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Decision no. 2012-4563/4600 AN of 18 OCTOBER 2012

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Electoral disputes which have been the object of a QPC : Hauts-de-Seine (13th district) Mr Julien LANDFRIED and another

THE CONSTITUTIONAL COUNCIL,

Having regard, first, to application no. 2012-4563 filed on behalf of Mr Julien LANDFRIED, residing in Paris, by Philippe Bluteau Esq., Attorney at the Paris bar, registered on 20 June 2012 with the general secretariat of the Constitutional Council seeking the annulment of the elections held on 10 and 17 June 2012 in the 13th district of Hauts-de-Seine for the appointment of a deputy to the National Assembly;

Having regard, secondly, to application no. 2012-4600 filed by Mr Michel VOLPARI, residing in Chatenay-Malabry (Hauts-de-Seine), registered as above on 27 June 2012 seeking the same remedy;

Having regard to the defence written statements filed on behalf of Mr Patrick DEVEDJIAN, deputy, by Olivier Schnerb Esq., Attorney at the Paris bar, registered as above on 27 July and 12 September 2012;

Having regard to the observations filed by the Interior Minister, registered as above on 27 and 30 July 2012;

Having regard to the written statement filed on behalf of Mr Georges SIFFREDI, a replacement member for Mr DEVEDJIAN, by Emmanuel Vital-Durand Esq., Attorney at the Paris bar, registered as above on 20 August 2012;

Having regard to the written statement file by Mr VOLPARI, registered as above on 24 August 2012;

Having regard to the written statements and observations filed on behalf of Mr LANDFRIED, registered as above on 29 August and 10 September 2012;

Having regard to the observations of the Prime Minister, registered as above on 30 August 2012;

Having regard to the other documents produced and appended to the case file;

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 Ordinance no. 58-998 of 24 October 1958 concerning the basic law on eligibility conditions and parliamentary incompatibility;

Having regard to Ordinance no. 59-224 of 2 February 1959 completing and amending Ordinance no. 58-998 of 24 October 1958 concerning the basic law on eligibility conditions and parliamentary incompatibility;

Having regard to basic law no. 85-689 of 10 July 1985 concerning the election of deputies from overseas territories, the territorial collectivity of Mayotte and the territorial collectivity of Saint-Pierre-et-Miquelon, and Constitutional Council decision no. 85-194 DC of the same day;

Having regard to decree no. 64-1086 of 27 October 1964 amending the Electoral Code;

Having regard to the Electoral Code;

Having regard to the regulation governing the procedure followed before the Constitutional Council in relation to disputes concerning the election of deputies and senators;

Having heard Schnerb Esq. on behalf of Mr DEVEDJIAN and Bluteau Esq. on behalf of Mr LANDFRIED at the hearing of 9 October 2012;

Having heard the Rapporteur;

1. Considering that the aforementioned applications concern the same election; that there are grounds to join them for resolution in a single decision;

2. Considering that Mr LANDFRIED argues in support of his application directed against the elections held on 10 and 17 June 2012 in the 13th district of Hauts-de-Seine that Mr SIFFREDI, acting as a replacement member for Mr DEVEDJIAN, has the status of a replacement member for a senator and was accordingly ineligible, pursuant to the provisions of Article L.O. 134 of the Electoral Code; that Mr DEVEDJIAN argues in his defence that this Article infringes rights and freedoms guaranteed under the Constitution;

– THE APPLICATION FOR A PRIORITY PRELIMINARY RULING ON THE ISSUE OF CONSTITUTIONALITY

3. Considering that Article L.O. 134 of the Electoral Code provides: "A deputy, a senator or a replacement member of a parliamentary assembly may not act as a replacement for a candidate to the National Assembly";

4. Considering that, according to the applicants who filed the application for a priority preliminary ruling on the issue of constitutionality, these provisions violate Article 6 of the 1789 Declaration of the Rights of Man and the Citizen and Article 3 of the Constitution;

5. Considering that the provisions of Article L.O. 134 of the Electoral Code reflect Article 6 of the aforementioned Ordinance of 24 October 1958, as in force pursuant to Article 1 of the aforementioned Ordinance of 4 February 1959; that these provisions were codified by the aforementioned Decree of 27 October 1964; that pursuant to Article 5 of the basic law of 10 July 1985, the provisions of the Ordinance of 24 October 1958 "contained in the Electoral Code (legislative part) as amended and supplemented by the following texts" have "force of law"; that the Constitutional Council upheld the basic law of 10 July 1985 as constitutional in recital 2 and Article 1 of its aforementioned decision of 10 July 1985;

6. Considering that the contested provisions have been upheld as constitutional in the substantive part and the operative part of a decision of the Constitutional Council; that in the absence of a change in circumstances, there are no grounds for the Constitutional Council to examine the aforementioned application for a priority preliminary ruling on the issue of constitutionality;

– THE APPLICATION OF THE PROVISIONS OF ARTICLE L.O. 134 OF THE ELECTORAL CODE

7. Considering that Mr SIFFREDI appeared in a list of candidates in the elections to the Senate which were held in the department of Hauts-de-Seine on 25 September 2011 immediately after the elected candidate Ms Isabelle DEBRÉ; that pursuant to the provisions of Article L.O. 320 of the Electoral Code, Mr SIFFREDI therefore acquired the status as a replacement member for a senator pursuant to Article L.O. 134 of the Code;

8. Considering that the status as a replacement for a member of Parliament does not appoint this replacement member to any position from which he may resign; that no text allows him to waive in advance his right to serve his mandate should the seat become vacant; that accordingly, even though Mr SIFFREDI sent a letter to the President of the Senate, the President of the Constitutional Council and the Prefect of Hauts-de-Seine on 7 May 2012 informing these authorities of his decision to "resign" from his position as a replacement member, this circumstance is immaterial for the purposes of the application of Article L.O. 134 of the Electoral Code;

9. Considering that according to the above, Mr SIFFREDI cannot act as a replacement for Mr DEVEDJIAN, a candidate to the 13th district of Hauts-de-Seine in the parliamentary elections of 10 and 17 June 2012;

10. Considering that, pursuant to Article L.O. 189 of the Electoral Code, the Constitutional Council "shall rule on the legality of the election both of the successful candidate as well as the replacement member"; that in view of the ineligibility of Mr SIFFREDI, there are grounds to annul the election of Mr DEVEDJIAN;

11. Considering that there are accordingly no grounds to rule on the request by Mr VOLPARI,

HELD:

Article 1. – There are no grounds for the Constitutional Council to rule on the priority ruling on constitutionality filed by Mr Patrick DEVEDJIAN.

Article 2. – The elections which were held on 10 and 17 June 2012 in the 13th district of Hauts-de-Seine are hereby annulled.

Article 3. – There are no grounds to rule on the request by Mr Michel VOLPARI.

Article 4. This decision shall be served on the President of the National assembly and published in the Journal Officiel of the French Republic.

Deliberated by the Constitutional Council in its session of 18 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.