Decision

Decision no. 2019-790 DC of 1 August 2019

Law on transformation of civil service (Extracts)

On 24 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 on transformation of civil service, under no. 2019-790 DC, from Valérie RABAULT, Jean-Luc MÉLENCHON, André CHASSAIGNE, Joël AVIRAGNET, Ericka BAREIGTS, Marie-Noëlle BATTISTEL, Gisèle BIÉMOURET, Christophe BOUILLON, Jean-Louis BRICOUT, Luc CARVOUNAS, Alain DAVID, Laurence DUMONT, Olivier FAURE, Guillaume GAROT, David HABIB, Christian HUTIN, Régis JUANICO, Marietta KARAMANLI, Jérôme LAMBERT, Serge LETCHIMY, Josette MANIN, George PAU-LANGEVIN, Christine PIRES BEAUNE, Dominique POTIER, Joaquim PUEYO, Hervé SAULIGNAC, Sylvie TOLMONT, Cécile UNTERMAIER, Hélène VAINQUEUR-CHRISTOPHE, Boris VALLAUD, Michèle VICTORY, Clémentine AUTAIN, Ugo BERNALICIS, Éric COQUEREL, Alexis CORBIÈRE, Caroline FIAT, Bastien LACHAUD, Michel LARIVE, Danièle OBONO, Mathilde PANOT, Loïc PRUD'HOMME, Adrien QUATENNENS, Jean-Hugues RATENON, Muriel RESSIGUIER, Sabine RUBIN, François RUFFIN, Bénédicte TAURINE, Alain BRUNEEL, Marie-George BUFFET, Pierre DHARRÉVILLE, Jean-Paul DUFRÈGNE, Elsa FAUCILLON, Sébastien JUMEL, Jean-Paul LECOQ, Stéphane PEU, Fabien ROUSSEL, Hubert WULFRANC, Manuéla KÉCLARD-MONDÉSIR, Huguette BELLO, Moetaï BROTHERSON, Jean-Philippe NILOR and Gabriel SERVILLE, 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 Social Action and Family Code;

  • the Education Code;

  • the Public Health Code;

  • the Labour Code;

  • Act No. 83-634 of 13 July 1983 on the rights and obligations of civil servants;

  • Act No. 84-16 of 11 January 1984 on statutory provisions relating to the civil service of the State;

  • Act No. 84-53 of 26 January 1984 on statutory provisions relating to regional and local civil service;

  • Act No. 86-33 of 9 January 1986 on statutory provisions relating to hospital civil service;

Having regard to the observations of the Government, registered on 29 July 2019;

And after having heard the rapporteur;

THE CONSTITUTIONAL COUNCIL DECIDED THAT:

  1. The applicant Members of Parliament refer the law of transformation of civil service to the Constitutional Council. They challenge the constitutionality of certain provisions of Articles 1, 4, 10, 16, 18, 21, 25, 30, 33, and 76 of the law, and its Articles 19 and 56.

(…)

  • On certain provisions of Articles 16, 18, and 21, and on Article 19:
  1. Article 16 broadens the cases in which, exceptionally, contract agents can be recruited to hold management positions in the civil services of the State, regional and local authorities, and hospitals. Articles 18 and 21 pursue the same objective for other permanent employment in State administration and regional and local civil service. Article 19 also allows public health and medical-social establishments to recruit contract agents to manage a temporary or seasonal increase in activity.

  2. The applicant Members of Parliament note that these articles, in that they have the effect of greatly expanding the possibilities of using contract agents, violate the principle by which permanent employment in civil service must be held by civil servants, whose employment is governed by law. This extension would also result in an infringement of the principles of equality and continuity of civil service when contract agents would not have the same guarantees as civil servants, and would not be subject to the same obligations.

  3. These articles also violate the principle of equal access to public employment when only recruitment through competitive examinations would allow for guaranteeing a choice based on ability. The applicants esteem that the legislator should have at least expressly restated that the requirements stemming from the principle of equal access to public employment apply when a contractual recruitment is carried out.

