DR.

RAM MAHOHAR LOHIYA NATIONAL LAW UNIVERSITY

2016-2017

Subject : World Legal System

Project:
French Legal System

SUBMITTED BY:

UNDER THE GUIDANCE OF:

Mrinal Pandey

Mr. Malay Pandey

ROLL NO:103

Assistant Professor

SECTION B

Dr.RMLNLU

B.A. LLB (Hons.), SEMESTER- I

TABLE OF CONTENTS

INTRODUCTION...........................................................................................................3
STATEMENT OF PROBLEM........................................................................................3
RESEARCH METHODOLOGY....................................................................................4
TENTATIVE CHAPTERISATION................................................................................4
INTRODUCTION...........................................................................................................5
SOURCES OF LAW.......................................................................................................7
LEGISLATURE..............................................................................................................16
EXECUTIVE ..................................................................................................................29
JUDICIARY....................................................................................................................34
CONCLUSION...............................................................................................................43
BIBLIOGRAPHY...........................................................................................................44

INTRODUCTION
France follows Civil Law Legal System meaning the laws are codified and serve as a primary
source of authority. The Civil Code was drafted in 1804 under Napoleon I and is rightly called
Code Napolon (Napoleonic Code). It forms the cornerstone of the French Legal System. The
current constitution is called the Constitution of the Fifth Republic and was adopted on 4
October 1958. It declares France as a secular and democratic country, deriving its sovereignity
from the people and is the primary source of law in the legal system. The French law is divided
into two main cateogries - private law (droit priv) and public law (droit public). Private law
deals with relationships between individuals whereas Public Law deals with relationship between
individuals and the state. The courts in France are also divided into two parts - the judicial courts
(those dealing with criminal and civil laws) (ordre judiciaire), and the administrative courts
(ordre administratif). The Parliament is a bicameral legislature consisting of the Senate (Snat)
and the National Assembly (Assemble nationale) and is responsible for making laws. The
Government of the French Republic exercises executive power in France. It is composed of the
President, who is the head of the state and the highest functionary on the executive side, Prime
Minister, who is the head of government and both junior and senior ministers. The executive is
responsible to the National Assembly.
STATEMENT OF PROBLEMS

How does the French legal system function?

How has the legal system of France developed over time?

What are the different sources of law?

How does the different branches of government function?

RESEARCH METHODOLOGY
For the purpose of doing the project doctrinal research methodology has been adopted for
presenting the material in the project various law books, websites, journals and magazines have
been consulted .The information in the project has been represented to the best of knowledge and
availability of means and resources. To present the information due care has been taken to
present the material in correct perspective.

TENTATIVE CHAPTERISATION
INTRODUCTION
LEGAL HISTORY
SOURCES OF LAW
LEGISLATURE
EXECUTIVE
JUDICIARY
CONCLUSION

INTRODUCTION
The French legal system is based entirely on written civil law. The system of administrative law
was laid down by Napoleon and is appropriately called the code Napolon (Napoleonic code).
The code governs all branches of French law and includes the code civil, the code fiscal and the
code pnal. The basis of the French legal system is laid out in a key document originally drawn
up in 1804, and known as the Code Civil, or Code Napolon, (Civil code or Napoleonic code)
which laid down the rights and obligations of citizens, and the laws of property, contract,
inheritance, etc.. Essentially, it was an adaptation to the needs of nineteenth-century France of
the principles of Roman law and customary law. The Code Civil remains the cornerstone of
French law to this day, though it has been updated and extended many times to take account of
changing society. There are other codes, including notably the Code Pnal, or Penal code, which
defines criminal law.12
Laws in France, as in other democratic countries, are generally proposed by the Government of
the day, and must be passed by the two houses of the French Parliament, the National Assembly
and the Senate. They become law as from the date on which they have been passed by
Parliament, signed into law by the President, and published in the Journal Officiel, or Official
Journal. Statutory instruments (dcrets, ordonnances) become law on signing by the minister(s),
and being published in the Journal Officiel. Publication in the electronic version of the J.O. is
sufficient.
Unlike the English-speaking countries, France has a dual legal system; one branch, known
as Droit public, or Public law, defines the principles of operation of the state and public bodies.
This law is applied generally through public law courts, known as les Tribunaux administratifs.
The other system, known as Droit priv, or private law, applies to private individuals and private
bodies.

1 <http://about-france.com/french-legal-system.htm> accessed on 26 October

2016
2< https://www.justlanded.co.in/english/France/Articles/Culture/Legal-System>
accessed on 26 October 2016
5

Private law - le droit priv

This is the basic law of the land. It is administered through the judicial courts.
There are two judicial channels, a) those dealing with civil litigation, and b) those dealing
with criminal offences
a) Basic civil litigation concerning private individuals is dealt with by a local court, known as
a Tribunal d'Instance, or by a regional or departmental court known as a Tribunal de Grande
Instance (TGI), depending on the importance of the case. Commercial and business law is
administered through institutions known as Tribunaux de commerce. These are known as "first
degree courts".
Appeals are heard in a Cour d'Appel or Court of Appeal, a "second degree court". In France,
there is a fundamental right of appeal in all cases. In exceptional circumstances, judgements of
the Appeal Court can be contested at the highest level, the Cour de Cassation, the French
Supreme Court in matters of private law.
b) Everyday offences and petty criminal matters are generally dealt with either by a Juge de
proximit (a local magistrate) or a Tribunal de Police (police court); more serious matters will be
referred to the Tribunal Correctionnel, the criminal law equivalent of the TGI. The most serious
criminal offences, notably murder and rape, will be referred to a Cour d'Assises, or Assize court,
where they will tried by jury.
Public law - le droit public
Complaints or litigation concerning public officials in the exercise of their office are heard
in Tribunaux Administratifs, or Administrative Courts. For example, universities or public
academic institutions are regularly taken to court over claimed irregularities in the organisation
of exams. As in the private law system, appeals can be lodged, in this case with the Cour
administratif d'appel, or Administrative appeals court. The highest echelon, the Supreme Court
for public law, is the Conseil d'Etat, or Council of State, the body ultimately responsible for
determining the legality of administrative measures.

French courts are presided over by Juges (Judges) also known

as Magistrats(magistrates). Magistrats, are highly qualified professionals, almost all of whom
have graduated from the postgraduate School of Magistrature; they are high-ranking juges . In
6

other words, a French Magistrat is not at all the same as a Magistrate in the English legal system.
Criminal court proceedings can be overseen by a juge d'instruction. The judge who is
appointed to the case is in charge of preparing the case and assessing whether it should come to
court. In legal jargon, this system is known as inquisitorial, as opposed to the adversarial system
used in Common Law legal systems.
In court, the judge or judges arbirate between the the prosecution and the defence, both of
which are generally represented by their lawyers, or avocats. The French judicial system does
not have recourse to juries except in assize courts.
If the case goes to appeal, the arguments of the prosecution and the defence are taken over by
appeals specialists known as Avous.
The Following sections goes into details of the Legal SystemSOURCES OF LAW
The sources of contemporary French law
The contemporary French law is a written law, emanating from different sources.
As we saw, since the French Revolution, the statute is the privileged mode of expression of the
law.
Expression of the popular sovereignty voted by the Parliament (the National Assembly and the
Senate), the statute is the main source of the law, but not the only one.
The statute is a standard of general expression. Therefore, the case law of the tribunals and courts
is an essential source of the French law: it specifies and interprets the statutes.
THE SOURCES OF FRENCH LAW:
The Constitution of the Vth Republic of October 4th, 1958 and its Preamble.
The statute, voted by the deputies and the senators, promulgated by the President of the
Republic and published in the Official Journal.

