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Referral Constitutional Council Dated July 26, 2003, Presented By More Than Sixty Members, Pursuant To Article 61, Paragraph 2, Of The Constitution, And Referred In The Decision No. 2003-483 Dc

Original Language Title: Saisine Conseil constitutionnel en date du 26 juillet 2003 présentée par plus de soixante députés, en application de l'article 61, alinéa 2, de la Constitution, et visée dans la décision n° 2003-483 DC

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JORF n°193 of 22 August 2003 page 14346
text No. 3



Seizure Constitutional Council of 26 July 2003 submitted by more than sixty members, pursuant to Article 61, paragraph 2, of the Constitution, and referred to in Decision No. 2003-483 DC

NOR: CSCL0306782X ELI: Not available



LOI PORTANT REFORME DES RETRAITES


Mr.President, ladies and gentlemen, the members of the Constitutional Council, we have the honour to refer to your examination, in accordance with the second paragraph of Article 61 of the Constitution, the entire pension reform law.


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I. - Article 3 of the law and, as a result,
the whole text


This article sets out the principle that insured persons must be entitled to equitable treatment in respect of retirement, regardless of their past professional activities and the plan(s) they fall under.
By prescribing this rule, the legislator remained below his own jurisdiction and has not known both article 34 of the Constitution and the Preamble to the 1946 Constitution. Consequently, the principle of equality is unknown.
I-1. In particular, the eleventh paragraph of the said Preamble states that the Nation "ensure all, including children, mothers and old workers, the protection of health, material security, rest and leisure. Every human being who, because of his age, physical or mental state, economic situation, is incapacitated to work has the right to obtain from the community adequate means of existence."
It is clear that the right to a distribution pension is effectively reflected in the constitutional principles applicable to the social rights of the universality of citizens. But, beyond this principle that section 1 of the law intends to recall, it is important to consider that this right of retirement includes taking into account the inability of the tasks that each assumed during his or her life as a laborer. The link between the protection of the old worker, the right to health, rest, the physical and mental state, and the right to obtain assistance from the community under national solidarity, is no longer clear, the obligation of the legislator, when implementing this principle of constitutional value, to take into account the inability of the tasks performed by the workers.
But the law currently criticised is silent on this point.
I-2. It follows that people who, on the day of access to retirement, are in a more unfavourable situation as a result of the heavy task they have accomplished during their work life do not benefit from the treatment adapted to the objective and rational reality of their existence.
Thus, persons in different situations are treated identically, even though the 1946 Preamble, taken in its eleventh preamble, assigns the legislator to take into account these objective differences in situations.
The principle of equality is paradoxically unknown.
I-3. It is not, on this point, the catch-up session organized by section 12 of the Act, which provides that professional and trade union organizations are invited to engage in inter-professional negotiations on the definition and consideration of the sustainability of work, which may be a substitute for the duty of the legislator.
In any case, it is certain that the positive obligation that is directed to the legislator to take into account the sustainability of the tasks cannot be met by a collective bargaining which, in fact, will intervene only in several years.
Moreover, it should be considered that the results of this collective bargaining could not bind Parliament with respect to its competence to implement the eleventh preambular paragraph of 1946.
In these circumstances, by not taking into account the inability of the tasks as the principles of constitutional value that have just been recalled, the legislator has remained below its jurisdiction. Therefore, this law does not guarantee the fair treatment of retirees.
It follows that the censorship of this article 3, which is not separable from the rest of the text, will necessarily result in the invalidation of the entire law. It will not be able to do so unless it is the whole mechanism of the law that is affected by the absence of a constitutionally established criterion.


