Key Benefits:
FEDERAL FUNCTIONAIRES-CGT AND OTHER FEDERATIONS)
The Conseil constitutionnel was seized on 4 April 2011 by the Conseil d' Etat (Decision No. 345767, 345768, 345810 of 4 April 2011), in The conditions laid down in Article 61 (1) of the Constitution, of a priority question of constitutionality laid down by the General Union of the Labour Federations of CGT (UGFF-CGT), the Unitary Union Federation (FSU) and Mr Denis R., relating to Conformity with the rights and freedoms guaranteed by the of the provisions of Articles 36, 44 bis to 44 quinquies, 51 and 60 Act No. 84-16 of January 11, 1984 Statutory provisions relating to the public service of the State in their drafting of the Act No. 2009-972 of 3 August 2009 on mobility and routes Public Service professionals.
The Constitutional Council,
Given the Constitution;
Given theAct No. 58-1067 of 7 November 1958 Organic on the Constitutional Council;
Seen Law n ° 84-16 of 11 January 1984 laying down statutory provisions relating to the public service of the State, as amended in particular by the Law n ° 2009-972 of 3 August 2009 on mobility and career paths in the public service;
Due to the Regulation of 4 February 2010 on the procedure followed Before the Constitutional Council on priority constitutionality issues;
In view of the observations made by Mr Denis R., registered on 15 April 2011;
In view of the observations produced by the UGFF-CGT, registered on 20 April 2011;
In view of the observations submitted by the Prime Minister, recorded on 27 April 2011 ;
In view of the observations made for the FSU, by CPC Gatineau, Fattacini, a lawyer at the Conseil d' Etat and the Court of Cassation, registered on 13 May 2011;
Seen the documents produced and attached to the file;
Mr Xavier Pottier, appointed by the Prime Minister, having been heard at the public hearing on May 24, 2011;
Le Rapporteur having been heard;
1. Considering that, according to Article 44a of the Law of 11 January 1984 as amended: In the event of a restructuring of the administration of the State or of one of its administrative public establishments, the staff member may be placed in a position of professional reorientation if his employment is liable to be abolished. ' ;
2. Considering that under section 44 ter of the same Act: " The Administration shall establish, after consultation with the staff member in a position of professional reorientation, a personalised professional development project which is intended to facilitate his assignment in a job corresponding to his grade, Situated in its service or in another administration, or to allow it to access another body or framework of jobs at least equivalent. The project can also be designed to help it gain access to a job in the private sector or to create or resume a business.
" During the reorientation, the staff member is required to follow the actions of orientation, training, evaluation and validation of the acquis of the professional experience designed to promote its reorientation and for which it is a priority. It also has priority over the professionalization period.
" The administration guarantees individualised and regular follow-up, as well as support in its reorientation. It shall, subject to the provisions of the fourth paragraph of Article 60, assign it, subject to the provisions of the fourth paragraph of Article 60, to jobs created or vacant corresponding to its rank and to its personalised professional development
. An official may be called upon to perform temporary assignments on behalf of his or her administration or other administration. The tasks assigned to it must be placed in the personalised project " ;
