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"Any society in which the guarantee of rights is not secured has no constitution". Set forth in the Declaration of the Rights of Man and the Citizen of 1789 (Article 16), this truth underpins our work and was reinforced by recent developments in French law that enable us to defend our clients’ fundamental rights.

To guarantee fundamental rights, constitutional review of legislation has progressively been allowed in France under the 1958 Constitution.

The idea is that a law does not legitimately express the general will unless it complies with a constitution that protects fundamental rights and freedoms. In other words, a law is not a law if it violates constitutional guarantees, even if it is the result of a democratic process. The establishment of constitutional case law following the institution of post-enactment constitutional review via priority preliminary rulings (Questions prioritaires de constitutionnalité, or QPC) in 2009 ensures the effectiveness of this guarantee.

In the interests of our clients, we frequently exercise the right all citizens now have to challenge a law’s constitutionality. The Constitutional Council (Conseil Constitutionnel) has established a “body of constitutional rules” (“bloc de constitutionnalité”), a set of norms that can be invoked in support of such petitions, and we always invoke these rules to obtain equality before the law, equality before charges levied by the State, proportional penalties, freedom, and sovereignty for our clients. We try to persuade judges to apply the “objectives of constitutional value” defined by the Constitutional Council as well as the general principles of law laid down by the State Council (Conseil d’Etat), or the public policy principles of the Court of Cassation (Cour de Cassation). 

Constitutional review is not limited to the field of law and the QPC procedure. We ask all judges to review regulatory provisions that we believe violate a constitutional rule.  We also make use of the so-called theory of living law devised by the Italian Constitutional Court and adopted by the French Constitutional Council: a judge may not interpret a legal text in a way that violates the Constitution.

We carefully follow legal developments abroad to find new ideas. For example, we would like to use German constitutional case law to persuade the French Constitutional Council to abandon its tolerance of “minor retroactivity”.