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RATIFIED N° 2007-329 OF 12 MARCH 2007
RELATING TO THE CODE OF WORK (LEGISLATIVE PART)
Mr President of the Constitutional Council, ladies and gentlemen, members of the Constitutional Council, we have the honour to refer you, in accordance with the second paragraph of the Constitutional Council.Article 61 of the Constitution, the whole law ratifying theOrder No. 2007-329 of 12 March 2007 Labour Code (Legislative Party).
In support of this referral, we develop the following grievances.
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In accordance with the provisions ofArticle 38 of the Constitution,Article 84 of Act No. 2004-1343 of 19 December 2004 Simplification of the Law empowered the Government to adapt by order the legislative part of the Labour Code. Section 92 of the Act set a period of eighteen months for the promulgation of this order.
This time has proved inadequate,Article 57 of Act No. 2006-1770 of 30 December 2006 for the development of employee participation and shareholding and bringing various economic and social provisions, in its I, again authorized the Government to make an order to adapt the legislative provisions of the Labour Code. The legislator then considered it appropriate to indicate that this adaptation should be done on a consistent basis in order to include provisions of a legislative nature that have not been codified, to improve the code plan and to remedy, if any, errors or deficiencies of codification.
The legislator's authorization was on this occasion strictly defined by a reminder of the requirement for a codification under constant law and for an additional nine months. It is under these conditions that Order No. 2007-329 of 12 March 2007 on the Labour Code was issued in the Official Gazette of 13 March 2007 and proposed to be ratified.
The authors of the referral intend to clarify that the codification procedure by way of an order following the legislative authorization may be a shared objective as long as it meets the requirements of the matter: double respect for the principles of codification under constant law and constitutional principles of legal security, legibility and intelligibility of the law. In this case, the ratification of the order of 12 March 2007 is not merely intended to comply with Article 38 of the Constitution and to allow the legislator to adjust the provisions subject to ratification. The report of the Committee on Cultural, Family and Social Affairs of the National Assembly (No. 436, page 5) indicates that the interest of a law of ratification is also to render irrelevant appeals to the administrative jurisdiction against this order by giving a legislative value to the order it ratifies.
This clearly claimed intention of the legislator gives a particular meaning to the foreword, written by Mr. Christophe Radé, professor at the University of Bordeaux, of the Dalloz code of the new legislative section of the Labour Code: It is now too early to determine the impact of this recodification on labour law. Even if one can reasonably think that in the vast majority of cases the rewriting of certain provisions deemed obsolete, the splitting of the most voluminous articles and the consolidation of the provisions so far scattered should not alter their interpretation, several months or even several years, will undoubtedly be necessary for this new code to reveal all its secrets.
In addition to the fact that the new legislative part of the Labour Code is published before Parliament has finally passed the Act of Ratification of the Order of March 12, 2007, this citation leaves perplex with respect to the constitutional requirements of legibility and intelligibility that must be met by law ratifying the Codification Order of the Legislative Part of the Labour Code.
Since codification is supposed to improve the accessibility and legibility of law, it seems at least paradoxical to read that, in this case, it will take months or even years to ensure that the new code is no longer a secret for employees and employers, trade union organizations and staff representatives, labour inspectors and employers.
It also leaves perplexed with respect to a codification of a constant law, and beyond respect for articles 34 and 37 of the Constitution, as it appears that in some cases the interpretation of the new articles of the Labour Code may be modified.
To denounce this double breach, the authors of the referral recommend reading articles of doctrine, that of Professor Emmanuel Dockès, professor at the University of Lyon, published in the Revue de droit social in April 2007, that of Professor Bernard Teyssié, professor at the University Panthéon-Assas, published in the Legal Week in March 2007, or that of Alexandre Fabre, Doctor of Law, and Paris
These very severe articles on the codification order reveal these breaches to the constitutional requirements. Several legislative provisions of the old code are no longer found in the new legislative section. Other provisions are moved to other codes. Finally, many legislative provisions are declassified into regulatory provisions.
