Does the pension reform contain provisions contrary to the Constitution? The question arose well before the examination of the text in the National Assembly, which took place, in session, from February 6 to 17. Until now, doubts were voiced by prominent politicians and academics. According to our information, the Council of State also questioned itself and even suggested the withdrawal of certain measures. The government did not follow him – which it is perfectly entitled to do.
The problem stems from the fact that the reform is being implemented through an amending social security financing bill (PLFRSS) for 2023. This type of “vehicle” obeys strict rules. It must, in particular, have an impact on the income and expenditure of the basic “Secu” schemes for the current financial year – that is to say 2023. Otherwise, the articles which do not meet this condition may to be seen as “horsemen” and to be censored by the Constitutional Council.
Like any other legislative text, the PLFRSS was sent to the Council of State, in order to ensure its legal solidity. The referral took place on the evening of January 10. The institution, which sits at the Palais-Royal, did not issue an opinion, contrary to what it does for an ordinary bill. On the other hand, she produced a « note »just before the presentation of the reform to the Council of Ministers on 23 January.
In this document of several pages, which has remained confidential until now, the Council of State has formulated several warnings, one of which concerns a key measure: the index on the employment of seniors. This device aims to objectify the place of older employees in companies of at least 50 people through indicators that the bosses will be required to communicate. Those who fail to disclose the requested information will be subject to a financial penalty. The sanction applies in several stages depending on the size of the companies – for example from 1is November 2023 for those with at least 1,000 employees.
Matignon assumes
The Council of State considered that this measure has too indirect an effect on the accounts of the “Sécu” to be integrated into a PLFRSS. In other words, its financial dimension is not characterized enough for it to be included in a text of a budgetary nature; it is more of an employment-related mechanism and therefore falls under ordinary law. This is why the Council of State judged that it could be preferable to subtract from the text “the index seniors”. Not subscribing to this analysis, the executive maintained the incriminated device.
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