Version en anglais - 2016-739 DC

Decision no. 2016-739 DC of 17 November 2016 - Law on the modernisation of justice in the 21st century -

THE CONSTITUTIONAL COUNCIL WAS ASKED TO DECIDE, under the conditions described in Article 61, second Subparagraph of the Constitution, regarding the Law on the modernisation of justice in the 21st century under number 2016-739 DC. In attendance on 17 October 2016, Mr. Christian JACOB, Mr. Élie ABOUD, Mr. Olivier AUDIBERT-TROIN, Mr. Patrick BALKANY, Mr. Jean-Pierre BARBIER, Mr. Jacques-Alain BÉNISTI, Mr. Sylvain BERRIOS, Ms. Valérie BOYER, Ms. Marine BRENIER, Mr. Philippe BRIAND, Mr. Guillaume CHEVROLLIER, Mr. Dino CINIERI, Mr. Éric CIOTTI, Mr. Jean-Michel COUVE, Mr. Bernard DEBRÉ, Mr. Patrick DEVEDJIAN, Mr. Jean-Pierre DOOR, Mr. David DOUILLET, Ms. Virginie DUBY-MULLER, Mr. Daniel FASQUELLE, Mr. Georges FENECH, Ms. Marie-Louise FORT, Mr. Yves FOULON, Mr. Marc FRANCINA, Mr. Yves FROMION, Mr. Laurent FURST, Mr. Claude de GANAY, Mr. Sauveur GANDOLFI-SCHEIT, Mr. Guy GEOFFROY, Mr. Alain GEST, Mr. Philippe GOSSELIN, Mr. Philippe GOUJON, Ms. Arlette GROSSKOST, Mr. Serge GROUARD, Mr. Jean-Claude GUIBAL, Mr. Jean-Jacques GUILLET, Mr. Michel HEINRICH, Mr. Michel HERBILLON, Mr. Patrick HETZEL, Mr. Philippe HOUILLON, Mr. Sébastien HUYGHE, Mr. Jacques KOSSOWSKI, Ms. Laure de LA RAUDIÈRE, Mr. Guillaume LARRIVÉ, Ms. Isabelle LE CALLENNEC, Mr. Vincent LEDOUX, Mr. Pierre LELLOUCHE, Mr. Céleste LETT, Mr. Lionnel LUCA, Mr. Olivier MARLEIX, Mr. Patrice MARTIN-LALANDE, Mr. Jean-Claude MATHIS, Mr. Gérard MENUEL, Mr. Damien MESLOT, Mr. Jean-Claude MIGNON, Mr. Pierre MOREL-A-L'HUISSIER, Ms. Dominique NACHURY, Ms. Stéphanie PERNOD BEAUDON, Mr. Bernard PERRUT, Ms. Josette PONS, Mr. Frédéric REISS, Mr. Franck RIESTER, Mr. Martial SADDIER, Mr. Paul SALEN, Mr. François SCELLIER, Mr. André SCHNEIDER, Mr. Fernand SIRÉ, Mr. Michel SORDI, Mr. Éric STRAUMANN, Mr. Michel TERROT, Mr. Jean-Marie TÉTART, Mr. Arnaud VIALA, Mr. Philippe VITEL, Members of the National Assembly.

Also in attendance on 17 October 2016, Mr. Bruno RETAILLEAU, Mr. Pascal ALLIZARD, Mr. Gérard BAILLY, Mr. Philippe BAS, Mr. Christophe BÉCHU, Mr. Jérôme BIGNON, Mr. François BONHOMME, Mr. Gilbert BOUCHET, Mr. François-Noël BUFFET, Mr. Jean-Pierre CANTEGRIT, Mr. Jean-Claude CARLE, Ms. Anne CHAIN-LARCHÉ, Mr. Patrick CHAIZE, Mr. Pierre CHARON, Mr. Daniel CHASSEING, Mr. Alain CHATILLON, Mr. Gérard CORNU, Mr. Philippe DALLIER, Mr. René DANESI, Mr. Mathieu DARNAUD, Mr. Serge DASSAULT, Ms. Isabelle DEBRÉ, Mr. Francis DELATTRE, Ms. Catherine DEROCHE, Ms. Jacky DEROMEDI, Ms. Chantal DESEYNE, Mr. Éric DOLIGÉ, Mr. Philippe DOMINATI, Ms. Marie-Annick DUCHÊNE, Mr. Alain DUFAUT, Ms. Nicole DURANTON, Mr. Louis DUVERNOIS, Ms. Dominique ESTROSI-SASSONE, Mr. Michel FORISSIER, Mr. Christophe FRASSA, Ms. Joëlle GARRIAUD-MAYLAM, Mr. Jacques GAUTIER, Mr. Jacques GENEST, Mr. Bruno GILLES, Ms. Colette GIUDICELLI, Mr. Alain GOURNAC, Mr. Jean-Pierre GRAND, Mr. Daniel GREMILLET, Mr. Jacques GROSPERRIN, Ms. Pascale GRUNY, Mr. Charles GUENÉ, Mr. Michel HOUEL, Mr. Alain HOUPERT, Mr. Benoît HURÉ, Mr. Jean-François HUSSON, Mr. Alain JOYANDET, Ms. Christiane KAMERMANN, Mr. Guy-Dominique KENNEL, Mr. Marc LAMÉNIE, Ms. Élisabeth LAMURE, Mr. Robert LAUFOAULU, Mr. Daniel LAURENT, Mr. Antoine LEFÈVRE, Mr. Dominique de LEGGE, Mr. Jean-Pierre LELEUX, Mr. Jean-Baptiste LEMOYNE, Mr. Philippe LEROY, Ms. Vivette LOPEZ, Mr. Michel MAGRAS, Mr. Claude MALHURET, Mr. Didier MANDELLI, Mr. Alain MARC, Mr. Jean-François MAYET, Ms. Colette MÉLOT, Ms. Marie MERCIER, Ms. Brigitte MICOULEAU, Mr. Alain MILON, Mr. Albéric de MONTGOLFIER, Ms. Patricia MORHET-RICHAUD, Mr. Philippe MOUILLER, Mr. Louis NÈGRE, Mr. Louis-Jean de NICOLA?, Mr. Claude NOUGEIN, Mr. Jean-Jacques PANUNZI, Mr. Jackie PIERRE, Mr. François PILLET, Mr. Rémy POINTEREAU, Mr. Ladislas PONIATOWSKI, Ms. Sophie PRIMAS, Ms. Catherine PROCACCIA, Mr. Jean-Pierre RAFFARIN, Mr. Henri de RAINCOURT, Mr. Michel RAISON, Mr. Jean-François RAPIN, Mr. Bernard SAUGEY, Mr. Michel SAVIN, Mr. Bruno SIDO, Mr. Abdourahamane SOILIHI, Mr. André TRILLARD, Ms. Catherine TROENDLÉ, Mr. Michel VASPART, Mr. Alain VASSELLE, Mr. Hilarion VENDEGOU and Mr. Jean-Pierre VOGEL, Senators.

