Indeed, by referring to Art. Even if it has no impact on the present monitoring, it could affect the implementation of the CETA.
Indeed, if the CETA is implemented as a classical international obligation, the reciprocity condition provided for in Art. That would allow France to verify that Canada properly implements the agreement. On the contrary, if the implementation of the CETA is considered as a constitutional obligation to respect EU law in compliance with Art.
Actually, the Conseil constitutionnel 's statement tends to reveal, if not a misunderstanding of the legal regime of EU mixed agreements, at least, that it has a different point of view from the Court of Justice. There is not much to say about the reasoning of the Conseil constitutionnel that follows this first general statement.
Indeed, the Conseil constitutionnel only quotes,  in response to each grievance, the appropriate provisions of the CETA. In this regard, it observes that the prohibition of different types of measures listed in Art. In this regard, the Conseil constitutionnel notices that no decision can be taken without the mutual consent of both the EU and Canadian representatives. The Conseil constitutionnel also refers to the Statement no.
According to the claimants, the CETA also affects the essential conditions for exercising national sovereignty through its provisions on provisional application and denunciation. In this respect, they claim that those provisions do not allow France to escape provisional application nor to denunciate its participation to the agreement. Firstly, the claimants argue that provisional application would exceed the provisions falling under the EU exclusive competence and suggest that it also covers provisions falling under shared competences.
Since the Conseil constitutionnel confirms that the scope of provisional application does not affect the exercise of national sovereignty, it does not need to answer the criticism according to which a Member State cannot by itself put an end to provisional application. Indeed, allowing a Member State to end provisional application on matters falling under EU exclusive competence would be a violation of the division of competences established by the treaties.
The solution might have been more complicated if the scope of provisional application had exceeded the provisions falling under EU exclusive competence. In this regard, Art. Thus, the EU entity counts for one single party when it comes to provisional application. Henceforth, according to Art. If the Conseil constitutionnel had considered that provisional application also covers provisions falling under shared competences, its task would have been slightly more complicated. This is probably why the applicants tried to link their claim to the scope of provisional application.
Some of them had previously asked the government to refuse provisional application. They did not better succeed. In the end, France can only indirectly put an end to the provisional application of the CETA, by notifying to the EU Council its refusal to ratify the agreement.
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Indeed, on 14 January , the Council stated that the notification of the non-ratification of the CETA by a Member State, which would mean the agreement has no chance to ever enter into force, would imply the end of its provisional application. As far as the denunciation is concerned, the Conseil constitutionnel also considers that the CETA does not infringe the essential conditions for exercising national sovereignty.
Regarding this latter criterion, even though the Conseil constitutionnel does not justify its position, it seems difficult to pretend — as the French government observed itself — that trade and investment issues constitute domains of national sovereignty. In this regard, it cannot be denied that the CETA contains a denunciation clause which makes it revocable. Thus, the French commitment is, by nature, revocable. But this was not the real issue. The claimants actually wanted to know if the fact that France cannot denunciate the CETA on its own could be considered as a form of irrevocability.
Indeed, it is unclear whether the EU Member States, who are contracting parties, can unilaterally decide to terminate the agreement. The fact that the notification is sufficient to terminate the CETA after days and frees all the Parties from their commitment, suggests that, on the EU side, the termination has to be notified by the EU entity as a whole. Therefore, the fact that France cannot denunciate the CETA on its own is the most likely interpretation.
For all that, such a conclusion does not make the international commitment of France irrevocable whatsoever. It appears that the CETA does not infringe the essential condition for exercising national sovereignty. The Conseil constitutionnel does not find any violation of the provisions of the French Constitution or of constitutionally guaranteed rights and freedoms.
Apart from the impact of the CETA on the exercise of national sovereignty, the Conseil constitutionnel had to check whether the agreement respects both the provisions of the French Constitution — in particular Art. In the second case, the control exerted by the Conseil constitutionnel appears more ambiguous.
File:Schema pouvoirs Ve république France depuis le traité de ejuliwaqyd.cf - Wikimedia Commons
The Conseil constitutionnel rejected this claim and affirmed that it has no jurisdiction under Art. The section F of Chapter 8 also needed to be confronted to several constitutional rights and freedoms. The Conseil constitutionnel was asked to verify whether the ISDS mechanism respects the principles of independence and impartiality of the judicial power and the principle of equality before the law.
All these principles have, within the French legal order, a constitutional value that the Conseil constitutionnel has identified in the past when it interpreted Arts 6 and 16 of the Declaration of Human and Civic Rights DHCR. Hence, it underlines that the members of the investment court are bound by ethical rules and that their nomination and revocation follow procedures that should guarantee their independence and impartiality.
