EXPLAINED: Why Friday's court ruling could prolong French pensions dispute for another 15 months
Six wise men and three wise women will seal the fate of President Emmanuel Macron’s pension reform late on Friday afternoon, writes John Lichfield. But this doesn't mean an end to the long-running and bitterly-contested battle over the reform.
The Constitutional Council, known as Les Sages, will decide whether the most hotly disputed law in recent French history is compatible with the constitution of the Fifth Republic.
If the council rejects the law, that will be the end of the story. President Macron’s courageous/fool-hardy/necessary/ misguided/brutal/modest attempt to oblige the French people to work two years’ longer in seven years’ time will be dead.
There is no appeal against The Sages.
If they approve most, or all, of the law, Macron will promulgate the reform. There will be another cloudburst of violence. The strikes and protests will continue for weeks – but in weaker form.
The moderate trades unions say that they will accept the Council’s decision and withdraw from the protests.
The nine sages have, however, a second decision to make on Friday which could prolong the battle over pension reform for 15 months or more. They must rule on a referendum proposed by left-wing deputies and senators which would limit the French retirement age by law to 62.
If the sages give the go-ahead (as they probably will), the referendum will not happen before the summer of 2024. By that time, the Macron Reform, gradually increasing the retirement age to 64 by 2030, would have been in effect for nine months (from September 1st).
What a mess. What larks.
Almost all laws are referred to the secretive Conseil Constitutionnel but its pronouncements generally escape the attention of Le Grand Public. Not this time.
Although the sages are numbered from one to nine, like players in a football squad, they do not perform in public. They take majority decisions after private debates. The written record of their deliberations is locked away for 25 years.
The councillors - lawyers, business people, senior civil servants and retired politicians - are appointed for nine years.
The best-known names in the present “squad” are two former prime ministers, Laurent Fabius (the president) and Alain Juppé.
Their decisions are supposed to be non-political and based on the letter and spirit of the constitution. Will the Council decide nonetheless that it has a duty to rescue the country from the pensions impasse?
A majority of the Nine is reckoned to be broadly Macron-compatible. In its 64 years existemce , the Council has rejected an entire law on only one occasion.
On the contents of the law, there is little for the sages to find fault with. Retirement at 64, instead of 62, may be grounds for political warfare. It is not anti-constitutional.
The council is widely expected to throw out (“censor”, in its jargon) an optional clause which calls for more effort to keep older people in work.
The reform was framed by the government as an amendment to social security law. The “work-for-oldies” clause is widely thought to be incompatible with this status but it can be struck out without wrecking the reform.
The Council must, however, also study HOW the law was passed.
Was it appropriate for the government to use its special power under Article 49.3 of the Constitution to by-pass a normal National Assembly vote? Was it appropriate to frame the reform as a change in social security law to guillotine the proceedings in parliament? And what about the government’s use of another special power to end the filibustering by the Left in the Senate?
Adopting one of those stratagems might be acceptable. Does the use of all three abuse the constitution? More to the point, does it offer enough constitutional cover for the Sages to reject the reform to end a political crisis?
If they do, Macron and the government cannot appeal. The pension reform is dead. Macron will be humiliated. The remaining four years of his second term will be a domestic wasteland (as it may also be if the reform passes).
If the Council approves most of the pension law (the most likely outcome), Macron will sign and promulgate it. There will a new conflagration of violence by the anti-Macron, anti-capitalist and anti-state left. Innocent bus-shelters will suffer.
But the trades union front, impressively united until now, will splinter. The CFDT and other moderate union federations will withdraw their support for further strikes.
Militant branches of the more militant unions – on the power and refinery industries and on the railways – will fight on. There will be blockages and vandalism. Eventually, those protests will also fade.
However, that may not be the end of the matter - not by a long chalk, an eighteen months’ long chalk at least.
The sages will also decide whether to allow the Référendum d'initiative partagée (RIP) (shared initiative referendum) on the French pension age sought by left wing parliamentarians. It seeks to limit the full pension age to 62 – which would allow many people to retire earlier than they do now.
This would be the first of a new type of referendum created in 2008 (but supposedly made too complicated to be used).
Bear with me.
To call a RIP, you need the signatures of 185 deputies and senators out of 925. The sponsors already have more than enough.
The Constitutional Council must then decide whether the subject is admissible. An RIP cannot, inter alia, seek to overturn a law promulgated for less than one year. (Does that apply to the Macron reform which has not yet been promulgated at all? Unclear.)
If approved by the sages, one in ten registered voters – about 4,900,000 people - must sign a petition calling for a referendum. After nine months, the sages verify the signatures and decide whether there are enough.
If the 10 percent of voters barrier is passed, both houses of parliament have six months to consider a law on the same subject. If they pass, or reject, the law, that is the end of the matter – no referendum. Only if they fail to examine the law, does the President organise a popular vote when he chooses to do so.
In sum, a referendum cannot happen before June next year at the earliest. If approved by the sages, the Macron pension law will take effect on September 1st.
It is possible that the referendum idea will fall at one of the above hurdles. If, however, the retirement age limit of 62 is approved next year, either by parliament or the people, a bizarre and unprecedented situation will arise.
