Version en anglais - 2016-741 DC

Decision no. 2016-741 DC of 08 December 2016 - Law relating to transparency, the fight against corruption and the modernisation of economic life -

THE CONSTITUTIONAL COUNCIL WAS ASKED TO DECIDE, under the conditions described in Article 61, second Sub-paragraph of the Constitution, regarding the Law relating to transparency, the fight against corruption and the modernisation of economic life under number 2016-741 DC by the President of the Senate, on 15 November 2016.
Also in attendance on 15 November 2016, Mr. Bruno RETAILLEAU, Mr. Pascal ALLIZARD, Mr. Gérard BAILLY, Mr. François BAROIN, Mr. Philippe BAS, Mr. Jérôme BIGNON, Mr. François BONHOMME, Mr. Gilbert BOUCHET, Mr. François-Noël BUFFET, Mr. François CALVET, Ms. Agnès CANAYER, Mr. Jean-Pierre CANTEGRIT, Mr. Jean-Claude CARLE, Ms. Caroline CAYEUX, Mr. Gérard CÉSAR, Ms. Anne-CHAIN-LARCHÉ, Mr. Patrick CHAIZE, Mr. Pierre CHARON, Mr. Daniel CHASSEING, Mr. Alain CHATILLON, Mr. René DANESI, Mr. Mathieu DARNAUD, Ms. Isabelle DEBRÉ, Mr. Francis DELATTRE, Mr. Robert del PICCHIA, Mr. Gérard DÉRIOT, Ms. Catherine DEROCHE, Ms. Jacky DEROMEDI, Ms. Marie-Hélène DES ESGAULX, Ms. Chantal DESEYNE, Ms. Catherine DI FOLCO, Mr. Éric DOLIGÉ, Mr. Philippe DOMINATI, Ms. Nicole DURANTON, Mr. Louis DUVERNOIS, Mr. Jean-Paul ÉMORINE, Ms. Dominique ESTROSI SASSONE, Mr. Hubert FALCO, Mr. Michel FORISSIER, Mr. Christophe FRASSA, Ms. Joëlle GARRIAUD-MAYLAM, Mr. Jean-Claude GAUDIN, Mr. Jacques GAUTIER, Mr. Jacques GENEST, Mr. Bruno GILLES, Ms. Colette GIUDICELLI, Mr. Alain GOURNAC, Mr. Jean-Pierre GRAND, Mr. Daniel GREMILLET, Mr. François GROSDIDIER, Mr. Jacques GROSPERRIN, Ms. Pascale GRUNY, Mr. Charles GUENÉ, Ms. Christiane HUMMEL, Mr. Jean-François HUSSON, Ms. Corinne IMBERT, Mr. Alain JOYANDET, Mr. Roger KAROUTCHI, Mr. Guy-Dominique KENNEL, Mr. Marc LAMÉNIE, Ms. Élisabeth LAMURE, Mr. Robert LAUFOAULU, Mr. Daniel LAURENT, Mr. Jacques LEGENDRE, Mr. Dominique de LEGGE, Mr. Jean-Pierre LELEUX, Mr. Jean-Baptiste LEMOYNE, Mr. Jean-Claude LENOIR, Mr. Philippe LEROY, Ms. Vivette LOPEZ, Mr. Claude MALHURET, Mr. Jean-François MAYET, Ms. Colette MÉLOT, Ms. Marie MERCIER, Mr. Alain MILON, Mr. Albéric de MONTGOLFIER, Ms. Patricia MORHET-RICHAUD, Mr. Jean-Marie MORISSET, Mr. Philippe MOUILLER, Mr. Louis NÈGRE, Mr. Louis-Jean de NICOLA?, Mr. Claude NOUGEIN, Mr. Jean-Jacques PANUNZI, Mr. Philippe PAUL, Mr. Cyril PELLEVAT, Mr. Cédric PERRIN, Mr. Jackie PIERRE, Mr. François PILLET, Mr. Rémy POINTEREAU, Mr. Ladislas PONIATOWSKI, Mr. Jean-Pierre RAFFARIN, Mr. Henri de RAINCOURT, Mr. Michel RAISON, Mr. Jean-François RAPIN, Mr. André REICHARDT, Mr. Charles REVET, Mr. Bernard SAUGEY, Mr. René-Paul SAVARY, Mr. Michel SAVIN, Mr. Bruno SIDO, Mr. Abdourahamane SOILIHI, Mr. André TRILLARD, Ms. Catherine TROENDLÉ, Mr. Michel VASPART, Mr. Alain VASSELLE, Mr. Hilarion VENDEGOU, Mr. Jean-Pierre VIAL and Mr. Jean-Pierre VOGEL, Senators.
Also in attendance on 15 November 2016, Mr. Christian JACOB, Mr. Damien ABAD, Mr. Bernard ACCOYER, Mr. Yves ALBARELLO, Mr. Sylvain BERRIOS, Mr. Xavier BRETON, Mr. Philippe BRIAND, Mr. Dominique BUSSEREAU, Mr. Gilles CARREZ, Mr. Jérôme CHARTIER, Mr. Gérard CHERPION, Mr. Guillaume CHEVROLLIER, Mr. Alain CHRÉTIEN, Mr. Éric CIOTTI, Mr. Philippe COCHET, Mr. François CORNUT-GENTILLE, Mr. Bernard DEBRÉ, Mr. Bernard DEFLESSELLES, Ms. Sophie DION, Mr. Jean-Pierre DOOR, Mr. David DOUILLET, Mr. Georges FENECH, Ms. Marie-Louise FORT, Mr. Marc FRANCINA, Mr. Yves FROMION, Mr. Sauveur GANDOLFI-SCHEIT, Mr. Hervé GAYMARD, Mr. Guy GEOFFROY, Mr. Bernard GÉRARD, Mr. Daniel GIBBES, Mr. Franck GILARD, Mr. Georges GINESTA, Mr. Claude GOASGUEN, Mr. Philippe GOSSELIN, Ms. Arlette GROSSKOST, Mr. Jean-Jacques GUILLET, Mr. Michel HERBILLON, Mr. Antoine HERTH, Mr. Patrick HETZEL, Mr. Christian KERT, Mr. Jean-François LAMOUR, Mr. Guillaume LARRIVÉ, Mr. Charles de LA VERPILLIÈRE, Ms. Isabelle LE CALLENNEC, Mr. Marc LE FUR, Mr. Pierre LELLOUCHE, Mr. Jean LEONETTI, Mr. Pierre LEQUILLER, Mr. Philippe LE RAY, Ms. Geneviève LEVY, Ms. Véronique LOUWAGIE, Mr. Lionnel LUCA, Mr. Jean-François MANCEL, Mr. Laurent MARCANGELI, Mr. Thierry MARIANI, Mr. Alain MARLEIX, Mr. Olivier MARLEIX, Mr. François de MAZIÈRES, Ms. Dominique NACHURY, Mr. Yves NICOLIN, Mr. Bernard PERRUT, Ms. Josette PONS, Mr. Frédéric REISS, Mr. André SCHNEIDER, Mr. Jean-Marie SERMIER, Mr. Fernand SIRÉ, Mr. Éric STRAUMANN, Mr. Claude STURNI, Mr. Pascal THÉVENOT, Mr. François VANSSON, Ms. Catherine VAUTRIN, Mr. Patrice VERCHÈRE, Mr. Arnaud VIALA, Mr. Philippe VITEL, Mr. Michel VOISIN, Mr. Laurent WAUQUIEZ, Mr. Éric WOERTH and Ms. Marie-Jo ZIMMERMANN, Members of the National Assembly.
It was asked to decide by the Prime Minister on 7 December 2016.
In light of the following texts and items:
- the Constitution;
- Ordinance no. 58-1067 of 7 November 1958 as amended, concerning the Basic Law on the Constitutional Council;
- the Commercial Code;
- the Electoral Code;
- the General Tax Code;
- the Monetary and Financial Code;
- the Criminal Code;
- the Code of Civil Enforcement Procedures;
- the Code of Criminal Procedure;
- the Code of Research;
- the Rural Code;
- the Transport Code;
- the Fiscal Procedures Register;
- the organic law relating to the authority of the Defender of Rights for the assistance and protection of whistle blowers, adopted on 8 November 2016 by the decision of the Constitutional Council number 2016-740 DC of 8 December 2016;
- the Law of 29 July 1881 on the freedom of the press;
- Ordinance no. 58-1100 of 17 November 1958 on the operation of the parliamentary assemblies;
- Law no. 83-634 of 13 July 1983 on the rights and obligations of officials;
- Law no. 88-227 of 11 March 1988 on the financial transparency of political life;
- Law 2013-672 of 26 July 2013 on the separation and regulation of banking activities;
- Law no. 2013-907 of 11 October 2013 on the transparency of public life;
- the observations of the Government, registered on 29 November 2016;
And having heard the rapporteur;
THE CONSTITUTIONAL COUNCIL WAS ASKED TO DECIDE ON THE FOLLOWING:


