Decision

Decision no. 2017-752 DC of September 8, 2017

Law on confidence in political life

THE CONSTITUTIONAL COUNCIL WAS ASKED TO DECIDE, on 9 August 2017, under the conditions established in the second Subparagraph of Article 61 of the Constitution, regarding the Law on confidence in political life under no. 2017-752 DC; in attendance: Mr. Christian JACOB, Ms. Emmanuelle ANTHOINE, Mr. Julien AUBERT, Ms. Nathalie BASSIRE, Mr. Thibault BAZIN, Ms. Valérie BAZIN-MALGRAS, Ms. Valérie BEAUVAIS, Ms. Émilie BONNIVARD, Mr. Ian BOUCARD, Mr. Jean-Claude BOUCHET, Ms. Valérie BOYER, Mr. Xavier BRETON, Mr. Fabrice BRUN, Mr. Jacques CATTIN, Mr. Éric CIOTTI, Mr. Pierre CORDIER, Ms. Josiane CORNELOUP, Mr. François CORNUT-GENTILLE, Ms. Marie-Christine DALLOZ, Mr. Olivier DASSAULT, Mr. Rémi DELATTE, Mr. Fabien DI FILIPPO, Mr. Éric DIARD, Mr. Julien DIVE, Ms. Marianne DUBOIS, Ms. Virginie DUBY-MULLER, Mr. Pierre-Henri DUMONT, Mr. Daniel FASQUELLE, Mr. Nicolas FORISSIER, Mr. Laurent FURST, Mr. Claude de GANAY, Ms. Annie GENEVARD, Mr. Claude GOASGUEN, Mr. Philippe GOSSELIN, Ms. Claire GUION-FIRMIN, Mr. Patrick HETZEL, Ms. Valérie LACROUTE, Mr. Guillaume LARRIVÉ, Mr. Marc LE FUR, Ms. Constance LE GRIP, Ms. Geneviève LEVY, Ms. Véronique LOUWAGIE, Mr. Emmanuel MAQUET, Mr. Olivier MARLEIX, Mr. Jean-Louis MASSON, Mr. Gérard MENUEL, Ms. Frédérique MEUNIER, Mr. Maxime MINOT, Mr. Jérôme NURY, Mr. Jean-François PARIGI, Mr. Éric PAUGET, Mr. Guillaume PELTIER, Mr. Bernard PERRUT, Ms. Bérengère POLETTI, Mr. Didier QUENTIN, Mr. Alain RAMADIER, Mr. Frédéric REISS, Mr. Jean-Luc REITZER, Mr. Bernard REYNES, Mr. Raphaël SCHELLENBERGER, Mr. Jean-Marie SERMIER, Mr. Jean-Charles TAUGOURDEAU, Mr. Guy TEISSIER, Ms. Laurence TRASTOUR-ISNART, Ms. Isabelle VALENTIN, Mr. Patrice VERCHÈRE, Mr. Charles de LA VERPILLIÈRE, Mr. Michel VIALAY, Mr. Jean-Pierre VIGIER and Mr. Éric WOERTH, Delegates of the National Assembly.

Having regard to the following texts:

  • the Constitution;
  • Ordinance no. 58-1067 of 7 November 1958 concerning the Organic Law on the Constitutional Council;
  • Ordinance no. 58-1100 of 17 November 1958 on the operation of the parliamentary assemblies;
  • Organic Law no. 2009-403 of 15 April 2009 on the application of Articles 34-1, 39 and 44 of the Constitution;
  • the Criminal Code;
  • the Defence Code;
  • the Post and Electronic Communications Code;
  • the Labour Code;
  • the Tax Procedure Handbook;
  • Law no. 83-634 of 13 July 1983 on the rights and obligations of officials;
  • Law no. 2004-575 of 21 June 2004 on confidence in the digital economy;
  • Law no. 2010-838 of 23 July 2010 on the application of the fifth Subparagraph of Article 13 of the Constitution;
  • Law no. 2013-907 of 11 October 2013 on the transparency of public life;
  • the observations of the Government, recorded on 1 September 2017;

And having heard the rapporteur;

THE CONSTITUTIONAL COUNCIL WAS ASKED TO DECIDE ON THE FOLLOWING:

  1. The applicant Delegates bring before the Constitutional Council the law on confidence in political life They contest the adoption procedure of its Article 2 and certain provisions of its Articles 1 and 3, its Article 11, certain provisions of its Article 12 and its Articles 13, 14, 15, 16, 17, 18, 22, 23 and 30.
  • On the procedure for adopting Article 2:
  1. According to the applicant Delegates, Article 2 was adopted at the end of an undue process. They claim that, when it was being assessed in the public hearing on the first reading by the National Assembly, this article was considered adopted, when it was in fact rejected. The outcome would be an infringement of the requirement for clarity and honesty in parliamentary debates, as well as Articles 27 and 45 of the Constitution.

