Council of State Judgment: Legality of Decree Excluding Migrant Workers from Housing Rights

Extract

[...] However, it is necessary to consider the competent authority to determine the illegality of French law in relation to Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. In reality, it is a matter of questioning the conventional control. The Constitutional Council refuses to control the compatibility of an internal law with an international norm since a decision dated January regarding the reform carried out by the Veil law. Under these conditions, gradually, the Court of Cassation and then the Council of State will accept to perform the conventional control. [...]

[...] If the Conseil d'Etat had accepted to consider that the contested decree was contrary to France's international commitments, it would have ruled that Article 76 was contrary to those international commitments. By refusing this, the Conseil d'Etat affirms that the supremacy thus conferred on France's international commitments does not apply in the internal order to constitutional provisions. CE, Ass May 1952, Dame Kirkwood Hook: The Dame Kirkwood judgment is a judgment delivered on 29 June 1990 by the Assembly of the Conseil d'Etat. The facts: Madame Kirkwood was the subject of an extradition order taken by the French authorities at the request of the United States. [...]

[...] The question of law: Can the Council of State interpret treaties without referral to the Minister of Foreign Affairs? The solution: To declare itself competent to interpret this treaty, the Council of State refers to the 'case file documents' to determine itself the scope to be given to the notion of minors in the sense of the convention. Thus, by proceeding in this way, the Council of State has operated a significant shift in jurisprudence since it recognizes the administrative judge's right to interpret international conventions themselves. [...]

[...] The question of law: Is international custom part of international law that must prevail over laws? The solution: The request is rejected for several reasons. Firstly, the French tax law specifies that any person residing in France is subject to taxes on their entire income and that the retirement pension is part of this set of income. Secondly, it is not indicated in the status of the ICJ that the retirement pensions of the clerks of the International Court of Justice are exempt from taxes. [...]

[...] The ruling allows the Council of State to clarify the theory of the direct effect of international conventions by providing a clear and broad definition of the concept. Thus, a provision is of direct effect when it does not have the exclusive purpose of regulating relations between states and does not require the intervention of any complementary act to produce effects with regard to individuals. II. Case study 1. The International Convention Against Doping in Sport The laboratory where Martine works wants to introduce a range of products called 'natural' without, however, asking for any 'Bio' label. [...]