Cours de Finances Publiques 2024-2025 : Les Branches, Interconnexions et Sources du Droit Financier
Les Différentes Branches du Droit Financier
Public finance is often incorrectly limited to budgetary law, but it encompasses a broader scope, specifically ionizing three distinct branches: tax law, budgetary law, and public accounting law.
A°) Tax Law (Le droit fiscal) finds its foundations in the Declaration of the Rights of Man and of the Citizen of 1789. The principles established therein dictate that the financing of public charges depends primarily on taxation. The term "fiscal" is derived from the Latin "fiscus," which referred to a wicker basket used to collect money. Historically, this discipline is considered autonomous but remains attached to financial law, focusing primarily on the study of taxes and the modalities of their implementation.
B°) Budgetary Law (Le droit budgétaire) is the discipline to which financial law is most frequently reduced, as it provides the framework for financial activity. Unlike tax law, which examines a specific resource, or public accounting, which sets rules for the presentation of accounts, budgetary law prescribes specific rules for the forecasting of all resources and expenditures. It governs the preparation, presentation, and adoption of public budgets for the State, public establishments, territorial collectivities (local authorities), and other public organisms.
C°) Accounting Law (Le droit comptable) recognizes that the budget, as contained within the finance law, is a collection of accounts involving resources and charges. The qq
qprocedure for their execution, the agents responsible for management, and the controls to which they are subjected are governed by public accounting rules. This autonomous yet affiliated branch of financial law covers rules for record-keeping, competencies, and the responsibility of actors involved in the execution of revenue and expenditure operations involving public funds (deniers publics).
L’Interconnexion avec les Autres Disciplines du Droit et l'Ouverture Vers le Droit Privé
Public finance is subject to the phenomenon of globalization and interdisciplinarity within social sciences. While categorized as public law, it extends beyond public legal relations to impact private law situations involving individuals, their activities, and their assets. According to TROTABAS and COTTERET, public finance reaches these situations through expenditures (when public action serves private life via social benefits or protection of property) and through revenue (as the State draws its substance from private patrimony through taxation). Consequently, the assets hit by taxes and the wealth redistributed are governed by private law, requiring public finance law to align with these private structures.
Following the 1930 crisis, the field opened to economics, political science, and management. Professor LALUMIERE defines this as a sociological approach to public finance. This convergence of legal rules with economic conditions, social policies (e.g., healthcare coverage, old-age insurance, birth incentives), and performance management defines the discipline as financial science (science financière).
L’Interconnexion avec le Droit Constitutionnel et le Droit Administratif
A°) Constitutional Law (Le droit constitutionnel) heavily influences public finance due to the separation of powers. The executive and legislative branches exercise significant constitutional powers in financial matters. The Constitution serves as the primary reference, further detailed by organic laws related to finance laws (LOLF), which are described as a "Financial Constitution." We are witnessing an increasing "constitutionalization" of budgetary law driven by bold judicial rulings. In France, judges recognize constitutional principles and objectives such as the principle of continuity of the State and public services (Cons. const. 25 juill. 1979, n° 79-105 DC), the freedom to undertake (Cons. const. 16 janv. 1982, n° 81-132 DC), financial transparency of press companies (Decision 84-181 DC, 11 October 1984), the fight against tax fraud (Decision 99-424 DC, 29 December 1999), and the financial equilibrium of social security (Decision 2002-463 DC, 12 December 2002).
B°) Administrative Law (Le droit administratif) governs the status and competencies of the primary actors of budget execution, such as authorizers (ordonnateurs), other actors in the authorization chain, and accountants (comptables). Since public resources and charges are authorized by finance laws following tax laws, public finance is firmly anchored in public law. Furthermore, budgetary procedures are now linked to public procurement law (droit de la commande publique), which mandates calls for candidates, comparison of offers from suppliers, and attribution to the lowest compliant proposal.
L’Influence du Droit International et Communautaire
Public financial law is influenced by international standards of budgetary transparency. In many developing countries, these standards are imposed through conditionality tied to official development assistance. At a regional level, community frameworks promote harmonization to facilitate integration. Senegal, as a member of UEMOA (West African Economic and Monetary Union), participates in the approximation of legislation and policies to create a favorable economic exchange environment.
