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Decision no. 2014-690 DC of 13 March 2014

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Law on Consumer Affairs

Further to the terms provided for by Article 61-2 of the Constitution, the Constitutional Council was seized of an application relating to the Law on Consumer Affairs on 17 February 2014 by Mr Christian JACOB, Mr Damien ABAD, Mr Élie ABOUD, Mr Bernard ACCOYER, Mr Yves ALBARELLO, Mr Benoist APPARU, Mr Jean-Pierre BARBIER, Mr Sylvain BERRIOS, Mr Philippe BRIAND, Mr Dominique BUSSEREAU, Mr Guillaume CHEVROLLIER, Mr Éric CIOTTI, Mr François CORNUT-GENTILLE, Mr Jean-Louis COSTES, Mr Gérald DARMANIN, Mr Olivier DASSAULT, Mr Bernard DEFLESSELLES, Mr Jean-Pierre DOOR, Ms Virginie DUBY-MULLER, Mr Christian ESTROSI, Mr Daniel FASQUELLE, Ms Marie-Louise FORT, Mr Marc FRANCINA, Mr Laurent FURST, Mr Claude de GANAY, Mr Sauveur GANDOLFI-SCHEIT, Mr Hervé GAYMARD, Ms Annie GENEVARD, Mr Guy GEOFFROY, Mr Bernard GÉRARD, Mr Claude GOASGUEN, Mr Philippe GOSSELIN, Mr Christophe GUILLOTEAU, Mr Antoine HERTH, Mr Patrick HETZEL, Mr Denis JACQUAT, Mr Christian KERT, Mr Jacques KOSSOWSKI, Ms Valérie LACROUTE, Mr Marc LAFFINEUR, Mr Jacques LAMBLIN, Ms Laure de LA RAUDIÈRE, Mr Marc LE FUR, Mr Pierre LELLOUCHE, Mr Dominique LE MÈNER, Mr Pierre LEQUILLER, Ms Véronique LOUWAGIE, Mr Hervé MARITON, Mr Alain MARTY, Mr Philippe MEUNIER, Mr Pierre MORANGE, Mr Yannick MOREAU, Mr Pierre MOREL-A-L'HUISSIER, Mr Alain MOYNE-BRESSAND, Ms Dominique NACHURY, Mr Yves NICOLIN, Mr Jean-Frédéric POISSON, Ms Josette PONS, Mr Franck RIESTER, Mr François SCELLIER, Mr Fernand SIRÉ, Mr Éric STRAUMANN, Mr Claude STURNI, Mr Jean-Charles TAUGOURDEAU, Mr Jean-Marie TETART, Mr Dominique TIAN, Mr François VANNSON, Ms Catherine VAUTRIN, Mr Jean-Pierre VIGIER, Mr Philippe VITEL, Mr Éric WOERTH and Mr Marie-Jo ZIMMERMANN, Members of Parliament;

And on the same day by Mr Jean-Claude GAUDIN, Mr Gérard BAILLY, Mr Philippe BAS, Mr René BEAUMONT, Mr Michel BÉCOT, Mr Jean BIZET, Ms Françoise BOOG, Mr Pierre BORDIER, 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 Raymond COUDERC, Mr Jean-Patrick COURTOIS, Mr Philippe DALLIER, Mr Serge DASSAULT, Ms Isabelle DEBRÉ, Mr Francis DELATTRE, Mr Robert del PICCHIA, Mr Gérard DÉRIOT, Ms Marie-Hélène DES ESGAULX, Mr Éric DOLIGÉ, Mr Michel DOUBLET, Ms Marie-Annick DUCHÊNE, Mr Alain DUFAUT, Mr André DULAIT, Mr Ambroise DUPONT, Mr Louis DUVERNOIS, Mr Jean-Paul EMORINE, Mr André FERRAND, Mr René GARREC, Ms Joëlle GARRIAUD-MAYLAM, Mr Jacques GAUTIER, Mr Patrice GÉLARD, Ms Colette GIUDICELLI, Mr Alain GOURNAC, Mr Charles GUENÉ, Mr Pierre HÉRISSON, Mr Michel HOUEL, Mr Jean-François HIMBERT, Mr Benoît HURÉ, Mr Jean-François HUSSON, Mr Jean-Jacques HYEST, Mr Roger KAROUTCHI, Ms Elisabeth LAMURE, Mr Gérard LARCHER, Mr Robert LAUFOAULU, Mr Daniel LAURENT, 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 Pierre MARTIN, Ms Hélène MASSON-MARET, Mr Jean-François MAYET, Ms Colette MÉLOT, Mr Alain MILON, Mr Albéric de MONTGOLFIER, Mr Louis NÈGRE, Mr Philippe PAUL, Mr Jackie PIERRE, Mr Rémy POINTEREAU, Mr Ladislas PONIATOWSKI, Mr Hugues PORTELLI, 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 Bruno SIDO, Ms Esther SITTLER, Mr André TRILLARD, Ms Catherine TROENDLÉ, Mr François TRUCY and Mr Jean-Pierre VIAL, Senators.

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 Basic Law no. 2009-403 of 15 April 2009 on the application of Articles 34-1, 39 and 44 of the Constitution;

Having regard to Basic Law no. 2010-837 of 23 July 2010 on the application of the fifth subparagraph of Article 13 of the Constitution;

Having regard to the Insurance Code;

Having regard to the Commercial Code;

Having regard to the Consumer Code;

Having regard to the Code of Civil Enforcement Procedures;

Having regard to the Mutual Insurance Code;

Having regard to the Code of Judicial Organisation;

Having regard to the Criminal Code;

Having regard to the Public Health Code;

Having regard to Law no. 78-17 of 6 January 1978 on information technology, data files and personal freedom;

Having regard to Law no. 2010-838 of 23 July 2010 on the application of the fifth subparagraph of Article 13 of the Constitution;

Having regard to Law 2013-672 of 26 July 2013 on the separation and regulation of banking activities;

Having regard to Directive no. 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights;

Having regard to the observations of the Government, registered on 4 March 2014;

Having heard the Rapporteur;

1. Considering that the applicant Members of Parliament and Senators have referred to the Constitutional Court the Law on Consumer Affairs; that the Members of Parliament object to the procedure leading to the adoption of Articles 37, 39, 54 and 67 thereof and call into question the constitutionality of Articles 1, 2, 67, 76, 113, 121, 123, 125 and 130; that the Senators call into question the constitutionality of Articles 1, 9 and 67;

- ARTICLES 1 and 2:

2. Considering that Articles 1 and 2 of the Law concern class actions; that Article 1 supplements title II of book IV of the Consumer Code by a chapter III entitled "Class action", which includes Articles L. 423-1 to L. 423-26; that Article 2 supplements in particular the Code of Judicial Organisation by vesting jurisdiction over such actions in the regional court;

3. Considering that, according to Article L. 423-1 of the Consumer Code, the objective of a class action is to enable the payment of compensation for individual pecuniary losses resulting from material damage "suffered by consumers in an identical or similar situation, the common cause of which was a breach by one business or by the same businesses of their legal or contractual obligations", either in relation to the sale of goods or the provision of services or where this detriment results from certain anti-competitive practices;