The legislator's authorization for a codification of constant law is not, far from necessary, scrupulously respected. These are the principles of legal security, the constitutional requirements for accessibility and intelligibility of the law and the respect of articles 34 and 37 of the Constitution which are thus unrecognized.
1. On the constitutional requirement of readability
and accessibility of the law
On the basis of Article 38 of the Constitution, the Government may proceed with a codification in a constant manner. La La La La La La La La La La La La La La La La La La La La La La La La La La La La La La La La La La La La La La Constitutional Council decision No. 99-421 DC of 16 December 1999 the Government's enabling legislation to make, by order, the adaptation of the legislative part of certain codes has clearly specified the conditions that the Government then imposes.
Thus, equality before the law drawn from theArticle 6 of the Declaration of Human and Citizen Rights of 1789 and the guarantee of rights arising from article 16 may not be effective if citizens do not have sufficient knowledge of the standards that apply to them.
Knowledge of the law is essential to the exercise of the rights and freedoms guaranteed by the articles 4 and 5 of the Declaration of Human and Citizen Rights. In other words, the codification must meet the objective of constitutional value of accessibility and intelligibility of the law.In the absence of this, the excessively complex provisions regarding the ability of citizens to effectively measure their scope will only be censored. Recently, the Constitutional Council censored section 78 of the Financial Act for 2006 (Decision No. 2005-530 DC of 29 December 2005), establishing a tax cap system.
The codification order of March 12, 2007, which the proposed legislation proposes to ratify, is so complex and confusing that it is illusory to imagine that on the one hand citizens are now able to exercise their rights, and that on the other hand these rights are effectively guaranteed. The equality of citizens before the law is all the more forceful because the Labour Code governs the labour relations of 21 million employees and their employers.
1. 1. Breaking the work code
The order of March 12, 2007 transfers many provisions from the old labour code to other legislative codes, the code of social action and families, the code of national education, the rural code, the mining code....
For example, the provisions establishing health and safety commissions in each technical high school and every vocational high school and specifying their mission fixed to theArticle L. 231-2 of the old Labour Code meet at theArticle L. 421-25 of the Education Code.
The authorization granted to the Government does not authorize such transfers. They create a form of break-up and segmentation of the labour code prejudicial to the accessibility of the law. The shift from a unified labour relations code to rules scattered between different codes entails the risk of a non-readable sectoral labour law due to the unified treatment of labour relations, the only guarantee of protective social standards common to all employees.
The passage of common rules present in a unique code to rules scattered on several different codes is a source of additional complexity. The coherence and legibility of labour law imposes, on the contrary, general rules valid for all employees. Although atomization and simplification riment, these two words are not synonymous.
By adopting theArticle 57 of Act No. 2006-1770 of 30 December 2006Parliament did not allow the Government to outsource provisions in the former Labour Code. However, by presenting, at the 3rd meeting on Tuesday, 4 December 2007, the Government's opinion on amendments 114, 160, 159 and 161 to article 2 of the bill of ratification, the Minister of Labour, Social Relations and Solidarity considered that these amendments challenged the scope of the new Labour Code. It should be said that the Government was beyond Parliament's authorization.
1. 2. Redesign of the work code plan
The order of March 12, 2007 defines a new plan, numbering and a renewed nomenclature. To the eight parts of the old labour code, nine books are passed for the new code, the number of articles is almost doubled from 1,891 to 3,652 despite a large number of legislative downgradings to the regulatory order, as evidenced by the parliamentary reports of the Senate and the National Assembly on the bill of ratification. The report of the Social Affairs Committee of the Senate refers to approximately five hundred decommissioning operations, of which 61 per cent relate to the totality of one item (report No. 459, page 14).
