The highly awaited adoption of the institutional act concerning the application of article 61-1 of the Constitution by the French National Assembly took place on the 24th of November. It heralds substantial changes in both legislative and legal procedures since it will afford the individual citizen an indirect access to the Conseil Constitutionnel [official website - in English] (high court in charge of constitutional review) to challenge a law impacting on his constitutional rights and freedoms.
Article 61-1 of the Constitution [text - in English] is an important point of the project to modernize the institutions of the Fifth Republic [presentation of the project - in English]. It foresees the possibility of reviewing the constitutionality of a law after its enactment. Up till now, only the President of the Republic, the Presidents of the National Assembly and of the Senate, or a group of sixty deputies (or senators) could make a referral for review, and only prior to the law’s enactment. Article 61-1 will allow the individual subject to trial, whether before a trial court or an appeal court, to raise a preliminary question.
The lower courts will act as gatekeepers by ensuring that the conditions planned for in the institutional act are fulfilled before transmitting the question to the Conseil d’Etat [official website - in English] (highest court in the administrative legal system) or the Cour de cassation [official website - in English] (the highest appeal court), which then decide whether to further it to the Constitutional Council, whose decision is final. So long as the question is under examination, judgment in the case is suspended.
The previous reform of the control of constitutionality procedure in 1974, which extended access to the Constitutional Council to the deputies and senators, was followed by a slew of requests. The government therefore fears that the entry into force of article 61-1 will have a floodgate effect on the number of cases treated by the highest courts of the land.