Key Benefits:
SOCIAL COHESION PROGRAMMING ACT
Mr. Chairman of the Constitutional Council, ladies and gentlemen of the Constitutional Council, we have the honour to refer you, in accordance with the second paragraph of Article 61 of the Constitution, the whole of Social Cohesion Programming Act as adopted by Parliament. Many of its provisions are contrary to the Constitution and particularly Articles 1, 17, 24, 31, 44, 69, 77 and 139.
1. On the basis of respect for the principle of equality
On Article 69:
This Article, resulting from a rectified amendment 200 adopted at first reading by the National Assembly, supplements Article L. 212-4 of the Labour Code in order to Define the value and nature of the professional travel time in relation to the actual working time. It lays down the principle that the time of professional travel to the place of performance of the employment contract is not actual working time and provides that, if that travel time exceeds the normal travel time between the The
seeks, according to its explanatory memorandum, to put an end to the case-law which considers the time of professional travel as working time The
of the actual work is, in accordance with Article L. 212-4, paragraph 1, of the Labour Code, the time during which the employee is at the disposal of the employer and must comply with his instructions without being able to freely pursue his Personal concerns. It therefore appears that, in order to be considered as effective working time, these three conditions must be met.
If the journey time from the residence to the workplace does not constitute according to the case-law of the Court of Cassation Work, it makes a distinction between two types of journeys: on the one hand, the journey between the home and the usual place of work and, on the other hand, the journey between two different places of
. The Court of Cassation considered that the travel time between two places of work constituted effective working time. This is the case for an employee of a construction company to go to work sites and return when he is required to go to the company's headquarters before the time of hiring and after the hour of debauchery in order to proceed with the Loading or unloading of materials (Cass. Soc. July 12, 1999, No. 97-42789, Lafer Company). This is the case for a trainer who has to conduct internships in several locations (Cass. Soc. November 5, 2003 No. 01-43109, AFPA). This is the case for an employee who regularly visits business clients of his employer located in several cities (Cass. Soc. 5 May 2004 n ° 01-43918, Segec Company).
This case-law is in conformity with Community law and in particular Article 15 of Regulation (EEC) No 3821/85. In amending the Labour Code, the intention of the legislator is to remove what it considers to be a legal uncertainty arising from criminal case-law for undertakings.
This article of general scope contradicts the law The European Parliament recognises that the effective working time covers the time when the employee cannot freely dispose of his time.
The legislator puts in place a scheme for the least confusing which will lead to unequal treatment between Employees within the same business, not on the basis of the components of their employment contract but in relation to their place of residence, which is a matter of private life.
In fact, the section of the proposed programming legislation for the Social cohesion puts in place compensation for the employee if travel time exceeds the normal journey time between the home and the usual place of work. This compensation takes the form of rest or pay time.
Suppose that in the same company, two employees must work together for a professional travel time, for example, 30 minutes from their usual place of business. Job. One, if he takes 45 minutes to get from his home to his usual place of work, will receive no consideration, the other, if he takes 20 minutes to get from his home to his usual place of work, will receive compensation for a gap of 10 minutes between professional travel time and home travel time-usual place of work.
In other words, these two employees who are going to do the same job to do the same work will not have the same Working time accounting. The first will receive no compensation due to the professional travel time count introduced by this article. On the other hand, the second will be entitled either to rest time or to additional remuneration.
This inequality of treatment amounts to introducing into remuneration the criterion of the place of residence, which is not an element of the contract of Job. It runs counter to the explanatory statement of the amendment, which claims to put an end to an unequal situation in which the actual working time varies according to the geographical location of the employee's
. Unequal treatment in the counting of working time according to a criterion which cannot be included in the definition of the terms of the employment contract. It can only be censored.
2. Article 34 of the Constitution
and respect for the principle of equality
Article 77:
Paragraph IV of this Article amends Article L. 122-14-4 of the Labour Code by providing that " When the court Finds that the dismissal occurred while the dismissal procedure is null and void, in accordance with the provisions of the fifth paragraph of Article L. 321-4-1, it may declare the dismissal null and void and order, at the request of the Of the employee, the continuation of his employment contract, unless reinstatement has become impossible, in particular as a result of the closure of the establishment or the site or the absence of available employment of such a nature as to permit the reinstatement of the employee This
, which is equivalent to the settled case-law of the Court of Cassation, is vitiated by a negative incompetence which constitutes a violation of Article 34 of the Constitution. As a result, it disregards the principle of equality.
