This is the third piece in a series of comments offered on John Bell’s and François Lichère’s book French Contemporary Administrative Law (CUP 2022 – available in open access by clicking on this link) at a hybrid workshop hosted by the British Association of Comparative law and the Constitutional and Administrative Justice Initiative at the Essex Law School on 16th March 2023. The workshop brought into discussions Professor John Bell (UK – Cambridge), Professor François Lichère (FR – Lyon 3), Professor Giacinto della Cananea (IT – Bocconi, his comment can be accessed here), Professor Peter Lindseth (USA – Connecticut University), Professor Anne Jacquemet-Gauché (FR – Clermont-Auvergne), Professor Rob Widdershoven (NL – Utrecht), Professor Karl-Peter Sommermann (DE – Speyer), all experts in comparative and/or European administrative law. Professor Bell introduces his book in the first piece published in this series (available here). The following pieces are the comments kindly contributed by the speakers. The authors of the book will conclude this series by replying to the comments.
May all speakers and authors be warmly thanked for the constructive and highly stimulating exchanges – a genuine academic sharing at the highest level.
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First, let me thank the British Association of Comparative Law, and more specifically Yseult Marique of Essex Law School, for inviting me to contribute to this online book symposium. Second, let me thank our authors, John Bell and François Lichère, for producing such a rich volume, as well as to the Cambridge University Press for making it open access.
Bell and Lichère’s Contemporary French Administrative Law is a worthy successor to, but also an essential updating of, the several editions of Brown and Garner’s (later Brown and Bell’s) textbook French Administrative Law, the last edition of which (the 5th) was published in 1998. Of course, much has happened since 1998, and among the main aims of Bell and Lichère here is to give a sense of those changes. Most importantly, these include the growing influence of French constitutional law as well as the impact of the law of the European Union and the European Convention of Human Rights.
The questions that the organizers have asked us to consider in this discussion to the impact of European law: “Is French administrative law really becoming more European? How far?” As this book quite ably shows, contemporary French administrative law has clearly become more European in key respects, and I will leave it to others in this symposium to explore how that influence manifests itself in particular regulatory domains or particular aspects of administrative law and procedure.
What I would like to argue here, rather, is that the amount of Europeanization – which, as this volume suggests, is not insignificant – is still less than one might expect from some of the terminological choices (though not necessarily the actual analysis) of the authors in this volume. My main concern relates to a threshold matter that some observers might find trivial or formalistic: the distinction between ‘supremacy’ vs ‘primacy’ in describing the relationship of EU to national law, and more particularly contemporary French administrative law.
Some may argue that these terms are synonymous, but that would be a mistake. In fact the distinction between the two terms implicates a deeper concern, which is the boundary between the constitutional and administrative realms of governance, and whether European integration (or, more generally, supranational governance beyond the state) falls into the former or latter category. This has been a core concern of my work for a quarter of a century (see, e.g., here, here, and here).
Bell and Lichère consistently use the term ‘supremacy’ to describe the relationship of EU and French law. Most importantly for our purposes here, they state that the Conseil d’État has recognized ‘the supremacy of EU law over national law’ (see p.3; see also pp.10, 12, and 47). However, it is more accurate to say that Conseil d’État has recognized the ‘primacy’ of EU law over national law, while preserving the ultimate ‘supremacy’ of the national constitution over EU law. As the Conseil d’État put it in Syndicat national de l’industrie pharmaceutique (CE, 3 December 2001, no. 226514), ‘[le] principe de primauté … ne saurait conduire, dans l’ordre interne, à remettre en cause la suprématie de la Constitution’ (‘[the] principle of primacy … cannot lead, in the internal order, to calling into question the supremacy of the Constitution’). More recently, the Conseil d’État, sitting in its most solemn formation, the Assemblée du contentieux, has said that the Constitution sits ‘au sommet de’ (‘atop’ or ‘above’) EU law, even if the latter is integrated into national law by way of the Constitution (see CE Ass., 21 April 2021, French Data Network, nos. 393099 394922 397844 397851 424717; see also CE Ass., 17 December 2021, Bouillon, no. 437125).
But one might fairly ask: Is this just a formal or even semantic difference? Is the process of Europeanization, in effect, so pervasive that, by focusing on supremacy vs primacy, one is making a distinction without a substantial difference?
