Version en anglais - 2016-745 DC

Decision no. 2016-745 DC of 26 January 2017 - Law relating to equality and citizenship -

THE CONSTITUTIONAL COUNCIL WAS ASKED TO DECIDE, under the conditions described in Article 61, second Subparagraph of the Constitution, on the Law relating to equality and citizenship under number 2016-745 DC. In attendance on 27 December 2016: Mr. Bruno RETAILLEAU, Mr. Pascal ALLIZARD, Mr. Gérard BAILLY, Mr. Philippe BAS, Mr. Christophe BÉCHU, Mr. Jérôme BIGNON, Mr. Jean BIZET, Mr. François BONHOMME, Mr. Gilbert BOUCHET, Mr. Michel BOUVARD, Mr. François-Noël BUFFET, Mr. François CALVET, Mr. Christian CAMBON, Ms. Agnès CANAYER, Mr. Jean-Pierre CANTEGRIT, Mr. Jean-Noël CARDOUX, 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. François COMMEINHES, Mr. Gérard CORNU, Mr. Philippe DALLIER, Mr. René DANESI, Mr. Mathieu DARNAUD, Mr. Serge DASSAULT, 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. Marie-Annick DUCHÊNE, Mr. Alain DUFAUT, Ms. Nicole DURANTON, Mr. Jean-Louis DUVERNOIS, Mr. Jean-Paul ÉMORINE, Ms. Dominique ESTROSI SASSONE, Mr. Hubert FALCO, Mr. Michel FORISSIER, Mr. Alain FOUCHÉ, Mr. Bernard FOURNIER, Mr. Christophe FRASSA, Mr. Jean-Claude GAUDIN, Mr. Jacques GAUTIER, Mr. Jacques GENEST, Ms. Frédérique GERBAUD, 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, Mr. Alain HOUPERT, Ms. Christiane HUMMEL, Mr. Benoît HURÉ, Mr. Jean-François HUSSON, Ms. Corinne IMBERT, Mr. Alain JOYANDET, Ms. Christiane KAMMERMANN, Mr. Roger KAROUTCHI, Mr. Guy-Dominique KENNEL, Mr. Marc LAMÉNIE, Ms. Élisabeth LAMURE, Mr. Daniel LAURENT, Mr. Antoine LEFÈVRE, Mr. Jacques LEGENDRE, Mr. Dominique de LEGGE, Mr. Jean-Pierre LELEUX, Mr. Jean-Baptiste LEMOYNE, Mr. Jean-Claude LENOIR, Mr. Philippe LEROY, Mr. Gérard LONGUET, 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. Jean-Marie MORISSET, Mr. Philippe MOUILLER, Mr. Philippe NACHBAR, 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. Hugues PORTELLI, Ms. Sophie PRIMAS, Ms. Catherine PROCACCIA, 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, and Mr. Jean-Pierre VIAL, Senators.
Also in attendance on 27 December 2016: Mr. Christian JACOB, Mr. Damien ABAD, Mr. Élie ABOUD, Mr. Bernard ACCOYER, Mr. Benoist APPARU, Mr. Olivier AUDIBERT-TROIN, Mr. Patrick BALKANY, Mr. Sylvain BERRIOS, Mr. Xavier BRETON, Mr. Gérard CHERPION, Mr. Guillaume CHEVROLLIER, Mr. Alain CHRÉTIEN, Mr. Jean-Louis CHRIST, Mr. Dino CINIERI, Mr. Philippe COCHET, Mr. Jean-Louis COSTES, Mr. Jean-Michel COUVE, Ms. Marie-Christine DALLOZ, Mr. Bernard DEBRÉ, Mr. Bernard DEFLESSELLES, Mr. Julien DIVE, Mr. David DOUILLET, Ms. Virginie DUBY-MULLER, Mr. Georges FENECH, Ms. Marie-Louise FORT, Mr. Yves FOULON, Mr. Marc FRANCINA, Mr. Laurent FURST, Mr. Sauveur GANDOLFI-SCHEIT, Mr. Hervé GAYMARD, Ms. Annie GENEVARD, Mr. Guy GEOFFROY, Mr. Bernard GÉRARD, Mr. Alain GEST, Mr. Daniel GIBBES, Mr. Franck GILARD, Mr. Claude GOASGUEN, Mr. Philippe GOUJON, Ms. Claude GREFF, Mr. Serge GROUARD, Ms. Françoise GUÉGOT, Mr. Jean-Claude GUIBAL, Mr. Michel HEINRICH, Mr. Antoine HERTH, Mr. Patrick HETZEL, Mr. Denis JACQUAT, Mr. Christian KERT, Ms. Nathalie KOSCIUSKO-MORIZET, Mr. Jacques KOSSOWSKI, Ms. Valérie LACROUTE, Ms. Laure de LA RAUDIÈRE, Mr. Guillaume LARRIVÉ, Mr. Vincent LEDOUX, Mr. Marc LE FUR, Mr. Pierre LEQUILLER, Mr. Céleste LETT, Ms. Véronique LOUWAGIE, Mr. Jean-François MANCEL, Mr. Thierry MARIANI, Mr. Olivier MARLEIX, Mr. Patrice MARTIN-LALANDE, Mr. Alain MARTY, Mr. Jean-Claude MATHIS, Mr. François de MAZIÈRES, Mr. Gérard MENUEL, Mr. Damien MESLOT, Mr. Pierre MORANGE, Mr. Yannick MOREAU, Mr. Alain MOYNE-BRESSAND, Mr. Jacques MYARD, Ms. Dominique NACHURY, Mr. Patrick OLLIER, Mr. Jacques PÉLISSARD, Mr. Bernard PERRUT, Mr. Jean-Frédéric POISSON, Ms. Josette PONS, Mr. Christophe PRIOU, Mr. Didier QUENTIN, Mr. Frédéric REISS, Mr. Paul SALEN, Mr. François SCELLIER, Mr. André SCHNEIDER, Mr. Thierry SOLÈRE, Mr. Claude STURNI, Mr. Jean-Charles TAUGOURDEAU, Mr. Michel TERROT, Mr. Pascal THÉVENOT, Mr. Dominique TIAN, Ms. Catherine VAUTRIN, Mr. Arnaud VIALA, Mr. Jean-Pierre VIGIE, Mr. Michel VOISIN and Ms. Marie-Jo ZIMMERMANN, Members of the National Assembly.

In light of the following texts:
- the Constitution;
- Ordinance no. 58-1067 of 7 November 1958 as amended, concerning the Organic Law on the Constitutional Council;
- the Council of Europe Convention on preventing and combating violence against women and domestic violence of 12 April 2011;
- EU Rule no. 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on the norms relating to the conditions that third-country nationals or stateless persons must fulfil to be granted international protection, a uniform status for refugees, or persons that may benefit from subsidiary protection, and the details of this protection;
- the General Local Authorities Code;
- the Construction and Housing Code;
- the Education Code;
- the Criminal Code;
- the Code of Criminal Procedure;
- the Labour Code;
- the Law of 29 July 1881 on the freedom of the press;
- Law number 65-557 of 10 July 1965 setting the status of the co-ownership of buildings;

- Law number 98-657 of 29 July 1998 on the framework relating to combating exclusion;
- Law no. 2000-614 of 5 July 2000 relating to hosting and housing travellers;
- Ordinance number 2015-904 of 23 July 2015 on the simplification of the procedures for associations and foundations;
- Law number 2016-1547 of 18 November 2016 on the modernisation of justice in the 21st century;
- Decision number 2015-492 QPC of the Constitutional Council of 16 October 2015;
- the observations of the Government, registered on 17 January 2017;
And having heard the rapporteur;
THE CONSTITUTIONAL COUNCIL DECIDED ON THE FOLLOWING:

1. The applicant Senators and Members of the National Assembly refer to the Constitutional Council the Law relating to equality and citizenship. They contest its Article 39, certain provisions of its Article 98, and Articles 100 and 217. The applicant Senators also contest the adoption procedure of this Law, its Articles 33 and 45, certain provisions of its Article 52, its Articles 55, 58, 59, 60 and 64, certain provisions of its Articles 67 and 78, its Articles 80 and 91, certain provisions of its Articles 102, 104, 117, 121 and 122, its Articles 128 and 129, certain provisions of its Articles 149, 152, 162, 170 and 171, its Articles 174, 176, 177, 179, 186, 187, 190, 191 and 192, certain provisions of its Article 204, its Articles 207, 222 and 223. The applicant Members of the National Assembly also contest certain provisions of its Articles 67, 70, 97 and 99.

- On the procedure for adopting the Law:

2. The applicant Senators contest the procedure by which Article 28 quater A was deleted in the new reading at the National Assembly, while it had been fully adopted by the two Assemblies in the first reading.

