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Government of France
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The government of France is a semi-presidential system determined by the French Constitution of the fifth Republic, in which the nation declares itself to be "an indivisible, secular, democratic, and social Republic". The constitution provides for a separation of powers and proclaims France's "attachment to the Rights of Man and the principles of national sovereignty as defined by the Declaration of 1789."
The national government of France is divided into an executive, a legislative and a judicial branch.
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The government of France is a semi-presidential system determined by the French Constitution of the fifth Republic, in which the nation declares itself to be "an indivisible, secular, democratic, and social Republic". The constitution provides for a separation of powers and proclaims France's "attachment to the Rights of Man and the principles of national sovereignty as defined by the Declaration of 1789."
The national government of France is divided into an executive, a legislative and a judicial branch. The President shares executive power with his appointee, the Prime Minister. The cabinet globally, including the Prime Minister, can be revoked by the National Assembly, the lower house of Parliament, through a "censure motion"; this ensures that the Prime Minister is always supported by a majority of the house.
Parliament comprises the National Assembly and the Senate. It passes statutes and votes on the budget; it controls the action of the executive through formal questioning on the floor of the houses of Parliament and by establishing commissions of enquiry. The constitutionality of the statutes is checked by the Constitutional Council, members of which are appointed by the President of the Republic, the President of the National Assembly, and the President of the Senate. Former Presidents of the Republic also are members of the Council.
The independent judiciary is based on a civil law system which evolved from the Napoleonic codes. It is divided into the judicial branch (dealing with civil law and criminal law) and the administrative branch (dealing with appeals against executive decisions), each with their own independent supreme court of appeal: the Court of Cassation for the judicial courts and the Conseil d'Etat for the administrative courts. The French government includes various bodies that check abuses of power and independent agencies.
France is a unitary state. However, the various legal subdivisions—the régions, départements and communes—have various attributions, and the national government is prohibited from intruding into their normal legal operations.
France is a founding member of the European Community and later the European Union. As such, France has transferred part of its sovereignty to European institutions, as provided by its constitution. The French government therefore has to abide by European treaties, directives and regulations.
Constitution
A popular referendum approved the constitution of the French Fifth Republic in 1958, greatly strengthening the authority of the presidency and the executive with respect to Parliament.
The constitution does contain a bill of rights in itself, but its preamble mentions that France should follow the principles of the Declaration of the Rights of Man and of the Citizen, as well as those of the preamble to the constitution of the Fourth Republic. This has been judged to imply that the principles laid forth in those texts have constitutional value, and that legislation infringing on those principles should be found unconstitutional if a recourse is filed before the Constitutional Council. Also, a recent modification of the Constitution has added a reference in the preamble to an Environment charter that has full constitutional value.
Among these foundational principles, one may cite: the equality of all citizens before law, and the rejection of special class privileges such as those that existed prior to the French Revolution; presumption of innocence; freedom of speech; freedom of opinion including freedom of religion; the guarantee of property against arbitrary seizure; the accountability of government agents to the citizenry.
Executive branch
France has an original system with an executive branch headed by two officials: the President and the Prime Minister.
President of the Republic
Under the constitution, the President was originally elected for a seven-year term; this has been reduced to five years. There is no term limit. The President names the Prime Minister, presides over the gouvernement (cabinet of ministers), commands the armed forces, and concludes treaties.
The President may submit questions to national referendums and can dissolve the National Assembly.
All his powers are subject to countersigning ("contreseing") by the Minister, except in a few cases such as the dissolution of the National Assembly.
In certain emergencies the President may assume special, comprehensive powers. However, in normal times, the President may pass neither legislation nor regulations, though, of course, if the Parliament is from his political side, he may strongly suggest the adoption of certain legislation, or request his Prime Minister to take such regulation.
In the original 1958 constitution, the President was elected by an electoral college of elected officials. However, in 1962, Charles de Gaulle obtained, through a referendum, an amendment to the constitution whereby the president would be directly elected by citizens. Given France's runoff voting system, this means that the presidential candidate is required to obtain a nationwide majority of non-blank votes at either the first or second round of balloting, which presumably implies that the president is somewhat supported by at least half of the voting population; this gives him considerable legitimacy. Despite his somewhat restricted de jure powers, the president thus enjoys considerable aura and effective power.
As a consequence, the President is the preeminent figure in French politics. He appoints the Prime Minister; though he may not de jure dismiss him, if the Prime Minister is from the same political side, he can, in practice, have him resign on demand (and it is known that Prime Ministers are asked to sign a non-dated dismissal letter before being nominated). He appoints the ministers, ministers-delegate and secretaries. When the President's political party or supporters control parliament, the President is the dominant player in executive action, choosing whomever he wishes for the government, and having it follow his political agenda (parliamentary disagreements do occur, though, even within the same party).