In light of the following texts and items:
- the Constitution;
- Ordinance no. 58-1067 of 7 November 1958 as amended, concerning the Organic Law on the Constitutional Council;
- Organic Law no. 2009-403 of 15 April 2009 on the application of Articles 34-1, 39 and 44 of the Constitution;
- EU Rule no. 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings;
- the International Convention on the Rights of the Child of 20 November 1989;
- the Civil Code;
- the Consumer Code;
- the Environmental Code;
- the General Tax Code;
- the Code of Administrative Justice;
- the Criminal Code;
- the Code of Civil Enforcement Procedures;
- the Code of Criminal Procedure;
- the Road Traffic Code;
- the Social Security Code;
- Law no. 75-618 of 11 July 1975 on the recovery of maintenance;
- Law no. 83-634 of 13 July 1983 on the rights and obligations of officials;
- Law no. 91-647 of 10 July 1991 on legal aid;
- Ordinance no. 2000-218 of 8 March 2000 establishing the rules for determining the first and last names of persons of local law civil status applicable to Mayotte;
- Law no. 2011?1862 of 13 December 2011 on the distribution of disputes and the streamlining of certain judicial procedures;
- Law no. 2016-731 of 3 June 2016 reinforcing the fight against organised crime and terrorism as well as their financing, and improving the effectiveness and the guarantees of criminal procedure;
- the observations of the Government, registered on 07 November 2016;
And having heard the rapporteur;
THE CONSTITUTIONAL COUNCIL DECIDED ON THE FOLLOWING:

1. The applicant Members of the National Assembly and Senators refer to the Constitutional Council the Law relating to the modernisation of justice in the 21st century. The applicant Members of the National Assembly and Senators contest the adoption procedure of the Law as well as its Articles 50, 56, 62, 63 and 109. The applicant Members of the National Assembly also contest its Article 48, certain provisions of its Article 57, and its Articles 93 and 110. The applicant Senators also contest certain provisions of its Articles 3 and 5, its Article 6, certain provisions of its Articles 7, 51, and 58, as well as its Article 89.

- On the procedure for adopting the Law as a whole:

2. The applicant Senators contest the validity of using the accelerated procedure, undertaken on 31 July 2015, while the examination of draft laws on first reading by the National Assembly only began six months after its adoption by the Senate on 5 November 2015. They also contest the introduction in the National Assembly of several new provisions by means of an amendment of the Government, allowing the latter to sidestep the requirements of an impact study, an examination by the Conseil d'État, and deliberations during the Council of Ministers. The result is a "corrupted use" of the Government's right of amendment and an infringement on the requirements of clarity and honesty in parliamentary debate, as well as on the "balancing of the parliamentary process as laid out in Article 45 of the Constitution".

3. The applicant Members of the National Assembly themselves also contest the introduction of several new provisions by means of an amendment of the Government at first reading in the National Assembly, as well as the "corrupted use" of the accelerated procedure. The first body referred to, the Senate, was allegedly denied the possibility of deliberating on the substantial provisions introduced in the National Assembly, as a result of calling a joint committee at the end of first reading. The requirements of clarity and honesty in parliamentary debate were thus allegedly infringed.

. With regard to the Government's right of amendment:


4. Pursuant to several texts found in Article 6 of the Declaration of the Rights of Man and the Citizen of 1789, the first Subparagraph of Articles 34 and 39 of the Constitution as well as Articles 40, 41, 44, 45, 47 and 47-1, the right of amendment belonging to members of Parliament and the Government is fully exercisable during the first reading of draft and proposed laws by each of the two Assemblies. At this stage of the procedure and subject to compliance with the requirements of clarity and honesty in parliamentary debate, it shall only be limited by the rules of admissibility, and specifically by the necessity for an amendment to have a link, even an indirect one, with the submitted or transmitted text.

5. On the one hand, neither these constitutional provisions nor any other are an obstacle to amendments being submitted, as in this case, to the second Assembly, including immediately before the meeting of the joint commission, as long as they comply with the rules of admissibility mentioned herein above. Furthermore, the new provisions introduced in the National Assembly by amendment of the Government have not infringed on the requirements for clarity and honesty in parliamentary debate, neither due to their number nor their purpose.

6. On the other hand, Article 39 of the Constitution and the Organic Law of 15 April 2009 mentioned herein above only require an impact study, consultation of the Conseil d'État and deliberation in the Council of Ministers for draft laws before they are filed in office of the first Assembly and not for the amendments. Consequently, the complaint that the Government would sidestep these procedural requirements in exercising its amendment rights under the first Subparagraph of Article 44 of the Constitution is inapplicable.

. With regard to the accelerated procedure:

7. According to the second Subparagraph of Article 45 of the Constitution: "When, following a disagreement between the two Assemblies, a draft or proposed law is unable to be adopted after two readings by each Assembly or, if the Government decides to undertake the accelerated procedures without the Conferences of Speakers being jointly opposed to it, after one reading by each of them, the Prime Minister or the Speakers of the two Assemblies acting jointly have the power to call a meeting of a joint commission in charge of proposing a text on the provisions still under discussion". Subsequent to the introduction of a draft or proposed law, these provisions allow the Government to give its decision at any time to undertake the accelerated procedure, when the Conferences of Speakers of the two Assemblies are jointly able to oppose it, before the start of the examination of the text on first reading.