3. 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.

4. Pursuant to Article 6 of the 1789 Declaration: "Law is the expression of the general will... ". The first Subparagraph of Article 3 of the Constitution states: "National sovereignty belongs to the people, who shall exercise it through their representatives... ". These provisions insist upon the respect for clarity and honesty in parliamentary debate.

5. The Constitutional Council does not hold the power under Articles 61 and 62 of the Constitution to re-establish an article that has been improperly deleted during the course of parliamentary debate. Rather, it is its responsible for ensuring that the irregularity has not made the legislative procedure unconstitutional.

6. Article 28 quater A of the draft law at the origin of the contested Law proposes a property tax allowance on properties, applicable to certain public housing in certain priority neighbourhoods, following a prior agreement, added in the annex of the city contract and passed on to the public housing agency, the Nation, the commune and the public establishment for inter-communal cooperation. Introduced in first reading at the National Assembly, it was fully adopted by the Senate in this same reading. Even though, at this stage, the provisions still in discussion are no longer a part of it, the National Assembly's Special Commission modified it by amendment, in a new reading, with the intent of ensuring that it is in compliance with the Constitution. At the Government's request, the National Assembly then adopted an amendment deleting this Article in a public session. The Senate having adopted a preliminary matter in a new reading, the text definitively adopted by the National Assembly no longer contains this Article 28 quater A.

7. The adopted amendment, in a new reading, after the text was examined by the Special Commission, seeks to remedy the unconstitutionality that may be the result of the retroactive character of the provisions adopted by the two Chambers. Thus it is admissible under Article 45 of the Constitution. However, the parliamentary effort of deleting the amendment submitted by the Government at the public session did not seek to ensure constitutionality, correct a material error, or coordinate texts being reviewed on the date it was adopted. Therefore at this stage of the procedure, it is not admissible.

8. In this case, Article 28 quater A was thus deleted according to a procedure that is unconstitutional. However, as unfortunate as it is, this deletion did not have the effect of unconstitutionally infringing on the requirements for clarity and honesty in parliamentary debate. Thus the claim of infringement on these requirements should be set aside.

- On Article 39:

9. Article 39 of the contested Law allows the Government to take measures by ordinance in the Education Code, to replace the regime of notification prior to opening private educational institutions by a regime of authorisation, to specify the motives for refusing an opening, to set the provisions governing leadership and teaching roles in these establishments and to strengthen the freedom of education that they benefit from once opened.

10. The applicant Senators and Members of the National Assembly claim that substituting an authorisation regime for a declaration regime for opening private educational institutions disproportionally infringes on the rights of the freedom of education and the freedom of association. According to the applicant Senators, these provisions also infringe on the freedom of conscience and the freedom to pursue commercial activities.

11. The freedom of education is a fundamental principle recognised by the laws of the French Republic, reaffirmed in the Preamble to the Constitution of 1946, which is included in the Preamble to the Constitution of 1958.

12. The first Subparagraph of Article 38 of the Constitution states: "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". This provision obliges the Government to indicate with precision to the Parliament, in order to justify its request, the purpose of the measures that it proposes to undertake by ordinance as well as the matters that fall under their domain.

13. By allowing the Government to replace declaration regimes by authorisation regimes for opening private educational institutions, the legislature has precisely defined the scope of the measures that it authorises the Government to undertake by ordinance. However, in regard to the possible infringement on the freedom of education by putting an administrative authorisation regime in place, by granting the Government, without further indication, the right to define "the motives by which the competent authorities may refuse to authorise the opening" of such institutions, the legislature has insufficiently described the purpose of the measures that it proposes to undertake by ordinance.

14. As a result, this right infringes upon the requirements of Article 38 of the Constitution. Without the need to examine the applicants' complaints, Article 39 of the contested law should therefore be declared unconstitutional.

- On certain provisions of Article 70:

15. The ninth to the eleventh Subparagraphs of Section 2° (f) of Paragraph I of Article 70 of the contested Law, modifies Article L. 441-1 of the Construction and Housing Code to require public housing agencies to set aside at least 25% of the annual housing allotments located outside of the municipal policy's priority neighbourhoods for the benefit of the quartile of those with the most modest incomes or to persons relocated due to an urban renewal operation. The twelfth Subparagraph allows this percentage to be adapted depending on the local situation. The thirteenth Subparagraph establishes that the inter-communal allocation agreement sets the repartitions of allotments to be undertaken between the public housing agencies, subject to overall compliance with the percentage of the territory in question. The fourteenth Subparagraph establishes that in the case that the obligation for setting aside allotments by each public housing agency is not complied with, the National Representative in the Department shall proceed to allocate to the public in question a number of housing units equivalent to the number of housing units to be allocated to the various quotas.

16. The applicant Members of the National Assembly claim that these provisions, that set an objective of 25% of allotments for public housing for certain persons and establish the automatic substitution of the Prefect if this objective is not met, disproportionately infringes upon the principle of the free administration of territorial authorities.

17. Article 34 of the Constitution grants to the legislature the right to determine the fundamental principles of the free administration of territorial authorities, their capacities and their resources. Under the third Subparagraph of Article 72 of the Constitution, "under the conditions established by the law, these territories govern themselves freely through elected officials".

18. According to the last Subparagraph of Article 72 of the Constitution: "Within the French Republic's territorial authorities, the National Representative, representing each member of the Government, is in charge of the national interest, administrative control and compliance with the laws". Thus it is the legislature's responsibility to establish the involvement of the National Representative to remedy, under the supervision of the court, the difficulties that result from the lack of a decision by the decentralised authorities competent to stand in for these authorities when this lack of decision risks compromising the functioning of public services and compliance with the laws. The conditions established for the National Representative to exercise its powers of substitution must be defined as to their objectives and their scope.

19. By adopting the contested provisions, the legislature sought to promote equal opportunities and social diversity. For this purpose, it established that those looking for public housing who have the lowest income and persons relocated due to urban renewal operations could benefit from public housing located outside of municipal priority neighbourhoods. Additionally, the contested provisions respond to the aims of general interest.

20. On the one hand, the annual percentage of allocations by the legislature, which is only as high as 25%, is not in itself excessive. On the other hand, this percentage may be adapted given the local situation. Finally, the power to substitute a National Representative only relates to the housing that is left to be allocated to the various quotas. The reason for this is to ensure the objective of the annual allocations is complied with. The objective and the scope of the authority granted to the National Representative are also adequately defined in terms of the objectives sought. Consequently, the contested provisions do not obstruct the right to free administration of territorial authorities.

21. Thus the ninth to the fifteenth Subparagraphs of Section 2° (f) of Paragraph I of Article 70 of the contested law, which do not infringe upon any other constitutional requirement, should be declared constitutional.

- On certain provisions of Article 78:

22. Article L. 411-10 of the Construction and Housing Code establishes that the Ministry of Housing maintain a directory of social rental housing and their inhabitants, so that a public housing policy may be implemented.

23. Section 1° (c) of Paragraph I of Article 78 of the contested Law completes this Article L. 411-10. It establishes that, for this directory, the public housing agencies shall supply to the Ministry of Housing the registration number in the National Directory of Identification of Natural Persons for each major occupant of a public rental housing unit.

24. The applicant Senators claim that these provisions unjustifiably infringe on the right of respect for private life of the occupants of public housing.

25. The freedom proclaimed by Article 2 of the 1789 Declaration of the Rights of Man and the Citizen includes the right to respect for private life. Owing to this, collecting, recording, keeping, consulting and communicating information of a personal nature must be justified by general interest and implemented in an adequate and proportional manner.

26. By adopting these contested provisions, the legislature intended that the Ministry of Housing be able to establish a mapping of the socio-economic situation of the existing public housing units, in order to improve the implementation of a policy for allocating this housing. Therefore, it sought the objective of the public interest.

27. If the territorial authorities and some of their public establishments are able to obtain information related to the housing situation in their territory contained in the directory from the National Representative in the region, pursuant to the eighth Subparagraph of Article L. 411-10, it shall be on the condition that this information was previously made anonymous.

28. Furthermore, the legislature established in Section 4° of Paragraph I of Article 78 that the use of data in the directory by the public interest grouping mentioned in Article 441-2-1 of the Construction and Housing Code be undertaken in a manner that makes it impossible to identify specific individuals.

29. The result is that the legislature maintained methods of collecting, recording, keeping, and communicating the registration number in the National Directory of Identification of Natural Persons in a manner that is adequate and proportional to the objectives sought. Consequently, the claim of infringement on the right to respect for private life should be set aside.

