Chapter 1: The Constitution of the fifth Republic

Question 1

the fall of the 4th republic

Answer 1

• the creation of the 4th Republic after WWII ended in May 1958 after a period of trouble that started in Algeria.
• they had to change the republic because the executive power was weak.
• The fourth republic was “un régime d’assemblée”= législative had all the power

Question 2

Trouble in Algeria

Answer 2

On May 13th: a coup was beginning in Alger, the president at that time was René Coty.
- In Algeria, the new head of the government = was Pierre Bfimlin, in favor of negotiation with the Algerian National Liberation Force.
- Members of the French army were opposed
- threatened to start a coup.
- On May 28th De Gaulle became the new head of government.
- On June 1st the assembly voted in favor of General de Gaulle.
- governmental instability (governments lasted 6 months one of them lasted only 10 days).

Question 3

June 1958: still the 4th rep de Gaulle is prime minister, he has 2 missions:

Answer 3

1) end the trouble in Algeria;
2) reform the institutions of the 4 th rep => 3 laws are adopted 3 juin 1958

Question 4

reform the institutions of the 4 th rep => 3 laws are adopted 3 juin 1958:

Answer 4

Give the government special power in Algeria
Give the government full legislative power
Give the government the mission to write a new constitution

Question 5

Give the government the mission to write a new constitution

Answer 5

1°It modified the way the constitution of the Fourth Republic can be modified
2°Creating a specific procedure:
the government must respect to draft the new constitution
3° Procédure pour l’adoption de la nouvelle constitution: le comité consultatif constitutionnel et le conseiller d’État. The draft of the constitution will be approved by the people(referendum).

Question 6

Draft of the constitution

Answer 6

• Universal suffrage= only source of power
  separation of power
• the accountability of the government to the parliament.
• the independence of the judicial authority
• the relation between French colonies.= substantial elements

Question 7

It has to be approved by the people
2 things :

Answer 7

• Committee expert members of the CE and other legal technicians.
• An inter-ministerial committee organized with Ch de Gaulle, composed of 4 ministers and 2 lawyers representing the hand of the government (René Cassin and George Pompidou)

Question 8

Work of the 2 teams:

Answer 8

created a draft of the new constitution, and that draft was sent to le comité consultative constitutionale.

Question 9

This comity of 39 members:

Answer 9

• 16 from the AN, 10 consuls of the republic and the other 13 members appointed by the gov
• Led by Paul Reynaid, president during the 3rd rep= last president of the council
• It is to prove its opinion on the draft constitution before its final adoption

Question 10

On July 29 1958

Answer 10

delivering an opinion, the committee agreed with the basic structure of the text, even the disagreement on a certain point.

Question 11

Point discuted

Answer 11

• Article 11 : a way to shortcut the parliament, scared that the referendum would be a tool to put the parliament against the people.
• The condition under which Art 16 can be applied was wanted to be reinforced
• Presented the draft of the constitution and then it submitted that draft in the conseil d’etat on

Question 12

August 2 1958

Answer 12

Michel debré made a very important speech at the conseil d’etat in which he was
→He said very clearly the objective of the drifters, the goal is to establish a rationalized parliamentary government.

Question 13

the adoption of the constitution

Answer 13

⇒Submitted by the people: referendum
- On September 4th and the draft was approved on September 28 by a large part of the majority
- Abstention was low.
- They were the figures of General Gaulle.
⇒Organic laws: they’re adopted by the parliament and implement the article of the constitution.
- in 1968 to enforce those laws they were adopted by the gov by ordinance that specific.

Question 14

The Inspiration of the constitution

Answer 14

• The Constitution of 1958 was inspired by many sources.
• The most important inspirations were the ideas of Charles de Gaulle
• He repeatedly expressed his views/conceptions on the organization of power and the system of government
• famous speech in Bayeux in June 1946
• that speech sums up the political ideas of Charles de Gaulle
• He explains why the Constitution of the 4th Republic is a bad project.
• He expressed his opposition but he wasn’t heard because the constitution was adopted in October.

