French Constitutional law

Question 1

What are the characteristics of the First Constitution in France?

Answer 1

September 1781
A reflection of revolutionary ideas
Goal to establish a Constitutional Monarchy
King was the head of the executive
Legislative function conferred to one assembly - One chamber only (Monochamberal)
National sovereignty - sovereignty belongs to the nation, not the king anymore
The right to vote was restrictive and considered a function rather than a right. In order to vote you needed to pay. Distinction between active and passive citizen

Question 2

What are the characteristics of the Second Constitution in France?

Answer 2

June 1793
Never really enforced because problems were solved before they could apply it
Powerful source of inspiration
Based on Popular sovereigny and the ideas of Rousseau
Less restriction on voting, no passive vs active citizen, but still limited for women.
A collective body of 24 members elected by legislative body with goal to devide executive power - they were called agents, tools of the Assembly
Assembly leading power - inspired by democratic ideals

Question 3

What are the characteristics of the Third Constitution in France?

Answer 3

1795
Le Dictoire - name of the regim
Goal to restore order after mess, terror, revolution. A reaction to the previous situation.
–> Declaration of the Rights and Duties of the Men and Citizen
Two assemblies, and executive power conferred to directors

Question 4

How can one see that there is instability during history of French Constitutions?

Answer 4

The first three were very different from each other.
There has been 15 Constitutions in less than 250 years, compared to US where they only have had one.

Question 5

Which Constitution is the longest?

Answer 5

Third Republic 1870-1940. But the Fifth is about to overcome the third.

Question 6

What is the definition of a Constitution?

Answer 6

The supreme law of the state
It represents the fundamental choices made by a country and its people in order to establish the basis for political and social life
Establishes system of the government, distribute and constrain powers, guarantees rights to individuals
To change it you go through a special procedure
Judge Barnet: Fundamental rights need to be protected from majority decisions

Question 7

Why is there a tension between French and EU law?

Answer 7

French Constitution say it is supreme to other laws. But EU law say treaties are superior to national law including the Constitution.

Question 8

Are Constitutions true norms or merely symbolic?

Answer 8

They are now considered as true norms, but for a long time they were considered as merely symbolic.

Question 9

What is Legicentrism?

Answer 9

To perceive laws with a special status - law is at the center of the legal system
Inspiration from Rousseau
Art 6 of the Declaration of the Rights and Duties of the Men and Citizen: “The law is the expression of the general will” - General law cannot go wrong, infalliable.
Against judicial review - to review the legislation
This view lasted for a long time in France, and still exists.

Tension because of the fact that Constitution is the supreme law, and parliaments can violate the Constitution.

Question 10

What is better, a long or short Constitution?

Answer 10

There needs to be a balance. Important to protect important values. But needs to be clear for everyone and read by the people.

Question 11

What is the difference between a Formal and Substancial Approach?

Answer 11

Different state’s Constitutions can be divided as such:

Formal Constitution: Constitutional norms are produced by a specific procedure, entity.

Substancial Constitution: Analysis of norms of Constitutional matters

The Miller-Case: Although the UK does not have a single document entitled the Constitution, it nevertheless posseses a Constitution - Because history of Common law, Statues, Conventions, Practises.
- UK does not have a formal Constitution, but a substancial one.

Question 12

What is the difference between Flexible and Regit Constitution?

Answer 12

Flexible Constitution is easy to change
Regit Constitution is hard to change

Example of a regit is UK because no form in its Constitution.

Question 13

What are the advantages and disadvantages with Flexible and Regit Constitutions?

Answer 13

Advantage: Our values change. Must respond to new needs, public domains and evolving conception of rights
Inconvience: It can be risky if it is easy to change it when it protects fundamental principles. It can undermine the intergrity and coherence of the Constitution. Risk to loose its relevance.

This can depend on the content.

Question 14

What is Original Constitutional Power and Derive Constitutional Power?

Answer 14

One can distinguish between:

Original Constitutional Power: That establishes first Constitution)
Derive Constitutional Power: Authority that can change, modify the Constitution

Question 15

What are the ways to protect the Constitution?

Answer 15

Have special procedures to change the Constitution, and Judicial Review

Question 16

What is Judicial Review?

Answer 16

Idea that a Court will review a legislative act, the laws, and they will check weather these laws are in conformity with the Constitution
Was first recognized in Case from US 1803 Marbury vs Madison
In France there was reluctance (Ideas of Rousseau)
Was introduced in Third Constitution
Raises a tension with democracy
Think of story with Mermaid: We can be seduced by politicians and the law can make mistakes

Question 17

What are the Three elements (or five) of Constitutional Block?

Answer 17

• Constitution of 1958
  Consisting of Declaration of Rights of man and Citizen of 1789,
  and Preamble of the Constitution of 1946
• The Fundamental Principles recognized in the law of the Republic
• Charter for the Environment

Consists of Preamble, 16 titles, 89 Articles

Question 18

How was the Constitutional Block created?

Answer 18

By a very important Decision of the Constitutional Counsel in 1971 on July 16th called Freedom of Association.

The judges had a creative interpretation because they chose to include the Declaration of rights of man and Citizen and the Preamble of 1946, just from a reference in Preamble of Constitution of 1958.

Question 19

Why did the 4th Republic fall?

Answer 19

There were two main reasons:
- The Algerian crisis
- The Governmental Instability

Question 20

What happened during the Algerian crisis?

