Key Benefits:
AN ACT TO AMEND ACT No. 2001-44 JANUARY 17, 2001
ON THE PREVENTIVE ARCHAEOLOGY
Mr. Chairman, ladies and gentlemen of the Constitutional Council, we have the honour to refer to your review, in accordance with the second Article 61 of the Constitution, the whole of the law amending Act No. 2001-44 of 17 January 2001 on preventive archaeology.
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I. -Articles 1, 2, 5 and 6 of the Law
These articles modify the organisation of preventive archaeology, on the one hand, condition the diagnostic phase and, on the other hand, place the national public establishment on the Administrative character, INRAP, in competition with the private sector with regard to the phase of searches.
In particular, Article 1 sets strict deadlines for the state's power to establish diagnostic requirements
2, for its part, dispossesses the state for five years of Its power of action in this area.
As for Article 5 of the criticised law, inserting a new Article 4-5 into the Act of 17 January 2001, it provides for the caducity of the diagnostic requirements as soon as a certain period of time has
. And in the case of Article 6 of this Law, the conditions for the conduct of excavations are modified in such a way that a private operator may be responsible for doing so, the INRAP intervenor only in default, according to a contract concluded between The person responsible for the development and the work in question and the operator
These various legislative changes undermine the general interest objective of preventive archaeology and together the principle of continuity of public service (I-1). Moreover, their drafting reveals a disregard by the legislator of its own jurisdiction and thus a violation of Article 34 of the Constitution (I-2).
I-1. On the lack of awareness of the general interest objective and the principle of continuity of public service:
Your case-law has recognised the constitutional value of the principle of continuity of public service, a fundamental principle of our Public law (Decisions No. 79-105 DC of 25 July 1979; n ° 94-347 DC of 21 July 1994; No 96-380 DC of 23 July 1996). If this principle, like other norms of constitutional value, must be able to be reconciled with rules of the same value, it is acquired, on the other hand, that it cannot be weakened without justification based on the general interest or the need for To guarantee another right or freedom of the same rank in the hierarchy of standards.
Yet, the current law infringers this principle without any pursuit of general interest or of a particular right or freedom. On the contrary:
It follows from your own case-law that so-called preventive archaeology is a matter of public service, an integral part of archaeology, and that it is intended to ensure the preservation of elements The archaeological heritage threatened by development work and the interpretation and dissemination of the results obtained. You have therefore attached this public service remit, the importance of which is measured in relation to the protection of our historical and cultural environment, to a general interest which is sufficiently clear to justify the establishment of exclusive rights to the Profit of an administrative public institution and limitations on the freedom to undertake (Decision 2000-439 DC of 16 January 2001, recitals 14 to 16).
It is in this logic that the Council of State, in turn, held that " The operations of diagnoses and excavations of preventive archaeology are, in view of the need to protect the archaeological heritage to which they respond and the scientific purpose for which they are undertaken, of Missions of general interest within the meaning of Article 86 of the said Treaty, that in the first place, having regard to the links that these operations involve with the curse of the requirements of preventive archaeology and the control of their respect by the State, second The physical conditions in which they are to be undertaken, Third, the need to ensure the execution of such operations throughout the territory and, consequently, to finance them by means of a royalty ensuring a national equalization of the expenses incurred, the stipulations of this Article Authorised the legislator to provide the national public institution established by Article 4 of the Act of exclusive rights with a view to enabling the fulfilment of the tasks of general interest referred to above ' (EC 30 April 2003, National Union of Career Industries and Building Materials).
The public service character of preventive archaeology as the general interest to which it relates are certain. This dimension had been highlighted in the MM report. Fisherman, Poignant and Demoule, which concluded that it was necessary to erect it in public service in its three aspects, which must form an inseparable and coherent whole: diagnosis, excavation and dissemination of the discoveries
Public service mission led to the conclusion of an international convention, the Malta Convention of 16 January 1992, ratified by France, for the protection of the archaeological heritage of which " The aim is to protect the archaeological heritage as a source of European collective memory and as an instrument of historical and scientific study " (art. 1).
It is therefore in order to ensure the full satisfaction of the general interest of which it is concerned, throughout the territory and through a system which is free from any other consideration given to the difficulty or the Effectiveness of the excavations, which the legislator of 2001 has implemented the organisation of this public service. In order to meet the objectives thus defined, the legislator had therefore broken with the purely economic logic which had previously prevailed to the detriment of the public service considerations which constitute the quality of the excavations, their follow-up Scientific, their " , their assessment and the scientific and pedagogical valorization of the results.
