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French Treaties and French Courts: Two Problems in Supremacy

AN aspect of the French legal system that has especially interested foreign scholars is the existence, alongside the ordinary civil and criminal judiciary, of separate administrative courts for handling most governmental litigation ' and a special Conseil Consthutionnel for determining the constitutionality of statutes. Comparatively little attention, however, has been paid either to the possibility that these various institutions might decide important legal questions differently or to the difficulty of resolving such differences if they arose. A relatively recent series of cases in the Conseil d'Etat (the supreme administrative court), the Cour de Cassation (the supreme civil and criminal court), and the Conseil Constitutionnel has made the mere prospect of conflict an actuality. Curiously, the cases involve a question that the French Constitution itself appears to answer unambiguously: the supremacy of treaty over statute. In the first part of this article, I shall examine the three decisions, so as to determine whether they are in harmony with each other and with the Constitution itself. Close examination of the cases reveals a more fundamental problem of supremacy in the French legal order, namely, uncertainty in regard to the relationship between the French courts on important questions of constitutional law. The second part of this article explores the dimensions of this problem and concludes that, although only a few serious constitutional conflicts have arisen so far, and while those few have been settled largely by accommodation between the courts, the potential for future conflict is substantial.