The Balance of Legislative and Regulatory Powers in the French Constitution

Extract

[...] It is around this question that the relationship between the legislative power and the regulatory power is situated. If the legislative power is the power to make laws, a traditional expression of popular will and the work of Parliament, the regulatory power is that which is held by the various administrative authorities to take acts of a general and impersonal nature, like a law. These two powers do not oppose each other, but can intervene in similar areas. As a result, historically, in the hierarchy of norms, the law has always had a predominant and higher role, as well as Parliament having a predominant role in French institutions. [...]

[...] From a more general point of view, the case law has always been more protective of the powers of the legislative power vis-à-vis the regulatory, while thus conferring a higher value on the law over the regulation. In the end, if the Fifth Republic seemed to have shaken up the relationships in the normative field, the consequences had to be nuanced by a very mitigated practice. [...]

[...] In concrete terms, the legislative domain has been restricted to certain matters, the Parliament being unable to intervene in other areas. On the other hand, in all matters in which the Parliament is not competent, the Government can adopt general and impersonal norms that have almost the same value as the law in the normative hierarchy. We will call these texts autonomous regulations. It is about laws in the sense of formal and material content, but not in the sense of organic law. B. [...]

[...] The constitutional establishment of two separate domains: articles 34 and 37 of the Constitution The Constitution of 10 October 1958 introduced a new mechanism in French constitutional history by which the law no longer seems to be at the center of the normative domain, but is delegated to act in a set of matters only. For the rest, the regulation has become the common normative power. This was made possible by the drafting of two distinct articles, article 34 and article 37, which provides, in its first paragraph, that « matters other than those that are within the domain of the law have a regulatory character. [...]

[...] However, it remains that several other mechanisms are offered, in return, to the legislative power to nuance the regulatory power. B. The limitation of regulatory competence by the legislative power This upheaval desired by the 1958 Constitution to avoid assembly regimes has been strongly nuanced by the practice following the establishment of the Constitution, and in particular by the rebalancing of parliamentary powers desired by the 2008 constitutional reform. First, it is essential to recall that all norms emanating from the regulatory power must always respect the laws, which shows a hierarchical subordination of the regulatory power to the legislative. [...]