Key Benefits:
EQUAL OPPORTUNITIES ACT
Mr. President of the Constitutional Council, ladies and gentlemen The Constitutional Council, we have the honour to refer you, in accordance with the second paragraph of Article 61 of the Constitution, to Articles 8, 21, 48, 49 and 51 of the Equal Opportunities Act as adopted by Parliament.
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As a preliminary step, and in order to avoid misinterpretation of their actions, the applicants intend to recall their total commitment to the fight against unemployment, and that of young people Special. While everything needs to be done to combat this scourge, they cannot accept the establishment of mechanisms to discriminate between certain young people and their elders or between young people themselves. The first hiring contract is, in law as in fact, contrary to the principle of equality before the law. It deprivs, moreover, the employees concerned of the constitutional guarantees which attach to the imperative social order and the balance of contracts. Moreover, and paradoxically, the criticism is marred by a number of imprecisions to the point of creating legal uncertainty which will be detrimental to both employees and businesses. The Prime Minister concluded by acknowledging in a recent television interview that there was a need to increase the guarantees of young people hired on this basis. In the end, it is the right to employment, whose constitutional value is indisputable, which is reached.
This law, which measures constitutional defects, has, as if not enough, been passed in conditions marked by the Violation of the principle of sincerity and clarity in the legislative procedure, in particular, by Articles 6 of the Declaration of 1789 and 3 of the Constitution of 1958.
This is a certain conception of democratic life and of our Republic Social, which is now at issue. In this regard, your task is important.
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I. -Article 8
This Article creates a new contract of employment " First hiring contract " Laying down its scope and legal regime. This contract applies to new hires of persons less than twenty-six years of age, in undertakings with more than twenty employees, under the conditions laid down in Article L. 620-10 of the Labour Code. It is essentially characterised by the non-application, for a period of two years from the date of its conclusion, of the provisions laid down in Articles L. 122-4 to L. 122-11, L. 122-13 to L. 122-14-14 and L. 321-1 to L. 321-17 of the same code
In other words, during this two-year period-a singular period that the law does not qualify in any way-almost all of the rules for termination of the open-ended employment contract do not
. Excluded from the legal regime of the first employment contract the procedure laid down in Article L. 122-14 of the Labour Code providing for pre-employment maintenance, during which the employer must indicate to the employee the grounds for dismissal and To collect its observations and explanations, supplemented by Articles L. 122-14-1 and L. 122-14-2, under which the employer who decides to dismiss an employee must notify the dismissal by registered letter with notice of receipt containing the
It should also be noted that in the law of persons of the same age and equivalent qualifications may be subject to different legal systems within the same undertaking or even to the same service. This without any objective and rational justification comes to the support of such a difference in treatment.
This discrimination is, of course, at the heart of the constitutional questions posed by the so-called first contract Hiring.
In essence, the contract created by section 8 of the Act is, by its scope and its content, a legislative device which seriously disregards several constitutional principles, including the principle of equality before the law, the article 4 of the Declaration of Human and Citizen Rights of 1789 and the guarantees attached to the constitutional requirement of the right to employment, as well as the principle of intelligibility and accessibility of the law, the right to appeal and the Charter
But first of all, on the procedure, it is clear from the conditions of the parliamentary debate around this Article 8, as for the rest of the law, that the principles of clarity and sincerity of the debates have been disregarded. They are the result, in particular, of Articles 6 of the Declaration of the Rights of Man and of the Citizen of 1789 and Articles 3, 39 and 44 of the Constitution.
1. On the procedure
The conditions of the parliamentary debate which resulted in the vote of the law criticised, and in particular Article 8 creating the first hiring contract, reveal a perfect cumulation of all the diversions of Possible procedures for the review of a bill. The requirements for the clarity and sincerity of the parliamentary debate (No. 2005-526 DC of 13 October 2005) and, in particular, Articles 6 of the 1789 Declaration, and 3, 39 and 44 of the Constitution are thus
. Used in the context of the examination of this text may appear, taken in isolation, in conformity with the constitutional requirements. But appearances cannot mislead your vigilance so much as the accumulation of the use of these procedures, some of which are exorbitant of the common law of Parliament, cannot, in this case, be justified by the need to respond to an approach of ' Flibuste " In
case, the use of this maximum arsenal of rules of rationalised parliamentarianism is disproportionate in terms of the conditions of parliamentary debate and the importance of the questions posed by the And the extent of the government amendment creating the contract says " In
, Article 8 of the Law has been introduced:
-although, on the one hand, despite its unprecedented scope and scope, it has been submitted by way of amendment by the Government, thus depriving the Council of State of the examination The actual and sincere of the original bill as provided for in article 39 of the Constitution;
-whereas, on the other hand, the declared urgency allowed only one reading in each assembly;
-while, moreover, it did not The subject of any vote by the National Assembly to the extent that Article 49, paragraph 3, of the Constitution has been used by the Prime Minister and that its adoption by the Senate has deprived the Joint Joint Committee of the possibility of Know;
-whereas the National Assembly, on the one hand, was able to exercise its right of amendment only by means of a sub-amendment which must not be in contradiction with the amendment pursuant to Article 98 (4) of the Rules of Procedure The National Assembly and the Senate, on the other hand, did not have such a constraint;
-and, finally, the Senate proceeded to examine the law under special conditions, as many of the amendments were removed to the Procedural devices without being discussed in the sitting.
Admittedly, at the end of your case-law, the right of amendment must be fully exercised during the first reading, by each of the two parliamentary assemblies, Projects and proposals for legislation. However, it is on the condition that the amendments, including those deposited by the Government, are not devoid of any connection with the subject matter of the draft or the proposal on the office of the first assembly seized and that the Constitutional requirements for the clarity and sincerity of the parliamentary debate are fully guaranteed (Decision 2005-532 DC of 19 January 2006).