However, when the President's political opponents control parliament, the President's dominance can be severely limited, as he must choose a Prime Minister and cabinet who reflect the majority in parliament, and who will implement the agenda of the parliamentary majority. When parties from opposite ends of the political spectrum control parliament and the presidency, the power-sharing arrangement is known as cohabitation. Cohabitation used to happen from time to time before 2002, because the mandate of the President was 7 years and the mandate of the Assemblée Nationale was 5 years. Now that the mandate of the President has been shortened to 5 years, and that the elections are separated by only a few months, this is less likely to happen.
Nicolas Sarkozy became President on 2007 16 May, succeeding Jacques Chirac.
Government
The government is headed by the Prime Minister. It has at its disposal the civil service, the government agencies, and the armed forces. (The term "cabinet" is rarely used to describe the gouvernement, even in translation, as it is used in French to mean a minister's private office, composed of politically-appointed aides. In French, the word gouvernement can refer to government in general, but generally refers to the group of ministers.)
The government is responsible to Parliament, and the National Assembly may pass a motion of censure, forcing the resignation of the cabinet. This, in practice, forces the gouvernement to be from the same political stripe as the majority in the Assembly. Ministers have to answer questions from members of Parliament, both written and oral; this is known as the questions au gouvernement (questions to the government). In addition, ministers attend meetings of the houses of Parliament when laws pertaining to their areas of responsibility are being discussed.
Government ministers cannot pass legislation without parliamentary approval, though the Prime Minister may issue autonomous regulations or subordinated regulations (décrets d'application) provided they do not infringe on the Parliament domain, as detailed in the constitution. Ministers, however, can propose legislation to Parliament; since the Assembly is from the same political stripe as the ministers, such legislation is, in general, very likely to pass. However, this is not guaranteed, and, on occasion, the opinion of the majority parliamentarians may differ significantly from those of the executive, which often results in a large number of amendments.
The Prime Minister can engage the responsibility of his government on a law, under article 49-3 of the Constitution. The law is then considered adopted unless the National Assembly votes a motion of censure, in which case the law is refused and the government has to resign. As of 2006, the last time this article was invoked was for the "First Employment Contract" proposed by Prime Minister Dominique de Villepin, a move that greatly backfired.
Traditionally, the gouvernement comprises members of three ranks. Ministers are the most senior members of the government; ministers-delegate (ministres délégués) assist ministers in particular areas of their portfolio; ministers of state (secrétaires d'État) assist ministers in less important areas, and attend cabinet meetings only occasionally. Before the Fifth Republic, some ministers of particular political importance were called "secretaries of state" (ministres d'État); the practice has continued under the Fifth Republic in a purely honorific fashion: ministers styled Secretary of State are supposed to be of a higher importance in the gouvernement.
The number of ministries and the splitting of responsibilities and administrations between them varies from government to government. While the name and exact areas of responsibility of each ministry may change, one generally finds at least:
- Ministry for the Economy, Industry and Employment (taxes, budget),
- Ministry of the Interior (law enforcement, relationships with local governments),
- Ministry of Justice and Keeper of the Seals (prisons, running the court system, supervision of the prosecution service)
- Ministry of National Education,
- Ministry of Defence,
- Ministry of Foreign Affairs,
- Ministry of Transportation.
(For more on French ministries, see French government ministers)
The gouvernement has a leading role in shaping the agenda of the houses of Parliament. It may propose laws to Parliament, as well as amendments during parliamentary meetings. It may make use of some procedures to speed up parliamentary deliberations.
The cabinet has weekly meetings (usually on Wednesday mornings), chaired by the President, at the Élysée Palace.
Following the election of Nicolas Sarkozy as President of the French Republic, François Fillon replaced Dominique de Villepin as the French Prime Minister on 17 May 2007.
Executive-issued regulations and legislation
The French executive has a limited power to establish regulation or legislation. (See below for how such regulations or legislative items interact with statute law.)
Decrees and other executive decisions
Only the President and Prime Minister sign decrees (décrets), which are akin to US executive orders. Decrees can only be taken following certain procedures and with due respect to the constitution and statute law.
- The President signs decrees appointing and dismissing most senior civil and military servants, for positions listed in the Constitution or in Statutes. He also signs decrees establishing some regulations (décrets en conseil des ministres). All such decrees must be countersigned by the Prime Minister and the ministers concerned.
