La question prioritaire de constitutionnalité, à propos du dispositif anti-Perruche

Abstract

Since March 1, 2010, French citizens have a new procedure for defending their rights: the Priority preliminary ruling on the issue of constitutionality (QPC). During a trial, any citizen may request that the Constitutional Council be seized if he/she considers that a provision of a law applicable is inconsistent with the Constitution. One of the first QPCs was released regarding the Perruche anti-jurisprudence provision. The decision of the Supreme Court (Cour de cassation) on November 17, 2000 had granted the child Nicolas Perruche the right to financial compensation for the material costs related to his physical disability as a result of congenital rubella. In response, Article 1 of the law of March 4, 2002 was passed in order to prohibit the compensation of a child “solely because of his/her birth”. Since this law was enacted, only the moral injury of the parents can be indemnified in a case like that of Nicolas Perruche. Over time, the application of this article of the law of March 4, 2002 has become the subject of a heated debate. In the QPC decision of June 11, 2010, the Constitutional Council found the “Perruche anti-jurisprudence” provision to be consistent with the Constitution, except for the transitional provisions. Thus, it is assumed that the “Perruche anti-jurisprudence” provision applies to all children born after the entry into force of the law, i.e., as of March 7, 2002. In addition, the Perruche jurisprudence prevails for all claims filed before March 7, 2002. The issue of the cases for which legal action was taken after March 7, 2002 for a child born before March 7, 2002 remains debated. The current debate is whether the implementation of the law of March 4, 2002 should be extended or not to instances subsequent to March 7, 2002 for births prior to that date. In the present state of jurisprudence, the Court of Appeals applies the Perruche jurisprudence to all children born before March 7, 2002, regardless of the date by which the claims were filed.