It is necessary to deduce from the logic of these constitutional requirements, of their letter as Their spirit, that these requirements, and in particular those relating to the sincerity of the parliamentary debate, are all the more necessary when a text is the subject of a single reading in each
. The whole process of drafting the law, which forms a whole to ensure that the law voted on will be the expression of the general will. For this reason, the undueness of certain rules may result in a blatant procedural defect.
1.1. First, you did not hesitate to censor a legislative provision for irregularity of procedure, on the ground of the violation of Article 39 of the Constitution taken in its second paragraph, according to which: The draft laws are released in the council of ministers after the advice of the Council of State and deposited on the office of one of the two assemblies." You therefore considered that, if the Council of Ministers deliberates on draft laws and if it is possible for them to modify its content, it is, as the grantor wished, provided that it is informed by the opinion of the Council of State, and that, by All the questions raised by the text adopted by the Council of Ministers must have been submitted to the Council of State in its consultation (Decision 2003-468 DC of 3 April 2003).
It follows that if the Government maintains, Of course, the ability to amend its own draft law during the course of parliamentary procedure is conditional, however, that it does not add a provision which, by its nature, its scope and its scope, should have been included in the draft Initial law submitted to the Council of State under article 39 of the Constitution. In other words, the fact that the Government is consciously amending its draft law in order to circumvent its obligation of sincerity and clarity at the stage of the consultative phase is necessarily a misuse of the procedure
In Decision 2003-468 DC of 3 April 2003 cited above, the circumstances were, in the end, hardly different, since the Government had substantially changed the scope of its draft law after the State Council had made its Opinion on the previous version submitted for its consideration.
For it would be too convenient, and it would violate Article 39 of the Constitution and your own case-law of substance, if to circumvent its constitutional obligations, the Government Could, at leisure, introduce by amendment provisions which upset the economy of the text previously submitted to the opinion of the Council of State.
Thus, the question is not so much whether Article 8 is devoid of any link with the Rather to ensure that the Government did not circumscribing the requirement of article 39 of the Constitution, paragraph 2, by substantially altering the scope of its ex post facto bill of this stage. To put it another way: if, as the Government has argued abundantly, the link is so strong between the contract criticised and the text on equal opportunities, then it should have introduced this feature in the original draft law and the To submit to the opinion of the Council of State.
At this point, it is Articles 6 of the Declaration of 1789, 3 and 39 of the Constitution of 1958 which are being violated, and thus the sincerity of the procedure for drawing up the law which is not
. Of course, second, that argument would fall if the Government explained in its defence that Article 8 was devoid of any connection with the draft law and that it therefore did not have to submit it in the opinion of the Council
But, in this case, this article would not be saved.
On the contrary, because it would pass under the cutting of your similarly classic jurisprudence which tends to censor the provisions without any relation to the text in which they
Admittedly, the applicants do not intend to explain that the Government is deprived of its constitutionally recognized right of amendment or to argue that bills are frozen at the pre-parliamentary
. It is a question of conciliation between the obligation of article 39, paragraph 2, of the Constitution and the right of amendment that belongs to the Government. It appears, in this regard, that its right of amendment should not be used to remove from its substance the obligation to consult the Council of State. The aim here is to prevent the misuse of procedures and to ensure the sincerity of law-making.
1.3. However, it is not, in the third place, the only infringement of the principle of sincerity in the procedure for drawing up the law which was committed in this case.
In the absence of consultation of the Council of State at the drafting stage of the The draft law is in addition to the urgent examination of the bill and then the use of article 49, paragraph 3, of the 1958 Constitution.
Force is to admit that the Government has totally disproportionate the conditions of a review
You will pay attention to this sincerity of the parliamentary debate by holding that the proper conduct of the democratic debate and, beyond, the proper functioning of the constitutional public authorities That the right of amendment conferred on parliamentarians by Article 44 of the Constitution is fully respected, and that parliamentarians such as Government can use the procedures made available to them for these purposes without hindrance. Double requirement, however, implies that there is no demonstrably excessive use of these rights (decision 3 April 2003, supra).
Applied to the massive use of parliamentary deterrent weapons without sufficient justification, your Reasoning can only lead to the censorship of an article of a major scope introduced by way of a government amendment in violation of article 39, paragraph 2, of the Constitution, in the context of an emergency project for which the article 49, paragraph 3, of the Constitution of 1958 has been implemented and whose vote in accordance with the Senate prevents any discussion at the Joint Joint Committee stage.
Again, it is not the tools used in isolation that are at issue, But the undueness of all these instruments in the same legislative debate.
Censorship is therefore certain.
1.4. Finally, the achievement of the sincerity of the law-making process is all the more certain as the reading of the bill before the Senate has shown that there are two weights and two measures with regard to the amendments depending on their origin
The invocation of Article 40 of the Constitution, various procedures have been put in place to prevent either the discussion or the vote on certain amendments or sub-amendments and additional articles:
-the reservation request to the end The draft law of all the additional articles, which led to the resumption after Article 28 of the discussions in the order of articles from Article 1;
-the lifting of the joint debate (Art. 49-2 of the Rules of the Senate);
-the priority of the consideration of certain amendments, in order to make " Fall " The amendments to the contrary, in general those of the opposition;
-the inadmissibility of Article 44-2 of the Rules of Procedure of the Senate, for the amendments considered by the Committee on Social Affairs as ' Without any link to the subject of the text under discussion " ;
-the inadmissibility of Article 44 (2) of the Constitution against sub-amendments which had not been examined by the committee, and because their deposit was in response to the debates in the sitting;
-the closure of the Debate;
-the reservation of votes on the 86 amendments tabled to Article 3a (now Article 8), due to the low mobilisation of senators from the Senate majority.
Thus, the combined application of the various procedures to the Provision of the Committee and the Government could lead to a prohibition of the discussion and vote of a single amendment on articles under discussion.
Paradoxically, the review of the law in the Senate shows that the abuse of the law Amendment by the Government has responded to a disproportionate restriction of the right of amendment of Members as recognised by Article 44 (1) of the Constitution.
