Constitutional Council's Restrictive Approach to QPC

Extract

[...] Specifically, in its decision of June the Constitutional Council interpreted Article 14 of the DDHC of 1789 not as a subjective right directly invocable by litigants, but as a principle with institutional scope, intended to frame the role of Parliament in the development of tax rules. It deduced that this principle could not, as such, form the basis of a QPC. This analysis is based on a fundamental distinction between subjective rights, which confer prerogatives on individuals, and institutional principles, which govern the organization of public authorities. [...]

[...] This decision reflects the Constitutional Council's willingness not to excessively expand the scope of the QPC. By making the admissibility of grievances based on negative incompetence conditional on the demonstration of an infringement of a constitutionally guaranteed right or freedom, the Council limits the risk of the QPC becoming a systematic means of contesting the entire existing legislation. This restrictive position aims to preserve the balance of powers between the legislature, the executive and the constitutional judge. In addition, the Kimberly Clark decision is part of a consistent jurisprudence, the Council having adopted a similar approach in other tax-related cases. [...]

[...] Constitutional Council June 2010, n° 2010-5 - Can one invoke, in the context of a QPC, a negative legislative incompetence when that does not result in an infringement of a right or a constitutionally guaranteed freedom ? Constitutional Council, n° 2010- June 2010, SNC Kimberly Clark The Constitutional Council was seized on 23 April 2010 by the Council of State (decision n° 327166 of 23 April 2010) At a time when discussions on tax reform and the distribution of prerogatives between the legislator and the regulatory authority are back in the spotlight, particularly following the Constitutional Council's decision of 28 December 2023 on the 2024 Finance Act, the issue of safeguarding the principle of fiscal legality and the limits of constitutional review takes on particular importance. [...]

[...] In other words, the mere fact that the legislator had omitted to exercise his competence was not sufficient to trigger the censure of a legislative provision. In order to retain this negative incompetence, the Constitutional Council insists that it is necessary to demonstrate that this omission has concrete consequences on a fundamental right. This interpretation limits the scope of negative incompetence in the context of constitutional control, in particular a posteriori. In other words, a negative incompetence that does not directly affect a right or a freedom guaranteed by the Constitution cannot be challenged through a QPC. [...]

[...] This approach allows avoiding that the QPC becomes a generalized instrument of control of the quality of legislation, which would risk transforming the Constitutional Council into an administrative-type jurisdiction, charged with verifying the regularity of all legislative decisions. By adopting this position, the Constitutional Council affirms its conception of the QPC as a mechanism for protecting fundamental rights, and not as a means of general control over the legality of laws. This teleological interpretation aims to preserve the effectiveness of the QPC, by focusing it on its primary purpose, namely, the guarantee of constitutionally protected rights and freedoms. [...]