Referral to the Constitutional Council over a restrictive registration rule

Article 78 of the Constitution is directly relevant because it addresses exactly this situation: a court may not apply a law or other normative legal act that infringes constitutional rights. The threshold is not whether the judge personally dislikes the order, but whether the order genuinely restricts a constitutional right in the circumstances. Here, the order imposes an in-person meeting requirement on an NGO whose charter permits remote participation. That is a restriction on freedom of association under Article 23 and on participation in public life under Article 32. The judge has already concluded the restriction is real, not hypothetical. The order is a normative legal act: it is general, binding, and registered. Article 78 does not require the parties to file a separate constitutional complaint; the court may act on its own initiative. Therefore the judge should not simply apply the order and dismiss the claim. The correct step is to suspend the proceedings, formulate a reasoned request to the Constitutional Council, and send it through the established channel. The judge must state the specific constitutional norms and the factual basis. Applying the order while the constitutional issue is unresolved would risk violating Article 78.

The judge should issue a reasoned ruling (determination) on suspension of the civil proceedings and on the referral. The ruling must identify: the case, the norm at issue, the constitutional provisions allegedly violated, the factual circumstances showing the infringement, and why the norm is decisive for the dispute. The judge should notify the parties and give them an opportunity to submit positions on the wording of the request, because the Constitutional Council will examine the norm in the context of the case. The case itself is not dismissed; it is suspended until the Constitutional Council acts. Procedural deadlines should be calculated from the resumption of the case. The judge should not declare the order unconstitutional-that power belongs to the Constitutional Council. The judge also should not grant the NGO's claim on the merits while the norm remains formally in force. If the Constitutional Council finds the order unconstitutional, the judge resumes and applies the Constitution directly, meaning the refusal based solely on that order cannot stand. If the Council upholds the order, the judge resumes and decides the case under the applicable law, but must still interpret the order consistently with the Constitution where possible.

If the judge is not convinced, Article 78 does not require a referral. The judge must still address the constitutional argument in the judgment and explain why the order, as applied, does not infringe the Constitution. The reasoning should proceed in steps: first, identify the constitutional right invoked; second, identify the specific restriction imposed by the order; third, assess whether the restriction has a legitimate aim, is prescribed by law, and is proportionate. The judge should consider whether the order can be read consistently with the Constitution-for example, whether 'personal presence' can include a member participating by video link with identity verification. If a constitutionally compatible interpretation is possible, the judge should adopt it rather than refer. The judgment must show that the judge did not simply defer to the Ministry. If the judge finds the restriction real but minor and proportionate, the judge should say so explicitly and apply the order as interpreted. This structured reasoning protects the right to a reasoned decision and avoids unnecessary referrals, while preserving the possibility of a constitutional challenge if the interpretation later proves unworkable.