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ABOUT LAW
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This brief description of the law is
by no means to be used by the users of Légifrance as a law
course. It simply offers to the less informed users the
necessary tools to allow them to access more easily the
legal data published on Légifrance as well as enable them
to find quickly the data that they are searching for. The
information found here is in large part completed with
different sections that can be found in “Aide” section.
Technical elements as well as information about the data
published on the site can be found in the “A propos du
droit” section. |
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1. WHAT IS LAW ?
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The law consists of a body of legal
rules socially accepted that apply to the operation of the
State's institutions and that establish the relationship
between the citizens and the State.
The law, in France, is essentially
made up of written rules that are called sources of law.
These can be rules adopted by States or between States, on
a national level, but they can also come from national and
international case-law. On a local level, these sources
can come from municipal judgment, from professional
corporations, such as l'Ordre des médecin ; from rules
concluded between citizens, such as collective agreements
or contracts; or simply from customs.
This complex body of rules is
organized according to a hierarchy of guidelines. Thus, a
new rule:
- must respect prior rules of a superior level,
- may modify prior rules of a same
level,
- brings about the abrogation of
inferior rules that are contrary to the new rule.
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2. INTERNATIONAL LAW SOURCES
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2.1.
International Treaties and Agreement
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The entry into force of a treaty in France is
subordinate to its ratification or its approval as well
as its publication. Certain treaties are incorporated
directly into the French legal system while others need
a statute to be incorporated into the domestic legal
system.
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2.2.
Community Law
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The notion of community law refers to the rules adopted
by the institutions of the European Community and
European Union as defined in by the
Treaty of Rome of March 25, 1957 and in the
Maastricht Treaty of February 7, 1992
The nomenclature of community law consists of:
- recommendations and opinions that shall have no binding
force;
- regulations of general application that may either be
binding in its entirety and directly applicable in to
Member States; all regulations shall be published in the
Official Journal of European Union
;
- a decision binding in its entirety and binding only to
the Member State to which it is addressed ;
- a framework law that binds each Member State to which
it is addressed, but shall leave to the national
authorities the choice of form and methods
Finally, the
Court of Justice of the European Communities ensures
that the law is observed in the interpretation and
application of the Treaty establishing the Union. It
ensures, therefore, a uniform interpretation of the
community law.
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3. NATIONAL LAW SOURCES
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3.1. Constitutional Rules
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-
the Constitution of October 4, 1958 ;
-
the
preamble of the Constitution of October 27, 1946, ainsi que
the
Declaration of the Rights of Man and of the Citizen of
August 26, 1789 and establishes the fundamental
principles recognized by laws of the Republic;
-organic laws submitted to the
Constitutional Council before their promulgation and
destined to complete the Constitution.
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3.2. Legislative rules
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The laws are adopted by the
Parliament. However, in conformity with
Article 11 of the Constitution, the President of the
Republic can submit to a referendum any government bill
which deals with the organization of the public
authorities or for authorization to ratify a treaty.
In addition, in conformity with
Article 34 of the Constitution, the law defines
specific fields of competence.
Finally, the law is subordinate to the Constitution.
When an issue is submitted to the
Constitutional Council, the Council controls the
constitutionality of the laws before their promulgation,
in other words they verify that they are in conformity
with the Constitution.
According to
Article 55 of the Constitution, international
treaties ratified by France prevail over Acts of
Parliament. The administrative and judicial judges have
to set aside a law, that is prior or posterior, that
seems incompatible with an international treaty.
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3.3. Regulation rules
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3.3.1. Ordinances
In conformity with
Article 38 of the Constitution, the Government may
ask Parliament for authorization, for a limited period,
to take measures by ordinance that are normally a matter
for statute.
Ordinances consist of delegated legislation until their
ratification by Parliament and these can be challenged
in front of an administrative judge.
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3.3.2. Regulations
Regulations are divided according to the authority from
which they are issued:
-presidential decrees or a decree
issued by the Prime Minister (when they are taken by the
State Council or by the Ministers' Council, they can
only be modified in the same conditions)
-interdepartmental and
ministerial decisions;
-regulation orders taken by
deconcentrated state authorities (prefect, mayor) or
decentralized state authorities (local community,
department, region).
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3.4. Collective Agreement
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The
labor code establishes the general applicable rules
dealing with industrial relations. In this framework,
the social partners of the private industry (i.e.
employers and trade unions) negotiate contracts and
agreements.
