French law French law has a dual jurisdictional system comprising private law (), also known as judicial law, and public law (). Judicial law includes, in particular: * () * Criminal law () Public law includes, in particular: * Administrative law ( ...

, an ''ordonnance'' (, "order") is a statutory instrument issued by the

Council of Ministers Council of Ministers is a traditional name given to the supreme Executive (government), executive organ in some governments. It is usually equivalent to the term Cabinet (government), cabinet. The term Council of State is a similar name that also m ...

in an area of law normally reserved for

primary legislation Primary legislation and secondary legislation (the latter also called delegated legislation or subordinate legislation) are two forms of law, created respectively by the legislative and executive branches of governments in representative democ ...

enacted by the

French Parliament The French Parliament (, ) is the Bicameralism, bicameral parliament of the French Fifth Republic, consisting of the Senate (France), Senate (), and the National Assembly (France), National Assembly (). Each assembly conducts legislative sessi ...

. They function as temporary statutes pending ratification by the Parliament; failing ratification they function as mere executive regulations. ''Ordonnances'' should not be confused with '' décrets'' issued by the

prime minister A prime minister or chief of cabinet is the head of the cabinet and the leader of the ministers in the executive branch of government, often in a parliamentary or semi-presidential system. A prime minister is not the head of state, but r ...

(an order-in-council) or president, or with ministerial orders (''arrêtés''); these are issued either in matters where the

Constitution A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organization or other type of entity, and commonly determines how that entity is to be governed. When these pri ...

allows primary legislation from the Council or as secondary legislation implementing a statute. Pyramide des normes

In the French justice system, the word can also refer to a summary ruling made by a single judge for simple cases.

Current usage

Motivations

Article 34 of the

Constitution of France The current Constitution of France was adopted on 4 October 1958. It is typically called the Constitution of the Fifth Republic , and it replaced the Constitution of the Fourth Republic of 1946 with the exception of the preamble per a 1971 d ...

restricts certain legal matters to

to be enacted by

Parliament In modern politics and history, a parliament is a legislative body of government. Generally, a modern parliament has three functions: Representation (politics), representing the Election#Suffrage, electorate, making laws, and overseeing ...

. All other areas of law fall within the domain of delegated legislation in the form of orders-in-council (OIC) issued by the

Prime Minister A prime minister or chief of cabinet is the head of the cabinet and the leader of the ministers in the executive branch of government, often in a parliamentary or semi-presidential system. A prime minister is not the head of state, but r ...

or ministerial orders issued by individual cabinet ministers. Orders-in-council and other

delegated legislation Primary legislation and secondary legislation (the latter also called delegated legislation or subordinate legislation) are two forms of law, created respectively by the legislative and executive branches of governments in representative democ ...

issued in areas reserved for primary legislation are illegal, unless they are specifically authorized by statute. Such orders define implementation measures and details left out by the originating statute. For various reasons explained below, the Executive may sometimes want to pass

in a field reserved by statute. The ''ordonnances'' are the constitutional means to do so. Delegated legislation can be nullified or invalidated through litigation before the

Council of State A council of state is a governmental body in a country, or a subdivision of a country, with a function that varies by jurisdiction. It may be the formal name for the cabinet or it may refer to a non-executive advisory body associated with a head ...

(acting in their role of legislative review) if they violate general legal principles or constitutional rights, whereas primary legislation may be ruled unconstitutional only through judicial review before the Constitutional Council. Statutes are thus relatively more solid.

Vocabulary notes

The decisions made by the French President under art. 16 of the French Constitution, enabling him to take emergency measures in times where the existence of the Republic is at stake (a form of reserve powers) are not called ''ordonnances'', but simply ''décisions''. The introductory sentence of an ''ordonnance'', as published in the

Journal Officiel de la République Française The ''Official Journal of the French Republic'' (), also known as the ''JORF'' or ''JO'', is the government gazette of the French Republic. It publishes the major legal official information from the national Government of France, the French Pa ...

, is: "The President of the Republic .. after hearing the

, after hearing the Council of Ministers, orders:". The word ''ordonnance'' comes from the same root as ''ordonner'' "to order".

Procedure

Normal procedure

In the

French Fifth Republic The Fifth Republic () is France's current republic, republican system of government. It was established on 4 October 1958 by Charles de Gaulle under the Constitution of France, Constitution of the Fifth Republic.. The Fifth Republic emerged fr ...

, most ''ordonnances'' operate pursuant to article 38 of the French Constitution. The Council of Ministers first introduces a bill before Parliament authorizing it to issue ''ordonnances'' to implement its program. The bill specifies a limited period of time, as well as a topic for the proposed ''ordonnances''. If the bill passes in Parliament, the French Cabinet can issue ''ordonnances'' on the given legal matter within the specified time period. The Executive must consult the

on every ''ordonnance''; the advice of the Council is compulsory but nonbinding. An ''ordonnance'' must be signed by the French President, the Prime Minister and relevant ministers. This proved in 1986 to be a source of tension, during a period of

cohabitation Cohabitation is an arrangement where people who are not legally married live together as a couple. They are often involved in a Romance (love), romantic or Sexual intercourse, sexually intimate relationship on a long-term or permanent basis. ...

when President

François Mitterrand François Maurice Adrien Marie Mitterrand (26 October 19168 January 1996) was a French politician and statesman who served as President of France from 1981 to 1995, the longest holder of that position in the history of France. As a former First ...

