Key Benefits:
LOI DE MODERNISATION SOCIAL
In accordance with Article 61, paragraph 2, of the Constitution, the undersigned deputies refer to the Constitutional Council the law of social modernization.
The undersigned deputies ask the Constitutional Council to declare the law previously cited not in accordance with the Constitution, particularly for the following reasons developed below.
On the unconstitutionality of title II
of the Law on Social Modernization
I. - With regard to grievances
non-compliance
The Government has introduced, through amendments tabled at the second reading in the National Assembly, a large number of additional articles, more than fourteen of which relate to dismissals. These latter articles amend essential provisions of the Labour Code and constitute "a real reform of the law of termination" (report of the Senate, Mr. Gournac, No. 424). As the rapporteur of the Senate pointed out, even though these articles have considerable implications for business management and therefore on employment, no study has been carried out beforehand to assess the right of termination. Such a topic could also have lent itself to an opinion of the Economic and Social Council.
These additional articles should have been the subject of a separate bill. But the use of amendments rather than the filing of a specific text has exempted from having to submit these articles to the opinion of the State Council.
The conditions for the preparation of these measures cannot be considered satisfactory.
Article 39 of the Constitution states that "the bills are deliberated in council of ministers after the advice of the Council of State." Consequently, many articles of title II of this Act have not been submitted to the Council of State, which is contrary to Article 39 of the Constitution.
Furthermore, it may be added that these amendments have not been discussed in the written report of the National Assembly's Committee on Cultural, Family and Social Affairs, which is contrary to the rights of parliament.
You have also ruled that the government amendments, as well as those emanating from parliamentarians, are constitutional provided that they are not unrelated to the draft debated, nor exceed "by their object and scope the limits inherent in the right of amendment" (decisions No. 86-221 DC of 29 December 1986; No. 86-224 DC of 23 January 1987; No. 93-316 DC of 20 January 1993; Decision No. 90-277 DC of 25 July 1990). You had already had the opportunity to censor a law on the grounds that the provisions added by amendment exceeded the limits inherent in the exercise of the right of amendment, because of their magnitude and importance (Decision No. 86-224 DC of January 23, 1987). The government amendments, presented in second reading, are consequentially amending the bill, creating ex nihilo a new legal regime for the law of termination. It is important to note that the administrative phase of the legislative procedure has not been respected.
For all these reasons, Title II of this Act must be declared not in accordance with the Constitution.
II. - With regard to grievances arising from the lack of knowledge of the rules of jurisdiction and the lack of clarity and intelligibility of the law
(a) As to the lack of knowledge of Article 34 of the Constitution
According to section 118 of this Act, companies occupying more than one thousand employees who carry out a partial or total closure of an establishment, workshop or product line shall take measures to enable the reactivation of the relevant employment pool. The company's participation may not be less than four times the monthly value of SMIC per job deleted without being more than four times the monthly value of SMIC. It is the prefect who will determine the amount of this financial participation according to various parameters. Finally, in the event that the company does not sign the agreement with the State in which these measures are to be defined and specified, the law provides that it will have to pay the maximum amount per job deleted from the Treasury.
The amount of the company's financial participation is fixed unilaterally by the prefect and, if there is no agreement to implement these conversion actions, it is due to the public treasury, not for a sanction, but as a substitute for the lack of agreement between the State and the company. As a result, this contribution, in any case obligatory to the responsibility of companies occupying more than one thousand employees and proceeding with the partial or total closure of sites, presents the nature of an imposition of all kinds within the meaning of Article 34 of the Constitution.
However, according to a constant jurisprudence on "taxes of all natures", you first decided that it is up to the legislator, when it institutes an imposition, to freely determine its base, rate and method of recovery, subject to the principles and rules of constitutional value and taking into account the characteristics of the tax in question.