Question 15

famous speech

Answer 15

Bayeux in June 1946

Question 16

speech in Bayeux in June 1946:

Answer 16

• He emphasized the need for efficient institutions To achieve the greatness of France.
• He had a very high vision of the state and a high conception of the head of state (president).
• He also had an attachment to bicameralism.
• Expressed his mistrust of political parties
• Some of the ideas shared in the Bayeux speech will be developed in the Constitution of 1958.

Question 17

Second inspiration

Answer 17

Michel Debré, He plays a very important role in the drafting of the constitutive legal expertise, he will develop techniques to rationalize

Question 18

Régime Parlementaire

Answer 18

• Regime of the UK, the Westminster regime = powers collaborate.
• The notion of collaboration of power
• Parliament = dominant instit.
• Transfer of sovereignty from the PLP to the parliament.
• Parliament is elected = least one chamber is elected.
• The head of the government= the leader of the major political party in the parliament.
• In the UK the leader with the greatest number of seats in the House of Parliament becomes president of the parliament.
• In France, there is no clear separation between power= collaboration.

Question 19

in France, there is no clear separation between power ⇒ and collaboration.

Answer 19

• The govt is accountable to the park ⇒, and checks and sanctions the gov through a notion of censure.
• Parliament can reverse the executive.
• The executive can dissolve the parliament.

Question 20

⇒ Mutual Destruction of power

Answer 20

those mechanisms explain collaboration is rarely activated cause of the close relationship btw the executive and MB of the Parliament

Question 21

Presidential regime

Answer 21

• The president is elected by the people.
• Assembles are elected: house of rep (2 y) and Senate (6 y).
  Strict separation of power (KEY ELEMENT)
• the relationship between executive and legislative is minimal executive cannot dissolve the legis.
• The legislature cannot overthrow the executive.
• No destructional pow= Checks and balances.
• Impeachment only penalizes political responsibility.

Question 22

The executive has very important power = specificity.

Answer 22

• Constit 1958: roots of disequilibrium dvp in 1962 with the emergence of “le fait majoritaire.”
• Fusion of interests btw the gov and the majority at the assembly.
• 1958 = Rationalised parliamentary system with the preeminence of the head of state.
• President not directly elected by the people. May 1962: president elected by referendum.
• semi-presidential regim

Question 23

Characteristic of EU laws

Answer 23

Primacy = for the EU institute, for the CEDH, European law is superior to national law.
196: Case Cosa which the court says that EU law is superior to natio law
1970: case in which the court says that EU law is superior to national law even constit law

Question 24

semi-presidential

Answer 24

• president elected through direct election with significant powers.
• the gov is accountable to the parliament: The French parliamentary system is a dualistic parliamentary regime => The gov responsible to the national assembly and the president of the rep.
• depending on whether it is the convergence of the majority or cohabitation

Question 25

Constitution of 1958:

Answer 25

• deals with art related to institutional and normative constit law.
• Organizes instit + relationships btw these instit+ art regarding norms
• FEW ART WITH RIGHTS
• ART 66: guarantees indiv liberty, and prohibition of arbitrary detention. + prohibition of the death penalty.
• ART 3 principle of the rep should be commended by the people for the people.

Question 26

DDHC 1789:

Answer 26

• mentioned in the preamble of the constit of 58
• The decision “liberté d’association”
• The preamble of 58 also has a constant value. Power of the judge. Creation of the bloc de constit.
• 1973: first time used: “taxation office”
• 70 articles and protect classical rights
• States should not intervene with these rights.
• Reconnaissance = inheritance in human nature.

Question 27

Liberalism

Answer 27

limits the power of the state to protect the rights of individuals. Ex: John Locke, Voltaire, Rousseau, Montesquieu.

Question 28

Declaration of 1789 protects civil and political rights

Answer 28

Implied abstention of the state. Not many rights. Even though the revolutionaries agreed on the necessity to protect the poor, and the needy, the text is silent on social and economic matters

Question 29

DDHC is marked by légicentrisme

Answer 29

Law => center of legal order. It gives a leading role to the Parliament because it represents the nation.
Art 6: “The law is the expression of the general will”.
Law cannot be wrong = can’t contest the law, no judicial review.

