Pension reform: by what legislative means can the government have it adopted?

Announced, postponed and finally presented on Tuesday January 10 by Prime Minister Elisabeth Borne, the reform of the pension system is already arousing strong reactions in a context of strong inflationary pressures.

It is also the governmental strategy which lends itself to debate in wishing to integrate this reform within the PLFRSS, a barbaric acronym meaning social security amending finance bill (LFSSR) or more simply, social security amending budget. This approach would allow the government to circumvent the ordinary legislative procedure without the risk of a negative vote while accelerating its adoption.

Beforehand, it should be remembered that the purpose of a social security financing law is to enable parliamentarians to express their views on the social security accounts. As for the LFSSR, it authorizes the modification of the social security budget during the year.

An unprecedented use for a reform of this magnitude

After the vote on the social security finance law in december, the executive wishes to incorporate the reform of the pension system into an amending social security finance law. The use of such a legislative vehicle for the adoption of a major social reform is unprecedented and would be justified, for the executive, by the financial implications generated by the vote on this overhaul of the pension system.

If we compare the eldest of the LFRSS, in other words the amending finance law, it is true that external events with immediate and significant repercussions on the State budget (such as the health crisis or a new political reform) may have justified the adoption of amending finance laws.

Moreover, LFRSS are very rare. The credits of the LFSS are, in fact, not restrictive (unlike the State budget), it is therefore possible to wait for the budget of the following year to adopt rectification elements without risk of blocking credits.

It should be noted, however, that the 2014 PLFRSS revised the system of the social solidarity contribution of companies by inserting a measure which provided for the freezing of social benefits which were no longer indexed to inflation, except for pensions of less than 1200 euros. However, this was only a specific provision which cannot be assimilated to the major changes announced by the government, such as the increase in the retirement age from 62 to 64 years.

What is Section 47.1 of the Constitution?

Article 47-1 of the Constitution provides that it is up to Parliament to pass laws on the financing of social security and regulates in its paragraph 2 their adoption procedure. It was not until 1996 that the constitutional law of February 22 enshrined this new article. The budgetary texts are voted within constrained deadlines and in the present case, the Parliament must decide within an overall deadline of 50 days.

But, if the National Assembly has not decided on the first reading within twenty days after the filing of a bill, the government seizes the Senate which must rule within fifteen days. Finally, in the event that Parliament has not made a decision within seventy days, the provisions of the bill may be put into effect by ordinance.

These different rules and deadlines also seem to apply to the amending social security budget insofar as, if we draw a parallel with the amending finance law, the Constitutional Council judged, in a decision of July 3, 1986, that the rules for the adoption of the finance law apply to amending finance laws.

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Above all, the use of this article 47-1 would offer the government three advantages. First of all, the government will not have to provide an impact study (a document used to assess the legal, financial and social effects of a bill), which may seem very questionable in view of a reform of such importance. Then, a very limited time for debate in Parliament, which has the effect not only of accelerating the vote on the reform but also of curbing the debates within the chambers. Finally, the use of a budgetary text such as the PFLRSS authorizes the government to use again 49.3 article.

Since the constitutional revision of 2008, the executive can only use this article once per session, but this "quota" does not apply to budgetary texts (such as the amending budget for social security), which explains why Elisabeth Borne has already used this article, which allows a passage in force of a text in the National Assembly, 10 times for the adoption of the finance law as well as the social security financing law.

In other words, the government will be able to use article 49.3 for the adoption of the PLFRSS and the financial measures of the pension scheme which impact the social security budget while retaining a "joker" which will allow it to use 49.3 once. for another text which will have an impact on the labor code and in particular the extension of the retirement age.

The Opposition and the Thousands of Amendments

The advantages set out above are all disadvantages for the opposition, which sees the use of article 47-1 as a skilful government maneuver for the adoption of this pension reform at a run and without democratic debate. The opposition will be able to retaliate (but again within 20 days) by using its right of amendment. It is, in fact, a common practice under the Fifth Republic which often drifts towards "parliamentary obstruction" despite the 2008 reform who came to oversee the procedure for tabling amendments.

We remember, for example, that in 2006, the President of the National Assembly, J.-L. the review of the law on the merger of GDF-Suez, surrounded by stacks of amendments (137).

In more recent times, it is possible to cite another record figure and which concerns the first draft of the 2020 pension reform: 40 amendments have been tabled, including more than 000 by the deputies of rebellious France. However, as pointed out last October by the President of LFI to the National Assembly Mathilde Panot, the deputies would be ready to table "75 amendments" on the pension reform. That being said, the government retains control because if it cannot be sure of the support of LR deputies, he can redeploy the text to the Senate in accordance with the procedure of article 47-1.

What role for the Senate?

With regard to the political composition of the Senate, but above all the tendency of the upper house to table every year, and this since the first five-year term of Emmanuel Macron, an amendment to each social security budget to guarantee the balance of the system pensions, one can only think that the Senate will vote for the reform bill presented by the government.

During the examination of the social security financing bill (PLFSS) for 2023, the senators again adopted such provisions by 195 votes against 130 and integrated automatic age measures in the event of a lack of compromise of the social partners, including raising the legal retirement age to 64.

The government seems to have considered all the avenues for the adoption of this reform of the pension system... Nevertheless, it is certain that this strategy does not correspond to the wishes of the President Emmanuel Macron, namely to carry out this reform “in the most peaceful way possible” with an unknown that remains: the mobilization of the street.

Aurora Granero, HDR lecturer in public law, University of Burgundy - UBFC

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