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Comparative Law Spring 2003 Professor Susanna Fischer

Comparative Law Spring 2003 Professor Susanna Fischer. CLASS 9 FRENCH LEGISLATIVE BRANCH FRENCH SOURCES OF LAW Feb. 13, 2003. WRAP UP: Fundamental Structural Principles of the French Republic.

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Comparative Law Spring 2003 Professor Susanna Fischer

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  1. Comparative Law Spring 2003Professor Susanna Fischer CLASS 9 FRENCH LEGISLATIVE BRANCH FRENCH SOURCES OF LAW Feb. 13, 2003

  2. WRAP UP: Fundamental Structural Principles of the French Republic • French is a semi-presidential parliamentary democracy there is a directly elected president and a prime minister who is responsible to parliament. In France, the role of parliament is somewhat reduced and the role of the executive is strengthened compared to a standard parliamentary system • France has a bicameral parliamentary system – the upper house is the Sénat and the lower house is the National Assembly. I’ll discuss how French legislation is enacted as part of the discussion of French sources of law

  3. French Sources of Law • France, like other civil law countries, has written and unwritten sources of law.

  4. Written Sources • Constitutional Block • Constitutional Statutes • Statutes (referendum/parliamentary) • Ordonnances and regulations

  5. Unwritten Sources • Judicial Decisions • Custom • Academic Writing

  6. Hierachy of Sources • France has a hierarchy of legal sources • At the top is the constitution, then constitutional statutes, and then statutes, whether enacted through the referendum process or the ordinary legislative process

  7. The French Constitution • The present French constitution, which established the Fifth Republic, is at the top of the hierarchy of French sources of law • Passed in 1958, masterminded by General de Gaulle • This is the 15th Constitution of France • What is the “Constitutional Block”?

  8. The “Constitutional Block” (le bloc de constitutionnalité) • In law, the Constitution is more than just the 1958 text (deals primarily with powers of government institutions), but also: • The Declaration of Human and Civil Rights of 1789 • The Preamble to the 1946 Constitution • The fundamental principles recognized by the laws of the Republic and referred to by the 1946 preamble

  9. Fundamental Principles • Vague concept • Allow Conseil constitutionnel to look at Acts passed before 1946 and extract from them their underlying fundamental principals • This gives Conseil constitutionnel a very free hand • No absolute definition as to what these fundamental principles are

  10. Declaration of Human and Civil Rights of Aug. 10, 1789 • La Declaration des droits de l’homme et du citoyen • Incorporates basic principles of equality, freedom of conscience, belief, association and expression, and the presumption of innocence, until convicted by due process of law

  11. Conseil Constitutionnel • This is the French constitutional court, which can review laws passed by the parliamentary body prior to the laws entering into force. The Conseil constitutionnel also ensures proper conduct of and reviews all disputed elections. There is no appeal from the Conseil constitutionnel • See http://www.conseil-constitutionnel.fr/anglais/ang4.htm

  12. Constitutional Statutes - lois organiques - • Flesh out details of the constitution unlike lois constitutionelle, which amend the constitution • Some special procedures (As 46 and 61) • National Assembly can only pass statute without Senate support if voted with absolute majority of members – if concern the Senate must be voted in identical terms by both Houses • Must be submitted to Conseil constitutionnel to make sure they don’t conflict with Constitution before they are promulgated.

  13. Link: Re Loi Organique • See Décision n° 2001-443 DC - 1er février 2001: Loi organique modifiant la loi n° 62-1292 du 6 novembre 1962relative à l'élection du Président de la République au suffrage universel – found to be in conformity with Constitution • http://www.conseil-constitutionnel.fr/decision/2001/2001443/2001443dc.htm (in French)

  14. Statutes • Much lower in the legal hierarchy than in U.S. • 2 types: • A. Voted by people directly in referendum • B. Voted by people’s representatives in Parliament - can amend and repeal A

  15. Legislation Voted Directly By the People • Art. 11 – President (only- on proposal of govt or legislature) has the power to call for a referendum of the people if bill relates to certain subjects – organization of public powers, reforming national economic or social policy, or ratification of treaty affecting constitutional institutions (e.g. Maastricht, admission of UK to EEC) • Has been used by DeGaulle to amend constitution. Is this constitutional? • Can the statute be referred to Conseil Constitutionnel to check its constitutionality?

