Ordonnance (French constitutional law)
Encyclopedia
In the Government of France
, an ordonnance (French for "ordinance") is a statute passed by the Council of Ministers in an area of law normally reserved for statute law passed by the Parliament of France
.
They should not be confused with decree
s, which are executive decisions passed either in fields where the Constitution allows primary legislation from the Council, or secondary legislation supplementing a statute.
In the French justice system
, the word can also refer to a summary ruling made by a single judge for simple cases.
lists a number of areas of Law that are reserved for statute law, passed by Parliament
. All other areas of Law are the domain of regulations, issued by the Government through decree
s of the Prime Minister
.
Decrees and other regulations taken in areas reserved for statute law are illegal, unless they are secondary legislation specifically authorized by Law. Such "application decrees" define implementation measures and details left out by statute law.
For various reasons explained below, the executive may sometimes want to pass primary legislation
in the domain reserved by statute law. The ordonnances are the constitutional means to do so.
Decrees and other regulations are subject to possible cancellation by litigation before the Council of State (they have "regulatory value") if they are against the general principles of law or constitutional rights, whereas statute law may be ruled unconstitutional only through specific procedures before the Constitutional Council
. Statutes are thus considerably more solid.
The introductory sentence of an ordonnance, as published in the Journal Officiel de la République Française
, is: "The President of the Republic [...], after hearing the Council of State, after hearing the Council of Ministers, orders:". The word ordonnance comes from the same root as ordonner ("to order").
, most ordonnances operate as defined by article 38 of the Constitution of France
.
The gouvernement (the ministers) first introduces a bill before Parliament authorizing it to take ordonnances to implement its program. The bill specifies a limited period of time, as well as a topic for the proposed ordonnances. If the bill is voted by Parliament, the executive can take ordonnances on this topic within the specified time period. The executive must consult the Council of State on every ordonnance; the advice of the Council is compulsory but nonbinding.
An ordonnance must be signed by the President of the Republic, the Prime Minister
and relevant ministers. This proved a source of tensions in 1986, during a period of cohabitation
when President François Mitterrand
and Prime Minister Jacques Chirac
were of opposite political opinions, and the President refused to sign ordonnances requested by the Prime Minister, forcing him to go through the normal parliamentary procedure; it was however controversial at the time whether he had the right to refuse to sign them.
Before the time period has elapsed, the executive must introduce before Parliament a bill of ratification
for the ordonnances, otherwise these lapse at the end of the period. Until Parliament has voted the ratification bill, the ordonnances, similarly to decree
s, can be challenged before the Council of State.
If they are ratified, they become like ordinary statutes. There is however no obligation that they should be ratified, in which case they stay as simple regulations; in fact, between 1960 and 1990, out of 158 ordonnances, only about 30 were ratified. This can happen because even though the ratification bill has been brought before Parliament, it is not necessarily scheduled for examination and vote. If Parliament votes down the ratification bill, they are cancelled.
The Constitutional Council and the Council of State have admitted that ratification, in addition to explicit means (vote on the ratification bill, or ratification amendment added to another bill), could also be performed implicitly, when Parliament refers to an ordonnance as though it were statute law. However, implicit ratification was prohibited by a 2008 constitutional amendment
.
It has occasionally happened that the government did not make use of the habilitation that they had requested and obtained.
Neither of these procedures has ever been used.
to oversea French territories by ordonnances. These ordonnances lapse if they have not been ratified within 18 months by Parliament.
s to Euro
s in the various laws in force in France). There is also a practice to use ordonnances 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 and exposes France to fines.
Ordonnances are also used to codify law into codes, in order to rearrange them for the sake of clarity without substantially modifying them. Such usage has however been criticized for the legal risks that it poses if the ratification act is never voted.
The use of ordonnances for controversial laws is generally criticized by the opposition as anti-democratic, and demeaning to Parliament (Guillaume, 2005), in much the same way as the use of article 49-3 to force a bill to be voted.
in periods where the government operated without a working Parliament: Vichy France
, where the executive had dismissed Parliament and other democratic
structures, the Provisional Government of the French Republic
, until it could establish a legislature, and in the last days of the French Fourth Republic
and the early days of the French Fifth Republic
, until the new constitution was operating and legislative elections had been held (Article 92 of the Constitution, now repealed).