Thus, in order to ensure that the principle of equality is respected, legislators must base their assessment on objective and rational criteria based on the goals they propose (2000-437 DC of 19 December 2000). Similarly, if it is the legislator's responsibility to assess taxpayers' contributive faculties, this assessment should not result in a breakdown of equality before public expense and to put a taxpayer's disproportionate tax on its contributive faculties.
In addition, you have decided that if section 34 of the Constitution reserves the law to establish the rules concerning the count, the rate and the method of recovery of taxation of all kinds, it does not follow that the legislator must determine the rate of each tax itself. It is only up to it to determine the limits within which the regulatory authority is authorized to stop the rate of taxation (2000-442 DC of 28 December 2000).
By adopting Article 118, it may be demonstrated that the legislature has infringed these rules and principles of constitutional value. Indeed:
- on the one hand, the legislator ignored the scope of its own jurisdiction by leaving the prefect a significant margin of appreciation for the contribution rate requested (from two to four);
- on the other hand, the legislator has imposed a disproportionate contribution to the contributive faculties of a company that, precisely, has economic difficulties (at least twice the monthly value of SMIC by abolished employment);
- Finally, it will be noted that in the event of a payment to the Public Treasury and contrary to the objective pursued by the law, no guarantee is made for these amounts to be allocated to the creation of activities in the employment basin in question.
For all these reasons, Article 118 of this Act must be declared not in accordance with the Constitution.
(b) As to the legislative lack of knowledge of the scope of its jurisdiction and the violation of the requirement for clarity of the law arising from article 34 of the Constitution
In the exercise of its powers, the legislator must fully exercise these powers in order to either deviate from arbitrary or uncertainties during its application (by the subjects of law, the administration, the judge), or to prevent the authorities in charge of the implementation of the law (regulatory authority, independent administrative authority, social partners, if any) from inconstitutionally in the field of the law.
In other words, to comply with the Constitution, the law:
- must be sufficiently precise and complete to avoid any risk of arbitrariness or any uncertainty as to its scope;
- cannot give up to the decree the setting of certain rules.
Moreover, to be constitutional, the law must be clear. In fact, when the law carries various obligations and/or sanctions that are very specific to the responsibility of its recipients, they must not be written vaguely, unclearly, with non-standard or undefined concepts. Indeed, in the opposite case, it would expose its recipients not to know how to apply them or to face several possible interpretations, and it would give the administrative or judicial authorities in charge to control the application of the exorbitant powers that are constitutionally owned only by the legislator.
If this is the case, it may be blamed on the law for having violated the requirement of clarity of the law that arises from article 34 of the Constitution.
Many of the provisions of Part II of this Act are at risk of negative legislative incompetence and failure to comply with the requirement for clarity of the law.
1. Article 96 ("Michelin Amendment")
In the second Labour Time Reduction Act, you have censored provisions - which established the responsibility of the companies, prior to the establishment of any social plan, the obligation to negotiate an ATR agreement - on the ground that the legislator had not fully exercised its jurisdiction by not specifying the effects of non-observance of that obligation-4 and by leaving, in particular, to the administrative and judicial authorities, the care to determine whether that obligation was a condition of termination
Article 96 of the law here contested - which takes the principle of this obligation - is supposed to respond to the reproaches formulated by the constitutional judge.
However, again the law does not expressly indicate whether the failure to recognize the obligation established is a condition of validity of the social plan and whether its non-observance renders null and void the subsequent termination proceedings. It merely offers to the business committee or, if not, to the staff delegates the opportunity to refer to the judge in the form of the referees in order to make the suspension of the proceedings and possibly to rule the nullity of the termination proceedings.
Therefore, it is easy to demonstrate that the law still does not specify the actual effects on terminations of non-compliance with the prior requirement to negotiate an ATR agreement.
