The Council of Europe questions the use of Article 49.3

June 14, 2023

The Council of Europe, watchdog of human rights on the continent, on Wednesday threw a stone into the pond of French political life by considering that article 49.3 of the Constitution “raises questions with regard to the separation powers”.

The article in question, which allows legislation to be passed without a vote of Parliament, has been in the Constitution since 1958, and has been used 100 times by successive governments since that date, including no less than 28 times by the government of Michel Rocard (1998-1991), and 11 times by the current Prime Minister, Elisabeth Borne since her appointment in May 2022.

Since 2008, this article can only be activated for finance or social security financing bills, and for only one other text per parliamentary session.

In an interim opinion published on Wednesday, the Venice Commission, a Council of Europe advisory group providing States with legal opinions on draft laws or texts already in force, considers that this mechanism “raises questions with regard to the principles pluralism, the separation of powers and the sovereignty of the legislator”.

This article constitutes a “significant interference by the executive in the powers and the role of the legislative power”, observes the Commission. 49.3 “does not represent a form of delegation, but rather autonomous legislative authority in the hands of the executive”.

She concludes that “in a way apparently unmatched by other European countries”, Article 49.3 “reverses the burden of initiative” of adopting a text, “by providing that the members of the Assembly must present and vote by an absolute majority a motion of censure in order to reject the law”.

It thus allows, according to her, “in certain cases”, the adoption of a law “without a real and in-depth discussion of its content”.

The authors of the opinion also criticize the control of the use of 49.3 by the Constitutional Council. This control, restricted to “strict compliance with the activation procedure”, “limits the guarantee of the supremacy of the legislative power”.

The Venice Commission announces, however, that it will carry out a “comparative analysis” of the mechanisms which allow governments “to intervene in the legislative powers of the parliaments” of other European countries, before publishing its final conclusions.

Article 49.3, drawn up as a response to the situations of parliamentary deadlock observed under the Fourth Republic, is regularly the subject of criticism from political leaders, including those who have had recourse to it.

In 2006, François Hollande, then MP for Corrèze and first secretary of the PS, castigated the use of this device to have the CPE (first job contract) adopted, speaking of “a denial of democracy”.

“49.3 is brutality, 49.3 is a denial of democracy, 49.3 is a way of slowing down or preventing parliamentary debate,” he said. A few years later, during his presidential term (2012-2017), Prime Minister Manuel Valls had recourse to it six times.

The latter had proposed, during the PS primary in 2016, to “purely and simply delete” 49.3, “outside the budget text”, denouncing its “perverse effects”.

In the same vein, a group of 60 deputies from the Nupes tabled in March a constitutional bill “for an article 49 respectful of national representation”, aiming to delete article 49.3 of the Constitution.

The Council of Europe, which sits in Strasbourg, brings together the 46 signatory states of the European Convention for the Protection of Human Rights.

Its various bodies regularly publish reports and advisory opinions: in March the institution’s human rights commissioner, Dunja Mijatovic, criticized the “excessive use of force” against demonstrators by the police. as part of the social movement against pension reform.