Key Benefits:
The Constitutional Council has been entered. By more than sixty Members, an appeal against the law on airports, adopted on 31 March 2005. The authors of the reference call into question articles 6 and 9 of the law.
This petition calls on the Government to make the following observations.
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I. -Article 6
A.-Article 6 of the law referred to, amending the Civil Aviation Code, determines the status and missions of Aéroports de Paris, an anonymous company whose majority of the capital is owned by The state. It states, in particular, that a specification approved by decree in the Council of State lays down the conditions under which the company provides the public services relating to the operation of aerodromes and, in particular, defines the terms of the The company in the exercise of the air navigation services provided by the State. It provides, in addition, that where a work or field belonging to Aéroports de Paris situated in the airport domain is necessary for the proper execution by the company of its public service tasks or the development thereof, the State Objects to the creation of a security right or suborders their achievement on the condition that the performance of these tasks is not prejudiced.
The applicants submit, on the one hand, that those provisions are not adversely affected. In so far as they do not provide for a mechanism allowing the administrative authority to resume direct control of the operation of airports without delay, would undermine the constitutional principle of continuity of public service. They consider, on the other hand, that the legislature has disregarded the scope of its jurisdiction by not specifying the consistency of the competition liable to be brought by the company for the exercise of air navigation services or that the cost of that competition Competition would be reimbursed by the state.
B.-Such criticisms can only be ruled out.
1. It should be pointed out, first of all, that it is always open to the legislator to change the legal framework in which public service missions are carried out. It can be observed that it has already decided to turn a public institution of the State in charge of a public service into an anonymous company, the majority of which is held by the State, without the Constitutional Council being censored, having regard to the modalities Such a choice of organisation of the service (see for example Decision No. 96-380 DC of 23 July 1996 or Decision 2004-501 DC of 5 August 2004).
In particular, it may be noted that the arrangements decided on in the present case by the legislator Are close to those adopted during the transformation of the public operator France Télécom into a national enterprise owned by the State. At that time, the Constitutional Council had expressly held that these arrangements ensured that the constitutional requirements for the continuity of public service were respected (Decision No. 96-380 DC of 23 July 1996)
The guarantees established by the law referred to are of such a nature as to guarantee respect for the continuity of the service. Article 6 of the Act provides for the Paris Airports Company to develop, operate and develop aerodromes in the Paris region whose list is determined by the legislator and by the regulatory authority and to provide services to them Of course it is up to them to carry out these tasks in such a way that the constitutional requirements for the continuity of public service are met. The specification laid down in Article 6 will determine the conditions under which Aéroports de Paris provides the public service; it will, in particular, define the procedures for monitoring the State in respect of the public service obligations incumbent upon It will also determine the administrative penalties liable to be imposed on the company in the event of a breach of its obligations.
In addition, Article 6 provides for guarantees to ensure that the goods allocated in the Full property at Aéroports de Paris, necessary for the performance of public service missions, will remain assigned to the service. It invests the state of power to oppose the sale by Aéroports de Paris of a work or land that would be necessary for the proper performance of the public service. The State may, likewise, object to the contribution, in any form, or to the creation of a security right in such land or work. It may make the assignment, the making of the contribution or the creation of the security right subject to the condition that it cannot be prejudicial to the performance of the public service tasks. In addition, article 6 of the Act declares null and void the acts of assignment, contribution or creation of security that would have been carried out without the State having been placed to object or disregarding its opposition or the conditions To which he had subordinated the operation. Section 6 further provides that such lands and works, otherwise qualified as public works by section 2 of the Act, are not subject to seizure and that the commercial lease regime is not applicable to
. In view of the specific guarantees laid down by the legislature, it cannot be held that Article 6 of the law referred to would not ensure that the goods necessary for the public service remain affected. It can be added that the state's detention of the majority of the capital of the Paris Airports company, as well as the general powers that the state authorities maintain of the civil aviation code, also help to ensure respect for the Constitutional requirements relating to the continuity of the public service.
The authors of the reference argue, admittedly, that the law referred to would not have provided for the measures which would be necessary for the continuity of the service in the event that the company Aéroports de Paris failed and could no longer ensure the proper execution of its public service tasks.
But the Government considers, for its part, that the constitutional requirements do not require the legislator to settle, by The measures that should be taken in such a case. It observes that there has been no prior law which has transformed the statute of a public service establishment, without the legislator being reproaches in this respect. It intends to assert, also, that the hypothesis, of the bankruptcy of the Aéroports de Paris company is highly improbable, because of the nature of its activity and the structure of its financial resources and its costs, as well as of the The fact that the State holds the majority of its capital. It points out, in any event, that if such a failure intervenes, it would be for the legislator, by a later law, to determine a new permanent framework for the performance of the public service; and if, by extraordinary measure, it The importance of maintaining, in the emergency, the concrete continuity of the public service, the authorities of the State could still implement the exceptional requisition powers which are foreseen, in order to ensure the needs of the country, by the Provisions of the Code of Defence (see in particular Chapter 3 of Title I of Book II of Part II of this Code, Articles L. 2213-1 et seq.).
