France’s Constitutional Council Has Rubber-Stamped Macron’s Pension Reform

On Friday, France’s Constitutional Council upheld Emmanuel Macron’s deeply unpopular pension reform. The move shows the bankruptcy of a constitution that puts only minimal checks on the president’s power.

Protestors demonstrate against the decision by the French Constitutional Council to approve President Emmanuel Macron's contentious pension reform law outside Hotel de Ville on April 14, 2023 in Paris, France. (Kiran Ridley / Getty Images)

On Friday, France’s Constitutional Council decided to uphold the core of President Emmanuel Macron’s unpopular pension reform — giving the green light to a law that will raise the country’s retirement age from sixty-two to sixty-four. This was the most likely outcome from the April 14 ruling, with the arbiters of France’s fundamental law sticking to their conservative instincts to safeguard the government’s package. In a parallel decision, it rejected a demand for a referendum on the reform, although a separate request for a nationwide vote was submitted on Thursday and will be judged in the coming weeks.

Having pocketed this victory, Macron’s hope is that the council’s decision will tie the knot on his controversial reform by providing it with a desperately needed dose of institutional legitimacy. As Macron claimed last month, the ruling would cap off the law’s “democratic pathway,” an egregious euphemism for his government’s muscling of a reform package rejected by a clear majority of the French public, an alliance of the country’s unions, and opposition parties of the Left and Right.

Macron’s pension reform has become the law of the land without ever having faced a direct vote from elected representatives in the National Assembly, where the president’s coalition is short of an absolute majority. Besides failed no-confidence votes in the lower house on March 20, the closest thing that Macron’s government has to approval from legislators was a shotgun vote forced on the Senate earlier last month. This major overhaul of the country’s pension system was adopted in a fifty-day blitzkrieg thanks to the use of a special legislative track designed for budgeting bills.

Macron’s unscrupulous deployment of the full arsenal of executive prerogative has opposition parties claiming that he ran afoul of parliament, as French people pore over the more obscure elements of a constitution designed to favor the presidency. But according to the Constitutional Council, the rolling out of these tactics — on something as important to the country’s social compact as the retirement age — was still within the bounds of constitutional stipulations on respecting parliamentary deliberation.

The council ruled that while there was an “unusual character” to the powers deployed by Macron’s government, this ultimately “did not have the effect of rendering the legislative process contrary to the Constitution.”

Completed Democratic Process?

“The text has arrived at the end of its democratic process,” Prime Minister Élisabeth Borne tweeted shortly after the council’s decision. “Tonight, there are no victors or vanquished.”

For the opponents of the legislation, however, this ruling does little to paper over what they claim to be the law’s gaping democratic illegitimacy. “Tonight’s decision is going to reignite the movement in opposition to this reform,” newly elected CGT union leader Sophie Binet told reporters in front of Paris’s city hall, where thousands gathered Friday evening to protest the decision. Macron, meanwhile, has said that he now hopes to resume a shattered dialogue with worker representatives, but union leaders are not asking members to call off strikes and have refused to speak with the president before May 1 demonstrations. Early Saturday morning, Macron signed the legislation into law. It is set to enter into effect on September 1.

“I hope that in the coming days we’ll keep seeing a permanent popular agitation,’” Danièle Obono, a France Insoumise MP from Paris, told Jacobin. “We’re not going to turn the page until this reform has been pulled. They’ve won a pyrrhic victory. They’re going to pay for this for the rest of the term.”

Macron’s decision to steamroll parliamentary and public opposition was reckless in its own right, and risks worsening a certain democratic malaise. This is something that Marine Le Pen’s Rassemblement National hopes to exploit in the years ahead, however much the political limelight has been stolen from it in recent months by striking workers and street protests. What currency will warnings about the threat that Le Pen poses to French institutions still have, after a supposedly moderate president has so brazenly warped them to suit himself?

The deeper problem, as the council’s decision perhaps indicates, is that Macron had a pathway that made his coup de force possible — and he took it. “If we strictly look at the law, it’s not very easy to justify the claim that the process has been unconstitutional,” says Bastien François, a political scientist and constitutional scholar at the Sorbonne. “Politically, it’s more than clear that this was a dangerous move. Juridically speaking, it’s more complicated.”