  2. During the first hearing on 25 July 2017, the National Assembly examined Article 1 bis A, which became Article 2 of the bill. Following the review of the Article, it was put to a vote and adopted by a show of hands. If this vote was then contested by several Delegates, specifically on the grounds that the president of the hearing on several occasions called for votes in favour of this Article, it does not result from parliamentary activity that clarity and honesty in debate were affected by it. Moreover, Articles 27 and 45 of the Constitution were not infringed. Therefore, Article 2 was adopted according to a procedure that should be deemed constitutional.

On certain provisions of Article 1:

  1. Paragraph I of Article 1 of the contested law introduces an Article 131-26-2 into the Criminal Code instituting, in its Paragraph I, an obligatory additional sentence of ineligibility for any individual guilty of committing a crime or one of the offences established in its Paragraph II. Pursuant to Articles 131-26 and 131-26-1 of the same Code, to which the law refers, ineligibility may not exceed a term of ten years in the event of being found guilty of a crime and five years in the event of being found guilty of an offence, to be increased to ten years if the sentenced individual holds the position of being a member of the Government or holds elected public office at the time of the events. Pursuant to the last Subparagraph of Article 131-26, ineligibility includes the prohibition or restriction from holding public office. Paragraph III of Article 131-26-2 however establishes that the court may, by a specially motivated decision, decide to not pronounce this additional sentence, by considering the circumstances of the offence and the personality of the individual who committed it.

  2. The applicant Delegates claims that these provisions, which are allegedly vitiated by negative incompetence [the legislature erroneously undermining and delegating its own powers to another], infringe on the principles of legality of offences and penalties and the individualisation of penalties.

  3. According to Article 8 of the Declaration of the Rights of Man and the Citizen of 1789: "The law shall establish punishments only as strictly and obviously necessary... ". Pursuant to Article 34 of the Constitution: "The law shall establish the rules concerning... the determination of crimes and offences as well as their applicable penalties". Pursuant to Article 34 of the Constitution, as well as the principle that offences and penalties must be defined by law according to Article 8 of the 1789 Declaration, the legislature is under the obligation to determine the scope of criminal law and to define crimes and offences in sufficiently clear and precise terms to avoid arbitrariness. Article 61 of the Constitution does not grant the Constitutional Council general discretionary and decision-making powers of the same nature as Parliament does. If it is necessary to inflict penalties related to an offence under the legislature's power of assessment, it belongs to the Constitutional Council to ensure that there is no manifest disproportionality between the offence and the penalties incurred.

  4. The principle of individualisation of penalties resulting from Article 8 of the 1789 Declaration implies that criminal penalties may only be applied pursuant to the express ruling of a court, taking into account the circumstances specific to each case. However, it does not preclude the legislature from establishing rules ensuring effective punishment for offences.

  5. Firstly, by instituting an obligatory additional sentence of ineligibility, the legislature sought to strengthen the requirement for ethical conduct and exemplary behaviour of the elected officials and voters' trust in their representatives. Among the offences which lead to such an additional sentence, it therefore included, on the one hand, all of the crimes and certain particularly serious offences and, on the other hand, offences pertaining to the requirement for ethical conduct or which infringe on public confidence or on the proper functioning of the electoral system.

  6. Secondly, on the one hand, the sentence of ineligibility must be expressly decided by the judge, who has the right to change its term. On the other hand, the judge, by taking into account the circumstances of the offence and the personality of its author, may decide to not impose this additional sentence.

  7. Consequently, the claim of infringement on the principle of the individualisation of penalties should be set aside.

  8. However, pursuant to the last Subparagraph of Article 131-26 of the Criminal Code, the obligatory sentence of ineligibility imposed pursuant to Article 131-26-2 which seeks to strengthen the requirement for ethical conduct and exemplary behaviour of elected officials and voters' trust in their representatives, would automatically lead to the prohibition or restriction from holding public office for all of the offences mentioned in Paragraph II of this article. The outcome would be an infringement on the principle of the proportionality of penalties. Therefore, the contested provisions should not, without infringing on this principle, be interpreted, regarding the offences mentioned in Paragraph II of Article 131-26-2 of the Criminal Code, as automatically leading to the prohibition or restriction from holding public office as established in the last Subparagraph of Article 131-26 of the same Code.

