Key Benefits:
ASSISTANCE
A CONSTITUTION FOR EUROPE
The Constitutional Council was seized by the President of the Republic on 29 October 2004, pursuant to Article 54 of the Constitution, of the question of whether the authorization to ratify the Treaty establishing a Constitution for Europe, signed in Rome on the same day, must be preceded by a revision of the Constitution;
The Constitutional Council,
Considering the Constitution of 4 October 1958, in particular its title XV: "European Communities and the European Union";
In light of amended Order No. 58-1067 of 7 November 1958 on the Organic Law on the Constitutional Council;
Considering the Treaty establishing the European Community;
Considering the Treaty on the European Union;
Considering the other commitments undertaken by France and relating to the European Communities and the European Union;
Considering the European Convention for the Protection of Human Rights and Fundamental Freedoms;
Having regard to the decisions of the Constitutional Council No. 2004-496 DC of 10 June 2004, 2004-497 DC of 1 July 2004, 2004-498 DC and 2004-499 DC of 29 July 2004;
Considering the decision of the European Court of Human Rights No. 4774/98 (Leyla Sahin v. Turkey) of 29 June 2004;
The rapporteur was heard;
On the applicable reference standards:
1. Considering that, by the Preamble to the 1958 Constitution, the French people solemnly proclaimed "his attachment to human rights and to the principles of national sovereignty as defined by the Declaration of 1789, confirmed and supplemented by the Preamble to the 1946 Constitution";
2. Considering that, in its article 3, the Declaration of Human and Citizen Rights states that "the principle of all sovereignty lies essentially in the nation"; that Article 3 of the 1958 Constitution provides, in its first paragraph, that "national sovereignty belongs to the people who exercise it by their representatives and through the referendum";
3. Considering that the Preamble to the 1946 Constitution proclaims, in its fourteenth preambular paragraph, that the French Republic is "in accordance with the rules of international public law" and, in its fifteenth preambular paragraph, that, "subject to reciprocity, France consents to the limitations of sovereignty necessary for the organization and defence of peace";
4. Considering that, in its article 53, the 1958 Constitution, as in article 27 of the 1946 Constitution, enshrines the existence of "treaties or agreements relating to international organization"; that such treaties or agreements may only be ratified or approved by the President of the Republic under a law;
5. Considering that the French Republic participates in the European Communities and in the European Union under the conditions provided for in Title XV of the Constitution; that in particular, under its Article 88-1: "The Republic participates in the European Communities and in the European Union, constituted by States that have freely chosen, under the treaties that have instituted them, to exercise in common some of their competences";
6. Considering that these texts of constitutional value allow France to participate in the creation and development of a permanent European organization, with legal personality and invested with decision-making powers by the effect of transfer of competence granted by the Member States;
7. Considering, however, that, when commitments to this end contain a clause contrary to the Constitution, challenge constitutionally guaranteed rights and freedoms or infringe upon the essential conditions of the exercise of national sovereignty, the authorization to ratify them requires a constitutional review;
8. Considering that it is in the light of these principles that it is up to the Constitutional Council to proceed with the examination of the Treaty "establishing a Constitution for Europe" signed in Rome on 29 October 2004, as well as its protocols and annexes; that, however, are exempt from the control of conformity with the Constitution those of the provisions of the Treaty that revert to commitments previously undertaken by France;
On the principle of the rule of law of the European Union:
9. Considering, first of all, that it is the result of the provisions of the Treaty submitted to the Constitutional Council, entitled "Treaty establishing a Constitution for Europe", including those relating to its entry into force, revision and the possibility of denouncing it, that it retains the character of an international treaty subscribed by the States signatories of the Treaty establishing the European Community and the Treaty on the European Union;
10. Considering, in particular, that the name of this new treaty does not call a constitutional comment; that, in particular, it is the result of its article I-5, concerning the relations between the Union and the Member States, that this denomination is without impact on the existence of the French Constitution and its place at the top of the domestic legal order;
11. Considering, secondly, that under Article 88-1 of the Constitution: "The Republic participates in the European Communities and in the European Union, constituted by States that have freely chosen, under the treaties that have instituted them, to exercise in common some of their competences"; that the grantor has thus consecrated the existence of a community legal order integrated into the internal legal order and distinct from the international legal order;
12. Considering that under Article I-1 of the Treaty: "Inspired by the will of citizens and States of Europe to build their common future, this Constitution establishes the European Union, to which Member States assign competence to achieve their common objectives. The Union coordinates the policies of the Member States aimed at achieving these objectives and exercises on the community mode the powers they assign to it; that under Article I-5, the Union respects the national identity of the Member States "inherent to their fundamental political and constitutional structures"; that under Article I-6: "The Constitution and the law adopted by the institutions of the Union, in the exercise of the powers that are assigned
