Intense lobbying surrounds a recent proposal to amend Article 34 of the Constitution.

By Paul Davies and Fabrice Fages

French Prime Minister Édouard Philippe recently unveiled a series of proposed modifications to the French Constitution that align with President Emmanuel Macron’s campaign platform. The proposals, which were unveiled on April 4, face objections from a range of stakeholders and political observers.

One of these proposals is to incorporate the fight against climate change in France’s fundamental law by amending Article 34 of the Constitution, which delineates the scope of statute law and the fields in which statutes will determine certain fundamental rules and basic principles. These fields are deemed to be pillars of the republic and therefore merit legislative foundations. Based on these legislative foundations, the government will subsequently adopt regulatory enforcement measures (decrees or orders) as “matters other than those coming under the scope of statute law shall be matters for regulation” (Constitution, Article 37).

The proposal is meant to affirm the French government’s commitment to meeting the objectives of the Paris Agreement and to adapt the country’s constitutional framework accordingly.

Many environmental non-governmental organizations and scholars have raised a series of objections and concerns about the proposals. Certain opponents have blamed the French government for “climate demagoguery,” “constitutional greenwashing,” and for making climate a mere “decorative feature” of the Constitution.

Other sceptics have argued that Article L. 110-1 III of the Environmental Code is already sufficient. Indeed, this article lays out the foundations and principles governing environmental law. The article affirms, in particular, that “the sustainable development objective is to be attained in a coherent concurrent manner through five commitments: the fight against climate change, the preservation of biodiversity, social cohesion and solidarity between territories and generations, the self-fulfilment of all human beings, and the transition towards a circular economy.” Sceptics argue that inscribing the fight against climate change would therefore be redundant and hence unnecessary. Certain sceptics have also noted that Article 34 may not be the relevant vehicle insofar as it outlines the preservation of statute law without providing any guidance whatsoever in terms of the government’s objectives.

Other disappointed observers have expressed their view that the government lacks ambition. They have argued that the government’s overarching objective should not appear in Article 34, but in Article 1 of the Constitution. By doing so, the fight against climate change would be embedded in the affirmation of France’s nature as an “indivisible, secular, democratic and social Republic, ensuring the equality of all citizens before the law, without distinction of origin, race or religion, respecting all beliefs, and organised on a decentralised basis” and in which “statutes [shall] promote equal access by women and men to elective offices and posts as well as to professional and social positions.” Further, some have argued that such a position would increase the likelihood that the fight against climate change would prevail against other considerations, namely economic ones, when examined by the Constitutional Council, for example. The same observers have stressed what they view to be a fundamental omission in the government’s proposal, which — in their opinion — should have accompanied the climate imperative: the preservation of biodiversity.

At this stage, the government appears to have avoided the potential pitfall of amending the Constitutional Environmental Charter of 2004 to include the above provisions. Doing so would risk re-opening a potentially ferocious debate against Article 5 of the Charter on the Precautionary Principle, which conservative members of Parliament (MPs) blamed for having hampered innovation in the country. Bills to amend the Constitution have already been presented to the effect of repealing said Article 5. Amending the Charter would have given opponents a renewed opportunity to question the Precautionary Principles.

The bill to amend the Constitution will be presented to the Council of Ministers in early May 2018. Intense lobbying is already underway to include biodiversity in the bill, and to raise the amendment to Article 1 status.

The adoption of this proposal, as well as the other proposed measures, would require several steps to occur, including: slashing the number of MPs by a third (from 577 to 404 representatives, and from 348 to 244 senators); introducing a 15% proportional representation in the National Assembly by the next election in 2022; and acknowledging Corsica’s special status. Such steps would require the bill to be adopted in identical terms by the two houses of Parliament and subsequently approved by referendum. However, a referendum is not necessary if the bill is approved by a three-fifths majority of the votes cast by the National Assembly and Senate convened in Congress (Constitution, Article 89) — which is President Macron’s preferred course of action.

Latham will continue to monitor and analyze legal issues related to these political developments.

This post was prepared with the assistance of David Desforges, Avocat à la Cour (Paris).