Decision

Decision no. 2010-19/27 QPC of 30 July 2010

Spouses P et al. [Tax Searches and Seizures]

On June 9th 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° 338028 of June 9th 2010), application made by Mr. and Mrs. André P pertaining to the conformity of 1° and 3° of paragraph IV of section 164 of Act n° 2008-776 of August 4th 2008 modernising the economy with the rights and freedoms guaranteed by the Constitution.

It also received on June 21st 2010, in the same conditions, two applications transmitted by the Cour de cassation (decisions n° 12093 and 12101 of June 15th 2010) for two priority preliminary rulings on the issue of constitutionality made respectively by the SARL DEG CONSEILS, the company WEBTEL-GSM LLC, Mrs. Regine D, married name A-A, and Mr. Philippe C pertaining to the conformity with the rights and freedoms guaranteed by the Constitution of Article L 16 B of the Book of Tax Procedures as worded pursuant to the same statute.

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 Book of Tax Procedures;

Having regard to section 94 of Act n° 84-1208 of December 1984 being the Finance Act 1985 and decision n° 84-184DC of the Constitutional Council of December 29th 1984;

Having regard to section 108 of Act n° 89-935 of December 29th 1989 being the Finance Act 1990 and decision n° 89-184 DC of the Constitutional Council of December 29th 1989;

Having regard to section 49 of Act n° 2000-516 of June 15th 2000 reinforcing the protection of the presumption of innocence;

Having regard to section 164 of Act n° 2008-776 of August 4th 2008 modernising the economy;

Having regard to Decree n° 85-1008 of September 24th 1985 incorporating into the Book of Tax Procedures various provisions amending and completing certain provisions of said Book;

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 Mr. and Mrs. P made by Me Patrick Philip, Attorney at the Bar of Hauts-de-Seine, registered on June 24th 2010;

Having regard to the observations on behalf of the company WEBTEL-GSM LLC, Mrs. D and Mr. C by the SCP Alain-François Roger and Anne Sevaux, Attorneys at the Conseil d'Etat and the Cour de cassation, registered on July 1st 2010;

Having regard to the observations made on behalf of SARL DEG CONSEILS by the SCP Hélène Didier and François Pinet, Attorneys at the Conseil d'Etat and the Cour de cassation, registered on July 6th 2010;

Having regard to the observations of the Prime Minister, registered on June 25th and July 6th 2010;

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

Me Patrick Philip for Mr and Mrs P, Me François Pinet for the SARL DEG CONSEILS , Me Alain-François Roger for the company WEBTEL6GSM LLC, Mrs D and Mr C, and Laurent Fouquet, representing the Prime Minister, were heard by the Council in open court on July 27th 2010;

Having heard the Rapporteur;

ON THE FOLLOWING GROUNDS

  1. The various applications for a priority preliminary ruling on the issue of constitutionality will be joined together and will be the object of one single decision;

WITH RESPECT TO L 16 B OF THE BOOK OF TAX PROCEDURES AS WORDED PURSUANT TO THE ACT OF AUGUST 4TH 2008 REFERRED TO ABOVE ;

