Decision no. 2008-572 DC of 8 January 2009

A referral was made by the Prime Minister to the Constitutional Council on December 12th 2008, pursuant to Articles 46, paragraph 5 and 61, paragraph 1 of the Constitution, with respect to the Institutional Act on the application of Article 25 of the Constitution.

THE CONSTITUTIONAL COUNCIL

Having regard to the Constitution as worded pursuant to the Constitutional Act n° 2008-724 of July 23rd 2008 for the modernisation of the Institutions of the 5th Republic;

Having regard to Ordinance n° 58-1067 of November 7th 1958 as amended (Institutional Act on the Constitutional Council);

Having regard to the Electoral Code;

Having regard to the Act pertaining to the Committee provided for in Article 25 of the Constitution and to the election of Members of the National Assembly enacted by Parliament on December 11th 2008;

Having heard the Rapporteur;

1. The Institutional Act referred for review by the Constitutional Council was passed on the basis of Articles 25 and 13 of the Constitution and in compliance with the rules of procedure laid down in Article 46 thereof;

WITH RESPECT TO THE PROVISIONS CONTAINED IN PARAGRAPH 1 OF ARTICLE 25 OF THE CONSTITUTION:

2. Paragraph 1 of Article 25 of the Constitution provides : "An Institutional Act shall determine the term for which each House is elected, the number of its members, their allowances, the conditions of eligibility, ineligibility and incompatibility governing membership of each House";

3. Section 1 of the Institutional Act amends Article L.O 119 of the Electoral Code and fixes the number of Members of the National Assembly at 577. Section 7 thereof completes Article L.O 132 of said Code to provide for incompatibility between the holding of a Parliamentary seat and that of member of the Committee provided for in the final paragraph of Article 25 of the Constitution. Section 8 of the Institutional Act repeals Articles L.O 455, L.O 479, L.O 506 and L.O 533 of said Code which specify the number of Members to be elected in Mayotte, Saint-Barthélemy, Saint-Martin and Saint-Pierre-et-Miquelon. The same holds good for New Caledonia, French Polynesia and the Wallis and Futuna Islands in that it repeals Article L.O 393-1 of the Code and amends Article L.O 394-1 thereof. These provisions conform both to Article 25 of the Constitution which makes the fixing of the total number of Members of each House and rules governing incompatibility the preserve of an Institutional Act and to Article 45 paragraph 3 which provides that the number of Members of the National Assembly shall not exceed 577.

WITH RESPECT TO THE PROVISIONS OF PARAGRAPH 2 OF ARTICLE 25 OF THE CONSTITUTION:

4. Article 25 paragraph 2 of the Constitution provides that the Institutional Act "shall also determine the manner of election of persons called upon to replace Members of the National Assembly or Senators whose seats have become vacant, until the general or partial renewal by election of the House in which they sat, or to ensure their temporary replacement in the event of their agreeing to take up office as a member of the Government".

5. Sections 2, 3 and 4 of the Institutional Act amend the provisions of Article L.O 176, L.O 319 and L.O 320 of the Electoral Code applicable respectively to Members of the National Assembly and Senators, elected on a majority or proportional basis.

6. Firstly, the first paragraph of Articles L.O 176 and L.O 319 lays down the rules governing the replacement of Members elected on a majority basis in the event of their death, their agreeing to sit on the Constitutional Council, or the extending beyond six months of any temporary assignment they may have undertaken at the request of the Government. The first paragraph of Article L.O 320 does the same for Senators elected on a list system and whose seat falls vacant for any reason other than their agreeing to take up office as a member Government. The first sentence of paragraph 2 of Articles L.O 176 and L.O 319 and the second paragraph of Article L.O 320 lay down the rules governing the temporary replacement of Members of the National Assembly and Senators in the event of their agreeing to take up office as a member of the Government by providing that their temporary replacement shall terminate upon the expiry of a period of one month following their ceasing to hold ministerial office. These provisions are not unconstitutional.

7. Secondly, the two final paragraphs of Articles L.O 176 and L.O 319 and the final paragraph of Article L.O 320 provide that, if a member of Parliament who has agreed to hold office as a member of the Government decides not to take up his seat in Parliament before the expiry of one month from his ceasing to hold ministerial office, his replacement will become final.

8. Thirdly, by thus authorising a Member of the National Assembly or a Senator who has chosen to hold Government office to make permanent a temporary replacement, these provisions have failed to comply with the second paragraph of Article 25 of the Constitution which in such cases provides solely for a temporary replacement.

WITH RESPECT TO THE PROVISIONS OF ARTICLE 13 OF THE CONSTITUTION:

9. Article 13 of the Constitution provides : "An Institutional Act shall determine the posts or offices, other than those referred to in paragraph 3 hereof, for which, in view of their importance in guaranteeing the rights and freedoms or the economic and social life of the Nation, the power of appointment vested in the President of the Republic shall be exercised after public consultation of the relevant standing committee of each House. The President of the Republic shall not proceed to make any appointment when the total of negative votes cast in each committee shall represent not less than three fifths of the votes cast by these two committees. Statutes shall determine the relevant standing committees taking into account the posts or offices involved".

10. Paragraph 3 of Article 25 of the Constitution provides : "An independent committee, of which statute law shall fix the composition and rules of organisation and proceeding, shall give a public opinion on Government and Private Members' Bills drawing the boundaries of constituencies for the election of Members of the National Assembly or modifying the distribution of seats of such Members or Senators".

11. Section 6 of the Institutional Act inserts into the Electoral Code Article L.O 567-9 which renders applicable the procedure provided for in the final paragraph of Article 13 of the Constitution to the appointment, by the President of the Republic, of the Chairman of the committee provided for in the final paragraph of Article 25 of the Constitution. This provision is not unconstitutional. However, when specifying that " in each House of Parliament the relevant standing committee shall be that in charge of statutes pertaining to elections", section 6 of the Institutional Act has laid down rules which are the preserve of normal statutes.

HELD:

Article 1.- The two final sentences of the 2nd paragraph of Article L.O 176 and L.O 319 of the Electoral Code and the final paragraph of Article L.O 320 of the same Code, as worded pursuant to sections 2 to 4 of the Institutional Act on the application of Article 25 of the Constitution are unconstitutional.

Article 2.- The other provisions of said Institutional Act are not unconstitutional.

Article 3.- This decision shall be published in the Journal officiel of the French Republic

Deliberated by the Constitutional Council sitting on January 8th 2009 and composed of Messrs Jean-Louis DEBRE, President, Guy CANIVET, Jacques CHIRAC, Renaud DENOIX de SAINT MARC, Olivier DUTHEILLET de LAMOTHE, Valéry GISCARD d'ESTAING Mrs Jacqueline de GUILLENCHMIDT, Messrs Pierre JOXE and Jean-Louis PEZANT, Mrs Dominique SCHNAPPER and Mr Pierre STEINMETZ.

Publication Journal officiel January 14th 2009, p. 723