Les Sources du Droit Financier : Cadre Textuel et Hiérarchie
The normative framework of public finance includes constitutional, community, legislative, and regulatory provisions. While international texts like the UEMOA Treaty are vital for harmonizing the legislative framework and indirect taxation, the budgetary law of States still largely depends on national norms.
A°) The Constitution of January 22, 2001, and Law 2020-07 of February 26, 2020 (LOLF), establish the fundamental rules and principles of Senegalese budgetary law. Specifically:
Article 67: Establishes the principle of the legality of tax, stating that the law determines the assessment (assiette), rate, and collection methods of all impositions. It also specifies that public job creation or transformation must occur via finance laws.
Article 68: Refers to the LOLF regarding the conditions for Parliament to vote on finance law projects, including deadlines.
Article 82: Outlines the conditions for parliamentarians to exercise the right of amendment.
B°) Community Law, particularly Article 43 of the UEMOA Treaty, defines the legal regime of acts:
Regulations (Règlements): General scope, mandatory in all elements, and directly applicable in all Member States.
Directives: Bind Member States regarding the results to be achieved.
Decisions: Mandatory in all elements for their specific addressees.
Recommendations and Opinions: No binding force.
C°) Organic Law n° 2019/14 of October 20, 2019 (modifying Law n° 2002-20 of May 15, 2002) governs the Internal Rules of the National Assembly. It details the admissibility of amendments and the adoption procedures for finance laws. A violation of such internal rules (Articles 42 to 50) led the Constitutional Court of Benin (Decision DCC 13-171, 30 December 2013) to annul the rejection vote of the 2014 budget for procedural non-compliance.
Le Pouvoir Réglementaire et la Prolifération des Textes
Regulatory power in public finance often exceeds simple derivative power, gaining normative potential. This includes the opening of additional credits through advance decrees (décrets d’avance), credit reallocations via transfer or virements (virements de crédits), and credit carryovers (décrets de reports).
Key regulatory texts include:
Decree n° 2020-978 (23 April 2020) on General Public Accounting Regulations (RGCP).
Decree n° 2025-89 (14 January 2025) on budgetary nomenclature.
Decree n° 2020-1036 (15 May 2020) on management control.
Decree n° 2023-283 (07 February 2023) listing programs and budgetary allocations.
Various circulars, such as Circular n° 06/MFB/DGB/DPB (20 February 2023) for budgetary framing.
Scholars LASCOMBE and VANDENDRIESSCHE refer to certain texts like the DPBEP (Document de Programmation Budgétaire et Économique Pluriannuelle) or "citizen budgets" as "soft law" (droit mou), noting that while there is an objective of legal clarity, there is a proliferation of texts with uncertain legal value, such as various manuals and instructions regarding the justification of credits at the .
Les Sources Jurisprudentielles et l'Apport du Juge
In Senegal, the scarcity of budgetary and financial litigation means the judge has not developed extensive local jurisprudence; the Constitutional Council is rarely seized for finance law reviews. Consequently, much of the jurisprudential framework is drawn from French law.
A°) Constitutional Jurisprudence: The French Constitutional Council recognized the principle of equality before the law in 1973 in the context of a tax provision in a finance law. It has clarified the bipartite structure of finance laws, the precise meaning of financial inadmissibility (particularly the concept of "public charge"), and ruled against "budgetary riders" (cavaliers budgétaires) and for the principle of sincerity.
B°) Administrative Jurisprudence: The French Council of State (Conseil d'État) established in M. NOIR (27 February 1987, req. 64637) that budgetary acts are inopposable to individuals. Provisions in the finance law primarily govern the relationship between the Government and Parliament and affect only the administration's execution agents. For example:
In C.E. 28 March 1924 (Jaurou), the court ruled that an official cannot sue over indemnity rates if the finance law does not explicitly set them, even if credits were budgeted. The budget entry is not constitutive of a specific right for the individual.
In C.E. 26 July 1946 (Valent-Fallandry), it was ruled that a civil servant cannot use the budgeting of their position as an argument against its suppression.