First, it may be assumed that if staff representatives do not enter the judge the procedure may continue while the obligation has not been met. On the occasion of a plea of legality initiated by an employee dismissed under the social plan, can the council of prud'hommes take into account this non-observance to rule the nullity of the proceedings and, consequently, the nullity of the dismissal? The new version of article L. 122-14-4 of the Labour Code does not invite us to think about it. The latter provides that "when the court finds that the termination occurred while the termination proceedings are null and void, in accordance with the provisions of the fifth paragraph of Article L. 321-4-1, it shall declare the termination invalid...". This fifth preambular paragraph, currently in the Labour Code, states that "the dismissal procedure is null and void as long as a plan for the reclassification of socially integrated employees is not presented to staff representatives..." However, this paragraph does not deal with the prior obligation to reduce working time, which suggests that the judge prud'homal could not rule the nullity of dismissal.
Thus, in the case of the above figure, the effects of non-compliance with the requirement to negotiate an ATR agreement are still not clearly specified in the law.
Secondly, it is permissible to wonder whether the judge is required to suspend the termination proceedings, as long as the sentence begins with "when the judge suspends the proceedings..." which may suggest that he is not required to do so. But, above all, how is the next step ("as soon as it finds that the conditions set by the second or third paragraph of this article are met, the judge authorizes the prosecution of the proceedings")? Who once again understands that the obligation is respected? Does the judge necessarily have to wait for the expiry of the time limit that he himself fixed by summoning the parties on that date, or should he wait, when the obligation was met during that period, that the most diligent part (of course, the employer who has any interest in seizing it) return to him? Once again, the legislator ignores the scope of its jurisdiction here.
Finally, in the third place, the text states that if, at the end of this period, the obligation has not been met, the judge shall declare the termination proceedings invalid. The penalty is then linked, in part, to the extent of the time limit set by the judge. However, it can be predicted, without too much mistake, that this period will vary according to the litigation. Should the legislator not have set this time limit itself to avoid these differences in treatment according to the competent courts? It can be asserted and, in the absence of having done so, the legislator once again ignored the scope of his jurisdiction.
For all these reasons, section 96 of the law must be declared contrary to the Constitution.
2. Section 97
The new section L. 239-1 of the Commercial Code, as derived from section 97 of the Act, begins as follows: "any total or partial cessation of activity of an establishment or an autonomous economic entity having the consequence of the deletion of at least one hundred jobs must be ...". What should be heard by these two concepts?
What is first of all the legal acceptance of the term institution? Is this the concept of establishment, which is not defined, used, for example, for collective bargaining? Should we refer instead to the concept of a "distinct institution" that prevails in determining the framework for the establishment of staff representatives? We don't know. It should be noted that the definition of the definition varies according to the institution to be established. Recently, the Social Chamber of the Court of Cassation amended its definition of the separate establishment for the designation of the union delegate (Cass. soc. 2 October 2001).
The same inaccuracy surrounds the notion of autonomous economic entity. This concept is borrowed from the rules relating to the fate of labour contracts in the event of the transfer of business, establishment, parts of business or parts of establishment. According to Council Directive 2001/23/EC of 12 March 2001, is considered to be a transfer "that of an economic entity now its identity, understood, as a set of means, for the continuation of an economic activity, whether essential or incidental". Community law thus proposes a definition of the economic entity that the Social Chamber of the Court of Cassation repeats in these terms: "is an economic entity for the purposes of Article L. 122-12, paragraph 2, of the Labour Code an organized set of persons and bodily and intangible elements enabling the exercise of an economic activity that pursues a clean objective" (v. not. Cass. soc. 26 April 2000: RJS 2000, n. 634). When one remembers the difficulties associated with the definition of this concept of economic entity, one easily press a similar dispute for this notion of "self-governing" economic entity whose law does not say whether it is the same or any other... that one finds, for example, in domestic law of economic concentrations (cf. article L. 430-II of the trade code as it is the result of article 86 of the law operating in 2001).
These concepts (referred to in section 106 of the Act) require the implementation of the decisions and consultations set out in section L. 239-1 of the Commercial Code. It is therefore a measure of the risk of legal subjects not knowing how to apply these provisions.
For all these reasons, Article 97 must be declared not in accordance with the Constitution.
