Extract
[...] Indeed, on a practical scheme, by abstracting from the principles extracted from the decision studied here, and from an external point of view, it has never yet allowed a legal provision transposing a European directive to be inapplicable, even if contrary to the Constitution, thereby claiming the illusion of the primacy of European law and the respect of the constitutional requirement as regards the international commitments of the French State. In fact, there coexists a formal superiority of the Constitution and a primacy of EU law in its concrete application. The compromise resulting from a balance to the perfect illusion seems to have been found. However, such a balance is, in practice, very fragile. [...]
[...] This rule was then clarified by Council Directive 2001/51/EC of 28 June 2001, harmonizing at European level the liability of carriers. These provisions were transposed into French law by the Ordinance of 24 November 2004 creating the Code governing entry and residence of foreigners and the right of asylum (CESEDA), then amended by the Law of 7 March 2016 on the rights of foreigners in France. Articles L. 213-4 and L. 625-7, 1° of the CESEDA, resulting from the transposition of the aforementioned European directive, thus require airlines to reroute foreigners, non-nationals of a Member State of the European Union, refused entry, and provide for a financial penalty in case of failure. [...]
[...] All these provisions cited are contained in the body of the French Constitution and are therefore the subject of special protection, by their nature, and the consequences of their violation. But this protection that they benefit from has certain limits, particularly with regard to the constitutional requirement of transposition of European directives. In the face of this difficulty, the constitutional judge had previously spoken out in decisions made earlier. Those made respectively on June and November by the same council, introducing for the first time its incompetence to control the conformity of provisions transposing a European directive. [...]
[...] The question that then arose before the Constitutional Council is as follows: can legal provisions, transposing a European directive, be annulled for non-conformity with constitutional principles? The Constitutional Council, by a decision dated 15 October 2021, responded in the negative, but in a nuanced manner. It first recognized the constitutional obligation to transpose European directives in light of Article 88-1 of the Constitution. And by virtue of this obligation, the Constitutional Council is not competent to set aside a legal provision that merely faithfully transposes a European directive, solely on the grounds of its non-compliance with the Constitution. [...]
[...] A total submission of the latter would result in the loss of sovereignty conferred on the French State to the benefit of institutions that are democratically unfounded. This is why the constitutional judge suggests a certain superiority of the Constitution vis-à-vis EU law. This superiority of the Constitution is reflected in the fact that the constitutional judge has himself declared himself incompetent, suggesting that he also benefited from the opposite option. This self-declaration of incompetence therefore falls within the sovereign choice of these judges and not within a European decision that imposes itself. [...]
