What is the Constitutional Council and can it strike down France's pensions bill?
The future of France’s contested pension reform is in the hands of the Constitutional Council, which will rule Friday on the constitutionality of a bill that was forced through parliament without a vote. So what is the council? And what are the possible outcomes?
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Usually a discreet body, the Constitutional Council rules on the constitutionality of bills and avoids wading into the fray of politics. The pension reform has pushed it into the spotlight in a way to which it is unaccustomed.
The council has been asked to rule on two things: if the pension reform and the process through which the legislation was passed is in line with the constitution, and if a referendum can be held on the retirement age.
Lawmakers with the opposition Nupes alliance asked the council to approve a Référendum d'initiative partagée, or RIP, which would ask citizens to vote on keeping the minimum legal age of retirement at 62 years old.
What is the Constitutional Council?
The Constitutional Council was created by the 1958 constitution as a constitutional court, to act as a check on legislators and the country's president.
It has the power to strike down legislation it deems unconstitutional, whether passed by parliament or implemented by the president by decree.
The current council is made up of nine people – six men and three women – presided over by former prime minister Laurent Fabius.
Called the Sages (Wise Ones), they are appointed to single, non-renewable nine-year terms.
The French president appoints three members, including the council president, and the presidents of the National Assembly and the Senate appoint three members each.
Former presidents are also permitted to sit on the council, with seats for life, though currently no one has chosen to do so since the death of Valéry Giscard d'Estaing in 2020.
Nicolas Sarkozy sat for a few months in 2012 and 2013 before resigning, and François Hollande never did. Incumbent President Emmanuel Macron said in 2019 that he would not join the council after the end of his term.
What does the council do?
The Constitutional Council can be considered the Supreme Court of France in that it acts as a check on the executive and legislative branches.
Its mandate has evolved and expanded from a body first intended to rule on technical legal principals, to one that considers and upholds broad rights.
In a July 1971 ruling in which it struck down a law by arguing it infringed on the rights of assembly laid out in the 1789 Declaration of the Rights of Man and the Citizen, the council shifted towards ruling on broader principles.
Its scope was expanded with a 1974 constitutional reform allowing 60 members of the National Assembly or senators to file a case, and not just the president, prime minister or presidents of the assemblies.
A 2008 constitutional reform opened up the possibility for citizens to question legislation.
Ruling on pension reform
The implementation of the pension reform bill has been suspended until the council’s decision.
The government brought the legislation to the council in March, after it passed it without a parliamentary vote. The council had one month to rule, either accepting the text entirely, rejecting it, or striking down parts of it – the more likely scenario.
Delegations from opposition lawmakers in the Senate and National Assembly have argued their case for a complete rejection of the bill on the grounds that it was introduced as part of a social security spending bill, which is limited to 10 days of debate.
The council could rule that by introducing the legislation in this way, the government denied a full debate on a major issue.
The council is also considering the government’s use of article 49.3 of the constitution, which allows it to push through legislation without a vote in parliament – which appears constitutional, even if in this case it was unpopular.
Over its lifespan the council has reviewed 744 bills and struck down 369, only 17 of them completely.
Future of the opposition?
The other issue at hand with the pension reform, the question of a referendum, will potentially have more of an impact, according to sociologist Jean-Francois Amadieu, who researches social movements.
“The big novelty is this issue of the referendum because it’s the first time the council will be engaging in this process,” he told RFI
If the council accepts the referendum, it makes it difficult for the government to implement its reforms, and would bring them back to the negotiating table, notably with trade unions, which have been largely sidelined.
“After 14 April, things will be different. The prime minister could open negotiations,” said Amadieu. “It’s a probable scenario, especially if the council approves the referendum. Then the executive will really have to open a dialogue this time.”
Whatever the result, the decision is likely to be final on the pension reform.
“The council’s decision will forcibly lead to a resolution of this crisis, and maybe offer a way out from the top, as lawmakers from the ruling party would like,” said Amadieu.
The head of the CFDT, Laurent Berger, has said the trade union would not contest the legitimacy of the constitutional council.
If the referendum is rejected and the legislation is approved, in full or in part, the opposition will have to grapple with questions of what to do with the lingering anger built up over weeks of protests since January.
“It is certain that trade unions will have to find something else,” said Amadieu.
“It is hard to imagine electricians or oil workers or garbage collectors continuing to be mobilised indefinitely.”
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