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Decision No. 2010-63/64/65 Qpc's November 12, 2010

Original Language Title: Décision n° 2010-63/64/65 QPC du 12 novembre 2010

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JORF n°0263 of 13 November 2010 page 20238
text No. 94



Decision No. 2010-63/64/65 QPC of 12 November 2010

NOR: CSCX1028881S ELI: Not available



(NATIONAL FEDERATION CFTC
DE SYNDICATS DE LA MÉTALLURGIE)


The Constitutional Council was seized on 21 September 2010 by the Court of Cassation (Social Chamber, Decisions No. 1947, 1948 and 1949 of 20 September 2010), under the conditions provided for in Article 61-1 of the Constitution, of three priority questions of constitutionality raised by:
― Ms. Katia P. and the CFTC National Federation of Metallurgy Trade Unions and on the conformity of the rights and freedoms guaranteed by the Constitution Articles L. 2121-1, L. 2122-1 and L. 2122-2 of the Labour Code (QPC No. 2010-63)
- Ms. Laurence S. and the National Union of Commercial Airborne Personnel on Compliance with the Rights and Freedoms guaranteed by the Constitution in articles L. 2122-1, L. 2122-2 and L. 2143-3 of the same Code (QPC 2010-64);
― the National Union of Agricultural Mutual Practitioners and Compliance with Rights and Freedoms guaranteed by the Constitution in article L. 2122-2 of the same Code (QPC No. 2010-65).
The Constitutional Council,
Considering the Constitution;
See?Order No. 58-1067 of 7 November 1958 amended Act on the Constitutional Council
In view of Constitutional Council Decision No. 2010-42 QPC of 7 October 2010 declaring theArticle L. 2122-2 of the Labour Code in accordance with the Constitution;
Vu le Labour code ;
Having regard to the Regulation of 4 February 2010 on the procedure before the Constitutional Council on priority constitutional issues;
In view of the comments made by SCP Ghestin, a lawyer at the State Council and the Court of Cassation, registered on 12 October 2010 for Ms. Laurence S. and the National Union of Commercial Airborne Personnel;
Considering the observations produced for the Social Agricultural Mutuality of Maine-et-Loire by SCP Celice, Blancpain, Soltner, lawyer at the State Council and the Court of Cassation, registered on 12 and 27 October 2010;
Having regard to the observations made for the company BRIT AIR by SCP Celice, Blancpain, Soltner, lawyer at the State Council and the Court of Cassation, registered on 12 October 2010;
Considering the comments made by the Prime Minister, recorded on 13 October 2010;
Considering the observations produced for the CGT APAVE SUD EUROPE by Mr. Karim Hamoudi, lawyer at the Paris Bar, registered on 26 October 2010;
In view of the observations made for the National Union of Agricultural Mutual Practitioners, Ms. Isabelle D. and Mr. Guy R. by SCP Waquet, Farge, Hazan, lawyer at the State Council and the Court of Cassation, registered on 27 October 2010;
Considering the parts produced and attached to the files;
Ms. Claire Waquet for Ms. D., Mr. R. and the National Union of Agricultural Mutual Practitioners, Mr. Damien Celice for BRIT AIR and the MSA in Maine-et-Loire and Mr. Xavier Pottier, appointed by the Prime Minister, having been heard at the public hearing on November 4, 2010;
The rapporteur was heard;
1. Considering that these priority questions of constitutionality should be added to decide by a single decision;
2. Considering that to terms of Article L. 2121-1 of the Labour Code "The representativeness of trade union organizations is determined on the basis of the following cumulative criteria:
« 1° Respect for Republican values;
« 2° Independence;
« 3° Financial transparency;
« 4° A minimum age of two years in the professional and geographical field covering the level of negotiation. This ageing is appreciated from the date of legal filing of the statutes;
« 5° The hearing established at the negotiating levels in accordance with sections L. 2122-1, L. 2122-5, L. 2122-6 and L. 2122-9;
« 6° Influence, primarily characterized by activity and experience;
« 7° Membership and contributions. »
3. Considering that pursuant to Article L. 2122-1 of the same code: "In the company or institution, trade union organizations that meet the requirements of Article L. 2121-1 are representative and that have collected at least 10% of the votes cast in the first round of the last elections of the holders to the corporate committee or the sole delegation of the staff or, if not, delegates of the staff, regardless of the number of votes cast;