Answer 20

On May 13th 1958, there was a coup in Algeria, and the president of France, Couti, appointed a new head of government, Pifminnin, who was in favor of negotiating with LFN (Le front Nationale in Algeria), which provoked high ranking military officers. Pifminnin resigned and Charles De Gauille took the role.

Question 21

Why was there governmental instability?

Answer 21

Governmental Instability: The executive power was weak (called Assembly regime). Governance lasted only for 6 month, and one only lasted for 10 days.

Question 22

How did Charles de Gauille solve the problems of the 4th Republic?

Answer 22

Important laws were adopted on June 7th.
1. One gave the Government special powers to Algeria
2. Full legislative powers given to the Government
3. The Constitutional Act of June 3rd - Gives permission to the Government to write a new Constitution

Question 23

What is the Constitutional Act of June 3rd?

Answer 23

The Goal with the Constitutional Act of June 3rd was to change and establish a fast procedure to modify the Constitution of 4th Republic.
Provides basic conditions that must be respected/Fundemental principles in new Constituion:
1. Democracy: Universal suffrage is only source of power
2. Separation of Powers: Executive and legislative range has to be separed
3. Accountability of the Government to the Parliament: Key element of a parliamentary regim.
4. Judicial Authority must be independent
5. Relation between France and the Former Collectives
It also establihses the procedure for the Liberation of the Constitution. The government must consult Advisory Committe (Commitée Consultative Constitutionelle)

Question 24

How was the 5th Republic drafted?

Answer 24

Insolved two teams:
- A committe of experts (mostly lawyers) and interministorial commité (mixed of ministers, lawyers, chadelours)

They made a Preliminary Draft
–> which was sent to the Advisory Committe (39 members, 16 from National Assembly, 10 from Counsil of the Republic, 13 from government, head was Paul Renault).
They issued its opinion on August 14th 1958, and they agreed with basic structure but had points.
–> Text was sent to Counsil of State for an opinion. Michel Debré who was apart of the drafting held a Speach August 24th about the intention of the drafters.

The goal of the drafters, according to Michel Debré, was to establish a Rationalised Parlamentary System and to restore the powers of the president, for more stability.
So to constrain the parliament but keep the parliamentary regime.

Question 25

How was the 5rd Republic adopted?

Answer 25

By a vote on September 28th. Was approved by a large majority, 79 % (with 15 % absence)
Then it was permitted by October 4th.
The institutions of the Constitutions were progressively established.

Question 26

What are the sources of inspiration for the Constitution of the 5th Republic?

Answer 26

1. The most important source is Charles de Gauille. Speech in 1946 called Bayeux, summing up his ideas: He wanted sufficient institutions, to restore the authority of the executive branch, constraint parliaments and distrust political parties.
2. Article 5 of the Constitution of 1958: The president is an active player, not a simple refere.
   “The president of the republic, shall ensure the respect for the Constitution. He shall guarantee by his arbitration, the proper functioning of the public authorities and the continuity of the state. He shall be the guarantee of national independence, territorial integrity and the respect for treaties”
3. Michel Debré
   He agrees with Gauille on the role of state authority and to rationalize the parliamentary system. Idea that the only way a parliament can intervene is through Art 44 of Constitution
   Speech in August 1958: Presentation of Constitution and Prevention of governmental instability
4. Scholars, lawyers, politicians, professors who under 3rd and 4th argued for changes.
   For instance Cali de Malbaire who argued for referendums and judicial review.

Question 27

What are the structure of the 1958 Constitution?

Answer 27

It is divided in different titles. For instance,
Title 1 Sovereignty
Title 2 President
Title 3 Government
Title 4 Parlament

Question 28

What is the difference between a Parliamentary regim and a Presidential regim?

Answer 28

Parliamentary Regim: The parliament is dominant, the chambers are democratically elected and the head of government is the leader of the political party leading the chambers of parliament.
The government is responsible to the parliament. There are Mutual Destruction Powers, but in practise so incitament to dissolve parliament, because they belong to same party
Ex UK.

Presidential regim:
The president is elected directly, or indirectly by the people. And then you have a parliament (often 2 chambers)
A strict separation between executive (president) and parliament. No Mutual Means of Destruction, they cannot dissolve each other. (Different from Impeachment where there are other reasons for removing president)
Ex US.

Question 29

What are the main characteristics of the French Constitution?

Answer 29

Richard Dubré 1998 speech: Neither a parliamentary or presidential regim
A rationalized parliamentary regim with the prohibetence of the president of the Republic

Objectives of the Constitution:
- Break the years of Constitutional and Political Instability
- Restore the power of the State, and head of state
- Put an end to political sovereignty
- Restore the balance between executive and legislative branches. We need to rationalize the parliamentary system

Question 30

How can one see that France is a rationalized parliamentary regim with prohibetence of the president?

Answer 30

Art 49 of Constitution: Executive power can be dissolved by the Assembly.
Also division of initiative with laws between executive and legislative powers. And that members of goverment can come to assembly and be heard (not president)
Art 16: Full powers to the president in times of crisis.

The Constitution of 1958 wanted to rebalance the executive and parlament, and therefore reduce the power of the parlament, but maybe it was too much.

Question 31

What are the ways to Rationalize the powers of the Parliament?

Answer 31

1. A strict limitation of the competence of the parlament.
   Art 34 of The Constitution: When the parlament can intervene.
2. Judicial review. A council which will review if the acts respects the Constitution.
3. The motion of secture: A way for the parlament to remove the government, it is subject to strict conditions. Art 49 of Constitution.

Question 32

What is Cohabitation?