30. Thus Section 1° (c) of Paragraph I of Article 78 of the contested law, which does not infringe upon any other constitutional requirement, should be deemed constitutional.

- On certain provisions of Article 97:

31. Article 97 of the contested Law adjusts the implementation conditions of certain communes' obligations for a minimal number of public rental housing in their region. Section 4° of its Paragraph I modifies Article L. 302-5 of the Construction and Housing Code to redefine communes in which public rental housing must represent at least 20% of the primary residences. These communes are currently defined by three criteria that take into account the beneficiaries of housing allocations: the percentage of their income being higher than 30%, the percentage of vacancies in the existing public rental housing units, and the number of requests for public rental housing compared to the annual number of move-ins in these same units. Section 4° (b) through (d) of Paragraph I of Article 97 of the contested Law only keeps this last criterion. Furthermore, Section 4° (c) deletes the exemption of counting the minimal number of public rental housing units, which could benefit certain communes in demographic decline.

32. The applicant Members of the National Assembly claim that these provisions will lead, for the communes that must now comply with the requirement of a minimal number of public housing units, to an increase in their costs as well as a reduction of their fiscal resources linked to the fee that would be incurred in the case of non-compliance with this requirement. This would result in a violation of the principle of the free administration of territorial authorities. Furthermore, these communes have less time to achieve the objective than those that are already subject to the same obligation; the contested provisions would create a break in the equality between communes, contrary to Article 6 of the Declaration of 1789.

33. Article 34 of the Constitution grants to the legislature the right to determine the fundamental principles of the free administration of territorial authorities, their authorities and their resources. Pursuant to Articles 72 and 72-2 of the Constitution, the territorial authorities may "govern themselves freely through elected officials" and "benefit from the resources that they may freely make use of" and they do this "under the conditions established by the law".

34. If the legislature may, on the basis of Articles 34 and 72 of the Constitution, subject territorial authorities or their groupings to obligations and costs, it is under the condition that they respond to constitutional requirements or are for the purpose of public interest, that they do not infringe on the authority of the territorial authorities in question, that they do not obstruct their free administration and that they are defined sufficiently precisely in terms of their objectives and their scope.

35. 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 for reasons of public interest, provided that in both cases, the resulting difference in treatment is directly related to the objectives of the law establishing it.

36. First of all, it pertains to preparatory work for which, under the contested provisions, the legislature sought the goal of social diversity as previously defined and to increase the production of public rental housing in the communes that have a large imbalance between the supply and the demand for housing. The Constitutional Council does not have general discretionary and decision-making powers of the same nature that Parliament does. It cannot investigate if the objectives that the legislature assigns can be attained by other means if the methods determined by the law are not manifestly inappropriate to the objective sought.

37. By modifying the criteria under which certain communes are subject to the obligation to make available at least 20% of public rental housing, the legislature sought to refocus this provision in the regions where the demand for public housing compared to the supply of it is the strongest. By eliminating the exemption for certain communes in demographic decline and by replacing it, in Section 4° (e) of Paragraph I of Article 97, by other exemptions, it sought that the need for public rental housing be measured according to more relevant criteria, taking into account the level of pressure on the public housing units and the distance from activity and work locations.
38. Secondly, by modifying Article L. 302-7 of the Construction and Housing Code by Article 99 of the contested Law, the legislature exempted the levy on fiscal resources, for three years, for any commune that, for the first time starting 1 January 2015, is subject to the obligation to set aside a minimal number of public rental housing units as established in Article L. 302-5 of the same Code. It therefore took into account the particular situation of the communes newly subject to this obligation.

39. It follows from the foregoing that the contested provisions, which have the goal of implementing social diversity and increasing the availability of public rental housing, respond to public interest needs. They are not manifestly inappropriate to the objectives sought. The legislature, in modifying the criteria for certain communes subject to the obligation established in Article L. 302-5 as well the cases of exemption from this obligation, does not seriously violate their free administration and does not infringe on Article 72 and 72-2 of the Constitution. Furthermore, the contested provisions do not establish any difference in treatment contrary to the principle of equality. Thus the claim of infringement on this principle should be set aside.

40. Thus the provisions of Section 4° (b) through (d) of Paragraph I of Article 97 of the contested law, which do not infringe upon any other constitutional requirement, should be declared constitutional.

- On certain provisions of Article 98:

41. Article 98 of the contested Law modifies Article L. 302-9-1 of the Construction and Housing Code to establish a procedure for deficiency applicable to the communes that have not met the objective of establishing the public rental housing units that they are required to meet.

42. By applying the fifth Subparagraph of Section 1° (a) of Paragraph I of Article 98, the deficiency procedure may be implemented by Decree from the National Representative of the department because a commune did not respect the "classification of funding defined in Paragraph III" of Article L. 302-8 of the Construction and Housing Code. According to this Paragraph III, to reach the objective of making available public rental housing by three-year periods, "public housing units financed by public rental housing loans may not be more than 30% of the public rental housing units to be established and those units financed by subsidised rental loans must be at least equal to 30%. If part of the public rental housing units in a commune is less than 10% of the total primary residences and the commune is not covered by a local housing program, the public housing units financed by public rental housing loans may not be above 20% of the public rental housing units to be established".

43. Furthermore, pursuant to the fourth and fifth Subparagraph of Section 1° (b) of Paragraph I of Article 98, the deficiency decree established by the National Representative establishes that, "for the entire term of application, the reservation rights mentioned in Article L. 441-1 shall be transferred to the State, that which the commune has on existing or to-be-established public housing, and the suspension or modification of reservation agreements established between it and the managing public housing agency lessors, as well as the obligation for the commune to notify the National Representative in the department of the list of these lessors and the housing units in question".

44. The applicant Members of the National Assembly claim that the possibility of initiating the deficiency procedure for failure to comply with the classification of funding of these public housing units unconstitutionally infringes on the free administration of territorial authorities. According to the applicant Members of the National Assembly and Senators, this administration of authorities is also infringed upon by the provisions establishing the automatic transfer to the Prefect of the reservation rights for public housing by communes under the deficiency procedure. The applicant Senators also contest these same provisions under the second Subparagraph of Article 72 of the Constitution. . Regarding the fifth Subparagraph of Section 1° (a) of Paragraph I of Article 98:

45. Pursuant to Article L. 302-9-1 of the Construction and Housing Code, in its writing currently in force, the National Representative must take into account compliance with the classification of funding for public housing units before, if the case may be, pronouncing the deficiency of the commune that has not attained the number of public rental housing that must be established. By allowing the National Representative to pronounce this deficiency only for the reason that the classification of funding was not complied with, even if the total number of housing units to be established has been reached, the legislature sought to promote a balanced development in public rentals between different categories of housing units.

46. Consequently, the contested provisions, which have the objective of implementing social diversity, respond to the goals of pursuing the public interest. They are not manifestly inappropriate to the objectives sought. The legislature, by imposing these new constraints on communes, does not seriously violate their free administration and does not infringe on Articles 72 and 72-2 of the Constitution. . Regarding the fourth and fifth Subparagraph of Section 1° (b) of Paragraph I of Article 98:

47. The provisions that establish transferring to the State the management of the municipal contingent of public housing and suspending or modifying the reservation agreement between a commune and a public housing agency lessor automatically apply in the case of deficiency by the commune, pursuant to the conditions described in Article L. 302-9-1 of the Construction and Housing Code.

48. First of all, the power of substitution also conferred to the National Representative, in communes that are in deficiency, seeks to allow the needs for public housing to be satisfied. It also seeks to incite communes to respect their objectives in establishing public rental housing. Therefore, the contested provisions are justified by their goal of public interest.

49. Secondly, the objective and the scope of the authority granted to the National Representative are adequately defined in terms of the objectives sought.

50. Consequently, the infringement on the free administration of territorial authorities from these contested provisions is not of a nature that is disproportionate to the objectives sought. The complaint of infringement on the free administration of territorial authorities should thus be set aside. Likewise for the complaint of infringement on the second Subparagraph of Article 72 of the Constitution.

51. It follows from the foregoing that the fifth Subparagraph of Sections 1° (a) and the fourth and fifth Subparagraph of Sections 1° (b) of Paragraph I of Article 98 of the contested law, which do not infringe upon any other requirement of constitutional law, should be ruled constitutional.

- On certain provisions of Article 99:

52. Article 99 of the contested Law modifies the rules governing the levy on fiscal resources for communes that do not respect the obligation required by them to set aside, in their region, a minimal number of public rental housing units. Specifically, Section 2° of its Paragraph I modifies Article L.302-7 of the Construction and Housing Code, in order to increase this levy: to calculate this, it goes from 20% to 25% of the fiscal potential by habitant, the amount of which is multiplied by the difference between the number of public rental units to be established and the number of public rental units that currently exist in the commune.

