Lhe referral to the Constitutional Council in the context of the amending Social Security financing law for 2023 is enjoying unusual publicity and has raised great hopes among opponents of the pension reform. This expectation is explained by the considerable power of the constitutional judge: if he declared the law unconstitutional, this would prohibit the President of the Republic from promulgating it and would therefore defeat the reform. However, the Constitutional Council is not a third legislative assembly intended to examine the appropriateness of the legislative text. He is more modestly a judge strictly responsible for determining whether the law before him is or is not in conformity with the Constitution.
This constitutional court also has a strong attachment to its own case law, from which it only deviates in exceptional circumstances, which makes its decisions relatively predictable. However, the case law of the Council does not bode well for a total censorship of the amending financing law, any more than of the heart of the pension reform.
The opposition parliamentarians who seized the Constitutional Council argue in particular that the law was adopted according to a procedure contrary to the Constitution. First, the government would have committed a misuse of procedure by choosing an amending Social Security financing law instead of a traditional ordinary law. Then, to the use of this unique procedure was added the mobilization of other constitutional mechanisms such as the examination of the text by the assemblies within constrained deadlines, the blocked vote or the adoption without a vote by the commitment of the government responsibility. This accumulation would have undermined the requirement for clarity and sincerity in parliamentary debate.
Identify government intent
It should however be remembered that the Constitutional Council is very reluctant to declare a law as a whole unconstitutional. Since 1959, only seventeen laws have been entirely censured, out of more than 744 controlled, and among these eight have been for violation of a rule of procedure. Examination of these eight precedents reveals a clear trend: the constitutional judge only censures a law for the violation of the legislative procedure on the double condition that the procedural rule in question is precise and explicit and that the irregularity is clearly established. And, even when these conditions are met, he can always refuse, in pure opportunity, to censure the law (76-66 DC ; 2020-799 DC).
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