Benjamin Morel is a lecturer in public law at the University of Paris II Panthéon-Assas.
FIGAROVOX. - If the executive relies on right-wing deputies to extend the retirement age, Elisabeth Borne does not rule out the possibility of having recourse to 49-3 which allows a text to be adopted without a vote by the Assembly. Matignon could also use 47.1 What is it concretely?
Benjamin Morel. -
Article 47.1 sets out the conditions for examining social security financing bills.
It was introduced by the reform of February 22, 1996, under the Juppé government, which is obviously a nod to current events.
It provides that if the National Assembly has not pronounced on first reading within twenty days after the tabling of a bill, the government seizes the Senate which must rule within fifteen days.
In other words, if at the end of 20 days after the tabling of the text the Assembly has not voted, and even if we are at the start of the examination, the government can interrupt the debates.
The meaning of the provision is simple, it is modeled on that of article 47 relating to finance laws.
This is to avoid a "shutodown" at the
by allowing the budget to be voted on before January 1, or failing that, to be executed by ordinance.
It is also a question of avoiding a stake in the responsibility of the government outside the frameworks of the motion of censure.
Read also Pensions: a legislative scenario feared by the opposition
Since article 48 of the Charter of 1814, the refusal to vote the budget is indeed a very effective way to push a government towards the exit.
Per se, the government does not have to “resort to the article”.
As soon as he uses a PLFSS (Social Security Financing Bill), these provisions apply automatically.
In its decision number 86-209 DC of July 3, 1986, the Constitutional Council ruled that the provisions of article 47 paragraphs 2 and 3 applied to amending finance bills.
In turn, it can therefore be applied to amending social security finance bills.
On the other hand, the government has room for manoeuvre.
Here again, in the absence of case law on PLFSS,
it is necessary to rely on the case law of the Constitutional Council concerning article 47 relating to finance laws.
In its decision number 86-209 DC of July 3, 1986, the Council judges that the deadlines in the Assembly do not necessarily have to be applied by the government, provided that this does not prevent the Senate from having the time provided to deliberate.
Until now, the idea of passing a structural reform of one of the social systems through this type of legislative vehicle had never really been considered.
Benjamin Morel
However, by using this route, the government wishes to curb the obstruction.
If the Assembly has only 20 days to deliberate, including committee time, the opposition will not be able to hold the chamber to raise social protest.
However, all the phenomena of obstruction which succeeded under the Fifth Republic obey more or less the same pattern.
An opposition that holds the room, allowing social protest to become encysted with the support of public opinion, and a majority that ends up being divided on what to do in the face of the blockage.
With 47.1, if the government decides to ignore the objections, it can transmit to the Senate after fifteen days.
The fact is that, by betting on this device rather than using others, such as scheduled legislative time,
Is the choice to go through a budget text for a reform of this magnitude a first in history?
Yes, it must be understood that the PLFSS are annual budget texts.
There are certainly corrective PLFSS, but they only aim to adjust the Social Security accounts in the event of an unforeseen situation pending the vote on the end-of-year budget.
Until now, the idea of passing a structural reform of one of the social systems through this type of legislative vehicle had not really been considered.
Would his appeal be risky for the government? What could be the political consequences?
There is a double risk.
In its decision of 86, the Constitutional Council makes it clear that this use is justified, because it concerns
“financial measures necessary to ensure the continuity of national life”
.
Failing that, the Council ruled that such provisions did not apply to the settlement laws which are of no urgency in its decision number 83-161 DC of July 19, 1983. However, this is where the shoe pinches.
If the pension reform is not voted in March, but in June, there is no danger either for the social accounts or for the future of pensions.
Whatever the position of each on this reform, we are not on this time scale.
This would imply to the Assembly that if the text is not deliberated in 20 days, either the government is chomping at the bit on the obstruction, or it is using 49 paragraph 3.
Benjamin Morel
However, such a provision may lead to the reform not being adopted by any chamber before the final reading and only really being examined in its entirety at the time of the Joint Joint Committee.
If by chance the text were to be validated under these conditions, which are very unfavorable to Parliament, that would mean that there is a blank within the Council for the use of this procedure on all future social laws.
In the press "off" granted by Laurent Fabius to the
Canard enchaîné
the President of the Council seems to doubt the constitutionality of the text if there is no vote at first reading.
This would imply to the Assembly that if the text is not deliberated in 20 days, either the government is chomping at the bit on obstruction, or it is using 49 paragraph 3. What it is precisely trying to avoid by going through this way.
Otherwise, the entire text would be censored, and you would have to start all over again from the beginning.
In
The Duck
, Laurent Fabius also points to the abundance of social riders, in particular concerning the hardship or the employment of seniors.
The government should therefore be obliged to make a second text on pensions to include these provisions... It remains to be seen whether the opposition will want to play the game and whether such a project could be voted on without using the only 49 paragraph 3 usable on a ordinary law during the ordinary session.
Indeed, if the deputies agree to be marginalized on the PLFSS while voting for the other text, then the government is half lucky... half, because this means that after the vote of the famous PLFSS, the retirement sequence will not will not be closed since a new text will arrive and that the latter may give rise to amendments, including on age.
This promises to prolong the social conflict.
If, on the other hand, the majority of the deputies judges that the two texts form a whole and refuses to vote for this second text, the government could be freed from using the only 49 paragraph 3 of the session on an ordinary bill, which it intended for Gérald Darmanin's immigration bill.
