JORF n ° 93 of 21 April 2005 page 6979 text no. 5 Observations of the Government on the action brought against the airports NOR Act: CSCL0508337X ELI: not available the Constitutional Council was seized, by more than sixty members, of an action against the law relating to airports, adopted on 31 March 2005. The authors of the referral are questioning articles 6 and 9 of the Act.
This action calls, on the part of the Government, the following observations.
* I. - section 6 - section 6 of the brought law, amending the civil aviation code, determines the status and missions of the Aéroports de Paris, Société anonyme company whose majority stake is owned by the State. It stipulates that a specification approved by Decree in Council of State sets out the conditions under which the company provides public services related to the operation of aerodromes, and in particular, defines the terms of the contest of the society in the performance of the air navigation services provided by the State. Furthermore, it provides that where a work or land owned by Aéroports de Paris located in the airport area is necessary for the proper implementation by the company of its missions of public service or the development of these, the State opposes its demise, its contribution to the creation of a security or makes their realization provided that it is not deleterious to the accomplishment of these tasks.
Applicants MEPs support, on the one hand, these provisions, in that they do not device which allows the administrative authority to resume direct control of the operation without delay provide airports, infringe the constitutional principle of continuity of public service. They consider, on the other hand, that the legislature infringed the scope of its jurisdiction in not stating or the consistency of the assistance that could be provided by the company for the year services air navigation or that the cost of this competition would be reimbursed by the State.
B. - Of such criticisms may only be excluded.
1. it must remembered, introductory way, it is always open to the legislature to modify the legal framework in which exercise public service missions. One can observe that he has already decided to transform a public institution of the State of a public service in company with the majority of the capital is owned by the State, without the Constitutional Council doesn't censor, with regard to the arrangements, such a choice of organisation of the service (see e.g. decision No. 96-380 DC of 23 July 1996 or decision No. 2004-501 DC of 5 August 2004).
In particular, can be noted that the modalities decided in the present case by the legislator are similar to those that had been identified during the transformation of the public operator France Telecom into a national company owned by the State. The Constitutional Council had expressly considered that these terms could ensure that the constitutional requirements for the continuity of the public service (decision No. 96-380 DC of 23 July 1996).
Similarly, the safeguards imposed by the Act, brought are likely to ensure the continuity of the service. Article 6 of the Act specified by society Aéroports de Paris to build, operate and develop airfields in the Paris region where the list is determined by the legislature and the regulatory power and provide appropriate airport services: it is obviously to ensure these missions so that the constitutional requirements for the continuity of the public service are met. The specification provided for in article 6 shall determine the conditions in which Aéroports de Paris provides the public service; It will define, inter alia, the terms of the control of the State with respect to compliance with public service obligations incumbent on the company; It will also determine the administrative penalties that may be imposed on the company in the event of breach of its obligations.
Moreover, article 6 provides guarantees to ensure that property allocated in full ownership in Aéroports de Paris, necessary for the accomplishment of the missions of public service will remain assigned to the service. He invests the State's power to oppose the transfer by the company Aéroports de Paris a book or a plot that would be necessary for the proper performance of the public service. Similarly, the State may oppose the contribution, in any form whatsoever, or the creation of a security right in such a field or work. It may make the assignment, the realization of the contribution or the creation of the security provided that it cannot be prejudiced for the accomplishment of the missions of public service. In addition, article 6 of the Act declares void acts of assignment, contribution or creation of security that would have been made unless the State has been able to oppose or disregard its opposition or the conditions to which it was subject the operation. Article 6 provides, again, that these land and works, also referred to as public works by article 2 of the Act, cannot be the subject of any seizure and that the regime of commercial leases may not apply to them.
In these circumstances, having regard to the specific guarantees imposed by the legislature, it cannot be considered that article 6 of the law brought would not ensure that the goods required for the public service remained affected. We can add that detention by the State of the majority of the capital of the company Aéroports de Paris, as well as the General powers of the State authorities take civil aviation code, also contribute to ensuring that the constitutional requirements for the continuity of public service.
The authors of the referral support, certainly that brought law does not provide the measures that would be necessary for the continuity of the service in the event that the Aéroports de Paris company is failing and only could ensure the correct execution of its public service missions.
But for its part, the Government considers that the constitutional requirements do not impose to the legislature to address, in advance, what measures should be taken in such cases. It observes that no previous law having completed the transformation of the status of an institution responsible for a public service did so, unless the legislature shall be punished from criticism in this regard. It intends to assert, also, that the hypothesis of a bankruptcy of the company Aéroports de Paris is highly unlikely, due to the nature of its activity and the structure of its financial resources and its costs, as well as the fact that the State owns the majority of its capital. It is, in any case, that if such a failure occurred, it would be up to the legislature by a subsequent law to determine a new sustainable framework to ensure the implementation of the public service; and if, by extraordinary, it was important to maintain the practical continuity of public service, in the emergency, the authorities of the State could still implement the exceptional powers of requisition which are planned, to ensure the needs of the country, by the provisions of the defence code (see in particular chapter 3 of title I of book II of the second part of this code articles l. 2213-1 et seq.).