Thus, for example, the inadmissibility of Article 44 (2) of the Rules of Procedure The Senate was invoked twice, at the February 24 meeting (p. 987 of the full report) and then Sunday, March 5 (col. 43 of the summary report) in violation of the right of amendment.
On Friday, 24 February, a motion was tabled by the Committee on Social Affairs to consider that Amendments Nos 215, 224, 225, 227, 231, 271, 233, 238, 243, 247, 244, 221, 249, 245, 251, 252, 256, 272, 216, 217, 222, 229, 230, 250, 262, 218, 219, 258, 259, 260, 257, 255, 254, 220, 253, 248, 240, 239, 235, 234, 242, 241, 232 and 228 " Do not effectively apply to the text of Article 1 of the draft law on equal opportunities and are therefore in conflict with Article 48 (3) of the Rules of the Senate, the Senate shall declare them inadmissible under the Article 44, paragraph 2, of the Rules of the Senate ".
Immediately, the merits of this motion were challenged by the Opposition Senators (p. 988 to 991 of the full report).
Many of these 44 amendments had indeed a clear relationship with the Equal Opportunities Act and with the subject of Article 1 on apprenticeship, which amended Article L. 337-3 The Code of National Education.
Other amendments, such as those declared inadmissible, combating school failure and promoting equal opportunities at school, were nevertheless adopted. The Senate thus adopted an amendment No 833 supplementing Article L. 111-1 of the Education Code, in order, according to its explanatory memorandum, " To add to the fundamental principles governing learning and proficiency in the language of the Republic, without which there is no possible integration ". It is true that this amendment by Mr Nicolas About, a senator, could hardly be declared inadmissible by Mr Nicolas About, Chairman of the Social Affairs Committee.
The assessment of the Social Affairs Committee was therefore And essentially directed against the amendments of the opposition. The 44 amendments declared inadmissible were not devoid of any link to the purpose of the draft law and to Article 1.
Thus, the text of Amendment No. 833 (" The school guarantees all pupils the learning and control of the language French. "), which has been adopted, can be usefully reconciled with other amendments declared inadmissible:
[the missions of the nursery school] " And develops their oral proficiency in the French language." (amendment No. 272);
" The right to education and lifelong learning is guaranteed to everyone throughout the country. Compulsory education is the foundation of this right." (amendment 215);
' The right to education is guaranteed to every young person throughout the territory." (amendment No. 224), since they
intended, like Amendment No. 833, to supplement Article L. 111-1 of the national education code proclaiming the general principles of the right to education
Treatment of Senators' amendments.
These few examples from the Senate's reading of this bill are intended to show that the conditions of the parliamentary debate were, as a whole, contrary to the principle of Article 6 of the 1789 Declaration.
In the National Assembly, the Government uses its right of amendment to circumvent Article 39 of the Constitution and prevents parliamentarians from fully discussing the Law. In the Senate, the right of amendment of the elected representatives of the opposition is reduced to its part in violation of article 44 of the Constitution. National sovereignty has not been able to exercise the fullness of its powers.
In the end, and to conclude on the procedure, it must be admitted that the process of drafting the law criticised, and in particular Article 8 thereof, has disregarded the Articles 6 of the Declaration of 1789, 3, 39 and 44 of the 1958 Constitution.
2. On the merits
Article 8 criticised violates the principle of equality before the law, the principle of clarity and intelligibility of the law, Article 4 of the 1789 Declaration and together the constitutional objective of the right to employment As proclaimed in the preamble to the 1946 Constitution, and the right to
. Breach of the principle of equality before the law:
Article 8 creating the contract states: First hiring " Breaks equality between employees while in law, on the one hand, it can apply to young people less than twenty-six years of age when at the same time young people of the same age who have an equivalent qualification can be employed in CDI in the same way. Company, and while, on the other hand, it will place certain young people in a more unfavourable position in the light of the constitutional right to employment.
(i) The applicants do not know that you are accepting differentiated treatment Defined by law as soon as they are concerned with objectively distinct situations that correspond to the purpose of the law. Thus, in the field of social law, the principle of equality does not preclude the legislator from taking different situations from different situations or from derogating from equality for reasons of general interest, provided that, in those cases, the Two cases, the resulting differential treatment is directly related to the subject-matter of the law which defines it and establishes it (Decision No. 2004-509 DC of 13 January 2005, recitals 17 to 19).
This case-law is constant, and it has Leads, for example, to declare in conformity with the Constitution the law enabling the Government to take, by order, emergency measures for employment. It is also true that you have already judged it " No principle that no rule of constitutional value precludes the legislature from taking measures to assist disadvantaged categories of persons; that the legislator could therefore, with a view to improving the employment of the Young people, authorise measures specific to this category of workers; that the differences in treatment which may result from these measures between categories of workers or categories of undertakings satisfy a general interest which it Belonged to the legislature to assess and are not, therefore, contrary to the Constitution " (No. 86-207 DC of 25 and 26 June 1986, cons. 31).
However, you also found in the decision on the new employment contract that there is no principle that no rule of constitutional value precludes the legislator from taking measures to assist in Categories of persons encountering particular difficulties, which it could therefore, with a view to encouraging the recruitment of young people under the age of twenty-six years, authorize the Government to make specific provisions concerning the Manning count rules. But you add, in a way to limit the risks of empowerment, that employees will not be treated differently according to their age within the same company (recital 13).
Similarly, you have considered, to this That the plea alleging breach of equality was in fact missing because, as is apparent from the parliamentary proceedings, the scope of the undertakings concerned has never included undertakings with more than twenty employees.
The authorised comment published In the Cahiers du Conseil Constitutionnel notes that the operative part of the new contract hires " Includes enterprises, in fact very small, for which the risk of hiring is cultivated (risk of a reversal of the economic situation or erroneous assessment of the professional skills or personal suitability of the person hired). Objective, this risk is also subjective. By reducing it, the new hiring contract is likely to loosen a psychological barrier to hiring, a much stronger brake on small businesses, particularly in the absence of human resources and litigation services. As small businesses constitute a reserve of potential employment, the general economy of the measure has a direct link to its purpose (raising a barrier to hiring). "
It is therefore clear from your case-law that the principle That the difference in treatment does not meet any objective and rational criteria and that, on the other hand, persons in the same situation are treated differently.
