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The Legislative Field
I. – THE DEFINITION OF THE LEGISLATIVE FIELD
During the Third Republic, the law was defined in a formal way: It was an act passed by Parliament according to the legislative procedure and promulgated by the President of the Republic. The legislative field (matters for statute) had no boundaries. A law could deal with any subject and could even be applied to an individual case. A legislative act could only be modified by another legislative act.
The regulatory power of Government was essentially a power to implement the laws. There was no difference in field between the “law” and “regulation”, only a difference in form: the law was an act passed by Parliament and regulations came from the executive. The absolute supremacy of the law, as an expression of the will of the Nation, was conveyed by the inadmissibility of any appeal against the law before a court.
In 1958, the framers of the Constitution of the Fifth Republic wished to protect the very field of Government action and to remove from the legislative field many questions which were more rightly matters for administration or the everyday management of public affairs. In his memoirs, Michel Debré had no doubt that these provisions witnessed “the birth of a high-quality form of parliamentarianism”. He explained this in front of the Conseil d’Etat: “From the point of view of principles the definition is normal and it is indeed the confusion between law, regulation and even individual measures which is absurd”.
The Constitution of the Fifth Republic defines the legislative field. Article 34 distinguishes matters for which Parliament sets rules and those for which it determines the fundamental principles.
Until 2008, the “law” or “statutes” set the rules concerning:
- Civic rights and the fundamental guarantees granted to citizens for the exercise of their public liberties; the obligations imposed for the purposes of national defence upon citizens in respect of their persons and their property;
- Nationality, the status and legal capacity of persons, matrimonial regimes, inheritance and gifts;
- The determination of serious crimes and other major offences and the penalties applicable to them; criminal procedure; amnesty; the establishment of new classes of courts and tribunals and the regulations governing the members of the judiciary;
- The base, rates and methods of collection of taxes of all types; the issue of currency.
- The electoral systems of parliamentary assemblies and local assemblies;
- The creation of categories of public establishments;
- The fundamental guarantees granted to civil and military personnel employed by the State;
- The nationalization of enterprises and transfers of ownership in enterprises from the public to the private sector.
- The “law” or “statutes” set the fundamental principles of:
- The general organization of national defence;
- The self-government of territorial units, their powers and their resources;
- The preservation of the environment;
- The regime governing ownership, rights in rem and civil and commercial obligations;
- Labour law, trade-union law and social security.
Article 34 also stated that “Finance Acts shall determine the resources and obligations of the State in the manner and with the reservations specified in an institutional Act”, and that “social security financing Acts shall determine the general conditions for the financial balance of social security and, in the light of their revenue forecasts, shall determine expenditure targets”. Programme Acts were provided with the role of determining the objectives of the economic and social action of the State.
II. – THE EXTENSION OF THE LEGISLATIVE FIELD
The jurisprudence of the Constitutional Council has led to the de facto extension of the legislative field.
The Constitutional Council recalled that the field set down by article 34 was not exhaustive; other articles of the Constitution and indeed its preamble also lay down legislative matters (declaration of war, state of siege, the authorization of the ratification of certain treaties, the provisions of articles 72-74 concerning territorial units). The Charter for the Environment which refers to the “law” (in particular in articles 3, 4 and 7) also broadens the field of the legislator.
- In addition, the Constitutional Council prevents the legislator from abandoning or neglecting his own field:
- By stating that the legislator cannot take away the legal guarantee of a rule, a principle or an objective with a constitutional value (decision n° 85-185 DC of January 18, 1985);
- By considering that the legislator cannot rely on regulation to clarify certain provisions that the Constitution imposes on him to define himself. Thus through the penalty of “negative incompetence” the Constitutional Council has ensured for quite some time that the law does include certain characteristics.
- This is especially the case since, in an important decision on July 30, 1982 the Constitutional Council decided that “through articles 34 and 37, paragraph one, the Constitution had not intended to declare the unconstitutionality of a provision of a regulatory nature contained in a law, but had wished to recognize that beside the field reserved for legislative instruments there was a separate field in which the regulatory authority had competence. Thus would provide the Government, through the implementation of the specific procedures of articles 37, paragraph 2 and 41, with the power to ensure the protection of the regulatory field from the possibility of encroachment by the legislative field”.
