File n° 28

I. – the republican tradition :
the absolute supremacy of the “law”

During the Third Republic, the law was defined in a formal way : the law 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. 

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.

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.

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 entities ;

―  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.

“Statutes shall likewise determine 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 ;

―  Education ;

―  The regime governing ownership, rights in rem and civil and commercial obligations ;

―  Labour law, trade-union law and social security.

Article 34 also states that “finance Acts shall determine the resources and obligations of the State in the manner and with the reservations specified in an institutional Act”, that “social security finance 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” and that “programme Acts shall determine the objectives of the economic and social action of the State”.

Article 37 is complementary to article 34. It defines the regulatory field, in which the Government can make decrees, i.e. everything that is not expressly included in the legislative field.

The range of matters which fall within the field of action of the legislator, such as they are listed in article 34 of the Constitution is indeed very broad. However that field of action is no longer unlimited, as it was during the previous Republics.

Article 37 opens up to the regulatory power a broad field of action, not only in the implementation of the law but also in matters a priori excluded from the legislative field. This is the reason for the distinction between the regulatory power for the implementation of laws and the “autonomous” regulatory power which is defined by excluding those elements of the legislative field listed in article 34. For example, civil procedure now falls exclusively within the regulatory field as well as the system of fines as long as the penalties provided for are not custodial.

II. – the extension of the legislative field

The jurisprudence of the Constitutional Council has led to the de facto extension of the legislative field :

―   It recalled that the field set down by article 34 was not exhaustive ; other articles of the Constitution and 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) ;

―   It brought into perspective the distinction created by article 34 of the Constitution between “determining the rules” and “determining the fundamental principles” ;

―   It strictly limited the field of autonomous regulation.

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 only rely on regulation to clarify certain provisions in the very “worthy” matters of public freedom. The Constitutional Council thus created a “negative incompetence” (decision n° 82-132 DC of January 16, 1982 Nationalisations : “Considering that, if articles 4, 16 and 30 of the law have as their objective the determination, in the specific case that they deal with, of the rules according to which certain transfers can take place, their provisions attribute only to the bodies of national companies a discretionary power of assessment and of decision-making which is void of any monitoring and is so broad that the so-criticized provisions could not be considered as satisfying the requirements of article 34 of the Constitution”). 

In addition, in an important decision taken on July 30, 1982, the Constitutional Council considered that the procedure of article 61 allowing laws to be referred to it before their promulgation so that it could make a decision on their conformity to the Constitution, could not be used by Government to protect its regulatory power.

III. – The protection of the legislative field

This is ensured by two procedures.

 1. – Inadmissibility (article 41 of the Constitution)

Article 41 of the Constitution allows the Government 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 such circumstances, the matter is referred to the President of the National Assembly who makes a ruling. If he finds himself in disagreement with the Government position, the matter is referred to the Constitutional Council which delivers a ruling within eight days.

This procedure has been seldom used since the beginning of the Fifth Republic. Only 11 decisions concerning such inadmissibility 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 President of the National Assembly, Mr. Jean-Louis Debré wished to give it back all its vitality. Upon the request of the Government, he twice declared, in January and April 2005, inadmissible, according to article 41, amendments to the bill concerning postal activities (14,587 during first reading and 101 during second reading). It should also be noted that the President of the Constitutional Council, Mr. Pierre Mazeaud, declared at the beginning of the New Year 2005, that, “we must, from now on, fight more actively against the intrusion of the law in the field of regulation…we all have some responsibility in this matter which, since the 1970s, has seen the law become bloated with regulatory texts. Perhaps the Constitutional Council should carry out its own auto-criticism in this regard”. This declaration might mean that a development in the jurisprudence of the Constitutional Council could be expected in this area (cf. infra).

 2. –   The procedure of “delegalisation”
(article 37, paragraph 2 of the Constitution)

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 must be underlined that the Constitutional Council, in a decision of April 21, 2005 concerning the orientation law on the future of schooling, without going back on its own jurisprudence of 1982, did nonetheless come up with an original solution to have the legislative field respected : it decided that the regulatory provisions contained within the law, without being declared contrary to the Constitution, could be modified by decree without prior referral by the Government to the Conseil d’État, in accordance with article 37 of the Constitution.