Decision no. 2012-269 QPC of 27 July 2012

On 8 June 2012 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 from the Conseil d'État (decision no. 357337 of 4 June 2012) raised by the associations "Union Départementale pour la Sauvegarde de la Vie, de la Nature et de l'Environnement", "Amoureux du Levant Naturiste" and "G. Cooper-Jardiniers de la mer", regarding the compatibility of subparagraph 4 of Article L. 411-2 of the Environmental Code 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 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 filed on behalf of the Syndicat Mixte Ports Toulon Provence (SMPTP) by the SELARL Mauduit Lopasso and partners, Attorneys at the Toulon bar, registered on 2 July 2012;

Having regard to the observations of the Prime Minister, registered on 2 July 2002;

Having regard to the observations on behalf of the applicant associations by Benoist Busson Esq., Attorney at the Paris Bar, registered on 17 July 2012;

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

Having heard Étienne Ambroselli Esq., Attorney at the Paris Bar, on behalf of the applicant associations, Jean-Luc Mauduit Esq. on behalf of the SMPTP and Mr Xavier Pottier, appointed by the Prime Minister, at the public hearing on 24 July 2012;

Having heard the Rapporteur;

1. Considering that pursuant to subparagraph 4 of Article L. 411-2 of the Environmental Code, the Conseil d'État shall issue a decree to specify the conditions under which the following are to be determined:
   "The granting of an exemption to the prohibitions mentioned in subparagraphs 1, 2 and 3 of Article L. 411-1, on the condition that there is no other satisfactory solution and that the exemption does not adversely affect the maintenance in a favourable state of conservation of the populations of species concerned in their natural area of distribution:
   "a) In the interest of protecting the wild fauna and flora and the conservation of natural habitats;
   "b) To prevent large scale damage, notably to the crops, livestock, forests, fisheries, waters and other forms of property;
   "c) In the interest of public health and safety or for other imperative reasons of major public interest, including those of a social or economic nature, and for reasons including primordial beneficial consequences for the environment;
   "d) For the purposes of research and education, of restocking and reintroduction of these species and for reproduction operations required for these purposes, including the artificial propagation of plants;
   "e) To allow, under strictly controlled conditions, in a selective manner and within a limited extent, the taking or holding of a limited and specified number of certain specimens";

2. Considering that, according to the applicant associations, in not stipulating any requirement for public participation in the issue of measures authorising the destruction of protected species, the contested provisions violate the requirements resulting from Article 7 of the Environmental Charter;

3. 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, within a determined period"; that the fact that Parliament breached its own powers may only be invoked in relation to an application for a priority preliminary ruling on the issue of constitutionality in the event that this breach itself impinges upon a right or freedom guaranteed by the Constitution;

4. Considering that Article 7 of the Constitution provides that: "Under the conditions laid down by law, every person shall have the right to access information regarding the environment which is held by public authorities and to participate in the adoption of public decisions having an impact on the environment"; that these provisions are included under the rights and freedoms guaranteed by the Constitution; that it is for Parliament and, within the limits laid down by law, for the administrative authorities to determine the procedures for implementing these provisions, provided that these respect the principles thereby laid down;

5. Considering that the provisions of Article L. 411-1 of the Environmental Code prevent any attack on wild animal or plant species and any destruction or modification or damage to their environment if their conservation is justified by a specific scientific interest or the requirements of preserving biological heritage; that the exceptions from these prohibitions, in particular in the interest of protecting wild flora and fauna and conserving natural habitats, preventing large scale damage in particular to crops, livestock, forests, fisheries and waters and in the interest of public health and safety and for reasons including primordial beneficial consequences for the environment amount to public decisions with an impact on the environment;

6. Considering that the contested provisions contained in subparagraph 4 of Article L. 411-2 of the Environmental Code refer the task of setting the conditions under which exceptions from the prohibitions referred to above are to be issued to a decree of the Conseil d'État; that whilst Parliament is at liberty to determine procedures for implementing the principle of participation which differ depending upon whether they apply to regulatory acts or to other public decisions with an impact on the environment, neither the contested provisions nor any other legislative provision assures the implementation of the principle of public participation in the adoption of the public decisions concerned; that accordingly, in adopting the contested provisions without making provision for participation by the public, Parliament acted in excess of its powers; that the provisions of subparagraph 4 of Article L. 411-2 of the Environmental Code are therefore unconstitutional;

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 the immediate repeal of the provisions ruled unconstitutional would have the consequence of excluding any exception from the aforementioned prohibitions; that accordingly, it is appropriate to defer the date of repeal of these provisions until 1 September 2013; that any exceptions granted prior to that date under the terms of the provisions ruled unconstitutional may not be challenged on the basis of this unconstitutionality,

HELD :

Article 1.- Subparagraph 4 of Article L. 411-2 of the Environmental Code is unconstitutional.

Article 2.- The declaration of unconstitutionality contained in Article 1 shall take effect on 1 September 2013 in the conditions specified in recital 8.
Article 3.- 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 26 July 2012, 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, Mr Hubert HAENEL and Mr Pierre STEINMETZ.

Announced on 27 July 2012.