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Decision no. 2011-199 QPC of 25 NOVEMBER 2011

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Mr Michel G. [Regulations governing veterinarians]

On 22 September 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 nos. 350385, 350386 and 350387 of 21 September 2011) on behalf of Mr Michel GOURMELON, raising the conformity of Articles L. 2426, L. 2427 and L. 2428 of the Rural and Marine Fishing Code with the rights and freedoms guaranteed by the Constitution.

THE CONSTITUTIONAL COUNCIL,

Having regard to the Constitution;

Having regard to Ordinance no. 581067 of 7 November 1958 as amended, concerning organic law on the Constitutional Council;

Having regard to the Rural and Marine Fishing 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 filed on behalf of the applicant by Thomas Crochet Esq., registered on 14 and 29 October 2011 and 8 November 2011;

Having regard to the observations of the Prime Minister, registered on 14 and 31 October 2011;

Having regard to the letter of 03 November 2011 by which the Constitutional Council submitted to the parties an objection that it had standing to raise;

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

Having heard Thomas Crochet, Esq. on behalf of the applicant and Mr Xavier Pottier, appointed by the Prime Minister, at the public hearing on 16 November 2011;

Having heard the Rapporteur;

1. Considering that pursuant to Article L. 2426 of the Rural and Marine Fishing Code: "The disciplinary chamber shall punish all breaches of professional duties by veterinary surgeons and veterinary doctors";

2. Considering that pursuant to Article L. 242-7 of that Code: "The disciplinary chamber may impose the following penalties:

"1. a warning;

"2. a reprimand, which may be accompanied by a ban on membership of a Council of the Order for a period not exceeding ten years;

"3. Temporary suspension of the right to practise the profession for a period not exceeding ten years within an area which may not be larger than the jurisdiction of the regional chamber ordering the suspension. This penalty shall result in the ineligibility of the interested party to sit on a Council of the Order for the full term of the suspension;

"4. The temporary suspension of the right to practise the profession for a period not exceeding ten years throughout metropolitan France and the overseas departments. This penalty shall entail the definitive ban on membership of a Council of the Order.

"The practise of the profession during the period of suspension shall result in liability for the penalties applicable to the illegal practice of animal medicine and surgery.

"Once a period equal to one half of the duration of the suspension has passed, the veterinary surgeon or veterinary doctor concerned may be released from the ban on practising by decision of the disciplinary chamber which imposed the ban. The application shall be made by request submitted to the president of the regional Council of the Order which imposed the ban; the Council shall reach a decision within three months of the time the request was submitted.

"Any decision to reject the request may be appealed against to the Supreme Council of the Order.

"The disciplinary penalties provided for under this Article shall be notified to the Supreme Council of the Order within a period not exceeding one month";

3. Considering that pursuant to Article L. 242-8 of that Code: "Appeals may be made against the decisions of the regional disciplinary chambers to the Supreme Disciplinary Council. It is comprised of members of the Supreme Council of the Order and an honorary counsellor to the Cour de Cassation or, in his absence, a counsellor in active service, who shall be appointed by the First President of the Cour de Cassation and who shall chair the Council.

"The Supreme Disciplinary Chamber may be seised within two months of the time it was notified of the decision of the regional disciplinary chamber either by the interested party or by the authors of the complaint.

"The appeal shall have suspensory effect";

4. Considering that, according to the applicant, in not specifying a time barring period for proceedings in relation to disciplinary offences by veterinary surgeons, the contested provisions violate the fundamental principle recognised under the laws of the Republic requiring that a time barring rule apply in relation to disciplinary matters; that moreover in providing that the Supreme Disciplinary Council is to include, with the exception of its Chairman, members of the Supreme Council of the Order of Veterinarians, the rules on the composition of the disciplinary body violate the principle of the impartiality and independence of adjudicatory bodies;

WITH RESPECT TO THE CHALLENGES ALLEGING THE VIOLATION OF THE CONSTITUTIONAL REQUIREMENTS APPLICABLE TO DISCIPLINARY PROCEEDINGS AND PENALTIES;

5. Considering that no law of the Republic prior to the 1946 Constitution set forth any principle whereby disciplinary proceedings must necessarily be subject to a time barring rule; that accordingly, the challenge alleging that the contested provisions violate a fundamental principle recognised by the Law of the Republic on the time barring of disciplinary proceedings must be rejected;