II. - On Article 5 of the Law


This article in its § III states that the insurance period necessary to benefit from a full-rate pension and the duration of the services and bonuses necessary to obtain the maximum percentage of a civil or military pension are increased by one quarter per year to reach forty and one annuities in 2012 unless, in the light of the report mentioned in § II of the same article, a decree issued after notices, made public, of the Pension Orientation Council
II-1. On the violation of article 34 of the Constitution and the eleventh preambular paragraph of the 1946 Constitution:
Such a mechanism ignores Article 34 of the Constitution and together the eleventh preambular paragraph of the 1946 Constitution, under which the Nation guarantees, in particular to old workers, material security, rest and leisure.
That, in the end, this article amends the duration of contributions for each worker and allows for further extension of this period of time required to assert his or her pension entitlements allows the regulatory authority to make such possible changes to the pension plan.
So that Parliament is dispossessed of its own jurisdiction. In this regard, and considering the importance of this mechanism for workers, it is certain that the change in the duration of the contribution by setting the number of annuities required to obtain a full-rate pension being determined by the legislation can only be altered through the same procedural path.
(i) Under these conditions, section 34 which sets the power of Parliament to vote the law is clearly violated. This is all the more serious because the material in question is, more or less, that of the guarantee to which each worker is entitled under the eleventh alienna of the 1946 Preamble. In fact, you come to recall very recently that it is up to the legislature to exercise fully the competence entrusted to it by Article 34 of the Constitution and that it must, in the exercise of this jurisdiction, respect the principles and rules of constitutional value (Decision No. 2003-475 DC of 24 July 2003, considering 20).
With regard to the implementation of a principle of constitutional value, the legislator should either exhaust its jurisdiction or, in any case, retain the competence to modify the mechanism so established.
However, in this case, § III of Article 5 provides the possibility for the executive branch to modify, proprio motu, the rule fixed by the legislator. It is in no way a decree of application of the law, but the power of the executive to amend the rule set by the legislator (see report No. 898, Volume I, Mr. B. Accoyer, pages 106 and 107).
The circumstance that the decree that could be adopted to change the duration of the contributions would be on the advice of the Pension Guarantee Commission and the Pension Orientation Council does not purge the vice of unconstitutionality so denounced. There could even be an aggravation, if possible, of the grievance. It is, in this regard, at the very least surprising that a provision of a legislative nature may be amended by the regulatory authority of its own initiative after consulting bodies but at the expense of the powers of Parliament. In addition, it is important to question the scope of these opinions. If these, and the indetermination of the article on this point strengthens the criticism of negative incompetence, binds the executive branch, then it must be considered that the power of Parliament to implement a constitutional right of value is transferred to administrative bodies.
This is all the less permissible because the use of the decree to amend the law is the hypothesis of the adjustment of the mechanism. It must be admitted that the scope of such a provision is very mysterious. This adds to the imprecision of the terms of the law.
In other words, it is a simple decree that can force citizens to contribute longer than what the legislator has determined in this Act. We understand the Government's interest in a new debate on this issue in Parliament. We can't admit it constitutionally. We must refuse it on behalf of democratic principles.
Thus, one cannot imagine a violation of article 34 of the Constitution more blatant.
(ii) It is in vain that the duration of the contributions would be tried to state in any event that the regulatory authority is competent. Assuming, for the sake of reasoning alone, that is correct, it would remain that the Parliament, having decided, sovereignly, to legislate on this subject, as it can (Decision No. 82-143 DC of 30 July 1982), has sole jurisdiction to derogate from it.
The only alternative would be to use the procedure of Article 37, paragraph 2, of the Constitution. In the absence of the use of this unique path, and which is not relevant until the law has entered into force, it is not possible for the executive branch to amend a legislative provision.
(iii) The ominous assumption that the legislator would have given the executive power, in an extinguishable manner, to take a piece of legislation.
It would be a failure to comply with the procedure of Article 38 of the Constitution allowing Parliament to temporarily and accurately empower the executive.
It is therefore certain, and this can only surprise even the authors of the referral, that the legislator has committed a blatant negative incompetence.
II-2. On the lack of understanding of the principle of clarity of the law and the objectives of constitutional value of intelligibility and legibility of the law:
The constitutional value of these principles and objectives has been recognized on several occasions (Decision No. 99-421 DC of 16 December 1999). If a certain degree of complexity of the law can be admitted as long as the recipients of the text are supposed to possess a certain degree of legal and technical knowledge (Decision 2000-437 DC of 19 December 2000), it is certain, on the other hand, that the law must be easily accessible when the recipients form all citizens.
In the present case, § III of Article 5 of the Creed Law makes it particularly difficult for the effective and objective information of the persons entitled to the law as long as the conditions for the application of the law are likely to be altered by a decree. It is difficult to know the conditions for the application of a law that could be "adjusted" by a lower rank text in the hierarchy of standards.
In reality, citizens will never be able to know with certainty the number of quarters of contributions required to ensure a liquidation of their pension rights with a full rate. Indeed, it should be recalled, the time frame for the implementation of this increase in the number of quarters is that fixed by § III of Article 5 qurelled, "except if" a decree comes, one day or the other...
The predictability of the law, the legitimate confidence that each citizen must have in the law being applicable to it, the necessary legal security in a democratic society, are here referred to pious vows. The Republic cannot satisfy itself.
The desire expressed by the President of the Republic, during his televised intervention on 14 July 2003, to see the French and French informed of their rights in this regard can be difficult to exercise. The best to meet this high desire for clarity of the law is therefore the censorship of a conditional legislative system.
II-3. On the violation of the principle of equality:
One of the constitutionally unacceptable consequences of this section 5 of the Act is to introduce in the law of pensions the elements of a differentiated treatment of workers in an objectively identical situation under the law.
The extension of the contribution period through the Order-in-Council, even taken on the advice of two specialized commissions, will lead to the treatment of persons in the same situation differently on the day of the payment of their retirement due to the adjustment decided by the Executive in petto.
It appears to be inconsistencies with the principle of equality that a regulatory text may modify the conditions for the realization of a law as desired by the legislator.
From this leader again, censorship is inevitable.


