Decision No. 2011-148/154 Qpc's July 22, 2011

Original Language Title: Décision n° 2011-148/154 QPC du 22 juillet 2011

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JORF n ° 0169 of July 23, 2011 page 12651
text #106



Decision No. 2011-148/154 QPC of July 22, 2011

NOR: CSCX1120532S ELI: Not available



(Mr. BRUNO L. AND OTHER)


The Constitutional Council was seized on 4 May 2011 by the Council of State (Decision No 346648 of 4 May 2011), under the conditions laid down in Article 61 (1) of the Constitution, of a priority issue of The constitutionality of Mr Bruno L., relating to the conformity with the rights and freedoms guaranteed by the Constitution:
- articles L. 212-16, L. 212-17, L. 212-4-2, L. 212-8, L. 212-9, L. 212-15 -3 of the Labour Code and articles L. 713-14, L. 713-15 and L. 713-19 of the Rural Code and of the Maritime Fisheries, in their drafting, respectively, of the Articles 2 and 3 Act No. 2004-626 of 30 June 2004 on the Solidarity for the autonomy of the elderly and disabled persons;
-Articles 4, 5 and 6 of the same Law, in their initial drafting;
-and the provisions of Articles 2, 3, 4, 5 and 6 of the same Law of 30 June 2004 in Their version in force on 10 December 2010, with regard to the provisions of Article 2, as they now appear, to Articles L. 3133-7 to L. 3133-12 and to article L. 3123-1 of the Work, and, with regard to the provisions of Article 6, in their drafting from Law n ° 2010-751 of 5 July 2010 on the renovation of the social dialogue and
It was also seized on 24 May 2011 by the Court of Cassation (Social Chamber, Judgment No 1343 of 24 May 2011), under the conditions laid down in Article 61 (1) of the Constitution, A priority question of constitutionality by Mr Thierry J. and the Union des services CFDT of Maine-et-Loire, relating to the conformity with the rights and freedoms guaranteed by the Constitution of the Href=" /viewTexteArticle.do?cidTexte=JORFTEXT000000622485&idArticle=LEGIARTI000006682199&dateTexte= &categorieLink = cid"> Articles 2, 3 and 6 of Law No. 2004-626 of 30 June 2004 on solidarity for the autonomy of the elderly and the elderly People with disabilities.
The Constitutional Council;
Given the Constitution;
Given theOrder N ° 58-1067 of 7 November 1958 as amended by the Organic Law on the Constitutional Council;
Seen the Rural Code and the Maritime Fishery;
Seen the Job ;
Seen Act No. 2004-626 of 30 June 2004 on solidarity for the autonomy of the elderly and disabled;
Seen Order No. 2007-329 of March 12, 2007 on the Job Code ;
Seen Law n ° 2008-351 of 16 April 2008 on the day of solidarity;
Seen the Law No. 2008-789 of 20 August 2008 renovating the Social democracy and working time reform;
Seen under Act n ° 2010-751 of 5 July 2010 on the renovation of the social dialogue with various provisions In relation to the civil service;
Given the decision of the Constitutional Council n ° 2011-144 QPC of 30 June 2011;
Having regard to the Rules of Procedure of 4 February 2010 on the procedure before the Constitutional Council for priority issues of Constitutionality;
In view of the observations made by Bruno L., Recorded on May 27, 2011;
Seen the observations made by the Prime Minister, recorded on May 27 and June 15, 2011;
Seen the observations produced for the company Logidis Comptoirs Modernes par la SCP D. Célice, F. Blancpain, B. Soltner, lawyer at the Conseil d' Etat and the Court of Cassation, registered on 15 June 2011;
In view of the observations made in intervention by the SCP Rambaud, Martel, lawyer at the Paris Bar, registered on 15 June 2011. June 26, 2011;
Seen the submissions for Mr. Thierry J. and the union of Services CFDT of Maine-et-Loire by CPC Hélène Masse-Dessen and Gilles Thouvenin, lawyer to the Conseil d' Etat and to the Court of Cassation, and SELARL Atlantic Counsel Associates Betrand Salquain and Laure Konrat, lawyer to the Bar of Nantes, registered June 27, 2011;
Seen the exhibits filed and attached to the file;
Me Hélène Masse-Dessen and Me Bernard Salquain for Mr. Thierry J. and the Syndicat des services CFDT de Maine-et-Loire, Me Damien Célice pour la société Logidis Comptoirs Modernes, Mr. Jean-Michel Lepriest for the Craft Professional Union and Mr. Xavier Pottier, appointed by the Prime Minister, having been heard at the public hearing on July 5, 2011;
The rapporteur was heard;
1. Considering that these two priority issues of constitutionality need to be reached in a single decision;
On the provisions for consideration by the Constitutional Council:
As regards the provisions Contested in their drafting of the Act No. 2004-626 of 30 June 2004 mentioned above :
2. Considering that the terms of article 2 of the Act of 30 June 2004 referred to above, which supplements chapter II of the title Book II of the Labour Code by a section 6 on " Day of Solidarity " :
" Art. L. 212-16. -A day of solidarity is established with a view to ensuring the financing of actions in favour of the autonomy of the elderly or the disabled. It takes the form of an additional unpaid work day for employees and the expected contribution to the 1 ° of Article 11 of Act No. 2004-626 of 30 June 2004 on for the autonomy of the elderly and disabled persons for employers
