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Observations Of The Government On The Appeals Against The Act To Amend Act No. 2001-44 Of 17 January 2001 On Preventive Archaeology

Original Language Title: Observations du Gouvernement sur les recours dirigés contre la loi modifiant la loi n° 2001-44 du 17 janvier 2001 relative à l'archéologie préventive

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JORF n ° 177 of 2 August 2003 page 13314
Text N ° 17



Government observations on appeals against the law amending Act No. 2001-44 of 17 January 2001 on l ' preventive archaeology

NOR: CSCL0306791X ELI: Not available


The Constitutional Council has been seized, by more than sixty senators and more than sixty members, of two Appeal against the law amending Act No. 2001-244 of 17 January 2001 on preventive archaeology, adopted on 22 July 2003.
The purpose of the Law on Preventive Archaeology of 17 January 2001 was to supplement the scheme Resulting from the Act of 27 September 1941, to adapt the legislative and regulatory framework so as to allow the implementation of the commitments made by France in the framework of the European Convention for the Protection of the Archaeological Heritage Signed in Malta on 16 January 1992, published by Decree No. 95-1039 of 18 September 1995.
Preventive archaeology refers to the operations of diagnosis, excavation and studies of buried remains that are required by the construction, development, or earth-moving work on land that is recelant or
The Act of 17 January 2001, having affirmed that preventive archaeology is a matter of public service, had determined the prerogatives of the State and established a national public establishment Administrative responsibility for research in preventive archaeology, The National Institute for Preventive Archaeological Research (INRAP). The establishment was endowed with exclusive rights and had to ensure prior diagnosis and excavation of development operations; it could rely on the archaeological services of the territorial public authorities as well as on the Public research or higher education institutions, associations and other qualified private law structures. The law finally stated that the financing of this public institution would be provided, in addition to subsidies by the State or other public authorities, by the proceeds of royalties owed by the public and private persons projecting To carry out construction or development work which has been the subject of diagnostic or archaeological excavations.
The implementation of the operative part of the Act of 17 January 2001 has, however, rapidly met with Serious difficulties. In addition to excessively high completion times, it transpired that the overall amount of the archaeological fee did not cover the needs of the public institution, although it was a heavy and unevenly distributed
. Why the legislator considered it necessary to proceed with the revision of the Act of 17 January 2001 and to set up a new organisation of preventive archaeology. While retaining the principle of the integration of preventive archaeology into the public service of research, the law adopted on 22 July 2003 increased the openness of this activity to other operators and introduced new modes of The
adopted on 22 July 2003 thus did not change the nature of public service of this mission of preventive archaeology, which remains affirmed by the unamended Article 1 of the Act of 17 January 2001. However, it changed the way in which this service was organised, by allowing the conduct of preventive searches to be carried out by a circle of operators extended to private undertakings and by determining the requirements and subjection of new requirements to guarantee the Scientific quality of excavations and state control. Thus, the law provides for the authorisation of operators, restores the authorisation of excavations issued by the State after examination of the scientific content of the contract with the operator, or imposes the surrender to the State of the search report. This new organisation remains in line with France's international commitments under the Malta Convention.
The appeals brought by the honourable Members and Senators in particular are critical of Articles 1, 2, 5, 6 and 10 of the Convention. The law by claiming different grievances. Thus, the applicants argue that the law referred to would disregard the general interest pursued by the legislator in relation to preventive archaeology and would undermine the principle of continuity of public service. They also invoke Article 34 of the Constitution against Article 6 of the Law, arguing that this article would be tainted by negative incompetence. In addition, they argue that section 10 of the Act, relating to the levy on preventive archaeology, would disregard the principle of equality and Article 13 of the Declaration of Human and Citizen Rights, by fixing 3,000 square metres of the Area from which land is subject to this levy. Finally, the applicants invoke Article 72-2 of the Constitution as a result of the Constitutional Act of 28 March 2003.
These various complaints call on the Government to make the following observations.


