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Decision no. 2013-666 DC of 11 APRIL 2013

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Law aiming to prepare the transition towards a streamlined energy system and laying down miscellaneous provisions on tariff rates for water and on wind turbines

In the conditions provided for by Article 61-2 of the Constitution, the Constitutional Council was seized of an application relating to the Law aiming to prepare the transition towards a streamlined energy system and laying down miscellaneous provisions on tariff rates for water and on wind turbines on 13 March 2013 by Mr Jean-Claude GAUDIN, Mr Pierre ANDRÉ, Mr Gérard BAILLY, Mr Philippe BAS, Mr René BEAUMONT, Mr Christophe BÉCHU, Mr Michel BÉCOT, Mr Joël BILLARD, Mr Jean BIZET, Mr Pierre BORDIER, Ms Natacha BOUCHART, Mr Joël BOURDIN, Ms Marie-Thérèse BRUGUIÈRE, Mr François-Noël BUFFET, Mr Jean-Pierre CANTEGRIT, Mr Jean-Noël CARDOUX, Mr Jean-Claude CARLE, Ms Caroline CAYEUX, Mr Gérard CÉSAR, Mr Pierre CHARON, Mr Alain CHATILLON, Mr Jean-Pierre CHAUVEAU, Mr Marcel-Pierre CLÉACH, Mr Christian COINTAT, Mr Gérard CORNU, Mr Raymond COUDERC, Mr Jean-Patrick COURTOIS, Mr Philippe DALLIER, Ms Isabelle DEBRÉ, Mr Francis DELATTRE, Mr Robert del PICCHIA, Mr Gérard DÉRIOT, Ms Catherine DEROCHE, Ms Marie-Hélène DES ESGAULX, Mr Éric DOLIGÉ, Mr Philippe DOMINATI, Mr Michel DOUBLET, Ms Marie-Annick DUCHÊNE, Mr AlainDUFAUT, Mr André DULAIT, Mr Ambroise DUPONT, Mr Louis DUVERNOIS, Mr Jean-Paul EMORINE, Mr André FERRAND, Mr Louis-Constant FLEMING, Mr Michel FONTAINE, Mr Bernard FOURNIER, Mr Jean-Paul FOURNIER, Mr Christophe-André FRASSA, Mr Yann GAILLARD, Mr René GARREC, Mr Jacques GAUTIER, Mr Patrice GÉLARD, Mr Bruno GILLES, Ms Colette GIUDICELLI, Mr Alain GOURNAC, Mr Francis GRIGNON, Mr François GROSDIDIER, Mr Charles GUENÉ, Mr Pierre HÉRISSON, Mr Michel HOUEL, Mr Alain HOUPERT, Mr Jean-François HUMBERT, Mr Benoît HURÉ, Mr Jean-Jacques HYEST, Ms Sophie JOISSAINS, Ms Christiane KAMMERMANN, Mr Roger KAROUTCHI, Mr Marc LAMÉNIE, Ms Élisabeth LAMURE, Mr Gérard LARCHER, Mr Daniel LAURENT, Mr Jean-René LECERF, Mr Antoine LEFÈVRE, Mr Jacques LEGENDRE, Mr Dominique de LEGGE, Mr Jean-Pierre LELEUX, Mr Jean-Claude LENOIR, Mr Philippe LEROY, Mr Gérard LONGUET, Mr Roland du LUART, Mr Michel MAGRAS, Mr Philippe MARINI, Mr Jean-François MAYET, Ms Colette MÉLOT, Mr Alain MILON, Mr Albéric de MONTGOLFIER, Mr Philippe NACHBAR, Mr Jackie PIERRE, Mr Xavier PINTAT, Mr Rémy POINTEREAU, Mr Christian PONCELET, Mr Ladislas PONIATOWSKI, Mr Hugues PORTELLI, Ms Sophie PRIMAS, Ms Catherine PROCACCIA, Mr Jean-Pierre RAFFARIN, Mr Henri de RAINCOURT, Mr André REICHARDT, Mr Bruno RETAILLEAU, Mr Charles REVET, Mr Bernard SAUGEY, Mr René-Paul SAVARY, Mr Michel SAVIN, Mr Bruno SIDO, Ms Esther SITTLER, Mr André TRILLARD, Ms Catherine TROENDLE, Mr François TRUCY, Mr Hilarion VENDEGOU and Mr Jean-Pierre VIAL, Senators;

