2023-12-14 19:54:55
In the midst of a political crisis surrounding the “immigration” bill, the Constitutional Council placed the government in a delicate position on Thursday, December 14, posing a legal risk if the executive decided to use article 49.3 of the Constitution to have this controversial text adopted – without a vote.
Seized by the National Rally (RN) on November 16 on another text (the public finance programming law for the period 2023-2027), the institution chaired by Laurent Fabius was invited to decide whether the repeated use of 49.3 on this financial text deprived the government of the possibility of using it again on another bill until the end of June. They ultimately did not answer this question, considering that it did not fall within the scope of the request.
The Constitution authorizes the government to use article 49.3 only once per parliamentary session, except for budgetary texts, such as finance laws, for which recourse is unlimited. But programming laws, which set a non-binding public finance trajectory, are considered ordinary laws. If the executive uses article 49.3 to have them adopted, it deprives itself of this tool for the rest of the session.
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This is the reason why Bercy, anticipating a rejection of the text by the oppositions, chose to convene an extraordinary session for this purpose on September 25. But as the text moved back and forth between the National Assembly and the Senate, the second reading took place in an ordinary session on November 13, and therefore required recourse to article 49.3 outside of the initial schedule.
Uncomfortable situation for the executive
Believing that the government had exhausted its last cartridge, the RN elected officials hoped that the constitutional judge would deprive it of the possibility of a new recourse to 49.3 by the end of the parliamentary session. But the institution did not decide on this precise point, contenting itself with validating the procedure used by the executive on the programming law. “The Prime Minister may use the procedure provided for in the third paragraph of Article 49 of the Constitution for successive readings of the same bill or proposed law during different sessions”indicates the Council in its decision.
Go further: How does article 49.3, used for the twelfth time by Elisabeth Borne, work?
Clearly, in its view, the programming law was adopted under regular conditions but the Constitutional Council does not indicate whether the government still has the possibility of resorting to 49.3 by the end of the session. It does not prohibit it, nor does it formally authorize it, even if certain jurists estimated Thursday evening that the wording of the Council’s decision, by largely repeating the government’s argument, tended to reinforce it. “The use of 49.3 only once per session aims for the debate on the entire text and not each reading, interprets Jean-Pierre Camby, associate professor of law at Paris-Saclay University. The government has not used its cartridge. »
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