Policymaking and Public Law in France: Public Participation, Agency Independence, and Impact Assessment
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POLICYMAKING AND PUBLIC LAW IN FRANCE: PUBLIC PARTICIPATION, AGENCY INDEPENDENCE, AND IMPACT ASSESSMENT Susan Rose-Ackerman* Thomas Perroud** Policymaking in government ministries and agencies is the inevitable result of the complex and technical nature of modern policy issues. This reality creates a puzzle: How can policymaking inside the executive remain true to democratic values? We confront this question through an analysis of modern pressures on French public law. We ask ifthe US. approach, which we call "rulemaking accountability," has any lessons for French reformers. The primary aim of this type of accountability is facilitating public input to assure that democratic values extend into administrativepolicymaking. In France, the public administration traditionally has been understood, not as a threat to democracy, but as an instrumentfor achieving republican ideals. Statutes set out broadframeworks, but their concrete implementation should be left to impartial, expert bureaucrats.A specializedjudiciary, also composed of civil servants, oversees the administration.Developments are putting pressure on French public law. These call for enhanced public participation,the creation of independent agencies, and the use of new forms of technocratic policy analysis. Can these new trends produce a stronger, more democratically legitimate stihte, or are they in such deep tension that France will either return to old practices or experience a drastic realignment ofpublic power and public law? The French system has begun to respond to these new pressures, but they are still frequently resisted, and reforms have not coalesced arounda consensus view. However, recent decisions of the French high courts suggest a move toward more oversight of the democratic legitimacy of administrative processes. Furthermore,efforts occurring inside and outside the government are encouragingmore open policymaking and the more systematic study of government programs. Future developments are by no means clear, but the elements are in place for reforms that enhance public accountability and support systematic analysis of policy impacts. Henry R. Luce Professor of Jurisprudence (Law and Political Science), Yale University. Assistant Professor, Paris-Est Cr6teil University; Research Associate, Sciences Po, Governance and Public Law Centre; Deputy Director Program on Comparative Administrative Law and Visiting Fellow, Yale Law School. COLUMBIA JOURNAL OF EUROPEAN LAW [Vol. 19.2 INTRODUCTION ....................................................................................................... 227 1. PUBLIC LAW IN FRANCE AND THE INFLUENCE OF EUROPEAN INSTITUTIONS ..236 A. The Constitution and the Separation-of Powers ............................... 237 B. French Public Law Institutions ........................................................ 238 1. The Conseil d'ltat: Tradition and Change ................................ 238 2. The Conseil Constitutionnel: The Beginning of Ex Post R ights Review ........................................................................... 247 C. European Law and Institutions: Challenges to French Legal Sovereignty .................................................................................... 250 II. POLICYMAKING PROCEDURES: PARTICIPATION AND ACCOUNTABILITY ....... 253 A . The Public Inquest ........................................................................... 254 B. Consultations and Concertations: Legal Requirements, New Experim ents .................................................................................... 256 C. La Grenelle: Symbolic Politics or Genuine Involvement? ............... 260 D. Other Experiments with Public Participation ................................... 265 E. Public Input for Government Secondary Legislation ......... 267 1. Judicial Responses ..................................................................... 267 2. Government Actions .................................................................. 270 3. United States Practice ................................................................ 272 III. INSTITUTIONAL INNOVATION: SECONDARY LEGISLATION AND INDEPENDENT AGENCIES ........................................................................... 273 A. Constitutional Issues and Public Welfare ......................................... 273 B. Le Conseil Sup6rieur de 'Audiovisuel .................. 277 C . A RC EP ............................................................................................. 283 D. Conclusions on Independent Agencies ............................................ 288 IV. IMPACT ASSESSMENT, RISK ASSESSMENT AND BILAN .................................. 289 A. Impact Assessment: Alternative Concepts ....................................... 291 B. Impact Assessment as Balancing ..................................................... 294 C. Impact Assessment and Service Public ............................................ 296 D. Impact Assessment and the Quantity and Quality of Statutes .......... 297 E. Conclusions on Impact Assessment ................................................. 301 V. CHALLENGES TO FRENCH PUBLIC LAW, THE UNITED STATES MODEL, AND FUTURE PROSPECTS ................................. .......... 302 A. The United States and France, Compared ........................................ 302 1. Process ....................................................................................... 304 2. Substance ................................................................................... 306 3. Review of Draft Regulations ..................................................... 306 4. Independent Agencies ................................................................307 B . Reform Initiatives ............................................................................ 307 1. Participation and IA ................................................................... 308 2. Independent Regulatory Agencies ............................................. 311 C . Conclusions ...................................................................................... 312 2013] POLICYMAKING AND PUBLIC LAW IN FRANCE INTRODUCTION In all democracies policy is made, not just in the legislature, but also in the executive. Yet, despite its prevalence, executive policymaking raises concerns of popular legitimacy that have led some to question its justification. To examine this controversy, we focus on the French case both because of its distinctive public law traditions and because these traditions are facing a new and challenging set of pressures. Because of the high quality of its civil service, France is a particularly valuable lens through which to examine the impact of new developments. One cannot simply dismiss the bureaucracy as corrupt, captured, or incompetent.' The French model of administrative law stands in sharp contrast to the American case. Hence, it can help illuminate features of American public law that might otherwise seem unproblematic. Conversely, assessing the French case through the lens of American law highlights the tensions facing French 0olicymaking institutions as new developments confront entrenched legal doctrines and practices. In both France and the United States, constitutional law acknowledges the policymaking role of the executive branch. The administration is not simply a way to implement detailed and clearly articulated statutory mandates; rather it plays a creative rdle in designing and determining policy.2 Policymaking in government ministries and agencies is the inevitable result of the complex and technical nature of modem policy issues. Policymakers must also respond promptly to dynamic changes in conditions. As a result, rules with legal force cannot be the sole responsibility of the legislature. Either the legislature explicitly delegates policymaking power to the executive, or the executive assumes this role by default or by constitutional design.4 This reality creates a puzzle: How can policymaking inside the executive remain true to democratic values? The goal is not to assure that the executive follows the "preferences" of the legislature, which ofien do not exist in any clear-cut way. Rather, the administration should exercise its discretion in the broader public interest, conditioned by statutory language and constitutional principles. France and the U.S. differ sharply in their responses to this policymaking dilemma. We ask if the U.S. approach, which we call "rulemaking accountability," could be adapted to French conditions. Under that concept, if the executive or an independent agency makes policy, it has an obligation to use procedures that are 'Timoth~e Paris, Is (French) Continental Law Efficient to Fight Conflicts ofInterests?,paper presented at a symposium on "Corruption and Conflicts ofhfterest", Sciences Po, Paris September 2011. (discussing the socialization ofcivil servants into the culture of integrity and impartiality). 2 PETER LINDSETH, POWER AND LEGITIMACY: RECONCILING EUROPE AND THE NATION STATE 37 (2010) [hereinafter POWER AND LEGITIMACY], distinguishes between the "executive" at the political summit ofthe government and the "administration." We consider policymaking at both levels and include mixed cases where the background work is performed by civil servants and lower-level political actors, but where the final decision is made by politically accountable individuals. 3 On the difficulty of distinguishing policymaking from administration, see generally James H. Svara, The Myth of the Dichotomy: Complementaritvof