3. Considering that under Article 44c: " Career reorientation ends when the employee accesses a new job.
" It may also end, on the initiative of the administration, when the official has successively refused three firm and precise public employment offers corresponding to his grade and to his personalized career development project, and Taking into account his or her family status and the usual place of residence. In this case, it may be placed on Office availability or, where appropriate, admitted to retirement " ;
4. Considering that Article 44 quinquies: An Order in Council of State shall specify the conditions for the implementation of this sub-section " ;
5. Considering, moreover, that under the terms of section 36 of the Act: " For the purposes of the fourth paragraph of Article 12 of Title I of the General Staff Regulations and without prejudice to placement in a vocational reorientation provided for in sub-section 3 of this section, in the case of job removal, the Employee shall be employed in the employment of his or her body of origin as required by temporary oversupply " ;
6. Considering that Article 51 reads as follows: Availability is the position of an employee who, outside his or her original administration or service, ceases to be entitled, in this position, to his or her rights to advancement and retirement
The availability shall be pronounced either at the request of the person concerned or ex officio at the expiry of the leave provided for in the 2 °, 3 ° and 4 ° of Article 34 above or in the case provided for in the second subparagraph of Article 44c. A staff member who is laid off who successively refuses three posts proposed for his reinstatement may be dismissed after the opinion of the Joint Administrative Committee " ;
7. Considering that Article 60: The competent authority shall carry out the movements of officials after the opinion of the joint administrative
. In the administrations or services in which periodic tables of change are drawn up, the opinion of the committees shall be given at the time of the establishment of these tables
However, where there are no transfer tables, only deployments involving change of residence or change in the situation of the person concerned are subject to the opinion of the
. To the extent compatible with the proper functioning of the service, the assignments must take into account the requests made by the persons concerned and their family status. Priority is given to civil servants separated from their spouses for professional reasons, to civil servants separated for professional reasons by the partner with whom they are bound by a civil pact of solidarity when they produce Proof that they are subject to the common taxation obligation under the General Tax Code, to employees with disabilities who fall within one of the Categories mentioned at 1 °, 2 °, 3 °, 4 °, 9 °, 10 ° and 11 ° of Article L. 323-3 of the Labour Code and to the officials who perform their duties, during A period of time and according to terms and conditions laid down by decree in the Council of State, in an urban area where there are particularly difficult social and security problems. Priority is also given to employees placed in a position of career reorientation for jobs corresponding to their personalized career development project.
" In the case of filling a vacancy affecting the functioning of the service and to which it is not possible to provide by another means, even on an interim basis, the deployment may be pronounced subject to further examination By the competent committee " ;
8. Considering that, according to the applicants, by adopting the provisions relating to the system of professional reorientation of officials by the law of 3 August 2009 referred to above, the legislature disregarded the scope of its own competence as well as The objective of the constitutional value of intelligibility and accessibility of the law; that they support, moreover, that by questioning the principle of career in the public service of the State, those provisions infringe the principle of Continuity of the State and the public service; that they argue that these provisions Disregard the principle of equality before the law and public employment when they establish differences in treatment between civil servants and employees of the private sector, with regard to the protection afforded to representatives of the Staff, between civil servants according to whether or not they are placed in a position of professional reorientation and, finally, between officials who are in a position of professional reorientation; that they also invoke the violation of freedom Union and the principle of worker participation in determination Working conditions;
9. Considering that Mr R. also maintains that these provisions disregard the constitutional principle of the independence of teaching-researchers;
On negative incompetence:
10. Whereas under the first paragraph of Article 61-1 of the Constitution: Where, on the occasion of an ongoing proceeding before a court, it is submitted that a legislative provision infrings the rights and freedoms guaranteed by the Constitution, the Constitutional Council may be seized of this matter on Reference by the Council of State or the Court of Cassation, which shall take a decision within a specified period of time " ; that the legislator's lack of knowledge of its own jurisdiction can be invoked in support of a priority issue of constitutionality only in the case of a right or freedom guaranteed by the Constitution;
11. Considering that it is for the legislature, under Article 34 of the Constitution, to lay down the rules concerning the fundamental guarantees granted to civil and military civil servants of the State;
12. Considering that the contested provisions relate to the situation of professional reorientation in which an official is placed in the event of restructuring of an administration of the State or of one of its public establishments That the employment is liable to be deleted; that they also define the rights and duties of the official concerned; that those provisions do not have the effect of giving the regulatory authority the definition of Rules or principles that the Constitution has placed in the field of law;
On The principle of continuity of state and public service:
13. Taking the view that the contested provisions have neither the object nor the effect of undermining the principle of continuity of the State or the public service; that, in any event, they also have no purpose or effect to call into question The rule that the public service is organized according to the career regime; that, therefore, the grievance is in fact missing;