1. The President of the Senate, the applicant Senators and Members of the National Assembly defer to the Constitutional Council regarding the Law relating to transparency, the fight against corruption and the modernisation of economic life. They contest its Article 25. The applicant Senators and Members of the National Assembly also criticise certain provisions of its Article 49 and Articles 137 and 155. The applicant Senators also criticise certain provisions of Articles 17 and 123 and Articles 6, 8, 30, 36, 59, 60, 66, 82, 126, 134, 135, 156, 158, 159, 161, 162 and 163. The applicant Members of the National Assembly also criticise its Articles 87 to 91. The Prime Minister asks the Constitutional Council to decide on the constitutionality of its Article 23.

- On Articles 6 and 8:
2. Article 6 gives a definition of a whistle blower. Article 7 exempts this person from criminal responsibility for divulging certain secrets protected by the law under three cumulative conditions: the divulging of secrets must be necessary and proportionate for safeguarding the interests at hand; the whistle blower must conform to the definition given in Article 6; he or she must have followed the procedures for reporting established under the law. Article 8 organises the procedures for reporting. This procedure requires that the person in question first bring it to the attention of his or her direct or indirect supervisor, to his or her employer or designated point of contact. In the absence of diligence of this person, reporting may then be addressed to the judicial authority, the administrative authority or to professional bodies. If these persons do nothing within three months, it may be made public. In the event of grave and imminent danger or irreversible risk of harm, reporting may be done directly to the judicial authority, the administrative authority or to professional bodies and made public. Paragraph III of Article 8 imposes on certain public or private bodies, under the conditions set by Decree in the Conseil d'État, to put in place the appropriate procedures for reporting information for their personnel and their external or occasional associates. Paragraph IV establishes that any person may ask the Defender of Rights to be directed to the appropriate organisation to report to.
3. The applicant Senators criticise Article 6 for the imprecise definition of a whistle blower. It results in an infringement on the principle of legality of criminal offences and penalties, of Article 34 of the Constitution, of the principle of equality and the principle of the proportionality of penalties, insofar as this definition determines how the exemption from criminal responsibility is applied, as laid out in Article 7 of the contested law. The applicant Senators also believe that because of the imprecision of the expression "serious threat or harm to the public interest", this provision is contrary to the objective of the constitutional value of accessibility and comprehensibility of the law.
4. Furthermore, the applicant Senators criticise Article 8 for infringing upon this same objective of accessibility and comprehensibility of the law insofar as, whereas the definition of whistle blower described in Article 6 defines a "natural person", without further precisions, the process of reporting defined in this Article 8 seems to only concern employees of an organisation that this reporting is about.
5. 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 the Rights of Man and the Citizen 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, the determination of which has only been granted to the law by the Constitution.
6. First of all, Article 6 defines a whistle blower as "a natural person who reveals or reports, in a disinterested way and in good faith, a crime or offence, a serious and obvious violation of an international commitment duly ratified or approved by France, of a unilateral act of an international organisation taken on the base of such a commitment, of the law or regulations, or a serious threat or harm to the public interest that this person has personally become aware of". However, it excludes from the legal regime regarding whistle blowers, as defined in Chapter II of the contested law, facts, information or documents covered by the confidentiality of national defence, medical confidentiality and attorney-client confidentiality. The criteria thus selected for defining whistle blowers are not imprecise.
7. Secondly, the procedure for reporting established in Article 8 is organised in three successive phases, the order of which is established by the law. However, the first of these phases, which sets out that the reporting is to be addressed to a supervisor, an employer or a designated point of contact only relates to a person employed by the organisation in question or, pursuant to Paragraph III of Article 8, an external or occasional associate of this organisation. Also, the protections granted by Article 10 to 12, regarding whistle blowers responding to the conditions of Articles 6 to 8, are limited to the discrimination they are likely to be subject to in their professional life. It also follows from the objectives of Articles 8 and 10 to 12 that the legislature intended to limit the scope of the application of Article 8 only to whistle blowers reporting on the organisations that employ them or that are associated with them in a professional framework. The fact that the legislature kept a more general definition of a whistle blower in Article 6, not limiting it to persons employed by the organisation in question nor its associates, does not make the contested provisions incomprehensible. In fact, this definition seeks to apply not only to the cases set out in Article 8, but also to other whistle-blowing procedures established by the legislature, outside of a professional framework.
8. Regarding the foregoing, Articles 6 and 8 do not infringe upon the objective of the constitutional value of accessibility and comprehensibility of the law.
9. Article 6 of the contested law, which does not infringe either on the principle of legality of criminal offences and penalties, or on Article 34 of the Constitution, or the principle of equality or of the proportionality of penalties, is constitutional. The same is true for Article 8 of the contested law.

- On certain provisions of Article 17:
10. Paragraph I of Article 17 requires managers of companies that employ at least five hundred employees and the revenue of which is above one hundred million euros, or those belonging to a group having these numbers, to implement internal measures to prevent and detect corruption and influence peddling. It lays out the same obligation for managers of public establishments with industrial or commercial activities regarding the same criteria or belonging to a public group having the same numbers. Paragraph II defines the measures and procedures that must be put in place by the managers mentioned in Paragraph I. It states that failure to do so shall cause the managers and the company to be responsible. Paragraph III entrusts the French Anti-corruption Agency, created by Article 1 of the contested law, with oversight regarding respect for the measures and procedures described in Paragraph II. Paragraph IV states that, in the event this is flouted, the magistrate that leads the French Anti-corruption Agency shall send a warning to the representatives of the company. This magistrate may also bring the matter before the sanction commission of this agency for it to impose an injunction or pecuniary sanction. Paragraph V states that the amount of this sanction, which shall be proportional to the gravity of the infringements found and the financial situation of the person, may not exceed 200,000 euros for natural persons and one million euros for legal persons.
11. The applicant Senators claim that Paragraph V of Article 17 is unclear as it allows the sanction commission of the French Anti-corruption Agency to inflict pecuniary sanctions upon companies, whereas the obligation for prevention and detection that it establishes only falls on their managers. It leads to an infringement upon the principle of legality of criminal offences and penalties, and the objective of the constitutional value of accessibility and comprehensibility of the law. They also claim that this objective is infringed upon by the use of the terms "group of companies" and "public group" in the first Sub-paragraph of Paragraph I, which do not correspond to defined legal notions.
12. Article 8 of the 1789 Declaration provides that: "The law shall only establish penalties that are strictly and clearly necessary, and one shall only be punished under a law that has been established and enacted prior to the criminal offence, and that is legally applicable". Pursuant to Article 34 of the Constitution: The law shall establish the rules concerning ... the determination of crimes and offences as well as their applicable penalties". Pursuant to Article 34 of the Constitution, as well as the principle of the legality of criminal offences and penalties according to Article 8 of the 1789 Declaration, the legislator is under the obligation to determine the scope of criminal law and to define criminal offences and other offences in sufficiently clear and precise terms to avoid arbitrariness;
13. Firstly, the last Sub-paragraph of Paragraph II of Article 17 expressly states that flouting the obligations established in this paragraph shall cause the managers mentioned in Paragraph I to be responsible as well as those of the companies. As a result, the obligation to implement internal prevention and detection measures regarding corruption and influence peddling falls both on the managers and on the companies.
14. Secondly, on the one hand, the terms "group of companies" appearing in the first Sub-paragraph of Paragraph I of Article 17 must be understood as referring to the unit formed by a company and its subsidiaries under Article L. 233-1 of the Commercial Code or as the unit formed by a company and those that it controls under Article L. 233-3 of this same code. On the other hand, the terms "public group" appearing in the same Sub-paragraph of Paragraph I of Article 17 refer to organisations qualified as determined by the law.
15. The provisions of Paragraphs I and V of Article 17 of the contested law do not infringe upon the principle of the legality of criminal offences and penalties, the objective of the constitutional value of accessibility and comprehensibility of the law, or any other constitutional requirement. Therefore, they should be declared constitutional.

