TEXTS RELATING TO PRIORITY
PRELIMINARY RULINGS ON THE
ISSUE OF CONSTITUTIONALITY
ORGANIC PROVISIONS
Source: services of the Constitutional Council © Edition of 17 January 2011
 Ordinance n° 58-1067 constituting an institutional act on the Constitutional council ...................... 3
 Code of Administrative Justice............................................................................................................... 9
 Code of Judicial Organisation ................................................................................................................ 9
 Code of Criminal Procedure ................................................................................................................. 10
 Code of Financial Jurisdictions ............................................................................................................ 10
 Organic law no. 99-209 of 19 March 1999 regarding the status of New Caledonia ......................... 11
 Ordinance n° 58-1067 constituting an institutional act on the Constitutional council ...................... 3
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- Title II: The operation of the Constitutional council .............................................................................. 3
Chapter II bis: On priority preliminary rulings on the issue of constitutionality (coming into
force on March 1st 2010) ....................................................................................................... 3
Part 1: Provisions applicable before courts coming under the supervisory jurisdiction of the
Conseil d’État or the Court of Cassation ................................................................................................... 3
Section 23-1 .................................................................................................................................. 3
Section 23-2 .................................................................................................................................. 4
Section 23-3 .................................................................................................................................. 4
Part 2 : Provisions applicable before the Conseil d’État and the Court of Cassation................................ 5
Section 23-4 .................................................................................................................................. 5
Section 23-5 .................................................................................................................................. 5
Section 23-6 (coming into force on March 1st 2010) ................................................................... 6
Section 23-7 .................................................................................................................................. 6
Part 3: Provisions applicable before the Constitutional Council ............................................................... 6
Section 23-8 .................................................................................................................................. 6
Section 23-9 .................................................................................................................................. 6
Section 23-10 ................................................................................................................................ 7
Section 23-11 ................................................................................................................................ 7
Section 23-12 ................................................................................................................................ 7
- Title III: MISCELLANEOUS AND TEMPORARY PROVISIONS .................................................... 7
Section 55 ..................................................................................................................................... 7
Section 56 ..................................................................................................................................... 7
Code of Administrative Justice............................................................................................................... 9
- Book VII: The judgment ........................................................................................................................ 9
Title VII: special provisions ................................................................................................................ 9
Chapter Ia: Priority preliminary rulings on the issue of constitutionality ................................................. 9
Article LO 771-1........................................................................................................................... 9
Article LO 771-2........................................................................................................................... 9
Code of Judicial Organisation ................................................................................................................ 9
- Book IV: The Court of Cassation ........................................................................................................... 9
Title VI: Priority preliminary rulings on the issue of constitutionality ............................................... 9
Article LO 461-1........................................................................................................................... 9
Article LO 461-2........................................................................................................................... 9
Code of Criminal Procedure ................................................................................................................. 10
- Book IV: On special procedures........................................................................................................... 10
Title I a: On priority preliminary rulings on the issue of constitutionality ....................................... 10
Article LO 630 ............................................................................................................................ 10
Code of Financial Jurisdictions ............................................................................................................ 10
- Book I: The Court of Auditors ............................................................................................................. 10
Title IV: Procedure ............................................................................................................................ 10
Article LO 142-2......................................................................................................................... 10
Organic law no. 99-209 of 19 March 1999 regarding the status of New Caledonia ......................... 11
- Title III: The institutions of New Caledonia ........................................................................................ 11
Chapter II: The statutes of the country .............................................................................................. 11
Article 107 .................................................................................................................................. 11
2
Ordinance n° 58-1067 constituting an institutional act on the
Constitutional council
1
As amended by Ordinance n° 59-223 of February 4th 1959 2 and Institutional Acts n°s 74-1101 of
December 26th 1974 3, 90-383 of May 10th 1990 4, 95-63 of January 19th 1995 5, 2007-223 of
February 21st 2007 6, 2008-695 of July 15th 2008 7, 2009-403 of April 15th 20098 8, 2009-1523 of
December 10th 2009 9, 2010-830 of 22 July 201010, no. 2011-333 of 29 March 2011 11 and no. 2011410 of 14 April 2011 12
Title II: The operation of the Constitutional council
Chapter II bis: On priority preliminary rulings on the issue of constitutionality (coming into force on March
1st 2010) 13
Part 1: Provisions applicable before courts coming under the supervisory jurisdiction of the Conseil
d’État or the Court of Cassation
Section 23-1 (coming into force on March 1st 2010)
Before Courts coming under the supervisory jurisdiction of the Conseil d’État or the Court of
Cassation, the argument that a statutory provision infringes the rights and freedoms guaranteed by
the Constitution shall, on pain of inadmissibility, be raised in writing and accompanied by a
1
Journal officiel of 9 November 1958 p. 10129.
