Key Benefits:
Mr. President, ladies And members of the Constitutional Council, pursuant to article 61, paragraph 2, of the Constitution, we have referred to your consideration several provisions of the law relating to airports
That you wanted to communicate to us. They call on us the following answers.
1. On Article 6 of the law, as it entrusts the Aéroports de Paris with a public service mission exercised in a monopoly without time limit and without the possibility of withdrawal
The Government argues first that public establishments Entrusted with a public service mission have, in the past, been transformed into public limited-liability companies, without the Constitutional Council opposing it. In this regard, he cites two examples, that of France Télécom and that of Electricité de France and Gaz de France.
But the situation of the company Aéroports de Paris is not comparable to that of these three companies. Indeed, in the field of telecommunications and energy, the laws of 23 July 1996 and 5 August 2004 organised, in accordance with the Community directives and according to a pre-defined timetable, the opening of these sectors to the Competition.
In the airport domain, the situation is quite different. As already indicated in the application, the activities of the Aéroports de Paris company are exercised in a monopoly, de facto and de-law. Indeed, there are no airports other than those of Roissy-Charles-de-Gaulle and Paris-Orly capable of providing air service to the capital and the country. In other words, francial airports constitute, within the meaning of competition law, essential infrastructure. It is for this reason that Aéroports de Paris, unlike France Télécom, could not get out of the public sector, otherwise it would be unaware of Article 9 of the Preamble to the Constitution of 27 October 1946
Further submits that the terms of reference will determine the administrative penalties which may be imposed on the company in the event that it fails to fulfil its obligations.
But, precisely, the specification will not be able to provide for Ultimate sanction, the withdrawal of the delegation granted to the company, since that delegation was conferred on it by the legislator without limitation of duration and without the Government having the right to terminate it.
In addition, under the article 8 of the Declaration on Human and Citizen Rights " The law must establish only penalties that are strictly and obviously necessary, and no one can be punished only by virtue of a law established and enacted prior to the offence, and legally enforced. It follows from these provisions, as well as fundamental principles recognised by the laws of the Republic, that a sentence may be imposed only on the condition that the principle of legality of offences and penalties (1) is respected. These requirements concern not only the penalties imposed by the law-enforcement courts but extend to any punishment having the character of a punishment, even if the legislature has left it to an authority of a nature not to Judicial. In the present case, the legislator, by confining itself to providing, in Article 6 of the law, that the specification approved by decree defines " The administrative penalties liable to be imposed on Aéroports de Paris', without further fixing the nature of the penalties applicable, disregards this constitutional requirement.
The Government also argues that, in the case of Failure of the company, which it considers improbable but not impossible, it would be for the legislator, by a later law, to determine a new framework for the performance of the public service. By this argument, the Government implicitly admits that the law, as voted on, is not, in itself, sufficient to respond to the risk of undermining the continuity of public service. However, the constitutionality of a law cannot be subordinated to the hypothetical adoption of a subsequent law.
Finally, the Government argues that Article L. 2213-1 of the Defence Code would allow the Government to requisition property And services needed to meet the needs of the country. However, this provision, which appears in Chapter 3 of Title I of Book II of Part II of the Code of Defence, is applicable in the context of the general principles defined in Chapter 1 which precedes it and according to which the benefits which may be Be obtained by requisition are those " Necessary for the purposes of defence ", that is, according to Article L. 1111-1 of the Code," To ensure, at all times, in all circumstances and against all forms of aggression, the security and integrity of the territory, as well as the life of the population." This power of requisition, therefore, would not be able to legally deal with a situation in which the Paris Airports Company would seriously fail to fulfil its public service obligations, without the country having to deal with an attack. Thus, a serious air transport crisis, which would jeopardise the economic and financial viability of the company, would not legally justify the implementation by the Government of its stated requisition power. It is for this reason that the Civil Aviation Code provides, in Article L. 223-1, that the Minister responsible for civil aviation, when the signatory to the Convention provided for in Article L. 221-1 does not carry out the obligations which he or she has Shall be responsible for making either the implementation of the operation of the aerodrome at the expense of the signatory of the agreement or the termination of the agreement. It is paradoxical that this provision is applicable to airports open to public air traffic, with the sole exception of those operated by Aéroports de Paris.
Finally, the authors of the action wish to add that the Difference in treatment between the major airports of the province and the airports of Ile-de-France, which is not justified by a difference of situation in relation to the object of the law or by reason of general interest, disregards the principle
is paradoxical to note that, for the airports of Roissy-Charles-de-Gaulle and Paris-Orly, whose importance to the economic life of the country and of national defence is much greater than that of the airports of Province, public service missions are delegated to the operator on a final basis, without the legislator having the option of putting an end to that delegation, while for the major provincial airports a concession Airport, which the granting authority may, of course, terminate before its term for a ground of general interest, shall be concluded between the State and the airport operating company established pursuant to Article 7 of the Act. The difference in the situation between the airports in Ile-de-France would probably have created a less protective regime for public service for the airports of the province than for the airports of Ile-de-France, but it does not allow a choice
It is, of course, financial considerations that led the Government to present to Parliament a bill providing for the transfer of full ownership of airport infrastructure to society, without providing for A mechanism allowing it to replace the company in the event that it fails to meet its obligations. The valuation of the company and thus the price at which the state may sell to private shareholders 49 % of its capital depends on the present value of future cash flows. The introduction of a mechanism allowing the State to replace the company, if necessary, would have created uncertainty about the sustainability of the company's business, income and cash flows, thereby reducing its attractiveness for Investors. However, such a reason, of a financial nature, does not constitute grounds of general interest sufficient to justify the infringement of both the constitutional requirement of continuity of public service and the principle of equality
The authors of the action continue to consider that Article 6 of the Law, as it amends Article L. 251-2 of the Civil Aviation Code, should, for these reasons, be declared contrary to the Constitution.
