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EUROPEIZATION OF THE CONSTITUTION OF THE FIFTH FRENCH REPUBLIC (Europeizacja Konstytucji V Republiki Francuskiej)

100%
Wojtyczek K.
Przegląd Sejmowy
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2008
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issue 6(89)
139-155
EN
The initial text of the Constitution of the Fifth Republic does not contain any provisions concerning the delegation of powers. The 'European clause' was introduced only in 1992 in order to make it possible to ratify the Treaty of Maastricht. One of the characteristics of the French regulations is that they lack a constitutional clause authorizing the delegation of powers. Instead, the constitutional lawgiver prefers the method of ad hoc constitutional reforms consisting of provisions enabling ratification of particular international agreements in order to delegate powers. The French basic law does not regulate unequivocally the relation between itself and the European Union law. According to the most recent jurisprudence of the Constitutional Council, the French Republic is under obligation to implement the EU law. Any refusal to transpose a directive may only be based on the norms and principles defining the constitutional identity of France. Such approach imposes, in practice, limitations on the scope of application of the Constitution of 1958 within the domestic legal order of the Fifth Republic. More careful position is taken in this respect by the Council of State (Conseil d'Etat). Membership of the European Union has caused gradual changes in the system government of France and alteration of the meaning of basic concepts of French constitutional law. Nowadays, the powers of public authority is exercised by two separate political structures, namely the French Republic and the European Union, which exert different influence on each other. As a consequence of limited powers of French Parliament, the introduction of the delegation of powers has affected it less than other national parliaments. The French constitutional lawgiver had become aware of the process of reinforcement of the executive at the expense of national parliament and made, in 1992, an attempt to establish such regulations that would compensate negative impact of European integration on the position of Parliament. As is also the case in other countries, European integration considerably strengthens the position of courts of law. At present, the Constitution of the Fifth Republic is an element of a wider multi-level European constitutional system, comprised of the treaties establishing the EU, national constitutions of member states and, in some countries, also constitutions of members of federations, or statutes of autonomous units.
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PARLAMENT OF THE FIFTH REPUBLIC (Parlament w czasach V Republiki)

100%
Gicquel J.
Przegląd Sejmowy
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2008
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issue 6(89)
87-96
EN
It is often agreed that the system of government of the Fifth Republic means the end of sovereignty of the Parliament, which was hitherto associated with French democracy. The Parliament, that has previously enjoyed independence, was reduced to the rank of a public authority of the second level in relation to the restored executive power. However, it turns out that in the practice of the Fifth Republic, we have to deal with the recovery of the Parliament, rather that its decline. The hegemony of the executive power has not managed to eliminate the Parliament from the law making process. On the contrary, a trend to restore an institutional balance or to return a parliamentary system of government can be seen. Even if the legislative activity of the Parliament has been actually reduced, its oversight function has been restored. This oversight includes numerous procedures (holding the government accountable, various forms of rendering information as well as passing European legislative proposals by both chambers). The Renaissance of Parliament is also reflected in an increased importance of investigative committees. The oversight function is exercised by Parliament mostly by exerting influence on the government's policy, rather than holding the government accountable and depriving it of its powers.
3
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THE REFORM OF THE REVIEW OF CONSTITUTIONALITY OF LAW (REFLECTIONS ON THE DRAFT OF ARTICLES 61-1 AND 62 OF THE CONSTITUTION PRESENTED BY THE BALLADUR COMMITTEE) (Reforma kontroli konstytucyjnosci prawa ....Komitet Balladura)