And on the same day by Mr Christian JACOB, Mr Bernard ACCOYER, Mr Yves ALBARELLO, Mr Benoist APPARU, Mr Julien AUBERT, Mr Olivier AUDIBERT TROIN, Mr Jean-Pierre BARBIER, Mr François BAROIN, Mr Jacques-Alain BÉNISTI, Mr Xavier BERTRAND, Mr Jean-Claude BOUCHET, Mr Xavier BRETON, Mr Dominique BUSSEREAU, Mr Yves CENSI, Mr Guillaume CHEVROLLIER, Mr Alain CHRÉTIEN, Mr Eric CIOTTI, Mr François CORNUTGENTILLE, Mr Edouard COURTIAL, Mr Jean-Michel COUVE, Mr Gérald DARMANIN, Mr Bernard DEFLESSELLES, Mr Rémi DELATTE, Mr Jean-Pierre DOOR, Mr Dominique DORD, Ms Marianne DUBOIS, Mr Daniel FASQUELLE, Mr Yves FOULON, Mr Marc FRANCINA, Mr Laurent FURST, Mr Sauveur GANDOLFI-SCHEIT, Ms Annie GENEVARD, Mr Bernard GÉRARD, Mr Claude GOASGUEN, Mr Philippe GOSSELIN, Ms Anne GROMMERCH, Ms Arlette GROSSKOST, Mr Jean-Claude GUIBAL, Mr Christophe GUILLOTEAU, Mr Michel HEINRICH, Mr Michel HERBILLON, Mr Antoine HERTH, Mr Patrick HETZEL, Mr Guénhaël HUET, Mr Sébastien HUYGHE, Ms Valérie LACROUTE, Mr Marc LAFFINEUR, Mr Jean-François LAMOUR, Ms Laure de LA RAUDIÈRE, Mr Alain LEBOEUF, Ms Isabelle LE CALLENNEC, Mr Marc LE FUR, Mr Bruno LE MAIRE, Mr Dominique LE MÈNER, Mr Pierre LEQUILLER, Mr Philippe LE RAY, Ms Geneviève LEVY, Ms Véronique LOUWAGIE, Mr Lionnel LUCA, Mr Thierry MARIANI, Mr Hervé MARITON, Mr Olivier MARLEIX, Mr Philippe MARTIN, Mr Alain MARTY, Mr François de MAZIÈRES, Mr Pierre MORANGE, Mr Pierre MOREL-A-L'HUISSIER, Mr Jean-Luc MOUDENC, Mr Jacques MYARD, Ms Dominique NACHURY, Mr Yves NICOLIN, Mr Edouard PHILIPPE, Mr Jean-Frédéric POISSON, Mr Axel PONIATOWSKI, Ms Josette PONS, Mr Bernard REYNÈS, Ms Sophie ROHFRITSCH, Mr Martial SADDIER, Mr Paul SALEN, Mr François SCELLIER, Ms Claudine SCHMID, Mr André SCHNEIDER, Mr Fernand SIRÉ, Mr Éric STRAUMANN, Mr Claude STURNI, Mr Lionel TARDY, Mr Jean-Charles TAUGOURDEAU, Mr Guy TEISSIER, Mr Michel TERROT, Mr Jean-Marie TETART, Mr Dominique TIAN, Ms Catherine VAUTRIN, Mr Patrice VERCHÈRE, Mr Jean-Pierre VIGIER, Mr Philippe VITEL, Mr Michel VOISIN and Ms Marie-Jo ZIMMERMANN, Members of Parliament.