This might be one implication that an unfamiliar reader could take from a presentation recently made by John Bell in a separate blog post entitled ‘How European is French Public Law?’:
‘In formal terms, the French Constitution is superior to EU law because it provides the authority to EU law in domestic law under arts. 88-1 to 88-4 of the Constitution. Under art. 88-1, EU law has primacy over incompatible domestic legislation. The supremacy of the Constitution is even more clear in relation to the European Convention because art. 55 of the Constitution confers a status higher than domestic legislation on treaties that have been duly ratified. Consequently, ordinary French courts can give effect to provisions of EU law and ratified treaties even when they conflict with domestic legislation. They are the primary bodies for integrating European law’.
As to the great sweep of topics covered by this book, this description of the relationship of European to national law, as well as the role of the domestic courts, seems to me quite reasonable. And Professor Bell’s blog post goes on to explore the complex ways in which apex courts in France are ‘negotiating’ with their counterparts in Luxembourg and Strasbourg. But at the outer limits, where European law and national constitutional law might present seemingly irreducible conflicts in certain cases, I think this description gives insufficient guidance to the unfamiliar reader of the actual legal parameters of that negotiation.
Indeed, the book itself does not include a similar effort to explain the distinction between national constitutional supremacy and EU law primacy at all; rather, at various junctures, it uses the term ‘priority’ (e.g., pp.11, 12, 56) but without explaining how this relates to supremacy, however understood. Moreover, even if the book did include such a passage, the qualifier ‘formal’ that Professor Bell deploys in his blog post arguably obscures some substantive distinctions at the outer margins of the EU-national legal relationship that go straight to the ‘How far?’ question that the organizers have asked us to consider.
The problem with the term supremacy, in my view, is that it implies a system of constitutional federalism à l’américaine. Even if this was not the intent of the authors, there can be no denying that the US comparison has been a frame of reference with deep roots in the legal-scholarly literature on European integration. Under a system so labelled, two autonomously constitutional levels of government (one ‘federal’ and one ‘state’, so to speak) are interacting with each other, each with its own constitutional legitimacy independent of the other. On questions of conflict in such a system, however, the apex constitutional court of the federal level is expected to have ultimate competence to define the boundary between federal and state law, as an extension of the constitutional supremacy of the former over the latter. This is how, in effect, the Court of Justice of the European Union has historically viewed the relationship of EU to national law as well as its own role in policing the boundary between the two levels of governance (see, e.g., most famously, Case 11/70, Internationale Handelsgesellschaft [1970]; Case 314/85, Foto Frost [1987]).
By contrast, as noted above, French public law (both administrative and constitutional) adopts a primacy approach. It reserves ultimate supremacy to the French Constitution, even as it recognizes that national apex courts should give strong deference to the doctrines and role of the CJEU in the interest of furthering the integration project. None of this is news to our authors here, of course, but their terminological choice in favor of a supremacy framework, in my view, risks obscuring this reality.
Take, for example, their discussion of the Conseil d’État’s seminal ruling in Nicolo (CE Ass., 20 October 1989, no. 108243). As presented in this volume, Nicolo ‘clarified’ the Conseil d’État’s acceptance of ‘the supremacy of EU law over national laws’ (p.47), even if, as stated elsewhere, it did so ‘obliquely’ (p.12). The book further states that ‘the superiority of [EU] law [is] a point made clear in the conclusions of the commissaire du gouvernement Frydman’ in Nicolo (p.12). But what Frydman actually made clear was that the integration of European law into the domestic legal order, via the European treaties, is dependent on the French Constitution. At that time the operative provision for integrating EU law was Article 55 (still the operative provision for the ECHR), which affirms the primacy of treaties over statutes, subject to reciprocity. Frydman’s conclusions explicitly rejected the jurisprudence of the Court of Justice ‘qui, comme on le sait, reconnaît au droit [européen] une suprématie absolue sur les règles de droit interne, fussent-elles constitutionnelles’ (‘which, as we know, gives [European] law absolute supremacy over the rules of national law, even if they are constitutional’). He indicated that ‘[cette] logique, difficilement justifiable, de supranationalité, … conduirait – quoi qu’on puisse par ailleurs en penser sur le plan politique – à rendre [le droit européen] très certainement inconstitutionnel’ (‘[this] difficult to justify logic of supranationality … would – whatever one thinks of it politically – quite certainly render [European law] unconstitutional’ in France)(emphasis in original).
