The theory of the hierarchy of norms is due to the Austrian jurist Hans Kelsen (1881-1973)
In this theory all the legal norms are structured in a pyramid where each norm must necessarily respect a norm which is superior to it.
The Constitution of October 4, 1958 established a pyramid of standards where the hierarchy of legal standards is as follows. At the top is the Constitution, and then in descending order the treaties, the laws [ organic laws taken for the application of the constitution then ordinary laws, voted by the Parliament ] and the general principles of law, then the decrees [ standards of general scope, the adoption of which is the responsibility of the executive power with decrees in the Council of State taking precedence over simple decrees], which themselves have a higher value than decrees [ ministerial, prefectural, municipal decrees ].
There are currently 8,000 laws and over 110,000 decrees in force, with constant inflation.
The different categories of legal standards in France and their hierarchy
– the Constitution and the “constitutionality bloc”
The Constitution is the supreme norm. No clause of a treaty or of an international commitment may be contrary to it. This is why, if France signs a treaty or subscribes to an international commitment comprising an element contrary to the Constitution, the treaty will not be able to produce any effect, in domestic law, as long as the Constitution has not been revised. Laws must conform to the Constitution and the Constitutional Council is responsible for verifying it, for each law referred to it.
The benchmarks of the “constitutionality bloc” are not limited to the text of the Constitution itself. Over the course of its case law, the Constitutional Council has extended them to the Declaration of the Rights of Man and of the Citizen of 1789 (decision of December 27, 1973), to the preamble to the Constitution of 1946, to the principles of constitutional value and to the principles fundamental recognized by the laws of the Republic and solemnly reaffirmed by the preamble of the Constitution of 1958 (decision of July 16, 1971).
– international treaties and agreements
Article 55 of the Constitution, treaties and agreements have, under certain conditions, an authority superior to that of laws.
France has signed numerous treaties and international agreements, the majority of which are submitted to Parliament with a view to authorizing their ratification or approval by law.
In addition, Community law tends more and more to fit into the national legal order, in particular since the entry into force, in 1987, of the Single European Act completing the integration of the internal market. As specified
– organic law
In the hierarchy of norms, the place of the organic law is situated between the Constitution and the ordinary law, because the organic law is a law adopted according to a specific procedure and specifying the modalities of organization and functioning of the public powers in the cases specially provided for by the Constitution. The organic law is a standard to which the Constitutional Council refers, for example when the regulations of the assemblies are submitted to it before their implementation; thus, in a decision of July 8, 1966, the Council verified the conformity of these regulations “both with the Constitution and with the organic laws provided for by it”. The Constitutional Council also refers to the provisions of an organic law to verify the constitutionality of a law;
– the law
Except in the case of a referendum, the law is voted by Parliament. But, unlike the Third and Fourth Republics, the 1958 Constitution limits the scope of the law to certain matters. Parliament cannot pass laws on any subject it chooses. It must respect the field of attribution fixed by the Constitution.
The jurisprudence of the Constitutional Council and the action of governments have, in reality, relativized this strict distribution of the field of law and regulation.
– the regulatory administrative act
The regulatory administrative act (decree, order, etc.) is a general rule, that is to say applicable to all. This rule is enacted unilaterally by the executive power, without the approval of Parliament. In addition, individual administrative acts specifically concern one or more persons.
The government not only has regulatory power to apply the law, but also an autonomous regulatory power in all matters not assigned to the law by the Constitution.
Regulations are superior to individual acts emanating from the same administrative authority. In other words, an administrative act taken in favor or against an individual by an administrative authority cannot contradict a regulatory administrative act, even if the latter was taken by the same administrative authority.
Autonomous regulations are subordinate to the Constitution and treaties, while administrative acts applying the laws must, by definition, be directly subordinate to the law.
The administrative courts (Council of State, administrative courts of appeal and administrative tribunals) are responsible for ensuring that the principle of legality is respected, that is to say for ensuring compliance with higher reference standards by administrative acts.
Regulatory or individual administrative decisions, taken by the Prime Minister or by a simple civil servant, must always respect all higher standards: laws, treaties, the Constitution.