On 8 June 2012 the Constitutional Council, in the conditions provided for by Article 61-1 of the Constitution, received from the Conseil d'État (decision no. 357695 of 4 June 2012) an application for a priority preliminary ruling on the issue of constitutionality raised by the Fédération départementale des syndicats d'exploitants agricoles du Finistère, regarding the compatibility of subparagraph 5 of paragraph II of Article L. 211-3 of the Environmental Code as in force following the enactment of Law no. 2006-1772 of 30 December 2006 on water and aquatic environments 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 Law no. 2006-1772 of 30 December 2006 on water and aquatic environments;
Having regard to Law no. 2010-788 of 12 July 2010 setting out the national commitment for 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 filed on behalf of the applicant federation by Franck Barbier Esq., Attorney at the Rennes bar, registered on 28 June and 13 and 17 July 2012;
Having regard to the observations of the Prime Minister, registered on 2 July 2012;
Having regard to the documents produced and appended to the case files;
Having heard Rémi-Pierre Drai Esq., Attorney at the Paris Bar, on behalf of the applicant federation, and Mr Xavier Pottier, appointed by the Prime Minister, at the public hearing on 24 July 2012;
Having heard the Rapporteur;
Considering that pursuant to subparagraph 5 of paragraph II of Article L. 211-3 of the Environmental Code as in force following the enactment of the aforementioned Law of 30 December 2006, decrees may be issued determining in particular the conditions under which the administrative authorities may: "Delimit, as the case may be after identification in the management and sustainable development plan for water resources and aquatic environments provided for under Article L. 212-5-1, the zones where it is necessary to ensure quantitative and qualitative protection for the feeder areas for drinking water intakes of particular importance for current or future supply, as well as the zones in which the widespread erosion of agricultural land is of such a nature as to compromise the achievement of the good status objectives or, as the case may be, the good potential objectives provided for under Article L. 212-1 and to draw up an action plan to this effect, under the conditions laid down in subparagraph 4 of this Article";
Considering that, according to the applicant federation, in not specifying the conditions under which the public may exercise its right to participate in the delimitation of protection zones for feeder areas for drinking water intakes and the establishment of action plans to this effect within these, the contested provisions violate the principle of public participation guaranteed by Article 7 of the Environmental Charter; that in making no provision for compensation to the owners and operators of land included within those zones and imposing restrictions on its usage, they also infringe the principle of equality before the law and in contribution to public expenditure, as well as the right of ownership; that Parliament did not define the scope of the contested provisions with sufficient clarity;
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;
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 under 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;
Considering that Article 211-3 of the Environmental Code provides that in addition to the general regulations for the conservation of the quality and distribution of surface water, underground water and seawater within the boundaries of territorial waters determined by a Conseil d'Etat decree, national or particular stipulations with regard to certain parts of the territory are established by a Conseil d'Etat decree in order to ensure the protection of the principles of the balanced and sustainable management of water resources set out in Article 211-1 of the Code; that the contested provisions contained in subparagraph 5 of paragraph II of Article L. 211-3 permit the regulatory authorities to determine in particular the conditions under which the administrative authorities may delimit the zones where it is necessary to ensure quantitative and qualitative protection for the feeder areas for drinking water intakes of particular importance for supply, as well as erosion zones and to establish an action plan to this effect; that accordingly the administrative decisions delimiting these zones and establishing an action plan amount to public decisions with an impact on the environment;
Considering on the one hand that the application for a priority preliminary ruling on the issue of constitutionality concerns the provisions of subparagraph 5 of paragraph II of Article L. 211-3 of the Environmental Code as in force following the enactment of the Law of 30 December 2006; that this version was subsequently amended by the aforementioned Law of 12 July 2010; that the provisions of Article L. 120-1 of the Environmental Code, which specify the conditions and limits subject to which the principle of public participation laid down in Article 7 of the Environmental Charter are to apply to the regulatory decisions of the State and its public establishments, were enacted by Article 244 of the Law of 12 July 2010; that they are in any event not applicable to the question referred by the Conseil d'État to the Constitutional Council;
Considering on the other hand that neither the contested provisions nor any other legislative provision carry out 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 public participation, Parliament acted in excess of its powers; that, without any requirement to examine the other grounds for challenge, subparagraph 5 of paragraph II of Article L. 211-3 of the Environmental Code must be ruled unconstitutional;
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;
Considering that in the present case, an immediate declaration of unconstitutionality could have manifestly excessive consequences for other procedures without satisfying the requirements of the principle of public participation; that accordingly, it is appropriate to defer the declaration that these provisions are unconstitutional until 1 January 2013; that any decisions taken prior to that date in accordance with the provisions ruled unconstitutional cannot be challenged on the basis of this unconstitutionality,
Article 1.- Subparagraph 5 of paragraph II of Article L. 211-3 of the Environmental Code is unconstitutional.
Article 2.- The declaration of unconstitutionality contained in Article 1 shall take effect on 1 January 2013 in the conditions specified in recital 9.
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.