It is, among the three scenarios envisaged by the Elders of the Constitutional Council, the most likely: the partial non-compliance of the text. If the nine members of the institution on rue de Montpensier judge, Friday, April 14, that certain provisions of the pension reform are unconstitutional, they can censor them. In this case, they do not appear in the text which is to come into force from September 1, 2023. The government is however free to insert them in another bill.
This is a hypothesis that would have the merit of satisfying (almost) everyone: the executive, which would thus ensure that the essentials of its text – in particular the postponement of the legal age to 64 – come into force , and the Sages, who could not be accused of having had a trembling hand. Only the oppositions and the social partners, who have been asking for the total withdrawal of the reform for weeks, would lose out.
“It’s a classic: Matignon purposely places a few obvious legislative riders [des dispositions non conforme au cadre legislatif, NDLR] obvious in a bill to give some bones to gnaw at the Wise Men. The latter do not lose face and the substance of the text is not called into question. This happens very often, “decrypts an old hand from the National Assembly. Thus, our colleagues from Le Canard enchaîné recalled last week that 14 riders had been identified in the climate law in 2021, 10 in the budget for 2022, etc. But, in this case, what specific points of the pension reform, adopted via an amending social security financing bill (PLFRSS) for 2023, could be censored?
Article 2 – the famous “senior index” – gets all the attention, as it is the most likely to be censored. According to the final text submitted to the Constitutional Council on March 21, this index, intended to monitor the employment of seniors, plans to set up an “indicator relating to the employment of older employees”. If this measure were not censored, this index would be mandatory from November 2023 for companies with more than 1,000 employees; the obligation is set for July 2024 for companies with between 300 and 1,000 employees.
However, even if the companies which would not publish this index would be subjected to financial penalties, the Wise men should have no difficulty in proving that it should not appear in a PLFRSS. Indeed, unlike other provisions, this index is not a financial measure and should not have an impact on the Social Security accounts for 2023. Yet that is precisely what it must be proven in order for a provision of a PLFRSS not to be revoked; to be accepted, this index should have been included in a specific employment or labor law.
The “senior CDI” could also be censored for the same reason. This provision, which did not appear in the initial text – it is one of the additions of the LR senators -, provides for the creation of an indefinite contract specific to those over 60 and, above all, exempt from family contributions ” in order to compensate for the cost of a senior employee, who, given his experience, can claim higher remuneration than a young active person,” pleaded Senator René-Paul Savary, co-rapporteur of the text in the Senate. That this idea falls by the wayside would not displease the government: Gabriel Attal, Minister Delegate for Public Accounts, had warned of the risk of a “windfall effect” of a costly measure (800 million euros for the branch family, according to the minister).
Some constitutionalists, whose opinions diverge radically on the future decision of the Constitutional Council, also believe that other measures concerning, for example, the hardship account could be censored. Others, like Jean-Philippe Derosier, professor of public law at the University of Lille, recalled that another option was available to the Sages: constitutionality subject to reservation.
This tool allows the Constitutional Council to “declare a provision in conformity with the Constitution provided that it is interpreted or implied in the way it indicates”. This would therefore make it possible to validate measures which, without this reservation, would have been censored. Be that as it may, no one will be able to question the decision of the Elders: according to article 62 paragraph 3 of the Constitution, “the decisions of the Constitutional Council are not subject to any appeal. They are binding on public authorities and all administrative and judicial authorities”.