53. Furthermore, Section 1° (b) of Paragraph I of Article 99 of the contested Law, which modifies the first sentence of the first Subparagraph of Article L. 302-7 of the Construction and Housing Code, establishes exemption conditions of this levy for communes benefiting from the Urban Solidarity and Social Cohesion Endowment. Currently all communes that benefit from this Endowment are exempt when the number of public housing units already exceeds 15% of primary residences; the contested Law increases this number to 20% for the communes subject to the objective of establishing at least 25% of public rental housing.

54. According to the applicant Members of the National Assembly, these provisions infringe on the free administration of territorial authorities in that they increase the number of communes subject to the levy due in the event that they fail to comply with their obligations and in that they increase the amount of this levy.

55. First of all, the contested provisions raise from 15% to 20% the proportion of existing public rental housing units based on which the communes benefiting from the Urban Solidarity and Social Cohesion Endowment and having an objective of 25% of public rental housing units are exempt from the levy. In so doing, they attempt to establish a balance between these communes and those also benefiting from this Endowment but which maintain an objective of 20%. In fact, if the percentage from which the latter are exempt from the levy is held at 15% by the contested Law, all the communes receiving the Urban Solidarity and Social Cohesion Endowment may benefit from this exemption due to the same offset, equal to five percentage points, between the number of existing housing units and the goal to be achieved. Additionally, the contested provisions respond to the aims of general interest.

56. Secondly, by raising from 20% to 25% of the fiscal potential by habitant the amount by which the difference between the number of public rental units to be established and the number of public rental units that currently exist is multiplied, the contested provisions increase the amount of the levy on the fiscal resources of communes that did not respect their obligations.

57. On the one hand, this levy constitutes an obligatory cost for communes provided that they have not met their objectives of at least 20% or 25%, depending on the case, of public rental housing units. The sums corresponding to this levy are allocated to inter-communal organisations, public land establishments or national funds for housing assistance. This levy also acts as a solidarity mechanism between communes.

58. On the other hand, certain expenses may be deducted from the amount of the levy by communes for the goal of coming within the objective of the law, the list of which is expanded on in Section 3° of Paragraph I of Article 99 of the contested Law. Furthermore, in all cases, the amount of the levy may not exceed 5% of the amount of the actual operating expenses of the commune as established in the administrative account for the next-to-last fiscal period, or for certain communes placed in deficiency, 7.5% of this amount.

59. It follows from the foregoing that the contested provisions, which implement the objectives of social diversity and increasing the availability of public rental housing, respond to public interest needs. They are not manifestly inappropriate to the objectives sought. The legislature, by imposing new constraints on communes to establish public housing units and increasing the levy on the resources of those that did not attain the objectives established by the law, does not seriously violate their free administration and does not infringe on Articles 72 and 72-2 of the Constitution.

60. Consequently, Section 1° (b) and Section 2° of Paragraph I of Article 99 of the contested law, which do not infringe upon any other constitutional requirement, should be declared constitutional.

- On Article 100:

61. Paragraph I of Article 100 of the contested Law eliminates the benefit of the Urban Solidarity and Social Cohesion Endowment for communes that, having not attained their goal of establishing public rental housing, are subject to the deficiency procedure established in Article L. 302-9-1 of the Construction and Housing Code. Paragraph II establishes that a Government report be given to Parliament on the opportunity to modify the policy for assistance to communes participating in efforts for constructing housing units. Paragraph III provides that the loss of revenue by territorial authorities from Paragraph I is "compensated proportionally by increasing the overall operating endowment and, correlatively for the State, by the creation of an additional tax described in Article 575 and 575 A of the General Tax Code".

62. The applicant Senators claim that by depriving communes that are in a deficiency situation of the Urban Solidarity and Social Cohesion Endowment, Paragraph I of Article 100 infringes upon the free administration of territorial authorities. On the one hand, when this Endowment contributes to a tax adjustment in favour of communes especially exposed to financial difficulties, its deprivation is not justified by the goal of public interest. On the other hand, this deprivation diminishes their resources to the point where their free administration is obstructed. The applicant Members of the National Assembly, who make the same claims, further hold that this deprivation creates a break in the equality between communes.

63. Furthermore, the applicant Senators contest the adoption procedure of Paragraph II of Article 100, which was introduced by amendment in a new reading and infringes on Article 45 of the Constitution.

. With regard to Paragraphs I and III:

64. According to Article L. 2334-15 of the General Local Authorities Code, the Urban Solidarity and Social Cohesion Endowment has the objective of "contributing to improving the living standards in urban communes facing insufficient resources and supporting increased costs".

65. First of all, the contested provisions revoke the benefit of this Endowment from any commune facing a deficiency decree, regardless of the discrepancy between the number of public rental housing units that exist in the commune and the objectives required of them.

66. Secondly, these provisions also have the effect of depriving communes of the possible exemption of the levy on their fiscal resources, as established in the first sentence of the first Subparagraph of Article L. 302-7 of the Construction and Housing Code.

67. Finally, unlike the aforementioned levy, the loss of resources resulting from the contested provisions is not subject to any ceiling.

68. Consequently, when they are applied to communes confronted with insufficient resources and bearing increased costs, these provisions result in depriving certain communes of a substantial part of their operating revenue. The result is that these provisions restrict the resources of these communes to the point of obstructing their free administration and they infringe on Article 72 of the Constitution.

69. Without the need to examine the other complaint, Paragraph I of Article 100 of the contested Law should thus be declared unconstitutional. Consequently, the same is true for Paragraph III, which is inseparable from it.

. With regard to Paragraph II:

70. Paragraph II of Article 100 of the contested Law establishes that a Government report be given to Parliament on the opportunity to modify the policy for assistance to communes participating in efforts for constructing housing units. Introduced in a subsequent reading, this addition is not, at this stage of the procedure, in direct relation with a provision being discussed. It is also not related to ensuring constitutionality, coordinating texts being reviewed, or correcting a material error. It follows that Paragraph II of Article 100 of the contested Law, adopted according to an unconstitutional procedure, should be deemed unconstitutional.

- On Article 129:

. With regard to the place of Article 129 in the contested Law:

71. The applicant Senators contest the place of Article 129 in the contested Law.

72. Pursuant 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 was submitted or transmitted, shall be admissible on first reading".

73. Article 129 specifically allows access to information in the Registry of Condominiums Associations related to the existence of an ad hoc nomination procedure of a representative, a provisional administrator or an expert, as well as those related to the existence of an order or an injunction regarding cleanliness and hazards. Introduced on first reading, these provisions cannot be seen as having no link, even an indirect one, with the draft law project submitted in the office of the National Assembly, which authorises the Government to take, by ordinance, measures related to condominiums in difficulty. The complaint of infringement on the first Subparagraph of Article 45 of the Constitution should thus be set aside.

. With regard to certain provisions of Article 129:

74. Paragraph II of Article 711-2 of the Construction and Housing Code establishes that the following information shall appear in the Registry of Condominiums Associations, instituted in Article L. 711-1 of the same Code: name, address, date the association was created, the number and nature of the units that make up the condominium as well as, if the case may be, the name of the trustee; the existence of an ad hoc nomination procedure of a representative, a provisional administrator or an expert; the existence of an order or an injunction regarding cleanliness and hazards.

75. Section 2° of Article 129 of the contested Law modifies this Article L. 711-2 to establish that the information mentioned in its Paragraph II be made available to the public.

76. The applicant Senators claim that these provisions disproportionately infringe on the right of respect for private life of the occupants of condominiums.

77. However, the information made available to the public on the basis of these provisions does not include any personal data of the occupants of condominiums. As a result, the contested provisions do not infringe on the right of respect for private life of the occupants of condominiums.

78. Section 2° of Article 129 of the contested Law, which does not infringe upon any other constitutional requirement, should be deemed constitutional.

- On certain provisions of Article 149:

79. Section 3° of Article 149 of the contested Law modifies Article 3 of the Law of 5 July 2000 mentioned herein above. It lays out in Paragraph I of Article 3 that, when a commune or a public establishment for inter-communal cooperation has not fulfilled its obligations under the departmental schematic for developing, maintaining and managing areas and sites for hosting travellers, the Prefect will instruct it to take the necessary measures, and set a schedule for establishing and evaluating the amount of the corresponding expenses. If the commune or the public establishment does not satisfy this formal notice within the established time frame, the Prefect will order it to place the corresponding sums with a public accountant, these sums being incrementally re-dispersed to undertake the necessary measures. Opposition to this placement with an accountant made before an administrative court does not have suspensive effect. Paragraph II of the same Article 3 establishes that a new formal notice may be delivered if, at the end of a six-month deadline from the date of placement, the measures have not been or have only been partially undertaken. If the commune or public establishment fails to comply within the time frame set in the second schedule established for this purpose, the State may substitute itself to carry out the procedure, on its own behalf, for the necessary operations and, if need be, use the placement sums. From the time the work is finished, the commune or public establishment will automatically become owners of the areas and sites that were developed. Paragraph III of Article 3 specifies that the expenses for acquiring, developing, maintaining and managing the areas and sites for hosting travellers constitutes an obligatory expense for communes or public establishments for inter-communal cooperation.