Ordinance no. 59-223 of 4 February 1959 amending the Ordinance of 7 November 1958 concerning organic law on
the Constitutional Council, Journal officiel of 7 February 1959, p. 1683.
3
Organic law (OL) no. 74-1101 of 26 December 1974 amending the Ordinance of 7 November 1958 concerning
organic law on the Constitutional Council, Journal officiel of 27 December 1974, p. 13068.
4
OL no. 90-383 of 10 May 1990 on the funding of the campaign for the election of the President of the Republic and
the Members of the National Assembly, Journal officiel of 11 May 1990, p. 5615.
5
OL no. 95-63 of 19 January 1995 on the declaration of wealth of the Members of Parliament and the incompatibilities
applicable to the Members of Parliament and the members of the Constitutional Council, Journal officiel of 20 January
1995, p. 1041.
6
OL no. 2007-223 of 21 February 2007 concerning statutory and institutional provisions relating to overseas territories,
Journal officiel of 22 February 2007, p. 3121, @ no. 1.
7
OL no. 2008-695 of 15 July 2008 on the archives of the Constitutional Council, Journal officiel of 16 July 2008, p.
11322, @ no. 1.
8
OL no. 2009-403 of 15 April 2009 on the application of Articles 34-1, 39 and 44 of the Constitution, Journal officiel
of 16 April 2009, p. 6528, @ no. 1.
9
OL no. 2009-1523 of 10 December 2009 on the application of Article 61-1 of the Constitution, Journal officiel of 11
December 2009, p. 21379, @ no. 1.
10
OL no. 2010-830 of 22 July 2010 on the application of Article 65 of the Constitution, Journal officiel of 23 July
2010, p. 13562, @ no. 1.
11
OL no. 2011-333 of 29 March 2011 on the Defender of Rights, Journal officiel of 30 March 2011, p. 5504, @ no. 1.
12
OL no. 2011-410 of 14 April 2011 on the election of Members of the National Assembly and Senators, Journal
officiel of 19 April 2011, p. 6826, @ no. 1.
13
Chapter inserted by OL no. 2009-1523 of 10 December 2009, Art. 1. Applicable from 1st March 2010 (Art. 5 of the
OL: "1st day of the 3rd month following that of its promulgation").
2
3
reasoned justification of this argument. Such an argument may be raised for the first time before a
Court of Appeal. It cannot be raised by the court proprio motu.
Before a Court coming under the supervisory jurisdiction of the Court of Cassation, when the
Public Prosecutor is not a party to these proceedings, the matter shall be brought to his attention
once the argument has been raised so that he may make his opinion known.
If such an argument is raised during a preliminary investigation into a criminal offence, the matter
shall be brought before the relevant appellate court.
