Decision no. 2010-12 QPC of 2 July 2010

On May 20th 2010 the Constitutional Council, in the conditions provided for by Article 61-1 of the Constitution, received an application for a priority preliminary ruling on the issue of constitutionality transmitted by the Conseil d'Etat (decision n° 306643 of May 18th 2010), an application lodged by the Commune of DUNKIRK raising the issue of the conformity with constitutionally guaranteed rights and freedoms of Articles L 2113-2 and L 2113-3 of the General Code of Territorial Communities

THE CONSTITUTIONAL COUNCIL

Having regard to the Constitution;

Having regard to Ordinance n° 58-1067 of November 7th 1958 as amended (Institutional Act on the Constitutional Council);

Having regard to the General Code of Territorial Communities;

Having regard to Act n° 2004-809 of August 13th 2004 pertaining to local responsibilities and freedoms, in particular Article 123 thereof;

Having regard to the Regulation of February 4th 2010 as to the procedure applicable before the Constitutional Council with respect to applications for priority preliminary rulings on the issue of constitutionality;

Having regard to the observations on behalf of the Commune of DUNKIRK made by the SCP Lyon-Caen, Fabiani, Thiriez Attorneys at the Conseil d'Etat and the Cour de cassation, registered on June 8th 2010;

Having regard to the observations of the Prime Minister, registered on June 10th 2010;

Having regard to the further observations on behalf of the Commune of DUNKIRK, registered on June 17th 2010;

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

Attorney Arnaud Lyon-Caen for the Commune of DUNKIRK and Sophie Rimeu, representing the Prime Minister, were heard by the Council in open court on June 24th 2010;

Having heard the Rapporteur;

ON THE FOLLOWING GROUNDS:

1. Article L 2113-2 of the General Code of Territorial Communities, as worded pursuant to section 123 of the Act of August 13th 2004 referred to above, provides : " Persons whose names are on the municipal electoral roll shall be consulted as to the opportuneness of merging Communes - Expenditure arising by reason of said consultation shall be borne by the State - A Decree shall determine the manner of organising the consultations provided for in paragraph 1 hereof"
   Article L 2113-3 of the same Code provides : " When a consultation has been organised in the manner specified in Article L 2113-2, the merger shall be announced by an Order from the State representative in the Department if the project obtains the agreement of the absolute majority of votes cast corresponding to no fewer than one quarter of registered voters in all the Communes involved- No Commune may however be forced to merge if the outcome of the consultation is that two thirds of votes cast, representing no fewer than one half of registered voters in said Commune, have expressed their opposition to said project".

2. The Applicant Commune contends that when providing for a referendum for all mergers of Communes, the provisions cited hereinabove run counter to the final phrase of paragraph 3 of Article 72-1 of the Constitution which authorises consultations of voters solely for changes to the boundaries of territorial communities. It argues that said provisions fail to comply with the principle of national sovereignty by conferring upon a section of the people a power to make decisions. They thus infringe the principle of the self-government of territorial communities.

3. The final phrase of paragraph 3 of Article 72-1 of the Constitution provides : "Voters may also be consulted on changes to boundaries of territorial communities in the conditions provided for by statute". In all events, the authorisation thus conferred on Parliament does not constitute any right or freedom which may be raised to support an application for a priority preliminary hearing on the issue of constitutionality on the grounds of Article 61-1 of the Constitution.

4. The decision to proceed to merge Communes does not constitute an act adversely affecting the self-government of territorial communities.

5. In all events, the decision to proceed to merge Communes following a consultation of voters does not call into question either the definition of national sovereignty nor the conditions governing the exercising thereof.

6. The challenged provisions do not infringe any other constitutionally guaranteed right or freedom.

HELD

Article 1: Articles L 2113-2 and L 2113-3 of the General Code of Territorial Communities are constitutional.

Article 2: This decision shall be published in the Journal officiel of the French Republic and notified in the conditions provided for in Section 23-11 of the Ordinance of November 7th 1958 referred to hereinabove.

Deliberated by the Constitutional Council sitting on July 1st 2010 and composed of Messrs Jean-Louis DEBRE, President, Messrs Jacques BARROT, Guy CANIVET, Renaud DENOIX de SAINT MARC, Mrs Jacqueline de GUILLENCHMIDT, Messrs Hubert HAENEL and Mr Pierre STEINMETZ.