  4. Furthermore, by allowing governmental functions to be carried out by contract agents, the legislator would have violated a fundamental principle of the laws of the Republic, which the applicants ask the Constitutional Council to recognise, according to which such functions must be carried out by public agents that benefit from the status of civil servant.

  5. Lastly, these articles would be judged as not acting fully within the competence of jurisdiction (incompétence négative), in that they would determine the posts open to contract agents with insufficient precision. In particular, Article 16 would incur this objection, in that it defers to the regulatory power the establishment of the list of management posts for the State that can be attributed to non-civil servants, as well as the list of local public establishments whose characteristics and size justify opening a path to direct recruiting for the post of managing director. This is also the case for Article 18, in that it allows for the use of contractual employment when “the type of functions or the needs of services justify it” and “when the employment does not require statutory training that confers a title in a civil service entity”, these conditions being insufficiently exact. This applies as well to the notions of “temporary increase” and “seasonal increase” of activity mentioned in Article 19.

. Concerning the objection due to the violation of Article 34 of the Constitution:

  1. It is the legislator's responsibility, competent by virtue of Article 34 of the Constitution to determine the fundamental guarantees granted to civil servants and military personnel of the State, and to determine the fundamental principles of the free administration of regional and local authorities, to enact the general conditions for access to public employment.

  2. As provided for in Article 3 of the Act of 13 July 1983, and Article 41 of the Act of 26 January 1984, permanent civil service employment for the State, the regional and local authorities, and their public establishments of administrative character, is held by civil servants.

  3. Articles 16, 18, 19, and 21 provide for various exceptions to this principle.

  4. In application of 1° bis of Article 3 of the Act of 11 January 1984, 1°, 2° and 3° of Article 47 of the Act of 26 January 1984, of the first section of 1° and 2° of Article 3 of the Act of 9 January 1986, as amended by Article 16 of the referred law, those persons that do not have the title of civil servant can be nominated for employment in management for the State for public establishments whose characteristics and size justify it, for certain regional and local authorities and certain inter-municipal cooperative public establishments, and public service hospital establishments. It is also therefore the case, in application of 2° of Article 3 of the Act of 11 January 1984, as amended by Article 18 of the referred law, for certain employees of public establishments of the State.

  5. Likewise, in application of 2° and 3° of Article 4 of the Act of 11 January 1984, as amended by Article 18 of the referred law, persons that do not have the title of civil servant can be recruited when the functions or needs of the services justify it, notably when it concerns functions that require specialised or new technical skills, or when the recruiting authority is not able to fill the position with a civil servant that has the expertise or professional experience required for the assignments to be carried out, or even still, when the employment does not require statutory training that confers a title in a civil service entity.

  6. Furthermore, in application of paragraph III of Article 9-1 of the Act of 9 January 1986, as amended by Article 19 of the referred law, the public health and medical-social establishments may recruit contract agents to manage a temporary or seasonal increase in activity.

  7. Lastly, in application of 2°, 3°, 3° bis, and 4° of Article 3-3 of the Act of 26 January 1984, as amended by Article 21 of the referred law, permanent employment positions in regional and local civil service may be occupied by contract agents when the needs of services or the types of functions justify it, applicable to all employment positions in this civil service in municipalities or groups of municipalities with a population below a certain limit and, in other regional and local authorities, and under certain conditions, to all non-full-time employees.

  8. It follows from the foregoing that the legislator has precisely defined the categories of public employment that can, by exception to the principle set by the aforementioned laws according to which positions in public employment are occupied by civil servants, be occupied by contract agents governed by public law, as well as the conditions under which the recruitment of such agents is authorised for other public employment positions. In this regard, they can, without violating the scope of their competence, refer the determination of State employment positions to the regulatory power, for those in management positions, open to recruitment by contractual means, as well as the list of public establishments whose characteristics and size justify that their managing director be a contract agent. In the same way, the legislator can provide for the use of contract agents for public employment positions “when the type of functions or the needs of services justify it” and “for public employment positions for which a statutory training is not necessary”. These notions, like those of “temporary increase” and “seasonal increase” of activity are sufficiently precise in regards to the requirements imposed on the legislator by Article 34 of the Constitution.

