Decision no. 2011-183/184 QPC of 14 October 2011

On 19 July 2011 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. 340539 of 18 July 2011) on behalf of the association France Nature Environnement, concerning the compatibility of Article L. 511-2 of the Environmental Code as drafted pursuant to Ordinance no. 2009-663 of 11 June 2009 on the registration of certain classified installations for the protection of the environment with the rights and freedoms guaranteed by the Constitution. It also received an application on the same day for a priority preliminary ruling on the issue of constitutionality raised by the Conseil d'État (decision no. 340551-340553 of 18 July 2011), in the same conditions raised by the same association, concerning the compatibility of paragraph III of Article L. 512-7 of the same Code, as drafted pursuant to the same Ordinance of 11 June 2009, 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 Environmental Code;

Having regard to Ordinance no. 2009-663 of 11 June 2009 on the registration of certain classified installations for the protection of the environment;

Having regard to the Regulation of 4 February 2010 on 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 by the applicant association, registered on 11 August and 1 September 2011;

Having regard to the observations by the Prime Minister, registered on 11 August and 1 September 2011;

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

Having heard Esq. Benoît Busson for the applicant association and Mr Xavier Pottier, appointed by the Prime Minister, at the public hearing on 4 October 2011;

Having heard the Rapporteur;

1. Considering that it is appropriate to join the two applications for priority preliminary rulings on the issue of constitutionality in order to rule by a single decision;

2. Considering that Article L. 511 of the Environmental Code, as drafted pursuant to the Ordinance of 11 June 2009 provides: "The installations mentioned in Article L. 511-1 shall be defined in the nomenclature of classified installations determined by Decree of the Conseil d'État, adopted on the basis of the report by the minister responsible for classified installations, having obtained the opinion of the Supreme Council of classified installations. This decree shall place the installations under authorisation, registration or declaration depending on the severity of the hazards or nuisances that their exploitation may cause. »

The draft nomenclature decrees concerning registered installations shall be published, if appropriate electronically, prior to transmission by notice to the Supreme Council of classified installations";

3. Considering that pursuant to paragraph I of Article L. 512-7 of the Environmental Code, installations which constitute severe hazards or nuisances for the interests mentioned under Article L. 511-1 are subject to simplified authorisation, in the form of registration, if these hazards or nuisances may, in principle, having regard to the characteristics of the installations and their potential impact, be prevented by the duty to comply with general requirements laid down by the minister responsible for classified installations; that pursuant to paragraph III of that Article, as drafted pursuant to the Ordinance of 11 June 2009: "The draft general requirements shall be published, if appropriate electronically, prior to transmission by notice to the Supreme Council of classified installations. After the opinion of the Supreme Council of classified installations has been obtained and following consultation with the concerned ministers, these general requirements shall be determined by order of the minister responsibles for classified installations";

4. Considering that, according to the applicant association, the aforementioned provisions violate the constitutional requirements laid down by Articles 1 and 7 of the Environmental Charter;

5. Considering that the first subparagraph of Article 61 -1 of the Constitution provides: "If, during proceedings in progress before a court of law, it is claimed that a statutory provision infringes the rights and freedoms guaranteed by the Constitution, the matter may be referred by the Conseil d'État or by the Cour de Cassation to the Constitutional Council, who shall decide within a determined period"; that the lack of knowledge by the legislator of its own competence may only be invoked in support of a priority preliminary ruling on the issue of constitutionality in cases when a right or freedom guaranteed under the Constitution is affected;

6. Considering that Article 7 of the Environmental Charter provides that: "All persons shall be entitled to access information relating to the environment held by public authorities and to participate in the taking of public decisions that have an impact on the environment, subject to the conditions and limits determined by law"; that these provisions fall under the rights and freedoms guaranteed by the Constitution; that it is up to the legislator and, within the framework determined by this law, up to the administrative authorities to determine, in accordance with the principles set out above, the procedures applicable to the implementation of these provisions;

7. Considering that the first subparagraph of Article L. 511-1 of the Environmental Code defines classified installations as "factories, workshops, depots, work sites and, in general, to all facilities operated or owned by any public or private person or entity, which might constitute hazards or drawbacks either for the convenience of the neighbourhood, or for public health and safety, agriculture, or for the protection of nature and the environment, or for the conservation of sites and monuments or elements of the archaeological heritage"; that accordingly, the nomenclature decrees referred to under Article L. 511-2 of the Environmental Code, which set forth the conditions applicable to classified installations, amount to public decisions with an impact on the environment; that the same applies to the draft general requirements with which classified installations for the protection of the environment subject to registration must comply, pursuant to Article L. 512-7 of the same Code;

8. Considering that the contested provisions provide that draft nomenclature decrees as well as draft general requirements applicable to registered installations are to be published, if appropriate electronically; that, however, the second paragraph of Article 511-2, in the form submitted to the Constitutional Council, does not provide for the publication of draft nomenclature decrees for authorised or declared installations; that moreover, neither the contested provisions nor any other legislative provision assures the implementation of the principle of public participation in the taking of the public decisions concerned; that accordingly, in adopting the contested provisions without providing for participation by the public, the legislature overstepped the limit of its competence;

9. Considering that it follows from the above that the second paragraph of Article L. 511-2 of the Environmental Code and paragraph III of Article L. 512-7 thereof are unconstitutional;

10. Considering that the second paragraph 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; that the immediate repeal of the provisions ruled unconstitutional would have obviously excessive consequences; that accordingly, it is appropriate to defer the repeal of these provisions until 1 January 2013;

11. Considering that the remainder of the first paragraph of Article L. 511-2 of the Environmental Code does not violate any right or freedom guaranteed under the Constitution; that it must be ruled constitutional,

HELD:

Article 1.- The second paragraph of Article L. 511-2 of the Environmental Code and paragraph III of Article L. 512-7 thereof are unconstitutional.

Article 2.- The declaration of unconstitutionality contained in Article 1 shall take effect on 1 January 2011 in the conditions specified in recital 10.

Article 3.- The first paragraph of Article L. 511-2 of the Environmental 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 on 13 October 2011, sat on by: Mr. Jean-Louis DEBRÉ, President, Mr. Jacques BARROT, Mrs Claire BAZY MALAURIE, Mr. Guy CANIVET, Mr. Renaud DENOIX de SAINT MARC, Mrs Jacqueline de GUILLENCHMIDT, Mr. Hubert HAENEL and Mr. Pierre STEINMETZ.

Announced on 14 October 2011.

Journal officiel of 15 October 2011, p 17466 (@ 78)