3. Article 98
The same reproaches of negative incompetence can be found in section 31 ter of the law that creates an article L. 239-2 of the trade code that begins as follows: "Every strategic development project...". What is it? Is that a legal, economic concept? Moreover, the text states: "and likely to significantly affect the conditions of employment and work." Therefore, it will always be difficult, in practice, for a company to determine with certainty whether it is in this situation that requires it to establish a social and territorial impact study. This provision therefore lacks the requirement for clarity of the law.
For this reason, article 98 must be declared not in accordance with the Constitution.
4. Article 100
Section 100 of the Act inserts in the Labour Code a new section L. 431-5-1 in which a "public announcement exclusively on the business strategy of the company and whose implementation measures are not of a nature to significantly affect the working or employment conditions". Once again, the same risk of negative legislative incompetence may be expressed with respect to this provision. However, in this case, the risk of error is, for the head of business, extremely criminalizing since a breach of this obligation may constitute an offence of intrusion (see last paragraph of Article L. 431-5-1).
However, in the same article, a third paragraph is drawn up: "when the public announcement affects several companies belonging to a group, the members of the business committees of each interested company and the members of the group committee and, where applicable, the members of the European works council are informed". What does the term "if applicable"? Does it mean that when a European works council exists, it must be systematically informed or that, even if a committee exists, the information is not mandatory and depends on the circumstances (but the first reading is more consistent)? On the other hand, whatever the answer is, should the text not organize more precisely these different information (e.g., delegate), since the absence of information from these committees is subject to the penalties set out in the last paragraph? This provision therefore lacks the requirement for clarity of the law.
For this reason, article 100 must be declared not in accordance with the Constitution.
5. Section 101
Section 101 of the Act introduces a new paragraph 2 to section L. 432-1 of the Labour Code, which begins as follows: "The Corporate Committee is obligatoryly informed and consulted on the proposed workforce restructuring and compression projects. What is a restructuring project? To the extent that we know that the concept of "restructuring" is extremely difficult to understand (v. Ch. Masquefa, The Restructuring, Private Bibl., LGDJ 2000) and that a right of opposition is open to the corporate committee on the project of the "restructuring" of the company that may have an impact on the employment (paragraph 3) - this right of opposition suspending the planned operation and inducing the need to seize a mediator - thus the exorbitant power given to the corporate committee of the fact This provision therefore lacks the requirement for clarity of the law.
For this reason, Article 101 must be declared not in accordance with the Constitution.
6. Article 106
Section 106 inserts a new article L. 432-1-3 in the Labour Code.
In this article, it can be read that "the mediator has the broadest powers within his mission to inform himself of the situation of the company". What are these powers? Those of an accountant, a labour inspector? The text is unclear.
Also in the same article, it is stated that "in the event of acceptance by both parties, the recommendation of the mediator shall be forwarded by the mediator to the competent administrative authority. It takes the legal effects of an agreement within the meaning of articles L. 132-1 and following." By referring to the articles of the Labour Code, the legislator chose to give to the agreement concluded the effects of a collective agreement. But, as long as this is a particular type agreement (whether only because it results from the acceptance of the business committee and not representative trade union organizations), it would be appropriate to better define the regime of this agreement. Can this accepted recommendation that has the effects of a collective agreement be revised? What conditions? The provisions of Article L. 132-7 expressly referred to in the formula "L. 132-1 et seq."? In addition, does this formula imply that in order to produce effect acceptance must be written because article L. 132-2 (al. 1) of the Labour Code states that "the agreement or collective agreement is an act, written barely nullity..."? We could multiply the questions.
Finally, in the light of the new article L. 432-1 on the right of opposition (see above) of the business committee, it is stated that "the business committee has an opposition right that translates into the referral of a mediator according to the terms set out in article L. 432-1-3". However, the latter provides that "in the event of a total or partial termination project of activity of an institution or an autonomous economic entity that results in the abolition of at least one hundred jobs, if there is a significant discrepancy between the project submitted by the employer and the alternative proposal(s) submitted by the business committee, either party may refer a mediator to a list agreed by the Minister of Labour".
