Pension reform: “The decision of the Constitutional Council is essential but, because it is ill-founded and poorly reasoned in law, it cannot close the pension dispute”

It is useless to seek in the method of appointment of the members of the Constitutional Council, in their political past, in the updating of the particular interests and connivances of each other for who wants to discuss the decision of Friday April 14. It suffices, simply, to read it for the criticism to come out:

Ҥ 65. Finally, the fact that certain ministers reportedly issued, during their speeches in the National Assembly and in the media, initially erroneous estimates of the amount of retirement pensions that will be paid to certain categories of insured persons, is irrelevant. on the procedure for adopting the law referred once these estimates have been debated. " Enormous !

Ҥ 69. On the other hand, the fact that several procedures provided for by the Constitution and by the regulations of the assemblies were used cumulatively to accelerate the examination of the referred law, is not in itself of such a nature as to render unconstitutional the whole of the legislative procedure that led to the adoption of this law. " Enormous !

Ҥ 70. In this case, while the combined use of the procedures implemented was unusual in response to the conditions of the debates, it did not have the effect of rendering the legislative procedure unconstitutional. Consequently, the referred law was adopted according to a procedure in conformity with the Constitution.. " Enormous !

“§ 11. On the other hand, while the provisions relating to pension reform, which do not fall within this mandatory area, could have been included in an ordinary law, the choice originally made by the Government to include them in the within an amending finance law does not, in itself, disregard any constitutional requirement. It is not for the Constitutional Council to substitute its assessment for that of the legislator in this respect, but only to ensure that these provisions relate to one of the categories mentioned in article LO 111-3-12 of the Code. of social security. » Enormous !

The Constitutional Council thus recognizes that ministers have issued “erroneous estimates” during parliamentary debates, that several procedures were used "cumulatively" to speed up the adoption of the law and that the combined use of the procedures implemented has a "unusual character".

A doubt about the legal validity of the decision

It was therefore logical in law for him to conclude that the principle of clarity and sincerity of parliamentary debates had not been respected. However, he judges that all these defects do not render the entire legislative procedure unconstitutional. Obviously, the conclusion does not follow logically from the premises and this discrepancy opens up room for doubt on the legal validity of the decision.

In this case, the law did not have a financial purpose for the year 2023 but a reform of the legal pension system for the years to come; it determined the legal retirement age, the special conditions for seniors, women, people who started working at a young age, etc. In other words, the law covered the fundamental principles of the new pensions and the constitutional requirement which reserves this competence to the ordinary legislator has been disregarded. Again, the Council made legal logic suffer.

No doubt it would be possible to object that constitutional law is more an art of interpretation than an exact science and that consequently the Council, the jurisdiction responsible for " say " the law of the Constitution, gave it a legal reading.

Debatable objection. Hans Kelsen (1881-1973), father of the constitutional review of laws, distinguished the interpretation of doctrine from that of judges. The first aims to produce a knowledge of the texts by exposing the method of analysis adopted; the second aims to produce a decision on a particular contentious case. The first is said " scientific ", the second " authentic ". " Authentic " does not mean "legally true" but only that the interpretation given by the authorized authority is that which produces effects in the legal order. Thus, that the interpretation of the Constitution made by the Council is essential does not mean that the interpretation made by the doctrine was or becomes false; it continues, in the field of knowledge, to be valid and to found the work of criticism without which the law would not survive.

The Council's decision is therefore binding but, because it is ill-founded and poorly reasoned in law, it does not have the qualities enabling it to close the pension litigation.

A principle inherent in the democratic quality of a society

In the past, the Council has been able to make "large" decisions that established his position, initially disputed, in the political system: in 1971 when he canceled the law subjecting the creation of associations to the prior authorization of the administration; in 1975, when he judged that the Veil law was not contrary to the Constitution, or in 2013 when he judged that no constitutional principle prohibited the legislator from recognizing marriage between persons of the same sex.

The Council had the opportunity to take part in this history: the government had brutalized the Parliament (which it recognizes); if Parliament is the nation represented, then the government had brutalized the nation; sanctioning the law on the grounds that the rights of Parliament had been abused in such a way "unusual", the Council protected the rights of Parliament and, through them, the rights of the nation to a clear and sincere elaboration of the general will.

Certainly, the decision of April 14, 2023 will not go down in history or else, which would be regrettable, as a point of acceleration of a questioning of the very principle of a constitutional review of laws.

However, as the Israeli, Hungarian or Polish examples show, this principle is inherent in the democratic quality of a society. A decision that is ill-founded in law should not lead, as the saying goes, to throwing the baby out with the bathwater, but to work to continue the transformation of the Council into a Constitutional Court.