80. The applicant Senators claim that the third and fourth Subparagraphs of Section 3° of Article 149, which establish placing with an accountant a part of the budget of communes or public establishment for inter-communal cooperation, to require them to construct areas and sites to host travellers, infringes on the principle of the free administration of territorial authorities and their financial autonomy. They contest this placement condition, on the one hand, for not being justified by the goal of public interest, and on the other, for not including sufficient guarantees, specifically because of the lack of suspensive effect upon appealing the order for placement.

81. First of all, when a commune or a public establishment for inter-communal cooperation does not respect its obligations for hosting travellers, Article 3 of the Law of 5 July 2000 allows the Prefect to substitute itself in order to carry out the necessary measures. The Prefect's right to place sums with an accountant in the second Subparagraph of Paragraph I of this same Article seeks, on the one hand, to encourage the commune or public establishment for inter-communal cooperation themselves to carry out these measures, by reserving placement of the sums available for this purpose. On the other hand, by authorising the Prefect to pay a portion of the sums placed for the operations it undertakes by substituting itself for the commune or public establishment, the contested provisions allow it to remedy the deficiency of the territorial authority.

82. Secondly, the objective and the scope of the authority granted to the Prefect are precisely defined and adequate for the objectives sought.

83. Finally, on the one hand, this placement of funds is ordered after formal notice instructing the commune or the public establishment to adhere to its obligations as determined by a specific schedule. On the other hand, the amount of the sums placed may not exceed that of the corresponding expenses for the measures to satisfy the obligations defined in the departmental plan. Finally, the placement order may be subject to legal appeal. The legislature, which was moreover free to establish that an appeal against the placement order not be suspensive, also included in the placement procedure sufficient guarantees.

84. It follows from the foregoing that by adopting the contested provisions, the legislature did not disproportionately infringe on the free administration of territorial authorities nor has it infringed on any other constitutional requirement. The third and fourth Subparagraphs of Section 3° of Article 149 of the contested Law should thus be declared constitutional.

- On certain provision of Sections 1°, 2° and 3° of Paragraph II of Article 170 and on Article 207:

85. Sections 1° (a) and 2° (a) and Section 3° (c) of Paragraph II of Article 170 of the contested Law modify, respectively, Articles 24, 32 and 33 of the Law of 29 July 1881 mentioned herein above in order to aggressively suppress incitement to discrimination, hate and violence, defamation and public insult when these infractions are committed against a person or group of persons because of their gender identity.

86. Correspondingly, Article 207 of the contested Law introduces the reference to gender identity in several legislative provisions.

87. The applicant Senators claim that Sections 1° (a) and 2° (a) and Section 3° (c) of Paragraph II of Article 170 violate the principle of offences and penalties being defined by law insofar as the notion of identity gender, which is controversial, is imprecise. Consequently, Article 207 should also be declared unconstitutional.

88. 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 offences and penalties being defined by law according to Article 8 of the 1789 Declaration, the legislature is under the obligation to determine the scope of criminal law and to define crimes and offences in sufficiently clear and precise terms to avoid arbitrariness;

89. The contested provisions, in Articles 24, 32 and 33 of the Law of 29 July 1881, replace the terms "sexual identity" with the terms "gender identity". They add the prohibition of discrimination based on gender identity to discrimination based on sex and sexual orientation. The result of the parliamentary work is that by applying the notion of gender identity, the legislature sought to refer to the gender by which a person identifies him or herself, whether or not it corresponds to the gender listed in the Civil Registry or to different expressions of masculine or feminine appearance. The terms "gender identity", as written in Article 225-1 of the Criminal Code in its version from the Law of 18 November 2016 mentioned herein above, are also used in the Council of Europe Convention of 12 April 2011 and in the directive of 13 December 2011 mentioned herein above. Under these conditions, the term "gender identity" used by the legislature is sufficiently clear and precise for the principle of legality to be complied with. The claim of infringement on the principle of offences and penalties being defined by law should be set aside.

90. Sections 1° (a) and 2° (a) and Section 3° (c) of Paragraph II of Article 170 and Article 207, which do not infringe upon any other constitutional requirement, should thus be declared constitutional.

- On Section 7° of Paragraph II of Article 170:

91. Section 7° of Paragraph II of Article 170 of the contested Law inserts after Article 54 of the Law of 29 July 1881 an Article 54-1. This Article authorises criminal prosecution for actions that qualify as incitement to discrimination, hate and violence, defamation and public insult when these actions are committed because of a persons' ethnicity, race, nationality or religion, to re-qualify this infraction on the basis of one of the two other qualifications. Likewise for criminal prosecution for incitement to discrimination, hate and violence, defamation and public insult because of a persons' sex, sexual orientation or gender identity.

92. The applicant Senators contest the provisions of Section 7° of Paragraph II of Article 170. They claim that they infringe on the principle of equity of criminal proceedings in that they do not apply to non-aggressive defamation or public insult or to incitement to commit harm to individuals or property.

93. Article 6 of the 1789 Declaration states that the law "must be the same for all, whether it protects or punishes". The legislature, which is competent to determine the rules of criminal procedure pursuant to Article 34 of the Constitution, is entitled to establish rules of procedure that differ depending on the facts, situations and persons to which they apply, provided that these differences are not unjustifiably discriminatory and that equal guarantees are assured to the parties, in particular regarding the requirement that the rights of the defence be respected;

94. By derogation of the rule of Article 50 and 53 of the Law of 29 July 1881 according to which, in regard to infractions of the Law on the Press, the qualification of being incriminated is definitively established by criminal proceedings, the contested provisions establish the possibility for the court to re-qualify acts initially qualified as incitement to discrimination, hate and violence, defamation and public insult when these acts are aggravated by certain circumstances.

95. On the one hand, these provisions seek to facilitate criminal proceedings and sentencing, under the conditions established by the Law of 29 July 1881, of anyone making remarks or writings that are defamatory, slanderous or incite discrimination, hate or violence, when they pertain to a person based on their ethnicity, nationality, race, religion, sex, sexual orientation or gender identity. The legislature has precisely defined the infractions to which this re-qualification applies. The difference in treatment that results, according to the nature of the infraction, is not disproportionate in regard to the objective sought.

96. On the other hand, the rights of the defence are not infringed under the provisions of Section 8° of Paragraph I of the same Article 170 of the contested Law establishing the possibility of being notified, in the case of re-qualification of an infraction of defamation, to prove the truth about the defamatory facts pursuant to Article 35 of the Law of 29 July 1881.

97. Under these conditions, the claim of infringement on the principle of equality of criminal proceedings should be set aside.

98. The provisions of Section 7° (c) of Paragraph I of Article 170 of the contested Law, which do not infringe upon any other constitutional requirement, should be deemed constitutional.

- On certain provisions of Article 171:

99. Sections 1° and 2° of Paragraph I of Article 171 of the contested Law modify the Criminal Code to establish that accompanying, following or preceding a crime or offence with any action that has the effect of infringing on the honour or the reputation of the victim because of his or her ethnicity, presumed race, nationality, religion, sex, sexual orientation or gender identity constitutes an aggravated circumstance of this crime or offence. Likewise when an infraction is committed against the victim for one of these reasons.

100. The applicant Senators claim that Sections 1° and 2° of Paragraph I of Article 171 violate the principle of offences and penalties being defined by law insofar as, on the one hand, the terms "gender identity" and "presumed race" are insufficiently precise and, on the other, that these provisions institute aggravated circumstances that are indiscriminately applicable for all offences. These provisions also infringe upon the principle of the proportionality of penalties and the objective of the constitutional value of accessibility and comprehensibility of the law.

101. Article 8 of the Declaration of 1789 states that, while the necessity of inflicting penalties related to an infraction is left at the legislator's discretion, it falls on the Constitutional Council to ensure that there is no manifest disproportionality between the infraction and the penalties incurred.