Such an argument may not be raised before a Cour d'assises. In the event of appeal against a
decision handed down at first instance by a Cour d'assises, it may be raised in writing in a document
accompanying the notice of appeal. This document shall be immediately transmitted to the Court of
Cassation
Section 23-2 (coming into force on March 1st 2010)
The Court shall rule without delay, giving reasons for its ruling, as to the transmission to the
Conseil d’État or the Court of Cassation of the application for a priority preliminary ruling on the
issue of constitutionality. Such transmission shall require that the following conditions be met :
1° The challenged provision is applicable to the litigation or proceedings underway, or is the
grounds for said proceedings;
2° Said provision has not previously been found to be constitutional in the holding of a decision of
the Constitutional Council, except in the event of a change of circumstances
3° The matter is of a serious nature
In all events, the court involved must, when confronted firstly with arguments challenging the
conformity of a statutory provision with the rights and freedoms guaranteed by the Constitution and
secondly with the international commitments entered into by France, rule in priority on the matter
of the transmission of the application for a priority preliminary ruling on the issue of
constitutionality to the Conseil d’État or Court of Cassation.
The decision to transmit the application shall be sent to the Conseil d’État or the Court of Cassation
within eight days of the handing down of said decision, together with the submissions of the parties.
Refusal to transmit the application may only be challenged upon appeal against the decision settling
all or part of the litigation involved
Section 23-3 (coming into force on March 1st 2010)
When the application for a priority preliminary ruling is transmitted, the court shall stay its ruling
until receipt of the decision of the Conseil d’État or Court of Cassation or of the Constitutional
Council, if the matter has been referred to the latter. The preliminary investigation underway shall
not be suspended and the court may order any necessary temporary measure or measure of
conservation.
However there shall be no stay of ruling when the person involved is in custody due to the
proceedings underway, nor when the purpose of such proceedings is to discharge a custodial
measure.
The court may also rule without waiting for the decision on the application for a priority
preliminary ruling on the issue of constitutionality if statute law or regulations provide that it should
give its ruling within a specified time or as a matter of urgency. If the court of first instance rules
without waiting for said decision on the priority preliminary ruling and its decision is appealed
against, the appellate court shall stay its ruling. It may however not stay its ruling if it itself is
required to rule on issues which must be dealt with forthwith.
Furthermore, if staying the ruling would lead to irremediable or patently excessive consequences as
regards the rights of one of the parties, the court deciding to transmit the application for a priority
preliminary ruling as to constitutionality may rule on those issues which need to be dealt with
forthwith.
If an appeal on a point of law has been made to the Court of Cassation and the trial judges have
handed down their decision without waiting for the decision of the Conseil d’État or the Court of
4
Cassation or of the Constitutional Council, if the matter has been referred to the latter, the Court of
Cassation shall stay its ruling on said appeal pending a ruling on the application for a priority
preliminary ruling on the issue of constitutionality. This shall not however be the case when the
applicant is deprived of his freedom because of the proceedings underway and statute law provides
that the Court of Cassation shall give its ruling within a specified time." 14
Part 2 : Provisions applicable before the Conseil d’État and the Court of Cassation
Section 23-4 (coming into force on March 1st 2010)
Within three months of receipt of the transmission provided for in section 23-2 or in the final
paragraph of section 23-1, the Conseil d’État or the Court of Cassation shall rule on the referral of
the application made to the Constitutional Council for a priority preliminary ruling on the issue of
constitutionality. This referral shall be made when the conditions provided for in 1° and 2° of
Section 23-2 have been met and the issue raised is new or of a serious nature.
Section 23-5 (coming into force on March 1st 2010)
The argument based on the infringement by a statutory provision of the rights and freedoms
guaranteed by the Constitution may be raised, including for the first time before the Court of
Cassation, when a case is being heard before the Conseil d’État or Court of Cassation. Said
argument shall be presented, on pain of being inadmissible, in a separate and reasoned submission.
It cannot be raised by the court proprio motu.
In all events the Conseil d’État or Court of Cassation must, when asked to rule on arguments
claiming firstly that a provision infringes the rights and freedoms guaranteed by the Constitution,
and secondly that it runs counter to the international commitments entered into by France, rule in
priority on the transmitting to the Constitutional Council of the application for a priority
preliminary ruling on the issue of constitutionality.
