Decision no. 2010-79 QPC of 17 December 2010

On 8 October 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 raised by the Conseil d'État (decision no.338505 of 8 October 2010) on behalf of Mr D Kamel, raising the conformity of the amending Article L. 712-2 of the Code on the Entry and Residence of Foreigners and the Right of Asylum 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, concerning organic law on the Constitutional Council;

Having regard to Council directive 2004/83/CE of 29 April 2004 pertaining to minimum standards for the qualification and status of third country nationals and stateless persons as refugees or of persons who otherwise need international protection, and minimum standards relating to the content of such protection granted;

Having regard to the Code on the Entry and Residence of Foreigners and the Right of Asylum;

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 applicant by Esq. Patrice Spinosi, Attorney to the Conseil d'État and the Cour de Cassation, registered on 2 and 17 November 2010;

Having regard to the observations of the Prime Minister, registered on 2 November 2010;

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

Having heard Esq. Spinosi on behalf of the applicant and Mr Thierry-Xavier Girardot, appointed by the Prime Minister, at the public hearing on 7 December 2010;

Having heard the Rapporteur:

1. Considering that article L. 712-2 of the Code on the Entry and Residence of Foreigners and the Right of Asylum provides: “Subsidiary protection is not granted to a person if there are serious reasons for considering that:
   a) he or she has committed a crime against peace, a war crime, or a crime against humanity;
   b) he or she has committed a serious non-political crime;
   c) he or she has been guilty of acts contrary to the purposes and principles of the United Nations;
   d) his or her activity on the territory constitutes a serious threat to public order, public safety or State security”;

2. Considering that, according to the applicant, these provisions fail to have regard for human dignity and Article 66-1 of the Constitution, which provides: “No one shall be condemned to the death penalty”;

3. Considering Article 88-1 of the Constitution provides: “The Republic shall participate in the European Union constituted by States which have freely chosen to exercise some of their powers in common by virtue of the Treaty on European Union and of the Treaty on the Functioning of the European Union, as they result from the treaty signed in Lisbon on 13 December, 2007”; that in the absence of contestation of a rule or principle inherent to the constitutional identity of France, the Constitutional Council is not competent to control the conformity with the rights and freedoms guaranteed by the Constitution of legislative provisions that are limited to the necessary consequences of unconditional and precise provisions of a European Union directive; that in this case, only a court of the European Union to which a preliminary ruling has been referred may control the directive's conformity with the fundamental rights guaranteed by Article 6 of the Treaty of the European Union;

4. Considering that the contested provisions pertain only to the necessary consequences of unconditional and precise provisions of the Directive of 29 April 2004 and do not contest any rule or principle inherent to France's constitutional identity; that, consequently, it is not appropriate for the Constitutional Council to consider the aforementioned preliminary ruling on constitutionality,

HELD:

Article 1.- There is no reason for the Constitutional Council to determine the priority ruling on constitutionality transmitted by the Conseil d'État.

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 and 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, and Mr. Pierre STEINMETZ.

Announced on 17 December 2010.

Official Journal of 19 December 2010, p 22373 (@ 49)