“The Constitutional Council’s lesson in applied parliamentary law on pension reform should serve as a model”

2023-04-19 07:00:27

“Criticism is easy and art is difficult. » The famous formula, popularized by Boileau, immediately comes to mind when reading the many comments aroused by the decisions of the Constitutional Council of April 14, relating to the law on pension reform and the shared initiative referendum. Limiting ourselves, for the moment, to the decision concerning the retirement age (increased from 62 to 64 years), a careful examination reveals a real continuity with respect to previous decisions.

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Beyond the censorship of six social riders (provisions which have no place in a Social Security financing law), the criticisms mainly relate to the Council’s acceptance of the procedure used by the government and Parliament – ​​in this case, recourse to Article 47-1 of the Constitution and the juxtaposition of various techniques intended to facilitate a rapid vote on the law. The enumeration of the weapons of rationalized parliamentarism is indeed surprising. But is that enough to conclude that the procedure was contrary to the Constitution, and to consider that the parliamentary debates did not respect the “requirements of clarity and sincerity” from the case law of the Constitutional Council?

The decision of April 14 takes care to examine, one by one, the criticisms of the applicants (in particular those of the socialist senators) and to refute them in a precise manner. This is how it confirms that the government had the choice of having recourse either to an ordinary law, or to the specific article concerning the laws for the financing of Social Security (article 47-1), to serve as legislative support for pension reform. Insofar as the reform produces financial effects from autumn 2023, the rectification of the initial forecasts included in the Social Security financing law of December 23, 2022 is perfectly logical.

A framed time frame

Implicitly, the Constitutional Council gives full scope to Article 20 of the Constitution (“The government determines and conducts the policy of the nation”): when the government has the choice between two solutions, both of which comply with the Constitution, it is not up to the constitutional court to substitute its assessment for that decided by the executive. The answer would be different if the chosen solution were “manifestly unconstitutional”a formula very often used in traditional case law.

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