Written evidence from the Embassy of France (OTS0128)

19 December 20 18

Dear Mr Tugendhat,             

You asked me about the départements, régions and collectivités d’outre-mer (overseas departments, regions and collectivities). I can provide you with the following information in response.

The status of these territories is defined by the Constitution, which distinguishes two categories: overseas departments and regions (DROM), which are governed by Article 73 of  the constitution, and overseas collectivities (COM),  which come under  Article  74 of the constitution.

However, two territories do not correspond to either of these categories:

New Caledonia, which is considered as a sui generis collectivity, governed by Title XIII of the Constitution. New Caledonia's specific status arose from the Nouméa agreement of 5 May 1998, which, after a decade of political transition itself following violent clashes, provided for strong autonomy and postponed the final referendum on the issue of the islands' constitutional future (independence or remaining part of the French Republic). The referendum on New Caledonia's independence was held on 4 November 2018, in accordance with the Nouméa agreement. Following the ballot, the "no'' vote to the independence proposal won with 56.67%.

the French Southern and Antarctic Territories: The Constitution stipulates that the law determines their ''legislative system and special organization". Act no. 55-1052 of 6 August 1955 created the French Southern and Antarctic Territories, which the 1924 decree attached to the government general of Madagascar. These lands are distinctive insofar as they have no permanent population and therefore no voters, no elected representatives and no local deliberative assembly.

There are five overseas departments and regions (DROM): Guadeloupe, French Guiana, Martinique, Réunion and, since 31 March 2011, Mayotte. Laws and regulations are directly applicable to these territories. Adaptations are possible by virtue of the “special characteristics and constraints" of these territories.  This is the principle of legislative identity. Each territory is both a department and a region. Guadeloupe and Réunion each have both a departmental and a regional council. Martinique and French Guiana have merged these councils and have a single assembly. The state is represented there by a préfet.[1] His or her function is identical to that of a préfet in metropolitan France.

The establishment of Guadeloupe, Martinique, Réunion and French Guiana as overseas departments dates back to the Departmentalization Act of 19 March 1946, and their status has been changed only to follow constitutional reforms relating to the metropolitan departments and regions. The only innovation concerning this category was the arrival of Mayotte in 2011.

There are four overseas collectivities: French Polynesia, the Wallis and Futuna Islands, St Pierre and Miquelon and, since 2007, St Barthélemy and St Martin. The principle of legislative identity does not apply to the overseas collectivities (COM). General law rules apply to overseas collectivities only if their assemblies make express provision for it. Only sovereignty laws (constitutional and institutional acts, rules relating to the major national jurisdictions, legislation governing civil status, and laws authorizing the ratification of treaties) arc directly applicable. The status of each COM is set by an institutional act which provides, inter alia, for "the conditions in which laws and regulations are applicable there".

While the overseas departments and regions are all organized in the same way, the organization of local institutions (the deliberative assembly's composition and how it is elected, the selection of the executive) varies from one overseas collectivity to another. The institutions in St Piere and Miquelon, St Barthélemy and St Martin are close to those of a metropolitan region. Wallis and Futuna has an elected territorial assembly but the executive comprises the: state representative, and the traditional kingdoms still play an important role there. The institutions of French Polynesia are those of a parliamentary system where the government, made up of the President of French Polynesia and ministers, is accountable to the assembly.

The organization and status of these collectivities have varied over time. St Pierre and Miquelon, St Barthélemy and St Martin, the French Establishments in Oceania (the predecessors of French Polynesia) changed their status from colony to territoire d 'outre-mer [overseas territory] in 1946. Wallis and Futuna acquired that status only in 1961 following a referendum. In this context, French law was applicable only by express provision or if it was extended by decree by the Prime Minister.

The territories’ autonomy was very   variable, initially weak, then stronger following Defferre's Reform Act of 23 June 1956.

For example, St Pierre and Miquelon abandoned the status of overseas territory in 1976 to move towards greater integration within the Republic, becoming an overseas department governed by the principle of legislative identity. In 1985, it became a collectivité territoriale [territorial collectivity), a status which allowed it to  exercise some powers which had until then been the preserve of the regions and be consulted on any regional cooperation project or draft international agreement concerning the French Republic's economic zone off the coast of St Pierre and Miquelon. In 2003, with the constitutional revision which got rid of the status of overseas territory and made a distinction between overseas departments and regions (DROM) and overseas collectivities (COM), St Pierre and Miquelon chose to have greater autonomy and abandoned legislative identity. It became an overseas collectivity.

Since 2012, the Ministry for Overseas France has been in charge of these territories, where it exercises the powers granted to the Interior Ministry for metropolitan France. Prior to 2012, Overseas France was more often administered by a special Interior Ministry directorate under the joint authority of the Interior Minister and a minister or minister of state responsible for Overseas France.

The fact that they fully belong to the French Republic means that the whole of Overseas France are represented in the National Assembly and Senate.[2] For example, New Caledonia has one senator and two deputies; Wallis and Futuna has one senator and one deputy; Guadeloupe has three senators and four deputies.

In both the National Assembly and Senate, a delegation of parliamentarians gathers evidence and information on the situation of Overseas France. The delegations ensure that the departments, regions and collectivities' special characteristics, constraints and interests are taken into account and their powers respected. They help evaluate public policies in all those territories.

Through its elected representatives, Overseas France helps formulate France's foreign policy. Moreover, overseas departments, regions and collectivities may now conduct their external affairs vis-á-vis neighboring countries as part of regional cooperation framework programmes. In certain cases, they may join regional development banks and contribute to their capital. Finally, overseas departments, regions and collectivities may appoint their civil servants to French diplomatic representations, through agreements established with those posts.

I hope, Mr Tugendhat, that this information is sufficiently clear. My Embassy is ready to assist the Committee with any further information it may require.

Yours sincerely,

Jean-Pierre Jouyet