This is the case here.
It is clear that, in the same undertaking, a person who is less than twenty-six years of age hired under a first employment contract may be dismissed without cause and without recourse for a period of two years. Other person, hired on the same day in the course of an indefinite contract, that she has more or less than twenty-six years and whether or not she has the same qualification and the same level of degree, will be laid off in accordance with the rules and procedures Articles L. 122-4 to L. 122-11, L. 122-13 to L. 122-14-14 and L. 321-1 to L. 321-17 of the Labour Code.
It is not disputed, nor disputed, that in the same undertaking, two employees in objectively identical situations will indeed be Well treated differently, without this situation responding to a particular general interest or objective and rational test in relation to the purpose of the law.
Admittedly, the work of Parliament attempted to clarify the purpose of the Law. The aim would be to encourage companies to hire young people under the age of twenty-six by means of the first hiring contract instead of current forms.
The two-year period is set out in the explanatory memorandum to the Government as a period of transition for the employee concerned, during which it is sufficient for him to climb a contract to an indefinite contract.
At the end of the two-year period, and in the event that the employee in the first contract Hire is always an employee of the company, the two employees hired according to different contracts are at last in the same situation. However, for one, it would have taken a long period of two years to allow for the definitive implementation of a hiring, while for the other, an employee on a contract of indefinite duration, less or more than twenty-six years, he would have sufficed Wait for the trial period of three months.
Unless the Government, tired of advancing masked, responds that now all young people less than twenty-six years of age will be ineligible for the indefinite contract! At least in this case things would be clear and the questions asked would always take on the principle of equality before the law.
(ii) On the other hand, and in contrast to the new hiring contract, the contract Article 8 of the Act does not apply to undertakings with less than 20 employees. They, in the opinion of the applicants, had enabled the legislator to set an objective criterion linked to their structuring and the need to lift the brakes on employment (see comments published in the Cahiers du Conseil constitutionnel
In this case, it is a generalization of a contract depriving the employee of many guarantees without any serious assertion that large companies are devoid of human resources
. Fanciful to say that a company with, for example, 10,000, 20 000 or 30 000 employees does not have the human and material resources to fulfil the obligation of prior motivation and maintenance before dismissal.
From a point of view Of the objective of the law and of the general interest, it is therefore not clear what the contract created by Article 8 provides objectively and rationally to promote the employment of young people less than twenty-six years
. Remarkably that a report, requested by the Government and written by a large company owner, concluded that this precarious contract did not correspond to the needs of enterprises with more than twenty employees (Proglio report).
(iii) The CPE is Also contrary to Directive 2000 /78/EC of 27 November 2000 ' Creating a general framework for equal treatment in employment and employment Which is required under Article 88-1 of the Constitution.
Your case-law, in particular based on Article 88 (1) of the Constitution, recognises the primacy of original Community law as derived from the law (Decision No 2004-496 DC of 10 June 2004; 19 November 2004). In this respect, Article 8 disputes the above directive, the clear and unconditional terms of which are informed by the most recent case-law of the Court of Justice of the European Communities.
In its Article 3 § 1 c, the field Application of the Directive includes:
Conditions of employment and employment, including conditions of dismissal and remuneration.
Article 6 provides that differences in treatment based on age may be justified in The following conditions:
" 1. Notwithstanding Article 2 (2), Member States may provide that differences in treatment based on age do not constitute discrimination where they are objectively and reasonably justified under the law National, by a legitimate objective, in particular by legitimate employment policy objectives, the labour market and vocational training, and that the means to achieve this objective are appropriate and necessary
a) The establishment of special conditions for access to employment and vocational training, employment and employment, including conditions of dismissal and remuneration for young people, Older workers and those with dependants, with a view to promoting their vocational integration or ensuring their protection; (...) "
It follows that the opening to employees of less than twenty-six years of a contract of employment Having fewer guarantees for dismissal is a less favourable treatment related to age, therefore discrimination prohibited by Directive 2000 /78/EC.
The ECJ judgment of 22 November 2005 (Werner Mangold/Rüdiger HELM, C-144/04) There was discrimination contrary to Article 6 of the Directive.
On the question referred for a preliminary ruling from a German Labour Court, the ECJ's decision covered a law of 23 December 2002 deciding that, for employees aged fifty-two He no longer had to comply with the conditions laid down in the German labour law to allow for the establishment of a fixed-term contract. These employees could therefore be subject to an unlimited succession of such contracts up to the age of their retirement.
The ECJ ruled that this law was incompatible with Directive 2000 /78/EC because it lays down a measure:
-very general in scope, Since age is the only criterion " Triggering " The notwithstanding clause:
" (...) the application of national legislation such as that at issue in the main proceedings leads to a situation in which all workers who have reached the age of fifty-two years without distinction, whether or not they have been unemployed Before the conclusion of the contract and whatever the duration of the possible period of unemployment, can validly, up to the age at which they can claim their right to a retirement pension, be offered term contracts of employment Determined, capable of being rolled back an undefined number of times." [recital 64 of the judgment].
-the serious consequences for the employees concerned:
" (...) This important category of workers, determined solely on the basis of age, risks, during a substantial part of their professional career, to be excluded from the benefit of employment stability, (...) " [recital 64].
It concludes at paragraph 65 of its judgment: '
' Such legislation, in so far as it retains the age of the worker concerned for the sole criterion of application of a fixed-term employment contract, without having been shown that the fixing of an age threshold, as such, independently of Any other consideration relating to the structure of the labour market in question and the personal situation of the person concerned is objectively necessary for the achievement of the objective of vocational integration of unemployed older workers, must be Considered to go beyond what is appropriate and necessary to achieve the objective pursued. Respect for the principle of proportionality implies that each derogation from an individual right shall, as far as possible, reconcile the requirements of the principle of equal treatment with those of the intended purpose (see, to that effect, the judgment On March 19, 2002, Lommers, C-476/99, rec. P. I-2891, item 39). Such national legislation cannot therefore be justified under Article 6 (1) of Directive 2000/78. "
These considerations obviously apply to the case of the CPE which is a device:
-of general scope, since all less than twenty-six years are concerned" Whether or not they were unemployed prior to the conclusion of the contract and regardless of the duration of the possible period of unemployment ", in order to resume the terms of the ECJ
. Their qualifications, the size of the enterprise, the economic situation of the business sector.
