Council of State Ruling on Decree Challenging Constitutionality

Extract

[...] B - The challenge of the constitutionality of laws limited to the QPC To challenge a law on which a decree is based, QPC and only QPC. Explain the procedure (separate memorandum; law violating a right or freedom guaranteed by the Constitution; not already declared compliant with the Constitution in the grounds and operative part unless there is a change in circumstances; new ground taken seriously when analyzed by CE or Ccass). Here, there is no separate memorandum, so formally there is no QPC. [...]

[...] Fourthly, the applicants invoke against the decree Articles 1er and Article 6 of the Declaration of the Rights of Man and of the Citizen of 1789, Article 14 of the European Convention on Human Rights and Fundamental Freedoms (ECHR) and Article 1er from its first additional protocol, as well as Article 21 of the Charter of Fundamental Rights of the European Union (CFREU) and the general principle of Union law of non-discrimination. All these sources converge towards a principle of equality and a ban on discrimination, the applicants then considering that the difference in treatment for certain beneficiaries is unconstitutional and inconventional. [...]

[...] In fact, if the Council does not study the constitutionality of the law except in the context of the QPC, it regularly controls the conventionality of laws, just as it applies the Constitution and treaties to administrative acts. This ruling CFDT of 27 October 2011, which offers an illustration. A legislative provision of the Social Action and Families Code (Article L. 262-4) reserves the benefit of the RSA on the condition of being 'over twenty-five years old or assuming the charge of one or more children born or to be born'. A legislative exception is provided by the law at Article L. 626-7-1, which refers to the regulatory power to fix certain conditions of this derogation. [...]

[...] The applicants challenge the internal and external legality of the decree. Three arguments are advanced regarding external legality. Firstly, the applicants consider that the opinion of the advisory commission for the evaluation of norms, which was to pronounce on the decree, would be irregular, in that the opinion asks the government to indicate the additional cost for the departments of this increase in RSA beneficiaries. Secondly, the applicants advance a difference between the decree actually published and the text submitted for opinion to the Council of State. [...]

[...] For the Council of State, the entry into force of the QPC is exclusive and does not change its general jurisprudence. The only way to challenge the unconstitutionality of a law before it is to go through this specific procedure. On the other hand, both the Constitution and the treaties can apply directly to regulatory acts. Therefore, we see that for the Council of State, the QPC remains the only procedure for challenging the law while decrees can be directly attacked by the use of constitutional and European norms (II). Detailed Plan I. [...]