13. Considering that, if article I-1 of the treaty substitutes for organizations established by the previous treaties a single organization, the European Union, in accordance with article I-7 of the legal personality, it is clear from all the stipulations of this treaty, and in particular from the approximation of its articles I-5 and I-6, that it does not alter the nature of the European Union, nor the scope of the principle of the rule of law of the European Union as it that, therefore, article I-6 of the treaty under consideration by the Council does not imply a revision of the Constitution;
On the Charter of Fundamental Rights of the Union:
14. Considering that there is a need to assess compliance with the Constitution of the Union's Charter of Fundamental Rights, which constitutes the second part of the treaty submitted to the Constitutional Council;
15. Considering, in the first place, that under Article II-111 of the Treaty and with the exception of Articles II-101 to II-104, which relate only to the "institutions, organs and organizations of the Union", the Charter addresses the Member States "when implementing the law of the Union" and "only" in that case; that it is without impact on the competence of the Union;
16. Considering, in the second place, that, in accordance with article II-112, paragraph 4, of the treaty, to the extent that the Charter recognizes fundamental rights as a result of the constitutional traditions common to the Member States, "the rights must be interpreted in harmony with the said traditions"; that, therefore, are respected articles 1 to 3 of the Constitution which oppose the recognition of collective rights to any group,
17. Considering, in the third place, that in the terms of its preamble, "the Charter will be interpreted by the jurisdictions of the Union and the Member States, taking duly into account the explanations established under the authority of the praesidium of the Convention that has elaborated the Charter"; that Article II-112, paragraph 7 of the Treaty also states: "The explanations drawn up to guide the interpretation of the Charter of Fundamental Rights shall be duly taken into consideration by the Member States
18. Considering, in particular, that, while the first paragraph of Article II-70 recognizes the right of everyone, individually or collectively, to manifest, through his practices, his religious conviction in public, the explanations of the praesidium state that the right guaranteed by this article has the same meaning and scope as that guaranteed by Article 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms; that it is subject to the same restrictions, including public security, the protection of public order, health and morals, as well as the protection of the rights and freedoms of others; that Article 9 of the Convention has been constantly applied by the European Court of Human Rights, and in the last place by its above-mentioned decision, in harmony with the constitutional tradition of each Member State; that the Court has so recognized that, under these conditions, the provisions of Article 1 of the Constitution are complied with under which "France is a secular Republic", which prohibits anyone from availing himself of his religious beliefs to free himself from the common rules governing relations between public and private communities;
19. Considering, moreover, that the scope of Article II-107 of the Treaty, relating to the right to effective remedy and to an impartial tribunal, is broader than that of Article 6 of the European Convention on Human Rights, since it does not concern only the disputes relating to civil rights and obligations or the merits of a criminal charge; that it nevertheless results from the explanations of the praesidium that may be subject to the public hearings that, "the access of the courtroom may be prohibited to the press and the public for the whole or part of the trial in the interest of morality, public order or national security in a democratic society, where the interests of minors or the protection of the privacy of the parties to the trial require it, or to the extent deemed strictly necessary by the court, where in special circumstances the public interest would be impaired"
20. Considering, moreover, that if, under Article II-110: "No one may be prosecuted or punished criminally because of an offence for which he has already been acquitted or convicted in the Union by a final criminal judgment", it results from the very terms of this article, as confirmed by the explanations of the praesidium, that this provision concerns exclusively criminal law and not administrative or disciplinary proceedings; that, in addition, the reference to the notion of identity of offences, not that of identity of facts, preserves the possibility for French courts, in accordance with the principle of proportionality of penalties, to punish crimes and offences that infringe upon the fundamental interests of the nation provided for in Book IV of the Criminal Code, taking into account the constituent elements specific to these offences and the specific interests involved;
21. Considering, in the fourth place, that the general limitation clause set out in the first paragraph of Article II-112 states: "In respect of the principle of proportionality, limitations can only be made if they are necessary and effectively meet the objectives of general interest recognized by the Union or if the protection of the rights and freedoms of others"; that the explanations of the praesidium specify that the "general interests recognized by the Union"