“There were still a number of possible juridical motives to censure this law,” France Insoumise European MP Manon Aubry maintains. “The sincerity of parliamentary debate was not respected. . . . there was a series of technically constitutional powers used in an abusive way to pass a retirement reform through a track meant for social security budgeting.”

But even if we accept that the body of jurisprudence that could have been drawn on to censure the government’s handling of the retirement reform is weak, this is itself partly a symptom of the Constitutional Council’s restrictive interpretation of the constitution. In her timely 2023 work La Constitution maltraitée: Anatomie du Conseil constitutionnel, constitutional scholar Lauréline Fontaine calls this the “social disillusionment of the Constitutional Council” — with the guardians of the constitution disregarding the stipulations on the “social” nature of the Republic that Charles de Gaulle reluctantly admitted into the text when it was adopted in 1958. The “constitutional council has set aside the social provisions of the French constitution,” Fontaine told Jacobin.

Rubber Stamp

Friday’s decision is another reminder of the lack of real institutional checks on the executive in France’s Fifth Republic. While the Constitutional Council is officially charged with checking the constitutionality of laws, the body more often serves to validate the wishes of the government in power.

The council’s treatment of Macron’s retirement reform provides a textbook case of the body’s minimal understanding of constitutional oversight. Leaving the centerpiece of the package intact (the hike in the retirement age), the council rejected as unconstitutional two small items included in the legislation in response to critiques about the problem of late-career unemployment. These were the so-called senior index, which would have had certain employers reporting statistics about the amount of elderly employers on staff; and then the creation of special contracts with payroll tax exonerations designed to encourage companies to hire workers nearing the end of their career.

In fact, many speculate that the government included these measures precisely to give the Constitutional Council something to censure. Macronite ministers even publicly lamented that measures like the exonerations — included as a bid to curry favor with the center-right parts of the opposition — would undermine the broader mission of a law designed to make budget savings.

The council’s “wise ones of Rue de Montpensier,” as they are called in French political jargon, bring together nine figures nominated sequentially by the president of the Republic and the presidents of the National Assembly and Senate. Six of its current members have joined the bench since Macron took office, which means that they were selected either by the president himself, his party’s leader in the National Assembly, or the chief of the loyal, center-right opposition Senate.

Two of its members have been ministers under Macron, with Jacqueline Gourault leaving cabinet in March 2022 to join the council. Alain Juppé, former leader of a key faction of the center right who has joined the president’s coalition since 2017, was prime minister during a failed 1995 bid to reform the retirement system — a plan ultimately withdrawn in the face of popular pressure. Although the council’s current chief, Laurent Fabius, is said to be at personal loggerheads with Macron, he sat alongside Macron for two years of cabinet meetings during the presidency of François Hollande, when he and Macron were foreign affairs minister and economy minister, respectively.

“That makes two former prime ministers, two former ministers, two former MPs, and three others intimately connected with holding governing power,” says Fontaine. “It’s well known that you nominate people to the Constitutional Council who will ensure that the body acts as it has for decades, changing little to laws while from time to time handing down a symbolic rebuke of marginal measures.”

Beyond the ideological, professional, and personal proximity to Macron, the culture of the Constitutional Council such as it has developed means that this is a group extremely sensitive to and familiar with the wishes of a sitting government. “The council has been conceived as the mirror of the actors that surround it so as not to interrupt what they want to do,” says Fontaine. “[It] functions more as an annex to the government rather than as a real counterbalancing power grounded in the popular will.”

It could be objected that a constitutional court should not be porous to the vagaries of public opinion. But there are moments when the need to preserve a society’s governing institutions demands sensitivity to the wishes of that society. The president and his gaggle were confronted with this choice, too — and decided to pit technical authority against substantive democratic legitimacy.

Ultimately, there was no way that Friday’s decision would not be political. “[This decision] agitates a growing political crisis in this country,” says Aubry. “Having everything fall on these nine people can’t be a decent way to seal the country’s future. It’s not credible.”

Macron is running riot — helped by out-of-touch institutions that are leaving a weary society with few ways to hold his power in check.