What are the powers of a caretaker government in France? – Technologist

President Emmanuel Macron told ministers at a cabinet meeting he would accept the resignation of Prime Minister Gabriel Attal and his government on Tuesday, July 16. By doing so, he is allowing the ministers elected to the Assemblée Nationale to take their seats when the legislature commences, on Thursday – in normal circumstances, ministers are not allowed to sit in Parliament.

Upon the resignation’s acceptance, the country would be left without a fully-fledged government, but the ministers would remain in their posts until a new prime minister is appointed, handling day-to-day affairs. In an open letter addressed to the French people on Wednesday, July 10, Macron said he wants to “give the political forces a little time” to build a new majority. “Until then, the current government will continue to exercise its responsibilities and then will be [in charge of] day-to-day affairs, as is the republican tradition,” he wrote.

We spoke with various constitutional experts to understand the structure of these special powers and their duration.

What is a caretaker government?

A caretaker government is one where its ministers remain temporarily in office to ensure the continuity of the state and its services. Therefore, the essential day-to-day running of the administrations is under their purview. “A minister who resigns is no longer really a minister but acts as one and can’t do just anything. There are limits to his or her power,” explained Benjamin Morel, a lecturer in public law at the University of Paris-Panthéon-Assas.

The role of resigning governments are not specifically outlined in France’s legal texts, but they are a tradition dating back to the Third Republic. Nonetheless, they have been rare, and there is limited jurisprudence on this issue.

How are the powers of such a government limited?

A caretaker government has limited powers compared with a full-fledged government. It cannot, in principle, take measures of a political nature. Elysée Hator, a doctoral student in public law at the University of Paris-Saclay, explained in an article published in 2023 dedicated to this issue that “It is not permitted to take acts that effect a lasting modification of a public body or service, or of a legal status.” Such a government cannot, for example, create new rights and obligations for the population, or take measures not already provided for by existing and enacted laws.

Due to the limited historical examples, it can be challenging to predict what legal measures the French government might take. According to constitutionalist Dominique Rousseau, “The dividing line is difficult to draw because it’s a matter for the Council of State to decide.” The Council of State has the power to challenge a decree if it deems that the measure exceeds the objective of maintaining the continuity of public services.

Rousseau explained that the government can issue decrees, instructions and orders to enforce existing laws without being hindered by their caretaker role. “To prepare for the start of the new school year, the minister of education could, for example, issue instructions on the organization of level-based groups,” continued the law expert, referring to a reform implemented by Attal. “Since the laws have already been passed, the government would also be entitled to publish the related implementing decrees,” he added. Authorized administrative measures may include, for example, “the distribution of mail, the organization of examinations and competitions in the civil service, and the payment of salaries and retirement pensions,” explained Hator in the same article.

The powers of a resigning government, on the other hand, are not limited when the measures taken are of an urgent nature. “If there were an attack [on French soil], there would be no legal obstacle: a government in charge of day-to-day affairs could take the necessary decisions,” explained Julien Boudon, professor of public law at Paris-Saclay University. The government could declare a state of emergency if necessary, even if it had to convene a council of ministers to do so. “By convention, the Council of Ministers is not convened when the government resigns, but this is not a legal constraint,” explained Morel.

When is a government responsible for day-to-day affairs?

While many observers agree that a government that has resigned can only manage day-to-day affairs, there are differences of opinion as to when this resignation is legally effective, and, therefore, when its powers become purely administrative.

Rousseau said the government still has its normal powers between the moment it resigns and the president’s decree making the resignation official. The decree takes effect the day after it is signed, when it is published in the government gazette. The government’s secretariat general recently sent a note to cabinet directors supporting the same viewpoint, as revealed by Politico.

Some, such as Boudon and Morel, support another legal reading, arguing that a government is considered to have resigned as soon as the prime minister hands in his letter of resignation to the president. This reasoning is supported by a case law established by the Council of State on April 22, 1966, which at the time reversed a similar situation dating back to 1962. On October 5 of that year, Georges Pompidou’s government was toppled by a motion of no confidence, prompting its leader the same day to hand in his letter of resignation to Charles de Gaulle, who refused it. It was not until November 28, 1962, that the president accepted and signed the decree terminating his prime minister’s duties.

Asked years later to rule on a decree issued between the two events, the judges nonetheless considered that the government had resigned on October 5, 1962, the day of Pompidou’s letter of resignation, and was therefore only responsible for day-to-day affairs.

How long can a resigned government continue to manage day-to-day affairs?

The power to appoint the prime minister rests solely with the president (Article 8 of the Constitution). He is under no legal obligation to choose someone from the largest group in the Assemblée Nationale, and there is no legal deadline.

While the president said he would accept the resignation of Attal’s government on July 17, no one knows when Macron will appoint a new prime minister. He has already warned that he wants to “give the political forces a little time to build [compromises] with serenity and respect for everyone.” For Morel, “this poses a real democratic problem,” since a government in charge of day-to-day affairs cannot be overturned by the Assemblée Nationale, its resignation having already been recorded. “We’re entering a form of political uncertainty, because in general a government of this kind is designed to last a few days, a few weeks at most,” he insisted. It remains to be seen whether the president will take the risk of prolonging such a situation, especially when there is strong political pressure and the French, who voted in large numbers in the legislative elections, could grow restless.