“Only the removal of Article 40 of the Constitution is likely to restore confidence in political life”

2023-05-30 05:45:04

Lhe French are finally (re)discovering the existence of their Parliament, with the new dynamic of practices instilled by the absence of an absolute majority. Eyes were focused in an unprecedented way on well-known procedures, such as the famous article 49.3, but also little known, such as article 40 of the Constitution, brandished by the majority to avoid having to discuss the group’s bill. LIOT (Freedoms, independents, overseas and territories) which wants to reconsider the extension of the legal retirement age to 64 years. Long ignored by public opinion, this provision is nevertheless central to understanding the separation of powers and Parliament’s place in it.

Also read the column: Article reserved for our subscribers Eric Coquerel: “Those who brandish article 40 are undermining the right of the opposition”

Article 40 prohibits a parliamentarian from imposing or increasing a public burden which can never be compensated, unlike a reduction in public resources which can, in turn, be “pledged” by a simultaneous increase in resources. A great classic then consists in guaranteeing the text by an increase in the tobacco tax. But, in general, the proposed text does not entail such a significant reduction in resources as that resulting from the adoption of the LIOT bill, here approximately 18 billion euros. However, as affirmed by the Constitutional Council, the pledge must be credible, sufficient and immediate, which implies respecting a certain proportionality.

It is still necessary that a control be carried out, and, on this subject, another controversy has arisen in recent days. Resulting from a long maturation of practices, the methods of application of article 40 have led to granting a leading role to the chairman of the finance committee. Certainly, a systematic control prior to the filing of a bill is carried out by a delegation from the office of the Assembly, but the great tolerance of this first filter poses more difficulties than it solves. The inadmissibility can then be raised at any time, by the government or a deputy. In the absence of a reaction, texts contrary to the Constitution can therefore be adopted.

Fallacious and almost irrevocable arguments

If the regulations of the National Assembly (RAN) provide for other supervisory authorities – the presidents of the Assembly and of the competent committees or the rapporteur of the finance committee, according to various criteria –, these request almost systematically the opinion of the Chairman of the Finance Committee considered, in practice, as binding. Even if this central role is less the result of the provisions of section 89 of the RAN that of parliamentary practice, it is indeed to this that the deputies submitted with regard to LIOT’s bill.

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