Key Benefits:
LOI PORTANT DECENTRALISATION
INSERTION MINIMUM REVENUS
AND CREANT A MINIMUM REVENU OF ACTIVITY
Jean-Marie Aubron, Jean-Marco, Jean-Paul Bacquet Jean-Pierre Génisson, Jean-Pierre
The Constitutional Council,
Considering the Constitution;
In light of amended Order No. 58-1067 of 7 November 1958 on the Organic Law on the Constitutional Council;
Having regard to Organic Law No. 2001-692 of 1 August 2001 on Financial Laws;
Considering the code of social action and families;
Considering the labour code;
Considering the social security code;
In view of the Government ' s observations, recorded on 15 December 2003;
Considering the reply comments, recorded on 17 December 2003;
The rapporteur was heard,
1. Considering that the authors of the case refer to the Constitutional Council the law on decentralization in respect of minimum income of insertion and creating a minimum income of activity; that they contest, in particular, compliance with the Constitution of Articles 2, 4, 6, 14 and 43;
Sections 2, 4, 6 and 14 of the Act referred to:
2. Considering that the provisions of Article 2 of the law referred, supplemented by the provisions of Article 3 thereof, shall charge the departments with the financing of the minimum income of insertion; that Article 4 of the law lays down the principle of the compensation of the expenses it entails for the departments; that Articles 6 and 14 transfer to the departments the responsibility for the implementation of the minimum income of insertion and empower the President of the General Council to make the decisions
3. Considering that, according to the complainants, these provisions violate the Preamble to the 1946 Constitution, the principle of equality, and articles 72 and 72-2 of the Constitution;
With respect to the Preamble to the 1946 Constitution and the principle of equality:
4. Considering that, according to the applicants, the minimum income of insertion is "a right attached to the expression of national solidarity"; that by transferring its implementation to the departments without providing sufficient supervision by the State, the legislator would have deprived of guarantees the requirements resulting from the tenth and eleventh preamble of the 1946 Constitution and infringed on the principle of equality;
5. Considering that, under the fifth preambular paragraph of the 1946 Constitution, "Everyone has the duty to work and the right to get a job..."; that, according to its tenth preambular paragraph, "The Nation assures the individual and the family the conditions necessary for their development"; that its eleventh preambular paragraph states that "Every human being who, because of his age, physical or mental state, of the economic situation is incapacitated
6. Considering that pursuant to Article L. 262-2 of the Code of Social Action and Families, in its drafting from Article 1 of the Act referred to: "The minimum income of insertion varies under conditions prescribed by regulation according to the composition of the household and the number of dependants. Its amount is fixed by decree and revised once a year according to the evolution of prices » ;
7. Considering, moreover, that, if the follow-up of the contracts of insertion, the instruction of the records and the decisions of attribution are entrusted to the departments, it is under conditions defined by the law; that in particular, the President of the General Council may not suspend the payment of the allowance and put an end to the right to the minimum income of insertion only when the contract of insertion could not have been established or renewed or when it was not
8. Considering that it is the result of the foregoing that the legislator has set sufficient conditions to prevent the occurrence of breaches characterized by equality in the allocation of the minimum income of insertion, allocation of social assistance that meets a requirement of national solidarity; that, in fact, the transfer to the departments of the management of the minimum income of insertion cannot be considered as contrary to the provisions inserted in the Constitution by the revision of 28 March 2003
9. Considering that it follows that the grievances arising from an infringement of the 1946 Preamble to the Constitution and the principle of equality must be rejected;
With regard to compliance with articles 72 and 72 (2) of the Constitution:
10. Considering that Article 4 of the referred law states: "The expenses resulting, for the departments, of transfers and the creation of competencies realized by this Act are compensated by the allocation of resources made of part of the proceeds of a tax collected by the State under the conditions laid down by the Financial Law. - For the year 2004, the compensation provided for in the first paragraph is calculated on the basis of the expenditures generated by the payment of the minimum insertion income in 2003. - For the following years, the compensation will be adjusted definitively in the light of the administrative accounts of the departments for 2004 in the finance law following the establishment of the accounts";
