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Referral To The Constitutional Council Dated December 18, 2006, Presented By More Than Sixty Members, Pursuant To Article 61, Paragraph 2, Of The Constitution, And Referred In Decision No. 2006-545 Dc

Original Language Title: Saisine du Conseil constitutionnel en date du 18 décembre 2006 présentée par plus de soixante députés, en application de l'article 61, alinéa 2, de la Constitution, et visée dans la décision n° 2006-545 DC

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JORF no. 303 of 31 December 2006 page 20323
text No. 5



Seizure of the Constitutional Council of 18 December 2006 submitted by more than sixty members, pursuant to Article 61, paragraph 2, of the Constitution, and referred to in Decision No. 2006-545 DC

NOR: CSCL0609794X ELI: Not available



LOI POUR LE DÉVELOPPEMENT DE LA PARTICIPATION ET DE L'ACTIONNARIAT SALARIÉ ET PORTANT DIVERSES
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 for the Development of Employee Participation and Shareholding, and bearing various provisions of economic and social order, and in particular Articles 29, 48, 51, 54 and 60.
We develop the following observations in support of this referral.


1. On the principle of independence
the judicial authority and the principle of equality


Section 51 amends sections L. 541-1 and L. 51-10-2 of the Labour Code and deals with the terms and conditions for compensation for prud'homaux advisors.
This article, which was included in the original draft, was deleted by the National Assembly and then reintroduced by the Senate to another place in the bill, although the Senate Social Affairs Committee proposed to confirm the abolition voted by the National Assembly. It is the result of amendment No. 129, which was corrected by members of the UMP group, but whose rapporteur of the Social Affairs Commission, in giving the opinion of the commission in public session, attributed the initiative to the Government.
The combination of the amendments is to provide that employers will be required to leave employees, members of a prud'hommes council, the time necessary to go and participate in the prud'homales activities, now defined by decree in the Council of State, that the time spent on these activities will be compensated within the limits and conditions fixed by decree, and finally that the travel costs for the exercise of these activities will be taken care within the limits of distance set by decrees.
It is, in the opinion of the statement of the reasons for the amendment, to revalorize, to make more equitable and to control the compensation of the prud'homaux advisors. In so doing, the legislator, regardless of the procedure for the least unpublished adoption of this article, specifying, more particularly in the new wording of the 3rd article L. 51-10-2 of the Labour Code, that the prud'homales activities will be compensated "within the limits and conditions fixed by decree", seriously disregards Article 64 of the Constitution which guarantees the independence of the judicial authority.
The councils of prud'hommes are courts, electives and paritaires, which regulate by means of conciliation the disputes that may arise in connection with any contract of work submitted to the provisions of the Labour Code between employers, or their representatives, and the employees they employ.
They judge disputes over which conciliation has not resulted. Their mission, as conciliators and as judges, applies in particular to disputes relating to dismissals. It also concerns disputes between employees during work.
The prud'homaux advisers are elected by their peers. They swear and judge on behalf of the French people. Their decisions are binding.
Thus, the councils of prud'hommes constitute an order of jurisdiction within the meaning of Article 34 of the Constitution. Similarly, prud'homaux advisers are judges within the meaning of this article.
Several decisions explicitly recognized it. This is the case of your decision No. 91-166 L of 13 June 1991 on the legal nature of certain provisions of Article L. 513-3 of the Labour Code, in its consideration 3. This is the case of the decision of the Court of Cassation (2nd Civil Chamber, 9 May 1988) on the applicability to the prud'homaux advisors of the incompatibility provided for in Article 47 of the new Code of Civil Procedure.
There is no doubt, therefore, that the councils of prud'hommes constitute a jurisdiction whose independence must be guaranteed by the Constitution.
The criticized article does not provide any guarantee in this matter, on the contrary. It reduces the time spent by prud'homaux advisors, from working colleges and employers' colleges, to their jurisdictional missions. Examples include the time for hearings to be prepared, the time for hearings to be considered after pre-parliament hearings, the time for writing judgments and orders.
To be convinced, reference may be made to the provisions contained in the two draft decrees relating to the compensation of the prud'homales activities transmitted for advice to the Higher Council of the prud'homie, which you will find in the annex.
Article 7 of the draft simple decree is particularly illuminating the attainment of limits to the independence of the councils of prud'hommes. For example, it sets out in different tables the number of hours compensation that counsellors can devote to case studies, to the drafting of decisions and minutes. The decrees put in place a form of consummation of the time that prud'homaux advisers spend on judgments according to financial considerations.
The law and, as a result, the decree cannot substitute for the formation of the judgment, to impose a flat time applicable to all disputes and thus to assess the complexity of a case. Any principle thus aimed at limiting treatment times undermines the serenity necessary for judges. The combined provisions of Article 51 of the Creed Law constitute an infringement of the independence of the jurisdiction and the judges that make up it.
Moreover, the limitation of time resulting from the application of the criticized article undermines the principle of equality. Such limitations are impossible in terms of nature and the judiciary. Making a distinction on the level of their status between professional judges and legal counsellors is incompatible with the purpose of the institution, which is to render justice on behalf of the French people on labour-related disputes.
In addition, the vigilantes, given the proposed system, will not have the same guarantees of a serene judgment. Equality before the law and in the face of the fair and fair trial is thus totally violated.