In this case, the law criticised falls on this mission of general interest and clearly submits the public service of preventive archaeology to a Organisation whose main consequence will be to ruin the continuity of the public service in order, at the end, to threaten the general interest in question. By splitting into several stages subject to separate rules at the same time as dependent on different stakeholders, sometimes legal persons of public law, sometimes private persons, the three aspects of the public service of preventive archaeology, The law in question disregards, without justification, or sufficient justification, the general interest.
It does so to a double title. In the first place, it determines the implementation of this public service mission on time, which is traditional in appearance but in reality (I-I. 1). Secondly, it compartmentalisation the public service of preventive archaeology so that its coherence and comprehensiveness are achieved (I-I. 2).
I-I. 1. First, the consequence of Articles 1, 2 and 5 of this Law is that the public service mission of preventive archaeology must be subject to time limits to the risks of unjustified interruptions in the eyes of the general interest
Article 1 subordinates the requirements of diagnosis and excavation, as the State does, to the time limits in which they are to be taken, from one to three months, as the case may be. In the absence of a reply within these time limits, the State shall be deemed to have waived its provisions. While the need not to block adjustments to the cause of delays in the administrative management of the files is certainly being measured, the fact remains that those deadlines are clearly not in line with the nature of the service Public interest and purpose of general interest. A prescription for the diagnosis of preventive archaeology and a limitation period may require more time than the aforementioned time limits, depending on the configuration of the field, the knowledge of the premises, ... In such a way that the application of these deadlines could lead to an end to any mission of preventive archaeology which would be necessary for the simple and good reason that the competent services would have put a certain amount of time on the Nature of the file subject to their expertise. This excessively restrictive mechanism risks undermining the continuity of the public service of preventive archaeology without sufficient justification.
Article 2 makes the same logic, since outside the archaeological areas, the Persons who plan to carry out work and facilities may ask the State to indicate whether a diagnostic prescription may take place in this regard. In the absence of a reply or a negative reply, the State shall be deemed to give up for five years to prescribe a diagnosis. This consequence is, at the very least, awaiting, again, the principle of continuity of the public service of preventive archaeology. By definition, if the project concerned is located outside the zones of preventive archaeology, it must be deduced that the knowledge of the places is less fine and that the assessment by the competent services deserves a finer expertise because
Or, the consequence of a negative response resulting from a poor assessment of those services or a reluctance on their part within that two-month period will be the impossibility for the State to carry out its mission of public service Of preventive archaeology for five long years, much more than the time to bury Whole sections of our history. This hypothesis is radically contrary to the general interest in question. The safeguard clause relating to the substantial modification of the proposed development allowing the State to recover its jurisdiction cannot be misleading. In fact, there is no way of knowing under what conditions the state could be led to see such substantial changes to the projects. As the manager has made his request for the first time, he has no obligation to make a second request or, indeed, interest in doing so. This period of five years during which the State will be dispossessed of its public service mission is almost irreducible.
It is not in the interests of the Local economic development and development that can justify the implementation of such a strong constraint on the general interest. If conciliation is to occur, it is on the condition that the public service is not clearly promoted.
Such a mechanism cannot be allowed except to admit that the public service is eclipsed.
For the scheme to be complete, the article 5 provides that, if the diagnosis is not completed, due to the operator, within the time limit laid down by a convention, the prescription for diagnosis lapses. By definition, preventive archaeology has inherent difficulties in the mysteries and uncertainties surrounding the places of memory. Delays can occur for multiple reasons. Thus, to put an end to this public service mission, by the caducity of the diagnostic prescription resulting in the absence of excavations, on a ground as vague as that taken from the " " Shall not satisfy the general interest and the principle of continuity of the public service. Because the consequence of this lapse is to interrupt the entire public service mission and to ruin any hypothesis of future excavations. This division of this public service into different phases by time limits appears, in these circumstances, to be contrary to its own coherence and to create the conditions for its interruption.
The public service of archaeology It must not lead to indefinite blocking, and probably not without a reasonable horizon, of any development operation. A conciliation between the general interest and the continuity of the public service, on the one hand, and the economic constraints of managers, on the other, must be made. However, it is equally certain that this balance must not be achieved in conditions such as the general interest being pursued in a way that is too radical. This is, of course, what the text is, of course, criticised. Under the guise of time limits, which are well known in administrative law, the law places undue constraints on the public service concerned and risks preventing its satisfaction in an indispensable continuity.
Car, the news Excavation rules increase this hazard by creating the conditions for different breaks in the scientific consistency of this public service mission.
I-I. 2. Second, Article 6 of the Act, amending Article 5 of the Act of 17 January 2001, organises the possible devolution of a phase of the public service mission of preventive archaeology, that of excavations, to a private operator. It introduces a faculty of competition for search operators, whose decision lies solely with the person planning the development concerned. This phase of excavations can therefore be organised according to different modalities on the territory. With regard to a public service whose unanimous opinion is that it constitutes a coherent whole, such a mechanism is not lacking in concern.