- On Article 23:
16. Article 23 modifies Articles 705 and 705-1 of the Criminal Code in order to grant to the Public Prosecutor and the Paris Investigating and Trial Jurisdictions the exclusive authority to pursue, investigate and judge the criminal offences of corruption, influence peddling, tax fraud, omissions in records or keeping inaccurate or false records, when these crimes are committed by an organised group. The same is true for the offences of tax fraud, omissions in records or keeping inaccurate or false records when there are blatant presumptions that result in one of the behaviours mentioned in Section 1 to 5 of Article L. 228 of the Fiscal Procedures Register. Article 23 of the contested law also grants exclusive authority to this Prosecutor and these Jurisdictions in regard to money laundering.
17. The Prime Minister submits that these provisions infringe upon the requirement for the proper administration of justice and Article 34 of the Constitution because of their imprecision. These provisions also contravene the requirements from Article 16 of the 1789 Declaration and the principle of equality before the law insofar as they allow the administration to choose the competent jurisdiction.
18. The proper administration of justice includes the objective of the constitutional value set out in Articles 12, 15 and 16 of the 1789 Declaration.
19. According to Article 13 of the 1789 Declaration: "To maintain the public force and administrative expenditures, a common contribution is necessary, and it must be equally shared by all citizens, according to their means". This leads to the objective of the constitutional value of the fight against tax fraud.
20. The contested provisions grant the Public Prosecutor and the Paris Investigating and Trial Jurisdictions the exclusive authority to pursue, investigate and judge offences which are currently subject to a competing authority between, on the one hand, this Prosecutor and these Jurisdictions, and on the other hand, other competent territorial prosecutors and jurisdictions. In this case, given the gravity of the deeds punished by the infractions in question, particularly the fight against tax fraud, and by not establishing temporary provisions to prevent the procedural irregularities that may arise from this transfer of competent authority, the legislature infringed upon both the objective of constitutional value and the proper administration of justice and that of the fight against tax fraud.
21. Without examining other complaints, Article 23 of the contested law should therefore be declared unconstitutional.