The general principle that guided the writing of the new code is to present an idea by article. However, there is no a priori reason that the increase in the number of articles within the resulting Labour Code leads to a more complex use. Unfortunately, this general principle leads to dismemberment, a source of difficulty for the users of the code all the more important because it leads to the same main rule of law, the resulting rule and the possible derogation.
For example,former article L. 122-14-4 in respect of compensation due to non-compliance with the termination proceedings is broken down into six articles, which acquire the same value and may be read independently from each other. The accessibility of the law is neither maintained nor improved.
The transfer of articles in the books of the old code to the chapters of the new one reinforces the lack of readability of the labour code. Thus, the articles on wages in Book I of the old Labour Agreements Code are now included in the third part relating to the duration of work, interest, participation and wage savings and not in the first part relating to individual labour relations, or in the second part relating to collective labour relations.
It is difficult to understand for code users why wage provisions are not included in the new first part on labour relations. Indeed, in doing so, the order of March 12, 2007 puts on the same plan salary, working time, participation and wage savings.
This location of wage-related items within the new Labour Code goes well beyond the principle of including an idea per article. It leads to the fact that ultimately the content of the articles no longer corresponds to the titles. The unreadable and unaccessible character for employees and their representatives as well as for their employers of the new code is thus the direct consequence of the codification provided by the order of 12 March 2007.
Similarly, in the new part, all aspects of termination are dealt with, including provisions relating to collective proceedings in the context of economic dismissals. In the old code, these articles were included in Book III entitled Placement and Employment, as they were responding to an employment prevention approach and not to the sole treatment of social consequences for each employee.
Again, the new plan sets out the provisions so far in force to seriously compromise the accessibility and legibility of the new Labour Code.
1. 3. The method of codification
adopted by the Government
The method chosen by the regulatory authority entails a total illegibility of the law. The correspondence table published in the Official Journal annexed to the order between the former and the new articles of the Labour Code does not allow at this stage of the codification procedure to identify the reasons why the standards were repealed. A number of reasons may be invoked in this regard, duplicates, changes in legal or de facto circumstances, outsourcing, or declassification in the regulatory part of the code.
As long as the regulatory part of the code is not published in the Official Gazette, it is not enforceable to the lawsuits. It is impossible in these circumstances to ensure the right of effective remedy. It is indeed the principle of legal security and the imperative of legal readability and accessibility of the law which is thus severely hampered.
2. On constant law codification
and compliance with articles 34 and 37 of the Constitution
TheArticle 57 of Act No. 2006-1770 of 30 December 2006 provides in its II that the codified provisions are those in effect at the time of the issuance of the order. The only accepted amendments are those made necessary to ensure respect for the hierarchy of standards and the editorial coherence of the texts collected, to ensure the harmony of the law, to remedy possible errors and to repeal the provisions that have become irrelevant.
It appears from this article that the legislator did not authorize the Government to enact new nonnes under the Act.Article 34 of the Constitutionunder which the law determines, inter alia, the fundamental principles of labour law. The Government has simply been authorized under theArticle 38 of the Constitution to codify existing legislation with constant law, without changing the content or scope of these provisions.
The possible repeals, the declassifications of the legislative order to the regulatory order, such as the amendments of a particular provision within the legislative part of the Labour Code, could not have the effect of modifying the rule of law.A fortiori, any provision that would consist in the addition of a new provision within the scope of Article 34 of the Constitution, which would thus be based on the principle of a codification to i
However, the Government, as part of the order of 12 March 2007, went very far beyond the exceptions provided for in Article 57 of the Act of 30 December 2006, to the principle of codification in constant law. In doing so, he ignored and moved the border between Article 34 and Article 37 of the Constitution.
2. Declassification of legislative norms
regulatory standards
Pursuant to section 57 of the Act of 30 December 2006, the Government does not have any explicit or implicit authorization to declass articles from the legislative part of the Labour Code, on the pretext that they would fall within its own regulatory authority.
