Posted Apr 13, 2023, 5:46 PMUpdated on Apr 13, 2023 at 8:54 PM
The government and the unions have been waiting for this day since the end of March. The Constitutional Council must decide this Friday on the conformity of the pension reform with the Constitution. A sign of the ambient political and social tension, the Council, installed at the Palais-Royal in Paris, was targeted on Thursday and protection was put in place. Potentially politically explosive, the expected decision will nonetheless be legal.
Back to the points of law that the Elders are called upon to decide, after the appeals filed by the deputies of the Nupes and the RN, as well as the senators on the left.
1. Was there abuse of process?
Anxious to be able to draw the weapon of 49.3, the executive has entered the postponement of the legal retirement age from 62 to 64 years in an amending Social Security budget. For the opposition, this way of proceeding constitutes a diversion of procedure because an amending budget is supposed to determine the financial balances and therefore weigh on the current financial year.
However, the pension reform should have a very small impact on public finances in 2023, say critics of the reform. They also argue that the government has not updated its macroeconomic scenario and its revenue and expenditure forecasts for 2023.
The deputies of the Nupes add that the amending laws must remain the exception. “This type of legislative vehicle was not intended to accommodate such a reform”, write the senators in their referral.
2. Were the proceedings unduly constrained?
For critics on the left and right of the postponement of the legal age, the government should not have constrained as it did the duration of parliamentary debates by resorting to article 47.1 of the Constitution. According to them, this procedure limiting the debates to 50 days is only allowed by the Constitution when there is an emergency and the continuity of national life is at stake.
Without valid reason, the government would therefore have made “excessive use of the provisions making it possible to limit the right of amendment”, to the detriment of the “requirements of clarity and sincerity of the parliamentary debate”, defends the Nupes.
The deputies of the RN take up the same argument and argue that the validation of this government strategy would open the way to its repetition. And would ultimately lead to a “marginalization of Parliament and parliamentary debates”.
3. Did the government lack sincerity?
The government transmitted “insincere” information to parliamentarians, according to RN and Nupes. This argues that the documents used to assess the reform contained gaps, not detailing, for example, the savings made by postponing the legal age according to income deciles and the impact of the reform on other social expenditure. , including unemployment insurance.
The executive would not have been precise enough either on the fate reserved for women, many of whom will lose a large part of the quarters granted for maternity, or does not assess the impact of the closure of special schemes on the attractiveness of these schemes.
Like the Nupes, the RN defends that the government has given misleading information on the revaluation of small pensions, the subject of many controversies.
4. Are there “social riders”?
It is a classic of the decisions made by the Constitutional Council on the Social Security budget projects. They very often contain “social riders”, that is to say provisions which have no financial impact on the accounts and should therefore not appear in a budget text.
At the forefront of these riders could be the index on the employment of seniors, that is to say the indicator that companies will have to publish to show that they are not neglecting older employees. Moreover, the government would not be surprised if this provision were rejected, even if it tried to secure it legally by providing for the imposition of sanctions and therefore an impact on the accounts.
In the same vein, the executive expects the Constitutional Council to challenge the cancellation of the transfer of the collection of supplementary pensions to Urssaf. A technical measure, but supported by the social partners. The senior CDI wanted by right-wing senators could also be considered a “social horseman”.
Critics of the reform believe they have detected other riders, namely the two prevention funds supposed to finance measures reducing hardship, the creation of medical visits for employees exposed to risk factors and the validation of certain periods in active categories . The abolition of special regimes is also mentioned by union sources.