 The conventions and international treaties ratified by France, especially the European Union
law: conventions, treaties, directives and regulations of the European authorities, like the Treaty
on the European Union or the European Convention on human rights of November 4th, 1950.
Case law, i.e. the legal decisions rendered by the tribunals and courts which apply a norm to de
facto situations.
The doctrine, which is the community of the scientists of the law: professors and experts.
The custom, which is the general and prolonged use of a recognized rule as being the law.
A doctrinal debate relates to the place of international conventions and treaties and the European
law, with respect to the internal norms which are in particular the Constitution and the statutes.
It will be pointed out for this purpose that article 55 of the constitution set forth that treaties or
agreements duly ratified or approved shall, upon publication, prevail over Acts of Parliament,
subject, with respect to each agreement or treaty, to its application by the other party, and that
the majority of the laws of an economic nature result from European directives or regulations.
Thus, guided by a requirement of economic efficiency, the European law constitutes today a very
important source of the French law.
At the top of the French law is the Constitution of October 4th, 1958, and the block of
constitutionality, which state the fundamental laws and freedoms guaranteed to the French
citizens (II. 1.).
The European Union law, for several decades, has been clearly located above the statute in terms
of hierarchy (II. 2.).
The statute, primary source of the French law since the Revolution of 1789, has exclusive
authority to intervene in the most important fields. The contemporary French law is marked by a
strong legislative inflation (II. 3.).
When the statute is vague or imperfect, case law intervenes and occupies in certain branches of
the law a place which is even higher than the statute (II. 4.).

Without being a direct French law source, the doctrine has the virtue to make the law readable
and dynamic (II. 5.).
Lastly, the custom, usually quoted, plays only a minor part in French law (II. 6.).
II. 1. The Constitution of October 4th, 1958 and the Constitutional council
In the Constitution, there is the letter, and then, there is the spirit.
It is obviously the spirit which is important.
The Constitution of October 4th, 1958 was adopted by referendum on September 28th, 1958. It is
the fifteenth fundamental text of France since the French Revolution. It is the text founder of the
Vth Republic.
The Constitution was written under the influence of the general de Gaulle.
The Vth Republic, contrary to the IVth Republic which was a parliamentary system, is a semipresidential system, or a presidentialist system, according to the terms.
The Constitution is not limited to organize the public authorities, to define their role and their
relations, since its Preamble mentions directly and explicitly three other fundamental texts: the
Declaration of the human and citizen rights of August 26th, 1789, the Preamble to the
Constitution of October 27th, 1946 (the Constitution of the IVth Republic) and the Charter of the
environment of 2004.
The essential principles resulting from these texts, and which touch for the majority with
fundamental laws and freedoms, have truly their place in the block of constitutionality, which
we will detail.
The people can thus call upon their violation before the judicial judge or the administrative
judge, and the legislator itself is held to respect them under the control of the Constitutional
council.
In short, the Constitution defines the organization of the public authorities and the institutions,
and states (with the block of constitutionality) a certain number of rights which can be invoked
by the people and which cannot be ignored by the law.
9

Before entering in detail of these rights, we will expose the crucial role of the Constitutional
council.
II. 1. 2. The Constitutional council , guardian of the Constitution since 1971
The Constitutional council was created by the Constitution of October 4th, 1958. It is an
institution without precedent. It is not a supreme court which would be located above the judicial
and administrative systems: its role is to take care of the respect of the Constitution.
The name of Council recalls that in the beginning, the Constitutional council was a simple
consultative body, the General de Gaulle having excluded that it could exert a power of
appreciation of the validity of the statutes to the Constitution.
It is certainly not surprising that it will be only when de Gaulle leaves the power definitively in
1969 that the Constitutional council will see its powers to increase.
By its famous decision of July 16th, 1971 relating to the freedom of association, the
Constitutional council, extending its jurisdiction well beyond what the authors of the
Constitution had wanted, posed itself as a guardian of the Constitution and fundamental
freedoms, while proceeding by what some qualified at the time of judiciary coup dEtat, even
of government of the judges.
The Constitutional council declares in this decision, for the first time, that a statute is not in
conformity with the Constitution. This decision constitutes its true birth date.
In French constitutional law, the block of constitutionality , according to the expression of
Professor Louis Favoreu, thus indicates the whole of the norms of constitutional value which are
protected by the Constitutional council.
The block of constitutionality constitutes a set of norms which can be called upon by the people
before the French tribunals and courts, and which must be respected by the legislator.
II. 2. The European Union law

10

The French law has been marked, since the adhesion of France to the Treaty of Rome (1957), by
a growing application of the European Union law, as well as regards the interior market as of the
human rights.
The European law shall not go against the Constitution, but the national statutes must be in
conformity to it, as required by article 55 of the Constitution, above-mentioned.
In France, the treaties and international agreements are directly applicable: it is what one calls
the auto-executory character of the treaties and international conventions. The primacy of the
international treaties on the statutes is controlled by the Cour de cassation and the Conseil dEtat.
It is clear as the European law occupies a very important place in the French law, as concerning
the economic matters as regards human rights.
One of the principal international treaties applicable in France is indeed the European convention
of human rights signed in Rome on November 4th, 1950 and ratified by France in 1974.
The Convention ensures a certain number of rights: life, freedom, thought, conscience, opinion,
religion, non-discrimination
The European court of the human rights, whose judgments are obligatory on the French
tribunals, can rule on the request of a private individual who used all the legal procedures in
France and which estimates that one of these rights was ignored.
The French tribunals apply the provisions of the Convention, and the judgments of the European
court. One of the most famous articles, article 6 relating to the right to a fair trial, causes in
France very many judgments.
However, in spite of the purely hierarchical aspect, it is the statute which, in French law, is
traditionally the norm of reference.
II. 3. The statute
A thing is not fair because it is a statute,
but it must be a statute because it is fair.
Montesquieu
11

The statute in France is voted by the Parliament, composed of the National Assembly
(Dputs) and the Senate (Snateurs). Its field of application is defined by article 34 of the
Constitution.
The Constitution set forth that three types of statutes can be adopted: constitutional statutes,
ordinary statutes and organic statutes (finance statutes, finance statutes of the social security and
statutes of programming).
The statute is a general and permanent norm. It is promulgated by the President of the Republic
and is published in the Official journal (Journal officiel).
For each legal discipline (civil law, criminal law, labor law), the statute exists in codified form
(Civil code, Criminal code, Labor code), or in the form of a special statute.
In 2013, 76 codes are applicable (Commercial code, Code of the environment, Public health
code), each one having authority to govern its matter.
In addition to these codes, the special statutes intervene in their matters: they are not codified in
the form of article numbered in the relevant code.
Indeed, article 38 of the Constitution allows the government, for the execution of its program, to
ask for the Parliament the authorization of using ordinances, during a limited time, for acts which
are normally the field of the statute.
The use of the ordinances must be exceptional, but sometimes it tends to be standardized in order
to legitimate the urgency of a political reform. The usual democratic process of the vote of the
statute is thus sacrificed to the speed of the text voted in the form of ordinance.
In addition, the President of the Republic and the Prime Minister can exert a regulatory power in
the form of decrees which can be individual, or regulatory (if they aim at a general situation).
The statute is the primary source of the French law (in term of volume, at least, since the primary
source in term of hierarchy is the Constitution).
Another source is also very important in French law: it is the case law.
II. 4. The case law
12

The statute is sometimes incomplete, vague, even lacunar. The concept of case law thus raises
the delicate question of the extent and the limits of the power of the French judges.
Classically, this subject is analyzed under the angle of articles 4 and 5 of the Civil code.
Article 4 of the Civil code makes obligation to the judge to judge the litigation which is
subjected to him: A judge who refuses to give judgment on the pretext of legislation being
silent, obscure or insufficient, may be prosecuted for being guilty of a denial of justice .
Article 5 states however that the decisions of the judge cannot be given in a general way:
Judges are forbidden to decide cases submitted to them by way of general and regulatory
provisions .
The Cour de cassation precised article 5 by deciding that the courts dealing with the substance
of a case can not refer, in a precise situation, with rules established in advance, to justify their
decision.3
If the French law, since the Revolution and Napoleonic coding, has left an important power to
the judge in complement of the statute, this power is doubly limited: the judge is not the
legislator, and he must judge by applying the statute on a case-by-case basis.
In practice, the case law of the two supreme courts, the Cour de cassation (judicial system) and
the Conseil dEtat (administrative system), have a determining influence on the tribunals and
courts of lower level.
In the legal disciplines (civil law, criminal law, family law, labor law), the rulings of the Cour
de cassation which take a decision on a point of law are followed in practice by the lower.
In the same way, the administrative tribunals and administrative courts of appeals follow the
rulings of the Conseil dEtat.
The tribunals and courts dealing with the substance of a case know that their decisions will be
censured by the Cour de cassation or the Conseil dEtat, if they apply a rule different from that
which these supreme courts decided.