  9. According to Article 11 of the 1789 Declaration: "The free communication of thoughts and opinions is one of the most precious rights of humanity: every citizen should speak, write, and print freely, except in regard to the abuse of this freedom in the cases determined by the law". Article 34 of the Constitution provides that: "Statutes shall determine the rules concerning ... the civil rights and the fundamental guarantees granted to citizens for the exercise of their civil liberties". Based on this, the legislature has the right to establish the rules concerning the right to exercise free communication and the right to speak, write and print. It also has the right, in this regard, to institute penalties for the abuse of the right to exercise free expression and communication if it infringes on public order and the rights of others. However, the freedom of expression and communication is all the more precious in that the exercise thereof is a condition of democracy and one of the guarantees that other rights and freedoms are respected. It follows that infringements on the exercise of this freedom must be appropriate, suitable and proportional to the objective sought.

  10. Section 13 of Paragraph II of Article 131-26-2 of the Criminal Code introduced by Article 1 establishes that ineligibility be obligatorily pronounced for certain press offences and punished by a prison sentence. However, the freedom of expression has particular importance in the political debate and in electoral campaigns. Therefore, as reprehensible as abuses relating to the freedom of expression established in these provisions may be, by establishing the obligatory ineligibility of the individual committing them, the legislature disproportionately infringed on the freedom of expression. Consequently, the 18th Subparagraph of Paragraph I of Article 1 should be deemed unconstitutional.

  11. Subject to what was mentioned in Paragraph 11, the rest of Paragraph I of Article 1, which is not undermined by negative incompetence and does not infringe on the principle of offences and penalties being defined by law or any other constitutional requirement, should be deemed constitutional.

  • On certain provisions of Article 3:
  1. Article 3 is a new drafting of Article 4 quater of the Ordinance of 17 November 1958 mentioned hereinabove. The second to last Subparagraph of this Article 4 quater provides that each assembly, after consulting the body in charge of parliamentary ethics, determines the methods for keeping a public registry identifying the cases in which a member of this assembly has considered that he should not participate in their work due to a situation of conflict of interest. The last Subparagraph of this Article 4 quater establishes that this registry be published electronically, in an open standard, easily re-usable and workable by an automatic processing system.

  2. According to the applicant Delegates, these provisions, which specifically may hinder members of Parliament from “taking a position on a matter”, should be deemed contrary to Articles 3, 26, 27 and 44 of the Constitution as well as the principle of the separation of powers.

  3. According to Article 16 of the Declaration of the Rights of Man and the Citizen of 1789: “A society in which the observance of the law is not assured, nor the separation of powers defined, has no constitution at all”.

  4. The contested provisions have the sole purpose of instituting, in each Assembly, a public registry indicating, following parliamentary debates, cases in which one of its members is in a situation of conflict of interest, and has “considered they should not” take part, in a committee or a public hearing, in the deliberations or votes in this Assembly. They do not, either for purpose or for effect, oblige a parliamentarian to not participate in the work of Parliament.

  5. Consequently, the claim of infringement on the principle of the separation of powers should be set aside. The last two Subparagraphs of Article 3, which do not violate the provisions of Articles 3, 26, 27 and 44 of the Constitution, or any other constitutional requirement, should thus be deemed constitutional.

  • On Articles 11, 14, 15, 16 and 17:
  1. Paragraph I of Article 11 prohibits a member of the Government from including within the members of their cabinet their spouse, partner through a civil union pact or domestic cohabitant; their parents or the parents of their spouse, partner through a civil union pact or domestic cohabitant; their children are the children of their spouse, partner through a civil union pact or domestic cohabitant. Any failure to meet this obligation is punishable by three years of imprisonment and a fine of 45,000 euros.

  2. Paragraph II of the same Article establishes that a member of the Government must immediately inform the Haute autorité pour la transparence de la vie publique [the French High Authority for Transparency in Public Life] when their cabinet includes their brother or sister, or their spouse, partner through a civil union pact or domestic cohabitant; their brother or sister, or their spouse, partner through a civil union pact or domestic cohabitant of this child; their former spouse, former partner through a civil union pact or former domestic cohabitant, or the child, brother or sister of these individuals; the brother or sister of their spouse, partner through a civil union pact or domestic cohabitant.

  3. Paragraph III requires that a member of a ministerial cabinet having a family connection under the meanings of Paragraphs I and II with another member of the Government immediately informs the member of the Government with whom they are an associate and this Haute autorité pour la transparence de la vie publique.

  4. Paragraph IV establishes that the Haute Autorité, when it finds that a member of the Government has among the members of its cabinet a person mentioned in Paragraphs II and III “in a way that may lead to a conflict of interest”, may make use of the injunction power established in Article 10 of the Law dated 11 October 2013 mentioned hereinabove to put an end to such situation.

