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Legal order - France

 

TABLE OF CONTENTS

1. What are the instruments, or “sources of law”, which set out legal rules (in particular, international treaties, Community law, the constitution, laws, decrees, regulations, implementation decrees, etc.) ? 1.
1.1. International sources of law 1.1.
1.1.1. International agreements 1.1.1.
1.1.2. Community law 1.1.2.
1.2. National sources of law 1.2.
1.2.1. Constitutional rules 1.2.1.
1.2.2. Legislative rules 1.2.2.
1.2.3. Regulations 1.2.3.
2. Where relevant, what are the other sources of law (especially, for example, general principles of law, custom, case law in the courts) and what is their value? 2.
2.1. General principles of law 2.1.
2.2. Case law 2.2.
2.2.1. International case law 2.2.1.
2.2.2. European case law 2.2.2.
2.2.3. National case law 2.2.3.
3. Where relevant, what is the hierarchy between the various instruments (hierarchy of norms) ? 3.
4. What are the procedures for bringing the rules contained in supra-national instruments into force within the national territory? 4.
4.1. International agreements 4.1.
4.2. Community law 4.2.
5. What are the various authorities empowered to adopt rules of law? 5.
5.1. International instruments 5.1.
5.2. National instruments 5.2.
6. What is the process for adopting these legal rules? 6.
6.1. Laws 6.1.
6.2. Regulations 6.2.
7. What are the procedures for bringing national rules into force? 7.
7.1. Publication 7.1.
7.2. Notification 7.2.
8. What are the means for settling possible conflicts between different legal rules within the Member State? 8.

 

By “sources of law” we mean the processes by which the legal rules that constitute our legal order are drawn up.

1. What are the instruments, or “sources of law”, which set out legal rules (in particular, international treaties, Community law, the constitution, laws, decrees, regulations, implementation decrees, etc.) ?

1.1. International sources of law

1.1.1. International agreements

These are international treaties and agreements negotiated between France and foreign States, such as, for example, the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, which came into force, as far as France was concerned, in 1974 and which currently binds 40 member states of the Council of Europe.

1.1.2. Community law

Apart from the rules that have emerged from Community treaties, there is what is known as secondary legislation contained in acts adopted by European Community and European Union institutions, defined in particular by the Treaty of Rome of 25 March 1957 and the Maastricht Treaty of 7 February 1992. The nomenclature of these acts includes: directives, decisions, regulations, opinions and recommendations.

1.2. National sources of law

1.2.1. Constitutional rules
  • the Constitution of 4 October 1958;
  • the Preamble to the Constitution of 27 October 1946, the Declaration of Human and Civic Rights of 26 August 1789, and the fundamental principles recognised by the laws of the Republic to which the Preamble refers;
  • institutional laws, provided for by the Constitution to determine how certain of its provisions relating to the organisation of government will be applied.
1.2.2. Legislative rules

The Act adopted by Parliament as holder of legislative power is the expression of the general will. Article 34 of the Constitution restrictively defines those areas in which the legislative body has the power to issue rules in legislative form.

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1.2.3. Regulations

Regulations are acts of general scope drawn up by an administrative authority. Under article 37 of the Constitution, rules that do not concern the matters referred to in article 34 of the Constitution come into the area of regulation and form part of the following instruments:

  • Ordinances: by virtue of article 38 of the Constitution, the Government may ask Parliament for authorisation to take action on matters that are reserved for legislation. These measures temporarily have regulation status and acquire legislative status once they have been ratified by the legislature.
  • Regulations: decrees made by the President of the Republic or the Prime Minister, orders issued by Ministers and Prefects, decisions by deliberative or executive bodies belonging to regional authorities or their public establishments form the bulk of the general category of regulations.

2. Where relevant, what are the other sources of law (especially, for example, general principles of law, custom, case law in the courts) and what is their value?

2.1. General principles of law

These are principles established by the courts; they may or may not stem from the provisions contained in instruments of written legislation. They have a greater value than regulations and only legislation can depart from them. These principles are mostly taken from the Declaration of Human Rights of 1789 (equality of citizens before the public authorities, freedom of conscience) , the Preamble to the Constitution of 1946, the necessities of social life (continuity of public services, control of superior’s actions over the acts of his subordinates) or the requirements of equity (principle of unjust enrichment).

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2.2. Case law

In theory, the Constitution does not empower the courts to lay down general rules and their role is limited to settling disputes that are referred to them. But they will have to interpret the written law on the basis of which they settle disputes. In addition, it frequently occurs that there is no written instrument containing rules likely to apply to a particular dispute. In such a case, they cannot decline to give a ruling and the courts will themselves have to formulate the general rule enabling them to do so.

The absence of a law with general scope may lead the courts to develop highly sophisticated sets of rules through their case law, as they have done in the field of government liability.

2.2.1. International case law

This is identified by the International Court of Justice (UN’s main judicial body) , the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda, and the International Criminal Court.

2.2.2. European case law

This is identified by the Court of Justice of the European Communities (ECJ) and the European Court of Human Rights.

By virtue of article 234 of the Treaty establishing the European Community, the case law of the Court of Justice is imposed on national courts via the referral for preliminary ruling, which allows the national courts, before they give a ruling, to ask the Court of Justice for the solution to the problems posed by the application of Community law which private individuals might plead before them.

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2.2.3. National case law
  • the Constitutional Council

Laws may be referred to it for constitutional review prior to promulgation, as may treaties. It automatically reviews the constitutionality of institutional legislation and the Rules of Procedure of the Parliamentary Assemblies. On the other hand, it does not review laws adopted directly by the sovereign people at referendum.