3 Cass. Crim., Feb. 4, 1970, D. 1970.333

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II. 5. The doctrine

The doctrine is the community of the lawyers who give their opinion on the science of the law:
law professors, judges, attorneys and lawyers .
The doctrine in France is expressed through the legal publications such as the reviews (Dalloz,
Gazette du Palais, Lextenso) in which the authors publish their articles (in particular in the
form of comments of rulings as interesting as practical), the guides for the professionals of the
law or the manuals for the students.
One of the more famous French authors of last century, and even of the French law history, is the
Doyen Jean Carbonnier (1908-2003).
In private international law, an author such as Henri Batiffol (1905-1989), director then editor-inchief of the Revue de droit international priv, is regarded as the father of the discipline.
The doctrine constitutes an important source of the French law: it makes it possible to better
understand the law.
It classifies, clarifies and thinks the law.
The doctrine remains however an indirect source of the law: it cannot be invoked alone before a
tribunal or a court to ask it to decide on a point of law in a direction or another, according to the
position of such or such doctrine.
It happens however that the doctrine influences a case law evolution.
One of the most famous examples is that of the authors Saleilles and Josserand which have, by
their work, brought a reversal of case law concerning the liability for the acts of things of article
1384, 1 of the Civil code.
The doctrine can also influence the legislator, such as the Doyen Carbonnier did it in the years
1960, as regards civil law.
Besides it often happens that the State entrusts to part of the doctrine the task to write
government bills, because it is made up by the most famous scientists of the law.

14

The last, and least important source of French law, is the custom.
II. 6. The custom
The custom was an important source of the French law during centuries.
As we saw at the time of the study of the history of law, France was until the Revolution, then
the Civil code, marked by the application of the custom in north of the country, while the statute
law (written law) applied in the south.
Today, the custom occupies only one very secondary place in the landscape of the French law,
because of the preponderance of the statute and the case law, who are used as a basis for the
judgments.
The custom is composed of two elements: a material element and a psychological element.
On the one hand, the custom implies constant behaviors in space and time: it must be widespread
and be the object of a certain oldness.
In addition, the custom shall, to exist, be accepted by those who are subjected to it. The
population constitutes finally as much the source of the custom, that its legal subjects.
We thus analyzed which are the components of the French law. Those have authority to be called
upon and applied before the whole of the French tribunals and courts.

LEGISLATURE
France is a unitary republic with a bicameral legislature composed of the National Assembly
and the Senate. The French constitutional system is often described as semipresidential, and is
characterized by a structure of interconnecting powers between the legislative and executive
branches. The checks and balances between the legislative and executive branches include the
Presidents power to dissolve the National Assembly, and the National Assemblys power to
dismiss the Prime Minister, shared authority to initiate legislation between the Parliament and
15

the Prime Minister, and the absence of any veto power on the part of the President. The
Parliaments powers are strictly enumerated by the Constitution, which lists the matters that can
be the subject of legislation.
Members of the National Assembly are called deputies and are elected directly, in contrast with
senators, who are chosen by indirect elections. Deputies are elected for five-year terms.
Senators are elected for six-year terms, but elections are held every three years to elect an
alternating half of the chamber. Both chambers are organized in a similar manner, with a
chamber president, a governing bureau, commissions, and formal political groups. Bills are
submitted either by the Prime Minister or by members of either chamber. Once submitted to one
of the two chambers, a bill is first discussed, amended if need be, and voted on in commissions
before being discussed, amended, and voted on by the chamber as a whole. The bill must then
go to the other chamber, where it follows the same procedure: discussion, possible amendment,
and vote in commission followed by discussion, possible amendment, and vote in the chambers
plenary session. A bill must be adopted by both chambers with identical language before it can
be signed into law by the President of the Republic. If the two chambers disagree on the terms of
the bill, a joint commission comprised of seven deputies and seven senators is tasked with
finding a compromise draft, although that compromise draft must still be voted on by both
chambers. In extreme cases of deadlock, the National Assembly may have the final say.4
I. Background
The French Parliament was born in one of the opening acts of the French Revolution: on June 17,
1789, representatives of the Third Estate (i.e., commoners; the First Estate referred to the clergy
and the Second Estate referred to the nobility) declared themselves to be the Assemble
nationale (National Assembly), and asserted themselves as the embodiment of national
sovereignty and of the will of the French people. The constitutional history of France was
tumultuous, however, and the names and forms of the French legislature changed many times,
especially during the century following the Revolution. The French legislative branch ran the
gamut from an elected unicameral body (as in the Constitution of 1791), to an appointed tetra
cameral body (under Napoleon Bonaparte). It was not until the Third Republic, shaped by the
4 Nicolas Boring, National Parliaments : France <www.loc.gov/law/help/nationalparliaments/france.php> accessed on 26October 2016
16

Constitutional Laws of 1875, that the notion of a democratically-elected bicameral legislature

finally took root in an enduring manner. From then on, with the tragic exception of the Vichy
Regime period (19401944), French legislative power always remained in the hands of an
elected Parliament.
The current constitutional system is known as the Fifth Republic, and is founded on the
Constitution of October 4, 1958. As described below, the Constitution gives crucial powers to
Parliament, making it an institution of vital importance in modern French politics.
II. Constitutional Status and Role
A. Type of System
France is a unitary republic. The Constitution officially describes it as an indivisible, secular,
democratic and social Republic. The Fifth Republic is often considered to be a semi
presidential regime. Frances semi-presidential system features a two-headed executive: a
President of the Republic, who is directly elected and holds considerable power, and a Prime
Minister, who is appointed by the President but is accountable to the Parliament. Another term
often used to describe the French constitutional arrangement is rationalized parliamentarism.
Rationalized parliamentarism is defined in France as a set of strict rules and regulations on
Parliament and parliamentarians which restricts the role of Parliament and forces it to govern
quickly and effectively. For example, the French Parliament has a set calendar for each session
and for the year which cannot be deviated from. Parliament's agenda and the issues it takes up
rarely come from parliamentarians themselves but are more often set by the government.
Proposed amendments to laws and other bills moving through Parliament must meet a very
specific set of guidelines or they are forbidden. Furthermore, the French Parliament is allowed to
have only six standing committees at any one time.
Despite these somewhat draconian measures placed on the legislative branch at first, Parliament's
role has expanded since 1958. In 1995, for example, Parliament earned the right to sit for one
nine-month session, rather than the two, three-month sessions originally imposed in 1958.
Perhaps the most important innovation came in 2008, when a revision of the Constitution
distinctly strengthened the French Parliament, giving it more power over legislative procedures