11. Considering that the appellants argue that these provisions "do not know the constitutional norms intended to ensure that the free administration of the territorial authorities respects the principle of attribution of revenues in case of transfer of powers equivalent to those held up to then to their exercise by the State"; that this ignorance would result from the randomness of the proceeds of the tax retained in the finance law to ensure this compensation; that it would also result from the final nature of the resource transferred as long as "the adjustment that will occur in the context of the administrative account of the departments of 2004 is a financial situation that is likely to evolve"; that it is further criticized for the deferred law not to provide for equalization mechanisms as required by the fifth paragraph of Article 72-2 of the Constitution;
12. Considering, first of all, that, under the third paragraph of Article 72 of the Constitution: "In the conditions provided for by law, these communities are administered freely by elected councils..."; that the fourth paragraph of Article 72-2 states: "Every transfer of competence between the State and the territorial authorities shall be accompanied by the allocation of resources equivalent to those devoted to their exercise. Any creation or extension of competence resulting in an increase in the expenses of local authorities is accompanied by resources determined by law."
13. Considering that Article 4 of the above-mentioned law provides that the compensation of the expenses caused by the transfer and creation of competence shall be calculated, for the year 2004, "on the basis of the expenses caused by the payment of the minimum income of insertion in 2003"; that, for the following years, "the compensation shall be adjusted in a final manner in view of the administrative accounts of the departments for 2004"; that, under these conditions, Article 4 does not ignore, by itself, the free administration of the departments, or the principle that any transfer of competence between the State and the territorial authorities is accompanied by the allocation of resources equivalent to those devoted to their exercise, or that according to which any creation of competence is accompanied by resources determined by the law;
14. Considering, in the second place, that Article 4 refers to the next finance law to specify the terms and conditions of the compensation provided for in 2004, in accordance with Article 36 of the Organic Law on the Financial Laws of 1 August 2001, under which: "The allocation, total or partial, to another legal person of a resource established for the benefit of the State shall be effected only by a provision of the finance law";
15. Considering, finally, that under the fifth paragraph of Article 72-2 of the Constitution: "The law provides for equalization schemes designed to promote equality between the territorial authorities"; that this paragraph, which aims to reconcile the principle of freedom with that of equality through the establishment of mechanisms of financial equalization, does not require that each transfer or creation of competence give rise to equalization; that, therefore, article 4 of the referred law does not ignore the fifth paragraph of Article 72-2 of the Constitution;
16. Considering, therefore, that articles 2, 4, 6 and 14 of the above-mentioned Act are not contrary to the Preamble to the 1946 Constitution, nor to the principle of equality, nor to articles 72 and 72-2 of the Constitution;
On section 43 of the Act referred to:
17. Considering that Article 43 of the law referred to in the Labour Code articles L. 322-4-15 to L. 322-4-15-9, which establish a "minimum employment income contract" which may be passed between persons who have received the minimum income of insertion for a minimum period of time and employers of the market sector and the non-market sector, that, in the end, the law prescribes the conclusion of the contract to that of an agreement between the employer and the department specifying the objectives of the employee's professional insertion, the actions of tutoring, individualized monitoring, accompaniment and training that will be put in place;
18. Considering that, according to the complainants, these provisions affect the principle of equality, the Preamble to the 1946 Constitution, personal freedom and contractual freedom;
With respect to the principle of equality and the preamble to the 1946 Constitution:
19. Considering that the authors of the referral consider that, by the derogations it entails, the contract of work established by section 43 of the referred law results in "a breach of the principle of equality characterized that nothing in the subject-matter of the law can justify"; that in particular, by subtracting from the base of the social contributions of the holders of this contract the amount of the assistance of the department to the employer, the legislator they also consider that the legislator ignored the eleventh preambular paragraph of 1946;
20. Considering that the principle of equality 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 in treatment resulting from it is directly related to the subject matter of the law that establishes it;
21. Considering, first of all, that by establishing the "minimum income-incorporation contract" the new article L. 322-4-15 of the Labour Code tends to "facilitate the social and professional integration of the beneficiaries of the minimum income allowance of insertion meeting the particular difficulties of access to employment"; that it further specifies that this contract "is part of the path of insertion".