80%
Bernaud V., Stéfanini M. F.-R.
Przegląd Sejmowy
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2008
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issue 6(89)
157-179
EN
The article presents an assessment of the reform, prepared by the Committee on Modernization and Restoration of Balance of the Institutions of the Fifth Republic. The reform is aimed at supplementing preventive review of statutes with ex-post review, thereby making it possible, during proceedings in progress before the court, to apply to the Constitutional Council for examination of conformity of a statute with the provisions concerning the fundamental rights and freedoms guaranteed by the Constitution. The solutions provided for in Article 61-1 of the Constitution enable the procedure of implementation of this new form of review in a constitutional act to be freely specified. The application for a review is referred to the Constitutional Council, on the initiative of the subject entitled to do so, through the Council of State or the Court of Cassation. In the opinion of the authors, such selection on the part of the supreme courts does not seem necessary or desirable. The establishment of a new form of review has received a relatively positive assessment. It is regarded as necessary element of improvement of the French system of fundamental rights' protection. However, it is uncertain whether the lack of such review would have an adverse impact on the status of the citizens. There are, of course, other forms of review of constitutionality of law which provide protection of rights and freedoms (e.g. the review of conformity of international agreements with the constitution). The implementation of the reforms will obviously induce changes in the functioning of the Constitutional Council and its relations with Parliament. 11.
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THE INSTITUTIONAL REFORM OF THE FIFTH REPUBLIC (Reforma instytucji V Republiki)

80%
Philip L.
Przegląd Sejmowy
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2008
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issue 6(89)
97-119
EN
The issue of institutional reform has been permanently discussed since the establishment of the Fifth Republic, but over recent years it has gained topicality with the shortening of the term of office of the President of the Republic from seven to five years. The main purpose of that change was to avoid cohabitation, consisting in the existence of divergence between the presidential and parliamentary majorities. At the same time, cohabitation has contributed to a considerable strengthening of the presidential nature of the French political system. It is held that adjustment of this system should be accomplished by strengthening the powers of Parliament and specifying, in more detail, the scope of power of the President. There is agreement regarding this goal, but divergence remains as to the way of its accomplishment. Some propose to establish a presidential system and claim that such system in fact already exists, others opt for a genuine parliamentary system. The role of relations between the President of the Republic and Prime Minister is also emphasized and the opinion expressed that it is only by the improvement of the status of the latter that adverse aspects of supremacy of presidential rule could be reduced. It is also held that giving more prerogatives to the Constitutional Council would allow it to better protect fundamental rights of legal entities and to reinforce its function of arbiter between individual authorities. It does not seem that there is need for a thorough reorganization of the institutional system. To improve its functioning, slight constitutional modifications will suffice, but they should be accompanied by a change in the attitudes of politicians.
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THE FIFTH OR SIXTH REPUBLIC? INTRODUCTORY REMARKS ON THE BASIC PRINCIPLES OF CHANGES OF THE FRENCH CONSTITUTION AND THEIR IMPACT ON POLISH CONSTITUTIONAL LAW THEORY (V czy VI Republika? Rozwazania..zmian konstytucji...dla doktryny polskiej)

80%
Kruk M.
Przegląd Sejmowy
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2008
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issue 6(89)
181-191
EN
This article deals with the current modifications of the Constitution of the Fifth French Republic of 1958. During the 50 years of existence of this unique and novel constitution, considered in the context of the European constitutional tradition, many theoretical and practical observations and many different experiences from the functioning of political system have been gathered. The article, based on several versions and proposals of amendments (proposals from the Balladur Committee, texts submitted in the course of legislative work of the Senate and National Assembly) and opinions about them and commentaries from theoreticians, was written prior to the final adoption of the text of the amendment. Its aim was not to provide a simple description of constitutional modifications, but rather to examine selected principles underlying the proposed transformation of the French constitution, in the context of their scope, idea, as well as a particular 'settling accounts' with the concepts of the 1958 Constitution. It was an interesting idea, since the basic principles declared by the authors of the current amendment included democratization, modernization and effectiveness of the constitutional system. Moreover, the examination of the nature and extent of changes in the constitution have led to a reflection on whether they actually mean only modernization of the system of the Fifth Republic, as is declared by the advocates of the reform, or they should rather be considered as a step forward on the path to the Sixth Republic which have already been mentioned in the literature? Another area of interest of the article is references to the Polish reality. On the one hand, these are historic references, based on assessments of the French Constitution of 1958, which have appeared in the study of constitutional law in Poland over those 50 years. On the other hand, they concern the tendency to imitate it (and regret for not having succeeded), especially in the period of Poland's transformation and creation of a new Polish constitution, but also today, within the area of a strong Presidency, government effectiveness and methods of rationalization of the parliamentary system. Limited departure by the French constitutionalism from those concepts and, in particular, the current reinforcement of the position of Parliament and its oversight function, as well as softening of some procedures for rationalization of parliamentary system, may provide a relevant platform of study for Polish reformers.
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THE CONSTITUTION OF THE FIFTH REPUBLIC AND DECENTRALISATION ( Konstytucja V Republiki a decentralizacja)