- On Article 25:
22. Paragraph I of Article 25 of the contested law introduces a section 3 bis in the Law of 11 October 2013, mentioned hereinabove, entitled "Transparency Between Interest Representatives and Public Powers" and includes Articles 18-1 to 18-10. Article 18-1 creates a digital repository seeking to ensure information for citizens on the relations between Interest Representatives and public powers, shared by the parliamentary assemblies, governmental and administrative authorities and territorial collectivities. The content of this repository is made public by the Haute autorité pour la transparence de la vie publique [the French High Authority for the Transparency of Public Life]. Article 18-2 defines the notion of Interest Representatives. Article 18-3 lays out the compliance obligations to which the Interest Representatives are subject. Article 18-4 grants to each parliamentary assembly the responsibility to determine and implement the applicable rules regarding Interest Representatives. Article 18-5 defines the code of conduct obligations incumbent upon these Representatives in their relations with governmental and administrative authorities and territorial collectivities. The obligations may be specified "within a code of conduct of the Interest Representatives" defined by Decree in the Conseil d'État, with a public opinion of the Haute autorité pour la transparence de la vie publique. Articles 18-6 and 18-7 grant the power to this Authority to ensure respect for the obligations in Articles 18-3 and 18-5 by these Interest Representatives. Article 18-8 gives regulatory power to establish the application methods of Articles 18-5 to 18-7. Articles 18-9 and 18-10 enact criminal sanctions in the event of infringement by Interest Representatives in regard to their compliance and ethical obligations. Paragraph II of Article 25 of the contested law introduces an Article 4 quinquies in the Ordinance of 17 November 1958 mentioned hereinabove, granting the office of each parliamentary assembly the right to determine the applicable rules for the Interest Representatives within this assembly. Paragraphs III and IV of Article 25 of the contested law contain coordination measures and determine the conditions under which these new provisions shall enter into force.
. With regard to the claim of infringement on the principle of separation of powers:
23. The President of the Senate and the applicant Members of the National Assembly claim that Article 25 of the contested law violates the principles of the separation of powers and the autonomy of parliamentary assemblies on the grounds that the list of Interest Representatives included in the repository will be decided by the Haute autorité pour la transparence de la vie publique and that it will also be imposed on the assemblies. They will thus be deprived of the power to determine the scope of application of the regime regulating their relations with the Interest Representatives, the qualification of which depends upon an external administrative authority.
24. According to Article 16 of the 1789 Declaration: «A society in which the observance of the law is not assured, nor the separation of powers defined, has no constitution at all?.
25. First of all, improving the transparency of relations between the Interest Representatives and the public powers constitutes a public interest objective. To achieve this objective, the legislature is permitted to define the obligations incumbent upon the Interest Representatives and to grant oversight to the Haute autorité pour la transparence de la vie publique. However, this authority, unless the principle of the separation of powers is infringed upon, cannot grant the ability to impose obligations on members of parliamentary assemblies, their associates or agents of their services, in their relations with these Interest Representatives.
26. The contested provisions have neither for purpose nor for effect to grant this authority the power to impose obligations on members of parliamentary assemblies, their associates or agents of their services, in their relations with these Interest Representatives.
27. Secondly, on the one hand, the code of conduct applicable to the Interest Representatives in their relations with parliamentary assemblies are, according to Article 18-4 of the Law of 11 October 2013, determined and implemented under the conditions laid out in Article 4 quinquies in the Ordinance of 17 November 1958. According to this last Article, the office of each parliamentary assembly shall determine the applicable rules for the Interest Representatives engaging with the members of the assembly, their associates or the agents of the services of this assembly. Additionally, the relations between the Interest Representatives maintained by the Members of the National Assembly and the Senators, their associates or the agents of the services of a parliamentary assembly are governed by the specific rules of each assembly. The content of this regulation is freely defined by the office of each assembly. Respect for these rules is ensured by internal procedures involving the authorities in charge of parliamentary ethics, which may require an Interest Representative to respect his or her obligations.
28. On the other hand, the contested provisions, without infringing upon the principle of the separation of powers, cannot forbid parliamentary assemblies to determine, with regard to Interest Representatives, specific rules pertaining to certain categories among them, or to take individual measures that pertain to them.
29. Additionally, the provisions shall not deprive each parliamentary assembly the possibility to enact rules applicable to other persons who, not responding to the definition of Interest Representative laid out in Article 18-2 of the Law of 11 October 2013, engage with members of this assembly, their associates of agents.
30. Lastly, the contested provisions have neither for purpose nor for effect to grant the Haute autorité pour la transparence de la vie publique the power to impose obligations on public heads of governments and administrations mentioned in Article 18-2 of the Law of 11 October 2013, in their relations with the Interest Representatives.
31. Given the effects attached to the capacity of Interest Representative, it follows from the foregoing that by defining this notion and granting an independent administrative authority to the role of overseeing recordings in the common repository of the persons embodying this qualification, the legislature has not, with reserve to what is laid out in Paragraph 28, infringed upon the principle of the separation of powers.
. With regard to the claims about the infringement upon the principle of legality of offences and penalties, of Article 34 of the Constitution and the constitutional objective of accessibility and comprehensibility of the law:
32. According to the President of the Senate, by not defining the Interest Representatives in a sufficiently precise manner, while still subjecting them to criminal sanctions, the legislature infringed upon the principle of legality of offences and penalties. The applicant Members of the National Assembly contest the imprecision of the definition of Interest Representative insofar as it references a "key or regular" activity having an influence on public decision making. These provisions also infringe upon the objective of the constitutional value of accessibility and comprehensibility of the law. The applicant Senators also criticise the imprecision of the definition of Interest Representative, which is incomprehensible and inadequate.
33. Article 18-2 of the Law of 11 October 2013, as amended by the contested law, defines Interest Representatives, on the one hand, as legal persons under private law, public establishments or public groups exercising an industrial and commercial activity, and chambers of commerce and industry and chambers of trades and crafts, where a manager, an employee or a member has the main or regular activity of influencing public decision making, specifically on the content of a law or regulatory act, engaging with one of the public officials described in Sections 1 to 7 of this Article. On the other hand, Interest Representatives are natural persons who are not employees of one of these legal persons and who individually exercise a professional activity under the same conditions.
34. Article 18-9 of the same Law penalises an Interest Representative if, on his or her own initiative or at the request of the Haute autorité pour la transparence de la vie publique, he or she does not communicate the information that is supposed to be supplied pursuant to Article 18-3, this being punishable by a year of prison time and a fine of 15,000 euros. The first Sub-paragraph of Article 18-10 includes the same punishments for an Interest Representative having received prior formal notice from the Haute autorité to respect the ethical obligations established in Article 18-5, of again infringing upon this same obligation in the three following years. The second Sub-paragraph of Article 18-10 includes the same punishments for an Interest Representative having received prior formal notice from the President of the parliamentary assembly to respect the rules established in the office of this assembly pursuant to Article 18-4 and again infringing upon this same obligation in the three following years.
35. By referencing an activity having an influence on public decisions making, specifically on the content of a law or regulatory act, the contested provisions define the Interest Representative in terms that are sufficiently clear and precise. By requiring that this activity be practised in a "main or regular" way, the legislature sought to exclude from this definition persons exercising an influence activity that is only in an accessory and infrequent manner. It follows from this that the contested provisions are neither inadequate nor contrary to the objective of the constitutional value of comprehensibility and accessibility of the law.
36. However, by issuing offences regarding the infringement upon obligations, the content of which has not been defined by the law but by the office of each parliamentary assembly, the legislature infringed upon the principle of the legality of offences and penalties. Therefore, the second Sub-paragraph of Article 18-10 of the Law of 11 October 2013, as amended by Article 25 of the contested law, should be declared unconstitutional. The same is consequently true for the last sentence of the third Sub-paragraph of Article 4 quinquies of the Ordinance of 17 November 1958, equally amended, the words "with the exception of the second Sub-paragraph of Article 18-10" in the second and seventh Sub-paragraph of Paragraph IV of Article 25 of the contested law, as well as the fourth Sub-paragraph of the same Paragraph IV.
. 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 by excluding from the definition of Interest Representatives persons who are only occasionally involved in public powers, the legislature infringed upon the principle of equality before the law. According to the applicant Senators, this principle is also infringed upon insofar as the contested provisions establish a difference of treatment between local elected officials and territorial collectivities.
38. 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;
39. On the one hand, by limiting the scope of the new obligations to persons exercising a main or regular activity involved in public decision making, without extending it to all persons exercising this activity in an accessory and infrequent manner, the legislature has treated persons in different situations differently. This difference in treatment is directly related to the law, which seeks to ensure the provision of information for citizens on the relations between Interest Representatives and public powers.
40. On the other hand, a person may, where applicable, be qualified as an Interest Representative once he or she engages with certain elected officials of the territorial collectivities and public establishments for inter-communal cooperation that complies with certain demographic or financial thresholds. Since the obligations of the contested provisions fall on Interest Representatives and not on the public officials that they are engaging with, the legislature has not, by defining these thresholds, instituted any different treatment between elected officials and territorial collectivities.
41. Consequently, the claim of the infringement upon the principle of equality before the law should be set aside.
. With regard to the claim of infringement upon the freedom of enterprise:
42. The applicant Senators claim that publicising the amount spent on actions related to the representation of interests, established in Section 3 of Article 18-3 of the Law of 11 October 2013, disproportionately harms the freedom of enterprise, with regard to business confidentiality.
43. The legislator is free to subject the freedom of enterprise, as resulting from Article 4 of the 1789 Declaration, to limitations associated with constitutional requirements or which are justified by the public interest, provided that this does not result in harm that is disproportionate to the objective pursued.
44. On the one hand, by adopting these contested provisions, the legislature sought to improve the transparency of relations between Interest Representatives and public powers. In so doing, it sought the goal of the public interest.
45. On the other hand, the contested provisions are limited in that any Interest Representative must communicate to the Haute autorité pour la transparence de la vie publique "the actions related to the field of the representation of interests" from the public officials mentioned in Sections 1 to 7 of Article 18-2, specifying the amount spent during the previous year. These provisions do not, neither for purpose nor for effect, seek to compel the Interest Representative to specify each of the actions implemented and the corresponding amount spent. By only requiring the disclosure of the total data and the overall amounts related to the past year, the contested provisions do not disproportionately harm the freedom of enterprise.
46. It follows from the foregoing that, with the exception of the provisions declared unconstitutional in Paragraph 36, and subject to the conditions set out in Paragraph 28, the rest of Article 25, which infringes upon no other constitutional requirement, should be declared constitutional.
- On Article 30:
47. Article 30 of the contested law modifies Article 52-12 of the Electoral Code and Article 11-7 of the Law of 11 March 1988 mentioned hereinabove, in order to make public certain information relating to loans taken out by candidates in an election to finance their campaign as well as loans taken out or agreed to by political parties or groups.
48. The applicant Senators believe that these provisions impose an unconstitutional limit to the free exercise of the activities of political parties and groups, guaranteed by Article 4 of the Constitution.
49. Pursuant to the last sentence of the first Sub-paragraph 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 was submitted or transmitted, shall be admissible on first reading".
50. Introduced on first reading, these provisions do not have a link, even an indirect one, with the provisions that are in the draft Law in question in the National Assembly. Therefore, they were adopted according to a procedure that is unconstitutional. Consequently, without examining other complaints raised by the Senators, Article 30 of the contested law should be declared unconstitutional.
- On certain provisions of Article 49:
51. The third to the tenth Sub-paragraphs of Part (b) of Section 2 of Article 49 of the contested law introduce a Section 5 ter in Article L. 631-2-1 of the Monetary and Financial Code. These provisions allow the Haut conseil de stabilité financière to take different macroprudential conservation measures regarding enterprises and organisations in the insurance sector mentioned in Sections 1 to 5 of B of Paragraph I of Article L. 612-2 of this Code.
52. The applicant Members of the National Assembly and Senators claim that the conservation measures that the Haut conseil de stabilité financière can take regarding insurance, pursuant to Section 5 ter of Article L. 631-2-1 of the Monetary and Financial Code, infringes upon the right to property, protected by Articles 2 and 17 of the 1789 Declaration. They also claim that these provisions temporarily limit the payment of the redemption value of life insurance policies, which disproportionally harms the contractual freedom and economics of existing contracts.
53. Property is included under the human rights established by Articles 2 and 17 of the 1789 Declaration. Pursuant to Article 17: "Since property is an inviolable and sacred right, no one shall be deprived thereof except where public necessity, legally determined, shall clearly demand it, and then only on condition that the owner shall have been previously and equitably indemnified". In the absence of depriving the right to property under this Article, Article 2 of the 1789 Declaration states nevertheless that infringement of this right must be justified by public interest and proportional to the objective sought.
54. The legislator is free to subject the contractual freedom, as resulting from Article 4 of the 1789 Declaration, to limitations associated with constitutional requirements or which are justified by the public interest, provided that this does not result in harm that is disproportionate to the objective pursued. Furthermore, the legislature shall not infringe upon contracts legally entered into when such infringement is not sufficiently justified by the public interest, without disregarding the requirements of Articles 4 and 16 of the 1789 Declaration.
. With regard to the claim of the infringement of Article 17 of the 1789 Declaration:
55. The measures that may be taken by the Haut conseil de stabilité financière, regarding the contested provisions, in regard to enterprises and organisations in the insurance sector may only be implemented for limited lengths of time. These measures are the following: limiting the exercise of certain operations or activities; restricting the free release of all or part of the assets; limiting the payment of the redemption value; delaying or limiting the arbitration option or the payment of advances; limiting the distribution of dividends to shareholders or the distribution of remuneration of mutual or joint certificates or company shares to members. Given the temporary and limited character of these measures, they do not lead to deprivation of property under Article 17 of the 1789 Declaration. Therefore the claim related to the infringement of this Article should be set aside.
. Regarding the claim relating to the infringement of Articles 2, 4 and 16 of the 1789 Declaration:
56. First of all, by adopting these contested provisions, the legislature sought to prevent the risk of a serious and blatant threat related to either the stability of the financial system or the financial situation of all or a large sub-group of the insurance sector. The prerogatives granted to the Haut conseil de stabilité financière specifically sought to counter the risks, for investors and for the financial system in its entirety, that may result from a massive outflow of funds placed in life insurance policies. In so doing, it sought the goal of the public interest.
57. Secondly, the conservation measures may only be taken by the Haut conseil de stabilité financière on the proposal of the Governor of the Bank of France, after receiving the opinion of the supervisory board of the Autorité de contrôle prudentiel et de résolution. Furthermore, when it resorts to these measures, the Haut conseil must oversee the protection, not only of financial stability in its entirety, but also of the interests of policyholders, subscribers and beneficiaries.
58. On the other hand, these measures are for a maximum period of three months. They may only be renewed if the conditions justifying their implementation are still present and after having received the opinion of the Comité consultatif de la législation et de la réglementation financières [the French consulting committee on financial legislation and regulation]. Furthermore, if the measures limiting the payment of the redemption value, as set out in Part (c) of Section 5 ter, temporary deprive the policyholders the right to withdraw all or part of the capital under their life insurance policies, these measures may only be maintained for six consecutive months.
59. Finally, pursuant to Part (c) of Section 2 of Article 49 of the contested law, the conservation measures taken by the Haut conseil de stabilité financière shall be made public and are subject to an appeal for annulment before the Conseil d'État.
60. Given the goal of the public interest sought and the different legal guarantees, the infringement of the contested provisions regarding the right of property, contractual freedom and the right to maintain contracts legally entered into is not disproportionate. Therefore the claims regarding the infringement for Articles 2, 4 and 16 of the 1789 Declaration should be set aside. Consequently, the third to the tenth Sub-paragraphs of Part (b) of Section 2 of Article 49 of the contested law, which do not infringe upon any other constitutional requirement, should be declared constitutional.

