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Decision n° 2013-156 PDR of 4th July 2013

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Decision of the Constitutional Council following an appeal from Mr Nicolas Sarkozy against the decision of 19 December 2012 of the National Commission for Campaigns Accounts and Political Financing

THE CONSTITUTIONAL COUNCIL,

Having regard to the request of Mr Nicolas Sarkozy, living in Paris, registered on 10 January 2013 at the General Secretariat of the Constitutional Council and the purpose of which was to cancel the decision of the national commission for campaigns accounts and political financing of 19 December 2012 which rejected his campaign accounts, ordered the refund of the flat-rate advance of 153,000 Euros and the payment of 363,615 Euros to Public Revenue;

Having regard to the contested decision;

Having regard to the statement of the case for the defense, registered as above on 21 February, 9 and 30 April, 29 May, 4 and 11 June 2013, presented by the National Commission for Campaign Accounts and Political Financing;

Having regard to the reply presented on behalf of Mr Nicolas Sarkozy by Philippe Blanchetier Esq., lawyer at the Paris bar registered as above on 20 March, 19 April, 24 May, 4, 27 and 28 June 2013;

Having regard to the request for intervention presented by Mr Raymond Avrillier, registered as above on 2 January 2013;

Having regard to the request for intervention presented by Mr René Hoffer, registered as above on 24 January 2013;

Having regard to the letter of Mr Christian Frémont, former director of the office of the President of the Republic, in response to an investigative measure from the Constitutional Council, registered on 13 May 2013;

Having regard to the letter of Ms Sylvie Hubac, director of the office of the President of the Republic, in response to an investigative measure from the Constitutional Council, registered on 13 May 2013;

Having regard to a letter from Mr Bernard Carayon, mayor of Lavaur, in response to an investigative measure from the Constitutional Council registered on 14 May 2013;

Having regard to the letters from Mr Jean-François Copé, president of the Union for a Popular Movement, in response to the investigative measures from the Constitutional Council, registered on 14 and 23 May 2013;

Having regard to a letter from Mr Henri Proglio, CEO of EDF, in response to an investigative measure from the Constitutional Council registered on 15 May 2013;

Having regard to a letter from Mr Dominique Duhamel, chairman of the executive management board of Parc du Futuroscope, in response to an investigative measure from the Constitutional Council registered on 15 May 2013;

Having regard to a letter from Mr Hubert Falco, mayor of Toulon, in response to an investigative measure from the Constitutional Council registered on 16 May 2013;

Having regard to a letter from Mr Pierre Giacometti, chairman of the SAS Giacometti-Péron, in response to an investigative measure from the Constitutional Council registered on 23 May 2013;

Having regard to a letter from M. Patrick Buisson, chairman of SARL Publi-Opinion, in response to an investigative measure from the Constitutional Council registered on 23 May 2013;

Having regard to a letter from the Prime Minister, in response to an investigative measure from the Constitutional Council registered on 03 June 2013;

Having regard to all attachments appended to the file;

Having regard to Order no. 58-1067 of 7 November 1958 as amended, concerning the organic law on the Constitutional Council;

Having regard to article 3 of the law no. 62-1292 of 6 November 1962 with regard to the election of the president of the republic by universal suffrage, as lastly amended by the organic law no. 2012-272 of 28 February 2012

Having regard to the Electoral Code;

Having regard to decree no. 2009-1730 of 30 December 2009 with regard to an increase of the election spending limits;

Mr Blanchetier Esq. having been heard on behalf of Mr Sarkozy at a hearing on 18 June 2013;

Having heard the Rapporteurs;

1. Considering that Mr René Hoffer and Mr Raymond Avrillier have asked to intervene in the present instance; that however, they do not show sufficient interest giving them the right to intervene; that, therefore, these requests must be, in any case, rejected;

