Independent Authorities and Constitutional Council in France

Extract

[...] [INTRODUCTION The strengthening of the powers of traditional actors: example of the Constitutional Council New actors in the 5th Republic: example of the AAI I. The strengthening of the powers of the Constitutional Council The affirmation of a Constitutional Council of the 5th Republic is strongly rooted in the refusal to define in 1958 the contours of the constitutional block, but the a priori control of constitutionality has encountered limits, notably the need for transposition measures which, by principle, fall under the legislator, issued under the control of the Constitutional Council. [...]

[...] From the outset, the Constitutional Council of the 5th Republic has been recognized as a framework of competence of powers that do not allow it to guarantee the full effectiveness of a fundamental right, that is to say, to pronounce on the substance of a law and to proceed, if necessary, to its invalidation. The evolution of the role of the Constitutional Council beyond negative or positive legislator, in particular through constitutional contentious proceedings, has been made possible by the consecration of a constitutional review by exception, in addition to traditional common law procedures. II. The development of independent authorities Independent Authorities exert several functions, since they create rules, apply them, control their application, and sanction their violation. [...]

[...] The interpretation under the 5th Republic of the activity of these independent authorities consists in creating a concept of regulatory function. Far from recognizing that these independent authorities exert several functions (regulator, applicator, controller, sanction), the maintained fiction consists in supporting that the principle of specialization is respected, the entire functions of these authorities being labeled as a "regulatory function", this latter function being the exclusive domain of independent authorities. This new conception of regulatory function, reflecting a certain liberal ideology, does not result in an increase in the freedom of citizens or a strengthening of the guarantee of the existence of fixed and established laws. [...]