- On Articles 59 and 60:
61. Articles 59 and 60 relating to the conditions under which the constraint measures may be implemented for goods located in France belonging to a foreign country, for the creditors of these countries.
62. Article 59 includes three Articles L. 111-1-1 to L. 111-1-3 in the Code of Civil Enforcement Procedures. Article L. 111-1-1 establishes that prior authorisation from a judge is necessary to implement conservation or enforcement measures for goods belonging to a foreign country. By applying Article L. 111-1-2, this authorisation may be granted if the country expressly agrees to such a measure or if it reserved or allocated this good to the satisfaction of the request the procedure pertains to. This can also happen if a judgement or arbitration sentence is handed down against this country, that the good may be used for anther purpose than for non-commercial public services and that it "maintains a link with the entity against which the procedure is initiated" Finally, Article L. 111-1-3 provides that the conservation or enforcement measures may not be implemented in the absence of the express and special renunciation of the countries in question, on the goods used or meant to be used in the undertaking of the functions of diplomatic missions of the foreign countries or their consular posts, their special missions or missions regarding international organisations.
63. According to paragraph I of Article 60, the authorisation established in Article L. 111-1-1 shall not be granted in the absence of the following three conditions: On the one hand, debt instruments justifying conservation or enforcement measures having been issued by a foreign country whilst it was included on the list of beneficiaries for official development assistance of the Organisation for Economic Cooperation and Development. On the other hand, upon the acquisition of debt instruments, this country finds itself in a default situation on this debt or having proposed a modification of the terms. Finally, the request to implement conservation or enforcement measures is presented less than forty-eight months after the beginning of this default situation, after proposal of modifying the terms of the debt instrument or after acceptance of a proposal of modifying the debt instrument by the creditors representing at least two thirds of the amount of the principal of the eligible debt.
64. Nevertheless, Paragraph IV of Article 60 provides that the judicial authorisation mentioned in Article L. 111-1-1 may be authorised when the proposal to modify the terms of the issuance contract for the debt instrument is accepted by the creditors, representing at least two thirds of the amount of the principal of the eligible debt, that it is in force and that the conservation or enforcement measures are sought for sums, the total amount of which is less than or equal to the amount that the creditor would have received if it had accepted the proposal.
65. The applicant Senators claim that Articles 59 and 60 infringe upon the right of property of the creditors and the right to obtain the enforcement of jurisdictional decisions, insofar as they impose judicial authorisation prior to the implementation of any conservation or enforcement measure.
66. Article 16 of the 1789 Declaration guarantees the right of persons to an effective legal appeal that includes obtaining the enforcement of jurisdictional decisions.
67. It is for the legislator that has jurisdiction, pursuant to Article 34 of the Constitution, to determine the fundamental rules governing systems of property, real rights and civil and commercial obligations, to determine the procedures according to which the rights of creditors and debtors must be reconciled in order to permit compliance with civil and commercial obligations. Enforcement relating to the goods of the debtor is one of the measures that ensures this conciliation.
68. The contested provisions, insofar as they limit the possibility for the creditor of a foreign country to obtain implementation of the conservation and enforcement measures on a good belonging to this country, infringe on the creditor's right to property.
69. However, firstly, by adopting these provisions, the legislature sought to protect the property of foreign public persons. Specifically, it sought to ensure judicial oversight over conservation or enforcement measures regarding goods located in France that belong to foreign countries, and that may benefit from immunity under international law. It also wished to protect the goods of countries benefiting from official development assistance and exposed to financial difficulties. Therefore, it sought the objective of the public interest.
70. Secondly, on the one hand, the contested provisions allow the implementation of conservation or enforcement measures on goods belonging to foreign countries when it consents or when the goods are used for, or planned to be used for, non-commercial public services.
71. On the other hand, the creditors of a country on the list of beneficiaries of official development assistance are not deprived of the possibility of obtaining conservation or enforcement measures for this country's goods except under strictly defined conditions. Once the debit is acquired, the country will find itself in a default situation regarding this debt instrument or by having proposed modifications to its terms. Furthermore, the measure is requested less than forty-eight months after this default situation, after this modification or after a proposal of modifying the debt instrument is accepted by two thirds of the creditors. In this last case, the creditor may always further benefit from a conservation or enforcement measure for that amount equal to what it would have received if it had accepted the proposal.
72. Thirdly, the prior authorisation of the judge in applying the contested provisions is granted by ordinance upon request, which is to say by an ex-parte decision handed down in the case where the claimant is entitled to not summon the opposing party. This condition allows the creditor to move the goods under this conservation or enforcement measure.
73. Lastly, the judge in charge of authorising the constraint measure only ensures that the legal conditions of this measure are complied with.
74. It follows from the foregoing that the contested provisions do not infringe on the right of property or the right to obtain a jurisdictional decision. The provisions of Articles 59 and 60 of the contested law, which do not infringe upon any other requirement of constitutional law, should be ruled constitutional.

- On Articles 87 to 91:
75. Articles 87 to 91 change arrangements of land development and rural establishment companies as well as the rules for a company holding agricultural goods or rights.
76. Article 87 modifies Article L. 143-5 of the Rural Code to impose upon a company allowed to hold agricultural land to retain the social rights as consideration for five years.
77. Article 88 modifies Article L. 322-2 and L. 322-22 of the same Code to remove the restriction for land development and rural establishment companies from holding more than 30% of an agricultural land group or a rural land group.
78. Article 89 modifies Article L. 142-4 of the same Code to establish that land development and rural establishment companies may hold for five years, with the goal of reselling them, their shares in the capital of agricultural land groups, collective agricultural use groups or limited liability agricultural enterprises.
79. Article 90 creates, in this same Code, an Article L. 143-15-1. This new Article imposes on any legal person under private law who acquires or receives by contribution to a company, goods or rights that may give rise to a pre-emption by a land development and rural establishment company, to transfer them by way of contributing them in another company whose principal objective is agricultural property. In the case of a subsequent transfer of the majority interests of this legal person under private law having acquired or received said goods or rights, the shares or interests of the company to which they were transferred shall be considered transferred. However, Article L. 143-15-1 exempts from these obligations those companies or associations that have an agricultural purpose.
80. Article 91 modifies Article L. 143-1 of the same Code to authorise land development and rural establishment companies to exercise their right of pre-emption in the case of partial transfer of the interests or shares of a company whose main objective is agricultural property.
81. The applicant Members of the National Assembly contest these provisions for infringing on the right of property and contractual freedom for, on the one hand, the obligations to transfer that they put in place, and on the other, the extension of the right of pre-emption of land development and rural establishment companies. They also claim that the provisions infringe upon the principle of equality before the law insofar as they do not exempt obligations created by a part of the agricultural and land development companies.
82. Introduced on first reading, these provisions do not have a link, even an indirect one, with the provisions that are in the draft Law in question in the National Assembly. Therefore, they were adopted according to a procedure that is unconstitutional. Consequently, without examining other complaints raised by the Members of the National Assembly, Articles 87, 88, 89, 90 and 91 of the contested law should be declared unconstitutional.

