EXPLAINED: What is France’s Constitutional Council and how does it work?

France's Constitutional Council has been catapulted into the headlines with a key decision on pension reform - the cause of months of strikes and protests. Here's a look at how the council works.

EXPLAINED: What is France's Constitutional Council and how does it work?
The entrance of the French Constitutional Council building in Paris. Photo by KENZO TRIBOUILLARD / AFP

The Conseil Constitutionnel is France’s highest authority on constitutional matters and routinely scrutinises new laws to ensure that they are within the spirit of the French constitution.

It is in the news right now because of its ruling on Emmanuel Macron’s pension reform.

What does the council do?

Founded in 1958 (the start of the Fifth Republic and the current French constitution) the council’s role is twofold; it scrutinises any new laws or decrees to check that they are constitutional and it oversees all elections and referendums in France.

It’s not to be confused with the Conseil d’Etat (state council), which advises the government in advance on new laws and also acts as an arbiter in disputes between the state and members of the public – more info on that here.

It doesn’t get involved in court cases – after various appeal courts, the highest court authority in France is the Cour de Cassation.

Who makes up the council?

The council is made up of nine people, who are known as les sages (the wise ones). You will sometimes hear them referred to as Les Sages du Palais-Royal or Les Sages de la rue de Montpensier, named after the street the council building is found on.

Members serve nine-year, non-renewable terms which are staggered so that every three years, three new members arrive on the council.

Members are invited onto the council – the president gets to pick three, the head of the Assemblée nationale (lower house of parliament) picks three and the leader of the Sénat (upper house) picks three. The idea is to have a balance of different politics, although les sages are supposed to be non-political and make their decisions based solely on legal and constitutional grounds.

They tend to be tend to be former lawyers, business people, senior civil servants and retired politicians. Ex presidents automatically get a seat on the Council, although they almost always turn it down. Former prime ministers don’t automatically get a place but they are often picked – the current council includes two ex-PMs – Laurent Fabius and Alain Juppé.

What exactly does it do?

Once new laws are passed through parliament, or new decrees published, they are passed to the Constitutional Council for approval – a bill cannot become law without this approval.

The council publishes a decision based on what the majority of them decide after private deliberations – notes on how these discussions went and who was for and against are kept, but are not available to the public until 25 years has passed.

They have three options; they can either approve a bill entirely, approve most of it but demand changes (known as censure) or reject it entirely.

The council has only rejected completely one bill in its 60-year history, but it’s not unusual for them to request changes on particularly contentious issues.

For example, during the pandemic they scrutinised France’s lockdown rules and other Covid-related restrictions and while most were approved the council ruled that it was unconstitutional to regulate gatherings in private homes – which is why Covid rules in France included only a recommendations that people keep gatherings in private to fewer than 10 people, not a rule.

This is why laws sometimes change between being passed by parliament and appearing on the statute books.

They examine both the bill itself and the process of it becoming law.

Once the Constitutional Council has ruled on something, there is no right of appeal.

What about the pensions decision?

On Friday, the council ruled in favour of the key points of the pension reform – including raising the pension age from 62 to 64 – but demanded some changes. Find the full details HERE.

They also scrutinised two requests for a referendum submitted by opposition parties, using the new process of Référendum d’initiative partagée. This type of referendum, which is different to a standard referendum which France holds from time to time, was created in 2008 but has never been successfully used, partly because it is extremely complicated.

The first request was refused, the second – which was filed at the last minute – will be ruled on on May 3rd.

To hold a referendum of this type first the Constitutional Council must agree, then at least 185 MPs or Senators must back it, and then 10 percent of all registered voters in France (roughly 5 million people) must sign a petition backing it. These signatures must all be checked against ID and verified to ensure that they are real people and properly registered voters – this checking is done by the Constitutional Council in its secondary role as election administrator.

After that, both houses of parliament have six months to consider a law on the subject of the referendum – only if they do not do so is a referendum finally called.

As well as being complicated, this process is also time-consuming, so any referendum on pension reform could not happen before summer 2024 at the earliest.

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French prime minister comfortably survives censure vote

French Prime Minister Elisabeth Borne avoided parliamentary censure in an early morning vote on Saturday after she forced the government's budget plan through the National Assembly without a vote.

French prime minister comfortably survives censure vote

The motion to censure Borne — the 18th levelled at her since she assumed the office — was brought by the left-wing Nupes alliance after the prime minister activated Article 49.3 to adopt the public finance bill without a vote.

The motion received just 193 of the 289 votes needed to succeed, an unsurprising outcome in light of the lack of support from the centre-right.

Its rejection constitutes the adoption of the 2023-2027 budget programme, which now moves to the Senate, the upper house of the French parliament.

The speaker for Nupes, socialist Philippe Brun, accused the government of “favouring with the greatest servility a very well-endowed minority of the French” despite “an immense inflationary crisis”.

President Emmanuel Macron had “tried to make parliament disappear with his repeated (use of) 49.3”, Brun added.

The far right had supported the left’s motion of censure, accusing Borne of the “repeated and abusive use of 49.3”.

Borne, for her part, hit back at both factions, saying “demagoguery is your only budgetary course”.

The government also resorted to Article 49.3 earlier this year to push through unpopular pension reforms, sparking violent protests.