Decision no. 2010-67/86 QPC of 17 December 2010

On 22 September 2010 and 19 October 2010 the Constitutional Council, in the conditions provided for by Article 61-1 of the Constitution, received two applications for priority preliminary rulings on the issue of constitutionality raised by the Conseil d'État (decisions no. 326332 of 22 September 2010 and no. 342916 of 18 October 2010) on behalf of the Centre region and Poitou-Charente region respectively, raising the conformity of Article 54 of Act no. 2009-1437 of 24 November 2009 pertaining to career guidance and lifelong vocational training with the rights and freedoms guaranteed by the Constitution.

THE CONSTITUTIONAL COUNCIL,

Having regard to the Constitution;

Having regard to Ordinance no. 58-1067 of 7 November 1958 as amended, concerning organic law on the Constitutional Council;

Having regard to the Labour Code;

Having regard to Act no. 2009-1437 of 24 November 2009 on career guidance and lifelong vocational training, and the decision of the Constitutional Council no. 2009-592 DC of 19 November 2009;

Having regard to the Regulation of 4 February 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 the observations on behalf of the Centre region by SCP Seban and associates, Attorney at the Paris Bar, registered on 13 and 28 October and 24 November 2010;

Having regard to the observations of the Prime Minister, registered on 14 October and 10 November 2010;

Having regard to the observations of the Poitou-Charentes region, registered on 10 and 24 November 2010;

Having regard to the observations in intervention on behalf of the Association of Adult Training by Esq. Gilles Bigot and Esq. Frédéric Scanvic, Attorneys at the Paris Bar, registered on 16 November 2010;

Having regard to the documents produced and appended to the case files;

Having heard Esq. Didier Seban and Esq. Alexandre Vandepoorter for the Centre region, Esq. Scanvic for AFPA and Esq. Thierry-Xavier GIRARDOT, appointed by the Prime Minister, at the public hearing on 7 December 2010;

Having heard the Rapporteur:

1. Considering that the two applications transmitted by the Conseil d'État pertain to the same legislative provision, and it is therefore appropriate to group them together and respond to them with a single decision;

2. Considering that in terms of Article 54 of Act 2009-1437 of 24 November 2009 pertaining to career guidance and lifelong vocational training: “The Association for Adult Training assumes full ownership, on 1 April 2010, of State property assigned to it for the purpose of its activity in accordance with a list determined by Decree.
   Such property as belongs to the public domain is declassified on the date of assumption of ownership. This heritage is granted free of charge and shall not give rise to any indemnity or to the levying of charges or taxes, nor to any payment of salary or fees for the benefit of the State or its agents";

3. Considering that the principle of equality before the law and before charges levied by the State as well as the protection of the right of ownership, which pertains not only to the private property of individuals but also the property of the State and other public entities, result in part from Articles 6 and 13 of the Declaration of the Rights of Man and of the Citizen of 1789, and in part from Articles 2 and 17 of said Declaration; and that these principles prevent property that belongs to the heritage of public entities being alienated or encumbered with rights that benefit entities pursuing private gain without an appropriate counterpart reflecting the real value of this heritage;

4. Considering that, by means of Article 53 of the aforementioned Act of 24 November 2009, the legislator has withdrawn from the Association for Adult Training a portion of its public service missions in order to ensure conformity with competition laws resulting from European Union law; and that, by means of contested Article 53, he has provided for property provided by the State to be transferred to the Association;

5. Considering, on the one hand, that the contested provision provides for the transfer to the Association for Adult Training, free of charge and without any condition or particular obligation, of immovable property belonging to the State; and that, on the other, neither this provision nor any other applicable to the transfer of property can guarantee that they will remain assigned to the public service missions currently assigned to the Association in application of the 3° of Article L. 5311-2 of the Labour Code; and that, consequently, and without the need to examine the other grievances raised by the parties making the application, the contested provision fails to have regard to the constitutional protection of ownership of public property and must be declared unconstitutional;

HELD:

Article 1: Article 54 of Act 2009-1437 of 24 November 2009 pertaining to career guidance and lifelong vocational training is unconstitutional.

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 7 November 1958 referred to hereinabove

Deliberated by the Constitutional Council in its session on 16 December 2010, sat on by: Mr Jean-Louis DEBRÉ, President, Mr Jacques BARROT, Mrs Claire BAZY MALAURIE, Mr. Guy CANIVET, Mr. Michel CHARASSE, Mr. Renaud DENOIX de SAINT MARC, Mrs Jacqueline de GUILLENCHMIDT, Mr. Hubert HAENEL and Mr. Pierre STEINMETZ.

Announced on 17 December 2010.

Official Journal of 19 December 2010, p 22373 (@ 48)