8. In this case, the accelerated procedure was properly undertaken and did not have the effect of denying the Senators their rights, since they were able to deliberate and exercise their amendment rights in the new reading, after failing the joint commission. Thus, neither the amendment right nor Article 45 of the Constitution has been infringed. Undertaking the accelerated procedure did not have the effect of infringing on the requirements for clarity and honesty in parliamentary debate.

9. It follows from the foregoing and notwithstanding the overlapping arguments that in undertaking the accelerated procedure and introducing numerous provisions by amendment, the contested Law was not, in this case, adopted according to a procedure that is unconstitutional.

- On certain provisions of Article 3:

10. Paragraph I of Article 3 of the contested Law establishes that judicial officers, solicitors, judicial commissioners, attorneys, attorneys-at-law for the Conseil d'État and the Cour de cassation, statutory auditors and accountants propose to their clientele a "digital relationship in a format that guarantees the interoperability of all transactions". Paragraph II of this same Article establishes that the professionals mentioned in Paragraph I make some of their data freely available to guarantee this interoperability. Paragraph IV of this same Article states that legal administrators and representatives also offer a "digital relationship" of the same type to "interested parties".

11. The applicant Senators hold that Paragraphs I, II and IV of Article 3 infringe on the principle of the "clarity of the law" and the objective of the constitutional value of accessibility and comprehensibility of the law insofar as neither the notion of a "digital relationship" nor the recipients of the accessible data are defined. For these reasons, these Paragraphs should be deemed unconstitutional.

12. The objective of the constitutional value of accessibility and comprehensibility of the law, as written in Articles 4, 5, 6, and 16 of the Declaration of 1789, requires that the legislature adopt provisions that are sufficiently precise and unambiguous formulations. In fact, it must protect subjects of the law against unconstitutional interpretation and arbitrary risk, without entrusting administrative or judicial authorities with the responsibility for establishing the rules, which the Constitution determines should only be entrusted to the law.

13. On the one hand, the notion of a "digital relationship" is clear. It covers the communication and exchange of information and documents by electronic means. On the other hand, the contested provisions are sufficiently precise insofar as they refer to any person having access to the data about the professionals mentioned in Paragraph I that appear in national directories and indices.

14. Thus Paragraphs I, II and IV of Article 3 are not incomprehensible and are not undermined by incompetence. These provisions, which are not in opposition to any constitutional requirement, should be deemed constitutional.

- On certain provisions of Article 5:

15. Paragraph IV of Article 5 established submission to compulsory prior mediation for the admissibility of an appeal undertaken by certain public officials against actions related to their personal situation and the admissibility of certain requests for benefits, allocations and entitlements, under the conditions set by Decree in the Conseil d'État, on an experimental basis for a term of four years.

16. The applicant Senators hold that this Paragraph infringes on the principle of "clarity of the law" and the objective of the constitutional value of accessibility and comprehensibility of the law due to the lack of precision as to the persons in charge of carrying out this prior mediation. By entrusting regulatory power with the ability to establish the conditions for this experiment and not establishing the methods for assessing it, this Paragraph also infringes on Article 37-1 of the Constitution.

17. Based on Article 37-1 of the Constitution, if Parliament may authorise, with an eye to their potential generalisation, experiments with a limited objective and term that derogate from the principle of equality before the law, the objective and the conditions thereof must be defined sufficiently precisely and not infringe on other requirements of constitutional value.

18. First of all, the contested provisions establish that the experiment is only related to, on the one hand, appeals filed by public officials subject to provisions of the Law of 13 July 1983 mentioned herein above, and on actions related to their personal situation and, on the other hand, the requests for benefits, allocations and entitlements in the form of aid or social welfare, for housing or for supporting workers who have been laid off. The legislature, not being required to specify the persons or authorities in charge of the mediation, has thus sufficiently defined the objective of the experiment that it established.

19. Secondly, no constitutional requirement is imposed on the legislature to determine the evaluation methods following an experiment.

20. Thus the provisions of Paragraph IV of Article 5, which is not incomprehensible and does not infringe either on Article 37-1 of the Constitution or any other constitutional requirement, should be deemed constitutional.

- On Article 6 and certain provisions of Article 7:

21. The second Subparagraph of Article 373-2-10 of the Civil Code established that family courts may propose to parents a mediation to facilitate the parents' search for an exercise of parental authority based on consensus. The third Subparagraph of this Article establishes that family courts may require that parents receive information on the objective and the procedure of this mediation measure. Article 6 of the contested Law modifies the third Subparagraph of Article 373-2-10 by prohibiting family courts from communicating the injunction mentioned herein above in the case of violence committed by one of the parents upon the other parent or upon the child.

22. Article 15 of the Law of 13 December 2011 mentioned herein above, in an experimental manner, establishes that referral to a court by the parents to modify a decision establishing the methods for exercising parental authority or setting the contribution for maintenance and the child's education must be preceded by an attempt at family mediation. Article 7 of the contested Law renews this experiment. However, Section 3° of this Article 7 waives this attempt at family mediation when violence has been committed by one of the parents upon the other parent or upon the child.

23. The applicant Senators hold that Article 6 and Section 3° of Article 7 infringe on the objective of the constitutional value of accessibility and comprehensibility of the law since they do not specify if the violence must be determined by the judge or simply alleged. They also contest Section 3° of Article 7 for not describing the evaluation method of the experiment that it establishes.

24. By adopting Article 6, the legislature did not intend to subordinate family courts' prohibition from communicating information about the objectives and procedures of a mediation measure to parents in the case of inter-familial violence on the condition that this violence results in criminal charges or a complaint being filed. Nor did it intend to waive an attempt at mediation between separated parents in only these circumstances. Therefore, it is up to the judge to evaluate the reality of any violence in order to apply the third Subparagraph of Article 373-2-10 of the Civil Code and Section 3° of Article 7 of the contested Law.

25. Secondly, no constitutional requirement is imposed on the legislature to determine the evaluation methods following an experiment.

26. Article 6 and Section 3° of Article 7, which do not infringe on the objective of the constitutional value of accessibility and comprehensibility of the law, or on any other constitutional requirement, should be deemed constitutional.

