—François Séners, Member of the Constitutional Council; Nefeli Lefkopoulou, PhD in Public Law, Sciences Po Law School; Eirini Tsoumani, PhD in Publc Law at Sciences Po Law School; Guillaume Tusseau, Professor of Public Law at Sciences Po Law School
[Editor’s Note: The ICONnect blog is pleased to run the French report from the 2024 ICONnect-Clough Center Global Review of Constitutional Law, which was inadvertently excluded from the report through no fault of the report’s authors. The full 2025 Global Review can be found here.]
I. Introduction
In France, 2024 was a complicated year from a political and institutional point of view. Since 2022, President Macron had only a relative majority in the National Assembly, where he faced strong opposition from the right and the left, making it difficult to pass legislation. Prime Minister Borne had a hard time passing the two major bills that the president had in mind: a bill to reform the pension system and a bill to tighten immigration controls. In an extraordinary moment of political unity, Congress approved a constitutional amendment for the first time since 2008. The amendment came into force on 8 March, International Women’s Day. Article 34 of the Constitution now states: “The law shall determine the conditions under which women shall be guaranteed the freedom to have recourse to voluntary termination of pregnancy,” making France one of the few countries in the world to enshrine the right to abortion in its constitution. A constitutional amendment was also planned to redefine the scope of the right to vote in local elections in New Caledonia, an overseas territory with a special status under Title XIII of the Constitution. The project would have widened the electorate, probably leading to a change in the electoral balance between independentists and loyalists. It led to violent riots and the imposition of a state of emergency. It took several weeks, the abandonment of this initiative and the postponement of the elections to calm the situation. At the beginning of the new year, President Macron decided to change the prime minister, appointing Gabriel Attal, at 34 the youngest ever to hold the post. The new government was not to last long. June saw the European Parliament elections. The list supported by President Macron and the government was badly beaten. It won 14.6% of the vote, very close to the moderate left list, which won 13.8% of the vote, and less than half that of the extreme right Rassemblement National (31.37%). Immediately after the results were announced, President Macron decided to dissolve the National Assembly. The last time such a decision was taken was in 1997. At that time, President Chirac made a fatal mistake when a left-wing majority made up of socialists, communists and ecologists won and imposed a five-year cohabitation on the head of state. The same thing happened to President Macron, whose decision was hard to understand, even – perhaps especially – for his own supporters. In the first round, the Rassemblement National came first with 33.42% of the vote. Macron’s camp received only 21.8%. The biggest surprise was the performance of the left-wing parties, which won 28.84% of the vote. Unexpectedly indeed, the Socialists, the radical left of La France insoumise and the ecologists, who had been very divided for the European elections, decided to unite. The result suggested that the Rassemblement National could secure an absolute majority in the National Assembly and its leader could be appointed Prime Minister. However, all parties except the right-wing Les Républicains decided to prevent this from happening by strategically withdrawing their candidates if their participation in the second round could lead to the election of a far-right deputy.
Unexpectedly, on 7 July, the left-wing alliance came first, securing 178 out of 577 deputies. This was followed by the supporters of the president (159 seats), the Rassemblement national (125 seats) and Les Républicains (39 seats). Among the newly elected deputies is the former President of the Republic, François Hollande. None of these groups had an outright majority, and no obvious coalition could be expected to emerge from such a divided political landscape. Refusing to admit defeat, President Macron decided not to appoint a new prime minister immediately, but to wait until after the Olympic Games. This led to fierce criticism, especially from the left, which even tried to have the president impeached. The caretaker government lasted a few more weeks. Even after the Olympics, it took several weeks for the president to appoint the 73-year-old Michel Barnier, a member of Les Républicains. The government was criticised from all sides. It barely had the support of the president’s party and was harshly criticised as illegitimate by both the left and the far right. For the second time in the Fifth Republic, a vote of no confidence was passed less than three months after the Prime Minister’s appointment. On 13 December, François Bayrou, an early Macron ally, was appointed, imposing his own name on the head of state. His immediate task is to secure a budget for the year 2025 by forming the necessary – albeit unlikely and fragile – coalition, and then to propose political reforms to a very divided assembly that is likely to pass another no-confidence vote shortly.