Consider also Article 88-1 of the French Constitution, which today serves as the constitutional basis for the integration of EU law into national law. Our authors very ably and succinctly describe the range of EU law impacts on French administrative law that flow from this article (see, e.g., pp.47-51 as well as elsewhere throughout the volume). But Article 88-1, it is important to stress, specifies that the EU is ‘constituée d’États qui ont choisi librement d’exercer en commun certaines de leurs compétences’ (‘constituted by States which have freely chosen to exercise some of their powers in common’). This wording, as one commentator put it, is an effort to confirm in French constitutional law ‘that, when the [EU] institutions exercise their powers, they are, constitutionally speaking, acting on behalf of the sovereign peoples of the Member States’, not of some European people, or demos, taken as a whole. The further implication, of course, is that the EU is not a constitutionally autonomous polity in its own right; whatever legitimacy it enjoys is derived from the member states, a point that reinforces the primacy framework.
Consider, finally, the impact of the French constitution on the transposition of EU directives into national law, which can be done either by way of regulation or legislation. On the one hand, the French Constitutional Council has made clear, per Article 88-1, that transposition is a constitutional obligation in French public law (CC, 10 June 2004, no. 2004-496 DC, Loi sur la confiance dans l’économie numérique). On the other hand, the Council has also made clear such transposition cannot, in extremis, violate principles ‘inherent in French constitutional identity’ (see, most recently, CC, 15 October 2021, no. 2021-940 QPC, Air France). In short, even in this key domain of European integration, French public law still regards the national constitution as ultimately supreme.
This does not mean, of course, that the French apex courts, and more particularly the Conseil d’État, are always on the lookout for opportunities to assert national constitutional supremacy at every turn. To the contrary, as Bell and Lichère ably describe, the Conseil d’État, in the interest of European integration, bends over backwards to avoid such confrontations. The Conseil is guided by Genevois’s famous admonition (quoted at p.11) that, in policing the boundary between EU and national law, the aim should be neither a ‘gouvernement des juges’ (‘government by judges’), nor a ‘guerre des juges’ (‘war between judges’), but rather a ‘dialogue des juges’ (‘dialogue among judges’).
The most famous example of such respectful dialogue in French administrative law is Arcelor (CE Ass. 8 February 2007, no. 287110) (discussed in this volume at pp.12 and 48). This case, and more particularly the conclusions of the commissaire du gouvernement Guyomar, define the analytical approach for challenges to regulatory transpositions of a European directive for failing to respect French constitutional rights. Rather than insist on directly enforcing the national right, the Conseil first looks to whether there is any equivalent right in European law. If so, it should defer to the EU law approach to the protection of that right defined by the CJEU (which should be consulted via a preliminary reference if necessary). But if there is no equivalent protection in European law, then, as later summarized in the conclusions of the rapporteur public Lallet in French Data Network, ‘vous procédez à un examen de constitutionnalité classique qui peut aboutir à annuler le décret, c’est-à-dire à laisser la directive inappliquée’ (‘you proceed to a classic examination of constitutionality that can lead to annulling the decree, that is to say, by disapplying the directive’). In other words, as Lallet continues, the Conseil d’État reserves for itself ‘la faculté de mettre à l’écart un règlement ou une directive, et la jurisprudence de la Cour de justice qui l’accompagne le cas échéant (‘the ability to set aside a regulation or directive, and the case law of the Court of Justice that accompanies it, if necessary’).
In the Air France case (linked above), the Constitutional Council recently indicated that, in constitutional challenges to legislative transpositions, it would adopt a similarly deferential approach to the one developed by the Conseil d’État for regulatory transpositions. The Council stated that it would only exercise its jurisdiction to review the constitutionality of a legislative transposition where the challenge involves ‘une règle ou un principe qui, ne trouvant pas de protection équivalente dans le droit de l’Union européenne, est inhérent à l’identité constitutionnelle de la France’ (‘a rule or principle, not finding equivalent protection in the law of the European Union, is inherent in the constitutional identity of France’). What is of further interest about the Air France case, however, is that the Council found that the rule or principle involved there – the state’s nondelegable duty to exercise its coercive power (the ‘force publique’) in the protection of rights – had no equivalent in European law. This meant that the Council needed to determine whether it was also ‘inherent in the constitutional identity of France’. Concluding that it was, the Constitutional Council nonetheless dismissed the challenge, finding that the legislation implementing the EU directive at issue did not make such an unconstitutional delegation.
None of these efforts to foster dialogue among, or avoid confrontation between, national and EU judges would make much sense in a system defined by the ‘supremacy of EU law’ as this book repeatedly puts it (see pp.3, 10, 12, and 47). If supremacy and primacy were synonymous (which they are not), then the national judge’s room for maneuver, at least in matters within the domain of EU law, would be constrained entirely by interpretations emanating from the CJEU, which would have preeminent authority in defining the ultimate limits of EU law relative to the national constitution (whether as a floor or ceiling). But in the primacy environment that actually prevails, national apex courts are the ones with that ultimate authority, even if they opt for broad deference where there is an equivalent right or principle in EU law.