- The Prime Minister signs decrees establishing regulations, which the concerned ministers countersign. In some areas, they constitute primary legislation, in some others they must be subordinate to an existing statute. In some cases, statutes impose a compulsory advisory review by the Conseil d'État (décrets en Conseil d'État), as opposed to décrets simples.
The individual ministers issue ministerial orders (arrêtés) in their fields of competence, subordinate to statutes and decrees.
Contrary to a sometimes used polemical cliché, that dates from the third republic, with its decrees-law (décrets-lois), neither the president nor the prime minister may rule by decree (outside of the narrow case of presidential emergency powers).
Ordinances
The executive cannot issue decrees in areas that the Constitution puts under the responsibility of legislation, issued by Parliament. Still, Parliament may, through a habilitation law, authorize the executive to issue ordinances (ordonnances), with legislative value, in precisely defined areas. Habilitation laws specify the scope of the ordinance. After the ordinance is issued, Parliament is asked whether it wants to ratify it. If Parliament votes no to ratification, the ordinance is cancelled. Most of the time, ratification is made implicitly or explicitly through a Parliament act that deals with the subject concerned, rather than by the ratification act itself.
The use of ordinances is normally reserved for urgent matters, or for technical, uncontroversial texts (such as the ordinances that converted all sums in French Francs to Euros in the various laws in force in France). There is also a practice to use ordinances to transpose European Directives into French law, in order to avoid late transposition of Directive, which is often happening and is criticized by the EU Commission. Ordinances are also used to codify law into codes, in order to rearrange them for the sake of clarity without substantially modifying them. They are also sometimes used to push controversial legislation through, such as when Prime Minister Dominique de Villepin created new forms of work contracts in 2005, using a procedure known as 49-3. The use of ordinances in such contexts is then criticized by the opposition as anti-democratic, and demeaning to Parliament. It must be said, however, that since the National Assembly can dismiss the government through a motion of censure, the government necessarily relies on a majority in Parliament, and this majority would be likely to adopt the controversial law anyway.
Internal limits of the executive branch; checks and balances
The general rule is that government agencies and the civil service are at the disposal of the gouvernement, or cabinet. However, various agencies are independent agencies (autorités administratives indépendantes) that have been statutorily excluded from the executive's authority, although they belong in the executive branch.
These independent agencies have some specialized regulatory power, some executive power, and some quasi-judicial power. They are also often consulted by the government or the French Parliament seeking advice before regulating by law. They can impose sanctions that are named "administrative sanctions" sanctions administratives. However, their decisions can still be contested face to a judicial court or an administrative court.
Some examples of independent agencies:
- The Banque de France, the central bank, is independent (). This was a prerequisite for integrating the European System of Central Banks.
- The Electronic Communications & Posts Regulation Authority (), which was previously named Telecommunication Regulation Authority (Autorité de régulation des télécommunications (ART)), is an independent administrative authority for the open markets of telecommunications and postal services.
- The Energy Regulation Commission () is an independent administrative authority for the open markets of gas and electricity.
- The Financial Markets Authority () regulates securities markets.
- The Higher Council of the Audiovisual () supervises the granting and withdrawing of emission frequencies for radio and TV, as well as public broadcasting.
- The National Commission on Campaign Accounts and Political Financing ( ) regulates the financing and spending of political parties and political campaign.
Public media corporations should not be influenced in their news reporting by the executive in power, since they have the duty to supply the public with unbiased information. For instance, the Agence France-Presse (AFP) is an independent public corporation. Its resources must come solely from its commercial sales. The majority of the seats in its board are held by representatives of the French press.
The government also provides for watchdogs over its own activities; these independent administrative authorities are headed by a commission typically composed of senior lawyers or members of the Parliament. Each of the two chambers of the Parliament often has its own commission, but sometimes they collaborate to create a single Commission nationale mixte paritaire. For example:
- The National Commission for Computing & Freedom (); public services must request authorization from it before establishing a file with personal information, and they must heed its recommendations; private bodies must only declare their files; citizens have recourse before the commission against abuses.
- The National Commission for the Control of Security Interceptions (Commission nationale de contrôle des interceptions de sécurité (CNCIS)); the executive, in a limited number of circumstances concerning national security, may request an authorization from the commission for wiretaps (in other circumstances, wiretaps may only be authorized within a judicially-administered criminal investigation).