A convention, a branch agreement or an agreement or an enterprise agreement determines the date of the day of solidarity. This agreement may provide for either the work of a previously non-working holiday other than 1 May, or the work of one day of reduction of working time as provided for in Article L. 212-9, or any other modality for the work of one day Previously unworked in accordance with conventional provisions or organizational arrangements.
" Where the undertaking works continuously or is open every day of the year, the collective agreement or, failing that, the employer may fix, where appropriate, a different day of solidarity for each employee
By way of derogation from the second subparagraph, in the absence of an agreement or agreement, the day of solidarity shall be the Monday of Pentecost
In the absence of an agreement or agreement of branch or enterprise provided for in the second paragraph and when the Monday of Pentecost was previously worked on the entry into force of the Href=" /viewTexte.do?cidTexte=JORFTEXT000000622485 &categorieLink = cid"> Law n ° 2004-626 of 30 June 2004, the arrangements for fixing the day of solidarity are defined by the employer, after consulting the works council or, at Defect, personnel delegates if they exist. The same applies to employees who do not normally work according to the division of their weekly hours of work on the different days of the week on the day of the week chosen, on the basis of the second, third or third week of work. Fourth paragraph, for the day of solidarity.
" The work done, within the seven-hour limit, during the day of solidarity does not give rise to remuneration when the employee is paid in accordance with Act No. 78-49 of 19 January 1978 on the monthly payment and the conventional procedure and, within the limit of the value of a working day, for employees whose remuneration is calculated by reference to an annual number of days Work in accordance with Article L. 212-15 -3.
" For part-time employees, the seven-hour limit laid down in the sixth subparagraph shall be reduced in proportion to the contractual
. The hours corresponding to the day of solidarity, within the limit of seven hours or of the duration proportional to the contractual duration for part-time employees, shall not be attributed to the annual overtime quota provided for Article L. 212-6 or the number of overtime hours provided for in Articles L. 212-4-3 and L. 212-4-4. They do not give rise to compensatory rest.
" The work of the day of solidarity under the conditions provided for in this Article shall not constitute an amendment of the contract of
. The provisions of this Article shall apply to the departments of the Bas-Rhin, the Haut-Rhin and the Moselle, by way of derogation from Articles 105 a and 105 b of the local professional
. Art. L. 212-17. -Where an employee has already completed, for the current year, a day of solidarity within the meaning of Article L. 212-6, if he has to pay a new day of solidarity due to a change of employer, the hours worked on that day Give rise to additional remuneration and shall pay the annual quota of overtime laid down in Article L. 212-6 or on the number of additional hours provided for in Articles L. 212-4-3 and L. 212-4-4. They give rise to compensatory rest. However, the employee may also refuse to carry out this extra day of work without such refusal constituting a fault or ground for dismissal " ;
3. Considering that under the terms of Article 2 of the Act of 30 June 2004: " In Article L. 212-4-2, in the first and fourth paragraphs of Article L. 212-8 and in Article L. 212-9, the number: "1 600 is replaced by the number:" 1 607; that these provisions increase the ceiling of the annual legal term Worked to make the day of national solidarity effective for part-time employees and employees working overtime;
4. Considering that under the terms of Article 2 of the Act of 30 June 2004: " In the III of Article L. 212-15 -3, the words: "two hundred and seventeen days are replaced by the words:" two hundred and eighteen days; that these provisions increase the ceiling of the annual legal term worked to make the day of Solidarity for employees with executive quality;
5. Considering that according to Article 3 of the Law of 30 June 2004: The rural code is thus modified:
" Article L. 713-19, references: " L. 212-9 and L. 212-15 -1 to L. 212-15 -4 are replaced by references: " L. 212-9, L. 212-15 -1 to L. 212-15 -4, L. 212-16 and L. 212-17;
" 2 ° In Articles L. 713-14 and L. 713-15, the number: "1 600 is replaced by the number:" 1 607; that these provisions extend to agricultural workers the mechanism of the day of solidarity;
6. Considering that according to article 4 of the Act of 30 June 2004: If there is no agreement or agreement on the basis of the second paragraph of Article L. 212-16 of the Labour Code, the Unenforceable provisions of collective agreements and agreements providing for unemployment on Monday of Pentecost.
" The provisions of collective agreements and agreements providing for the unemployment of the day of solidarity shall also be unenforceable where the day of solidarity is chosen by agreement of undertakings or by unilateral decision of the employer in application of the second and Fifth paragraphs of Article L. 212-16 of the same Code " ;
