Circumventing the Council of State's Decision in 'Arrighi: A Strategic Approach to Contesting the Constitutionality of a Decree

Extract

[...] The Council of State, in its decision known as 'Dame Peynet' of 8 June 1973, will establish a general principle from which the Labour Code will be inspired, according to which an employer may not, except in certain cases, dismiss a pregnant employee, applying it to female employees in public services when no specific need of these services opposes it. The general principles of law are jurisprudential principles. They are unwritten rules extracted by the Council of State that apply to all administrative authorities. In this case, Robert indicated to us that the head of the Human Resources department had been dismissed. [...]

[...] First, in a decision known as 'Arrighi' in 1936, confirmed by a decision known as 'Association des eaux et rivières de Bretagne' in 2006, the Council of State, in application of the theory of the 'law screen', considers that the judge will not be able to annul an administrative act contrary to the constitution, even if the regulatory act is taken on the basis of a law in conformity with the constitution. However, in another decision known as 'Quintin' in 1991, the Council of State applies the theory of the transparent legislative screen. Thus, when the regulatory act is not taken on the basis of a law, or when it is taken on the basis of a law but that law contains no fundamental rule concerning the act, it is up to the Council of State to verify the constitutionality of the act directly. [...]

[...] Robert indicates that the law was declared to be in conformity with the Constitution while being subject to a reservation of interpretation. In general, on the occasion of the constitutional control of a law, the Constitutional Council has two options. Either it declares the law to be in conformity with the Constitution, or it considers that the law is not in conformity with the Constitution. However, the Constitutional Council has found a solution to mitigate the regime of its control with the technique of reservations of interpretation. Thus, several methods of interpretation are possible by the Constitutional Council. [...]

[...] In concrete terms, the technique of interpretation reservations allows the Constitutional Council to declare a provision conform to the Constitution on the condition that it is interpreted or applied in the way it indicates. Article 62, paragraph of the Constitution provides thatthe decisions of the Constitutional Council are not subject to any appeal. They are binding on public authorities and on all administrative and judicial authorities . » However, when the Constitutional Council issues an interpretation reservation, it no longer directly controls the respect of this reservation to ensure the conformity of the provision to the Constitution. [...]

[...] However, a different response must be provided in the event that the law has not been the subject of a constitutional review by the Constitutional Council. In this situation, it will be up to Robert to directly contest the constitutionality of the law from which the decree was taken in application. Thus, in accordance with Article 61-1 of the aforementioned Constitution, Robert will have to request the referral of the Constitutional Council to the administrative jurisdiction on the occasion of an appeal against the disputed decree. [...]