In addition, the duties of public service limit the power that the executive has over the French Civil Service. For instance, appointments, except for the highest positions (the national directors of agencies and administrations), must be made solely on merit or time in office, typically in competitive exams. Certain civil servants have statuses that prohibit executive interference; for instance, judges and prosecutors may be named or moved only according to specific procedures. Public researchers and university professors enjoy academic freedom; by law, they enjoy complete freedom of speech within the ordinary constraints of academia.
Some important directorates and establishments
The government also provides specialized agencies for regulating critical markets or limited resources, and markets created by regulations. Although, as part of the administration, they are subordinate to the ministers, they often act with high independence.
- The General Directorate of Competition, Consumption & Repression of Frauds () regulates and controls the legality and safety of products and services available on the markets open to competition for all economical actors and private consumers, and can deliver administrative sanctions in case of abuses.
- The General Directorate of Civil Aviation () regulates the traffic in the national air space and delivers the authorizations for airways companies and other private or public organizations and people.
- The National Agency for Employment () maintained a public registry for the allocation of social benefits to unemployed people (but now a single registry is shared with the independent ASSEDIC paying them, a joint association of employers and workers unions), assists them as well as employers seeking people, and controls them. The French State names its general director and the Paliament provides for its finances and personnel, but it only owns one third of the seats at its decision board of directors (the other seats are shared equally by unions of employers and workers).
- The National Agency of Frequencies (), a public establishment of an administrative character, regulates and maintains the allocation of spectral radiofrequencies resources along with other international frequencies regulators and national regulators (the CSA and ARCEP) or public ministries, controls the operators on the national territory, and publishes compliance standards for manufacturers of radioelectric equipments.
Organization of government services
Each ministry has a central administration (administration centrale), generally divided into directorates. These directorates are usually subdivided into divisions or sub-directorates. Each direction is headed by a director, named by the President in Council. The central administration largely stays the same regardless of the political tendency of the executive in power.
In addition, each minister has a private office, which is composed of members whose nomination is politically determined, called the cabinet. They are quite important and employ numbers of highly qualified staff to follow all the administrative and political affairs. They are powerful, and have been sometimes considered as a parallel administration, especially, but not only, in all matters that are politically sensitive. Each cabinet is led by a chief of staff named directeur de cabinet.
The state also has distributive services spread throughout French territory, often reflecting divisions into régions or départements. The prefect, the representative of the national government in each région or département, supervises the activities of the distributive services in his jurisdiction. Generally, the services of a certain administration in a région or département are managed by a high-level civil servant, often called director, but not always; for instance, the services of the Trésor public (Treasury) in each département are headed by a treasurer-paymaster general, appointed by the President of the Republic. In the last several decades, the departmental conseil général (see "Local Government" below) has taken on new responsibilities and plays an important role in administrating government services at the local level.
The government also maintains public establishments. These have a relative administrative and financial autonomy, in order to accomplish a defined mission. They are attached to one or more supervising authorities. These are classified into several categories:
- public establishments of an administrative character, including, for instance:
- universities, and most public establishments of higher education;
- etablishments of a research and technical character, such as CNRS or INRIA;
- public establishments of an industrial and commercial character, including, for instance, CEA and Ifremer.
One essential difference is that in administrations and public establishments of an administrative character operate under public law, while establishments of an industrial and commercial character operate mostly under private law. A consequence is that in the former, permanent personnel are civil servants, while normally in the latter, they are contract employees.
In addition, the government still owns and controls all the shares or the majority of shares of some companies, like Electricité de France, SNCF or Areva.
Social security organizations, though established by statute and controlled and supervised by the state, are not operated nor directly controlled by the national government. Instead, they are managed by the "social partners" (partenaires sociaux) – unions of employers such as the MEDEF and unions of employees. Their budget is separate from the national budget.
Legislative branch
The Parliament of France, making up the legislative branch, consists of two houses: the National Assembly and the Senate; the Assembly is the pre-eminent body.
Parliament meets for one 9-month session each year: under special circumstances the president can call an additional session. Although parliamentary powers have diminished from those existing under the Fourth Republic, the National Assembly can still cause a government to fall if an absolute majority of the total Assembly membership votes to censure. It has never happened since the establishment of the Fifth Republic in 1958.
The cabinet has a strong influence in shaping the agenda of Parliament. The government also can link its term to a legislative text which it proposes, and unless a motion of censure is introduced (within 24 hours after the proposal) and passed (within 48 hours of introduction - thus full procedures last at most 72 hours), the text is considered adopted without a vote.
Members of Parliament enjoy parliamentary immunity. Both assemblies have committees that write reports on a variety of topics. If necessary, they can establish parliamentary enquiry commissions with broad investigative power.