THE CONSTITUTIONAL COUNCIL,

Having regard to the Constitution;

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

Having regard to the Energy Code;

Having regard to the Environmental Code;

Having regard to the Town Planning Code;

Having regard to Law no. 2005-781 of 13 July 2005 on the programme setting energy policy guidelines;

Having regard to the observations of the Government, registered on 27 March 2013;

Having regard to the observations in response presented by the Members of Parliament who filed the second application, registered on 3 April 2013;

Having heard the Rapporteur;

1. Considering that the applicant Senators and Members of Parliament have referred to the Constitutional Council the Law aiming to prepare the transition towards a streamlined energy system and laying down miscellaneous provisions on tariff rates for water and on wind turbines; that the applicant Senators object to the procedure followed in adopting Article 2 thereof and the constitutionality of that Article along with Articles 24, 26 and 29 of the Law; that the applicant Members of Parliament object to the procedure followed in adopting Articles 24, 26 and 29; that they also dispute the constitutionality of Articles 2, 14, 24, 26 and 29 thereof;

- ARTICLE 2:

With regard to the procedure :

2. Considering that the applicant Senators argue that the adoption of Article 2 of the bill in an entirely new text introduced by an amendment during a further reading in the National Assembly entailed that the legislative provision which was finally adopted could only be examined following one single reading, whereas these provisions "required more detailed consideration, due to their technical nature and novel status"; that in doing so it violated the constitutional requirement that parliamentary debates should be clear and sincere;

3. Considering that it follows from the scheme of Article 45 of the Constitution, and in particular its first subparagraph, according to which

"Every Government or Private Member's Bill shall be considered successively in the two Houses of Parliament with a view to the passing of an identical text" that any additions or amendments which may be made after the first reading by Members of Parliament or by the Government must be directly related with a provision under discussion; that however, amendments intended to ensure compliance with the Constitution, to coordinate the text with other legislation during examination or to correct a material error are not subject to this requirement;

4. Considering that the National Assembly adopted the bill during its first reading on 4 October 2012 and the Senate rejected the text on 30 October 2012 by a resolution asserting that the bill adopted by the National Assembly was procedurally inadmissible; that following the breakdown of the procedure before the mixed joint committee on 19 December 2012, the National Assembly was referred regarding a further reading of the bill containing the text which it had previously approved; that the competent permanent committee accordingly adopted an amendment providing for a global redrafting of Article 2 of the bill; that this amendment had the objective of amending a provision under discussion at this stage of the procedure; that it follows that it was adopted according to a procedure which complies with the Constitution and does not violate the constitutional requirement that parliamentary debates should be clear and sincere;

The substantive content :

5. Considering that Article 2 introduces into the Energy Code a new Title II-a entitled "Performance class on domestic network energy consumption", including Articles L. 230-1 to L. 230-30, and that, according to Article L. 230-1 established with effect from 1 January 2015 a "performance measurement device"; that Article L. 230-3 defines the formula for calculating the annual quantity of energy known as the "base volume" for each energy network and for each residential consumption site, irrespective of whether the residence is a principal or occasional residence; that the Article makes provision for a bonus, to be applied on the portion of network energy consumption below the base volume, and a penalty, to be applied on the portion of network energy consumption above that volume; that Article L. 230-4 makes the same provision for multi-property buildings allocated in whole or in part to residential usage; that Article L. 230-5 charges a body with responsibility for collecting and updating the data necessary in order to calculate base volumes, determining the bonus and penalty volumes and allocating the performance class; that Article L. 230-6 lays down the procedures governing the calculation of penalties and the conditions under which they may be imposed, along with those applicable to payment of the bonus; that this Article also provides for control of the bonus and penalty rates applicable to portions of consumption of network energy; that Article L. 230-7 provides for a reduction in penalty rates for consumers entitled to certain special tariff rates; that Article L. 230-10 lays down the conditions governing the setting of the bonus and penalty rates each year; that Article L. 230-11 establishes a fund for offsetting bonus and penalty payments against domestic consumption of network energy; that Articles L. 230-12 to L. 230-26 set out the conditions under which suppliers of network energy are to ensure, acting under State control, the collection of penalties and the payment of bonuses;

