In a recent interview with PointLaurent Wauquiez undertook to denounce as a “coup d’etat organized by the Supreme Courts” (Council of State and Court of Cassation) the power that they would have assumed to set aside the application of laws contravening European law .
1) It is wrong in law. The submission of the laws to the respect of the treaties is written in full in article 55 of our Constitution wanted by General de Gaulle. The only question that it does not settle is that of knowing which judge must enforce this – undeniable – obligation. But it was the Constitutional Council that ruled on it in 1975: considering that no text conferred on it competence to carry out this control itself, it referred to the judicial and administrative judges the task of doing so. If there was a coup, it was very legal…
2) This is actually incorrect. First, everything shows that, at the time when they took them, neither the Court of Cassation nor the Council of State measured the extent of the movement which would follow their respective decisions to authorize this discussion of the law by “ordinary” judges. Nobody – I mean, nobody – anticipated a phenomenon of such magnitude. Second, unlike the Court of Cassation, the Council of State hesitated for fourteen years to take this step. But, let’s be honest, he did it largely under duress. His position put France in an untenable situation because it was isolated. We were, because of him, one of the only countries on the continent not to give its place to international law. The icing on the cake, we would probably have been condemned for this by European justice. Laurent Wauquiez, who was a member of the Council of State in a previous life, knows it very well: if there was a coup, it was of a rare and gentle conformism.
The hierarchy of norms is not a wart in history
3) It is not responsible. The hierarchy of norms is not a wart in world history and geography. The superiority of treaties over laws imposed itself everywhere in the West, after the war, as a necessary lesson of the experience from which we were emerging. The States wanted – constitutionally wanted – to bind themselves more firmly to each other through their international commitments. They saw it as a way of preventing themselves from repeating the monstrosities of which they had been guilty. The subjection of laws to treaties has thus become not only the universal norm of public international law and European law, but also the constitutional rule common to all the countries of old Europe – and well beyond. If there was a coup d’etat, there is nothing exotic about it.
4) It’s not serious. If France were to stop doing like everyone else and free itself from these two most essential rules of European law – its superiority over national laws and the daily guarantee of this superiority by judges – it would not only in an illicit situation, even in a state of “Frexit”: it would also lose all political and economic credit. It cannot be said enough that the strength of the rule of law forms the backbone of the confidence necessary for business life and investment (in addition to the sustainability of the national debt). Even states that are culturally allergic to regulation by law – China, for example – have taken to it for this reason. It’s one of the rare solid axioms of the market: if they don’t want to totally carbonize their companies and make themselves a little bit attractive, States must give themselves – and give us – mutual assurances of reliability and legal certainty. However, in Europe, in this field, no rule of the game weighs heavier than the superiority of treaties over laws. It is she who lays down the common fund and assures each person – individual or company – that she can count on a firm standard for the protection of her legitimate interests – and therefore of her foreseeable future – including when parliaments go off the rails. Anything that threatens the solidity of this conviction leads to economic suicide. If there has been a coup d’etat, we must rejoice in the prosperity it gives us.
When will we finally see that the rhetoric of “regaining control” by “politics”, parliaments and peoples rests on a heap of salads?
* Denys de Béchillon is a constitutional expert and professor of law at the University of Pau