National Assembly
The National Assembly is the principal legislative body. Its 577 deputies are directly elected for 5-year terms in local majority votes, and all seats are voted on in each election.
The National Assembly may force the resignation of the executive cabinet by voting a motion of censure. For this reason, the prime minister and his cabinet are necessarily from the dominant party or coalition in the assembly. In the case of a president and assembly from opposing parties, this leads to the situation known as cohabitation. While motions of censure are periodically proposed by the opposition following government actions that it deems highly inappropriate, they are purely rhetorical; party discipline ensures that, throughout a parliamentary term, the government is never overthrown by the Assembly.
Latest election
Senate
Senators are chosen by an electoral college of about 145,000 local elected officials for 6-year terms, and one half of the Senate is renewed every 3 years. Before the law of 30 July 2004, senators were elected for 9 years, renewed by thirds every 3 years. There are currently 321 senators, but there will be 346 in 2010; 304 represent the metropolitan and overseas départements, five the other dependencies and 12 the French established abroad.
The Senate's legislative powers are limited; on most matters of legislation, the National Assembly has the last word in the event of a disagreement between the two houses.
Since the beginning of the Fifth Republic, the Senate has always had a right-wing majority. This is mostly due to the over-representation of small villages compared to big cities. This, and the indirect mode of election, prompted socialist Lionel Jospin, who was prime minister at the time, to declare the Senate an "anomaly".
Legislation adoption procedures
Statute legislation may be proposed by the government (council of ministers), or by members of Parliament. In the first case, it is a projet de loi; in the latter case, a proposition de loi. All projets de loi must undergo compulsory advisory review by the Conseil d'État before being submitted to parliament. Propositions de loi cannot increase the financial load of the state without providing for funding.
Projets de loi start in the house the government chooses (except in some narrow cases), propositions de loi start in the house where they originated. After the house has amended and voted on the text, it is sent to the other house, which can also amend it. If the houses do not choose to adopt the text in identical terms, it is sent before a commission made of equal numbers of members of both houses, which tries to harmonize the text. If it does not manage to do so, the National Assembly can vote the text and have the final say on it (except for laws related to the organization of the Senate).
The law is then sent to the President of France for signature. At this point, the President of France, the speaker of either house or a delegation of 60 deputies or 60 senators can ask for the text to undergo constitutional review before being put into force; it is then sent before the Constitutional Council. The President can also, only once per law and with the countersigning of the Prime minister, send the law back to parliament for another review. Otherwise, the President must sign the law. After being countersigned by the Prime minister and the concerned ministers, it is then sent to the Journal Officiel for publication.
Budget
- See also: Taxation in France.
The Finance Bills (lois de finances) and the financing law of social security (lois de financement de la sécurité sociale) are special bills, voted following specific procedures.
Because of the importance of allowing government and social security organizations to proceed with the payment of their suppliers, employees, and recipients, without risk of a being stopped by parliamentary discord, these bills are specially constrained. In the past, parliamentarians would often add unrelated amendments (cavaliers budgétaires) to the finance bills, in order to get such amendments passed – because of the reduced time in which the budget is examined. However, these are nowadays considered unconstitutional. If Parliament cannot agree on a budget within some specified reasonable bounds, the government is entitled to adopt a budget through ordinances: this threat prevents parliamentarians from threatening to bankrupt the executive.
The way the Finance Bill is organized, and the way the government has to execute the budget, were deeply reformed in 2001 by the Loi organique n°2001-692 du 1er août 2001 relative aux lois de finances, generally known as the LOLF. Because of the major changes involved, the application of the law was gradual, and the first budget to be fully passed under LOLF will be the 2006 budget, passed in late 2005.
The LOLF divides expenses according to identifiable "missions" (which can be subdivided into sub-missions etc.). The performance of the administration and public bodies will be evaluated with respect to these missions.
The budget of the national government was forecast to be 288.8 billion Euro in 2005. This includes neither Social Security, nor the budgets of local governments.
Multiple mandates
It has long been customary for members of parliaments to have, in addition to their mandate as deputy or senator, some local mandate, such as mayor of a city; thus, the phrases "deputy-mayor" (député-maire) and "senator-mayor" (sénateur-maire). This is known as the cumul of electoral mandates. Proponents of the cumul allege that having local responsibilities ensures that members of parliament stay in contact with the reality of their constituency; also, they are said to be able to defend the interest of their city etc. better by having a seat in parliament.
