Decision

Decision no. 2010-5 QPC of 18 June 2010

SNC KIMBERLY CLARK [Lack of full Parliamentary action within jurisdiction (incompétence négative) in tax cases]

On April 23rd 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° 327166 of April 23rd 2010), application made by the SNC KIMBERLY CLARK pertaining to the conformity of paragraph 1 of Article 273 of the General Tax Code as worded pursuant to section 18 of Act n° 66-10 of January 6th 1966 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 General Tax Code;

Having regard to Act n° 66-10 of January 6th 1966 modifying taxes on turnover and various provisions of a financial nature;

Having regard to Decree n° 67-1164 of December 15th 1967 ensuring the harmonisation of the General Tax Code and the provisions of the Act of January 6th 1966 referred to hereinabove;

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 made on behalf of the SNC KIMBERLY CLARK by the SCP de Chaisemartin-Courjon, Attorneys at the Conseil d'Etat and the Cour de cassation, registered on May 12th 2010;

Having regard to the observations of the President of the National Assembly, registered on May 12th 2010;

Having regard to the observations of the Prime Minister, registered on May 17th 2010;

Having regard to the further observations on behalf of the SNC KIMBERLY CLARK, registered on May 26th 2010;

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

Maitre Arnaud de Chaisemartin on behalf of the SNC KIMBERLY CLARK and Mr Thierry-Xavier Girardot, representing the Prime Minister, were heard by the Council in open court on June 15th 2010;

Having heard the Rapporteur;

ON THE FOLLOWING GROUNDS

  1. Article 271 of the General Tax Code pertains to the rules governing deductibility in matters of value added tax. 1 of Article 273 of the same Code, as worded pursuant to section 18 of the Act of January 6th 1966 referred to hereinabove, provides that Decrees issued after consultation of the Council of State shall determine the conditions of application of Article 271. In particular paragraph 3 thereof, which is the object of the application for a priority preliminary hearing on the issue of constitutionality, provides that said Decrees shall "fix the date on which such deductions may be made".

  2. The corporate entity making the application argues that the provisions of sub-paragraph 3 of 1 of Article 273, which leave it to a Decree issued after consultation of the Council of State to determine the timeframe for the making of deductions of value added tax, infringes the right proclaimed in Article 14 of the Declaration of the Rights of Man and the Citizen of 1789, whereby "all citizens" are entitled "to ascertain, either personally or though their representatives, the need for a public tax, to consent freely to the same, to know to what uses it is put and to determine the proportion, basis, collection and duration of said tax". They contend that these provisions also infringe the right to property proclaimed in Article 17 of the declaration, and as such are flawed by the failure of Parliament to exercise fully the powers vested in it.

  3. 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 of the failure by Parliament to exercise fully the powers vested in it may only be raised in support of an application for a priority preliminary ruling on the issue of constitutionality when a constitutionally guaranteed right or freedom is called into question.

  4. Firstly under Article 34 of the Constitution : " Statutes shall determine the rules concerning …the base, rates and method 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 a right or freedom which may be raised during court proceedings 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.

  5. Secondly, 1 of Article 273 of the General Tax Code, when leaving it to a Decree issued after consultation of the Council of State to determine the timeframe for the making of deductions to which persons subject to value added tax are entitled does not infringe the right to property guaranteed by Article 2 and 17 of the Declaration of 1789.

  6. The challenged provision does not run counter to any constitutionally guaranteed right or freedom.

HELD

Article 1: Sub-paragraph 3 of 1 of Article 273 of the General Tax Code, as worded pursuant to section 18 of Act n° 66-10 of January 6th 1966 is 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 June 17th 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, Jean-Louis PEZANT and Mr Pierre STEINMETZ.

Announced on June 18th 2010.

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