- On Article 48, Paragraph I of Article 56 and certain provisions of Article 57:

27. Article 48 of the contested Law grants to Civil Registrars the power to record entrances into, modifications to and dissolutions of civil solidarity pacts, currently a role carried out in the registries of the court of first instance. Paragraph I of Article 56, which rewrites Article 60 of the Civil Code relating to the requests to change first names, transfers the handling of these requests to the Civil Registrar, a duty today relevant to the family court. Section 1° of Paragraph I of Article 57 of the contested Law introduces a derogation from the procedure of changing names by Decree, by granting authority to the Civil Registrars to authorise name-change requests for persons listed on the Civil Registry of another country. Sections 1° and 2° of Paragraph III of Article 57 modifies the Ordinance of 8 March 2000 mentioned herein above to institute, in Mayotte, the same procedures for changing first and last names.

28. The applicant Members of the National Assembly contest these provisions to transfer to the Civil Registrars, without financial compensation to the Communes, the recording of civil solidarity pacts as well as the handling of requests to change first names and certain requests to change last names. It infringes on Article 40 of the Constitution, the principle of free administration of territorial authorities recognised in Article 72 and the principle of financial compensation established in the fourth Subparagraph of its Article 72-2.

29. According to Article 72, territorial authorities govern themselves freely by officials elected "under the conditions established by the law". According to the fourth Subparagraph of its Article 72-2: "Any transfer of powers between the State and the territorial authorities shall be accompanied by the allocation of resources equivalent to the exercise of those powers. Any creation or extension of powers that has the effect of increasing the expenditures of the territorial authorities shall be accompanied by the resources determined by the law".

30. First of all, the powers granted to the Civil Registrars for registering civil solidarity pacts and changing first or last names are exercised on behalf of the State. Consequently, the complaint of infringement of the fourth Subparagraph of Article 72-2 of the Constitution, whose provisions are only relative to the power exercised by the territorial authorities, is inapplicable.

31. Secondly, if the contested provisions lead to an increase in expenditures for communes, these provisions are not, in terms of the amount of these resources, to have the effect of distorting the free administration of these territories. The complaint of the violation of Article 72 of the Constitution should thus be set aside.

32. Finally, the contested provisions having been introduced by the Government, the complaint based on Article 40 of the Constitution, is inapplicable.

33. Consequently, Article 48, Paragraph I of Article 56, Section 1° of Paragraph I and Sections 1° and 2° of Paragraph III of Article 57, which do not infringe upon any other constitutional requirement, should be deemed constitutional.

- On Article 50:

34. Article 50 creates a non-judicial procedure for divorce by mutual consent, entitled "divorce by mutual consent by private agreement countersigned by attorneys, recorded in a solicitor's documents", which may substitute for the current judicial procedure.

35. Its Paragraph I inserts, under Title VI of Book I of the Civil Code, four Articles 229-1 to 229-4 defining the legal principle and framework of this new procedure. Pursuant to Article 229-1, the spouses may agree to declare the breakup of their marriage and its effects, upon the condition that each one is represented by an attorney, by private deed, countersigned by each of the attorneys and recorded in a solicitor's documents. Article 229-2 prohibits this new divorce procedure if one of the minor children of the couple requests to be heard by the court. It is up to the parents to inform the child of this option. Pursuant to Article 229-3, the divorce settlement agreement must mention that this information was passed on as well as the child's decision to waive this option. It is up to the solicitor to ensure that this formality is carried out. Article 229-4 requires that each spouse have a period of fifteen days to reflect before signing the settlement agreement, starting on the date that he or she has been informed of it by his or her attorney. This Article recognises the enforceability of this agreement upon a certain date. Pursuant to Articles 229, 230 and 247 of the Civil Code as written resulting from this same Paragraph I, the current judicial procedure for divorce by mutual consent will no longer be undertaken when a child requests to be heard by the court.

36. Paragraph I of Article 50 of the contested Law also modifies several Articles of the Civil Code in order for this new procedure for non-judicial divorce to have the same effects as the current judicial procedure for divorce by mutual consent. Paragraphs II to VI of this same Article 50 also have the same impact on the Code of Civil Enforcement Procedures, the Social Security Code, the General Tax Code, the Criminal Code and the Law of 11 July 1975 mentioned herein above. Paragraph VII of Article 50 modifies the Law of 10 July 1991 mentioned herein above, insofar as it establishes legal aid for attorneys' fees for the divorcing spouses according to this newly-created procedure.

. With regard to the claim of the infringement upon the principle of equality before the law:

37. The applicant Members of the National Assembly and Senators claim that Article 50 infringes on the principle of equality before the law. For the applicant Members of the National Assembly, by imposing on spouses the requirement of two attorneys and a solicitor, and thus increasing the cost of divorce, the contested provision creates, first of all, an inequality between couples in accessing this new divorce procedure, according to their financial means. The second instance of inequality is between the parents, one of the children of which may request to be heard, and the other parents, since the nature - judicial or not - of the divorce procedure depends on this request. For the applicant Senators, by inextricably linking the hearing of the child to the beginning of the judicial procedure, the contested provisions exclude from the benefit of protection particular to this procedure the children who, as a result of not being capable of forming their own views, cannot request to be heard by the court, as well as those who will refrain from such a request so as not to oppose the wishes of their parents in favour of a non-judicial divorce settlement. Furthermore, according to them, Article 50 introduces another unjustifiable inequality between the children whose parents are divorcing by mutual consent following the settlement-agreement procedure and those whose parents are divorcing following the other procedure, since only the latter will see their interests protected by the court.

38. According to the terms of Article 34 of the Constitution, the law sets the rules concerning "the status and legal capacity of persons, matrimonial arrangements, inheritance arrangements, and gifts". The legislature is at liberty at any time, when ruling on the matters within its jurisdiction, to adopt new provisions that are its right to assess the need for and to amend earlier legislation or to repeal and replace it, as the case may be, with other provisions provided that, in exercising this power, it does not encroach upon the legal guarantees of constitutionality; Article 61 of the Constitution does not grant the Constitutional Council general powers of assessment and judgement of the same nature of those belonging to the Parliament, but only grants it the competence to decide on the constitutionality of the contested laws under its consideration.