The wording adopted for the new paragraph IV of Article L. 122-14-4 of the Labour Code introduces subjective assessment elements. The concept " Impossibility " Is used in an obscure and contradictory sense. The article uses this concept in a different sense from its object. The impossibility is specified in the text by a non-exhaustive list of cases which do not effectively correspond to the inability to execute the contract of employment. This ambiguity is reinforced by the use of the adverb " In particular ", placing the conditions of employment under the office of the judge. However, article 34 of the Constitution provides that the law lays down the fundamental principles of labour law, the right to organise and social
. By your decision of 13 January 2000, taking the view that the legislature had not exhausted its own jurisdiction when it had left it to the judicial authorities to determine whether the failure to comply with the abovementioned formality Null and void dismissal proceedings (Decision No 99-423 DC, recital 27).
the present case, it is sufficient to point out that the consequences of the dismissal procedure will be in the hands of the court seised since the effects Attached to its decision are not exhaustively stated, as attested by the presence of the adverb "
particular, the article criticised states that the judge will be guided by the principle of the impossibility of reinstatement of the employee, principle Illustrated by two examples: closure of the institution or site, or absence of available employment.
However, it must be recognized that these illustrations are non-exhaustive and that the judge will have considerable latitude to assess the circumstances The impossibility of reintegration through this adverb. A disproportionate amount of latitude since this will have the effect of submitting the fate of the employees concerned, as well as the situation of the undertaking in question, to a legal uncertainty detrimental to all the persons concerned
Elsewhere, the text does not specify what is meant by the closure of the institution. It does not make it possible to know whether the cessation of the activity is the only one or whether it excludes reintegration when the activities are redistributed to other institutions or companies within the same group.
This situation is Even more unbearable is the right to obtain the employment of which the employee has been unlawfully evicted.
Moreover, if one were to, for the sole purposes of the reasoning, follow your own reasoning as it appears from your Decision of 12 January 2002 (Decision No 2001-455 DC), it would inevitably be necessary to conclude that this legal uncertainty weighs, on the one hand, and on the other hand, on the employee and, on the other hand, on the undertaking whose future is suspended at a The
of Article 77 strikes against the principle of clarity of the law which is binding on the legislator in accordance with Article 34 of the Constitution, which your recent case-law has recalled (Decision 2004-494 DC On April 29, 2004). It is incompatible with the objectives of the constitutional value of intelligibility and accessibility of the law as provided for in Articles 4, 5, 6 and 16 of the Declaration of Human and Citizen's
. A negative incompetence and a breach of the principle of equality before the law in so far as employees who are objectively placed in the same situation will not necessarily be treated in a similar way with regard to their right to obtain a
From this leader, censorship is incurred.
3. On the ignorance of the right to obtain a job
enshrined in the fifth paragraph of the Preamble of 1946
On Article 77:
This article also reveals a disproportionate infringement of the right to obtain employment Recognised by the Preamble of the Constitution of 1946.
The case-law of the Court of Cassation considers that employees have, in the case of economic termination of employment, a right to reinstatement in an equivalent job when the Reintegration into the same job is impossible (Cass. Soc. 30 March 1999, Bull. Cv. V, No. 144). In this protective logic of the employee, contracts of employment are deemed never to have been broken.
In other words, in order for this right to continue the employment contract to be impossible, i.e. the right to obtain employment Before the termination of the lay-off procedure, there must be a compelling and precisely defined ground of law.
This is not the case in the present case, in particular, of the use of the adverb " In particular ".
