(Dec. 18, 2008) On December 11, 2008, France's Constitutional Council ruled on the constitutionality of several provisions of the 2009 Law on the Financing of Social Security. Determination of the constitutionality of laws in France takes place before their promulgation. The Law had been referred to the Council by socialist members of Parliament. The most controversial provision in the Law authorizes workers, if they wish to do so, to push back their retirement to age 70 instead of retiring at 65, the current mandatory retirement age.
The provision requires employers to ask workers that reach age 65, in writing, whether they intend to voluntarily leave the company and receive their pensions. If a worker says no, he or she may remain at work another year. This procedure is repeated each year until the worker reaches 70.
The socialist members argued that this provision violates the guarantees relating to the right to health and rest provided by the Preamble of the 1946 Constitution, which is included in the present Constitution and, in addition, violates the principle of equality before the law. The Council found that the provision does not require workers to work until 70, but simply gives them an option to do so, and therefore it does not violate the guarantees listed above. As for the principle of equality, the Council ruled that
the principle of equality is not opposed to either the legislator differently regulating different situations or derogating from equality for purposes of the general interest, as long as, in both cases, the difference in treatment that results is directly related to the object of the law that establishes it; in the case at hand, the contested provision does not create any difference in treatment and does not breach the principle of equality.
(Conseil Constitutionnel, Decision No. 2008-571DC, Dec. 11, 2008, website of the Constitutional Council, available at http://www.conseil-constitutionnel.fr/conseil-constitutionnel/root/bank/print/33777.htm.)