102. First of all, on the one hand, Paragraph 89 indicates that the notion of gender identity is sufficiently clear and precise so that the principle of offences and penalties being defined by law is complied with. Likewise for presumed race, which the scope of in terms of criminal punishment is not distinct from that of race. On the other hand, the contested provisions precisely define the conditions under which a crime or offence can be considered aggravated. Consequently, the claim of infringement on the principle of offences and penalties being defined by law should be set aside.

103. Secondly, on the one hand, the contested provisions of Article 171 establish that, when an infraction that is punishable by a penalty that is longer than or equal to five years of imprisonment is committed for reasons that are racist, sexist or religious or is accompanied, preceded or followed by actions of this nature, the penalty incurred is aggravated to a degree as defined in the Criminal and Correctional Penalties Scale and in Articles 131-1 and 131-4 of the Criminal Code. When the infraction is punishable by three years of imprisonment, at most this penalty is doubled. On the other hand, this aggravated circumstance is not applicable to certain infractions, specifically the offences of incitement, defamation or injury when they are committed because of ethnicity, presumed race, nationality, religion, sex, sexual orientation or gender identity, or to the offence of discrimination insofar as these offences are already punishable by the discriminatory nature of the acts committed. Finally, the actions justifying aggravation of the penalties must have been committed against the victim of the main infraction or be related to his or her person.

104. It follows from the foregoing that by instituting aggravated circumstances that are being contested, the legislature did not establish punishment that is manifestly disproportionate to the gravity of the actions it sought to punish. The claim of infringement on the principle of the proportionality of penalties should be set aside.

105. Sections 1° and 2° of Paragraph I of Article 171 of the contested Law, 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 Articles 174 and 176:


106. Article 174 of the contested Law modifies Article 48-1 of the Law of 29 July 1881 to authorise certain associations to bring civil action for infractions of incitement to racial hatred, defamation, racial insult or incitement to commit a racist or religious crime or offence, if they justify that the victim is not opposed to proceedings.

107. Article 176 modifies Article 48-2 of the Law of 29 July 1881. It provides for civil action for defence regarding war crimes, crimes against humanity or crimes or offences of collaborating with the enemy as well as that of Holocaust denial, not only for associations that are officially registered for at least five years from the date of the actions whose objectives are the defence of moral interest, the honour of the Resistance or deportees, but also those whose objective is assisting the victims of war crimes or crimes against humanity, defending their memory or the fight against discrimination.

108. The applicant Senators contest these provisions, which remove the condition of agreement by the victim for bringing a civil action by an association for certain offences by the press that infringe on the requirement of clarity of the law and "disproportionately increases the proceedings that can be initiated".

109. Article 174 is limited to subordinating the exercise of a civil action to associations that it designates, in the absence of the victim's opposition regarding certain infractions, when these infractions have been committed against persons individually. It does not grant these associations the possibility to exercise individual civil actions for these victims in their place.

110. Article 176, which extends to all associations pertaining to defence regarding war crimes or crimes against humanity as well as associations for the fight against discrimination, the civil action formerly reserved only to associations defending the resistance or deportees draws the conclusions from the decision of the Constitutional Council of 16 October 2015 mentioned herein above. Given the nature of these infractions, it is the legislature's right to not subject associations' actions to prior agreement or the lack of opposition by the victims of the crimes or offences related to this defence, negation, trivialisation, or minimisation that is being prosecuted.

111. It follows from the foregoing that Articles 174 and 176, which are clear and do not infringe on any constitutional requirement, should be declared constitutional

- On Article 177:

112. Section 1° of Article 177 of the contested Law inserts in the Criminal Code an Article 225-1-2, which establishes that any distinction made between persons because they submitted to or refused to submit to actions of hazing, or who testified to such actions constitutes discrimination. Section 2° of Article 177 adds a reference to Article 225-1-2 in Article 225-2 of the same Code that lists and punishes actions of discrimination. Section 3° of this Article 177 extends the scope of the actions that qualify as hazing to those committed in the sporting community

113. The applicant Senators hold that Article 177 infringes on the principle of offences and penalties being defined by law as well as the principle of the need to establish penalties in that it does not define what constitutes discrimination based on refusing to participate in hazing.

114. According to Article 8 of the 1789 Declaration: "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 offences and penalties being defined by law according to Article 8 of the 1789 Declaration, the legislature is under the obligation to determine the scope of criminal law and to define crimes and offences in sufficiently clear and precise terms to avoid arbitrariness;

115. Article 225-16-1 of the Criminal Code defines hazing as, except in the case of violence, threats or sexual offences, for a person to induce others, either against their will or not, to submit to or commit humiliating or degrading acts or to consume alcohol excessively, at events or meeting in a scholarly, sporting or socio-educational environment. Article 225-5 of the same Code punishes discriminations that consist in refusing to provide goods or a service, interfering with the normal exercise of an economic activity, and refusing to hire or accept someone for an internship. Consequently, by establishing that will constitute a discrimination any distinction between persons because they submitted to or refused to submit to actions of hazing, or who testified to such actions, and by adding the reference to this discrimination in Article 225-2, the legislature precisely defined the actions that constitute the contested incrimination. Thus the claim of infringement on the principle that offences and penalties must be defined by law should be set aside.

116. Article 177 of the contested Law, which no longer infringes on the principle of the need to establish penalties, and does not infringe on any other constitutional requirement, should be deemed constitutional.

- On Article 179:

117. Section 1° of Article 179 of the contested Law modifies Article L. 1132-1 of the Labour Code related to discrimination regarding worker rights. Sections 2° and 3° coordinate two other Articles of the same Code.

118. The applicant Senators hold that Section 1° of Article 179 is contrary to the principle that offences and penalties must be defined by law in that it includes in Article L. 1132-1 of the Labour Code the notion of gender identity.

119. 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.

120. Article 179 inserts into Article L. 1132-1 of the Labour Code, after the word "sexual orientation" the words: "gender identity, age, family situation, pregnancy, genetic characteristics, vulnerability resulting from the financial situation, apparent or known by the offending party, belonging or not belonging to, truly or based on assumption, an ethnicity, nationality or presumed race, political opinions, union or membership activities, religious convictions, physical appearance, last name, location of residency, state of health, loss of autonomy or handicap, ability to speak a language other than French".

121. However, Article L. 1132-1 of the Labour Code, in its version in force from the Law of 18 November 2016 mentioned herein above, does not contain the word "orientation". Therefore, without the need to examine the claim, the provisions of Section 1° of Article 179 are incomprehensible. Consequently, they, as well as Sections 2° and 3° of the same Article which are inseparable from it, should be declared unconstitutional.

- On Article 186:

122. Article 186 inserts in the Education Code an Article L. 131-13, which states: "Admission to the canteen program in primary schools, where this service exists, is a right for all school children. There may be no discrimination against them in light of their situation or that of their family".

123. The applicant Senators hold that these provisions cause, for the territorial authorities, expenses to be incurred for which there is no financial compensation. They also contest that these provisions infringe on the principle of equality before the law in that the right of the students in primary school to be admitted to a canteen program is subject to the prior existence of such a meal service in the school.

124. First of all, according to the fourth Subparagraph of Article 72-2 of the Constitution: "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". These provisions only seek, in regard to creating and extending powers, those that are obligatory.

125. If the first sentence of Article L. 131-13 of the Education Code establishes that all children enrolled in primary school have the right to admission in the canteen, it is based on the condition that this service exists. Thus, these provisions have neither for objective nor for effect of making the creation of a public service for a school meal program in primary schools obligatory. Therefore, regarding the capacity to exercise this, which remains optional, the claim of non-compliance with Article 72-2 should be set aside.

126. Secondly, according to Article 6 of the 1789 Declaration, the law "must be the same for all, whether it protects or punishes". The principle of equality before the law does not prevent the legislature from regulating different situations in different ways, nor does it depart from equality for reasons of public interest, provided that in both cases, the resulting difference in treatment is directly related to the objectives of the law establishing it.

127. The students in primary school in communes that have a school meal program are not in the same situation as those in communes that do not have such a service. Therefore, the difference in treatment established by the contested provisions between the two, in regard to access to a school meal program, is based on a difference in situations. This difference in treatment is in line with the objectives of the law. Thus the claim of infringement on the principle of equality before the law should be set aside.

128. Article 186 of the contested Law, which does not infringe upon any other constitutional requirement, should be deemed constitutional.

- On Article 217:

129. Article 217 of the contested Law establishes a fund for financing class actions. This fund is contributed to by an increase in fines imposed by criminal courts during proceedings brought before them for one of the class actions mentioned in Article 60 of the Law of 18 November 2016.

130. The applicant Senators and Members of the National Assembly contest that these provisions, because of their imprecision, infringe on the objective of the constitutional value of accessibility and comprehensibility of the law and the principle that offences and penalties must be defined by law. They also claim that these provisions are contrary to the principle of equality before the law insofar as the fine is only incurred if the class action is brought before a criminal court and not before a civil court. These provisions further infringe on the principle of necessity and proportionality of penalties.

