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LOI SUR LE DIALOGUE SOCIAL ET LA CONTINUITÉ DU SERVICE PUBLIC DANS LES TRANSPORT TERRESTRES DE VOYAGEURS
Mr President of the Constitutional Council, ladies and gentlemen the members of the Constitutional Council, we have the honour to refer to you, in accordance with the second paragraph of Article 61 of the Constitution, the Law on Social Dialogue and Continuity of Public Service in the Regular Land Transport of Travellers.
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To measure the exact scope of the unconstitutionality committed in this law, you will first report on your jurisprudence on the constitutional right to strike, especially in public services.
According to the seventh preambular paragraph of the Constitution of 27 October 1946, confirmed by that of the Constitution of 4 October 1958, "the right to strike is exercised within the framework of the laws regulating it". From this provision you have learned various lessons.
(a) First, as you indicated in your founding jurisprudence of 25 July 1979 (79-105 DC), by enacting this provision, the constituents heard that the right to strike was a principle of constitutional value.
Thus, even if the right to strike - especially in public services - has not always "good press", even if it has been possible, sometimes, to be exercised abusively, it is not today unnecessary to recall this evidence: the right to strike is a constitutional right, inherent in a State of democratic law (it is not a coincidence that it is always and immediately challenged in the authoritarian states), the result of a long illegal act Moreover, it is one of the few rights of the second generation of fundamental rights that is protected as well as those of the first (freedom, equality...).
(b) Then, even if the strike, in order to be lawful, must proceed with a "coordinated" action of its authors in the context of a "collective" labour conflict, the exercise of the right to strike constitutes, for each person concerned, an individual right, a personal right. However, when the unit of work in conflict with the employer has only one employee, social and administrative jurisprudence admits that the employee can legally strike on his own (Cass. Soc. 13 November 1996, Bull. civ. V, No. 379; CAA Marseille, 18 June 1998, Ms. Thomas, AJDA 1998, p. 890. This right is therefore not a prerogative, a right of trade union organizations and, as the Court of Cassation states, "the right to strike constitutes a personal right that everyone can exercise without being bound by the law of the majority" (Cass. soc. 6 November 1985; Cass. soc. 19 June 1987). That is why the law here contested takes good care to state that, in the event of consultation within the company beyond eight days of strike, "its result does not affect the exercise of the right to strike".
(c) Moreover, contrary to what is sometimes affirmed in doctrine, if the seventh paragraph of the 1946 Preamble means that the legislative regulation of the right to strike is possible, this constitutional provision does not imply that this regulation is necessary for the right to strike to be effectively exercised.
(d) However, always according to this jurisprudence (taking into account that of the Council of State in the decision "Dehaene", EC 7 July 1950), by enacting that the right to strike was exercised within the framework of the laws that regulate it, you consider that the constituents have heard to mark that this right had limitations and have thus empowered the legislator to trace them by operating the necessary conciliation between the defence of professional interests, whose strike is
From this point of view, as long as the strike concerns a public service, you consider that the recognition of the right to strike cannot have the effect of obstructing the power of the legislator to bring to this right the necessary limitations in order to ensure continuity of public service which, like the right to strike, is a principle of constitutional value.
These limitations may even go to the prohibition of the right to strike to agents whose presence is essential to ensure the operation of the elements of the service whose interruption would affect the essential needs of the country.
But, apart from this last case, your jurisprudence on the right to strike in public services does not constitutionally allow legislators to allow business officials to establish a normal or quasi-normal public service in the event of a strike. In other words, in order to partially resume the conclusions of the "Mandelkern" report, as long as the continuity of service is established in principle with constitutional value, its conciliation with the right to strike must aim at a balance that cannot be established at the expense of one of the two principles: it must not result in it or excessive impairment of continuity by an exercise without limit of the right to strike, or a regulation likely to result in the name of continuity
Still says otherwise, and once again at the risk of giving evidence - that some would certainly like to see questioned -, the exercise of the right to strike in transport cannot be conceived without any embarrassment to the users. Therefore, except for employees assigned to the satisfaction of the essential needs of the country (among which we do not appear, it seems to us, the right of each person to be transported collectively in all circumstances) or to the security of the goods and persons transported (persons assigned to the regulation of traffic, for example), a regulation on strike in public services may not have the object or effect, without being contrary to the Constitution, of establishing a weak personal strike
As a matter of fact, both your jurisprudence (v. 79-105 DC of 25 July 1979) and that of the Council of State strongly opposed the establishment of such obligations: if the institution of a minimum service is possible, it is not lawful to make the unconditional satisfaction of a level of normal service or even to make the minimum service in a way that, in practice, results RFDA 2004, p. 306, Concl. J-H Stahl.