-the heavy consequences for the young employee: despite the theoretically indefinite duration of the CPE, the fact of staying for two years under the The threat of an unwarranted break is an indisputable factor of precariousness, and at a time when independence (housing, private life, etc.) is already facing immense difficulties.
It is therefore certain that in the case of Article 8 criticised, The violation of the principles of equality and proportionality can be found in the same terms as in the German species.
In essence, regardless of the objectives assigned to the SCE, the means of achieving it are not " Appropriate and necessary " Within the meaning of Article 6.1 (a) of Directive 2000 /78/EC.
Your logic is found here: a difference in treatment must be objectively and rationally justified and not disproportionate to the goal to be achieved. From the point of view of our constitutional principles, the conditions for a difference in treatment were not met. Far from it. In the light of the aforementioned directive as interpreted by the ECJ, the same conclusions are necessary.
As a result, your invalidation decision can only be strengthened.
(iv) In addition, this discrimination infrings, by way of The right to employment.
In fact, an employee in search of employment after being hired under a first contract hired broken during the period of employment. Famous " A period of two years will be unable to justify to a future employer the reason for his dismissal. What if an employee chained several broken CPE before the two-year period? Faced with the legitimate questioning of his future employer on the reasons for his departure from a particular company, he will be unable to answer and ultimately it is his professional abilities that will be questioned.
Motivation, Written in the context of a prior interview, and written in the context of the letter of dismissal, makes it possible to distinguish explicitly from the redundancies of economic origin of dismissals holding the responsibility of the employee. It constitutes for the employee a guarantee which allows, in particular, respect for the right to employment.
In the absence of reasons for the breach of the first employment contract, the employee will be unable to justify all or part of his/her career In a very unfavourable situation in relation to the current situation in the context of an interview, or even simply in the drafting and presentation of his curriculum vitae.
From the perspective of Principle of equality and the constitutional objective of the right to employment, this difference in treatment will, contrary to the stated objective of the law, result in a weakening of the chances of finding a job for young people who have accumulated this type of Contract at random time.
2.2. On the negative incompetence resulting from the lack of knowledge of Article 34 of the Constitution and together on the violation of the principle of clarity and intelligibility of the law.
You have held that it is for the legislator to exercise fully the Competence conferred on it by Article 34 of the Constitution. In this respect, the principle of clarity of the law, which derives from the same article of the Constitution, and the objective of the constitutional value of intelligibility and accessibility of the law, derived from Articles 4, 5, 6 and 16 of the Declaration of 1789, Require the adoption of sufficiently precise provisions and unambiguous formulae.
In the present case, the legislator refused to refer specifically to the two-year period criticised. However, this imprecision, this vagueness, will have consequences for employees and for businesses by creating a risk of legal uncertainty detrimental to the right to employment and the freedom to undertake.
(i) First, in application of Article L. 122-4 of the Labour Code, in the event of a break before the end of the trial period, the rules relating to the termination of the open-ended employment contract are not applicable
Section 1 of Chapter II of Title II of the Book I of the Labour Code, and which do not apply to the trial period, are, for the most part, those that do not apply to the two-year period of the first employment
. For this two-year period, all sections of the Labour Code section referred to above apply, except for articles L. 122-12 and L. 122-12-1. In other words, twenty-three of the twenty-five articles in the section of the Labour Code which provide for the modalities of termination of the contract on an indefinite basis and their non-application to the trial period fixed by conventional means do not apply No longer than the two-year period of the first employment contract.
Under these conditions, regardless of the language precautions used by the Government to defend the first hiring contract, the two-year period is nothing else That a trial period.
Accordingly, this period cannot be excessive taking into account the duties performed by the employee. The Court of Cassation thus had the opportunity to rule on the unreasonable nature of a trial period on numerous occasions depending on the nature of the employment. It has, for example, pronounced on the unreasonable nature of a one-year trial period for a senior executive.
This case-law can usefully claim the international commitments of our country, including Convention No. 158 of International Labour Organization. According to this international treaty ratified by France, derogations from the application of the common right of dismissal are possible only in the case where the employee is in a trial period and if the test is reasonable. It appears from the reading of numerous judgments of the Court of Cassation that a two-year period is far from reasonable.
There is no doubt that a two-year trial period for a young person under the age of twenty-six years must be considered excessive. However, because of the superiority of the regularly ratified treaties on the law, it will be open to the judge of the contract to enforce the international rule on the law, and in particular Article 8 creating the
. Directive 2000 /78/EC of 27 November 2000, as interpreted by the Court of Justice of the European Communities, is likely to prevail. This will not, far, strengthen the clarity and intelligibility of the law.
It is hard to imagine how difficult it will be for businesses and employees.
If you still refuse to examine the conformity of a law with a treaty , on the other hand, you agree to censor a law which, by its drafting or by the absence of sufficient precision, is such as to render certain provisions unintelligible and difficult to access, or even practically applicable In
present case, the absence of qualification of the two-year period and the obvious risk of re-qualification by the judge, in the light of France's international obligations, render the law unintelligible and difficult Accessible to businesses that do not necessarily know which rules apply as to employees who do not necessarily know how to enforce their rights.
As a result, censorship is incurred.
(ii) Next, the Criticised system is in conflict with the disciplinary procedure which remains applicable to the employee engaged on the basis of the SCE.
It follows that there is confusion about the rights and duties of the employee and the undertaking which is prejudicial to the guarantee of rights As recognised by Article 16 of the 1789 Declaration.