2. On Article 6 of the Law, as it merely provides that the decree approving the specifications of the company Aéroports de Paris brings to the state its competition for the exercise of air navigation services
The Government, without Reply to the plea put forward, asserts that by not specifying the details of the assistance given to the State or its procedures for taking care of it, the legislature did not disregard the competence it derives from Article 34 of the Constitution. It further states that the company will no longer collect the charges for the terminal services of air traffic control, that certain ancillary benefits will continue to be provided, as a transitional period, by Aéroports de Paris and that the specification Approved by decree will precisely describe the contours of the competition brought by Aéroports de Paris to the air navigation missions and that it will specify that these benefits, whose cost is estimated at around 20 million euros per year, will be
It must first be noted that the impugning legislative provision does not mention, contrary to the Government's point of view, that this competition will be made on a transitional
. Parliament by omitting, in the law, either to fix the maximum amount of the competition brought by the company to the State, or to provide that the corresponding burden would be reimbursed to it, has vitiated the impugned provision of negative incompetence. The statement that the benefits provided by the company Aéroports de Paris will be reimbursed by the State, which the Government states that it will be included in the decree approving the specification, should have been included in the Law itself.
Thus, the authors of the action continue to estimate that Article 6 of the Law, as it merely provides that the decree approving the terms of reference of the company Aéroports de Paris brings to the State its competition for the financial year Air navigation services, is vitiated by negative incompetence and should, on this ground, be declared contrary to Article 34 of the
. In Article 8, as it permits the fixing of the amount of a charge at a level which exceeds, for a user, the cost of the service rendered
As the Government itself indicates, a fee is distinguished from a fee in that the fee, According to the formula of the Council of State, " Is requested from users in order to cover the expenses of a specified public service or the costs of the establishment or maintenance of a public work and finds its direct consideration in services provided by the service or in the use of The book " Or, according to the Constitutional Council, " Finds its direct consideration in services provided by the service ". And, as the Government rightly points out, " It is important that the amount of the fee charged as a benefit price match the service rendered " And " 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. "
The applicants do not dispute that they can be To determine the cost of the service rendered, the cost of future infrastructure or new facilities. It is indeed necessary to distinguish the nature of the factors taken into account in calculating the costs to which the user is requested and the assessment of the extent to which the level of the levy is actually proportionate to the cost of the Service to users, costs which can be legally taken into account in setting the fee (2).
On the other hand, the Government's assertion that, on grounds of general interest, the product of a royalty may be modulated and To exceed the cost of the corresponding service does not know the actual definition of the fee, as recalled, even if the amount of the surcharge remains limited.
In a manner contrary to the actual drafting of the law, the Government Asserts that the provision that " The overall product of these charges shall not exceed the cost of services rendered on the airport " Has neither the purpose nor the effect of allowing the authority fixing the amount of the royalties to organise compensation between the various charges. At the same time and in a contradictory manner, the Government asserts that the overall order imposed by the legislature precludes the modulations actually decided on, for reasons which will be specific to each fee, cannot To ensure that the overall amount of the charges exceeds the total cost of the services rendered at the airport.
The real risk to which the contested legislative provision is exposed is that the Aéroports de Paris, when 49 % of its Capital will be held by a private shareholder, seeking, as has already been done by the managers of the provincial airports, in particular those of Strasbourg and Basel-Mulhouse, to draw on the Parisian platforms of the companies said " Low cost ", by making them benefit from tariff benefits, and compensates for the shortfall by increasing the royalties of the companies that are captive users of these platforms, beyond the cost of the service rendered to them.
The principle of equivalence between the service rendered and the cost of this service, which is reflected in the notion that the sum charged must " To find its direct consideration in the services provided or in the use of the work ", must apply for each individual user concerned. Indeed, " If the rule of the ceiling prevents the user from charging a fee higher than the cost of the service, at the risk of a tax colouring, that amount may be less than the amount requested lost Its royalty character (3) ". From the point of view of the person liable for a charge, it is of little importance that, for the whole of the category of debt to which he is a member, the principle of equivalence is generally respected if, at the same time, the downward and upward modulations Introduced by the operator of the work, in practice, result in the increase in the sums which he himself will be forced to bear, because he is placed in a position of economic dependence on the manager, is used to compensate The reductions granted to those of its competitors who, for their part, are in a position to negotiate their coming or stay at airports.
Thus, the authors of the appeal continue to consider that section 8 of the Act, as it is In order to set the amount of a charge at a level which exceeds, for a given user, the cost of the service rendered, fails to know the constitutional definition of the service fee paid, effectively authorizes the creation of a taxation of which it Does not determine the amount or the base and is thus contrary to section 34 of the Constitution.
For these reasons, the authors of the reference persist in the findings of their action and ask you to believe, Mr. Chairman, ladies and Members of the Constitutional Council, to the expression of their high regard.