First, as already shown, the phase of the excavation is likely to be entrusted to a person Separate from that in charge of the diagnosis. In itself, and in the light of the overall nature of this research and heritage conservation mission, this sequencing strikes the continuity of the public service.
Second, this part of the public service mission Of preventive archaeology passes under the control of the person in charge of the development project. This is an assumption of delegated public service management.
(i) In the criticised scheme, it is the manager, most often a legal person under private law, who will choose how to organise an essential step in the To carry out a public service mission, by determining, on the basis of new criteria at this stage and, in reality, more concerned with the profitability than to the conservation of our heritage, its preference for a particular solution, for such a Or such an excavation operator!
For comparison, it should be noted that any operation delegated by INRAP, as an administrative public institution, would, for its part, be subject to the conditions laid down by the public procurement code with, as a corollary, The application of the principles of equality and transparency that you have recently recalled (decision n ° 2003-473 DC of 26 June 2003).
In the present case, the opposite should be the case. A part of a public service mission would be entrusted by a private person, having interests in the material and financial conditions of his achievement, to another person of private law or public law, without any criterion Objective is fixed by law.
This piecemeal devolution of a public service mission by a private person whose economic interests depend on the results of the excavations is carried out by means of the Contract, including the price of the transaction and the deadlines for completion.
It is, and everyone is the same as the scientific community so strongly mobilised, a return to the least satisfactory past for our heritage: the prevalence of economic interests and profitability on the dimension Scientific. It will be recalled that the system prior to the law of 17 January 2001 was the subject of criticism of the variability of costs according to the regions or according to the nature of the work and the purely economic logic which prevailed at the AFAN at the expense of the Other considerations (see on this point: Cahiers du Conseil constitutionnel, No. 10, commentary on the decision of January 16, 2001).
The challenge of this text by the community of archaeologists and the greatest names of French science Deserve attention here. The threat then denounced relates to our heritage. Instrumed by foreign examples, these scientists have shown in articles and forums all the dangers that such mechanisms can engender, and in particular that the choice of the financial model often leads to the lowest scientific
(ii) It is in vain to oppose the conditions laid down by Article 6 in order, apparently, to guarantee a minimum of transparency and objectivity with regard to the choice of the private search operator. Of course, and this is the least, the independence of this operator and the control of the contract by the state between him and the manager are planned. These useful requirements only reveal a little more about the risks that this system of random cutting and privatization of a public service makes for the general interest.
This framework is notoriously inadequate.
Of a On the other hand, and again, the conditions for the award of the contract itself are under the sole control of the person in charge of the project of work and development. It is therefore through the exclusive prism of profitability that the price and the time limit will be negotiated. This is the problem of the cultural and scientific moins-saying that the previous mechanism had chosen to remedy through rules of financial solidarity and public service obligations (Decision of 16 January 2001)
On the other hand, the control which the state will exercise on the contract will only be a priori and, no doubt, through a purely formal analysis. It will be sufficient for the contract to resume, in a stereotypical manner, the search requirements to satisfy this step.
In addition, it will be noted that this control is not subject to any sanction. This means that one can question its scope and the guarantee it brings to the public service. Here we are very far from the guarantees for the public service that you otherwise require (Decision 2002-460 DC of 22 August 2002, recital 15).
Finally, such formal and partial control a priori is not in keeping with the general interest Concerned. In the field of archaeology, and especially at the preventive stage, the prescriptions cannot consider everything that is going to be found, neither in quantity nor in quality. This is even the discipline of this discipline. Above all, the work is not reversible and, as the search is over, there is no longer any possibility of verifying the existence or non-existence of remains and their interest in our heritage.
The difference here is notable with For example, the restoration of historical monuments, since this is a technical gesture on the basis of the observation of a known existing and which can be the subject of a posteriori control and a catch up.
It is true that the law criticised has Provision for a catch-up hypothesis in the fifth paragraph of the drafting of Article 5 of the Act of 17 January 2001 as amended. If the manager has not found a private counterparty, INRAP is required to conduct the searches. In other words, if the economic equation does not satisfy the private operator, the public institution is allowed to intervene to satisfy the general interest ...
This is neither serious nor satisfactory for the general interest.
(iii) It is all Also in vain that the Government would oppose the classical principle at the end of which it is assumed that you do not have similar discretion in Parliament.
In this case, it is clear that the organisation of the public service of archaeology Preventive measure carried out by the law criticised for undermining the general interest And disregards the fundamental principles of public service, including that of continuity.
This challenge, just over a year after the previous recast, does not, moreover, serve any different general interest which would have been overlooked or No right or freedom that would have been threatened by the system that came into effect in 2001.
