This is one of the last hopes of opponents of pension reform. After Elisabeth Borne’s 49.3, Thursday, March 16, to have the text adopted without a vote by the National Assembly and the rejection of the motion of censure by nine votes – which could have brought down the government and its project -, the new battle is being played out in the Constitutional Council.

The Elders, whom the Prime Minister announced to seize “directly”, just like the oppositions, will have to decide on the constitutionality of the law within a month. And this might not be a mere formality for the executive, especially since the President of the Constitutional Council, Laurent Fabius, has already issued in private, during the examination of the bill, thinly veiled warnings.

For its pension reform, the government has chosen to go through a social security amending financing bill (PLFRSS). A legislative vehicle that allowed him to activate Article 47.1 of the Constitution to constrain parliamentary debates to fifty days in total. It is for this reason that the Assembly could not decide on the first reading, where it had only twenty days.

But this choice is debatable, believes Benjamin Morel, lecturer in public law at the University of Paris-2. “The 47.1 is made to avoid an American-style shutdown”, that is to say to prevent the country from being shut down on January 1 for lack of a budget adopted in time by Parliament. “That’s the spirit, not to push through a pension reform. »

The very use of the PLFRSS is also debatable, because, if the government presented the reform as necessary to rebalance the finances of the pension scheme, there was not necessarily any urgency to do so in the year. In these two cases, “if the Constitutional Council considers that the choice of procedure was not appropriate, the whole text collapses”.

Accused of “denial of democracy” by the opposition, the government takes refuge behind the Constitution: 49.3 like 47.1 would be democratic tools, because allowed by the supreme text. Not so simple, believes Benjamin Morel, between the 47.1 used to constrain the debates in time, the 44.2 to remove dozens of sub-amendments from the left in the Senate, the points of order of the Senate to speed up the debates and the 49.3 for circumvent the vote… “The Constitutional Council ensures the principle of sincerity of the debates, and the use of all these instruments, combined, begins to load the boat. »

Again, the Elders could then decide to censor everything. But will they dare to do so? “There is legal material, but, politically, it is very heavy”, warns the constitutionalist. And to recall: “The Constitutional Council is a body that has a political vision: is it ready to censor one of the main laws of the quinquennium and set fire to the powder? »

This is the most likely option: the Sages do not censor the entire text, but only part of its provisions. Beyond the legal age and the contribution period, the heart of the reform, it is all the extras, some of which are granted to the right to seduce it, which could be challenged. Criteria of arduousness, measures for the employment of seniors…, these social riders have no connection with the budget and the Constitutional Council could consider that they have no place in a PLFRSS.

It is a parallel battle already launched by the left, but on which the Constitutional Council also has its say. A request for a shared initiative referendum (RIP) was launched on Monday by 250 parliamentarians – more than the 185 signatures required – and sent to the Elders, who have one month to decide on its admissibility. And it’s all a question of timing, as the RIP cannot relate to a legislative provision that has been enacted for less than a year.

This is not yet the case with the pension reform, unless the Elders decide on it first and Emmanuel Macron promulgates it before the RIP has been examined and validated. Unless… During the only precedent, against the privatization of ADP, “the Board had dated its consideration from the moment it was seized”, recalls Benjamin Morel.

A period of nine months would then begin during which the Ministry of the Interior, under the control of the Constitutional Council, would collect the signatures of citizens on an online platform. It takes 4.7 million, or one tenth of voters, for the RIP to be validated. However, the referendum is not automatic. “When the signatures are gathered, the text is examined by Parliament, which can reject it or adopt it without necessarily going through a referendum. »

Consult our file: Pensions: the big bang