Advanced Search

Decision No. 2005-523 Dc Of 29 July 2005

Original Language Title: Décision n° 2005-523 DC du 29 juillet 2005

Subscribe to a Global-Regulation Premium Membership Today!

Key Benefits:

Subscribe Now for only USD$40 per month.
JORF n ° 179, August 3, 2005 page 12664 text no. 4 Decision No. 2005-523 DC of 29 July 2005 NOR: CSCL0508639S ELI: Non available law in favour of small and medium enterprises the Constitutional Council was seized, in accordance with article 61, paragraph 2, of the Constitution of the law in favour of small and medium-sized enterprises , July 20, 2005, by Mr. Jean-Marc Ayrault, Ms. Patricia Adam, Sylvie Andrieux, Messrs. Jean-Marie Aubron, Jean-Paul Babu, Jean-Pierre Bahari, Gérard Bapt, Claude Bartolone, Jacques Bascou, Christian battle, Jean-Claude Bateux, Jean-Claude Beauchaud, Eric Besson, Jean-Louis Bianco Jean-Pierre Blazy, Serge Blisko, Patrick Bloche, Jean-Claude Bois, Daniel Boisserie, Maxime Bono, Augustin Bonrepaux, Jean-Michel Boucheron, Pierre Bourguignon, Ms. Danielle Bousquet, Messrs. François Brottes, Jean-Christophe Cambadélis , Taylor Campbell, Christophe Caresche, Laurent Català, Jean-Paul Chanteguet, Michel Charzat, Alain Claeys, Ms. Marie-Françoise Joram, Mr. Gilles Cocquempot, Pierre Cohen, Ms. Claude Darciaux, Mr. Michel Dasseux, Ms. Martine David, Mr. Marcel Dehoux, Bernard Derosier, Marc Dolez, dosed François René Alwyn, Julien Dray, Tony Dreyfus, Pierre Ducout, Jean-Pierre Dufau, William Dumas, Jean-Louis Dumont, Jean-Paul Dupré, Yves Durand, Ms. Odette Duriez, Messrs. Henri Emmanuelli , Claude Evin, Laurent Fabius, Albert way, Jacques Floch, Pierre Forgues, Michel Françaix, Jean Gaubert, Ms. Nathalie Gautier, Catherine Génisson, Messrs. Jean Glavany, Gaëtan Gorce, Alain Gouriou, Mrs Elisabeth Guigou, Paulette Guinchard-Kunstler, Mr. David Habib, Ms. Danièle Hoffman-Rispal, Mr. François Hollande, Serge Janquin, Armand Jung, Ms. Conchita Lacuey, Mr Jérôme Lambert, François Lamy, Jean Launay, Yves Bouillonnec, Gilbert LEUNG, Jean-Yves the Déaut , Jean-Yves Le Drian, Jean Le Garrec, Jean-Marie Le Guen, Jean-Claude Leroy, Michel Liebgott, Ms. Martine Lignières-Cassou, Mr François Loncle, Victorin Lurel, Bernard m., Bruno Le Roux, Ms. Marylise Lebranchu, Mr. Michel Lefait, Patrick Lemasle, Ms. Annick Lepetit, MM. Louis-Joseph Mahe, Philippe Martin, Christophe Masse, Didier Mathus, Kléber Mesquida, Jean Michel, Didier Migaud, Ms. Hélène Mignon, Mr. Arnaud Montebourg, Henri Nayrou, Alain Neri, Ms Marie - Renée Oget, Mr. Christian Paul, Germinal Peiro, Jean-Claude Perez, Ms. Marie-Françoise Pérol-Dumont, Geneviève Perrin-Gaillard, Messrs. Jean-Jack Queyranne, Paul Quilès, Bernard novel, Patrick Roy, Ms. Ségolène Royal, Mr. Michel Sainte-Marie, Ms. Odile Saugues, Mr. Henri Sicre, Dominique Strauss-Kahn Pascal Terrasse, Philippe Tourtelier, Daniel Vaillant, André Vallini, Manuel Valls, Michel Vergnier, Alain Vidalies, Jean-Claude Viollet, Philippe Vuilque, Eric Jalton, Jean-Pierre Defontaine, Paul Giacobbi, François Huwart, Simon Renucci, Ms. Chantal Robin-Rodrigo and Mr. Roger-Gérard Schwartzenberg, members;
The Constitutional Council, having regard to the Constitution;
Saw the Ordinance No. 58 - 1067 November 7, 1958 amended organic law on the Constitutional Council.
Seen the labour code;
Having regard to the observations of the Government, recorded July 25, 2005;
The rapporteur having been heard;
1. considering that the applicants after the Constitutional Council law in favour of small and medium-sized enterprises; they contest the conformity to the Constitution of article 95 thereof;
2. whereas this article supplements the III of article L. 212-15-3 of the labour code, concerning agreements or collective agreements providing for the conclusion of conventions of days for executives by a paragraph so written: 'the convention or the agreement may also specify that days conventions are applicable, on condition that they have individually given their agreement in writing '. ", non-management employees that the duration of working time cannot be predetermined and which have a real autonomy in organizing their schedule on the exercise of the responsibilities entrusted to them."
