Decision no. 2014-392 QPC of 25 April 2014

On 20 February 2014, 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 Cour de Cassation (social chamber, judgment no. 628 of 20 February 2014) raised by the South Province of New Caledonia regarding the compatibility with the rights and freedoms guaranteed by the Constitution "of the combined provisions of Article 8-13 of referendum law no. 88-1028 of 9 November 1988 laying down statutory provisions and preparatory provisions for the self-determination of New Caledonia in 1998 and Article 1 of ordinance no. 85-1181 of 13 November 1985, as amended, on the general principles of employment law and the organisation and operation of the labour inspectorate and labour court of New Caledonia, as in force following the adoption of resolution no. 10/99/APS of 15 June 1999 of the South Province Assembly".

THE CONSTITUTIONAL COUNCIL,

Having regard to the Constitution;

Having regard to the agreement on New Caledonia signed in Nouméa on 5 May 1998;

Having regard to constitutional law no. 2008-724 of 23 July 2008 on the modernisation of the institutions of the 5th Republic;

Having regard to ordinance no. 58-1067 of 7 November 1958 as amended, concerning the basic law on the Constitutional Council;

Having regard to basic law no. 99-209 of 19 March 1999 on New Caledonia;

Having regard to ordinance no. 85-1181 of 13 November 1985 on the general principles of employment law and the organisation and operation of the labour inspectorate and labour court of New Caledonia;

Having regard Law no. 88-1028 of 9 November 1988 laying down statutory provisions and preparatory provisions for the self-determination of New Caledonia in 1998;

Having regard Law no. 96-609 of 5 July 1996 laying down miscellaneous provisions on overseas territories;

Having regard to dependent territory law no. 2006-3 of 8 February 2006 amending ordinance no. 85-1181, as amended, of 13 November 1985 on the general principles of employment law and the organisation and operation of the labour inspectorate of New Caledonia;

Having regard to the decisions of the Court of Conflicts nos. 02672 of 13 January 1992, 02998 of 19 February 1996, 03146 of 15 March 1999, C3423 of 15 November 2004, C3654 and C3655 of 17 December 2007, C3775 of 13 December 2010 and C3825 of 5 March 2012;

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 on behalf of the applicant territory by SCP Barthélémy, Matuchansky, Vexliard, Attorneys at the Conseil d'État and the Cour de Cassation, registered on 14 and 31 March 2014;

Having regard to the observations on behalf of Ms Anne de B., defendant, by Esq. Dominique Foussard, Attorney at the Conseil d'État and the Cour de Cassation, registered on 14 and 31 March 2014;

Having regard to the observations of the Prime Minister, registered on 14 March 2014;

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

Having heard Loïc Poupot Esq., attorney at the Conseil d'État and the Cour de Cassation, for the applicant, Foussard Esq. for the defendant and Mr. Xavier Pottier, appointed by the Prime Minister, at the public hearing of 8 April 2014;

Having heard the Rapporteur;

1. Considering that Article 8 of the aforementioned law of 9 November 1988 concerns matters falling within the jurisdiction of the state of New Caledonia; that pursuant to subparagraph 13 of this Article, these include: "The general principles of employment law and vocational training";

2. Considering that pursuant to Article 1 of the aforementioned ordinance as in force following the enactment of the aforementioned law of 5 July 1996: "This ordinance shall apply within the territory of New Caledonia subject, as the case may be, to the provisions of treaties, conventions or agreements that have been duly ratified or approved and published.
   "The provisions of this ordinance shall have no affect on the terms of individual contracts or employment that are more favourable for employees.
   "It shall apply to all employees within the territory.
   "It shall apply to all natural or legal persons employing the said employees.
   "Unless specified otherwise in this ordinance, it shall not apply to persons with the status of a public servant or with public law status.
   "Any natural person, irrespective of gender or nationality, who has undertaken to place his or her professional activity under the direction and authority or another public or private natural or legal person for remuneration shall be deemed to be an employee. When determining status as an employee, no account shall be taken of the legal status of the employee or that of the employer or of whether or not the latter holds a licence.
   "Any public or private natural or legal person who employs at least one employee under the conditions laid down in the previous subparagraph shall be regarded as an employer";

3. Considering that, according to the applicant territory, the contested provisions, as interpreted by the settled case law of the Court of Conflicts, breach the principle of the free administration of local authorities insofar as they subject cabinet staff recruited by the local authorities of New Caledonia to the ordinary rules of employment law and thus prevent these authorities from freely terminating the appointments of these staff members; that in depriving the local authorities of New Caledonia of the possibility of freely appointing cabinet staff, notwithstanding that this right is granted to all other French local authorities, these provisions also breach the principle of equality before the law;

4. Considering that the application for a priority preliminary ruling relates to subparagraph 13 of Article 8 of the law of 9 November 1988 and the fifth subparagraph of Article 1 of the ordinance of 13 November 1985;

• THE PROVISIONS REFERRED TO THE CONSTITUTIONAL COUNCIL FOR REVIEW:

. Subparagraph 13 of Article 8 of the aforementioned law of 9 November 1988 adopted by referendum:

5. 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".

