The Venice Commission attacks Article 49.3 of the French Constitution. In an “interim opinion” published on Wednesday, this Council of Europe advisory group providing States with legal opinions on draft laws or texts already in force, scratches the mechanism used by governments to allow the adoption of laws without a vote of the National Assembly.
According to him, article 49.3 “raises questions with regard to the principles of pluralism, the separation of powers and the sovereignty of the legislator”, declared a body of the Council of Europe (which brings together the 46 signatory states of the European Convention for the Protection of Human Rights). He also recalls that it is “necessary to preserve the balance of powers between Parliament and the executive”.
The government of Elisabeth Borne and 11 times 49.3
Since May 2022, the government of Elisabeth Borne has thus used this system 11 times, the last time in March for the pension reform. This article “does not represent a form of delegation, but rather an autonomous legislative power in the hands of the executive”, observes the Commission, which examined “the safeguards that exist against excessive use and the risks of abuse of use”.
It concludes that “in a way apparently unparalleled by comparison with other European countries”, Article 49.3 “reverses the burden of the initiative” of the rejection of a text “by providing that the members of the National Assembly must present and vote by 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 Commission announces however that it will carry out a “comparative analysis” of the devices which allow the governments “to intervene in the legislative powers of the parliaments” of the other European countries, before publishing its final conclusions.