4. Considering that the contested provisions establish a procedure comprised of three stages; that the first stage is provided for under Articles L. 423-3 to L. 423-9 and also, in relation to the simplified class action procedure, by Article L. 423-10; that it enables an approved association of consumers to take action before a civil court invoking liability on the part of a business; that if upon completion of this first stage it is considered that the business is liable, the second stage of the procedure, which is regulated by Article L. 423-11 and the second subparagraph of Article L. 423-10, is commenced by the provision of notice to the consumers in order to enable them to join the group and to obtain redress for the harm caused to them; that, in relation to the simplified procedure, this notice is provided individually by the business to the consumers concerned in order to enable them to accept compensation in accordance with the ruling; that the third stage, which is provided for under Articles L. 423-12 to L. 423-14, is intended to resolve the difficulties arising in relation to the enforcement of the judgment and to rule on compensation claims by consumers who joined the group or, in cases involving the simplified procedure, who accepted compensation and who have not been satisfied by the business;

5. Considering that Article L. 423-1 reserves the right of action to approved consumer rights organisations represented on national level; that Article L. 423-3 provides that, upon application by such an association, the court "shall rule on the liability of the business, in view of the individual cases presented", that it "shall define the group of consumers towards which the business has incurred liability and set the criteria for membership of that group", that it "shall determine the forms of harm eligible for compensation for each consumer or each consumer category comprising the group defined by it, along with the amount thereof or any other information enabling such harm to be assessed"; that Articles L. 423-4 and L. 423-5 specify that where it holds that the business has incurred liability, the court shall order appropriate measures in order to inform consumers who may join the group;

6. Considering that Article L. 423-10 provides for a simplified class action procedure which is applicable "where the identity and number of the consumers harmed are known and where these consumers have suffered harm in the same amount, an identical amount for each service rendered or an identical amount with reference to a given period or term"; that, in such cases, after ruling on the liability of the business, the court "may order the latter to pay direct compensation individually within such a time limit and according to such arrangements as it may specify"; that the interested consumers shall be informed individually of the procedure in order to enable them to accept compensation according to the terms of the ruling;

7. Considering that Articles L. 423-11 to L. 423-14 concern the implementation of the judgment, the individual compensation of harm and the enforcement of the judgment; that, within the time limit set by the court pursuant to Articles L. 423-5 and L. 423-10, consumers shall join the group in order for the business to compensate them according to the terms, limits and time limits specified by the judgment issued on conclusion of the first stage; that pursuant to Article L. 423-12, the court shall rule on the difficulties in implementing the judgment and on any questions regarding compensation that the business has not acted upon; that Article L. 423-13 provides that the aforementioned association shall represent consumers who are members of the group but have not been compensated by the business within the time limits specified for the purposes of mandatory enforcement of the judgment given on this occasion;

8. Considering that Articles L. 423-15 and L. 423-16 concern mediation and provide that only the association that acted during the first stage of the proceedings may participate in them and that agreements must be approved by the court;

9. Considering that Articles L. 423-17 to L. 423-19 concern the arrangements specific to class actions in the area of competition law; that Article L. 423-17 provides that a business may only be held liable "on the basis of a ruling issued against the business by the competent national or European Union authorities or ascertaining the breaches, which is not open to appeal by the party with regard to the establishment of these breaches"; that, in such cases, for the purposes of the class action, these breaches "are deemed to have been established irrefutably";

10. Considering that Articles L. 423-20 to L. 423-26 concern the various provisions of the class action procedure and the application of this procedure overseas; that Article L. 423-20 provides that the class action shall suspend the time barring period for individual actions seeking redress for the corresponding harm; that Article L. 423-21 provides that rulings on the liability of the business and those approving a mediated agreement shall have the authority of a final judgment with regard to each of the members of the group whose harm was compensated upon conclusion of the procedure; that Article L. 423-22 provides that membership of the group shall not exclude the right of action according to ordinary legal procedures in order to obtain compensation for harm that does not fall within the scope specified by the court ruling on the liability of the business or by an approved mediated agreement;

11. Considering that the applicants question the constitutionality of the entire simplified class action procedure; that they also dispute the specific procedural provisions applicable in the area of competition law, and finally the procedures governing the entry into force of the law;

The class action:

12. Considering that, according to the applicants, the procedure established by the contested provisions does not guarantee that each consumer will be in a position to provide his or her fully informed consent to the action launched on his or her behalf by the approved association; that the Members of Parliament assert that this results in a breach of the consumers' right to effective judicial relief ; that, according to the Senators, who question in particular the simplified class action procedure, these provisions violate the personal freedom of consumers;

13. Considering that the applicant Members of Parliament also assert that the class action procedure results in a situation where the liability of the business is established by the courts before the class has been established; that the liability of the business is therefore determined by the courts upon conclusion of a procedure in which it does not know either the number or identity of the persons who are likely to claim damages from it; that the contested provisions do not uphold the right of the business to invoke objections and defences that may exclude or reduce its liability towards any specific consumer before the judgment ruling on its liability has been given; that this results in a breach of the right to a fair and equitable trial guaranteeing a fair balance between the rights of the parties;

14. Considering that the applicant Senators raise the same objections against the simplified class action procedure only; that they assert that, within such a procedure, the business is only able to dispute its liability and has no opportunity to challenge the standing of each consumer to claim individual redress for his or her harm; that in particular, the business does not dispose of a right of appeal in order to challenge the judgment ruling on its liability on this matter;

15. Considering that Article 16 of the Declaration of the Rights of Man and the Citizen of 1789 provides that: "A society in which the observance of the law is not assured, nor the separation of powers defined, has no constitution at all"; that the right of persons who are affected to obtain effective judicial redress and the requirement to respect the rights of the defence, which implies in particular the existence of a fair and equitable procedure guaranteeing the rights of the parties, are guaranteed by this provision;

16. Considering in the first place that, as part of the class action procedure provided for under Article L. 423-3, and in the simplified class action procedure provided for under Article L. 423-10, during the first stage of the proceedings, the consumers are not parties to the action between the association of consumers and the business sued; that it follows from the first subparagraph of Article L. 423-4 and from the second subparagraph of Article L. 423-10 that, if the judgment issued upon conclusion of this first stage finds the business liable, measures must be adopted to ensure publicity or the provision of information to consumers in order to enable them to choose whether or not they intend to seek redress for their harm in accordance with this judgment; that finally, Article L. 423-21 stipulates that the rulings provided for under Articles L. 423-3 and L. 423 10 shall only have authority as a final judgment against each member of the group until completion of the proceedings and provided that their harm has been compensated; that accordingly, the objection alleging that the contested provisions have the effect of attracting consumers into proceedings without enabling them to be fully informed of the case is misconstrued in fact;

