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Decision no. 2011-181 QPC of 13 OCTOBER 2011

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Mr Antoine C. [Conscientious objection and calculation of the employee's length of service in the public service]

On 13 July 2011 the Constitutional Council, in the conditions provided for by Article 61-1 of the Constitution, received an application for a priority preliminary ruling on the issue of constitutionality raised by the Conseil d'État (decision no. 349660 of 13 July 2011) on behalf of Mr Antoine C., concerning the compliance with the rights and freedom of Article 63 of the National Service Code of the Constitution, as drafted pursuant to the Law no. 71-424 of 10 June 1971 enacting the National Service Code.

THE CONSTITUTIONAL COUNCIL,

Having regard to the Constitution;

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

Having regard to the National Service Code;

Having regard to Law no. 71-424 of 10 June 1971 enacting the National Service Code;

Having regard to Law no. 83-605 of 8 July 1983 amending the National Service Code;

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 on behalf of the applicant by CJA Public Chavent-Mouseghian, Attorney at the Saint-Étienne bar, registered on 1, 9 and 29 August 2011;

Having regard to the observations on behalf of the intervener Mr Alain C., registered on 1 August and 12 September 2011;

Having regard to the observations on behalf of the intervener Mr Jean-Pierre A. by SCP J. Barthélemy, O. Matuchansky & C. Vexliard, Attorneys at the Conseil d'État and the Cour de Cassation, registered on 2 August 2011;

Having regard to the observations of the intervener Mr André C., registered on 5 August 2011;

Having regard to the observations of the Prime Minister, registered on 10 august 2011;

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

Having heard Esq. Yves Chavent on behalf of the applicant and Mr Xavier Pottier, appointed by the Prime Minister, at the public hearing on 4 October 2011;

Having heard the Rapporteur;

1. Considering that Article L. 63 of the National Service Code, as drafted pursuant to the aforementioned Law of 10 June 1971 provides: "Men who have complied with their obligations for active national service and those who have acted in accordance with this Code shall be deemed to have complied with the obligations required under Article 16 of Ordinance no. 59-244 of 4 February 1959 on the general status of officials and Article 16 of Ordinance no. 58-1270 of 22 December 1958 enacting the basic law on the status of the judiciary.

"The period of active national service performed according to one of the forms specified under Title III shall be entirely taken into account when calculating the employee's length of service required for promotion or retirement for public officials .

"Compulsory periods of military service or civilian service in addition of active national service shall be entirely taken into account for the purpose of promotion and retirement";

2. Considering that, according to the applicant, these provisions, which exclude officials who completed their national service as conscientious objectors before the entry into force of the aforementioned Law of 8 July 1983, violate the principle of equality before the law;

3. Considering that the priority preliminary ruling on constitutionality pertains to the second paragraph of Article L. 63 of this Code, as drafted pursuant to the aforementioned Law of 10 June 1971;

4. Considering that Article 6 of the 1789 Declaration of the Rights of Man and the Citizen provides that the law “must be the same for all, whether it protects or punishes”; that the principle of equality does neither prevent the legislator from resolving different situations in different ways, nor from derogating from equality on the grounds of the general interest, provided that in both cases the resulting difference in treatment is directly related to the objective of the law establishing it;

5. Considering that, on the one hand, by reserving the reinstatement of length of service to young men who completed their national service under the conditions provided for under Title III of the said Code, the contested provisions prevent conscientious objectors who fell under Title II, prior to the enactment of the Law of 8 July 1983, from benefiting from that measure; that pursuant to Article 41 of the National Service Code, as drafted pursuant to the Law of 10 June 1971: "Young men who, prior to their incorporation, declare that, due to their religious or philosophical convictions, they are opposed under all circumstances to the personal use of firearms, may be granted the right to comply with the national service obligations. . . either in an unarmed military unit or in a civilian unit that carries out work of general interest"; that, on the other hand, by enacting the contested provisions, the legislator meant to treat this period in an equivalent manner to that of service performed in the public service for the purpose of determining the retirement rights of public officials; that in so doing, provision was made that the period of active national service be taken into account for public officials for its actual duration when calculating the length of service required for promotion or retirement; that, as a result, by preventing conscientious objectors from benefiting from this measure, he created an unjustified difference in treatment, with regard to the law;

6. Considering that it follows from the above that, in the second paragraph of Article L. 63 of the National Service Code, as drafted pursuant to the aforementioned Law of 10 June 1971, the words: "performed according to one of the forms specified under Title III" must be ruled unconstitutional; that this declaration of unconstitutionality shall take effect starting from the publication of this decision; that it may be relied upon in applications pending on that date, with outcomes depending on the provisions that have been ruled unconstitutional;

7. Considering that the remainder of the second paragraph of Article L. 63 of the National Code, as drafted pursuant to the Law of 10 June 1971, is not contrary to any right or freedom guaranteed by the Constitution,

HELD:

Article 1. - In the second paragraph of Article L. 63 of the National Service Code, as drafted pursuant to Law no. 71-424 of 10 June 1971 enacting the National Service Code, the words: "performed according to one of the forms specified under Title III," are unconstitutional.

Article 2 . The declaration of unconstitutionality of Article 1 shall take effect on the date of publication of this decision in the conditions set down by recital 6.

Article 3. - The remainder of the second paragraph of Article L. 63 of the National Service Code, as drafted pursuant to the above Law, is constitutional.

Article 4. – 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 on 13 October 2011, sat on by: Mr. Jean-Louis DEBRÉ, President, Mr. Jacques BARROT, Mrs Claire BAZY MALAURIE, Mr. Guy CANIVET, Mr. Renaud DENOIX de SAINT MARC, Mrs Jacqueline de GUILLENCHMIDT, Mr. Hubert HAENEL and Mr. Pierre STEINMETZ.

Announced on 13 October 2011.

Journal officiel of 15 October 2011, p 17464 (@ 76)