In the aftermath of the deadly attacks in Paris on Friday, the French government has taken three major actions: declaration of a state of emergency, implementation of border controls, and convening of Congress. James Gillespie, a lawyer in Paris and a Power Line reader, has prepared a discussion of these measures and their legal underpinnings. Here is James’ analysis:
State of Emergency
By a decree issued in the night of November 13-14th (Décret n° 2015-1475 du 14 novembre 2015), the French President instituted a state of emergency (état d’urgence) in all of continental France and Corsica. This decree was later modified by two further decrees issued on November 14th (Décret n° 2015-1476 du 14 novembre 2015 and Décret n° 2015-1478 du 14 novembre 2015), which limited some of its applicability to certain regions.
A state of emergency is defined by French law (Loi n° 55-385 du 3 avril 1955 relatif à l’état d’urgence). A state of emergency must be declared by the Cabinet (i.e., not by the President acting alone). If prolonged beyond 12 days, it must be authorized by Parliament.
In general, the state of emergency gives sweeping powers to the government to act in ways that would not be permitted under normal conditions.
Prefects, the direct representatives of the national government at the local level, have the authority to :
– Regulate or prohibit movement or residency in certain zones;
– Close theaters, bars, restaurants (and probably sporting events);
– Prohibit public gatherings “which may lead to disorder”.
The Interior Ministry, Attorney General and Justice Ministry are provided even more extensive rights:
– Individuals judged dangerous may be placed under house arrest;
– Military-grade weapons may be distributed;
– The military may be called upon to support common-law police, in which case crimes may be punished by military tribunals subject to military law;
– Searches and seizures may be conducted at any time.
(The law also provides for the possibility for authorities to restrict the press – this particular provision has not been implemented.)
Closing of the Border
In his press conference on the night of November 13th, President Hollande made reference to having ordered the closing of the French borders. In reality, it appears that he has given orders for the re-institution of passport checks at the intra-EU borders, which have long been subject to no controls.
Freedom of movement between certain EU Member States was instituted by the Schengen Agreement of 1985. It provides, in general, for those within the EU (whether EU citizens or legally admitted foreigners) to be able to move between participating countries (not all EU Member States are Schengen participants) without the need for passports or visas.
The rules for implementation of the Schengen Agreement have been the subject of many EU regulations and decisions, most importantly a Regulation (i.e., measure having direct and immediate applicability in Member States) adopted in 2006, known as the Schengen Rules (REGULATION (EC) No 562/2006).
Article 23 of the Schengen Rules permits Member States, in the event of a “serious threat to public policy or internal security” to re-introduce border controls, and (Article 25) to do so immediately and without notice to other Member States in the event that urgent action is necessary.
France therefore has the legal power to re-implement border controls.
As of today, no decree or other implementing directive has been published by the President in respect of border controls. Traditionally, the President has taken full responsibility for foreign affairs, though the Customs Service is administratively subject to the Finance Ministry. It would be expected that some form of instruction would be formally issued in the coming days.
Parliament called to Congress
The two houses of the French Parliament, the Chamber of Deputies and the Senate, have been convened by the President in the form of a “Congress” to be held in Versailles on Monday the 16th.
Article 18 of the French Constitution provides that the President may convene a Congress for the purpose of delivering a message directly to Parliament. The session is non-voting, and Congress shall take no direct action on the message delivered.
As in the United States, the French President is generally separate – constitutionally and in practice – from the houses of Parliament. He does not partake directly in Parliamentary dealings.
The French Congress could thus be compared, in US terms, to a presidential address to a joint session of Congress. However, they are much more rare. As far as I can tell, this will be only the second Congress held since the adoption of the French Constitution in 1958 (the other being a rather anodyne address by Sarkozy after the victory of right-of-center parties in the June 2009 European Parliament elections).
Of the measures taken to date, the implementation of the state of emergency certainly has the most far-reaching ramifications. In the coming days and weeks, it will be interesting to see to what extent the French government actually relies, in practice, on the power it has been granted.
Similarly, the imposition of border controls is legal, and by treaty is subject only to a requirement that France inform its counterparts of its actions and their rationale. In the current case, obviously, there should be no immediate objections; it will be interesting to see whether this is the case in several weeks if controls are maintained.
(Please note, none of the above constitutes legal advice.)