7. Considering that according to Article 5 of the Act of 30 June 2004: The working hours fixed prior to the entry into force of this Law by the provisions of collective agreements or agreements and the provisions of employment contracts relating to the annual hours in application of the Articles L. 212-8 and L. 212-9 of the Labour Code and L. 713-14 of the Rural Code, as well as those relating to the fixed hours Year in application II of article L. 212-15 -3 of the job code is increased by seven hours per year. The number of days fixed by the clauses relating to the annual package in days pursuant to Article L. 212-15 -3 of the same code shall be increased by one day per year.
" The working time provided for before the entry into force of this Law by the provisions of collective agreements or agreements and by the provisions of the contracts of employment relating to part time modulated over the year in application of the Href=" /viewCodeArticle.do?cidTexte=LEGITEXT000006072050&idArticle=LEGIARTI000006647249&dateTexte= &categorieLink = cid"> article L. 212-4-6 of the job code and the annualized part time validated under the conditions of II of Article 14 of Law No. 2000-37 of 19 January 2000 on the negotiated reduction of working time is increased by one Duration proportional to the contractual duration " ;
8. Considering that according to Article 6 of the Law of 30 June 2004: For officials and non-incumbent agents under Act No. 84-16 of 11 January 1984 laying down statutory provisions relating to the public service of the State, The Act No. 84-53 of 26 January 1984 laying down statutory provisions relating to the territorial civil service and the Law No. 86-33 of January 9 1986 laying down statutory provisions for the hospital public service as well as for physicians, biologists, odontologists and pharmacists mentioned in article L. 6152-1 of the public health code, the day of solidarity scheduled for article L. 212-16 of the Labour Code is set under the following conditions:
" -in the territorial civil service, this day shall take the form of a day fixed by the deliberation of the executive body of the competent territorial assembly, after the opinion of the Joint Technical Committee concerned;
" -in the hospital public service as well as for physicians, biologists, odontologists and pharmacists mentioned in article L. 6152-1 of the public health code, this day takes the form of a day set by the directors of the Institutions, after notice of the relevant instances;
" -in the civil service of the State, this day shall take the form of a day fixed by the order of the competent minister taken after notice of the relevant ministerial technical committee.
" In the absence of a decision before 31 December of the preceding year, the day of solidarity of the staff referred to in the first subparagraph shall be fixed on the Monday of Pentecost " ;
With respect to the provisions challenged in effect as of December 10, 2010:
9. Whereas in the terms of article L. 3133-7 of the Labour Code, as amended by the April 16, 2008 law : " The day of solidarity established for the financing of actions for the autonomy of the elderly or disabled takes the form of:
" 1 ° of an additional unpaid work day for employees;
" 2 ° The contribution provided for in Article L. 14-10-4 of the Code of Social Action and Families for Employers' ;
10. Whereas in the terms of Article L. 3133-8 of the Labour Code, as amended by the August 20, 2008 law : " The arrangements for the completion of the day of solidarity shall be fixed by agreement of enterprise or establishment or, failing that, by branch
. The agreement may include:
" 1 ° The work of a previously non-working holiday other than May 1;
" 2 ° The work of a day of rest granted under the collective agreement concluded pursuant to Article L. 3122-2;
" 3 ° Any other means allowing the work of seven hours previously not worked in accordance with conventional provisions or arrangements for the organisation of undertakings.
" In the absence of a collective agreement, the terms of the day of solidarity shall be defined by the employer, after consulting the works council or, failing that, representatives of the staff if they exist.
" However, in the departments of the Moselle, the Haut-Rhin and the Bas-Rhin, the agreement or, failing that, the decision of the employer cannot determine neither the first and the second day of Christmas nor, irrespective of the presence of a Protestant temple or of a Joint church in the communes, Good Friday as the date of the day of solidarity." ;
11. Considering that in the terms of article L. 3133-10 of the Labour Code, as amended by the law of 20 August 2008: The work done, within the seven-hour limit, during the Solidarity Day does not give rise to remuneration:
" 1 ° For employees on a monthly basis within this seven hour limit;
" 2 ° For employees whose remuneration is calculated by reference to an annual number of working days in accordance with Article L. 3121-41, within the limit of the value of a working
. For part-time employees, the seven-hour limit provided for in the 1 ° shall be reduced in proportion to the contractual period." ;
12. Whereas, according to Article L. 3133-11 of the same Code, as amended by the law of 20 August 2008:
" The hours corresponding to the day of solidarity, within the seven-hour limit or the duration proportionate to the contractual duration for part-time employees, shall not be attributed to the annual overtime quota or to the Number of additional hours provided for in the contract of employment of the employee working part-time. They shall not give rise to compulsory consideration for rest " ;