4. Considering that pursuant to Article L. 2122-2: "In the company or institution, are representative of the staff members of the electoral colleges in which their statutory rules give them the purpose of presenting candidates the trade union organizations of the category affiliated to a trade union confederation category of national interprofessional that meet the criteria of Article L. 2121-1 and that have collected at least 10% of the votes
5. Considering that pursuant to Article L. 2143-3: "Every representative trade union organization in the company or establishment of fifty or more employees, which constitutes a trade union section, shall be among the candidates for professional elections who have collected at least 10% of the votes cast in the last round of the elections to the board of business or the single delegation of staff or delegates of staff, regardless of the number of voters, within the limits set to 1243
"If a representative trade union organization does not remain in the company or institution, no candidate in the professional elections who meets the conditions mentioned in the first paragraph may designate a representative trade union delegate from among the other candidates or, if not, from among its members within the company or institution.
"The designation of a trade union delegate may take place when the number of employees or more has been reached for twelve months, consecutive or non-consequential, in the previous three years";
6. Considering that, according to the applicants, these articles ignore the freedom of association, the principle of participation of workers in collective determination of working conditions and the principle of equality before the law;
7. Considering, first of all, that, as the Constitutional Council ruled in its decision of 7 October 2010, defining criteria for the representativeness of the trade unions and setting a threshold of representation to 10% of the votes cast in the first round of the last professional elections regardless of the number of voters, the legislator did not misunderstand the principles set out in the sixth and eighth preambular paragraphs of the 1946 Constitution; that, thereafter, Articles L. 2121-1 and L. 2122-1 of the Labour Code are not contrary to the Constitution;
8. Considering, secondly, that, by the same decision of 7 October 2010, the Constitutional Council declared the Constitution in conformity with the ConstitutionArticle L. 2122-2 of the Labour Code which establishes specific rules for calculating the hearing of the class trade unions; that, subsequently, there is no need for a further review of the constitutionality of this article;
9. Considering, in the third place, that by requiring representative trade unions to choose, as a priority, the union delegate among the candidates who obtained at least 10% of the votes cast in the first round of the last professional elections, Article L. 2143-3 associates the employees with the designation of the recognized persons most capable of defending their interests in the company and leading the negotiations on their behalf; that by adopting this article, the legislator did not misunderstand the principle of trade union freedom set out in the sixth preambular paragraph of 1946;
10. Considering that the Articles L. 2121-1, L. 2122-1 and L. 2143-3 of the Labour Code are not contrary to any other right or freedom guaranteed by the Constitution,
Decides:

Article 1 Learn more about this article...


It is not necessary for the Constitutional Council to rule on the priority issue of constitutionality referred to by the Court of Cassation and relating toArticle L. 2122-2 of the Labour Code.

Article 2


Articles L. 2121-1, L. 2122-1 and L. 2143-3 of the same Code are in conformity with the Constitution.

Article 3 Learn more about this article...


This decision will be published in the Official Journal of the French Republic and notified under the conditions set out in thesection 23-11 of the above-mentioned order of 7 November 1958.
Deliberated by the Constitutional Council in its session of November 10, 2010, where were: Mr. Jean-Louis DEBRÉ, President, Mr. Jacques BARROT, Ms. Claire BAZY MALAURIE, Mr. Guy CANIVET, Michel CHARASSE, Renaud DENOIX de SAINT MARC, Ms. Jacqueline de GUILLENCHMIDT, Mr. Hubert HAENEL and Pierre STEINMETZ.


The president,

Jean-Louis Debré


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