17

and the legislative session's agenda itself, giving Parliament greater power to check the power of
the president and the French executive branch.5
B. Parliaments Place in the French Governance Structure: The Relationship and Overlap
Between the Executive and Legislative Branches
The relationship between the legislature and the executive is perhaps more complex in France
than in purely parliamentarian systems or presidential systems. The French Parliament does not
enjoy the primacy that the British Parliament enjoys in the United Kingdom, and must engage
with the executive as a separate branch of government. Yet at the same time, the branches of
government are not as strictly separated in France as they are in the United States, for example.
Both the French and the American systems of government rely on checks and balances, but
whereas the American system is defined by separation of powers, the French constitutional
arrangement rests on a structure of interconnecting powers. The main features of this structure
of interconnecting powers are the following:
1. Impeachment
The office of President is largely shielded from both parliamentary and judicial interference.
Indeed, the President may not be prosecuted while in office except by the International Criminal
Court, nor can he be held liable for acts carried out in his official capacity or be compelled to
testify before any court or administrative authority. Furthermore, the Parliament may only
impeach the President for breach of his duties patently incompatible with his continuing
office, something which has never occurred so far under the current Constitution.
2. Dissolution
The President may dissolve one of the two chambers of Parliamentthe National Assembly (the
Senate, however, cannot be dissolved). Elections for a new National Assembly must occur no
less than twenty days and no more than forty days following such a dissolution, and the President
is barred from dissolving the National Assembly again for a year following these elections.

5 Christopher Silus, French Legislative Branch<http://study.com/academy/lesson/the-legislative-branch-of-thefrench-republic-the-national-assembly-the-senate.html> accessed on 26 October 2016

18

3. The Prime Minister and Votes of No Confidence

The office of the Prime Minister, and more broadly the cabinet of which he is the head (usually
referred to as the Government in France), is the main institution where the Presidents and the
Parliaments powers meet and overlap. The Government is in charge of the day-to-day
administration of government, and of carrying out the nations policies. Furthermore, most of the
Presidents instruments of power (such as decrees) must be signed by the Prime Minister and by
any other minister who might be involved in carrying out the measure in question. Thus, the
President cannot do much without the Prime Minister.
The Prime Minister and all cabinet ministers serve at the Presidents discretion. It is the President
who appoints and dismisses them, and he/she can legally choose whomever he/she wishes.
However, the Prime Minister needs the support of the Parliament. Not only is that support
needed to pass legislation, but the National Assembly also has the power to force the
Governments resignation. This is done in one of two ways: either on the Prime Ministers own
initiative, or on the National Assemblys initiative.
4. Shared Legislative Initiative
The authority to initiate legislation is shared between the Prime Minister (who is appointed by
the President, as mentioned above) and the members of the Parliament. The terminology changes
a bit according to whether a bill is initiated by the Prime Minister (in which case the term used is
projet de loi law project), or by a member of the Parliament (the term then used is
proposition de loi law proposal).[
5. The Absence of Presidential Veto Power
Contrary to the President of the United States, the French President does not have the power to
veto legislation. He/she is required to promulgate Acts of Parliament within fifteen days of their
final passage. The most he/she can do is ask the Parliament to reopen the debate on the Act or
any part thereof.
C. Constitutional Powers and Areas of Responsibility

19

The Constitution states that the role of Parliament is to pass statutes, monitor the action of the
Government, and assess public policies. The Parliament does not have the authority to
legislate on anything it wishes, however. Indeed, the Constitution explicitly defines what can be
the object of a statute. The areas that fall under the Parliaments legislative authority include
the following:
- civic rights and the fundamental guarantees granted to citizens for the exercise of their civil
liberties; freedom, pluralism and the independence of the media; the obligations imposed for the
purposes of national defense upon the person and property of citizens;
- nationality, the status and capacity of persons, matrimonial property systems, inheritance and
gifts;
- the determination of serious crimes and other major offences and the penalties they carry;
criminal procedure; amnesty; the setting up of new categories of courts and the status of
members of the Judiciary;
- the base, rates and methods of collection of all types of taxes; the issuing of currency.
....
- the system for electing members of the Houses of Parliament, local assemblies and the
representative bodies for French nationals living abroad, as well as the conditions for holding
elective offices and positions for the members of the deliberative assemblies of the territorial
communities;
- the setting up of categories of public legal entities;
- the fundamental guarantees granted to civil servants and members of the Armed Forces;
- nationalisation of companies and the transfer of ownership of companies from the public to the
private sector.
In addition, the French Parliament is responsible for authorizing declarations of war, and for
authorizing the extension of a state of siege beyond twelve days (the Council of Ministers,
presided over by the President, has the authority to decree a state of siege for those first twelve
20

days). The Constitution specifies that this list may be completed by an institutional Act (Loi
organique). However, any subject that is not enumerated as a legislative matter by the
Constitution or an institutional Act is considered to be a matter for regulation by the executive,
but not for legislation by the Parliament.
The Parliament may also adopt resolutions on any topic, so long as the resolution cannot be
considered as an injunction to the Government or a motion of no confidence in the Government.
These resolutions are seen as a means of expression for the Parliament and are not binding.
III. Structure and Composition
A. Structure
1. Overall Structure
France has a bicameral Parliament, composed of the National Assembly and the Senate. The two
houses both sit in Paris, but in separate places: the National Assembly at the Bourbon Palace
(Palais Bourbon), and the Senate at the Luxembourg Palace (Palais du Luxembourg).
The National Assembly has 577 members, called deputies (dputs), and the Senate has
348 senators.
2. The National Assembly
a. The President of the National Assembly
At the beginning of each legislative term, the National Assembly elects a President of the
National Assembly. The President of the National Assembly has important powers, and is ranked
as the fourth most important figure in the French government hierarchy under the rules of
protocol (the first three being the President of the Republic, the Prime Minister, and the President
of the Senate).
In addition to presiding over the National Assemblys sessions, the President of the National
Assembly has a crucial role in organizing the National Assemblys workload and agenda.
b. The Bureau of the National Assembly

21

The President of the National Assembly is the head of the Bureau of the National Assembly, and
the only member of that body to be elected for an entire legislative term. The other members (six
vice-presidents, three quaestors, and twelve secretaries) are elected at the beginning of each
year. The National Assembly Rules call for the deputies to choose a bureau that is genderbalanced and that reflects the political composition of the National Assembly as a whole, thus
ensuring that opposition parties are adequately represented.
The Bureau is responsible for organizing the National Assemblys workload and agenda, and for
managing the institutions day-to-day operations.
c. Permanent Commissions
The National Assembly has eight permanent commissions: the Education and Cultural
Commission; the Economic Commission; the Foreign Relations Commission; the Social Issues
Commission; the National Defense and Armed Forces Commission; the Sustainable
Development and Territorial Organization Commission; the Finance, General Economy, and
Budgetary Control Commission; and the Commission for Constitutional Laws, Legislation, and
the General Administration of the Republic. Additionally, the National Assembly can also create
temporary special commissions. A deputy may not be a member of more than one commission at
a time.
The main role of these commissions is to prepare bills for full deliberation. Indeed, the
Constitution requires that bills be discussed by a commission before being debated and voted on
by the full National Assembly. Commissions have the power to amend a bill. Furthermore, in
addition to this crucial legislative role, the permanent commissions are supposed to monitor the
actions of the government, and to act as the National Assemblys principal fact-finding bodies.
d. Political Groups
Deputies may organize into political groups, although such groups must have at least fifteen
members to be officially recognized. These groups represent the organized expression of the
political parties and formations within the Assembly, and allow deputies to group themselves
according to their affinities. A deputy may only belong to one political group at a time.
3. The Senate
22

The Senate is organized in a manner very similar to the National Assembly.