- The framers of the constitutional reform finally decided to extend the scope of the legislative field in July 2008.
Thus article one henceforth permits the law to promote equal access by women and men not only to elective offices and posts but also to positions of professional and social responsibility.
Article 4 provides that the law shall guarantee the expression of diverse opinions and the equitable participation of political parties and groups in the democratic life of the Nation.
In accordance with article 51-2 the law shall determine the rules of organization and operation of committees of inquiry.
The following have been added to article 34:
- The freedom, diversity and the independence of the media;
- The system for electing representatives of French nationals living abroad;
- The conditions for holding elective offices and positions for the members of the deliberative assemblies of the territorial communities;
- The multiannual guidelines for public finances.
- The legislative field was extended at the same time to the setting-up of new procedures. Thus the following fall within the scope of the legislator:
- Appointments to the posts or positions, concerning which, on account of their importance in the guaranteeing of the rights and freedoms or the economic and social life of the Nation, the power of appointment vested in the President of the Republic shall be exercised after public consultation with the relevant standing committee in each assembly (article 13 of the Constitution);
- The composition, organization and working of the independent commission in charge of giving an opinion on the bills defining the constituencies for the election of Members of the National Assembly, or modifying the distribution of the seats of Members of the National Assembly or of Senators (article 25).
III. – THE PROTECTION OF THE LEGISLATIVE AND REGULATORY FIELDS RESPECTIVELY
The definition of the legislative field goes hand in hand with the recognition of an autonomous regulatory power and with provisions which allow the protection of the limits which have been so-defined between the remit of the legislator and the rest.
1. – The regulatory field
That which does not fall within the legislative field, falls within the regulatory field. Article 37 is thus an extension of article 34: it defines the regulatory field within which the Government may make decrees, i.e. everything which is not specifically listed in the legislative field.
Article 37 opens up a broad field of action to the regulatory power, not only as regards the application of the law but also in matters which are, in principle, excluded from the legislative field. This is why a distinction is drawn between the regulatory power dealing with the application of laws and the “autonomous” regulatory power which is defined by exclusion from matters which are for statute as listed in article 34. For example: civil procedure falls exclusively within the regulatory field, as well as the rules concerning fines as long as the penalties do not include custodial measures.
2. - Inadmissibility (article 41 of the Constitution)
Article 41 of the Constitution allows the Government, as well as, since the Constitutional Act of July 23, 2008, the President of the relevant assembly, to object, during the legislative procedure, to Members’ bills and to amendments which do not fall within the legislative field, on the grounds of inadmissibility.
In the case of a disagreement between the Government and the President of the relevant assembly the matter is referred to the Constitutional Council which delivers a judgement within eight days.
This procedure has been seldom used since the beginning of the Fifth Republic. Only 11 decisions concerning such admissibility have been taken by the Constitutional Council since 1958. Until recently it even appeared to be becoming extinct as the last decision dated from 1980. However the then President of the National Assembly, Mr. Jean-Louis Debré declared, in January and then again in April 2005, inadmissible, upon the request of the Government, according to article 41, amendments to the bill concerning postal activities (14587 during first reading and 101 during second reading).
3. - The procedure of “delegalisation”
When a law has been passed in an area falling within the field of regulation, a procedure of “delegalisation” can be implemented to enable the Government to modify its provisions.
In order to do this, it is necessary to refer the matter to the Constitutional Council, which, if it recognizes the regulatory nature of the text, will authorize its modification by decree. Texts of a legislative nature dating from before 1958 can be directly modified by decree after consultation of the Conseil d’État.
It should also be mentioned that, the Constitutional Council, through its decision n°2005-512 of April 21, 2005 (law concerning the principles for the future of schools), on which it had received a referral on the basis of article 61, paragraph 2 of the Constitution, recognized the possibility of noting the clear regulatory character of certain legislative provisions, without, at the same time, declaring them contrary to the Constitution. This statement permits the Government to modify such provisions and to repeal them by decree in the Conseil d’Etat without having to refer them previously to the Constitutional Council on the basis of paragraph 2 of article 37 of the Constitution.