There are several questions. Can the corporate committee refer a mediator to any project to restructure the company that could have an impact on the employment or only, in the event of a total or partial termination project of an institution or an autonomous economic entity involving at least one hundred employees? Once again, the imprecision of the law prevents its recipient from knowing its exact scope.
For this reason, article 106 must be declared not in accordance with the Constitution.
7. Article 107
This article provides a new definition of termination for economic reasons (art. L. 321-1 of the Labour Code). But the terms are insufficiently precise or without a normative scope of which to generate doubt among the recipients of the rule of law.
Thus, the notion of "serious economic difficulties that could not be overcome by any other means" is very unclear and may lead to differences in interpretation.
With regard to the notion of "technological changes involving the sustainability of the company", it is legitimately permissible to question the meaning of this formula. Does the law want to indicate that only technological change will be allowed which, if not implemented, will threaten the company's sustainability? Can we then baptize these mutations involving the sustainability of the company? Is it simply the technological changes imposed because calling into question the sustainability of the company, excluding those deliberately implemented to safeguard this sustainability?
Finally, with regard to the notion of "necessities of reorganization indispensable to the safeguarding of the business' activity", it risks giving rise to a significant contentiousness as the formula is vague. It will be very difficult for an employer to invoke this reason to have, if not a certainty, at least a clear idea of the risk incurred, namely the payment of compensation for the defect of real and serious cause.
For this reason, Article 107 must be declared not in accordance with the Constitution.
8. Article 108
Section 108 of the Act supplements Article L. 321-1 of the Labour Code by a paragraph beginning as follows: "the termination for economic reasons can only intervene when all the training and adaptation efforts have been made and the reclassification of the person concerned over a job..." In this case, what does "can not intervene"? Do staff representatives or/or employees involved in the termination have the opportunity to refer the matter to the judge to obtain a suspension of the proceedings until the employer has properly fulfilled the reclassification requirement? What is the penalty if, after the termination of employment, the judge considers that the reclassification requirement has not been met? Is it a defect of real and serious cause of termination as the jurisprudence admits it today? Nullity of termination since the "missing cannot intervene"? Once again, the legislator has not fully exercised its jurisdiction here.
For this reason, Article 108 must be declared not in accordance with the Constitution.
9. Article 112
Article 112 of this Reform Act, in Article L. 321-4-1 of the Labour Code relating to the Employment Protection Plan, the measures that may be contained in the Social Plan. This list is important because the jurisprudence considers that an insufficient social plan results in its nullity and in its wake the nullity of dismissals (JP Samaritaine, Cass. soc. 13 February 2001). However, the text does not expressly provide for this hypothesis. It states that "the procedure is null and void as long as a plan for the reclassification of socially incorporated employees is not presented by the employer to staff representatives..." (currently paragraph 2 of the art. L. 321-4-1). In other words, it would have been necessary for the legislator to specify the conditions of nullity, especially that the case law considers that the possibility of implementing each of these measures, yet cited as examples ("such as, for example," says the text) must be sought by the employer (Cass. soc. 28 March 2000, Lasnon decision.
For this reason, Article 112 must be declared not in accordance with the Constitution.
10. Article 118
The I of this article begins with "when a company occupying between fifty and thousand employees carries out economic layoffs that are likely by their magnitude to affect the economic balance of the job pool considered, the representative of the State in the department can gather...". The state representative's condition of intervention is vague. Who appreciates it? The state representative? What are his evaluation criteria? Can the decision be contested? Once again the terms used by the legislator, too vague, attribute an important margin of action to the representative of the State of the nature to infringe on various rules and principles of constitutional value (the freedom to undertake, in particular).
For this reason, Article 118 must be declared not in accordance with the Constitution.
