Benjamin Morel is a lecturer in public law at the University of Paris II Panthéon-Assas.
FIGAROVOX. - In the event of recourse to 49-3 to have its bill relating to the 2023 budget adopted, the government would win, but the opposition would evoke a denial of democracy. Who would ultimately benefit from this forced passage?
Benjamin Morel. -
To understand the use of 49 paragraph 3, two things must be borne in mind.
First, it has become commonplace to say so, but there is no absolute majority.
Then, what makes it possible, as a general rule, to define whether a political group is in the majority or in the opposition is its position during the votes of confidence and the fact that it votes for or against the budget.
A political group voting in favor of the budget is deemed to be part of the majority.
This is the criterion that we use in particular when we make international comparisons in political science.
Therefore, the oppositions can vote on articles, but saying yes to the whole text seems tricky to say the least.
Also, 49 paragraph 3 seems to impose itself as a fatality.
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However, 49 paragraph 3 has disadvantages for the government.
The first is that the members of the majority like to debate and have their amendments adopted.
The procedure of 49 paragraph 3 certainly has flexibility.
It's not all or nothing.
First, the government can use it not on the whole text, but on parts.
Then, he is not obliged to submit to this article the original text that he filed.
He can include amendments, in particular those of his majority or even some of the opposition... with the intention of both satisfying his ranks and taking care of his relations with some of the less hostile groups in anticipation of other texts.
However, it is much more rewarding for a Member to say that he had an amendment adopted than to brag about
The opposition must show that the government is giving a thumbs up;
the government that it is the sterile obstruction of the opposition which forced it to use the device.
Of course, all of this is largely theater…
Benjamin Morel
Then, the risk of 49 paragraph 3 is symbolic.
The government wants to be open to dialogue and ready to hear the difficulties of the French.
If 49 paragraph 3 has been well politicized by the opposition, as was the case for example during the last pension reform, it can be taken as an authoritarian, anti-social, anti-democratic maneuver... There is therefore a narrative issue.
The opposition must show that the government is giving it a thumbs up;
the government must show that it is the sterile obstruction of the opposition which forced it to use the device, out of concern for the general interest.
Of course, the conclusion of the play being already written, all of this is largely theater… But theater with concrete political consequences.
Why would the government then take the risk of 49-3?
For two reasons.
Firstly because as we said, it is very unlikely to be able to have a majority on the text when you have a relative majority.
So before the final vote, 49 paragraph 3 is required.
However, the difficulties already mentioned can lead to waiting as long as possible to use it.
This allows the majority to breathe and to show that we have sought agreement at all costs.
However, the risk is to lose control of the text.
All voted articles are indeed final on reading.
There are countermeasures in parliamentary law.
The government can postpone the vote on an amendment, request a second deliberation.
But if he really does not hold the session, the risk is to end up losing control of the process of
text development.
The only way to make the latter look more or less like what Bercy imagined is to use 49 paragraph 3 as quickly as possible.
From October 1, a new extraordinary session opens and the counters are again reset to zero… In short, the political cost of 49 paragraph 3 can be significant.
Benjamin Morel
Emmanuel Macron has also let the use of 49.3 for the pension reform hover. Can he do this for both the 2023 budget and the pension reform? Used too often, wouldn't this democratic tool that is 49.3 lose its substance?
The constitutional reform of 2008 changed the use of 49 paragraph 3 to one text per session excluding financial texts.
That is, the device can be used without limits on the budget, the social security budget;
by extension on amending finance bills, or amending social security finance bills.
For the budget, the government therefore does not use a “joker”.
For pension reform, the latest fashionable idea would be to pass it as part of a bill for amending social security financing.
This raises concerns about the spirit of the constitutional text which provides for this type of legislative vehicle and may lead to the sacrifice of certain aspects of the reform which cannot fall within the framework of a PLFSS... But, if
this was it, again there would be no joker used.
The wildcard could be used on another regular session text that runs from October 1 to June 30.
One could imagine, if the government is clever, a catch-all text with several disqualifying provisions for the opposition;
text therefore, which could be the subject of a new 49 paragraph 3. From June 30 should open, if the President so decides, an extraordinary session.
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These extraordinary sessions last 15 days, and can be renewed every two weeks until September 30 at the request of the government (or a majority of deputies).
A priori, nothing prohibits considering that on each of these sessions can be used again new 49 paragraph 3. From October 1, a new extraordinary session opens and the counters are again reset to zero.
In short, the political cost of 49 paragraph 3 can be significant, but from a legal point of view, even if it will be difficult to reach the record of 28 uses under the Rocard government.
The current state of the law still offers very wide leeway to the executive.
