The government hopes that this will be the last step in the pension reform. After the approval by Parliament of the retirement at 64 hours on Monday night, after the narrow rejection of a motion of censure, Élisabeth Borne indicated that she would go “directly to the Constitutional Council” for an examination of the text “as 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 norms of the Senate or the Assembly, it is not obliged to refer to the budgetary laws, unless it is seized by the government or the deputies . .
The RN did not wait for Matignon’s transmission to file an appeal this Tuesday morning, followed by Nupes in the afternoon. The sages, the name given to the members of the Constitutional Council, will now look at each article to see if it is in accordance with the Constitution. Several elements could be challenged by the Constitutional Council.
•A draft amending budget law for the pension reform
After much hesitation, the government, which had been reluctant to discuss retirement at 64 in a specific bill, finally opted for what is called a Remedial Funding Social Security (PLFSS) bill.
With one objective: to allow the executive to go very fast. The social security budget, like the State budget, can be examined within a maximum period of 50 days of debate in the Cortes Generales in accordance with the provisions of article 47.1 of the Constitution.
But Elisabeth Borne has a thorn in the side: having resorted to an amending budget in recent weeks, the Government is acting urgently to modify it. The budget changes, which are voted on in November, are generally made before January 1. The goal is to make sure you have a bill as close as possible to France’s budget situation for the new year.
“The reform will have effects mainly 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 not characterized by an imperative of speed”, thus summarizes the constitutionalist Thibaud Mulier in the columns of West of France.
The wise, therefore, will have to ask themselves if the pension reform had a real urgency. Otherwise, the Constitutional Council could censor it in its entirety.
The hypothesis, however, seems unlikely. Only one budgetary text in the entire history of the V 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 expenses before the first vote on income .
• The limitation of debates in the National Assembly
To get the pension reform approved, the government multiplied the recourse to the Constitution: a 49.3 in the National Assembly at first reading, a blocked vote in the Senate with article 44.3, article 44.2 to get out from under -amendments from the senatorial left…
All this within the framework of the internal regulations of the Senate, which also depends on the Constitution. Displeased by the proliferation of amendments from socialists, environmentalists and communists, Bruno Retailleau, president of the LR group, applied, with the agreement of 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 a general censorship of the text, but there is an accumulation effect there,” says Benjamin Morel, public law professor at the Public Senate.
“How will the wise appreciate this particular use of the procedure? Will they send a signal to the government through global censorship or interpretation reservations? Everything is open”, asks this specialist in the Constitution.
In 2012, the Constitutional Council totally censured the Duflot law on social housing. The scholars 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 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, for the first time. 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 senior CDI 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 clauses” and, in this case, censor them, without touching the rest of the provisions of the reform.
In a note from the Council of State obtained by the deputies Jérôme Guedj and Cyrille Isaac-Sibille, the institution pointed out the risk of unconstitutionality of these measures.
“Anything that is outside the financial sphere can be considered a budget clause,” recalled Laurent Fabius, president of the Constitutional Council.
Questioned by AFP at the end of February on this issue, Matignon estimated that the senior index had “its place” in the reform, because “the product of the sanction” of the companies that did not respect the senior index “will feed from 2023 the National Old Age Insurance Fund.
The Constitutional Council should decide very quickly. he is 8 Yobear in case of emergency if requested by the Government. Their decisions are binding on everyone and cannot be appealed.
Source: BFM TV
