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Decision no. 2012-279 QPC of 5 OCTOBER 2012

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Mr Jean-Claude P. [Arrangements governing the circulation of travellers]

On 17 July 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. 359223 of 17 July 2012) on behalf of Jean-Claude P., raising the conformity of Articles 2 and 11 of Law no. 69-3 of 3 January 1969 on the exercise of ambulatory activities and the arrangements applicable to persons travelling in France without a fixed place of abode or residence 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 the basic law on the Constitutional Council;

Having regard to Law no. 69-3 of 3 January 1969 on the exercise of ambulatory activities and the arrangements applicable to persons travelling in France without a fixed abode or residence;

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 applicants by Olivier Le Mailloux Esq., Attorney at the Marseille Bar, registered on 27 July and 3 September 2012;

Having regard to the observations in intervention on behalf of the Association "France liberté voyage" ["France, freedom to travel"] by Henri Braun Esq., Attorney at the Paris bar, registered on 2 August 2012;

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

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

Having heard Le Mailloux Esq. on behalf of the applicant, Braun Esq. on behalf of the intervener association and Mr Xavier Pottier, appointed by the Prime Minister, at the public hearing on 25 September 2012;

Having heard the Rapporteur;

1. Considering that pursuant to Article 2 of the aforementioned Law of 3 January 1969: "Individuals who have not had a fixed place of abode or residence within a Member State of the European Union for more than six months must carry a circulation book which shall be issued by the administrative authorities;

"Any individuals accompanying those referred to in the previous subparagraph and their employees shall, provided that they are older than sixteen years of age and have not had a place of abode or residence in France for more than six months, be issued with an identical circulation book;

"Employers shall ensure that their employees actually hold this document, insofar as required to do so";

2. Considering that Article 3 of the Law provides that: "With the exception of those referred to under Article 2, any individuals older than sixteen years of age who have not had a fixed place of abode or residence for more than six months shall be issued with one of the circulation permits provided for under Articles 4 and 5 as a prerequisite for the right to circulate within France if they permanently live in a vehicle, a trailer or any other mobile unit";

3. Considering that Article 4 of the Law provides that: "Where the individuals referred to under Article 3 are able to furnish proof of regular income guaranteeing them normal living conditions, in particular through the conduct of salaried employment, they shall be issued with a circulation book which shall be officially validated by the administrative authorities at intervals of at least three months. An identical book shall be issued to individuals dependent upon them";

4. Considering that Article 5 of the Law provides that: "Where the individuals referred to under Article 3 do not comply with the conditions laid down under the previous Article, they shall be issued with a circulation booklet which shall be officially validated by the administrative authorities every three calendar months;

"Any person who circulates without having previously obtained such a booklet shall be liable to a term of imprisonment of between three months and one year";

5. Considering that Article 6 of the Law provides that: "The circulation permits may not be issued to individuals arriving from abroad unless they are able to furnish certain proof of their identity;

"The validity of the special circulation book provided for under Article 2, and of the booklets and books provided for under Articles 3, 4 and 5, shall be extended by the administrative authorities on a rolling basis";

6. Considering that Article 7 of the Law provides that: "Any individual who applies for a circulation permit provided for in accordance with the above Articles shall be required to specify the municipality with which he wishes to be associated;

"The declaration of association shall be issued by the prefect or deputy prefect upon receipt of an opinion supported by reasons from the mayor";

7. Considering that Article 8 of the Law provides that: "The number of individuals holding a circulation permit without a fixed place of abode or residence who are attached to any given municipality may not exceed 3% of the municipal population as calculated during the most recent census;

"If this percentage is reached, the prefect or deputy prefect shall invite the individual making the declaration to choose another municipality for association;

"The prefect may, acting in accordance with the conditions to be specified by decree of the Conseil d'État, specify that exceptions be made from the rule laid down in the first subparagraph of this Article, in particular in order to ensure family unity";

8. Considering that Article 9 of the Law provides that: "The choice of the municipality of association shall remain valid for a minimum period of two years. An exception may be granted if justified by circumstances of a particularly serious nature. Any application to change the municipality of association shall be accompanied by supporting documentation attesting the existence of the links which the interested party has established in another municipality of his choosing";

9. Considering that Article 10 of the Law provides that: "The declaration of association provided for under the previous Articles shall produce all or part of the effects associated with the place of abode, residence or work, in accordance with the conditions to be specified by decree of the Conseil d'État, with regard to:

"The celebration of marriage;

"Inclusion in the electoral register, upon request by the interested parties, after conclusion of a period of uninterrupted association with the same municipality of three years;

"Compliance with obligations under tax law;

"Compliance with the obligations provided for under social security law and the law on assistance to unemployed workers;

"The obligation to complete national service.