Answer 32

System of divided government that occurs in semi-presidential systems, such as France, whenever the president is from a different political party than the majority of the members of parliament.

Question 33

What is the first element of the Constitutional block and what does it consist of?

Answer 33

The Constitution of 1958, consisting of 89 articles
Mostly about insitutional and normative Constitutional law.
Also questions regarding tha president and how to change the Constitution.
A few rights and freedoms

Question 34

What are the most essential rights and freedoms of the Constitution of 1958?

Answer 34

Art 1: Principle of Equality
Art 66: Notion of individual liberty (NOT general, just a prohibition against arbitrary intervention)
Art 66.1: Prohibition of the death penalty
Art 3: The principle that the republic shall be governed of the people, by the people, for the people (Abraham Linkon)

Question 35

What is the Second element of the Block of Constitutionality and what does it consist of?

Answer 35

Declaration of the rights of man and citizen of 1789
(Not the same as Declaration of Human rights in international law)
Consists of 17 Articles of first generation rights/negative rights

Question 36

What are negative rights?

Answer 36

First generation rights
Rights that require absence from the state
Ex Right to Religion
Different from positive rights

These are considered declared, not created.

Question 37

What are the 5 core elements/principles of the Declaration of man and citizen from 1789?

Answer 37

1. The influence of Natural law
   Art 2 of Declaration.
   = Beyond the law of the state, can be accessed from reasoning and logic. Based on Morality.
   Story of Antigal. Allows her to bury her brother beyond the positive law
2. Strong emphasis on Individualism
   The rights can be exercised individually
   Not ex Freedom of Association
3. Liberalism
   Guarantee and protect the rights and freedoms of the individual by limiting the power of the state
4. Legicentrism
   Law is in the center of existence, no judicial review
   Art 6 of Declaration: The law is the expression of the general will
   Case Arrighi 1936 “The law cannot be challenged in French public law”
5. Universalism
   Those rights are considered to be universal and everyone is entitled to them.

Question 38

What is the difference between French and English declarations?

Answer 38

French declaration is much more general, universal and does not focus on procedure. English is much more technical, about procedure and limited.

Question 39

What is the Third element of the Constiutional Block and what does contain?

Answer 39

The Preamble of the Constitution of the 4th Republic
Protects some political rights, but also social and economic rights
Like Right to Education, Employment, Housing

Question 40

What was the first use of the Preamble of the 4th Constitution?

Answer 40

Decision by Conseil Constitutionel on Jan 15th 1975 Law on Abortion

Question 41

What is the Fourth element of the Constitutional Block and what does it contain of?

Answer 41

The Fundamental Principles recognized by the laws of the Republic
It is up to Constitutional Counsil to create these principles.
No list, but in 1988, 1993, 2013 the Conseil established criterias for a principle to be recognized as fundamental:
1. Principles have to be present in laws adopted under a Republic.
2. The law in question must have been adopted before 1946
3. The principle in question must have been applied in a consistent manner overtime
4. The principle must be sufficiently general
5. The principle must deal with fundamental rights, national sovereignty or the organization of public powers

Question 42

What was the first application of a Fundamental principle recognized by the laws of the Republic?

Answer 42

Decision 1971: Liberty of Association

Question 43

What principles are considered by the Constitutional Counsel to be such a fundamental principle?

Answer 43

1. Freedom Association
2. Rights of Defence
3. Individual Liberty (prohibition from arbitrary intervention)
4. Freedom of Education
5. Freedom of Conscience
6. Independence from Administrative judge
7. Independence of University professors
8. Specific competetence for Administrative judge
9. Principle according to which the Judicial judge protects private property
10. The obligation to apply specific rule for Juvenile criminal law
11. Specific law in Atsas (vad är detta?)

Question 44

What is the Fifth element of the Constitutional Block and what does it contain of?

Answer 44

The Environmental Charter
Was added through a Constitutional Revision in 2004
Art 5: Public authorities must implement risk assessment procedures, and adopt provisional measures to prevent the damage
There are rights:
Art 7: Right to live in a balanced environment which respects health and right to participate
And duties:
Art 2: Everyone must participate in the preservation and improvement of the environment
Art 3: Everyone must prevent or limit the consequences of the damage they may cause
Art 3: You must contribute to the repair

Question 45

What are the procedures for Challenging Law in regards to Rights?

Answer 45

The Control Appeal from 1958 was the initial way It worked before law entered into force
For some authorities, not individuals
(President, prime minister, president senate and national assembly or 60 from each)

In 2008, another procedure was introduced - Appostial Review. Individuals can challenge a law being applied to them and that the law violates the rights in the Constitution
Also called The Priority Preliminary Ruling on Constitutionality
Not applicable to some Articles in Environmental Charter

Question 46

What is the Sixth element of the Constitutional Block?

Answer 46

Yes, Certain Constitutional Principles are recognized by Constitutional Counsil, but not as fundamental principles.
Ex Continuity of the Public Service

Question 47

What are the elements not included in the Constitutional Block?

Answer 47

1.International and European Treaties
Art 55 of the Constitution: Treates are superior to Statues
The Constitutional Counsil cannot declare a law unconstitutional because it is violates a Treaty.
Costa v.Enel: EU Law is superior to domestic law, even constitutional law
But in French Case law: Constitutions prevail over statues, even EU law –> Tension

2. The Rules of Parliamentary Assemblies
   Establish the rules governing legislative procedures
3. Organic laws
   Laws that implement the provisions of the Constitution - requires more complex procedure

Question 48

What is France’s most important International commitments? (not in the Block)

Answer 48

France is bound by about 7000 international agreements.
European Convention on Human Rights 1950, ratified in 1974 - which considers if a member state has violated their rights and freedoms guaranteed by the Convention

EU Law.
Primary legislation: EU Treaties TEU, TFEU
Secondary legislation: Norms adopted by EU based on powers granted in the Treaties. Directives and Regulations.