22. Considering, in the second place, that pursuant to the new article L. 322-4-15-3 of the Labour Code, the benefit of the contract is subject to a minimum period of collection of the allowance determined by decree; that under the new article L. 322-4-15-4 of the same code, the duration of the "incorporation contract-minimum income of activity" cannot exceed eighteen months, including renewal;
23. Considering, in the third place, that under the same article L. 322-4-15-4, the minimum weekly working time of the beneficiaries of these contracts is 20 hours; that under article L. 322-4-15-6, they perceive "a minimum income of activity ... the amount of which is at least equal to the product of the minimum wage of growth by the number of hours carried out";
24. Considering, in the fourth place, that if, under the new article L. 322-4-15-6 of the Labour Code, the employer receives a lump sum payment equal to, under the conditions laid down in this article, the minimum income guaranteed to an isolated person, it is in order to induce him to recruit a lump sum and thus to promote his professional integration; that is the same as the provisions of the 15-4
25. Considering, finally, that under Article L. 262-12-1 inserted in the code of social action and families by Article II of the referred law, the interested party "continues to benefit from the minimum income allowance of insertion" during the period of the contract of insertion; that he perceives in this capacity the possible difference between his allowance and the amount of the department's assistance to the employer; therefore retains, as well as its rightful persons, the benefits attached to this allowance, in particular the basic and complementary universal disease coverage;
26. Considering that due to the particular difficulties faced by their occupational integration, the beneficiaries of the "minimum income contract of activity", who are holders of a contract of work while continuing to benefit from the minimum income allowance under the conditions fixed by the new article L. 262-12-1 of the code of social action and of the families cited in the previous consideration, are in a situation different from that of the other employees; that the measures criticized that it follows that the grievances arising from an infringement of the principle of equality and the Preamble to the 1946 Constitution must be rejected;
With regard to respect for personal freedom and contractual freedom:
27. Considering that, according to the appellants, article 43 of the referred law "is not aware of individual freedom as reflected in article 2 of the Declaration of Human Rights of 1789 and together of the contractual freedom"; that they argue that the holder of the "contract insertion-revenue minimum of activity" has the choice only "between the refusal of a modality of insertion and the contract of so-called RMA limited employment
28. Considering that, under the new article L. 262-37 of the Code of Social Action and Families: "The content of the contract of insertion is debated between the person responsible for its development and the allotted person. The contract is freely entered into by the parties and is based on reciprocal commitments on their part"; that the interested party has the opportunity to oppose the inclusion of the "minimum income-incorporation contract" among the insertion actions proposed to it under article L. 262-38 of the same code; that, therefore, article 43 of the deferred law does not affect personal freedom or contractual freedom;
29. Considering that there is no question of constitutionality for the Constitutional Council,
Decides:
Sections 2, 4, 6, 14 and 43 of the Act on Decentralization in respect of minimum income for insertion and creating minimum income for activity are not contrary to the Constitution.
This decision will be published in the Official Journal of the French Republic.
Deliberated by the Constitutional Council in its session of 18 December 2003, chaired by Mr. Michel Ameller, and where Mr. Jean-Claude Colliard, Olivier Dutheillet de Lamothe, Pierre Joxe, Pierre Mazeaud, Mmes Monique Pelletier, Dominique Schnapper and Simone Veil sat.
The president,
Yves Guéna