2. Considering that pursuant to the fifth and sixth subparagraphs of paragraph II of article 3 of the law of 6 November 1962: The National Commission for Campaign Accounts and Political Financing may, following a procedure in which all parties are afforded the right to make representations, approve, reject or amend the campaign accounts of candidates and stipulate the amount of the lump-sum reimbursement of campaign expenses provided by section V of this article... In cases where there is an increase of election spending limits, the commission fixes an amount, equal to the increase, that the candidate is liable to pay to Public Revenue... "; that pursuant to the third subparagraph of paragraph III of this article: "The decision of the National Commission for Campaign Accounts and Political Financing mentioned in section II of this article may be subject to a full judicial appeal before the Constitutional Council by the candidate concerned, during the month of its notification..."; that pursuant to the penultimate subparagraph of paragraph V of the same article: "The total or partial reimbursement of these campaign account expenditures is only possible after the final approval of this account. The lump sum is not reimbursed to the candidates who did not comply with the provisions of the second subparagraph of section II of this article, who did not file their campaign accounts at the latest at 18:00 on the eleventh Friday following the first round of voting or the campaign account of which is rejected for other reasons. In cases where irregularities have been committed but do not lead to the account being rejected, the decision regarding the latter may reduce the amount of the lump sum reimbursement based on the number and the importance of these irregularities"; that the limit of election spending is, pursuant to the combined provisions of the second subparagraph of paragraph II of this article and of the aforementioned decree of 20 December 2009, set at 22,509,000 Euros for each of the candidates reaching the second round;

3. Considering that the campaign account filed by Mr Sarkozy includes an expenditure amount of 21,339,664 Euros and a revenue of 21,459,931 Euros; that on the basis of the aforementioned provisions, the National Commission for Campaign Accounts and Political Financing has, subsequent to a decision of 19 December 2012, reformed this account, by setting the total of expenditures at 22,872,615 Euros and the total of revenues at 22,896,007 Euros; that it rejected the account, thus impeding the lump sum reimbursement of electoral expenditures of Mr Sarkozy and imposing the restitution of the lump sum advance of 153,000 Euros he received as a candidate to the election of the president of the republic; that the commission set the amount that Mr Sarkozy is liable to pay to Public Revenue at 363,615 Euros, corresponding to expenses in excess of the spending limit set for election campaigns; that Mr Sarkozy requests the Constitutional Council adjusted this decision;

ON THE EXPENDITURES INITIATED FOR THE ELECTION:

4. Considering that according to the combined provisions of article L. 52-12 and L.52-4 of the electoral code, made applicable to the presidential election by paragraph II of article 3 of the law of 6 November 1962, the campaign account gives a detail of the total expenditures made or incurred for the election by the candidate or on its behalf during the year preceding the first day of the month of the election; that the date on which the candidate declared his candidature does not, by nature, deprive the expenditures incurred before this declaration of their electoral nature;

With regard to the meetings held by Mr Guaino :

5. Considering that the commission reintegrated into the campaign account the costs related to the organisation of eight political meetings held by Mr Henri Guaino between 22 October 2011 and 10 February 2012 for an amount of 17,752 Euros;

6. Considering that according to the proceedings, the purpose of these meetings was mainly to present the results of Mr Sarkozy's term, to call for the candidature of Mr Sarkozy and to promote it; that pursuant to the functions carried out by Mr Guaino for the presidency of the republic and the publicity given to these meetings, they could only take place with the consent of the candidate; that, accordingly, the commission had grounds to proceed, because of their electoral nature, to the reintegration of the amounts in question;

With regard to the exceptional publication of the special issue of "magazine de l'Union" :

7. Considering that the "magazine de l'Union" is a media organisation for the information of subscribers to the Union for a Popular Movement (UMP); that during the first quarter of 2012, 500,000 issues of a special edition of this magazine, called "5 years of action for the benefit of the French people" and dedicated to the results of the Head of State's term, were printed on top of usual publications, ; that the additional cost of this publication was reintegrated to the campaign account by the commission for the amount of 71,957 euros.