In fact, during the two-year period, the disciplinary procedure laid down in Articles L. 122-40 to L. 122-41 of the Labour Code, which may lead to dismissal, remains for an employee Employee. In this case, on the one hand, the summoning of the employee concerned, the information in writing of the grievances held against him are compulsory and, on the other hand, the appeal to the Council of Human Men is possible.
The first employment contract does Therefore co-exist two procedures for breach of the contract of employment. The employer shall exempt the employer from any information on the reason for the dismissal. The other requires a strictly controlled information procedure. This paradox reflects the extent to which the essential feature of the first employment contract creates confusion and complications for both employers and employees.
In other words, for a period of two years, in the event of serious misconduct Imputed to an employee in a first employment contract, the employer shall not advance any cause and shall not be required to observe the disciplinary procedure or advance a ground of disciplinary order and shall be required to respect the procedure. It is quite possible to imagine that, taking advantage of the imprecision of the law, the employer, in a situation where he wants to break a first-employment contract, favours the simplest procedure to implement.
This imprecision a Was noted by the rapporteur in the Senate, who notes that he " It will be up to the case-law to clarify the link between the compulsory disciplinary procedure and the provisions easing the conditions for breach of the contract on the initiative of the employer. It seems then that the unsubstantiated failure of the SCE should not be linked to a fault which could be punished under Article L. 122-40 " (Senate, Report No. 210, page 46).
The imprecision of the voting system and the fact that the legislator does not know the exact scope of the adopted text can no longer be said to be more accurate and proposes to the judge more doubts than certainties in this regard: " (...) it will revert to the case-law ... " ; " (...) it seems ... ".
In any case, the legislator has not, in this case, adopted a sufficiently clear and precise device.
More seriously, there is nothing to prohibit a unscrupulous employer using the lack of procedure of the SCE To circumvent the protective rules applicable in disciplinary matters. In this respect, except to disregard the principle of equality, it is not possible to create such confusion between the existing procedures in order to remove an employee from a company. Because, in the end, the rights guarantees are weakened.
As far as the rules of social public order are concerned, such blur can only be subject to censorship.
2.3. On Article 4 of the 1789 Declaration, the constitutional guarantees attached to the right to employment and the right to use Article 16 of the 1789 Declaration.
You have regularly considered that, pursuant to Article 4 of the Declaration of the Rights of Man and Citizen of 1789 the author of the breach of a contract had to proceed with the information of the counterparty. That, in that regard, the employee who is the subject of a lay-off procedure must be entitled to the right to defend themselves at the end of an adversarial procedure. While it is a necessary consequence of the right to employment to be heard in order to maintain its work and avoid a breach of an unfounded contract and whereas the absence of adversarial procedure is such as to create insecurity To the detriment of the employee and the company.
(i) Thus, you considered that " If the contract is the common law of the parties, the freedom derived from Article 4 of the Declaration of the Rights of Man and the Citizen of 1789 justifies the unilateral termination of a contract of private law by one or The other contracting party, the information of the counterparty and the compensation for the possible damage resulting from the conditions of the breach, to be guaranteed; that in that respect it is for the legislator, because of the need to ensure For certain contracts the protection of one of the parties, to specify the causes for such termination, as well as the terms and conditions thereof, in particular the observance of notice " (Decision No. 99-419 DC of 9 November 1999).
Rapported to the labour law, the protective right of the employee in situations of subordination and weakness with regard to the employer, these requirements are all the more necessary.
You mentioned it in Your decision No. 98-401 DC of 10 June 1998, in which you swear that Article 34 of the Constitution " Shall not relieve the legislator, in the exercise of its competence, of respect for the principles and rules of constitutional value, in particular with regard to the fundamental rights and freedoms granted to employers and employees; that Among these rights and freedoms are the freedom proclaimed by Article 4 of the 1789 Declaration, in particular the freedom to undertake, equality before laws and public office, the right to employment, the right to employment Union, as well as the right of workers to participate in the collective determination of working conditions and the management of undertakings. "
It is therefore up to the legislator to reconcile these different rights. You have made it clear in your case-law, and in particular in Decision No. 2001-455 DC of 11 January 2002, stating that, if the legislator can bring the right of employment to the limitations of the requirement represented by freedom It must not result in a disproportionate infringement of the objective pursued by the legislator.
Nothing in Article 8 really provides a framework for the legal regime of the first employment contract in respect of the Guarantees required by the constitutional requirements applicable in this field, in particular on the conditions of information of the contracting party on the causes of termination which, as regards the right to dismissal, must be
The only obligation imposed on the employer is that of a simple notification by letter, of course recommended, of its decision to terminate the employment contract without any objective
. The right to work, in order to protect the weaker party, the legislator must specify the conditions of the rupture. However, in the present case, neither the information on the reasons for the breach nor an adversarial procedure prior to the decision of failure are binding on the employer.
The existence of a severance payment equal to 8 % of the gross salary payable since the The beginning of the contract and the existence of a notice if the employee has been present in the undertaking for at least one month cannot be considered alone as a sufficient repair of the damage caused by the termination of the contract
The absence of an adversarial procedure in the event of termination of the first employment contract does not allow respect for the right of defence yet of constitutional value and which, in the field of labour law, is a necessary corollary of the law To employment. For a period of two years, the contract may be broken at any time, without any reason given to the employee. In vain, the weakening of the employee's guarantees is likely to have a favourable impact on the employment of young people under the age of twenty-six years, especially in large companies.
It is in vain that one would seek to The purpose of the law in question - " Equal opportunities " -a reason for such disproportionate limitations on the balance of the parties to a contract and the right to employment.
(ii) Such situations are, on the one hand, sources of legal uncertainty for employees and employers, and , on the other hand, deprive the employee of his right to recourse.
The absence of reasons for dismissal represents an infringement of the right to employment in the above cases since an employee hired on the basis of a CPE will not be able to Assert its point of view if the reasons for its dismissal are unfounded or are based on incorrect facts.