(e) Finally, with respect to the competent authorities to regulate, after the intervention of the legislator, the exercise of the right to strike, if the law cannot, in an unqualified manner, delegate to the Government, the administration or the operators the care to regulate the exercise of this right, except to commit a negative incompetence (80-117 DC), the law, on the one hand, may provide that a decree in Council of
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Referring to these rules and principles, it is then possible to demonstrate that the law in question exceeds the limits you have laid and, far from operating a balanced conciliation between contrary principles, violates many constitutional provisions.
(a) The law first affects the individual freedom to strike.
As noted above, the right to strike is an individual constitutional right, a personal right that every employee must be able to exercise freely without being bound by the law of the majority or a prior authorization from the employer or a third party, a union for example. However, in this case, the contested law infringes this constitutional right in two ways.
1. First, by confirming and aggravating the mandatory and prior intervention of representative trade unions on the triggering of the strike in public services of land transport, the law deprives non-unionized employees of their constitutional right to strike.
As is well known, since 1963, strike in public services can only be legally triggered if prior notice has been filed (article L. 521-3 of the Labour Code). The principle of this obligation is sound and, in the state of positive law, its modalities of implementation do not raise a constitutionality problem.
On the other hand, it is also known that this notice is lawful only if it "is emanating from the organization or from one of the most representative trade union organizations at the national level, in the professional category or in the company, agency or service concerned" (article L. 521-3, paragraph 2 of the Labour Code). However, in the present case, not only does the contested law confirm this trade union monopoly when it prohibits "sliding notice" (Article 3), but it aggravates it when, in Article 2, it decides that a notice of strike can only be filed after a preliminary negotiation in the company between the employer and "representative trade union organizations" took place under the conditions provided, according to the assumptions, by a decree or agreement,
As a result, with this system of mandatory prior negotiation and notice in the hands of only "representative trade unions", cannot and will not legally be able to trigger a strike in public transit companies:
- non-unionized personnel (or even unionized in fact, if the leadership of their representative union does not find the " opportune" strike), even though they are very predominantly in favour of triggering a strike;
- unionized personnel in non-representative organizations;
- all personnel of transport companies where there are no trade unions.
Moreover, with regard to the collective bargaining of the working conditions, if you have decided that the legislator could entrust it to the only trade union organizations (89-257 DC), you have also taken good care to clarify later that the provisions of the sixth preambular paragraph of the 1946 Constitution "would not, however, impose a monopoly on the representation of employees in collective bargaining" (96-383 DC). However, what is true for a collective right is a fortiori for the exercise of an individual right.
Thus, by depriving, with this pre-union, almost all the employees of the companies concerned of the individual right to start a strike through the filing of a legal notice (it is of course that the essence of the right to strike is that of triggering it and not of following it once it is "authorised" by another) and by exposing these personnel, in case they decide to exercise their constitutional right,
2. Then, the contested law infringes on the individual freedom to strike when, in section 5-II, it obliges employees of the transport company to inform, no later than 48 hours before the strike begins, the person responsible for the strike of his intention to participate in the strike.
Indeed, once again, the concern sought, a priori laudable, to allow the employer to organize sufficiently in advance the "minimum level of service" and the information of the users in the event of a strike, and despite the precautions taken by the law (confidentiality of declarations, penal sanctions), the obligation to declare themselves strike forty-eight hours before the start of the strike, together with the surplus of
In fact, the experience shows that this is not a trial of intent made to employers, especially if the employers are tomorrow required to pay very heavy contractual penalties in favour of the transport organizing authority in the event of a strike; In other words, employers, holders of a public service delegation agreement obtained after a fierce competition, especially financial, will then have a good game to indicate to their employees, within this long enough period of forty-eight hours, that a strike on their part will mechanically weaken the sustainability of the company. Is there not a mechanism to question the effective exercise of the individual right to strike in public services? It is possible to think so and to estimate Article 5-II of the law contrary to the Constitution.
