The Constitution of France in the Context of EU and Transnational Law: An Ongoing Adjustment and Dialogue to Be Improved

Abstract

In terms of the French constitutional culture, the Constitution (of the Fifth Republic), adopted in 1958, grew out of specific circumstances relating to the previous regime, with the aim to ensure the primacy of the executive. Fundamental rights protection emerged later and is mainly based on the ECHR; the main domestic instrument is the 1789 Declaration of the Rights of Man and of the Citizen. The possibility for individuals to challenge the constitutionality of legislative provisions that violate their rights was introduced by a constitutional amendment of 2008 establishing ex post control of constitutionality. Judicial review is regarded as deferent to the political institutions. With regard to EU law, the Constitution has extensively been amended, typically following a finding by the Constitutional Council that a new treaty affects ‘the essential conditions for the exercise of national sovereignty’. The report observes a reluctance of French institutions to fully participate in a dynamic dialogue with the EU integration process. Although this has recently changed with a more constructive approach on the part of the Constitutional Council, the report observes deficiencies in democratic deliberation and the reluctance to push for a solid fundamental rights protection in the EU. The report advocates a so-called pro homine clause, which has been considered in France, to guarantee that the individual would always benefit from the highest level of protection, whether it is provided for by European, international or national instruments. The report also notes a more general concern amongst a part of the French population about a barefaced economic liberalism in the EU and its effect of deteriorating their living conditions.