Question 30

Universalism

Answer 30

ambition to be universal. Rights are meant to be universal in the sense that everyone is entitled to this right. => Challenge to that decla to make these rights universal.

Question 31

The fundamental principles

Answer 31

recognized by the law of the rep.
In the preamble of constitu 1946, ref of that. No list of that. CC through his decision will declare that certain principles are recognized by the law of the rep.
Creativity of the conseil constit.
Conseil tries to be cautious = Limit the creation of those principles

Question 32

cc tryin to limit those principles

Answer 32

1st = it (the principle) must have emerged in-laws that were enforced under the previous republican regime.
2nd: it must be adopted before the constit of 1946.
3rd: it must have been applied continuously over time.
4th = it must be general
5th = it must concern fundamental rights, national sovereignty, or org of public power.
⇒Conseil constit wants to avoid criticism.

Question 33

list law of the rep

Answer 33

lib d’asso.
2nd principle is Respect for the right of the defense
3rd: individual liberty
4th = freedom of education
5th = freedom of conscience
6th = indep of the administrative judge
7th = indep of university prof
8th = spe competence for the administrative judge
9th = protection of private property by the judicial judge
10th = obligation to apply special rules for juveniles in criminal law.
11th = Specific law in Alsace Moselle
They all have constant value.

Question 34

Charter of the environment:

Answer 34

Art 1 Environment and respect health.
Art 2: duty in the preservation of the environment
Art 3 anyone must prevent the consequences of the damage that they may cause to the environment.
Art 5: le principe de precaution (= when damage is likely to affect the environment, public authorities must adopt procedures to assess the risk and to prevent the damage. ( WAS DEBATED).
Art 6: Sustainable DVP is an objective

Question 35

The elements non included in the bloc

Answer 35

Rules of parliamentary assemble
Organic laws
International treaties

Question 36

1975 Conseil constit = Two forms of review:

Answer 36

constit review = law respects the constit
Conventional review law respects treaties⇒ All of the other judges can do it.

Question 37

2005

Answer 37

CC recognized that French constit is superior to constit law
European treaties and UE norms → not included in the constitutionality bloc.

Question 38

EU legal order is divided into primary legi and secondary legi

Answer 38

Primary = treaties: du traité sur l’UE and tfue, traité sur le fonctionnement EU.
Secondary = All the acts adopted by the EU based on the power granted by the treaties. All the directives.

Question 39

Conv EDH:

Answer 39

adopted by the Council of Europe (46 states).
CEDH is based in strasbourg. Council of the EU based in Strasbourg
No hierarchy among the bloc = unity of the bloc

Question 40

The Constitutional Council in 1982:

Answer 40

had to decide how to resolve the tensions between elements of the bloc → there is no hierarchy between elements of the bloc ⇒ all have constitutional value.

Question 41

In case of tension

Answer 41

In 1982, the council must find a way to reconcile those elements.
Principle (unity of the bloc) consecrated by the EU council in decision “nationalization” 1982. All the elements of the constit = same value.

Question 42

Art 89 Constitution

Answer 42

• Proposal (president acting on the proposal of the PM or on the proposal of 60 mb of the parliament)
• Vote ( two assemblies in identical terms, agreement on both assemble
• Ratification through referendum or congress 3/5

Question 43

How many modification of the constit V e rep

Answer 43

23 modify = 22 ratified by Congress, 1 by referendum it was in 2000 ratification concerning the 5 ans of the president.

Question 44

procedure limit

Answer 44

Art 89.4
“no revision can take place when the integrity of the territory is threatened”.
- Can’t change the constit when there’s a vacancy of the presidency.
- Can’t change the constitution when application of art 16 (exceptional power to the president).
- When a proposal comes from the parliament, the proposal must be ratified through a referendum

Question 45

Substantial limits:

Answer 45

• Art 89.5
• “The republican form of the government cannot be changed”.
• You can’t change the form of the regime.
• Way to ensure the continuity of the republican regime, can’t modify republican values and principles.
• Not only about the form but also about substantial republican values
• Certain principles would be superior in the constit.

Question 46

modification germany

Answer 46

certain parts of the constit cannot be modified which concerns the dignity of humans.

Question 47

can cc modify constit

Answer 47

no he has to respect it