III. - On section 32 of the law


This article amends Article L. 351-4 of the Social Security Code by providing that socially insured women receive an increase in their term of insurance for any year in which they raised a child, under conditions fixed by decree, within eight quarters per child.
Such a provision paradoxically ignores the principle of equality between women and men. Your jurisprudence is, in this regard, constant and you censor any discrimination related to different treatment of people in objectively identical situations.
In this case, if one can only support the principle of such an increase for the benefit of women, it is certain that there is no objective and rational reason justifying that men are excluded from the benefit of such a right as long as they have also raised their child.
In this regard, it will be only recalled that article 371-2 of the Civil Code states that "the authority belongs to the father and mother to protect the child in his safety, health and morality. They have a duty to keep, monitor and educate them." As for section 203 of the same code, it provides that "spouses, by marriage alone, are obliged to feed, maintain and raise their children."
The mother and the father have identical rights and duties. Certainly, equality between women and men also goes through this domestic equality (see in this sense, for application to the situation of civil servants: EC 29 July 2002, Griesmar, Application No. 141112, F. Lamy conclusions).
The unequal treatment of the article here criticized leads, implicitly, the woman to be frozen in a role that should also be shared. The partial application of this bonus would be likely to challenge, insidiously, the ongoing conquest of equality between women and men. Such a mechanism leads to the fact that in a couple, it is the woman who must remain in the home to enjoy this right. However, it is for the least desirable that the objective of domestic parity leads to leave the free choice, in each home, for a family organization where man and woman can also spread the daily tasks.
Certainly, it would at the very least be paradoxical that the vice of unconstitutionality of which the present provision is entered leads to the invalidation of an article making women enjoy such a right. In this regard, it is not possible to imagine that the legislator has voluntarily placed such inequality in the law to make it disappear, because of the censorship to intervene, any advantage of this nature with the financial interest likely to be attached to it.
The question is, therefore, that men are entitled to the same right as that accorded to women, and not to deprive them.
That is why, considering that the Constitutional Council does not have the power to transform a man into a woman, it remains the possibility to tell the legislator that the consequence of this unconstitutionality necessitates it to amend, as soon as possible, the law in order to restore equality thus violated (Decision No. 2003-468 DC of 3 April 2003).