The Government considers, therefore, that the criticisms made by the authors of the appeal and On the basis of the constitutional requirements relating to the continuity of public service are unfounded.
2. The striking Members also criticise, on an ad hoc basis, the provisions of Article 6 of the Act referred to in the Charges designed to determine the conditions under which Aéroports de Paris will carry out its public service tasks. In that regard, they contend that the legislator would have remained within its competence by merely specifying that the terms of reference define the terms' From the Paris Aeroports competition to the exercise of air navigation services provided by the State " Without defining the consistency of this competition or anticipating that it would give rise to a refund.
It may be possible to admit that under the provisions of Article 34 of the Constitution on the principles of the law, it is a matter of law Fundamental of civil and commercial obligations, the principle of a specification defining obligations imparts to a company in charge of a public service by the law directly, and not under a contract that it would have freely Subscribed. On the other hand, the details of the content of this specification do not fall within the competence of the legislator. The applicants cannot, therefore, usefully support that by not specifying the details of the competition brought to the State or its procedures for taking over the legislature, it would have disregarded the competence of Article 34 of the Constitution.
At the same time, it is possible to indicate that, to date, the public institution Aéroports de Paris assumes directly, on behalf of the State, the air navigation services for the Paris airports, under the provisions in force Article L. 251-2 of the Civil Aviation Code. In order to do so, if air traffic controllers are made available by the State, the other benefits are carried out by the public institution, which collects, to cover the corresponding charges, part of the proceeds of the fee for services Air traffic control terminals. The legislation referred to modifies this organisation and provides that, in future, the company Aéroports de Paris will no longer carry out an air traffic control mission, which is entirely carried out by the state services (Directorate of Navigation Services Air, DSNA). However, certain ancillary benefits must continue to be provided, on a transitional basis, by Aéroports de Paris, for example for the supply of energy to air navigation facilities or for technical expertise. The specifications will describe precisely the contours of the Paris Airports competition to air navigation missions and will specify that these benefits, which are estimated to cost around 20 million euros per year, will be reimbursed by State.
II. -Article 9
A.-Article 9 of the Law referred to, inserting Article L. 224-2 of the Civil Aviation Code, provides that airport public services give rise to the collection of charges for services rendered. It specifies that their amount takes into account the remuneration of the capital invested and may take into account the expenditure associated with the construction of infrastructure, that it may be subject to certain limited models, without their overall product May exceed the cost of the services provided at the airport.
The authors of the action consider that those provisions establish not royalties but tax-related charges and maintain that they would not know Article 34 of the Constitution to the extent that the legislator did not set the rate or base of such levies.
B.-This grievance will be dismissed.
Under the concurring jurisprudence of the Constitutional Council and the Council of State, the dividing line between Taxes and charges for services rendered are based essentially on the idea that the fee is the financial contribution paid by the user of the public service because of the benefits to which he has benefited. The Council of State, by its decision of 21 November 1958, National Union of Air Carriers (Rec. P. 572), characterized the charges by noting that they are requested from users in order to cover the expenses of a specified public service or the costs of establishing or maintaining a public work and which find their direct consideration In services provided by the service or in the use of the work. The Constitutional Council implements the same idea by stating that, when a required sum is paid directly in the services provided by the service, it presents the character of remuneration for service rendered and not the one Imposition (Decision No. 69-57 L of 24 October 1969; Decision No 76-92 L of 16 October 1976; Decision No 80-118 L of 2 December 1980; Decision No. 83-166 DC of 29 December 1983). Thus, an amount claimed when it is unrelated to the service presents the character of a tax, for which the institution and the determination of the basis, the rate and the methods of recovery fall within the competence of the legislature in Article 34 of the Constitution. On the other hand, an amount claimed by a user in exchange for the services provided by the service shall be the character of a fee whose institution is not reserved to the legislator and whose amount may be fixed by the administrative authority In charge of public service pricing.
It is certainly important that the amount of the fee charged as a price of the benefit is consistent with the service rendered. An excessive amount in relation to the price of the benefit is liable to be sanctioned by the judge of the legality of the act establishing the charge or determining its amount. An amount clearly unrelated to the service, or incorporating the consideration of foreign elements in the service rendered, would reflect a distorted use of the concept of royalty and would expose the levy to tax. The case-law thus ensures that the amount of the fee is proportionate to the service of rendering, or rather that it is not manifestly disproportionate to the service rendered (see for example CE 2 November 1987, Mansier, Rec. P. 341; EC Ass. 10 July 1996, Direct Mail Promotion and Others, Rec. P. 277).
