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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 decrees, 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.
Article 34 of the Constitution of France 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 decrees 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 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, 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").
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 decrees, 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.
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 France 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 Francs to Euros 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.
Ordonnances have been extensively used as a form of rule by decree 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).
The main reference is article 38 of the Constitution of France.
- Jean V. Poulard, The French Double Executive and the Experience of Cohabitation, Political Science Quarterly, Vol. 105, No. 2 (Summer, 1990), pp. 243-267
- Jean-Luc Parodilien, Proportionnalisation périodique, cohabitation, atomisation partisane : un triple défi pour le régime semi-présidentiel de la Cinquième République, Revue française de science politique, 1997 vol 47 nr 3-4, pp. 292-312
- Valérie Moureaud, Le refus de signature des ordonnances en 1986 : un enjeu structurant en période de cohabitation, Revue d'étude politique des assistants parlementaires, nr 2
- Les ordonnances - bilan au 31 décembre 2007, section I
- Les ordonnances - bilan au 31 décembre 2007, section III C
- Cécile Castaing, La ratification implicite des ordonnances de codification. Haro sur « La grande illusion », Revue française de droit constitutionnel, n° 58 2004/2, pp. 275 à 304, P.U.F., ISBN 978-2-13-054645-0, doi:10.3917/rfdc.058.0275
- Les ordonnances - bilan au 31 décembre 2007, section I A 3
- Les ordonnances - bilan au 31 décembre 2007, introduction
- Law 2000-517 authorized the government to adopt ordinances to convert sums from Francs to Euros in various legislative texts.
- Bernard Rullier, Le Parlement sous la onzième législature 1997-2002, Revue française de droit constitutionnel, n° 54 2003/2, pp. 429 - 447, ISBN 978-2-13-053967-4, doi:10.3917/rfdc.054.0429: the former chief of staff of the Minister for relations with Parliament during the Jospin administration criticizes the use of ordonnances and article 49-3 in 1995 by Alain Juppé, particularly to force a reform of Social Security without the intervention of Parliament, resulting in mass strikes.
- Loi n°58-520 du 3 juin 1958 relative aux pleins pouvoirs
- Les ordonnances - bilan au 31 décembre 2007, note from the law services of the French Senate, 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.