22. Considering that it is the result of all of the foregoing that neither by the content of its articles, nor by its effects on the essential conditions of the exercise of national sovereignty, the Charter calls for revision of the Constitution;
On the provisions of the Treaty relating to the policies and functioning of the Union:
23. Considering that, pursuant to Article 88-2 of the Constitution, in its drafting of the constitutional revisions of 25 June 1992, 25 January 1999 and 25 March 2003: "Subject to reciprocity and in accordance with the terms provided for in the Treaty on the European Union signed on 7 February 1992, France consents to the transfer of competence necessary for the establishment of the European Economic and Monetary Union. - Under the same reservation and in accordance with the terms provided for in the Treaty establishing the European Community, in its drafting resulting from the Treaty signed on 2 October 1997, the transfer of powers necessary for the determination of the rules relating to the free movement of persons and related areas may be granted. - The law sets the rules for the European arrest warrant in accordance with the acts taken on the basis of the Treaty on the European Union";
24. Considering that the provisions of the treaty that transfer competences to the European Union that affect the essential conditions for the exercise of national sovereignty in matters or in terms other than those provided for in the treaties referred to in Article 88-2 require a constitutional review;
25. Considering that the "subsidiarity principle", set out in article I-11 of the treaty, implies that, in areas not falling within the exclusive competence of the Union, the Union intervenes only "if, and to the extent that, the objectives of the envisaged action cannot be achieved sufficiently by the Member States, both at the central and regional levels, but may be better, because of the effects of the Union, that, however, the implementation of this principle might not be sufficient to prevent the transfer of competence authorized by the treaty from being extended or acting in such manner as to affect the essential conditions for the exercise of national sovereignty;
26. Considering that, in accordance with Article I-34 of the Treaty, unless otherwise provided, the "European Law" and the "European Framework Law", which replace the "community regulation" and the "community directive", will be adopted, on the proposal of the only Commission, jointly by the Council of Ministers, ruling by the qualified majority provided for in Article I-25, and by the European Parliament, according to the "regular legislative procedure" provided for in Article III-396; that, with the exception of this procedure, all matters of the Union's jurisdiction, including those of interest to the "space of freedom, security and justice" under Chapter IV of Part III of the Treaty;
With regard to transfer of jurisdiction in new subjects:
27. Considering that the provisions of the treaty that transfer to the European Union are called for a revision of the Constitution, and that the "regular legislative procedure" includes the powers inherent in the exercise of national sovereignty; in particular Article III-265, in the field of border control, Article III-269, in the field of judicial cooperation in civil matters, and Articles III-270 and III-271, in the field of judicial cooperation in criminal matters, for those of the competences mentioned in the said articles which do not enter the forecasts or Articles 62 and 65 of the Treaty establishing the European Community, nor Articles 31 and 34 of the European Treaty
28. Considering that there is also a revision of the Constitution, taking into account the scope of such a provision for the exercise of national sovereignty, Article III-274, concerning the establishment of a European Public Prosecutor's Office, a body empowered to prosecute the perpetrators of offences that infringe on the financial interests of the Union and to exercise public action in French courts concerning these offences;
With respect to the new procedures for the exercise of powers already transferred, applicable as soon as the treaty comes into force:
29. Considering that a revision of the Constitution calls for any provision of the treaty which, in a matter inherent in the exercise of national sovereignty but already falling within the competence of the Union or the Community, amends the applicable rules of decision, either by substituting the rule of majority qualified to that of unanimity within the Council, thus depriving France of any power of opposition, or by conferring a decisional function to the European Parliament, which is not the initiative
30. Considering, therefore, that a revision of the Constitution is required, as soon as they are now dependent on the measures in question of a decision of the Council ruling by the qualified majority, including Articles III-270 and III-271, in that they relate to the competences already transferred in the field of judicial cooperation in criminal matters, Articles III-273 and III-276, which relate to the structure, operation, area of action and
31. Considering that it is the same, as they confer a decision-making function on the European Parliament, in particular Article III-191, which provides that the European law or framework law shall establish the necessary measures for the use of the euro, and the first paragraph of Article III-419 which, in matters of interest to the space of freedom, security and justice, shall now subject to the approval of the European Parliament any strengthened cooperation
32. Considering that the same is true of Article III-264, in that it substitutes for the own power of initiative available to each Member State under the previous treaties the joint initiative of a quarter of the Member States to present a draft European act in matters within the space of freedom, security and justice, such as those mentioned in Article III-273 concerning Eurojust, and Articles III-275 to