17. Considering in the second place that, on the one hand, during the first stage of class actions falling under Article L. 423-3, the defendant business in the action may invoke any defence against the allegation that it is liable, the definition of the group of consumers against whom it has incurred liability, the criteria governing membership of this group, the harm eligible for compensation, as well as the amount thereof or any other element enabling the harm to be assessed, in addition to objections relating to the admissibility of this action; that after the consumers have joined the group, during the third stage of the proceedings, it may invoke any other defence relating to the individual compensation of the consumers concerned before the court seized pursuant to Article L. 423-12;

18. Considering that, on the other hand, within simplified class actions falling under Article L. 423-10, the identity and number of consumers harmed are known to the business from the first stage of the proceedings; that the proposal for compensation in accordance with the judgment given pursuant to Article L. 423-10 will only be addressed to consumers thereby identified; that, during the first stage of the proceedings, the business may raise any defences seeking to demonstrate that the terms laid down by this Article have not been met and that it has not incurred liability towards the consumers identified; that after the consumers have been compensated, during the third stage of the proceedings, the business may invoke any other defence relating to the individual compensation of the consumers concerned before the court seized pursuant to Article L. 423-12; that none of the contested provisions limits the right of the parties to the action to exercise the rights of appeal provided for under the law of civil procedure;

19. Considering that, under these terms, the provisions of Articles L. 423-3 and L. 423-10, according to which the first stage of the proceedings is conducted without determining in advance the number and identity of the consumers who actually seek compensation in accordance with the judgment issued upon completion of this stage, do not violate the rights of the defence;

The specific procedures applicable to class actions in the area of competition law:

20. Considering that the applicant Members of Parliament challenge the provisions of Article L. 423-17 of the Consumer Code on the class action procedure in the area of competition law; that they argue that, in providing that the business may only be "held" liable within a class action after the ruling issued by the national or European Union authorities or courts is no longer subject to appeal, these provisions a contrario enable a class action to be "initiated" on this basis even though proceedings before the court or authority competent in the area of competition law have not been definitively concluded; that the objective of such an entitlement is to enable measures or inquiry to be ordered by the court in relation to the class action procedure; that such measures of inquiry are pointless and violate the rights of the businesses given that, when establishing the breaches that may establish liability on the part of the business within the class action, the court is bound by the ruling of the authority or court with competence in the area of competition law;

21. Considering that the Senators challenge the provisions of Article L. 423-19 applicable to class actions in the area of competition law; that they argue that the right of the courts to order provisional enforcement of the judgment ruling on liability as regards publicity violates the presumption of innocence;

22. Considering in the first place that, whilst the provisions of Article L. 423-17 do not prevent a class action in the area of competition law from being initiated on the basis of breaches that have not been established by a ruling not subject to appeal by a competent national or European Union authority or court, the court seized of a class action under such circumstances cannot itself assess the breaches alleged and must defer judgment until the ruling on the breaches is no longer subject to appeal; that the provisions do not violate any requirement of constitutional law;

23. Considering secondly that the publicity ordered pursuant to Article L. 423-19 is intended to enable consumers to come forward during the time limit set; that it does not constitute a penalty with the status of a punishment; that accordingly, the objection alleging a breach of the presumption of innocence is groundless;

24. Considering that according to the above, the objections alleging that this class action procedure violates the requirements laid down by Article 16 of the 1789 Declaration must be rejected;

The entry into force of Articles 1 and 2:

25. Considering that the applicant Members of Parliament argue that in enabling the immediate application of the new procedure to events that occurred prior to the promulgation of the Law, the provisions of Articles 1 and 2 have retroactive effect in breach of the Constitution;

26. Considering however that the contested provisions concern the procedure according to which a business may be held liable towards consumers by the courts; that they do not alter the substantive rules which stipulate the terms for such liability; that accordingly, the immediate application of these provisions does not give them retroactive effect; that the objection must be rejected;

27. Considering that according to all of the above, Articles 1 and 2 of the Law, which do not violate personal freedom or any other requirement of constitutional law, must be ruled constitutional;

- ARTICLE 9:

28. Considering that Article 9 has the objective, in particular, of transposing the provisions of Directive no. 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights; that it redrafts section 2 of chapter I of title II of book I of the Consumer Code, entitled "Distance and off-premises contracts", which includes Articles L. 121-16 to L. 121-24;

29. Considering that the applicant Senators contest more specifically Article L. 121-21-4 on the cooling off period for distance and off-premises contracts; that they argue that the second subparagraph of this Article violates the constitutional law requirement that the law be intelligible and accessible in that the terms used create "uncertainty regarding the latest date on which the business may be obliged to refund";

30. Considering that the first subparagraph of Article L. 121-21-4, as in force following the enactment of Article 9 of the Law referred, provides that "if the withdrawal right is exercised, the business shall be obliged to refund to the consumer the full amount of all sums paid, including delivery costs, without undue delay and at the latest within fourteen days of the date on which it was informed of the consumer's decision to withdraw"; that pursuant to the second subparagraph: "For contracts for the sale of goods, unless it offers to collect the goods itself, the business may defer the refund until the goods have been returned or, if earlier, until the consumer has furnished proof of dispatch of these goods"; that the third subparagraph sets the interest rates applicable to amounts due to the business where a refund occurs after the dates provided for under the previous subparagraph;

31. Considering Article 88-1 of the Constitution provides: “The Republic shall participate in the European Union constituted by States which have freely chosen to exercise some of their powers in common by virtue of the Treaty on European Union and of the Treaty on the Functioning of the European Union, as they result from the treaty signed in Lisbon on 13 December 2007”; that in the absence of any challenge to a rule or principle inherent to the constitutional identity of France, the Constitutional Council is not competent to review the constitutionality of legislation that is limited to drawing the necessary consequences of unconditional and precise provisions of a European Union directive; that in this case, only a court of the European Union to which a preliminary ruling has been referred may review the directive's conformity with the fundamental rights guaranteed by Article 6 of the Treaty on European Union;

32. Considering that the contested provisions correspond verbatim to the unconditional and precise provisions of paragraph 3 of Article 13 of the aforementioned Directive of 25 October 2011; that accordingly, there are no grounds for the Constitutional Council to examine these provisions;

- ARTICLES 37 AND 39:

33. Considering that, according to the applicant Members of Parliament, the provisions of Articles 37 and 39 were introduced by amendment in a manner that was unconstitutional;

34. 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";

35. Considering that the draft bill tabled in the National Assembly included a chapter II dedicated to improved information and the enhancement of the contractual rights of consumers, and included in particular provisions applicable to online sales; that Articles 37 and 39 were introduced by amendment during the first reading in the Senate; that Article 37 abolishes the monopoly of pharmacists and dispensing opticians on the sale of products intended for the maintenance or application of contact lenses; that Article 39 alters the terms governing the issue of lenses to correct refractive errors and corrective contact lenses, in particular in relation to their online sale; that it also lays down new rules on the medical prescription of corrective glasses in order to establish the new terms for the issue of these products as a material possibility; that these provisions, which have in particular the objective of lowering prices and facilitating consumer access to these products, are indirectly linked to the provisions of the initial draft bill; that they were thus adopted according to a constitutional procedure;

