_ Jean Gierasch, Center for Analysis and Prospective (CAP), Institute of Social, Economic and Political Sciences. 15 November 2021, Lyon.*
Several candidates or quasi-candidates for the 2022 presidential election in France have spoken in favour of a reform of the constitution in order to regain sovereignty in migration matters and thus free themselves from the constraints linked to France’s international commitments. A question therefore arises: would reforming the Constitution be enough to achieve this result and to set aside international and European conventions, treaties and standards that France has voluntarily undertaken to respect by adhering to them?
Without disqualifying the need for constitutional reform, this note aims to show that a migration policy which claims to regain its sovereignty through the sole means of an “internal” constitutional reform, while avoiding the question of France’s adherence to the supranational commitments that this reform is supposed to counter, is legally illusory and therefore politically misleading. The restoration of France’s “migratory sovereignty” calls for more ambitious action taken to the relevant level.
A veritable constitutional frenzy seems to have gripped the right wing of the French political spectrum on the issue of immigration. Xavier Bertrand wants the national parliament to be able to constitutionally set annual quotas for immigrants authorized to enter France. Michel Barnier proposes a three-to-five-year moratorium on immigration, guaranteed by a “constitutional shield”, so that the measures taken during this moratorium cannot “be ruled out by a French court on the grounds of France’s international commitments”.
Marine Le Pen wishes to enshrine in the constitution the control of immigration, national priority and the superiority of French law over international law to recast the law applicable to foreigners. More specifically, she wishes to constitutionalize the control of the entry of foreigners, the removal of foreigners convicted of serious crimes or offenses or those which undermine public order, national priority, protection by the head ofsState of the identity and heritage of France, the prohibition of all communitarianism, and the principle of the prohibition of regularizations.
Valérie Pécresse wishes to include in the Constitution that “The Republic limits the number of foreign nationals authorized to stay in France”, which would mean, according to her, that no foreigner could invoke France’s international commitments to the courts to remain on French territory. Finally, Éric Zemmour, like Arnaud Montebourg, want to establish (or in their spirit to restore) the primacy of French law over European law.
Their reasoning is based on the common opinion of jurists that, in the domestic legal order, the constitution is superior to treaties, unlike simple laws. As proof of this superiority, they cite Article 54 of the constitution, which provides that if France plans to ratify an international commitment contrary to the constitution, it can do so only after having revised the constitution. This is what has been done on several occasions to allow the ratification of European treaties. But this superiority in principle of the constitution over international standards, which is moreover not recognized by the Court of Justice of the European Union (CJEU), does not prevent the international standards accepted by France from taking precedence over the entire French legislative and regulatory body.
Indeed, article 55 of the constitution provides that “Treaties or agreements regularly ratified or approved have, from their publication, an authority superior to that of laws, subject, for each agreement or treaty, to its application by the other party”. The Constitutional Council having always refused to control the conformity of laws with an international agreement, it is the” ordinary “jurisdictions, judicial and administrative, which have taken charge of this control known as “conventionality”, since 1975 for the Cour de cassation and 1989 for the Council of State.
Since then, French courts have set aside French laws or regulations regarded as contrary to an international standard. The Council of State would do this in 20 percent of cases[1], which is considerable.[2] It is therefore the ordinary courts which, on a daily basis, give precedence to European and international law, to such an extent that the Council of State, already criticized in 2018 for not having referred a preliminary question to the CJEU in interpretation of Union law, for the first time sent a request for an opinion to the European Court of Human Rights on the relevant criteria to assess compatibility with the European Convention on Human Rights (ECHR) a legislative provision relating to hunting.[3] In this direct relationship between European law and French law, the constitution is, so to speak, almost transparent.
This means that, even if a law restricting immigration would comply with a reformed constitution affirming in one form or another the migratory sovereignty of France, the French judge will rule out its application if he considers that it violates an international commitment. Some, like Patrick Stefanini,[4] campaign director of Ms. Pécresse, believe they have found the solution by exhuming a case law of the Constitutional Council specific to the laws transposing European directives, which authorizes the Constitutional Council to censor the provisions of these laws which would be incompatible with the “constitutional identity” of France.[5] In addition to the fact that this control only concerns the very limited field of the laws transposing directives, it would not affect either the treaties themselves, nor the rest of the international law directly applicable in the internal order, including for example European regulations or the European convention of human rights.