6. Considering that the applicant Senators and Members of the National Assembly argue in the first place that in delegating to the secondary legislator the power to determine certain coefficients used in order to calculate reference volumes and in the annual setting of bonus and penalty rates, Parliament acted in excess of its powers; that the legal rule enacted by the contested Article would be a source of legal uncertainty in that it would not enable consumers to know in advance the consumption threshold above which a portion of their energy consumption would cease to be eligible for a bonus and would be subject to a penalty, or the actual amount of the bonus which they would receive or the penalty which could be imposed on them in line with their actual consumption of network energy during the course of the calendar year; that it would violate the objective that the law should be accessible and intelligible according to Articles 4, 5, 6 and 16 of the 1789 Declaration of the Rights of Man and the Citizen; that, according to the applicant Senators, the failure to establish a special purposes account when creating new tax revenue in order to ensure financial coverage for a specific cost violates the requirements laid down under Article 21 of the Organic Law of 1 August 2001 on finance laws;

7. Considering that the applicant Senators and Members of the National Assembly argue in the second place that the bonus and penalty system established under Article 2 violates the principle of equality in the payment of public dues; that it results in particular in unequal treatment of energy consumers depending upon their location within the same municipality, their personal circumstances depending upon whether or not they reside in their home due to their work or absence thereof, the nature and surface area of their dwelling or the type of energy consumed for heating; that they argue that Parliament could not reserve the application of this provision solely to network energy consumed by private individuals, thereby excluding on the one hand the consumption of other polluting energy sources, such as heating oil, liquefied petroleum gas or wood and on the other hand the consumption of energy from the agricultural, industrial and tertiary sector; that the principle of equality in the payment of public dues would also be violated by the difference in treatment established for homes situated in multi-property buildings depending upon whether or not it is possible to measure the individual consumption of each residence and depending upon whether or not these buildings include secondary residences;

8. Considering that the applicants argue thirdly that the provisions of Article 2 imply the implementation of the processing of personal data by registering information relating to address, mode of heating, number of persons present in the property and the status of the property as a principal or occasional residence for around 35 million individuals; that they argue that the legislation provides for the implementation of this processing of personal data by a body without specifying the conditions applicable to such action or laying down guarantees in order to protect the private life of the individuals whose data are thereby registered; that this results in a disproportionate violation of the right to the protection of private life;

9. Considering that Article 13 of the 1789 Declaration provides: “A common contribution is essential for the maintenance of the public forces and for the cost of administration. This should be equitably distributed among all the citizens in proportion to their means”; that, in particular, to ensure the principle of equality is upheld, Parliament must base its judgment on objective and rational criteria according to the proposed objectives; that this judgment must however not jeopardize equality in the payment of public dues;

10. Considering that, according to Article 34 of the Constitution, it is for Parliament to determine, in accordance with constitutional principles and taking account of the characteristics of each tax, the rules according to which taxpayers are to be subject to that tax; that the principle of equality does not preclude the establishment of specific taxes with the objective of incentivising taxpayers to adopt conduct which complies with objectives of general interest, provided that the rules laid down to that effect are justified having regard to the said objectives;

11. Considering that according to Article L. 230-1 of the Energy Code as in force following the enactment of Article 2 of the Law referred, the bonus and penalty system pursues the objective "of encouraging domestic consumers to reduce their consumption of network energy";