Question 49

What is the difference between Control of Constitutionality and Control of Conventionality?

Answer 49

In a very important decision, Abortion 1975, the Constitutional Counsil distinguishes these.

Control of Constitutionality: To see whether a law respects the Constitution, done by Constitutional Counsil.

Control of Conventionality: To see whether a law respects International law, Treaties, Conventions, done by Ordinary Judges.
Ex in Societé Jack Barque 1975 and Nicolo 1989

Question 50

When the different Blocks have contradictions, is which is superior?

Answer 50

Case Nationalisation 1982 states that there is Unity betwen the elements and that there is no hierachy between them.

However, in some cases there seem to be some hierarchy.
For instance, when the Conseil practises Judicial Review, not all provisions of Environmental Charter can be invoked.
And the Declaration of 1789 usually wins over Preamble of 46
First generation rights prevail over social and economic rights.

Question 51

What is the idea of Separation of Powers?

Answer 51

A fundamental element of rule of law to limit the power of the state
The principle of power - It is essential that power is not held in the hands of one person or one institution - it has to be divided

Question 52

What are the two ways of Dividing power within the State?

Answer 52

The Horisontal Division: Distributing power between the various organs of the state.
Ex legislative, executive, judicial branches
Leads to different forms of political regims (like presidential or political)

Vertical Division: Distribution of power between different levels of government.
Ex states, regions, citites
Leads to different forms of states. (like federal state, unitary state)

Question 53

What is the Unitary State?

Answer 53

Unitary State = A form of state with in which there is only one source of power. The state exercises all the competences attached to the sovereignty.

There are substates, like regions and cities, with administrative and regional powers. They can adopt norms but not laws, or a Constitution.

The Unitary state is centralized - you will not give too much powers to local entities. (Jacovin) Napoleon Bonapart created Le prefet which represents the state and centralization

Not total centralization, it can be tempered by Deconcentration = A transfer of responsibility from the social administration to its local representatives. So internal distribution of power within the state through Le Prefet who acts throughout the country.

The state can also be decentralized = Greater authority to local authorities. Transfer of power from state to public collectivities (legal persons distinctive from the state)

Question 54

What form of state is France?

Answer 54

A Unitary State

The sublevels of Governance in france
1. Regions
2. Departments
3. Cities.

Those entities have administrative powers, but do not have legislative powers.
Important reform in 2015 → 18 regions in France, 13 metropolitan regions, 5 overseas, 103 departments, 36 000 towns

In France there is a review to check if these rules validate national standards

Art 72 of Constitution: Autonomy of local entities: Communities should be self-governing through elected counsils and have powers to make regulations

Reforms in 81, 83 and 2003 to decentralize.

Question 55

What is a Federal State?

Answer 55

A unit of state which creates a structure above them. Sovereign states give up certain competences to form a new state, through…
Association: States joining together to form a federal state, like US
Disagrigation - Federal states appears from the breakup, collaps of unitary state, like Belgium
First level of power you have different states. Canada’s provinces, Germany’s lenders, Belgium’s Regions.
Top level you have Federal state

Principles for organization of federalism
- Principe of Superpositions: Federal law prevail over state law
- Principle of Autonomy: Member states have superior autonomy, competence in which the federal state cannot interfere
- Principle of Participation: Member states will participate in the federal power, like participating in the legislative power and contribute to the revision of the Constitution

Two chambers in Congress (parliament) - one represents the state and the other population

You can revision the Constiution through the Senate.

Question 56

Give two examples of Federal states and how they are built.

Answer 56

In US, the House of Representatives represents the Population and Senate represents the state.

In Germany, Bundesrat represents the people and Bundestag represents the state (Art 50-51 German Constitution)

Question 57

What is a Regional State?

Answer 57

A form appeared more recently
Intervening position between Unitary State and Federal state
Regions have power to adopt certain laws in a series of araes listed in the Constitution. They have real statues but not Constitutions, unlike member states in Federal States.

Question 58

Give examples of Regional states.

Answer 58

In UK, powers were granted to Scotland, Wales and Northern Ireland.
In Italy, 20 regions are listed in the Constitutions and 5 of them have special status
In Spain they have a very strong regionalism and strong autnomy for regions. They have 17 autonomous communities, for instance Catalonia

Question 59

What is common for Federal and Regional states?

Answer 59

The Court and Constitutional Court have important roles in regards to conflict between states. Spain vs Catagonia for instance.

Question 60

Which are the ways to distribute power between the various organs of the state? (Horizontal Divisons of power)

Answer 60

The Classical Theory explains the Origins of the Principle of Separations of Power.
Started in England in 1215 with the will to end absolute monarchy, and the king was forced to share his power with Assemblies.

John Locke theorized the idea of Separation of Powers and distinguishes between three powers:
- The legislative powers = The power to make laws necessary for the preservation of society and its members
- The civil power = The executive power, the power to enforce laws within society
No judicial power, is considered apart of this branch
- The federative power = Power to make war and peace, to conclude Treaties. International relations between state and other states

Montesquieu book The underspirit of laws. To avoid concentration of the power, to protect the rights of the citizen. Distinguishes between three powers:
- Legislative power
- Executive power (including concluding Treaties)
- Judicial Power
Talks about that the power needs to stop the power, not about Separations of Power
First we distinguish the functions, and then you distribute those between different organs
Another solution is to balance the powers by achieving a balance between authorities/institutions which will participate in the legislative function. One function is not ensured by one institution.