131. The applicant Members of the National Assembly also claim that by reserving for only claimants to class action suits the benefit of financing through a fund created by Article 217, the legislature infringed on the principle of equality before the law and that of the respect for the rights of defence. They further claim that this Article does not have a place in this law for the reason that it was introduced on first reading according to a procedure that is contrary to Article 45 of the Constitution.

132. According to Article 3 of the Code of Criminal Procedure, "civil action may be brought at the same time as criminal action and before the same court". However, according to Article 4 of the same Code, this action may also "be brought before a civil court, separately from criminal action".

133. In any case, the contested provisions relate to subjecting a fine pronounced by a criminal court on the condition that the civil action brought before it is a class action. In so doing, the fine incurring because civil action is brought before the criminal court rather than before the civil court, the contested provisions create an unjustifiable difference in treatment between defendants.

134. Without the need to examine the other claims, Article 217 of the contested Law, which infringes on the principle of equality before the law, should be declared unconstitutional.

- On the provisions whose normative scope is contested:

135. The applicant Senators claim that Articles 33, 45, 55, 187, 190 and 223 are outside of the normative scope of the contested Law.

136. According to Article 6 of the 1789 Declaration: "Law is the expression of the general will... ". According to this Article and to all other norms of constitutional value relating to the subject matter of the law, without prejudice to the particular provisions provided for under the Constitution, the Law has the purpose of laying down rules and must accordingly have a normative scope.

137. Article 33 establishes that in the framework of moral and civic teaching, middle school and high school students are encouraged to participate in a citizen project with a public interest association.

138. Article 55 allows a territorial authority or a public establishment for inter-communal cooperation to create a "Youth Council" to issue opinions on decisions particularly relevant to the youth policy.

139. Article 187 inserts, in the Education Code, an Article 124-2-1 that imposes on each academy to include at least one internship division to help high school students find an internship.

140. Article 190 requires that the Rector of the Academy presents information on the changes in social and scholarly diversity of all of the scholarly establishments in each district to the Departmental Council on National Education.

141. Articles 33, 55, 187 and 190 are within the normative scope. The claim of infringement on the requirement of a normative scope of the law should thus be set aside.

142. Article 223 modifies Article 140 of the Law of 29 July 1998 mentioned herein above to promote holiday leave for persons in situations of exclusion and to allow programs for concerted actions that allow access to artistic and cultural activities, taking into account sporting activities on the one hand, and on the other, putting in place specific actions for persons in situations of exclusion.

143. The twentieth Subparagraph of Article 34 of the Constitution states: "Laws for programming determine the objectives of the State's action". The provisions of Article 223, which set the objective of the State's action in the social domain, belong to this category. It follows that the claim of a lack of normative scope may not rightfully be raised against them.

144. Given that Article 45 has been declared unconstitutional as stated in Paragraph 190 of this decision, there is no need to examine the claim of its lack of normative scope.

- On the provisions whose place is contested in the contested law: . Regarding provisions introduced on first reading:

145. The applicant Senators claim that Articles 58, 59, 60, 64, 80, and 91, Paragraph XIV of Article 117, and Articles 191, 192 and 222 do not have a place in the contested Law because they were introduced on first reading according to a procedure that is contrary to Article 45 of the Constitution.

- Articles 58, 59 and 60:

146. Articles 58, 59 and 60 establish putting in place a public commentary process for developing a master plan for the Île-de-France region in the first two Articles, and a schedule for regional planning, sustainable development and equality between regions in the last Article.

147. Introduced on first reading, the provisions of Articles 58, 59, and 60 of the contested Law cannot be seen as not having a link, even an indirect one, with those in the draft law in the office of the National Assembly. Consequently, the claims of infringement by these provisions, under the first Subparagraph of Article 45 of the Constitution should be set aside.

- Articles 64, 80 and 91, Paragraph XIV of Article 117 and Articles 191, 192 and 222:

148. Article 64 authorises the digitalisation of the procedure for acquiring French nationality by declaration of nationality or decision of the public authority.

149. Article 80 grants researchers from the National Institute of Statistics and Economic Studies as well as those from the Ministerial Statistical Offices, for the purposes of their statistical research, access to the common areas of residential buildings.

150. Article 91 reduces the conditions for the majority required, for general meetings for condominiums located in communes subject to taxes on vacant housing, to authorise certain operations regarding grouping together several units where at least one has an interior surface area of 9 square meters, in order to form a unit specifically intended for residential purposes.

151. Paragraph XIV of Article 117 modifies the conditions for the majority required for the definition of community interest in public establishments for inter-communal cooperation.

152. Article 191 includes considerations for sustainable food consumption in the report on social and environmental responsibility that companies must prepare.

153. Article 192 institutes an obligation, for restaurant services for public persons, to serve a minimal number of food products coming from sustainable foods and organic agricultural practices.

154. Article 222 states that parental authority shall exclude "all cruel, degrading or humiliating treatment, including any use of bodily harm".

155. Introduced on first reading, the provisions of Articles 64, 80 and 91, Paragraph XIV of Article 117, and Articles 191, 192 and 222 of the contested Law do not have a link, even an indirect one, with those in the draft law submitted in the National Assembly. Adopted according to an unconstitutional procedure, they should thus be declared unconstitutional.

. Regarding provisions introduced on new reading:

156. The applicant Senators hold that Paragraphs II and III of Article 52, Paragraph I of Article 67, Paragraphs IX to XII of Article 102, Paragraph III of Article 104, Paragraph II of Article 121, Section 1° of Paragraph I of Article 122, Article 128, Paragraphs V to VII of Article 152, the last Subparagraph of Section 4° of Paragraphs I, II and III of Article 162 and Section 1° of Article 204 were introduced in a new reading and are in violation of Article 45 of the Constitution. The applicant Members of the National Assembly also make this claim against Paragraph I of Article 67.

- Paragraphs IX to XII of Article 102 and the last Subparagraph of Section 4° of Paragraphs I, II and III of Article 162:

157. Paragraphs IX to XII of Article 102 relate to the relations between regional committees on habitation and housing and public land establishments. The last Subparagraph of Section 4° of Paragraphs I, II and III of Article 162 sets a minimal percentage of positions open for recruitment by means of career access to territorial, hospital and State civil service positions.

158. Introduced in a subsequent reading, these additions are, at this stage of the procedure, in direct relation with provisions being discussed. Thus the claims of infringement by these provisions, under Article 45 of the Constitution should be set aside.

- Paragraph I of Article 67, Paragraph III of Article 104, Paragraph II of Article 121, Section 1° of Paragraph I of Article 122, Article 128 and Paragraphs V to VII of Article 152:

159. Paragraph I of Article 67 creates a mechanism for filing at credit establishments for drivers' licenses.

160. Paragraph III of Article 104 provides for a Government report on communal cleanliness and health services to be sent to Parliament.

161. Paragraph II of Article 121 modifies the rules governing joint tenancies of housing.

162. Section 1° of Paragraph I of Article 122 relates to the remuneration of condominium trustees.

163. Article 128 increases the capacity of the "National Fund for Housing Support".

164. Paragraphs V to VII of Article 152 modify the rules for taking rental debt into account in over-indebtedness procedures.

165. Introduced in a new 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. It follows that Paragraph I of Article 67, Paragraph III of Article 104, Paragraph II of Article 121, Section 1° of Paragraph I of Article 122, Article 128 and Paragraphs V to VII of Article 152, adopted according to an unconstitutional procedure, should be declared unconstitutional.

- Paragraphs II and III of Article 52 and Section 1° of Article 204:

166. Given that Articles 52 and 204 have been declared unconstitutional as stated in Paragraph 190 of this decision, there is no need to examine the claim of irregularity due to the fact that Paragraphs II and III of Article 52 and Section 1° of Article 204 were introduced in a subsequent reading.

- On the normative scope of other provisions:

167. Article 68 of the contested Law states: "The Nation recognises the right of each young person who reaches the age of eighteen years old as from 2020 to benefit from a professional or community experience abroad before his or her twenty-fifth birthday. Being outside of the normative scope, this Article should be declared unconstitutional.

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

168. Article 11 establishes certain consecutive actions for adopting the Ordinance of 23 July 2015 mentioned herein above, regarding simplifying the regime for associations and foundations. Article 46 ratifies this Ordinance.

169. Articles 13 and 14 organise a procedure allowing associations to approach the Prefect so that it may declare their public interest nature.

