Key Benefits:
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.
In support of this referral, we develop the following grievances.
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Introductory title, the authors of the referral intend to recall their constant commitment to the defence and promotion of public services in general and to the public passenger service in particular. Moreover, they consider that the satisfaction of the essential needs of the country, and thus the preservation of public order, cannot be sustained without real conciliation between the constitutional principles of protection of fundamental freedoms and rights, in this case the right to strike and continuity of public service.
From this point of view, the appellants consider that a real and effective response to the expectation of citizens cannot be based on a legislative framework that, failing to technically implement a so-called minimum service in the field of land transport, has a disproportionate character with the purpose of the law and contradictory since the passed law will result in the inverse effect of the one announced.
In addition, legislating in the emergency and referring to the results of opinion polls could be devised if the bill passed by Parliament was in real connection with the expectations expressed.
That is unfortunately not the case. In reality, the intent of the legislator is to be masked at the expense of the real object of the law, which does not resolve any of the questions raised with regard to social dialogue and continuity of public service.
The law referred cannot therefore be regarded as respectful of the constitutional principles of protection of fundamental freedoms and rights, such as the right to strike and the continuity of public service and their necessary conciliation, which it claims to defend and promote.
Thus, in order to measure the exact scope of the unconstitutionality committed in this law, the authors of the referral wish to briefly recall the jurisprudence of the Constitutional Council on the right to strike, in particular in public services, and on the conciliation between this constitutional right and the principle of continuity of public service, which as well as the right to strike is a principle of constitutional value.
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. A law that would regulate the right to strike could not automatically be considered in accordance with the Constitution.
Thus, the framework for the intervention of the legislator was clearly specified on the occasion of the founding decision No. 79-105 DC of 25 July 1979, by which the Constitutional Council explicitly stated that the constituents had heard to mark that the right to strike was a constitutional principle, whose limits of exercise must be drawn by the legislator on the condition that "the necessary conciliation whose strike is an infringement, and the safeguard of the general interest to which is
In accordance with the jurisprudence of the Constitutional Council, "the recognition of the right to strike cannot be an obstacle to the power of the legislator to bring to this right the necessary limitations in order to ensure the continuity of the public service which, like the right to strike, is a principle of constitutional value" (Decision No. 79-105 DC). In other words, this conciliation cannot make virtual neither the exercise of the right to strike nor the continuity of public services.
The limits that legislators can bring to the right to strike must be necessary and can only be justified by other constitutional considerations. Conciliation between two principles of constitutional value cannot be established at the expense of either of these principles. Limitations may in some cases go up to "the prohibition of the right to strike to agents whose presence is indispensable for the operation of the elements of the service whose interruption would affect the essential needs of the country" (Decision No. 79-105 DC).
With the exception of employees and agents assigned to satisfying the essential needs of the country, your jurisprudence has therefore always allowed the legislator to set limits to the constitutional right to strike as soon as it is to reconcile this right with other principles of constitutional value.
Unless the right to use collective land transport in all circumstances forms part of fundamental freedoms and rights, and the interruption, or simply limitation, of regular passenger transport services would affect a vital need of the country, the legislator cannot, therefore, in the name of the continuity of public service, impose a restriction on the right to strike such that its exercise would become impossible, nor, by an exercise without limitation of the right to strike, affect the right to strike
In reality, the freedom to go and come, consecrated as a principle of constitutional value, does not confuse itself with the right to use collective land transport in all circumstances. It cannot be validly opposed to the constitutional right to strike, since the strike does not deprive the user of going and coming, but simply to reduce the offer of transport services, so deprive him of a way to go and come. His freedom to move is not completely hampered by the strike alone.
Ultimately, the Constitutional Council has systematically carried out a check of proportionality between the right to strike and the continuity of public service. The right to strike constituted a fundamental freedom, it appears in the very terms of the jurisprudence of the Constitutional Council that "the law can only regulate its exercise in order to make it more effective or reconcile it with that of other rules or principles of constitutional value" (Decision 84-181 DC of 10 and 11 October 1984).
Decisions No. 80-117 DC of 22 July 1980 and No. 82-144 DC of 22 October 1982 established the necessary conciliation between the constitutional right to strike and the protection of the health and safety of persons and the principle of equality.
The legislator was able to supervise the exercise of the right to strike provided that the limits laid are necessary to safeguard the general interest. The case law of the Constitutional Council then applied to institutions holding nuclear material.
