I. General characteristics of legislation.
Legislation is the primary source of French law, at least in the domain of private law. It is importsant to not that “administrative law” has been created mainly by the courts, particularly by the Conseil d’état (the highest administrative court).
Legislative sources can be classified under four main categories:
-lois (parliamentary statute)
-réglements (government regulations)
This approach has a theoretical basis in Rousseau’s works but also in the separation of powers.
In addition, circulaires are directives and instructions issued by relevant ministries to their agents, instructing them on how to interpret and apply new legislation.
Legislative sources are categorised in accordance witha legal hierarchy whereby a norm lower in the hierarchy must conform to norms at a higher level. This “hiérarchie des normes” is based on the Austrian Hans Kelsen’s Pure Theory of Law. At the top is a ‘basic norm’ from which the others derive. Each norm is created and empowered by the norm higher than it.
The hiérarchie des norms:
1789 Declaration des droits de l’homme et ducitoyen
Preamble to the 1946 Constitution
2004 Charter for the Environment
• Treaties (International and EU)
EU directives and Regulations
Since the revolution of 1789 there have been 15 written constitutions. The current one is that of the 5th Republic promulgatedon 4th October 1958.
The bloc de constitutionnalité includes:
-Les droits de l’homme et du citoyen, 1789 equality under law, freedom of speech, freedom of religion, the presumption of innocence.
-Preamble of the 1946 Constitution social and economic rights, the right to work,to form trade unions, to strike; the right to education and the right to health protection.
-The fundamentalprinciples, as referred to in the Preamble of the C46 freedom of association, freedom of conscience, freedom of education
-Since 2005, the rights and duties defined in the 2004 Charter for the Environment.
The Conseil Constitutionnel created in 1958 ensures conformity of parliamentary statutes with the Constitution.
Since 1971(C.C, 16 July 1971, liberté d’association) the Conseil has become aprimary protector of civil liberties. The Constitution is also superior to treaties, which arises out of article 54, which provides that if the C.C has ruled that and international agreement contains a clause contrary to the constitution, then the ratification of this agreement can not take place unless the constitution has been revised.(EG 1992 Maastrich treaty; 1997 Amsterdam treaty; 2007 Lisbontreaty.)
The European Court of Justice in Costa (1964) asserted Community Law over the laws of Member States BUT the Conseil d’Etat in Sarran (1998)and the Cour de Cassation in Pauline Fraisse (2000) held the Constitution to be superior to treaties.
HOWEVER treaties are superior to lois, lois must be compatible with the constitution therefore at some level treaties are superior to theconstitution.
B. Treaties and Community Law
Article 55 provides that a duly ratified treaty will take precedence over domestic parliamentary statutes. In C.C 15 January 1975, IVG on abortion, the C.C ruled that it did not fall within its jurisdiction to examine the conformity of a statute with a treaty, leaving this task (the controle de conventionnalité) to the ordinary courts. However they could notstrike down legislation, instead they can declare it incompatible with the treaty, setting it aside and applying the treaty.
Difficulty arises mainly with EU/Community Law. In the case of conflict between the Treaty of Rome and a subsequent French statute, such a statute could be held to be a deliberate attempt by Parliament to override the pre-existing treaty. The C de Cass in J Vabre 1975 gave...