Article 49.3 in France: A Political Tool

On October 19, 2022, Prime Minister of France Elisabeth Borne invoked the government’s “engagement of responsibility,” ceasing legislative debate over the state budget in the National Assembly (l’Assemblée nationale). Less than 24 hours later, Borne triggered the provision once again, this time for the Social Security finance bill (PLFSS). In response, the second and third largest political groups in Parliament—the left-wing Nouvelle Union Populaire Écologique et Sociale (NUPES) coalition and the right-wing Rassemblement National (RN)—filed motions of no confidence, which would ultimately end up rejected by the majority of Parliament.

The “engagement de responsabilité” phrase refers to Article 49 paragraph 3 (49.3) of the 1958 Constitution of the French Fifth Republic, which can be evoked by the Prime Minister to pass and adopt a finance or social security law without vote, and effectively without parliamentary review. It has been used 89 times since 1958 by both left-wing and right-wing governments. Deputies in the National Assembly have 24 hours to table a “motion de censure,” or a vote of no confidence, to challenge the use of 49.3. However, with an absolute majority in the National Assembly required to adopt a vote of no confidence, it has only occurred once for a 1962 law on direct, universal suffrage to elect the President of the Republic, which was later passed by referendum.

In light of the role that 49.3 plays in the rationalization of the French Parliament, this article reviews its significance and examines the ensuing implications for democratic representation in France by considering how its augmentation of prime ministerial power skews the balance of executive-legislative power towards the executive.

France operates under a semi-presidential system, with a president who appoints a prime minister accountable to Parliament. During periods of concordance, the president, prime minister, and absolute legislative majority are of the same political party. Cohabitation, on the other hand, occurs when the political party of the president does not hold a relative majority in the National Assembly, and the president may opt to appoint a prime minister of the leading opposition party to better facilitate the passage of legislation. The latter was the case under President François Mitterrand of the Parti Socialiste (PS) in 1986 and his appointments of Prime Ministers Jacques Chirac and Édouard Balladur of the Rassemblement pour la République (RPR) in 1986 and 1993, respectively.

Although Prime Minister Elisabeth Borne belongs to the same Renaissance political party as President Emmanuel Macron, the party only holds 170 seats in the National Assembly, short of the 289 needed for an absolute majority. Though not a period of cohabitation, it is more difficult for the Renaissance party to pass bills due to the strong opposition parties, and 49.3 thus becomes a useful instrument for pushing legislation through Parliament. In fact, the record use of the provision occurred under the 1988 presidency of Miterrand (PS), when Prime Minister Michel Rocard (PS) used it 28 times given the PS’ relative Parliamentary majority. The use of the article has since been limited by the Constitutional Revision of July 23, 2008, allowing 49.3 to only be triggered on finance and social security bills and on only one other bill during the same session.

Nonetheless, in the absence of an absolute parliamentary majority, 49.3 increases prime ministerial and overall executive power. The recent use of the provision by Borne is in line with the overall rationalization of Parliament in the French Fifth Republic where the legislature has limited avenues to challenge or prevent the agenda of the government, marking a continuation in the departure from France’s historical parliamentary supremacy. Although deputies may propose votes of no confidence, the resignation of the prime minister and dissolution of government logically prompts the president to dissolve the National Assembly and call for early elections, introducing a conflict of interest of deputies potentially losing their jobs. This is demonstrated in times of concordance, cohabitation, and relative majority. Other tools of the government to curb parliamentary power include limiting legislative jurisdiction (Art. 34, 41), expanding governmental legislative authority through decrees and ordinances (Art. 37, 38), and the “package vote” allowing legislative vote only on amendments approved by the government (Article 44).

The implications of 49.3 on the democratic representativeness of the National Assembly, Matignon, and Élysée are mixed. Unlike the president and National Assembly, the prime minister is not directly elected by universal suffrage; rather, he or she typically represents the relative or absolute majority of the National Assembly, whose power is increased through 49.3. At the same time, the provision increases unelected prime ministerial primacy over the elected president, especially visible during cohabitation. This has also been observed even during periods of concordance, for example, when Prime Minister Manuel Valls used 49.3 six times in 2015 and 2016 to pass legislation against pushback from same-party President Francois Hollande. However, it can also be argued that an increase in unelected prime ministerial power is minor against the president’s de facto allocation of power beyond the reserved area of the president in defense and foreign affairs and emergency (Art. 16), dissolution (Art. 12), and appointment prerogatives (Art. 56) without the prime minister’s countersignature.

However, the use of the “guillotine” 49.3 provision effectively silences Parliament and minority parties on budget and appropriations matters even though the power of the purse is typically a power of Parliament, from some of the earliest examples such as the English Parliament or most expansive such as the European Parliament. On a global stage, it is disputed, however, whether the legislative power of the purse is necessary for liberal democratic governance. Nonetheless, the large-scale protests in response to the use of 49.3 on Macron’s labor reform bill speak to the dissonance between the representatives and the represented. Thus, the increase in relative executive power against diminished legislative power puts the extent of democratic representation into question.

Edited by: Oscar Luckett