Decision

Decision no. 2010-108 QPC of 25 March 2011

Ms Marie-Christine D. [Children's rights to survivor's pension]

On 30 December 2010 the Constitutional Council, in the conditions provided for by Article 61-1 of the Constitution, received an application for a priority preliminary ruling on the issue of constitutionality raised by the Conseil d'État (decision no. 343994 of 30 December 2010) on behalf of Ms Marie-Christine D., raising the conformity of Article L. 43 of the Civil and Military Retirement Pensions Code with the rights and freedoms guaranteed by the Constitution.

THE CONSTITUTIONAL COUNCIL,

Having regard to the Constitution;

Having regard to Ordinance no. 58-1067 of 7 November 1958 as amended, concerning the basic law on the Constitutional Council;

Having regard to the Civil and Military Retirement Pensions Code;

Having regard to the Regulation of 4 February 2010 as to the procedure applicable before the Constitutional Council with respect to applications for priority preliminary rulings on the issue of constitutionality;

Having regard to the observations of the Prime Minister, registered on 25 January 2011;

Having regard to the observations filed on behalf of the applicant by Esq. Jacques Morin, Attorney at the Lorient Bar, registered on 26 January 2011;

Having regard to the documents produced and appended to the case files;

Having heard Mr Xavier Pottier, appointed by the Prime Minister, at the public hearing on 8 March 2011;

Having heard the Rapporteur;

  1. Considering that, pursuant to Article L. 43 of the Civil and Military Retirement Pensions Code: "Where there is more than one successor from different families, the pension provided for under Article L. 38 shall be divided into equal parts between the families represented by the surviving or divorced spouse entitled to the pension or by one or more orphans aged less than twenty one years. Biological children shall be deemed to be equivalent to legitimate children; children with the same mother shall be deemed to constitute one single family. If any children have been born of the surviving or divorced spouse entitled to the pension, each of these shall have the right to ten percent of the pension under the conditions specified in the first paragraph of Article L. 40. In the event that there is more than one orphan aged under twenty one years from the same family who is not represented by a surviving or divorced spouse entitled to the pension, the second paragraph of Article L. 40 shall apply.
    "If a family is no longer represented, its share shall accrue to that of the other family or families";

  2. Considering that the applicant has objected that this provision violates the principle of equality;

  3. Considering that Article 6 of the Declaration of the Rights of Man and the Citizen of 1789 provides that: “The law…must be the same for all, whether it protects or punishes”; the principle of equality does not prevent the legislator settling different situations in different ways, or from derogating from equality in the general interest, provided that in both cases the resulting difference in treatment is directly related to the subject matter of the law providing for the different treatment;

  4. Considering that Article L. 38 of the Civil and Military Retirement Pensions Code provides that the spouse of a civil servant shall have the right to a survivor's pension equal to 50 % of the pension received by the civil servant or which he could have received at the time of his death; Article L. 40 provides that each orphan shall have the right to a pension equal to 10% up to the age of twenty one years; Article L. 43 establishes the rights to a survivor's pension where there is more than one successor from different families; in this case, it provides for the division of the pension provided for under Article L. 38 between the families into equal shares, irrespective of whether these are represented by the surviving or divorced spouse entitled to the pension or by one or more orphans aged under twenty one years; in the event that at least two families are comprised of one or more orphans, the division into equal shares between the families irrespective of the number of children who were born from them leads to a situation whereby the share of the pension due to each child is determined as a function of the number of children born into each family; the resulting difference in treatment between the children from different families is not justified by reference to the objective of the Law which seeks, in the event of the death of a civil servant, to compensate the loss of revenue suffered by each of his successors; therefore, Article L. 43 must be ruled unconstitutional;

  5. Considering that the second subparagraph of Article 62 of the Constitution provides: “A provision declared unconstitutional on the basis of Article 61-1 is repealed on publication of the decision of the Constitutional Council or at a later date stipulated in the decision. The Constitutional Council determines the conditions and the limits according to which the effects produced by the provision are subject to revision"; whilst, as a matter of principle, the declaration of unconstitutionality must benefit the party submitting the priority question on constitutionality and the provision ruled unconstitutional cannot be applied to proceedings in progress at the time the decision of the Constitutional Council is published, the provisions of Article 62 of the Constitution grant the Council the power both to set the date of repeal and to defer its effects as well as to provide for the review of the effects that the provision generates before this declaration takes effect;

  6. Considering that the repeal of Article L. 43 of the Civil and Military Retirement Pensions Code will, by remedying the unconstitutional situation held to subsist, have the effect of removing the rights granted to orphans under that Article; the Constitutional Council does not have a general power of discretion of the same nature as that of Parliament; accordingly, it is appropriate to defer the date of repeal of this Article until 1st January 2012 in order to permit the legislator to assess the action that it will be appropriate to take as a result of this declaration of unconstitutionality,

HELD:

Article 1.- Article L. 43 of the Civil and Military Retirement Pensions Code is unconstitutional.

Article 2.- The declaration of unconstitutionality of Article1 shall take effect on 1st January 2012 in the conditions set down by recital 6.

Article 3.- This decision shall be published in the Journal Officiel of the French Republic and notified in the conditions provided for under Article 23-11 of the Ordinance of 7 November 1958 referred to hereinabove.

Deliberated by the Constitutional Council in its session of 24 March 2011, sat on by: Mr Jean-Louis DEBRÉ, President, Mr Jacques BARROT, Mrs Claire BAZY MALAURIE, Mr. Guy CANIVET, Mr. Michel CHARASSE, Mr. Renaud DENOIX de SAINT MARC, Mrs Jacqueline de GUILLENCHMIDT, Mr. Hubert HAENEL and Mr. Pierre STEINMETZ.

Announced on 25 March 2011.

À voir aussi sur le site : Communiqué de presse, Commentaire, Dossier documentaire, Décision de renvoi CE, Références doctrinales, Vidéo de la séance.