The Conseil d’État or the Court of Cassation shall have a period of three months as from the formal
raising of the argument to hand down its decision. The Constitutional Council shall be asked to rule
on the application for a priority preliminary ruling on the issue of constitutionality once the
conditions provided for in 1° and 2° of section 23-2 have been met and the issue raised is new and
of a serious nature.
When the matter has been referred to the Constitutional Council, the Conseil d’État or the Court of
Cassation shall stay their ruling until the Constitutional Council has given its decision. This shall
not however be the case when the applicant is deprived of his freedom because of the proceedings
underway and statute law provides that the Court of Cassation shall give its ruling within a specified
time. If the Conseil d’État or the Court of Cassation is required to rule in a matter of urgency, there
can be no stay of ruling. 15
14
Cf. decision 2009-595 DC, recital clause 18: "Whereas, however, the last sentence of the last paragraph of Section
23-3 can result in a definitive decision being given in proceedings where a priority preliminary ruling on the issue of
constitutionality has been referred to the Constitutional Council and without the latter having ruled on it; that, in such a
scenario, neither this provision nor the authority of the res judicata can deprive the litigant of the right to initiate new
proceedings so that the decision of the Constitutional Council can be taken into account; that, subject to this reservation,
Section 23-3 is not contrary to the Constitution".
15
Cf. decision 2009-595 DC, recital clause 23: "Whereas, thirdly, the last sentences of the last paragraph of Section 235 allow a definitive decision to be given in proceedings where a priority preliminary ruling on the issue of
constitutionality has been referred to the Constitutional Council and without the latter having ruled on it; that, subject to
the same reservation as stated in recital clause 18, these provisions are not contrary to the Constitution " i.e. that
"neither this provision nor the authority of the res judicata can deprive the litigant of the right to initiate new
proceedings so that the decision of the Constitutional Council can be taken into account".
5
Section 23-6 (coming into force on March 1st 2010)
Repealed. 16
Section 23-7 (coming into force on March 1st 2010)
The reasoned decision of the Conseil d’État or the Court of Cassation to refer the matter to the
Constitutional Council, accompanied by the submissions of the parties, shall be transmitted to the
Council. The Constitutional Council shall be provided with a copy of the reasoned decision at the
basis of the refusal of the Conseil d’État or Court of Cassation to refer the application for a priority
preliminary ruling to it. In the event of failure by the Conseil d’État or the Court of Cassation to rule
within the time allotted by sections 23-4 and 23-5, the application shall be transmitted to the
Constitutional Council.
The decision of the Conseil d’État or the Court of Cassation shall be communicated to the court
which transmitted the application for a priority preliminary ruling and shall be notified to the parties
within eight days of the making of said ruling.
Part 3: Provisions applicable before the Constitutional Council
Section 23-8 (coming into force on March 1st 2010)
When the Constitutional Council has been asked to make a priority preliminary ruling under the
provisions hereof, it shall immediately inform the President of the Republic, the Prime Minister and
the Presidents of the National Assembly and the Senate. Said persons may send the Constitutional
Council their remarks on the application for a priority preliminary ruling on the issue of
constitutionality made to the Council.
When a provision of a law of the land of New Caledonia is the object of such an application, the
Constitutional Council shall also inform the President of the Government of New Caledonia, the
President of the Congress and the Presidents of Provincial Assemblies.
Section 23-9 (coming into force on March 1st 2010)
16
Section repealed by Article 12 of organic law no. 2010-830 of 22 July 2010 on the application of Article 65 of the
Constitution. Previous wording:
The First President of the Court of Cassation shall receive applications transmitted to the Court of Cassation as
provided for in Section 23-2 and the last paragraph of Section 23-1. The submission mentioned in Section 23-5,
presented with applications addressed to the Court of Cassation, shall also be submitted to the same.
