What if the Elders of the Constitutional Council invalidated the pension reform? Several hypotheses emerge on the decision that it will take this Friday, April 14. Clarifications.
It is therefore this Friday, April 14 that the Constitutional Council will issue its decision on the pension reform, adopted via article 49.3 on March 16. Nothing is leaking, no indiscretion, no rumor about what the Elders are going to decide on this text… Each member of the body, responsible for pronouncing on the constitutionality of the laws adopted, knows full well that this consultation has a historical, because of the major political consequences it will produce.
The document they will submit can bury this pension reform or, on the contrary, give it the most absolute legal endorsement. Rarely under the Fifth Republic – the most significant precedent, which will also give another dimension to the Constitutional Council, dates back to 1979 – has a decision by the Elders been so decisive. Whatever it is, it will have far-reaching implications. To fully understand what is at stake here, some clarifications are needed, in a few questions and answers.
What is the Constitutional Council?
It is an institution designed by the founders of the Fifth Republic. To put it simply, we can remember that the main part of its work is to decide on the conformity of laws with the Constitution. It is now made up of 9 members, supposed to be fine experts in the fundamental law: Alain Juppé, Corinne Luquens, Jacques Mézard, François Pillet, Michel Pinaut, Jacqueline Gourault, Véronique Malbec, François Seners. The President of the Constitutional Council is Laurent Fabius, appointed by the President of the Republic François Hollande in February 2016.
The Constitutional Council renders its decisions in plenary session and there are no, formally, dissenting opinions: each member clearly decides on his name, but the opinion of the Elders is then unanimous and solemn, no member makes public his personal opinion, there will be no contradiction. We therefore do not know who voted for or against, but we do know that the president has a casting vote in the event of a tie vote on the decision.
According to article 62 of the Constitution, “the decisions of the CC are not subject to any appeal”. They are binding on public authorities and all administrative and jurisdictional authorities.
What are the different possible scenarios for the pension reform?
To answer this question, Linternaute interviewed Mélody Mock-Gruet, doctor of public law, constitutionalist and special adviser to Parliament.
1/ The Constitutional Council validates the entire text
This is the least likely hypothesis, but it is not excluded: “In this case, the law is validated as a whole, it can then be promulgated as is”, explains Mélody Mock-Gruet.
2/ The Constitutional Council validates the text, but with some censorship
“Only part of the law can be censored, specifies Mélody Mock-Gruet. It is possible in particular that the senior index is judged as not respecting the ‘binding procedure of a financial text’. The measures of such a project of law must have a direct impact on the income and expenditure of the Social Security pension system, which could not be the case for the senior index or the senior CDI”.
In this scenario, the text of the law could therefore be touched up on the margins, with the deletion of articles initially designed to compensate for the effort required of the French with the postponement of the retirement age. The final text could therefore be “harder” for future retirees. The Constitutional Council can also “insert reservations of interpretation, which means that in the application of the law, the precisions formulated must be followed”.
3/ The Constitutional Council censors the entire text
This is the hypothesis of the political explosion: the entirety of the law can be censored, which prohibits its promulgation. The scenario is not to be excluded, because it is based on a solid legal argument, put forward by several constitutional experts: the Constitutional Council could very well consider that the government has carried out a “misuse of procedure”.
Elisabeth Borne has indeed chosen to have her pension reform examined by deputies and senators by presenting it as an amending social security finance bill (PLFRSS). “The government used a constitutional framework, starting from article 47.1, which was imagined, planned and created to adopt the finance laws, that is to say to release a budget. This article enormously limits parliamentary work, in time and even in substance.Another very important point: this article is being used for a ‘corrective’ finance bill, in reality it has to rectify a law passed in December… But it really seems If not, this reform brings about a profound social change that would have deserved a real bill,” insists public law expert Mélody Mock-Gruet. “The Constitutional Council could consider that the Constitution has been used in a misguided way”.
If the Elders don’t censure the government on this point, won’t that set a precedent and open a breach? The fear that other governments, subsequently, could use the framework of the PLFRSS – and the associated articles binding on Parliament – to pass major laws is put forward by some constitutionalists. In other words, if the Constitutional Council lets the Borne government do its thing, why would other governments deprive themselves in the future of 47.1 and other facilities to limit the work of control and examination of deputies? “Be careful, when we create case law in the Constitutional Council, we have already seen it many times, it is not eternal… The Constitutional Council can say the opposite 6 months later, can invoke that it has changed his mind, so this argument can be circumvented”, moderates Mélody Mock-Gruet.
4/ An intermediate position: most of the text is validated, but with the possibility of an open appeal
This is probably the most likely scenario; in order not to lend itself to political partiality trials, the Constitutional Council could well not censor the entire text, but bring out another legitimate space in law for social protest: that of the popular initiative referendum (RIP) . “I think he will leave the door open,” anticipates Mélody Mock-Gruet. “Nobody knows what they are going to decide, the members of the Constitutional Council have an essential role”, she sums up, pointing out all the same the fact that the Constitutional Council makes two decisions at the same time this Friday: the first on the pension reform and the second on the RIP procedure, launched by the socialist group in the National Assembly before the adoption of the text.
“They could have decided to dissociate the two decisions; if they did not, it is because they want to make a link. And if they validate the procedure, the government will not be able to turn the page of the reform: in public opinion, the RIP will remain a possible recourse to contest the government’s measure.And then many questions will arise on the methods of implementation, the deadlines, the vote of the Assemblies on the RIP… Everything this would open a new chapter”.