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The Conseil Constitutionnel as a constitutional court: the transformations in French constitutional review and the confirmation of its judicial nature

Grant number: 14/26012-8
Support type:Scholarships in Brazil - Scientific Initiation
Effective date (Start): April 01, 2015
Effective date (End): July 31, 2015
Field of knowledge:Applied Social Sciences - Law - Public Law
Principal Investigator:Conrado Hübner Mendes
Grantee:Rafael Viotti Schlobach
Home Institution: Faculdade de Direito (FD). Universidade de São Paulo (USP). São Paulo , SP, Brazil

Abstract

This research proposes an approach to French constitutional review, whose main actor is the Constitutional Council, created by the Constitution of the Fifth Republic, in 1958. Through the reading and analysis of the work of classical and contemporary French authors and of selected cases, we intend to challenge a common sense in the field of comparative law. Brazilian authors in general classify the constitutional review performed by the Constitutional Council as political review. As we will see, authors such as Louis Favoreu vehemently criticised this conception, widespread in the 1960s - which shows the inexactness of the mentioned comparative common sense on this subject. Furthermore, a recent reform definitely introduced the repressive review; another common sense thus became outdated: that according to which french constitutional review is essentially preventive. As we highlight the judicial nature of the activity of the Constitutional Council, another question appears, which will also be addressed in this research: considering the taxonomy of comparative law, are there still substantial differences between the Constitutional Council and other european Constitutional Courts?