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I. -With regard to general interest
and continuity of public service


1. It must first be noted that the arguments put forward by the references are very largely inoperative.
As Members of Parliament also acknowledge, the public service of preventive archaeology is not a National public service whose existence and organization would result from principles or rules of constitutional value. The legislator may decide to establish such a service, but it is always open to it, without disknowing the Constitution, changing the content of the service or its organizational rules, or even deleting it.
By passing the law The legislator did not abolish the public service of preventive archaeology. It has only amended its organisational and operating rules, based on its assessment today of what the general interest in this case is. No principle of constitutional value requires that the public service of preventive archaeology be organised in the form of a public monopoly. The legislator had certainly been able to decide to retain such an organisation (Decision No. 2000-439 DC of 16 January 2001), but it was equally open to change this organisation and to put an end to the monopoly. Under cover of general interest, the appeals challenge, in fact, the assessment which was carried out in that regard by the legislature and which led it to amend the system resulting from the Act of 17 January 2001. But such an argument, which amounts to inviting the Constitutional Council to substitute its assessment for that of the legislator, is not likely to be accepted.
As regards the principle of the continuity of public service, its value (Decision No. 79-105 DC of 25 July 1979; Decision No. 94-346 DC of 21 July 1994). However, it is difficult to see how a law whose purpose is to define the organisation and content of a public service could be criticised in the name of the principle of continuity of public service, whereas the existence of this public service does not result Constitutional requirements. In such a case, the legislator is free to create or abolish the public service; it shall determine the content of its tasks in accordance with the contours and the level it deems appropriate, in the context of its assessment of the general interest. In the face of a law which has such an object, invoking the continuity of public service means, in fact, seeking to oppose the legislator its own choices and to try to oppose the law, not constitutional rules, but simple provisions
any event, and in any event, it is sufficient to remind the present case that the legislator has taken appropriate measures to ensure the proper functioning of the public service of preventive archaeology in the context of the The organization it has decided to organize.
In particular, it can be noted that the Procedure specified by the legislator and criticised by the references (one month for the prescription of diagnosis, two months in case of work subject to impact assessment, three months for the limitation period of search) are those which are applied Since the entry into force on 1 February 2002 of the Act of 17 January 2001. They had been fixed by decree and established in such a way as to make them compatible with the time limits for the competent authorities to issue authorisations for works which could give rise to an archaeological prescription. For example, it can be noted that the shortest period of one month is within the timeframe of the building permit, which is only two months. The practice has shown that the prescriber services have not experienced any difficulties in ruling before the expiry of these deadlines: in 18 months' application of the system, failure to comply with the deadlines has never led to the divestiture of the prescriber. It should be borne in mind that, in the event of the discovery of the remains, they are protected by the provisions of the Act of 27 September 1941 which allows the State to intervene in the conditions governing state
. Section 2 of the Act, which specifies that the State is deemed to give up for five years to prescribe a diagnosis if it has responded negatively or is deemed to have responded negatively to a request from those contemplating work or Accommodation has been introduced in order to reconcile the general interest of archaeology With the freedom to undertake and the right to property. It is also surrounded by appropriate safeguards. If the State does not consider it necessary to prescribe a diagnosis, this response certainly means that for five years the submitted project may be carried out in the field indicated without prior archaeological intervention. However, a substantially different project will have to be the subject of a new investigation, either on the occasion of a new voluntary submission or on referral in the context of the investigation of the application for authorisation of the project under another Legislation. The State is also authorised to reverse its decision, even in the absence of any modification of the project, in the event of a significant change in the knowledge that it has of the archaeological potential of the territory concerned. It is still necessary to add the protection resulting from the law of 27 September 1941 which remains fully applicable in the event of the discovery of remains on the grounds during the course of the work
Article 4-5 of the Act of 17 January 2001 providing for the caducity of the prescription for diagnosis where the latter is not carried out by the operator within the time limit laid down by the Convention, it must also be noted that the legislator has adopted a Arrangements with the necessary guarantees. It stated that the archaeological remains, if any, found on the basis of the plates subject to the lapsed prescription, are subject to the obligation of declaration provided for by Title III of the Act of 27 September 1941 and that they May give rise to a prescription for conservation or protection-and thus a search-pursuant to Article 2 of the amended Act of 17 January 2001, which is exactly under the same conditions as any other preventive archaeological intervention. The legislator could also validly refer to the regulatory power to fix, according to the time limit of the Convention, the time limit at the end of which the requirement lapses.
With regard to the implementation of the requirements of Archeological excavations, governed by Article 6 of the Act referred to in Article 5 of the Act of 17 January 2001, the law specifies that their fulfilment shall be the responsibility of the person intending to carry out the work which gave rise to the prescription. The latter uses the public or approved search operator of its choice, namely the INRAP, a territorial archaeological service or any other authorised operator, and defines contractually with the chosen operator the price and the deadlines for completion of the Excavation. The contract entered into is submitted to the State, which controls the conformity with the requirements laid down before authorising the search.
This arrangement is precisely framed by the legislator who, contrary to what is supported, provided for the Appropriate safeguards. The first of these guarantees is the prior approval by the State of the operators of excavations: outside the INRAP, the manager will only be able to choose between the operators whose scientific competence has been guaranteed by the State and whose Chronological or thematic specialization is the one required by the prescribed transaction. The conditions necessary for obtaining the authorisation, the scope of the authorisation and the modalities of its allocation and withdrawal will be defined by decree.
Next, the choice of the operator will have to be endorsed by the State which will appreciate, in order to deliver Authorization to search, if the intervention project developed by the operator in view of the requirements laid down offers all the guarantees for the implementation of these requirements in terms of scientific choice as well as in terms of the Mobilising human and logistical resources. Beyond the operator, the State designates the natural person responsible for the operation. The conditions for granting permission to search and the form and extent of State control will be specified by decree.
The execution of the search will remain subject to the supervision of the services of the The State, as the law expressly provides, and as specified in the implementing decree. The operator will be required to provide the state with a report on the operation performed, the quality of which will be scientifically evaluated.
Finally, it can be noted, contrary to what the references suggest, that there is no need for scientific imperative The diagnosis and the search are carried out by the same person. It can even be argued that it is desirable, once the diagnosis has been made, that the search be carried out by persons with specialized knowledge of the type and period of the remains in question. And it must be stressed that if the opening of the excavations to the private sector will have the effect of giving the manager the choice of the operator who will carry out the excavations, and will allow him to make in this choice economic considerations and However, these decisions will remain very structured and subordinate to the scientific primacy of the search process.
The Government believes that criticism of the law referred to in the name of the general interest And the continuity of the public service, in any event, can only be