Certain legal texts enacted by the King in the medieval and ancien régime
eras were called ordonnances, the best known of which today is the Ordinance of Villers-Cotterêts
.
Government of France
The government of the French Republic is a semi-presidential system determined by the French Constitution of the fifth Republic. The nation declares itself to be an "indivisible, secular, democratic, and social Republic"...
, an ordonnance (French for "ordinance") is a statute passed by the Council of Ministers in an area of law normally reserved for statute law passed by the Parliament of France
Parliament of France
The French Parliament is the bicameral legislature of the French Republic, consisting of the Senate and the National Assembly . Each assembly conducts legislative sessions at a separate location in Paris: the Palais du Luxembourg for the Senate, the Palais Bourbon for the National Assembly.Each...
.
They should not be confused with decree
Decree
A decree is a rule of law issued by a head of state , according to certain procedures . It has the force of law...
s, which are executive decisions passed either in fields where the Constitution allows primary legislation from the Council, or secondary legislation supplementing a statute.
In the French justice system
Justice in France
In France, judges are considered civil servants exercising one of the sovereign powers of the state, and, accordingly, only French citizens are eligible for judgeship. France's independent judiciary enjoys special statutory protection from the executive branch...
, the word can also refer to a summary ruling made by a single judge for simple cases.
Motivations
Article 34 of the Constitution of FranceConstitution of France
The current Constitution of France was adopted on 4 October 1958. It is typically called the Constitution of the Fifth Republic, and replaced that of the Fourth Republic dating from 1946. Charles de Gaulle was the main driving force in introducing the new constitution and inaugurating the Fifth...
lists a number of areas of Law that are reserved for statute law, passed by Parliament
Parliament of France
The French Parliament is the bicameral legislature of the French Republic, consisting of the Senate and the National Assembly . Each assembly conducts legislative sessions at a separate location in Paris: the Palais du Luxembourg for the Senate, the Palais Bourbon for the National Assembly.Each...
. All other areas of Law are the domain of regulations, issued by the Government through decree
Decree
A decree is a rule of law issued by a head of state , according to certain procedures . It has the force of law...
s of the Prime Minister
Prime Minister of France
The Prime Minister of France in the Fifth Republic is the head of government and of the Council of Ministers of France. The head of state is the President of the French Republic...
.
Decrees and other regulations taken in areas reserved for statute law are illegal, unless they are secondary legislation specifically authorized by Law. Such "application decrees" define implementation measures and details left out by statute law.
For various reasons explained below, the executive may sometimes want to pass primary legislation
Primary legislation
Primary legislation is law made by the legislative branch of government. This contrasts with secondary legislation, which is usually made by the executive branch...
in the domain reserved by statute law. The ordonnances are the constitutional means to do so.
Decrees and other regulations are subject to possible cancellation by litigation before the Council of State (they have "regulatory value") if they are against the general principles of law or constitutional rights, whereas statute law may be ruled unconstitutional only through specific procedures before the Constitutional Council
Constitutional Council of France
The Constitutional Council is the highest constitutional authority in France. It was established by the Constitution of the Fifth Republic on 4 October 1958, and its duty is to ensure that the principles and rules of the constitution are upheld.Its main activity is to rule on whether proposed...
. Statutes are thus considerably more solid.
Vocabulary notes
The decisions taken by the President of the French Republic by application of Article 16 of the Constitution, enabling him to take emergency measures in times where the existence of the Republic is at stake (a form of reserve powers) are not called ordonnances, but simply décisions.The introductory sentence of an ordonnance, as published in the Journal Officiel de la République Française
Journal Officiel de la République Française
The Journal Officiel de la République Française is the official gazette of the French Republic. It publishes the major legal official information from the national Government of France.-Publications:...
, is: "The President of the Republic [...], after hearing the Council of State, after hearing the Council of Ministers, orders:". The word ordonnance comes from the same root as ordonner ("to order").
Normal procedure
In the French Fifth RepublicFrench Fifth Republic
The Fifth Republic is the fifth and current republican constitution of France, introduced on 4 October 1958. The Fifth Republic emerged from the collapse of the French Fourth Republic, replacing the prior parliamentary government with a semi-presidential system...