In recent years, the cumul has been increasingly criticized. Critics contend that lawmakers that also have some local mandate cannot be assiduous to both tasks; for instance, they may neglect their duties to attend parliamentary sittings and commission in order to attend to tasks in their constituency. The premise that holders of dual office can defend the interest of their city etc. in the National Parliament is criticized in that national lawmakers should have the national interest in their mind, not the advancement of the projects of the particular city they are from. Finally, this criticism is part of a wider criticism of the political class as a cozy, closed world in which the same people make a long career from multiple positions.
As a consequence, laws that restrict the possibilities of having multiple mandates have been enacted.
Economic and Social Council
The Economic and Social Council is a consultative assembly. It does not play a role in the adoption of statutes and regulations, but advises the lawmaking bodies on questions of social and economic policies.
The executive may refer any question or proposal of social or economic importance to the Economic and Social Council.
The Economic and Social Council publishes reports, which are sent to the Prime Minister, the National Assembly, and the Senate. They are published in the Journal Officiel.
Judiciary
France's political system, in keeping with rule of law, has an independent judiciary, meaning that it has court systems whose decisions are not de jure controlled by the executive or legislative branches.
France has a system of civil law, but jurisprudence plays an important role similar to that of case law.
The most distinctive feature of the French judicial system is that it is divided into the judicial and the administrative orders of courts.
Judicial Order
The Judicial Order of Courts judges civil and penal cases. It consists of, in first instance: courts, courts of appeal, and the Cour de cassation at its helm.
Judges are civil servants, but enjoy special statutory protection from the executive. They may not be moved or promoted without their consent. Their careers are overseen by the High Council of the Magistracy.
The prosecution service, on the other hand, responds to the Minister of Justice. This has in the past led to suspicions of pressures to drop litigation against politicians suspected of corruption, and the topic of the status of the prosecutors comes up regularly in political discussions.
Trial by jury is used in the judgment of the most severe crimes, by the Courts of Assizes. The full court – 3 judges and 9 jurors (12 jurors on appeal) – determines first guilt, then, if guilty, the sentence. Jurors are drawn at random from voters' rolls.
Pre-judgment proceedings are inquisitorial, but the actual court appearance is rather adversarial.
The burden of proof in criminal proceedings is on the prosecution, and the accused is constitutionally presumed innocent until declared guilty.
Certain specialized courts of first instance are staffed with elected judges. For instance, courts deciding cases of labor law are staffed with an equal number of judges from employers' unions and employees' unions. A similar arrangement holds for courts dealing with rural land leases.
Administrative Order
The Administrative Order of Courts judges most litigations against public bodies. It consists of administrative tribunals, administrative courts of appeals, and the Conseil d'État at litigation at its helm.
The Conseil d'État hears cases against executive decisions and has the power to squash governmental decisions and regulations if they do not conform to applicable constitutional or statutory law, or to the general principles of law.
The proceedings are essentially written and inquisitorial, with both parties being called by the judges to explain themselves in writing.
Conflicts between the judicial order of courts and the administrative order of courts are settled by a special court named Tribunal des conflits, made up of a same number of judges from the Cour de cassation and from the Conseil d'Etat.
Constitutional Council
Neither the judiciary nor the administrative courts can rule upon the constitutionality of statutory law. While technically not part of the judiciary, the Constitutional Council examines legislation and decides whether it conforms to the constitution and treaties, prior to its promulgation: in all cases for organic laws, and only under referral from the President of the Republic, the President of the Senate, the President of the National Assembly, the Prime Minister or 60 senators or 60 members of the National Assembly for normal laws. The Constitutional Council may refuse statutes as unconstitutional, including if they contradict the principles of the 1789 Declaration of the Rights of Man and of the Citizen (cited in the preamble of the Constitution) or the European Convention on Human Rights (accepted by treaty).
The Constitutional Council comprises members appointed for nine years (three every three years): three members appointed by the President, three members appointed by the President of the National Assembly, and three appointed by the President of the Senate.
Financial jurisdictions
The Court of Accounts (Cour des Comptes), assisted by regional accounting courts, audits the finances of the State, public institutions (including other jurisdictions) and public bodies. It publishes a yearly official report and may refer criminal matters to prosecutors. It can also directly fine public accountants for mishandling of funds, and refer civil servants who misused funds to the Court of Financial and Budgetary Discipline.
The Court and the chambers do not judge the accountants of private organizations. However, in some circumstances, they may audit their accounting, especially when they are candidate to, or are operating have a concession of a public service or a service requiring the permanent use of the public domain, or when they are candidates for public markets open to competition though calls of offers. The Court is often sollicitated by various state agencies, parlementary commissions and public regulators, but it can also be invoked by any French citizen or organization operating in France.
