The use of Article 49 paragraph 3 of the Constitution by the government on eleven occasions, between October 2022 and March 2023, seems to have led to a general distrust of the constitutional mechanisms governing Parliament in financial matters . Some of the deputies seem to make challenging these mechanisms their new business. This is the case with article 40 of the Constitution, which the recent bill by the Liot group (Liberties, Independents, Overseas and Territories) on pension reform is currently putting in the spotlight.
According to this constitutional provision, “proposals and amendments made by members of Parliament are not admissible when their adoption would result in either a reduction in public resources or the creation or aggravation of a public office”. This is easily understood: this article of the Constitution – which has always been contested – limits the initiative of parliamentarians when it comes to deteriorating the public financial situation.
The current debate focuses on the admissibility of the Liot group’s bill, since it, by proposing to repeal purely and simply the pension reform adopted last April, would have consequences on both expenditure and revenue. public. According to various estimates, this reform would cost 15 to 20 billion euros. Moreover, this proposal provides for the compensation of the increase in expenditure, and the resulting loss of revenue for the social security bodies, by an increase in the excise duty on tobacco.
Our object, in these few lines, beyond this topicality, is to recall the functioning and the usefulness of the contested device of article 40 of the Constitution. This provision is a financial safeguard. This constitutional mechanism prevents legislative provisions having significant financial consequences, including on the very balance of public finances, from being passed on the initiative of parliamentarians, even though it is up to the government to determine national policy.
This is to avoid that, in favor of alliances of convenience and against the government, demagogic measures encumbering public finances are adopted. Finally, we come back to the logic of the Fifth Republic: the opposition must not be able to be hidden, if the government can no longer have its policy adopted, including financial, it must be brought down head-on, by overthrowing it by a vote and not practice some kind of parliamentary guerrilla warfare.
What would happen if such a constitutional provision were to disappear? To tell the truth, in a majority system, based on a solid parliamentary majority, probably nothing, the government calling the members of its majority to reason when necessary and the texts emanating from the opposition having no chance of prospering .
But in the presence of a relative parliamentary majority in the face of oppositions ready to alliance on a text, while not agreeing on government censorship, public finances and the government’s budgetary policy could be pulled to hue and dia. Article 40 protects public finances but also, as far as possible, their overall consistency. And once again, if a majority exists to oppose this consistency, all they have to do is transform the trial by bringing down the government…
Then, monitoring compliance with Article 40 of the Constitution must be a real political exercise, in the noble sense of the term, outside of any partisan logic. This respect is, initially, ensured by the parliamentary assemblies themselves. Indeed, it is up to each of the two assemblies, and in particular their Finance Committees, to determine, in their respective regulations, the modalities of this “internal” control.
The implementation of Article 40 of the Constitution therefore allows parliamentarians to control themselves the admissibility of legislative proposals and parliamentary amendments, even if it means, in particular, with regard to amendments to show, possibly with the complicit silence of the government. , flexibility in assessing the financial consequences involved; parliamentary practice has somewhat blunted the “cleaver” of Article 40.
Interestingly, the Constitutional Council, by virtue of its own case law, can only be seized of compliance with Article 40 of the Constitution, in the context of the review of the constitutionality of a law, if the question of the admissibility of the bill or parliamentary amendment was first raised before one of the two assemblies.
So far, the assemblies have carried out this control in a way that seems satisfactory, even though, on paper, other control bodies could be envisaged, at least for the admissibility of bills, which require less work in the urgency and the repetition of the task that the amendments – Court of Auditors or Council of State, in particular. Would Parliament win? Of course not.
To call for an absence of scrutiny of the financial consequences of parliamentary bills and amendments would be unreasonable; it would be to appeal to the old demons of demagoguery and to games of political alliances to allow the adoption, as under past regimes, of such and such a financial measure against the position of the government but in favor of such and such an economic sector, at the risk of further damaging public finances and the image of politics.
Invoking another form of control, which would still have to be invented, more respectful of Parliament and the initiative of parliamentarians and more consensual, would come under the heading, when it comes to quickly assessing the financial consequences of a bill and even more than one amendment tabled on a text under discussion, with a laudable intention but certainly a pious wish…
Article 40 of the Constitution is not the perfect solution in the idea that one can have of the freedom of parliamentary initiative, but it is doubtless, for the sake of balance between the institutions – to plagiarize a well-worn formula – the worst procedure, except for all the others. Let’s think about it seriously before putting Article 40 of the Constitution on the scaffold.
* Xavier Cabannes is a professor of public law at the University of Paris-Cité; Aurélien Baudu is a professor of public law at the University of Lille.
