Comparative constitutional law Tuesday, 16 February 2015 Dr. Davide Paris – Max Planck Institute for Comparative Public Law and International Law Heidelberg

The Italian Corte costituzionale  The debate in the Constitutional Assembly  Composition, functions and procedures  The role of the Constitutional court in the Italian legal order: an historical overview The French Conseil constitutionnel  The Conseil constitutionnel in the Constitution of the V Republic (1958)  The evolution of  The constitutional reform of 2009

 The Italian constitutional Assembly was elected on 2 June 1946  The draft Constitution was first approved by a Commission consisting of 75 members (February 1947), then by the whole Assembly  The Constitution was finally approved by a large majority on 27 December 1947 and entered into force on 1 January 1948  The Constitutional assembly continued to work until 31 January 1948 A new institution Diffuse review of legislation was never taken into account seriously A difficult institution

Why the Constitutional Assembly rejected diffuse review of legislation?  Fear of the “government of judges”: courts should not be allowed to substitute their will to the will of the Parliament  Reviewing statutes requires a political appreciation that is little compatible with the technical nature of the jurisdiction  Legal certainty: without the principle of stare decisis, a diffuse review of constitutionality could lead to contradictory decisions  The new Constitution established Regions with legislative powers: need of an arbiter between State and Regions

 They must be chosen from among judges, including those retired, of the ordinary and administrative higher Courts, from full university professors of law, and lawyers with at least twenty years practice  The term lasts 9 years 5 judges Appointed by the President of the Republic Elected by the two Chambers of the Parliament in a joint session by qualified majority Elected by the ordinary and administrative Supreme Courts

The Constitutional Court’s competences  Judicial review of legislation  Conflicts between branches of the State and conflicts between the State and the Regions  Impeachment against the President of the Republic, initiated by the Parliament, for high treason and attempt against the Constitution In 1953 a constitutional reform added a new function: the Constitutional Court decides whether a proposed referendum is admissible or not

 Only laws and acts having the force of law issued by the State and the Regions can be challenged before the Constitutional Court and eventually nullified There are two ways to institute judicial review proceedings The C. Court is seized directly The State Government can challenge a regional law within 60 days from its publication and a Region can challenge a State law within the same term Ex post and abstract review Interlocutory procedure The C. Court is seized by an ordinary court that doubts the constitutionality of a law it has to apply Concrete review

Interlocutory procedure for the review of constitutionality The issue of a statute’s constitutionality arises during court proceedings. The court ask itself: Is the issue relevant? Is it possible to end the proceeding independently from the issue of constitutionality? Is the issue not manifestly unfounded? The doubt on the constitutionality has a minimum basis? Is it possible an interpretation in conformity with the Constitution, so that the doubt can be removed? Yes! No! The court stays the proceeding and refer a question of constitutionality to the Constitutional court The C. court excludes any doubts on the constitutionality: the statute is not in contrast with the Constitution The C. Court holds the statute unconstitutional: No court can apply this statute anymore erga omnes effects

The Constitutional court’s periods  A difficult establishment ( ) - 8 years to pass the acts necessary for the C. Court’s establishment and to elect the judges - Doctrine that prevented the C. Court from reviewing pre-constitutional laws: judgment 1/1956  The consolidation of the C. Court’s legitimacy ( ) - The C. court cleanses the legal order of fascist legislation - Consolidation of the C. court’s functions  A counter-majoritarian institution/toward decentralization? (from the 90s) - The C. Court reviews a statute shortly after it has been passed - The C. Court “trusts” ordinary courts more  Constitutional adjudication in European and international context (today)

Italian Constitutional adjudication A jurisdiction on laws The Constitutional court’s main task is to guarantee the respect of the Constitution by the statutes passed by the Parliament A centralized review with some aspects of diffuse review Decision is centralized – initiative is diffuse Interpretation in conformity with the Constitution Cooperation between C. Court and ordinary courts is crucial The Constitutional court’s main power (review of legislation) is mainly triggered by ordinary courts: It relies on ordinary courts willingness to refer questions of constitutionality

The French Conseil constitutionnel  The Conseil constitutionnel in the Constitution of the V Republic (1958)  The evolution of  The constitutional reform of 2009