(b) The law is then contrary to the Constitution in that it allows the transport organizing authorities to disproportionately infringe the right to strike employees of the transport companies in order to satisfy a multitude of rights, principles or objectives that do not have any constitutional value.
As noted above, your jurisprudence allows the legislator to limit (see prohibition) the constitutional right to strike at the moment when it comes to reconciling it with other principles of constitutional value, such as the principle of continuity of public service (79-105 DC), the protection of the health and safety of persons (80-117 DC) or the principle of equality (82-144 DC).
But, as also noted, this (delicate) conciliation exercise between the right to strike and in particular the rights of users must be conceived in a constant concern of balance, compensation, concessions where the interest of some can never prevail over that of others. In other words, because a strike in public services is always a priori embarrassing for users because it involves a "coordinated cessation of work" and not a "partial execution of work or service" (87-230 DC), a law to ensure continuity of public service in regular land passenger transport cannot, in the event of a strike, organize the service to ensure that users are not affected.
However, in the present case, Article 4-I of the contested law, resuming the self-proclaimed "constitutional principles" of Article 1, states that the transport organizing authority, to ensure the priority services necessary for the daily movement of the population in the event of a strike, must determine a minimum level of service that prevents a disproportionate breach of the freedom to go and come, to the freedom of public education It corresponds to the basic needs of the population. It must also ensure access to the public education service on national examination days and must take into account the special needs of persons with reduced mobility.
Certainly, far from us the idea of challenging that each of these needs is commendable and essential to the population. But accepting that the constitutional right to strike is necessarily limited by the AOT to ensure the minimum satisfaction of each of these needs seems to us not in accordance with the Constitution, for two reasons.
First, the right to strike can only be limited or prohibited if it contradicts another principle of constitutional value. However, it is important to note that most of the needs of the population whose law imposes minimum satisfaction do not, despite the affirmation of the legislator, have constitutional value. In other words, when the strike in transport temporarily affects the operation of the public service of education, there may be a "essential need of the population" but, in no case, a "essential need of the country" to resume the concept of your decision 79-105 DC. Therefore, by requiring that the AOT operate a conciliation between the right to strike and non-constitutional "rights", Article 4-I of the law allows the AOT to violate the Constitution and must therefore be declared non-compliant with the Constitution.
In other words, it is surprising to note that the provisions of the voted text open the possibility for local authorities to restrict the right to strike on the grounds that the legislator preserves the basic needs of the population that the legislator leaves to communities the task of defining.
The semantic parallel between the country ' s basic needs and the basic needs of the population is likely to justify all abuses a priori. Conversely, it seems to us that the number of fundamental rights is not the right of everyone to be "transported collectively in all circumstances." Finally, it is reasonable to think that the freedom to go and come is assured today in our country by the private use of the car, of which more than 95% of the French households are provided.
Secondly, by juxtaposing a very large number of population needs to be met obligatoryly in the event of a strike, section 4-I of the law suggests that the extent of the right to strike can be reduced to the number of such needs (e.g., to meet five needs, the AOT could reduce the right to strike to a maximum of 1/6). In other words, if, in the event of a strike in public transport services, the basic needs of other workers, students, sick people, people with reduced mobility, users of social services, businesses or the elderly must be met on a cumulative basis, what then remains the right to strike employees of the transport company? Therefore, for this other reason, by requiring that in the event of a strike a disproportionate violation of a too large and too vague number of needs of the population, section 4-I of the law will necessarily require the AOT to disproportionately infringe the right to strike and must therefore be declared non-conformity with the Constitution.
(c) The law is also contrary to the Constitution in that it violates the constitutional principle of free administration of local authorities.
With regard to the scope of the law here contested, it covers several transport organizing authorities (AOT) whose identification is now given by amended Act No. 82-1153 of 30 December 1982, known as the Inland Transport Orientation Act (LOTI) according to the modes of transport. To sum up, we will say:
- the State is AOT of railway services of national and international interest;
- the regions are AOT of railway services of regional interest;
- departments are AOT of non-urban road services of persons, school transport in the departmental territory and some non-urban services ferrous or guided (Article 18-1 of LOTI):
- the municipalities or their groupings (or groupings) are AOT of road or ferrous urban transport within the urban transport perimeter;
- the Ile-de-France transport union is AOT of all public transport in Ile-de-France.
