Article 40 of the French Constitution restricts proposals and amendments that would decrease public resources or create additional public charges. Recently invoked by National Assembly President Yaël Braun-Pivet, it was used to dismiss amendments aimed at reversing the retirement age reform. Historically infrequent for bills, it has more commonly been applied to amendments, with over 27,000 deemed inadmissible from 2017 to 2022. Its application is overseen by various assembly officials based on the legislative context.
Article 40 of the Constitution is a formidable tool in parliamentary debates. Frequently used to structure discussions among lawmakers, especially concerning budgetary matters, it gained attention again this week. On Wednesday, Assembly President Yaël Braun-Pivet invoked it to dismiss amendments from the RN aimed at reinstating a crucial part of their proposal to reverse the legal retirement age of 64, which had been eliminated in committee.
As a result, the RN and its deputy Thomas Ménagé, who reported on the text, presented a proposal that was nearly empty when their parliamentary session opened on Thursday. This isn’t the first time the Assembly President has employed this article; in June 2023, she made a similar decision against a proposal from the independent Liot group, which also sought to revoke the pension reform. Unlike the RN, the Liot deputies chose to withdraw their text, which had lost its essence, to avoid wasting time. But how does this article actually work?
Also read: Assembly: The RN’s proposal to repeal the pension reform is dead on arrival
What does Article 40 state?
Since 1958, Article 40 has stipulated that proposals and amendments are inadmissible if they lead to a “decrease in public resources” or “the creation or exacerbation of a public charge”, implying that they strain the finances of the State and local governments. In the case of the RN’s amendments, Yaël Braun-Pivet determined that undoing the pension reform — estimated to cost tens of billions of euros — would have disastrous effects on the French economy.
The distinction between the plural in “public resources” and the singular in “public charge” is significant. The plural allows for a “guard” system where a loss in revenue can be balanced by other revenue. This compensation must be credible, real, and benefit the entity experiencing the loss. “For instance, it is not permissible to offset a loss of resources for the State through increased taxes collected by local authorities,” states the official Assembly website.
It is acceptable for this guard to involve creating a new tax. In practice, lawmakers often propose taxes on tobacco to circumvent Article 40. This is even referred to as the “tobacco guard”. “The base and yields of tobacco excise duties are broad enough to ensure the credibility and feasibility of the compensation,” explains Lisa Thomas-Darbois, director of studies at the Institut Montaigne, in an article. During legislative debates, the government can choose to “lift the guard”, meaning it abandons the compensation requirement.
As for the singular form in “public charge”, it prohibits any form of compensation. An amendment or proposal that results in expenditure is not admissible. However, there is more flexibility regarding credits allocated by finance bills since the organic law of August 1, 2001, allows members of parliament to move funds between programs within the same mission without raising the total amount of credits for that mission. Beyond Article 40, any amendment must also adhere to the organic provisions relating to finance laws and social security funding laws, which are currently under discussion in the Assembly.
How frequently is it used?
The use of Article 40 for legislative proposals is quite rare. Since 2009, only eighteen have been “completely or partially deemed inadmissible under Article 40,” stated Jean-René Cazeneuve, a deputy and former budget rapporteur, in an article published in Le Monde. In contrast, it is much more common for amendments. Between 2017 and 2022, over 27,000 amendments were declared inadmissible under Article 40, according to a report by Éric Woerth, former head of the finance committee.
Who can invoke it?
The modalities for applying Article 40 are governed by Article 89 of the Assembly’s rules. Before submission, the financial admissibility of legislative proposals is reviewed by a delegation from the Assembly’s Bureau. For amendments submitted in committee, the responsibility lies with the president of the relevant committee. During sessions, it falls to the Assembly President, Yaël Braun-Pivet. In both committee and session settings, Éric Coquerel, the finance committee chair, may be consulted in case of doubt.
If a legislative proposal or amendment is submitted after being ruled admissible, the government