- ARTICLE 54:

36. Considering that, according to the applicant Members of Parliament, the provisions introduced by amendment during the first reading of the draft bill in the National Assembly into Article 19-octies were necessary as a support for the adoption during the second reading of an entirely new wording, which replaced the provisions introduced during the first reading; that accordingly, the provisions of Article 19-octies, subsequently Article 54, were adopted according to an unconstitutional procedure;

37. Considering that, according to the scheme of Article 45 of the Constitution, including in particular its first subparagraph, any additions or amendments that may be made by members of Parliament or by the Government to a draft or proposed bill after the first reading must be directly related to the provision under discussion, i.e. where the bill has not been approved in identical form by both houses; that this requirement does not however apply to amendments intended to ensure compliance with the Constitution, to ensure coordination with texts during examination or to correct substantive errors;

38. Considering that the amendment introducing Article 19-octies into the draft bill during the first reading in the National Assembly included a paragraph I on the presentation of a report by Government to Parliament, and a paragraph II introducing a new Article L. 312-9-1 into the Consumer Code on the right of the borrower to replace the insurance contract provided as a guarantee with another contract, provided that the clauses of the mortgage agreement do not exclude this possibility; that during the second reading before the National Assembly, Article 19-octies, subsequently Article 54, was redrafted; that the provisions thereupon introduced, which amend Article L. 312-9 of the Consumer Code and Article L. 221-10 of the Mutual Insurance Code and create a new Article L. 113-12-2 in the Insurance Code, establish a unilateral right of termination at no charge for insurance contracts provided as a guarantee for a mortgage loan and lay down new rules on the termination of insurance contracts by insurers; that the amendment introduced to paragraph II of Article 60 of the aforementioned Law of 26 July 2013 defers from January 2014 to July 2014 the entry into force of the provisions of that Article concerning the provision of information to persons who request insurance for a mortgage loan and the acceptance as a guarantee of an insurance contract by the lender; that during the second reading before the Senate, the provisions introduced during the second reading before the National Assembly were supplemented by the introduction into the Commercial Code of a new Article L. 312-32-1, which punishes with a fine the failure to comply with the new obligations introduced to Article L. 312-9 of that Code; that the additions made during the second reading in the National Assembly and the Senate were, at the stage of the procedure during which they were introduced, directly related to a provision under discussion; that accordingly, the objections alleging that the procedure used to adopt Article 54 was unconstitutional must be rejected;

- ARTICLE 67:

39. Considering that Article 67 concerns the creation of a national register of consumer loans to natural persons not acting in the course of business entitled the "national register of consumer loans"; that in particular, paragraph III of Article 67 introduces a new section into the Consumer Code including Articles L. 333-6 to L. 333-21, which is dedicated to this processing of personal data; that paragraphs I, II and IV to X of the same Article arrange for various necessary forms of coordination;

40. Considering that Article L. 333-6 establishes the national register of consumer loans to national persons; that Article L. 333-7 provides that this register "shall have the goal of preventing situations of excessive debt for natural persons not acting in the course of business"; that Articles L. 333-8 to L. 333-13 concern the information which must be included in this register and the terms governing its consultation and retention; that Article L. 333-14 lays down the obligations of professional secrecy applicable to the persons and institutions participating in the management of the register; that Articles L. 333-15 to L. 333-18 concern the penalties incurred if the obligations thereby established are not complied with; that articles L. 333-19 and L. 333-20 concern the procedures regulating consultation of the register by financial establishments and bodies; that Article L. 333-21 specifies the scope of the provisions of Articles L. 333-6 to L. 333 20;

41. Considering that the applicants argue that, owing to the scope of the register, the sensitive nature of the information contained and the procedures regulating its consultation, the creation of a national register of consumer loans disproportionately constitutes a privacy breach, which is not justified by the objective pursued by Parliament; that accordingly, the provisions of Article 67 are unconstitutional; that, according to the applicant Members of Parliament, the same applies to Articles 68 to 72, which are indissociable from the former;

42. Considering that the applicant Members of Parliament also argue that, whereas the initial draft bill did not contain any provision on the fight against excessive debt, the introduction of such a reform to the law to fight excessive debt without an impact study violates the requirements laid down by Article 39 of the Constitution on the presentation of an impact study as well as the principles of clarity and sincerity within parliamentary debate;

The procedure for adopting Article 67:

43. Considering that the third subparagraph of Article 39 of the Constitution provides that: "The tabling of Government Bills before the National Assembly or the Senate shall comply with the terms determined by an organic law"; that pursuant to Article 8 of the aforementioned organic law of 15 April 2009: "Draft bills shall be subject to an impact study. The documents setting out the results of this impact study shall be appended to the draft laws upon transmission to the Conseil d'État. They shall be filed with the bureau of the first assembly to take action at the same time as the draft bills to which they refer";

44. 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";

45. Considering that the draft bill included a chapter II dedicated to credit and insurance at the time it was filed with the bureau of the National Assembly, the first assembly to take action;

46. Considering that a new Article 22a, subsequently Article 67, on the creation of a register listing consumer loans to natural persons not acting in the course of business was introduced during the first reading before the National Assembly pursuant to a Government amendment;

47. Considering first that this Article is indirectly related to the provisions included in the draft Consumer Affairs Bill;

48. Considering secondly that, as the provision was introduced by amendment, the grievance resulting from the violation of the requirements applicable to the tabling of draft bills is misconstrued;

49. Considering thirdly that, according to the travaux preparatoires, the procedure used for adopting this Article did not have the effect of altering the clarity and sincerity of parliamentary debate and did not violate any other requirement of constitutional standing; that the objection alleging the violation of the requirements of clarity and sincerity of debate must be rejected;

50. Considering that, accordingly, Article 67 was adopted according to a constitutional procedure;

The grievance resulting from the privacy breach:

51. Considering that the freedom proclaimed by Article 2 of the 1789 Declaration implies the right to respect for private life; that accordingly, the collection, registration, storage, consultation and disclosure of personal data must be justified by a reason of general interest and implemented in a manner that is adequate and proportionate with this objective;

52. Considering that the arrangement of processing for personal data with the goal of registering consumer loans contracted by natural persons for their non-business requirements, payment defaults relating to loans signed by such persons as well as information relating to situations of excessive debt and judicial liquidation aims to prevent situations of excessive debt more effectively and at an earlier stage by providing financial establishments and bodies with information enabling them to assess the solvency of natural persons who apply for a loan or who act as guarantors at the time the loan is granted, and consequently to assess the risk more effectively; that, by creating a national register of consumer loans, Parliament pursued a goal of general interest in preventing situations of excessive debt;