a. The President of the Senate
The President of the Senate is elected every three years, after each partial renewal of the Senate
(see Part IV, Elections, below). He/she is in charge of ensuring the Senates security and proper
operation, and has a key role in organizing the institutions workload and agenda. He/she
appoints three of the nine nonpermanent judges on the Conseil constitutionnel and, as noted
above, he/she is one of the few individuals with the authority to ask the Conseil constitutionnel
to evaluate the constitutionality of a bill before it becomes law.
Although he/she is third under the rules of protocol, the President of the Senate is actually next in
the line of succession as Head of State in case of absence or incapacity of the President of the
Republic. If the President of the Republic is declared permanently absent or incapacitated by the
Conseil constitutionnel, the President of the Senate takes on his/her role until new elections are
held (at least twenty days, and no more than thirty-five days, after the declaration of vacancy or
incapacity). The only presidential prerogatives that the President of the Senate cannot exercise as
interim Head of State are the ability to dissolve the National Assembly and the ability to call for
a national referendum.
b. The Bureau of the Senate, Commissions, and Political Groups
The Bureau of the Senate is composed of twenty-six members: the President of the Senate, eight
vice-presidents, three quaestors, and fourteen secretaries. A new Bureau is formed every three
years, with the election of a new President of the Senate. Senate Rules require that the Bureau
reflect the political composition of the Senate. Like its equivalent in the National Assembly, the
Bureau of the Senate is responsible for organizing the institutions workload and agenda, and for
managing day-to-day operations.
The Senate has seven permanent commissions: the Economic Commission; the Foreign
Relations, Defense, and Armed Forces Commission; the Social Issues Commission; the Culture,
Education, and Communications Commission; the Territorial Organization and Sustainable
Development Commission; the Finance Commission; and the Commission on Constitutional
Laws, Legislation, Universal Suffrage, Rules, and General Administration. The Senate also has a
23

Commission on European Affairs to monitor the activities of European Union institutions, and
can create special commissions and fact-finding commissions for specific issues. The Senates
commissions have the same powers and responsibilities as their National Assembly equivalents.
Senators can organize into political groups in the same manner as their National Assembly
colleagues, except that the threshold number to be officially recognized as a group in the Senate
is ten. Currently, 144 senators are affiliated with the Groupe Les Rpublicains, 110 are affiliated
with the Groupe socialiste et rpublicain, forty-two are affiliated with the Groupe Union des
Dmocrates et Independants, forty-six senators are affiliated with one of three smaller political
groups, and six senators are unaffiliated.
IV. Elections
Deputies are elected by direct universal suffrage for terms of five years (unless the President
ends a term prematurely by calling for early elections). Senators, by contrast, are elected by
indirect suffrage: they are considered the representatives of the local and regional communities
(communauts territoriales) of France, and as such are elected by an electoral college of
approximately 160,000 great electors (grands electeurs), 95% of whom are members of the
municipal councils of Frances 36,767 cities, towns, and villages. Senators are elected for terms
of six years, with elections for alternating halves of the Senate being held every three years.
Deputies are elected to discrete, single-seat legislative districts. The number of legislative
districts in each dpartement (the main administrative subdivision of French territory) varies
according to census population. Thus, the number of deputies per dpartement varies from one
(in the more rural dpartements such as Creuse or Lozre) to twenty-one (in the Nord, Frances
most populous dpartement). Deputies are elected through a two-round voting system.
Senators are distributed by dpartement, with the number of senators per dpartement varying
from one for each of the more rural dpartements, to eleven for Nord and twelve for Paris.
Dpartements that have only one or two senators elect them via a two-round voting system, but
those that have three or more senators elect them through a proportional representation system.
Legislative districts are defined by law, as is the number of senators per dpartement. However,
the Conseil constitutionnel has ruled that, under the principle of equality of suffrage, these
24

questions must be defined according to neutral, essentially demographic criteria. This

constitutional rule therefore makes it impossible for any dominant party to engage
in gerrymandering.
Contrary to the United States, French citizens residing abroad are represented in Parliament, by
eleven deputies and twelve senators.
Although deputies and senators are elected by discrete legislative districts or dpartements, they
are not considered to be the representatives of their specific districts or dpartements. Rather, the
constitutional mandate of every deputy and senator is to be a representative of the French Nation
as a whole.
V. Legislative Process
The French legislative process has three basic phases: submission, discussion, and promulgation.
A. Submission
A bill may be submitted by the Prime Minister, by a deputy or group of deputies, or by a senator
or group of senators. However, only the Prime Minister may submit a bill or an amendment
which, if it were to be adopted, would cause either a reduction in public resources or an increase
in spending. In practice, the majority of bills are submitted by the Prime Minister.
The Prime Minister, the President of the National Assembly, or the President of the Senate may
block the submission of a bill that does not fall within the enumerated matters that, under the
Constitution, may be the subject of legislation. The Conseil constitutionnelis the arbiter of any
disagreement between the Prime Minister and either chamber of Parliament on whether a bill
falls within the proper ambit for legislation.
Appropriations bills, and bills on the financing of social security, must be submitted to the
National Assembly first, while bills regarding the territorial organization of France must be
submitted to the Senate first.
B. Discussion

25

Upon submission to either the National Assembly or the Senate, a bill is published and sent to
either a permanent commission or a special commission, which studies it and prepares a report.
The commission may reject the bill, adopt it as is, or amend itexcept for constitutional
reforms, appropriations bills, and bills on the financing of social security, which may not be
amended in commission. If the bill is approved by the commission (either in its original draft or
as amended), or if the commission fails to act on the bill, it is then discussed in a plenary session,
where it may again be rejected, adopted as-is, or amended. If the bill is adopted in plenary
session, it is then sent to the other chamber of Parliament, where it follows the same basic
procedure (discussion and vote in commission, and then in plenary session).
A bill must be adopted in identical terms by both chambers of Parliament to become law. If the
two chambers of Parliament fail to adopt an identical bill after two rounds (or one round if the
Prime Minister opted for an accelerated procedure and the Presidents of the National Assembly
and of the Senate do not jointly deny the Prime Ministers motion), the bill may be sent to a joint
commission made up of seven deputies and seven senators. The joint commission is supposed to
negotiate and elaborate a common draft for the parts of the bill that the two chambers disagree
on. If a compromise is found, it is sent to both the National Assembly and the Senate for final
votes, and no further amendment is possible without the Prime Ministers approval. If the joint
commissions compromise draft is again rejected by one of the two chambers of Parliament, the
Prime Minister may, after a new reading and vote in each chamber, ask for the National
Assembly to take a final vote either on the joint commissions final text, or on the last draft that
the National Assembly voted on, as amended by the Senate. If the joint commission fails to come
to a compromise, the Prime Minister may, after a new reading and vote in each chamber, ask for
the National Assembly to take a final vote on the last draft that the National Assembly voted on,
as amended by the Senate.
Since 1959, approximately 20% of bills have had to go to a joint commission, and the joint
committees have been able to find compromises approximately 60% of the time. Thus, while the
National Assembly ends up having the last word in cases of extreme deadlock, such situations
have historically been rare.
C. Promulgation

26

When a bill has been adopted by both chambers of Parliament, the President of the Republic has
fifteen days to either promulgate it, or to ask the Parliament to reexamine it. This second option
has been very rarely used since 1958. Furthermore, the President of the Republic, the Prime
Minister, the President of either chamber of Parliament, or a group of sixty deputies or sixty
senators, may ask the Conseil constitutionnel to review a bills constitutionality before
promulgation. The Conseil constitutionnel normally has one month to review the bill, during
which time the fifteen-day timeframe to promulgate the bill is temporarily suspended.
The President of the Republic promulgates a new law by signing a promulgation decree, which
certifies that the law has been adopted according to the proper constitutional procedure, and
which authorizes its publication in the official gazette. The new law then usually comes into
force either on the date specified in the law if it contains an effective date provision, or on the
day following its publication in the official gazette if the law is silent on that question.

