The French Constitutional Court and Its Review Power Over International Treaties

The relationship between international treaties and the constitutional order of states is one of the central challenges of modern constitutional law. France offers a unique model in this regard. Articles 54 and 55 of the French Constitution establish key principles regarding the hierarchy of norms and the constitutional review of international treaties. This blog post examines the French Constitutional Court's (Conseil Constitutionnel) authority to review international treaties from an international law perspective, analyzing its approach in the landmark Maastricht and CETA decisions.

Hierarchy of Norms: Constitution vs. International Treaty

Article 55 of the French Constitution grants international treaties duly ratified or approved a status superior to statutory law. However, this superiority does not extend over the Constitution itself. In the French legal system, the Constitution remains at the top of the legal hierarchy. Therefore, in cases of conflict between a treaty and the Constitution, the Constitution prevails.

The 2004 constitutional amendment (Article 54) granted the Constitutional Council the power to review international treaties for constitutional compliance before their ratification. This means that the Council may examine a treaty before it enters into force in France. If the Council finds a conflict with the Constitution, the treaty may only be ratified after a constitutional amendment is adopted.

The Maastricht Decision (1992): Between European Integration and National Sovereignty

In 1992, before France ratified the Maastricht Treaty, the Constitutional Council delivered a ruling under Article 54, concluding that certain provisions of the treaty were incompatible with the French Constitution. The Court raised concerns particularly about dual citizenship, the monetary union, and the transfer of sovereignty, and ruled that a constitutional amendment was required.

This decision illustrates France’s effort to balance support for European integration with the preservation of constitutional supremacy. The Court upheld the European project while affirming the primacy of the French Constitution.

The CETA Decision (2017): A Constitutional Take on a Trade Treaty

In 2017, the Comprehensive Economic and Trade Agreement (CETA) between Canada and the EU came under the scrutiny of the Constitutional Council. The Court found that the treaty’s Investment Court System (ICS) was not contrary to the French Constitution. It reasoned that the ICS did not undermine the independence of the French judiciary or violate constitutional rights.

Nonetheless, the decision demonstrated that the Council conducted a thorough analysis of the ICS and its potential impact on France's constitutional order. This shows that the Council considers not only economic implications but also constitutional ramifications when assessing international agreements.

The Challenge of Harmonizing the Constitution and International Obligations

The French model offers a transparent solution to the potential conflict between constitutional norms and international obligations: if a treaty contradicts the Constitution, either the Constitution must be amended or the treaty must not be ratified. This approach upholds both constitutional supremacy and the rule-of-law-based implementation of international obligations.

However, this harmony is not always easy to achieve. Amending the Constitution may not always be politically feasible, while rejecting a treaty may cause diplomatic or economic complications.

Can This Model Inspire Other Countries?

France’s model may be seen as a successful attempt to institutionalize the balance between constitutional and international legal commitments. However, whether it can be replicated elsewhere depends on the constitutional traditions and the perception of international law in each country.

For instance, Germany’s Federal Constitutional Court focuses more on fundamental rights, while countries like Poland and Hungary do not accord international treaties supremacy over their constitutions. This renders the French pre-ratification review model relatively unique.

Conclusion

The French Constitutional Council’s power to review international treaties serves as a crucial tool for managing potential conflicts between constitutional law and international obligations. It operates as a safeguard for both the constitutional order and France’s international credibility. The Maastricht and CETA decisions highlight different legal and political dimensions of this balancing act. As a model, France’s approach may offer useful lessons for other countries seeking to align constitutional review mechanisms with international commitments.