Decision no. 2015-468/469/472 QPC of 22 May 2015

On 13 March 2015, 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 (commercial chamber, judgment no. 376 of 13 March 2015) raised on behalf of the companies UBER France SAS and UBER BV by Emmanuelle Trichet Esq., Attorney at the Conseil d'État and the Cour de Cassation, and Hugues Calvet Esq., Attorney at the Paris bar, regarding the compatibility of paragraph III of Article L. 3120-2 of the Transport Code with the rights and freedoms guaranteed by the Constitution, registered with the general secretariat of the Constitutional Council as no. 2015-468 QPC.
 
It was also referrred to on the same day, in the conditions provided for by Article 61-1 of the Constitution, with an application for a priority preliminary ruling on the issue of constitutionality by the Cour de Cassation (commercial chamber, judgment no. 375 of 13 March 2015) raised on behalf of the same companies by Trichet Esq. and Calvet Esq., regarding the compatibility of Article L. 3122-2 of the same Code with the rights and freedoms guaranteed by the Constitution, registered with the general secretariat of the Constitutional Council as no. 2015-469 QPC.
 
Finally, it was referrred to on 3 April 2015, in the conditions provided for by Article 61-1 of the Constitution, with an application for a priority preliminary ruling on the issue of constitutionality by the Conseil d’État (decision no. 388213 of the same day) raised on behalf of the same companies by Calvet Esq., regarding the compatibility of paragraph III of Article L. 3120-2 of the Transport Code and Articles L. 3122-2 and L. 3122-9 of the same Code with the rights and freedoms guaranteed by the Constitution, registered with the general secretariat of the Constitutional Council as no. 2015-472 QPC.
 
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 Transport Code;
 
Having regard to the Consumer Code;
 
Having regard to Law no. 2014-1104 of 1 October 2014 on taxis and chauffeur-driven vehicles;
 
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 companies by Calvet Esq. and Trichet Esq., registered on 3 and 10 April 2015;
 
Having regard to the observations in intervention on behalf of the Union nationale des industries du taxi [National Union of Taxi Industries], defendant in relation to the first two applications for a priority preliminary ruling on the issue of constitutionality by the SCP Piwnica et Molinié, Attorney at the Conseil d’État and the Cour de Cassation, registered on 3 and 21 April 2015;
 
Having regard to the observations filed on behalf of the Union nationale des taxis [National Union of Taxis], defendant, by the SCP Thouin-Palat et Boucard, Attorney at the Conseil d’État and the Cour de Cassation, and the SCP Lévy-Soussen, Attorney at the Paris bar, registered on 7 April 2015;
 
Having regard to the observations of the Prime Minister, registered on 7 and 10 April 2015;
 
Having regard to the observations in intervention on behalf of the Union nationale des industries du taxi, intervener in relation to the third application for a priority preliminary ruling on the issue of constitutionality by the SCP Piwnica et Molinié, Attorney at the Conseil d’État and the Cour de Cassation, registered on 10 and 21 April 2015;
 
Having regard to the documents produced and appended to the case file;
 
Having heard Calvet Esq. for the applicant companies, Françoise Thouin-Palat Esq. and Jean-Paul Lévy Esq. for the Union nationale des taxis, Emmanuel Piwnica Esq. for the Union nationale des industries du taxi and Mr Xavier Pottier, designated by the Prime Minister, at the public hearing of 12 May 2015;
 
Having heard the Rapporteur;
 

1. Considering that it is appropriate to join the two applications for priority preliminary rulings in order to rule by a single decision;
    

• THE REFERENCE LEGISLATION:
   

2. Considering that freedom of movement is a constituent element of personal freedom, which is protected by Articles 2 and 4 of the 1789 Declaration of the Rights of Man and the Citizen;
    
3. Considering that property is included under the human rights established by Articles 2 and 17 of the 1789 Declaration; that pursuant to Article 17: "Since property is an inviolable and sacred right, no one shall be deprived thereof except where public necessity, legally determined, shall clearly demand it, and then only on condition that the owner shall have been previously and equitably indemnified"; that even if there is no violation of the right to property pursuant to that Article, it nonetheless follows from Article 2 of the 1789 Declaration that the limits placed on this right must be justified by a reason of general interest and be proportionate with the objective pursued;
    
4. Considering that pursuant to Article 4 of the 1789 Declaration: "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;
    
5. Considering that Article 6 of the Declaration of 1789 provides that the law “must be the same for all, whether it protects or punishes”; that the principle of equality does not prevent the legislator from resolving different situations in different ways, or from derogating from equality on the grounds of the general interest, provided that in both cases the resulting difference in treatment is directly related to the objective of the law establishing it;
    
