The RN and the Nupes denounce a bill which would not respect the Constitution. The acceleration of the debates by having recourse to articles 49.3 and 47.1 as well as certain legal provisions which do not seem to come under the social security budget could push the Elders to censor part of the text.
The government hopes that this will be the last step in the pension reform. After the adoption by Parliament of retirement at 64 on Monday evening, after the narrow rejection of a motion of censure, Élisabeth Borne indicated that she would seize “directly the Constitutional Council” for an examination of the text “in soon as possible”.
If the mission of the institution is to ensure compliance with the control of the Constitution for certain texts, such as the rules of the Senate or the Assembly, it is not obliged to refer to budgetary laws, unless it is seized by the government or deputies.
The RN did not wait for the transmission by Matignon to file an appeal this Tuesday morning, followed by the Nupes in the evening. The sages – the name given to the members of the Constitutional Council – will now look at each article to see if it is in conformity with the Constitution. Several elements could be challenged by the Constitutional Council.
•An amending budget bill for the pension reform
After much hesitation, the government, which had been reluctant to discuss retirement at 64 in a dedicated bill, finally opted for what is called a corrective social security financing bill (PLFSS).
With one objective: to allow the executive to be able to go very quickly. The social security budget, like the State budget, can be examined within a maximum of 50 days of debate in Parliament in accordance with the provision of Article 47.1 of the Constitution.
But Elisabeth Borne has a thorn in her side: by having resorted to an amending budget in recent weeks, the government is acting urgently to modify it. Budget changes, which are voted on in November, generally take place before January 1st. The goal is to be sure to have a bill as close as possible to the budgetary situation of France for the new year.
“The reform will mainly have effects beyond the year 2023. However, it is a corrective project for the year 2023. In addition, it takes place from February-March when it is is not characterized by an imperative of speed”, thus summarizes the constitutionalist Thibaud Mulier in the columns of West France.
The wise will therefore have to ask themselves if the pension reform had a real urgency. If this is not the case, the Constitutional Council could censor it entirely.
The hypothesis, however, seems unlikely. Only one budget text in the entire history of the 5th Republic was censored in 1979. The Council had declared the text unconstitutional, reproaching the National Assembly for having begun to examine the second part of the text on the spending before the first vote on revenue.
• The limitation of debates in the National Assembly
To succeed in having the pension reform adopted, the government multiplied the recourse to the Constitution: a 49.3 in the National Assembly in first reading, a vote blocked in the Senate with article 44.3, article 44.2 to remove from under -amendments from the senatorial left…
All this against the background of the internal rules of the Senate, which also depends on the Constitution. Not fond of the proliferation of amendments from socialists, environmentalists and communists, Bruno Retailleau, the president of the LR group, applied, after agreement from the conference of presidents, article 42 to speed up the debates. Article 38 was also used for the first time in the history of the upper house to pass the article on the passage to 64 years.
If all these procedures are of course legal, several constitutionalists wonder about their multiplication
“There is a baroque use of these elements. Taken separately, they could not lead to an overall censorship of the text, but there, there is an effect of accumulation”, remarks Benjamin Morel, professor of public law at Public Senate.
“How will the sages appreciate this particular use of the procedure? Will they send a signal to the government through global censorship or reservations of interpretation? Everything is open,” wonders this specialist in the Constitution.
In 2012, the Constitutional Council totally censored the Duflot law on social housing. The sages had considered that “the constitutional requirement of clarity and sincerity of parliamentary debates” had not been respected. In question, the haste of the government. François Hollande, elected a few months earlier at the Élysée, had decided to bring forward the resumption of parliamentary work and to present this bill to the Senate for discussion without delay.
It was Jean-Marc Ayrault, then Prime Minister, who announced the total censorship of the text – a first. The government then presented a second bill adopted a year later.
• Measures that are not linked to the social security budget
All the provisions contained in this text must be related to the social security budget. But several elements raise questions: is the experimentation of the CDI senior really linked to the financing of social protection in France? Does the senior index, which aims to measure the employment of seniors in companies, also have its place in the text?
The Constitutional Council could see “budget riders” and, in this case, censor them, without touching the other provisions of the reform.
In a note from the Council of State that procured the deputies Jérôme Guedj and Cyrille Isaac-Sibillethe institution pointed out the risk of unconstitutionality of these measures.
“Anything that is outside the financial field can be considered as a budgetary rider”, recalled for his part Laurent Fabius, the president of the Constitutional Council.
Questioned by AFP at the end of February on this subject, Matignon estimated that the senior index had “its place” in the reform, because “the product of the penalty” of the companies did not respect the senior index “will feed from 2023 the National Old-Age Insurance Fund.
The Constitutional Council should decide very quickly. He has 8 jbear in case of emergency if the Government so requests. Its decisions are binding on everyone and cannot be appealed.
