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Decision no. 2014-424 QPC of 7 November 2014

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Association Mouvement raëlien international [Legal capacity of associations with registered office abroad]

On 25 August 2014 the Constitutional Council, pursuant to Article 61-1 of the Constitution, received an application for a priority preliminary ruling on the issue of constitutionality from the Cour de Cassation (criminal chamber, order no. 4789 of 20 August 2014) raised by the association Mouvement raëlien international, regarding the compatibility of Article 5 of the Law of 1 July 1901 on association agreements 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 the Law of 1 July 1901 on association agreements;

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 association by Dominique Foussard Esq., Attorney to the Conseil d'État and the Cour de Cassation, registered on 16 September and 1 October 2014;

Having regard to the observations of the Prime Minister, registered on 16 September 2014;

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

Having heard Foussard Esq. on behalf of the applicant association and Mr Xavier Pottier, appointed by the Prime Minister, at the public hearing of 21 October 2014;

Having heard the Rapporteur;

1. Considering that pursuant to Article 5 of the aforementioned Law of 1 July 1901: "Any association that wishes to obtain the legal capacity provided for under Article 6 must be publicly declared by its founders.

"The preliminary declaration must be made to the prefecture of the department or the sub-prefecture of the district where the association will have its registered office. It shall give notice of the title and object of the association, the seat of its establishments and the names, professions and addresses and nationalities of the persons charged with its administration on any grounds whatsoever. A copy of its charter shall be annexed to the declaration. A receipt shall be issued in respect of the above within five days.

"If the association has its registered office abroad, the preliminary declaration provided for under the previous subparagraph shall be filed with the prefecture of the department in which the head office of its principal establishment is located.

"The association may only be rendered public by publication in the Journal Officiel upon presentation of this receipt.

"Associations are required to give notice within three months of any changes occurring to their administration and of any amendments made to their charters.

"Such amendments and charges may only be invoked against third parties after they have been declared.

"The amendments and changes shall moreover be entered into a special register which must be presented to the administrative or judicial authorities upon request";

2. Considering that, according to the applicant association, the provisions of the second and third subparagraphs of this Article, which require that an association that has its registered office abroad that wishes to participate in legal proceedings in France must file its preliminary declaration with the prefecture of the department in which the head office of its principal establishment is located, prevent an association that does not have a principal establishment in France from participating in legal proceedings and thus violate its right to effective relief;

3. Considering that the priority preliminary ruling on the issue of constitutionality concerns the third paragraph of the aforementioned Law of 1 July 1901;

4. Considering that Article 16 of the Declaration of the Rights of Man and the Citizen of 1789 provides that: "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 no substantial breaches may be made of the right of interested parties to secure effective relief before a court;

5. Considering that the first four subparagraphs of Article 6 of the aforementioned Law of 1 July 1901 provide that any duly declared association may, without any special authorisation, participate in court action, receive monetary donations and donations of public service establishments, acquire for consideration, possess and administer the contributions of its members, the premises intended for the administration of the association and for the meetings of its members and any real property strictly necessary for the achievement of the goal it has set; that Article 5 of this Law provides that, in order to obtain the legal capacity provided for under Article 6, all associations must be publicly declared by their founders; that, for associations with their registered office in France, the acquisition of legal personality is conditional upon a preliminary declaration of their existence to the prefecture of the department or the sub-prefecture of the district where the association has its registered office; that, for associations that have their registered office abroad, the third subparagraph of Article 5 provides that the declaration must be made to the prefecture of the department in which the head office of its principal establishment is located; that in any case, the association will only be publicly declared by publication in the Journal Officiel;

6. Considering that no requirement of constitutional law precludes the recognition in France of the legal personality of associations that have their registered office abroad and an establishment in France must be subject, in the same manner as associations with their registered office in France, to the requirement to make a preliminary declaration to the prefecture of the department in which the seat of their principal establishment is located;

7. Considering, nevertheless, that the provisions of the third subparagraph of Article 5 of the Law of 1 July 1901 do not have the object of depriving associations with their registered office abroad that have legal personality in accordance with the law applicable to them but do not have any establishment in France of the capacity to participate in proceedings before the French courts, subject to the rules applicable to the admissibility of court actions, and that they cannot be interpreted to this effect without causing an unjustified encroachment on the right to effective judicial relief; that, subject to this reservation, the contested provisions do not violate the requirements laid down by Article 16 of the 1789 Declaration;

8. Considering that the contested provisions, which do not violate any other right or freedom guaranteed by the Constitution, must be upheld as constitutional,

HELD:

Article 1.– Subject to the reservation contained in recital 7, the third subparagraph of Article 5 of the Law of 1 July 1901 on association agreements 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 6 November 2014, sat on by: Mr Jean-Louis DEBRÉ, President, Mr Jacques BARROT, Ms Claire BAZY MALAURIE, Ms Nicole BELLOUBET, Mr Guy CANIVET, Mr Michel CHARASSE, Mr Renaud DENOIX de SAINT MARC, Mr Hubert HAENEL and Ms Nicole MAESTRACCI.

Announced on 7 November 2014.