6. Considering that the competence of the Constitutional Council is strictly delineated by the Constitution; that it can only be clarified or supplemented by way of a basic law subject to compliance with the principles laid down by the Constitution; that the Constitutional Council cannot be called upon to rule in cases other than those expressly provided for under the Constitution or a basic law;

7. Considering that Article 61-1 of the Constitution sets the Constitutional Council the task of assessing the compatibility of legislation with the rights and freedoms guaranteed by the Constitution, without specifying whether such powers extend to all texts with legislative status; that however, having regard to the balance of powers established by the Constitution, the legislative provisions which it intends to cover by Article 61-1 cannot be those constituting a direct expression of national sovereignty, having been adopted by the French people by a referendum under the control of the Constitutional Council pursuant to Article 60;

8. Considering that according to the above, no provision of the Constitution or of a basic law adopted on the basis of the former grants powers to the Constitutional Council to rule on an application for a priority preliminary ruling on the issue of constitutionality for the purposes of assessing the compatibility with the rights and freedoms guaranteed by the Constitution of a legislative provision adopted by the French people by referendum; that accordingly, there are no grounds for the Constitutional Council to consider the provisions of the law adopted by the French people by referendum of 6 November 1988;

. The fifth subparagraph of Article 1 of the aforementioned ordinance of 13 November 1985:

9. Considering that pursuant to Article 61-1 of the Constitution, the Constitutional Council may be seized of any provision with statutory status in the conditions laid down by that Article;

10. Considering that Article 1 of the ordinance of 13 November 1985 was amended by paragraph I of Article 24 of the aforementioned law of 5 July 1996; that prior to the amendment of Article 38 of the Constitution by Article 14 of constitutional law no. 2008-724 of 23 July 2008 on the modernisation of the institutions of the 5th Republic, whilst the law of 5 July 1996 did not have the direct objective of ratifying all provisions of Article 1 of the ordinance of 13 November 1985, it necessarily implied such ratification; that accordingly, the provisions of the fifth subparagraph of Article 1 of the ordinance of 13 November 1985 have the status of statutory provisions within the meaning of Article 61-1 of the Constitution; that there are grounds for the Constitutional Court to apprise itself of the matter;

• THE CONSTITUTIONALITY OF THE CONTESTED PROVISIONS

11. Considering first that pursuant to the third subparagraph of Article 72 of the Constitution, "in the conditions laid down by statute",the local authorities "shall be self-governing through elected councils"; that the institutions of New Caledonia are governed by the provisions of title XIII of the Constitution; that it follows that Article 72 is not applicable to them automatically;

12. Considering that pursuant to Article 76 of the Constitution, "the population of New Caledonia is called upon to vote by 31 December, 1998 on the provisions of the agreement signed at Nouméa on 5 May, 1998, published in the Journal Officiel of the French Republic on 27 May, 1998"; that pursuant to Article 77, "after approval of the agreement by the vote provided for in Article 76, the basic law passed after consultation with the Deliberative Assembly of New Caledonia shall determine, in order to ensure the development of New Caledonia in accordance with the guidelines set out in that agreement and in the manner required for its implementation...-the rules governing the organisation and operation of the institutions of New Caledonia... "; that pursuant to Article 3 of the aforementioned basic law of 19 March 1999 adopted in order to implement Article 77 of the Constitution: "The provinces and municipalities of New Caledonia are local authorities of the Republic. They shall be administered freely by assemblies elected by direct suffrage in the conditions provided for under title V with regard to the provinces"; that by these provisions, the legislator enacting the basic law thus extended the provisions of title XII, which are applicable to all other local authorities of the Republic, to the institutions of New Caledonia and this extension, which it was free to stipulate, did not breach the terms of the agreement signed in Nouméa on 5 May 1998 which title XIII vested with constitutional standing;

13. Considering that, according to the contested provisions, as interpreted by the settled caw law of the Court of Conflicts, contractual agents recruited by a public body in New Caledonia are not subject to public law status; that these provisions do not have the effect of depriving the local authorities of New Caledonia of the ability to recruit cabinet staff as they deem fit; that they also do not have the effect of depriving these authorities of the right to terminate the appointment of these staff members under the conditions stipulated by law; that accordingly, they do not violate the principle of the free administration of the local authorities of New Caledonia;

14. Considering secondly that in laying down special rules applicable to contractual agents recruited by a public body in New Caledonia which differ from ordinary legislation, the legislator did not violate the principle of equality before the law;

15. Considering that the provisions of the fifth subparagraph of Article 1 of the aforementioned ordinance of 13 November 1985, which are not contrary to any right or freedom guaranteed by the Constitution, must be upheld as constitutional,

HELD:

Article 1.- There is no need to rule on the application for a priority preliminary ruling on the issue of constitutionality concerning subparagraph 13 of Article 8 of law no. 88-1028 of 9 November 1988 laying down statutory provisions and preparatory provisions for the self-determination of New Caledonia.

Article 2.- The fifth subparagraph of Article 1 of ordinance no. 85-1181 of 13 November 1985 on the general principles of employment law and the organisation and operation of the labour inspectorate and labour court of New Caledonia, as in force following the enactment of law no. 96-609 of 5 July 1996 laying down miscellaneous provisions on overseas territories, is constitutional.

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 24 April 2014, sat on by: Mr Jean-Louis DEBRÉ, President, Ms Claire BAZY MALAURIE, Ms Nicole BELLOUBET, Mr Guy CANIVET, Mr Michel CHARASSE, Mr Renaud DENOIX de SAINT MARC, and Ms Nicole MAESTRACCI.

Announced on 25 April 2014.