France will have two pension laws, one raising the minimum retirement age gradually to 64, the other forbidding an actual retirement age higher than 62.
Who would sort out such a mess? The sages of the Constitutional Council of course.
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The Constitutional Council, known as Les Sages, will decide whether the most hotly disputed law in recent French history is compatible with the constitution of the Fifth Republic.
If the council rejects the law, that will be the end of the story. President Macron’s courageous/fool-hardy/necessary/ misguided/brutal/modest attempt to oblige the French people to work two years’ longer in seven years’ time will be dead.
There is no appeal against The Sages.
If they approve most, or all, of the law, Macron will promulgate the reform. There will be another cloudburst of violence. The strikes and protests will continue for weeks – but in weaker form.
The moderate trades unions say that they will accept the Council’s decision and withdraw from the protests.
The nine sages have, however, a second decision to make on Friday which could prolong the battle over pension reform for 15 months or more. They must rule on a referendum proposed by left-wing deputies and senators which would limit the French retirement age by law to 62.
If the sages give the go-ahead (as they probably will), the referendum will not happen before the summer of 2024. By that time, the Macron Reform, gradually increasing the retirement age to 64 by 2030, would have been in effect for nine months (from September 1st).
What a mess. What larks.
Almost all laws are referred to the secretive Conseil Constitutionnel but its pronouncements generally escape the attention of Le Grand Public. Not this time.
Although the sages are numbered from one to nine, like players in a football squad, they do not perform in public. They take majority decisions after private debates. The written record of their deliberations is locked away for 25 years.
The councillors - lawyers, business people, senior civil servants and retired politicians - are appointed for nine years.
The best-known names in the present “squad” are two former prime ministers, Laurent Fabius (the president) and Alain Juppé.
Their decisions are supposed to be non-political and based on the letter and spirit of the constitution. Will the Council decide nonetheless that it has a duty to rescue the country from the pensions impasse?
A majority of the Nine is reckoned to be broadly Macron-compatible. In its 64 years existemce , the Council has rejected an entire law on only one occasion.
On the contents of the law, there is little for the sages to find fault with. Retirement at 64, instead of 62, may be grounds for political warfare. It is not anti-constitutional.
The council is widely expected to throw out (“censor”, in its jargon) an optional clause which calls for more effort to keep older people in work.
The reform was framed by the government as an amendment to social security law. The “work-for-oldies” clause is widely thought to be incompatible with this status but it can be struck out without wrecking the reform.
The Council must, however, also study HOW the law was passed.
Was it appropriate for the government to use its special power under Article 49.3 of the Constitution to by-pass a normal National Assembly vote? Was it appropriate to frame the reform as a change in social security law to guillotine the proceedings in parliament? And what about the government’s use of another special power to end the filibustering by the Left in the Senate?
Adopting one of those stratagems might be acceptable. Does the use of all three abuse the constitution? More to the point, does it offer enough constitutional cover for the Sages to reject the reform to end a political crisis?
If they do, Macron and the government cannot appeal. The pension reform is dead. Macron will be humiliated. The remaining four years of his second term will be a domestic wasteland (as it may also be if the reform passes).
If the Council approves most of the pension law (the most likely outcome), Macron will sign and promulgate it. There will a new conflagration of violence by the anti-Macron, anti-capitalist and anti-state left. Innocent bus-shelters will suffer.
But the trades union front, impressively united until now, will splinter. The CFDT and other moderate union federations will withdraw their support for further strikes.
Militant branches of the more militant unions – on the power and refinery industries and on the railways – will fight on. There will be blockages and vandalism. Eventually, those protests will also fade.
However, that may not be the end of the matter - not by a long chalk, an eighteen months’ long chalk at least.
The sages will also decide whether to allow the Référendum d'initiative partagée (RIP) (shared initiative referendum) on the French pension age sought by left wing parliamentarians. It seeks to limit the full pension age to 62 – which would allow many people to retire earlier than they do now.
This would be the first of a new type of referendum created in 2008 (but supposedly made too complicated to be used).
Bear with me.
To call a RIP, you need the signatures of 185 deputies and senators out of 925. The sponsors already have more than enough.
The Constitutional Council must then decide whether the subject is admissible. An RIP cannot, inter alia, seek to overturn a law promulgated for less than one year. (Does that apply to the Macron reform which has not yet been promulgated at all? Unclear.)
If approved by the sages, one in ten registered voters – about 4,900,000 people - must sign a petition calling for a referendum. After nine months, the sages verify the signatures and decide whether there are enough.
If the 10 percent of voters barrier is passed, both houses of parliament have six months to consider a law on the same subject. If they pass, or reject, the law, that is the end of the matter – no referendum. Only if they fail to examine the law, does the President organise a popular vote when he chooses to do so.
In sum, a referendum cannot happen before June next year at the earliest. If approved by the sages, the Macron pension law will take effect on September 1st.
It is possible that the referendum idea will fall at one of the above hurdles. If, however, the retirement age limit of 62 is approved next year, either by parliament or the people, a bizarre and unprecedented situation will arise.
France will have two pension laws, one raising the minimum retirement age gradually to 64, the other forbidding an actual retirement age higher than 62.
Who would sort out such a mess? The sages of the Constitutional Council of course.
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