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Decision no. 2011-211 QPC of 27 JANUARY 2012

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Mr Éric M. [Regulations governing notaries]

On 27 October 2011, the Constitutional Council, according to the terms 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 Cour de cassation (first civil division, judgment no. 1112 of 27 October 2011) on behalf of Mr Éric M. concerning Article 4 of Ordinance no. 451418 of 28 June 1945 laying down regulations applicable to notaries and certain ministerial officers.

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 Ordinance no. 451418 of 28 June 1945 laying down regulations applicable to notaries and certain ministerial officers;

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 18 October and 5 December 2011;

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

Having heard Mr Xavier Pottier, appointed by the Prime Minister, at the public hearing on 10 January 2012;

Having heard the Rapporteur;

Having regard to the letter of 19 January 2012 by which the Constitutional Council submitted to the parties an objection that it had standing to raise;

Having regard to the observations filed by the Prime Minister regarding the challenge raised ex officio, registered on 23 January 2012;

Having regard to the observations filed on behalf of the applicant by SCP Claire LE BRETDESACHÉ, Attorney to the Conseil d'État and the Cour de Cassation, regarding the challenge raised ex officio, registered on 23 January 2012;

1. Considering that pursuant to Article 4 of Ordinance no. 451418 of 28 June 1945 laying down regulations applicable to notaries and certain ministerial officers: "The penalties set forth hereunder in numbers 1 to 4 may be accompanied by a complementary penalty of temporary ineligibility for membership of professional chambers, bodies and councils for a period not exceeding ten years.

"The ban and dismissal may also be accompanied by permanent ineligibility for membership of professional chambers, bodies and councils.

"Notaries and ministerial officers who have been removed from office shall not be included in the electoral rolls established for the exercise of civil rights";

2. Considering that, according to the applicant, the penalties provided for under the second and third subparagraphs of this Article violate the principles that penalties be necessary and individually determined;

3. 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 it follows that these principles only apply to penalties and sanctions with the nature of a punishment;

4. Considering in the first place that the permanent ineligibility for membership of professional chambers, bodies and councils provided for under the second subparagraph of Article 4 of the aforementioned Ordinance of 28 June 1945 is the automatic consequence of a ruling imposing a ban or removal from office; that, nevertheless, such ineligibility is not intended to ensure additional punishment of professionals who have been subject to disciplinary sanctions but, on the one hand, to draw the consequences of the loss of the status as a public official or a ministerial official, and on the other hand to guarantee the integrity and moral standing of professionals sitting on the representative bodies of their profession by excluding those who have been subject to the most severe disciplinary punishments; that accordingly, the ineligibility provided for under the second subparagraph does not amount to a sanction having the nature of a punishment; that accordingly, the objections alleging the violation of Article 8 of the 1789 Declaration are inapplicable to such situations;

5. Considering secondly that the definitive ban on inclusion in the electoral roll provided for under the third subparagraph of the contested provision does not have the purpose of guaranteeing the integrity or moral standing which are indispensable for the exercise of the duties of a public official or a ministerial official; that accordingly, it must be regarded as a sanction having the nature of a punishment;

6. Considering that the principle that penalties must be individual in nature resulting from Article 8 of the 1789 Declaration implies that a penalty depriving an individual of civil rights may only be applied pursuant to the express ruling of a court, taking account of the individual circumstances specific to his case;

7. Considering that the ban on inclusion in the electoral roll provided for under the third subparagraph of the contested provision is an automatic consequence of the removal, and is not subject to any requirement for a ruling by a court; that furthermore, this ban, which is definitive in nature, cannot be reversed; that accordingly, the third subparagraph of Article 4 of the Ordinance of 28 June 1945 violates the principle that penalties are to be determined individually and must be ruled unconstitutional;

8. Considering that the second paragraph of Article 62 of the Constitution provides: “A provision declared unconstitutional on the basis of Article 611 is repealed as from the publication of the decision of the Constitutional Council or at a later date stipulated in the decision. The Constitutional Council determines the conditions and the limits according to which the effects produced by the provision are subject to revision"; whilst, as a matter of principle, the declaration of unconstitutionality must benefit the party submitting the priority question on constitutionality and the provision ruled unconstitutional cannot be applied to proceedings in progress at the time the decision of the Constitutional Council is published, the provisions of Article 62 of the Constitution grant the Council the power both to set the date of repeal and to defer its effects as well as to provide for the review of the effects that the provision generates before this declaration takes effect;

9. Considering that the repeal of the third subparagraph of Article 4 of the Ordinance of 28 June 1945 shall take effect upon publication of this decision; that it shall permit the interested parties to request, as of the date of publication of this decision, that they immediately be included in the electoral roll under the conditions specified by law;

10. Considering that the first and second subparagraphs of the contested provision do not violate any right or freedom guaranteed under the Constitution,

HELD:

Article 1. The third subparagraph of Article 4 of Ordinance no. 451418 of 28 June 1945 laying down regulations applicable to notaries and certain ministerial officers is 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 its recital 9.

Article 3. The first and second subparagraphs of Article 4 of the same Ordinance are 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 26 January 2012, sat on by: Mr JeanLouis DEBRÉ, President, Mr Jacques BARROT, Ms Claire BAZY MALAURIE, Mr Guy CANIVET, Mr Michel CHARASSE, Mr Renaud DENOIX de SAINT MARC, Ms Jacqueline de GUILLENCHMIDT, Mr Hubert HAENEL and Mr Pierre STEINMETZ.

Announced on 27 January 2012.