The First President shall immediately inform the Chief Public Prosecutor.
The Court of Cassation shall rule with a Bench presided by the First President and comprising the Presidents of the
Chambers and two judges from each of the Chambers specifically concerned by the application.
However the First President may, if he feels that the solution to the issue raised is self-evident, refer this matter to a
Bench composed of himself, the President of the Chamber specifically concerned and a further judge from the latter.
For the purposes of the foregoing two paragraphs, the First President may be replaced by a delegate appointed by him
from among the Presidents of the various Chambers of the Court of Cassation. Said Presidents may also be replaced by
delegates appointed by them from among judges sitting in said Chambers.
6
When the Constitutional Council has been asked to rule on an application for a priority preliminary
ruling on the issue of constitutionality , the termination for any reason whatsoever of the
proceedings in which this issue was raised shall have no effect on the examination of this issue.
Section 23-10 (coming into force on March 1st 2010)
The Constitutional Council shall give its ruling within three months of the referral being made to it.
The parties shall be given a full hearing and invited to address their arguments to the Council. The
hearing shall be held in public except for exceptional cases specified by the internal rules 17 of
procedure of the Constitutional Council
Section 23-11 (coming into force on March 1st 2010)
The Constitutional Council shall give reasons for its decision. The parties shall be notified of this
decision, and the same shall be communicated either to the Conseil d’État or the Court of Cassation
and, if need be, to the court before which the application for a priority preliminary ruling on the
issue of constitutionality was first made.
The Constitutional Council shall also communicate its decision to the President of the Republic, the
Prime Minister and the Presidents of the National Assembly and the Senate together with, in the
case provided for in the final paragraph of section 23-8, the authorities mentioned therein.
The decision of the Constitutional Council shall be published in the Journal officiel and, if need be,
in the Journal officiel of New Caledonia.
Section 23-12
When the Constitutional Council is asked to make a priority preliminary ruling on the issue of
constitutionality, the State contribution to the remuneration under the system of legal aid of those
judicial auxiliaries assisting in the making of the application shall be increased in the manner
provided for by regulations.
Title III: MISCELLANEOUS AND TEMPORARY PROVISIONS
Section 55
The terms of application of this Ordinance may be determined by decree 18, 19 and 20 in the Council of
Ministers, subject to Consultation of the Constitutional Council and the opinion of the Council of
State.
Section 56
The Constitutional Council, through its internal regulations 21, shall add to the procedural rules
"applicable before it" 22 decreed by title II of this Ordinance. It shall, inter alia, specify the
17
Section 8 of the QPC internal regulations
18
Cf. Decree no. 2010-148 of 16 February 2010 implementing organic law no. 2009-1523 of 10 December 2009 on the
application of Article 61-1 of the Constitution.
19
Cf. Decree no. 2010-149 of 16 February 2010 on the continuation of legal aid if the application for the priority
preliminary ruling on the issue of constitutionality is examined by the Conseil d’État, the Court of Cassation and the
Constitutional Council.
20
Cf. Decree no. 2010-1216 of 15 October 2010 on the procedure for examining applications for priority preliminary
rulings on the issue of constitutionality before the Court of Cassation.
7
conditions in which the investigations and inquiry measures provided for in Sections 42 and 43
shall be carried out under the supervision of a Rapporteur.
21
Internal regulations regarding the procedure applicable before the Constitutional Council for preliminary priority
rulings on the issue of constitutionality (Decision of 4 February 2010; published in the Journal officiel of 18 February
2010 and amended on 24 June 2010)
22
"applicable before it" inserted by organic law (OL) no. 2009-1523 of 10 December 2009, Art. 4.
8
Code of Administrative Justice
Book VII: The judgment
Title VII: special provisions
Chapter Ia: Priority preliminary rulings on the issue of constitutionality
23
Article LO 771-1
The transfer of a preliminary priority ruling on the issue of constitutionality by an administrative
court to the Council of State shall comply with the rules defined by Sections 23-1 to 23-3 of
Ordinance no. 58-1067 of 7 November 1958 concerning organic law on the Constitutional Council.
