Nestled under the vault of the Montpensier wing of the Palais-Royal, in the 1er arrondissement of Paris, the Constitutional Council has known since 1er March 2010 a new youth. This rejuvenation has a barbaric name: the priority question of constitutionality, better known by its initials, QPC. Entered into force a decade ago, it authorizes a litigant, whoever he is, French or foreign, applicant, defender or intervenor, to request that the Council be seized of a legislative provision promulgated if it considers that this infringes the rights and freedoms guaranteed by the Constitution.
“The Constitution is now the business of the citizens”, welcomes Jean-Louis Debré, who chaired the institution during the implementation of this “Velvet revolution” legal, in the words of its current president, Laurent Fabius. “The citizens’ business” ? Not quite, since the organic law of December 10, 2009 relating to the application of article 61-1 of the Constitution clearly specifies that recourse to the QPC is only open to litigants. As a result, for ten years, the success of the QPC has not faltered and the Constitutional Council has been seized of 850 referral decisions made by the Council of State or the Court of Cassation.
Of the reform of the institutions of July 23, 2008, the QPC is the element which will have left the deepest imprint. It has been a long way to get there. It is Robert Badinter who evokes, in an interview with World of March 3, 1989, the possibility of recognizing to the citizen the possibility of raising, within the framework of a lawsuit, a “Exception of unconstitutionality” against a law which has not been referred to the Council. “A law that has not been submitted to the Constitutional Council can no longer be challenged for unconstitutionality. However, all those who have participated in the drafting of laws know that, in the case of very complex texts, they may contain provisions which, when applied, may turn out to be unconstitutional ”, noted the one who then presided over the institution of the rue de Montpensier.
The long unassailable law
In France, unlike many democracies, a posteriori control of the law was not allowed to exist. Once enacted, the law was unassailable from the point of view of its constitutionality. “It took us more than two centuries to admit that a law could be imperfect and that the representatives of the people were uninspired. That a government and its majority act in often too much of a hurry and that the Constitution is abused as a result ”, observed the jurists Guy Carcassonne, who died in 2013, and Olivier Duhamel, in a popularization book: QPC (Dalloz, 2011).
Because the law, voted by Parliament, expression of the general will, has long been considered “infallible”. We must see in this a legacy of the revolution of 1789 and the thought of Jean-Jacques Rousseau: the citizen cannot want to oppress himself. De Gaulle believed, moreover, that in France “The Supreme Court is the people”. In this regard, the creation, in 1958, of the Constitutional Council represents a break with this dogma of the infallibility of the law since it has the power to control it a priori, before its promulgation. A power that will be extended by the constitutional revision of 1974, desired by Valéry Giscard d’Estaing, which gives parliamentarians the right to seize the Council, a right hitherto reserved for the Presidents of the Republic, prime ministers and presidents of the two chambers .
François Mitterrand, President of the Republic, was not a strong supporter of this “exception of unconstitutionality”. His former Minister of Justice nevertheless manages to convince him. Thus in 1990 the draft constitutional law was passed by the National Assembly, with a majority on the left, despite the cross opposition of the Communists and the Gaullists, including François Fillon and Nicolas Sarkozy. The revision will fail, however, at the gates of the Senate, mainly on the right.
Modernization of institutions
Minds have evolved over time. Shortly after his election to the Presidency of the Republic in 2007, Nicolas Sarkozy, eager to make his mark on the modernization of institutions after a presidential campaign during which this subject had been very present, set up the Reflection and Proposal Committee, chaired by former Prime Minister Edouard Balladur. In his mission letter, the Head of State specifies in particular: “You will examine the conditions under which the Constitutional Council could be brought to rule, at the request of the citizens, on the constitutionality of existing laws. “ Thus proposal n ° 74 of the Balladur committee became article 26 of the constitutional bill, which will become, with one wording, article 61-1 of the Constitution, after Parliament had overwhelmingly approved it.
It was still necessary that an organic law specified the modalities. Many questions remained unanswered. The National Assembly and the Senate, in this case, have largely contributed, together, to developing the text submitted to them by the government and to clarifying its scope. “It is not excessive to say that it is in Parliament that born the QPC “, note Guy Carcassonne and Olivier Duhamel. The organic bill only needed a round trip between the National Assembly and the Senate to be adopted almost unanimously.
Opening on the world
This time, the QPC was back on track and France was finally approaching the models existing in most democratic countries. The first visible effect of the reform will have been the opening of the Constitutional Council to the outside world. It took four months of work at the Palais-Royal. On the ground floor, two rooms have been completely refurbished. The former driver’s room, which now opens through a bay window on the columns of Buren, is intended for lawyers. The other room, with a capacity of 49 places, on the floor covered with a blue carpet, welcomes the public, a first in the history of the Council.
These two rooms are equipped with a large screen on which the sessions are broadcast. On the first floor, two very discreet cameras have been inserted into the walls of the meeting room. And microphones placed on the large table in the seats occupied by the nine appointed members as well as by the former President of the Republic Valéry Giscard d’Estaing, who sits by right and for life, but who has never participated in a meeting from QPC.
Cameras and microphones, presence of lawyers and the public, contradictory hearing, this is a real transformation that the Constitutional Council has carried out over the past decade. The finally recognized affirmation of the challenge of a promulgated law constitutes a major upheaval of the legal order. For that to happen, we had to overcome a lot of reluctance and obstacles. Since 1er March 2010, a new page of our rule of law began to be written.
This file is produced within the framework of a partnership with the Constitutional Council, on the occasion of the ten years of the priority question of constitutionality.
To see: “Ten years of citizens’ questions”
On November 26, at 9 am, the Constitutional Council broadcasts the online program “QPC 2020. Ten years of citizens’ questions”, hosted by journalists Caroline Blaes and Ali Baddou.
This educational event for the general public starts with a word from the current President of the Constitutional Council, Laurent Fabius. The show is then built around three highlights. First, an inventory of the priority question of constitutionality (QPC) today: what does it consist of, what is its record, what are the benefits for citizens and what are its limits? The program then traces the history of the QPC: its genesis, the brakes and reluctance until its creation, with a testimony from Robert Badinter. The program also raises the question of the future of this measure: what are the avenues for development of the QPC? Can its scope of application expand? What training for judges and lawyers?
Also to discover, a focus on several emblematic cases of the QPC, from the presence of the lawyer in police custody to measures to combat terrorism.
With Emmanuel Macron, Eric Dupond-Moretti, Robert Spano, Bruno Lasserre, Chantal Arens, François Molins, Philippe Bas, Yaël Braun-Pivet, Louis Boré, Arnaud de Chaisemartin, Céline Cooper, Christian Behrendt, Anne Levade, Mathieu Disant.
To follow the show on November 26, then in replay, go to qpc2020.conseil-constitutionnel.fr and on lcp.fr