Although the political dimensions of the 2024 Constitution have been at the forefront, the role of the Constitutional Council has also been affected. As a result of the divisions in Parliament and the dissolution of the National Assembly, legislative activity has been reduced. This led to fewer ex ante referrals to the Council. In a year of elections to the National Assembly following a year of elections to the Senate, it classically examined several appeals against the election results. Less classically, it had to examine appeals against the decision of the Head of State to dissolve Parliament and call early elections (decisions 2024-32/33/34/35/36/37/38/39/40/41 ELEC; 2024-42/43/44/45/46/47/48/49/50/51/52/53 ELEC) and against the election of the President of the National Assembly (decisions 2024-58/59 ELEC; 2024-60 ELEC). As expected, the Court declined jurisdiction in these cases.
II. Major Constitutional Developments
One of the most significant rulings of 2024 is a continuation of parliamentary activity in 2023, a year in which the Constitutional Council was drawn more than ever into the most heated political issues of the day. While the opposition hoped it would strike down unwanted measures, the executive sometimes relied on it to strike down provisions it had been forced to accept during parliamentary discussions to secure a majority. The law on immigration control and integration, which was the subject of decision 2023-863 DC of 25 January 2024, had its origins in a government bill. It was criticised by the left, the Defensor of Rights, and human rights activists for being inefficient and too influenced by far-right analysis, and by the right and the far-right for not being radical enough. The adoption of the text was rather chaotic due to the government’s limited majority in the National Assembly. The final version is largely based on the Senate’s tougher version. It was finally approved with the support of the right and the extreme right, with some members of the presidential majority refusing to vote for it. The bill was referred to the Council by the President of the Republic, the President of the National Assembly and left-wing deputies and senators. Among the many concerns expressed were the principle of equality, the right to a normal family life, the right to health and the right to education. In this decision, the Council annulled 32 articles, not because they were unconstitutional on their face, but because they had been irregularly introduced by amendment without sufficient connection to the original government text. This is the case, for example, of a provision concerning the right to family reunification, the right to stay for family reasons, the right to stay for health reasons, the right to stay for educational reasons and to pay university fees, and the criminalisation of illegal residence. The same procedural reasons were used to strike down a provision making access to certain rights, assistance and allowances or benefits conditional on at least five years of regular residence in France or at least 30 months of professional activity, as well as a provision stipulating that assistance with return to the country of origin may be granted only once to a foreign national who has been ordered to leave French territory. Other provisions were annulled because of their content. This is the case of the provision requiring Parliament to organise an annual debate on immigration and integration policy and to determine the number of foreigners to be admitted to settle in France for the next three years. The Constitutional Council considered that the Constitution does not allow the legislature to impose such obligations on itself and thus limit the prerogatives of the Government in the organisation of parliamentary affairs. Another unconstitutional provision concerns the use of coercion to take fingerprints and photographs without a judicial decision or the intervention of a lawyer. The Council expressed reservations about other provisions and specified how they should be interpreted in order to be considered constitutional. This is the case, for example, of an experimental provision which excludes the examination of any new application for admission in the year following a previous rejection, after all possible grounds for admission have been analysed and not only the one mentioned by the applicant. The Council made it clear that the applicant should be duly informed by the administration of the need to provide all relevant documentation. Other provisions were declared constitutional by the Council. This was the case, for example, with the provision requiring any foreign national applying for a residence permit to sign an undertaking to respect the principles of the Republic, and with the provision facilitating the issuance of a deportation order if a foreign national has already been convicted of a crime or of certain offences, the provision stating that the deliberate and particularly serious violation of the principles of the Republic constitutes conduct likely to undermine the fundamental interests of the State, and the provisions modifying the procedure before the National Asylum Court. Despite its unusual length, this decision hardly came as a surprise. Even the proponents of the text explicitly admitted that some of its provisions, which they strategically did not oppose during the debate in order to secure the approval of the right-wing parties, were likely to be considered unconstitutional. This prompted the president of the Council to express his concern at this form of judicialization of politics. While the left was disappointed by the Council’s largely procedural decision, the right sharply criticised the numerous declarations of unconstitutionality as undue government by the judiciary.
