Decision no. 2013-317 QPC of 24 May 2013

On 18 March 2013 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. 361866 of 18 March 2013) on behalf of the French Trade Union for the Cement Industry and the Concrete Industry Federation, raising the conformity of paragraph V of Article 224-1 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 French Trade Union for the Cement Industry and the Concrete Industry Federation by SCP Alain Monod - Bertrand Colin, Attorneys at the Conseil d'État and the Cour de Cassation, registered on 9 April 2013;

Having regard to the observations of the Prime Minister, registered on 09 April 2013;

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

Having heard Alain Monod Esq. for the French Trade Union for the Cement Industry and the Concrete Industry Federation and Mr Xavier Pottier, appointed by the Prime Minister, at the public hearing of 14 May 2013;

Having heard the Rapporteur;

1. Considering that Article L. 224-1 of the Environmental Code appears within Title II, entitled "Air and atmosphere", of Book II of the Code; that pursuant to paragraph V of that Article: "In order to meet the objectives of the present Title, a Conseil d'État decree shall specify the conditions under which certain new constructions must contain a minimum quantity of wood";

2. Considering that, according to the applicants, the provisions of paragraph V of Article L. 224-1 of the Environmental Code breach Article 7 of the Environmental Charter and Article 4 of the 1789 Declaration of the Rights of Man and the Citizen;

• THE OBJECTION ALLEGING THAT ARTICLE 7 OF THE ENVIRONMENTAL CHARTER HAS BEEN VIOLATED:

3. Considering that, according to the applicants, in adopting the provisions of paragraph V of Article L. 224-1 of the Environmental Code without making provision for participation by the public during the adoption of the decree to which they refer, the legislator violated the right of the public to participate in the adoption of public decisions with an impact on the environment as guaranteed under Article 7 of the Environmental Charter;

4. 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 the legislator 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;

5. Considering that pursuant to Article 7 of the Environmental Charter: "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 the legislator and, within the limits laid down by law, for the administrative authorities to determine the procedures for implementing these provisions, provided that they respect the principles thereby laid down;

6. Considering that paragraph V of Article L. 224-1 of the Environmental Code provides that, in order to meet the objectives of Title II of Book II of the legislative part of the Code, a Conseil d'État decree shall specify the conditions under which certain new constructions must contain a minimum quantity of wood; that these objectives are laid down in the first subparagraph of Article L. 220-1 of the Code, according to which "The State and its public institutions, local authorities and their public institutions as well as private individuals, all contribute, each within its field of competence and within the limits of its responsibility, to a policy the objective of which is the implementation of the recognised right of all to breathe air which is not harmful to health"; that subparagraph two of this Article specifies that "This action of general public interest consists in preventing, monitoring, reducing or removing atmospheric pollution, preserving air quality and, to these ends, saving and using energy in a rational manner";

7. Considering that, according to the contested provisions, the legislator intended to enable technical rules to be adopted for construction aimed at requiring the use of wood in new buildings in order to promote an increase in the production of wood which is expected to achieve an improvement in the fight against atmospheric pollution; that the requirement of these technical rules is in itself likely to have only an indirect impact on the environment; that accordingly, the legislator was not required to subject the decision to set these rules to the principle of public participation; that the objection alleging that paragraph V of Article L. 224-1 of the Environmental Code violates the requirements of Article 7 of the Environmental Charter must be rejected;

• THE OBJECTION ALLEGING THAT ARTICLE 4 OF THE 1789 DECLARATION HAS BEEN VIOLATED:

8. Considering that, according to the applicants, by authorising the regulatory authorities to set the conditions under which certain new constructions must include a minimum quantity of wood, without limitation in particular regarding the setting of the threshold for the minimum portion of wood to be incorporated, the legislator violated the principle of freedom of enterprise;

9. Considering that Article 4 of the 1789 Declaration provides: "Freedom consists in the ability to do anything which doesn't harm anyone; hence the exercise of each man's natural rights has no limits except those which guarantee the enjoyment of the same rights to other members of society. These limits can only be determined by law"; considering that the legislator is free to subject the freedom of enterprise, as resulting from Article 4 of the 1789 Declaration, to limitations associated with constitutional requirements or which are justified by general interest, provided that this does not result in any harm that is disproportionate to the objective pursued;

10. Considering that by granting the Government general power to specify the conditions under which "certain new constructions must contain a minimum quantity of wood", paragraph V of Article L. 224-1 of the Environmental Code violated the requirements resulting from Article 4 of the 1789 Declaration, including in particular freedom of enterprise, in a manner which was not justified by a reason of general interest directly linked to the objective pursued; that it follows that paragraph V of Article L. 224-1 of the Environmental Code must be ruled unconstitutional;

11. 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;

12. Considering that the declaration that paragraph V of Article L. 224-1 of the Environmental Code is unconstitutional shall take effect upon publication of this decision; that it shall apply in all proceedings which have not been definitively resolved at that time,

HELD:

Article 1.- Paragraph V of Article L. 224-1 of the Environmental Code is unconstitutional.

Article 2.- The declaration of unconstitutionality of Article 1 shall take effect on the date of publication of this decision under the terms set down in recital 12.

Article 3.- This decision shall be published in the Journal Officiel of the French Republic and notified under the terms set down in Article 23-11 of the Ordinance of 7 November 1958 referred to hereinabove.

Deliberated by the Constitutional Council in its session of 23 May 2013, sat on by: Mr Jean-Louis DEBRÉ, President, Mr Jacques BARROT, Ms Claire BAZY MALAURIE, Ms Nicole BELLOUBET, Mr Guy CANIVET, Mr Michel CHARASSE, Mr Renaud DENOIX de SAINT MARC, Mr Hubert HAENEL and Ms Nicole MAESTRACCI.

Announced on 24 May 2013.