  1. Article L.16 B of the Book of Tax Procedures lays down the legal framework for searches and seizures carried out by Tax officers. As worded pursuant to section 164 of the Act of August 4th 2008 referred to above, this section provides:
    " I. When the Judicial authority, petitioned by the Tax Authorities, deems that there exist presumptions that a taxpayer is avoiding the levying or payment of income taxes or taxes on profits or VAT by buying or selling goods without invoices, by using or issuing documents unconnected with actual transactions or knowingly failing to keep or causing others to fail to keep financial records, or knowingly making or causing others to make inaccurate or fictive entries in books of account required to be kept by the General Tax Code it may, in the conditions provided for in II, authorize Tax officers, of a rank no lower than that of Inspector and duly empowered by the Director General of Taxation, to search for evidence of such activities by searching all premises, even private, where papers or documents connected with the same are likely to be kept and to proceed to seize the same, irrespective of the medium in which they are stored.
    " II. Each search shall be authorized by an order issued by the Freedom and Detention Judge of the Tribunal de grande instance having jurisdiction over the place in which the premises to be searched are located.
    " The Judge shall verify in a practical manner whether there are grounds for requesting such authorization. The request for the same shall contain all elements of information in the possession of the Tax authorities likely to justify such a search.
    " The order shall contain :
  • the address of the premises to be searched
  • the name and address of the duly empowered civil servant who has requested and obtained authorization to carry out the search
  • indication of the fact that the taxpayer involved may call upon the services of an Attorney of his choosing
    " In the event of the taxpayer availing himself of said faculty, this shall not entail any suspension of the search of the premises and seizure of items found.
    " The judge shall give reasons for his decision by indicating the factual elements and points of law on which said decision is based and which make it possible to suspect, in the case in hand, the existence of fraudulent activities of which proof is sought.
    " If during this search, the duly empowered Tax officers discover the existence of a safe in a credit institution of which the person occupying the premises being searched is the holder and where papers and documents connected with the activities referred to in I are likely to be found, they may, upon authorization granted by any means by the Judge who has made the order, immediately proceed to search said safe. This authorization shall be entered in the formal record as provided for in IV hereof.
    " The search and the seizure of documents shall be carried out under the authority and supervision of the Judge who has authorized the same. He shall give all necessary instructions for this purpose to the Tax officers taking part in said search.
    " He may, should he deem it necessary, be present on the premises while said search is being carried out.
    " He may at any time decide to suspend or stop the search
    " The order shall be executory upon sole presentation of the record thereof.
    " The order shall be notified verbally on the premises to the occupant of the premises or the representative thereof when the search takes place and the latter shall receive a full copy thereof and shall sign a receipt for the same or sign the official record as provided for in IV. In the absence of the occupant of the premises or the representative thereof said order shall be notified, after the search, by registered mail return receipt requested. Said notice shall be deemed to have been made at the date of receipt indicated on the return receipt.
    " In the event of there being no receipt, notice of the order shall be served by Bailiff.
    " The time allotted for and manner of appeal shall be specified in the order.
    " Said order may be appealed against before the First President of the Court of Appeal. The parties are not required to instruct an Attorney.
    " In accordance with the rules laid down by the Code of Civil Procedure, said appeal shall be lodged exclusively by a declaration delivered in person or addressed by registered mail or, as from January 1st 2009, by electronic means, to the Court office within fifteen days. Said period of fifteen days shall run from the personal delivery, the receipt or the serving of notice of the order. Said appeal shall not have any suspensive effect.
    " The Court office of the Tribunal de grande instance shall without delay transmit the case file to the Court office of the Court of appeal where it shall be available for consultation by the parties.
    " The order issued by the First President of the Court of appeal may be the object of an appeal on a point of law to the Cour de cassation in accordance with the rules provided for by the Code of Civil Procedure. The time allotted for making such an appeal is fifteen days.
    " III. The search, which shall not commence before 6.30 a.m nor after 9 p.m, shall be carried out in the presence of the occupant of the premises or the representative thereof. Should this prove impossible, the Police officer from the Criminal Investigation department shall select two witnesses who shall be persons who are not placed under his authority nor under that of the Tax authorities.
    " The Tax officers referred to in I hereinabove may be assisted by other Tax officers empowered in the same conditions as the Inspectors.
    " The duly empowered Tax officers, the occupant of the premises or the representative thereof and the CID Police officer shall be the sole persons allowed to take cognizance of papers and documents prior to the seizure thereof.
    " The CID Police officer shall ensure compliance with respect for professional confidentiality and the rights of the defence in accordance with the provisions of Article 56 paragraph 3 of the Code of Criminal Procedure. Article 58 of said Code shall also apply.
    " IV. A formal record setting out the manner in which said search was proceeded with and recording the findings thereof shall be immediately drawn up by the Tax officers. An inventory of papers and documents seized shall be appended to the same if need be. The formal record and the inventory shall be signed by the Tax officers and the CID Police officer together with the persons referred to in paragraph 1 of III hereinabove. In the event of refusal to sign such refusal shall be noted in the record.
    " Should it prove difficult to draw up an inventory in situ, papers and documents seized shall be placed under seal. The occupant of the premises or the representative thereof is informed that he may attend the opening of said sealed papers and documents which shall take place in the presence of the CID Police officer. An inventory shall then be drawn up.
    " V. The original of the formal record and the inventory shall be addressed to the Judge authorizing the search immediately after being drawn up. A copy thereof shall be handed to the occupant of the premises or the representative thereof. A copy shall also be sent by registered mail return receipt requested to the persons suspected of the activities referred to in I hereinabove, notwithstanding the provisions of Article L.103.
    " Papers and documents seized shall be returned to the occupant of the premises within six months of the search. However when criminal proceedings have been brought, the return of such papers and documents shall be authorized by the relevant Judicial authority.
    " The formal record and the inventory shall specify the time allotted for and the manner of appeal"
    " The First President of the Court of appeal shall hear appeals against the manner in which the search of the premises or the seizure of items was carried out. The parties shall not be required to instruct an Attorney.
    " Pursuant to the rules provided for by the Code of Civil Procedure, said appeal shall be lodged exclusively by a declaration delivered in person or addressed by registered mail or, as from January 1st 2009, by electronic means, to the Court office within fifteen days. Said period of fifteen days shall run from the delivery or the receipt of the formal record or the inventory referred to in paragraph 1 hereof. Said appeal shall not have any suspensive effect.
    " The order issued by the First President of the Court of appeal may be the object of an appeal on a point of law to the Cour de cassation in accordance with the rules provided for by the Code of Civil Procedure. The time allotted for making such an appeal is fifteen days
    " VI. The Tax authorities may only assert against the taxpayer information collected after the return to the latter of all papers and documents seized and the implementation of tax audit procedures as provided for in paragraphs 1 and 2 of Article L. 47 ".
  1. The Applicants argue that the searches and seizures carried out by the Tax officers infringe the inviolability of the home, the right to property, the right to an effective judicial remedy and the rights of the defence. They contend in particular that Article L. 16 B of the Book of Tax Procedures does not require the Judge either to state in the authorization order the possibility and manner of applying to said Judge for the purpose of suspending or stopping such a search, or to give details of where he may be contacted in order to ensure the effective nature of the supervision of the operations carried out.