and Prime Minister

Jacques Chirac Jacques René Chirac (, ; ; 29 November 193226 September 2019) was a French politician who served as President of France from 1995 to 2007. He was previously Prime Minister of France from 1974 to 1976 and 1986 to 1988, as well as Mayor of Pari ...

were of opposite political opinions, and the President refused to sign ''ordonnances'' requested by the Prime Minister, forcing him to go through the normal parliamentary procedure, but it was then controversial at the time whether he had the right to refuse to sign them. Before the time period has elapsed, the Cabinet must introduce before Parliament a bill of

ratification Ratification is a principal's legal confirmation of an act of its agent. In international law, ratification is the process by which a state declares its consent to be bound to a treaty. In the case of bilateral treaties, ratification is usuall ...

for the ''ordonnances'', otherwise these lapse at the end of the period. Until Parliament has voted the ratification bill, the ''ordonnances'', similar to executive orders, can be challenged before the

. If they are ratified, they become like ordinary statutes. There is, however, no obligation that they should be ratified, and they are then mere regulations. In fact, between 1960 and 1990, out of 158 ''ordonnances'', only about 30 were ratified. That can happen because even though the ratification bill has been brought before Parliament, it is not necessarily scheduled for examination and vote. If Parliament votes down the ratification bill, it does not go into effect. The Constitutional Council and the Council of State decided that ratification can be explicit (a vote on the ratification bill or a ratification amendment added to another bill) but also be performed implicitly by Parliament referring to an ''ordonnance'' as if it were a statute.Cécile Castaing, “La ratification implicite des ordonnances de codification. Haro sur « La grande illusion »”, ''Revue française de droit constitutionnel'', no. 58 (2004/2): 275-304, P.U.F., , However, implicit ratification has been prohibited by a 2008 constitutional amendment. Occasionally, the executive fails to use the authorization that it requested and obtained.

Budget bills

It is of particular importance that budget bills should be voted in a timely manner, since they authorize taxes and spending. For this reason, the Government can adopt the budget by ''ordonnances'' if Parliament has not been able to agree on it within 70 days after the proposal of the budget (Constitution, article 47). The same applies for social security budget bills, but with a 50-day period (Constitution, article 47-1). Neither of these procedures has ever been used.

Overseas territories

Article 74-1 of the Constitution allows the Government to extend legislation applicable to

Metropolitan France Metropolitan France ( or ), also known as European France (), is the area of France which is geographically in Europe and chiefly comprises #Hexagon, the mainland, popularly known as "the Hexagon" ( or ), and Corsica. This collective name for the ...

to overseas territories by ''ordonnances''. These ''ordonnances'' lapse if they have not been ratified within 18 months by Parliament.

Usage and controversy

The use of ''ordonnances'' is uncontroversial when used for technical texts (such as the ordinances that converted all sums in French francs to

euros The euro (currency symbol, symbol: euro sign, €; ISO 4217, currency code: EUR) is the official currency of 20 of the Member state of the European Union, member states of the European Union. This group of states is officially known as the ...

in the various laws in force in France). ''Ordonnances'' are also used to adopt and adapt European Directives into French law to avoid delayed adoption of a directive, which often happens, is criticized by the

EU Commission The European Commission (EC) is the primary executive arm of the European Union (EU). It operates as a cabinet government, with a number of members of the Commission ( directorial system, informally known as "commissioners") corresponding t ...

and exposes France to fines. ''Ordonnances'' are also used to codify law into codes to rearrange them for the sake of clarity without substantially modifying them. Such usage has, however, been criticized for the legal risks that it poses if the ratification act is never voted on. The use of ''ordonnances'' for controversial laws is generally criticised by the opposition as antidemocratic and demeaning to Parliament (Guillaume, 2005) in much the same way as the use of article 49§3 to force a bill to be passed.

Previous usage

''Ordonnances'' have been extensively used as a form of

rule by decree Rule by decree is a style of governance allowing quick, unchallenged promulgation of law by a single person or group of people, usually without legislative approval. While intended to allow rapid responses to a crisis, rule by decree is easily ab ...

in periods where the government operated without a working Parliament:

Vichy France Vichy France (; 10 July 1940 – 9 August 1944), officially the French State ('), was a French rump state headed by Marshal Philippe Pétain during World War II, established as a result of the French capitulation after the Battle of France, ...

, where the executive had dismissed Parliament and other democratic structures, the

Provisional Government of the French Republic The Provisional Government of the French Republic (PGFR; , GPRF) was the provisional government of Free France between 3 June 1944 and 27 October 1946, following the liberation of continental France after Operations ''Overlord'' and ''Drago ...

, until it could establish a legislature, and in the last days of the

French Fourth Republic The French Fourth Republic () was the republican government of France from 27 October 1946 to 4 October 1958, governed by the fourth republican constitution of 13 October 1946. Essentially a reestablishment and continuation of the French Third R ...

Loi n°58-520 du 3 juin 1958 relative aux pleins pouvoirs
/ref> and the early days of the

, until the new constitution had come into force and legislative elections had been held (article 92 of the Constitution, now repealed). Certain legal texts enacted by the King in the medieval and ''

ancien régime ''Ancien'' may refer to * the French word for " ancient, old" ** Société des anciens textes français * the French for "former, senior" ** Virelai ancien ** Ancien Régime ** Ancien Régime in France {{disambig ...

'' eras were called ''ordonnances'', the best known of which today is the Ordinance of Villers-Cotterêts.

References

The main reference is article 38 of the