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I. - On the lack of awareness of the legislator's jurisdiction over the regulation of the exercise of the constitutional right to strike
The regulation of the right to strike is the responsibility of the legislator. In this context, the Constitutional Council declared a provision in conformity with the Constitution to the extent that it did not include "no delegation for the benefit of the Government, administration or operators of the care to regulate the exercise of the right to strike" (Decision No. 80-117 DC of 22 July 1980).
The exclusive competence of the legislator to regulate the exercise of the right to strike can be delegated only to social partners, taking into account the combined provisions of Article 34 of the Constitution, according to which the law determines the fundamental principles of labour law, and the eighth preamble to the Constitution of 27 October 1946, which establishes the principle of the participation of workers in the collective determination of working conditions and in the management of enterprises. After an appropriate consultation, employers and employees, through their representatives, can clarify the concrete modalities for the implementation of the rules enacted by the legislator.
This jurisprudence shows that the exercise of the right to strike cannot be confined to conditions not provided for by the legislator. However, several provisions of the criticized law do not respect this principle.
1. Section 2 of the Act sets out the procedures for negotiations between transport companies and trade union organizations for the signature before January 1, 2008 of a so-called framework agreement organizing a conflict prevention procedure.
Similarly, negotiations should also be organized at the branch level. These negotiations relate to the modalities for the exercise of the right to strike. If no agreement at the company level or at the branch level could be signed on 1 January 2008, a decree in the Council of State will set the rules of the negotiation procedure.
Parliamentary work has clearly indicated the nature of this decree. As part of the second session on Tuesday, July 31, 2007 in the National Assembly, the Minister of Labour, Social Relations and Solidarity said in this order: "It is absolutely not a decree of application, but a decree with a complementary vocation" (the summary record of the National Assembly, p. 3).
A Legislative Decree could fully, within the framework of the constitutional jurisdiction of the legislature, organize and supervise the exercise of the right to strike. From the moment when the decree provided for in Article 2 of the Law is not considered to be such, but as a decree of another nature that is intended to override the lack of agreement, it constitutes a delegation of normative powers that escape the precise will of the legislator.
This risk is all the more so because the legislator's obvious concern about a commitment by the President of the Republic leads him to insert the negotiation between social partners on a conflict prevention procedure within such a short period that does not allow for a serene and constructive dialogue given the first purpose of the law on the facilitation of social dialogue.
Negotiations that begin on the day on which the law was promulgated cannot be undertaken with the prospect of the issuance of a decree within a very short period of a few months, which would not be a decree of application of the law, at the risk of distorting the subject matter of the negotiation, and thus the second object of the law on continuity of public service.
At the very least, in order to respect its jurisdiction, the legislator should have provided for a new legislative provision, in the event of a lack of agreement before the deadline of January 1, 2008, in order to allow the continuation of the negotiations under legally secured conditions, instead of giving up to the regulatory authority the exercise of its competence to define a constitutional right. By not doing so, the legislator ignores the right instead of defining the conditions of exercise.
Moreover, the so-called framework agreements to be signed by employers and representative trade union organizations before January 1, 2008 within companies, do not correspond to a very defined legal concept, a contrario to the notion of a business agreement. When it comes to defining and governing the exercise of the constitutional right to strike, the legislator's responsibility is to make explicit reference in the law to specific legal concepts of common law.
2. Article 4 I imposes on the transport organizing authorities the task of defining, after consultation with the users when there is a representative structure, the priority desserts in the event of a predictable disruption of the traffic that is part of the strike.
Any transport operator authority is therefore required to set the frequencies and hourly ranges of service levels to ensure the priority desserts it has defined. Accepting that the supervision of the constitutional right to strike is thus entrusted to transport authorities, mainly to territorial authorities, is not in accordance with the Constitution.
The exclusive jurisdiction of the legislator in the regulation of the right to strike is highly unknown. It is clear that the exercise of the right to strike will be framed and limited by each transport organization authority from its own priority service plan.
This article does not simply provide that the transport organizing authority defines a level of service according to the importance of the disruption, in this case the extent of the strike movement. It imposes on the transport authorities the task of defining the desserts to reconcile very different nature and scope rights by referring to the essential needs of the population and not to the essential needs of the country in accordance with the jurisprudence of the Constitutional Council.