This recognition of the distinction between primacy and supremacy is especially important in the context of so-called ‘inverse Arcelor’. Here it is the French State, accused of not properly transposing a directive, that asserts as a defense a constitutional rule or principle (typically involving core state prerogatives like national security or freely disposing of the military, which are less likely to have acceptable ‘equivalents’ in EU law warranting deference) (see French Data Network and Bouillon, cited above). The room for maneuver of national apex courts in these and other circumstances is a function, not of interpretations from the CJEU, but of what the national constitution commands as well as how much self-restraint and/or activism the national judge feels is required either to advance European integration and/or to defend national constitutional supremacy.
To get a sense of the range of options open to national apex courts in these circumstances, consider the divergent paths of the German Federal Constitutional Court – the Bundesverfassungsgericht – and the French Conseil d’État regarding the appropriate remedy in cases of a perceived irreducible conflict between the national constitution and EU law. As is well known, the German Court has (quite controversially) developed an ultra vires remedy, in which it reviews whether an act of an EU institution ‘manifestly exceeds’ its competences, thus rendering it null and void within Germany. Because the ‘manifestly exceeds’ standard seemed relatively forgiving (something borne out in the case law over much of the last decade), most thought that the Court would never actually declare an EU act ultra vires. But to the shock of many, the Court exercised the power in 2020 in a (probably ill-chosen) case regarding the CJEU’s review of the European Central Bank’s Public Sector Asset Purchase Programme (PSPP).
By contrast, the Conseil d’État in 2021, in French Data Network, quite explicitly rejected a German-style ultra vires remedy, stating ‘il n’appartient pas au juge administratif de s’assurer du respect … de la répartition des compétences entre l’Union européenne et les États membres’ (‘it is not for the administrative judge to ensure compliance … with the division of competences between the European Union and the member states’). The conclusions of the rapporteur public Lallet (linked above) noted that, to adopt an ultra vires approach in the German style, would place judicial dialogue with the CJEU at risk while also opening up lines of attack on CJEU decisions whose scope would be difficult to control in a principled way. Moreover, Lallet argued that such a move was unnecessary, in that the Conseil d’État already had a tool at its disposal with regard to CJEU case law it found problematic: ‘au stade de sa réception en droit interne, à refuser de la transcrire servilement parce qu’elle se heurte à un obstacle constitutionnel de fond. C’est ce que nous appellerons la « clause de sauvegarde Arcelor »’ (‘at the stage of its reception into domestic law, to refuse to transcribe it slavishly because it clashes with a substantive constitutional obstacle. This is what we will call the “Arcelor safeguard clause”’).
In short, the Conseil d’État has chosen to pursue, when needed, a more indirect line of resistance as compared to what it perceives to be the more conflictual ultra vires approach of the Bundesverfassungsgericht. This still leaves plenty of room for resistance, particularly in the characterization of facts under an analytical framework that that the CJEU has otherwise defined. Moreover, the underlying principle behind both approaches is still very much the same: the ultimate supremacy of the national constitution over EU law, as well as the role of national apex courts in vindicating that supremacy (particularly, where necessary, in protecting core state prerogatives not properly protected at the EU level).
While this volume nicely captures the idea of indirect resistance in the discussion of French Data Network (sub nom. La Quadrature du Net) (pp.13-14), the ultimate supremacy of the national constitution is at best implicit in that discussion. To make that point clearer to unfamiliar readers, I would suggest that future editions of this otherwise excellent volume clarify this crucial distinction in describing the relationship of EU to national law.
[There is much more that can be said on this topic. For readers interested in more elaborated discussion of the limits of national apex courts’ deference to the CJEU in the interest of vindicating national constitutional supremacy, see Chapter 4 of my book Power and Legitimacy: Reconciling Europe and the Nation-State (OUP 2010). For more on the particularly French approach to avoiding confrontation while preserving national constitutional supremacy, see the conclusions of rapporteur public Le Corre in CE Ass., 17 December 2021, Bouillon, no. 437125, which came too late for coverage in this volume.]
Posted by Peter Lindseth, University of Connecticut School of Law (USA)
Suggested citation: P. Lindseth, “Primacy vs Supremacy: Comments on John Bell and François Lichère, Contemporary French Administrative Law (CUP 2022)”, BACL blog available at https://wp.me/p80U0W-1qz
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