European Court of Justice – Supreme Court or Constitutional Court? 93
The Cour de cassation is the supreme court of the judicial branch of the
system, acting as the court of final appeal for civil and criminal matters. 30
The legal doctrines of the french courts in the matter of european law have,
perhaps evolved since the begining of the European Union, starting from a
position of extreme negativity and gradually became closer to the EU.
The 1960s were marked by disagreement between the french courts and the
ECJ over the obligation of national courts to enforce the supremacy of European
law over national law. The Conseil constitutionnel was declared by the Conseil
d’État to be the only authority entitled to enforce european law supremacy in
In the first years of the 1970s, the Conseil Constitutionnel considered that
enforcing international law supremacy was not respecting its constitutional
mandate, despite the concurrent expansion of its powers in other areas. 32
The Cour de cassation exploited the opportunity left it by the two Conseils to
claim authority to enforce european law over national law.
Before the Maastricht Treaty, the French judges had a flexible legal order.
allowing them to avoid ruling on sensitive questions, even though the ECJ had
been reiterating the supremacy of European law. 33
After the constitutional amendment to article 88, made to permit the adoption
of the Maastricht Treaty, the supremacy of European law, and the obligation of the
French courts to enforce it, was included in french law.
After the 2000s, the Conseil Constitutionnel has sought to balance the demands
of the european and french legal orders.
Since 2004, the Conseil Constitutionnel considered that there exists a
constitutional obligation to transpose european directives into french law
according to article 88-1. In 2006 the court specified that the obligation of
transposition is limited. Transposed legislation must not respect principles of
french constitutional identity without the consent of the constituent power. .
The Conseil d’État didn” t want to accept the decreasing of its power entailed
by the growing importance of european law, but was forced to change its position
in recent years, adopting a similar approach to that of the Conseil constitutionnel.34
Adopting the same position with the Conseil Constitutionnel, the Conseil
d’État acknowledged a constitutional obligation to transpose directives into french
law, as limited only by a core of constitutional values on a case-by-case basis.
The Conseil d’État wanted to indicate whether there were principles in
european law equivalent to the relevant french law. The court said that in such
cases the task of interpreting the law must fall to the ECJ to ensure uniform
interpretation of the principles across the EU.
30 See C. White, Op. Cit, p 5
31 See C. White, Op. Cit, p 6
32 See C. White, Op. Cit, p 6
33 See C. White, Op. Cit, p 7
34 See C. White, Op. Cit, p 9