"Attachment with a municipality shall not have the status of a fixed and specific place of abode. It shall not entail the transfer of State expenditure to the local authorities, in particular with regard to social security costs";

10. Considering that Article 11 of the Law provides that: "Decrees to be adopted by the Conseil d'État shall determine the procedures governing the application of Titles I and II, including in particular the conditions under which the circulation permits shall be issued and renewed and the information which they must contain, the procedures governing special controls enabling the authorities to satisfy themselves that the holders of the circulation permits referred to under Articles 2, 3, 4 and 5 and underage children under their authority have actually complied with the health protection measures laid down under the laws and regulations in force and the conditions under which the mayor is required to issue a reasoned opinion in accordance with Article 7 and under which the individuals who hold a circulation permit may furnish proof justifying an exception in accordance with Article 9";

11. Considering that the applicant and the intervener association object to the arrangements governing the circulation permits established in accordance with Articles 2 to 6, along with the rules applicable to the municipality of association provided for under Articles 7 to 10;

– WITH RESPECT TO THE APPLICABLE PROVISIONS OF THE CONSTITUTION:

12. Considering, on the one hand, that Article 1 of the Declaration of the Rights of Man and the Citizen of 1789 provides: "Men are born and remain free and equal in rights. Social distinctions may be founded only upon the general good"; that pursuant to Article 1 of the Constitution: "France shall be an indivisible, secular, democratic and social Republic. It shall ensure the equality of all citizens before the law, without distinction of origin, race or religion... » ;

13. Considering that Article 6 of the 1789 Declaration provides that the law must be “the same for all, whether it protects or punishes”; that the principle of equality neither prevents the legislator from settling different situations in different ways, nor does it depart from equality in the general interest, provided that in both cases the resulting difference in treatment is directly related to the subject matter of the law providing for the different treatment;

14. Considering on the one hand that pursuant to Article 34 of the Constitution, statutes shall determine the rules concerning the fundamental guarantees granted to citizens for the exercise of their civil liberties; that, within the ambit of this mission, it is for the legislature to strike the necessary balance between respect for freedoms and the requirement to safeguard public order, without which the exercise of freedoms would not be assured;

15. Considering that the administrative policing measures liable to affect the exercise of freedoms guaranteed under the Constitution, including the freedom of movement, comprising the personal freedom protected under Articles 2 and 4 of the 1789 Declaration and respect for private life implied by the freedom proclaimed under Article 2 of the aforementioned Declaration, must be justified by the requirement to safeguard public order and must be proportional with this objective;

– THE CIRCULATION PERMITS:

16. Considering that, according to the applicant and the intervener association, the fact that the requirement for circulation permits is imposed solely on individuals located in France who have not had a fixed place of abode or residence for more than six months establishes a difference in treatment which violates the principle of equality before the law; that moreover, the regime relating to these circulation permits also establishes differences in treatment in breach of the principle of equality and imposes a disproportionate limitation on the freedom of movement;

With regard to the existence of the rules requiring official validation of the circulation permits applicable to individuals circulating in France without a fixed place of abode or residence:

17. Considering that Articles 2 to 6 regulate the arrangements governing circulation permits which must be obtained by individuals who have not had a fixed place of abode or residence for more than six months; that according to the combined provisions of the first subparagraph of Article 2 and Article 3 of the aforementioned Law of 3 January 1969, these provisions are applicable on the one hand to "individuals who have not had a fixed place of abode or residence within a Member State of the European Union for more than six months", individuals older than sixteen years of age accompanying them and their employees, and on the other hand "individuals older than sixteen years of age" other than those referred to above who "have not had a place of abode or residence... for more than six months" and "who permanently live in a vehicle, a trailer or any other mobile unit";

18. Considering that in imposing on all of these individuals the requirement for a circulation permit, the legislature intended to enable, for private law, social, administrative or judicial purposes, those who cannot be found at a fixed place of abode or residence for a certain period of time to be identified and located, whilst assuring, for the same purposes, a means of communication with them; that these provisions are based on a difference between the situation of individuals who have had a fixed place of residence or abode for more than six months and those who have not, irrespective of their nationality or origin; that accordingly, the distinction between these situations is based on objective and rational criteria which are directly related to the goal stipulated by the legislature; that they do not establish any discrimination on the grounds of ethnic origin; that accordingly, in requiring the individuals concerned to obtain a circulation permit, the legislature did not breach the principle of equality; that the resulting violation of the freedom of movement is justified by the need to protect public order and is proportional with this objective;

With regard to Articles 2 and 3:

19. Considering that pursuant to Article 2 of the Law of 3 January 1969, individuals who have not had a fixed place of abode or residence for more than six months in a Member State of the European Union, individuals accompanying them and the employees of the latter, are required to obtain a special circulation book if they are older than sixteen years of age and have not had a fixed place of residence or abode in France for more than six months; that Article 3 provides that individuals other than those referred to above who have not had a fixed place of abode or residence for more than six months and who permanently live in a vehicle, a trailer or any other mobile unit must obtain, as a prerequisite for their right to move within France, either a circulation book or a circulation booklet; that according to the combined provisions of Articles 2 and 3 of the Law, only circulation permits which are issued to individuals living in a mobile unit must be validated by the administrative authorities at regular intervals; that in providing for different treatment, within the class of individuals who have not had a fixed place of abode or residence for more than six months, for those who conduct an itinerant lifestyle and live permanently in a mobile unit by submitting them to special rules governing the issue and validation of circulation permits, these provisions establish a difference in treatment based on different circumstances which is directly related to the object of the law providing for that difference, and accordingly does not breach the principle of equality; that having regard to the object of the law, the regular obligation to extend the validity of these permits provided for under Article 6 does not violate freedom of movement in a manner incompatible with the Constitution;

20. Considering that according to the above, Articles 2 and 3 of the Law must be ruled constitutional;

With regard to Articles 4 and 5:

21. Considering that according to the combined provisions of Articles 4 and 5 of the Law of 3 January 1969, individuals older than sixteen years of age who have not had a fixed place of abode or residence for more than six months and who permanently live in a vehicle, a trailer or any other mobile unit, are required to obtain, as a prerequisite for the right to circulate within France, either, if they are able to furnish proof of regular income guaranteeing them normal living conditions, in particular through the conduct of salaried employment, a circulation book which must be validated by the administrative authorities at intervals specified by regulation which may not be shorter than three months, or, if they are not able to furnish proof of such regular income, a circulation booklet which must be validated by the administrative authorities every three calendar months; that moreover, according to the second subparagraph of Article 5 of the Law of 3 January 1969, any person who circulates without having previously obtained a circulation booklet is liable to a term of imprisonment of one year;

22. Considering that, on the one hand, these provisions establish two circulation permits subject to different arrangements which are applicable to individuals who permanently live in a vehicle, a trailer or any other mobile unit; that, depending upon whether or not they are able to furnish proof of regular income, they are subject to different obligations with regard to validation by the administrative authorities of the circulation permit issued to them; that such a difference in treatment is not directly related to the private law, social, administrative or judicial goals pursued by the law; that it must accordingly be ruled unconstitutional;

23. Considering that, on the other hand, by requiring that the circulation booklet be validated by the administrative authorities every three months and by punishing with a term of imprisonment any individual travelling without a circulation booklet, the provisions of Article 5 of the Law of 3 January 1969 violate the freedom of movement in a manner which is disproportionate having regard to the goal pursued;

24. Considering that, according to the above, the following phrases must be ruled unconstitutional: "Where the individuals referred to under Article 3 are able to furnish proof of regular income guaranteeing them normal living conditions, in particular through the conduct of salaried employment," appearing in Article 4 of the Law of 3 January 1969 as well as Article 5 of the Law; that, consequently, in Article 3 of the Law, the phrase: "with one of the circulation permits provided for under Articles 4 and 5" must be replaced by the phrase "with the circulation permit provided for under Article 4"; that in the second subparagraph of Article 6 of the Law the phrase: " , the booklets and books provided for under Articles 3, 4 and 5" must be replaced by the phrase: " and the circulation book provided for under Articles 3 and 4"; that in Article 11 of the Law the phrase "under Articles 2, 3, 4 and 5, " must be replaced by the phrase: "under Articles 2, 3 and 4, ";

– THE MUNICIPALITY OF ASSOCIATION:

25. Considering that Article 7 of the contested Law provides that any individual who applies for a circulation permit shall be required to specify the municipality with which he wishes to be associated; that a declaration of association is issued by the prefect or the deputy prefect upon receipt of an opinion supported by reasons from the mayor; that Article 8 provides that the number of individuals holding a circulation permit without a fixed place of abode or residence attached to any given municipality may not exceed 3% of the municipal population as calculated during the most recent census; that the prefect may nonetheless grant exceptions to this rule "in particular in order to ensure family unity"; that Article 9 stipulates that the choice of a municipality of association shall be made for a minimum term of two years; that pursuant to Article 10, this association produces all or part of the effects associated with the place of abode, residence or work, under the conditions laid down in this Article, with regard in particular to the celebration of marriage, inclusion in the electoral register, compliance with obligations under tax law and those provided for under social security law and the law on assistance to unemployed workers as well as the obligation to complete national service; that, with regard to inclusion in the electoral register, the third subparagraph of Article 10 provides that it may be effected upon request by the interested parties, after conclusion of a period of uninterrupted association with the same municipality of three years;