2. On the principle of separation of powers


On 18 October 2006, the Conseil d'Etat annulled articles 4 to 11 of Decree No. 2005-306 of 31 March 2005 on the duration of work in road transport companies of goods. This Order was issued pursuant to Order No. 2004-1197 of 12 November 2004 on the transposition of Community Directives and amending the Labour Code on the development of working time in the transport sector.
The provisions cancelled by the Council of State relate to the modalities for calculating the weekly working time and triggering overtime for compensatory rest. The State Council refused to give its decision a non-retroactive character.
Section 60, based on Amendment No. 128, rectified by members of the UMP group of the Senate, allows for valid consideration of the counts of overtime and length of compensatory rest calculated by employers of the road sector enterprises taken under the cancelled order.
The legislator always has the power to deprive an effect of a decision of the Council of State or to validate an administrative act, provided that it complies with Article 16 of the Declaration of Human and Citizen's Rights of 1789 and the principle of separation of powers resulting from it.
For this purpose, the scope of the invalidation must be strictly defined, with sufficient general interest, which can only be financial. This case law was consistently reiterated, even recently in Decision No. 2004-509 DC of 13 January 2005.
It was clarified regularly and recently with the censorship of Article 111 of the Corrigendum Finance Bill for 2005 in Decision No. 2005-531 DC of 29 December 2005. This article, which was intended to deprive effect of a judgment of the Court of Justice of the European Communities and a decision of the Council of State, was censored without the need to examine the grounds of general interest that inspired it.
Similarly, the legislator has the power to adopt retroactive provisions, provided that it does not deprive legal guarantees of constitutional requirements and that it considers sufficient grounds of general interest.
In this case, Article 60 alone prohibits any contestation that would be based on the illegality of the articles cancelled by the Council of State, pending a new decree agreed with all professional and trade union organizations. Given this expectation, the reason for general interest, provided that it is necessary to examine it, is not sufficient to justify at this stage the achievement of the principle of separation of powers.
The Government did not consider it useful to give a favourable opinion to the amendment, simply relying on the wisdom of the Senate. This attitude shows the Government's reservations on a provision that it does not spontaneously recognize the usefulness, given consultations with social partners in the transport sector.