12. Considering that, according to paragraph I of Article L. 230-2 of the Energy Code established by Article 2, the bonus and penalty system only applies to the consumption of network energy, i.e. "electricity, natural gas and network heating"; that, according to the provisions adopted, Parliament intended to take account, on the one hand, of the high costs of the investments necessary in order to develop both the distribution of such energy and, in relation to electricity, the new production capacities, and on the other hand the specific procedures according to which such energy is to be distributed; that the principle of equality in the payment of public dues does not require that the provisions of Article 2 be extended to other energy which does not present these characteristics;

13. Considering in the first place that the bonus and penalty system provided for under Article 2 is reserved solely to domestic consumption; that on the one hand, the exclusion of all business consumption is not related to the objective of controlling the costs of production and distribution of network energy; that on the other hand, the exclusion of the tertiary sector is of such a nature that, in particular in properties in collective use, premises equipped with identical heating and insulation equipment, which are subject to the same tariff rules for the consumption of electricity and gas and, in certain cases, use a collective common heating system, are excluded from or are included in the bonus and penalty system due to the sole fact as to whether or not they are used for domestic purposes; that neither the provisions of Article 2 nor any other provision lay down a regime for businesses which has effects equivalent to a progressive tariff system or a bonus and penalty system pursuing the objective set by Parliament of incentivising each consumer to reduce his network energy consumption; that Article 6 of the Law referred is limited to stipulating the filing of a report on "the procedures according to which the bonus and penalty system for domestic network energy consumption may··· be applied to the tertiary sector"; that having regard to the objective pursued, the differences in treatment resulting from the choice to reserve the rule provided for under Article 2 solely to domestic consumption violate the principle of equality in the payment of public dues;

14. Considering secondly that Article 2 introduces into Article L. 230-4 of the Energy Code the procedures according to which the bonus or penalty is calculated and allocated within multi-property buildings equipped with common heating equipment fuelled by network energy;

15. Considering that, on the one hand, Article L. 241-9 of the Energy Code provides that any collective property equipped with a common heating system must include, insofar as technologically permitted, a device intended to determine the quantity of heat and hot water supplied to each property occupied on a residential basis; that paragraph III of Article 2 of the Law referred postpones to 1 January 2015 the deadline for the commissioning of these meters; that paragraph V of Article L. 230-4 is applicable in the event that it is technically impossible to install a device enabling the quantity of heat and hot water supplied to each property occupied on a residential basis to be determined; that it provides that, in such properties, bonus and penalty payments are to be allocated in principle on a pro rata basis in line with the contribution to the category of costs including collective heating; that however almost 90% of properties located in multi-property buildings equipped with collective heating, that is more than 4 million properties, are not currently equipped with such a meter; that, with regard to properties located in multi-property buildings which have not installed a meter by 1 January 2015 whilst not being subject to the aforementioned technical impossibility, the division of the bonus and penalty payments between the properties will not be determined on the basis of the objective pursued;

16. Considering on the other hand that letter b) of paragraph I of Article L. 230-4 provides that the determination of the base volume used in order to calculate the bonus and penalty payments within those properties shall take account of the total number of units consumed throughout the properties fuelled by common installations which are main residences and the base volumes to which properties that are occasional residence are entitled; that however, pursuant to paragraph IV of that Article: "The allocation of bonus and penalty payments between properties in the building··· shall take account of individual consumption levels for each property, as measured by the equipment referred to under Article L. 241-9"; that accordingly, in these multi-property buildings in which properties are equipped with these meters, in contrast to the regime applicable to individual residential consumption sites under Article L. 230-3 of the Energy Code, the allocation of bonus and penalty payments does not take account of the units of consumption for each property, nor, as regards the granting of a bonus, the distinction between main residences and occasional residences;

17. Considering that, accordingly, in multi-property residential buildings equipped with common heating installations, the provisions of Article 2 of the Law do not lay down the conditions for allocating bonus and penalty payments having regard to the objective of ensuring that each domestic consumer is responsible for his own consumption of network energy; that these provisions do not ensure that the principle of equality in the payment of public dues is respected for consumers resident in such multi-property buildings on the one hand and domestic consumers residing in an individual residential consumption site on the other hand;