Collective agreements define the work conditions and
social guaranties applicable to the employees of the
concerned structures. Collective contracts apply only to
specific matters (salaries, work hours, etc.) The
collective contracts or agreements can be concluded on a
level of a branch (group of enterprises having the same
activity on a determined territory), of an enterprise or
of an establishment. The collective agreement can be
“extended” by the
Ministère de l'emploi et de la solidarité or the
Ministère de l'agriculture so that it applies to all
levels of the activity concerned.
The “collective
agreement” section of Legifrance provides an access
to national collective agreements that have been
published in the Official Journal. The collective
agreement eventually applicable in a structure must
imperatively be mentioned on the salary newsletter.
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4. PUBLICATION OF LAWS AND DECREES
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Laws and regulations, in order to be
mandatory, must be within the reach of the citizens'
knowledge. An individual act must be notified to the
persons affected by the act while a regulation act must be
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4.1. Publication of Laws and Decrees
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Rules relating to the entry into force of legislative
and regulative texts were modified by order no. 2004-164
of February 20, 2004. From now on, Article 1 of the
Civil Code states that legislative texts come into force
the day following their publication in the
Official Journal.
However, in case of emergency, will come into force the
same day as their publication, the laws whose order of
promulgation prescribes it as well as administrative
acts for which the Government orders by a special
disposition.
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4.2. Publication of other regulation
acts
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Aside from decrees, regulation acts adopted by State
authorities, whose competence is on a national level
(ministerial by-laws, acts from independent
administrative authorities, etc.), are also published in
the Official Journal. In addition, the ministerial
by-laws are often published in the Official Ministerial
Newsletters.
The sole publication in the Official Newsletter is only
possible if the regulation act targets a very specific
category of people (essentially civil servants and
governmental agents).
Acts from local authorities respect strict publications
terms. They do not appear in the Official Journal and
cannot be consulted via Légifrance.
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4.3. Circulars and instructions
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These acts do not, in general, have a legal value. They
only provide instructions to services essential to the
implementation of the laws and decrees, or to clarify
the interpretation of certain provisions. They are not
always published. The normal publication mode is the
insertion in the
Official Ministerial Newsletters. Only the most
important circulars are published in the
Official Journal.
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4.4. les autres publications
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The direction of the Official
Newsletter
also publishes:
-the
journal
officiel des associations et fondations d'entreprises;
-the
bulletin officiel des annonces de marchés publics ;
-the
bulletin officiel des annonces légales obligatoires.
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5. CODIFICATION AND CONSOLIDATION
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5.1. Codification
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The goal of codification, as stipulated in the
circular of May 30, 1996 relative the codification
of legislative and regulatory texts, is make the law
more easily accessible to everyone as well as allow
citizens, elected members, civil servants, and
enterprises to have a greater knowledge of their rights
and obligations. The method used is the codification of
existing law, or “codification compilation”. The
scattered texts are gathered and organized in a coherent
way. Their drafting is, if necessary, harmonized and
actualized. The rule of law thus becomes more easily
accessible.
The work guidelines for the codification were elaborated
by the
Superior Commission of Codification. The codes
retain their original content in force at the moment of
codification. However, a series of modifications that
pertain to the form of the text were done in order to
facilitate the comprehension or coherence of the
codified texts.
The
codes are divided into parts: L.O.(organic laws) and
L. (laws), that are regrouped in the legislative part;
R.(decrees of the State Council) and D. (simple
decrees), that are regrouped in the regulation part. If
necessary, an A part (orders) can also be foreseen.
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5.2. Consolidation
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Contrary to codification, the operation of
“consolidation” of texts cannot be interpreted as a
legal act. It is simply a technique to display an
updated version of existing texts, instead of
juxtaposing the initial text and those subsequently
modified.
Thus, in the “consolidated” section of Légifrance
(codes, laws, decrees), the texts modifying the initial
text do not appear as such. Their content is directly
integrated in the code, law or decree that they modify.
As with any texts that require compilation work as well
as interpretation, the consolidation process can
generate some errors and implies a certain delay in the
updates as specified in the “Aide” section. This is why,
in spite of all precautions taken by the management
services of the Official Newsletters, it is a good idea
to verify the modified acts accessible via the
Official Newsletters database.
Consolidation consists of integrating in a unique text,
without official value, the successive modifications and
corrections brought upon the text. However, the Superior
Commission of codification has the responsibility of
taking care of the validity of the consolidation of the
texts so that they can be considered a reference for the
citizens.
As with codification, consolidation makes it easier for
citizens to know their rights and duties.