Article LO 771-2
The referral by the Council of State of a preliminary priority ruling on the issue of constitutionality
to the Constitutional Council shall comply with the rules defined by Sections 23-4, 23-5 and 23-7 of
the aforementioned Ordinance no. 58-1067 of 7 November 1958.
Code of Judicial Organisation
Book IV: The Court of Cassation
Title VI: Priority preliminary rulings on the issue of constitutionality 24
Article LO 461-1
The transfer of a preliminary priority ruling on the issue of constitutionality by an ordinary court to
the Court of Cassation shall comply with the rules defined by Sections 23-1 to 23-3 of Ordinance
no. 58-1067 of 7 November 1958 concerning organic law on the Constitutional Council.
Article LO 461-2
The referral by the Court of Cassation of a preliminary priority ruling on the issue of
constitutionality to the Constitutional Council shall comply with the rules defined by Sections 23-4
to 23-7 of the aforementioned Ordinance no. 58-1067 of 7 November 1958.
23
Chapter inserted by OL no. 2009-1523 of 10 December 2009, Art. 2-I. Applicable from 1st March 2010 (art. 5 of the
OL: "1st day of the 3rd month following that of its promulgation").
24
Title inserted by OL no. 2009-1523 of 10 December 2009, Art. 2-II. Applicable from 1st March 2010 (Art. 5 of the
OL: "1st day of the 3rd month following that of its promulgation").
9
Code of Criminal Procedure
Book IV: On special procedures
Title I a: On priority preliminary rulings on the issue of constitutionality 25
Article LO 630
The conditions in which the grounds on which a statutory provision infringes the rights and liberties
guaranteed by the Constitution can be challenged in a criminal court, and the conditions in which
the Constitutional Council can be referred to by the Court of Cassation on priority preliminary
rulings on the issue of constitutionality, shall comply with the rules defined by Sections 23-1 to 237 of Ordinance no. 58-1067 of 7 November 1958 concerning organic law on the Constitutional
Council.
Code of Financial Jurisdictions
Book I: The Court of Auditors
Title IV: Procedure
Article LO 142-2
26
10
Organic law no. 99-209 of 19 March 1999 regarding the
status of New Caledonia
Title III: The institutions of New Caledonia
Chapter II: The statutes of the country
Article 107
As amended by organic law no. 2009-969 of 03 August 2009, Article 47
As amended by organic law no. 2009-1523 of 10 December 2009, Article 3
The statutes of the country have force of law on matters defined in Section 99. They cannot be
appealed against after they have been ruled on.
The provisions of a statute of the country can be subject to a preliminary priority ruling on the issue
of constitutionality, which shall comply with the rules defined by Sections 23-1 to 23-12 of
Ordinance no. 58-1067 of 7 November 1958 concerning organic law on the Constitutional
Council 27.
The provisions of a statute of the country outside of the matters defined in Section 99 shall be of a
regulatory nature. When, during proceedings before an administrative or ordinary court, the legal
nature of a provision of a statute of the country is subject to a serious challenge, the court shall, by a
judgment which cannot be appealed against, refer the matter to the Council of State which shall
give its ruling within three months. Any decision on the merits is stayed until the Council of State
has ruled on the nature of the relevant provision.
"A matter may also be referred to the Council of State by the President of the Congress, the
President of the Government, the President of an assembly of the Province or the High
Commissioner for the purpose of recording that the provision of a statute of the country is outside
of the matters defined in Section 99. " 28
27
Paragraph inserted by OL no. 2009-1523 of 10 December 2009, Art. 3. Effective date 1st March 2010 (Cf. Art. 5 of
that OL)
28
Paragraph inserted by organic law no. 2009-969 of 03 August 2009, Article 47
11