The French Constitutional Council is scheduled to deliver its verdict on Friday, April 14, on whether the controversial pension reform, which mainly seeks to raise the retirement age from 62 to 64, stands, should be modified or repealed. The bill was endorsed last March by the Government through article 49.3 of the Magna Carta, which prevented it from being put to a vote in the National Assembly, raising social nonconformity and protests.
Not once in recent history has a ruling by the French Constitutional Council aroused so much emotion.
One of the nation’s three highest legal authorities is tasked with ensuring that legislation does not contravene the Fifth Republic Constitution introduced by Charles de Gaulle in 1958. The Council is not a politicized body like the US Supreme Court. and has been inclined to focus on the more technical issues of constitutional interpretation.
But there is huge public discontent with the reform proposed by President Emmanuel Macron, which would increase the retirement age from 62 to 64.
The protest movement shows no signs of backing down, with the twelfth day of protests this Thursday, April 13, almost a month after the president aroused more outrage for short-circuiting Parliament by approving the bill using article 49.3 of the Magna Carta, often branded by some as a “nuclear option”.
In this tense context, there are high expectations regarding the verdict of the highest constitutional authority.
The nine members of the Council, led by former Prime Minister Laurent Fabius, will make two key decisions that will affect the future of the legislation: the first on its constitutionality and the second on whether or not to authorize a referendum on the reform.
In ruling on whether it conforms to the Constitution, the body could accept the bill in its entirety, modify aspects of it, or reject it entirely.
A council member cautioned that the entity is not expected to offer a simple solution to France’s political crisis. “The Council’s decision will probably be more complex than some suggest,” he stressed.
Although it is a legal and not a political body, it does take into account the political and social context. And with France in the midst of a fierce popular movement against the reforms with near-weekly strikes and protests, it is “unlikely that the council will simply pass every piece of legislation intact,” said Bruno Cautrès, a political scientist at the center for political research. from the Sciences-Po University in Paris.
However, it also seems unlikely that the Constitutional Council will reject the legislation outright. Since the Council’s creation in 1958, along with the rest of the institutions of the Fifth Republic, its members have repealed only 17 laws, and these were invalidated for minor issues.
“To totally reject the law would be the equivalent of telling the government that it has been acting outside the law throughout the entire legislative process,” Cautrès said.
“Legislative Circuits”
The French Constitutional Court has long held a low opinion of “additional legislative clauses” (provisions added to bills with a tenuous or no real link to the basic legislation) as unconstitutional.
Although the pension reform is technically a budgetary measure – an update of the annual social security financing project – the Macron government chose this way of presenting the bill, because budgetary measures are not subject to a rule Constitution that limits the use of Article 49.3 to the Executive.
Therefore, at least in theory, any parts of the bill that are not “budgetary” could be overridden as legislative clauses.
For example, the reform initiative includes the creation of a “senior index,” which requires companies with more than 300 employees to report how many people age 55 and older they employ, a way to encourage the employment of older workers. However, the Constitutional Council may not consider the establishment of this index as a financial measure and may rule it out as an additional clause.
But because companies that do not publish this data can be fined by the government, and those penalties can be paid out of the national social security budget, it could also be argued that there is an indirect budgetary link.
A referendum on pension reform?
The Council will also rule on the possibility of holding a popular consultation that could stop the pension reform in its tracks.
A 2008 constitutional amendment, never before used, allows for a “citizens’ initiative referendum” (référendum d’initiative partagée) to be held if a motion wins the support of one-fifth of parliamentarians and the backing of one-tenth of parliamentarians. voters. The leftist alliance NUPES is trying to hold a national vote to pass a law limiting the retirement age to 62.
That would be a difficult task, even if the Council rules that a referendum can go ahead.
“It is quite possible that the Council will allow a referendum, but that would not necessarily prevent Macron from implementing his law,” Cautrès remarked.
“As for the collection of almost 5 million signatures in the nine months prior to the implementation of the law, it is not entirely certain,” he added.
The council will also have to consider a handful of appeals against the bill, including from NUPES and Marine Le Pen’s far-right Rally National party.
But one thing is certain, stressed Cautrès. “The Constitutional Council has an exclusively legal role and is not going to do politics.”
The president of the Constitutional Council must eventually commission one of the other members of the body to write an analysis of the bill. Anyone elected can draw on experience in the Council’s legal department and can meet with the politicians behind the appeals that have been filed. Once the report is complete, its author presents it to the rest of the Council.
Subsequently, the members of the highest constitutional authority take the floor to share their positions on the conclusions of the report. A simple majority vote among the nine members decides the matter. The President of the Council votes last, casting the deciding vote if necessary.
“If parts of the bill are struck down, but the retirement age increase to 64 is maintained, it will in no way be a response to the uproar over pension reform,” said Laurent Berger, director of the French Democratic Confederation of Labor (CFDT), the largest and most moderate trade organization in France.
Left-wing politicians have already said they will continue to demand an end to Macron’s pension reform, even if the Constitutional Council accepts it.
Therefore, the Council is under pressure as it debates its decision.
“People expect too much from the Constitutional Council,” Thibaud Mulier, a professor of public law at the University of Paris Nanterre, told FranceInfo this week.
And neither option is likely to settle the debate. “Either the government is weakened if the entire legislative text is rejected or there will be a continuation of the social crisis, if the plan to raise the retirement age is accepted,” Mulier said.
Regardless of what the body decides, France is likely to experience more reform turmoil in the coming weeks.
This article was adapted from its English version