The Court itself is controlled by financial commissions of the two chambers of the French Parlement who provides its working budget in the yearly Act of finances.
Ombudsman
In 1973 the position of médiateur de la République (the Republic's ombudsman) was created. The ombudsman is charged with solving, without the need to a recourse before the courts, the disagreements between citizens and the administrations and other entities charged with a mission of a public service; proposing reforms to the Government and the administrations in order to further these goals; and actively participating in the international promotion of human rights.
The ombudsman is appointed for a period of 6 years by the President of the Republic in the Council of Ministers. He cannot be removed from office and is protected for his official actions by an immunity similar to parliamentary immunity. He does not receive or accept orders from any authority. The current ombudsman is Jean-Paul Delevoye.
French law
Basic principles
France uses a civil law system; that is, law arises primarily from written statutes; judges are not to make law, but merely to interpret it (though the amount of judge interpretation in certain areas makes it equivalent to case law).
Many fundamental principles of French Law were laid in the Napoleonic Codes. Basic principles of the rule of law were laid in the Napoleonic Code: laws can only address the future and not the past (ex post facto laws are prohibited); to be applicable, laws must have been officially published (see Journal Officiel).
In agreement with the principles of the Declaration of the Rights of Man and of the Citizen, the general rule is that of freedom, and law should only prohibit actions detrimental to society. As Guy Canivet, first president of the Court of Cassation, said about what should be the rule in French law:
- Freedom is the rule, and its restriction is the exception; any restriction of Freedom must be provided for by Law and must follow the principles of necessity and proportionality.
That is, law may lay out prohibitions only if they are needed, and if the inconveniences caused by this restriction do not exceed the inconveniences that the prohibition is supposed to remedy.
France does not recognize religious law, nor does it recognize religious beliefs as a motivation for the enactment of prohibitions. As a consequence, France has long had neither blasphemy laws nor sodomy laws (the latter being abolished in 1789).
Statute law vs executive regulations
French law differentiates between statutes (loi), generally adopted by the legislative branch, and regulations (règlement, instituted by décrets), issued by the prime minister. There also exist secondary regulation called arrêtés, issued by ministers, subordinates acting in their names, or local authorities; these may only be taken in areas of competency and within the scope delineated by primary legislation. There are also more and more regulations issued by independent agencies, especially relating to economic matters.
According to the Constitution of France (article 34):
Statutes shall concern:
- 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.
Statutes shall likewise determine the rules concerning:
- 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.
Statutes shall determine the fundamental principles of:
- The general organization of national defence;
- The self-government of territorial units, their powers and their resources;
- Education;
- The regime governing ownership, rights in rem, and civil and commercial obligations;
- Labour law, trade-union law and social security.
Finance Acts shall determine the resources and obligations of the State in the manner and with the reservations specified in an institutional Act.
Social Security Finance Acts shall determine the general conditions for the financial balance of Social Security and, in light of their revenue forecasts, shall determine expenditure targets in the manner and with the reservations specified in an institutional Act.
Programme Acts shall determine the objectives of the economic and social action of the State.
The provisions of this article may be enlarged upon and complemented by an organic law.
Other areas are matters of regulation. This separation between law and regulation is enforced by the Conseil constitutionnel: the government can, with the agreement of the Conseil constitutionnel, modify by decrees the laws that infringe on the domain of regulations. At the same, the Conseil d'État nullifies decrees that infringe on the domain of the law.
Hierarchy of norms
When courts have to deal with incoherent texts, they apply a certain hierarchy: a text higher in the hierarchy will overrule a lower text. The general rule is that the Constitution is superior to laws which are superior to regulations. However, with the intervention of European law and international treaties, and the quasi-case law of the administrative courts, the hierarchy may become somewhat unclear. The following hierarchy of norms should thus be taken with due caution:
- The French Constitution (includes the general principles of constitutional values recognized by the laws of the Republic (as defined by the Constitutional Council))
- European Union Treaties, Directives and Regulations
- International Treaties and Agreements
- organic laws
- normal laws
- general principles of law (as defined by the Conseil d'État)
- decrees taken with advisory review by the Conseil d'État
- decrees taken without review by the Conseil d'État
- arrêtés
- of several ministers
- of a single minister
- of other authorities
- regulations and decisions by independent agencies.