  5. Articles 14, 15, 16 and 17 establish similar prohibitions, sentences and obligations for the members of Parliament regarding their associates, for territorial authorities regarding members of their cabinet, for mayors of communes of New Caledonia and French Polynesia and the presidents of the group of municipalities of these communities regarding the members of their cabinet.

  6. However, Article 14, contrary to the regime established in Article 11, establishes that a Delegate or the Senator employing as an associate a member of their family mentioned in Paragraph 21 of this decision does not inform the Haute Autorité but rather the office and body in charge of parliamentary ethics of the Assembly to which they belong. Likewise, the parliamentary associate having a family connection with another Delegate or Senator is required to immediately inform the Delegate or Senator they are associates with, and the office and body in charge of parliamentary ethics. Furthermore, the latter has the power to issue injunctions to put an end to irregular situations.

  7. According to the applicant Delegates, Article 11 infringes on the principle of separation of powers insofar as it is not for the legislature to govern the composition and functioning of ministerial cabinets. Article 14 also infringes on the autonomy of parliamentary assemblies insofar as, on the one hand, it implies a parliamentarian has the freedom to choose his/her associates and, on the other hand, it is only for the assemblies to define the rules applicable to the employment of these associates.

  8. Additionally, by prohibiting the recruitment of family members as associates, Articles 11 and 14 to 17 introduce a difference in treatment between employers, and also between employees, contrary to the principle of equality before the law. They also infringe on the freedom of access to employment, on equal access to public jobs and on contractual freedom. Furthermore, by being an obstacle to the possibility of an elected official to marry his/her associate, Articles 14 to 17 infringe on the freedom of marriage. Likewise, by requiring a person to reveal their family relations, these Articles infringe on the right to privacy.

. As regards Article 11:

  • On the principle of the separation of powers and the requirements under Articles 8 and 20 of the Constitution:
  1. Pursuant to the first two Subparagraphs of Article 20 of the Constitution: “The Government determines and conducts national policy. - It has the administration and the armed forces at its disposal”. The principle of the separation of powers applies to the Government.

  2. Article 8 of the Constitution provides that the President of the Republic may name members of the Government and dismiss them from office.

  3. On the one hand, the prohibition from employment criminally punished in the provisions of Paragraph I of Article 11 pertains to only a limited number of individuals. Thus, these provisions do not deprive the minister of their freedom to choose his/her associates. Therefore, neither do they infringe on the principle of the separation of powers, nor on Article 20 of the Constitution.

  4. On the other hand, the principle of separation of powers does not prevent the law from requiring the members of the Government to declare to an independent administrative authority the members of their family employed within their cabinet. Nor does it prevent that this authority to decide on the existence of a conflict of interest resulting from such situation. Paragraphs II and III, which only impose reporting obligations to members of the Government and members of ministerial cabinets therefore do not infringe on the principle of separation of powers.

  5. However, the provisions of Paragraph IV of Article 11 allow the Haute Autorité to issue an injunction , the breach of which is a criminal offence pursuant to Paragraph II of Article 26 of the Law of 11 October 2013, which aims at putting an end to a situation of conflict of interest resulting from the existence of a family connection under the meaning of Paragraphs I and II. Yet, as soon as the conflict of interest arises from the existence of a family connection, the recipient of the injunction may only put an end to the situation by resigning from their position or, as the case may be, by dismissing his/her associate. Therefore, by granting such a power to an independent administrative authority, the legislature infringed on the above-mentioned constitutional requirements. Paragraph IV of Article 11 and, consequently, the words “and IV” mentioned in Paragraph V of the same Article should be deemed unconstitutional.

  • Regarding the principle of equality before the law and access to public jobs:
  1. Pursuant to Article 6 of the 1789 Declaration: "The law … must be the same for all, whether it protects or punishes". All citizens, being equal in the eyes of the law, are equally eligible to all dignities and to all public positions and occupations, according to their abilities, and without distinction except that of their virtues and talents"; The principle of equality does not prevent the legislature from regulating different situations in different ways, nor does it depart from equality in the public interest, provided that in both cases the resulting difference in treatment is directly related to the subject matter of the law providing for such different treatment. Furthermore, the principal of equal access to public jobs follows from this Article.

  2. The principle of equal access to public jobs does not prevent from treating t persons in a different situation in a different way, so long as such this difference of situation has an objective character and is motivated by the necessity to avoid conflicts of interest.

  3. Firstly, by prohibiting a minister from hiring as an associate within his/her cabinet members of his/her close family and requiring him/her to report to the Haute Autorité the employment within his/her cabinet of other members of his/:her family, the legislature sought to increase the citizens' trust in public office by strengthening the guarantees of ethical conduct of public officials and by limiting situations of conflict of interest and the risk of nepotism. It sought the objective of the public interest.