13. Considering that in the terms of article L. 3133-12 of the Labour Code, as amended by the law of 20 August 2008: Where an employee has already completed a day of solidarity for the current year, if a new day of solidarity is paid out due to a change of employer, the hours worked today shall be compensated On the annual quota of overtime or on the number of additional hours provided for in the contract of employment of the employee working part-time. These hours give rise to mandatory quiesce.
" However, the employee may also refuse to carry out this extra day of work without such refusal constituting a fault or ground for dismissal " ;
14. Considering that according to the terms of article L. 3123-1 of the Labour Code, in its version of the Href=" /viewTexte.do?cidTexte=JORFTEXT000000465978 &categorieLink = cid"> order of March 12, 2007 above : " A part-time employee is considered to be an employee with a lower working time:
" 1 ° To the legal duration of the work or, where that duration is less than the legal duration, to the duration of the work fixed conventionally for the branch or enterprise or to the duration of the work applicable in the establishment;
" 2 ° A the monthly duration resulting from the application, over that period, of the legal duration of the work or, if it is less, the duration of the work fixed under contract for the branch or enterprise or the duration of the work applicable in Establishment;
" 3 ° A the annual working time resulting from the application over that period of the legal period of work, that is, 1 607 hours, or, if it is less, the duration of the work fixed under contract for the branch or undertaking or the duration of the work Of the work applicable in the establishment " ;
15. Considering that, in accordance with Article L. 713-19 of the Rural Code and Maritime Fisheries, as amended by the law of 20 August 2008: The Labour Code applies to agricultural workers, with the exception of the provisions for which this book has specific provisions." ;
16. Considering that, according to article 6 of the Act of 30 June 2004 in its version of the Act of 5 July 2010 mentioned above : For officials and non-incumbent agents under Act No. 84-16 of 11 January 1984 laying down statutory provisions relating to the public service of the State, The Act No. 84-53 of 26 January 1984 laying down statutory provisions relating to the territorial civil service and the Law No. 86-33 of January 9 1986 laying down statutory provisions for the hospital public service as well as for the practitioners referred to in article L. 6152-1 of the public health code, the day of solidarity mentioned at article L. 3133-7 of the job code is set in conditions Following:
" -in the territorial civil service, by a deliberation of the executive body of the competent territorial assembly, after the opinion of the technical committee concerned;
" -in the hospital public service and for the practitioners referred to inArticle L. 6152-1 of the Health Code Public, by decision of the establishment directors, after notice of the proceedings concerned;
" -in the public service of the State, by an order of the competent minister taken after notice of the ministerial technical committee concerned
In accordance with the procedures set out in the preceding paragraphs, the day of solidarity may be fulfilled according to the following procedures:
" 1 ° Work on a previously non-working holiday other than May 1;
" 2 ° Work of one day to reduce working time as provided for by the rules in force;
" 3 ° Any other method allowing the work of seven hours previously not worked, excluding days of annual leave " ;
On the constitutionality of the contested provisions:
17. Considering that, according to the applicants, the abovementioned provisions, by limiting the scope of the operative part of the ' Day of solidarity " Employees, civil servants and non-incumbent public officials, have the effect of exempting most members of the independent professions and pensioners from the constraints that result from them; thus, they would violate the principle of equality Before the law and the principle of equality before public office, guaranteed by Articles 6 and 13 of the Declaration of Human Rights and the Citizen of 1789;
18. Considering that, according to article 6 of the 1789 Declaration, the law " Must be the same for all, either protecting or punishing " ; that the principle of equality precludes the legislator from treating different situations differently, nor does it derogate from equality for reasons of public interest, provided that, in either case, the difference in treatment Resulting from it being directly related to the purpose of the law that establishes it;
19. Considering that Article 13 of the 1789 Declaration states that: For the maintenance of the public force, and for administrative expenditure, a common contribution is essential: it must also be allocated among all citizens, because of their faculties'. ; that, on the one hand, the principle so stated does not prohibit the legislature from placing at the expense of one or more specific socio-occupational categories a certain aid to one or more other socio-occupational categories; Pursuant to Article 34 of the Constitution, it is for the legislature to determine, in accordance with the constitutional principles and in view of the characteristics of each tax, the rules according to which the Contribution faculties; in particular, to ensure compliance with the principle It must base its assessment on objective and rational criteria according to the aims it proposes; that, for the application of the principle of equality before taxation, the situation of those liable to pay shall be assessed in respect of each Taxation taken in isolation; that, in each case, the legislator must, in order to comply with the principle of equality before public office, base its assessment on objective and rational criteria; that this assessment should not Cause a marked breakdown of equality before public office;