6. Considering that pursuant to Article 8 of the 1789 Declaration: "The law shall provide for such punishments only as are strictly and obviously necessary, and no one shall suffer punishment except it be legally inflicted in virtue of a law passed and promulgated before the commission of the offence"; that the principles thereby enunciated relate not only to the penalties issued by the criminal courts but also extend to any penalty with the nature of a punishment;
    
7. Considering that according to Article 9 of the 1789 Declaration, all persons are to be presumed innocent until proven guilty; that a general principle follows that the legislator may not establish a presumption of guilt in the area of criminal law;
    

• THE TRANSPORTATION OF INDIVIDUAL MEMBERS OF THE PUBLIC FOR CONSIDERATION:
   

8. Considering that the contested provisions were enacted by Law no. 2014-1104 of 1 October 2014 on taxis and chauffeur-driven vehicles; that this Law amended title II of book I of part III of the Transport Code laying down the framework on the operation of transportation for individual members of the public for consideration;
    
   9.Considering that pursuant to Article L. 3120-1, this title of the Transport Code is applicable to road transport services of persons provided for consideration using vehicles with less than ten seats; that the legislator has drawn a distinction on the one hand between activity involving standing at rank and circulation on public roads to search for clients with the purpose of their transportation and on the other hand the individual transportation of persons by advance reservation; that in pursuing objectives of public order, including in particular the policing of circulation and waiting on public roads, the legislator reserved the former activity to taxis, which carry it out in accordance with a specific regulatory framework and hold an administrative licence to stand at rank within their municipality or the common service to which they are attached; that the latter activity may be carried out not only by taxis but also by other professions, including in particular the operators of chauffeur-driven vehicles;
    

• PARAGRAPH II OF ARTICLE L. 3120-2 OF THE TRANSPORT CODE:
   

10. Considering that pursuant to paragraph III of Article L. 3120-2 of the Transport Code as in force following the enactment of the aforementioned Law of 1 October 2014: "Persons providing the services referred to under Article L. 3120-1 and the intermediaries used by such persons shall be prohibited from carrying out the following activities:
    "1. The fact of providing information to a client prior to making the booking mentioned in subparagraph 1 of paragraph II of this Article, irrespective of the means used, concerning both the location and the availability of a vehicle mentioned under paragraph I where it is situated on a road open to public circulation if its owner or operator does not hold a licence to stand at rank mentioned in Article L. 3121-1;
    "2. The solicitation of clients with a view to their transportation under the conditions mentioned in subparagraph 1 of paragraph II of this Article;
    "3. The fact of offering for sale or promoting an offer for carriage carried out under the conditions mentioned in subparagraph 1";
     
11. Considering that, according to the applicant companies, by prohibiting the operators of chauffeur-driven vehicles and their intermediaries from informing a client of the location and availability of a vehicle where it is situated on a street open to public circulation, the contested provisions violate firstly freedom of enterprise, secondly the principle of equality before the law and finally the right of ownership;
     
12. Considering that the application for a priority preliminary ruling on the issue of constitutionality thus concerns the provisions of the first subparagraph of paragraph III of Article L. 3120-2 of the Transport Code;
     
    . The objection alleging the violation of freedom of enterprise:
     
13. Considering that the legislator has concluded that the possibility for the operator of a vehicle that does not hold a licence to stand at rank to provide information concerning both its location and its availability where its vehicle is situated on a street open to public circulation has the effect of encroaching upon the exercise by taxis only of the activity reserved to them by law, which consists in standing at rank and circulating on public streets in search of clients with a view to their transportation; that in adopting the contested provisions which prohibit the persons falling under them from providing clients with these two forms of information, the legislator was pursuing objectives of public order, including in particular the policing of circulation and standing at rank on public streets, and thereby sought to guarantee the resulting legal monopoly for taxis; that the prohibition laid down by the contested provisions, which applies also to taxis when they are situated outside the area in which they are authorised to stand at rank pursuant to Article L. 3121-11 of the Transport Code, is however limited; that in effect, on the one hand these provisions do not prevent the persons falling under their scope from informing a client both of the location and availability of a vehicle that is not situated on a street open to public circulation; that on the other hand they do not prevent a client from being informed solely of the location or solely of the availability of a vehicle where it is situated on a street open to public circulation; that finally they do not impose any restriction on the possibility for the persons carrying on the activity of the transportation of individual members of the public or for their intermediaries to inform the client of the likely waiting time between the advance reservation and the arrival of a vehicle; that accordingly, having regard on the one hand to the limited scope of the prohibition established by the contested provisions and on the other hand the objective which it has set itself, the legislator has not committed a manifestly disproportionate violation of the freedom of enterprise of individuals other than the operators of taxis situated within the area of their licence to stand at rank who carry on the activity of the transportation of individual members of the public by advance booking along with their intermediaries; that accordingly the objection alleging a violation of freedom of enterprise must be rejected;
     
