This flagship measure of the government could be challenged by the Constitutional Council, believe politicians and legal specialists. According to them, the measure does not respect the conditions required to be integrated into a financial text, such as that of the pension reform.
A measure “off topic” from a constitutional point of view? Among the provisions included in the pension reform, senior index, an index aimed at encouraging companies to keep employees at the end of their careers in their workforce, is denounced by the opponents of the government’s project. Among them: MP Aurélien Pradié, vice-president of the Les Républicains party. “I have serious doubts about the constitutionality of the procedure”he said on February 7 on Public Senate. The chosen one from Lot saw it “a danger (…) that the index of seniors will be censored a posteriori by the Constitutional Council, which would empty the law which we are going to debate of essential elements”.
Does the senior index really risk being struck unconstitutional for a purely formal reason, relating to the procedure chosen by the executive to pass its reform?
What is called a “legislative rider”
“There is a real risk of censorship of the senior index by the Constitutional Council”, immediately admits Didier Maus, State Councilor and expert in constitutional law. To push through its pension reform, the government has chosen to resort to an amending Social Security financing bill. However, the PLFSSR is a procedure “very constraining”, explains the constitutionalist Jean-Philippe Derosier, professor of public law at the University of Lille. To be valid, the measures of such a bill must have “a direct impact on the income and expenditure of the Social Security pension system”details recalls Didier Maus. “This for the current year.”
The senior index, which consists of setting up an assessment of the position of workers at the end of their career by companies, does not appear to fall within this framework. And for good reason: the measure, above all intended to fight against discrimination on the grounds of age, “not‘will probably not influence the financing of Social Security for 2023″, remarks Didier Maus. In other words, the senior index has no link with the financing law that includes it.
In constitutional language, this is called a “legislative rider” – or one “social rider” because it is a provision appearing in a PLFSSR – when the measure of a law has no connection with the rest of the text of this law, defines Jean-Philippe Derosier. “As such, the senior index could be censured by the Constitutional Council”warns the law professor.
A deliberate government strategy?
In this case, does the majority run the risk of seeing its text challenged if it does not comply with the fundamental law of the Fifth Republic? “The government can give it a shot”nevertheless believes Didier Maus. “During the parliamentary debate, a more concrete link of the senior index with the financing of Social Security can be found. This may change the Council’s position.” The executive can, for example, declare that the index, “by encouraging the employment of seniors, will reduce the imbalance of the pension system”says the legal expert. “But that would be a bit of a roundabout way.”
If the government persists in registering the senior index in a PLFSSR, the constitutionalist sees a strategic reason there.
“The interest of a PLFSSR is to go faster.”
Didier Maus, specialist in constitutional lawat franceinfo
Article 47.1 of the Constitution, which defines the procedures for the adoption of a Social Security financing bill, limits the debates to a maximum of 50 days in Parliament, including 20 in the Assembly. At the end of this period, article 47.1 stipulates that “the provisions of the project can be implemented by ordinance”. Another advantage, the establishment of a PLFSSR offers the possibility of unlimited recourse to article 49.3, which allows the government to have a text adopted without a vote, as the Constitution authorizes for budgetary texts.
According to Jean-Philippe Derosier, the executive could very well have included the measure in an ordinary law. However, as the Vie-publique.fr site puts it, for non-budgetary laws, recourse to article 49.3 is limited to one use per parliamentary session. “The government probably reserves 49.3 for another ordinary law”, advances the constitutionalist. Invited to France 2 on February 2, Elisabeth Borne has however ruled out – for the moment – recourse to article 49.3. “I do not consider this hypothesis”assured the Prime Minister, explaining that she “was looking for compromises on this text as on all those that[elle] present in Parliament”. Even before being able to present them to the Constitutional Council, the government will therefore have to convince part of the opposition to vote for the senior index and the other measures of its reform.