18. Considering that according to the above, the provisions of Article 2 of the Law violate the principle of equality in the payment of public dues; that they must be ruled unconstitutional, without any requirement to examine the other grounds for challenge; that any remaining provisions of Title I which are not separable from it must also be ruled unconstitutional; that the same applies for the two last subparagraphs of paragraph I of Article 8 and the two last subparagraphs of paragraph I of Article 12; that, consequently, in the last subparagraph of paragraph III of Article 12, the reference "to Articles L. 232-1, L. 232-2 and L. 232-3 of the Energy Code" must be replaced by the reference "to Article L. 232-1 of the Energy Code";

- ARTICLE 14:

19. Considering that Article 14 concerns the cessation of electricity consumption; that subparagraph 1 of paragraph I thereof introduces a new Article L. 271-1 into the Energy Code in particular in order to enable cessation operators "to implement the cessation of consumption, irrespective of whether the agreement of the electricity supplier to the sites concerned has been obtained, and to exploit such electricity on the energy markets or according to the adjustment mechanism referred to under Article L. 321-10, and to implement a payment regime by the cessation operator to the suppliers of electricity to the sites to which the supply has been cut off";

20. Considering that, according to the applicant Members of Parliament, in enabling cessation operators to cut off consumption irrespective of the agreement of the electricity supplier, the provisions of Article L. 271-1 of the Energy Code establish an authoritarian dispossession procedure by a private body without any involvement of a public authority; that they accordingly violate the right of ownership guaranteed under Article 17 of the 1789 Declaration; that this provision grants the cessation operators a policing power over electricity supply, without any involvement of a public authority; that Parliament cannot grant such a power to a private body without violating the requirements resulting from Article 12 of the 1789 Declaration; that in delegating to the secondary legislator the power to determine the methodology used in order to establish the rules enabling electricity which has been cut off to be exploited, Parliament finally acted in excess of its powers;

21. Considering in the first place that pursuant to Article 34 of the Constitution, statutes shall lay down the basic principles of "systems of ownership, property rights and civil and commercial obligations";

22. Considering that Article L. 271-1 of the Energy Code authorises the Conseil d'État to adopt a decree, acting on a proposal by the Energy Regulation Board, laying down the "methodology used in order to establish the rules enabling energy which has been cut off to be exploited on the energy markets or according to the adjustment mechanism referred to under Article L. 321-10"; that this Article provides that these rules must include a regime regulating payments to the suppliers of electricity from sites which have been cut off that is "established taking account of the quantities of electricity introduced by or on behalf of the suppliers of the sites which have been cut off and which are exploited by the cessation operator on the energy markets or according to the adjustment mechanism"; that Parliament accordingly defined and set out the financial mechanisms established by the contested provisions in order to guarantee remuneration to the suppliers of electricity to sites where consumption has been cut off; that it did not therefore act in excess of its powers;

23. Considering secondly that property is included under the human rights provided for by Articles 2 and 17 of the 1789 Declaration; that pursuant to Article 17: "Since property is an inviolable and sacred right, no one shall be deprived thereof except where public necessity, legally determined, shall clearly demand it, and then only on condition that the owner shall have been previously and equitably indemnified"; that even if there is no violation of the right to property pursuant to Article 17, it nonetheless follows from Article 2 of the 1789 Declaration that the limits placed on this right must be justified by a reason of general interest and be proportionate with the objective pursued;

24. Considering that electricity is an asset with a special nature which cannot be stored and the flux of which conveyed through the network must at all times be balanced; that cutting off, which enables imbalances between the production and consumption of electricity to be corrected, does not have the effect of hindering the actual consumption of electricity by the customers of electricity suppliers in the sites concerned, but exclusively of avoiding higher consumption in particular in the event of imbalances within the network; that the contested provisions do not have either the objective or effect of depriving a supplier of electricity of remuneration for the electricity that it has introduced into the network and has been consumed; that it follows from the above that these provisions do not cause any violation to the right of ownership guaranteed under Articles 2 and 17 of the 1789 Declaration;