Thus, as can be seen, almost all of the AOTs covered by the contested law are territorial or assimilated authorities.
In this case, that the law imposes new obligations on them in the exercise of their powers, we do not contest it. But that, on the other hand, it recreates twenty-five years after the decentralization laws of 1982 a prefectural guardianship over them, it seems to us contrary to Article 72 of the Constitution.
Indeed, according to Article 4-IV of the law, in the event of a lack of AOTs to define the service priorities and to approve the transport plans adapted to these priorities and the information plans of the users, the representative of the State can replace them and stop these desserts and plans.
It is to be said to remain forbidden before such a question of the free administration of the local authorities. Indeed, while all the evolution of the law of the organization of collective transport of persons has in recent years tended to entrust to the territorial authorities an exclusive competence (due to the remaining power of substitution of the prefect in the exercise of this jurisdiction), on the basis of which constitutional principle would the representative of the State have the right, not to refer this inaction to the courts or an administrative authority merely replacing the territorial authorities Says otherwise and to take an example, from the moment when a region is competent to freely organize on its territory and with its financial means the railway transport service, in the name of which principle superior its constitutional freedom not to organize a minimum service could it be totally questioned by the representative of the State?
This resurgence of guardianship is all the more certain that the deadlines set out in section 4-III of the Act to communities and transport companies are entirely unrealistic in view of the legal deadlines imposed, particularly by the general code of territorial authorities, for such procedures. It is in practice to condemn the territorial authorities to the fact that the prefects found the deficiency on 1 January 2008. It is in a way the setting up of automatic tutelage.
In addition, this article 4-IV is necessarily discriminatory in that it actually only targets the "Territorial AOTs" because it would be quite tasty that a prefect (of which department or region else?) replaces the lack of the Minister responsible for transport if the minister did not set priority desserts on the national grid in a timely manner.
In short, because it is too radical and brutal in the heart of one of the essential competences of the territorial authorities and that it denies it, Article 4-IV of the contested law is contrary to Article 72 of the Constitution and to your jurisprudence in this matter (the mechanism here contested seems to us, for example, even more contrary to the free administration of the local authorities than that you have censored in 1993-3.
(d) The law is finally contrary to the constitutional principle of equality.
According to section 4 of the passed law, the transport company must develop a transport plan tailored to the service priorities defined by the AOT - this transport plan must specify in particular the schedules and frequencies of service levels to be ensured in the event of a strike - and a user information plan. This transport plan must be included in the operating agreement between the AOTs and the transport companies, the signature of the contract which then approved the plan.
To the extent that this operating agreement will be either a public service market, or a public service delegation (according to the method of remuneration of the transport company), and that it is not imaginable that these clauses of continuity of service will be negotiated after the conclusion of the contract - to the extent that their content will affect the economic balance of the contract -, it is then necessary to postulate that, on the basis of the regulation of consultation of the enterprises
Therefore, beyond the obvious risk of "social dumping" that the mechanism of the law implies (the winning company will be the one providing the best continuity of the public service in the event of a strike), it seems to us that section 4 of the law has, in fact, for the purpose and effect of creating unconstitutional discrimination between the carriers of carriage that no difference of situation, between them, or consideration of general interest does not justify. In fact, only large transport companies will be able to present transport and information plans for attractive users in terms of service levels to be ensured in the event of a strike because, in the case - probable - where they would not be respected by the company (which is unrealistic in the event of a massive strike by the agents of the company), only these large companies will have the financial capacities to "pay" the minimal service not made both with the AOT (penalities) Similarly, only these large companies will be able to bear the cost of additional teams that could be recruited, possibly outside the company, to post, as part of the negotiations envisaged in the procurement procedures or conventions of DSP, the most efficient transport plans possible.
Thus, by requiring the transport companies present in the market of public contracts for the operation of the collective transport services to submit to the AOT, at the time of competition, the most "performing" transport plans in respect of levels of service to be provided in the event of a strike (contributing to also question the exercise of the right to strike among the employees of these companies), Article 4 of the law here contested is contrary to the principle
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For all of these reasons, we therefore have the honour, Mr.President, ladies and gentlemen, to ask you not to declare the entire law here under attack, in view of the fact that each of the contested articles is indivisible from the whole law.
