The French Constitutional Council may lack authority to sanction a presidential decision to use Article 11 of the Constitution for a referendum-based revision, raising questions about the balance between the presidency and judicial oversight. President Richard Ferrand suggested the Council might obstruct a referendum to amend the Constitution under Article 11, which allows the president to bypass parliamentary approval for constitutional changes. This position, aligned with an option in Marine Le Pen’s 2024 program, sparked controversy over the Council’s impartiality. Member Bertrand Mathieu publicly disagreed, questioning whether Ferrand exceeded the Council’s institutional boundaries by commenting on a matter not yet adjudicated, particularly in a pre-election context.
The Council’s historical stance is clear. In 1962, it implicitly deemed General de Gaulle’s referendum to elect a directly chosen president unconstitutional, citing Article 89’s requirement for parliamentary votes before constitutional amendments. However, the Council has consistently maintained it lacks jurisdiction to sanction the president’s decision to invoke Article 11. As noted in legal analyses, its role is confined to reviewing the procedural regularity of referendum preparations, not the substantive validity of the proposed constitutional revision.
Since the 2000 Hauchemaille decision, the Council has affirmed its authority to assess the legality of referendum convocation decrees, for example, by invalidating a decree calling voters to approve a constitutional amendment via Article 11.
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Detractors, however, warn this approach risks a “judicial coup d’état,” contending the Council exceeds its mandate by reviewing the president’s decision. The electoral court, they argue, judges the integrity of votes, not the substance of proposals. Under Article 46 of the organic law establishing the Council, its role is limited to verifying referendum organization, not assessing the constitutionality of legislative texts submitted for approval. Additionally, the Constitution strictly defines the Council’s authority, and no provision grants it power to sanction a presidential Article 11 decision.
Legal scholars further note that if lawmakers intended such oversight, they could have included it during previous constitutional revisions of Article 11, but rejected related amendments. This omission is telling, especially since the Council’s review powers exist for shared-initiative referendums-where both parliament and citizens endorse a proposal-but not for other referendum procedures, including Article 11.
Political Remedies and Institutional Balance
While the Council cannot provide judicial sanction for a presidential Article 11 decision, a violation of the Constitution could theoretically be addressed through political mechanisms. Parliamentarians who believe the President’s decision violates the Constitution could initiate impeachment proceedings before the High Court for presidential liability. This raises the fundamental question of power distribution between the President and the constitutional judiciary. The Council’s public stance on its potential role in Article 11 procedures, particularly before recent rulings like 2023-910, may compromise its perceived impartiality. The institution’s credibility depends on maintaining clear boundaries between judicial review and political discretion, especially in pre-election contexts where institutional neutrality carries heightened significance.