  4. Secondly, by distinguishing close members of the family, certain other members of the family and other individuals, the legislature took into account the risks of conflicts of interest likely to arise from hiring, and paying with public funds, a person having very close relations with the individual who decides to hire him/her. Likewise, it follows from parliamentary work that by imposing an obligation to report to a member of the ministerial cabinet who has a family connection with a member of the Government other than the person they are an associate of, the legislature sought to take into account the risk of conflicts of interest arising from “crossed employment”. This distinction relies on objective and rational criteria directly in connection with the object of the law.

  5. It follows from the foregoing that the rest of Article 11 does not infringe on the principle of equality before the law or on that of equal access to public jobs.

  • As regards the other claims:
  1. The rest of Article 11, which infringes on neither anyone's rights to have an employment, nor on contractual freedoms, nor any other constitutional requirement, should be deemed constitutional.

. As regards Article 14:

  • Concerning the principle of the separation of powers:
  1. On the one hand, the prohibition introduced in the contested law in Paragraph I of Article 8 quater of the Ordinance dated17 November 1958 pertains to only a limited number of individuals. The provisions of this paragraph do not therefore deprive the Delegate or the Senator of their freedom to choose his/her associates. Therefore, they do not infringe on the principle of the separation of powers.

  2. On the other hand, this principle does not prevent the law from requiring the Deputies and Senators to the obligation to report the members of their family employed by them as a parliamentary associate to the office or body in charge of parliamentary ethics of the Assembly to which they belong. Nor does it prevent such body, which status and rules of operation are determined by each assembly, from deciding on the existence of a breach of the ethical rules arising from this situation and to issue injunctions, the infringement of which is not criminally punishable, in order to put an end to that situation. Therefore, Paragraphs II, III and IV of Article 8 quater do not infringe on the principle of separation of powers.

  • As regards the other claims:
  1. For the reasons set out in Paragraphs 35 and 36, Article 14 does not infringe on the principle of equality guaranteed under Article 6 of the Declaration of 1789. It also does not infringe on the right of individuals to have an employment, or the freedom of contract, the freedom of marriage, the right to privacy, or any other constitutional requirement. It should be deemed constitutional.

. As regards Articles 15, 16 and 17:

  1. The third Subparagraph of Article 72 of the Constitution states that, under the conditions established by the law, local authorities govern themselves freely “through elected officials".

  2. On the one hand, for the reasons set out in Paragraph 30, the prohibition from employing a member of the family as a cabinet member set out in Articles 15, 16 and 17 regarding local authorities, mayors of a communes in New Caledonia or French Polynesia and the presidents of the group of communes of such authorities, does not infringe on the third Subparagraph of Article 72 of the Constitution.

  3. On the other, these same constitutional provisions do not prevent these Articles from requiring these individuals to report to the Haute Autorité for transparency in public life the members of their family employed within their cabinet nor do they prevent this Haute Autorité from ruling on the existence of a conflict of interest arising from such situation. However, for the reasons set out in Paragraph 32, by granting this authority the power to issue an injunction in order to put an end to this situation, the legislature infringed on the third Subparagraph of Article 72 of the Constitution. Therefore, the second to last Subparagraph of Section 2° of Paragraph I of Article 15 and the words “and IV” appearing in the last Subparagraph of this Section 2°, the second to last Subparagraph of Section 1° of Article 16 and the words “and III” appearing in the last Subparagraph of this Section 1°, the second to last Subparagraph of Section 2° of Article 17 and the words “and IV” indicated in the last Subparagraph of this Section 3° should be deemed unconstitutional.

  4. The rest of Articles 15, 16 and 17, for the reasons stated above, do not infringe on the principle of equality. They also do not infringe on the principle of the separation of powers, nor on the right of individuals to work, on the freedom of contract, the freedom of marriage, the right to privacy, nor any other constitutional requirement. They should be declared constitutional.

  • On certain provisions of Article 12:
  1. Article 12 inserts an Article 8 bis in the Ordinance of 17 November 1958, regarding the employment of associates by Deputies and Senators. Paragraph III of this Article 8 bis provides that the office of each assembly ensures the implementation of social dialogue between the representatives of parliamentary employers and the representatives of parliamentary associates.

  2. The applicant Delegates claim that these provisions breach the principles of separation of powers and the autonomy of parliamentary assemblies.

  3. By adopting the contested provisions, the legislature, which has jurisdiction to determine the fundamental principles of labour law pursuant to Article 34 of the Constitution, sought to grant the office of each assembly the right to ensure the implementation of negotiations, consultations or simply exchanges of information between the representatives of parliamentary employers and those of parliamentary associates Consequently, these provisions do not infringe on the principle of the separation of powers guaranteed by Article 16 of the Declaration of 1789.

