Return to homepage
Français
English
Deutsch
Español
Italiano

Decision no. 2011-157 QPC of 5 August 2011

Return to homepagePrint this pageMake this page a PDF documentAdd to bookmarks Reduce fontIncrease font

SOMODIA company [Prohibition of work on Sundays in Alsace-Moselle]

On 31 May 2011 the Constitutional Council, in the conditions provided for by Article 61-1 of the Constitution, received from the Cour de Cassation (criminal chamber, decree no. 3036 of 24.05.11) an application for a priority preliminary ruling on the issue of constitutionality raised by the company SOMODIA, regarding the conformity of Article L.3134-11 of the Labour Code with the rights and freedoms guaranteed by the Constitution.

THE CONSTITUTIONAL COUNCIL,

Having regard to the Constitution;

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

Having regard to the Labour Code;

Having regard to the law of 17 October 1919, relating to the transitory regime of Alsace and Lorraine;

Having regard to the law of 1 June 1924 putting into force the French civil legislation in the Departments of Bas-Rhin, Haut-Rhin and Moselle;

Having regard to the law of 1 June 1924 concerning the introduction of the French commercial laws in the Departments of Bas-Rhin, Haut-Rhin and Moselle;

Having regard to the ordinance of 15 September 1944 relating to the re-establishment of the republican legality in the Departments of Bas-Rhin, Haut-Rhin and Moselle;

Having regard to the Regulation of 4 February 2010 on the procedure applicable before the Constitutional Council with respect to applications for priority preliminary rulings on the issue of constitutionality;

Having regard to the observations of the Prime Minister, registered on 22 June 2011;

Having regard to the documents produced and appended to the case files;

Having heard Bruno Odent Esq., attorney at the Conseil d'État and the Cour de cassation, for the applicant company, and Mr. Xavier Pottier, appointed by the Prime Minister, at the public hearing of 19 July 2011;

Having heard the Rapporteur;

1. Considering that pursuant to Article L. 3134-11 of the Labour Code: “When it is prohibited, pursuant to articles L. 3134-4 to L. 3134-9, to employ employees in commercial operations, it is also prohibited during these days to proceed with an industrial, commercial or craft operation in the places of sale to the public. This provision also applies to the commercial activities of consumer cooperatives or associations”; that article L. 3134-1 of the same code provides, that this provision is applicable only in the Departments of Bas-Rhin, Haut-Rhin and Moselle;

2. Considering that, according to the applicant company, while prohibiting to proceed with an industrial, commercial or craft operation on Sundays in the places of sale to the public, this provision would institute, in violation of the principle of equality of the citizens before the law, a local rule that the regulation of common right would not know; that moreover, by its general and absolute character, this prohibition would violate the constitutional principle of freedom of enterprise in a disproportionate manner;

3. Considering that under Article 3 of the law of 17 October 1919 relating to the transitory regime of Alsace and Lorraine, adopted following the re-establishment of the sovereignty of France on these territories: “The territories of Alsace and Lorraine continue, until the introduction of the French laws, to be governed by the legislative and statutory provisions which are currently in force there”; that the laws proceding with the introduction of the French laws and especially the two laws of 1 June 1924 putting into force the French civil legislation and concerning introduction of the French commercial laws into the Departments of Bas-Rhin, Haut-Rhin and Moselle have expressly maintained in force in these Departments certain former legislations or enacted special rules for a limited duration which was extended by successive laws; that finally, according to Article 3 of the Ordinance of 15 September 1944 relating to the re-establishment of the republican legality in the Departments of Bas-Rhin, Haut-Rhin and Moselle: "The legislation in force. . . on 16 June 1940 has remained only applicable and is temporarily maintained in force”;

4. 4. Considering that thus, the republican legislation former to the coming into effect of the Constitution of 1946 has accepted the principle according to which, as long as they have not been replaced by the provisions of common right or harmonised with them, the legislative and statutory measures particular to the Departments of Bas-Rhin, Haut-Rhin and Moselle can remain in force; that in the absence of their abrogation or their harmonisation with the common right, these specific measures can be adapted only insofar as the differences of treatment which result from them are not increased and that their field of application is not widened; that such is the scope of the basic principle recognised by the laws of the Republic as regards applicable specific measures in the three Departments in question; that this principle must also be reconciled with the other constitutional requirements;

- WITH RESPECT TO THE PRINCIPLE OF EQUALITY:

5. Considering that the disputed provision is one of the special rules former to 1919 and which have been maintained in force by the effect of the above mentioned laws; that it follows that the objection drawn of the violation of the principle of equality between the Departments of Bas-Rhin, Haut-Rhin and Moselle, on the one hand, and the other Departments, on the other hand, must be ruled out;

WITH RESPECT TO THE FREEDOM OF ENTERPRISE:

6. Considering that freedom of enterprise stems from Article 4 of the Declaration of the Rights of Man and the Citizen of 1789; that however the legislator is free to subject this freedom to limitations associated with constitutional requirements or justified by the general interest, in the condition that this does not result in harm that is disproportionate in relation to the pursued goal;

7. Considering, firstly, that Article L. 3134-2 of the Labour Code provides: “The employment of employees in industrial, commercial or craft companies is prohibited on Sundays and bank holidays, except in the cases envisaged by this chapter”; that the provisions of Article L. 3134-11, consequently, result in prohibitting the exercise of an industrial, commercial or craft activity on Sundays in the places of sale open to the public; that, by these provisions, the legislator aims at preventing that the exercise of the weekly time off of the people who work in these establishments does not disadvantage the businesses according to their size; that it has in particular taken into account the situation of small businesses which do not have employees; that the purpose of these provisions is to frame conditions of competition between the businesses, irrespective of their size or legal status of the people who work there; that, consequently, they respond to a reason of general interest;

8. Considering, secondly, that while maintaining, notwithstanding certain provisions of title III of Book 1 of the third part of the Labour Code, the special local regime according to which the right to weekly time off of the employees is exerted on Sunday, the legislator, which is competent pursuant to Article 34 of the Constitution to determine the basic principles of the labour law, has brought about a conciliation, which is not obviously disproportionate, between the freedom of enterprise and the requirements of the tenth subparagraph of the Preamble to the Constitution of 1946 which lays out: “The Nation provides the individual and the family the necessary conditions for their development”;

9. Considering that the contested provisions are not contrary to any other right or freedom guaranteed by the Constitution,

HELD:

Article 1. - Article L. 3134-11 of the Labour Code is constitutional.

Article 2.- This decision shall be published in the Journal Officiel of the French Republic and notified in the conditions provided for under Article 23 -11 of the Ordinance of 7 November 1958 referred to hereinabove.

Deliberated by the Constitutional Council in its session of 4 August 2011, sat on by: Mr Jean-Louis DEBRÉ, President, Mr Jacques BARROT, Mrs Claire BAZY MALAURIE, Mr Guy CANIVET, Mr Michel CHARASSE, Mr Renaud DENOIX de SAINT MARC, Mrs Jacqueline de GUILLENCHMIDT, and Mr Pierre STEINMETZ.

Announced on 5 August 2011.