  9. The objection due to the violation by the legislator of the scope of their competence must therefore be dismissed.

. Concerning the objection due to the violation of the principle of equality in the access to public employment:

  1. By virtue of Article 6 of the Declaration of Human and Civic Rights of 1789, all citizens “shall be equally eligible to all high offices, public positions and employments, according to their ability, and without other distinction than that of their virtues and talents.”

  2. Firstly, the principle of equal access to public employment does not prohibit the legislator from providing that persons who do not have the title of civil servant be nominated for employment positions that are in principle occupied by civil servants.

  3. Secondly, on the one hand, it follows, from Article 15 of the referred law, from 1° bis of Article 3 of the Act of 11 January 1984, from section 5 of Article 47 of the Act of 26 January 1984, from the last section of Article 3 of the Act of 9 January 1986 as amended by Article 16, that, with the exception of senior positions decided by the Government, for those of managing director of services for a regional or local authority previously mentioned in 1° and 2° of Article 47, and for those managing hospital civil services, the recruitment of contract agents for filling permanent positions must comply with a procedure that guarantees equal access to public employment. Thus, the competent authority publishes the vacancy and creates these employment positions.

  4. On the other hand, as provided for in paragraph I of Article 32 of the Act of 13 July 1983, the competent authorities, subject to judicial review, will base their decision to nominate on the capacities of the persons concerned to complete their missions, including for positions for which the procedure mentioned in the previous paragraph does not apply.

  5. Furthermore, in application of Article 34 of the referred law, the recruiting of a contract agent who has an employment position, the hierarchical position of which or the nature of functions of which justify it, are subject to an ethics review, which leads to, if applicable, an opinion from the High Authority for transparency in public life.

  6. Consequently, the disputed provisions do not violate the principle of equal access to public employment.

. Regarding the other objections:

  1. Firstly, as provided for in Article 32 of the Act of 13 July 1983, excluding legislative or regulatory provisions to the contrary, Chapters II and IV of this law are applicable to contract agents, respectively related to guarantees for civil servants, and to their obligations and their ethical conduct. Moreover, any contract agent under public law is subject to the obligations that issue from the principles of equality and continuity that are inherent to civil service. The objection to the violation of these principles must therefore be dismissed.

  2. Secondly, there is no constitutional requirement that all employee positions participating in “governmental functions” be occupied by civil servants.

  3. It follows from the foregoing that 1° bis and 2° of Article 3, and 2° and 3° of Article 4 of the Act of 11 January 1984, 3°, 3° bis, and 4° of Article 3-3, and 1°, 2°, and 3° of Article 47 of the Act of 26 January 1984 and section 1 of 1°, and 2° of Article 3, and paragraph III of Article 9-1 of the Act of 9 January 1986, as well as section a of 1° of paragraph I of Article 21, which do not violate any other constitutional requirement, conform to the Constitution.

(…)

  • Concerning Article 56:
  1. Article 56 introduces an Article 7-2 into the Act of 26 January 1984, in order to provide a framework for the exercise of the right to strike in certain local public services.

  2. Paragraph I of this Article 7-2 provides that, in regional and local authorities and their public establishments, the regional and local authority and the union organisations that have at least one seat on the bodies within which civil servants participate, can bring about negotiations leading to the signature of an agreement aiming to ensure the continuity of certain public services. This agreement, which must be approved by the deliberating body of the regional or local authority or the establishment, determines the functions and the number of agents that are essential, as well as the conditions adapting work organisation and assignment of agents present within the service, in case of a foreseeable disturbance of the latter. If no agreement is reached within a period of 12 months, a decision of the deliberating body determines the services, functions, and the number of agents that are essential in order to guarantee the continuity of the public service.

