File n° 27

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 needs 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. In each case, it 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 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 passed 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 Laws

Institutional laws 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 laws 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.

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

―  They may only be examined by the assembly in which they have been first tabled after a fifteen-day limit has expired following their tabling.

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

―   In the case of disagreement between the assemblies, the institutional law may only be passed on final reading by the National Assembly with the absolute majority of its members in favour. 

―    Institutional laws concerning the Senate must be passed in identical terms by the two assemblies.

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

3. – Finance laws

There are three types of finance laws.

―  The finance law 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” finance law whose aim is mainly to adjust the forecasts for resources for the current year or to modify expenditure and its distribution ;

―  The settlement law 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 Parliament has a time limit of 70 days to announce its decision (40 days for first reading at the National Assembly and 20 days for first reading at the Senate[1]). 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 finance laws

The social security finance laws 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.

These bills are submitted, first of all, to the National Assembly and are examined every year in the autumn, according to similar rules of procedure as those applicable to the finance bills. 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 limit, then the provisions of the bill may be enforced by ordinance.

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

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

5. – Programming laws

Programming laws 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 law 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. The procedure on planning laws has however fallen into abeyance and the last law of this type was that of July 10, 1989 which approved the tenth plan. 

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

As they are passed by universal suffrage, referendum laws are not monitored for constitutionality (decision of the Constitutional Council, November 6, 1962).

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 and to introduce the election of the President of the Republic by universal suffrage (constitutional law of November 6, 1962).

IV. –  the special case of enabling laws

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 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 law. At the end of the time limit mentioned in the enabling law passed by Parliament, the ordinances may no longer be modified for matters falling within the ambit of statute but by the law.