Question 61

That is the two forms of regimes that can be distinguished from the way the power is divided?

Answer 61

According to the Theorethical classic definition of regions, two forms of regims can be divided based on how the power is divided.

The flexible separation of powers give rise to the parliamentary regime.
The regit separation of powers give rise to presidential system.

Question 62

What are the elements to a Parliamentary Regim?

Answer 62

A regim which the government and the executive power derives its legislative from the confidence of the majority of the parliament. The separation of power is set to be flesible because of the executive and legislative branch maintain a close relationship, based on collaboration.

They can influence each other by Means of actions and Means of Destruction.
Means of Destruction - They can dissolve each other.

Main elements:
- Politically irresponsible head of state
- Government, cabinet, head will be the prime minister
- Transfer of Political Responsibility from head to state to head of government - through Counter-signature
- Idea of political responsibility of the government to the parliament - government is accountable to parliament
- Right to dissolution - Mutual Means of Destruction.

Question 63

What is the difference between a Monist Parliamentary Regim and a Dualist Parliamentary Regim?

Answer 63

Monist Parliamentary Regim: Classical situation.
Only parliament can dismiss the government. The case in France.
At certain times, like Cohabitation, the head of state has a more symbolic role and he is from a different political party than the president

Dualist Parliamentary Regim: Two relations of co-exists. The government is accountable to the parliament but also head of state. So the government can be overthrown by the parliament or head of state, so they need the confidence of both. So head of state has an important role.

Question 64

Is France have a monist or dualist parliamentary regim?

Answer 64

The monist parliamentary regime it existent in most countries including France. However, with the Fifth Republic, France seems to return to Dualism through practice.

Question 65

What are the issues regarding imbalance between benefit of parliament or executive?

Answer 65

An assembly regim is when there is too much power for the parliament. (Happened during 3rd and 4th Republic).
Another issue is that the parliament is too week compared to the government. This has happened during the 5th republic as we go towards a more dualist regime.

Question 65

What are the issues regarding imbalance between benefit of parliament or executive?

Answer 65

An assembly regim is when there is too much power for the parliament. (Happened during 3rd and 4th Republic).
Another issue is that the parliament is too week compared to the government. This has happened during the 5th republic as we go towards a more dualist regime.

Question 66

What are the issues regarding imbalance between benefit of parliament or executive?

Answer 66

An assembly regim is when there is too much power for the parliament. (Happened during 3rd and 4th Republic).
Another issue is that the parliament is too week compared to the government. This has happened during the 5th republic as we go towards a more dualist regime. Growing powers of the president, etc.

Question 67

What are the elements to a Presidential Regim?

Answer 67

There is a strict separation of powers. Each branch has their own sphere of actions and maintain only a minimum relation between each others.
The powers do not have mutual levels of destruction

They do have ways to influence each other and ways to colaborate (Called Checks and Balances):
The president has a right of message though State of Union - a way to influence congress
The president has veto power to mark his opposition
The senate must ratifu treaties
Important appointments must be confirmed by the senate

Question 68

Who advocated to improve the system from the imbalance between Executive and Legislative branch?

Answer 68

Chadima Rigo, in his book A Parliament for What?, reflected on the crisis of the system and how the Parliament had become useless, and wanted to reinforce the power of the parliament.

In 2007, the Committe on the modernation and rebalancing of the Constitution / Baladure Committe was created. Made proposals to change the Constitutions and the idea was to reinforce, develop and strenghten the parliament.

Question 69

What was the reason for the executive gaining power?

Answer 69

There have been civil changes to the Constitution that have reinforced the powers of the President. There are examples of this.
Reform of 1962: President was not directly elected by the people beforehand. Charles de Gauile used Art 11 instead of 89, so the article for Legislative referendum, not Constitutional referendum. He therefore escaped the step of getting approval of the National Assembly.
Reform of 2000, the length of the president was changed. Before 7 years, now 5 years. The consequence of this is that the order was reversed. First you vote for the president and then you have the legislative election.

Question 70

What are the two conceptions of the role of the President vs Prime minister?

Answer 70

There is now an imbalance between those roles.

Richard Dubré, in Conseil d’Etat 1958, viewed President as an important Refere, above the political game, not an active player. Instead plays key role in Institutions.

Gerard Miggout thought the President must be a Active Player. Play an active role in political game, have strong legitimacy and indicate the direction.

Question 71

How does the Constitution reflect the double influence of presidential power?

Answer 71

Certain articles refer to the Refere Conception, like: Art 5 about President ensuring the respect of the Constitution
Art 8 President appoints the prime minister
Art 12 Prime minister must be consulted before dissolution
Art 17 Right to Pardon
Also Art 54, 56, 61

Other articles refer to the Active Conception, like:
Art 11 Referendums
Art 13 Regulatory power of president, like adopting executive orders
Art 16 Exceptional powers in times of crisis
Art 19

Essential articles that can be interpreted differently:
Art 5, 8
Art 20 Government determines and conduct the policy of the nature
Art 21 The prime minister directs the action of the government

The conception that he as a more active role is more relevant.

Question 72

Under which circumstances does the president have a reduced role?

Answer 72

Under Cohabilation: The president is from a different party than the prime minister.