    . The objection alleging the violation of the principle of equality before the law:
     
14. Considering that the contested provisions establish a difference in treatment between the operators of taxis situated within the area in which they are authorised to stand at rank and other persons carrying on the activity of the transportation of individual members of the public by prior booking; that, having regard to the consideration given by the legislator to a possible violation of the rule that only taxis may carry on activity consisting in standing at rank and circulating on public streets in search of clients with a view to their transportation, this difference in treatment is justified by objectives of public order, including in particular the policing of circulation and standing at rank on public streets; that the difference in treatment resulting from the contested provisions is commensurate with the objective pursued; that accordingly the objection alleging a violation of the principle of equality before the law must be rejected;
     
    . With regard to the objection averring the violation of the right of ownership:
     
    15.Considering that, whilst the contested provisions may have the consequence of limiting the usage which may be made of technologies enabling the client to be informed prior to the advance booking of both the location and availability of a vehicle by persons other than the operators of taxis situated within the area in which they are authorised to stand at rank, which carry on the activity of the transportation of individual members of the public by prior reservation, they do not have the object or effect of depriving the holders of their rights of ownership over these technologies or of causing an unjustified encroachment on the conditions under which their rights may be exercised; that the objection alleging a violation of the right of ownership must be rejected;
     
15. Considering that according to all of the above, the provisions of subparagraph 1 of paragraph III of Article L. 3120-2 of the Transport Code, which do not violate any other right or freedom guaranteed under the Constitution, must be ruled constitutional;
     

• ARTICLE L. 3122-2 OF THE TRANSPORT CODE:
   

17. Considering that pursuant to Article L. 3122-1 of the Transport Code, undertakings which provide their clients with one or more chauffeur-driven vehicles under terms set in advance between the parties must comply with the provisions of chapter II of title II of book I of part III of the Transport Code; that according to Article L. 3122-2 as in force following the enactment of the aforementioned Law of 1 October 2014: "The conditions referred to in Article L. 3122-1 shall include the total price of the service, which shall be determined at the time of the advance booking mentioned in subparagraph 1 of paragraph II of Article L. 3120-2. However, if it is calculated exclusively with reference to the duration of the service, the price may be determined in full or in part after this service has been provided, in accordance with Article L. 113-3-1 of the Consumer Code";
     
18. Considering that, according to the applicant companies, by imposing certain arrangements for charging for services on the operators of chauffeur-driven vehicles, the contested provisions violate the freedom of enterprise of undertakings carrying on the activity of the transportation of individual members of the public by advance booking; that in preventing them from charging on the basis of both time and distance in the manner used by taxis and two or three-wheeled motor vehicles when carrying on the same activity, these provisions also violate the requirement of equality before the law, on the one hand between chauffeur-driven vehicles and two or three-wheeled motor vehicles, and on the other hand between chauffeur-driven vehicles and taxis;
     
19. Considering that the contested provisions establish the arrangements according to which the undertakings that make available one or more chauffeur-driven vehicles to their clients must determine the price of services provided to their clients at the time of advance booking;
     
20. Considering that by prohibiting certain forms of charging in order to determine the price of the services which undertakings that make available one or more chauffeur-driven vehicles to their clients propose to their consumers at the time of advance booking, the contested provisions have violated the freedom of enterprise in a manner that is not justified by a reason of general interest directly related to the objective pursued; that it follows that, without any requirement to examine the other objection, the provisions of Article L. 3122-2 of the Transport Code must be ruled unconstitutional;
     

• ARTICLE L. 3122-9 OF THE TRANSPORT CODE:
   

21. Considering that pursuant to Article L. 3122-9 of the Transport Code as in force following the enactment of the aforementioned Law of 1 October 2014: "Upon completion of the service placed by an advance booking, the driver of a chauffeur-driven vehicle during the course of his or her work is required to return to the establishment of the operator of this vehicle or to an off-road location where parking is authorised, unless he or she is able to furnish proof of a prior booking or a contract with the end client";
     
