File n° 41

Article 89 of the Constitution of October 4, 1958 sets down the rules for the revision of the Constitution. Since coming into force, this procedure has been successfully used 20 times.

During the first years of the Fifth Republic, article 11 of the Constitution, which provides for the possibility of having recourse to a referendum in certain limited cases, was also used to revise the Constitution (28 October, 1962) so as to introduce the election by direct, universal suffrage of the President of the Republic. Nonetheless, this contested practice has not been used since the failure of the referendum of April 27, 1969 concerning regionalization and the abolition of the Senate.

The procedure laid down by article 89 requires consensus within the executive and within the legislature as well as between the executive and the legislature. The opposition of the President of the Republic, of the Prime Minister or of one of the two assemblies would be enough to prevent the entire revision process from succeeding.

I. – the revision procedure

1. – The initiative for revision

a)   The Power to Initiate

The power to initiate a constitutional revision is held by the President of the Republic, upon a proposal of the Prime Minister or by parliamentarians. In the first case, the bill is referred to as an executive constitutional bill and in the second as a parliamentary constitutional bill. In fact all twenty constitutional revisions carried out in accordance with the procedure of article 89 since 1958 have been based on executive constitutional bills.

b) Limitation of the Power to Initiate

Article 89 states that the republican form of government shall not be the subject of a revision.

It also states that no revision shall be initiated or continued where the integrity of the territory is jeopardized.

In addition, article 7 rules out the possibility of using the revision procedure provided for by article 89 in the case of the vacancy of the Presidency of the Republic. The right to initiate constitutional revision is thus one of the powers that an interim President of the Republic may not carry out. 

2. – Examination of the executive or parliamentary constitutional bills

Examination of the executive or parliamentary constitutional bills takes place before each assembly according to the ordinary law legislative procedure. If an ad-hoc committee is not set up (such a committee has never indeed been set up either at the National Assembly or at the Senate) the executive or parliamentary constitutional bills are referred to the Constitutional Law, Legislation and General Administration Committee although other committees may be consulted on the matter. In the National Assembly, the Foreign Affairs and Finance Committees were thus consulted on a bill which led to the revision of June 25, 1992 and added a title to the Constitution called “On the European Communities and the European Union”. The Committee for Cultural, Family and Social Affairs as well as the Finance Committee were also consulted on a bill which became the constitutional law of February 22, 1996 and introduced the social security finance law. 

The “shuttle” continues until the bill is passed in identical terms by the two assemblies which, in constitutional matters, have the same powers. Contrary to the normal legislative procedure, the Government cannot interrupt the “shuttle” by asking for the setting-up of a joint committee nor can it request the National Assembly to take a definitive decision.

3. – The definitive passing of the law

The definitive passing of the executive or parliamentary constitutional bill is subordinate to its approval by referendum. Nonetheless, in the case of executive constitutional bills only, the President of the Republic may rule out a referendum and submit such bills to the approval of the two assemblies gathered together in Congress.

Congress, whose Bureau is that of the National Assembly, is convened by a countersigned decree of the President of the Republic to meet in Versailles. As its sole aim is to approve the bill passed by the two assemblies, on behalf of the sovereign people, it may not of course amend it. Debates are thus limited to an explanation of vote put forward by each political group at the National Assembly and the Senate. After that the vote is taken. It is taken either by each voter being called to the rostrum or, since the modification in the Rules of Procedure of June 28, 1999, according to other procedures set down by the Bureau of the Congress. Thus since that date (when the Congress was called to vote twice on two constitutional bills on the same day for the first time), votes have been organized in eight polling stations set up in the immediate vicinity of the Congress Chamber. For the constitutional bill to be approved, it must receive a three-fifths majority of the votes cast.

It should be stated that 19 constitutional laws passed since 1958, in accordance with article 89, have been approved by Congress and only one has been put to referendum (the reduction of the presidential term to five years).

II. – constitutional revisions since 1958

― June 1960, according to a dispensatory revision procedure dealing with provisions concerning the “Community”, i.e. the geo-political unit linking France to its former African colonies (this procedure was repealed by the constitutional law of August 4, 1995) : 

• Constitutiona law no. 60-525 of June 4, 1960 aiming at completing the provisions of Title XXI of the Constitution (independence of African and Malagasy member states of the Commulnity). 

― October 1962, by referendum in accordance with article 11 of the Constitution :

• Law no. 62-1292 of November 1962, concerning the election of the President of the Republic by universal suffrage.

― December 1963, by the Congress :

• Constitutional law no. 63-1327 of December 30, 1963 modifying the provisions of article 28 of the Constitution (modification of the dates or parliamentary sessions).

― October 1974, by the Congress :

• Constitutional law no. 74-904 of October 29, 1974, revising article 61 of the Constitution (extension of the right of referral to the Constitutional Council for 60 M.P.s and 60 Senators).

― June 1976, by the Congress :

• Constitutional  law no. 76-527 of June 18, 1976 modifying article 7 of the Constitution (modification of the electoral campaign rules for presidential elections – in the case of the death or incapacity of a candidate).

― June 1992, by the Congress :

• Constitutional law no. 92-554 of June, 1992 adding to the Constitution the title : “On the European Communities and the European Union” (ratification of the Maastricht Treaty).

― July 1993, by the Congress :

• Constitutional law no. 93-952 of July 27, 1993 revising the Constitution of October 4, 1958 and modifying Titles VIII, IX, X and XVI (setting up the Court of Justice of the Republic in charge of judging the criminal liability of members of the Government).

― November 1993, by the Congress :

• Constitutional law no. 93-1256 of November 25, 1993 dealing with international agreements concerning the right to asylum.

― July 1995, by the Congress :

• Constitutional law no. 95-880 of August 4, 1995 extending the field of application of referenda, introducing a single ordinary parliamentary session, modifying the parliamentary system of immunity and repealing provisions concerning the Community and transitory provisions.

― February 1996, by the Congress :

•  Constitutional law no. 96-138 of February 22, 1996 introducing social security finance laws.

― July 1998, by the Congress :

•   Constitutional law no. 98-610 of July 20, 1998 concerning New Caledonia.

―  January 1999, by the Congress :

• Constitutional law no. 99-49 of January 25, 1999 modifying articles 88-2 and 88-4 of the Constitution (modification of provisions concerning the European Union).

― July 1999, by the Congress :

• Constitutional law no. 99-568 of July 8, 1999 inserting at Title VI of the Constitution, article 53-2 recognizing the International Criminal Court. 

• Constitutional law no. 99-569 of July 8, 1999 concerning equality between men and women.

― September - October 2000, by referendum :

• Constitutional law no. 2000-964 of October 2, 2000 concerning the length of the term of office of the President of the Republic.

― March 2003, by the Congress :

• Constitutional law no. 2003-267 of March 25, 2003 concerning the European Arrest Warrant.

• Constitutional law no. 2003-276 of March 28, 2003 concerning the decentralized organization of the Republic.

― March 2005, by the Congress :

• Constitutional law no. 2005-204 of March 1, 2005 modifying Title XV of the Constitution.

•  Constitutional law no. 2005-205 of March 1, 2005 concerning the environment charter.

― February 2007, by the Congress :

• Constitutional law no. 2007-237 of February 23, 2007 modifying article 77 of the Constitution.

• Constitutional law no. 2007-238 of February 23, 2007 modifying Title IX of the Constitution.

• Constitutional law no. 2007-239 of February 23, 2007 concerning the prohibition of the death penalty.