The Elders will make their decision on retirement at age 64 this Friday. If many constitutionalists hardly believe in the possibility of total censorship of the reform, the track of partial censorship and the validation of the referendum of shared initiative hold the rope.
Rarely has a decision by the Constitutional Council aroused such expectation: the Elders, whose independence is sometimes disputed, will vote this Friday on the pension reform wanted by the executive and on the proposed referendum of shared initiative carried by the opponents. Several verdicts are possible.
• Scenario 1: the Constitutional Council fully validates the reform
This option would mean that the members of the Constitutional Council found nothing wrong with the bill, which would then be judged to be completely in conformity with the Constitution, both in terms of the substance of the text and the legislative means used to have it adopted.
This possibility is considered the least probable by specialists in public law.
“It is almost impossible for the Sages to say yes to the whole text”, estimates the constitutionalist Paul Cassia with BFMTV.com. “We would be in something unprecedented in the face of a reform that has been tied up legally in a hurry.”
What can happen next. In the event of full validation, the government would promulgate the law within two weeks, with a desire to apply “in the summer of 2023”.
“Perhaps there will be no way out and this law will be enacted and it will apply,” admitted CFDT secretary general Laurent Berger last week on BFMTV.
But the unions could still seize the Council of State to challenge the implementing decrees specifying the terms of the reform. “The application decrees will have to be written and they are extremely important because when we touch the decrees, we touch people’s lives”, noted Laurent Berger.
The social partners had thus seized largely delayed a controversial reform of unemployment insurance, thanks to such appeals before the Council of State.
• Scenario 2: the Constitutional Council partially censors the text
Second possibility on the table, considered the most credible by specialists: the Elders judge that part of the law is not in conformity with the Constitution.
Among the possible reasons for rejection are the so-called “budget riders”. All provisions of the amending social security budget – the government’s chosen vehicle for pension reform – must relate to social protection.
But several elements raise questions: is the experimentation of the CDI senior really linked to the financing of social security in France? Does the senior index, which aims to measure the employment of seniors in companies, also have its place in the text?
“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 from January.
What can happen next. Partial censorship would not necessarily be such bad news for the executive, provided that the main element of the reform, the lowering of the retirement age to 64, is validated. The government could thus promulgate in the two weeks following the expurgated law of the censored passages before the unions try their luck before the Council of State.
“If there is censorship of points (…) but not of 64 years, then that will in no way respond to social conflict,” warned the secretary general of the CFDT Laurent Berger.
• Scenario 3: the Constitutional Council completely censors the text
This is the option that the left-wing parliamentarians and the Liot group in the National Assembly are calling for. The complete censorship of the text would mean that the Constitutional Council deemed the bill entirely unconstitutional.
Opponents argue that parliamentarians have not always obtained precise answers to their questions, whether on the number of people with “a full career at minimum wage” who could receive 1,200 euros in pension or the precise age of departure for long careers. What to call into question the question of “the clarity of the law”.
“The clarity of the debate has not been respected in a manifest, serious and repeated way, to the point that the Council could say that the law did not respect ordinary parliamentary procedure. And therefore censure the law”, judged the constitutionalist Dominique Rousseau with Public Senate.
Another question that can push the Elders to completely censor the text: that of a lack of “sincerity of parliamentary debates”. To succeed in having the pension reform adopted, the government multiplied the use of various tools of the Constitution: a 49.3 in the National Assembly at second reading, a vote blocked in the Senate with article 44.3, all against a backdrop of 47.1 to limit the time for debate in Parliament.
If all these procedures are of course legal, several constitutionalists wonder about their multiplication. “The procedure followed by the entire pension reform bill is unprecedented”, deciphers the professor of public law Laureline Fontaine. “For example, 47.1 had never been used in the entire history of our Constitution. It could give the Council the opportunity to say something special.”
The diagnosis is far from unanimous in the ranks of specialists, especially since the total censorship of a law is extremely rare. Law professor Bastien François thus underlines that the Constitutional Council may consider that it is not up to him but to “Parliament to police its debate itself”.
What can happen next In the event of total censorship of the text, the government would be forced to start from scratch. In other words, a political cataclysm for the executive, which is struggling to get out of the slump created by the pension reform.
“There is no worse news for us”, sighs a Macronist deputy. “It would mean that we robbed everyone so that we could finally do nothing. It’s really the worst-case scenario.”
• Bonus scenario: the Constitutional Council validates the reform AND the shared initiative referendum
This is the other part of the decision of the Constitutional Council which is eagerly awaited: the Elders will have to say whether the request for shared initiative referendum (RIP) filed by left-wing parliamentarians to challenge the reform is admissible. The initiators want to submit to the vote of the French a bill which provides that the retirement age cannot exceed 62 years.
The members of the Constitutional Council must in particular judge whether the desired consultation relates to the areas of “the organization of public powers, reforms relating to economic, social or environmental policy and to the public services which contribute thereto”.
Can the Elders validate both retirement at 64 and this RIP? On this point, expert opinions differ. The conditions required for the referendum (signatures of parliamentarians, scope of the proposal, etc.) seem to be met and the green light for the RIP is “probable”, considers Lauréline Fontaine to AFP.
Jean-Éric Schoettl, former secretary general of the Constitutional Council, and Jean-Pierre Camby, associate professor at the University of Paris-Saclay, however warn in Le Figaro: the injunction of a starting age which “cannot be fixed beyond 62 years” could “constrain future law” and make the Wise men wince.
Fearing to see its first request for RIP invalidated because of formulations considered clumsy, the Nupes has already filed this Thursday evening a second request.
What can happen next. The rest of the procedure would be long. The request for a referendum would first have to succeed in collecting the signature of a “tenth of the voters”or 4.87 million people within 9 months.
Meanwhile, “the RIP does not freeze the application of the law”, recalls the constitutionalist Paul Cassia, an opinion shared by the vast majority of his colleagues. Very concretely, Emmanuel Macron could therefore well enact the pension reform and have it applied “in the summer” while the collection of signatures is underway.
But politically, the case would be untenable. Could the government really apply its reform by leaving all the left to hunt for signatures, with the risk of remobilizing opponents in the street? “It would be desirable” for Emmanuel Macron to put the reform on hold to “avoid any conflict with the referendum procedure and appease citizen anger”, judge for his constitutionalist side Dominique Rousseau in the columns of the Monde.