IV. - On section 48 of the law


This article amends section 12 of the Civil and Military Pension Code. In its 2nd, it replaces the current b of this article 12 by a writing that the public servants will not be able to benefit from a one-year bonus for children born before 2004, only on the condition that they have "interrupted their activity under conditions prescribed by decree".
This article is based on the vice of negative incompetence (IV-1) and ignores the principle of equality (IV-2).
IV-1. On the lack of understanding of Article 34 of the Constitution:
According to Article 34 of the Constitution, the law also sets the rules concerning "the fundamental guarantees granted to civil and military officials of the State".
By amending the regime for the award of child-bearing bonuses, and by apparently restoring equality between women and men as imposed by the jurisprudence of the Court of Justice of the European Communities and of the Council of State (CJCE, C366/99, Opinion, 29 November 2001, Griesmar, CE 29 July 2002, referred to above), the criticized article remained in short of the jurisdiction reserved to the legislator.
By referring to the decree, in fact, the determination of the conditions for the interruption of activity that opens up the right to this enhancement, Parliament has misunderstood the power to specify the guarantees granted to officials. In particular, this duty of precision is the direct result of the constitutional principle applicable in this regard by the 1946 Preamble.
It follows a risk of deprivation of legal guarantees of constitutional requirements.
This is all the more so because the definition of this condition of opening the right to bonus will result in a breakdown characterized by equality.
IV-2. On the violation of the principle of equality:
This violation is measured from a triple point of view.
In the first place, the provision of a new condition, the interruption of activity, in order to be able to benefit from the right to care for dependent children, applicable as children were born before or after January 1, 2004, introduced a differentiated treatment between persons objectively in identical situations. The burden of education for children is, in this regard, indifferent to the effective interruption of activity. Especially since, as a result of constant jurisprudence, the employee pension is an extension of the treatment for services rendered. As a result, officials who have had children during the same period of service will be likely to have different plans for their deferred entitlement.
Secondly, and in a pernicious way, it is a matter of closing the access of this right to men and, without saying so, failing the community jurisprudence and the administrative judge in matters of equality between women and men. By placing the principle of the interruption of activity, under unpublished conditions to date, the legislator tries to restrict the opening of this right to men as long as, in fact and most of the time, it will be the woman who will be forced to stay at home.
As previously noted, obligations under the Civil Code relating to the education and custody of children also apply to parents, whether married or not. By setting a criterion related to the interruption of activity, section 48 reintroduces inequality within the couple.
Instead of fostering domestic equality, and like what he did through article 32, the legislator, indirectly, tries to force women to stay in the home.
Finally, the legislator, by providing that these new provisions are applicable as of May 28, 2003, has granted a retroactive scope to this provision.
Certainly, the authors of the referral do not know that the non-retroactivity of laws is constitutional only in certain cases, such as criminal matters. However, it is assumed that, under a certain idea of legal security, you censor the legislative provisions whose retroactive scope is not justified by any sufficient general interest (Decision No. 98-404 DC of 18 December 1998). It will be added that this general interest cannot be reduced to a mere financial interest (Decision No. 95-369 DC of 28 December 1995) and that the retroactive measure cannot deprive a requirement of constitutional value of a legal guarantee.
However, in the present case, no general interest, and certainly not sufficient, comes to justify such a retroactive measure. Much more. This provision deprives public servants of the guarantee that they are entitled to a bonus per dependent child. Finally, this provision will, as a result, be unsurely intended to challenge situations acquired before the courts in accordance with the Griesmar (precise) case law, under which male officials benefited from this enhancement.
Of all these leaders, censorship is running.