, most ordonnances operate as defined by article 38 of the Constitution of France
Constitution of France
The current Constitution of France was adopted on 4 October 1958. It is typically called the Constitution of the Fifth Republic, and replaced that of the Fourth Republic dating from 1946. Charles de Gaulle was the main driving force in introducing the new constitution and inaugurating the Fifth...
.
The gouvernement (the ministers) first introduces a bill before Parliament authorizing it to take ordonnances to implement its program. The bill specifies a limited period of time, as well as a topic for the proposed ordonnances. If the bill is voted by Parliament, the executive can take ordonnances on this topic within the specified time period. The executive must consult the Council of State on every ordonnance; the advice of the Council is compulsory but nonbinding.
An ordonnance must be signed by the President of the Republic, the Prime Minister
Prime Minister of France
The Prime Minister of France in the Fifth Republic is the head of government and of the Council of Ministers of France. The head of state is the President of the French Republic...
and relevant ministers. This proved a source of tensions in 1986, during a period of cohabitation
Cohabitation (government)
Cohabitation in government occurs in semi-presidential systems, such as France's system, when the President is from a different political party than the majority of the members of parliament. It occurs because such a system forces the president to name a premier that will be acceptable to the...
when President François Mitterrand
François Mitterrand
François Maurice Adrien Marie Mitterrand was the 21st President of the French Republic and ex officio Co-Prince of Andorra, serving from 1981 until 1995. He is the longest-serving President of France and, as leader of the Socialist Party, the only figure from the left so far elected President...
and Prime Minister Jacques Chirac
Jacques Chirac
Jacques René Chirac is a French politician who served as President of France from 1995 to 2007. He previously served as Prime Minister of France from 1974 to 1976 and from 1986 to 1988 , and as Mayor of Paris from 1977 to 1995.After completing his studies of the DEA's degree at the...
were of opposite political opinions, and the President refused to sign ordonnances requested by the Prime Minister, forcing him to go through the normal parliamentary procedure; it was however controversial at the time whether he had the right to refuse to sign them.
Before the time period has elapsed, the executive must introduce before Parliament a bill of ratification
Ratification
Ratification is a principal's approval of an act of its agent where the agent lacked authority to legally bind the principal. The term applies to private contract law, international treaties, and constitutionals in federations such as the United States and Canada.- Private law :In contract law, the...
for the ordonnances, otherwise these lapse at the end of the period. Until Parliament has voted the ratification bill, the ordonnances, similarly to decree
Decree
A decree is a rule of law issued by a head of state , according to certain procedures . It has the force of law...
s, can be challenged before the Council of State.
If they are ratified, they become like ordinary statutes. There is however no obligation that they should be ratified, in which case they stay as simple regulations; in fact, between 1960 and 1990, out of 158 ordonnances, only about 30 were ratified. This can happen because even though the ratification bill has been brought before Parliament, it is not necessarily scheduled for examination and vote. If Parliament votes down the ratification bill, they are cancelled.
The Constitutional Council and the Council of State have admitted that ratification, in addition to explicit means (vote on the ratification bill, or ratification amendment added to another bill), could also be performed implicitly, when Parliament refers to an ordonnance as though it were statute law. However, implicit ratification was prohibited by a 2008 constitutional amendment
French constitutional law of 23 July 2008
The Constitutional law on the Modernisation of the Institutions of the Fifth Republic was enacted into French constitutional law by the Parliament of France in July 2008, to reform state institutions.-History:...
.
It has occasionally happened that the government did not make use of the habilitation that they had requested and obtained.
Budget bills
It is of particular importance that budget bills should be voted in a timely manner, since they authorize taxes and spending. For this reason, the Government can adopt the budget by ordonnances if Parliament has not been able to agree on it within 70 days after the proposal of the budget (Constitution, article 47). The same applies for Social security budget bills, but with a 50 day period (Constitution, article 47-1).Neither of these procedures has ever been used.
Oversea territorial communities
Article 74-1 of the Constitution allows the government to extend legislation applicable to Metropolitan FranceMetropolitan France
Metropolitan France is the part of France located in Europe. It can also be described as mainland France or as the French mainland and the island of Corsica...
to oversea French territories by ordonnances. These ordonnances lapse if they have not been ratified within 18 months by Parliament.
