On 30 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 Conseil d'État (decision no. 343682 of 30 December 2010) on behalf of Mr Jean-Pierre B., raising the conformity of Article L. 134-6 of the Code of Social Action and Families 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 the basic law on the Constitutional Council;
Having regard to the Code of Social Action and Families;
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 of the Prime Minister, registered on 25 January 2011;
Having regard to the observations of the applicant, registered on 30 January 2011;
Having regard to the other documents produced and appended to the case file;
Having heard Mr Xavier Pottier, appointed by the Prime Minister, at the public hearing on 8 March 2011;
Having heard the Rapporteur;
Considering that pursuant to Article 134-6 of the Code of Social Action and Families: "The Department board is chaired by the President of the Regional Court of the Department capital or the judge appointed by the latter as replacement. It shall further be comprised of:
" - three general Counsels elected by the general council;
" - three State officials either in service or who have retired, appointed by the State's representative in the Department.
" It the event of a tie, the President shall have the casting vote.
" A Government commissioner appointed by the Prefect shall give his opinion on the cases assigned to him by the President. He shall not be entitled to vote.
"The functions of the rapporteur shall be guaranteed by the secretary of the board. He may be supplemented by one or more rapporteurs. The secretary and the rapporteurs shall be appointed by the President of the board from the persons included in a list drawn up jointly by the President of the general council and the Prefect. They shall be entitled to vote on the cases in which they deliver an opinion.
"The secretary, the rapporteurs and the Government commissioners shall be chosen from officials or magistrates either in service or who have retired";
Considering that, according to the applicant, these provisions do not respect the separation of powers and the guarantee of the rights of the parties to the proceedings;
Considering that Article 16 of the Declaration of the Rights of Man and the Citizen of 1789 provides that: "Any society in which the guarantee of the rights is not secured, or the separation of powers not determined, has no constitution at all"; the principles of independence and impartiality are indissociable from the exercise of judicial functions;
Considering that the Department social security boards are administrative courts of first instance with jurisdiction to examine applications filed in relation to social security matters against the decisions of the President of the general council or the Prefect; the second and third subparagraphs of Article L. 134-6 of the Code of Social Action and Families provide that this court shall be comprised of three general Counsels elected by the general council and three State officials either in service or who have retired, appointed by the State's representative in the Department;
Considering that, on the one hand, neither Article L. 134-6 nor any other legislative provision applicable to the Department social security board provides appropriate guarantees to ensure that the principle of the independence of the officials sitting on this court is respected; no guarantees of impartiality are provided that prevent the officials from being able to sit on the board when that court is dealing with questions relating to the services in which they worked;
Considering that, on the other hand, the participation of members of the deliberative assembly of the Department when the latter is a party to the proceedings also fails to respect the principle of impartiality;
Considering that it follows from the above that the second and third subparagraphs of Article L. 134-6 of the Code of Social Action and Families are unconstitutional; consequently, the last phrase of subparagraph one must also be declared unconstitutional;
Considering that the second subparagraph of Article 62 of the Constitution provides: “A provision declared unconstitutional on the basis of Article 61-1 is repealed on publication of the decision of the Constitutional Council or at a later date stipulated in the decision. The Constitutional Council determines the conditions and the limits according to which the effects produced by the provision are subject to revision"; whilst, as a matter of principle, the declaration of unconstitutionality must benefit the party submitting the priority question on constitutionality and the provision ruled unconstitutional cannot be applied to proceedings in progress at the time the decision of the Constitutional Council is published, the provisions of Article 62 of the Constitution grant the Council the power both to set the date of repeal and to defer its effects as well as to provide for the review of the effects that the provision generates before this declaration takes effect;
Considering that, on the one hand, the declaration that the second and third subparagraphs of Article L. 134-6 of the Code of Social Action and Families are unconstitutional shall take effect upon publication of this decision; starting from that date, and without prejudice to any subsequent amendments to this Article, the Department social security boards shall be comprised in a manner complying with this declaration of unconstitutionality; on the other hand, there are grounds in this case to rule that the decisions previously issued by these boards may not be called into question on the basis of this unconstitutionality unless a party has appealed against a decision that has not yet become definitive at the time this decision is published;
Considering that the remainder of the contested provision does not breach any right or freedom guaranteed by the Constitution,
Article 1.- The second and third subparagraphs of Article L. 134-6 of the Code of Social Action and Families are unconstitutional as well as, consequently, the words: "It shall further be comprised of: " at the end of the first paragraph of this Article.
Article 2.- The declaration of the unconstitutionality of Article 1 shall take effect on the date of publication of this decision in the conditions set down by its recital 9.
Article 3.- The remainder of Article L. 134-6 of the Code is constitutional.
Article 4.- This decision shall be published in the Journal Officiel of the French Republic and notified in the conditions provided for under Article 23-11 of the Ordinance of 7 November 1958 referred to hereinabove.
Deliberated by the Constitutional Council in its session of 24 March 2011, 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 25 March 2011.