39. Pursuant to Article 6 of the 1789 Declaration: "The law ... must be the same for all, whether it protects or punishes". The principle of equality does not prevent the legislature from regulating different situations in different ways, nor does it depart from equality in the public 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. If, as a general rule, this principle seeks to treat persons who are in the same situation in the same manner, this does not mean that it is obliged to treat persons who are in different situations differently.

40. First of all, within the framework of the new divorce procedure that they establish, the contested provisions have the effect of imposing on each spouse the requirement to be represented by their own attorney. By thus insisting on the same obligation for all the spouses having the option of this procedure, the legislature, which further allows them access to the benefit of legal aid, did not infringe on the principle of equality before the law.

41. Secondly, by ensuring that a minor child of the couple may be heard by the court and the spouses may no longer divorce by mutual consent through the settlement-agreement method but rather only by the judicial method, the contested provisions do not create, by themselves, any difference in the treatment of different couples.

42. Thirdly, on the one hand, Article 371-1 of the Civil Code, which defines parental authority as the totality of the rights and responsibilities that are in the best interest of the child, imposes upon parents to include the child in decisions that relate to him or her depending on his or her age and maturity level. On the other hand, pursuant to Article 388-1 of the Civil Code, any minor capable of forming his or her own views may be heard by the court in any procedure that concerns him or her. Finally, pursuant to Articles 229, 229-2 and 230 of the Civil Code as written resulting in Article 50 of the contested Law, combined with Article 388-1 of the same Code, the decision of the minor child who is capable of forming his or her own views to ask to be heard by the court is an obstacle to the pursuit of the settlement-agreement procedure for his or her parents' divorce, in favour of the judicial procedure. Within this framework, it is up to the court, pursuant to Article 232 of the Civil Code, to deny approval and refuse to grant a divorce "if it observes that the settlement agreement does not sufficiently protect the interests of the children or one of the spouses".

43. Additionally, the contested text grants a specific protection to the minor requesting to be heard by the court. But the right to be heard by the court is reserved to minors capable of forming their own views. Consequently, in terms of the judicial protection that they grant, the contested provisions establish different treatment for these minors and other children. However, this difference in treatment lies in differences in the situation of minors capable of forming their own views - those who are capable of explaining their situation arising from the choice of their parents - and other minors. This difference in the treatment of minors, who in any event benefit from the protection of the requirements of parental authority, is directly relevant to the objectives of the law. Thus, it does not lead to an unconstitutional inequality.

44. Lastly, children whose parents are divorcing by mutual consent are not placed in the same situation as those whose parents are divorcing through the other procedure. The systematic judicial involvement in the second case is justified by the fact that the spouses have not come to an agreement on the tenets or the effects of their divorce. The difference in treatment is directly relevant to the objectives of the law, and as a result does not infringe on the principle of equality.

45. It follows from the foregoing that Article 50 does not infringe on the principle of equality.

. With regard to the other objections:

46. The applicant Members of the National Assembly claim that by authorising a divorce settlement agreement without the court being involved, the contested provisions infringe on the "public order status of family rights" according to them, as stated in the second Subparagraph of the Preamble to the Constitution of 1946. They also claim that the new procedure, which deprives the weaker partner of judicial protection and exposes this person to the risk of a divorce settlement agreement that does not sufficiently protect his or her interests, infringes on the "general principles of civil law" as well as the eleventh Subparagraph of the Preamble of 1946. Finally, according to them, by not sufficiently guaranteeing the minor information on his or her right to be heard by the court and placing the responsibility on the minor to object to the settlement-agreement procedure, the contested provisions infringe on Article 388-1 of the Civil Code, the "principles of the divorce laws that place the interests of the child at the centre of legislative measures", the International Convention on the Rights of the Child and the eleventh Subparagraph of the Preamble of 1946.

47. The applicant Senators, for their part, claim that the legislature has failed in the scope of its authority by not establishing a sufficient level of protection for the children of the couples in question.

48. The right to lead a normal family life stems from the tenth Subparagraph of the Preamble of 1946, which stipulates that: «The Nation provides individuals and families with the necessary conditions to their development?.

49. First of all, it is possible for the legislature, which has the authority to set the rules for divorce, to substitute the judicial procedure for divorce by mutual consent for a settlement-agreement procedure.

50. Secondly, the legislature has overseen that this new divorce procedure has the proper guarantees to ensure the protection of both spouses. It is also prohibited if one of the spouses is placed under legal protection. However, it is required that each of them retain an attorney and wait a time period of fifteen days for reflection, upon the establishment of a divorce settlement agreement and before it is signed. Finally, the enforceability of this agreement is subject to documents being recorded by a solicitor, who is responsible for assessing their formal validity.

51. Thirdly, the legislature has established, in order to ensure the protection of the child's interests, that the latter, if capable of forming his or her own views, be informed by his or her parents of the right to be heard by the court. Additionally, it is required, under the authority of the solicitor, during the divorce settlement agreement, that this information be given to the minor and that he or she has the choice whether to use the option to be heard. If the minor requests to be heard, the settlement-agreement procedure shall be abandoned for the judicial procedure. The court is thus in charge of ensuring that the settlement agreement does not infringe on the minor's interests. Furthermore, pursuant to Article 373-2-13 of the Civil Code, as written resulting in Article 50 of the contested Law, the family court may be convened, after the divorce, to decide on provisions of this divorce settlement agreement relating to the exercise of parental authority.

52. Given the guarantees of the settlement-agreement procedure for divorce by mutual consent that have been granted, the legislature has not infringed on the tenth Subparagraph of the Preamble of 1946 and it has not failed in the scope of its authority.

53. Furthermore, the claims of infringement on the International Convention on the Rights of the Child mentioned herein above as well as claims of infringement on the principles and provisions of legislative value and unconstitutionality are inapplicable.

54. It follows from the foregoing that Article 50 does not infringe on either the eleventh Subparagraph of the Preamble of 1946 or on any other constitutional requirement and should be deemed constitutional.


- On certain provisions of Article 51:

55. Section 5° of Article 51 modifies Article 61 of the Civil Code to establish that a request for a name change may be justified by a major child's wish to add the name of one or the other of his or her parents to his or her birth name.

56. The applicant Senators hold that these provisions introduced in the new reading in the National Assembly, infringe on Article 45 of the Constitution, as they are not in direct relation with a provision currently being discussed.