It is again in contradiction with Convention No. 158 of the International Labour Organisation, according to which " A worker shall not be dismissed without a valid reason for dismissal related to the ability or conduct of the worker or based on the necessities of the operation of the enterprise.
Recourse. As a result of the superiority of regularly ratified international conventions on the law, an ordinary judge will be able to enforce this more protective standard on Article 8, which is criticised here. One can imagine the legal precariousness of the first employment contract, which will surely produce more litigation and disorder than it will create employment.
In addition, the conditions under which the right to Appeal, including the right to the judge, may be available to the employee who, deprived of the reasons for his dismissal, will have no tangible evidence before a court. In those circumstances, the right to appeal, as guaranteed by Article 16 of the 1789 Declaration, does not appear to be respected.
The Prime Minister seems to have himself measured the absence of sufficient protection to the extent that, during his Television interview on March 12, 2006 granted to TF 1, he stated that there was a need to increase the guarantees for this new contract!
Censorship is certain.
2.4. Infringation of the European Social Charter.
For the same reasons as previously stated, Article 8 of the Act disregards the provisions of the revised European Social Charter, and in particular Article 24 thereof, which states that in " With a view to ensuring the effective exercise of the right to protection in the event of termination of employment, the parties undertake to recognise:
a) The right of workers not to be made redundant without good cause related to their ability or conduct, or based on Operational requirements of the business, establishment or service;
(b) The right of workers made redundant without just cause for adequate compensation or other appropriate compensation.
To this end the parties undertake to To ensure that a worker who believes that he has been dismissed without just cause has a right of appeal against that measure before an impartial body.
You have always refused to examine the conformity of a law with a International treaty. However, you decided in 1992 that the fourteenth paragraph of the Preamble to the Constitution of 1946, to which the Preamble of the 1958 Constitution refers, proclaims that the French Republic " Comply with the rules of international public law " ; that the number of them is the Pacta sunt servanda rule which implies that any treaty in force binds the parties and must be carried out by them in good faith; that Article 55 of the 1958 Constitution also provides that " Regularly ratified or approved treaties or agreements have, as soon as they are published, a higher authority than the laws, subject, for each agreement or treaty, to its application by the other party " (Decision No 92-308 DC of 9 April 1992, recital 7).
As regards the right of the European Union, you have, in accordance with Article 88 (1) of the Constitution, in the decisions rendered on 10 June and 1 and 29 July 2004, that Are effective against the transposition of a Community directive into the express provisions of the French Constitution. The other constitutional rules must " Assign the step " The application or transposition of Community law.
If the primacy of Community law is good in French law, and even has a constitutional basis (Art. 88-1), with the exception of special provisions contrary to the Constitution, there is nothing to prohibit the rules of an international treaty guaranteeing fundamental rights and freedoms, including social rights, with the same logic, and The same constraints, based on the respect by France of its international commitments.
In these circumstances, except to leave it to the ordinary judge to have the European Charter of Social Rights prevail or the ILO Convention on the Law, and particularly on Article 8 criticised, it is possible for you to invalidate the said contract First hiring " On the ground that he failed to meet France's commitments to guarantee the rights of the employee.
For all these reasons, censorship is incurred.
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II. -On Article 21
This article supplements Articles L. 620-10, L. 423-7 and L. 433-4 of the Labour Code in order to modify the calculation of the workforce of enterprises and thus the electorate of professional elections. It is contrary to Article 8 of the Preamble to the 1946 Constitution that: " Every worker participates, through his or her delegates, in the collective determination of working conditions and in the management of enterprises. "
Thus, the new wording of Article L. 620-10 of the Labour Code allows employees involved in the execution of a subcontract to be excluded from the workforce. It reduces the number of employees below the different thresholds required for the application of protective rules on the representation of employees, in the field of health and safety at work, on the employment of persons Article
422-1 of the Labour Code, however, allows employees of external undertakings who, in the course of their activity, are not placed under the direct subordination of the user undertaking, to be able to present Their individual and collective complaints concerning the conditions of performance of the work by the staff delegates of this undertaking.
This possibility, in particular for employees working under a contract of Subcontracting, has been reinforced by different judgments of the Court of Cassation clarifying the concept of employees' Made available to the business by an outside company " In order to provide the employees concerned with the protective provisions of the Labour Code. The representation of employees is possible that these employees are under the subordination of the user undertaking, that the work is carried out in full independence with the human and material resources used under their responsibility (Cass. No. 98-60440 of 28 March 2000, judgment n ° 2000-60252 of 27 November 2001).
As a result, and due to the outsourcing of production or other services, Article 21 depriving many employees of the constitutional right to Representation, while participating in the activities necessary for the operation of the user undertaking, even if these activities are not related solely to the business of the undertaking, even if these employees only intervene in the context of a
This situation was also confirmed by the Court of Cassation (Cass. No. 03-60125 of 26 May 2004, judgment n ° 05-60124 of 10 January 2006).
The new editors of Articles L. 423-7 and L. 433-4 of the Labour Code are to exclude from the electorate who may participate in the election of the delegates of the Employees and employees' representatives on the works council of employees who, although made available to the company by an outside company, work permanently in the company. The constitutional right of representation of these employees is also unknown.
In addition, this article was adopted in conditions contrary to the right of amendment provided for in Article 44 of the Constitution, as stated in your case-law Recent (Decision No. 2005-532 DC of 19 January 2006). The right of amendment, which is recognized by the Government and Members of Parliament, is fully exercised at the first reading of the bills and proposals provided that they are not devoid of any link to the object of the text
Reform the way in which the workforce is calculated and to change the electorate in the professional elections. It is devoid of any connection with the content of the draft law for equality of opportunity filed on the office of the first assembly seized, except to consider that with the introduction of the article establishing the first contract hiring the bill Is indeed a bill substantially reforming the Labour Code.
For all these reasons, section 21 must be declared unconstitutional.
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III. -Title III of the law
Sections 48 and 49 constitute Title III of the Act.
Article 48 establishes a contract of parental responsibility between the President of the General Council and the parents of the minor in question. Situation of school absenteeism and, more broadly, in cases of manifest educational deprivation.