- On certain provisions of Article 123:
83. Paragraph I of Article 123 modifies several Articles of Volume IV of the Commercial Code.
84. Sections 1 and 2 of this Paragraph modify Articles L. 441-6 and L. 443-1 of this Code. On the one hand, they institute a derogation from the applicable payment rules in the case of the sale of a product, for a professional activity, by a producer, service provider, wholesaler or importer. For the payment of VAT-exempted purchases on goods that are delivered to countries outside of the European Union, the maximum due date for payment, no matter the product purchased, is ninety days from the date the invoice is issued. These derogation provisions are not applicable to purchases made by large companies. On the other hand, these same Sections 1 and 2 impose administrative fines of 375,000 to two million euros incurred by a legal person in the case of non-compliance with the payment due-date terms for the sale of a product or provision of a service for a professional activity. This fine is also imposed in the absence of certain terms governing settlements, the setting of rates or terms for late payment penalties according to methods not in compliance with legislation or the absence of compliance with the computation methods for payment terms
85. Sections (a) and (b) of Section 3 of Paragraph I modify Article L. 465-2 of the Commercial Code to establish that the decisions of the administrative authority issuing an administrative fine sanctioning any non-compliance with the rules governing payment terms mentioned in Title IV of Volume IV of the Commercial Code are always published.
86. Paragraph III imposes administrative fines of 375,000 to two million euros incurred by public enterprises in the case of non-compliance with the payment terms to which they are subject.
87. The applicant Senators claim that the provisions of Sections 1, 2 and (a) and (b) of Section 3 Paragraph I as well as Paragraph III of Article 123, in that they increase the amount of fines incurred and lay out systematic publication of the decisions sanctioning non-compliance with the rules for payment due-date terms, infringe upon the principle of the proportionality of penalties as well as the principle of legality of offences and penalties. Furthermore, by establishing specific payment due-date terms for export activities outside of the European Union, these provisions infringe upon the principle of equality before the law.
. Regarding the claims of infringement on the principle of proportionality of penalties and the principle of legality of offences and penalties:
88. 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. If it is necessary to inflict penalties related to an infraction under the legislature's power of assessment, it falls on the Constitutional Council to ensure that there is no manifest disproportionality between the infraction and the penalties incurred.
89. First of all, by setting a penalty of a fine of two million euros in relation to non-compliance with the payment due-date terms, the legislature, both in regard to the consequences of the non-compliance with the creditors and the benefits that could be gained by the debtor, has not instituted a manifestly disproportionate penalty.
90. Secondly, by instituting an obligatory penalty of publishing sanction decisions of the administrative authority regarding payment due-date terms, the contested provisions do not preclude the length of the publication as well as other terms applied to it from being set according to the circumstances of each specific event.
91. Lastly, the contested provisions define the obligations that they enact and the sanctions incurred with sufficient precision to satisfy the principle of the legality of offences and penalties.
92. It follows from the foregoing that the claims of infringement on the principle of proportionality of penalties and the principle of legality of offences and penalties should be set aside.
With regard to the claim of the infringement on the principle of equality:
93. By providing small and medium business a longer due date for the payment of their purchases, exempted from VAT, of goods delivered outside of the European Union, the legislature intended to favour the competitiveness of those businesses, located in France, who supply the export.
94. These businesses are subject to specific due dates for obtaining payment of the goods that they sell to their clients outside of the European Union, and are in a different situation from other businesses. This difference in treatment is in line with the purposes of the law. Therefore, the claim of infringement on the principle of equality should be set aside.
95. It follows from the foregoing that Sections 1, 2 and (a) and (b) of Section 3 of Paragraph I as well as Paragraph III of Article 123 of the contested law, which do not infringe upon any other requirement of constitutional law, should be ruled constitutional.
- On Article 134:
96. Article 134 completes Article L. 225-18 of the Commercial Code in order to indicate that the ordinary general assembly of a limited company may designate a manager in charge of the oversight of digital innovation and transformation.
97. The applicant Senators claim that this Article is outside of the normative scope and, consequently, should be declared unconstitutional.
98. According to Article 6 of the 1789 Declaration: "Law is the expression of the general will... ". According to this Article and to all other provisions of constitutional standing relating to the subject matter of the law that, without prejudice to the special provisions provided for under the Constitution, the Law has the purpose of laying down rules and must accordingly have a normative scope.
99. The provisions of Article 134 of the contested law, which are limited to conferring on the ordinary general assembly of a limited company the power to entrust a manager with oversight of technological advancements, are outside of the normative scope. Therefore, this Article should be declared unconstitutional.

- On Article 137:
100. Paragraph I of Article 137 inserts, in the Commercial Code, an Article L. 225-102-4 that imposes on certain companies whose consolidated revenue exceeds 750 million euros, an obligation to declare income taxes to the public. Also to be declared, in an annual report freely accessible to the public on the internet, for each Member Country of the European Union in which the companies exercise their activity, the number of employees, the net amount of revenue, the amount of income before taxes, the amount of taxes due, the amount of taxes paid with an explanation of any incongruities regarding the amount due, and the amount of retained earnings. Other obligations to declare are established for the other Countries in which the companies exercise their activity. Paragraph II of Article 137 coordinates with Article L. 223-26-1 of the same Code. Paragraph III of Article 137 repeals Paragraphs III to V of Article 7 of the Law of 26 July 2013 mentioned hereinabove that lays out the introduction for declarations of activities country by country for certain businesses, which are not in force. Paragraph IV of Article 137 sets the methods for entry into force of these Paragraphs I to III. Paragraph V lays out a gradual reduction of the threshold of revenue for the obligation to declare publicly. Paragraph VI of Article 137 is related to an evaluation report submitted by the Government to Parliament.
101. The applicant Senators and Members of the National Assembly claim that the provisions of Article L. 225-102-4 of the Commercial Code infringe upon the freedom of enterprise in that they require French companies to divulge to the public information of a nature that may reveal their commercial strategy. The applicant Senators and Members of the National Assembly also claim that this obligation weighs on companies that are subject to an excessive burden contrary to the principle of equality in terms of public burdens.
102. By enacting Article L. 225-102-4 of the Commercial Code, the legislature sought, through transparency measures, to avoid the offshoring of tax bases to fight against fraud and tax evasion. Therefore, it sought the objective of constitutional value.
103. However, the obligation of certain companies to make public the economic and tax indicators corresponding to their activity country by country, allows all of the operators in the market or exercising these activities, particularly their competitors, to identify essential elements of their industrial and commercial strategies. Such an obligation infringes on the freedom of enterprise in a manifestly disproportionate way in terms of the objective sought. Consequently, without examining other complaints, Paragraph I of Article 137 of the contested law should be declared unconstitutional. The same is true for the rest of this Article, which is inseparable.
104. The constitutionality of a law already enacted may be examined upon reviewing the legislative provisions that modify it, complete it or affect its scope. In this regard, the provisions of Paragraph III of Article 137 declared unconstitutional has the effect of repealing Paragraphs III to V of Article 7 of the Law of 26 July 2013, which is similar to that of Paragraph I of Article 137. For these same reasons, these Paragraphs III to V of Article 7 of the Law of 26 July 2013 should also be declared unconstitutional.