  4. Thus, the last Subparagraph of Article 12, which does not infringe upon any other constitutional requirement, should be deemed constitutional.

  • On Article 13:
  1. Article 13 inserts an Article 8 ter in the Ordinance of 17 November 1958 establishing that parliamentarians, when they are informed thereof, notify the office of their assembly of the functions carried out by their associates within a political party or group. This Article also establishes that parliamentarians, when they are informed thereof, notify the office of their assembly with associates' activities for the benefit of those representing interests.

  2. According to the applicant Delegates, these provisions, which require them to disclose political membership, infringe on the free exercise of political parties protected by Article 4 of the Constitution. Furthermore, they are vitiated by negative incompetence.

  3. The first Subparagraph of Article 4 of the Constitution states: “Political parties and groups contribute to the exercise of the right to vote. They may be formed and exercise their activities freely. They shall respect the principles of national sovereignty and democracy”.

  4. The contested provisions require parliamentarians to report to the office of their assembly, when they are aware of it, the functions carried out by their associates within political parties or groups. These provisions, which seek to prohibit abuse in the use of credit relating to parliamentary associates' remuneration, do not impose on the latter any obligation to inform the parliamentary employer of functions that, as the case may be, they exercise within a political party or group, nor to make them public. Thus, in any event, the claim of the infringement of Article 4 on the Constitution should be set aside.

  5. Consequently, Article 13, which is not undermined by negative incompetence and does not breach any other constitutional requirement, should be deemed constitutional.

  • On Article 18:
  1. Paragraphs I and II of Article 18 establish the conditions in which, respectively, the contracts of parliamentary associates or those of members of the cabinet of a territorial authority terminate, upon publication of the law, which fall under new employment restrictions regarding family members. Furthermore, Paragraph I specifies that, in this case, the termination of the contract constitutes a genuine and serious dismissal and that the parliamentary associate is entitled, as such, to a dismissal indemnity and to indemnities that compensate for time off or advance notice established by the Labour Code These indemnities are therefore the responsibility of the parliamentary assembly.

  2. According to the applicant Delegates, by establishing the termination of currently valid employment contracts, Article 18 infringes on the freedom of contract and the right to maintain agreements that have been legally entered into.

  3. The legislature shall not infringe upon contracts legally entered into when such infringement is not sufficiently justified by the public interest, without disregarding the requirements of Article 4 of the 1789 Declaration.

  4. The dismissal of associates that fall under the employment restrictions established by the contested law is inherent to carrying out these prohibitions, which are criminally sanctioned. However, as mentioned above, these prohibitions seek to increase the citizens' trust in public office by strengthening the guarantees of ethical conduct and exemplary behaviour of elected officials and limiting the situations of conflict of interest and the risks of nepotism. Such grounds for public interest are likely to justify terminating the current employment contracts. Consequently, the claim of infringement on the requirements in Article 4 of the Declaration of 1789 should be set aside.

  5. It follows from the foregoing that Article 18, which does not infringe upon any other constitutional requirement, should be deemed constitutional.

  • On Article 22:
  1. Paragraph I of Article 22 enables the President of the Republic to seek certain information related to individuals whose nomination as a member of the Government is considered. Thus, he may question the president of the Haute autorité pour la transparence de la vie publique on the situation of the individual in terms of conflicts of interest and the compliance to the obligations for declarations to the said Haute Autorité. He may request from the tax administration if the individual is in compliance or not with their obligations for declarations and if the individual has paid the taxes owed by him/her. Finally, he may obtain Bulletin no. 2 of his/her criminal record file. Paragraph II of Article 22 provides that the Prime Minister may also receive the information of individuals whose nomination as a member of the Government is considered.
  2. According to the applicant Deputies, by allowing the President of the Republic to obtain certain sensitive information on individuals whose nomination is a member of the Government is only considered, the legislature has not fully enforced its jurisdiction and has infringed on the right to privacy as well as the right to object, if this information pertains to a political adversary. The applicant Delegates also claim that the procedure, which is available to the President of the Republic while the nomination of other members of the Government are made on the basis of the Prime Minister's proposal, infringes on the second Subparagraph of Article 8 of the Constitution.

. Regarding the claim of infringement on the right to privacy:

  1. The freedom proclaimed by Article 2 of the 1789 Declaration includes the right to privacy. Consequently, collecting, recording, keeping, consulting and communicating personal information must be justified by general interest and implemented in an adequate and proportional manner.

