In the hands of the Head of State, Article 16 of the Constitution gives him full powers. It can be used in the event of “serious and immediate threat against the institutions of the Republic and if the regular functioning of public authorities is interrupted”. But where does this article come from and is it applicable today? Answers with Benjamin Morel, lecturer in public law at the University of Paris-Panthéon-Assas.
Emmanuel Macron is up against the wall. After losing the majority in the National Assembly, the government risks being censored. Michel Barnier triggered, this Monday, December 2, 2024, article 49.3 of the Constitution to pass the Social Security financing bill. In the process, left-wing and National Rally deputies tabled motions of censure. The RN assured that in addition to submitting its own, it would vote for that of the left. Mechanically, this should be enough to bring down the Barnier government.
In this situation, can Emmanuel Macron intervene to have the budget adopted and avoid the shutdownin other words, the cessation of government activities? Among the prerogatives of the Head of State, there is Article 16 of the Constitution, which allows the President of the Republic to assume exceptional powers in the event of a crisis. But, could this article really be used? What does he really say? To answer it, the evening edition questioned Benjamin Morel, political scientist and lecturer in public law at the University of Paris-Panthéon-Assas.
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The memory of the “terrible crisis” from 1940
“Article 16 of the Constitution can be triggered in the event of a serious and immediate threat against the institutions of the Republic and if the regular functioning of public authorities is interrupted”describes the government site vie- publique. It allows the President of the Republic to exercise both legislative and executive powers.
The presence of such an article in the Constitution is explained by the memory of the “terrible crisis” of 1940, when France, in the middle of the Second World War, “no longer had any way of obtaining […] regular functioning of the powers of the Republic »underlined the first President of the Ve Charles De Gaulle Republic. The latter is also the only President to have used this article, from April 23 to September 29, 1961, following the generals' putsch in Algeria.
Basic conditions that “could be met”
To use article 16, there are substantive conditions and formal conditions. “Basically, if we really don’t have a budget, we could estimate that potentially the conditions could be met”analyzes political scientist Benjamin Morel.
In fact, the two basic cumulative conditions are “the existence of a serious and immediate threat weighing on the institutions of the Republic, the independence of the Nation, the integrity of the territory or the execution of France’s international commitments” et “the interruption of the regular functioning of constitutional public powers”.
In the event that no budget is adopted, state institutions could find themselves in difficulty in their functioning and the execution of France's international commitments could be called into question, “particularly at the level of the European Commission”says Benjamin Morel.
“Nothing stops him” from taking full powers
For the form conditions now, “only Emmanuel Macron controls them”launches the political scientist. It is the Head of State who assesses, after consultation with the Presidents of the Chambers (National Assembly and Senate) and the Prime Minister, whether the basic conditions are met to take full powers. “If he considers that they are, he sends a message to the Nation and we apply article 16. Nothing prevents him from doing so”explains Benjamin Morel.
After 30 days, an opinion from the Constitutional Council can be requested by 60 deputies and 60 senators. After 60 days, there is ” anyway “ an opinion from the Constitutional Council. “But an opinion remains an opinion. It does not force the President to change his position”points out the lecturer in public law.
The fact that there is no restriction on the application of this article raises a real question according to him. In all European countries, this type of mechanism exists which allows a head of state to take full powers. “But it is always another body which proclaims the one who has full powers. In France, we are the only country where it is the one who has full powers who arrogates them to themselves”underlines Benjamin Morel.
Other possibilities for adopting the budget
Before article 16 of the Constitution, there are other ways to find solutions for the budget. This is the case of article 45 of the Organic Law relating to finance laws (LOLF) which allows the executive to urgently request authorization from Parliament to collect taxes and to open credits by decree. relating to voted services.
In the current situation, the use of Article 16 of the Constitution could be considered as “relatively disproportionate”according to Benjamin Morel. Before adding: “unless Parliament rejects all special laws authorizing the government to collect taxes, then it can be discussed. But as it stands, it seems a little strong coffee to me. »