3. On employee participation in management
and the principle of equality


Article 54 amends Article L. 620-10 of the Labour Code on the terms and conditions of consideration of employees made available for the calculation of the employees of the host company. It also amends articles L. 423-7 and L. 433-4 of the Labour Code on the conditions to be eligible for election and election.
This article, which was included in the original draft, was deleted by the National Assembly and then reintroduced by the Senate, with an amendment concerning the application for the counting of staff, the provisions of the first paragraph of Article L. 236-1 of the Labour Code relating to the hygiene, security and working conditions committees.
The combination of the provisions contained in this article is not to take into account in the workforce the employees involved in a business under a contract of subcontracting or service delivery and to make neither electors nor eligible those employees in the same company.
In so doing, article 54 infringes the eighth preambular paragraph of the 1946 Constitution, which states: "Every worker shall participate, through his or her delegates, in the collective determination of working conditions and in the management of enterprises. »
In fact, the exclusion of the staff of the company providing the order of the employees of the subcontracting companies is to decrease the number and means of the staff delegates and representatives to the business committee, while in many cases these employees are fully integrated into the working community of the company in question.
The company's workforce is a fundamental issue in the professional elections. It determines whether or not a business committee exists, the representation of delegates in the business committee, the number of hours of delegation granted to staff representatives, the annual bargaining obligation on wages, the effective duration of work and the working conditions.
As mentioned in the report of the Committee on Cultural, Family and Social Affairs of the National Assembly, it is a matter of reverting to the jurisprudence of the Court of Cassation that the workforce taken into account for professional elections is made up of all employees who "participate in the activities necessary for the operation of the user company" and not only those who participate "directly in the production process". In accordance with this jurisprudence, the employees of the custodial, restoration or cleaning companies are thus integrated into the workforce of the donor company.
The solution proposed by Article 54 is to exclude employees on the basis of more economical than legal concepts, which do not take into account the sustainable or occasional character of the subcontractor, which do not appreciate the level of dependency between the order donor and the subcontractor or service provider.
This inaccuracy of the law is all the more critical because it underlines and strengthens the achievement of constitutionally guaranteed principles in terms of the protection and defence of employees in the company.
The provisions of Article 54 contradict the principles still recently recognized by the Court of Cassation that the integration of employees into the workforce implies their participation in the activities of the company and their integration into the same working community, and that such a situation gives them the right to vote in the professional elections of that company.
Restrictions on counts and the right to vote in professional elections are aimed at professions to which jurisprudence has regularly recognized this right. Demonstrators of large stores, persons made available to an association, teachers made available to private institutions.
Subcontractor or service provider employees, who work regularly, or even permanently, with the employees of the order-giving company, do so on the same premises and under the same conditions. They all belong to the same working community. Their constitutional right to participate, through their delegate, in the collective determination of their working condition is effectively challenged.
Paradoxically, in keeping with the provisions relating to the committee of hygiene, security and working conditions the current modalities of counting the workforce, the legislator himself emphasizes the achievement of the constitutional principle of participation of employees in determining their working condition.
There would therefore be, as defined by law, cases for which, within the same company, employees would count in the workforce and cases for which the same employees would not count. For example, employees would be taken into account in order to establish a committee on hygiene, security and working conditions in the company where they work regularly or permanently, but could not participate, be eligible for the professional elections of that company, or be taken into account in the establishment of a committee of business or staff delegates.
There can be no representativeness of employees at two speeds or variable geometry within the same company. Such a situation which inevitably results from the combination of the provisions of Article 54 undermines the constitutional principles of employee participation in the management of the enterprise and consequently the principle of equality.
Article 29 inserts into the Labour Code an article L. 432-4-3 to adapt to companies of three hundred employees and more, by collective agreement, the terms and conditions of information of the Business Committee and employees. Currently, the head of business is required, pursuant to sections L. 432-1 and following of the Labour Code, to inform and consult the business committee on matters relating to the economic and social situation of the company.
It is, in fact, the means of the criticized article to authorize the conclusion of derogatory agreements to the rules relating to information and consultation of the business committee. The collective agreement may modify the information terms and conditions of the business committee and organize the exchange of views to which the transmission of this information takes place.
The legislator provides with this article a form of circumvention of corporate committees. It is important to oppose their prerogatives to the direct information of employees. Under the guise of a better participation of employees in business management, he reduced the competences vested in the corporate committee and finally challenged the constitutionally guaranteed right of employees to participate in the management of their business.
Indeed, the quarterly communications provided for in Article L. 432-4-1 of the Chief of Business Labour Code to the Business Committee on the situation of employment, on the evolution of the workforce and the qualification of the employees, on the number of working days performed are replaced by a more general annual communication taking the form of an exchange of views.
Given the rapid pace of economic developments, the shift from quarterly to annual periodicity is not truly an improvement in the participation of employees through their representatives in the management of their business. In addition, this communication, which is the subject of a mere exchange of views, does not have the value of consultation and the collection of opinions from employee representatives, as provided for in article L. 432-4-1 of the Labour Code.
The bypass of the corporate committee, thus created in companies with more than three hundred employees, undermines the principle of equality by finally creating two types of business committees: the corporate committee in companies with a workforce of between fifty and three hundred employees and that of companies with more than three hundred employees. The corporate committees of large companies, in which the agreement provided for in new section L. 432-4-3 of the Labour Code will apply, will exercise jurisdiction in the lesser economic field than the business committees of smaller companies.
The provisions of the criticized article lead to a totally paradoxical situation where the prerogatives of the corporate committees are inversely proportional to the size and strength of the company. The competences of business committees could not be in variable geometry unless they ignore the constitutional principles of employee participation through their representatives and equality.
The prerogatives of employee representative institutions, because they implement constitutionally guaranteed principles, must be defined by law. They cannot be delegated, as provided for in section 29 of the Act, to the decision of social partners.


