-308 DC 9 April 1992 Maastricht Treaty.

⁵⁷ This is a direct consequence of the complex constitutional recognition mentioned above. Any other position would make it impossible to ratify any international treaty.

⁵⁸ Although this case law first appeared in the context of the examination of the control of European Union treaties, it is applicable to all international treaty and agreements. The Conseil constitutionnel does not differentiate between international treaties.

⁵⁹ CC n 2004-505 DC 19 November 2004 Constitution for Europe.

⁶⁰ The Conseil constitutionnel transformed the content of the Constitution in 1971; it integrated fully to the Constitution, two texts which were merely mentioned in the Preamble of the 1958 Constitution.

⁶¹ CC n 2004-496 DC 10 June 2004 Confidence in the digital economy.

⁶² Over the years, the German constitutional court has made a number of statements regarding supremacy and the protection of human rights, such as in Brunner v The European Union Treaty [1994] 1 CMLR 57.

⁶³ Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market, OJ 2000 L178/1.

⁶⁴ See Case C-314/85 Foto-frost v Hauptzollamt Lübeck-Ost [1987] ECR I-4199.

⁶⁵ In practice, this may not have much impact: instead, ordinary courts will be able to make a reference so long as parties challenge the legality of the Community act in ordinary proceedings.

⁶⁶ The drafting changed between the decision of 2004 and a decision of 2006; see CC n 2006-540 27 July 2006. In 2004, the Conseil had mentioned instead a conflict with ‘an express provision of the Constitution’.

⁶⁷ The Conseil d’Etat is the supreme court of the administrative courts in France.

⁶⁸ CE Ass 8 February 2007 RFDA 2007 384 concl Guyomar.

⁶⁹ Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC, OJ 2003 L275/32.

⁷⁰ The Court of Justice found that the principle of equality had not been breached in the case C-127/07 Arcelor v Premier Ministre, OJ C 44/8, 21/02/2009. Consequently, the Conseil d’Etat rejected the claim from Arcelor in a decision of CE 3rd June 2009.

⁷¹ See Case 26/62 Van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 1 and Case 6/64 Costa v ENEL [1964] ECR 585.

⁷² See the first decision of the Conseil constitutionnel concerning the Maastricht Treaty (above n 56): there it indicated that the European Community was simply an international organisation and that the European Parliament did not benefit from any sovereignty.

⁷³ CC n 2004-505 DC 19 November 2004.

⁷⁴ The Treaty of Lisbon gives legal effect to the Charter of Fundamental Rights. In its decision on the Treaty of Lisbon, the Conseil constitutionnel simply referred to its reasoning on this issue contained in the decision on the Constitution for Europe with no further details—see CC n 2007-560 DC 20 December 2007 Treaty of Lisbon.

⁷⁵ A number of commentators seriously doubted whether the reserves of interpretation are compatible with the principle of supremacy of European law; they doubted whether, in practice, they would have any effect.

⁷⁶ Sahin v Turkey (App no 44774/98) (2007) 44 EHRR 5 (Grand Chamber).

⁷⁷ See Lewis, T, ‘What not to wear: religious rights, the European Court, and the margin of appreciation’ (2007) 56 International Comparative Law Quarterly 395 CrossRefGoogle ScholarPubMed.