V. - Sections 51 and 66 of the Act


These articles amending sections L. 13 to L. 17 of the Civil and Military Pension Code have the effect of decreasing the remuneration of each annuity to the level of 1.875 per year of service and bonuses.
They ignore the principle of equality between public servants.
Staff pension is a continuous or deferred salary for services rendered. You have ruled that, like the remuneration of the agents of the current state, they constitute a burden by nature of the State, the principles of budgetary unity and universality that hinder their failure to be traced back to the law of finances, or financed by resources that it does not determine (decision 94-351 DC of 29 December 1994). In addition, you have considered the pension to be a continuation of the salary, with the staff members in the same status as in the case of the rights and obligations attached to their duties during the active period of their career (decision No. 85-200 DC of 16 January 1986, considering 8).
It is in the same sense that the Court of Justice of the European Communities ruled by considering that they enter the scope of Article 119 of the EC Treaty (CJCE 29 November 2001, referred to above; CJCE 13 December 2001, Mouflin, C-206//00).
This is, in fact, a delayed treatment (see Mr. Hauriou, Administrative Law, 1911, 7th edition, p. 648). This is confirmed by the Council of State by considering that "retirement pensions are, for public officials, deferred remuneration intended to provide them, or to provide their beneficiaries with material living conditions in relation to the dignity of the past functions of these agents" (EC 6 February 2002 Bab Hamed).
Section L. 1 of the Civil and Military Pension Code confirms that.
(i) Therefore, it is certain that any period of service performed at the same time by two staff at the same grade and level must be paid under the same conditions. As per section L. 1 of the above-mentioned code, it is the remuneration of the services performed until the regular termination of the duties, which applies to the rate of pay of the annuities already performed.
Certainly, you have found that no rule or principle of constitutional value guarantees the intangibility of liquidated pension rights (Decision No. 94-348 DC of 3 August 1994).
But in this case, the question is different since it is a provision that will have the effect of applying different rates of pay according to the annuities already made. That this change will take place for the future is constitutionally correct. That, on the other hand, this change takes place retroactively seems to be contrary to the very nature of the employee pension.
Under these conditions, these constitutional principles are opposed to the fact that annuities made before 2004 or bonuses born before 2004 are paid at a different rate than that of 2% per liquidable annuity as currently in force.
(ii) The new wording provided for in Article L. 17 of the Code provides that the guaranteed amount is calculated by applying the regulations in force the year of the winding-up of the pension.
Such a provision breaks equal treatment.
In fact, staff members will be subject to different legislation according to the hazards and workloads of pension management services. Thus, they will be applied the guaranteed amount either of the year of their removal from the executives, or of the following year if the hardware payment transactions have been delayed.
This inequality of law will be aggravated by the provisions of § V of Article 66 which provides for the degressive consideration of bonuses between 2004 and 2005.
The criterion chosen by the legislator is neither objective nor rational, the mechanism thus established will necessarily result in disregarding the principle of equality. The result would have been anything else if, instead of this reference to the liquidation year, the legislator had founded the application of the text on the date of delisting of executives, which is acquired with certain date by a certificate or a grant of pension rights. It should be recalled that between the time or the delisting of the executives is performed and the actual payment time, several steps are taken: the calculation by the manager service then the transfer of the service file in charge of the payment then to the computer services. Payment arrives at the end of this journey.
All hazards that may arise from one service to another for a thousand reasons, and which will therefore have different regulations applied to officials who have been removed from the executives on the same date.
The choice of the liquidation criterion, which does not correspond to any time of certainty, is likely to break the equal treatment between the grievors.
It must be added that such an aeas-fed mechanism can only ignore the principles of clarity, intelligibility and accessibility of the law. It is simply impossible, for civil servants, to know with certainty the rules that will be applicable to their situation if they are likely to vary in material terms of implementation.
From these leaders, censorship is running.


VII. - On section 54 of the law


This section provides that, for its application, the winding-up rules are those in effect at the time of payment.
The same grievances must be directed against this provision.
By retaining a criterion for the application of the law that may vary from service to service, for material reasons, section 54 can only lead to applying different rules to objectively identical situations.
Censorship is also certain.


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We ask you to believe, Mr President, ladies and gentlemen, the members of the Constitutional Council, in the expression of our high consideration.
(List of signatories: see decision No. 2003-483 DC.)


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