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What is France’s Constitutional Council and why is it in the news?

With the council set to make an important ruling on Friday (April 14), we take a closer look at how it works

The council is set to return its decisions on the pension reform tomorrow (April 14) Pic: BENEJAM / Shutterstock

France’s Constitutional Council is set to hand down rulings on the government’s controversial retirement reforms on Friday (April 14).

But what is the council and what will its decisions mean? We explain.

What is the council?

The Conseil constitutionnel is the highest constitutional authority in France. It was established in 1958 and is housed in the Palais-Royal, on rue Montpensier in Paris.

The council’s nine members are often known as ‘Les Sages’, which translates as ‘The Wise Ones’. France’s president, as well as the presidents of the parliament and senate, nominate them and they serve for nine years.

The members are changed, in thirds (three members at a time), every three years. The same person cannot serve twice (except if they did not finish their term for a genuine reason). They cannot be part of the government or the economic council, nor part of the Défenseur des droits office.

They can be asked to leave their post if they are judged physically or mentally unsuitable.

The council’s main function is to ensure that the French constitution’s rules and values are upheld. It can be asked to rule on decisions of law and also whether to hold referendums on key topics. Since 1971, the council has also been tasked with upholding the 1789 Convention of Human Rights.

It usually requires partial changes to be made to laws on which it is asked to rule.

Each member of the council has the chance to speak and take a position on the bill and the arguments presented. They then deliberate and vote. The decisions must be unanimous. The decision of the council president is the deciding vote, and as a result, they always vote last.

Why is the council in the news?

The council on Friday (April 14) is set to hand down decisions on the government’s controversial pension reforms, which include raising the minimum retirement age from 62 to 64.

Read more: Updated: Dates and sectors of upcoming pension strikes in France

Read more: French unions set a new date for fresh pension reform strikes 

The Senate approved the reforms before the government forced them through parliament via the controversial article 49.3. 

This meant that the bill was ‘approved’ without MPs voting.

The government subsequently survived two votes of no-confidence from opposition MPs.

Read more: French PM survives two no-confidence votes over pension reforms 

Read more: Fury as French PM forces through pension reforms without a vote 

What decisions could the council make on the pension reforms?

The council’s decisions on the reforms are set to be issued on Friday afternoon. 

Its decisions are likely to include one, or some, of the following possible options:

Validation of the majority of the reform 

The council could validate most of the reform without any major changes or objections.

Partial censure/change

Partial censure and change of the text is generally considered to be the most likely scenario.  This means that the bill will be passed but with certain key changes, and/or the dropping or alteration of certain measures.

Both proponents and opponents have said that they expect certain clauses to be changed or removed, including:

  • The ‘senior index’, which is set to require large companies of more than 300 people to declare employees over 55 (although this could be introduced via another bill in future)
  • The creation of a new CDI for people at the end of their career

However, it is not yet clear if the most controversial point in the bill – that of raising the minimum retirement age from 62 to 64 – will be changed or amended.

The head of the CFDT union, Laurent Berger, has already said that “if there is a censuring of some points, but not of the ‘64 years’ one, then it will do nothing to address the social conflict”.

Left-wing opposition MPs have already said they will continue to fight for the reform to be retracted completely (total censure, see below), even if the council makes changes.

Total censure/change

Opponents of the bill are calling for this, as they say that the government has abused the ‘spirit of the Constitution’, especially as it used article 49.3 to push it through and, they say, reduce the amount of debate possible.

Socialist MP Jérôme Guedj said that this was “motivated by no other reason than to push it through quickly”. He condemned the parliamentary debates as “insincere”. 

Professor Elina Lemaire, a professor of public law at the University of Bourgogne, told the newspaper L’Express that she believes that the council is unlikely to reject the bill completely. She said: “[To do this] the council would have to examine the government’s conscience, which it has always refused to do.”

This means that the council would have to decide that the government had been operating outside of the law since the beginning of the process. This is unlikely.

Constitutional expert Didier Maus said that “just because the procedure [used] was unusual, that doesn’t mean it should be censored”. However, he said that if the council considers that the reform would “worsen the situation of women, or people in certain long careers”, it could see that as a “breach of equality”. 

This could lead to articles being cut from the bill. 

However, total censure of the bill is considered to be unlikely. Since 1958, the council has only totally censured 17 bills, and these were due to several small questions.

Decision to hold a referendum

The council is also set to consider left-wing opposition MPs’ request to hold a public referendum on the issue (référendum d'initiative partagée, RIP). 

In doing so, the court could choose not to censure much of the bill, and to put it up for a public vote. 

Proponents of the vote have said, however, that they would want to submit a new proposal as part of the referendum, which would say that the minimum retirement age cannot exceed 62 years. This would be in direct contradiction to the current contents of the bill.

In order to hold a RIP,  enough MPs would need to sign their support. However, constitutional law professor Lauréline Fontaine told L’Express that a RIP appears “probable”.

Yet, the RIP process is long. First, the proposal would need to attract 4.8 million signatures in nine months, and this would only be examined by the Assemblée and Senate in the following six months, before even reaching the stage of being put to a public vote.

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What is article 49.3 and could it help pass France’s pension reforms?

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