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Decision No. 2012-656 Dc From 24 October 2012

Original Language Title: Décision n° 2012-656 DC du 24 octobre 2012

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Folders Laws




JORF No. 0251 of October 27, 2012 page 16699
text #3




Decision No. 2012-656 DC of 24 October 2012

NOR: CSCL1237809S ELI: Not available



ACT CREATION CREATION ACT


The Constitutional Council has been seized, in accordance with the second paragraph of Article 61, of the Constitution, of the law creating the jobs of the future, on 10 October 2012, by MM. Christian JACOB, Julien AUBERT, Olivier AUDIBERT-TROIN, Jean-Pierre BARBIER, Etienne BLANC, Gérard CHERPION, Guillaume CHEVROLLIER, Alain CHRÉTIEN, Dino CINIERI, Eric CIOTTI, Mme Marie-Christine DALLOZ, Mr Bernard DEFLESSELLES, Mme Sophie DION, M. Jean-Pierre DOOR, Marianne DUBOIS, Virginie DUBY-MULLER, Daniel FASQUELLE, Mme Marie-Louise FORT, MM. Yves FOULON, Marc FRANCINA, Laurent FURST, Claude de GANAY, Sauveur GANDOLFI-SCHEIT, Mrs Annie GENEVARD, MM. Guy GEOFFROY, Daniel GIBBES, Franck GILARD, Georges GINESTA, Charles-Ange GINESY, Claude GOASGUEN, Philippe GOUJON, Mrs Arlette GROSSKOST, MM. Christophe GUILLOTEAU, Antoine HERTH, Patrick HETZEL, Sébastien HUYGHE, Christian KERT, Patrick LABAUNE, Mme Valérie LACROUTE, M. Jean-François LAMOUR, Mme Laure de LA RAUDIÈRE, MM. Guillaume LARRIVÉ, Alain LEBOEUF, Mme Isabelle LE CALLENNEC, MM. Marc LE FUR, Bruno LE MAIRE, Dominique LE MÈNER, Philippe LE RAY, Pierre LELLOUCHE, Jean LEONETTI, Mme Véronique LOUWAGIE, MM. Laurent MARCANGELI, Thierry MARIANI, Hervé MARITON, Olivier MARLEIX, François de MAZIÈRES, Philippe MEUNIER, Alain MOYNE-BRESSAND, Jean-Frédéric POISSON, Axel PONIATOWSKI, Franck RIESTER, Mme Sophie ROHFRITSCH, Claudine SCHMID, MM. André SCHNEIDER, Eric STRAUMANN, Claude STURNI, Mme Michèle TABAROT, MM. Jean-Charles TAUGOURDEAU, Michel TERROT, Jean-Marie TETART, Mrs Catherine VAUTRIN, MM. Patrice VERCHÈRE, Jean-Pierre VIGIER, Philippe VITEL and Eric WOERTH, MPs.
The Constitutional Council,
Given the Constitution;
SeenOrder No. 58-1067 of 7 November 1958 as amended by the Organic Law on the Constitutional Council;
Given the Labour Code ;
Due to the labor code applicable to Mayotte;
In view of the Government's observations in response to the Referral, registered October 17, 2012;
The rapporteur has been heard;
1. Considering that the authors of the reference defected to the Constitutional Council the law creating the jobs of the future; that they challenge the conformity with the Constitution of Article 4, in particular in the light of Article 6 of the Declaration of 1789;
On applicable constitutionality standards:
2. Considering that under Article 6 of the 1789 Declaration: " The law ... must be the same for all, either that it protects, or that it punishes. All citizens, being equal in their eyes, are equally entitled to all dignity, places and public employment, according to their capacity, and without any distinction other than that of their virtues and talents " ;
3. Considering that, on the one hand, the principle of equality before the law does not preclude the rule of law in different ways from different situations nor does it derogate from equality for reasons of public interest, provided that, in one and The other case, the resulting difference in treatment is in direct relation to the object of the law that establishes it; and no principle that no rule of constitutional value precludes the legislator from taking specific measures to come Aid to disadvantaged categories of persons as long as the differences in the The resulting treatment is for the purposes of general interest that it is for the legislator to appreciate;
4. Considering that, on the other hand, the principle of equal access of citizens to public employment requires that only capacity, virtues and talents be taken into account in recruitment to these jobs;
On Articles 4 and 12:
5. Taking the view that Article 4 of the Act supplements Chapter IV of Title III of Book I of Part Five of the Labour Code by a section 9 entitled " Employment of the future professor " The new Article L. 5134-120 allows local public education institutions and local public institutions for agricultural education and training to propose " Jobs of the future professor " In order to facilitate the vocational integration and social promotion of young people in the professions of professorships; that the new Article L. 5134-128 opens the same possibility for private educational institutions which have entered into a contract with the State; That these future teaching jobs are intended for students, at most twenty-five years of age, with a higher education grant, registered in the second year of licence or, if applicable, in the third year of licence or first Master's year in a higher education institution; limit Age is extended to thirty years when the person concerned has a disability; that these students have a priority of access to these jobs of the future teacher when they are studying in an academy or in a field with knowledge of Special recruitment needs and that they justify either having resided in sensitive urban areas, in rural regeneration areas or in the overseas departments and in some overseas communities, or Completed high school in an institution located in one of these Under the new Article L. 5134-125 of the Labour Code, the contract associated with a future employment shall be concluded in the form of an employment contract; the new Article L. 5134-122 The same code provides that the educational institutions which conclude these contracts shall receive financial assistance for training and vocational integration and for exemptions from social contributions; that Article 12 of the Act introduces The same provisions in Chapter II of Title II of Book III of the Labour Code Applicable to Mayotte under Articles L. 322-55 to L. 322-64;
6. Considering that, according to the applicants, by reserving the benefit of the future jobs professor to the scholarship students, the legislator disregarded the principle of equal access to public employment guaranteed by Article 6 of the 1789 Declaration and the The principle of the freedom of contract of persons excluded from it; that they support, moreover, that by subjecting the contracts associated with the jobs of the future professor to private law, the legislature has infringed the constitutional principles According to which natural persons " Collaborators of legal persons under public law " Are public officials, acts of a public person are administrative acts, and non-statutory staff working on behalf of an administrative public service run by a public person are contractual agents of law Public regardless of their employment;
7. Considering, in the first place, that under the law, the jobs of the future professorship are aimed at those who are destined for the " Professorship trades " ; contracts associated with such employment shall be concluded for a period of twelve renewable months, within the limit of a total duration of thirty-six months, so that their beneficiaries carry out an educational support activity compatible with the pursuit of Their studies and preparation for competitions; that these students undertake to continue their training at a higher education institution and to present themselves to one of the competitions for the recruitment of teachers of the first or second degree organised By the State; in case of success in one of these competitions, the contract ends Right before its normal maturity; that the beneficiaries of such employment perform a weekly working period adapted to the continuation of their studies and the preparation of the competitions to which they are intended; that the remuneration paid in the A teacher's future job is cumulative with higher education awards;
8. Considering, on the one hand, that it is apparent from the characteristics of those " Employment of the future professor ", which the legislator has set up, in addition to the scholarships for higher education, a social assistance scheme for access to employment in education aimed at facilitating vocational integration and promotion That it has not created public employment within the meaning of Article 6 of the 1789 Declaration; that, as a result, the complaint alleging lack of knowledge of the principle of equal access to public employment must Be discarded;
