The presidential majority invokes article 40 of the Constitution, intended to preserve public finances, to counter this initiative of the opposition. If the law were applied in the strict sense, the Liot bill would seem inadmissible.
After article 49.3, it is the turn of article 40 of the Constitution to be at the heart of the political debate. The executive invoked it in order to underline the financial inadmissibility of the bill from the centrist group Libertés, Indépendants, Outre-mer et Territoires (Liot). This text aims to repeal the pension reform, by compensating it financially by an increase in the tobacco tax.
“It is quite irresponsible on the part of a parliamentary group to suggest that we can present a bill which eliminates 18 billion in resources”first estimated the Prime Minister, Elisabeth Borne, on May 17, qualifying the text of “lark mirror”. “This proposed repeal is unconstitutional” she concluded.
Jean-René Cazeneuve, Renaissance MP for Gers and general rapporteur for the budget, agrees: “It does not respect article 40 of the Constitution (…) therefore on the merits, this law should not be examined on June 8, in any case its article 1”, he added the next day on franceinfo. But are they saying true or fake?
A decrease in public resources prohibited by the Constitution
Article 40 of the Constitution provides that “proposals and amendments” parliamentarians are inadmissible when they provoke “either a diminution of public resources, or the creation or aggravation of a public charge”. The challenge is to preserve the finances of the State. By repealing the pension reform, the Liot bill contributes to a drop in public resources, as Elisabeth Borne or Jean-René Cazeneuve point out. The macronists estimate this drop between 15 (according to Emmanuel Macron) and 22 billion euros (according to MP Aurore Bergé).
But at the same time, the Constitution authorizes the compensation of this cost by increasing another revenue. He is “admitted that the pledge [la compensation] may consist of creating a new tax or increasing the rate of an existing tax., specifies the National Assembly in a summary sheet. The Constitutional Council requires in particular that this pledge be “credible and real”, that is to say based on sufficient and sustainable revenue.
The “tobacco pledge”, sufficient compensation?
The Liot law proposal provides precisely in its article 2 to compensate for the loss of revenue by an increase in the tobacco tax. However, for Jean-François Kerléo, associate professor of public law at the University of Aix-Marseille, “the ‘credible and real’ criterion of the pledge is not met”. He even considers that there is a disproportion between the possible losses linked to the repeal of the pension reform and the tax revenues brought by tobacco. “The decrease in revenue, by returning to the previous legal age [62 ans], is not sufficiently compensated by the tobacco pledge. Usually, the latter is used to compensate for a reasonable decrease in revenue, for an amendment that does not have a significant impact on the budget. In other words, the compensation proposed by the Liot group is not sufficient and, in these terms, the bill is financially inadmissible.
This “tobacco pledge”, far from being original according to the teacher, had already been deemed insufficient to offset revenue reductions in the Gender Equality Bill (2013) or even in the context of the Finance Bill for 2014. Conversely, it happened that the government removed the “tobacco pledge” when it was in favor of a bill. “If the government had agreed to leave the tobacco pledge for each amendment adopted, the packet of cigarettes would cost 200 euros!”laughs Jean-François Kerléo.
Questioned by franceinfo, Vincent Touzé, economist at the French Observatory of Economic Conditions (OFCE), warns against such a choice of compensation: “The idea of tobacco taxes, originally, is not to bring in revenue. It is to encourage people to smoke less by paying a high price for tobaccohe pleads. From a level of taxation that is too high, revenue from the sale of tobacco [15,2 milliards d’euros, selon le bilan annuel de la douane 2021] could even decrease, anticipates the economist. Not sure, moreover, that these receipts are sufficient for there to be compensation, believes Vincent Touzé, especially since “the financing needs of the pension system will increase from year to year”.
An opinion requested from the LFI Chairman of the Finance Committee
Who can judge the financial admissibility of the bill? Under article 89 of the regulations of the National Assembly, this assessment is entrusted to the office of the Assembly, or to a delegation from the office. This is a first a priori check. When the Liot proposal was submitted on April 25, the office, chaired by Yaël Braun-Pivet (Renaissance) deemed it admissible. By not censoring this text, “it respects the flexible parliamentary tradition which consists in letting the proposals for spendthrift laws pass”, observes Anne-Charlène Bezzina, lecturer in public law at the University of Rouen. Indeed, bills challenged under article 40 are rare.
But, Tuesday, May 23, the majority took up paragraph 4 of Article 89 of the Assembly’s regulations, which allows the government, or any deputy, to question the admissibility of a text of law. This one is “appreciated by the president or the general rapporteur of the finance, general economy and budgetary control committee or a member of his office designated for this purpose”, specify the rules. It was finally to Eric Coquerel, chairman of the finance committee, that MP Fadila Khattabi (Renaissance) spoke, according to LCP.
Eric Coquerel spoke on May 16 on YouTube in favor of the admissibility of the bill. However, Jean-François Kerléo is concerned about a possible lack of objectivity, linked to the function of chairman of the finance committee: “Since 2008 it has been assigned to a representative of the main opposition party (…) He must put aside his opinions on the text of the law, to make an analysis, not political, but legal”, he warns. Asked by franceinfo, the president of the Les Républicains group in the National Assembly, Olivier Marleix, goes even further: “We have a member of the opposition who behaves in a militant way and who is chairman of the finance committee. Objectively, it’s a subject!”
The Constitution, weapon of a relative majority government
If article 40 gives a lot of leeway to the executive, it has always been interpreted in a flexible way, according to Bertrand-Léo Combrade, professor of public law at the University of Poitiers. If strictly applied, “it could be invoked each time by the government to prevent the examination of parliamentary proposals and amendments”, explains the researcher. Which is not the case in practice. So why is the executive brandishing Article 40 today? “Before, he had the political majority and the number of parliamentarians he needed to pass his laws. Now that this majority is relative, he discovers the legal means at his disposal”analyzes the specialist.
Eric Coquerel, he delivered another analysis, Monday on Public Senate: “They are afraid of defeat. If this law [sur la réforme des retraites] is defeated in the Assembly, I do not see how it [s’appliquerait] normally.” If adopted by Parliament, it will be up to the Constitutional Council to rule on the admissibility of the Liot bill. But this scenario seems unlikely: the law would have to be validated by the Assembly, then by the Senate, which is mainly on the right.