53. Considering that the information included in the national register of consumer loans is listed in paragraph IV of Article L. 333-10 of the Consumer Code; that it includes information relating to the marital status of the person who signed the loan, the details of the establishment or body that made the declaration, the details, category and characteristics of the loan, payment defaults, situations of excessive debt and judicial liquidations previously ordered, the date of the most recent update and the reason for and date of consultations; that pursuant to Article L. 333-11, the information relating to loans shall be stored for the term of the loan agreement; that information relating to payment defaults shall be stored until payment in full of the amounts due, although the period for which such information is stored may not exceed five years from the date on which the payment default was registered; that information relating to situations of excessive debt shall be stored for the duration of enforcement of the plan or measures, although the period for which such information is stored may not exceed seven years; that information relating to civil bankruptcy procedures, judicial liquidation procedures or a partial cancellation of debts shall be stored until expiry of a period of five years from the date of approval or conclusion of the procedure; that the processing of personal data thereby entailed is thus intended to collect and store over a number of years precise and detailed data relating to a large number of natural persons with debts;

54. Considering that Article L. 333-8 of the Consumer code provides for the mandatory consultation of this register by financial establishments and bodies "prior to any actual decision to grant a consumer loan" and "before offering a renewable loan agreement to the borrower and as part of the three-year review of the borrower's solvency"; that the Article authorises consultation of this register by municipal credit unions prior to any actual decision to grant a loan backed up by collateral and by financial establishments or bodies in relation to persons acting as guarantors for the granting of a consumer loan; that it also authorises the consultation solely of the information from this register relating to payment defaults, situations of excessive debt and judicial liquidation by financial establishments and bodies "before they make an offer" of a real estate loan or an equity release loan, and that it provides that such information may also "be taken into account by these establishments and bodies as part of their decisions to grant means of payment and in the management of risks associated with loans signed by their clients"; that it finally prevents the information contained in the register from being consulted or used for purposes other than those expressly stipulated, under penalty of the sanctions laid down by Article 226-21 of the Criminal Code; that the register may moreover be consulted pursuant to Article L. 333-9 by excessive debt boards when performing their mission to deal with situations of excessive debt as well as the registries of the competent courts during proceedings relating to situations of excessive debt; that the register may thus be consulted many times and in very different circumstances;

55. Considering that Article L. 333-19 authorises financial establishments and bodies to use the information collected during consultation of the register within automatised data processing systems;

56. Considering that Article L. 333-20 subjects consultation of the register by financial establishments and bodies to a requirement of individual authorisation and approval, according to specific procedures within the financial establishments and bodies; that by delegating the arrangements governing the application of this requirement of authorisation to a Decree of the Conseil d'État, Parliament did not limit the number of people employed by these establishments and bodies who are eligible for authorisation to consult the register;

57. Considering that according to the above, having regard to the nature of the registered data, the scope of processing, the frequency of usage, the large number of people likely to have access to it and the inadequacy of guarantees relating to access to the register, the contested provisions constitute a privacy breach that cannot be regarded as proportionate with the goal pursued; that accordingly, Article 67 must be ruled unconstitutional; that the same consequently applies to Articles 68 to 72, which are inseparable from the former;

- CERTAIN PROVISIONS OF ARTICLES 76, 113, 121, 123 and 125:

58. Considering that Article 76, which is included in chapter V of the Law referred entitled "Modernisation of instruments of control of the administrative authority responsible for consumer protection and adaptation of the sanction system", amends Article L. 141-1 of the Consumer Code; that in particular it expands the powers of the administration responsible for competition, consumption and fraud prevention by enabling it to record offences or breaches of various provisions relating to consumer protection and to impose administrative sanctions;

59. Considering that, in particular, Article 76 introduces a paragraph VII into Article L. 141-1, the first subparagraph of which reiterates the provisions previously in force according to which officials authorised to ascertain minor offences or breaches of the provisions referred to under paragraphs I to III may order any business to comply with their orders, to desist from all unlawful action or to remove any unlawful clause within a reasonable period; that the same subparagraph also states that the order is only applied to the business after a procedure in which it has the right to make representations; that the second subparagraph of paragraph VII provides that, if the business does not comply with such an order within the time limit set, the administrative authority may impose an administrative fine on it, subject to the terms laid down in Article L. 141-1-2, which may not exceed EUR 1,500 for a natural person or EUR 7,500 for a legal person if the minor offence or breach that justified the order is punished by a fine equal at least to that provided for in relation to class five infringements or by an administrative fine of at least EUR 3,000 for a natural person or EUR 15,000 for a legal person; that the maximum amount of the administrative fine is brought to EUR 3,000 for a natural person or EUR 15,000 for a legal person where the infraction or breach that justified the order is punished by a criminal penalty or a fine in excess of EUR 3,000 for natural persons or EUR 15,000 for legal persons;

60. Considering that Article 113 of the Law introduces an Article L. 141-1-2 into the Consumer Code which lays down rules on the administrative fine system punishing breaches of paragraphs I to III of Article L. 141-1 and the failure to comply with the orders provided for under paragraph VII of the same Article; that in particular, paragraph IV of Article L. 141-1-2 provides that "prior to any decision, the administration shall inform in writing the person involved of the sanction to be imposed against it, indicating that it may consult the case file and may be assisted by a lawyer of its choosing, and inviting it to present its written observations and, as the case may be, its oral observations within sixty days" and that "upon expiry of this time limit, the administrative authority may impose the fine, by a ruling supported by reasons"; that moreover, paragraph VI provides that "where an administrative fine is eligible for accumulation with a criminal fine imposed on the perpetrator of the breach in relation to the same conduct, the global amount of the fines imposed may not exceed the higher maximum statutory amount"; that pursuant to paragraph VII of the same Article, "where more than one administrative penalty has been imposed during the same procedure or in separate procedures against the same perpetrator for multiple breaches liable to fines the maximum amount of which exceeds EUR 3,000 for a natural person or EUR 15,000 for a legal person, these penalties shall be applied cumulatively, subject to the limit of the highest maximum statutory amount";

61. Considering that Article 121 of the Law introduces a title VIa entitled "Orders and administrative sanctions" after section VI of book IV of the Commercial Code, which includes Articles L. 465-1 and L. 465 2; that paragraph I of Article L. 465-1 concerns officials who are authorised, subject to the terms laid down in paragraph II of Article L. 450-1 of the Commercial Code, to seek out and ascertain minor offences or breaches of the obligations laid down by section IV of book IV of the Code on transparency, anti-competitive practices and other prohibited practices; that, following a hearing in which the right to make representations is guaranteed, these officials may order any business to comply with its obligations, to desist from all unlawful action or to remove any unlawful clause within a reasonable period; that pursuant to paragraph II of Article L. 465-1, if the business does not comply within the time limit set with an order served on it in relation to a minor offence or breach liable to an administrative fine, the administrative authority with powers over competition and consumption may impose an administrative fine against it, which may not exceed EUR 3,000 for a natural person or EUR 15,000 for a legal person; that Article L. 465-2 lays down the rules governing the administrative fine system punishing the breaches referred to under title IV of book IV of the Commercial Code along with the failure to comply with the orders provided for under Article L. 465-1; that in particular, paragraph IV of Article L. 465-2 provides that "prior to any decision, the administration shall inform in writing the person involved of the sanction to be imposed against it, indicating that it may consult the case file and be assisted by a lawyer of its choosing, and inviting it to present its written observations and, as the case may be, its oral observations within sixty days" and that "upon expiry of this time limit, the administrative authority may impose the fine, by a ruling supported by reasons"; that paragraph VI of the same Article provides that "where an administrative fine is eligible for accumulation with a criminal fine imposed on the perpetrator of the breach in relation to the same conduct, the global amount of the fines imposed may not exceed the higher maximum statutory amount"; that paragraph VII provides that "where more than one administrative penalty has been imposed during the same procedure or in separate procedures against the same perpetrator for multiple breaches liable to fines, these penalties shall be applied cumulatively, subject to the limit of the highest maximum statutory amount";