8. Considering that the cost of a publication benefiting from the media organisation regime must not, in theory, be included in the campaign account of a candidate; that the expenditures of a political party, during the year preceding the election of the President of the Republic, may only be integrated in the campaign account of a candidate if their purpose is to promote the candidacy in order to be elected; that the sole purpose of the exceptional publication of "magazine de l'Union" in question was to highlight the results of Mr. Sarkozy during his term as president of the republic; that this publication must, considering its contents and the conditions of its publications, be regarded as having been drafted for the purpose of the presidential election; that therefore the commission had in the present case full legitimacy to proceed to the contested reintegration;

With regard to the expenditures for the printing of leaflets :

9. Considering that the National Commission for Campaign Accounts and Political Financing added to the campaign account the amount of 36,005 Euros in relation to expenditures for the publication of four leaflets by the Union for a Popular Movement as of November 2011, the content of which was considered to be clearly electoral; that while Mr Sarkozy admits the reintegration to the account of the expenditures incurred in relation to the leaflet called "what the PS thinks about François Hollande", he maintains that the other three leaflets were related to the legislative electoral campaign; that the same is true, having regard to the specific content of the leaflet called "the PS bargaining - Green on nuclear"; that, in light of the above, there is therefore sufficient grounds to include the amount of 28,745 Euros in expenses to be reintegrated; that the applicant has the right to request that, therefore, the decision of the commission be reformed;

With regard to the services of the Giacometti-Peron and Publi-Opinion agencies :

10. Considering that the Union for a Popular Movement signed with Giacometti-Péron and Publi-Opinion, for the period of 15 February to 30 June 2012, two agreements for a respective amount of 142,623 Euros and 95,067 Euros for the services regarding the analysis of the opinion and the strategic advice with regard to the preparation of the presidential and legislative elections; that the candidate registered in his campaign account a sum equal to the third of the amount of the signed agreement with Giacometti-Péron, i.e. 47,541 Euros, and two thirds of the amount of the agreement signed with Publi-Opinion, i.e. 63,378 Euros, giving the reason that these ratios would be equal to the share of the services relating to the presidential election, the rest being used to prepare the legislative elections; that the commission estimated that the totality of the expenditures in relation to these two agreements should be charged to the presidential election;

11. Considering, on the one hand, that having regard to the items provided by the candidate and by Publi-Opinion during the proceedings before the Constitutional Council, the services provided by this firm relate, as argued by the applicant, to 11/19th over the period preceding the presidential election and, to 8/19th over the period after that date and in relation to the legislative elections; that therefore, one must take into account the amount of 63,378 Euros included by the candidate in its account with regard to the signed agreement with Publi-Opinion;

12. Considering, on the other hand, that no items produced by the candidate or Giacometti-Péron regarding the sixty three meetings prior to the second round of the presidential election, held with this firm, establish that these meetings were in relation to the legislative elections; that therefore, the expenditures in relation to these meetings must be reintegrated in the candidate's account; whereas, the same does not apply for the expenditures in relation to the seven meetings held after that date which could only be in relation to the legislative elections, that these last meetings correspond to 10% of all the meetings; that therefore only 90% of the expenditures in relation to the agreement with Giacometti-Péron, i.e. 128,360 Euros, must be registered in the account, that the candidate having only registered the amount of 47,541 Euros, it is appropriate to add the amount of 80,819 Euros;

With regard to the public meeting organised in Villepinte :

13. Considering that the expenditures incurred for the public meeting in Villepinte on 11 march 2012 amounted to 3,042,355 Euros; that the candidate registered in its campaign account the amount of 1,538,037 Euros, or 50,4% of the former amount, alleging a meeting, in the morning, of an "extraordinary national council" of the Union for a Popular Movement for the preparation of the legislative elections; that the commission ruled that 80% of the expenditures relating to the organisation of this conference and 95% of travelling expenditures should be written off the campaign account, i.e. a total of 2,601,902 Euros; that, accordingly, it reintegrated to the campaign account the amount of 1,063,865 Euros;