57. Article 45 of the Constitution, specifically the first sentence of the first Subparagraph states: "Any draft or proposed law shall be successively examined in the two Assemblies of Parliament with a view to adopt an identical text", that any additions or modifications that may be brought after the first reading by the Members of Parliament and by the Government shall be in direct relation with a provision being discussed. However, not subject to this last obligation are amendments for ensuring constitutionality, coordinating texts being reviewed, or correcting a material error.

58. The provisions of Section 5° of Article 51 are not, at the stage of the new reading, in direct relation with a provision being discussed. They are also not related to ensuring constitutionality, coordinating texts being reviewed, or correcting a material error. Adopted according to an unconstitutional procedure, they should thus be declared unconstitutional.

- On Paragraph II of Article 56:

59. Paragraph II of Article 56 creates, in Chapter II of Title II of Book I of the Civil Code, a Section 2 bis, entitled "Modification of the mention of gender in the Civil Registry" including Articles 61-5, 61-6, 61-7 and 61-8. Article 61-5 lays out that any major person or emancipated minor who proves, by a sufficient collection of facts, that the mention of his or her gender in the Civil Registry does not correspond to that by which he or she is known, may request that it be modified. This same Article 61-5 establishes a list indicating three main facts that describe the change of gender, the proof of which may be established by any means: publicly presenting him or herself as such gender; being known as such gender by his or her family, friends, and professional acquaintances; having changed his or her name to correspond to such gender. Article 61-6 leaves it to the court of first instance to determine the request for changes related to gender in the Civil Registry. Additionally, it provides that the fact of not having undergone medical treatments, surgical operations or sterilization cannot be a reason for refusing such a request. Pursuant to Article 61-7, the mention of the change of gender and, if the case may be, of first name is indicated in the margin of the birth certificate of the person in question upon request by the Public Prosecutor.

60. The applicant Senators hold that Paragraph II of Article 56 was introduced on first reading at the National Assembly even though these provisions have no link, even an indirect one, with the initial draft law. Thus these provisions were adopted in a way that infringes on the first Subparagraph of Article 45 of the Constitution.

61. The applicant Members of the National Assembly hold that by granting to the Civil Registrar the authority to handle requests regarding changes in gender, the legislature infringed upon the second Subparagraph of Article 66 of the Constitution in that this matter relates to individual liberties. They also hold that waiving the requirement of a medical certificate demonstrating the total or partial loss of the physical characteristics of the original gender to obtain a change in gender at the Civil Registry infringes upon the principle of preserving the dignity of the human person.

62. First of all, according to the last sentence of the first Subparagraph of Article 45 of the Constitution: "Without prejudice to the application of Articles 40 and 41, all amendments which have a link, even an indirect one, with the text that is proposed or transmitted, shall be admissible on first reading".

63. The provisions of Paragraph II of Article 56 of the contested Law, relating to the modification of the mention of gender in the Civil Registry, were introduced for first reading at the National Assembly. However, this Paragraph II cannot be seen as having no link, even an indirect one, with the draft law submitted to the office of the Senate, which contains provisions relating to the Civil Registry and to the authority of judicial authorities in this matter. The complaint of infringement on the first Subparagraph of Article 45 of the Constitution should thus be set aside.

64. Secondly, according to the second Subparagraph of Article 66 of the Constitution: "The Judicial Authority, guardian of the freedom of the individual, shall ensure compliance with this principle under the conditions established by the law?.

65. However, the modification of the mention of gender in the Civil Registry does not fall within the scope of Article 66 of the Constitution. Consequently, the complaint of infringement of this Article is inapplicable.

66. Finally, the Preamble of 1946 states that preserving the dignity of the human person against any form of subjugation and degradation is a principle of constitutional value.

67. By allowing a person to obtain a modification of the mention of gender at the Civil Registry without imposing medical treatments, surgical operations or sterilization, the provisions do not infringe on the principle of preserving the dignity of the human person. The claim of infringement on this principle is wrong on the facts.

68. The provisions of Paragraph II of Article 56, which do not infringe upon any other constitutional requirement, are constitutional.

- On certain provisions of Article 58:

69. The provisions of Paragraph I of Article 58 modify several Articles of Book VII of the Consumer Code. Specifically, their objective is to throw out the judicial grant necessary for the legal enforceability of certain decisions made by the Over-indebtedness Commission allowing rescheduling, forgiveness or suspension of the payment of debts. Additionally, Section 15° of this Paragraph rewrites Article L. 733-4 of the Consumer Code, that establishes in its Section 1° that the Over-indebtedness Commission may, in the case of a forced or private sale of the debtor's main residence, under certain conditions, impose reducing the amount of the portion of the loan that is still due to credit establishments or financial companies after the sale. Section 2° of Article L. 733-4, as rewritten, also allows the Over-indebtedness Commission to impose a partial write-off of debts. These measures may be combined with a rescheduling of debts. Section 18° of Paragraph I of Article 58 rewrites, specifically, Articles L. 741-1 and L. 741-2 of this same Code. Article L. 741-1 allows the Over-indebtedness Commission to impose a personal bankruptcy procedure without judicial liquidation. Article L. 741-2 lays out that this leads to the writing off of all of the debtor's non-professional debts.

70. The applicant Senators hold that, first of all, Article 58 was adopted in a manner that infringes on the requirements of clarity and honesty of parliamentary debate insofar as, on the one hand, over-indebtedness is the subject of recent legislative reform and, on the other hand, another law is in discussion that may modify it. Finally, they hold that Articles L. 733-4, L. 741-1 and L. 741-2 of the Consumer Code from Sections 15° and 18° of Paragraph I of Article 58, insofar as they allow the Over-indebtedness Commission to infringe on the debtors' right to property, infringe on the constitutional protection of this right.

. With regard to the procedure for adopting Article 58:

71. The circumstance of these provisions related to the provisions in discussion in Parliament having been modified by a recently adopted law or that are in discussion together with other proposed or draft laws does not constitute an infringement on the requirement for clarity and honesty in parliamentary debate.

