Constitutional Council, decision dated 23.01.15, Ahmed S., QPC 2014-439
In a decision dated 23 January 2015, the Constitutional Council, hearing a priority preliminary ruling on constitutionality concerning the compliance with the Constitution of the provisions of the Civil Code regarding forfeiture of nationality of naturalised French persons perpetrating terrorism, considered that the said provisions were not unconstitutional and that it was not within its jurisdiction to pass a preliminary question to the EU Court of Justice to assess the compliance of these provisions with the principles of equality and non-discrimination enshrined in Articles 20 and 21 of the Charter and Article 18 of the TFEU.
Mr Ahmed S. acquired French nationality in 2002 while retaining his Moroccan nationality. He was convicted in 2013 on charges of participation in a criminal association for the preparation of an act of terrorism. By the decree of 28 May 2014, he was stripped of his French nationality under 1° of Article 25 and Article 25-1 of the Civil Code. He challenged this decision before the Council of State. The latter referred a priority preliminary ruling on constitutionality to the Constitutional Council. At first, the Constitutional Council rejected the applicant’s claim seeking to refer a preliminary question to the Court of Justice. The Constitutional Court then forwarded a preliminary ruling in the Jeremy F. case (decision no. 2013-314 QPC of 14 June 2013).
However, the problem was different: “this matter involved knowing whether the lack of remedy under the criminal procedure code against the authorisation to extend the effects of the European Arrest Warrant (EAW) was a necessary consequence of the framework decision on the EAW. If […] this lack of remedy resulted from the European acts, its compliance with the Constitution was ensured by the letter of Article 88-2 of the Constitution. […] However, if […] the lack of remedy could not find its source in these acts, it was incumbent upon the Constitutional Council to review it with regard to the constitutional requirements.” (Constitutional Council, comment from the Mr Ahmed S. decision). In the Jeremy F. case, the interpretation given by the Court of Justice (see F. ruling, C-168/13 PPU, EU:C:2013:358) was thus a prerequisite for the exercise of constitutional review. However, in the Ahmed S. case, the Council sought its well-established case law (see decision no. 2009-605 DC of 12 May 2010) consisting of declaring that it did not have jurisdiction in the context of priority preliminary questions on constitutionality to examine the compatibility of national law with EU law and thus to refer a preliminary question to the Court of Justice. In this regard, the Council recalled that the review of complaints alleging violation of EU law and transmission of preliminary questions fall within the jurisdiction of the administrative and judicial courts. Based on the merits, the Constitutional Council considered that the provisions in question were not contrary to the rights and freedoms guaranteed by the Constitution.
The facts of this case may be closer to those at the origin of the Rottmann judgment (C-135/08, EU:C:2010:104) in which the Court of Justice held that, if the definition of conditions of acquisition and forfeiture of nationality falls within the jurisdiction of each Member State, the latter must comply with EU law when the exercise of that jurisdiction affects the rights conferred and protected by the legal system of the Union, especially those arising from European citizenship. Mr Rottmann, an Austrian national, had subsequently obtained German nationality, which resulted in him forfeiting his original nationality. The German authorities had then ordered the withdrawal of the naturalisation on the basis of the fraudulent conduct of the applicant. There was thus a risk of statelessness and consequent forfeiture of the status of European citizen. In the Ahmed S. case, if there is no risk of statelessness, the forfeiture of French nationality is likely to lead to loss of rights arising from European citizenship.
The full text is available on the web site of the Constitutional council