On the other hand, it is the conservation and protection of our historical and cultural heritage, of our environment, that would be threatened by law
All these leaders, censorship is inevitable.
These provisions are The enabling architecture of the law. Their inevitable invalidation will therefore result in censorship of the law as a whole, as long as they are inseparable.
I-2. On the lack of knowledge of Article 34 of the Constitution:
In addition, the legislator has disregarded its own jurisdiction by organizing this public service entasing the law of negative incompetence.
In particular, section 6 of the Act allows the manager to choose to use the The excavation stage, either to a territorial archaeology department or to a private operator or INRAP, places this public service mission under the sole authority of the construction operator, without any guarantee of the general interest.
Or, As regards the satisfaction of a mission of general interest, it would have been necessary for the The Act sets out the conditions and criteria upon which this choice may be made. The alternative open to the manager should have been framed more precisely. Similarly, it would have been necessary for the criteria of choice and the procedure of choice of the co-contractor by the manager to be framed a priori. What is imposed on a public person when delegating a public service should be imposed, at least as much when an essential part of a public service mission is vested and organised by a legal person governed by private law, having a Financial interest in the operation.
In the absence of this essential framework in the light of the general interest pursued and the public service mission in question, the legislator has fallen short of its own
. Even for the third paragraph of Article 5 of the Act of 17 January 2001 at present Changed. By organizing the control of the contract concluded between the manager and the private search operator without providing for the sanction which attaches to that State's competence, the legislator has made this provision either inapplicable or inoperative. In both cases, he has not exhausted his competence.
This is still the case for the fourth paragraph of the same article, which provides for the lapse of the prescription for diagnosis in the event of a time limit fixed by convention. The setting of this deadline is, in fact, referred to the regulatory route. However, considering the consequences of this delay, and in particular the interruption of the entire chain of preventive archaeology, it was constitutionally necessary for the law to determine this time
. A number of negative incompetence in the law in question. The inseparable nature of the provisions of the rest of the law will lead to censorship of the entire text.
I-3. The violation of article 72-2 of the Constitution:
Article 5 in that it inserts a new article 4-2 into the Act of 17 January 2001 violates the fourth paragraph of article 72-2 of the Constitution, which states that " Any transfer of powers between the State and the local authorities shall be accompanied by the allocation of resources equivalent to those devoted to their exercise. Any creation or extension of competences resulting in increased expenditure by the local authorities shall be accompanied by resources determined by law
. Having an archaeological service performing diagnostics for certain development operations.
This is, therefore, a transfer of jurisdiction within the meaning of section 72-2.
Admittedly, section 10-IV of the Act provides that The levy of preventive archaeology is paid back to the community Territorial having ensured the full diagnosis. However, as a result of the exemption of the surface charge equal to or greater than 3,000 square metres, this means that all work on such surfaces and for which the said communities would have made a diagnosis
is therefore to say that local and regional authorities and groups of territorial communities making the diagnoses for the lower surfaces will not receive a levy. This is a transfer of skills not accompanied by the associated resources.
Of this leader again, censorship is incurrent.II. -Article 10 of the Law
This Article amends Article 9 of the aforementioned Law of 17 January 2001 by establishing a levy of preventive archaeology by public or private persons intending to carry out, on a Land of an area equal to or greater than 3,000 square metres, work affecting the basement and subject to a prior authorization or declaration pursuant to the right to construct.
This provision violates the principle Equality and together Article 13 of the Declaration on Human Rights and Citizens' Rights 1789.
Your case law on tax equality is consistent in this respect. You have recently censored a provision providing for a difference in treatment with no direct relation to the objective which the legislator had assigned (Decision 2002-464 DC of 27 December 2002). In addition, and in any event, it is important that the differences in treatment in relation to the purpose of the Act are based on objective and rational criteria.
Setting the area from which land is located at 3,000 square metres Subject to the levy of preventive archaeology, the legislator has broken the principle of equality and disregarded Article 13 of the 1789 Declaration.
This area does not correspond to any specific objective of the law and therefore does not rest on any criterion Objective or rational. It is true that, in the bill originally tabled on the Senate Bureau, the base of the levy was set at 5,000 square metres. The Senate had reduced the area to 1,000 square metres. The National Assembly had raised the figure to 5,000 square metres. Finally, in the course of the Joint Joint Committee, the area serving as a base was fixed at 3,000 square metres. This may be more relevant to the games of archaeology and chance than to any serious criterion.
The invalidation is certain.
Or, this provision provides funding for the public service of preventive archaeology. As a result, its censorship can only lead to the invalidation of the entire text of which it is a determining factor.
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We ask you to register, Mr. Chairman, Ladies and gentlemen of the Constitutional Council, the expression of our high regard.
(List of signatories: See decision 2003-480 DC.)