72. Therefore, Article 58 was adopted according to a procedure that should be deemed constitutional.

. With regard to the claim of infringement on the right to property:

73. Property is included under the human rights established by Articles 2 and 17 of the 1789 Declaration. In the absence of depriving the right to property under Article 17, Article 2 states nevertheless that infringement of this right must be justified by public interest and proportional to the objective sought.

74. The contested provisions, insofar as they allow the possibility for the Over-indebtedness Commission to impose rescheduling of a debt and its partial or total write-off infringes on the right to property of the holders of these debts.

75. Firstly, by adopting these provisions, the legislature pursued the general interest in regulating over-indebtedness situations.

76. Secondly, on the one hand, the Over-indebtedness Commission may only impose the rescheduling of debts and their partial or total write-off if the debtor is manifestly unable to pay all of his or her non-professional debts. The total write-off of debts in the framework of a bankruptcy decision without judicial liquidation may also not be carried out if the debtor finds him or herself in an irreparably compromised situation and only possesses the requirements necessary for ordinary life, non-professional needs necessary to exercise his or her professional activities, or those without value or the sale of which would be manifestly disproportionate in terms of their market value.

77. On the other hand, rescheduling and writing off debts, except with the agreement of the lender, may not involve maintenance debts, monetary remedies for victims in the framework of a criminal sentence, or debts originating from fraudulent actions committed at the expense of certain agencies for social protection and criminal fines. Writing off of debt also may not involve a debt whose amount to be paid off in the debtor's place or stead by a guarantor or the co-obligation of legal persons.

78. Finally, these measures only apply in the absence of any challenge by one of the parties before the court.

79. Given the objective sought and the guarantees established, the legislature has not, through these contested provisions, disproportionately infringed on the right to property. The complaint of infringement on Article 2 of the Declaration of 1789 should thus be set aside. Articles L. 733-4, L. 741-1 and L. 741-2 of the Consumer Code from Sections 15° and 18° of Paragraph I of Article 58, which infringe on no other constitutional requirement, should be deemed constitutional.

- Articles 62, 63, 89 and 93:

80. Chapter I of Title V of the contested Law establishes a corpus of procedural rules for all class actions before the court. Section I of this Chapter, related to the objectives of class actions in the capacity to act and introduce in the court, includes Articles 62, 63 and 64 Article 62 relates to the objectives of the class action. Its first Subparagraph determines the conditions under which a claimant may start such an action: this action is possible when several persons in a similar situation incur harm caused by the same person, their common cause being a loss of the same nature of their legal or contractual obligations. The second Subparagraph of this Article lays out the results of the class action: it may be exercised either to bring an end to such losses, to invoke the responsibility of those who caused the damage in order to obtain reparations for the harm caused, or both of these results. Article 63 reserves the right to take this action for certified associations and regularly declared associations for at least five years, for which the statutory objective includes defence of the interests that were harmed.

81. Furthermore, Article 89 inserts, in the Environmental Code, an Article L. 142-3-1 that allows such class actions for environmental reasons. This Article specifies the associations that may take this action as well as the nature of the losses and damages covered. Article 93 inserts in the Code of Administrative Justice Articles L. 77-12-1 to L. 77-12-5 that establish an action for recognising administrative rights and setting the procedural rules.

82. The applicant Senators hold that Article 62 and 63 are outside of the norms since the judicial rules that they define, in order to be implemented, depend on other provisions relating to specific class actions. Also, they infringe on the scope of the legislature's authority. Finally, these provisions, as well as Article 89, infringe upon the objective of the constitutional value of accessibility and comprehensibility of the law.

83. The applicant Members of the National Assembly claim that Articles 62 and 63 infringe on the principle of "legal security". They also hold that the legislature has not reached the scope of its authority. Finally, they claim these Articles, as well as Article 93, infringe on the principle of the legality of criminal offences and penalties as well as the principle of the individualisation of penalties.

84. First of all, the provisions of Articles 62 and 63 which respectively determine the objectives of the class action and the capacity to take such an action are not in any way outside of the norms. Nor are they undermined by incompetence.

85. Secondly, the provisions of Articles 62, 63 and 93 institute no sanction of a punitive nature. The claims of infringement on the principles of the legality of criminal offences and penalties and the individualisation of penalties guaranteed by Article 8 of the Declaration of 1789 are thus inapplicable.

86. The provisions of Articles 62, 63, 89 and 93, which are not incomprehensible and do not infringe upon any other requirement of constitutional law, should be ruled constitutional.

- On Articles 109 and 110:

87. Articles 109 and 110 of the contested Law grant the Government, on the foundation of Article 38 of the Constitution, to take measures by ordinance that normally fall within the realm of the law. Section 1° of Paragraph I of Article 109 also authorises it to take the necessary measures to implement reform, as established in Article 12 of the contested Law, for handling certain disputes related to social security and the social aid administration. Section 2° of the same Paragraph I allows the Government to take measures by ordinance for provisions limiting the presence of magistrates within administrative commissions. Sections 3° and 4° authorise adapting legislation relating to intellectual property. Section 5° allows the Government to define the conditions under which attorneys admitted to the bars of Non-member States of the European Union can give legal advice and draft certain private deeds. Section 6° lays out the drafting of ordinances of the legislative part of the Penitentiary Code. Section 7° allows the Government to change the rules related to drivers' licenses. Section 8° authorises framing by ordinance in each appeals court, recourse to professional interpreters and translators not on the list of legal experts. Section 9° allows for changing the rules on access to the profession of attorney. Paragraphs II and III of Article 109 sets a deadline on when ordinances can be issued as well as the submission deadline for draft laws on ratification. Finally Paragraph I of Article 110 of the contested Law allows the Government to bring a French law into compliance with a European regulation related to insolvency, by ordinance. Paragraph III of Article 110 sets the submission deadline for draft laws on ratification.

88. The appliance Members of the National Assembly hold that, given the increase in the number of authorisations during the course of the parliamentary discussion, Articles 109 and 110 "demonstrates an abuse" of the procedure established in Article 38 of the Constitution. They also contest the imprecision of the authorisations laid out in Sections 4°, 7° and 10° of Paragraph I and Article 109, as well as Article 110. They infringe on Article 38 of the Constitution. They further claim that Sections 6° and 7° of Paragraph I of Article 109 are undermined by incompetence.