Another major decision in 2024, decision 2024-6 RIP of 11 April 2024, also related to immigration. The French Republic has a complicated relationship with referendums. Although article 3 of the 1958 Constitution states that “national sovereignty belongs to the people, who exercise it through their representatives and by referendum”, the French people have not been consulted by a referendum for 20 years. The last one was the referendum of 29 May 2005 on the Treaty establishing a Constitution for Europe.
This situation is all the more surprising because, on the one hand, the range of subjects that can be submitted to a referendum has been gradually extended, first in 1995 and then in 2008, and, on the other hand, the French people have a strong desire to be consulted on major reform projects, as all opinion polls show. Indeed, the authors of the 1958 Constitution considered the referendum to be a structuring element of French democracy.
It is worth noting that the current paralysis only affects the central state: local referendum systems are functioning satisfactorily, whether they are decisive referendums on the initiative of elected representatives, on the basis of the Local Authorities Code, or optional consultations that can be organised in accordance with the rules laid down in the jurisprudence of the Council of State.
The 2008 reform of the French Constitution sought to give new impetus to referendums by creating a “shared initiative referendum” (RIP in French). The principle is simple: a referendum can be organised on the initiative of one fifth of the members of Parliament (National Assembly + Senate) and must be supported by one tenth of the voters registered on the electoral roll. The initiative takes the form of a bill.
However, the organisational rules adopted in 2013 complicate matters considerably and there are numerous obstacles that can thwart attempts. Unlike the Swiss or Italian constitutions, the new French system does not give citizens or the general public the right to initiate legislation: Parliament retains control over the consultation of the people, which explains the term “joint initiative”. In addition, a number of safeguards have been introduced to prevent the referendum from intervening in certain areas or overturning recent legislative decisions. The Constitutional Council must be consulted on projects and must ensure that all these rules are respected.
This explains why, of the six attempts made since the reform of the Constitution came into force, none has so far led to effective consultation of citizens.
In 2024, in its 6th decision on a RIP (decision 2024-6 RIP of 11 April 2024), the Constitutional Council confirmed the rigorous nature of the control it exercises over the implementation of the joint initiative referendum procedure. This control essentially concerns two aspects of the projects in question: first, whether they fall within one of the areas in which a referendum is possible, and second, whether each of the provisions of the project complies with the Constitution.
On the first point, case law prior to 2024 had strictly applied the provision of the Constitution that allows referendums “on (…) reforms relating to the nation.) reforms concerning the economic, social or environmental policy of the Nation”, considering that the term “reform” implies, on the one hand, that the project must be of a certain scope and not a minor modification of existing law (which led to the rejection of a project that merely increased the rate of a one-off tax in order to increase State revenue) and, on the other hand, that the project must modify the state of the law and not prevent its modification (which led to the rejection of a project that prevented the entry into force of a social reform adopted by Parliament).
With regard to the second aspect, i.e. the examination of the conformity of each provision of the bill with the Constitution, the constitutional jurisprudence applies the text that defines the competence of the constitutional judge and requires him to ensure that “no provision of the bill is contrary to the Constitution”. This wording definitely prevented a provision that was not in conformity with the Constitution from being submitted to the parliamentary procedure, but it did not explicitly rule out the possibility that a proposal containing several provisions could continue its course after the provisions that were not in conformity with the Constitution had been removed. This was not the approach taken by the jurisprudence: already in 2021 (decision no. 2021-2 RIP of 6 August), the Constitutional Council considered that the proposal submitted to it constituted an indivisible block and that the non-conformity of a single provision with the Constitution interrupted the entire procedure. This precedent was confirmed in the decision of 11 April 2024: the judges ruled that the first of the five articles was unconstitutional and, for this reason alone, declared that the entire bill could not proceed.