Art 8 says president appoints the prime minister, so why? Because the prime minister answers to the assembly.
Art 20 states that the government decides the policy if the nation - it is in theory but does not match in practise because in reality it is the president. Instead the role of the prime minister is to ensure that the main principal orientations developed by president are implemented. There is a gap between Art 20 and 21.

Question 73

Has there been a clarification of the role of the President and Prime minister?

Answer 73

In 2007 a committe was set up to modify the Constitution to reduce the gap between Art 20 and 21.
To add a § in Art 5 “The president defines the policy of the nation”
And rewrite Art 20 “The government conducts the policy of the nation”

There changes were not adopted.

Question 74

How is the president elected?

Answer 74

Since 1958, the president is chosen by an electual college of politicians of 80 000 member.
Before 5th republic he was chosen by the parliament, but this made him lack prestige and status. Legitimacy is found in the will of the people.
Charles de Gaulle was the first person chosen with this new college.

Question 75

What proposition did Charles de Gaulle make to improve the legitimacy of the President?

Answer 75

Reform of Oct 28 1962 to revice Art 6 and Art 7 of the Constitution to make the President directly elected by the people.
This is the famous example of when Gaulle used Art 11 instead of Art 89 to modify the Constitution, which was a violation of the Constitution.

Question 76

Who can be a candidate for President?

Answer 76

Anyone, but certain criterias:
- French citizen
- Over age of 18 (before 2011, it was 23)
- Enjoying his or her civil and political rights
- Not in a case of incapacity
- Have signature of 500 qualified elected official for sponsorships from at least 30 departments (no more than 50 of these officials from the same department)

Question 77

What is the rules and procedure of signatures like?

Answer 77

42 000 people can sponsor a candidate, it can be
- a member of parliament (national assembly or senate)
- french member of European parliament
- mayor
- assembly at department level or regional level

One elected official can only present one candidate
You cannot withdraw it once you send it to the Council
The Counsil will publish the verification list in Journal Officiel 15 days before first

Question 78

What changes have been done to number of candidates and the required signatures

Answer 78

In 1969, 7 candidates. President resigned.
1974, 12 candidates. President died
Then both increase and decrease of number of candidates.

Until 1966, candidates needed 100 signatures. Modification of Organic Law of 64

Question 79

What is best: Published or Confidential list of signatures?

Answer 79

Argument for confidentiality: If the list is published one may lead to people being reluctant to sponsor some electives. I dont want to be associated with those ideas.

Argument for publication: Important to be transperant in democracies.

Marine Le Pen - says the publication violates Art 4 in Constitution about pluralism and the Equality provision. Conseil Constitutionnel says it does not.

Question 80

What problems with the system today exists and what reforms have been proposed?

Answer 80

Issues with our system today:
-It can be unfair for candidates outside the system
-Practises can be incompatible with dignity of operations contributing to any elections - so the Conseil recalled that the sponsorships are voluntary and personal act which cannot give rise to bargaining or reevaluation. You cannot sell your signature
-Strong pressure on mayors on small towns. Before 2016, the signatures were sent to conseil by participants, now elected officials will send them.

Reforms proposed:
- Raise numbers of signatures to 1000
- 2017 committee proposed to abandon system of sponsorships an replace with college of 1000 elected officials who would secretly nominate candidates fot ehe election
- Keep the system, but signatures must be confidential
- 2012, only candidates who have collected 150 000 sponsorships from citizens
- Proposal to establish a citizen sponsorship procedure in addition to sponsorship by elected officials

Question 81

What is the difference between the French system and US system?

Answer 81

In the US, you have primary elections - any political party is able to choose its candidates before the campaign starts.
In France the citizens are not directly involved. Here, the results of the first round acts like a primary, however in practice the parties may have an interest in selecting its candidates before the campaign starts.

Arguments: If you rely on first round, the division of roles could lead to elimination of the candidate of the party in the first round.
Another reason is the fights during the first of the candidates of the same political family could make it harder, more difficult for the transfer of votes to the best placed candidate.

Question 82

What have been the development regarding preselecting candidates?

Answer 82

Some political parties started having own primaries. For instance Socialist party in 1995 they introduced this system for the presidential election.
From 2003 this system is in the statues of the party
In 2012 open primaries were introduced, not limited to the members of that party
In 2017 broader primary

Question 83

What is advantage/inconvenience with preselecting candidates?

Answer 83

Those primaries gave mixed results. Advantage is the best candidates with increased legitimacy because selected by members of that party, but inconvenience is that some candidates not selected will have bad faith, refuse to support the candidate selected.

Question 84

How do we vote for the president?

Answer 84

The election takes place in two round.
First the campaign two weeks before first round.
In first round, a candidate must obtain an absolute majoirty of the votes
If no one gets this majority, a second round is organized 15 days later where only two top candidates can appear
Art 58 of Constitution: In the end of the election, the Conseil Constitutionel is responsable for ruling on the legal challenges presented by the voters, and they will proclaim the results and the name of new president

Question 85

What are the rules between the candidates? The two main principles in the election?

Answer 85

Rule of Equity: The principle is used before the official campaign starts. The amount of attention, speeches of each candidate is based on representation of the candidate.

Rule of Equality: The principle is used once the official campaign starts. Same amount of time for all. Same amount of time on TV, Radio.
This principle is ensured by different institutions, like Archom. La commission nationale de control presidentiel will make sure of this.

Question 86

How is the finances regulated? (The amount of money to a candidate)

Answer 86

Amount of money is very regulated.
Two sorts: Private individual money or Public finance

Contributions by individuals are regulated
In law of 2017, only natural persons of French nationality can make contributions for candidates. 4600 euros.