The only explicit authorization granted to the Government concerned a constant adaptation of the legislative provisions. It means that Parliament did not wish to delegate to the regulatory authority its normative competence derived from Article 34 of the Constitution for labour law.
The report of the Senate Social Affairs Committee on the first reading review of the bill describes the main provisions referred from the legislative part to the regulatory part. The declassification includes provisions relating to the designation of the administrative authority and the competent court.
For example, Article L. 423-3 of the old code provides that the pre-election agreement that can change the number and composition of the electoral colleges is necessarily transmitted to the labour inspector. In the new code, the transmission is made to the administrative authority. It appears on the reading of the report of the Senate that it will be the regulatory authority to designate the authority in question.
Amendment No. 149, presented at the 3rd meeting of Tuesday, December 4, of the National Assembly, was intended to restore in new article L. 2314-11 of the Labour Code the reference to the labour inspector, rather than leaving the reference to the competent administrative authority. This decommissioning exercise, in accordance with the information contained in the report of the Senate Social Affairs Committee, is not intended to better enforce the division between the law and the regulations. It is important to refer to the regulatory authority one of the skills of the labour inspection to date in the legislative area.
Similarly, Amendment No. 150, also presented at the 3rd meeting on Tuesday, 4 December of the National Assembly, also went on to maintain the status and independence of the labour inspection, protected by International Labour Organization Convention No. 81. In reality, the rejection of this amendment reflects a significant change in the work inspection missions, which cannot be the sole regulatory authority.
This declassification allows to circumvent the guaranteed independence of the labour inspectors and to delegate, without legislative amendment, many of their duties to the departmental directors of work under the direct supervision of the competent ministry.
Similar observations can be made on the reference made in the new code to the judicial authority instead of the human rights council. This change does not correspond to a simple exercise of vocabulary, it leads to a change in the skills and duties of the human rights councils, which goes far beyond the empowerment granted to the Government by the law of 30 December 2006.
By doing so, the Government allows the construction of a labour code where administrative and judicial oversight bodies are no longer specific to it. Such changes ultimately contravene the exercise of the powers of the legislature, while the empowerment has not authorized it.
2. 2. Introducing elements into the code
jurisprudence
Pursuant to section 57 of the Act of 30 December 2006, the Government has no authorization to make additions, including the introduction of elements of a legal nature into the legislative part.
If jurisprudence is a source of law, there is no indication that it is necessary to codify it and thus give it the force of law. Indeed, it is not a source of law like others. It is characterized by a form of rooting in the context of the moment and from this point of view has a double essential quality of adaptability and flexibility. By codifying it, it loses this double quality without automatically acquiring the consistency and stability of the law.
In addition, within the hierarchy of standards, the level of the jurisprudential rule corresponds to that of the judge in the same hierarchy. The judge may adapt and specify the jurisprudence rules to the specificities of the moment. The codification of jurisprudence not only undermines its flexibility, but in some way overrides the hierarchy of norms, beyond what is provided in Article 34 of the Constitution.
For example,article L. 1233-2 of the new code provides for the obligation that dismissal on economic grounds has a real and serious cause. This last notion is only in theArticle L. 122-14-3 of the old code which does not deal with economic termination, falling under Book III. Jurisprudence, having considered that certain provisions of Book I were intended to apply to all breaches of employment contract at the initiative of the employer, considered that the economic cause defined in theArticle L. 321-1 of the old code was a real and serious cause.
This jurisprudential interpretation is now integrated into the new Labour Code, yet it is not the legislator who claimed that economic dismissal must proceed not only from an economic cause, but also from a real and serious economic cause. This addition from the case law goes well beyond the authorization granted to the Government by the law of 30 December 2006 of a codification with constant law. The Government thus enacts new legislative rules under Article 34 of the Constitution without having been authorized to do so.