11. Article 119
This article relates to reclassification leave (art. L. 321-4-3 of the Labour Code). It can be read that "reclassification leave is made during the notice, of which the employee is exempted from performance. When the duration of the reclassification leave exceeds the period of notice, the term of the notice shall be deferred for a period equal to the duration of the reclassification leave remaining to be incurred. During this period, the notice is suspended." The last sentence is difficult to understand because if the employee is exempted from the performance of the notice and is expected to be postponed when the duration of the reclassification leave exceeds the duration of the notice, why assert that the notice is suspended and what period does it speak?
For this reason, Article 119 must be declared not in accordance with the Constitution.
12. Section 128
Article L. 432-4-1 of the Labour Code is supplemented by a paragraph that begins as follows: "when the Business Committee is aware of facts that may characterize an abusive use of fixed-term employment contracts and temporary work contracts, ... it may decide to refer to the Labour Inspector..." What is an abusive remedy? The use of SDCs or temporary work is highly regulated by the Labour Code: there is a limited list of cases of appeal. From then on, two things one: or there is an illegal appeal and sanctions (civil and criminal) are known, or the appeal is lawful. What then does the notion of abuse in this legal environment?
For this reason, Article 128 must be declared not in accordance with the Constitution.
III. - With respect to grievances
to the Freedom of Undertaking
According to your jurisprudence, "it is permissible for the legislator to bring to the freedom to undertake" which has constitutional value because "it stems from Article 4 of the DDHC" - "restrictions related to constitutional requirements or justified by the general interest, provided that it does not result in disproportionate breaches of the objective pursued" (2000-433 DC of 27 July 2000; 2000-439 DC of 16 January 2001; 2001-451 DC of 27 November 2001).
From this point of view, it is assumed that this Act provides limitations on the freedom to undertake, and that these limitations are related to constitutional requirements (right to employment, participation of workers in the collective determination of working conditions and management of enterprises) or justified by the general interest (preserving "at best" the rights of employees in the event of economic dismissal).
However, in the case of a case, it is possible to demonstrate that the legislator committed, in the exercise of its discretion, a manifest error of appreciation constitutive of an unconstitutional violation of the freedom to undertake.
1. In section 107:
This article provides a new definition of economic termination that limits its causes. Drafted without intervention by the Council of State, this provision affects the freedom to undertake.
In fact, with the new definition of the economic motive proposed by the law, the power of the judge and the administration of the work in the appraisal of this motive will be disproportionate, not only because of the use of vague notions, but also because one of the reasons ("serious difficulties could not be overcome by any other means...") will allow the judge and the administration to take control of
In addition, by limiting the list of economic situations that could be terminated (suppression of the adverb "in particular" that exists today in article L. 321-1 of the Labour Code), the legislator departs from situations imposed by common sense as the cessation of activity allowed by the Court of Cassation (Cass. soc. 16 January 2001). Thus, as an example, a head of business who would like to cease its activities - for quite legitimate reasons, would it be because it wants to stop working (if you are free to undertake, you are also free to no longer undertake) ... - cannot do so with the new article L. 321-1 of the Labour Code (since it can no longer dismiss its constitutionally owned business)
For all these reasons, Article 107 must be declared not in accordance with the Constitution.
2. On the whole device:
The entire anti-lighting device of this Act potentially leads to a demeasured elongation of the procedures that, for some companies, would pass between the time they were triggered until the effective termination date of the employment contract of the dismissed employees - from 106 days to 474 days.
The reasons in the new definition prevent any preventive measure to avoid dismissal in the presence of a degraded economic situation. However, by extending the procedures, there is an increase in the company's difficulties to the point that some companies will not be able to avoid recovery or judicial liquidation. Is that the goal? When it is found that in almost all cases economic dismissals intervene only in companies whose economic situation is very degraded, then the disproportionate breach of the freedom to undertake which this law is carrier.
IV. - With respect to the grievance
violation of the principle of equality
According to your jurisprudence, 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 of treatment resulting from it is directly related to the subject matter of the law that establishes it or that the legislator has based its assessment "on objective criteria and rationale".
