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French labor law protests and the Constitutional Council ruling

Pascale Duparc Portier [National University of Ireland (Galway) Faculty of Law]: "The French Constitutional Council has now ruled on the constitutionality of Article 8 of the Statute on the Equality of Opportunities (Loi pour l'egalite des chances) dealing with the highly controversial First Employment Contract (CPE, contrat première embauche) which is tearing France apart. The country has been at a standstill and was holding its breath waiting for the decision of "les Sages". France has been focusing on an institution which used to be known to the lawyers and politicians' world only.

The Conseil constitutionnel is an independent recent sui generis institution which is not to be found in the hierarchy of judicial or administrative courts. It was created by the Constitution of the Fifth Republic on 4 October 1958.

It comprises nine members, one-third of whom are replaced every three years. The members of the Council are appointed by the President of the Republic and by the Presidents of each of the Parliamentary Assemblies (Senate and National Assembly). In addition to the nine members, former Presidents of the Republic are ex officio life members. The Conseil constitutionnel's president, Pierre Mazeaud, has been appointed by the President of the Republic.

One of the tasks of the Conseil constitutionnel is to rule on the conformity of the Statutes with the Constitution before their promulgation when referred to by the President of the Republic, the Prime Minister, the President of the National Assembly, the President of the Senate, or sixty deputies or sixty senators. In this case the required number of MPs (Socialists) referred the case. Usually the Constitutional Council must rule within one month. However, if the matter is urgent, this period is reduced to eight days.

If the Council had decided to declare the Statute unconstitutional it would neither have been implemented nor promulgated. Indeed the decision binds all courts and public authorities. No appeal is possible. Such a decision would have led to the total or partial censure of the law but not to its annulment since the statute has not been promulgated at this stage.

This would have soothed the present bleeding social fracture and stopped the massive demonstrations. But this would also have meant a political landmark drawback for the conservative Government.

Instead the Council Thursday declared the text constitutional both from a procedural point of view and from a law point of view. It had declared recently in the frame of the CPE dispute 'No constitutional principle nor any constitutional rule forbids the legislator to take appropriate measures with a view to assisting categories of people at stake with particular difficulties'. It confirmed this point in parag.17 of its latest decision, adding that the controversial contract differences result from the will to find a solution to the specific features of the youth unemployment issue and thus are directly linked with the general public interest which the Legislator follows and therefore are not contrary to the Constitution:

aucun principe non plus qu'aucune règle de valeur constitutionnelle n'interdit au législateur de prendre des mesures propres à venir en aide à des catégories de personnes défavorisées; que le législateur pouvait donc, compte tenu de la précarité de la situation des jeunes sur le marché du travail, et notamment des jeunes les moins qualifiés, créer un nouveau contrat de travail ayant pour objet de faciliter leur insertion professionnelle ; que les différences de traitement qui en résultent sont en rapport direct avec la finalité d'intérêt général poursuivie par le législateur et ne sont, dès lors, pas contraires à la Constitution.
President Jacques Chirac is expected to deliver a televised public address on the issue tonight, Friday, at 8 PM Paris time (18.00 GMT). He has 9 days to promulgate the Statute or to ask Parliament to deliberate again.

Reports say he may promulgate the text immediately. The decision now relies in his hands and is of a highly political nature. Social pressure on the government has not been this strong since the student riots of 1968.

In the meantime the term "CPE" has become colloquially synonymous with "How to lose elections" ("Comment Perdre les Elections") and indeed the polls show that only 12% of the French population want the CPE. Jacques Chirac has to show his diplomatic skills tonight."

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