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Decision No. 2007-560 Dc Of 20 December 2007

Original Language Title: Décision n° 2007-560 DC du 20 décembre 2007

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JORF n°0302 of 29 December 2007 page 21813
text No. 96



Decision No. 2007-560 DC of 20 December 2007

NOR: CSCX0711149S ELI: Not available



WORKING THE WORK ON EUROPEAN UNION
OF THE EUROPEAN COMMUNITY


The Constitutional Council was seized by the President of the Republic on 13 December 2007, pursuant to Article 54 of the Constitution, of the question of whether the authorization to ratify the Treaty amending the Treaty on the European Union and the Treaty establishing the European Community, signed in Lisbon on the same day, must be preceded by a revision of the Constitution;
The Constitutional Council,
Vu la Constitution of 4 October 1958in particular its article 88-1 in its first paragraph;
See?Order No. 58-1067 of 7 November 1958 amended Act 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;
Vu la Constitutional Council decision No. 2004-505 DC of 19 November 2004 relating to the Treaty establishing a Constitution for Europe;
The rapporteur was heard;
1. Considering that the Treaty amending the Treaty on the European Union and the Treaty establishing the Community was signed on 13 December 2007 in Lisbon by the Plenipotentiaries of the twenty-seven Member States of the European Union; that it is requested of the Constitutional Council to assess whether this treaty includes a clause contrary to the Constitution;
2. Considering that Article 1 of this international undertaking amends the Treaty on the European Union; that under Article 2 of this Article, the Union replaces and succeeds the European Community; that Article 8 of the Treaty confers on the Charter of Fundamental Rights of the European Union of 7 December 2000, as amended on 12 December 2007, that, in the end, this Treaty annexed eleven protocols to the Treaty on the European Union, to the Treaty on the Functioning of the European Union or to the Treaty establishing the European Community of Atomic Energy;
On the reference standards:
3. Considering that, by the preamble of 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";
4. 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";
5. 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 "with reciprocity, France consents to the limitations of sovereignty necessary for the organization and defence of peace";
6. 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;
7. Considering that the conditions in which the French Republic participates in the European Communities and in the European Union are fixed by the provisions in force of Title XV of the Constitution, apart from those of the second paragraph of Article 88-1 that is related to the treaty establishing a Constitution for Europe, which has not been ratified; only under the first paragraph of Article 88-1 of the Constitution: "The Republic participates in the European Communities and the European Union,
8. Considering that, while confirming the place of the Constitution at the top of the domestic legal order, these constitutional provisions 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 transfers of competence granted by the Member States;
9. 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;
10. 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 Lisbon Treaty, as well as its protocols and its annex; that, however, are exempt from the control of conformity with the Constitution those of the provisions of the treaty that resume commitments previously undertaken by France;
On the fundamental rights of the Union:
11. Considering, first of all, that, under Article 6, paragraph 1, of the Treaty on the European Union arising from Article 8 of the Lisbon Treaty: "The Union recognizes the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as amended on 12 December 2007 in Strasbourg, which has the same legal value as treaties. ― The provisions of the Charter do not extend in any way the powers of the Union as defined in the treaties. ― The rights, freedoms and principles set out in the Charter shall be interpreted in accordance with the general provisions of Part VII of the Charter governing the interpretation and application of the Charter and taking duly into account the explanations referred to in the Charter, which indicate the sources of those provisions”;
12. Considering that, apart from the numbering changes, the provisions of the Charter, to which is recognized the same legal value as that of treaties, are identical to those considered by the Constitutional Council in its decision of 19 November 2004 referred to above; that, for the same reasons as those set out in this decision, the Charter does not call for a review of the Constitution or the content of its articles, or for its effects on the essential conditions for the exercise of national sovereignty;
