Pension reform in France: the strategic practice of the Constitution

—Nicolas Séébold, Toulouse I Capitole University.

The pension reform project in France is not new. Already evoked during the first quinquennium of Emmanuel Macron (2017-2022), it was considered more reasonable to postpone it while the State was confronted with the COVID crisis. Once the health crisis, the presidential election (April 2022) and the legislative elections (June 2022) had passed, the project was finally presented on 10 January 2023 by Prime Minister Elisabeth Borne. The head of government announced the executive’s intention to gradually raise the legal retirement age from 62 to 64 in 2030 (Article 7 of the project).

However, the new configuration of the Assembly since the legislative elections, added to the doubts as to the vote of certain right-wing deputies, have plunged the executive into uncertainty. As the executive had every reason to believe that its reform project would not resist the legislative procedure, it has taken advantage of the facilities offered by the Constitution. In particular, it was able to take advantage of the social security financing bills, which were introduced into Article 34 of the Constitution by Constitutional Act No. 96-138 of 22 February 1996. This text allows the Parliament to pronounce on the laws concerning the social budget of the Nation, but the draft laws presented admit several advantages for the executive.

Firstly, the executive can rely on the identical regime enjoyed by social security financing bills and bills amending them. Indeed, Article LO111-6 of the social security code requires that a social security financing bill be tabled in the National Assembly no later than the first Tuesday in October. This deadline is either too late (October 2022) or too far away (October 2023) for the pension reform to come into force in September 2023. However, the executive is being strategic in its pension reform project by including it in a rectifying social security financing bill as referred to in Article LO111-3-9 of the same code. Such an amending law has the same character as a social security financing law (Article LO111-3) and is subject to the same legislative procedure.

Secondly, it is possible for the executive to insert its pension reform project in a rectifying finance bill without fearing that it will be qualified as a “rider” – in other words, a provision introduced into a text for the sake of expediency. Thus, Article LO111-3-12 of the social security code (which was created by an organic law n°2022- 354 of 14 March 2022) presents a relatively broad list of provisions that can be included in a rectifying social security financing bill, although it was initially designed to restrict it. The government can therefore argue that the pension reform modifies the financial balance of social security to the point of legitimately including it in the bill. However, there is a reservation as to the position that the Constitutional Council will adopt. Indeed, since its decision n°86-225 DC of 23 January 1987, the Council has not hesitated to censure certain provisions on the grounds that they exceed “the limits inherent in the exercise of the right of amendment”. The question will also arise as to whether such an important reform can constitutionally be carried out through a financial law.

Thirdly, social security financing bills are subject to a parliamentary procedure that is more restrictive for Parliament than the bills or proposals referred to in Article 45 of the Constitution. Thus, Article 47-1, which governs social security financing bills (also introduced by the Constitution in 1996), requires that the first reading be completed twenty days after the bill is tabled in the National Assembly and fifteen days after transmission to the Senate. While after these two stages paragraph 2 of Article 47-1 specifies that the procedure shall continue under the conditions laid down in Article 45, the following paragraph adds that the whole procedure must not exceed fifty days. Choosing to pass a reform integrated into a social security financing bill therefore amounts, for the executive, to imposing a parliamentary debate limited by time. Thus, within the framework of the pension reform, the Senate was forced to apply articles 38 paragraph 2 and 42 paragraph 10 of its Rules of procedure, two articles which accelerate the procedure but limit the debates – In favour of the senators of the majority and those in favour of the text. In favour, also, of the executive.

Fourthly, the social security financing bills have the advantage for the executive of not giving rise to the publication of the opinions of the Conseil d’État (the highest administrative jurisdiction). Although a tradition of secrecy of these opinions used to be maintained, it was abandoned by President François Hollande following a declaration on the fight against terrorism and on the reform of the State on 20 January 2015. This decision was aimed at better informing citizens who can now consult the opinions. It also facilitated the work of parliamentarians, to whom the opinions are sent at the same time as the decree introducing the bill. However, there are exceptions to this new practice. Thus, it does not apply to financial laws, to which the social security financing bills belong. Even if this point seems minor, opting for the adoption of the pension reform bill by means of a financial bill makes it possible to limit the parliamentary work that could otherwise have been based on the opinions of the Conseil d’État. This is a point that opposition parliamentarians did not fail to raise when the pension reform bill was presented to them.

What can be concluded from all this development is that the French executive power was able to develop a political strategy based on the French Constitution to adopt a controversial bill. If the maneuver is not questionable from a constitutional point of view, its legitimacy is uncertain. Moreover, this situation raises questions about the purpose of the Constitution. Does the supreme norm serve to guarantee the proper functioning of institutions, or can it also be a tool for political strategy, including if it leads to overstepping the prerogatives of an institution like the Parliament.

Suggested citation: Nicolas Séébold, Pension reform in France: the strategic practice of the Constitution, Int’l J. Const. L. Blog, Apr. 12, 2023, at: iconnectblog.com/pension-reform-in-france-the-strategic-practice-of-the-constitution/