Regarding Public finance, is it money from the state to help the campaign. You need to respect the rules.
Keep the campaign book (expences during campaign), will be submitted to an insitution: National Commission for Campaign accounts and political financing.
First round, you can spend max 16,8 million euros.
Second round, you can spend 22,6 euros
The amount is based on the results.
If the Commission finds irregularities, they can reduce amount of public funding or make candidate lose the right to public funding.
Appeal to Conseil Constitutionel. Example in 2012 Nicolas Sarcozy.

Question 87

For how long can one be president?

Answer 87

Art 6 of Constitution: President is elected for 5 years, and no one may hold office for more than 2 consecutive terms (so he can wait and then run again)
Longer than 5 years if incapasited or impeachment. Another option is vacancy: President is no longer here, dead, resigned or removed - then the president of the senate will be president. Same powers except for Art 11 Referendum, Art 12 Dissolution of government, Art 89 Modification of Constitution

Question 88

How is the immunity of the president regulated?

Answer 88

Criminal responsibility of the president
Art 67: President can have no liability for no action made as a president, but two exceptions:
- Art 68 President’s term is interrupted if the president is removed by the High court
Adopted in 2007 because scandal with Jacques
- Art 53.2 Commits serious crime of International Law: Genocide, crime of aggression, crime of humanity, crime of war
Art 67.1 is about irresponsibility
Art 67.2 is about inreliability. Should not be required to testify, or be object of any civil proceeding, criminal procedure, investigory measures.
What is the aim with this? To protect the office.
After the term the president will be a regular citizen and be object to proceedings, like Jacques.

Question 89

How can the president be dismissed in the case of failure to perform his duties which is manifestly incompatible with the exercise of his mandate?

Answer 89

Art 68 of Constitution
1.The procedure is activated by either National Assembly or Senate, which votes with 2/3 majority requirement, on a proposal for a meeting of high court.
2.National Assembly or Senate must vote on a proposal within 15 days (2/3 majority)
3.Meeting in High Court has one month to hold a meeting, and they will decide with 2/3 majority requirement whether the president should be dismissed or not.

2/3 to make it harder, not used as political weapon
The responsability of president tends to become more political, why?
-Name change, before it was High Court of Justice
- Procedure only for removal of president
- Political interpretation of Art 68

Question 90

What is a counter-signature?

Answer 90

Countersignature = a procedure in which the prime minister or secretary of state take political responsibility for the acts of the president

Question 91

What powers of the president require no counter-signature?

Answer 91

Art 19 of Constitution: Acts of president are counter-signed except for Art 8 para 1, 11, 12, 16, 18, 54, 56, 61.

Art 8 Para 1 Apointment of the prime minister
Art 11 Referendum
- Organisation of public powers, ratification of treaty, or reforms relating to economic, social or environmental policy
Art 12 Decision to dissolve national assembly belongs to the president. Only consult prime minister, national assembly, senate
Art 16 The exceptional powers of the President, conditions:
- Serious and immediate threat affecting the institutions, integrity of territory, independence of a nation, or execution of France’s international commitments
- The interruption of regular functioning of Constitutional public powers
- President must consult prime minister, assembly, constitutional council
- President must inform the nation by a message
There have been a modification of Art 16 to ensure a greater form of control. After 20 days Constitutional ccouncil can be asked to evaluate if the conditions still are met, and it is published. After 60 days the Constitutional council can verify itself.

Question 92

What are the referendums made in history?

Answer 92

Cannot be viewed by Constitutional Counsil, but room for debate.
8 referendums has been held since Charles de Gaulle.

• Algeria decolonization 1961
• Algeria independence 1962
• Election of president directly by people 1962
• Reform of senate and regioutes 1969
• Pompido and ratification of enlargement of the common market 1972
• Statues of New Calibara 1988
• Ratification of Maastricht treaty 1992
• Ratification of treaty establishing European Constituon 2005
• New procedure of Conseil Constitutionel, shared initiative for referendum 2008

Question 93

What are powers submitted to counter-signature?

Answer 93

All other acts not mentioned as exceptions in Art 19.

Question 94

How does the 5th Constitution stand out regarding the government?

Answer 94

It was not limited to restoring the authority of the president, not the only goal.
It also enhanced and developed the powers of the government. To ensure a stability missing under 3rd and 4th republic

Question 95

What are the powers of the government?

Answer 95

Art 20 of Constitution: The government determines and conducts the policy of the nation
Art 21 of Constitution: The government is a decision-making body and takes action.

Question 96

What are the individual powers of the prime minister itself?

Answer 96

He directs the action of the government - is the head of government. He ensure arbitration between ministers and make choice when conflict between ministers.
He enforces governmental solidarity and for this he has regulatory powers under Art 21 and 37 of Constitution.
Deeply involved in legislative procedure, Art 39: He has initiative of laws
When no cohabilation, presidential supremacy. Only partial application of Art 20, they will not decide policy.
When cohabiliation Art 20 is applied that states that government determines and conducts the policy. To rebalance powers of president and prime minister.

Question 97

How is the legislative power divided?

Answer 97

The legislative power is vested in two Chambers:
- National Assembly
- Senate
The bicarabalism is not equal - the National Assembly has more power than the Senate concerning exercise of legislative function and control of government.
Because National Assembly chosen directly by the peoeple, and represent the nation and has more legitimacy. Senate is chosen indirectly.

