On 13 October 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. 338828 of 13 October 2010) on behalf of Mr Claude G., raising the conformity of the first sentence of the fifth subparagraph of Article L. 28 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 organic 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 made on behalf of Mr Claude G. by Esq. Pierre Ricard, Attorney to the Conseil d'État and the Cour de Cassation, registered on 3 and 12 November 2010;
Having regard to the observations of the Prime Minister, registered on 4 November 2010;
Having regard to the documents produced and appended to the case files;
Having heard Esq. Ricard on behalf of the applicant and Mr Xavier Pottier, appointed by the Prime Minister, at the public hearing on 14 December 2010;
Having heard the Rapporteur:
Considering that, in application of the first subparagraph of Article L.28 of the aforementioned code, a civil servant no longer able to work because of a permanent incapacity to continue to carry out his role as a result of "disabilities resulting from wounds or illness contracted or aggravated" during service, is entitled to a life invalidity pension in addition to the service pension; and that in terms of the first sentence of the fifth subparagraph of Article L.
28: “The invalidity pension added to the retirement pension must not provide the beneficiary with total emoluments in excess of the basic emoluments set out in Article L.15”;
Considering that, according to the applicant, these provisions are encumbered with negative incompetence that impinges on the rights or freedoms guaranteed by the Constitution; that they could create an unconstitutional breach of equality, both among civil servants and between civil servants and other insured persons; that they infringe on the right of ownership guaranteed by Articles 2 and 17 of the Declaration of the Rights of Man and the Citizen of 1789;
Considering that Article 6 of the Declaration of the Rights of Man and the Citizen of 1789 provides: “Law […] must be the same for all, whether it protects or punishes”; that the principle of equality does not prevent the legislator from settling different situations in different ways , or from derogating from equality for the general interest , provided that in both cases the difference in treatment that results is either in direct relationship with the subject of the law established thereby; that it does not follow that the principle of equality makes it obligatory to give different treatment to people in different situations;
Considering, on the one hand, that by providing, in Article L.28 of the Code, the payment of a life invalidity pension to a civil servant who has been removed from service due to a permanent disability acquired during service, the legislator has sought to compensate for the attack on the physical integrity of the civil servant; that by placing an upper limit on the accumulation of a retirement pension and an invalidity pension at the level of the basic treatment set out in Article L.15, the legislator has sought to avoid paying beneficiary civil servants a life invalidity pension of the basic emoluments superior to those paid during the period of activity;
Considering, on the other hand, that by virtue of Article L.18 of the same code, an increase in pension is granted to a civil servant entitled to a pension who has raised at least 3 children, but without the amount of the increased pension exceeding the basic treatment of the civil servant set down in Article L.15; that thus the intention of the legislator was to take account, in calculating the pension, of the charges relating to a large family within the limits of the service salary of the civil servant;
Considering that the legislator, without failing to have regard to the principle of equality, was able to limit the accumulation of a retirement pension and life invalidity pension; that the legislator, without failing to have regard to this principle, could place an identical limit on the accumulation of a retirement pension and an increase in pension to include a family allowance; that on the other hand, the combined application of these two limits results in a difference in treatment with regard to the increase in pension to include a family allowance among retired disabled civil servants who have raised at least three children and retired civil servants who are not disabled and have raised at least three children; that the difference in treatment thus created is not justified by the object of the law; that, forthwith, and without need to examine the other grievances, the contested provision must be declared contrary to the principle of equality;
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 limits in which the effects of the provision are likely to be contested; so as to enable the legislator to remedy the contested unconstitutionality, the annulment of the aforementioned provisions shall become effective on 1 January 2012; that in order to preserve the usefulness of this decision for resolving current cases, it is incumbent on the one hand on jurisdictions to stay these proceedings until the entry into force of the new law, or at the latest until 1 January 2012 for cases whose outcome depends on the application of the provisions declared unconstitutional, and on the other, on the legislator to provide for the application of new provisions for such cases are open at the date of this decision;
Article 1: The first sentence of the fifth subparagraph of Article L.28 of the Civil and Military Retirement Pensions Code is contrary to the Constitution.
Article 2: The declaration of unconstitutionality of Article 1 shall take effect on 1 January 2012 in the conditions set down by recital 7 of this decision.
Article 3: This decision shall be published in the Official journal of the French Republic and notified in the conditions provided for in Section 23-11 of the Ordinance of 7 November 1958 referred to hereinabove.
Deliberated by the Constitutional Council in its session on 13 January 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 13 January 2011.
Journal Officiel, 14 January 2011, p. 811 (@ 121).