Organic Law No. 2009-1523 of 10 December 2009 on the priority issue of constitutionality, applying Article 61-1 of the Constitution was published in the Journal Officiel (JCP G 2009, Study B. Mathieu forthcoming; VL const. No. 2008-724, 23 July. 2008: OJ 24 July. 2008, JCP G 2009, act. 203) and will take effect from 1 March 2010. It will apply to pending proceedings.
This text opens the litigant an opportunity to seize the Constitutional Council when he appears at a trial before an administrative tribunal or court, "a legislative provision infringes the rights and freedoms that the Constitution guarantees ". The reform has three aspects:
- it allows any litigant to argue before the judge that a statutory provision violates the rights and freedoms guaranteed by the Constitution;
- it gives the Council of State the Supreme Court jurisdiction to decide whether the Constitutional Council shall be seized of this matter;
- it reserves the Constitutional Council the power to decide the matter and, if necessary, to repeal the statutory provision found to violate the Constitution.
The passage of this organic law has so far not much attention nor, apparently, saliva among our citizens and especially among the "experts" of human rights whose profession seems it to give lessons of humanism and democracy to the whole of France, if not the rest of the world!
Reform Now he is - that was part of campaign promises of Nicolas SARKOZY - is a real bomb munitions in the world of our good old law.
far (and again until March 1) the defendant had thought that a particular sentence sought or imposed against him was faced with a constitutional principle contrary, nothing worked, even though nobody ' is supposed to forget that there is a hierarchy of legal norms that puts the constitution at the top of our national laws, just after the Universal Declaration of Human Rights, which was placed in the preamble of the constitution. 
While there were many the possibility to refer a question of administrative jurisdiction in the case where, in a judicial proceeding, a decision might be void in case of cancellation of an administrative act or decision of public law ( example of criminal proceedings against a person or entity, sued for breach of planning rules while at the same time the building permit or license denial, the POS or the PLU was attacked before an administrative court). But now, what is at stake concern the constitutionality or more precisely the constitutional conformity an act or decision that found a demand for justice that will be under the control of the Constitutional Council, however, and before him by the Court of Cassation or Council of State, which will form Filter for admissibility of a preliminary issue and priority directly from the defendant.
The future will tell whether the short term the Court of Cassation and the State Council will form filters or brakes. But in any event, the principle is there, and although this will probably not easy nor necessarily productive to raise the issue of priority, the key is that the new organic law makes it possible.
Applications of this reform in the judicial life may be common in the first few times, but once incorporated into the minds and practices, it will cause an earthquake in our judicial system and administrative positions and also in litigation behavior.
The Constitution will become a true bedside book for lawyers of all kinds, and this can only be beneficial at a time when, in the economic, financial, cultural, religious, artistic, philosophical, even Republican, the Globalization upsets all the barriers of our history. Finally
the citizen can he, without ask permission to state that only the legal organization of the nation - rely on what he considers a direct or indirect violation of our Constitution, after the French Revolution, and which despite all the changes it has undergone (particularly in 1958 and 1962), still represents the foundation of our republican society.
Let there be no mistake though: the battle will be fierce between those who will want to appeal the application of this law and those who will try to put an obstacle.
already before the Court of Cassation, we know the Rapporteurs and the decisions of non-admission of action resulting from their interposition.
But on the other hand, do not forget, the European Court will monitor very carefully how the French courts, so the state applies or hinder the implementation of this law.
And since, moreover, lies the possibility of admitting into French law class actions, it is reasonable to assume that in the medium term, reforms take effect, and finally the link will be returned, even it will be a real tightrope between litigants and citizens.
It will retain the date of December 10, 2009!
Henry FLECHER
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