With respect to the transition to a qualified majority under a subsequent European decision:
33. Considering that a revision of the Constitution calls for any provision of the treaty, referred to as the "bridge clause" by its negotiators, which, in a matter inherent in the exercise of national sovereignty, allows, even by substituting such a change to a unanimous decision of the European Council or of the Council of Ministers, to substitute a mode of majority decision for the rule of unanimity within the Council of Ministers; in fact, such amendments will not require, at the appropriate time, any act of ratification or national approval that would permit constitutional control on the basis of Article 54 or Article 61, paragraph 2, of the Constitution;
34. Considering that this is the case in particular of the measures relating to the law of the family having a transboundary impact provided for in paragraph 3 of Article III-269, the minimum rules relating to the criminal procedure provided for in paragraph 2 of Article III-270, as well as the minimum rules relating to the definition and suppression of offences in areas of particularly serious crime having a transboundary dimension provided for in the third paragraph of Article III-271;
With regard to the simplified review procedures provided for in articles IV-444 and IV-445 of the treaty:
35. Considering, on the one hand, that, for the reasons set out above, must also be examined the general "pass clause" contained in Article IV-444, which establishes a procedure for "simplified revision" of the treaty; that this article allows the European Council, by its first paragraph, to authorize the Council, except in matters of defence, to decide on a qualified majority in an area or in a case for which the treaty requires unanimity that, in the absence of a national ratification procedure to allow for constitutional control, these provisions require a revision of the Constitution notwithstanding the ability of any national parliament to oppose their implementation;
36. Considering, on the other hand, that Article IV-445 establishes a simplified procedure for review of the internal policies and actions of the Union; that it provides that, on the proposal of a Member State, the European Parliament or the Commission, the European Council, ruling unanimously, "may adopt a European decision amending all or part of the provisions of Part III, Title III" relating to the internal policies and actions of the Union;
On new prerogatives recognized in national parliaments within the framework of the Union:
37. Considering that the treaty submitted to the Constitutional Council increases the participation of national parliaments in the activities of the European Union; that it recognizes to them new prerogatives; that it is necessary to assess whether these prerogatives can be exercised within the current provisions of the Constitution;
38. Considering, first of all, that article IV-444 establishes, as it has been said, a simplified procedure for revision of the treaty; that it provides for the transmission to national parliaments of any initiative taken in this regard and adds that: "In the event of opposition of a national parliament notified within six months after this transmission, the European decision ... is not adopted";
39. Considering, in the second quarter, that the second paragraph of Article I-11 provides that the national parliaments shall ensure respect for the principle of subsidiarity by the institutions of the Union in accordance with Protocol No. 2; that it results from Articles 6 and 7 of the latter, combined with Article 3 of Protocol No. 1, only a national parliament or, if so, each of its chambers, will now, within a period of time to this end, every national parliament has two votes, each of the chambers of a bicameral parliament with one voice; that, at the end of this review, the body whose project emanates may decide to maintain, modify or remove it;
40. Considering, in the third place, that article 8 of Protocol No. 2 provides that the Court of Justice, competent to decide on the petitions filed for violation of the principle of subsidiarity, may also consider an appeal transmitted by a Member State "in accordance with its legal order on behalf of its national parliament or a chamber thereof";
41. Considering that the right of the French Parliament to oppose an amendment of the treaty in accordance with the simplified manner provided for in article IV-444 requires a revision of the Constitution to allow the exercise of this prerogative; the same is true of the faculty conferred upon it, if any in accordance with procedures specific to each of its two chambers, to issue a reasoned opinion or to appeal to the Court of Justice in the context of the monitoring of the principle of subsidiarity;
On the other provisions of the treaty:
42. Considering that none of the other provisions of the treaty submitted to the Constitutional Council under Article 54 of the Constitution implies a review of the Constitution;
On the whole treaty:
43. Considering that, for the above reasons, the authorization to ratify the Treaty establishing a Constitution for Europe requires a revision of the Constitution,
Decides:
Authorization to ratify the Treaty establishing a Constitution for Europe can only intervene after revision of the Constitution.
This decision will be notified to the President of the Republic and published in the Official Journal of the French Republic.
Deliberated by the Constitutional Council in its session on 19 November 2004, where were: Mr. Pierre Mazeaud, President, Mr. Jean-Claude Colliard, Olivier Dutheillet de Lamothe, Ms. Jacqueline de Guillenchmidt, Mr. Pierre Joxe and Jean-Louis Pezant, Ms. Dominique Schnapper, Mr. Pierre Steinmetz and Ms. Simone Veil.
The president,
Pierre Mazeaud