File n° 30 

Possessing the right to initiate legislation is one of the most powerful devices that the Government has in order to conduct the policy of the Nation in accordance with the mission assigned to it by article 20 of the Constitution.

Although the right to initiate legislation is held by both parliamentarians and the Prime Minister, more than 90% of the laws passed in France are initiated by Government (this figures drops to 80% when the laws authorizing the ratification or acceptance of international commitments, are not included).

This fact, which is a reflection of the primacy of the executive in the institutions of the Fifth Republic, is not limited to France. It can be explained, in most countries, by the expertise of the Governments which have available to them an administration with greater and more specialized human resources than Parliament could ever imagine having. 

I. – the drawing-up of a draft bill

1. – The arbitration phase

To begin with, the departments and the staffers of the relevant minister draw up a draft bill which must meet with the approval of all the ministers concerned.

In order to do this, interministerial meetings are held. These are chaired by a member of the Prime Minister’s staff and are attended by representatives of the ministers concerned.

In the case of disagreement, the Prime Minister makes a ruling. The secretariat of these meetings (from the invitations to attend to the distribution of the minutes) is carried out by the General Secretariat of the Government. More than one thousand such meetings take place every year.

2. – The consultation phase

The Government may request the opinion of the Economic and Social Council on every bill in its field of expertise.

In addition, the advice of various institutions is required for certain specific bills by the Constitution or by the law. Some examples are :

―  The opinion of the Economic and Social Council on draft bills on programmes of an economic or social nature ;

―  The opinion of the territorial assemblies of overseas units with a special status, on bills concerning them ;

―   The opinion of the Committee on Local Finances on bills dealing with the resources of territorial units.

3. –  Impact studies

Also, in accordance with article 39 of the Constitution, every draft bill is presented before the Conseil d’État. Since 1996 each draft bill is supported, at this stage, by an impact study whose aim is to assess its administrative, legal, social, economic and budgetary effects. This study is transmitted to Parliament along with the definitive bill.

4. – Examination of the bill by the Conseil d’État

a)  The Procedure

The Conseil d’État is both the highest administrative court and the legal adviser to the Government. It is in this second role that it is consulted by the Government on bills, in accordance with article 39 of the Constitution.

The bill is transmitted to it by the General Secretariat of the Government. The Conseil d’État passes it on to one of its four administrative sections (Interior Section, Finance Section, Public Works Section and Social Section) whose President appoints one or several rapporteurs. 

Using the Government draft bill as a basis, the rapporteur draws up his own bill. It is this bill which is debated by the relevant section.

The rapporteur’s bill is examined by the section in the presence of Government commissioners who are the representatives of the administration. The bill is first examined in its entirety and then article by article. The bill which emerges from this examination is, in turn, submitted to the general assembly of the Conseil d’État following the same procedure. It is then the task of the section rapporteur to defend the bill which emerged from the section stage, before the assembly.

This examination leads to the adoption by the general assembly of a definitive bill which represents the “opinion” the Conseil d’État gives to the Government. The general assembly may also reject the bill. This opinion, which is not binding on the Government, is reserved for its use only. The Government may, nonetheless transmit it unofficially to the rapporteurs of the bill at the National Assembly or the Senate, so as to allow them to better understand the intentions of the bill’s author. The Government may also choose to make this opinion public.

For the opinion of the Conseil d’État to enlighten the Government, it is necessary that all the questions posed by the bill which is in the end submitted to the Council of Ministers, be, first of all, examined by the Conseil d’État. If the Government introduces new provisions between the examination by the Conseil d’État and that by the Council of Ministers, these provisions, once they have been passed by Parliament, will risk censure by the Constitutional Council for having ignored the consultation procedure with the Conseil d’État provided for in article 39 of the Constitution (Constitutional Council, decision n° 2003-468 DC of April 3, 2003).

An emergency procedure may also be implemented. In this case, the standing committee of the Conseil d’État, made up of twenty members, examines the bill which has been submitted by the rapporteur without any prior examination in section. The use of this procedure is quite rare. 
 

 b)  The Field of Contribution

The examination of the bill by the Conseil d’État, deals with both the content and the form.

As regards the form, the Conseil d’État checks the structure of the bill, its compatibility with existing law and the respect of the rules of procedure.

As regards the content, the Conseil d’État examines the foreseeable effects of the bill in comparison with its aims. 

Examination of the bill by the Conseil d’État limits the risk of a partial or complete annulment by the Constitutional Council if the bill is referred to it after the vote by Parliament. The Conseil d’État in fact examines the compatibility of the bill with the Constitution. It also checks that the bill meets the international conventions to which France is party as well as European Union law.

The Government is not bound by this opinion, but ignoring it has real risks for it, as the jurisprudence of the Conseil d’État is largely based on that of the Constitutional Council.

II. – the adoption of the bill by the council of ministers
 and its tabling before one of the assemblies

The draft bill which emerges from the Conseil d’État is examined by the Council of Ministers and then becomes a bill in the strict meaning of the term. Generally, the bill is no longer modified by the Government at this stage.

The bill is then tabled before one of the two assemblies, i.e. transmitted by the General Secretariat of the Government to the Table Office of the assembly concerned. The choice of the assembly where the bill is tabled is free (except for certain bills, notably the finance bills and social security finance bills which must, first of all, be examined by the National Assembly).

The bill is made up of three elements :

―   The presentation of the case which explains the reason for the bill and its aims. This may contain a short explanation of each article ;

―   The “main body” which is the part of the bill put to a vote before the assemblies. In the case of framework laws and programme laws, it is supplemented by explanatory annexes ;

―   The impact study.

The bill is accompanied by a presentation decree to Parliament which states the bodies which have deliberated on it, determines the assembly before which the bill will be first tabled and appoints the members of Government who will support the bill before the two assemblies. This decree is signed by the Prime Minister and countersigned by the ministers so appointed. At this stage the Government can no longer modify the bill except by a “corrective letter”.

III. – the right of amendement

According to article 44 of the Constitution, the Government, as well as parliamentarians, has the right of amendment. This was an innovation introduced by the 1958 Constitution and is a corollary of the incompatibility of office of a member of Government and a parliamentarian.

Contrary to the right of amendments of a parliamentarian, the right of amendments held by Government is not submitted to any form of inadmissibility.

In addition, it is exonerated from the tabling time limits which apply to the amendments made by M.P.s or by Senators.