03 April 2006

Conseil Constitutionnel Decision on new Labour Contract CPE (Decision no. 2006-535)

Last Thursday's decision of the Conseil Constitutionnel on the beautifully named 'Law on the Equality of Chances', incorporating the unpopular CPE labour-contract, can be found here (in French). It was fascinating to see the deference with which the Conseil's decision was being anticipated last week. The Figaro Newspaper, for one, had an article entitled "Tous les regards se tournent vers les Sages". The term 'Les Sages', or 'the Wise Ones' is habitually used in references to the Conseil Constitutionnel, but my guess is it would be rare to see the House of Lords or the US Supreme Court talked about in this way. (But then again; in the US or the UK, members of Academies of Sciences are not referred to as 'immortals' either...).

The decision itself - upholding crucial passages of the Act relating to the CPE but finding certain other provisions contrary to the constitution - offers little discussion of the controversies surrounding the modernization of French labour law, and generally limits itself to a fairly abstract discussion of the conformity of the law with a set of broad constitutional principles. An attack based on the principle of equal treatment is defused with the standard formula that the differences in treatment that result from the the government's proposed actions stand in direct relation to the general interest pursued by the legislature and are therefore not contrary to the Constitution. With regard to the argument based on the right to work (par. 5 of the Preamble to the 1946 Constitution of the Fourth Republic), the Conseil importantly qualifies this right by describing the government's task as consisting of the elaboration of rules to assure "everyone the right to work, while at the same time allowing for the exercise of this right by the greatest number of people" (something that the CPE is found to do). Finally, with regard to arguments based on "the dignity of young persons" - allegedly violated because of the absence of procedural safeguards and a requirement for giving reasons upon dismissal - the Conseil finds that it will be up to judges to ascertain in individual cases that the reasons for dismissal were not discriminatory and did not infringe upon the protection of vulnerable groups such as pregnant women or injured workers.

Incidentally, for some truly interesting insights into the customs and discourse of the Conseil and French constitutional jurisprudence generally, have a look at the "Echanges de Voeux" - Exchange of Good Wishes on the occasion of the New Year - between the President of the Conseil and the President of the Republic (here for 2006).

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