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Decision no. 2012-258 QPC of 22 JUNE 2012

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Établissements Bargibant S.A. [New Caledonia - Validation - Monopoly on the importation of meat]

On 11 April 2012, 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. 356339 of 11 April 2012) on behalf of Établissements Bargibant S.A., raising the conformity of the single Article of dependent territory law no. 2011-6 of 17 October 2011 validating the acts adopted pursuant to Articles 1 and 2 of resolution no. 116/CP of 26 May 2003 on the regulation of the importation of meat and offal into New Caledonia with the rights and freedoms guaranteed by the Constitution.

THE CONSTITUTIONAL COUNCIL,

Having regard to the Constitution;

Having regard to the agreement on New Caledonia signed in Nouméa on 5 May 1998;

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

Having regard to the basic law no. 2009-1523 of 10 December 2009 on the application of Article 61-1 of the Constitution;

Having regard to basic law no. 99-209 of 19 March 1999 on New Caledonia;

Having regard to dependent territory law no. 2011-6 of 17 October 2011 validating the acts adopted pursuant to Articles 1 and 2 of resolution no. 116/CP of 26 May 2003 on the regulation of the importation of meat and offal into New Caledonia;

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 made on behalf of the applicant company by SCP MonodColin, Attorneys at the Conseil d'État and the Cour de Cassation, registered on 10 May 2012 and 30 May 2012;

Having regard to the observations made on behalf of the President of the Government of New Caledonia by SCP Ancel-Couturier-Meier, Attorneys at the Conseil d'État and the Cour de Cassation, registered on 9 May 2012;

Having regard to the observations of the President of the Congress of New Caledonia, registered on 10 May 2012;

Having regard to the observations of the Prime Minister, registered on 31 May 2012;

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

Having heard Alain Monod Esq. for the applicant, Frédéric Ancel Esq. for the Government of New Caledonia and Mr Xavier Pottier, appointed by the Prime Minister, at the public hearing of 1 June 2012;

Having heard the Rapporteur;

THE PROVISIONS REFERRED TO THE CONSTITUTIONAL COUNCIL FOR REVIEW:

1. Considering that pursuant to the single Article of the aforementioned dependent territory law no. 2011-6 of 17 October 2011: "Without prejudice to any court orders which have become res judicata, the regulatory and individual acts adopted pursuant to Articles 1 and 2 of resolution no. 116/CP of 26 May 2003 on the regulation of the importation of meat and offal into New Caledonia shall be valid notwithstanding that their lawfulness has been contested on the grounds that the exclusive right which the provisions grant the office of marketing and refrigerated storage over the importation of meat and offal of bovine, suidian, ovine, caprine, equine and cervid species causes an excessive violation to the principle of freedom of trade and industry which is not justified by sufficient reasons of general interest";

2. Considering that Article 99 of the aforementioned basic law of 19 March 1999 defined the scope of dependent territory laws for New Caledonia and that Article 107 granted them the "force of law" in relation to such matters; that on the one hand paragraphs three and four of the latter Article make provision for a procedure according to which, upon an application by an administrative court, the President of the Congress, the President of the Government, the President of a Provincial Assembly or the High Commissioner, the Conseil d'État may rule, as the case may be, that a provision of a dependent territory law has been enacted in excess of the scope defined under Article 99; that on the other hand, Article 3 of the aforementioned basic law of 10 December 2009 on the application of Article 61-1 of the Constitution introduced a paragraph into Article 107 according to which: "The provisions of a dependent territory law may be the object of a priority preliminary ruling on the issue of constitutionality, in accordance with the rules laid down by Articles 23-1 to 23-12 or Ordinance no. 58-1067 of 7 November 1958 concerning the basic law on the Constitutional Council"; that according to these provisions of Article 107, the procedure governing the review of a priority preliminary ruling on the issue of constitutionality relating to a dependent territory law of New Caledonia precludes the application of the provisions of the third and fourth paragraphs of Article 107;

3. Considering that the contested dependent territory law was adopted in accordance with the procedure provided for under Articles 100 to 103 of the aforementioned basic law of 19 March 1999; that since that time it has not been the object of a decision by the Conseil d'État ruling that it was enacted in excess of the matters specified under Article 99; that accordingly, it is a provision which may be the object of a priority preliminary ruling on the issue of constitutionality;

THE CONSTITUTIONALITY OF THE CONTESTED PROVISIONS:

4. Considering that, according to the applicant company, in validating the monopoly granted to the office of marketing and refrigerated storage (office de commercialisation et d'entreposage frigorifique, OCEF) over the importation of meat and offal of bovine, suidian, ovine, caprine, equine and cervid species into New Caledonia, the contested provisions violate the constitutional requirements applicable to the validation laws and to the freedom of enterprise;

5. Considering that the contested provisions were adopted following the judgment of the administrative court of New Caledonia of 9 August 2007 and the judgment of the Paris administrative court of appeal of 1 February 2010; that they had the object, on the one hand, of re-establishing the monopoly established under resolution no. 116/CP of 26 May 2003 granting the OCEF exclusive rights over the importation into New Caledonia of meat and offal of bovine, suidian, ovine, caprine, equine and cervid species and, on the other hand, of validating acts adopted pursuant to Articles 1 and 2 of this resolution;

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, provided that this does not result in harm that is disproportionate in relation to the pursued goal;

7. 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 according to this provision, if the legislator can modify a rule of law or validate an administrative act or private right retroactively, it is on condition of pursuing an objective of sufficient general interest and respecting final judgments and the principle of non-retroactivity of penalties and sanctions; that, moreover, the amended or validated act must not fail to have regard to any rule or constitutional principle, unless the general interest being pursued is itself of constitutional value; and that the scope of the modification or validation must be strictly defined;

8. Considering on the one hand that the OCEF is a public industrial and commercial establishment charged with a "public service mission of regulating the market for meat in New Caledonia"; that its creation in 1963 was intended to protect local meat production and to assure the proper supply of the territory's populace; that, within the ambit of this mission, the aforementioned resolution of 26 May 2003 also granted the OCEF a monopoly over the importation of meat; that having regard to the particular circumstances of New Caledonia and the supply needs of the local market, the violation of the freedom of enterprise by the monopoly granted to the OCEF in furtherance of its public service mission under the resolution of 26 May 2003 is not disproportionate; that accordingly, the objection alleging the violation of the freedom of enterprise must be rejected;

9. Considering on the other hand that the legislator has validated the regulatory and individual acts adopted pursuant to Articles 1 and 2 of the resolution of 26 May 2003 "notwithstanding that their lawfulness has been contested on the grounds that the exclusive right which the provisions grant the office of marketing and refrigerated storage over the importation of meat and offal of bovine, suidian, ovine, caprine, equine and cervid species causes an excessive violation to the principle of freedom of trade and industry which is not justified by sufficient reasons of general interest"; that nevertheless no sufficient reason of general interest justifies the applicability of these provisions to proceedings which were pending before the courts on the date of entry into force of the contested dependent territory law; that accordingly, the latter can only apply to actions initiated after that date; that subject to this reservation, the contested provisions do not violate Article 16 of the 1789 Declaration or any other right or freedom guaranteed by the Constitution,

HELD :

Article 1. – Subject to the reservation stated in recital 9, the single Article of dependent territory law no. 2011-6 of 17 October 2011 validating the acts adopted pursuant to Articles 1 and 2 of resolution no. 116/CP of 26 May 2003 on the regulation of the importation of meat and offal into New Caledonia 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 21 June 2012, 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, Mr Hubert HAENEL and Mr Pierre STEINMETZ.

Announced on 22 June 2012.