Local government
Traditionally, decision-making in France used to be highly centralized, with each of France's départements headed by a prefect appointed by the central government, in addition to the conseil général, a locally elected council. However, in 1982, the national government passed legislation to decentralize authority by giving a wide range of administrative and fiscal powers to local elected officials. In March 1986, regional councils were directly elected for the first time, and the process of decentralization has continued, albeit at a slow pace. In March 2003, a constitutional revision has changed very significantly the legal framework towards a more decentralized system and has increased the powers of local governments.
Administrative units with a local government in Metropolitan France (that is, the parts of France lying in Europe) consist of:
- about 36,000 communes, headed by a municipal council and a mayor, grouped in
- 96 départements, headed by a conseil général (general council) and its president, grouped in
- 22 régions, headed by a regional council and its president.
The conseil général is an institution created in 1790 by the French Revolution in each of the newly created departments (they were suppressed by the Vichy government from 1942 to 1944). A conseiller général (departmental councillor) must be at least 21 years old and either live or pay taxes in locality from which he or she is elected. (Sociologist Jean Viard noted [Le Monde, Feb. 22, 2006] that half of all conseillers généraux were still fils de paysans, i.e. sons of peasants, suggesting France's deep rural roots). Though the central government can theoretically dissolve a conseil général (in case of a dysfunctional conseil), this has happened only once in the Fifth Republic.
The conseil général discusses and passes laws on matters that concern the department; it is administratively responsible for departmental employees and land, manages subsidized housing, public transportation, and school subsidies, and contributes to public facilities. It is not allowed to express "political wishes." The conseil général meets at least three times a year and elects its president for a term of 3 years, who presides over its "permanent commission," usually consisting of 5-10 other departmental councillors elected from among their number. The conseil général has accrued new powers in the course of the political decentralization that has occurred past in France during the past thirty years. There are in all more than 4,000 conseillers généraux in France.
Different levels of administration have different duties, and shared responsibility is common; for instance, in the field of education, communes run public elementary schools, while départements run public junior high schools and régions run public high schools, but only for the building and upkeep of buildings; curricula and teaching personnel are supplied by the national Ministry of Education.
The 3 main cities, Paris, Lyon and Marseille have a special statute. Paris is at the same time a commune and a département with an institution, the Conseil de Paris, that is elected at the same time as the other conseil municipaux, but that operates also as a conseil général. The 3 cities are also divided into arrondissement each having its conseil d'arrondissement and its mayor.
French overseas possessions are divided into two groups:
- 4 overseas départements, with some strong similarity of organization to their metropolitan counterparts; in these overseas départements all laws of France are automatically applicable, except if a specific text provides otherwise or provides some adaptation. The 4 départements belong to the European Union, as "overseas regions", which means that European law is applicable;
- Territories, generally having greater autonomy. In general, French laws are not applicable, except if a specific text provides otherwise. A new Territory has been created in February 2007: Saint-Barthélemy. This Territory used to be part of the overseas département of Guadeloupe. The statute of Saint-Barthélemy provides the automatic application of French law, except mostly in the domain of taxes and immigration, which are left to the Territory. The Territories do not belong to the European Union. However, as "overseas territories" they have association agreements with the EU and may opt-in to some EU' provisions. EU law applies to them only insofar is necessary to implement the association agreements.
All inhabited French territory is represented in both houses of Parliament and votes for the presidential election.
See also
Specific
General
- Legal reference texts
- General reference
- Constitution
- Rules of procedure
- Rules of procedure of the National Assembly (, )
- Justice
- Budget
- Ombudsman
- , creating the position of the Ombudsman (updated version)
- Justice
- Official documentation
- General
-
- Les pouvoirs publics. Textes essentiels 2005., La Documentation française, ISBN 2-11-005961-3
- Financial jurisdictions
- Budget
- Alain Lambert, Didier Migaud, Réussir la LOLF, clé d'une gestion publique responsible et efficace. Rapport au Gouvernement, September 2005, ISBN 2-11-095515-5 (, )
-
- Edward Arkwright, Stanislas Godefroy, Manuel Mazquez, Jean-Luc Bœuf, Cécile Courrèges, La mise en oeuvre de la loi organique relative aux lois de finances, La Documentation Française, 2005, ISBN 2-11-005944-3
- Independent administrative authorities
- Conseil d'État, rapport public 2001, Les autorités administratives indépendantes () ISBN 2-11-004788-7
Further reading
- Frédéric Monera, L'idée de République et la jurisprudence du Conseil constitutionnel - Paris: L.G.D.J., 2004 -;
External links
All external sites in French but most of them have pages in English.
- General
- Law
- Executive Branch
- Legislative Branch
- Judiciary
- Others
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