On note, in addition, That the definition adopted by the article criticised is less protective than that currently applied by the judicial judge. Indeed, the case-law cited above considers reinstatement in equivalent employment as an alternative to the impossibility of re-entering the dismissed employee in his initial employment: The Court of Appeal was able to decide ... The reinstatement of employees in an equivalent job after noting that reinstatement in their employment had become impossible. "
The article in question attempts to defeat this search for equivalent employment, which is nevertheless the Objective translation of the right to employment as recognized by the Preamble of 1946. In so doing, by expanding the assumptions for which reintegration is impossible, without real limits due to the use of the adverb " In particular, the legislator has a disproportionate infringement of the right to obtain employment, That is, in the present case, to obtain the right to engage in the employment contractually defined with the employer and which is reborn as a result of the continuation of the contract of employment resulting from the cancellation of the social
. The necessary conciliation of two constitutional principles of freedom to undertake, as provided for in Article 4 of the Declaration of Human Rights and the Citizen, and the right to obtain employment, contained in the fifth paragraph of the Preamble of the 1946 Constitution.
This principle of conciliation was clearly stated in your decision No. 98-401 DC of 10 June 1998, in which you swear that Article 34 of the Constitution " Cannot exempt the legislator, in The exercise of its competence, of respect for the principles and rules of constitutional value, in particular with regard to the fundamental rights and freedoms granted to employers and employees; which, in particular, are included among these rights and Freedom, the freedom proclaimed by Article 4 of the 1789 Declaration, in particular the freedom to undertake, equality before the law and public office, the right to employment, the right to organise, and the right recognised in the Workers to participate in the collective determination of working conditions and the management of enterprises. "
It is therefore up to the legislator to reconcile these different rights. You have clearly reasserted it on a regular basis in your case-law, and in particular in Decision 2001-455 DC of 11 January 2002, stating that, if the legislator can provide the right to use the limitations relating to the requirement represented By the freedom to undertake, it must not result in disproportionate harm to the objective pursued by the legislator.
The combination of the two amendments provided for in the IV of Article 77 breaks the balance resulting from your Case-law on the balance between freedom of undertaking and the right to employment. The extension of the assumptions for which reinstatement is impossible can lead the employer to exempt itself from these obligations and to ensure that the balance between freedom of entrepreneurship and the right to employment is no longer
. From this point of view, the censorship of this article is also incurred.
4. On compliance with Article 72-2 of the Constitution
The fourth paragraph of Article 72-2 of the Constitution provides that " Any transfer of powers between the State and the local authorities shall be accompanied by The allocation of resources equivalent to those devoted to their exercise. Any creation or extension of competences resulting in increased expenditure by local authorities shall be accompanied by resources determined by law. "
The second sentence of this paragraph is intended to prevent transfers or extensions of powers from being transferred to the territorial authorities without the corresponding resources being transferred to them.
The law of Programming for social cohesion carries out, in many of its provisions, extensions of competences entailing significant new expenditure. The question is whether the Constitution guarantees compensation to the territorial authorities in the case of transfers of powers by law only, but also in the case of transfers of expenses resulting from a change in fact of the In
, the Constitution refers to the effects of the measure envisaged, specifying that transfers or extension of powers are covered by the guarantee of compensation " Having the effect of increasing the expenditure of local authorities', that is, not a theoretical estimate of the effects of a new legislative provision but of its practical consequences, even if the aim pursued
Article 1:
This Article organises the public employment service and, in particular, establishes an Article L. 311-10 of the Labour Code, which creates the employment centres, Whose mission is to contribute to the coordination of actions carried out in the framework of the public employment service. The employment housing sector cannot exceed one region.
The Government plans to create 300 employment centres between 2005 and 2009. They may take the form of a group of public interest, governed by a convention determining the arrangements for the participation, in particular financial, of the members, of which a territorial community or a Inter-communal cooperation.
In other words, within 300 houses of employment, the financial participation of a municipality, department, region or inter-communal cooperation institution is mandatory.
This Article clearly implies a new competence for many local communities that should become members of future employment houses, at the risk that they do not see the light of day
Financial of at least one territorial community to the creation of each employment house, this article creates a new competence for the local authorities, which can only lead to an increase in their expenditure
Financial legislation for 2005 (appropriations entered in the employment and labour budget) provides for EUR 300 million in programme authorisation, in accordance with the table of I of Article 38 of the draft programming legislation for social cohesion, and 45 Millions of payment appropriations, while the same table, voted by Parliament, contains payment appropriations for 2005 up to EUR 120 million.
Beyond this difference between the two laws in the financing of the State for the There is no provision for any financial compensation for the communities that would become a member of the employment house. The financial impact on the local authorities is difficult to assess since the employment houses are a new structure. Nevertheless, it is all the more real as it is compulsory.
