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February 2011

 File n°30 

The Law: Expression of the Legislative Power of Parliament

 

 

 

 

 

 

    Key Points

    The law is the expression of the general will.

    The prerogative of initiating laws belongs to the Prime Minister and to parliamentarians.

    In addition to the so-called “ordinary” laws, there are other categories of laws provided for by the Constitution. Specific rules and procedures apply to each of these categories.

    All laws, except referendum laws, are passed by Parliament.

    An enabling law, which allows Government to have recourse to ordinances, is a temporary exception to the principle of the separation of powers as the executive is thus enabled to intervene in the area which is usually reserved to the legislative.

See also files 31, 32, 33, 34, 40, 43 and 44

 

    I. – “ORDINARY” LAWS

    The law is a commandment”, said Portalis, one of the authors of the Civil code.

    A more institutional approach defines the law as a prescriptive text passed by Parliament, promulgated by the President of the Republic, if need be after a decision of the Constitutional Council which sets rules and fundamental principles in the areas listed in article 34 of the Constitution. A law may also be passed by referendum, according to the rules laid down in article 11 of the Constitution. The prerogative of initiating laws belongs to the Prime Minister and to parliamentarians.

    In all cases, as article 6 of the Declaration of the Rights of Man and the Citizen of 1789 states, the law is the expression of the general will.

    The Constitutional Council, after having repeated the terms of article 6 of the 1789 Declaration, itself considered, from 2004 on, that “the purpose of the law is to set down rules and it must therefore have a prescriptive scope”.

    The law may also be passed by referendum according to the rules set down by article 11 of the Constitution. In addition to the so-called “ordinary laws”, there are other categories of law provided for by the Constitution. Specific rules and procedures apply to each of these categories.

    II. – SPECIFIC LAWS PASSED BY PARLIAMENT

    1. – Constitutional Laws

    Constitutional laws amend the Constitution according to the procedure set down in article 89 of the Constitution

    The initiative to amend the Constitution belongs to the President of the Republic, upon a proposal by the Prime Minister, as well as to M.P.s and Senators. The constitutional bill must be adopted in identical terms by the two assemblies. The revision becomes definitive once it has been approved by referendum. Nonetheless, if it is a Government sponsored bill, the President of the Republic may decide not to put it to a referendum but to the Parliament convened in Congress which must approve it by a majority of three fifths of the votes cast.

    The area of constitutional revision has a double limitation. It is limited in:

    - Time. No amendment procedure may be commenced or continued if the integrity of the territory is jeopardized or in the case of an interim presidency.

    - Its field of application. Constitutional laws may not call into question the republican form of government.

    2. – Institutional acts

    Institutional acts set down the rules of organization and running of public authorities in the cases provided for in the Constitution.

    Government and Members’ bills attempting to modify institutional acts or dealing with a matter upon which the Constitution has bestowed an institutional nature must contain in their title a direct reference to their nature. They may not contain provisions of any other nature.

    In fact, the Constitutional Council decided that an institutional act “may only deal with areas and subjects set down in a list by the Constitution” (decision n°87-234 DC of January 7, 1988) and stated further that “in the text of an institutional act, the inclusion of provisions which are not of such a nature could distort the scope of such an act” (decision n°2005-519 DC of July 29, 2005). Nonetheless when non-institutional provisions are included in an institutional act, the Constitutional Council only “relegates” them i.e. downgrades them by giving them the value of “ordinary” laws (which means that they can be modified using the procedure which is applicable to ordinary laws).

    Government and members’ institutional bills are submitted to a specific adoption procedure:

    - Like ordinary laws they may only be examined by the first assembly in which they have been first tabled after a six-week limit has expired following their tabling. Nonetheless, in the case of the implementation of the accelerated procedure, there is a specific fifteen-day limit which is not the case for other laws;

    - No amendment may be made nor article added to them which introduces provisions which are not of an institutional nature;

    - In the case of a disagreement between the assemblies, the institutional act may only be passed on final reading by the National Assembly with the absolute majority of its members in favour;

    - Institutional acts concerning the Senate must be passed in identical terms by the two assemblies. In 2009, the Constitutional Council limited the scope of the idea of institutional acts which “concerned the Senate” to the provisions which directly or specifically affected the Senate. An act does not “concern” the Senate when both of the assemblies are concerned by the same provisions.

    - An institutional act may only be promulgated after a statement by the Constitutional Council of its conformity to the Constitution.

    3. – Finance acts

    There are three types of finance acts.

    - The finance act of the year (often called the “initial” finance law) which every year lays down the resources, the expenditure and the amount of the state budget surplus or deficit;

    - The “corrected” finances act, the aim of which is mainly to adjust the forecasts for resources for the current year or to modify expenditure and its distribution;

    - The settlement act which states the financial results of each calendar year.

    - In accordance with article 39 of the Constitution, finance bills are presented first to the National Assembly. The Constitutional Council decided that the same would apply to amendments which, in this particular case, include new measures (decisions n°76-73 DC of December 28, 1976 and n°2006-544 of December 14, 2006).

    - The Parliament has a time limit of 70 days to announce its decision (40 days for first reading at the National Assembly and 15 or 20 days for first reading at the Senate()). If Parliament has not reached a decision within this limit, then the provisions of the bill may be enforced by ordinance.

    - The finance law is passed in two distinct parts; first of all that concerning resources and the general balance and then that dealing with expenditure and measures having no effect on the balance. The finance bill is submitted for a single reading in each assembly before the Government can convene the meeting of a joint committee in charge of suggesting a text on the provisions remaining in discussion.

