Decision no. 2018-737 QPC of 5 October 2018

On 9 July 2018, the Constitutional Council, in the conditions provided for by Article 61-1 of the Constitution, received an application for a priority preliminary ruling on the issue of constitutionality raised by the Cour de Cassation (first civil division, case no. 830 of 4 July 2018). This application was made on behalf of Jaime Rodrigo F. by Vincent Lassalle-Byhet, Attorney at the Paris Bar. It was registered by the general secretariat of the Constitutional Council under no. 2018-737 QPC. It relates to the conformity with rights and freedoms that the Constitution guarantees in 1° and 3° of Article 1 of the Act of 10 August 1927 on nationality.

Having regard to the following texts:

• the Constitution;
• Ordinance No. 58-1067 of 7 November 1958, constituting an institutional act on the Constitutional Council;
• the Act of 10 August 1927 on nationality;
• Ordinance No. 45-2441 of 19 October 1945, constituting the French Nationality Code;
• the Regulation of 4 February 2010 as to the procedure applicable before the Constitutional Council with respect to applications for a priority preliminary ruling on the issue of constitutionality;

Having regard to the following documents:

• the observations on behalf of the applicant by SCP Spinosi et Sureau, Attorney at the Conseil d'État and at the Cour de Cassation, registered on 31 July and 16 August 2018;
• the observations of the Prime Minister, registered on 31 July 2018;
• the documents produced and appended to the case files;
  After having heard François Sureau, Attorney for the Conseil d'État and the Cour de Cassation, on behalf of the applicant, and Philippe Blanc, appointed by the Prime Minister, at the public hearing of 25 September 2018;

And after having heard the rapporteur;

THE CONSTITUTIONAL COUNCIL DECIDED THAT:

1. 1° of Article 1 of the aforementioned Act of 10 August 1927 provides French nationality for:
   “All legitimate children of a male French citizen in France or abroad;”.
2. 3° of the same Article 1 provides French nationality for:
   “All legitimate children born in France to a French mother;”.
3. The applicant accuses these provisions of only allowing French fathers to transmit French nationality to their legitimate children born abroad and, at the same time, deprives the legitimate child of a French mother the benefit of such a transmission. This results in a violation of the principle of equality before the law and the principle of gender equality.
4. Consequently, the application for a priority preliminary ruling on the issue of constitutionality is related to the words “in France” in 3° of Article 1 of the Act of 10 August 1927.

• In substance:

5. According to Article 6 of the Declaration of Human and Civic Rights of 1789, the law “must be the same for all, whether it protects or punishes.” The principle of equality does not preclude the legislator from regulating different situations differently, or from derogating from equality on grounds of general interest, provided that, in either case, the resulting difference in treatment is directly related to the purpose of the law establishing it.
6. The third section of the Preamble to the Constitution of 27 October 1946 provides that: “The law guarantees women equal rights to those of men in all spheres.”
7. The disputed provisions make the granting of French nationality to the legitimate child of a French mother and a foreign father subject to that child being born in France. On the contrary, in application of 1° of Article 1 of the Act of 10 August 1927, the legitimate child born to a French father has French nationality regardless of their place of birth. As such, the disputed provisions establish a difference in treatment between legitimate children born abroad with only one parent of French nationality, according to whether that parent is their mother or their father, as well as a difference of treatment between fathers and mothers.
8. By providing for the granting of French nationality by maternal descent, the provisions of 3° of Article 1 of the Act of 10 August 1927 pursued a demographic objective of broadening access to French nationality. However, the legislator had made this measure subject to the disputed condition, which restricts its benefit to only those children born in France. The grounds then invoked in support of this condition were based, on the one hand, on the application of rules relating to conscription, and on the other, to avoid possible conflicts of nationality.
9. But none of these grounds is such as to justify the differences in treatment that are the subject of the dispute. Therefore, the disputed provisions violate the requirements in Article 6 of the Declaration of Human and Civic Rights of 1789, and the third section of the Preamble to the 1946 Constitution.
10. The words “in France” in 3° of Article 1 of the Act of 10 August 1927 must therefore be declared unconstitutional.

• Concerning the effects of the declaration of unconstitutionality:

11. According to the second section of Article 62 of the Constitution: “A provision declared unconstitutional on the basis of Article 61-1 shall be repealed as of the publication of the said decision of the Constitutional Council or as of a subsequent date determined by said decision. The Constitutional Council shall determine the conditions and the limits according to which the effects produced by the provision shall be liable to challenge.” In principle, the declaration of unconstitutionality must benefit the person who brought the application for a priority preliminary ruling on the issue of constitutionality, and the provision declared unconstitutional may not be applied in the proceedings under way on the date of the publication of the decision of the Constitutional Council. However, the provisions of Article 62 of the Constitution maintain the right for the latter both to set the date of the repeal and to postpone its effects, and providing for challenges to the effects that the provision produced before the declaration was made.
12. On the one hand, Article 1 of the Act of 10 August 1927 was repealed by Article 2 of the aforementioned Ordinance of 19 October 1945. Starting with its coming into effect on 22 October 1945, French nationality was transmitted to legitimate children through maternal descent, regardless of the child's place of birth, including those born prior to this ordinance and still minors at the date of its coming into effect. On the other hand, the challenging of the judicial situations resulting from the applications of the provisions declared as unconstitutional would have clearly excessive consequences if this unconstitutionality were to be invoked by all of the descendants of those born abroad to a French mother having not obtained French nationality due to these provisions which, since they were applicable to minors when they came into effect, had produced their effects for children born between 16 August 1906 and 21 October 1924.
13. Consequently, the declaration of unconstitutionality of the words “in France” in 3° of Article 1 of the Act of 10 August 1927 should be made to come into effect as of the publication of this decision. It can only be invoked by persons born abroad to a French mother between 16 August 1906 and 21 October 1924, to whom French nationality was not transmitted due to these provisions. Their descendants can also take advantage of the decisions recognising that, given this unconstitutionality, these persons have French nationality. This declaration of unconstitutionality may be invoked in all cases introduced as of the date of publication of this decision that have not been definitively settled as of that same date.

THE CONSTITUTIONAL COUNCIL DECIDES:

Article 1. - The words “in France” in 3° of Article 1 of the Act of 10 August 1927 on French nationality are unconstitutional.

Article 2. - The declaration of unconstitutionality of Article 1 becomes effective according to the conditions of paragraph 13 of this decision.

Article 3. - This decision will be published in the Journal Officiel of the French Republic and notified in the manner provided for in Article 23-11 of the aforementioned Ordinance of 7 November 1958.

Ruled by the Constitutional Council in its 4 October 2018 session, with the following members present: Laurent FABIUS, President, Claire BAZY MALAURIE, Jean-Jacques HYEST, Lionel JOSPIN, Dominique LOTTIN, Corinne LUQUIENS, Nicole MAESTRACCI and Michel PINAULT.

Published on 5 October 2018.