Question 98

What characterizes the election of the National Assembly?

Answer 98

Art 24 of Constitution: 577 is maximum members
You must be 18 years old and a French citizen to be eligible.
Law in 2000 that they must sponsor same number of men and women, max 2 % in difference
In 2022 - 37 % women in National Assembly

Votes in 2 rounds and elected for 5 years.
In first round, you need absolute majority of votes representing 25 % of voters registered
In second round, candidates who obtain 12,5 % of votes can participate. And in second round it is who get most votes.

Question 99

What characterizes the election of the Senate?

Answer 99

Art 24: 348 members max
Must be 24 years old and the term is 6 years.
Elected by a college of electors, elected officials.

Question 100

What is the function of the parliament?

Answer 100

Art 24: The parliament has three functions
- Votes the law (legislative)
- Controls the action of the government (control)
- Evaluates public policies

Question 101

What is the government bill?

Answer 101

Art 45 of Constitution: Every government bill are private member bills shall be considered successivily in the two houses of Parliament with the view to the passing of an identicle text”
- So it is a bill coming from the prime minister.
Different from private members bill.

Question 102

What is the procedure for a bill?

Answer 102

They are both discussed by both houses to reach an agreement - The Parliamentary Shuttle.
Government has power to shut the Suttle after two readings in each house.
Or prime minister can call for meeting of Joint Mediation committé.
If no compromise, the government can ask national assembly to vote for the text as it is (Unequal mechanism)
If Joint Mediation committé succeeds, the text woll be submitted for approval for both assemblies.

If emergency, there is an accelerated procedure. Then government can activate Joint Mediation Committe after only one reading of each house.

Once the bill is voted, it is sent to president who must sign it within 15 days of its transmission. Then the law is sent to Constitutional Counsil - A priori review (one of two ways)

Question 103

How is the responsibility of Government before the Parliament regulated?

Answer 103

It constitutes one of the central elements of the Parliamentary system
Art 49 of Constitution: provides for the mechanism allowing the Parliament to activate the responsibility of the Government.
Art 20 of Constitution: Also mentions the responsibility “The government is accountable to the Parliament in the conditions and following the preocudes provided for Art 49 and Art 50” (unequal mechanism)

The constitutional council has interpreted these articles very strictly.

Art 50 When national assembly adopts a motion of centure or when is disaproves, the prime minister must admit to the president the resignation of the government.

There are multiple ways for the political responsibility of the government to be actived.

Question 104

What are the ways the political responsibility of the government can be activated?

Answer 104

Art 49 Para 1 of Constitution: Activated by the question of confidence.
The prime minister can issue a vote, but he is not obliged according to decision 1977 of Constitutional Council.

Art 49 para 2: Activated by the Motion of censure.
The initiative lies within the members of National Assembly
1/10 of members can initative this process. Each member authorized to introduce three motions of censure per ordinary session
Only one have been successful, 1962 on Pompodou.

Art 49 para 3: The provoked motion of censure and engagement of responsibility by the government on the vote of a text
A mix of Para 1 and 2. The government may engage its responsibility on a text, pass the law through the Assembly without the vote and without debate provided that no motion of censure succeed.

The burden of proof: No longer for the government to prove they have a majority of the assembly.

Art 49 Para 4 Responsibility of the Government to the Senate
Prime minister has the power to ask senate to approve general policy statement. But if you don’t have the confidence of the senate, you are not requires to resign.
Art 50 provides that Art 49 Para 4 is not binding. So only the National Assembly has the real power to overthrow the government.

Question 105

What is the competence of Constitutional Council?

Answer 105

Created in 5th republic
Competence to check the conformity of the law with the Constitution
First is was the conformity before the adoption of the law. But the role was gradually increased.
Fundamental decision 1971: Creation of Block of Constitutionality.
1974 Modified Art 61 of Constitution, it extended the number of authorities which are able to refer a law to Constitutional Council. 60 members of NA or Senate
2008 proposal to change name to Constitutional Court, not adopted.

Question 106

Who are the members of Constitutional Council?

Answer 106

• Appointed members. 9 tot. 3 appointed by president, 3 by NA, 3 by senate. Voted for 9 years, renewed every 3 years.
• Members by right. Former presidents are automatic members

Question 107

What are the missions of Conseil Constitutional Council?

Answer 107

• Consulting powers
  The president must consilt the Constitutional Council when he decide to use the power of Art 16
• Judge of elections
  Art 58 of Constitution: Gives compeence to conseil to be the judge for the election of the president
  Art 59: Competent for election of parties of parliament
  Art 60: Will be consulted on the text submitted for referendums, and be the judge on legality of the preliminary operation of the acts adopted before the actual referendums
  Art 21: If disagreement on bill, the bill/amendment is outside the scope, the conseil intervenes and gives it inadmissable decision about it
• Judicial review
  Will check if a law is in conformity with the legislation
  Automatic for organic laws (implement rules mentioned in constitution) and rules of procedure of chambers.
  For ordinary laws, the review is optional. Only when the law is referred by prsident, prime minister, pres senate, pres NA, and since 1974 60 members of senate or NA.
  The Conseil can intervene A priori - before the law enters into force.
  Have been some proposals for solution for unconstituional laws. Proposal 2008 created Question Prioritaire.

-En fjärde. Referal from a judge
There is possibility raise argument in front of a judge regarding unconstitutional law, not directly at conseil, but it will be sent to the conseil.
Law of the state of the emergency - law extended to give power to administration. Controversial law because it can violate rights and freedoms guarenteed by the Constitution.