Define priority service in the event of a strike after consultation with users and associations representing them in order not to disproportionately affect the needs of transport users cannot be considered without consequence on the conditions of exercise of the right to strike, unless there would be no link between the extent of traffic and the number of agents available to ensure it.
The juxtaposition of a large number of population needs to be met obligatoryly in the event of a strike places the transport organizing authorities in a situation that goes far beyond their competence. This article depends on the exercise of the right to strike the will of local authorities to be able to meet each of these different needs simultaneously.
Of course, each of these needs is laudable, but it is illusory to imagine that no more embarrassment is caused to users in the event of a strike, even after the vote of the law. Not to mention that these different needs can conflict with each other. This article introduces the idea that the right to strike should be framed in proportion to the number of needs to be met, to the extent that the transport organizing authority is required to respect them in a cumulative manner.
To the extent that the law does not impose the implementation of a minimum service, but simply provides for the implementation of procedures for the supervision of the right to strike, the organizing authorities are therefore placed in a paradoxical situation, contrary to the Constitution. By juxtaposing a large number of needs of the population to be met by the transport organizing authority in the event of a strike, the law simply allows it to determine the extent of the right to strike in public services of regular passenger transport.
The transport authorities cannot take the place of the legislator, nor of the social partners who implement the principles of labour law enacted by the legislator, to supervise in such conditions the exercise of the right to strike.
It is exclusively for the legislator to define the rules governing the right to strike and to achieve conciliation between the right to strike and the continuity of public service. This competence cannot be delegated to any authority. The provision that establishes it must be censored.
3. Article 5, I, provides for the commencement of negotiations in transport companies between employers and social partners for the signing before January 1, 2008 of a service predictability agreement in the event of a predictable disruption of traffic or strike.
Such an agreement is intended to identify individuals and means essential to the execution of the appropriate transport service. In the absence of an agreement applicable on January 1, 2008, the employer is responsible for defining the predictability plan.
There too, such agreements give limits to the exercise of the right to strike. The article specifies what staff are available in the event of a strike. In addition, the difference between staff does not coincide with the Constitutional Council ' s jurisprudence on professional activities that may be interrupted without affecting the country ' s essential needs. The definition of employees who should thus enter the scope of continuity of public service will not be in conformity with the purpose of the predictability agreement.
Beyond the fact that negotiations between social partners are inserted within a few months of not allowing for a serene and constructive dialogue in view of the first purpose of the law on the facilitation of social dialogue, it appears once again that the legislator leaves the care to the sole employer to define the plan of predictability, and thus to indirectly regulate the exercise of the constitutional right to strike.
By allowing the employer to define by profession, by function, by skill level, by qualification level the agents and employees who will be assigned to the necessity of continuity of public service according to the desserts defined by the organizing authority, the legislator operates a delegation of supervision of the right to strike, without taking into account the fact that the presence of a particular employee can only be made mandatory for the sole purpose of satisfying essential needs of the country.
Not only is the legislator's jurisdiction over the supervision of the right to strike unrecognized, but in addition, the employer can go beyond what the Constitutional Council's jurisprudence imposes on legislators. Not to mention that at least implicitly the exercise of the right to strike could be prohibited to employees according to the content of the pre-visibility agreement defined by the sole employer.
II. - On the disproportionate and inoperative nature of the law in respect of its object, its inaccuracy and the questioning resulting from the conditions of exercise of the right to strike
In all circumstances, the legislator cannot implement provisions that would be inoperative and disproportionate to the purpose of the law. The Constitutional Council does not have a discretionary power identical to that of Parliament. Thus, the Constitutional Council cannot exercise control over the appreciation of the Parliament's means of achieving its objectives. However, it may always conduct a proportionality check between the subject-matter of the law and the provisions passed.
In this case, such control is required to the extent that the purpose of the law, to facilitate social dialogue on the one hand, and to ensure on the other hand the continuity of public service in the regular transport of travellers, is achieved by means of provisions leading to the supervision and questioning of the constitutional right to strike, without that supervision being a priori recognized by the legislator as part of the object of the law.
At this point, part of the conclusions of the "Mandelkern" report of July 2004. It appears that the establishment of a normal service at so-called peak hours on strike days in regular passenger transport companies is technically impossible unless the number of strikers does not exceed 10%. Such a scenario has the advantage of simplicity and is easily understood by public opinion. However, the continued operation of nearly 90% of the driving, regulating and controlling personnel involved in this process is indisputably affected by the constitutional right to strike.