170. Article 15 authorises an association that has become a public interest foundation to request the transfer of its authorisation for the rest of its term. Article 16 authorises an association seeking to become a public interest foundation to request that the administration maintain its authorisation.

171. Article 31 allows the administrative authority to define the location and the oversight procedure for family education and to give formal notice to parents to enrol their children in a public or private school in the case they refuse to be subjected to this oversight.

172. Article 42 organises a civil sponsorship procedure.

173. Article 44 expands on the mission of the High Council on Community Life.

174. Article 45 authorises the recovery agency for assets seized and confiscated to provide, at no cost, real estate whose ownership has been transferred to the State in the case of criminal proceedings to associations known as public interest or companies certified as public interest.

175. Article 47 makes the pre-emptive right, as provided for in the Urban Planning Code, unenforceable on buildings transferred at no cost to foundations, associations and, in the Bas-Rhin, Haut-Rhin and Moselle, to public establishments of worship as well as local law associations.

176. Article 48 establishes that a report on allocating associations' inactive accounts to a special purposes account be submitted to Parliament. Article 49 requires account holders to specify the legal status of inactive account holders.

177. Article 50 relaxes the rules on street peddling.

178. Article 51 reverses the rules of seniority in the case of a tie vote in political elections.

179. Article 52 relates to the communes providing premises to members of Parliament.

180. Article 69 establishes that a report on creating a Francophone and Mediterranean Youth Office be submitted to Parliament.

181. Article 110 removes the requirement that the damage suffered by the beneficiary of a construction permit be excessive so that it may be authorised to be compensated by the party causing abusive recourse against this permit.

182. Article 112 authorises experimenting with occupation agreements for private or public vacant buildings, by associations free of charge.

183. Article 119 establishes the automatic termination of rental contracts in the case where the renter or one of the occupants of the premises is found guilty of drug trafficking.

184. Article 126 reduces the criminal penalties in the case of occupying common areas or roofs of multiple dwelling buildings.

185. Article 145 modifies the scope of authorities of local public companies and local public development companies.

186. Article 163 establishes leave for public workers receiving medical assistance for reproduction.

187. Article 169 modifies the provisions for the declining remuneration of territorial officials temporarily out of work.

188. Article 203 establishes automatic issuance of a residence permit to victims of domestic violence. Article 204 forbids the withdrawal of the residence permit of a person who is the victim of domestic violence. Article 209 modifies the legal regime for issuing protection orders issued by the family court. Article 210 relates to the sanctions in the case of violation of the protection measures ordered by a foreign State.

189. Article 220 relates to the profession of social mediator.

190. Introduced on first reading, the provisions of Articles 11, 13, 14, 15, 16, 31, 42, 44, 45, 46, 47, 48, 49, 50, 51, 52, 69, 110, 112, 119, 126, 145, 163, 169, 203, 204, 209, 210 and 220 of the contested law do not have a link, even an indirect one, with those in the draft law submitted to the National Assembly. Adopted according to an unconstitutional procedure, they should thus be declared unconstitutional.

- On the other provisions:

191. Section 2° of Article 173 of the contested Law modifies Article 24 bis of the Law of 29 July 1881. Pursuant to the last Subparagraph of this Section 2°, extreme negation, minimisation or trivialisation of a crime of genocide, a crime against humanity, a crime of forcing into slavery or a crime of war is punishable by a year in prison and a fine of 45,000 euros when this negation, minimisation or trivialisation constitutes an incitement to violence or hate in reference to presumed race, colour, religion, descent or national origin.

192. Pursuant to Article 11 of the 1789 Declaration: "The free communication of thoughts and opinions is one of the most precious rights of humanity: every citizen should speak, write, and print freely, except in regard to the abuse of this liberty in the cases determined by the law". Article 34 of the Constitution provides that: "Statutes shall determine the rules concerning ... the civil rights and the fundamental guarantees granted to citizens for the exercise of their civil liberties". Based on this, the legislature has the right to establish the rules concerning the right to exercise free communication and the right to speak, write and print. It also has the right, in this regard, to institute penalties for the abuse of the right to exercise free expression and communication if it infringes on public order and the rights of others. However, the liberty of expression and communication is all the more precious in that the exercise thereof is a condition of democracy and one of the guarantees that other rights and freedoms are respected. It follows that infringement on the exercise of this freedom must be appropriate, suitable and proportional to the objective sought.

193. The last Subparagraph of Section 2° of Article 173 allows for punishing the negation of certain crimes, when this negation constitutes an incitement to violence or hate in reference to the presumed race, colour, religion, descent or national origin, including if these crimes were not part of a court conviction.

194. First of all, if the actions of extreme negation, minimisation or trivialisation of a crime of genocide, a crime against humanity, a crime of forcing into slavery or a crime of war constitutes an incitement to violence or hate of a racist or religions nature, these actions, by themselves and in any case, are not of this nature. Such remarks or writings also do not constitute, themselves, a defence of the behaviours punishable by criminal law. Therefore, the actions of extreme negation, minimisation or trivialisation of these crimes cannot, in a general manner, be considered by themselves an abuse of the free exercise of expression and communication infringing on the public order and the rights of others.
195. Secondly, according to the seventh Subparagraph of Article 24 of the Law of 29 July 1881 currently in force, actions of incitement to discrimination, hate or violence in regard to a person or group of persons because of their origin or their belonging or not belonging to a particular ethnicity, nationality, race or religion is punishable by a year in prison and a fine of 45,000 euros. Therefore, the provisions introduced by the last Subparagraph of Section 2° of Article 173, which impose the same sentences on remarks presenting the same characteristics, are not necessary for the suppression of such incitement to hate or violence.

196. Thirdly, taking into account what is written in the preceding Paragraph, the only effect of the provisions of the last Subparagraph of Section 2° of Article 173 is to allow the court, in establishing the elements that constitute an infraction, to decide on the existence of a crime where negation, minimisation or trivialisation is alleged, when it is not asked to decide on the basis of this crime and no jurisdiction has decided on the activities alleged to be criminal. Actions or remarks may therefore give rise to prosecution if they negate, minimise or trivialise facts without them already receiving the qualification of one of the crimes established under the provisions of the last Subparagraph of Section 2° of this Article 173. Therefore, these provisions introduce an uncertainty of the legality of remarks or writings on facts that may be the subject of historical debate that do not satisfy the requirement of proportionality that is imposed regarding the exercise of liberty of expression.

197. It follows from the foregoing that the legislature, by punishing the negation, minimisation or trivialisation of certain crimes that have not been the subject of prior criminal conviction, has infringed on the exercise of the liberty of expression in a manner which is neither appropriate nor proportional. Thus the last Subparagraph of Section 2° of Article 173 should be declared unconstitutional.

- On the other provisions:

198. 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 relating to equality and citizenship are ruled unconstitutional:
- Article 39;
- Article 68;
- Article 100;
- The last Subparagraph of Section 2° of Article 173;
- Article 179;
- Article 217;
- Articles 11, 13, 14, 15, 16, 31, 42, 44, 45, 46, 47, 48, 49, 50, 51, 52, 64, 69, 80, 91, 110, 112, Paragraph XIV of Article 117, Articles 119, 126, 145, 163, 169, 191, 192, 203, 204, 209, 210, 220 and 222 ;
- Paragraph I of Article 67, Paragraph III of Article 104, Paragraph II of Article 121, Section 1° of Paragraph I of Article 122, Article 128 and Paragraphs V to VII of Article 152.

Article 2. The following provisions of the same Law are constitutional:
- The ninth to the fifteenth Subparagraph of Section 2°(f) of Paragraph I of Article 70;
- Section 1° (c) of Paragraph I of Article 78;
- Sections 4° (b) to (d) of Paragraph I of Article 97;
- The fifth Subparagraph of Section 1° (a) and the fourth and fifth Subparagraph of Section 1° (b) of Paragraph I of Article 98;
- Section 1° (b) and Section 2° of Paragraph I of Article 99;
- Section 2° of Article 129;
- The third and fourth Subparagraphs of Section 3° of Article 149;
- Section 7° of Paragraph I and Section 1° (a) and Section 2° (a) and Section 3° (c) of Paragraph II of Article 170;
- Sections 1° and 2° of Paragraph I of Article 171;
- Articles 174 and 176;
- Article 177;
- Article 186;
- Article 207.

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

Deliberated by the Constitutional Council in its session of 26 January 2017, in attendance: Mr. Laurent FABIUS, Chairperson, Ms. Claire BAZY MALAURIE, Ms. Nicole BELLOUBET, Mr. Jean-Jacques HYEST, Mr. Lionel JOSPIN, Ms. Corinne LUQUIENS, Ms. Nicole MAESTRACCI and Mr. Michel PINAULT.