22. Considering that, according to the applicant companies, the restrictions imposed by these provisions on the conduct of the activity involving the transportation of individual members of the public by advance booking violate freedom of enterprise and freedom of movement; that they also assert that the resulting difference in treatment between undertakings operating chauffeur-driven vehicles and other persons carrying on the transportation of individual members of the public by advance booking contravene the principle of equality; that finally, the principle of the necessity of offences and the principle of the presumption of innocence are claimed to have been violated as the contested provisions seek solely to protect the monopoly of taxis and establish a presumption of guilt against the drivers of chauffeur-driven vehicles;
     
    . The objections averring the violation of the freedom of enterprise and the freedom of movement:
     
23. Considering that by requiring the driver of a chauffeur-driven vehicle to return to the establishment of the operator of this vehicle or to an off-road location where parking is authorised upon completion of the service ordered by an advance booking, the legislator restricted the freedom of enterprise of persons other than taxis carrying out an activity involving the transportation of individual members of the public by advance booking; that however, this restriction is justified by objectives of public order, including in particular the policing of circulation and standing at rank on public streets; that however, the obligation laid down only applies, on the one hand, if the driver is unable to furnish proof of a prior booking, irrespective of the time when it was made, or a contract concluded with the end client, and on the other hand during the course of his or her work; that accordingly, having regard to the objectives of public order pursued, the contested provisions impose a restriction on freedom of enterprise which is not manifestly disproportionate; that the objection alleging a violation of freedom of enterprise must consequently be rejected; that the same applies to that alleging a violation of the freedom of movement;
     
    . The objection alleging the violation of the principle of equality before the law:
     
24. Considering that the activity involving the transportation of individual members of the public by advance booking by car is distinct from the activity involving the transportation of individual members of the public by advance booking by two or three-wheeled motor vehicles; that accordingly the principle of equality does not require that the activity involving the transportation of individual members of the public by two or three-wheeled motor vehicles must be subject to the same regulations as those applicable to the transportation of individual members of the public by car;
     
25. Considering that the activity involving the transportation of individual members of the public by advance booking by car may be carried out not only by taxis but also by chauffeur-driven vehicles; that the positions of taxis and chauffeur-driven vehicles are not different with regard to this activity; that accordingly, by imposing on chauffeur-driven vehicles only the obligation to return to the establishment of the operator of this vehicle or to an off-road location where parking is authorised, the legislator provided for different treatment between chauffeur-driven vehicles and taxis;
     
26. Considering however that the contested provision is justified by objectives of public order, including in particular the policing of circulation and standing at rank on public streets; that by not applying it to taxis where they are situated within the area in which they are authorised to stand at rank allowing them to stop their vehicle, to stand at rank or to circulate on streets open to public circulation in search of clients under the conditions provided for by Article L. 3121-11, the legislator did not violate the principle of equality before the law; that on the other hand, the contested provisions cannot exempt a taxi from the obligation provided for under Article L. 3122-9 where it is situated outside the area to which its licence to stand at rank applies without violating the principle of equality before the law; that subject to this reservation, the difference in treatment created by the contested provision is directly related to the object of the law establishing it; that the objection alleging the breach of the principle of equality must be rejected;
     
    . The objections alleging the violation of the principle of the necessity of offences and the violation of the presumption of innocence:
     
27. Considering that neither the provisions of Article L. 3122-9 of the Transport Code nor any other of the contested provisions establishes a sanction with the status of a penalty or introduces any presumption of guilt; that the objections alleging a breach of the principles of the necessity of offences and the presumption of innocence directed against Article L. 3122-9 are misconstrued;
     
28. Considering that according to the above, the provisions of Article L. 3122-9 of the Transport Code, which do not breach any other right or freedom guaranteed under the Constitution, must be ruled constitutional, subject to the reservation stated in recital 26;
     

• THE EFFECTS OF THE RULING OF UNCONSTITUTIONALITY:
   

29. 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;
     
30. Considering that the declaration that Article L. 3122-2 of the Transport 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.- Article L. 3122-2 of the Transport Code is unconstitutional.
     
    Article 2.- The following provisions are constitutional:

• subparagraph 1 of paragraph III of Article L. 3120-2 of the Transport Code;
• subject to the reservation stated in recital 26, Article L. 3122-9 of the Code.
   
  Article 3.- The declaration of unconstitutionality of Article 1 shall take effect on the date of publication of this decision in the conditions set down by its recital 30.
   
  Article 4.- 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 21 May 2015, 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, Mr Lionel JOSPIN and Ms Nicole MAESTRACCI.
   
  Announced on 22 May 2015.