Decision no. 2012-250 QPC of 8 June 2012

On 20 March 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. 352843 of 19 March 2012) on behalf of Mr Christian G., raising the conformity of Article L. 134-2 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 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 made on behalf of the Department of Paris by Dominique Foussard Esq., Attorney at the Conseil d'État and the Cour de Cassation, registered on 11 April 2012;

Having regard to the observations of the Prime Minister, registered on 11 April 2012;

Having regard to the observations on behalf of the applicant by Mohamed Boukheloua Esq., Attorney at the Paris Bar, registered on 24 April 2012;

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

Having heard Mr Xavier Pottier, appointed by the Prime Minister, at the public hearing on 15 May 2012;

Having heard the Rapporteur;

1. Considering that pursuant to Article L. 134-2 of the Code of Social Action and Families: "Appeals may be filed against the decisions of the departmental boards to the Central Social Aid Board.

"The Central Social Aid Board is comprised of divisions and sub-divisions, the number of which is determined by order of the Conseil d'État.
"The chairman of the Central Social Aid Board shall be appointed by the minister responsible for social action, acting on a proposal by the Vice Chairman of the Conseil d'État from amongst the councillors of State in active service or occupying an honorary role.
"Each division or sub-division shall include equal numbers, on the one hand, of members of the Conseil d'État, magistrates from the Cour des Comptes or magistrates from the ordinary courts in active service or occupying an honorary role appointed respectively by the Vice Chairman of the Conseil d'État, the First President of the Cour des Comptes or the Justice Minister, and on the other hand of officials or individuals who are particularly qualified in matters relating to aid or social action appointed by the minister responsible for social action.
"The members of the Central Board shall be appointed for a term of four years, which may be renewed.
"The rapporteurs who have the task of processing applications shall be appointed by the minister responsible for social aid from the members of the Conseil d'État and the magistrates of the Cour des Comptes, from the officials of central ministerial administrations, or from individuals who are particularly qualified in matters relating to aid or social action. The shall be able to vote in the cases in which they act as rapporteurs.
"The minister responsible for social aid shall appoint governmental commissioners from the members of the Conseil d'État, magistrates of the Cour des Comptes and officials of the ministry responsible for social aid, who shall be required to state their conclusions on the cases which the President of the Central Board or the president of a division or sub-division refers to them. »

2. Considering that, according to the applicant, in permitting the Central Social Aid Board to be composed of officials appointed by the minister responsible for social action, the contested provisions violate the principles of the independence and impartiality of the judiciary;

3. Considering that Article 6 of the Declaration of the Rights of Man and the Citizen of 1789 provides that: "A society in which the observance of the law is not assured, nor the separation of powers defined, has no constitution at all"; the principles of independence and impartiality are indissociable from the exercise of judicial functions;

4. Considering that the Central Social Aid Board is a specialist administrative court with jurisdiction to hear appeals filed against the decisions issued by the competent departmental social aid boards; that the fourth subparagraph of Article L. 134-2 of the Code of Social Action and Families provides that officials appointed by the minister responsible for social action shall be members of the divisions or sub-divisions of this court; that the sixth subparagraph of this Article enables the minister responsible for social aid to appoint officials of central ministerial administrations as rapporteurs, who have the task of processing applications submitted to the Board and who have voting rights; that the seventh subparagraph provides that the minister may appoint officials from the ministry responsible for social aid as governmental board members charged with stating their conclusions on applications;

5. Considering on the one hand that neither Article L. 134-2 of the Code of Social Action and Families nor any other legislative provision applicable to the Central Social Aid Board establishes appropriate guarantees which enable the principle of independence to be satisfied for the officials who are members of the divisions or sub-divisions, or who are rapporteurs or governmental members of the Central Social Aid Board; that no further guarantees of impartiality have been established in order to prevent officials from exercising their duties within the Board when this court hears questions relating to services in the activity of which they participated;

6. Considering that according to the above, the reference to officials included in the fourth, sixth and seventh subparagraphs of Article L. 134-2 of the Code of Social Action and Families is unconstitutional; that, accordingly, the phrase "officials or" contained in the fourth subparagraph of Article L. 134-2 of the Code of Social Action and Families must be ruled unconstitutional along with the phrase: "from the officials of central ministerial administrations" contained in the sixth subparagraph, as well as the phrase "and officials of the ministry responsible for social aid" contained in the seventh subparagraph;

7. Considering that the second paragraph of Article 62 of the Constitution provides: “A provision declared unconstitutional on the basis of Article 61-1 is revoked as from the 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 under which the effects produced by the provision may be questioned"; that, if, 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;

8. Considering that, on the one hand, the declaration of unconstitutionality shall take effect upon publication of this decision; starting from that date, and without prejudice to any subsequent amendments to this Article, the Central Social Aid Board shall be comprised in accordance with Article L. 134-2 of the Social Action and Families Code as in force following this declaration of unconstitutionality; on the other hand, there are grounds in this case to rule that the decisions previously issued by the Board 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;

9. Considering that the remainder of Article L. 134-2 of the Code of Social Action and Families does not violate any right or freedom guaranteed under the Constitution; that it must be ruled constitutional,

HELD:

Article 1. - The following provisions of Article L. 134-2 of the Code of Social Action and Families are unconstitutional:

• in the fourth subparagraph, the phrase "officials or";
• in the sixth subparagraph, the phrase: "from the officials of central ministerial administrations";
• in the seventh subparagraph, the words: "and officials of the ministry responsible for social aid".
  Consequently, in the seventh subparagraph, after the words: "members of the Conseil d'État", the comma shall be replaced by the word "and".

Article 2. - The declaration of unconstitutionality contained in Article 1 shall take effect on the date this decision is published in the conditions set down by recital 8.

Article 3. - The remainder of Article L. 134-2 of the Code and Social Action and Families 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 07.06.12, 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 8 June 2012.