•  Freedom from arrest or molestation

‘Freedom from arrest or molestation forms not a personal privilege enjoyed by parliamentarians, but a protection for Parliament so that it can operate correctly, which would be likely to be hindered by abusive proceedings initiated against its members by the executive or by private individuals.’ While recalling the  raison d'être for parliamentary freedom from arrest or molestation, the explanatory memorandum of the draft constitutional amendment adopted by the Congress on 31 July 1995 noted that it ‘infringed the principle of equality before the law.’ It was therefore necessary to modify its rules. It was also necessary to take into account the judicial scrutiny procedure and the range of semi-custodial measures it comprises which were instituted in 1970, in other words after the 1958 Constitution. This was the aim of the constitutional amendment of 4 August 1995, which amended Article 26 of the Constitution by putting forward the following rules:

 - The initiation of prosecution is still possible, even when Parliament is in session ;

 - Any arrest or any custodial or semi-custodial measure is subject to the authorisation of the Assembly Bureau, with which it does not lie to judge the deputy in question but only to give a ruling on the ‘serious, loyal and sincere nature of the request it receives’ ; 

 - The authorisation of the Bureau is not required in the case of a serious crime, other major offence committed flagrante delicto or a final sentence.

 The detention, subjection to custodial or semi-custodial measures, or prosecution of a Member of Parliament, shall be suspended for the duration of the session if the Assembly so requires. The suspensory effect is limited to the duration of the session during which it is decided.

•  Freedom of speech

 Unlike the rules of freedom from arrest or molestation, the freedom of speech rules have not been amended since 1958. ‘No Member of Parliament shall be prosecuted, investigated, arrested, detained or tried in respect of opinions expressed or votes cast in the exercise of his duties (Article 26 of the Constitution, paragraph 1).

 This immunity is aimed at ensuring freedom of expression for parliamentarians. This explains why it is never-ending and continues after the expiry of the mandate, and covers all acts of parliamentary duties (reports, speeches, voting) but them alone, to the exclusion of acts and speech which are not directly related to these duties. Also, freedom of speech cannot be extended to acts accomplished by a deputy as part of an assignment entrusted by the Government (Constitutional Council decision no. 89-262 of 7 November 1989). Freedom of speech protects parliamentarians from both civil and criminal actions. 

Incompatibilities

Incompatibility is a manner of protecting the parliamentary mandate which, unlike ineligibility, intervenes after the election and not before. An ineligible person cannot be a candidate; an ‘incompatible’ person can be elected. Incompatibility, the scope of which is therefore only relative, imposes choosing in a short length of time between the mandate and the activity declared incompatible, either by the elected representative himself or by the competent bodies.

•  Incompatibility with a public activity

- Institutional activities

The parliamentary mandate is firstly incompatible with the duties of President of the Republic — although this is not set forth in any text — member of the Government, of the Constitutional Council, or of the Economic and Social Council.

 The principle of the separation of powers has been invoked to justify these incompatibilities. It is temporarily set aside for temporary assignments the Government entrusts to deputies pursuant to Article L.O. 144 of the electoral code: so that the incompatibility rule is not circumvented, these assignments must not last more than six months; in the event of prolongation, the President of the Assembly notes the termination of the mandate.

 - Non-elective public duties

Incompatibility between the parliamentary mandate and non-elective public duties can be explained by the memory left by the deputies-cum-officials of the July Monarchy whose career depended on the Government which they were deemed to scrutinise. Incompatibility has been extended to management and advisory duties in companies and public establishments. The main exception concerns higher education professors, a category of public agents who escape the suspicion of dependence with respect to the political power.

 Officials who have become parliamentarians are placed in a position of secondment. During their mandate they continue to acquire retirement credits and enjoy advancement by seniority.

•  Cases of incompatibility with private activities

Unlike public duties, private activities are theoretically compatible with a parliamentary mandate. Limits have however been laid down: in particular it is banned to concomitantly hold duties of responsibility in companies, establishments, and undertaking having financial ties (subsidies, interest guarantees, offering of shares) with public corporations. The same applies to companies having real estate activities.

It is also banned for parliamentarians to allow their name and position to appear on an advertisement for a financial, industrial or commercial company, or, if they are barristers, to plead for or to give advice on behalf of the above-mentioned companies. Similarly, the barrister-deputy cannot plead criminal cases against the State.

•  Sanctions

Deputies who find themselves in a case of incompatibility at the time of their election must opt between their mandate and the incompatible activity, within a period which, generally speaking, is thirty days long.  They disclose within the same timeframe any professional activity or any activity in the general interest which they envisage keeping. The National Assembly Bureau rules on the compatibility of this activity with the mandate. During the mandate, any changes affecting the deputy’s situation with respect to the rules governing incompatibility must also be brought to the attention of the Bureau.

 In case of doubt or a dispute, the matter is brought before the Constitutional Council either by the Bureau, or by the Minister of Justice, or by a parliamentarian himself. The Council decides at its discretion. If it gives a ruling of incompatibility, the concerned party must regularise his situation within thirty days following notification of the decision; failing this, the Constitutional Council pronounces his compulsory resignation from his mandate.

Limiting of multiple mandates

The concomitant holding of a parliamentary mandate with one or several  local mandates has always been practised in France. It had spread widely since 1958. A first set of legislation aimed at reducing multiple mandate situations, was  instituted by two Acts of 30 December 1985. It was amended and strengthened by two Acts—including an institutional Act—of 5 April 2000.

 The institutional text lays down the principle of the incompatibility of the mandates of deputy (and senator) and that of a member of the European Parliament. The deputy’s mandate has been made incompatible with the exercise of more than one of the following electoral mandates: member of a regional council (conseiller régional), member of a departmental council (conseiller general), municipal councillor of a commune of at least 3,500 inhabitants, councillor at the Corsican Assembly, member of the Paris city council.

 A deputy who, after his election, obtains another mandate placing him in a banned multiple mandate situation must, within a period of thirty days, relinquish one of the previously held mandates.