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 Conseil d'Etat (decision n° 337320 of July 9th 2010), application made by Mr Mathieu P pertaining to the conformity of Article 45 of the Postal and Electronic Communications 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 Postal and Electronic Communications Code;
Having regard to the Code of Administrative Justice;
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 Applicant registered on July 29th 2010;
Having regard to the observations for the French Network Information Centre (Association française pour le nommage internet en cooperation) made by the SCP Piwnica and Molinié, Attorneys at the Conseil d'Etat and the Cour de cassation, registered on August 9th 2010;
Having regard to the observations of the Prime Minister, registered on August 10th 2010;
Having regard to the observations in reply made in the behalf of the French Network Information Centre registered on August 24th 2010;
Having regard to the observations made in reply on behalf of the Applicant registered on August 25th 2010;
Having regard to the documents produced and appended to the case file;:
Me François Gilbert for the Applicant, Me Emmanuel Piwnica for the French Network Information Centre 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
Article L.45 of the Postal and Electronic Communications Code provides : " I. The Minister in charge of electronic communications shall, after public consultation, appoint the bodies in charge of assigning and managing first level internet domain addresses corresponding to the national territory. The carrying out of their task shall not confer on said appointed bodies any intellectual property rights over domain names
The assigning of a domain name is carried out by these bodies in the general interest under publicised non discriminatory rules designed to ensure compliance by the applicant with intellectual property rights.
In the event of these bodies ceasing their activity, the State shall enjoy a right to use the internet domain names databank managed by said bodies.
The Minister in charge of electronic communications shall ensure compliance by said bodies with the principles set forth in paragraph 2 hereinabove. He may remove an appointed body in the event of the latter failing to comply with the provisions hereof after giving the latter formal notice to put forward its observations. The decision of the Minister in charge of electronic communications concerning the appointment or removal of a body may be appealed against before the Conseil d'Etat. Each body shall send the Minister in charge of electronic communications an annual report of its activity.
The assignment and management of domain names attached to each first level domain shall be centralized by a single body.
A Decree issued after consultation with the Conseil d'Etat shall specify as and when needed the conditions for the application hereof.
II. Without prejudice to their automatic application to Mayotte under 8° of I of section 3 of Act n° 2001-616 of July 11th 2001 pertaining to Mayotte, the provisions of I shall apply to Wallis and Futuna and in French Southern Territories.
The bodies in charge of assigning domain names in New Caledonia and French Polynesia shall not hold any intellectual property rights over these domain names."
The Applicant for a priority preliminary ruling on the issue of constitutionality contends that these provisions confer on the administrative authority and the bodies appointed by it excessive latitude to define the principles governing the assigning of domain names and have omitted to lay down a minimal framework and limits to their action, and that by so doing Parliament has failed to exercise its powers to the full.
Paragraph 1 of Article 61-1 of the Constitution provides : "When during proceedings before a Court of Law, it is claimed that a statutory provision infringes the rights and freedoms guaranteed by the Constitution, a referral may be made to the Constitutional Council by the Conseil d'Etat or the Cour de cassation, and the Constitutional Council shall give its ruling within a specified time". The argument based on failure by Parliament to exercise its powers to the full cannot be raised in the framework of an application for a priority preliminary ruling on the issue of constitutionality unless such a failure affects a constitutionally guaranteed right or freedom.
Firstly, Article 34 of the Constitution provides : "Statutes shall determine the basic principles .. of civil and commercial obligations". Among the basic principles of said civil and commercial obligations are those which affect the very existence of said obligations.
Secondly, freedom of enterprise derives from Article 4 of the Declaration of the Rights of Man and the Citizen of 1789. Article 11 of this Declaration proclaims : The free communication of ideas and opinions is one of the most precious rights of man. Every citizen may thus speak, write and publish freely, except when such freedom is misused in cases determined by Law". The right to property is one of the rights of Man laid down in Articles 2 and 17 of the Declaration of 1789. In view of the current state of the means of communication and the generalised development of online public communication services and the substantial part played by such services in economic and social life, in particularly for those whose business is carried on online, supervision, both as regards private individuals and commercial concerns, of the choice and use of internet domain names affects intellectual property rights, freedom of communication and freedom of enterprise.
Article L.45 of the Postal and Electronic Communications Code vests bodies appointed by the Minister in charge of electronic communications with the task of assigning and managing domain names "of first level internet domain addresses corresponding to the national territory". It merely provides that the assigning by said bodies of a domain name is carried out "in the general interest, under publicised non discriminatory rules designed to ensure compliance by the applicant with intellectual property rights". This article then leaves it to a Decree issued after consultation with the Conseil d'Etat to specify the conditions of application of this provision. Although Parliament has thus protected intellectual property rights, it has entirely delegated the power to supervise the conditions in which domain names are assigned, refused or withdrawn. No other statutory provision offers guarantees ensuring the absence of any infringement of freedom of enterprise and Article 11 of the Declaration of 1789. Parliament thus failed to exercise its powers to the full. Article 45 of the Postal and Electronic Communications Code must thus be held to unconstitutional.
The Constitutional Council is not vested with any power of appraisal similar to that vested in Parliament. It is not incumbent upon the Council to indicate the basic principles of civil and commercial obligations which must be retained in order to remedy this ascertained unconstitutionality. In view of the number of domain names which have been assigned under the provisions of Article L.45 of the Postal and Electronic Communications Code, immediate repeal of said Article would have patently disproportionate consequences for legal certainty. Repeal of said Article must therefore be postponed until July 1st 2011 in order to allow Parliament to remedy the failure to exercise its full powers as ascertained by the Council. Regulatory measures implemented on the basis of said Article shall have no basis in law solely as from said date. No other measures taken under these same provisions shall be challenged on the grounds of the unconstitutionality ascertained herein.
Article 1: Article L.45 of the Postal and Electronic Communications Code is found to be unconstitutional.
Article 2: The finding of unconstitutionality set out in the foregoing Article 1 shall take effect as from July 1st 2011 in the conditions laid down in paragraph 7 hereof.
Article 3: 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.
Decision announced on October 6th 2010 .