62. Considering that Article 123 of the Law amends Article L. 441-6 of the Consumer Code which obliges every producer, service provider, wholesaler or importer to give notice of their general terms and terms of sale to every buyer of goods or any recipient of services who requests them in the course of business; that in particular, Article 123 supplements this Article by a paragraph VI which provides that "the failure to comply with the payment terms referred to in the eighth, ninth and eleventh subparagraphs of paragraph I of this Article, the failure to state in the terms of settlement the information included in the first phrase of the twelfth subparagraph of paragraph I, the setting of a default interest rate or terms for enforcing late payment penalties in a manner not compatible with this subparagraph and the failure to comply with the arrangements for calculating payment terms agreed upon between the parties in accordance with the ninth subparagraph of the said paragraph I shall establish liability to an administrative fine which may not exceed EUR 75,000 for a natural person or EUR 375,000 for a legal person. The fine shall be imposed in accordance with the terms provided for under Article L. 465-2. The amount of the fine imposed shall be doubled in the event that the breach is repeated within two years of the date on which the first ruling imposing the penalty became definitive"; that paragraph VI specifies that "subject to the same penalties, any clause or practice that has the effect of unduly delaying the start date for the payment deadlines referred to under this Article shall be prohibited";

63. Considering that Article 123 also amends Article L. 443-1 of the Commercial Code on payment terms in relation to the sale of perishable, frozen or deep-frozen foodstuffs, purchases of live cattle and derived fresh meat and alcoholic drinks; that the last subparagraph of Article L. 443-1 as in force following the enactment of Article 123 provides that breaches of the provisions of Article L. 443-1 and of those governing payment deadlines for inter-trade agreements provided for under letter b) of subparagraph 4 of the same Article shall be punished by a fine which may not exceed EUR 75,000 for a natural person or EUR 375,000 for a legal person; that it also specifies that "the fine shall be imposed in accordance with the terms laid down under Article L. 465-2 of this Code" and that "the amount of the fine imposed shall be doubled in the event that the breach is repeated within two years of the date on which the first ruling imposing the penalty became definitive";

64. Considering that Article 125 of the Law amends Article L. 441-7 of the Consumer Code which requires that a written agreement concluded between a supplier and distributor or service provider shall state the obligations to which the parties have committed with the aim of setting the price upon conclusion of the commercial negotiation; that paragraph II of Article L. 441-7, as in force following the enactment of Article 125, provides that the failure to provide evidence of the conclusion of such an agreement within the time limits specified shall establish liability to an administrative fine which may not exceed EUR 75,000 for a natural person or EUR 375,000 for a legal person; that it also specifies that "the fine shall be imposed in accordance with the terms laid down under Article L. 465-2" and that "the maximum amount of the fine imposed shall be doubled in the event that the breach is repeated within two years of the date on which the first ruling imposing the penalty became definitive";

65. Considering that Article 125 also introduces an Article L. 441-8 into the Commercial Code, according to which contacts with a period of performance in excess of three months relating to the sale of goods included in the list provided for under the second subparagraph of Article L. 442-9, the production costs of which are affected significantly be fluctuations in the prices of agricultural and food raw materials, shall contain a clause on the arrangements applicable to the renegotiation of prices, thereby enabling such upward or downward fluctuations to be taken into account; that the second-last subparagraph of Article L. 441-8 provides that the failure to provide for a renegotiation clause in accordance with the provisions of the first two subparagraphs of Article L. 441-8, the failure to comply with the time limit set in the third subparagraph of the same Article, the failure to draw up the statement of account provided for under the third subparagraph or the breach during the course of renegotiation of manufacturing secrets or business secrets shall establish liability to an administrative fine which may not exceed EUR 75,000 for a natural person or EUR 375,000 for a legal person; that the second-last subparagraph of Article L. 441-8 also provides that "the fine shall be imposed in accordance with the terms laid down under Article L. 465-2" and that "the maximum amount of the fine imposed shall be doubled in the event that the breach is repeated within two years of the date on which the first ruling imposing the penalty became definitive";

66. Considering that, according to the applicant Members of Parliament, the provisions of Article 76 in conjunction with those of Articles 113, 121, 123 and 125 (which specifically increase the level of sanctions that may be imposed by the administration responsible for competition, consumption and fraud prevention) violate the rights to a defence; that they also argue, owing to their disproportionate nature, these fines jeopardise the activity of the businesses and freedom of enterprise;

The powers of the administrative authority:

67. Considering that pursuant to Article 16 of the 1789 Declaration: "A society in which the observance of the law is not assured, nor the separation of powers defined, has no constitution at all"; that the principle of the separation of powers, or any other principle or rule of constitutional standing, does not preclude an administrative authority, acting within the scope of its prerogatives as a public authority, from exercising a power to impose penalties insofar as necessary to fulfil its mission, provided that the exercise of this power is associated by law with measures intended to ensure protection for rights and freedoms guaranteed under the Constitution; that in particular, the principle of the legality of criminal offences and punishments as well as the right to a defence - which are applicable to any sanction having the character of a punishment, even if the legislature delegated the task of imposing it to an authority of a non-judicial nature - must be respected;

68. Considering that, according to the statement of reasons for the draft bill, in enacting the contested provisions, Parliament sought to establish "administrative sanctions as an alternative to criminal and civil sanctions in cases involving the failure to comply with certain provisions of consumer law" and competition law; that these provisions, which are listed by Article L. 141-1 of the Consumer Code, as amended by Article 76, include in particular those on unfair commercial practices and certain unlawful commercial practices, consumer credit, mortgages, including in particular usurious interest rates, duties to provide information to consumers and the conclusion of contracts, provisions on the sale of unsolicited goods by mail, the rights of rail travellers or passengers travelling by sea, inland waterways, coach or bus and provisions on the technical report in cases involving the sale of a newly built property; that Article 121 of the Law referred also implements an administrative sanction system applicable in the event of a breach of the rules prohibiting anti-competitive commercial practices;