14. Considering that it results from the proceedings that if an extraordinary national council of the Union for a Popular Movement did take place in the morning of 11 march 2012, it did not last more than one hour and that 5000 people at the most attended it, whereas 50,000 people attended the meeting open to the public; that neither the candidate nor the Union for a Popular Movement have, as part of the judicial investigations decided by the Constitutional Council, produced any document in relation to this extraordinary national council establishing the topics addressed and the interventions were solely in relation to the legislative elections and not to the presidential elections; nor were they able to prove expenditures solely in relation to this extraordinary national council; that if Mr Sarkozy argues that the average cost to organise a UMP national council amounts to approximately 800,000 Euros, this allegation does not solely allow, having regard to the respective importance of these two conferences organised on 11 march 2012, to question the portion kept by the commission; that therefore the commission had grounds to proceed to the contested reintegration;

With regard to the candidate's website :

15. Considering that the development of the candidate's website was subject to an agreement between the Union for a Popular Movement and a contractor in computing services for an amount of 1,050,088 Euros, divided into six separate items; that the candidate applied a ratio to each of these items in order to consider the fact that the site should have been used, after the election, for the benefit of this political party, that he set the ratio at 20% of the item relating to the implementation of the site itself; that the commission set this ratio at 50% and, therefore, reintegrated the amount of 175,453 Euros into the account;

16. Considering that, to challenge the decision on this point, the applicant merely alleges that the 20% ratio was admitted for another item, in relation to mobile phone applications, that the investigation did not establish that the ratio used by the commission for the item in relation to the implementation of the site was set too high, considering the importance of the service executed for the campaign of the candidate; that, accordingly, the commission was entitled to proceed to the contested reintegration;

With regard to the expenditures in relation to the public conferences attended by Mr Sarkozy :

17. Considering that the National Commission for Campaign Accounts and Political Financing established that the expenditures in relation to eight public conferences attended by Mr Sarkozy before he declared his candidacy, for which it was not able to establish a cost, should have been partly included into the campaign account, taking into account the electoral nature of these conferences;

18. Considering that the purpose of the legislation concerning the financing of electoral campaigns is neither to limit the travels of the President of the Republic, nor to limit its public conference attendance, both being part of its function; that the expenditures in relation to conferences it attends can only be included in the campaign account if they are of a clearly electoral nature;

19. Considering that among the eight conferences in question, the meeting at the Elysée for the third anniversary of the investment strategic fund of 17 November 2011, the inauguration of the entrepreneur fair in Paris on 1 February 2012, the ceremony of vows in Chasseneuil-du-Poitou on 5 January 2012 and in Lyon on 19 January 2012, the speeches in Tricastin on 25 November 2011 and in Fessenheim on 8 February 2012 on the subject of nuclear activity, as well as the speech in Lavaur on 7 February 2012 on family policy, can be considered as relating to the exercise of the presidential function; that, by contrast, the same can clearly not be applied to the public meeting held in Toulon on 1 December 2011, considering the involvement of the Union for a Popular Movement during this conference, the importance of the audience, including UMP members and followers, the layout of the premises and the communication media used;

20. Considering that, because of the electoral nature of this public conference in Toulon, there is sufficient ground to reintegrate to the campaign account the expenditures relating to this meeting, not including protection and travel expenditures related to the term of the President of the Republic; that it results from the investigation measures made by the Constitutional Council that the amount of the expenditures relating to the meeting itself is 155,715 Euros;

21. Considering that there is no ground to reform the non-contested amounts of expenditures and revenues kept by the National Commission for Campaign Accounts and Political Financing;

CONLUSIONS TO BE MADE REGARDING OBSERVED IRREGULARITIES:

22. Considering that, having regard to reforms carried out by this decision, the campaign account of Mr Sarkozy amounts to 22,975,118 Euros of expenditures and as a consequence, at 23,094,932 Euros of revenues.