13. Considering, secondly, that under the terms of 2 of the same article 6 of the Treaty on the European Union: "The Union adheres to the European Convention for the Protection of Human Rights and Fundamental Freedoms..."; that, however, on 8 of Article 218 of the Treaty on the Functioning of the European Union, resulting from 173 of Article 2 of the Lisbon Treaty, provides that the decision to conclude the agreement on accession of the Union to the said Convention shall enter into force after its approval by the Member States, in accordance with their respective constitutional rules; that the latter reference, in the case of France, to the legislative authorization provided for by the Constitution;
On the competence and functioning of the Union:
14. 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, may be granted the transfer of skills necessary to the determination of the rules relating to the free movement of persons and related areas. – The law sets the rules for the European arrest warrant in accordance with the actions taken on the basis of the Treaty on the European Union”;
15. 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;
16. Considering that the "subsidiarity principle", set out in paragraph 3 of Article 5 of the Treaty on the European Union, in its drafting from the 6 of Article 1 of the Lisbon Treaty, implies that, in areas not falling within the exclusive competence of the Union, it shall only intervene "if, and to the extent that, the objectives of the action envisaged may not be attained sufficiently by the Member States 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;
17. Considering that, in accordance with Article 289 of the Treaty on the Functioning of the European Union, resulting from Article 236 of the Lisbon Treaty, unless otherwise provided, the legislative acts shall be adopted, on the proposal of the only Commission, jointly by the Council of Ministers, ruling by the qualified majority provided for in Articles 16 of the Treaty on the European Union and 238 of the Treaty on the Functioning of the European Union, as provided for in the Lisbon Treaty 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 Part III of the Treaty on the Functioning of the European Union, will now be dealt with in this procedure;
With regard to transfer of jurisdiction in new subjects:
18. Considering that the provisions of the Lisbon 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; Article 75 of the Treaty on the Functioning of the European Union, in the field of counter-terrorism and related activities, of Article 77, in the field of border control, of Article 79, paragraph 2, in the field of the fight against trafficking in human beings, of Article 81, in the field of judicial cooperation in civil matters, and of Articles 82 and 83, in the field of judicial cooperation referred to in
19. Considering that it also calls for a revision of the Constitution, in view of the scope of such a provision for the exercise of national sovereignty, Article 86 of the Treaty on the Functioning of the European Union, as a result of the Lisbon Treaty which, on the one hand, provides that the Council may unanimously establish a European Parquet, a body authorized to prosecute the perpetrators of offences that infringe on the financial interests of the Union and to exercise such a share
With respect to the new procedures for the exercise of powers already transferred applicable as soon as the treaty comes into force:
20. 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 relevant rules of decision, or 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 power of decision to the European Parliament, which is not an initiative
21. Considering that the 2 of Article 31 of the Treaty on the European Union, as a result of the Lisbon Treaty, which reproduces Article III-300 of the Treaty establishing a Constitution for Europe, and Articles 76, 82, 83, 85, 87 to 89, 133 and 329 of the Treaty on the Functioning of the European Union, which revert to Articles III-264, III-270, III-271, III-273, III-275 to III-277,
22. Considering that it also calls for a revision of the Constitution, as it confers a decision-making power on the European Parliament, the v of Article 218 of the Treaty on the Functioning of the European Union, which extends the area of agreements which the Council can only approve the conclusion after the approval of the European Parliament;
With respect to the transition to a qualified majority under a subsequent European decision:
23. Considering that a revision of the Constitution calls for any provision of the treaty that, 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 unanimity rule 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;
24. Considering that the 3 of Article 31 of the Treaty on the European Union, as a result of the Treaty of Lisbon, which reproduces the 3 of Article III-300 of the Treaty establishing a Constitution for Europe, as well as the d of Article 82 and the third paragraph of Article 83 of the Treaty on the Functioning of the European Union, which reproduce respectively the d of Article III-270 and the third paragraph of the Constitution 1