  2. The challenged provision originates from section 94 of the Act of December 29th 1984 referred to hereinabove. This section was especially reviewed and held to be constitutional by the Constitutional Council in paragraphs 33 to 35 of its decision of December 29th 1984 referred to hereinabove. Subsequent to its insertion in the Book of Tax Procedures, it was amended by section 109 of the Act of December 29th 1989, section 49 of the Act of June 15th 2000 and section 164 of the Act of August 4th 2008 referred to hereinabove.

  3. Section 108 of the Act of December 29th 1989 inserted into Article L.16 B of the Book of Tax Procedure the provisions contained in indents 3 to 7 and 15 to 17 of Paragraph II thereof. These provisions were especially reviewed by the Constitutional Council and held to be constitutional in paragraphs 91 to 100 of its decision of December 29th 1989 referred to hereinabove.

  4. Article 16 of the Declaration of the Rights of Man and the Citizen of 1789 proclaims : "Any society in which no provision is made for guaranteeing rights or the separation of powers has no Constitution".

  5. VI of section 49 of the Act of June 15th 2000 referred to hereinabove is designed solely to vest the Freedom and Detention Judge, and no longer the President of the Tribunal de grande instance, with the power to authorize the searches provided for in Article L.16 B of the Book of Tax Procedures. It does not fail to comply with any constitutional requirement.

  6. Section 164 of the Act of August 4th 2008 has inserted into Article L.16 B of the Book of Tax Procedures the provisions contained in indents 6 and 7, 14 and 16 to 21 of its paragraph II and the final phrase of indent 1 of paragraph V and indents 3 to 6 of this same paragraph. It has introduced into the procedure provided for in Article L.16 B of the Book of Tax Procedures additional guarantees for persons concerned by such searches by giving them the faculty of lodging with the President of the Court of appeal an appeal against the order authorizing the search by the Tax authorities and also against the carrying out of such searches.

