Decision no. 2013-357 QPC of 29 November 2013

On 1 October 2013 the Constitutional Council, in the conditions provided for by Article 61-1 of the Constitution, received from the Cour de Cassation (commercial chamber, decree no. 1023 of 1 October 2013) an application for a priority preliminary ruling on the issue of constitutionality raised by company Wesgate Charters Ltd, regarding the conformity of Articles 62 and 63 of the Customs 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 Decree no. 48-1985 of 8 December 1948 reforming the Customs Code, annexed to Law no. 48-1973 of 31 December 1948 on finance, amended for 1949;

Having regard to the Customs Code;

Having regard to the judgments of the Court of Cassation of 11 January 2006 (criminal division no. 05-85779) and of 19 March 2013 (commercial division, no. 11-19076);

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 applicant company by Didier Le Prado, Esq., Attorney at the Conseil d'État and the Cour of Cassation, registered on 23 October 2013 and 7 November 2013;

Having regard to the observations of the Prime Minister, registered on 23 October 2013;

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

Having heard Didier Le Prado, Esq. for the applicant company and Mr Xavier Pottier, appointed by the Prime Minister, at the public hearing on 19 November 2013;

Having heard the Rapporteur;

1. Considering that Article 62 of the Customs Code provides: "Customs officials may inspect any vessel located within the marine area of the customs radius and within the area defined by Article 44a subject to the terms laid down by that Article";

2. Considering that Article 63 of the Customs Code provides:
   "1. Customs officials may board any ship, including warships, located within the ports or harbours or which sail up or down rivers and canals. They may remain there until unloading or exit.

3. Captains and commanding officers must welcome the customs officials, accompany them and, if so requested, open hatches, rooms and storage areas on their ship, along with the packages designated for inspection. If such a request is denied, the officials may request the assistance of a judge (or, if there is no judge at the location, of a municipal officer from the said location or an investigating police officer), who is required to ensure that the hatches, rooms, storage areas and packages are opened; a report shall be kept of such operations and findings, which shall be carried out at the cost of the captains or commanding officers.

4. The officials in charge of inspecting ships and freighters may seal the hatches at sunset, which may only be opened in their presence.

5. Inspections may not be conducted on warships after sunset";

6. Considering that, according to the applicant company, in enabling officials from the customs administration to inspect all vessels, including in particular the parts thereof used as residential quarters, Articles 62 and 63 of the Customs Code violate the constitutional protection of individual freedom and dwelling inviolability; that they also violate defence rights and the right to effective judicial relief in that they do not require the presence of a lawyer or provide for remedies to appeal against customs inspections; that finally, in establishing a special right of inspection for ships, they violate the principle of equality;

7. Considering that Articles 62 and 63 of the Customs Code authorise customs officials to inspect all vessels located within the coastal area of the customs radius and within the area defined by Article 44a of the Code; that, according to this Article, the exercise of this power is intended to enable them to exercise the controls necessary in order to "prevent breaches of the law and regulations which the customs administration is in charge of applying on the customs territory" and to "prosecute breaches of those laws and regulations committed on the customs territory"; that according to the settled case law of the Cour de Cassation, vessel inspections conducted pursuant to these provisions may relate to parts of vessels dedicated to private use and, as the case may be, those allocated for use as a home or dwelling, without authorisation by the custodial judge;

8. Considering first that Article 34 of the Constitution provides that statutes shall determine the rules concerning the fundamental guarantees granted to citizens for the exercise of their civil liberties as well as criminal procedure; that it is for the legislator, in the areas falling within its competence, to maintain, on the one hand, a balance between the prevention of breaches of public order and the search for the perpetrators of misdemeanours, both of which are necessary in order to safeguard rights and principles of constitutional standing, and on the other hand compliance with other rights and freedoms guaranteed under the Constitution; that when exercising its power, the legislator cannot deprive constitutional requirements of legal guarantees;

9. Considering secondly that the freedom proclaimed by Article 2 of the 1789 Declaration of the Rights of Man and the Citizen implies the right to privacy, and in particular dwelling inviolability;

10. Considering that the fight against customs fraud justifies the authorisation of customs officials to inspect vessels, including the parts thereof dedicated to private use or as a dwelling; that in enabling such inspections to occur without prior authorisation by a judge, in pursuing this objective the contested provisions take into account the mobility of vessels and the difficulties in controlling vessels on high seas;

11. Considering however that the contested provisions allow the inspection by customs officials of any vessel located at sea, in a port or in a harbour or along rivers and canals under all circumstances; that such visits are also permitted during night hours; that, irrespective of the power of control of the court seized, as the case may be within prosecutions under criminal or customs law, appropriate forms of appeal have not been provided such as to enable a control of the implementation of these measures, within the conditions and according to the procedures provided for by law; that the sole reference to the involvement of a judge in the event of the refusal by the captain or commanding officer of the vessel, provided for under paragraph 2 of Article 63 of the Customs Code in a manner that does not enable the meaning and scope of this involvement to be determined, cannot amount to a sufficient guarantee; that under these terms, the contested provisions deprive of legal guarantees the requirements resulting from Article 2 of the 1789 Declaration; that accordingly, the contested provisions must be declared unconstitutional, without any need to examine the other challenge;

12. Considering that the second paragraph of Article 62 of the Constitution provides that: "A provision declared unconstitutional on the basis of Article 61-1 is revoked as from the publication of the Constitutional Council's ruling or at a later date stipulated in the ruling. 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 Constitutional Council's ruling 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;

13. Considering that the immediate repeal of the contested provisions would violate the objectives of preventing breaches or public order and searching for the perpetrators of misdemeanours and would result in manifestly excessive consequences; that there are thus grounds to defer the date of such repeal until 1 January 2015 in order to enable the legislator to remedy this unconstitutionality; that measures adopted prior to this date in accordance with the provisions that have been ruled unconstitutional may not be contested on the grounds of such unconstitutionality,

HELD:

Article 1.- Articles 62 and 63 of the Customs Code are unconstitutional.

Article 2.- The declaration of unconstitutionality of Article 1 shall take effect on the date of publication of this ruling under the terms specified by its recital 10.

Article 3.- This ruling shall be published in the Journal Officiel of the French Republic and notified under the terms 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 28 November 2013, sat on by: Mr Jean-Louis DEBRÉ, President, Ms Claire BAZY MALAURIE, Ms Nicole BELLOUBET, Mr Guy CANIVET, Mr Renaud DENOIX de SAINT MARC, Mr Hubert HAENEL and Ms Nicole MAESTRACCI.

Announced on 29 November 2013.