The provisions of Article 1 of the Programming Act for social cohesion, by not providing for the corresponding resources to the new charges which will be As a direct consequence of the creation of the 300 houses of employment, are thus contrary to the Constitution and may enter into force only if the compensation is provided for simultaneously by law.
On Articles 17, 24 and 31:
These Articles Focus on the status of apprentices and apprenticeship. They are in fact extending the powers of the regions under Article L. 241-12 of the Education Code. Article 17 opens the possibility of signing apprenticeship contracts for a period of less than one year. Article 24 allows entrepreneurs to enter into a learning contract after 25 years. Article 31 introduces a tax credit to encourage an increase in the number of apprentices from 355 000 in 2004 to 500 000 in 2009.
While the draft finance bill for 2005 includes a measure to adjust the state's expenses to The increase in staff to accompany the entry into force of these provisions, no financial compensation is foreseen for the regions.
The first question asked therefore relates to the existence of a transfer or an extension of Competences in the sense that the constituent provided for it by adopting Article 72-2 of the Constitution.
The combination of the provisions of the Programming Act for social cohesion will result in the competences exercised by the regions In
first place, by Articles 17 and 24, the law extends the scope of learning to categories now excluded (possibility of concluding contracts of less than one year or contracts after 25 years for creators). Company). Even if these are minor adjustments, the field of learning is changed, which is equivalent to transferring to the regions of the public currently supported by others.
Second, by introducing a tax credit under its section 31 In order to bring about strong growth in the number of apprentices, the programming act for social cohesion makes a transfer of skills in fact. Indeed, the Government has indicated that its development plan must result in a 40 per cent increase in the number of apprentices between 2005 and 2009, reaching a total of 500,000 apprentices (compared to 355 000 today) at the end of this plan
To implement this plan, it will be necessary to have access to the learning of young people who do not enter this sector today. Currently, young people who are not learning are:
-educational institutions (the overwhelming majority of the number of young people between 16 and 19 years of age): the education code clearly states the responsibilities Of the State in this field;
-vocational integration schemes for young people (local missions and PAIO), which are also the responsibility of the State, in the absence of the publication of the texts implementing Article 138 of the Finance Act for 2004 Which transfers this competence to the regions;
-either unemployment compensation schemes under the responsibility of the social partners pursuant to Article L. 351-21 of the Labour Code; or
-traineeships for vocational training The regions.
Apart from the latter, in all the others, there will be a transfer of state expenses to the regions as a result of the adoption of the relevant legislation.
Also, the law of Programming for social cohesion organises, in the field of learning, an extension of the competences of the regions, which the Constitution strictly supervises.
The second question asked is whether the contested provisions of the law of Programming for social cohesion has the effect of increasing the expenditure of the regions.
There is little doubt on this point. Since the transfer of competence in the field of apprenticeship in 1983, the regions have ensured, through their budgets, the funding of apprenticeship training centres and apprenticeship
. Apprentices will result in increased loads borne by the regions:
-for the equipment of the DWI and the learning sections: the limited nature of the resources provided by the apprenticeship tax (proportional to the salary mass) and the supervision by the legislator of the resources of the consular rooms (additional charges to the professional tax) mean that the regions will have to finance this equipment in practice;
-in title The functioning of the CFA and the learning sections: the same constraints weigh, even though the regions must ensure the financial balance of the CFA and the learning sections;
-as the bonus paid for each contract Apprenticeship to the employer: the effect is very directly mechanical here and the fact that the regions can modulate the rate of this premium does not call into question the observation that, under constant law, any increase in the number of apprentices translates into
With respect to the last point, if the premium rate is variable depending on the situation of the youth and various parameters related to the contract, it can be noted that the regions cannot, in the Framework for modulation, allocate a premium of less than EUR 1 000. At the national level, this represents an increase in regional spending by 2010 at a minimum of EUR 145 million.
