Censor… Censor not? The day after a twelfth day of mobilization, the Constitutional Council must decide the fate of the pension reform. For fifteen days, the nine Sages have been looking into and discussing this thorny issue, fueled in particular by the hearings of elected opposition officials. This Friday, they meet in plenary to discuss the compliance of the bill with the Constitution.
A very scrutinized decision which, obviously, “will not satisfy anyone”, analyzes associate professor of law Jean-Pierre Camby. “The Constitutional Council has never been confronted with such battles,” he underlines, as opponents demonstrated on Thursday in front of the institution on rue de Montpensier. The verdict is expected at the end of the day.
Among the scenarios considered, that of a partial censorship of the bill seems the most “probable”, according to the constitutionalists. “If we are to believe the judge’s case law, he has always chosen the middle way,” said Anne-Charlène Bezzina, lecturer in public law. The Constitutional Council could thus choose to preserve the hard core of the reform – the postponement of the legal retirement age to 64 -, but to invalidate additional measures. This could be the case of the senior index, which must force large companies to declare employees over 55 years old. The provision – which has no financial aspect – could constitute a “legislative rider”, that is to say a measure having no connection with the rest of the text of the law. The experimentation of a new CDI at the end of the career could also fall by the wayside for the same reason. In this case, these articles would therefore not appear in the text, which must come into force from September 1, 2023.
The hypothesis of total censorship, on the other hand, seems “very improbable”, according to Jean-Pierre Camby. For the opposition, the choice to include the reform project in an amending social security financing law (PLFRSS) would however have diverted the spirit of the Constitution. A “partially inaccurate” argument for Anne-Charlène Bezzina: “There are at least certain aspects of this law which will change the financial balance of this year.” Another grievance on which the high court will have to look: the lack of “clarity and sincerity of the debates”. For the authors of the referrals, the accumulation of constitutional tools – blocked vote, accelerated procedure, article 49.3 – has tainted this constitutional requirement. “The Elders have never censored the slightest article of any law on this question”, evacuates Anne-Charlène Bezzina. There remains the dream option for the executive of a total validation of the reform.
But the Constitutional Council could also give the green light to the request for a shared initiative referendum (RIP). The opposition calls for a national consultation to record “the impossibility of postponing the legal age beyond 62 years”. Problem, formulated as such, the bill is “an injunction made to the legislator, which is contrary to our constitutional tradition”, points out Anne-Charlène Bezzina. With only one precedent (the RIP on Paris airports), the judges’ interpretation nevertheless remains “open”, according to Jean-Pierre Camby. Even in the case of white smoke, the road is still long.
Opponents will have to collect 4.8 million signatures within nine months, or one tenth of the electorate. If Parliament does not examine the text within the following six months, it would be up to the Head of State to call a referendum. The procedure would then not be completed until the summer of 2024.