Pensions: will the Constitutional Council challenge the “budget riders”?

After the political battle, the social battle continues. It is now also legal. The deputies of Nupes on the one hand, those of the RN on the other, filed Tuesday, March 21, with the Constitutional Council, appeals against the pension reform adopted the day before by Parliament. Left-wing senators must file their own appeal. Prime Minister Elisabeth Borne also seized the Elders on March 21.

The deputies of the Nupes consider in particular that the reform did not “come within the scope of an amending financing law” of social security. The government has indeed chosen as a legislative vehicle to pass its pension reform a bill for the amending financing of the social security budget (PLFRSS).

Several voices, including that of the President of the Constitutional Council Laurent Fabius in the chained Duck, warned of the risk of a “budget rider” which threatens all provisions outside the financial field. In a note written several weeks ago, the Council of State had also alerted the government to the risk of unconstitutionality of certain measures of its reform project, as had been revealed Point et The world on February 21.

“The senior index” threatened

Among these measures are the “senior index”, ie the obligation to declare employees over 55 in a company, a provision which appears in article 2 of the bill. It will be compulsory from this year for companies with more than 1,000 employees, a threshold lowered to 300 employees in 2024. Failure to publish it will be punishable by penalties of up to 1% of turnover.

The list of indicators and their calculation method will be fixed by decree, after consultation with the social partners. If, after three years, a deterioration in the indicators is observed, the employer will have to enter into negotiations. Failing agreement, he will have to draw up an action plan.

The “CDI senior” is also part of these measures. This new type of CDI will be created on an experimental basis to facilitate the hiring of long-term job seekers over the age of 60, exempt from family contributions. But this experiment, valid for three years, will only start if there is an agreement between the social partners at the interprofessional level by September 1, 2023. Otherwise, the creation of this contract is referred to a branch agreement.

“The Constitutional Council is particularly rigorous”

Due to its late arrival in the discussion, this provision could not be examined by the Council of State. Its constitutionality is therefore not guaranteed. “The senior index” and the “senior CDI” are measures which “could in particular be challenged”, estimates constitutionalist Anne-Charlène Bezzina to AFP.

A partial censorship of the text is therefore “probable”, according to the lecturer at the University of Rouen. “Let’s not forget that, since its creation in 1958, the Constitutional Council has been particularly rigorous: it inevitably censures provisions that go beyond the areas provided for by the texts”, recalls the constitutionalist.

“There are undoubtedly some articles that have nothing to do in a PLFSSR”, abounds with L’Express Didier Maus, president emeritus of the French association of constitutional law. An opinion shared by Dominique Rousseau, professor of public law at the University of Paris I Panthéon-Sorbonne, also joined by L’Express on Sunday March 19.

The Sages have one month to decide, that is until April 21. “But for this type of particularly sensitive bill, where it is obvious that the Constitutional Council will be consulted, it is very likely that it has already been working on their decision for a long time. The latter could therefore fall quickly, within three weeks”, specifies the constitutionalist Anne-Charlène Bezzina.


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