- On Article 156:
105. Article 156 completes Article L. 518-4 of the Monetary and Financial Code by a Section 9, which establishes the participation of two elected representatives from the personnel of the Caisse des dépôts et consignations [Deposits and Consignments Fund] and its subsidiaries to the oversight commission of this organisation.
106. The applicant Senators claim that Article 156 is inadequate in that it does not specify the applicable rules for the election of these representatives, nor the term of their mandate.
107. Introduced on first reading, these provisions do not have a link, even an indirect one, with the provisions that are in the draft Law in question in the National Assembly. Therefore, they were adopted according to a procedure that is unconstitutional. Consequently, without examining other complaints raised by the applicant Senators, Article 156 of the contested law should be declared unconstitutional.

- On Article 161:
108. Article 161 creates a framework for remuneration of the directors of companies by the binding votes of the shareholder's general assembly. Section 1 of its Paragraph I, in the Commercial Code, creates a new Article L. 225-37-2 that lays out that the general assembly of limited companies with a board of directors shall, each year, approve a resolution related to the principles and criteria for determining, distributing and assigning fixed, variable, and exceptional elements of the total remuneration and the benefits of any nature, attributable to the directors because of their mandate. This same Article L. 225-37-2 also requires the general assembly's approval for any change in these remuneration elements as well as for renewing each mandate of the persons mentioned hereinabove. Section 6 of Paragraph I of Article 161, in the Commercial Code, creates a new Article L. 225-82-2, which institutes equivalent rules for companies with a supervisory board. Section 7 of Paragraph I of Article 161 modifies Article L. 225-100 of the Commercial Code to establish, on the one hand, that when the general assembly agrees on the principles and criteria mentioned hereinabove in regard to Articles L. 225-37-2 and L. 225-82-2, it agrees on the remuneration elements and the benefits of any nature mentioned hereinabove attributed for the prior fiscal year for the directors. Furthermore, the variable or exceptional remuneration elements, the payment of which depends on the approval by a general assembly, for the past fiscal year, can only be paid following a favourable vote in the assembly general.
109. The applicant Senators claim that the contested provisions infringe upon the objective of accessibility and comprehensibility of the law. On the one hand, Article L. 225-82-2 pertains to all of the members of the supervisory board while the new provisions of Article L. 225-100 only pertain to the chairman of this board. On the other hand, the terms "because of their mandate", used in Articles L. 225-37-2 and L. 225-82-2 do not cover remunerations paid by other companies of the same group, or those related to compensation for joining or leaving. They also claim that the provisions inserted in Article L. 225-100 undermine legal situations and bring into question the effects that may legitimately be expected from such situations.
110. First of all, on the one hand, in Articles L. 225-37-2 and L. 225-82-2, by focusing on remuneration and advantages of any nature received "because of" the mandate of the directors in question, the legislature retains the totality of the remunerations and advantages received by a director under the mandates that he or she holds. On the other hand, as the remuneration rules for members of the supervisory board are set out in Article L. 225-83 of the Commercial Code, the legislator does not determine the methods according to which the general assembly decides upon the remuneration elements paid to members of the supervisory board. The provisions of Articles L. 225-37-2, L. 225-82-2 and the provisions inserted in Article L. 225-100 do not infringe on the objective of constitutional value of accessibility and comprehensibility of the law.
111. Secondly, the legislature may at any time, within the scope of its competence, modify previous texts or repeal them and substitute other provisions for them, should the case require it. In so doing however, it may not strip the legal guarantees of constitutional requirements. Specifically, it may not, without the goal of the public interest, undermine legal situations and bring into question the effects that may legitimately be expected from such situations.
112. The provisions inserted by Article 161 of the contested law in Article L. 225-100 of the Commercial Code, that establish the new rules for the remuneration of directors, do not undermine any legal situation and do not bring into question the effects that may legitimately be expected from any such situation.
113. Consequently, the provisions of Article 161 of the contested law, which do not infringe upon any other constitutional requirement, should be ruled constitutional.
- On the provisions whose place is contested in the contested law:
114. The applicant Senators claim that Articles 36, 66, 82, 126, 135, 155, 158, 159, 162 and 163 do not have a place in this law because they were introduced on first reading according to a procedure that is contrary to Article 45 of the Constitution. The applicant Members of the National Assembly also make this claim against Article 155.
. With regard to Articles 66 and 126:
115. Article 66 modifies the rules governing over-indebtedness. Introduced on first reading, these provisions cannot be seen as being unlinked, even indirectly, with the draft law in the offices of the National Assembly, which contains provisions related to the financial protection of consumers.
116. Article 126 establishes the organisation and financing by the State in terms of training for rare or emerging professions for job seekers. Introduced on first reading, these provisions cannot be seen as being unlinked, even indirectly, with the law project in question in the National Assembly, which contains provisions modifying the requirements for professional qualification for exercising certain activities.
117. Consequently, the claims of infringement by Articles 66 and 126 of the contested law, regarding the first Sub-paragraph of Article 45 of the Constitution should be set aside.
. With regard to Article 82:
118. Article 45 of the Constitution, specifically the first sentence of the first Sub-paragraph states: "Any project or proposition of the law shall be successfully 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.
119. Paragraphs I and II of Article 82 support the information for consumers entering into a loan agreement regarding the possibility to take out loan insurance from an insurer of their choice. Introduced on first reading, these provisions cannot be seen as being unlinked, even indirectly, with the draft law project in question in the National Assembly, which contains provisions related to the financial protection rights of consumers.
120. However, Paragraph III of Article 82 establishes a yearly termination right for loan insurance. Introduced in a subsequent reading, these additions are not, at this stage of the procedure, 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.
. With regard to Articles 36, 135, 155, 158, 159, 162 and 163:
121. Article 36 changes the rules regarding the public domain in order to facilitate the undertaking of a real estate project allowing for the installation of the Institut des sciences et industries du vivant et de l'environnement [the French Institute of Technology for Life, Food and Environmental Sciences] and the Institut national de la recherche agronomique [the French National Institute for Agricultural Research] in the same development area. Article 135 inserts in the Research Code provisions relating to the "principle of innovation". Article 155 mentions the cost of waste management of tyres on the sales invoices for these provisions. Article 158 ratifies an order related to bus terminals and the recoding of the provisions of the Transport Code relating to the French authority that regulates railway and roadway activities. Article 159 allows Communes and public establishments for inter-communal cooperation to entrust certain providers with undertaking census surveys. Article 162 allows agents from the Direction générale de la concurrence, de la consommation et de la répression des fraudes [the French General Directorate for Competition Policy, Consumer Affairs and Fraud Protection] to look into and take note of any non-compliance with the rules regarding the reimbursement by aerial transporters of taxes and fees related to unused transport. Article 163 establishes exceptions to the ban for advertising "vaping" products.
122. Introduced on first reading, these provisions of Articles 36, 135, 155, 158, 159, 162 and 163 of the contested law do not have a link, even an indirect one, with those in the law project in the office of the National Assembly. Adopted according to an unconstitutional procedure, they should thus be declared unconstitutional.

- On the place of other provisions of the Law in question:
123. Article 37 grants ownership of all the land necessary to complete the Lyon-Turin railway line to the company Tunnel Euralpin Lyon Turin and grants them all of the prerogatives necessary in terms of expropriation to acquire land in the name of and for the State.
124. Article 58 extends the scope of persons who may benefit from a tax auto-liquidation plan on import VAT.
125. Article 64 prolongs the deadline for retraction that benefits the buyer of precious metals and modifies the effects of exercising this retraction right. 126. Article 86 increases infractions for abattoirs or establishments that transport live animals for mistreatment of animals.
127. Article 92 establishes the annual publication of a table containing the market value of agricultural land.
128. Article 93 shortens, under certain conditions, the deadline for advanced notice of ending concessions for land for agricultural use.
129. Article 97 requires that Chambers of Agriculture publish the minutes of their meetings.
130. Article 103 establishes that the State's service in charge of undertaking commercial economic studies must provide to the public the data it gathers on establishments whose main activity is retail business.
131. Article 112 extends agricultural micro tax benefits for limited liability agricultural businesses where the sole shareholder is a natural person in charge of this business.
132. Article 145 extends the missions of the National Institute of Industrial Property for training and support for businesses. Furthermore, it modifies the legal status of utility certificates and establishes a procedure for provisional patent application.
133. Article 157 allows for the approval of business accounts by the supervisory board of the Caisse des dépôts et consignations.
134. Article 166 revokes the administrative agreement necessary for low-income housing organisations to undertake investments in new housing in overseas territories for tax credits.
135. Introduced on first reading, these provisions of Articles 37, 58, 64, 86, 92, 93, 97, 103, 112, 145, 157 and 166 of the contested law do not have a link, even an indirect one, with those in the draft law in question in the National Assembly. Having been adopted according to an unconstitutional procedure, they should thus be declared unconstitutional.