25. Considering thirdly that the contested provisions do not have the objective of vesting cessation operators with administrative policing powers; that the objection alleging the violation of Article 12 of the 1789 Declaration must in any case be rejected;

26. Considering that according to the above, the provisions of subparagraph 1 of paragraph I of Article 14, which do not violate any other requirement of constitutional law, must be ruled constitutional;

- ARTICLES 24, 26 AND 29:

27. Considering that Articles 24, 26 and 29 amend the provisions of the Energy Code, the Environmental Code and the Town Planning Code on wind turbines in cities and in overseas departments with the goal of facilitating their establishment;

28. Considering that the applicant Members of the National Assembly argue that Articles 24, 26 and 29, which were introduced by an amendment during the first reading, do not have any relationship with the initial text and must be ruled unconstitutional with regard to Article 45 of the Constitution; that the applicant Members of the Chamber of Deputies and Senators argue moreover that Article 24 violates the principle of the free administration of local government bodies and that Articles 26 and 29 violate the Environmental Charter, in particular Article 6;

The inclusion of Articles 24, 26 and 29 in the Law referred :

29. Considering that pursuant to the second phrase of the first subparagraph of Article 45 of the Constitution: "Without prejudice to the application of Articles 40 and 41, all amendments which have a link, even an indirect one, with the text that was tabled or transmitted, shall be admissible on first reading";

30. Considering that the bill was initially comprised of eight Articles at the time it was filed with the bureau of the National Assembly, the first House to be apprised of it; that these eight Articles were divided into two Titles, the first on progressive energy tariffs and the second on accompanying measures;

31. Considering that Articles 24, 26 and 29 were included by amendment during the first reading before the National Assembly; that these Articles, which are intended to facilitate the establishment of wind turbines in the metropolitan territory and in the overseas departments, aim to accelerate "the transition towards a streamlined energy system" against the backdrop of the "inevitable rise in energy prices"; that they are therefore related to the initial bill; that they were adopted according to a procedure which is constitutional;

The objection alleging the breach of the principle of the free administration of local government bodies :

32. Considering that Article 24 of the Law referred has the objective of abolishing the wind turbine development areas created under the aforementioned Law of 13 July 2005 and amendment the provisions on obligations to purchase electricity generated from wind turbines; that paragraph I of Article 24 repeals Article L. 314-9 of the Energy Code on the procedures for determining the wind turbine development areas and amends Articles L. 314-1 and L. 314-10 of the Code; that paragraph II of Article 24 moreover completes the last subparagraph of Article L. 553-1 of the Environmental Code with a phrase stipulating that authorisation to exploit wind energy "shall take account of the parts of the regional territory which are favourable to the development of wind energy as laid down in the regional wind energy plan referred to under subparagraph 3 of paragraph I of Article L. 222-1, if such a plan exists";

33. Considering that, according to the applicants, the provisions of Article 24 of the Law violate the principle of the free administration of local government bodies by establishing "quasi supervision" by regional councils of community councils and municipal councils and by depriving the communities of tax revenue associated with the installation of wind turbines;

34. Considering that Article 34 of the Constitution reserves to Parliament the power to determine the fundamental principles of the free administration of local government bodies, their powers and their resources; that whilst, pursuant to Articles 72 and 72-2 of the Constitution, local government bodies "shall be administered freely by elected councils" and "shall benefit from the resources of which they may freely dispose", they shall do so "in accordance with the conditions laid down by law";

