Decision

Decision no. 2019-787 DC of 25 July 2019

Law for schools that build confidence

On 5 July 2019, the Constitutional Council, in the conditions provided for by the second section of Article 61 of the Constitution, received a referral to review the law for schools that build confidence, under no. 2019-787 DC, from Christian JACOB, Emmanuelle ANTHOINE, Thibault BAZIN, Valérie BAZIN-MALGRAS, Émilie BONNIVARD, Ian BOUCARD, Valérie BOYER, Xavier BRETON, Fabrice BRUN, Gilles CARREZ, Gérard CHERPION, Dino CINIERI, Éric CIOTTI, Pierre CORDIER, Josiane CORNELOUP, François CORNUT-GENTILLE, Rémi DELATTE, Fabien DI FILIPPO, Éric DIARD, Julien DIVE, Jean-Pierre DOOR, Pierre-Henri DUMONT, Daniel FASQUELLE, Nicolas FORISSIER, Laurent FURST, Annie GENEVARD, Claude GOASGUEN, Philippe GOSSELIN, Claire GUION-FIRMIN, Patrick HETZEL, Sébastien HUYGHE, Mansour KAMARDINE, Brigitte KUSTER, Valérie LACROUTE, Guillaume LARRIVÉ, Marc LE FUR, Constance LE GRIP, Sébastien LECLERC, Geneviève LEVY, Véronique LOUWAGIE, Emmanuel MAQUET, Olivier MARLEIX, Jean-Louis MASSON, Gérard MENUEL, Frédérique MEUNIER, Maxime MINOT, Jérôme NURY, Éric PAUGET, Bérengère POLETTI, Aurélien PRADIÉ, Alain RAMADIER, Robin REDA, Frédéric REISS, Bernard REYNES, Antoine SAVIGNAT, Jean-Marie SERMIER, Éric STRAUMANN, Jean-Charles TAUGOURDEAU, Jean-Louis THIÉRIOT, Laurence TRASTOUR-ISNART, Charles de la VERPILLIÈRE, Arnaud VIALA and Michel VIALAY, Members of Parliament.

Having regard to the following texts:

  • the Constitution;

  • Ordinance No. 58-1067 of 7 November 1958, constituting an institutional act on the Constitutional Council;

  • the Education Code;

Having regard to the observations of the Government, registered on 15 July 2019;

And after having heard the rapporteur;

THE CONSTITUTIONAL COUNCIL DECIDED THAT:

  1. The applicant Members of Parliament refer the law for schools that build confidence to the Constitutional Council, for which they oppose its Article 17.
  • Concerning Article 17:
  1. Article 17 of the referred law determines the conditions under which the State attributes the resources to municipalities made necessary by the lowering to three years, in place of six, of the age from which instruction is compulsory. This reduction, provided for in Article 11, will take effect on the start of the 2019 school year.

  2. The applicant Members of Parliament are critical of these provisions only benefiting municipalities that do not already finance preschools on a voluntary basis. Effectively, as this limits the financial support of the State to only covering the supplemental expenses created by the reduction of the age of compulsory instruction to three years, these provisions would create differential treatment between municipalities, which is contrary to equality before the law. For the same reasons, they would violate the freedom to teach and the principle of equal access to instruction.

  3. According to Article 6 of the Declaration of Human and Civic Rights of 1789, the law “must be the same for all, whether it protects or punishes.” The principle of equality does not preclude the legislator from regulating different situations differently, or from derogating from equality on grounds of general interest, provided that, in either case, the resulting difference in treatment is directly related to the purpose of the law establishing it.

  4. The disputed provisions provide for the State granting to each municipality, on a permanent basis, resources that correspond to the increase in comparison with the 2018-2019 school year, of compulsory expenses borne by the municipality as part of the financing of the schools and preschools for the 2019-2020 school year, within the limits of the portion of the increase directly resulting from the reduction to three years of age for compulsory instruction. These expenses are those which benefit public schools, as well as private educational establishments that are party to a partnership agreement with the State.

  5. It follows from the disputed provisions that there is a difference of treatment between municipalities, according to whether or not they finance preschool classes provided prior to the lowering of the compulsory education age to three years. The municipalities that do not finance any preschool classes will thus benefit from financial compensation from the State that corresponds to all of the expenses resulting from this lowering of the age limit. Procedures are different for municipalities that had financed such classes, whether within the public elementary school, or by creating a public preschool, or by agreeing to conclude an agreement that links a private preschool to the State. The latter municipalities only benefit from compensation up to the level of expenses created by the referred law, resulting from the increase in the number of students in the school system or the obligation to finance private schools for which the partnership agreement had not been approved by the municipality.

  6. However, on the one hand, the municipalities that, during the 2018-2019 school year, had instituted preschool classes or public preschools, or carried out partnership agreements with private preschools, thus contributed to their financing, under the conditions provided for by the Education Code. These municipalities are not, therefore, put in an identical situation to that of other municipalities that do not already carry out the same duties, and as such do not bear the corresponding expenses.

  7. On the other hand, the disputed difference of treatment is in direct relation with the purpose of the law that establishes it, which consists of, in application of the second sentence of section 4 of Article 72-2 of the Constitution, to provide financial resources when a competence is extended that results in increasing the expenses of regional and local authorities.

  8. Consequently, the objection based on the violation of the principle of equality before the law must be dismissed.

  9. Article 17, which also does not violate the freedom to teach and the principle of equal access to instruction, and also does not violate any other constitutional requirement, conforms to the Constitution.

  • Concerning the place of other provisions in the referred law:
  1. According to the last sentence of the first section of Article 45 of the Constitution: “Without prejudice to the application of Articles 40 and 41, all amendments which have a link, even an indirect one, with the text that was tabled or transmitted, shall be admissible on first reading.”

  2. Article 33 provides that families be informed of the “interest” and the “stakes” of the offers of instruction in regional languages and cultures.

  3. Article 53 concerns the right of school physicians to prescribe medication and the conditions under which nurses working for the French National Education system can administer medication to students.

  4. Introduced at first reading, the provisions of Articles 33 and 53 do not have a link, even indirectly, with those that are in the draft law tabled at the National Assembly. As they were adopted according to a procedure that is unconstitutional, they are therefore unconstitutional.

  • Concerning the other provisions:
  1. The Constitutional Council has not systematically raised any other question of constitutionality and has therefore not ruled on the constitutionality of provisions other than those examined in this decision.

THE CONSTITUTIONAL COUNCIL DECIDES:

Article 1. - Articles 33 and 53 of the law for schools that build confidence are unconstitutional.

Article 2. - Article 17 of the same law conforms to the Constitution.

Article 3. - This decision shall be published in the Journal officiel of the French Republic.

Ruled by the Constitutional Council in its 25 July 2019 session, with the following members present: Laurent FABIUS, President, Claire BAZY MALAURIE, Alain JUPPÉ, Dominique LOTTIN, Corinne LUQUIENS, Nicole MAESTRACCI, Jacques MÉZARD, François PILLET and Michel PINAULT.

Published on 25 July 2019.

À voir aussi sur le site : Communiqué de presse, Commentaire, Dossier documentaire, Texte adopté, Saisine par 60 députés, Observations du Gouvernement, Contributions extérieures, Dossier législatif AN, Dossier législatif Sénat.