27

EXECUTIVE
France has a dual executive system in which the President of the Republic and the Prime
Minister (assisted by a council of minister) are both responsible for the executive functions of the
government. The President is the Head of State while the Prime Minister is the Head of
Government.6 The President is elected for a five year term by direct universal suffrage. The
Prime Minister is nominated and the Council of Ministers is appointed by the President on the
recommendation of Prime Minister.
President: Head of the State
The French president is by far the most powerful. Indeed, the most recent French Constitution,
written largely by President Charles de Gaulle in 1958, proclaims the French president as the
guarantor and defender of French sovereignty and the French Republic itself. The president is
also considered the commander-in-chief of the French armed forces and solely has the ability to
make and dissolve treaties and declare war.
The French president is also largely in charge of the other portions of the executive branch as
well. For example, the French president names the prime minister. 7
Selection of Candidates
A candidate for the office of President needs the endorsement of at least 500 citizens
("sponsors") who are members of certain public bodies. To make the endorsement valid,
sponsors have to come from at least 30 of the some 100 dpartements2 and overseas territories,
and no more than 10% of the sponsors from a single dpartement or territory. Sponsorship is
public, not private nor confidential. This system has resulted in on average six or seven
candidates, sometimes reaching a dozen for each election. There is no Vice President. If a
6 Ms Eva Liu, Systems of Government in Some Foreign Countries: France (Research
and Library Services Division Legislative Council Secretariat 12 April 2000)
<http://www.legco.gov.hk/yr99-00/english/sec/library/990rp08.pdf> accessed on 26
October 2016
7 Christopher Sailus, French Executive Branch
<http://study.com/academy/lesson/the-power-appointment-structure-of-theexecutive-branch-of-the-french-republic.html> accessed on 26 October 2016
28

President resigns before his term expires (as Charles de Gaulle did in 1969), or if a President dies
in office (as Georges Pompidou did in 1974), a presidential election must be held between 20 to
35 days after the incumbent has ceased to hold office. Election of the President of the Republic is
by direct election3 through an absolute majority system with two rounds: If no candidate
receives an absolute majority in the first round, a second round (the run-off election) is held
between the top two candidates, and the one who wins a majority in the second round is the
winner. The rationale is that electing candidates by mere pluralities violates the basic democratic
principle of majority rule; hence, a device is installed to ensure that each winner has at least over
50% (a majority) of all the votes.
Functions and Powers
The functions and powers of the President of the Republic are summarized below:

sees that the Constitution is observed; is the arbiter of the Constitution and guarantor of
national independence and territorial integrity;

he appoints the Prime Minister and Ministers, and presides over the Council of Ministers
(Cabinet);

he promulgates laws and may ask Parliament to re-consider a bill before promulgation; z
may dissolve the National Assembly;

he is the Commander of the armed forces and may assume emergency powers if the
nation is threatened;

he negotiates and ratifies treaties; ensures that international obligations are fulfilled;

he appoints three members of the Constitutional Council and may refer a bill to the
Constitutional Council; and

he may propose that a referendum be held.

Removal

29

Before 2014 there was there was no provision of impeachment of President. However post 2014,
a President can be impeached if a motion forwarded by 10% of the members of National
Assembly or the lower house of the legal system alongside 10% of the members Senate or the
upper house of the legal system. A majority of 2/3rd of both the house is required for impeaching
the President of the legal system. After a motion has been passed by 2/3rd majority parliament
must then vote to convene a special session of select lawmakers known as the High Court. The
court would have a month to decide the issue, with another two-thirds majority required.8
Prime Minister: Head of Government
The gouvernement is headed by the Prime Minister. It has at its disposal the civil service, the
government agencies, and the armed forces. He is appointed by and is second in command after
the President.
Selection of Candidates
The Prime Minister is selected by the President of the Republic after an election is held for the
National Assembly. The Prime Minister is usually chosen on the basis that he can win the support
of a parliamentary majority.
Removal
The President terminates the functions of the Prime Minister when the latter presents the
resignation of the Government. In the fifth Republic, not a single resignation of the Prime
Minister has resulted from a motion of censure.
Functions and Powers
The functions and powers of the Prime Minister are summarized below:

directs the actions of the administration and the armed forces;

is responsible for national defence;

8 <http://www.telegraph.co.uk/news/worldnews/europe/france/11241073/Francegets-new-powers-to-impeach-countrys-president.html> accessed on 26 October

2016
30

ensures the execution of the laws; and

except pre-empted by the President under the Constitution, exercises regulatory and
appointment powers.

The Prime Minister heads the Government which determines and conducts the policies of the
nation. The Government is constitutionally responsible to the National Assembly (Articles 20, 49
and 50). The acts of the Prime Minister shall be countersigned, when circumstances so require,
by the Ministers responsible for their execution (Article 22).

The Cabinet and Ministers

The Cabinet is known as the Council of Ministers. It is chaired by the President of the Republic,
and membership consists of the Prime Minister, the Ministers and a number of junior ministers
known as Secretaries of State. There are about 40 members of the Council of Ministers and
positions tend to be hierarchical. One characteristic of the French Cabinet is that the Head of
State chairs cabinet meetings, and this is not usually found in other parliamentary Cabinets.
Deliberations involve all Ministers on the basis of collective ministerial responsibility. There are
no votes in the Council of Ministers and debates are secret. Even though the President of the
Republic is the Chairman, he has no power of veto.
Selection of Candidates
There are no specific constitutional descriptions or requirements of Ministers. Ministers are
selected by the Prime Minister who proposes them for the President's appointment. Ministers
have usually been chosen both on the basis of party representation in the National Assembly and
circumstances surrounding the presidential campaign. A growing number of Ministers have had
civil service background. Some Ministers have come from the Senate.
Appointment
The Constitution provides for the President of the Republic, on the proposal of the Prime
Minister, to appoint Ministers.

31

Removal
The Constitution provides for the President of the Republic, on the proposal of the Prime
Minister, to dismiss Ministers.
Functions and Powers
According to Article 20 of the Constitution, the Cabinet shall determine and direct the policy of
the nation and shall have at its disposal the administration and the armed forces. The functions
and powers of Ministers are twofold: they jointly participate in the determination and
management of government policy, and they are heads of departments. The Constitution
prescribes that certain acts of the President of the Republic and the acts of the Prime Minister
shall be countersigned, when circumstances so require, by the ministers responsible for their
execution.

32

JUDICIARY

Judicial System
France has a legal system stemming from Roman law and based upon codified laws. The Civil
Code was drafted in 1804 under Napoleon I. Nevertheless judges have the duty to interpret the
law and the decisions of the higher courts have a certain influence on the inferior courts even if
they are not bound by any higher courts decision. The last time a death penalty was issued in
France was in 1978. It was then officially prohibited in October 1981. The Parliament, both
National Assembly and Senate, decided in February 2007, to amend the French Constitution in
order to include an explicit ban of the death penalty. The constitutional statement that No one
33

shall be sentenced to death, makes France the 17th country worldwide to include prohibition of
the death penalty in its Constitution. The judiciary is independent from the executive and the
legislative powers. There are several categories of courts divided into two major branches, a
Judicial branch and an Administrative branch.9 France's institutional system is based on the
separation of powers: the legislative power of Parliament (passing laws), the executive power of
the government (implementing laws) and the power of the judiciary (enforcing laws). The justice
system is the third pillar of the State and is independent of the other two powers. It guarantees
individual freedoms and the rule of law and ensures that laws are enforced and individual rights
respected.