Similarly, the definition of days or periods during which the strike would be damaging to users would require staff to be present in contradiction with the constitutional right to strike.
The technical and constitutional impossibility of implementing a minimum service in the terms announced during the campaign for the presidential election by the current President of the Republic requires the legislator to put in place a very different device. However, it does not prevent him from continuing to display his will to establish a minimum service and to claim that the law contributes to it.
This discrepancy between the announced effect and the actual purpose of the law fully justifies the control of proportionality of the Constitutional Council, since the law leads to the exercise of the right to strike without improving the continuity of public service.
This control must also be exercised under the same conditions on the precise and intelligible character of the law.
1. Article 2, and in particular its II, establishes a pre-negotiation period prior to the commencement of a strike in the regular land transport companies of passengers.
Article 2 establishes a procedure for the prevention of conflicts by negotiation before the strike. Thus the filing of a notice of strike can only take place after negotiation under the conditions provided for by a so-called framework agreement. However, the legislator imposes a number of rules on this procedure.
It starts at the time of notification to the employer of the grounds for which the notice of strike is being considered. Within a period not exceeding 3 days, from the notification, the employer must bring together representative trade union organizations that have made the notification. In addition to this period, there is another period of up to 8 frank days and during which pre-conference negotiations on the content of the notice must take place between the employer and the representative trade union organizations that have notified the reasons for the filing of a notice.
This new procedure specific to regular passenger carriers precedes the notice provided for in Article L. 521-3 of the Labour Code, for a period of 5 frank days during which the employer and the trade union organizations concerned are required to negotiate. In total, the combination of these provisions indicates that the period between notice of notice and strike is increased from 5 to 16 frank days.
The maximum pre-negotiation period in regular passenger transport companies may be considered excessive in relation to the subject matter of the law. Such a period does not result in facilitating social dialogue.
On the contrary, the inaccuracies of the law strongly contradict the process of social dialogue among companies. Indeed, section 2 I provides that the filing of a notice may only take place after a preliminary negotiation between the employer and the trade union organization(s) that are considering giving notice.
This wording suggests that there would be a "prepared agreement" between trade union organizations, in the case that there would be several of them in the company, on the content of the notice and that, in the absence of such an agreement, there would be no possibility for another representative trade union organization to consider the filing of another notice relating to complementary or even different claims, whereas today article L. 521-3
Such inaccuracy leads to an obstacle to the exercise of the right to strike for employees of the same company, since in the same company the Labour Code currently allows each trade union organization to give notice.
In addition, the period of pre-emption to a maximum of 16 free days is excessive, since it does not allow for adequate conciliation between the exercise of the right to strike and the continuity of the public service. Such a length reserved for the duration of negotiations does not guarantee success in any way.
The law does not specify that within that time the employer is prevented from implementing the provisions that would justify notification of notice of strike. This negotiation and its duration are not intended to establish the service at the time of the strike. They are not intended to inform users of traffic forecasts. They must only allow a debate on the demands of employees and the employer's ability to respond. This additional period of 11 frank days therefore differs from the 5-day advance notice provided for in Article L. 521-3 of the Labour Code.
Except for failing to know the reality of companies, such a length of time is disproportionate and inoperative with respect to the purpose of the law. This is all the more true that it applies in the same way within a national company to all employees and to some of them for a category or local claim. It also applies in the same way to a local company with only a few dozen employees.
2. The conflict prevention procedure provided for in Article 2 concerns all notices, including those relating to claims outside the company.
The parliamentary debates made it clear the legislator's intention with respect to the scope of the law and in particular with respect to section 2. At the second sitting of Tuesday, July 31, 2007 of the National Assembly, the Minister of Labour, Social Relations and Solidarity stated that inter-professional conflicts should be subject to the bargaining procedure between the employer and representative trade union organizations that consider giving notice, as provided for in this article (Analysis of the National Assembly, p. 25).