25. Considering that the provisions of Article 81, paragraph 3, of the Treaty on the Functioning of the European Union, derived from the Lisbon Treaty, which allow the Council, by a unanimous decision and with the exception of a national parliament, to submit certain aspects of family law having a transboundary impact on the ordinary legislative procedure;
With regard to the simplified review procedures provided for in Article 48, 6 and 7, of the Treaty on the European Union, as a result of the 56 of Article 1 of the Lisbon Treaty:
26. Considering, on the one hand, that on the 6th of Article 48 of the Treaty on the European Union, which institutes a simplified review procedure concerning the internal policies and actions of the Union, takes the provisions of Article IV-445 of the Treaty establishing a Constitution for Europe; that, as stated in the above-mentioned decision of 19 November 2004, the reference to the constitutional rules of the Member States refers, in the case of France, to the legislative authorization provided for in Article 53 of the Constitution;
27. Considering, on the other hand, that on the 7th of Article 48 of the Treaty on the European Union, which establishes a simplified procedure for the revision of treaties, takes the provisions of Article IV-444 of the Treaty establishing a Constitution for Europe; that this provision calls for a revision of the Constitution on the same grounds as those set out in the above-mentioned decision of 19 November 2004;
On new prerogatives recognized in national parliaments within the framework of the Union:
28. Considering that the treaty submitted to the Constitutional Council increases the participation of national parliaments in the activities of the European Union; that on the 12th of its article 1 of the Treaty on the European Union lists the prerogatives which are recognized for this purpose; that it should be appreciated if these prerogatives can be exercised within the framework of the current provisions of the Constitution;
29. Considering that the 7 of Article 48 of the Treaty on the European Union, in its drafting resulting from the 56 of Article 1 of the Treaty of Lisbon, which recognizes the right of the French Parliament to oppose the implementation of a simplified procedure of revision of the treaties, reiterates the provisions of Article IV-444 of the Treaty establishing a Constitution for Europe; that it calls a revision of the Constitution for the same reasons as those set forth in
30. Considering, moreover, that article 3 of article 81 of the Treaty on the Functioning of the European Union, in its drafting resulting from article 66 of the Lisbon Treaty, recognizes to a national parliament the right to oppose, within six months, a decision of the Council that certain aspects of the law of the family having a transboundary impact not also to a special legislative procedure providing for unanimity within the Council after consultation with the European Parliament but
31. Considering that the 3 of Article 7 of the above-mentioned protocol on the application of the principles of subsidiarity and proportionality confers on national parliaments, within the framework of the ordinary legislative procedure, new means, in relation to the treaty establishing a Constitution for Europe, to ensure respect for the principle of subsidiarity; that it results from this provision that, when the Commission decides to maintain a proposal regarding which a subsidiarity of the principle If, under a majority of 55% of the members of the Council or a majority of the votes cast in the European Parliament, the Union's legislator is of the opinion that the Commission's proposal is not compatible with the principle of subsidiarity, its consideration is not continued;
32. Considering that the right of the French Parliament to oppose the submission to the ordinary legislative procedure of certain aspects of family law requires a revision of the Constitution to allow the exercise of this prerogative; the same is true of the new means conferred upon it, if any according to procedures specific to each of its two chambers, to monitor compliance with the principle of subsidiarity under the ordinary legislative procedure;
On the other provisions of the treaty:
33. 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:
34. Considering that, for the above reasons, the authorization to ratify the Treaty amending the Treaty on the European Union and the Treaty establishing the European Community requires a revision of the Constitution,
Decides:

Article 1


Authorization to ratify the Treaty Amending the Treaty on the European Union and the Treaty establishing the European Community can only intervene after revision of the Constitution.

Article 2


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 meeting of 20 December 2007, where were: Mr. Jean-Louis Debré, President, Mr. Guy Canivet, Jacques Chirac, Renaud Denoix de Saint Marc and Olivier Dutheillet de Lamothe, Ms. Jacqueline de Guillenchmidt, Mr. Pierre Joxe and Jean-Louis Pezant, Mme Dominique Schnapper and M. Pierre Steinmetz.


The president,

Jean-Louis Debré


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