On the freedom of association and the principle of participation:
14. Whereas under the sixth preambular paragraph of the Preamble of the Constitution of 1946: Every man can defend his rights and interests through trade union action and join the trade union of his choice " ; that its eighth paragraph reads as follows: Every worker shall participate, through his or her delegates, in the collective determination of working conditions and in the management of undertakings " ;
15. Considering, first, that civil servants benefit, as a whole, from a statutory protection; that the latter benefit, in particular, from those who have representative or trade union functions;
16. Considering, in the second place, that, pursuant toArticle 15 of the aforementioned Law of 11 January 1984, in all Administration of the State and in all its public establishments not presenting an industrial or commercial character, it is established one or more technical committees; that these committees, which include representatives of the administration and of the Staff representatives, are in principle aware of issues The amendments made by the Act of 3 August 2009 referred to in the Act of 11 January 1984 did not have the effect of excluding the competence of these Committees on matters relating to the Restructuring of the administration or the public establishment in which they are established; that, in those circumstances, the complaint alleging ignorance of the principle laid down in the eighth preambular paragraph of 1946 is in fact missing;
17. Considering, in the third place, that the law of 3 August 2009, of which the contested provisions come from, does not modify thearticle 14 of the Act of 11 January 1984 referred to above which confers on the joint administrative committees a consultative competence on the individual decisions affecting the members of the body or bodies concerned; that the decree implementing this Article 14 sets out the list of individual decisions Who is a national of the competence of these committees; that it is for the judge of the decree to ascertain whether the placement measure in a position of professional reorientation of an official invested or not of representative or trade union functions must have been In respect of its scope, be included in this Order in respect of the measures for which these committees are to be consulted;
18. Considering, in the fourth place, that the administrative decisions adopted pursuant to the contested provisions are placed under the control of the administrative court to which it will be responsible, where appropriate, to ensure that the measures of Career reorientation that could affect these employees, as well as lay-off or retirement admissions that may result from their representative or union functions ;
19. Considering that it follows from the above that the objections drawn from the ignorance of the Preamble of 1946 should be dismissed;
On the principle of equality:
20. Considering that Article 6 of the 1789 Declaration of the Rights of Man and the Citizen states: The law ... must be the same for all, either that it protects, or that it punishes " ; that the principle of equality does not preclude the legislator from dealing with different situations in different ways, nor that it derogates from equality for reasons of public interest, provided that, in either case, the difference in The resulting treatment is directly related to the purpose of the legislation that establishes it;
21. Considering, first, that civil servants are in a different situation from that of employees in the private sector; that, in consequence, by not providing, for officials with representative functions, the guarantees which Exist for employees with such functions in the private sector, the legislator has not disregarded the principle of equality before the law;
22. Considering, second, that the principle of equal treatment in the career of civil servants is likely to apply only between agents belonging to the same body;
23. Taking the view, in the third place, that the contested provisions, which allow the administration to place a civil servant whose employment is liable to be deleted, may result in distinctions Between agents belonging to the same body according to whether or not their administration is undergoing a restructuring with job losses; that, however, the differences in treatment which may result will satisfy a general interest That it was for the legislature to assess and are not, therefore, not Contrary to the Constitution;
24. Considering that it follows from the foregoing that the complaint alleging lack of knowledge of the principle of equality must be rejected;
On the principle of independence of teacher-researchers:
25. Considering that the guarantee of the independence of the teaching-researchers is the result of a fundamental principle recognised by the laws of the Republic; that the provisions criticised are not intended to derogate from the special rules relating to the Recruitment and appointment of teacher-researchers; furthermore, the application of Article 44b cannot, in the case of such staff, lead to a change of body; that, subject to this reservation, the contested provisions do not Reaching the independence of the teacher-researchers;
On the objective Interpretability and accessibility of the law:
26. Considering that, if the objective of the constitutional value of intelligibility and accessibility of the law, which is derived from Articles 4, 5, 6 and 16 of the 1789 Declaration, requires the legislator to adopt sufficiently precise provisions and In its own right, its ignorance cannot, in itself, be invoked in support of a priority question of constitutionality on the basis of Article 61-1 of the Constitution;
27. Considering that the contested provisions do not disregard any other right or freedom that the Constitution guarantees,
Decides:
Subject to the reservation set out in recital 25, the provisions of Articles 36, 44a to 44 quinquies, 51 and 60 of Law No. 84-16 of January 11, 1984 Statutory provisions relating to the public service of the State as a result ofArticle 7 of Law No. 2009-972 of 3 August 2009 Relating to mobility and career paths in The public service is in conformity with the Constitution.
This Decision shall be published in the Official Journal of the French Republic and notified in the Conditions set out inArticle 23-11 of the order of 7 November 1958 referred to above.
Issued by the Constitutional Council Mr Jean-Louis DEBRÉ, President, Mr Jacques BARROT, Mrs Claire BAZY MALAURIE, MM. Guy CANIVET, Michel CHARASSE, Renaud DENOIX de SAINT MARC, Mme Jacqueline de GUILLENCHMIDT, MM. Hubert HAENEL and Pierre STEINMETZ.
The President,
Jean-Louis Debré