As regards Article 49, it " Specifies " The conditions under which family benefits are suspended in the home which did not wish to sign the contract of parental responsibility or failed to comply with the terms.
Those Articles are unfamiliar with Article 34 of the The Constitution and are therefore vitiated by negative incompetence. On the other hand, they violate the right to appeal and the rights of the defence.
Force is here to find that these articles create a system of administrative sanctions resulting in a punishment consisting of the suspension of certain benefits Family. There is no doubt about the qualification of sanction as a result of the parliamentary work and that it has not been challenged at any time.
In these circumstances, it is necessary, at the end of your classic case-law, for this mechanism to respect The constitutional principles of law enforcement. First, it is important that the definition of the facts leading to the imposition of sanctions be sufficiently precise. However, one will question the scope of certain expressions used in the first paragraph of Article 48 to justify the signing of a contract of parental responsibility which may lead to the temporary deprivation of family benefits. Thus, the words " Or any other difficulty related to a lack of parental authority " Leaves open a singularly large decision field.
These words do not define the exact scope of intervention of the contract.
In addition, moreover, the President of the General Council is alone in deciding that the Obligations relating to the contract have not been complied with in order to ask the Director of the debtor for family benefits to suspend them.
Force is to note that no adversarial proceedings or possibility for them Concerned parents to be heard and to exercise their rights of defence in advance of the imposition of the sanction does not exist in the criticised system.
It will be added that the use of fuzzy expressions - " Any other difficulty " -cumulative with the absence of adversarial procedure aggravates the risk of arbitrariness.
It will be noted that the intended decree does not cover these aspects.
This infringement of the applicable principles of punishment having the character of punishment Article 49 of the Law states that the proportion and duration of the suspension of social benefits is decided solely by the President of the General Council and that the Director of the debtor agency is, for his part, the
As a result, even at the implementation stage of the suspension measure, the United Nations people will not be able to enforce their rights.
Censorship is therefore incurred.
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IV. -Section 51 of the Act
This article establishes new powers for the mayor. It creates a new Article 44-1 in the Code of Criminal Procedure, of which the fifth and sixth paragraphs respectively allow the mayor, on the one hand, to propose to the offender who has committed an act prejudicial to the municipality a transaction Consisting of work of general interest after the proximity judge or the police court has approved the measure, and, on the other hand, to refer the prosecutor to a request for a criminal composition for the offender who has not caused such damage
Obviously, the fifth preambular paragraph of section 51 of the Act disregards the principle of separation of powers and, in addition, violates the rights of the defence and the right to a fair
. Already. But-big difference with the device in question-they are exclusively implemented by judges belonging to the judicial authority. Thus, article 41-1 of the Code of Criminal Procedure allows the prosecutor to take or propose an alternative measure which will suspend the public action if it is effectively implemented: reminder of the law, warning, compensation for damages, Mediation, etc. Articles 41-2 and 41-3 authorise the prosecutor to propose a criminal composition to the perpetrators of offences. The criminal composition must be validated by a judge of the seat. It takes the form of measures other than prison sentences, such as a fine or unpaid work.
On the one hand, you take care to distinguish between the powers that are the responsibility of the prevention and those that are part of the repression and do Respect this constitutional boundary for the separation of powers (decision of 19 January 2006).
In the present case, it is only possible to see an infringement of the separation of powers when the authority, having found, by its agents, a Contrary, is in a position to impose a measure equivalent to a punishment. Certainly, a licence is provided for by a judge who, however, will not necessarily be a professional judge since it may be a local court whose limits on the quality of the decisions are now known.
The procedure laid down in Articles 41-1 to 41-3 of the Code of Criminal Procedure cannot be equated with that procedure, since in such devices only magistrates are involved. These are members of the prosecutor's office and the judges of the seat, according to your case-law, to the judicial authority (decision of 29 August 2002). This justifies in your case-law that there are exceptions to the common law of the criminal procedure.
On the other hand, it cannot be accepted that a mayor, a judicial police officer, could propose an alternative measure Criminal sanctions when he does not have the status of a magistrate. Such a situation would break the balance of our judicial institutions and weaken the separation of powers.
In any event, the conditions under which the mayor proposes to the offender Transacting and submitting to work of general interest violates the rights of the defence and the right to a fair trial resulting from Article 16 of the 1789 Declaration.
In matters of criminal procedure, including measures Alternatives, you are always demanding (decision of 2 February 1995). That so, you have admitted, for part, the procedure of pleading guilty as soon as the conditions of the fair trial were respected, including the presence of the lawyer throughout the proceedings, including when the prosecutor proposes the sentence. On the other hand, you have censored the absence of publicity of the proceedings (Decision 2004-492 DC of 2 March 2004).
In the particular case, nothing is said in Article 51 on the conditions under which the offender will be informed of the The proposed forced labour by the mayor. It is not known whether he can be assisted by a lawyer and if so, from when. It is not clear whether the discussion phase with the mayor will be preceded by an exchange of documents, if the offender will be able to challenge the alleged facts. In this respect, the fact that these are simple facts does not mean that anyone who is being prosecuted acknowledges the materiality of the facts! It is not known how, including advertising, the judge will certify.
In other words, there are no guarantees relating to the right to a fair trial.
As for the sixth paragraph of Article 51, it asks: Questions close enough. Indeed, without this framework, the mayor does not " May " To refer the case to the prosecutor. But he will be able to seize facts to which he and his municipality will be foreigners, since it will be a matter of punishing acts committed in the territory of the municipality but without affecting the property of the local community. Admit this intervention without any particular reason poses the problem of public action popularis. We see all the dangers of demagogic and populist use attached to it. Allowing the mayor to chase all offenders in this way violates the principle of separation of powers.
Censorship of the fifth and sixth subparagraphs can only take place.
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We ask you to believe, Mr. Chairman, ladies and gentlemen of the Constitutional Council, to the expression of our high regard.
(List of signatories: see Decision No. 2006-535 DC.)