The method used consists of enriching the integral
version of the text with a cutout by articles and an
update by “recodification” of modified texts.
Légifrance provides access to
laws and regulations thus consolidated by the
management of the Official Newsletters.
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6. CASE-LAW
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Case law contributes to the knowledge
of the law since judges have to interpret the existing
rules and regulations in order to settle the disputes
before them.
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6.1. Constitutional Council
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6.1.1.
International
Court of Justice
The International Court of Justice, whose seat is in The
Hague, is the principal judicial organ of the United
Nations. The Court settles in accordance with
international law the legal disputes submitted to it by
States, and gives advisory opinions on legal questions
referred to it by duly authorized international organs
and agencies.
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6.1.2.
International Criminal Tribunal for the former
Yugoslavia
The Tribunal was established by Resolution 827 of the
Security Council of the United Nations. Its objective is
to bring to justice persons allegedly responsible for
serious violations of international humanitarian law as
well as render justice to the victims.
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6.1.3.
International Criminal Tribunal for Rwanda
The Tribunal was created by Resolution 955 by the
Security Council of the United Nations. The
International Criminal Tribunal for Rwanda was
established for the prosecution of persons responsible
for genocide and other serious violations of
international humanitarian law committed in the
territory of Rwanda between 1 January 1994 and 31
December 1994.
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6.1.4.
International Criminal Court
In
resolution 260 the General Assembly adopted the
Convention on the Prevention and Punishment of the Crime
of Genocide. Article I of that Convention characterizes
genocide as a crime under international law. The General
Assembly decided to establish an International Criminal
Court, whose creation by Statute entered into force on
July 1, 2002.
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6.2. State Council and administrative
jurisdictions
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6.2.1.
Court of Justice of the European Communities
The Court of Justice is the judicial institution of the
Community and ensures the uniform interpretation and
application of Community law. For this purpose, the
Court of Justice has exclusive jurisdiction over actions
brought by Member States, European institutions,
businesses and individuals.
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6.2.2.
European Court of Human Rights
Any Member State or individual claiming to be a victim
of a violation of the
Convention for the Protection of Human Rights and
Fundamental Freedoms may lodge directly with the
Court in Strasbourg an application alleging a breach by
a Contracting State of one of the Convention rights.
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6.3. Court of Cassation and judicial
jurisdictions
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6.3.1.
The Constitutional Council
The Constitutional Council can be asked to decide on
conformity with the Constitution of the laws before
their promulgation. The Court systematically verifies
the constitutionality of organic laws and regulations of
the parliamentary assemblies. It can also be called upon
to determine the existence of a contradiction between
the Constitution and a treaty that has not yet been
ratified. If it is judged to be contradictory, the
treaty can only be ratified after a review of the
Constitution.
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6.3.2.
Case Law of Administrative Authorities
The administrative authorities are in charge of settling
disputes between citizens and the Administration.
The first judgments are rendered by the administrative
courts for disputes between the users and
administrations of the State, regions, departments,
communities or public enterprises. There are also
specialized jurisdictions such as the Commission des
recours des réfugiés, Commission d'aide sociale, Section
disciplinaire des ordres professionnels.
If an appeal is lodged, the administrative courts
reexamine the case if one of the parties is not
satisfied with the first judgment.
In addition, the Audit Office as well as the Regional
Audit Offices have jurisdiction to control the accounts
of the State, national public establishments, public
enterprises, social security agencies and optionally,
private agencies that benefit from public funds. The
Audit Office controls the regularity of the accounts of
the State's accountants and, in management, the good use
of public funds.
The
State Council is the highest instance for
administrative matters. Like the Court of Cassation with
judicial matters, the State Council provides case law on
a national level. It has a triple competence:
- in general, as a cassation
court, it hears appeals of decisions rendered by
administrative appeal courts as well as jurisdictional
decisions rendered specialized administrative
jurisdictions.
- as an appeal court, it hears
appeals from decisions rendered by administrative
tribunals relative to municipal and cantonal elections,
prorogation of boundaries and legal appreciation.
- as a first and last instance
court, it hears requests against decrees, ministerial
regulatory acts, decisions taken by collegial bodies of
national competence as well as regional or European
electoral cases.
The State Council carries out itself
a classification of its decisions which determines their
importance. Thus are distinguished:
- decisions published in the Lebon Report that constitute
decisions of major interest on new legal questions or that
reveal a jurisprudential evolution;
- decisions published in the tables of the Lebon Report
that contribute a jurisprudential complement in the matter
of the disputed claims or of a procedure point or that
apply an established principle in case law;
- decisions that are not published in the Lebon Report
that do not innovate or that are constant with the case
law.