THE JUDICIAL BRANCH

The civil courts settle private disputes between individuals such as divorce, inheritance, property
but do not impose penalties. The criminal courts judge individuals who have committed
offences.10
First degree of jurisdiction
The District courts Tribunaux dinstance have jurisdiction for civil matters. They hear personal
property claims of under 10,000 euro as well as claims for which they have exclusive
jurisdiction. They have a criminal division which is the Police Court Tribunal de Police, which
handles misdemeanours in five classes, exclusively with fines. For petty offences (for classes one
to four) and some civil issues under 4,000 euro it may be a lay judge juge de proximit or a
professional judge who hears the case. For both civil and criminal issues, cases are tried by a
judge sitting alone.
Claims over 10,000 Euros are heard by Regional courts Tribunaux de Grande Instance which
have general jurisdiction and hear every dispute with an unspecified amount which does not fall
within the jurisdiction of another court. Regional Courts also have exclusive power over cases
9 The French Legal System <www.justice.gouv.fr/art_pix/french_legal_system.pdf>
accessed on 26 October 2016
10 <http://franceintheus.org/IMG/pdf/Justice_ag.pdf> accessed on 26 October 2016
34

involving divorce or proof of paternity. The judges and members of the Regional courts are
professionals. Generally, Regional courts are set in the chief town of the Department. Regional
courts also have a criminal division. Indeed, each regional court has a Criminal court which
pronounces penalties from 6 months up to 10 years of imprisonment. But other penalties can be
decided, such as fines, jour-amende (a fine that is followed by imprisonment if it is not paid in
time) or work for the general interest/ Community service. Regional and Criminal courts
generally rule with three judges. One of them may be a lay judge. However, they occasionally
rule with a single judge. The first degree of jurisdiction has also specialist courts which are
Juvenile courts, Labour courts, Commercial courts, social Security courts and Agricultural and
Land tribunals. Except for the Juvenile courts, the judges of specialist courts are non professional
and are elected or chosen with the respect of equal representation. Finally, The Assize Court,
Cour dassises, tries those accused of crimes (murder, rape, armed robbery, etc), attempted
crimes, and those accused as accomplices. The Assize Court is not a permanent court, usually
meeting every three months for about two weeks. This type of court is found in each department.
The composition and modus operandi are unusual, as it is the only court consisting of
professional judges (three) and a jury (nine citizens chosen by drawing lots). Certain crimes are
tried by a special Assize Court without a jury, such as certain acts of terrorism or acts connected
with drug dealing. The judgments of the Assize Court may be appealed.
Court of cassation
The last degree of jurisdiction is the Court of Cassation. It is the Highest Court in the judicial
French system. It is the Court of last resort which sits in the Hall of justice in Paris. It succeeded
to the Tribunal of Cassation created in 1790. The Court of Cassation does not judge on the facts
but checks whether the laws have been properly applied by the inferior courts in civil and
criminal matters. It never sits as an appeal court. Its decisions allow a certain unity regarding the
application of laws even if the decisions do not bind inferior courts. Since 1991, the Court of
Cassation also gives its opinion to the other jurisdictions on new and complex law issues. The
Court of Cassation consists of judges conseillers, the Office of the Prosecutor, an Administrative
Office of Courts, Higher Council of the Judiciary and specially certified barristers. The judges of
the Court of Cassation include the First President premier prsident, first presidents of the
chambers, justices conseillers and assistant judges conseillers rfrendaires. The First President
35

is responsible for the court administration and the discipline of judges along with judicial
functions. The judges are appointed by the President of the Republic on a recommendation of the
Higher Council of the Judiciary. They are divided into six different chambers: First Civil
Chamber, Second Civil Chamber, Third Civil Chamber, Labour Chamber, Commercial Chamber,
and Criminal Division. Each division is headed by a Presiding judge.
In addition to the six divisions, there is also the possibility of joining chambers of the court
together Chambre Mixte with the First President and a number of other judges from at least three
other chambers (including the Presiding justice of the chamber). Finally the Court of Cassation
can hear a case in Full Court Assemble plnire which is the highest formation of the Court
for important issues. The decision belongs to the First President or the chambers that handle the
case. Sitting in this formation are the First President, all the Presiding and Senior justices of the
chambers and one justice from each chamber. Decision is taken by the majority of the Chamber.
There is no dissenting opinion. The Office of the Prosecutor is also present at the Court of
Cassation. It is headed by the Chief Prosecutor who does not try the case but advises the Court
on how to proceed. He is assisted by deputy prosecutors avocats gnraux. The Chief Prosecutor
and the deputy prosecutors are independent from the Minister of justice. The deputy prosecutors
are not subordinate to the Chief Prosecutor. The main role of the Office of the Prosecutor is to
guarantee the consistency of the interpretation of the law and to ensure its conformity according
to the intention of the legislation with the public interest and with the public order. He also has to
ensure the unity of the case law inside the Court of Cassation as well as inside the other courts.

THE ADMINISTRATIVE BRANCH

ADMINISTRATIVE COURTS
Since the 1953 reforms, the administrative courts have been first instance judges of
administrative litigations. There are 35 such courts and approximately 600 magistrates who judge
100 000 cases a year. These courts settle disputes between public authorities (the government,
regions, departments or administrative bodies) or State-owned companies on the one hand and
citizens on the other hand. Examples of the matters at issue are: a refusal to give a building
permit, an objection to a land-use plan or proposed motorway, an expropriation, a claim for
36

compensation for damages caused by public bodies, a refusal to give a residence permit, the
deportation of a foreigner, objections to direct taxes and their recovery, 6 disputes related to
public construction contracts, etc. The administrative courts also deal with taxation, town
council/local elections and civil service litigation.
SPECIALIZED ADMINISTRATIVE JURISDICTION
There are also specialized administrative jurisdictions which have very specific responsibilities:
- The Refugees Appeal Board,
- The Disciplinary Section of Professional Bodies,
- The Repatriated Persons Compensation Commission,
- The social Aid Local Commission.
FINANCIAL COURTS
- The Cour des Comptes (the Audit Court) checks that public authorities at the national level
have regularly managed their finances;
- The Regional Audit Courts check that the regional and local public authorities have regularly
managed their finances;
- The Court of Budgetary and Financial Discipline punishes civil servant accountants who have
mismanaged public finances.
COURT OF APPEAL (ADMINISTRATIVE APPEAL TRIBUNAL)
Created in 1987, the administrative courts of appeal rule over appeals against decisions delivered
by the administrative courts (approximately 15% of which are appealed), except for specific
cases over which the Council of State has jurisdiction. These administrative courts of appeal are
each presided over by a counsellor of State, are seven in number (Paris, Lyon, Bordeaux, Nantes,
Nancy, Marseille and Douai) and are divided into chambers. The Audit court is the appeal court
for the judgments of the Regional audit courts.
THE COUNCIL OF STATE (Conseil dEtat)
37

The Council of State, created in 1799, is the highest

jurisdiction of the administrative branch:
The Council of State as an instance of first and last resort
The first resort competence of the Council of State covers litigation of special importance
(decrees, ministerial acts, the decisions of collegial bodies invested with national competence,
individual measures involving civil servants appointed by Presidential decree) or whose scope
exceeds the competence of an administrative court. In addition, the Council of State deals
directly with litigation over county council elections or elections to the European Parliament.
Approximately 17% of the cases submitted to the Council of State fall within its competence of
first resort.
The Council of State as a court of appeal
The competence of the Council of State as a court of appeal has progressively been transferred to
the administrative courts of appeal and is now limited to litigations over local and cantonal
elections and appeal over assessment of legality.
The Council of State as a Court of Cassation
The Council of State exercises traditional powers as a court of cassation in relation to some 30
specialized courts, the most important of which are the Cour des Comptes, the Court of
Budgetary and Financial Discipline, the Magistrates Disciplinary Committee, and the
disciplinary committees of various professions. Since the 1987 reforms, the Council of State has
had powers to quash rulings delivered by the administrative courts of appeal. This expansion of
its powers was accompanied by a major change in the rules governing appeal to the highest
court. On the one hand, a special procedure allows for the dismissal of appeals considered
inadmissible or insufficiently grounded; on the other hand, after cassation, the Council of State
can judge the case as a third court of instance if the sound administration of justice justifies it
and thus act as the equivalent of a Supreme court in common law systems.
Composition of the Council of State