69. Considering that, pursuant to Articles 76, 113 and 121 of the Law, the administrative authority with powers over competition and consumption is competent on the one hand to ascertain minor offences and breaches of the obligations imposed by these various provisions, to order the business to comply with them, to desist from all unlawful action or to remove any unlawful clause, and on the other hand to impose administrative fines punishing the breaches ascertained or the failure to comply with the orders; that, according to the principle requiring respect for the right to a defence, in each case the order to comply with its obligations or to desist from all unlawful action is issued to the business after a procedure in which it is able to make representations; that before imposing any sanction, the administration shall inform the business involved of the sanctions to be imposed against it, indicating that it may consult the case file and may be assisted by a lawyer of its choosing; that the administration must also invite the business to present its written observations and, as the case may be, its oral observations within sixty days; that upon expiry of this time limit, the administrative authority may impose the fine, by a ruling supported by reasons; that it shall be for the administrative courts with competence to rule on disputes relating to such administrative sanctions to oversee compliance with the procedure laid down by Parliament; that in enacting the contested provisions, Parliament did not violate the aforementioned requirements of constitutional law;

The fine amounts:

70. Considering that pursuant to Article 8 of the 1789 Declaration: "The law shall provide for such punishments only as are strictly and obviously necessary, and no one shall suffer punishment except it be legally inflicted in virtue of a law passed and promulgated before the offence was committed"; that the principles laid down by this Article apply not only to the penalties issued by the criminal courts but also to any penalty with the nature of a punishment;

71. Considering that Article 611 of the Constitution does not grant the Constitutional Council any general power of appreciation and decision making of the same nature as that of Parliament, but solely grants it competence to rule on the compatibility of the laws referred to it for examination with the Constitution; that, whilst the requirement as to whether penalties be associated with offences falls within the power of appreciation of Parliament, it is for the Constitutional Council to ensure that there is no manifest imbalance between the offence and the penalty imposed;

72. Considering that the fines provided for under paragraph VII of Article L. 141-1 of the Consumer Code as in force following the enactment of Article 76 of the Law referred and paragraph II of Article L. 465-1 of the Commercial Code as in force following the enactment of Article 121 of the Law referred may not exceed EUR 3,000 for a natural person or EUR 15,000 for a legal person; that these fines, which punish breaches of the provisions referred to under paragraphs I to III of Article L. 141-1 of the Consumer Code and the provisions of title IV of book IV of the Commercial Code are not in themselves manifestly disproportionate in nature;

73. Considering that the administrative fines provided for under paragraph VI of Article L. 441-6 of the Commercial Code and subparagraph 4 of Article L. 443-1 of the same Code as in force following the enactment of Article 123 of the Law and paragraph II of Article L. 441-7 of the same Code as in force following the enactment of Article 125 of the Law and the fourth subparagraph of Article L. 441-8, introduced into the Commercial Code by Article 125, may not exceed EUR 75,000 for a natural person or EUR 375,000 for a legal person unless the breach is repeated within two years of the date on which the first ruling imposing the penalty became definitive; that in such cases, the amount of the fine imposed is doubled; that these fines, which punish breaches of the provisions referred to in paragraph I of Article L. 441-6, Article L. 443-1, paragraph I of Article L. 441-7 and Article L. 441-8 of the Commercial Code are not in themselves manifestly disproportionate in nature;

74. Considering however that Article 123 of the Law referred has not amended the last subparagraph of paragraph I of Article L. 441-6 of the Commercial Code, according to which "the failure to comply with the payment terms referred to in the eighth, ninth and eleventh subparagraphs, the failure to state in the terms of settlement the information included in the first phrase of the twelfth subparagraph and the setting of a default interest rate or terms for enforcing late payment penalties in a manner not compatible with this subparagraph shall be punished by a fine of EUR 15,000"; that paragraph VI of Article L. 441-6 of the Commercial Code, as in force following the enactment of Article 123 of the Law referred, punishes the same conduct by an administrative fine of EUR 75,000 for a natural person or EUR 375,000 for a legal person; that accordingly, depending upon the text establishing the offence upon which the enforcement authorities base their action, conduct classified by the Law in an identical manner may establish liability for the perpetrator either to a fine of EUR 15,000 or alternatively to a fine of EUR 75,000 for a natural person or EUR 375,000 for a legal person; that this difference in treatment is not justified by any difference in circumstances that is directly related to the object of the law; that having regard to its importance, the difference between the penalties incurred violates the principle of equality before the law;

75. Considering that, accordingly, in paragraph VI of Article L. 441-6 of the Commercial Code, as in force following the enactment of Article 123 of the Law referred, the word: "eight", the phrase: "and eleventh" and the phrase: "the failure to state in the terms of settlement the information included in the first phrase of the twelfth subparagraph of paragraph I, the setting of a default interest rate or terms for enforcing late payment penalties in a manner not compatible with this subparagraph" must be ruled unconstitutional;

76. Considering that the remainder of paragraph VI of Article L. 441-6 and the last subparagraph of Article L. 443-1 of the Commercial Code as in force following the enactment of Article 123 of the Law are constitutional; that paragraph VII of Article L. 141-1 of the Consumer Code as in force following the enactment of Article 76 of the Law, Article L. 141-1-2 of the Code as in force following the enactment of Article 113 of the Law, Articles L. 465-1 and L. 465-2 of the Commercial Code as in force following the enactment of Article 121 of the Law, paragraph II of Article L. 441-7 of the Commercial Code, and the fourth subparagraph of Article L. 441-8 of the Code as in force following the enactment of Article 125 of the Law are constitutional;

- ARTICLE 130:

77. Considering that Article 130 of the Law referred amends various articles of the Consumer Code, and in particular increases the criminal sanctions provided for;

78. Considering that, pursuant to subparagraph 1 of paragraph I of Article 130, the amount of the fine laid down by the first subparagraph of Article L. 115-20 of the Consumer Code relating to the issue or usage of a red label, Article L. 115-22 on the issue or usage of a protected designation of origin, a protected geographical indication or a traditional speciality guaranteed, Article L. 115-24 on the issue or usage of the reference "organic agriculture", Article L. 115-26 on the issue or usage of a certificate of conformity for agricultural produce and foodstuffs, Article L. 115-30 on the issue of a credential, certificate or any other document attesting that a product or service has characteristics that have been subject to certification or on the usage of any means likely to induce the belief that an organisation is able to issue such certification has been increased from EUR 37,500 to EUR 300,000;

79. Considering that paragraph III of Article 130 of the Law increases from EUR 37,500 to EUR 300,000 the amount of the fine provided for under Article L. 121-6 of the Consumer Code which punishes misleading commercial practices and provides that "the amount of the fine may be increased, in proportion with the benefits obtained from the breach, to 10% of average annual turnover obtained from the last three annual turnover amounts known at the time the actions were committed, or to 50% of the expenditure incurred for advertising or for the practice constituting the offence";

80. Considering that paragraph IV of Article 130 increased from EUR 15,000 to EUR 150,000 the amount of the fine provided for under Article L. 121 79-2 of the Consumer Code, which punishes the presentation by any business to a consumer of an offer to conclude a contract relating to the use of timeshare properties, long-term holiday products, or resale and exchange that does not comply with Articles L. 121-63 to L. 121-65; that the same paragraph amends Article L. 121-79-3 , increasing from EUR 30,000 to EUR 300,000 the amount of the fine which punishes the direct or indirect demand of or receipt from the consumer of any payment or commitment to pay on any grounds and in any form whatsoever prior to expiry of the cooling off period provided for under Articles L. 121-69, L. 121-70 and L. 121-71;