26. Considering that, according to the applicant and the intervener association, the obligation to designate a municipality of association and the 3% limit per municipality on individuals holding a circulation permit which have been imposed by the law violate the freedom of movement; that they also violate the right to respect for private life "with regard to the choice of ordinary residence"; that furthermore, by requiring individuals holding a circulation permit to furnish proof of three years of uninterrupted association with the same municipality as a prerequisite for inclusion in the electoral register, the provisions of Article 10 violate the exercise of political rights by these citizens;

With regard to the freedom of movement and the right to respect for private life:

27. Considering that the requirement of association with a municipality imposed upon individuals who have not had a fixed place of abode or residence for more than six months is intended to remedy the fact that it is impossible for them to comply with the conditions laid down for the exercise of certain rights and to comply with certain duties; that this obligation does not limit the freedom of movement of the interested parties, the freedom to choose a fixed or mobile form of accommodation or the freedom to decide on the place of their temporary establishment; that it does not limit their ability to determine a fixed place of abode or residence for more than six months; that it does not entail any obligation to reside within the municipality of association; that accordingly, the objections alleging that Articles 7 to 10 of the Law of 3 January 1969 violate the freedom of movement and the right to respect for private life must be rejected;

With regard to the exercise of political rights:

28. Considering that Article 3 of the Constitution provides: "National sovereignty shall vest in the people, who shall exercise it through their representatives and by means of referendum. No section of the people nor any individual may arrogate to itself, or to himself, the exercise thereof. Suffrage may be direct or indirect as provided for by the Constitution. It shall always be universal, equal and secret. All French citizens of either sex who have reached their majority and are in possession of their civil and political rights may vote as provided for by statute"; that according to Article 6 of the 1789 Declaration: "All citizens, being equal in the eyes of the law, are equally eligible to all dignities and to all public positions and occupations, according to their abilities, and without distinction except that of their virtues and talents";

29. Considering that according to a reconciliation of these texts, status as a citizen entails the right to vote and eligibility to stand as a candidate under identical conditions for all other than those who have been excluded on the grounds of age, incapacity or nationality or for reasons intended to preserve the freedom of the voter or the independence of the successful candidate; that these principles of constitutional standing preclude any division of voters or candidates into categories;

30. Considering that by requiring individuals circulating within France who do not have a fixed place of abode or residence to furnish proof of three years of uninterrupted association in the same municipality as a prerequisite for their inclusion in the electoral register, the provisions of the third subparagraph of Article 10 violate the constitutional principles referred to above; that accordingly, in the third subparagraph of Article 10 of the Law, the phrase: " , after conclusion of a period of uninterrupted association with the same municipality of three years" must be ruled unconstitutional;

THE DECLARATION OF UNCONSTITUTIONALITY:

31. Considering that the second paragraph of Article 62 of the Constitution provides: “A provision declared unconstitutional on the basis of Article 61-1 is revoked 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 shall be liable to be challenged";

32. Considering that the declaration that certain provisions of the Law of 3 January 1969 are unconstitutional shall take effect upon publication of this decision; that it shall apply to all cases in respect of which definitive judgment has not been passed prior to that date,

33. 33. Considering that, with regard to remaining issues, the contested provisions of the Law of 3 January 1969 do not violate any right or freedom guaranteed by the Constitution; that they must be upheld as constitutional,

HELD :

Article 1. – The following provisions of the Law of 3 January 1969 on the exercise of ambulatory activities and the arrangements applicable to persons travelling in France without a fixed place of abode or residence are unconstitutional:

– in Article 4, the phrase: "Where the individuals referred to under Article 3 are able to furnish proof of regular income guaranteeing them normal living conditions, in particular through the conduct of salaried employment,";

– Article 5;

– in Article 10, the phrase: " , after conclusion of a period of uninterrupted association with the same municipality of three years".

As a consequence of this declaration of unconstitutionality:

– in Article 3 of the Law, the phrase "with one of the circulation permits provided for under Articles 4 and 5" shall be replaced by the phrase "with the circulation permit provided for under Article 4";

– in the second subparagraph of Article 6, the phrase " , the booklets and books provided for under Articles 3, 4 and 5" shall be replaced by " and the circulation book provided for under Articles 3 and 4";

– in Article 11, the phrase "under Articles 2, 3, 4 and 5, " shall be replaced by the phrase "under Articles 2, 3 and 4, ".

aArticle 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 32.

Article 3. – With regard to the remaining issues, Articles 2, 3, 4, 6, 7, 8, 9, 10 and 11 of this Law 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 of 4 October 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 5 October 2012.