Council of State Jurisdiction over Non-Ratified Ordinances

Extract

[...] This decision corroborates that taken by the Constitutional Council in its QPC of 3 July 2020, which already estimated that at the expiration of the enabling period, ordinances fall within the legislative domain. However, this is not the first time that the Council of State has recognized its competence and has even recognized its competence to control a ratification law, notably in the Hoffer judgment of 8 December 2000, where it will verify that the ratification law must meet the requirements of the right to a fair trial arising from Article 6.1 of the European Convention on Human Rights. [...]

[...] Council of State, 1st and 4th Chambers combined December 2020, Administrative Jurisdiction Union - Does a QPC relating to an unratified ordinance fall within the competence of the Constitutional Council or the Council of State? Exercise : Commentary on the decision of the Council of State, CE, 1st and 4th ch.r December 2020, Administrative Jurisdiction Union. The priority issue of constitutionality of 28 May 2020 raised a series of intense and media reactions, the Constitutional Council described the provisions of an unratified ordinance as 'legislative provisions'. [...]

[...] The Council of State therefore considers that an ordinance taken on the basis of Article 38 of the Constitution falls within the regulatory field and that therefore « the priority constitutional question thus raised cannot be the subject of a referral to the Constitutional Council, without prejudice to the examination by the judge of the means raised in support of the appeal for abuse of power brought against the ordinance ». [...]

[...] This decision thus changes the avenues of appeal against an ordinance. The new mode of operation of the Council of State for forming an appeal against an ordinance Thus, in its decision, the Council of State reveals to us here a new mode of operation of the procedure for appealing an unratified ordinance. It declares itself competent to determine whether the criticized provisions of the ordinance fall within the domain of the law or within regulatory competence and whether it is necessary or not to refer the matter to the Constitutional Council. [...]

[...] In its decision of 11 June 2020, the Council of State did not accept that a QPC could be raised against a ratified ordinance, estimating that ordinances are not laws in the sense of Article 61-1. This meant that it proceeded directly to examine the constitutionality of the ordinance insofar as it is an administrative act Thus, in its decision of 21 December 2020, the Council of State modifies its jurisprudence on the question in order to agree with the Constitutional Council. The Symphony of the Rue Montpensier Rather than enemy, the Council of State in this decision accords its violin to that of the Constitutional Council. [...]