  2. Firstly, by allowing the President of the Republic as well as, as regards the nomination of other members of the Government, the Prime Minister to collect information on individuals whose nomination is considered, the legislature sought to provide them with the means to ensure the ethical conduct of the individuals in question. Therefore, it sought the objective of the public interest.

  3. Secondly, the information likely to be transmitted upon the request of the President of the Republic exclusively pertains to the situation of the individual in question in terms of criminal or tax matters or any conflicts of interest and the obligations to report assets or interests. They only include a limited number of individuals whose nomination as a member of the Government is considered. Therefore the information methods provided by the legislature are adequate and proportional to the objective sought.

  4. It follows from the foregoing that the claim of infringement on the right to privacy should be set aside.

. Regarding the claim of infringement on the second Subparagraph Article 8 of the Constitution:

  1. Article 8 paragraph 2 of the Constitution provides that “Upon the Prime Minister's proposal”, the President of the Republic may “name members of the Government and dismiss them”.

  2. The President of the Republic having sole jurisdiction to name members of the Government, and the legislature may, without infringing on the above-mentioned constitutional requirements, and even if this competence is exercised, for other members of the Government, upon the Prime Minister's proposal, grant the President of the Republic only, the right to carry out the information procedure established in Article number 22, whilst it is established that the Prime Minister is the recipient of the same information regarding the nomination of other members of the Government.

  3. It results from the foregoing that Article 22, which is not undermined by negative incompetence and does not infringe on any other constitutional requirement, should be deemed constitutional.

  • On Article 23:
  1. Article 23 provides the conditions, terms and limits of the responsibility for the expenses for reception and representation of the members of the Government defined by decree in the Conseil d'État.

  2. According to the applicant Delegates, this article, which deals with the activity of ministers, infringes on the principle of the separation of powers and Article 34 of the Constitution .

  3. Article 23, which requires the Prime Minister to issue a decree in the Conseil d'État determining the conditions for the expenses for representation and reception of members of the Government, infringes on the principle of the separation of powers. Therefore, it should be declared unconstitutional.

  • On Article 30:
  1. Article 30 enables the Government to adopt, by ordinance, measures related to the domain of law necessary so that candidates, parties and political groups may, from 1 November 2018 and in the event of a bank failure, be granted loans, advances or guarantees required to finance French national and European electoral campaigns. It specifies that the Government's framework may specifically take the form of a dedicated structure the ordinance of which establishes the operating rules, under conditions granting both impartiality of the decisions made and financial sustainability.

  2. According to the applicant Delegates, the provision thus granted to the Government, due to its imprecision, is contrary to the requirements of Article 38 of the Constitution. Furthermore, the impact study corresponding to this Article 30 does not meet the requirements of Article 39 of the Constitution and the Organic Law of 15 April 2009 mentioned hereinabove.

. Regarding the impact study enclosed to the draft bill relating to Article 30:

  1. According to the third and fourth Subparagraphs of Article 39 of the Constitution: "The tabling of draft bills before the National Assembly or the Senate complies with the terms determined by an organic law. − Draft bills may not be included on the agenda if the Conference of Presidents of the first House to which the bill has been referred declares that the rules determined by the organic law have not been complied with. In case of a disagreement between the Conference of Presidents and the Government, the President of the relevant House or the Prime Minister may refer the matter to the Constitutional Council, which shall rule within a period of eight days". The first Subparagraph of Article 8 of the Organic Law of 15 April 2009 states: "Draft bills shall be subject to an impact study. The documents establishing the results of this impact study must be appended to the draft bills upon transmission to the Conseil d'État. They shall be filed with the bureau of the first assembly to take action at the same time as the draft bills to which they refer"; According to the first subparagraph of Article 9 of the same organic law, the Conference of Presidents of the Assembly for the bureau to which the draft bill was submitted shall have a time frame of ten days after it was brought forth in order to determine whether or not the rules on the impact studies have been complied with.

  2. The draft bill was brought forth on 14 June 2017 to the office of the Senate and the Conference of Presidents of the Senate did not make any request seeking to determine whether or not the rules of the impact study were complied with. The claim of infringement on Article 8 of the Organic Law of 15 April 2009 should therefore be set aside.

. As regards the infringement on Article 38-1 of the Constitution:

  1. The first Subparagraph of Article 38 of the Constitution states: "The Government may, to undertake its mission, ask authorisation from Parliament to adopt ordinances, during a limited time frame, that normally fall within the realm of the law". This provision obliges the Government to indicate with precision to the Parliament, in order to justify its request, the purpose of the measures that it proposes to undertake by ordinance as well as the matters that fall under their domain.