  3. Paragraph II in particular provides that, in the case of a notice of strike being given according to the conditions provided for in Article L. 2512-2 of the Labour Code, the agents of the services mentioned in paragraph I inform the regional or local authority of their intention to participate in the strike, at the latest forty-eight hours prior to said participation.

  4. Paragraph III provides that the regional or local authority, when the exercise of the right to strike during service may present a risk of clear disorder in the operation of the service, can force agents that have declared their intention to participate in the strike to exercise their right as soon as they go on duty and up to the end of said service.

  5. Paragraph IV provides that the agents that have not respected the aforementioned obligations are subject to disciplinary action.

  6. According to the applicant Members of Parliament, these provisions are contrary to the seventh section of the Preamble of the Constitution of 1946. Effectively, they would lead to the conditions of exercise of the right to strike in local public services varying from one regional or local authority to another, depending on the agreements reached with labour unions or the decisions of each regional or local authority. They also would put excessive restrictions on the right to strike, on the one hand, requiring public agents, subject to disciplinary action, to declare their intention to participate in a strike in advance and, on the other hand, by allowing the regional or local authority to force these agents to exercise this right as soon as they go on duty and up to the end of service. Lastly, they do not determine the public services and agents likely to be subject to these new obligations with sufficient precision. For the same reason, these provisions would be judged as not acting fully within the competence of jurisdiction (incompétence négative), which would allow each regional or local authority to regulate, at their discretion, the exercise of the right to strike.

  7. According to the seventh section of the Preamble of the Constitution of 1946: “The right to strike shall be exercised within the framework of the laws governing it.” By enacting this provision, the constituent powers intended to show that the right to strike is a principle of constitutional value, but it has limits, and they gave the legislator the power to define those limits by carrying out the necessary reconciliation between the defence of professional interests (of which striking is one) and preserving the general interest, which could be affected by a strike due to its nature. Concerning public services, recognition of the right to strike would not have the effect of creating an obstacle to the power of the legislator to set necessary limits on this right in order to ensure continuity of public service that, like the right to strike, has the character of a principle of constitutional value.

  8. Firstly, the legislator stipulated that the new provision for a framework for the right to strike applies to public services that are charged with collecting household waste, the public transport of persons, helping aged and disabled persons, caring for children of less than three years of age, providing after school care, and providing municipal and school dining services. It was also specified that this provision is only applicable to when public services are interrupted, due to public agents that participate directly in their execution going on strike, violating the respect of public order, particularly concerning public cleanliness, or the essential needs of the users of these services. By retaining these conditions, the terms of which are not unclear, the legislator provided sufficient definition of the limits of the types of public services subject to the disputed provisions.

  9. Furthermore, by referring the determination of the functions and the number of agents that are essential, as well as the conditions adapting work organisation and assignment of agents present within the service, the legislator provided an adequate framework for the content of the authorisation thus granted to the labour unions and the regional or local authority or the establishment.

  10. Lastly, by providing, should an agreement not be reached, that the deliberating body of the regional or local authority or the establishment can determine the services, the functions, and the number of essential agents, in order to guarantee the continuity of public service, the legislator has not violated the scope of their competence.

  11. It follows from the foregoing that the objection to the violation by the legislator of the scope of their competence (incompétence négative) must therefore be dismissed.

  12. Secondly, the requirement of prior declaration of intention to participate in a strike, which cannot be extended to all agents, is only applicable to agents who participate directly in carrying out those public services mentioned above, and who qualify as “essential” to the continuity of public service in the agreement or the deliberation of the regional or local authority or the establishment. Moreover, such an obligation does not prohibit one of these agents from participating in a strike already in progress, and in which they had not initially intended to participate, or in which they had ceased to participate, provided that they inform the regional or local authority at least forty-eight hours in advance.