Usage and controversy
The use of ordonnances is not controversial when used for technical, uncontroversial texts (such as the ordinances that converted all sums in French FrancFrench franc
The franc was a currency of France. Along with the Spanish peseta, it was also a de facto currency used in Andorra . Between 1360 and 1641, it was the name of coins worth 1 livre tournois and it remained in common parlance as a term for this amount of money...
s to Euro
Euro
The euro is the official currency of the eurozone: 17 of the 27 member states of the European Union. It is also the currency used by the Institutions of the European Union. The eurozone consists of Austria, Belgium, Cyprus, Estonia, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg,...
s in the various laws in force in France). There is also a practice to use ordonnances 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 and exposes France to fines.
Ordonnances are also used to codify law into codes, in order to rearrange them for the sake of clarity without substantially modifying them. Such usage has however been criticized for the legal risks that it poses if the ratification act is never voted.
The use of ordonnances for controversial laws is generally criticized by the opposition as anti-democratic, and demeaning to Parliament (Guillaume, 2005), in much the same way as the use of article 49-3 to force a bill to be voted.
Previous usage
Ordonnances have been extensively used as a form of rule by decreeRule by decree
Rule by decree is a style of governance allowing quick, unchallenged creation of law by a single person or group, and is used primarily by dictators and absolute monarchs, although philosophers such as Giorgio Agamben have argued that it has been generalized since World War I in all modern states,...
in periods where the government operated without a working Parliament: Vichy France
Vichy France
Vichy France, Vichy Regime, or Vichy Government, are common terms used to describe the government of France that collaborated with the Axis powers from July 1940 to August 1944. This government succeeded the Third Republic and preceded the Provisional Government of the French Republic...
, where the executive had dismissed Parliament and other democratic
Democracy
Democracy is generally defined as a form of government in which all adult citizens have an equal say in the decisions that affect their lives. Ideally, this includes equal participation in the proposal, development and passage of legislation into law...
structures, the Provisional Government of the French Republic
Provisional Government of the French Republic
The Provisional Government of the French Republic was an interim government which governed France from 1944 to 1946, following the fall of Vichy France and prior to the Fourth French Republic....
, until it could establish a legislature, and in the last days of the French Fourth Republic
French Fourth Republic
The French Fourth Republic was the republican government of France between 1946 and 1958, governed by the fourth republican constitution. It was in many ways a revival of the Third Republic, which was in place before World War II, and suffered many of the same problems...
and the early days of the French Fifth Republic
French Fifth Republic
The Fifth Republic is the fifth and current republican constitution of France, introduced on 4 October 1958. The Fifth Republic emerged from the collapse of the French Fourth Republic, replacing the prior parliamentary government with a semi-presidential system...
, until the new constitution was operating and legislative elections had been held (Article 92 of the Constitution, now repealed).
Certain legal texts enacted by the King in the medieval and ancien régime
Ancien Régime in France
The Ancien Régime refers primarily to the aristocratic, social and political system established in France from the 15th century to the 18th century under the late Valois and Bourbon dynasties...
eras were called ordonnances, the best known of which today is the Ordinance of Villers-Cotterêts
Ordinance of Villers-Cotterêts
The Ordinance of Villers-Cotterêts is an extensive piece of reform legislation signed into law by Francis I of France on August 10, 1539 in the city of Villers-Cotterêts....
.
Further reading
- Les ordonnances - bilan au 31 décembre 2007, note from the law services of the French SenateFrench SenateThe Senate is the upper house of the Parliament of France, presided over by a president.The Senate enjoys less prominence than the lower house, the directly elected National Assembly; debates in the Senate tend to be less tense and generally enjoy less media coverage.-History:France's first...
, 12 March 2008, ISBN 978-2-11-126205-8 - Marc Guillaume, Les ordonnances : tuer ou sauver la loi ?, Pouvoir, n° 114 2005/3, pp. 117-129, Le Seuil, ISBN 978-2-02-068878-9,
- Guillaume Lethuillier, La ratification expresse des ordonnances de l'article 38 de la Constitution, Les Petites Affiches, n° 112, 23 October 2009, pp. 9-12.