23. Considering that in the first instance, the amounts set are the result of the reintegration of up to 1,669,930 Euros of expenditures that the candidate partly or totally omitted to include in its campaign account, i.e. 7.8% more than the amount of expenditures he declared and 7.4% of the election spending limits; that in the second instance, among the expenditures which should have been incorporated in the campaign account because of their electoral nature, the one in relation to the public meeting held in Toulon by Mr Sarkozy before he declared his candidacy were not subjected to a re-invoicing by the State; that they have been irregularly invoiced, and did not comply with the provisions of article L.52-8 of the Electoral Code, applicable to the presidential election by application of paragraph II of article 3 of the Law of 6 November 1962, which forbids, in whatever form, the participation of legal persons other than political parties or groups to the financing of the electoral campaign of a candidate; that in the third instance, the set amount of electoral expenditures of Mr Sarkozy exceeds the authorised limit by 466,118 Euros or 2.1%;

24. Considering that according to all of the above, the National Commission for Campaign Accounts and Political Financing was right to reject the account of Mr Sarkozy; that, pursuant to the above mentioned provisions of the law of 6 November 1962, as long as the account of Mr Sarkozy is rejected, he is not entitled to the lump sum reimbursement provided by article L.52-11-1 of the electoral code of 153,000 Euros paid to him; that while according to the same provisions, in cases where there is an increase of the election spending limits, the National Commission for Campaign Accounts and Political Financing sets a sum equal to the amount of the increase the candidate is obliged to pay to Public Revenue, the said amount, which is of a punitive nature, not being increasable if the candidate appeals against the decision of the commission; that therefore there are no grounds to modify the amount set by the commission in its decision,

HELD :

Article 1 : The requests of MM René Hoffer and Raymond Avrillier are rejected.

Article 2 : After reform, the campaign account of Mr Nicolas Sarkozy amounts to 22,975,118 Euros of expenditures and 23,094,932 Euros of revenues. The following has been decided:

Expenditures (in euros)

Revenues (in euros)

Amounts declared by the candidate

Amounts taken into account by the Constitutionnal council

Amounts declared by the candidate

Amounts taken into account by the Constitutionnal council

I- expenditures paid by the fiscal agent: 16 456 826 16 426 930 I - revenues received by the fiscal agent, out of wich: 16 577 093 16 546 744
– personnal contribution (including the 153 000 euros advance) 10 691 775 10 661 426
– final payments from political parties 5 817 956 5 817 956
– donations from individuals 67 362 67 362
– other revenues
II– contributions from political parties II– contributions from political parties
– expenditures direct payments 4 879 736 6 323 771 – direct payments 4 879 736 6 323 771
– in-kind funding 1 722 41 482 – in-kind funding 1 722 41 482
III -other in-kind funding 1 380 182 935 III - other in-kind funding 1 380 182 935
TOTAL EXPENDITURES 21 339 664 22 975 118 TOTAL REVENUES 21 459 931 23 094 932
Account positive balance 120 267 119 814

Article 3 : The decision of the National Commission for Campaign Accounts and Political Financing is reformed as it breaches article 2.

Article 4 : The remainder of the claims in the application of Mr SARKOZY is rejected.

Article 5 : This decision will be published in the Journal Officiel of the French Republic and notified to Mr Nicolas Sarkozy, to the National Commission for Campaign Accounts and Political Financing and to the Interior Ministry.

Deliberated by the Constitutional Council in its session on 04 July 2013, sat on by: Mr Jean-Louis DEBRÉ, President, Mr Jacques BARROT, Ms Claire BAZY MALAURIE, Ms Nicole BELLOUBET, Mr Guy CANIVET, Mr Michel CHARASSE, Mr Renaud DENOIX de SAINT MARC, Mr Hubert HAENEL and Ms Nicole MAESTRACCI.