By decision no. 2022-1006 QPC of July 29, 2022, Municipality of Bonnoeuil-sur-Marne and othersthe Constitutional Council unsurprisingly deemed it constitutional the obligation for all local authorities to fix the working time of their public officials at 1607 hours, and in so doing put an end to the existing derogatory regimes.
At the time of the 35-hour reform, the legislator had provided for the possibility for local authorities to maintain the working time systems they had put in place before the entry into force of Law No. 2001-2 of the January 3, 2001. This is how certain territorial agents were able to continue to benefit from a working time regime of less than 35 hours per week.
However, Law No. 2019-828 of August 6, 2019 on the transformation of the public service reversed this derogation. Its article 47 in fact imposes on the local authorities which have made use of it to fix, by a deliberation taken within one year from the renewal of their deliberative assemblies, the rules relating to the working time of their agents within the limits applicable to those of the State (see our brief: https://blog.landot-avocats.net/2019/09/16/20190916-transformation-de-la-fonction-publique-vers-la-suppression-a- horizon-2021-derogatory-regimes-to-the-legal-duration-of-working-time-set-up-before-2001/).
Refusing to comply with this obligation and therefore to switch to 1607 annual hours, the municipalities of Bonneuil-sur-Marne, Fontenay-sous-Bois, Vitry-sur-Seine and Ivry-sur-Seine and Villejuif challenged the constitutionality of article 47 of the law of August 6, 2019 (see our brief https://blog.landot-avocats.net/2022/03/04/1607-heures-nouvelles-injunctions-contre-des-communes-recalcitrantes- and-priority-question-of-constitutionality-against-the-legislative-device/).
More specifically, these municipalities criticized the provisions of Article 47 of the law on the transformation of the public service for obliging the local authorities, which had been authorized to maintain derogatory working time regimes, to henceforth define the rules relating to the working time of their agents within the limits applicable to State agents. According to them, since they are not justified by an objective of general interest, these provisions violate the principle of free administration of local authorities.
The Constitutional Council, as might be expected given its case law, rejected this argument.
He recalls first of all that If the legislator may, on the basis of Articles 34 and 72 of the Constitution, subject local authorities or their groupings to obligations and charges, it is on the condition that these meet constitutional requirements or contribute to purposes of general interest, that they do not disregard the specific competence of the communities concerned, that they do not hinder their free administration and that they are defined with sufficient precision as to their purpose and their scope. »
However, by adopting the contested provisions, “ the legislator intended to contribute to the harmonization of the duration of working time within the territorial public service as well as with the State public service in order to reduce inequalities between agents and facilitate their mobility. In doing so, he pursued an objective of general interest. »
Moreover, continues the Constitutional Council, “ on the one hand, the disputed provisions are limited, in terms of employment, organization of work and management of their personnel, to framing the competence of local authorities to set the rules relating to the working time of their agents. On the other hand, the local authorities which had maintained derogatory regimes remain free, like the other authorities, to define specific work regimes to take into account the constraints linked to the nature of the missions of their agents. »
This decision can be consulted from the following link:
https://www.conseil-constitutionnel.fr/decision/2022/20221006QPC.htm