80%
Roux A.
Przegląd Sejmowy
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2008
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issue 6(89)
121-137
EN
The amendment to the Constitution, dated 2003, one of its most important modification introduced during the Fifth Republic, as concerns the number of articles altered or added, did not undermine the fundament principles of the French state. In Article 1 it was declared that the Republic is organised on a decentralised basis. However, after that modification France has become neither a regionalized state nor, the more so, a state on the path to federalization. The amendment of the basic law, by including the existence of regions, recognizing explicitly lawmaking powers of local government and its financial autonomy, permitting experiments in the exercise of democracy on the local level, has undoubtedly reinforced administrative discretion of local government and authorized its increased diversity, particularly in overseas departments. Five years after this modification, we should say it has not accomplished all the results that were expected. Some of its possibilities, including a decision-making referendum, have not been yet used.
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MODERNIZATION OF THE INSTITUTION OF THE FIFTH REPUBLIC IN THE LIGHT OF THE CONSTITUTIONAL ACT OF 23rd JULY 2008 (O modernizacji instytucji V Republiki w swietle ustawy konstytucyjnej z 23 lipca 2008 r.)

80%
Puchta R.
Przegląd Sejmowy
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2008
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issue 6(89)
193-207
EN
The article deals with the July institutional modifications of the Fifth French Republic. Those changes, prepared by a special committee, established upon request of the French President Nicolas Sarkozy and chaired by É. Balladur - were passed by the Constitutional Act of 23 July 2008 on Modernization of the Institutions of the Fifth Republic. They are focused on three basic factors: the reduction of the role of the executive power, strengthening of the position of Parliament and establishing new organs and procedures for protection of rights and freedoms of citizens. Mechanisms for rationalization of parliamentary system, adopted 50 years ago, have led to the situation where the legislative power is subordinated to the executive power. In order to reinforce ('restore') the position of Parliament in relation to the executive, its limited discretion in determining the agenda of debates has been restored and the possibility to apply the procedure of Article 49 paragraph 3 has been reduced. In order to improve quality of the work of the chambers the following actions were implemented: the time limit for consideration of a given legislative proposal was extended, the number of standing committees was increased; new formal requirements were imposed on legislative proposals; parliamentary chambers have been allowed to benefit from the assistance provided by experts of the Council of State. There are essential modifications of the oversight function of Parliament, which will be able to assess the activities of not only government but also, in a way, of the President. The said reform extends constitutional regulation on parliamentary investigative committees and allows Parliament to apply for assistance to the Chamber of Auditors within the area of review of the execution of budgetary laws and laws on financing of social security, as well as to assess public policies. Among new means and mechanisms for protection of the rights and freedoms of citizens it is worth mentioning the procedure of prejudicial questions addressed by the Council of State or the Court of cassation to the Constitutional Council, in case of doubt about constitutionality of statutes. This procedure permits the ex-post review of constitutionality of statutes which has been rejected by French constitutional tradition. Moreover, the reform set up a new office responsible for the defence of rights (le Défenseur des droits) whose powers will be more widespread than those of the current Mediator of the Republic. French citizens have also been granted the right of popular legislative initiative - bill submitted under this procedure would be subject to approval by means of a referendum. The recent constitutional reform is undoubtedly the most comprehensive one among those implemented to date. However, in the opinion of numerous constitutional law scholars, it is 'insufficient' or 'superficial'. Nevertheless, its final assessment would only be possible after the adoption of several organic and ordinary laws and modification of the rules of procedure of parliamentary chambers.
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