81. Considering that paragraph VI of Article 130 increases from EUR 4,500 to EUR 300,000 the amount of the fine provided for under Article L. 122-7 of the Consumer Code which punishes the breach of the rules on sales or services according to pyramid schemes and provides that "the amount of the fine may be increased, in proportion with the benefits obtained from the breach, to 10% of average annual turnover obtained from the last three annual turnover amounts known at the time the actions were committed";

82. Considering that paragraph VII of Article 130 increases from EUR 9,000 to EUR 375,000 the amount of the fine provided for under Article L. 122-8 of the Consumer Code which punishes the minor offence of facility and circumvention and specifies that "the amount of the fine may be increased, in proportion with the benefits obtained from the breach, to 10% of average annual turnover obtained from the last three annual turnover amounts known at the time the actions were committed";

83. Considering that paragraph IX of Article 130 increases from EUR 150,000 to EUR 300,000 the amount of the fine provided for under Article L. 122-12 of the Consumer Code which punishes the pursuit of aggressive commercial practise and provides that the amount of this fine "may be increased, in proportion with the benefits obtained from the breach, to 10% of average annual turnover obtained from the last three annual turnover amounts known at the time the actions were committed";

84. Considering that, according to the applicant Members of Parliament, due to their disproportionate nature, these sanctions may jeopardise the activity of businesses and violate freedom of enterprise;

85. Considering that, Article 8 of the 1789 Declaration provides that: "The law shall provide for such punishments only as are strictly and obviously necessary... "; that pursuant to Article 34 of the Constitution: "Statutes shall determine the rules concerning... the determination of serious crimes and other major offences and the penalties they carry"; that Article 61 of the Constitution does not grant the Constitutional Council any general power of appreciation and decision making of the same nature as that of Parliament; that, whilst the assessment regarding the necessity of the penalties associated with the minor offences falls within the power of appreciation of Parliament, it is for the Constitutional Council to ensure that there is no manifest disproportion between the minor offence and the penalty incurred;

86. Considering that, by the contested provisions Parliament established various criminal penalties, some of which are expressed as a percentage of the turnover of the business that is directly related to the breaches ascertained; that in themselves, these criminal penalties are not manifestly disproportionate; that however, where an administrative sanction may be cumulated with a criminal sanction, the proportionality principle implies that, under all circumstances, the global amount of any sanctions imposed may not exceed the higher maximum amount of the sanctions incurred; that it thus falls to the competent administrative and judicial authorities to oversee compliance with this requirement;

87. Considering that it follows from all of the above that, subject to the reservation stated in the previous recital, the provisions of subparagraph 1 of paragraph I of Article 130, the first two subparagraphs of Article L. 121-6 of the Consumer Code as in force following the enactment of paragraph III of Article 130, subparagraphs 1 and 2 of paragraph IV of Article 130, the first two subparagraphs of Article L. 122-7 of the same Code as in force following the enactment of paragraph VI of Article 130, the first two subparagraphs of Article L. 122-8 of the same Code as in force following the enactment of paragraph VII of Article 130, and Article L. 122-12 of the same Code as in force following the enactment of paragraph IX of Article 130 are constitutional;

- ARTICLE 149:

88. Considering that Article 149 introduces the function of Chairman of the Online Gambling Regulatory Authority into the table annexed to the aforementioned Law of 23 July 2010 which determines the standing commissions of the houses of Parliament with competence to state their opinion on the appointments to positions or duties such as those specified under the aforementioned Organic Law of 23 July 2010 on the basis of the fifth subparagraph of Article 13 of the Constitution;

89. Considering that the Law referred was definitely approved on 13 February 2014; that on this date, the draft version of the organic law on the appointment of the Chairman of the Online Gambling Regulatory Authority was pending examination before Parliament and was likely to be substantially altered, or even not to be adopted definitively; that accordingly, Parliament could not include the name of the Online Gambling Regulatory Authority Chairman in the list of appointments for which the opinions of the standing commissions of the houses of Parliament is to be obtained pursuant to the fifth subparagraph of Article 13 of the Constitution; that accordingly, Article 149 must be ruled unconstitutional;

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

HELD:

Article 1.- The following provisions of the Law on Consumer Affairs are unconstitutional:

- Articles 67 to 72;

- in paragraph III of Article 123, the word: "eight", the phrase: "and eleventh" and the phrase: "the failure to state in the terms of settlement the information included in the first phrase of the twelfth subparagraph of paragraph I, the setting of a default interest rate or terms for enforcing late payment penalties in a manner not compatible with this subparagraph", included in paragraph VI of Article 441-6 of the Commercial Code;

- Article 149.

Article 2.- Subject to the reservation stated in recital 86, the following provisions of Article 130 are constitutional:

- in subparagraph 1 of paragraph I, the amendments made to Articles L. 115-20, L. 115-22, L. 115-24, L. 115-26 and L. 115-30 of the Consumer Code;

- in paragraph III, the first two subparagraphs of Article L. 121-6 of the Consumer Code;

- in subparagraphs 1 and 2 of paragraph IV, the amendments made to Articles L. 121-79-2 and L. 121-79-3 of the Consumer Code;

- in paragraph IV, the amendments made to the first two subparagraphs of Article L. 122-7 of the Consumer Code;

- in paragraph VII, the amendments made to the first two subparagraphs of Article L. 122-8 of the Consumer Code;

- in paragraph IX, the amendments made to Article L. 122-12 of the Consumer Code;

Article 3.- The following provisions of the same Law are ruled constitutional:

- Articles 1 and 2;

- in subparagraph 5 of paragraph I of Article 76, paragraph VII of Article L. 141-1 of the Consumer Code;

- in Article 113, Article L. 141-1-2 of the Consumer Code;

- in Article 121, Articles L. 465-1 and L. 465-2 of the Commercial Code;

- in paragraph III of Article 123, the remainder of paragraph VI of Article L. 441-6 of the Commercial Code;

- in subparagraph 4 of paragraph VI of Article 123, the last subparagraph of Article L. 443-1 of the Commercial Code;

- in subparagraph 2 of paragraph I of Article 125, paragraph II of Article L. 441-7 of the Commercial Code;

- in paragraph II of Article 125, the fourth subparagraph of Article L. 441-8 of the Commercial Code;

Article 4.- This ruling shall be published in the Journal Officiel of the French Republic.

Deliberated by the Constitutional Council in its session of 13 March 2014, sat on by: Mr Jean-Louis DEBRÉ, President, Ms Claire BAZY MALAURIE, Ms Nicole BELLOUBET, Mr Guy CANIVET, Mr Michel CHARASSE, Mr Renaud DENOIX de SAINT MARC, and Ms Nicole MAESTRACCI.