In its decision no. 2021-832 DC of December 16, 2021, the Constitutional Council ruled on the conformity with the Constitution of the social security financing act for 2022 (LFSS 2022) which had been referred to it by more than sixty senators.

While it dismisses the complaints raised by the senators, which were essentially that the law made new financial transfers to the Social Debt Redemption Fund (CADES), in violation of the provisions of the organic law relating to these transfers of debt, the Constitutional Council’s decision will be of particular interest in that it automatically censures no less than 27 of the articles of the law passed, considered to be “social riders”, i.e., legislative provisions unrelated to the purpose of the LFSS. The provisions thus censured and which will therefore not appear in the body of the enacted law concerned, for a large part, various health professions, as well as home service providers.

In accordance with its constant practice in this matter, the Council recalls that censures pronounced under the conditions just indicated do not prejudge the conformity of the provisions in question with other components of the “bloc de constitutionnalité”. It is therefore open to the legislator, if he or she deems it useful, to include all or part of the censured provisions in one or more legislative vehicles other than an LFSS.

Beyond its technicality, the decision of the Constitutional Council is interesting in that it reveals institutional dysfunctions that have been denounced many times, in particular by the PLFSS Club. Indeed, the censures pronounced, on the one hand, put the spotlight on the working conditions imposed on parliamentarians by the executive. The constrained schedule imposed does not allow for the serene deliberation of a text as dense and as important as a LFSS. On the other hand, the purpose of the invalidated provisions is indicative of the need for legislative vehicles capable of materializing a national public health policy, which is currently seriously lacking, hence the parliamentary attempts to insert into the LFSS provisions that are in fact part of a public health law.

In conclusion, it should be noted that, although alerted by the PLFSS Club (see our Club news of December 3), the Council did not pronounce on either Article 26 of the law (extension of the scope of certain taxes) or on Article 28 I (increase in the rate of the turnover tax). If these provisions will therefore be included in the enacted law and will come into force with it, this does not prejudge their conformity with the Constitution. It will be up to the industrialists and their counsels, if they deem it useful, to refer a priority question of constitutionality (QPC) to the Court of Cassation.  

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