- On other provisions:
. With regard to Article 14:
136. Article 14 lays out the methods according to which, pursuant to Section 1 of the only Article of organic law adopted on 8 November 2016 mentioned hereinabove, the Defender of Rights may grant financial aid or financial help to a whistle blower, in certain cases.
137. However, in its decisions on this date mentioned hereinabove, the Constitutional Council declared the provisions of this organic law that grants the Defender of Rights the authority to grant such financial aid or financial help unconstitutional. Consequently, Article 14 of the contested law, that specifies the terms governing the implementation of these provisions, should be declared unconstitutional.
. With regard to Paragraph VI of Article 15:
138. Paragraph VI of Article 15 modifies the first Sub-paragraph of Article 226-10 of the Criminal Code, relating to the offence of false accusations, in order to establish the responsibility of the person making such accusations "ultimately, in public" a fact that may lead to judicial, administrative or disciplinary sanctions regarding accusations that are totally or partially incorrect.
139. By incriminating accusations made "ultimately, in public" without specifying what previous acts or procedures it is in regard to, the legislature has not sufficiently defined the elements that constitute this infraction. Therefore, Paragraph VI of Article 15 of the contested law infringes on the principal of the legality of offences and penalties and should be declared unconstitutional.
140. The constitutionality of a law already enacted may be examined upon reviewing the legislative provisions that modify it, complete it or affect its scope. In this case, the provisions declared unconstitutional seek to replace the words of the first Sub-paragraph of Article 226-10 of the Criminal Code "or, ultimately, to a journalist, as defined in Article 2 of the Law of 29 July 1881 relating to the freedom of the press". For these same reasons, the words in Article 226-10 of the Criminal Code should be declared unconstitutional.
. With regard to Paragraph II of Article 19:
141. Paragraph II of Article 19 completes Article L. 154 of the Electoral Code in order to forbid someone presented as a candidate to the office of Delegate if Bulletin number 2 of his or her Judicial Record has information regarding a conviction for non-compliance with the Duty of Probity.
142. According to the first Sub-paragraph of Article 25 of the Constitution: "An organic law sets the term of the powers of each assembly, the number of its members, their compensation, the conditions of eligibility, and the terms for disqualification and incompatibility".
143. The terms for disqualification applicable to members of Parliament is included in texts relating to the organic law. As a result, Paragraph II of Article 19 of the contested law, which has the character of ordinary law and issues specifics on ineligibilities regarding the election of Members of the National Assembly in the case of condemnation for non-respect of the Duty of Probity, is inadequate. Therefore, it should be declared unconstitutional.
. With regard to Article 28:
144. Articles 27 and 28 of the contested law modify Articles 20 and 23 of the Law of 11 October 2013 and Article 25 octies of the Law of 13 July 1983 mentioned herein above. Article 27 expands the scope of the oversight of the Haute autorité pour la transparence de la vie publique for certain public agents which are either self-employed or remunerated in any business or any public establishment or public interest group where the activity is industrial or commercial. Article 28 expands the competence of the Haute autorité, until now limited to persons exercising government functions or local executive functions, to oversight of the activity of certain public agents that today are under the Commission de déontologie de la fonction publique [the French Public Service Ethics Commission]. This expansion includes, on the one hand, members of ministerial cabinets and the associates of the President of France and, on the other, persons working in positions or functions for decisions of the Government for which they are named by the Conseil des ministres.
145. In this case, by adopting these provisions, the legislature defined two procedures, presumably alternative, before two distinct authorities to oversee activity in the private sector by different categories of public agents. On the one hand, it grants competence to the Haute autorité pour la transparence de la vie publique to decide on cases of persons working in positions or functions for decisions of the Government for which they are named by the Conseil des ministres "for the three years preceding the beginning" of their activity in the private sector. On the other hand, by modifying Article 25 octies of the Law of 13 July 1983, the legislature also established that the Commission de déontologie de la fonction publique is competent, regarding public agents of the same category, "unless he or she works in positions or functions for decisions of the Government for which he or she is named by the Conseil des ministres".
146. These provisions do not exclude the Commission de déontologie de la fonction publique's competence in regard to persons who exercise, at the time of their leaving for the private sector, functions for decisions of the Government. At the same time, these provisions affirm the competence of the Haute autorité pour la transparence de la vie publique for a term of three years following the end of the activity of this nature. Therefore, these provisions, by their contradictions, undermine the objective of the constitutional value of comprehensibility and accessibility of the law. Consequently, Article 28 of the contested law should be declared unconstitutional.
. With regard to certain provisions of Article 57:
147. Article 57 of the contested law modifies the conditions for establishing the list of uncooperative countries and territories. Sections (c) and (d) of its Section 1 establishes that any ministerial decree modifying this list shall be after consultation with the permanent commission in charge of the finances of each parliamentary assembly, which will acknowledge it within a time frame of one month from the notification of the decree. The signing of this decree may only happen after the opinion of these commissions has been received or, barring that, upon the expiration of a deadline of one month.
148. By imposing the responsibility to get the opinion of the permanent commissions in charge of the finances of each parliamentary assembly prior to issuing the ministerial decree, pursuant to Article 238-0 A of the General Tax Code, defining the list of uncooperative countries and territories, Sections (c) and (d) of its Section 1 of Article 57 of the contested law introduces legislation in the implementation of regulatory power. These provisions, which infringe on the principle of the separation of powers, should be declared unconstitutional.
- On other provisions:
149. 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 on the Law relating to transparency, the fight against corruption and the modernisation of economic life are declared unconstitutional:
- Article 14;
- Paragraph VI of Article 15;
- Paragraph II of Article 19;
- Article 23;
- the second Sub-paragraph of Article 18-10 of the Law of 11 October 2013 and the last sentence of the third Sub-paragraph of Article 4 quinquies of the Ordinance of 17 November 1958, amended, Article 25 of the contested law; the words "with the exception of the second Sub-paragraph of Article 18-10" in the second and seventh Sub-paragraph of Paragraph IV of Article 25 of the contested law; the fourth Sub-paragraph of the same Paragraph IV;
- Article 28;
- Article 30;
- Section (c) and (d) of Section 1 of Article 57;
- Articles 87, 88, 89, 90 and 91;
- Article 134;
- Article 137;
- Article 156;
- Articles 36, 37, 58 and 64, Paragraph III of Article 82, Articles 86, 92, 93, 97, 103, 112, 135, 145, 155, 157, 158, 159, 162, 163 and 166.
Article 2.? Subject to the reservation set out in Paragraph 28, the rest of Article 25 of the contested law is constitutional.
Article 3.- The following provisions of the same Law are constitutional:
- Articles 6 and 8;
- Paragraphs I and V of Article 17;
- the third to the tenth Sub-paragraphs of (b) of Section 2 of Article 49;
- Articles 59 and 60;
- Sections 1, 2 and (a) and (b) of Section 3 of Paragraph I and Paragraph III of Article 123;
- Article 161;
Article 4.- The following are unconstitutional:
- Paragraphs III, IV and V of Article 7 of the Law 2013-672 of 26 July 2013 on the separation and regulation of banking activities;
- the words "or, ultimately, to a journalist, as defined in Article 2 of the Law of 29 July 1881 relating to the freedom of the press" in the first Sub-paragraph of Article 226-10 of the Criminal Code.
Article 5.- This decision shall be published in the Journal officiel of the French Republic.
Deliberated by the Constitutional Council in its session of 08 December 2016, in attendance: Mr. Laurent FABIUS, President, Ms. Claire BAZY MALAURIE, Ms. Nicole BELLOUBET, Mr. Michel CHARASSE, Mr. Jean-Jacques HYEST, Mr. Lionel JOSPIN, Ms. Corinne LUQUIENS, Ms. Nicole MAESTRACCI and Mr. Michel PINAULT.