  7. Firstly, indent 15 of paragraph II of Article L.16 B of the Book of Tax Procedures provides that the order is verbally notified in situ when the search takes place. If it cannot be notified to the occupant of the premises or the representative thereof, it shall be notified by registered mail return receipt requested or, failing that, notice thereof shall be served by a Bailiff. Indent 19 of this Article provides that "the time allotted for and the manner of appeal" are indicated in the order. Secondly, although the challenged provisions provide that the order authorizing the search is executory "upon sole presentation of the record thereof", and that the appeal does not have any suspensive effect, these provisions, which are indispensable to ensure the effectiveness of the search and designed to ensure the implementation of the objective of constitutional value which is the fight against tax evasion, do not infringe the right of the Applicant to obtain, if need be, the setting aside of the results of such operations. The argument based on the infringement of the right to an effective judicial remedy, which derives from Article 16 of the Declaration of 1789 must therefore be dismissed.

  8. In the absence of any change of circumstance, it is not incumbent on the Constitutional Council to examine arguments raised against provisions which it has already held to be constitutional in its decisions referred to hereinabove. The arguments based on infringement of the right to property, of the inviolability of the home or failure to comply with Article 66 of the Constitution, which refer to provisions already held to be constitutional, must therefore be dismissed.

WITH RESPECT TO 1° AND 3° OF PARGRAPH IV OF SECTION 164 OF THE ACT OF AUGUST 4TH 2008 REFERRED TO HEREINABOVE :

  1. 1° of paragraph IV of section 164 of the Act of August 4th 2008 referred to hereinabove is designed to allow, in conditions similar to those provided for by Article L.16 B of the Book of Tax Procedures, an appeal against the order made by the Freedom and Detention Judge for searches and seizures for which the formal record or inventory has been delivered or received prior to the date of coming into effect of the reform of said procedure. 3° of IV of this same section specifies the manner in which the taxpayer is to be informed of his rights.

  2. Under 1° of paragraph IV of this section 164 : " For searches and seizures provided for in Article L.16 B of the Book of Tax Procedures for which the formal record or inventory has been delivered or received prior to the coming into force of this statute, an appeal against the order referred to in II hereof, even when this order has been the object of an appeal on a point of law which has been dismissed by the Cour de cassation, or against the manner in which the visit of inspection or seizure took place, may be lodged before the First President of the Court of appeal within the time allotted and in the manner provided for in 3 of this IV in the following cases :
    " a) When the searches or seizures have been carried out as from January 1st of the third year preceding the coming into effect of this statute and have not given rise to any tax audit as referred to in Article L.10 to L.47 A of the Book of Tax Procedures;
    " b) When the audit procedures referred to in Articles L.10 to L 47 A of the same Book have been implemented subsequent to searches or seizures carried out as from January 1st of the third year preceding the coming into effect of this statute and have not given rise to any proposition of rectification or notification of any automatic taxation;
    " c) When the audit procedures implemented subsequent to a search or seizure have not given rise to any call for payment of taxes or, in the absence of any additional taxation, the receipt of either the reply to the observations of the taxpayer referred to in Article L.76 of the same Book, of the notification provided for in Article L.76 of the same Book, or the notification of the opinion given by the Departmental Tax Commission on direct taxes and taxes on turnover or the National Tax Commission on direct taxes and taxes on turnover;
    " d) When, on the basis of information obtained by the Tax authorities during searches and seizures, taxation has been computed or rectifications not leading to additional taxation have been carried out and, at the date of the coming into force of this statute, the same are currently or likely to be the object of a claim or litigation, subject to those cases in which decisions have become res judicata. The judge, duly informed by the appellant or the party disputing the claim or by the Tax authorities of the existence of such proceedings, shall stay his ruling until such time as the First President of the Court of appeal has handed down his decision ".