As regards support for the CFA and the learning sections, it can be estimated that the financial impact of the Measures because of the programming law for social cohesion is significant. According to the budget information document " Vocational training " Annexed to the draft finance law for 2005, the regions spent EUR 1 002 438 000 on the financing of apprenticeship in 2003. The implementation of the plan should therefore be translated into at least 40 % of this amount, or more than EUR 400 million. It can be noted that this calculation assumes that the other funding of learning (apprenticeship tax, endowment of decentralisation) will evolve in a symmetrical way, which is far from proven. In any case, the cost implications of the regions are significant.
Finally, these consequences will be true as early as 2005. Indeed, it can be pointed out that the State has, for expenditure falling within its competence (exemptions from social contributions in favour of apprenticeship contracts), provided for an abundance of appropriations of EUR 38 million. There is no indication that the expenditure of the regions should not be observed according to the same timetable and therefore with actual consequences on their budget in 2005.
The third question asked is whether financial compensation has been Intended for this transfer of expenses. This is not the case, no legislative provision of the Programming Act for social cohesion or any measure of the finance bill organises compensation.
The provisions of Articles 17, 24 and 31 of the Programming Act For cohesion, by not providing the corresponding resources to the new charges which will be the direct consequence of the reform of apprenticeship are thus contrary to the Constitution and can enter into force only if the compensation
On Article 44:
This Article amends Article L. 322-4-7 of the Labour Code and thus allows for the conclusion of contracts for the benefit of employment contracts, known as contracts Support in employment. These agreements shall be signed between the State and the territorial authorities, the other legal persons under public law, private non-profit-making bodies and legal persons responsible for the management of a public
. The aim is to promote the professional integration of unemployed persons with special difficulties in access to employment in the non-market sector by providing for the satisfaction of unmet collective
. In the context of an accompanying employment contract shall receive, unless otherwise provided in a contractual or contractual arrangement, remuneration equal to the product of the amount of the minimum wage for growth by the number of hours of work , which cannot be less than 20 hours per week.
The state supports part of the cost of hiring under an employment escort contract. This aid is adjustable under conditions laid down by decree in the Council of State, taking account of the category to which the employer belongs, efforts in the field of vocational training and support, economic conditions And difficulties in access to employment. It shall be paid to the employing body, which is a signatory to the Convention.
In other words, alongside the participation of the State, a participation by the signatories of the Convention for the financing of the remaining part of the related cost shall be instituted Hiring.
This article introduces a new burden, especially for all local employers. The Government does not provide specific objectives in terms of the number of employment support contracts it wishes to create, as it does for future contracts, as defined in Article 49 of the Cohesion Programming Act
, in the draft finance law for 2005, it provides for an envelope of EUR 438.60 million to cover its participation in the financing of employment and initiative contracts Employment, which are in the merchant sector what the employment-related contracts are to the non-market sector.
This single envelope will be allocated and modulated by the public employment service at regional level between the two types of employment. Assisted contracts for persons experiencing difficulties in access to employment. However, the intention of the Government is indeed to sign conventions with employers in the merchant and non-market sectors.
The new expenditure for local authorities, future employers of employees in the framework Of an accompanying employment contract shall not be compensated by the State. The resources corresponding to these contracts are not transferred by the State, which is thus unaware of the provisions of the fourth paragraph of Article 72-2 of the Constitution. The fact that these new assisted contracts are intended to replace existing employment contracts does not allow the Government not to provide for the transfer of the corresponding resources to new contract expenditure In employment.
Not only are employment contracts solidarity prior to the introduction of Article 72-2 of the Constitution, and the objective of the draft programming legislation for social cohesion cannot be
provisions of Article 25 of the Programming Act for Social Cohesion entail new expenditure for the Member States. Uncompensated territorial communities. They are contrary to the Constitution and can only enter into force if the compensation is provided for simultaneously by law.
5. On the respect of Articles 39, 44 and 45 of the Constitution
On Article 139:
Article 139 validates the acts provided for in the prefectural decrees, taken in 2004, declaring the acquisitions and works of Creation and extension of tram lines, to the extent that the legality of those acts would be challenged on the basis of the illegality of the prefectural orders as they would be attacked or annulled on the ground of one hand, that the impact assessment Presents inadequacies in the analysis of the effects of the project on road traffic and, on the other hand, the failure to state reasons for the conclusions of the investigating commissioners or the commissions of inquiry prior to the declaration of utility This
originated in Amendment No. 1031 by MP UMP of the 2nd constituency of Bas-Rhin, Marc Reymann, which was tabled at the first reading by the National Assembly of the draft programming bill for the Social cohesion at its sitting of 6 December 2004.