  16. Statutes Resulting From a Referendum • Power to make these statutes is provided for in Article 11 of the Constitution, extended by an Act of August 4, 1995 reforming the Constitution (a loi constitutionnelle) • President can submit to a referendum a Bill that contains one of 3 subjects • 1. Organization of public powers; 2. Reforming of economic/social policy of nation and public services associated with it; 3. Ratification of a treaty affecting constitutional institutions.

  17. Scrutiny of Referendum • Conseil constitutionnel only has power to scrutinize voting irregularities for referendum but can’t scrutinize referendum unlike Act of Parliament

  18. Parliamentary Statutes (Lois) • Parliament can legislate on only a limited number of subjects listed in Article 34 of the Constitution - other areas are to be regulated by the executive (art. 37) • Conseil constitutionnel is supposed to make sure that Art. 34 and 37 are respected, but Constitution in fact has been interpreted to allow legislation to be made in subject areas that go beyond limits of Article 34 (unless opposed by Govt because only the Govt can complain to Conseil Constitutionnel that executive regulation o/s regulatory domain)

  19. Legislation • How is an Act of Parliament enacted in France? • See C. 1958 Arts. 39-45, Art. 11

  20. Proposing Legislation • Prime Minister (on approval of Conseil d’Etat and Cabinet) and MPs can propose bills; most are government bills. Private members bills don’t usually gain necessary support for enactment. • Bills must be approved by both Houses of Parliament. Most bills can begin in either House (except e.g. finance bills that must begin in National Assembly) • Usually simple majority vote is enough • Some laws, like Finance Acts, have a special procedure – See Art. 47

  21. Disputed Billls • Senat can delay but can’t block legislation; if a bill is not adopted by both houses, PM can set up a commission (7 members nominated from each House) to propose a compromise but if draft not approved, government can submit either original or modified bill to National Assembly which has the final say. See C. 1958 Art. 45l

  22. Promulgation of Legislation • After a bill is approved by Parliament, it must be promulgated and published to become law • President promulgates bill (C. 1958 Art. 10) Can require legislation to be debated again by Parliament (rare) or refer to Conseil constitutionnel to check constitutionality (never) • Publication – in Official Journal. Becomes binding one day after publication unless otherwise specified in Act in question.

  23. Names of French Statues • Acts of Parliament are usually referred to by the date on which they were passed and by a number reflecting the year in which they were passed • E.g. Act no. 95-880 of August 4, 1995. • In practice, the Act is often simply referred to by its date

  24. Codes • It is well known that a lot of French law has been codified since the days of Napoleon Bonaparte in the 19th century • Codes are essentially statutes since they are just the product of a single or several long parliamentary acts

  25. Codes 5 original codes were: • Code civil • Code de la procédure civile (as of 1976, Le nouveau code de a procédure civile) • Code de commerce • Code pénal • Code de procédure pénal • Many other codes now exist - seehttp://www.legifrance.gouv.fr/html/frame_codes1.htm (in French)

  26. New Program of Codification • French government is undertaking a new program of codification to improve access to the law • Legislative powers to carry out this program of codification were contained in an Act of July 16, 1999

  27. Executive Law: Ordonnances and Regulations (Réglements) • The term Ordonnance can’t be translated into English • Special form of delegated regulation - descendent of legislative decrees used in Third and Fourth Republics • Parliament can pass enabling Act allowing government to make ordonnances on a particular subject normally in legislative domain for limited period of time (A38)

  28. Regulations • Made by executive and administration • Have become an increasingly important source of law in Fifth Republic • Until 1981, government carried out a major construction program of nuclear power stations while refusing parliamentary debate on the subject

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