Three possible scenarios as French court prepares to rule on constitutionality of pension reform
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Three possible scenarios as French court prepares to rule on constitutionality of pension reform
(AFP) – France’s highest constitutional authority, the Constitutional Council, will rule Friday on whether President Emmanuel Macron’s contentious pension reform proposal should be accepted, modified or rejected based on the guidelines of the French constitution. FRANCE 24 explains the three possible outcomes.
Not once in living memory has a ruling by France’s Constitutional Council aroused so much excitement. One of France’s three highest legal authorities, the Council is tasked with ensuring that legislation does not contravene the Fifth Republic’s constitution presented by Charles de Gaulle in 1958. The Council is not a politicised body like the US Supreme Court, and has tended to focus on the more technical questions of constitutional interpretation.
But there is enormous public discontent with Macron’s proposed reform, which would notably raise the retirement age from 62 to 64. The protest movement shows no sign of backing down, with a 12th day of protests set for Thursday, nearly a month after the president sparked fresh outrage by short-circuiting parliament to pass the bill using the constitution’s (in)famous Article 49.3, often thought of as the “nuclear option”.
Against this tense backdrop, the Council’s verdict is eagerly awaited.
The Council’s nine members, led by former PM Laurent Fabius, will render two key decisions that will affect the future of the legislation: the first on its constitutionality and the second on whether to authorise a public referendum on the reform.
In ruling on whether it conforms to the constitution, the Council will either accept the bill in its entirety, alter aspects of it or reject it wholesale.
One member of the Council cautioned against expecting it to offer a simple resolution to France’s political crisis, telling journalists: “The Council’s decision is probably going to be more complex than some are suggesting.”
While the Council is a legal body and not a political one, it does take political and social context into account. And given that France is in the midst of a fierce popular movement against the reforms with near-weekly strikes and protests, it is “unlikely that the Council will just wave every bit of the legislation through intact”, said Bruno Cautrès, a political scientist at Sciences-Po University’s centre for political research in Paris.
But it seems equally unlikely that the Constitutional Council will reject the legislation entirely. Since the Council’s creation in 1958, along with the rest of the Fifth Republic’s institutions, its members have struck down only 17 laws – and these were invalidated over minor issues.
“Totally rejecting the law would amount to telling the government that it has been acting outside the law all throughout the legislative process,” Cautrès noted.
‘Legislative riders’
France’s Constitutional Court has long taken a dim view of “legislative riders” – provisions added to bills with a tenuous link or no real link at all to the core legislation – deeming them unconstitutional.
While the pension reform legislation is technically a budgetary measure – an update to France’s yearly social security financing bill – Macron’s government chose this way of introducing the bill because budgetary measures are not subject to a constitutional rule limiting the executive to using Article 49.3 no more than once in a parliamentary session.
Thus, at least in theory, any parts of the bill that are not “budgetary” could be struck down as legislative riders.
For example, the pension reform bill includes the creation of a "senior index", requiring companies with more than 300 on staff to report how many people over 55 they employ – a way of encouraging the employment of older workers, seen as part of making a higher retirement age work. The Constitutional Council might not view the establishment of this index as a financial measure and could dismiss it as a rider.
But since companies that do not publish these indices can be fined by the government – and those fines can be paid into the national social security budget – the argument that an indirect budgetary link exists could also be made.
A reform referendum?
The Council will also rule on the possibility of holding a public referendum that could stop the pension reform in its tracks.
A never-before-used constitutional amendment from 2008 allows for a "Citizens’ Initiative Referendum" (référendum d'initiative partagée) to be held if a motion wins the support of one-fifth of MPs and the backing of one-tenth of voters. The left-wing NUPES alliance is trying to hold a national vote on passing a law capping the retirement age at 62.
That would be a tall order – even if the Council rules that a referendum can go ahead.
“It’s quite possible that the Council will allow for a referendum, but that wouldn’t necessarily stop Macron from putting his law in place,” Cautrès said.
“As for collecting nearly 5 million signatures in the nine months before the law is implemented – well, that’s not at all certain,” he added.
The Council will also have to consider a handful of appeals against the bill – including from NUPES and from Marine Le Pen’s far-right National Rally party (Rassemblement National).
But one thing is certain, Cautrès said. “The Constitutional Council has an exclusively legal role and is not going to play politics.”
Constitutional Council president Fabius must eventually task one of the Council’s other members to write up an analysis of the bill.
Whoever is chosen can draw upon the expertise of the Council’s legal department and may meet with the politicians behind the appeals that have been lodged. Once the report is complete, its author presents it to the rest of the Council.
Council members then take to the floor to share their positions on the report’s conclusions. A simple majority vote of the nine members decides the matter; the Council’s president votes last, casting the deciding vote if need be.
“If some parts of the bill are struck down but raising the retirement age to 64 remains, that will in no way be a response to the uproar over pension reform,” said Laurent Berger, head of the CFDT, France’s largest and most moderate trade union.
Left-wing politicians have already said they will carry on demanding an end to Macron’s pension reform, even if the Constitutional Council accepts it.
The Council is thus under pressure even while it debates its decision.
“People are expecting too much from the Constitutional Council,” Thibaud Mulier, a lecturer in public law at Paris Nanterre University, told FranceInfo this week.
And none of the options are likely to resolve the debate. “Either the government will be weakened, if the whole legislative text is rejected, or there will be a continuation of the social crisis if the plan to raise the retirement age is accepted,” Mulier said.
Regardless of what the Constitutional Council decides, France is likely to see more upheaval over the reforms in the weeks to come.