Let us add that this principle of constitutional identity, which for the moment has no clearly identified content, is not to be confused with the text of the constitution and that it will pass water under the bridges before seeing the control of immigration as part of the constitutional identity of France.
Clearly, it is not reasonable to base all hopes of legal sanctification of immigration control on a case law exception from the French Constitutional Council, whose outlines are themselves uncertain. It is difficult to imagine, moreover, the Constitutional Council, which recently consecrated the principle of fraternity in order to deduce from it the prohibition of penalizing humanitarian aid to illegal stay,[6] transforming itself overnight into the spearhead of the fight against immigration.
To illustrate the limits of a constitutional reform, imagine for example that Valérie Pécresse’s proposal to include in the French constitution the principle of limiting the number of foreigners admitted to the territory is implemented, and that the national parliament votes in the a law bringing the number of foreigners authorized to enter to a maximum of 30,000. The 30,001st, who will consequently be refused his residence permit, will immediately go before the administrative judge to invoke, for example, his right to lead a normal private and family life under Article 8 of the ECHR, and the judge will rule out the application of this law if necessary. The 30,002nd will invoke the 2003 European directive on family reunification, which prohibits a member state from preventing a legally resident foreigner from waiting more than two years before asking to bring his family. If he meets the conditions of this directive, the judge will set aside national law and order the reunification. The 30,003rd, with his young children from whom he risks being separated, will invoke the international convention on the rights of the child of 1990. The 30,004th, married to a refugee or mother of a child whose father is refugee, will invoke the Geneva Convention. And so on.
That being said, it may be entirely desirable to reform the constitution to include a principle of migratory sovereignty. Let us imagine for example that tomorrow, France adopts a new constitution affirming for example that “France decides sovereignly on its migration policy without being able to obstruct it a standard or an international treaty”. Such a reform would have several effects: it would make it possible to materialize a strong national consensus on the issue of immigration; it would pave the way for the creation of a new body of law relating to the law of foreigners; it would authorize the introduction of the restrictions that one would like to adopt in areas related to immigration (social and medical benefits, targeted aid, etc.); it would prevent foreign applicants from invoking constitutional principles with ordinary judges in order to prevent their removal; it could justify reducing the grounds for immigration which are not framed by any supranational norm (economic or student immigration for example). In this sense, a constitutional reform of this type would in no case be useless, provided, however, that the constitution also contains principles for limiting the sovereignty of parliament in matters of immigration, and which should also be amended. (E.g., the right to family life guaranteed by the preamble to the constitution of 1946, integrated into the constitutionality block).
But such a reform, and the laws which would be taken as a result, would immediately come into conflict with all the European and international standards subscribed by France having an impact on immigration. This would open a major political crisis which would raise the question of Frexit, the denunciation of the ECHR, the denunciation of the international convention on the rights of the child and the application of the Geneva Convention on refugees. This does not necessarily mean that the exit processes would automatically go to the end, but that France would engage in a rough and far-from-won tug-of-war with a view to a complete renegotiation of its international commitments. Regaining migratory sovereignty is not a simple legal question that can be resolved through internal constitutional reform. France will not be able to regain total control of its migratory flows alone in its corner and without the slightest impact on our participation in the European Union, the Council of Europe (which is linked to the ECHR) and other authorities (High Commission for Refugees, etc.).
If we want to stop applying in French law an international standard resulting from a past commitment of France (treaty, convention, secondary law, etc.), there are in reality only two avenues open: to denounce it, or renegotiate it, normally according to the rules provided (for example, Article 58 of the ECHR allows this convention to be denounced). The empty chair policy can be a strong political recourse to oppose legislation being passed (like General de Gaulle in 1966) or to force renegotiation.
On the other hand, it is illusory to believe that a constitutional reform alone could exempt France from applying the international rules to which it has decided to subscribe.