Thus, the Government believes that the criticisms made by the authors of the appeal and based on the constitutional requirements for the continuity of the public service are unfounded.
2. the striking deputies criticize also purposefully, the provisions of article 6 of the law brought relating to the specification intended to establish the conditions in which the company Aeroports de Paris will ensure its public service missions. In this regard, they argue that the legislature would have remained below its jurisdiction merely to clarify that the specification defines the terms "of the contest of Aéroports de Paris to the exercise of the air navigation services provided by the State" without defining the consistency of this contest and predict that it would lead to reimbursement.
We can admit that falls within the scope of the law, under the provisions of article 34 of the Constitution relating to the fundamental principles of civil and commercial obligations, the principle of a specification defining the outsourcing obligations to a company of a utility by law directly, and not under a contract that she would freely subscribed. However, details of the content of this specification does not fall within the competence of the legislature. Applicants parliamentarians cannot, therefore, usefully support only in not stating or details of the contribution to the State or its terms of support the legislature disregarded the jurisdiction that article 34 of the Constitution.
Moreover, it may indicate that to date the public establishment Aéroports de Paris assumes directly, on behalf of the State, the air navigation services for the Paris airports, under the provisions in force of article L. 251 - 2 of the code of civil aviation. To do this, if air traffic controllers are made available by the State, other benefits are realized by the public institution, which receives, to cover the expenses, a portion of the proceeds of the fee for Terminal air traffic control services. Brought Act amends this organization and provides that in the future the company Aéroports de Paris bears more mission of air traffic control, it is fully exercised by the State services (Directorate of air navigation, DSNA services). However, some services will continue to be insured, on a transitional basis by Aéroports de Paris, for example for the supply of energy to the installations of air navigation or technical expertise. The specification will describe precisely the contours of the contest of Aéroports de Paris to the missions of air navigation and will clarify that these services, whose cost is estimated at 20 million euros per year, will be reimbursed by the State.
II. - On article 9A. - article 9 of the Act brought, inserting article L. 224 - 2 of the civil aviation code, provides airport public services to give rise to the charging of fees for services rendered. He said that amount takes into account the remuneration of the capital invested and may take account of the expenditure related to the construction of infrastructure, it may be of some limited modulations, while their overall product cannot exceed the cost of the services rendered on the airport.
The authors of the appeal consider that these provisions establish not royalties but fiscal taxes levied and argue that they disown article 34 of the Constitution insofar as the legislator has laid down neither the rate nor the attitude of these levies.
B - This complaint will be dismissed.
Under consistent case law of the Constitutional Council and the Council of State, the dividing line between fiscal taxes and charges for services rendered is based primarily on the notion that the royalty is the financial contribution paid by the user to the public service at the rate of benefits received. The Council of State, by its decision of meeting of November 21, 1958, national Union of air carriers (Rec. p. 572), has characterized charges noting that they requested users to cover a specific public service charges or fees establishment or maintenance of a public work and who find their counterpart in benefits provided by the service or the use of the book. The Constitutional Council is implementing the same idea in stating that once a nother is its direct counterpart in benefits provided by the service, it has the character of remuneration for services rendered and not a tax (decision No. 80-118 L of 2 December 1980; decision No. 76-92 L of 16 October 1976; decision No. 69-57 L on October 24, 1969, no. 83 - 166 DC of 29 December 1983). Thus, a sum claimed is unrelated to the service rendered has the nature of a tax, the institution and the determination of the basis, the rates and the terms of recovery within the jurisdiction of the legislature under article 34 of the Constitution. On the other hand, a sum claimed to a user in return for the benefits provided by the service has the character of a fee which the institution is not reserved to the legislature and the amount may be fixed by the administrative authority responsible for the pricing of the public service.
It is certainly important that the amount of the fee required as the price of the service matches the service rendered. An excessive amount compared to the price of the service is likely to be punished by the judge of the legality of the Act establishing the royalty or determining its amount. An amount clearly unrelated to the service, or integrating taking account of elements foreign to the service rendered, would result in a distorted use of the concept of royalty and would expose them to that the levy be requalified in tax. Ensures the jurisprudence as well as the amount of the fee is proportional to the rendering service, or rather that it is not manifestly disproportionate to the service provided (see for example this November 2, 1987, Hida, Rec. p. 341; This Ass. July 10, 1996, Direct Mail Promotion company and others, ECR p. 277).
