Pensions: does a referral to the Constitutional Council by the oppositions have a chance of success?

Romain Rouillard 17:00 pm, March 19, 2023

For the oppositions, it is now time for the careful examination of the possible remedies to invalidate the pension reform, adopted without a vote last Thursday after the use of 49.3 by the government. A way of proceeding that has triggered the ire of opponents of the executive who seek to counter-attack. The Liot group (Libertés Indépendants Outre-mer et Territoires) was the first to draw a transpartisan motion of censure before being imitated a few hours later by the National Rally. And is also considering another procedure which would consist in directly seizing the Constitutional Council. An appeal that Mathilde Panot, leader of the LFI deputies, has also promised to request early next week.

The warning of the Council of State

The institution can be referred to the institution by 60 deputies or senators within 15 days of the final adoption of a law. Normally, it has one month to make its decision, but the government has the option of requesting an urgent review, which then reduces the time limit to eight days. On February 21, Le Point and Le Monde revealed a note from the Council of State that sounded the alarm about a risk of unconstitutionality of certain provisions of the law.

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Among the points raised by the highest administrative court, was in particular the senior index which aims to encourage companies to keep employees in their workforce at the twilight of their careers. The Council of State considers that this measure does not have the characteristics required to be integrated into a text, adopted via a draft law on the amending financing of social security (PLFSS). Clearly, this provision "will probably not influence the financing of Social Security for 2023," says State Councilor Didier Maus to Franceinfo, and therefore has nothing to do within this pension reform.

Debates too shortened by the executive?

Moreover, the Constitutional Council could pinpoint not the substance but the form used to adopt the law. And thus consider that Parliament has not had the opportunity to really debate. Beyond 49.3, the government requested section 47.1 to shorten the time of debate in the Assembly before triggering 44.3 in the Senate to force the upper house to vote by a single vote on part or even all of the bill. "There has not really been a clear and sincere debate, but it is a constitutional requirement," Dominique Rousseau, a professor of constitutional law, told Franceinfo.

Therefore, there are reasons to believe that the Constitutional Council will revoke part of this pension reform. This Sunday, Jean-Luc Mélenchon was also very confident in the show Le Grand Jury of RTL, LCI and Figaro. "The Constitutional Council will cancel the entire parliamentary procedure of the pension reform. The Wise Men know that their role is to protect institutions by enforcing them. They also take into account what is happening in the country," said the rebellious leader.