Even the United States is not exempt from a rule resulting from an international commitment it has signed. When Donald Trump wanted to free himself from the greenhouse gas emission constraints resulting from the Paris Agreement, he scrupulously respected the withdrawal procedure, which provided for a minimum period of three years of application of the agreement: there was therefore a notification of withdrawal in 2017 and effective departure in 2020. From this point of view, international law hardly differs from contract law: you cannot decide to stop paying for your telephone subscription because “you no longer want to” or because “you believe that paying our bills contravenes a personal conscientious objection”. Otherwise you will risk prosecution and termination of the contract: you can do it, but you must accept the consequences.
But isn’t that precisely, we sometimes hear, what the German and Polish Constitutional Courts do? Let us distinguish the two cases. The German Constitutional Court reserves the right to declare inapplicable in Germany a legal act of the European Union which does not respect the “qualities inherent in the constitutional identity” protected by the German Basic Law or which exceeds the competences of the European Union (after allowing the CJEU to rule on the act in question).
On 5 May 2020, it therefore issued a judgment in which it considers that the ECB exceeded its mandate by adopting in 2015 a government debt buyback program and that the CJEU failed in its obligation to monitor compliance by the ECB. the principle of proportionality, by not taking sufficient account of the effects of this program on “economic and budgetary policy”, a competence of the Member States and not of the ECB.
The Commission then opened on 9 June 2021 an infringement procedure against Germany for “violation of the fundamental principles of Union law, in particular the principles of autonomy, primacy, effectiveness and uniform application of Union law, as well as respect for the jurisdiction of the CJEU”.
The German Constitutional Court thus poses the question not so much of the primacy of European law, but of its encroachment on areas which have not been explicitly entrusted to it by the Treaties: what to do when an organ of the European Union clearly exceeds its jurisdiction with the approval of its Court of Justice, following its seizure on the basis of Article 263 of the TFEU, and thereby directly contravenes a national constitutional standard? There are currently no remedies for member states.
The example of the ECHR is striking: at the time of ratifying this convention, France would never have imagined that its article 8 consecrating the protection of private and family life would serve as a basis for the regularization of hundreds of thousands of illegal aliens in France across Europe and would prevent it from deporting many delinquent foreigners.
As for the Polish Constitutional Court, it declared on 7 October 2021 that Article 1 (which establishes an “ever closer union of the peoples of Europe”) and 19 (which concerns the CJEU) of the Treaty on Union European Union contravene the Polish Constitution in so far as they allow the latter to be set aside in favour of European law.
The European Commission recalled in reaction that “Union law takes precedence over national law, including constitutional provisions” and that “all judgments of the Court of Justice of the European Union are binding on all state authorities. members, including national courts. This maximalist position resulting from the Costa v Enel judgment of 1964, the principle of which was slyly annexed to the Treaty on the Functioning of the European Union in Declaration No. 17, has never been fully accepted by the European constitutional courts, but until now a solution has always been found through a “dialogue of judges” and, above all, a massive Europeanization of national standards, including constitutional ones, making the occasions of conflict less and less probable.
For the Commission or the CJEU, there is no compromise possible: member states must align with European law. These institutions bet on the fact that the ultimate legal outcome of the Polish position should be the exit from the treaties, and that it is too extreme to be concluded in the absence of a national consensus in favour of Polexit.
Finally, what about the proposals of Eric Zemmour and Arnaud Montebourg to constitutionally reaffirm the primacy of French law over European law? It turns out that one country has already done it in its own way: Russia, which by its constitutional reform of 2020, inscribed in article 79 of its Constitution that “the decisions of the interstate bodies adopted on the basis of the provisions international treaties of the Russian Federation in their interpretation contrary to the Constitution of the Russian Federation, are not subject to execution in the Russian Federation”. On this basis, Russia, for example, refuses to execute judgments of the ECHR which it considers contrary to its constitution, which will quickly raise the question of its participation in the Council of Europe. But France is not Russia: again, including such a provision in our constitution would amount to a kind of Frexit.
