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Decision no. 2019-823 QPC of 31 January 2020 - Press release

The Constitutional Council declares the protection of the environment, the common heritage of all mankind, as an objective of constitutional value

  • Subject of a priority preliminary ruling on the issue of constitutionality (QPC)

On 7 November 2019, the Constitutional Council received a referral from the Conseil d’État on a priority preliminary ruling on the issue of constitutionality relating to the conformity with rights and freedoms that the Constitution guarantees of paragraph IV of Article L. 253-8 of the Rural and Maritime Fisheries Code, in its formulation resulting from Act No. 2018-938 of 30 October 2018 for the balance of trade relations in the agriculture and food sector, and for food that is healthy, sustainable, and accessible to all.

These provisions prohibit the production, storage, and transport in France of plant protection products that contain active substances that have not been approved by the European Union because of their effects on human and animal health, or the environment. They therefore act as a barrier not only to the sale of such products in France, but also to their export.
These products include herbicides, fungicides, insecticides and acaricides.

  • Criticisms concerning these legislative provisions

The Union des industries de la protection des plantes (French association of industries of plant protection), joined by the Union française des semenciers (French association of seed producers), held that the prohibition on export brought about by these provisions, due to the serious consequences for the companies that produce or export the products, was a violation of the right to free enterprise. According to them, such a prohibition would not be related to the environmental and health protection objective in that the importing countries that allow these products will not discontinue using them, as they can purchase them from the foreign-based competitors of the companies based in France.

  • The constitutional context

By its decision dated today, the Constitutional Council firstly notes that the right of free enterprise is derived from Article 4 of the Declaration of Human and Civic Rights of 1789. For the first time, the Constitutional Council then decided that it follows from the preamble of the Charter for the Environment that the protection of the environment, the common heritage of all mankind, constitutes an objective of constitutional value. Its decision is based specifically in this regard on the terms of the preamble of the Charter, according to which: “the future and very existence of mankind are inextricably linked with its natural environment... the environment is the common heritage of all mankind... care must be taken to safeguard the environment along with the other fundamental interests of the Nation... in order to ensure sustainable development, choices designed to meet the needs of the present generation should not jeopardise the ability of future generations and other peoples to meet their own needs”.

Today’s decision also notes the objective of constitutional value of the protection of health, following from the eleventh section of the Preamble of the Constitution of 1946. Protection of health therefore constitutes an objective of constitutional value.

From all of these constitutional provisions, the Constitutional Council deduced, for the first time, that the legislator’s responsibility is to ensure the reconciliation between the objectives of constitutional value of protecting the environment and protecting health with the right to free enterprise. As such, the legislator decided to account for the effects that the activities carried out in France can have on the environment outside of France.

  • The control of legislative provisions are the subject of the priority preliminary ruling on the issue of constitutionality (QPC)

Concerning the constitutional context that was just presented, the Constitutional Council finds that, by adopting the disputed provisions, the legislator has undertaken to prevent harm to human health and the environment that could result from the spread of active substances contained in the products concerned, for which the harmful nature has been determined as part of the European process of approval of active substances. It notes that, in this case, the Constitutional Council does not have a general mandate for judgements that is similar to that of Parliament, it cannot call into question, in light of current knowledge, the provisions put in place by the legislator. The Constitutional Council decides that, through the disputed provisions, the legislator has undertaken to prevent companies established in France from participating in the trade of such products worldwide and therefore, indirectly, to protect from harm that could result to human health and the environment. In so doing, and even if the production and marketing of such products could be authorised outside of the European Union, the violation of the right of free enterprise is well in accord with the objectives of constitutional value of protecting health and the environment.

The Constitutional Council notes, as well, that, by deferring the date of application to 1 January 2022 for prohibiting the production, storage, or transport of plant protection products that contain active substances that have not been approved, the legislator has provided a delay to companies subject to the prohibition that is a little over three years to adapt their business accordingly.

As a result of the foregoing, the Constitutional Council concludes that, by adopting the contested provisions, the legislator has assured a reconciliation that is not manifestly unbalanced between the right of free enterprise and the objectives of constitutional value of protecting health and the environment.

The disputed provisions are therefore declared as conforming to the Constitution.