20. Considering that, in order to contribute to the financing of actions in favour of the autonomy of the elderly or the disabled, the legislator has, by the contested provisions, instituted a " Day of solidarity " In the form, on the one hand, of an additional unpaid work day for employees and, on the other hand, of a taxation, to which employers are subject, having the same basis as the employer's health insurance premiums Allocated to the financing of the basic health insurance schemes; that, by the combination of these two measures, the aim of the law is to ensure the economic neutrality of the whole scheme by introducing a new tax proportionate to the surplus Resources resulting from the lengthening of the legal working time of employees, Without an increase in the total burden on employers;
21. Considering, first, that the lengthening of the legal period of work, tending to the satisfaction of the social objective pursued by the law, is intended to produce an effect equivalent to the abolition of a non-working holiday; that it was open To the legislature, to whom it is the responsibility to lay down the rules concerning the fundamental guarantees accorded to civil and military civil servants of the State and to determine the fundamental principles of labour law, to make a special appeal to The efforts of employees in the private sector and the public sector benefiting from a Compensation with a limitation of the legal duration of working time; that the resulting difference in treatment with retired persons and persons engaged in self-employment is directly related to the purpose of the Act ;
22. Considering, second, that the Constitutional Council does not have a general discretion and a decision of the same nature as that of Parliament; that it cannot ascertain whether the objectives which the legislator had been assigned could have been Attained by other means, provided that the procedures adopted by the law are not manifestly inappropriate for the intended purpose; that, in the light of the economic neutrality sought, it was open to him to institute, at the expense of employers, a Tax seated on the payroll, without subjecting retirees or persons Carrying out their activities independently who do not employ any employees; that, by taking advantage of the lengthening of the legal working time as a criterion of the taxpayer's ability to contribute, the legislator did not commit any error Manifest of appreciation;
23. Considering that, by the effect of the measures in question, the annual legal duration of the work was extended from 1,600 hours to a maximum of 1,607 hours and the employer's correlative contribution set at 0.3 % of the wage bill; that, within those limits, The establishment of a day of solidarity with a view to ensuring the financing of actions in favour of the autonomy of the elderly or the disabled does not constitute a serious breach of equality before public office;
24. Considering, moreover, that, by its decision n ° 2011-144 QPC of 30 June 2011, the Constitutional Council declared in conformity with the Constitution the provisions of Article L. 14-10-4 of the Code of Social Action and of the families incorporating the contribution In the products assigned to the National Solidarity Fund for Autonomy;
25. Considering, therefore, that the contested provisions are not contrary to Articles 6 and 13 of the 1789 Declaration; that they are not contrary to any other right or freedom that the Constitution guarantees,
Decides:

Item 1 Articles 2, 3, 4, 5 and 6 of Law No. 2004-626 of 30 June 2004 on solidarity for the autonomy of Elderly people and people with disabilities;
-article L. 3133-7 of the Labour Code, in writing from Law n ° 2008-351 of 16 April 2008 on the day of solidarity;
-articles L. 3133-8, L. 3133-10, L. 3133-11, L. 3133-12 of the same code, in their written form Law No. 2008-789 of 20 August 2008 on the renovation of social democracy and the reform of working time;
-in article L. 3123-1 of the job code, in its output from Order No. 2007-329 of March 12, 2007 on the Job Code, the number: " 1,607 " ;
-Article L. 713-19 of the Rural Code and Maritime Fisheries, in its wording from the Act of 20 August 2008 referred to above ;
-Article 6 of the Act of 30 June 2004 In its drafting from the Law n ° 2010-751 of 5 July 2010 on the renovation of the social dialogue with various provisions relating to the function Public.

Item 2 Read more about this Article ...


This decision shall be published in the Official Journal of the French Republic and notified under the conditions set out in section 23-11 of the Order of November 7, 1958, above.
Deliberated by the Constitutional Council in its session of 21 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


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