Concerning the principle of equality before the law arising from Art. The reasoning developed in line with this interpretation is however a bit rapid. The Conseil constitutionnel first observes that, when it comes to the provisions dealing with the most favoured nation MFN treatment, national treatment or just and equitable treatment, the foreign investors are treated like national investors.
The Conseil constitutionnel also refers to the interpretative instrument whose para. If this observation is undisputable concerning the substantial provisions applying to investors, it can be discussed concerning the procedural provisions dealing with ISDS. Many detractors of ISDS consider that giving the foreign investors a choice of jurisdiction that local investors do not have favors the first ones. But the Conseil constitutionnel eludes that point. It focuses on the fact that there will be a differentiated treatment between Canadian investors and other foreign investors in France.
This derogation to the principle of equality is however justified. According to the Conseil constitutionnel , it meets public interests since French investors will benefit from a reciprocal treatment in Canada and since it will contribute to attract Canadian investments in France. The fact that there is no express reference to this principle in the agreement is not enough to establish its infringement, especially when several provisions within the CETA  and its interpretative instrument  tend to show, on the contrary, a willingness to respect such a principle.
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If the Conseil constitutionnel cannot go further than a literal reading of CETA, it recalls that the principle of precaution is also guaranteed by Art. On the one hand, its task cannot compete with the monopoly of the Court of Justice regarding the interpretation of EU law. On the other hand, the procedure enshrined in Art. Therefore, the Conseil constitutionnel cannot do much more than quoting the agreement and interpreting its own constitutional standards. In the end, monitoring provisions falling under shared or exclusive competence might not be so different when it comes to the effective leeway of the Conseil constitutionnel.
Actually, such a conclusion should not surprise. If the three alternative criteria according to which the Conseil constitutionnel exerts its monitoring have in the past generated many revisions of the French Constitution, they were applied to international undertakings made by France as a fully sovereign State. In the same spirit, when those criteria were applied to the revision of the European treaties, i.
However, when it comes to EU secondary law, including EU mixed agreements, the Conseil constitutionnel deals with developments of the EU integrative project, which stay within the project defined as long as the agreement covers exclusive and shared competences, which both remain EU competences. There is no reason for its control to be more intense with such mixed agreement than with a directive adopted in a matter of shared competence. However, had CETA been mixed because of provisions falling under the Member State exclusive competence, the solution might have been different and the Conseil constitutionnel might have possessed full jurisdiction.
Lebullenger, C. Les nouveaux partenariats de la mondialisation , Rennes: Presses Universitaires de Rennes, , forthcoming.
Record not found.
The decision is available in English on the website of the Constitutional Council of the French Republic, www. To the same end, acts of Parliament may be referred to the Constitutional Council, before their promulgation, by the President of the Republic, the Prime Minister, the president of the National Assembly, the President of the Senate, sixty members of the National Assembly or sixty senators.
In the cases provided for in the two foregoing paragraphs, the Constitutional Council must deliver its ruling within one month. However, at the request of the Government, in cases of urgency, this period shall be reduced to eight days. Official translation of the French Constitution available on the website of the Conseil constitutionnel : www.
Constitutional Act no. They were joined by three more MPs on 20 March Nevertheless, in practice, the Conseil constitutionnel often makes a reference in its rulings to the ordinance no. It is true that, in practice, the Conseil constitutionnel has always delivered its ruling within a month, the only exception being the CETA case. F, , p.
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The former Secretary General of the Conseil constitutionnel , Schoettl, even considered this practice as a constitutional rule. See J. The Conseil constitutionnel indeed bases its solution on this opinion. It is annexed to the French Constitution and all its provisions have a constitutional value. Costa v. ENEL , cit. Eman, O. Sevinger v. Ethniko Symvoulio Radiotileorasis et Ypourgos Epikrateias.
The Conseil constitutionnel states that the transposition of a directive is a constitutional requirement that must be respected unless otherwise expressly stated in the Constitution. In this regard, the Court of Justice would have to clarify if the activation of the procedure enshrined in Art. This turn of phrase is surprising since it is always up to the Court of Justice to oversee the compatibility of EU agreements with EU Law.
But the Conseil constitutionnel may have meant that in case the agreement is compatible with a rule or a principle inherent to the constitutional identity of France, it is, if appropriate , up to the Court of Justice to oversee the compatibility of the agreement with EU Law. Mathieu ed. However, the Conseil constitutionnel monitors the provisions of chapter 26 which concern the prerogative of the Joint Committee.
But it brought more confusion than clarification since the comment refers to the fact that Art. Thus, if it had followed the methodology announced from the beginning of the decision para. Proposal for a European resolution no. All citizens have the right to take part, personally or through their representatives, in its making. It must be the same for all, whether it protects or punishes.
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