  3. Under 3° of paragraph IV of the same section : " In the cases mentioned in1° and 2° hereinabove, the Tax authorities shall inform the persons referred to in the order or subjected to such searches and seizures of the existence of said possibilities of appeal and of the period of two months allotted for the lodging thereof as from the receipt of said information for the purpose of appealing against or objecting to the carrying out of said searches and seizures. This appeal and this objection shall be exclusive of any assessment by the trial judge of the lawfulness of the carrying out of such searches and seizure. They shall be made in the manner provided for respectively by Articles L 16 B and L.38 of the Book of Tax Procedures and Article 64 of the Customs & Excise Code. In the absence of any information on the part of the Tax authorities, these persons may, in the same manner, lodge said appeal or raise said objections without any requirement as to compliance with a specified timeframe.".

  4. The first Applicant contends that these provisions fail to comply with the principle of no retrospective effect of the criminal law enshrined in Article 8 of the Declaration of 1789, infringe the right to consent to taxation provided for by Article 14 thereof, and the principle of the separation of powers guaranteed by Article 16 of said Declaration.

  5. Firstly, the challenged provision does not institute any incrimination or any punishment. The argument based on non-compliance with the principle of no retrospective effect of a harsher criminal law must therefore be dismissed.

  6. Secondly, under Article 34 of the Constitution : " Statutes shall determine the rules concerning … the base, rates and methods of collection of all types of taxes... Finance Acts shall determine the revenue and expenditure of the State in the conditions and with the reservations provided for by an Institutional Act..." The provisions of Article 14 of the Declaration of 1789 have been implemented by Article 34 of the Constitution and do not institute any right or freedom which can be put forward during proceedings before a court in support of an application for a priority preliminary ruling on the issue of constitutionality on the basis of Article 61-1 of the Constitution. The argument based on non-compliance with Article 14 of the Declaration of 1789 must therefore be dismissed.

  7. Thirdly, Parliament is at all times at liberty, when acting in those fields reserved for it by the Constitution, to modify or repeal previous statutes and replace the same, if need be, by other provisions. Such measures must not however deprive requirements of a constitutional nature of statutory guarantees. Parliament would in particular fail to comply with the guaranteeing of rights as proclaimed by Article 16 of the Declaration of 1789 if it were to adversely affect legally acquired situations without justifying such measures on the grounds of sufficient general interest.

  8. Lastly, although Parliament may retrospectively modify a legal rule or validate an administrative instrument or an instrument of private law, this is on condition that such a measure is taken for the purposes of the general interest and respects court decisions which have become res judicata, together with the principle of non retrospectiveness of penalties and punishments. The instrument modified or validated must not infringe any rules or principle of constitutional status. Lastly the scope of the modification or validation must be strictly defined.

  9. 1° and 3° of paragraph IV of section 164 of the Act of August 4th 2008 referred to above confer upon certain taxpayers subjected to searches or seizures prior to the coming into force of said statute the right to appeal against the order authorizing said search or make an objection to the manner in which said operations were carried out. They therefore grant such persons a retrospective right to avail themselves of the new channels of appeal provided for by Article L 16.B of the Book of Tax Procedures. They do not therefore adversely affect any lawfully acquired situation in conditions such as to infringe the guarantee of rights as proclaimed by Article 16 of the Declaration of 1789.

  10. 1° and 3° of paragraph IV of section 164 of the Act of August 4th 2008 referred to hereinabove and Article L. 16 B of the Book of Tax Procedures, as worded pursuant to this same statute, do not run counter to any constitutionally guaranteed right or freedom.

HELD

Article 1: 1° and 3° of paragraph IV of section 164 of Act n° 2008-776 of August 4th 2008 modernising the economy and Article L.16 B of the Book of Tax Procedures as worded pursuant to the same statute are in conformity with the Constitution..

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 29th 2010 and composed of Messrs Jean-Louis DEBRE, President, Messrs Jacques BARROT, Guy CANIVET, Michel CHARASSE, Renaud DENOIX de SAINT MARC, Mrs Jacqueline de GUILLENCHMIDT, Messrs Hubert HAENEL, and Mr Pierre STEINMETZ.

Announced on July 30th 2010.

À voir aussi sur le site : Communiqué de presse, Commentaire, Dossier documentaire, Historique, Décision de renvoi CE, Décision de renvoi Cass. 2, Décision de renvoi Cass., Références doctrinales, Vidéo de la séance.