    4. – Social security financing acts

    The social security financing acts are a category of laws introduced by the constitutional revision of February 22, 1996. They determine the general conditions of the financial balance of the social security and, by taking into account the forecast for its revenue, set the objectives for its spending. They also determine the main direction of health and social security policy and forecast, for each category, the revenue of all the basic obligatory schemes whose expenditure objectives it sets for each branch.

    The social security financing bills are examined every year in the autumn, according to similar rules of procedure as those applicable to the finance bills. They are first tabled in the National Assembly and the same applies to amendments which, in this case, include new measures. Parliament has a limit of 50 days in which to reach a decision (20 days for first reading at the National Assembly and 15 days for first reading at the Senate). If Parliament has not reached a decision within this 50-day limit, then the provisions of the bill may be enforced by ordinance.

    The social security financing acts now have four parts: the first corresponds to the settlement law, the second to the “corrected” financing law for the current year, the third brings together all the revenue for the coming year and the fourth, all the expenditure.

    Supplementary “corrected” financing laws may, during the year modify the provisions of the social security financing laws for the particular year.

    5. – Programming laws

    Programming laws (which replace laws which were formerly called “programme” laws since the constitutional act of July 23, 2008) determine the objectives of the economic and social action of the State in a particular area (national education, military spending etc.) for a period of several years (often five) as well as the financial means it intends investing.

    However, the corresponding credits can only be provided by a finance act passed for each budgetary year. The programming laws thus do not have a prescriptive or an obligatory nature from a financial point of view. However plans approved of by Parliament which set down long term objectives may receive financial commitments from the State, although this procedure on planning laws has fallen into abeyance (the last law of this type was that of July 10, 1989 which approved the tenth plan). However since 2008, programming laws may set down the multi-annual guidelines for public finances.

    6. – Laws authorizing the ratification of treaties

    Treaties and agreements which are legally ratified or approved have, as of their publication, a superior authority to that of laws, provided of course that each agreement or treaty is applied by the other party.

    The most important treaties and agreements, listed in article 53 of the Constitution, can only be ratified by the President of the Republic after a vote authorizing him to do so. Such treaties include peace treaties, trade treaties, treaties or agreements concerning the organization of international affairs, those involving State finances, those which modify provisions which are a matter for statute, those concerning the status of persons and those dealing with the transfer, exchange or addition of territory.

    During the examination by the assemblies of the ratification bill, the articles contained in the treaties or the agreements submitted for ratification are not voted upon. No amendment may be tabled on the text of a treaty. The National Assembly may only vote in favour of or against the ratification or for postponement.

    If the Constitutional Council, having received a referral by the President of the Republic, the Prime Minister, the President of either assembly or by sixty M.P.s or sixty Senators, declares that an international commitment includes a clause running contrary to the Constitution, the authorization to ratify or approve that international commitment can only be passed after a revision of the Constitution.

    III. –LAWS NOT PASSED BY PARLIAMENT:
    REFERENDUM LAWS

    Article 11 of the Constitution does not use the term “referendum laws” but it does make provision for a Government bill dealing with various areas to be put to referendum, i.e. to all voters. As they are passed by universal suffrage, referendum laws are not subject to the monitoring of their constitutionality (decision of the Constitutional Council of November 6, 1962).

    The bill to be put to referendum must deal with the organization of public authorities, with reforms relating to the economic, social or environmental policy of the Nation and the public services involved, or provide for authorization to ratify a treaty that, although not contrary to the Constitution, would affect the functioning of the institutions.

    The decision to hold a referendum is taken by the President of the Republic, upon a proposal of the Prime Minister during a parliamentary session or upon a joint proposal by the two assemblies. In practice Parliament has never used its right to initiate a referendum. As for Government, its proposal has, more often than not, been purely a matter of form as the real initiative comes from the President of the Republic.

    The Constitutional Act of July 23, 2008 modified article 11 of the Constitution so as to introduce the aforementioned reference to bills dealing with the environmental policy of the Nation but also in order to set down a new means of calling a referendum. Henceforth, a referendum may now be held on the initiative of one fifth of the members of Parliament, supported by one tenth of the voters enrolled on the electoral register. This initiative takes the form of a Member’s bill. If this Member’s bill has not been examined by the two assemblies within a time limit which has yet to be decided upon by an institutional act, the President of the Republic shall submit it to a referendum.

    In addition to the procedure provided for by article 89 of the Constitution, General de Gaulle had recourse to the referendum law procedure in order to revise the Constitution so as to introduce the election of the President of the Republic by universal suffrage (Constitutional Act of November 6, 1962).

    IV. – THE SPECIAL CASE OF ENABLING ACTS

    In accordance with article 38 of the Constitution, the Government may request the Parliament for the authorization to take measures by ordinance that are normally a matter for statute. The authorization is granted by a law which sets the time limit for such a situation, as well as its purpose and the areas in which the Government intends to take measures.

    The ordinances are taken in Council of Ministers, after consultation with the Conseil d’État. They may only be ratified in explicit terms. They come into force as soon as they are published but they lapse if a ratification bill is not tabled before the Parliament before the date set by the enabling act. At the end of the time limit mentioned in the enabling act passed by Parliament, the ordinances may no longer be modified for matters falling within the ambit of statute but by a law.

() See the combined provisions of article 47 of the Constitution and article 40 of the Institutional Act concerning finance acts of August 1, 2001.