89. The applicant Senators hold that Section 10° of Paragraph I of Article 109 was introduced by an amendment that had no link, even an indirect one, with the initial text of the draft law and that the authorisations that it establishes is formulated in terms that are imprecise. . Regarding the place of Section 10° of Paragraph I of Article 109 in the contested Law:

90. Introduced on first reading at the National Assembly, the provisions of Section 10° of Paragraph I of Article 109 that allow the Government to reform by ordinance the activity of the voluntary sale of items at public auction have no link, even an indirect one, with those in the draft law submitted to the office of the Senate. Adopted according to an unconstitutional procedure, they should thus be declared unconstitutional.

. Regarding the place of the other provisions of Article 109 in the contested Law:

91. Introduced on first reading at the National Assembly, the provisions of Sections 6° and 9° of Paragraph I of Article 109 that allow the Government to resort to ordinances, on the one hand, to draft the legislative part of the Penitentiary Code and, on the other hand, to modify the rules of the profession of attorney, have no link, even an indirect one, with those in the draft law submitted to the office of the Senate. Adopted according to an unconstitutional procedure, they should thus be declared unconstitutional. . Regarding the recourse to ordinances:

92. According to the first Sub-paragraph of Article 38 of the Constitution: "The Government may, to undertake its mission, ask authorisation from Parliament to adopt ordinances, during a limited time frame, that normally fall within the realm of the law". If this provision imposes an obligation on the Government to specify precisely to Parliament, as justification for the request presented by it, the purpose of the measures which it proposes to adopt by ordinance as well as the area of their involvement, it does not require the Government to inform Parliament of the substance of the ordinances that it will adopt under the terms of such authorisation;

93. First of all, Section 4° of Paragraph I of Article 109 authorises the Government to take the necessary legislative measures to implement the Agreement signed in Brussels on 19 February 2013 related to the Unified Patent Court, which has exclusive authority for civil litigation related to counterfeiting and the validity of European patents. Section 7° of the same Paragraph I authorises the Government to modify the legislative part of the Road Traffic Code, to adjust the procedures for increasing the number of points allocated during the probationary period after obtaining a drivers' licence, for young drivers enrolled in a training program after obtaining this license. Article 110 of the contested Law authorises the Government to issue ordinances for the necessary measures pursuant to the European Rule of 20 May 2015 mentioned herein above.

94. It follows from the foregoing that the authorisations established in Sections 4° and 7° of Paragraph I of Article 109 and Article 110 are precisely defined in their domains and in their outcomes. The claim that they are imprecise should thus be set aside.

95. Secondly, under the terms of Article 38 of the Constitution, the area of authorisation may include anything that falls within the realm of the law. Consequently, the claim of inapplicability of Section 7° of Paragraph I of Article 109, which allows the Government to modify certain provisions of the Road Traffic Code by ordinance, is undermined by incompetence.

96. The rest of Article 109 and 110 which do not infringe on either Article 38 of the Constitution or any other constitutional requirement should be deemed constitutional.

- Regarding the place of other provisions of the contested Law:

97. Article 106 of the contested Law grants competence to the National Council of Bars to issue an enforcement order on attorneys in the case of non-payment of their fees. Article 115 modifies the provisions relating to acquisitive prescription in the Departments of la Moselle, Bas-Rhin and Haut-Rhin. Introduced on first reading at the National Assembly, these Articles 106 and 115 do not have a link, even an indirect one, with those in the draft law submitted to the office of the Senate. Adopted according to an unconstitutional procedure, they should thus be declared unconstitutional.

- On the other provisions:

98. Article 108 of contested Law modifies Paragraph I of Article 63 of the Law of 03 June 2016 mentioned herein above. On the one hand, it corrects a material error in Section 1° of this Paragraph, which modifies Article 61-3 of the Code of Criminal Procedure. On the other hand, it modifies Section 10° of the same Paragraph, related to the rules governing visiting permits and authorisations to telephone incarcerated defendants established in Article 145-4 of the same Code.

99. The provisions of Paragraph I of Article 63 of the Law of 3 June 2016, pursuant to Paragraph VI of this Article, entered into force on 15 November 2016. Consequently, the provisions of Article 108 of the contested Law must be interpreted as modifying Articles 61-3 and 145-4 of the Code of Criminal Procedure in their drafting of Paragraph I of Article 63 of the Law of 3 June 2016. Subject to this, Article 108 is not counter to the objective of the constitutional value of accessibility and comprehensibility of the law. This Article, which does not infringe on any other constitutional requirement, should be deemed constitutional.


100. The Constitutional Council raises no other issues regarding conformity with the Constitution and has no judgement on the constitutionality of any provision other than those brought up in this decision.

THE CONSTITUTIONAL COUNCIL RULES:

Article 1. - The following provisions of the Law on the modernisation of justice in the 21st century are ruled unconstitutional:

- Section 5° of Article 51;
- Article 106;
- Sections 6°, 9° and 10° of paragraph I of Article 109;
- Article 115.

Article 2. - The following provisions of the same Law are ruled constitutional:

- Paragraphs I, II and IV of Article 3;
- Paragraph IV of Article 5;
- Article 6;
- Section 3° of Article 7;
- Articles 48, 50 and 56;
- Section 1° of Paragraph I and Sections 1° and 2° of Paragraph III of Article 57;
- Article L. 733-4 of the Consumer Code, in its drafting resulting in Section 15° of Paragraph I of Article 58, and Articles L. 741-1 and L. 741-2 of the same Code, in their drafting resulting in Section 18° of the same Paragraph;
- Articles 62, 63, 89 and 93;
- Subject to the provision in Paragraph 99, Article 108;
- The rest of Article 109;
- Article 110.

Article 3. - This decision shall be published in the Journal Officiel of the French Republic.

Deliberated by the Constitutional Council in its session of 17 November 2016, in attendance: Mr. Laurent FABIUS, Chairperson, Ms. Claire BAZY MALAURIE, Ms. Nicole BELLOUBET, Mr. Michel CHARASSE, Mr. Valéry GISCARD d'ESTAING, Mr. Jean-Jacques HYEST, Mr. Lionel JOSPIN, Ms. Corinne LUQUIENS, Ms. Nicole MAESTRACCI and Mr. Michel PINAULT.