Finally, the Court of jurisdictional
issues settles disputes between judicial and
administrative jurisdictions.
Légifrance provides an exhaustive
access to judgments of the State Council and of the Court
of jurisdictional issues. It also offers a selection done
by the State Council of
decisions rendered by administrative appeal courts and
administrative tribunals. Finally, a link provides
access to
decisions rendered by the Audit Office, the Regional Audit
Offices and other financial jurisdictions selected by the
Audit Office.
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6.3.3.
Case Law of judicial jurisdictions
The judicial branch settles disputes that arise between
individuals and sanctions violations against people,
property and society. The criminal jurisdiction tries
persons suspected of a criminal offense (driving without
a license, robbery, murder) whereas the civil
jurisdiction settle disputes (rent, inheritance, etc.).
Finally, some cases are finally reviewed by specialized
courts (For example, probiviral council for a layoff).
The cases, depending on their nature, are taken to
instance courts or first instance courts, police courts,
correctional courts, assize courts, children's courts,
probiviral council, commercial courts, etc.
The appeal courts can reexamine a case upon request of
one or more persons that are not satisfied with the
first judgment.
The
Court of Cassation does not retry a case but
verifies that the laws were correctly interpreted by the
courts and the appeal courts.
Légifrance provides an exhaustive access to
judgments of the Court of Cassation as well as a
selection of
Appeal Courts judgments. Like the State Council, the
Court of Cassation screens its judgments based on its
jurisprudential importance and these are published in
the Court Newsletter
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7. PUBLISHED LEGAL INFORMATION
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The
decree n°2002-1064 of August 7, 2002
relating to the public service of publication of
the law on the Internet stipulates that this service has
been designed to provide the general public free access to
the following legal information:
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1° Normative acts presented with their successive
modifications:
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a) the Constitution, codes, laws and acts prescribed by
regulation issued by State authorities
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b) National collective agreements.
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2° Acts resulting from international engagements taken
by France, as these are issued by the authorities;
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a) Treaties and arrangements to which France is party;
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b) Directives and regulations issued by the authorities
of the European Union.
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3° Case Law :
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a) Decisions and judgments rendered by the
Constitutional Council, State Council, Court of
Cassation and Court of jurisdictional issues ;
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b) Judgments rendered by the Audit office;
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c) Judgments rendered by other judicial and
administrative jurisdictions, that were selected
according to certain criteria;
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d) Judgments rendered by the European Court of Human
Rights and the European Commission of European Rights;
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e) Decisions rendered by the European Court of Justice
and the European Court of First Instance.
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4° A set of official publications:
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a) the edition of “laws and decrees” of the
Official Journal of the French Republic;
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b) the Official Ministerial Newsletters;
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c) the Official Journal of the European Union.
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Two requirements apply to the
published information, on the one hand, the freedom from
intrusion into the private life of an individual and on
the other, the selection and withdrawal of legal data
depleted of legal interest. Thus, the publication of
decisions respects the legal and regulatory obligations in
regards to legal publishing in addition to respecting the
recommendations formulated by the French Data Protection
Authority of November 29, 2001 relative to the anonymity
of decisions published on the Internet.
In addition, supreme administrative
and judicial jurisdictions select themselves the decisions
that they consider offer no legal interest so that these
decisions are not published on the site. In the same way,
for acts published by the Official Journal, legal data
that contains nominative information whose electronic
publication could affect prejudicially the people
concerned are withdrawn from on-line publication. These
categories include:
- Decrees
relative to naturalization, reintegration as well the
mention of a minor child in the acquisition of the
parents' French nationality or the francization of their
first and last names;
- Decrees
relative to a name change,
- Decrees
and decisions relative to the exclusion of a right granted
by the Legion of Honor as well as the deregistration of
control rights of military medals;
- Decrees and
decisions relative to the exclusion of a right granted by
the National Order of Merit;
- Decisions
rendered by the Budgetary and Financial Disciplinary
Court;
- Decisions of
sanctions rendered by the Conseil de prevention et de
lutte conte le dopage;
- Decisions of
sanctions rendered by the Autorité des marchés financiers.
In addition, all legal information
published in the Official Journal is also published on the
site, but only this information. The opinions and data
published in the Official Journal are not published
on-line except for those regarding importers, exporters,
contests and employment vacancies. The opinions and data
that are of a certain importance and that are not
available on other sites can be found on the site and are
up to date since January 1, 2002.
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