The Elders will vote on the highly contested bill on Friday after reviewing the text and deliberating. Three options are possible: validation of the reform, partial censorship or total censorship.
It is at 2, rue de Montpensier, in Paris, that part of the future of pension reform will be played out. The Constitutional Council must render, Friday, April 14, a particularly awaited decision on this very controversial text. No less than four appeals were addressed to the Elders, the nine members who make up the Council: one comes from the Nupes, another from the left-wing senators, a third from the National Rally and a last from the Prime Minister, Elisabeth Borne.
An institution relatively little known to the general public, the Constitutional Council has notably “the responsibility for verifying the conformity of the law with the Constitution”. It can be seized on the constitutionality of a law before its promulgation (control a priori), as is the case for the pension reform, or after (control a posteriori), via a priority question of constitutionality (QPC) previously filed before a judicial or administrative court which must rule on its admissibility.
Once it is seized, the Constitutional Council has one month to render its decision. This period can be shortened to eight days if the institution is seized urgently, which was not the case for the pension reform. The time he has to decide extends to three months for a QPC. Franceinfo summarizes the different stages of the work of the Elders after a referral.
1 Text review
“The investigation of cases is entrusted to a member of the Council appointed as rapporteur by the president, except in matters of electoral disputes [que peut aussi aborder le Conseil]“, explains the institution’s website. In the case of the pension reform, it was the President of the Constitutional Council, Laurent Fabius, who appointed a rapporteur, responsible for examining the text and the arguments put forward in the referrals, in order to draw up a report based on these elements.
In their respective referrals, the parliamentarians who appeal to the Council on pension reform have pointed out several elements which, according to them, could give rise to constitutional censorship. The Council may also be sent a “white referral”, as Elisabeth Borne has chosen to do, for a general examination of the text without specific reasons.
“The rapporteur will work with the Council’s legal service, possibly hearing the signatories of the appeal, then drafting his report”, details to franceinfo a former Sage. On April 4, the Council thus heard deputies from the left and from the small independent group Liot, who pleaded for total censorship of the reform. “In general, a meeting legally takes place between the rapporteur, the secretary general of the Council and the secretary general of the government”, adds Lauréline Fontaine, professor of constitutional law at the Sorbonne-Nouvelle Paris 3 University.
2 Deliberation
Once the rapporteur has written his report, he presents his conclusions to his colleagues. Then the Elders deliberate in order to decide. Their decisions “are taken collectively”, explains a former Council member. “The president gives the floor to each member. Each, after having heard the rapporteur, will decide according to his report, say whether he agrees or not”, he delivers, emphasizing the character “legal” of the argument.
“There may be political ulterior motives [lors des délibérations]but you have to make legal arguments.”
A former member of the Constitutional Councilat franceinfo
“Once everyone has spoken, there is a vote, then each member takes the floor again to explain, legally still, their choice”, continues the ancient Sage, stating that “the president votes last”. For what ? “In the event of a tie, the voice of the president is preponderant”, specifies the website of the Constitutional Council. The number of members being odd, the president of the institution has the possibility of tipping the scales in one direction or the other in the event of a tie.
3 The rendering of the decision
In the context of the pension reform, the Elders have three options: to validate the text in its entirety by declaring it entirely in conformity with the Constitution, to invalidate it partially, by censoring only a few provisions, or to invalidate it completely, which would amount to consider that the entire text is unconstitutional.
If the final decision is made public, this is not the case for the deliberations or the votes. Impossible, therefore, to know the content of the debates, to know if the decision was adopted unanimously or by what majority. “Members also cannot post [dans les médias] concurring or dissenting opinions” with the decision, adds constitutional law professor Lauréline Fontaine. The deliberations are however “recorded by a clerk”, says a former board member. These documents are then kept as a public archive. They can be consulted twenty-five years after their creation.
4 The consequences of the decision
If the Elders opt for validation of the bill, the pension reform may be promulgated by the Head of State. On the other hand, things get complicated in the event of partial censorship. “There are two possibilities: either the President of the Republic requests a second deliberation, in which case there may be a new vote on the text, with new provisions introduced by the government. Either the text is promulgated as is , minus the measures censured by the Council”, explains Benjamin Morel, lecturer in public law.
In the event of total censorship of a text, the law cannot be promulgated and does not enter into force. “You have no choice but to abandon your law. In the case of pension reform, if the Council feels that this is the wrong legislative vehicle for the reform – in this case a amending social security finance bill – it must be resubmitted in the form of a classic bill”, continues Benjamin Morel. For the government, this would be tantamount to going back to square one, and going through the parliamentary process in the National Assembly and the Senate.