Decision no. 2010-39 QPC of 6 October 2010

On July 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 Cour de cassation (decision N° 12143 of July 8th 2010), made by Mrs Isabelle D and Mrs Isabelle B pertaining to the conformity of Article 365 of the Civil Code with the rights and freedoms guaranteed by the Constitution.

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 Civil Code ;

Having regard to decision n° 06-15647 of the Cour de cassation (First Civil Chamber) dated February 20th 2007

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 of the Prime Minister, registered on August 10th 2010;

Having regard to the observations on behalf of the Applicants made by the SCP Boré et Salvé de Bruneton, Attorneys at the Conseil d'Etat and the Cour de cassation

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

Me Louis Boré for the Applicants, and Mr Thierry-Xavier Girardot, representing the Prime Minister, were heard by the Council in open court on September 27th 2010;

Having heard the Rapporteur;

ON THE FOLLOWING GROUNDS

WITH RESPECT TO THE PROVISIONS REFERRED FOR REVIEW BY THE CONSTITUTIONAL COUNCIL

1. Article 365 of the Civil Code provides : "The adopter shall alone be vested with all rights of parental authority over the adoptee, including that of consenting to the marriage of the latter, unless said adopter be the spouse of the father or mother of the adoptee. In such cases the adopter shall be vested with parental authority concurrently with the his/her spouse, who shall alone be entitled to exercise said authority, subject to a joint declaration made with the adopter before the Chief Clerk to the Tribunal de grande instance for the purpose of exercising said parental authority in common.
   Parental authority rights shall be exercised by the adopter(s) in the conditions provided for in Chapter 1 of Title IX of this Book..
   The rules of statutory administration and guardianship of minors shall apply to the adoptee"

2. Article 61-1 of the Constitution recognises that each citizen subject to the jurisdiction of the courts is entitled to have the court examine the argument whereby a statutory provision infringes constitutionally guaranteed rights and freedoms. Sections 23-2 and 23-5 of the Ordinance of November 7th 1958 referred to above set out the conditions in which an application for a priority preliminary ruling on the issue of constitutionality is to be transmitted by the said court to the Conseil d'Etat or the Cour de cassation and submitted for review by the Constitutional Council. These provisions provide in particular that the challenged statutory provisions must be "applicable to the litigation or proceedings underway". When applying for a priority preliminary ruling on the issue of constitutionality any person coming under the jurisdiction of the courts has the right to challenge the constitutionality of the construction which an unbroken line of precedent has given to said provision.

3. Article 365 of the Civil Code lays down the rules of attribution of parental authority as regards a minor who has been the object of a simple adoption. Since the decision of February 20th 2007 referred to above, the Cour de cassation has constantly found that when the biological father or mother intends to continue to raise the child, the transfer of parental authority which would result from the adoption by the common law spouse or partner of the biological parent runs counter to the interests of the child and thus is an obstacle to the making of such an adoption order. The constitutionality of Article 365 of the Civil Code must therefore be examined not insofar as it introduces a distinction between children with respect to parental authority depending on whether they are adopted by the common law spouse or partner of their biological parent but insofar as it prohibits in principle the adoption of the minor child by the common law spouse or partner of the parent of said child..

WITH RESPECT TO THE CONSTITUTIONALITY OF THE CHALLENGED PROVISION

4. The Applicants contend that when providing that a simple adoption shall entail the sharing of parental authority between the adopter and the parent of the adoptee solely when such persons are married, Article 365 of the Civil Code deprives the minor child of the possibility of being adopted by the common law spouse or partner of his/her father or mother. When thus prohibiting "the legal recognition of a pre-existing social bond of filiation" Article 365 of the Civil Code fails to respect the right to a normal family life and the principle of equality before the law.

5. Under Article 34 of the Constitution, statutes determine "the status and capacity of persons, matrimonial property systems, inheritance and gifts". Parliament is at all times at liberty, when acting in fields reserved for it by the Constitution, to pass such new measures as it deems fit and modify or repeal existing provisions on condition that when exercising said powers it does not strip constitutional requirements of legal guarantees. Articles 61-1 and 61 of the Constitution do not confer upon the Constitutional Council any general power of appraisal similar to that vested in Parliament. Said Article merely vests the Constitutional Council with jurisdiction to rule as to whether a statutory provision is in conformity with constitutionally guaranteed rights and freedoms.

6. Firstly, Article 6 of the Declaration of the Rights of Man and the Citizen of 1789 proclaims: "The Law shall be the same for all, whether it protects or punishes". The principle of equality does not preclude Parliament from treating different situations in different ways, nor from departing from the principle of equality for reasons of general interest provided that, in each case, the resulting difference in treatment is directly connected with the purpose sought to be achieved by the statute which introduces such different treatment.

7. Secondly, the right to lead a normal family life derives from paragraph 10 of the Preamble to the Constitution of 1946 which provides : " The Nation shall provide the individual and the family with the conditions necessary for their development".

8. The challenged statutory provision, in the construction given to it by an unbroken line of precedent of the Cour de cassation, prevents a minor child from establishing a second bond of filiation with the common law spouse or partner of his/her father or mother through the mechanism of a simple adoption. This provision however in no way prevents the parent of a minor child from co-habiting with a person or entering into a civil partnership with any person of his/her choosing. Neither does it prevent said parent from having his/her common law spouse or partner participate in the upbringing and education of the child. The right to lead a normal family life does not imply that the relationship between a child and the person who co-habits with the father or mother of said child carries any entitlement to the creation of an adoptive bond between said person and said child. The argument whereby Article 365 of the Civil Code infringes the right to lead a normal family life must thus be dismissed.

9. When maintaining the principle whereby the possibility of adoption by a couple is reserved for spouses Parliament, when exercising the powers vested in it by the Constitution, felt that the difference in situation between married couples and unmarried couples justified a difference in treatment as to the creating of adoptive bonds with minor children. It is not incumbent upon the Constitutional Council to substitute its own appraisal for that of Parliament as to the consequences which should be drawn in the case in hand, from the particular situation of children brought up by two persons of the same sex. Hence the argument based on the infringement of Article 6 of the Declaration of 1789 must be dismissed.

10. Article 365 of the Civil Code does not run counter to any other constitutionally guaranteed right or freedom.

HELD

Article 1: Article 365 of the Civil Code is 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 October 5th 2010 and composed of Messrs Jean-Louis DEBRE, President, Mr Jacques BARROT, Mrs Claire Bazy MALAURIE, Messrs Guy CANIVET, Michel CHARASSE, Renaud DENOIX de SAINT MARC, Mrs Jacqueline de GUILLENCHMIDT and Mr Pierre STEINMETZ.

Announced on October 6th 2010.