Decision no. 2010-100 QPC of 11 February 2011

On 14 December 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 Cour de Cassation (commercial chamber, decree no. 1322 of 14 December 2010) on behalf of Mr Alban Salim B., raising the conformity of the single article of Act no. 96-1077 of 11 December 1996 on the concession contract for the Stade de France at Saint-Denis (Seine-Saint-Denis) 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 Act 96-1077 of 11 December 1996 on the concession contract for the Stade de France at Saint-Denis (Seine-Saint-Denis);

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 on behalf of the applicant by Esq. Roland Lienhardt, Attorney at the Paris Bar, registered on 5 and 20 January 2011;

Having regard to the observations for SA Consortium Stade de France and SARL SDF Prod, by SCP Delaporte, Briart et Trichet, Attorney at the Conseil d'État and the Cour de Cassation, registered on 5 and 19 January 2011;

Having regard to the observations of the Prime Minister, registered on 5 and 20 January 2011;

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

Having heard Esq. Lienhardt on behalf of the applicant and Esq. François-Henri Briard for the defence, and Mr Thierry-Xavier Girardot, appointed by the Prime Minister, at the public hearing on 1 February 2011;

Having heard the Rapporteur:

1. Considering that the single article of the Act of 11 December 1996 provides: “Without prejudice to any compensation rights of third parties, is hereby validated the concession contract concluded on 29 April 1995, in application of Act 93-1435 of 31 December 1993 on the construction of a major stadium at Saint-Denis (Seine-Saint-Denis) with a view to the football World Cup in 1998, between the State and the company Consortium Grand Stade SA (renamed the Consortium Stade de France) for the financing, design, construction, maintenance and operation of the stadium (“Stade de France”) at Saint-Denis (Seine-Saint-Denis), a sporting facility in the national interest";

2. Considering that the applicant believes himself adversely affected by the provision on the grounds that it infringes constitutional principles of the separation of powers and the right to an effective remedy;

3. Considering that Article 16 of the Declaration of the Rights of Man and the Citizen of 1789 provides: “Any society that does not guarantee rights or the separation of powers has no Constitution”;

4. Considering, in consequence, that if the legislator can modify a rule of law or validate an administrative act or private right retroactively, it is on condition of pursuing an objective of sufficient general interest and respecting final judgments and the principle of non-retroactivity of penalties and sanctions; that, moreover, the amended or validated act must not fail to have regard to any rule or constitutional principle, unless the general interest being pursued is itself of constitutional value; and that the scope of the modification or validation must be strictly defined;

5. Considering that, by omitting to indicate the precise reason of illegality of which he wishes to rid the contested Act, the legislator has failed to have regard to the separation of powers and the right to effective judicial remedy, which stem from Article 16 of the Declaration of 1789; that consequently it is appropriate to declare the single article of the Act of 11 December 1996 unconstitutional; that in application of article 62 of the Constitution, this provision is repealed upon publication of this decision in the Journal Officiel of the French Republic;

HELD:

Article 1.- The single article of Act 96-1077 of 11 December 1996 on the concession contract for the Stade de France at Saint-Denis (Seine-Saint-Denis) 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 10 February 2011 and sat on by: Mr. Jean-Louis DEBRÉ, Mr. Guy CANIVET, Mr. Michel CHARASSE, Mr. Renaud DENOIX de SAINT MARC, Mr. Hubert HAENEL and Mr. Pierre STEINMETZ.

Announced on 11 February 2011.

Journal Officiel of 12 February 2011, p. 2758 (@ 51)