9. Bearing in mind, on the other hand, that by directing the scheme of future jobs to students holding scholarships for higher education, under certain conditions of age and level of education, and by allowing those who carry out Their studies in an academy or discipline experiencing particular recruitment difficulties and who have resided in a sensitive urban area, in a rural regeneration area or in the overseas departments and in some Overseas communities, or have performed, at an institution located in the In one of these areas or under priority education, part of their secondary education, to benefit from a priority of access to the social assistance scheme established, the legislator relied on objective and rational criteria in Direct relation to the general purpose of the general interest which he has assigned; that he has not, therefore, disregarded neither the principle of equality before the law nor the principle of freedom of contract;
10. Considering, second, that there is no constitutional principle impeding the legislator's provision that persons recruited as a future employment teacher participating in the performance of the public service of national education Be subject to a private law regime; that, as a result, the complaint alleging that the legislature disregarded the constitutional principles by stipulating that contracts concluded by the beneficiaries of the jobs of the future professor are contracts Private law must be discarded;
11. Considering that it follows from the foregoing that Articles 4 and 12 of the law referred to are not contrary to any rule or principle of constitutional value; that they must be declared in conformity with the Constitution;
On Articles 1 and 11:
12. Considering that Article 1 supplements Chapter IV of Title III of Book I of the fifth part of the Labour Code by a section 8 entitled " Employment of the future " And containing Articles L. 5134-110 to L. 5134-119; that pursuant to Article L. 5134-110, paragraph I: " The purpose of the future employment is to facilitate vocational integration and access to the qualification of unemployed young people between sixteen and twenty-five years of age at the time of signing the contract of employment either unqualified or low-skilled Encountering particular difficulties in access to employment, by their recruitment in activities of a social or environmental utility or with a high potential for job creation. Persons benefiting from the recognition of the quality of disabled workers and fulfilling these same conditions may have access to future employment when they are less than 30 years old. ' ; that its paragraph II specifies that the employment of the future is intended " As a priority " To the young persons referred to in paragraph I who reside in sensitive urban areas, in rural regeneration zones, in the overseas departments and in certain overseas communities or in the territories in which the Youth are experiencing particular difficulties with access to employment;
13. Considering that Article L. 5134-111 sets out the list of employers of private or public law to which the future employment aid can be granted; that its 2 ° and 3 ° designate the territorial authorities and their groupings as well as the Other legal persons governed by public law, with the exception of the State; that Article L. 5134-112 provides that the employment of the future shall be concluded in the form of an employment contract, governed by the Href=" /viewCodeArticle.do?cidTexte=LEGITEXT000006072050&idArticle=LEGIARTI000006903545&dateTexte= &categorieLink = cid"> articles L. 5134-20 et seq. Of the Labour Code, or an employment initiative contract, governed by Articles L. 5134-65 and later That Article L. 5134-113 lays down, in particular, thirty-six months the maximum duration of employment assistance in relation to employment in the future; that Article L. 5134-114 determines the allocation of aid for future employment to employment in the future. Employer commitments " On the content of the proposed position and its position in the organisation of the structure employing the beneficiary of the future employment, on the conditions of supervision and tutoring, and on the qualification or skills whose acquisition is Subject during the period of employment of the future " ; that the second paragraph of Article L. 5134-112, provides that professional and, where appropriate, social follow-up of the beneficiary shall be provided for the duration of the work and a balance sheet relating to his or her professional project and thereafter Job for the future is completed two months before the deadline for the aid;
14. Whereas Article 11 of the Law introduces identical provisions in Chapter II of Title II of Book III of the Labour Code applicable to Mayotte under Articles L. 322-45 to L. 322-54;
15. Considering that Article L. 5134-115 provides that the employment contract associated with a future employment may be for an indefinite period or for a fixed term of thirty-six months; that Article L. 5134-116 provides that the beneficiary of a future employment Is employed on a full-time basis and determines cases in which the weekly period may be part-time;
16. Considering that, in the light of their characteristics, if the employment contracts associated with a future employment were concluded by public persons for an indefinite period, these future jobs would constitute, within the meaning of Article 6 of the Declaration of 1789, public employment which can only be filled in the light of capacity, virtues and talents; that the same is not true in the case of a fixed-term contract of employment executed within the framework of the social framework Intended to facilitate the professional integration of beneficiaries under Article L. 5134-114 of the Labour Code and Article L. 322-49 of the Labour Code applicable to Mayotte; that, as a consequence, recruitment to a future job is reserved for young persons without qualifications, public persons cannot Use the jobs of the future as in the framework of fixed-term employment contracts; that, subject to this reservation, the provisions of Articles L. 5134-111 and Article L. 5134-115 of the Labour Code, as a result of Article 1, and The provisions of Articles L. 322-46 and Article L. 322-50 of the Code of Applicable to Mayotte, resulting from Article 11, are not contrary to Article 6 of the Declaration of 1789;
17. Considering that conformity with the Constitution of a law already enacted may be assessed on the occasion of the examination of the legislative provisions amending, supplementing or affecting its field; that the provisions of Articles 1 and 11 Affect the domain of the terms of the Labour Code relating to the employment contract;
18. Considering thatarticle L. 5134-20 of the Labour Code provides that " The purpose of the accompanying employment contract is to facilitate the vocational integration of unemployed persons experiencing particular social and occupational difficulties of access to employment ' ; that, in their wording amended by Article 7 of the Act referred to, Articles L. 5134-21 and L. 5134-24 have in particular, on the one hand, that the territorial and other legal persons governed by public law with the exception of the State May make use of the accompanying employment contracts and, on the other hand, that the employment contract associated with vocational integration assistance awarded under an employment escort contract may be concluded either for a period of time Determined, on an indeterminate basis; that, in writing as amended by Article 13 of the The law referred to, Articles L. 322-6, L. 322-7 and L. 322-13 of the Labour Code applicable to Mayotte provide for identical rules applicable in this department;
19. Considering that, for the same reasons as those set out in recital 16, local and regional authorities and other public persons may not use the accompanying employment contract only in the context of contracts of employment for a period of time Under that reserve applicable to contracts concluded after the publication of this Decision, the Articles L. 5134-21 and L. 5134-24 of the Labour Code And Articles L. 322-7 and L. 322-13 of the Labour Code applicable to Mayotte are not contrary to the Constitution;
20. Considering that it is not appropriate for the Constitutional Council to raise any other constitutionality issue ex officio,
Decides:

Article 1


Articles 4 and 12 of the Law on the creation of future jobs are in conformity with the Constitution.

Item 2 Read more about this article ...


Subject to the reservation set out in recital 16, are in conformity with the Constitution the following provisions of the same Law:
-the 2 ° and 3 ° of Article L. 5134-111 of the Labour Code, and Article L. 5134-115, as they result from Article 1;
-2 ° and 3 ° of Article L. 322-46 of the Labour Code applicable to Mayotte, and Article L. 322-50, as they result from section 11 of the same Act.

Article 3 Learn more about this Article ...


Under the reservation set out in recital 19, are in conformity with the Constitution:
- Articles L. 5134-21 and L. 5134-24 of the Labour Code ;
-Articles L. 322-7 and L. 322-13 of the Labour Code Applicable to Mayotte.

Article 4


This decision shall be published in the Official Journal of the French Republic.
Issued by Council Constitutional in its sitting of 24 October 2012, where Mr Jean-Louis DEBRÉ, President, Mr Jacques BARROT, Mrs Claire BAZY MALAURIE, MM. Guy CANIVET, Michel CHARASSE, Renaud DENOIX de SAINT MARC, Valéry GISCARD d' ESTAING, Mme Jacqueline de GUILLENCHMIDT, MM. Hubert HAENEL and Pierre STEINMETZ.


The President,

Jean-Louis Debré


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