This precision leaves perplexed as to the negotiations to be conducted within the regular passenger transport company on the basis of a notice regarding claims outside the company. In such circumstances, what can employers and trade union organizations do, what can be the margin of discussion of the employer of a transport company, whether it be the president of the National Railway Corporation, or the leader of an urban transport company of a city of province, of a company that ensures the school transport at the departmental level, if the notice relates to an interprofessional claim, in connection with Government
In total, the disproportionate and inoperative nature of the provisions of Article 2, its inaccuracies have seriously affected the conditions for the exercise of the constitutional right to strike, without direct connection to the object of the law or even in contradiction with its object.
In doing so, the legislator implements a disproportionate, inoperative and unclear system resulting in the supervision of the conditions for the exercise of the constitutional right to strike without improving the continuity of public service justified by the defence of essential interests of the country.
3. Article 5, II, requires employees who intend to strike to inform their employers within 48 hours and provides for disciplinary sanctions for those who have not done so.
The right to strike is an individual right that is exercised collectively. This pre-reporting statement proves to be inoperative in the light of the legislator's desire to facilitate social dialogue and ensure continuity of the regular ground transportation service of passengers.
For the sole purpose of escaping sanctions in the event of non-reportation, employees may declare themselves "preventively" strikers, without their intention being personally established. In a certain way, this provision replaces the employee in a subordination report to which the individual right to strike allows him to escape.
It appears that the implementation of the transport plan will be distorted on the basis of statements imposed under the pressure of the sanctions perspective. This is all the more proven that the sanctions in question will be disciplinary in nature as provided for in the company's rules of procedure, which can go to the individual termination. If there are no rules of procedure, only the employer will be able to assess the nature and extent of the penalty.
Such a provision is simply counter-productive in relation to the purpose of the law. Inevitable precautionary statements are not of a nature to allow the company to establish a transport plan in accordance with the reality of the strike.
In addition, employees who would like to join the conflict once the conflict began could no longer do so without being able to meet the 48-hour deadline. They would also be subject to disciplinary sanctions as provided for by the possible company's rules of procedure.
The combination of the II of Article 5 (1st and 2nd subparagraph) and of the I of the same Article (2nd paragraph) has the effect of implicitly prohibiting the exercise of the right to strike in the trades, functions and categories of agents and employees to be included in the pre-visibility agreement and according to the levels of service of the transport plan. These employees may also be punished by a ban on joining the strike movement, depending on whether or not their employment is included in the predictability plan implemented at the beginning of the strike.
As a result of the provisions of Article 5 II, a disproportionate and inoperative supervision of the conditions for the exercise of the right to strike that are not only in a way that improves the quality of public service, but also distorts the rules of social dialogue and not facilitates its exercise.
Again, the supervision of constitutional law that results from the provisions of the law does not improve the continuity of the public service of regular passenger transport. It is in vain that such limitations may be considered useful and necessary to preserve the general interest.
4. Section 6, II, allows the employer, a representative trade union organization, or the mediator, possibly designated at the beginning of the conflict, to request a consultation on the continuation of the strike.
This consultation is open to all employees affected by the notice. The law specifies both that it concerns the continuation of the strike and that its result does not affect the exercise of the strike, so its continuation.
It would therefore be a simple indicative consultation whose result must be independent of its object. The poorly defined nature of this consultation by law may not constitute a limitation necessary for the exercise of the right to strike to the extent that, if its result does not affect the continuation of the strike, it is impossible to consider that this provision allows for the continuity of the public service.
In addition, this consultation reinforces the police power assigned to transport companies by the provisions of Article 5 I on the Predictability Agreement. This agreement covers the activities necessary for the security of persons and equipment and thus corresponds to a police mission of land transport, which is thus provided by transport companies, legal entities of private law.
A private person cannot be assigned police powers. The case law of the Constitutional Council has recognized it regularly and, in particular, by giving air or sea carriers control obligations on the material situation of persons transported provided that it is not a police power (Decision No. 92-190 of 26 February 1992).
The possibility of holding a consultation on the continuation of the strike reinforces the delegation thus granted. Its character appears from this point of view largely disproportionate to the need to ensure continuity of public service.
III. - On the questioning of the principle of equality
The principle of equality provided for in Article 6 of the Declaration of Human and Citizen's Rights of 1789 is not opposed to the fact that the legislator rules differently from the different situations, nor does it derogate from equality for reasons of general interest provided that, in both cases, the difference of treatment resulting from it is directly related to the object of the law that establishes it. The terms of the jurisprudence of the Constitutional Council thus recalled indicate that it is always lawful for legislators to derogate from the principle of equality, provided that they comply with very strict conditions.