35. Considering that, by abolishing wind turbine development areas, the provisions of Article 24 of the Law referred have the effect of no longer subjecting the obligation to buy electricity generated to the establishment of wind turbines in these areas, which does not in itself have an effect on municipalities' income; that the abolition of wind turbine development areas does not have the effect of violating the powers of the municipalities and public inter-municipal cooperation bodies to levy their own taxes where their territory falls inside the perimeter of the regional wind turbine plans; that it does not have the effect of establishing "quasi-supervision" by the region of the municipalities, as wind turbines may be established at any time outwith the areas specified in the regional wind turbine plan; that accordingly, the objection alleging the violation of the principle of the free administration of local government bodies must be rejected;

The objection alleging the violation of the Environmental Charter :

36. Considering that Article 26 of the Law referred, regarding exceptions to the principle of the spread of urbanisation in continuity with existing buildings, replaces the first subparagraph of Article L. 156-2 of the Town Planning Code applicable to the coast in the departments of Guadeloupe, Guyana, Martinique, Reunion and Mayotte with the goal of facilitating the establishment of wind turbines in the coastal municipalities of these departments;

37. Considering that by repealing the second phrase of the first subparagraph of paragraph 3 of Article L. 341-1 of the Energy Code, Article 29 abolishes the rule according to which only wind turbine units including at least five masts may benefit from an obligation to purchase;

38. Considering that, according to the applicants, in relaxing the conditions applicable to the establishment of wind turbines in overseas municipalities, the provisions of Article 26 of the Law referred will result in an increased development of wind turbines in overseas departments; that in abolishing the aforementioned "five masts" rule and favouring "the expansion of the urban sprawl in these territories", the provisions of Article 29 risk causing damage to the landscape; that the provisions violate the Environmental Charter, including in particular Article 6 thereof;

39. Considering that pursuant to Article 6 of the Environmental Charter: "Public policies must promote sustainable development. To that effect, they shall reconcile the protection and enhancement of the environment with sustainable development and social progress"; that it is for Parliament to determine the manner in which it is to be implemented, in accordance with the principle of reconciliation struck by these provisions;

40. Considering that in providing in Article 26 of the Law referred for the possibility of exceptions to the principle of the spread of urbanisation in continuity with existing buildings and in abolishing through Article 29 the rule according to which only wind energy generating units including at least five masts may benefit from an obligation to buy, Parliament intended to promote the establishment of wind turbines and the development of renewable energy; that the establishment of wind turbines continues to be subject in particular to the remaining town planning rules and the legislation on installations classified on environmental protection grounds; that Parliament did not violate the requirements of Article 6 of the Environmental Charter;

41. Considering that according to the above, the provisions of Articles 24, 26 and 29 of the Law referred, which do not violate any other requirement of constitutional law, must be ruled constitutional;

42. Considering that there are no grounds for the Constitutional Council to raise any question of compatibility with the Constitution ex officio,

HELD :

Article 1. – The following provisions of the Law aiming to prepare the transition towards a streamlined energy system and laying down miscellaneous provisions on tariff rates for water and on wind turbines are unconstitutional:

– Title I including Articles 1 to 6;

– the last two subparagraphs of paragraph I of Article 8;

– the last two subparagraphs of paragraph I of Article 12.

Consequently, the reference in the last subparagraph of paragraph III of Article 12 "to Articles L. 232-1, L. 232-2 and L. 232-3 of the Energy Code" shall be replaced by the reference "to Article L. 232-1 of the Energy Code".

Article 2. – Subparagraph 1 of paragraph I of Article 14 and Articles 24, 26 and 29 of the Law are constitutional.

Article 3. This decision shall be published in the Journal officiel of the French Republic.

Deliberated by the Constitutional Council in its session of 11 April 2013, sat on by: Mr Jean-Louis DEBRÉ, President, Mr Jacques BARROT, Ms Claire BAZY MALAURIE, Mr Nicole BELLOUBET, Mr Guy CANIVET, Mr Michel CHARASSE, Mr Renaud DENOIX de SAINT MARC, Mr Valéry GISCARD d'ESTAING, Mr Hubert HAENEL and Ms Nicole MAESTRACCI.