If we do not want to consider a Frexit head-on while wishing to regain France’s migratory sovereignty, a more realistic position than a simple constitutional reform would be to note that the conflict between the Polish and German courts and the EU, just like the open crisis with Hungary, shows that the legitimacy of the EU to intervene in a certain number of fields is no longer taken for granted.
The past European treaties have consented to many surrenders of sovereignty to the benefit of the EU but it is clear, on the one hand that the European institutions have arrogated to themselves, through legal activism or the abandonment of our governments, prerogatives that they do not possess. not, on the other hand that they now prevent the member states of the EU from deciding their fate in fundamental sovereign areas, in particular immigration, where they are no longer in tune with the peoples of Europe.
The United Kingdom took the consequence by leaving the European Union. The time has therefore come to refuse the “all or nothing” blackmail posed by the European institutions to the member states which no longer accept the endless extension of European law, which leads to their legal disarmament in the field of migration, and to raise again the question of the competences and the functioning of the European Union, by giving it a new form, more respectful of the identities and aspirations of the European peoples. Our partners are ripe for this development, it is not only the future of France but also the future of Europe.
Either way, international or constitutional coercion should not be used as a pretext for inaction. Indeed, the French legislator has many levers of action on immigration which do not require either constitutional reform or renunciation of our international commitments: the cost and modalities of issuing visas, the level of medical care, the level of non-contributory social solidarity benefits, several reasons for stay such as students (90,000 residence permits issued in 2019), employees (nearly 40,000 permits), sick foreigners (nearly 5,000 permits), various reasons (nearly 20,000 titles). Nothing would prevent tightening the conditions for family reunification (French law is laxer than the 2003 directive, so there is room for manoeuvre).
No supranational standard limits our sovereignty in terms of access to nationality, which can be requested in France from 5 years of residence against a longer period with many of our neighbours, and some parameters of which can be modified without constitutional change.
Our conditions of deportation and ban on return could be greatly tightened by legislation, as well as the conditions for regularization, and even its very principle. The resources allocated to border protection and the effectiveness of deportations could be massively increased.
Both material and judicial treatment of asylum could also be reformed without leaving the Geneva Convention, starting with the “de-judicialization” of asylum, the procedure for which is now almost entirely in the hands of judges.
The Franco-Algerian, Franco-Tunisian and Franco-Moroccan agreements relating to the movement of these nationals, facilitated in relation to other third countries, could be denounced or reviewed. Aid granted to countries which are reluctant to take back their nationals could be stopped, as well as subsidies granted to associations promoting immigration or providing assistance with illegal entry.
The penalties imposed on smugglers could be increased … In short, all that is lacking, as always, is will and courage.
Notes
[1] Conseil Constitutionnel (2009). Contrôle de conventionnalité et contrôle de constitutionnalité en France. URL: https://www.conseil-constitutionnel.fr/les-membres/controle-de-conventionnalite-et-controle-de-constitutionnalite-en-france
[2] See for a striking example, the recent decision of the State Council on traditional hunts: Conseil d’Etat (2021). Base de jurisprudence. URL: https://www.conseil-etat.fr/fr/arianeweb/CE/decision/2021-08-06/425435
[3] Conseil d’Etat (2021). Le Conseil d’État renvoie, pour la première fois, une demande d’avis consultatif à la Cour européenne des droits de l’homme. URL: https://www.conseil-etat.fr/actualites/actualites/le-conseil-d-etat-renvoie-pour-la-premiere-fois-une-demande-d-avis-consultatif-a-la-cour-europeenne-des-droits-de-l-homme
[4] FigaroVox (2021). Patrick Stefanini: «Sans réforme de la Constitution, il n’est pas possible de limiter l’immigration». URL: https://www.lefigaro.fr/vox/politique/patrick-stefanini-sans-reforme-de-la-constitution-il-n-est-pas-possible-de-limiter-l-immigration-20211006
[5] Décision n° 2006-540 DC du 27 juillet 2006, considérant 19.
[6] Décision n° 2018-717/718 du 6 juillet 2018.
*Translated from the original on CAP ISSEP.