  • the administrative courts

They are responsible for settling disputes involving public authorities. They apply a specific body of law that departs from the ordinary law and is extensively based on case law.

  • the ordinary courts

The ordinary courts settle disputes between individuals and punish offences against persons, property and society.

3. Where relevant, what is the hierarchy between the various instruments (hierarchy of norms) ?

The sources of domestic law form a hierarchy. Starting with the highest source, the hierarchy is as follows: the Constitution, the case law of the Constitutional Council, laws, the case law of the administrative and ordinary courts, and regulations.

By virtue of the principle of the primacy of Community law, regulations and directives form part of the French legal order with primacy over national laws and regulations, in accordance with the arrangements set out in legal instruments or case law.

International commitments take precedent over infra-constitutional domestic law by virtue of article 55 of the Constitution. However, they do not prevail over constitutional norms inasmuch as, under article 54 of the Constitution, where the Constitutional Council has had a law ratifying an international commitment referred to it, and declares that the law contains a clause contrary to the Constitution, the authorisation to ratify or approve the commitment in question can only be given after the Constitution has been revised.

4. What are the procedures for bringing the rules contained in supra-national instruments into force within the national territory?

4.1. International agreements

The promulgation of a treaty or international agreement in France is subordinate to its ratification or approval, and to its publication. International agreements apply directly in the French legal order.

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4.2. Community law

Certain instruments of Community law have direct effect, such as regulations, which have general application and are binding in their entirety, and decisions, which are binding in their entirety upon those to whom they are addressed. Other Community norms must be transposed into internal law by the Member State. These are directives, which bind Member States as to the results to be achieved but leave to the national authorities the choice of form and methods. Transposal must take place within the deadline set in the directive itself, by means of a law or regulation according to the subject involved by the provisions in question.

5. What are the various authorities empowered to adopt rules of law?

5.1. International instruments

With regard to international agreements, the Head of State negotiates and ratifies instruments by virtue of article 52 of the Constitution.

5.2. National instruments

Laws are voted by Parliament and therefore by the representatives of the people. But sometimes act directly via a referendum by virtue of articles 11 and 89 of the Constitution.

The authorities who adopt regulations are:

  • the Prime Minister and the President of the Republic: In theory, article 21 of the Constitution confers powers to make regulations on the Prime Minister. However, regulations that take the form of Cabinet decrees must be signed by the President of the Republic. Whichever authority they emanate from, decrees are countersigned by the Ministers responsible for their implementation.
  • Ministers: They have no general power to make regulations as such. They participate through their counter-signature in the power conferred on the President of the Republic and the Prime Minister. Some texts grant certain Ministers their own powers to make regulations governing a particular subject. They can also exercise powers recognised by case law for heads of departments in matters concerning the proper functioning of the administrative authorities that report to them.
  • Devolved (prefects) or decentralised authorities (regional and local authorities) have powers to make regulations for those areas of territorial jurisdiction.
  • Certain professional authorities (e.g. the “ordre des médecins”) are empowered to make regulations for their profession.
  • Independent administrative authorities.

6. What is the process for adopting these legal rules?

6.1. Laws

The prerogative of proposing legislation belongs concurrently to the Prime Minister (government bills) and Assembly members (private members’ bills). Bills are discussed in the Council of Ministers after examination by the Council of State, then voted in identical terms by the National Assembly and the Senate. The Act that is finally adopted by Parliament is promulgated by the President of the Republic and published in the Journal Officiel in paper and electronic form.

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6.2. Regulations

Special formalities are required for certain forms of regulation. This is the case, for example, with decrees.

  • Decrees discussed in the Council of Ministers are signed by the President of the Republic and bear the Prime Minister’s counter-signature.
  • Decrees not discussed in the Council of Ministers are signed by the Prime Minister.

Decrees known as “Council of State decrees” require the prior opinion of the “Haute Assemblée” (French Senate).

Once signed by the competent authority(ies) , the decrees are countersigned by the Ministers responsible for their execution and are published in the Journal Officiel in paper and electronic form.

7. What are the procedures for bringing national rules into force?

A rule comes into force and can be relied on from when it is promulgated and published.

7.1. Publication

Laws and decrees must be published in the Journal officiel de la République française. Publication in the Official Bulletin of the ministry concerned is sufficient for some orders. Concerning the announcement of decisions by local authorities, these may be displayed on posters or published in appropriate compendia.

7.2. Notification

The publication of individual decisions takes the form of notification to the interested party.

8. What are the means for settling possible conflicts between different legal rules within the Member State?

Before laws are promulgated, and when they are referred to it (by the President of the Republic, the Prime Minister, the Presidents of the Assemblies, sixty MPs or sixty Senators) , the Constitutional Council checks that they are compatible with the Constitution. However, once a law is promulgated, there is no procedure for challenging it. From that point on, a judge cannot censure an administrative act even if it directly violates the Constitution. If its unconstitutionality arises from the fact that it is used to apply a law that is, itself, unconstitutional, the judge cannot censure the act. The law makes it difficult for the judge to carry out his checking procedure.

Where it is contrary to a higher norm, the regulation can be challenged in the administrative courts on grounds of ultra vires. This is a proceeding for annulment, which may be used by any constituent against any enforceable decision that may be illegal, generally within two months of the date on which the contested act comes into force.

The illegality of an administrative regulation may be pleaded in the courts at any time, not as the principal action for annulment but incidentally on a plea of illegality. If the act is found to be illegal, it is not necessarily cancelled the court may disapply it in the dispute before it.



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Last update: 02-05-2005

 
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