6. Considering that Article 8 of the Declaration of the Rights of Man and the Citizen of 1789 provides: "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 commission of the offence"; that the principles thereby enunciated relate not only to the penalties issued by the criminal courts but also extend to any penalty with the nature of a punishment;

7. Considering that, on the one hand, when it is applied outwith the criminal law, the requirement that punishable offences be defined is satisfied, in relation to disciplinary matters, when the applicable texts refer to the obligations to which the interested parties are subject by virtue of the activity which they carry on, the profession of which they are a member or the institutional role which they perform;

8. Considering that on the other hand 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 legislative provisions placed before it for examination with the rights and freedoms guaranteed under 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 in relation to disciplinary matters that there is no manifest imbalance between the disciplinary penalties incurred and the obligations, the breach of which they seek to punish;

9. Considering in the first place that according to Article L. 2477 of the aforementioned Code, the disciplinary penalties applicable to veterinary surgeons or veterinary doctors in cases involving a breach of their professional duties are: a warning, a reprimand, temporary suspension of the right to practise the profession for a period not exceeding ten years either within an area which may not be larger than the jurisdiction of the regional chamber ordering the suspension or throughout metropolitan France and the overseas departments; that, in cases involving temporary suspensions, once a period equal to one half of the duration of the suspension has passed, the veterinary surgeon or veterinary doctor concerned may be released from the ban on practising by decision of the disciplinary chamber which imposed the ban; that, unless only a warning is issued, the disciplinary penalties issued may, depending upon the circumstances, be accompanied by a temporary or definitive ban on membership of one or all Councils of the Order of Veterinarians; that the disciplinary penalties thereby established do not violate the requirements set forth in Article 8 of the 1789 Declaration;

10. Considering secondly that although the principle that punishments must be proportional implies that the time which has passed between the offence and the ruling may be taken into account when determining the penalty, it is for the competent disciplinary authority to ensure that this requirement is complied with then applying the contested provisions; that, under these conditions, these provisions do not violate Article 8 of the 1789 Declaration;

WITH RESPECT TO THE CHALLENGES ALLEGING THE VIOLATION OF THE PRINCIPLES OF THE INDEPENDENCE AND IMPARTIALITY OF ADJUDICATORY BODIES:

11. Considering that Article 16 of the 1789 Declaration provides: "A society in which the observance of the law is not assured, nor the separation of powers defined, has no constitution at all"; that these provisions guarantee the principles of independence and impartiality, which are indissociable from the exercise of adjudicatory functions, as well as the respect for the rights of the defence in proceedings involving a penalty with the nature of a punishment;

12. Considering in the first place that Article L. 2428 of the aforementioned Code provides that the Supreme Disciplinary Chamber "is comprised of members of the Supreme Council of the Order and an honorary counsellor to the Cour de Cassation or, in his absence, a counsellor in active service, who shall be appointed by the First President of the Cour de Cassation and who shall chair the Council"; that the fact that the members of the disciplinary board are, with the exception of one judge, also active members of the Council of the Order, does not in itself have the effect of violating the requirements that this body be independent and impartial;

13. Considering secondly that the contested provisions do not have the objective and could not have the effect of permitting a member of the Supreme Council of the Order of Veterinarians who had initiated disciplinary proceedings or carried out investigative acts from sitting on the Supreme Disciplinary Chamber;

14. Considering thirdly that the disciplinary procedure applicable to veterinary surgeons and veterinary doctors who are subject to the requirements referred to above does not fall within the area of legislation but, subject to review by the competent courts, within the area of regulations; that accordingly, the challenge alleging that the contested legislative provisions do not establish procedural rules to guarantee that these requirements are respected must be rejected;

15. Considering that it follows from the above that, subject to the reservation specified in recital 13, the challenge alleging the violation of the principles of the independence and impartiality of adjudicatory bodies must be rejected;

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

HELD:

Article 1 Subject to the reservation set out in recital 13, Article 242-8 of the Rural and Marine Fishing Code is constitutional.

Article 2. Articles L. 2426 and L. 2427 of the same Code are constitutional.

Article 3. – 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 24 November 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, Mr Hubert HAENEL and Mr Pierre STEINMETZ.

Announced on 25 November 2011.

Journal officiel of 26 November 2011, p 20016 (@ 73)