The apprehension of this proportionality may not necessarily imply that the amount of the fee is strictly capped by the cost of providing the service to a specified user and at a time Given. On the one hand, the case law integrates various elements relating to the service in the estimation of the cost of the service. In particular, it admits, in principle, the integration of costs related to service improvement, in particular by modernising or increasing infrastructure capacity (see for example CE 2 February 1996, Fauquet, no. 149427). The present report of the Council of State on royalties (French documentation 2002) states that " In the recent period, the concept of the cost of development, or long-term cost, has gained ground. This cost is based on the replacement value of equipment and investments, but also takes into account their anticipated evolution. Assuming that production capacity will be saturated sooner or later, this reasoning leads to the integration of the equipment and investments that will be necessary in the long term to satisfy an additional demand without degrading the quality of the asset. Offered " (see point 1.4.1.1 of the report). On the other hand, the case-law admits that the amount of the fee charged to users may be subject to certain rules, without, in particular, contrary to the principle of equality (EC 28 February 1996, Association Force Workers' Consumer, Rec. P. 51).
In the present case, the provisions of Article 9 of the Act refer to the general framework which the legislator has heard in respect of the charges levied on the basis of the benefits provided by the airport public services. It can be observed that developments in air transport involve constant adaptation of infrastructure through regular investments and that the remuneration of services rendered to carriers is the subject of international practice Recognised within the framework of the International Civil Aviation Organisation (ICAO). It
therefore desirable for the legislator to state clearly the possibility of integrating into airport charging certain elements which go beyond this The cost, of course, of the making available, at a given moment, of the benefits to the users who pay the royalties. The law provides that the amount of the royalties may take into account expenses, including future expenses, related to the construction of new infrastructure or installations before they are put into service. This will allow, in the case of a significant expansion of capacity, to smooth the changes in charges and to reduce the overall cost of the payments by avoiding recourse, to cover the current cash requirements of the Construction, to more expensive debt financing. It can be noted that such a mechanism is provided for in the recommendations of the International Civil Aviation Organization on airport charges and is, in fact, applied at foreign airports. The law also provides for the possibility of limited-scope modulations, for reasons of general interest, in particular to reduce or compensate for environmental damage or improve the use of infrastructure
The possibilities opened by the legislator do not lead to question the qualification of fees for service rendered, because they do not return to incorporate elements that would be unrelated to the service. Royalties remain the consideration for the value of the benefit of the service to the user. They cannot, therefore, be regarded as taxes of a tax nature.
It should be noted that the scheme put in place by the legislator leads to that, out of the case of the implementation of one of the provisions laid down by law, No charges may exceed the cost of the corresponding service. Moreover, in practice, the charges will in fact be set significantly below the costs noted because the operators of airports benefit, in addition to the proceeds of charges, of additional financial resources of a different nature. It is true that if, for a reason of general interest, a royalty gives rise to modulation under the conditions laid down by law, the proceeds of that charge may exceed the cost of the corresponding service. However, as the law states, this exceedance can only be limited; it will remain in any way related to the service and cannot, therefore, be reconsidered for tax purposes.
Finally, it can be noted that the Parliament has, in any event, provided for an absolute ceiling, as measured globally, requiring that the total amount of the charges levied on an airport cannot exceed all the costs incurred by the operator.
This last precaution It has neither the purpose nor the effect of allowing the authority fixing the amount of the royalties to organise compensation between the various charges. The amount of each of these charges shall be proportionate to the service rendered and the legality of the fixed amounts will be assessed in relation to the value represented by the corresponding service, subject to the application of the possibilities of modulation Laid down by the legislator for reasons of general interest. The overall order imposed by the legislator has no other project than to provide for an additional guarantee, that which the modulations effectively decided, for reasons which will be specific to each royalty, cannot To ensure that the overall amount of the charges exceeds the total cost of the services provided on the airport.
This provision is particularly explained in relation to a common system of several fees to pay for a set of Services provided jointly by the airport operator to the same users. The breakdown of the cost of airport public services between the different charges, attached to different aspects of these services, requires certain imputation parties to the extent that the common charges are important. One might imagine that the services would be the subject of a single and comprehensive royalty; but it must be observed that the distribution between several fees, each paid by the same users, is imposed by the international standards which Govern air transport. These particulars of airport charges explain the particular guarantee provided for by the legislator, leading to a ceiling, in any event, to the overall cost of services rendered on the airport, the overall product of the Fees charged for the remuneration of the service rendered to the user by the airport platform.
In order to require the charges governed by Article 9 to be misplaced, this provision ensures, on the contrary, that The overall amount of the royalties will not exceed the total cost of the service rendered on the airport. That mechanism cannot therefore lead to the charges governed by Article 9 of the law referred to be regarded as impositions of any kind in which it is for the legislature to determine the rate, the basis and the terms of the
In these circumstances, the Government considers that the criticism of Article 9 of the law referred to can only be dismissed.
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For these reasons, the Government Considers that the criticisms made by the authors of the reference are not such as to justify the censorship of the contested provisions of the law referred to. It therefore considers that the Constitutional Council should reject the action before it.