This amendment received the favourable opinion in open session of the Committee and the Government.
The Joint Joint Committee has reviewed and adopted this Article, after amendment Editorial.
This article was adopted in disregard of the requirements of the first paragraphs of Articles 39 and 44 of the Constitution. It is an addition without any link to the subject matter of the bill submitted to Parliament.
Thus, the link to the original bill is non-existent.
There are three titles in the bill, the first of which is The third contains a number of reforms aimed at restoring effective equality of opportunity.
As for Article 139, it would be registered, according to its author. In " The willingness of the Government to promote the most difficult neighbourhoods " (Analytical report on the debates of the sitting of 6 December 2004).
However, this is not the subject of the draft legislation, even if its Title III in Chapter II is concerned On a reform of the urban solidarity endowment with a view to helping cities in great difficulty.
Moreover, while the objective of valuing the most difficult neighbourhoods can only be shared, it does not, however, justify Any means to achieve it, in this case the right to override a court decision, the one rendered by the Administrative Court of Strasbourg on 19 October 2004.
It is also necessary to specify the basis for this decision. The Administrative Court annulled the declaration of public utility (DUP) because it considered, inter alia, that the impact assessment presented " Substantial inadequacies ". He recalled that " The impact assessment of a project must relate to the importance of the proposed works and developments and their foreseeable impacts, both direct and indirect to the environment; and the extension of the lines of a tramway, including Traffic is a priority within the framework of a multimodal transport project, has, by its very nature, important effects on the density and distribution of traffic flows, an essential component of the urban environment; Impact carried out by the urban community of Strasbourg (...) only describes the traffic of the tramway in its new configuration, without analysing its provisional, temporary and permanent effects on the transfer of traffic ".
We are a long way from the purpose of the Social Cohesion Bill. On the other hand, we are at the heart of a challenge to the purpose of the urban planning law impact study.
According to the author of the amendment to the article, this amendment " Tends to allow creation projects and Extension of tramways to be continued where the validity of acts adopted pursuant to prefectural orders is called into question '. And he adds, as in reassuring minds about the legal consequences of his amendment: In order not to undermine the right to an excessive extent, the proposed measure relates to the year 2004 '.
This ambiguity in the presentation of the amendment Can only help to strengthen our conviction. First, the author acknowledges that his amendment undermines the law. It therefore proposes, in the second place, that it be framed in the long term. It is therefore necessary to ask the question of the general interest objective of this provision.
Either it is of general interest, and it must be applied without limit in time, or it is not, and in which case it should be censored.
You have recognized that " The legislature may, as it alone has the right to do so, validate an administrative act in the interests of sufficient general interest " (Decision No. 2003-486 DC, 11 December 2003). Is it possible to allow projects for the creation and extension of tramways to continue to be a sufficient general interest justifying the question, even temporary, of the legislation on public utility declarations? In other words, can the law be opposed to the law? The law must be the expression of the general will and not that of particular interests. The character " Sufficient " Of the general interest which would justify this article is more than objectionable.
Article 139 is therefore a rider, of a substantial nature, added in extremis in the context of the examination of the programming project In
, the Senate, although having examined the draft law in the first place, was not required to rule on such an amendment, which was tabled and defended only in the National Assembly. As the urgency has been declared by the Government on this text, it is only in the Joint Joint Committee that the representatives of the Senate have been able to examine Article 139. At the meeting of this committee, however, it is customary, except for financial laws and social security financing laws, the examination of which and the adoption by both chambers are subject to constitutional deadlines. Discussion of the articles was limited to those for which the two assemblies of the Parliament could not reach an identical text (Art. 108, para. 3 of the Rules of Procedure of the National Assembly). In addition to establishing a rider, this Article was therefore adopted in non-compliance with the rules for the discussion of articles between the two chambers as defined by Article 45 of the Constitution and the Rules of Procedure. The National Assembly.
Wherefore, for all these reasons, a fortiori cumulatively, censorship is inevitable.
(List of signatories: see Decision No. 2004-509 DC.)
