Anger rumbles in the street this Tuesday but also in the National Assembly as the government tries to pass its pension reform. The project arrived before the lower house of Parliament on Monday and the Minister of Labor, Olivier Dussopt, struggled to deliver his speech at the dawn of a legislative debate under high tension. In the opposition, some evoke a “democratic subject”, like the deputy Insoumis Alexis Corbière. Because the question of the constitutionality of this reform is delicate and questions even the experts of our fundamental law.
The executive has chosen to use the social security budget amending law (PLFSSR) to push through the reform. With this decision, the government is reducing parliamentary debate. Indeed, article 47-1 of the Constitution forces Parliament to make a decision within fifty days: first twenty days in the National Assembly, then fifteen in the Senate and finally fifteen for a joint committee to reach to an agreement. If the elected officials have not decided within the allotted time, the government can pass the reform by ordinances.
Variable geometry emergency
“Article 47-1 can only be used for the finance and Social Security financing laws of the year. It provides for a limited period of time so that these laws are adopted before December 31, ”explains Dominique Rousseau, professor of French constitutional law at Paris-1 Panthéon-Sorbonne. The former member of the Superior Council of the Judiciary considers that it is a question of “a diversion of procedure” because the “amending finance laws have no urgency to be adopted”. The validity of the very restricted timetable imposed by the government could therefore be questioned.
It is “the first time that the government has used it” as part of a pension reform but “article 47-1 has existed since 1996 and is applied every year without problem, it is usual”, sweeps Michel Lascombe, associate professor in public law and specialist in constitutional law. But can article 47-1 be applied to amending bills? For Michel Lascombe, case law makes law. So far, the application of 47-1 in the context of amending bills has indeed been accepted by the Constitutional Council, the modification of the budget for the current year being often considered urgent.
An “attack on the sincerity of parliamentary debate”
“But whether the pension reform is adopted in February, March or June would not change anything. There is no urgency”, answers Dominique Rousseau. Pushing back the retirement age at the beginning or end of the year would in fact have little impact on the state budget in the short term. So far, “the various laws that reformed retirement, in 2010, 2013 or even in 2019, were ordinary laws”, recalls the constitutional law specialist who believes that the question of “undermining the sincerity of the debate parliamentary” could arise before the Constitutional Council. “We risk having a pension reform which has not been voted on by the National Assembly or the Senate and which will pass thanks to 49-3”, he explains.
Consequently, “the entire reform could be censured by the Constitutional Council on the grounds that the method by which it was adopted is not in conformity”, warns Dominique Rousseau. He considers that there is a “real risk of unconstitutionality”. It has never happened so far that a financing law is rejected as a whole by the Elders, recalls Michel Lascombe who thinks that only certain provisions will probably be challenged by the authority.
The budget riders and their king
“The purpose of the amending finance law is to straighten out the budget and certain provisions of the bill will probably be considered unconstitutional because they do not change anything in the financial balance”, deciphers Michel Lascombe. This is particularly the case with the creation of a “senior index” in order to encourage the work of those over 55, but also with criteria of arduousness. “Anything that is outside the financial field can be considered as a budgetary rider, and in this case, a second text would be needed”, warned the President of the Constitutional Council Laurent Fabius, on January 18 in the chained duck. To decide, the Elders must be seized by sixty deputies or sixty senators who will have to argue on the points which they consider unconstitutional. A formality for the National Assembly where La France Insoumise has 74 seats and the National Rally 88.
“Practically all finance laws are submitted to the Constitutional Council […] and every year, many laws are declared contrary to the Constitution”, notes Michel Lascombe. For the moment, the pension reform dear to Emmanuel Macron is therefore facing a wave of uncertainty. “The uncertainty of Parliament, the uncertainty of the street and the constitutional uncertainty. Even if the pressure from the street does not lead to the withdrawal of the text, even if the opposition does not manage to prevent the adoption of the text, there is the stage of the Constitutional Council which could consider that the law in whole or in part is contrary to the Constitution”, emphasizes Dominique Rousseau. And in matters of constitutionality, the Council is king. So it will be up to the Sages of the Palais-Royal to decide.