It should be noted that the Constitutional Council applies this rule in a very closed manner, making no effort to examine the constitutionality of the other provisions of the proposal submitted to it. It is therefore impossible to know whether or not it would have validated these other provisions. It is regrettable that it did not make any effort to inform the authors of the text as a whole.
Ruling 2024-6 RIP is also interesting because it relates to constitutional jurisprudence on the rights of foreigners. The provision declared unconstitutional stipulated that foreigners who were not EU nationals were only entitled to certain social benefits if they had resided in France for at least 5 years or had been legally employed in France for at least 30 months. After noting that it is possible to make entitlement to such benefits conditional on a minimum period of residence or activity, the judges ruled that the periods required in this case were disproportionate to the provisions of the Constitution which require the implementation of a policy of national solidarity in favour of disadvantaged people. This decision thus confirms the jurisprudential line that “while the legislator may adopt specific provisions for foreigners, it must respect the fundamental rights and freedoms of constitutional value recognised for all those residing in the territory of the Republic”.
III. Constitutional Cases
1. Decision no. 2024-1097 QPC of 26 June 2024 – Mr Hervé A. [Informing the accused magistrate of his right to remain silent during disciplinary proceedings]; Decision no. 2024-1108 QPC of 18 October 2024 – Mr Philippe V. [Informing a member of a regional audit chamber being prosecuted of his or her right to remain silent in disciplinary proceedings]; Decision no. 2024-1105 QPC of 4 October 2024 – Mr Yannick L. [Informing a civil servant of his right to remain silent during disciplinary proceedings]
In a decision of 8 December 2023 (Decision n° 2023-1074 QPC), the Constitutional Council created a new constitutional guarantee by extending the principle of the right to silence, previously applicable only in criminal matters stricto sensu, to any sanction having the nature of a punishment. The Council thus clarified the scope of the constitutional requirement of notification of the right to remain silent, ruling that it also applies to professionals subject to disciplinary proceedings. This principle implies that a person subject to disciplinary proceedings cannot be heard regarding the violations of which he or she is accused without first being informed of his or her right to remain silent. As a result of this recognition, there has been an increase in the number of QPCs against disciplinary procedures directly instituted by the legislator insofar as they do not provide for this notification.
In all these QPC decisions, the Council based its reasoning on the Article 9 of the Declaration of 1789 – presumption of innocence – giving rise to the principle that no one is obliged to accuse himself, from which the right to remain silent flows. In Decision no. 2024-1097 QPC of 26 June 2024, the Council ruled for instance that the accused magistrate must be informed of his right to remain silent during his hearing by the rapporteur as well as during his appearance before the disciplinary board. Similarly, in Decision no. 2024-1108 QPC of 18 October 2024, the Council found that the accused members of the Regional Audit Chambers must be informed of their right to remain silent during their hearing by the rapporteur as well as during their appearance before the High Council of the Regional Audit Chambers. The same applies to its Decision no. 2024-1105 QPC of 4 October 2024 in which the Council declared the disciplinary regime for civil servants unconstitutional when no notification of the right to remain silent was provided for prior to the appearance before the disciplinary board. Consequently, by failing to secure the right to remain silent, the legislator failed to meet the requirements of Article 9 of the Declaration of 1789 and the contested provisions in each of these decisions (Articles 52 of the Ordinance of 22 December 1958, L. 223-1 of the French Code of Financial Jurisdiction and L. 532-4 of the General Civil Service Code, respectively) were declared contrary to the Constitution.
The Constitutional Council has thus broken with the traditional conception of the rights of the defense as a right to speak. The traditional guarantees of administrative repression are based on a series of rights (timely communication of evidence, organization of an adversarial hearing), the purpose of which is to enable the person being prosecuted to discuss the nature of the violations made against him or her. In doing so, the Constitutional Council eventually went much further than required by the case law of the European Court of Human Rights.