38

The Council of State has a very specific composition compared to other jurisdictions. Indeed, it
is made up of state advisors, who are civil servants with a specific status guaranteeing their
independence. Most of them are recruited among the former students of the Ecole Nationale
dAdministration (ENA). The Council of State is presided over by the Prime Minister; the vicePresident is the Garde des Sceaux (minister of justice).
The Council of State as government advisor
The oldest function of the Council of State is its role of advisor to the government. The Council
examines and gives its opinion on bills and projects of decrees and by-laws. This consultative
work represents approximately half of its work.
THE CONFLICT TRIBUNAL
The existence of the two systems of jurisdiction outlined above sometimes results in difficulties
in determining their respective powers, and thus justifies the arbitration of the Conflicts Tribunal
which was set up by the law of May 24th 1872. Presided over by the Garde des Sceaux the
minister of justice the Conflicts Tribunal is composed of eight members elected for a three-year
term. Today, the frontiers between the judicial and administrative branches have become stable
and only about forty cases are submitted to the Conflicts Tribunal each year. However, its
jurisprudence has been the most important building-block of French public law. It is not possible
to appeal against the judgments of the Conflicts Tribunal.

JUDGES AND JUSTICE PERSONNEL

Judges have an active position in the trial: they are more than just arbitrators. They lead the
hearing. The Act of 22 December 1958 establishes the status of the judiciary. Every judge may
be appointed during his career at judging functions and/ or at the office of the prosecutor
(principle of unity of the judiciary). Unlike prosecutors, judges are not submitted to the
hierarchical principle and have security of tenure, that is to say that any new assignment requires
consent. Judges and prosecutors follow the same training within the same school. On 1 January
2009, we had 8481 magistrates.

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Lay judges
Established in 2002, lay judges are not professional judges, they are appointed by the legal
profession by decree after the approval of the Higher Council of the Judiciary (CSM) for 7 years,
not renewable. They exercise certain functions of judges in criminal or civil matters. In May
2009, there were 618 lay judges.
Prosecutors
Contrary to the sitting judges who are completely independent when they judge cases, public
prosecutors are under the authority of the minister of justice. The minister of justice conducts the
policy of prosecution determined by the Government. He or she ensures that the application of
such a policy in the territory of the Republic is coherent by addressing general instructions on
prosecution to the general prosecutors. There is a hierarchy within the prosecution service: the
Procureurs de la Rpublique (first level) are under the authority of the Procureurs Gnraux
(court of appeal) who can give them instructions regarding the general functioning of their
offices and the policy of their jurisdiction and also the decisions to take in a particular case, if
deemed necessary. The Procureurs Gnraux report directly to the minister of justice.
THE HIGHER COUNCIL OF THE JUDICIARY (Conseil Suprieur de la Magistrature
CSM)
Some attributions of the CSM are related to the appointment and discipline of judges and Public
prosecutors. These rules are aimed at sheltering the judiciary from the risk of partisan influences.
In France, the CSM assists the President of the Republic who under the Constitution has the
mission to guarantee the independence of judicial authority. The President does not sit in the
Higher Council of the Judiciary when it has to take decisions on disciplinary matters. The 2
benches in the Council are the judges and the Public prosecutors, and they are composed of 16
members. Twelve of them are elected judges and 4 are appointed jointly by the President of the
Republic, the President of the National Assembly, the President of the Senate and the General
Assembly of the Council of the State.

THE CRIMINAL PROCEEDINGS

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French criminal proceedings are mainly inquisitorial, however they also include adversarial
elements so as to reach a balance between the rights of the defence, the rights of the victim and
those of society as a whole. The main principles are defined in the introduction of the Code of
Criminal Procedure:
- equitable and adversarial proceedings,
- information and guarantee of the victims rights,
- presumption of innocence and rights of the defence.
Juge dinstruction
The French judicial system includes specialist judges, known as investigating judges juges
dinstruction, who oversee investigations in the most serious and complex offences. The process
is known as the judicial investigation information judiciaire. Cases are referred to the juge
dinstruction by the public prosecutor or by a victim who wishes to bring a civil claim for
damages within criminal proceedings. His or her role is to gather all the information that may
incriminate or exonerate a person accused of an offence. The juge dinstruction does not reach
any decision about a persons guilt or innocence. As part of the investigation, the judge may
interview any person, call upon the assistance of the police to require witnesses to attend for
interview, issue warrants, take statements from persons bringing claims for damages and from
suspects, appoint experts, carry out searches and seizures, order telephone tapping, etc
JUVENILE JUSTICE SYSTEM
In France, there is a special justice system for children and young people under 18. This juvenile
justice (justice des mineurs) is mainly involved in the areas of juvenile crimes and children at
risk.
Many other matters concerning minors are judged by ordinary jurisdictions (family judges...).
The Act of 2 February 1945 lays down the fundamental principles of juvenile justice. Its last
amendment was made in March 2007. France has chosen a joint approach by judges and
educators, and has given priority to educational response in criminal matters. The Judicial Youth
Protection Directorate, dependent on the ministry of justice, is responsible for juvenile justice. It
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drafts texts on minors at risk and young offenders and ensures the enforcement of judgement
made by the Juvenile courts in the 1,500 detention and probation centres.
Juvenile delinquents
Under French law the age threshold for criminal liability is 18 years old, therefore a minor
cannot be tried by ordinary criminal courts. Specialized courts are set and work in collaboration
with the public prosecutor and the Youth Judicial Protection Service.
- From 10 to 13, educational penalties can be taken (such as seizing an object for instance). If the
interested minor does not comply with the penalty, he or she may be placed with foster carers or
a specialised centre for juvenile offenders.
-Then, from 13 to 16, minors may be sentenced. They may be sentenced to imprisonment but the
minors are liable to only half the sentence prescribed for adults. They cannot be remanded in
custody, except if they have committed a major offence.
- From 16 to 18, minors can be remanded in custodyand, depending on the kind of offence they
committed, the special provision for dealing with minors may be set aside by the judge.

CONCLUSION
France is a civil law jurisdiction. The implications of this legal system are twofold. First, French
law is derived solely from legislative statutes or codes. Second, the French judiciary cannot
make law through novel binding substantive precedent. Yet, the supremacy of statute and the
lack of legal precedent constitute only one of the several characteristic differences between the
French and American legal systems. Three other salient differences exist. First among these is
the systemic difference between the court structures of the two countries. The French legal
system differentiates between administrative and judicial courts, and thus encompasses an
intricate matrix of tribunals. However, for all its complexity, the organization of French courts is
as logical as the Cartesian minds that developed it. Second, French constitutional review is quite
different from the notions inspired by the term in the United States. Unlike the supreme nature of
its American counterpart, the French Constitution is equal in force to legislative statute. Hence,
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French constitutional review lacks the ability to implement social and economic policy. Third,
the French legal system is devoid of certain substantive and procedural trial rules that have
become second nature to the American trial lawyer. Among these are the virtual absence of
discovery, motions, testimonial evidence, and jury trials.

BIBLIOGRAPHY

The Oxford International Encyclopedia of Legal History by Stanley N. Katz

Legal Systems of the World by Herbert m. Kritzer

Encyclopedia of World Legal Judicial and Court Systems by Sourendra Pandey

Wikipedia.org

Justlanded.com

Justice.govu.fr

http://www.legco.gov.hk/

http://cs.mcgill.ca/

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