Two sections of the bill referred to are likely to affect the principle of equality.
1. Article 96 ("Michelin Amendment")
According to this section, the employer must have entered into a work time reduction agreement for the collective duration of the work of the company's employees at a level equal to or less than 35 hours a week or 1,600 hours a year, or have commenced negotiations.
In principle, the conclusion of a collective work act is reserved for trade union organizations representative of employees who, in companies of at least fifty employees, have the opportunity to designate union delegates. In the absence of such delegates (many companies with more than 50 employees who do not have a union delegate), the employer is deprived of the opportunity to negotiate except to try to obtain the designation of an employee mandated under the mandate provided by the Aubry II Act of January 19, 2000, or possibly to negotiate with other interlocutors in accordance with the specific provisions of the aforementioned law. However, these derogatory formulas do not allow any collective agreement to reduce working time (e.g., reduction agreements without access to State financial aids). There is thus a difference in treatment between companies that is not justified.
For this reason, Article 96 must be declared not in accordance with the Constitution.
2. Article 113
This section provides that the rate of legal termination indemnity (C. trav. art. L. 122-9) is now different depending on whether the reason for termination is the reason provided for in section L. 321-1 or an inherent reason for the employee's person. Isn't there a breach of equality between dismissed employees?
One might think that this difference is due to the fact that the economic motive is not inherent to the employee's person. In a way, the employee is not there for anything; he is subject to the employer's decision, whereas for the termination inherent to his person, it is his behaviour that explains the termination of the employment contract. This reasoning is irrelevant as long as the termination for inherent reason is not based solely on an employee's fault. It is known, for example, that if article L. 122-45 of the Labour Code prohibits the dismissal of an employee in particular because of his or her state of health or disability, except incapacity found by the working physician in the context of title IV of Book II of the same Code, this text does not oppose the reasoned termination, not by the employee's state of health, but repeated by the objective situation of the replacement soc. 16 July 1998 - 13 March 2001). But why would the sick employee, who also suffers this situation, not be entitled to the legal compensation of dismissal perceived by an employee dismissed for economic reasons?
For this reason, article 113 must be declared not in accordance with the Constitution.
V. - With respect to the violation of section 8 grievance
of the Declaration of Human and Citizen Rights
(Article 100 of the Law)
According to your jurisprudence, "it is the result of the provisions of Article 8 of the DDHC, as fundamental principles recognized by the laws of the Republic, that a penalty can only be imposed on the condition that the principle of legality of offences and penalties be respected, the principle of necessity of penalties, the principle of non-retroactivity of the criminal law of more severe criminality as well as the principle of respect for the rights of the defence and
As a result, the principle of legality of offences and penalties applies to administrative sanctions in the same way as to criminal sanctions and implies that the constituent elements of the offences are defined in a precise and complete manner.
It is the legislator's responsibility to "proportionate repression to the seriousness of the lack of administrative authorization" both with regard to the choice of sanctions and their magnitude, which must be based on the seriousness of the breaches committed and the benefits derived from the breach.
These principles are not complied with in this Act with respect to section 100 of the Act, which provides in a new section L. 431-5-1 of the Labour Code that "the absence of information from the business committee, the members of the group committee and, where applicable, the European works council pursuant to the above provisions is liable to penalties provided for in sections L. 483-1, L. 483-1-1 and L. 483-1-1".
However, this is demonstrated above, the conditions for the existence and implementation of the obligation of information to the head of business are particularly vague and subject to interpretations. As a result, since the constituent elements of the offence punishable by the above-mentioned penalties are not defined in a "specific and complete" manner, section 100 of the law once again impairs unconstitutionality for violation of the provisions of section 8 of the DDHC of 1789.
For these reasons, and for any other reason that your counsel may wish to raise, the authors of this case ask the Constitutional Council to declare this Law of Social Modernization contrary to the Constitution.
(List of signatories: see Decision No. 2001-455 DC.)