Several provisions of the Act do not deal in the same way with natural persons or legal persons who are in the same situation without such differences in treatment being justified on grounds of general interest in relation to the subject matter of the law. Differences in treatment resulting from the law do not meet objective and rational criteria.
1. Article 4 I imposes on the transport operator authorities the task of defining the priority desserts in the event of predictable traffic disruption.
The Constitutional Council regularly considers that the provisions enacted by the legislature should not lead to unequal and disparate application for users of the principle of continuity of public service in the territory (Decision No. 93-329 DC of 13 January 1994).
By leaving the transport authorities the burden of defining a priority service plan in the event of a strike, this risk is real and inevitable. Only differences in the situation of users vis-à-vis services can be admitted, yet they must be based on objective criteria.
The need for the organising authority to meet a disparate set of needs of the population, which can compete with each other, opens the way to many contentious things based on confusion maintained by law between the geographical concept of service and the categories of users with essential needs whose exercise would be hampered by a strike movement.
Organizing authorities are located in a situation where they will give birth to unequal dessert plans according to the territories, as they will define a plan that will be primarily served by public health institutions, or by educational institutions, or by providing service in urban areas.
In the event of an interprofessional conflict of a national character, which enters the scope of the law, users will not benefit from the same public service, depending on the territorial choice of priority desserts.
The example of school transport at the department level is very explicit of the inevitable achievement of the principle of equality. According to the departments, the definition of priority service, on the one hand, the development of the appropriate transport plan, on the other hand, leads to the fact that some students benefit from school transport, and others steps, without defining objective criteria in the law of choice of pupils or serving areas. The continuity of public service cannot be considered insured on the basis of such inaccuracies.
2. Article 4, II, provides that transport companies develop a transport plan tailored to the service priorities defined by the transport authority and a user information plan.
This article makes the ability of a company to present a suitable transport plan and user information procedures in the event of a strike a key element in public service contracts with the transport organizing authorities. It benefits companies whose financial capacities are of a nature to enable it to meet its contractual obligations, or more precisely the failure of these service obligations, insofar as section 9 of the law allows the organizing authority to impose on the transport company the total refund of the goods of transport to the users in the event of an incompetent transport plan.
Such an advantage granted to companies with sufficient financial capacity is a discrimination justified by no different situations between these companies and undermines the principle of equality without any justification of general interest.
3. Article 5, II, provides that every employee who has not informed his or her employer of his or her willingness to participate in the strike movement shall be liable to a disciplinary penalty.
The parliamentary work has made it possible to clarify the nature of the applicable sanctions. The Minister of Labour, Social Relations and Solidarity has made it clear on several occasions. At the second public session of the National Assembly on 1 August 2007, he indicated that it was disciplinary sanctions, applicable in accordance with the company's rules of procedure (Analysis of the National Assembly, p. 11).
The Minister wished to mitigate the effect of this clarification by stating that the penalty applied not to the right to strike but to the statement, or more precisely to the absence of a statement, and that this possible sanction was without impact on the exercise of the right to strike.
Beyond the fact that the disproportionate nature of the declaration provides for the conditions for the exercise of the right to strike, not related to the purpose of the law to improve the continuity of public services, the penalty provided for in the event of non-declaration within 48 hours prior to the commencement of the conflict is a source of inequality between employees of transport companies, without any justification for this difference by any reason of general interest.
The penalty would be that provided by the company's rules of procedure. Thus, according to the company, it can go from a simple blame to an individual dismissal procedure for fault, to an establishment of one to several days. Such an arbitrariness cannot be justified under the subject matter of the law. Not to mention that many companies do not have, despite the obligation of the Labour Code, a rules of procedure that would enable them to respond to situations arising from the absence of a statement of intent to strike.
In the name of the need to organize the service and to inform users, the legislator cannot create such discrimination between employees except to ignore the principle of equality.
IV. - On the questioning of the principle
free administration of territorial authorities
Almost all of the authorities operating under the law are territorial authorities. The regions are the organizing authorities of the regional railway services, the departments of the non-urban road services of persons, school transport in their territory, the municipalities and their grouping of urban road transport within the urban transport perimeter.
These communities have played an essential role since the decentralization laws and, in particular, since Act No. 82-1153 of Inland Transport Orientation of December 31, 1982, as well as since Act No. 2000-1208 of Solidarity and Urban Renewal of December 13, 2000.