The apprehension of this proportionality implies probably not necessarily the amount of the fee is strictly capped by the analytical cost represents the provision of the service to a particular user and at a given moment. Firstly, case law incorporates different elements in connection with the service in the estimation of the cost of the service. In particular, she admits, in principle, the integration of costs related to the improvement of the service, including by investment upgrading or increasing the capacity of the infrastructure (see for example this February 2, 1996, fate, no. 149427). This report of the Council of State levies (Documentation française 2002) exposes as well as to the "during the recent period, the concept of development cost, or cost of long term, has gained ground." This cost is established on the basis of the replacement of equipment and investment value, but also takes account of their early evolution. Assuming that the production capacity will sooner or later be saturated, this reasoning leads to integrate equipment and investments that will be needed to satisfy additional demand without degrading the quality of the well offered term"(see paragraph 184.108.40.206 of the report). On the other hand, the jurisprudence admits that the amount of the fee required of users could know certain modulations, without including that opposes the principle of equality (this February 28, 1996, Association Force Ouvrière consumer, ECR p. 51).
In this case, the provisions of article 9 of the law brought determine the general framework that the legislature intended to give to the fees required for benefits provided by airport public services. One can observe that the developments in air transport involve a constant adaptation of infrastructure by regular investment and that the remuneration of the services rendered to the carriers subject to internationally recognized practices in the context of the Organization of international civil aviation (ICAO).
It appeared so desirable for the legislature to make clear the possibility of incorporating in the airport pricing elements that go beyond the cost, closely heard, making available, at any given time, of the benefits enjoyed by users who pay the royalties. The Act provides that the amount of the fees can take into account expenses, including futures, linked to the construction of infrastructures or new facilities before being put into service. This will allow, in the case of the realization of significant capacity expansion, smooth developments in royalties and reduce the overall cost to taxpayers by avoiding to use to cover the cash requirements under construction, to finance more expensive debt. It may be noted that such a mechanism is provided in the recommendations of the Organization of international civil aviation on airport charges and that it is, in fact, applied to foreign airports. The Act also provides the possibility of limited scope modulations, for reasons of general interest, notably to reduce or offset the damage to the environment or improve the use of the infrastructure.
These possibilities opened up by the legislator do not lead to questioning the qualification of charges for service, because they do not return to incorporate elements that would be unrelated to the service. Royalties remain the consideration for the value that represents the benefit brought by the service to the user. As a result, they cannot be regarded as samples of a fiscal nature.
It should be noted that the mechanism set up by the legislature led to what, off the case of implementation of modulation provided for in the Act, no fee does not exceed the cost of the corresponding service. Moreover, in practice, will actually be significantly below the costs because airport operators benefit, in addition to the product charges, additional financial resources of a different nature. It is true only if, for reasons of general interest, a fee gives rise to modulation under the conditions provided by law, the product of this fee may exceed the cost of the corresponding service. But, as the law stated, this overflow may only be limited; It will remain anyway in connection with the service and cannot, therefore, be re-qualified in tax collection.
Finally, it may be noted that Parliament has, in any case, expected an absolute ceiling measured overall, imposing that the total amount of royalties collected on an airport does not exceed the whole of the costs incurred by the operator.
This last legislative caution has for object or effect to enable the authority fixing the amount of the royalties to organise a compensation between different charges. The amount of each of these charges will be commensurate with the service rendered and the legality of the fixed amounts will be assessed in relation to the value that represents the corresponding service, subject to the application of the modulation possibilities provided by the legislator for reasons of general interest. The overall order limit established by the legislature only has another project to those liable to pay an additional guarantee, one that actually decided modulations, for reasons which will be specific to each charge, could lead to what the total amount of royalties is greater than all of the costs for services rendered on the airport.
This provision is explained especially with a plan common to many charges to pay a set of services provided jointly by the airport operator to the same users. The breakdown of the cost of public services airport between different charges, attached to different aspects of these services, assumes some imputation parties insofar as shared expenses are important. One could probably imagine that services are subject to a unique and comprehensive fee; but it should be noted that the distribution between many charges, paid each by the same users, imposed by international standards governing air transport. These features of airport charges explain the special guarantee provided by the legislature, leading to CAP, at any rate, at the height of the overall cost of the services rendered on the airport, the global proceeds from fees collected in respect of the remuneration of the service rendered to the user by the airport platform.
Far from leading to requalify in charges the fees governed by article 9, this provision to guarantee, on the contrary, that the total amount of fees shall not exceed all of the costs of the service provided at the airport. This mechanism could thus lead to what the fees governed by article 9 of the law brought are regarded as taxes of any nature that it would be up to the legislature to determine the rate, base and the procedures for recovery.
In these circumstances, the Government considers that article 9 of the Act, brought criticism can only be excluded.
* For these reasons, the Government considers that criticism by the authors of the referral are not such as to justify the censorship of the challenged provisions of the Act brought. This is why it considers that the Constitutional Council shall dismiss the action before it.