3. considering that the applicants argue that these provisions ignore the right to employment, the right to health and the right to rest guaranteed by the fifth and eleventh paragraphs of the preamble to the Constitution of 1946 as well as freedom of contract resulting from article 4 of the Declaration of the rights of man and of the Citzen of 1789;
4. whereas under the terms of the fifth paragraph of the preamble to 1946: "everyone has the duty to work and the right to obtain employment...". » ; only by virtue of its eighth preambular paragraph: "every worker participates, through its delegates to the collective determination of working conditions...". » ; that, according to its eleventh paragraph, the Nation «guarantees to all, including the child, the mother and old workers, the protection of the health, physical security, rest and leisure»; article 34 of the Constitution states: "the law determines fundamental principles... the right to work...". » ;
5. whereas, in the first place, that belongs to Parliament, in the exercise of its jurisdiction, to ask specific rules to ensure the right for everyone to get a job, at best, in accordance with the fifth paragraph of the preamble to 1946, while opening the benefit of this right to the greatest number, is at any time may appreciate the opportunity to modify previous texts or repeal these by substituting where appropriate, other provisions;
6. whereas it follows from what precedes that it was open to the legislature to extend to certain non-management employees the conventions of days regime established by Act No. 2000-37 of 19 January 2000 on the negotiated reduction of working time subject to do not deprive of legal guarantees the constitutional requirements for the right to health and the right to the rest of these employees resulting from the eleventh paragraph of the preamble to 1946;
7. considering that annual working days agreements can be concluded with employees non-management than whether they have real autonomy in the Organization of their work and if the length of their working time cannot be predetermined. whereas the conclusion of these agreements of package must be provided by a convention or an extended collective agreement or by an enterprise agreement, which inter alia determines the categories of employees concerned; that individuals must individually agree in writing; that they have to daily rest of 11 hours provided for in article L. 220 - 1 of the code of labour and the weekly rest period of 35 hours provided for in article L. 221 - 4 of the code; that the number of work days cannot exceed the ceiling of two hundred and eighteen days per year; that assuming all these conditions, Parliament has not deprived of legal guarantees the constitutional demands of the eleventh preambular paragraph of the preamble to 1946;
8. whereas, in the second place, that it is open to the legislature, after defining the rights and obligations relating to the conditions and labour relations, to leave it to employers and employees or their representative organizations clarify, notably through collective bargaining, the concrete implementing rules which it lays down;
9. whereas it follows from what precedes that section 95 of the Act, brought could refer to branch or company collective agreements or conventions defining the categories of employees concerned as well as the practical application of the conventions of days under the III of article L. 212-15-3 of the labour code; that this article does no infringement to the economy of collective agreements already concluded;
10. whereas it is appropriate, for the Constitutional Council, to raise any question of compliance with the Constitution, decides: Article 1 article 95 of the Act in favour of small and medium-sized enterprises is not contrary to the Constitution.


Article 2 this decision shall be published in the Official Journal of the French Republic.
Deliberated by the Constitutional Council in its meeting of 29 July 2005, attended by: M. Pierre Mazeaud, president, Messrs. Jean-Claude Colliard, Olivier Dutheillet de Lamothe, Mme Jacqueline de Guillenchmidt, Mr. Pierre Joxe and Jean-Louis Pezant, Ms. Dominique Schnapper, Mr. Pierre Steinmetz and Ms. Simone Veil.