2. Decision n° 2024-865 DC of 7 May 2024 – Law aiming to strengthen the fight against sectarian excesses and improve support for victims
The French Constitutional Council validated the constitutional character of the contested provisions of the law aimed at strengthening the fight against sectarian abuses and improving support for victims. In particular, it upheld Article 12, which criminalizes inciting individuals to abandon medical treatment or adopt certain risky practices purported to have therapeutic effects. The Council ruled that the law complies with the principle of legality, which demands clear and precise definitions to prevent arbitrariness. It stressed that the offense applies only to intentional, repeated pressure directed at identifiable individuals suffering from medical conditions, and not to general public communications. The Council further confirmed that the law strikes an appropriate balance with freedom of expression, as the restrictions are necessary, appropriate, and proportionate to the objectives of protecting public health and preventing serious harm.
3. Decision n° 2024-866 DC of 17 May 2024 – Law aiming to secure and regulate the digital space
The Constitutional Council ruled on the law aimed at securing and regulating the digital space. It upheld the main provisions, particularly those enabling the blocking or delisting of websites that provide minors with access to pornographic content, finding these measures consistent with the constitutional protection of freedom of expression. However, the Council struck down Article 19, which introduced a new offense of “online outrage”, deeming it unnecessary, inappropriate, and disproportionate in its restriction of free speech. The offense was criticized for creating legal uncertainty by relying on the victim’s subjective perception and for duplicating existing criminal provisions. The Council reiterated that any limitation on freedom of expression must be precisely defined and strictly framed.
4. Decision n° 2024-1091/1092/1093 QPC of 28 May 2024 – Mr. Diabe S. and others [Exclusion of undocumented foreigners from the benefit of legal aid]
The Constitutional Council ruled that excluding undocumented foreigners from legal aid –except in limited circumstances – violates the principle of equality before the law. The contested provisions restricted access to legal aid for individuals not lawfully residing in France. The Council reaffirmed that while legal distinctions may be made based on individuals’ situations, they must not result in unjustified discrimination and must uphold equal guarantees, particularly in relation to access to justice and the right to a defense. By broadly denying legal aid to undocumented persons – despite their entitlement to certain legal protections – the law failed to ensure equal treatment.
IV. Looking Ahead
In 2025, three new members, including the president, will be appointed to the Constitutional Council. At a time of growing illiberal tendencies, both in France and abroad, the stakes are unusually high, as the new bench will oversee the next presidential election in 2027. This has already become an obsession for the political class. With President Macron barred from running for another term, competition has begun in all political parties, somehow trumping ideological debate and reflection. In addition to his departure from the presidency, his decision to dissolve the National Assembly, which demonstrated his unpopularity and led to many misunderstandings, including among his supporters, deprives him of much political support. Many wonder how long his sixth prime minister will be able to avoid a vote of no confidence. Many doubt that any substantial reform will be adopted, except perhaps a reform of the electoral system to introduce proportional representation, which the National Assembly might support. To avoid being sidelined, President Macron may be counting on two prerogatives: calling a referendum and dissolving the National Assembly again, a year after the last dissolution. Both strategies would be risky, and any new defeat would lead to increased calls for his resignation.
V. Further Reading
Samy Benzina, Julien Jeanneney (ed.), La doctrine et le droit constitutionnel (Dalloz, 2024)
Carolina Cerda-Guzman, Sortir de la Ve. Pour une fabrique citoyenne de la Constitution (Editions du Détour, 2024)
Jean-Philippe Derosier (ed.), 65 ans de la Ve République: une analyse prospective de la Constitution: Propositions du GRÉCI Groupe de réflexion sur l’évolution de la Constitution et des institutions (LexisNexis, 2024)
Marcel Morabito, Guillaume Tusseau (ed.), Regional Accountability and Executive Power in Europe (Routledge, 2024)
Guillaume Tusseau, Droit constitutionnel et institutions politiques (7th edn, Le Seuil, 2024)