4. On the conciliation of the freedom to undertake
and the right to employment


The legislator must constantly ensure the necessary conciliation between two principles of constitutional value that are the freedom to undertake, as provided for in Article 4 of the Declaration of Human and Citizen Rights, and the right to obtain employment, as set out in the fifth preamble to the 1946 Constitution. This principle of conciliation has been consistently and clearly affirmed, particularly in Decision No. 98-401 DC of 10 June 1998.
Thus, if the legislator can bring to the right to employment limitations related to the requirement of freedom to undertake, the breach in question cannot be disproportionate to the objective pursued.
The balance between these two principles is broken with section 48 due, in particular, to important imprecisions of the provisions they contain.
Article 48 inserts an article L. 320-2-1 within the Labour Code which allows companies, or groups of enterprises, of at least one thousand employees who have signed an agreement for the predictive management of employment and skills to propose to their employees a leave known as "mobility leave" when they intend to pronounce dismissal for economic reasons.
Groups of companies may also include very small businesses, whose numbers may be less than fifty employees, and thus be deprived of representatives of personnel exercising economic prerogatives.
This device allows these companies to avoid their reclassification leave obligations under Article L. 321-4-3 of the Labour Code. In fact, it introduces a new form of termination of the employment contract of a common agreement without cause, which allows to circumvent the collective procedures for consultation with staff representatives in the event of collective dismissal, or prior maintenance in the event of individual termination.
This new form of termination does not include any obligation for the employer to pay for termination or notice, any guarantee for the employee of real reclassification, compensation by unemployment insurance if at the end of the mobility leave he did not find a job.
This article, presented as a favour to employees, is in fact an infringement characterized by the right to employment, since it deprives them of many guarantees and protections inherent in the situation of economic dismissal.
This is reinforced by the fact that the conditions for the implementation of the mobility leave are referred to the collective agreement of a company for the predictive management of jobs and skills, whose negotiations take place in ignorance for employees of the prospects for the restructuring of enterprises.
Such violations of the right to employment are all the more serious as the legislator has remained very unclear on many points, leading to situations for the least paradoxical.
For example, the mobility leave may be carried out in another company during the notice period while the initial work contract is not broken. Similarly, during the mobility leave, the employee may perform work periods, including in the original company, in the form of an indefinite contract or a fixed-term contract.
The issue of the employee's status should he or she leave the company of origin deserves to be very clearly specified. Finally, the fixed-term contract signed as part of the mobility leave may be signed as part of provisions to encourage the hiring of certain categories of unemployed persons. It is clear that this case does not correspond to the motivation of the mobility leave.
Much too many imprecisions characterize this new device. This is all the more critical because this article, unlike the displayed ambition, does not guarantee the right to employment or the necessary conciliation between the freedom to undertake and this right. The balance between the two constitutional requirements is obviously disproportionately broken, especially since the scheme is not limited to the only large companies of at least one thousand employees. Groups of companies, which may include companies of less than fifty employees, are also targeted. And in total a large number of employees can find themselves in the situation of being offered mobility leave.


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