2. 3. The transformation of the scope of the legislative rules
The use of this code in the articles of the new code erases any form of implementation of obligations made especially to employers. This change is far from neutral. The formulas the employer must inform does not have the same value as the formula the employer informs. As a result, the scope of employers' obligations can be reduced, in contradiction with the authorization granted by Parliament of a coding under constant law. This is not a simple question of vocabulary either. This is a change in the scope of legislative standards.
In addition, the Government has made numerous additions of standards that do not meet the requirements of constant law codification, which are neither necessary for the harmonization and coherence of texts, nor a fortiori for the respect of the hierarchy of standards.
For example, articles L. 1221-14 and L. 3243-5 of the new Labour Code include the use of information technology to deviate from the maintenance of a single staff register or the retention of payroll. Similarly, the Government has defined itarticle L. 1251-1 the concept of temporary work and the contracts to which it provides.
At the same time, the Government has clearly repealed many provisions. The missions to the Labour Inspectors for the Control of Equal Pay between Men and Women and the finding of offences under the SMIC provisions are no longer included in the articles of the new Labour Code.
The Government has similarly established the main rule and its derogatory extension. Thus, the extension of the plans in days to non-workers was included in the old labour code, in the III of thearticle L. 212-15-3 special provisions for executive employees. In the new Labour Code, these provisions defined as derogatory to the rule of law are contained in an independent section on non-framework day packages. In doing so, they are disconnected from the rules and guarantees introduced by the Act No. 2000-37 of 19 January 2000 on the negotiated reduction of working time for executive employees.
The new wording exceeds the framework of a codification under constant law. The absence of a reference to mandatory clauses for non-manager agreements will lead to interpretation disputes that are harmful to non-manager employees. By placing the rule and derogation on the same level, the Government has again made legislative amendments without the authorization to do so by the enabling law of 30 December 2006.
The parliamentary debates in the National Assembly have translated the magnitude of the changes in the scope of the legislative rules involved in the order of 12 March 2007.
For example, Amendment No. 76, presented at the 3rd meeting on Tuesday, 4 December 2007, provides that in the new article L. 1233-17 of the new code or made the reference toarticle L. 1233-5, just likeformer article L. 122-14-2 mentioned thearticle L. 321-1-1. Thus, the employer's notification to employees of the criteria used to determine the order of termination refers to the article that sets the terms and conditions of definition. Without this reference, the criteria could be different from those strictly defined.
Amendment No. 31 rectified, presented at the 1st meeting on Wednesday, December 5, 2007, covers the opening of the stores on Sunday. Thearticle L. 3132-12 includes an additional criterion compared toarticle 221-6 of the old code on this point. The reference in the new code to the needs of the public for the opening on Sunday takes the place of the concept of harm to the public. Such an amendment is also not strictly semantic.
The rejection of this amendment, which proposed to delete the reference to the needs of the public, reflects the intention of a generalization of the opening of stores on Sunday, as the concept of public needs is very wide. By doing so, Sunday's closure may become the exception. Authorization to the Government did not address this issue.
There are many examples of changes in the scope of legislative rules. Thus, the requirement for constant law codification from the Act of 30 December 2006 was not met with respect to the local law of Alsace-Moselle. The debates on Amendment No. 187 presented at the 3rd meeting on Tuesday, 4 December 2007 testify to this. The scope of local law is changed, without the Government's authorization.
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All these examples show that it is totally impossible, in the face of the order of March 12, 2007, that the law proposes to ratify, to speak of codification in constant law. The authorization granted to the Government was not respected. As Professor Radé pointed out in the foreword of the Dalloz code, resuming the legislative part of the new Labour Code, the rewriting of certain provisions would inevitably alter their interpretation.
This is not acceptable, to the extent that, in doing so, the ratification law is contrary to the constitutional requirements for accessibility and legibility and that the scope of the law will be amended without Parliament having been able to rule under a normal legislative process. The authorization granted by Parliament to the Government under the Act of 30 December 2006 is completely violated. The law of ratification can only be censored under these conditions.