Reasons that traditionally opposed judicial review of legislation in France  The law enacted by the Parliament as expression of the “general will” (la volonté generale – J.-J. Rousseau): the will of the Parliament prevails over the will of any other body and cannot be reviewed by courts  Fear of the “government of judges”  French Constitutions did not include a bill of rights

The Constitution of the IV Republic (1946)  In the Constitution’s Preamble the people’s attachment to the Declaration of the Rights of man and the citizen (1789) is reaffirmed and some new (social) rights are proclaimed  Creation of a Constitutional Committee: - No judicial nature: it included the President of the Republic, the Presidents of the two Chambers and 10 members elected by the Parliament; - Proceeding is instigated by political actors: only the President of the Rep. and the President of the Senate could refer to the Committee a law voted by the National Assembly: - Assess whether a constitutional amendment was required to pass the law: it is the aiguilleur (Favoreu), the pointsman Political composition and activation Ex ante review Abstract review

The Constitution of the V Republic (1958)  One of the main goal of the Constitution of 1958 was to enhance the power of the Government in front of the Parliament  In this view a Constitutional Council was established, in order to guarantee the distribution of normative competences between the Government and the Parliament. It was initially thought as a kind of arbiter between the Government and the Parliament, in order to protect the former  The Constitutional Council reviews the election of the President of the Republic and of the National Assembly members and Senators in disputed cases and performs other functions to protect the separation of powers. It also exercises a limited form of judicial review of legislation

3 members Appointed by the President of the Republic Appointed by the President of the National Assembly Appointed by the President of the Senate ? members Former Presidents of the Republic ex officio The President of the Council is nominated by the President of the Republic The term lasts 9 years One third of the Council is renewed every three years

 According to the Constitution of 1958, only 4 people could bring a law before the Constitutional Council : - The President of the Republic - The President of the National Assembly - The President of the Senate - The Prime Minister  Judicial review takes place after the statute’s approval by the Parliament, but before its promulgation by the President of the Republic. The Const. Council has one month to render its decision.  From 1958 until 1974 the Const. Council judicial review was instigated only 9 times

 In a leading decision of 1971, the Const. Council held that the Preamble of the Constitution of 1958 has constitutional legal force and can serve as a yardstick for judicial review of legislation  The Preamble of the Constitution 1958: “The French people solemnly proclaim their attachment to the Rights of Man and the principles of national sovereignty as defined by the Declaration of 1789, confirmed and complemented by the Preamble to the Constitution of 1946”  Through this decision the Const. Council overcome the lack of an explicit bill of right in the French Constitution

 In 1974 a constitutional amendment extends the right to bring a statue before the Constitutional council to 60 member of the National Assembly or 60 Senators  This reform opens the doors of the review of legislation to the minorities. The majority looses control of the access to the Const. Council  From 1975 to 1996 the Const. Council took 330 decisions on the constitutionality of statutes; over 90% of them have been instigated by parliamentary minorities

La question prioritaire de constitutionnalité - QPC In 2008 an interlocutory procedure for the review of constitutionality was established by a constitutional amendment. New Article 61-1 of the Constitution reads: “If, during proceedings in progress before a court of law, it is claimed that a legislative provision infringes the rights and freedoms guaranteed by the Constitution, the matter may be referred by the Conseil d'État or by the Cour de Cassation to the Constitutional Council which shall rule within a determined period”  Ordinary courts do not refer a question of constitutionality directly to the Const. Council: they refer it to the Supreme Court or to the Supreme Administrative court, which in turn decide whether to refer it to the Const. Council or not  Between 2010 and 2015 the Const. Council received and decided 395 questions of constitutionality

French Constitutional adjudication From an arbiter between the State powers to a Constitutional Court The Const. Council was firstly established as an arbiter between the Parliament and the Government. It progressively evolved toward a full-fledged constitutional court ( ) A long tradition of ex ante and abstract Until ex ante and abstract review of legislation was the only form of review of legislation performed by the Const. council A jurisdiction on laws The Const. Council has to guarantee the respect of the Constitution by the statutes passed by the Parliament The role of the Supreme Courts The Supreme Courts can prevent a question from being brought before the Const. Council (around 80% of the questions are not referred)