  13. Thirdly, by allowing the regional or local authority to impose on the relevant agents that they exercise their right to strike as soon as their service begins, and that they do so until the end of that service, the legislator means to prevent risks of clear disorder in the carrying out of public service caused by interruption during, or returning to work during the service period. This restriction provided to the conditions of exercising the right to strike also tends to avoid the repeated use of short-duration strikes that would threaten the continuity of public service. Moreover, it does not require the agent who wishes to stop working to do so as soon as their first start of duty following the start of the strike

  14. Lastly, the disputed disciplinary measures are only intended to punish not observing the requirements for prior declaration and the exercise of the right to strike as soon as duty starts, the violation of which does not make the exercise of the right to strike an unlawful act.

  15. It follows from the foregoing that the arrangements thus made to the conditions of the exercise of the right to strike are not out of proportion with the legislator's pursued objective The objection to the violation of the seventh section of the Preamble of the Constitution of 1946 must therefore be dismissed.

  16. Consequently, Article 7-2 of the Act of 26 January 1984, which does not violate any other constitutional requirements, conforms to the Constitution.

(…)

THE CONSTITUTIONAL COUNCIL DECIDES:

Article 1. - The following provisions conform to the Constitution:

  • the words “and on the examination of the individual decisions, the list of which is established by decree in the Conseil d'État”, in Article 9 of Act No. 83-634 of 13 July 1983 on rights and obligations of civil servants, in its formulation resulting from Article 1 of the law on transformation of civil service;
  • section 1 of paragraph III of Article 15 of Act No. 84-16 of 11 January 1984 on statutory provisions relating to State civil service, section 1 of paragraph I of Article 32-1 of Act No. 84-53 of 26 January 1984 on statutory provisions relating to regional and local civil service, section 1 of paragraph III of Article L. 6144-3 of the Public Health Code, section 1 of paragraph III of Article L. 6144-3-1 of the same code and section 1 of paragraph III of Article L. 315-13 of the Social Action and Family Code, in their formulation resulting from Article 4 of the referred law; - section 5 of Article 14 of the same Act of 11 January 1984, section 1 of Article 30 of the same Act of 26 January 1984, and paragraph I of Article 21 of Act No. 86-33 of 9 January 1986 on statutory provisions relating to hospital civil service, in their formulation resulting from Article 10 of the referred law;
  • section a of 3° of paragraph III, sections a and b of 1°, 2°, and 4° of paragraph IV, and section b of 6° of paragraph V of Article 10 of the referred law;
  • 1° bis and 2° of Article 3, and 2° and 3° of Article 4 of the same Act of 11 January 1984, in their formulation resulting from Articles 16 and 18 of the referred law;
  • section 1 of 1° and 2° of Article 3, and paragraph III of Article 9-1 of the same Act of 9 January 1986, in their formulation resulting from Articles 16 and 19 of the referred law;
  • 3°, 3° bis and 4° of Article 3-3, and 1°, 2°, and 3° of Article 47 of the same Act of 26 January 1984, in their formulation resulting from Articles 16 and 21 of the referred law;
  • section a of 1° of paragraph I of Article 21 of the referred law;
  • section a of 2° and section 2 of section c of 3° of paragraph I, section d of the same 3°, section a of 2°, 3°, and section 2 of section a of 4° of paragraph II, section b of this same 4°, and section a of 2° and sections a and c of 3° of paragraph III of Article 30 of the referred law;
  • section 1 of Article L. 232-3 of the Education Code, and the words “Excluding its president” in section 2 of the same article, in its formulation resulting from Article 33 of the referred law;
  • Article 7-2 of the same Act of 26 January 1984, in its formulation resulting from Article 56 of the referred law;
  • paragraphs I and III of Article 15 of the same Act of 13 July 1983, in its formulation resulting from Article 76 of the referred law.

Article 2. - This decision shall be published in the Journal officiel of the French Republic.

Ruled by the Constitutional Council in its 31 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 1 August 2019.

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