  2. The authorisation granted by the above-mentioned provisions, which seeks to foster access to credit by candidates, parties and political groups, in order to finance French and European electoral campaigns, is precisely defined in their domain and in their purposes and does not infringe on the requirements in Article 38 of the Constitution.

  3. It follows from the foregoing that Article 30, which does not infringe upon any other constitutional requirement, should be deemed constitutional.

  • As regards the place of other provisions of the contested Law:
  1. Pursuant to the last sentence of the first Subparagraph of Article 45 of the Constitution: "Without prejudice to the application of Articles 40 and 41, all amendments which have a link, even an indirect one, with the text that is proposed or transmitted, shall be admissible on first reading".

  2. Article 7 establishes that Parliament be provided a Government report on the reimbursement of indemnities received by certain officials during their schooling. Introduced on first reading of the Senate, these provisions have no link, even an indirect one, with those that are in the draft bill in filed with the office of the Senate. Having been adopted according to an unconstitutional procedure, they should thus be declared unconstitutional.

  • On the other provisions:
  1. Article 9 amends Article 6 of the Law of 11 October 2013, the fourth Subparagraph of Paragraph V of Article L. 4122-8 of the Code of Defence as well as the fourth Subparagraph of Paragraph V of Article 25 quinquies of the Law of 13 July 1983 mentioned hereinabove, to establish that the Haute autorité pour la transparence de la vie publique may directly exercise the right to communication of certain documents or information, recognised by the tax administration in Section I of Chapter II of Title II of the first part of the Fiscal Procedures Register, In order to collect any information useful for carrying out its oversight mission.

  2. Among the prerogatives of communication granted under Article 9 to the Haute Autorité, by referencing Article L. 96 G of the Fiscal Procedures Register, is included the right to communicate the connection data retained by telecommunication providers, those providing access to online public communications, or web hosts of such services. Paragraph VI of Article L. 34-1 of the Post and Electronic Communications Code establishes that connection data held by online communication providers "exclusively relates to the identification of the persons using the services provided by the operators, the technical characteristics of the communications ensured by the latter, and the location of the terminals”. This data “may in no way include the content of correspondence exchanged the information consulted, in any way whatsoever, in the framework of this communication”. Pursuant to the first Subparagraph of Paragraph II of Article 6 of the Law of 21 June 2004 mentioned herein above, the access and hosting providers shall hold and retain the data in a way that would allow the identification of the individual who contributed to creating the content or some of the content of the service being provided”.

  3. The communication of connection data is likely to infringe on the right to respect the privacy of the persons who are subject to that control. Since the procedure established in the contested provisions was not ensured with sufficient guarantees, the legislature disproportionately infringed on this right.

  4. Consequently, Article 9 should be declared unconstitutional.

  • On the other provisions:
  1. The Constitutional Council raises no other issues regarding conformity with the Constitution and has no ruling on the constitutionality of any provision other than those brought up in this decision.

THE CONSTITUTIONAL COUNCIL DECIDES:

Article 1. - The following provisions of the Law on confidence in political life are ruled unconstitutional:

  • the eighteenth Subparagraph of Paragraph I of Article 1;
  • Article 7;
  • Article 9;
  • Paragraph IV of Article 11 and the words “and IV” appearing in Paragraph V of the same Article;
  • the second to last Subparagraph of Section 2° of Paragraph I of Article 15 and the words “and IV” appearing in the last Subparagraph of this Section 2°;
  • the second to last Subparagraph of Section 1° of Article 16 and the words “and III” appearing in the last Subparagraph of this Section 1°;
  • the second to last Subparagraph of Section 2° of Article 17 and the words “and IV” appearing in the last Subparagraph of this Section 2°
  • Article 23.

Article 2. - Subject to the reservation set out in Paragraph 11, the rest of Paragraph I of Article 1 of the same law is constitutional.
Article 3. - The following provisions of the same Law are ruled constitutional:

  • the last two Subparagraphs of Article 3;
  • the rest of Articles 11, 15, 16 and 17:
  • the last Subparagraph of Article 12;
  • Article 13;
  • Article 14;
  • Article 18;
  • Article 22;
  • Article 30.

Article 4. - This decision shall be published in the Journal Officiel of the French Republic.

Deliberated by the Constitutional Council in its session of 7 September 2017, in attendance: Mr. Laurent FABIUS, Chairperson, Ms. Claire BAZY MALAURIE, Mr. Michel CHARASSE, Mr. Jean-Jacques HYEST, Mr. Lionel JOSPIN, Ms. Corinne LUQUIENS, Ms. Nicole MAESTRACCI and Mr. Michel PINAULT.

Made public on 8 September 2017.
JORF no. 0254 of 16 September 2017 text no. 5