The principle of free administration of territorial authorities set out in Article 72 of the Constitution provides that they are freely administered by elected councils and that they have regulatory authority for the exercise of their powers. In addition, this article clearly defines in this context the role of the representative of the State.
This principle, combined with the provisions of Article 34 of the Constitution that the law determines the fundamental principles of the free administration of territorial communities, their competence and their resources, was clarified by the jurisprudence of the Constitutional Council.
Thus, the legislator may impose new obligations only on the condition that they do not misunderstand the specific competencies of the communities concerned, that they are sufficiently defined as to their object and scope, that they meet constitutional requirements or compete for general interest.
The Constitutional Council was led to censoring the legislator for non-compliance with the principle of autonomy on the grounds that it had excessively limited the freedom and autonomy of the territorial authorities (decision No. 92-316 of 20 January 1993), without taking into account the diversity and complexity of the situations.
It appears from this decision that, if the legislator can decide on a local issue, it must be limited to defining the broad principles of public service organization, without directly altering the service itself.
It is not a question of the fact that the law imposes new obligations on territorial authorities in the exercise of their powers, but of appreciating the too radical and too brutal manner used by the legislature to interfere in the exercise of the powers of communities.
Section 9 of the Act provides that the transport organizing authority imposes a total refund of the transport titles to the companies concerned according to the duration of the non-observance of the adapted transport plans.
This provision goes well beyond the simple definition of a large principle of public service organization.
Section 4 of the Act imposes on transport authorities the definition of the frequencies and the hourly beaches of each level of service related to the extent of the strike.
There too, this is a provision that goes beyond the definition of a great principle of the administration of territorial communities.
The last paragraph of Article 4 IV implements a prefectural guardianship contrary to Article 72 of the Constitution.
In the event of a lack of the organising authority, it is up to the prefect to define priorities for priority desserts and to approve appropriate transport plans. This jurisdiction goes well beyond the burden of national interests, administrative control and compliance with the laws provided for in the last paragraph of Article 72 of the Constitution.
Finally, the law does not distinguish between territorial authorities and public institutions of intercommunal cooperation, governed not by Article 72 of the Constitution, but by the principle of speciality.
V. - Respect and protection of privacy
It is up to the legislator to maintain a constant balance between respect for privacy and the safeguarding of public order, principles of constitutional value. This obligation imposes in all circumstances on the legislator. The jurisprudence of the Constitutional Council regularly recalls the need for such a balance (Decision No. 2005-532 DC of 19 January 2006).
Article 5, II, provides that individual statements of employees on their intention to participate in the strike movement are defined as being used only for the organization of the service during the strike.
These statements are covered by professional secrecy. Their communication by the employer and their use for other purposes are punishable by criminal penalties.
However, the law remains silent on the duration of the information being kept. The indispensable balance between respect for privacy and public order should have led the legislator to predict this shelf life, or even to predict the destruction of this information once the social conflict is over.
VI. - On contractual freedom
The legislator can always for the sake of general interest derogate from the principle of contractual freedom resulting from Article 4 of the Declaration of Human and Citizen Rights of 1789.
The case law of the Constitutional Council clarified that this freedom applied both from the point of view of the freedom of the contract and the content of the contract itself (decision No. 2006-535 DC of 30 November 2006).
Article 2 III provides that the conflict prevention agreements signed in 1996, 2001 and 2006 at the Autonomous Board of Parisian Transport and in 2004 at the Société National des chemins de fer français are brought into conformity with Article 2 of the Act by way of becoming by January 1, 2008.
It is also anticipated that this compliance is related to similar agreements entered into before 1 July 2007 in other transport companies.
This provision comes directly into the content of the contracts. Legislature does not merely set principles. It adopts a directive provision in respect of companies that have signed agreements by providing for an actor within a few months, while each of the agreements contains a so-called "review" clause.
The compliance imposed within such a short period requires the signature of an avenor to the agreements being implemented. The law, by imposing this compliance, does not take into account the content of the existing agreements and the possibility of non-signature as a result. The content of the agreements could therefore be modified as early as 1 January 2008, without agreement between the parties involved in the negotiations, while agreements implementing social alert processes at the PRTR and the SNCF result from a constructive social dialogue process within each of the companies concerned.