II. -With regard to the alleged misknowledge
of Article 34 and Article 72-2 of the Constitution


1. The references invoke the terms of Article 34 of the Constitution against, in particular, the provisions of Article 6 of the law referred to, arguing that the legislature would have remained within its jurisdiction by not making certain Conditions or details. This complaint cannot be accepted.
On the one hand, it is difficult to discern which section 34 of the Constitution the applicant parliamentarians wish to refer to. The arrangements for the organisation of public services do not, in fact, necessarily fall within the scope of the legislature. They are very broadly, and usually, defined by the regulatory authority. It can be noted, moreover, that the Act of 17 January 2001 contains numerous references to the regulatory power.
On the other hand, and in any event, it must be observed that the legislator has, in the present case, laid down the framework for organising the Public service with precision and with very many guarantees. Thus it shall relieve the State of the authorisation of excavations; it organises State control over operators through the procedure of prior authorisation attesting to the scientific competence and on the operations of the search by regular monitoring of the Carrying out the search; it requires the operator to be independent of the manager or manufacturer. Compliance with these guarantees will be ensured through the implementation of the administrative authorisation procedures foreseen: the prospect of a refusal to grant a search authorisation if the project does not meet the requirements will lead to The manager and the operator of the search to comply with their obligations. The execution of the contract will, for its part, be sanctioned by the certificate of completion of the archaeological work, which will be refused in the event of failure to comply with the requirements. Finally, as far as the excavation operator is concerned, it must be stressed that breaches of its obligations may lead to the withdrawal of its authorisation.
2. The complaint alleging ignorance of Article 72-2 of the Constitution is not more
to what is being argued, the provisions of Article 5 of the law referred to, by organising the conditions for the intervention of the archaeological services of local authorities, do not carry out a transfer of powers to the Meaning of article 72-2 of the Constitution, resulting from the constitutional review of the 28 March 2003. The
authorities may, in the exercise of their free administration, acquire archaeological services which they organise freely, subject to the scientific and technical control of the State. However, this is an optional jurisdiction and the law referred, not more than any other text, has as its object or effect the imposition on the territorial authorities to constitute such a service or to transfer them competences
In these circumstances, the invocation of Article 72-2 can only be ruled out (Decision 2003-474 DC of 17 July 2003).


III. -As regards the principle of equality


With regard to Article 10 of the law referred to, which amends Article 9 of the Law of 17 January 2001 and deals with the levy on preventive archaeology, the two actions argue that the By deciding to impose only those projects which have a land base equal to or greater than 3,000 square metres, would have disregarded the principle of equality and Article 13 of the Declaration of the Rights of Man and citizen.
Such a grievance is not valid.
It is acquired that the Levy of preventive archaeology presents the character of a taxation (V. For the mechanism prior to Decision 2000-439 DC of 16 January 2001). In general, however, the principle of equality before tax does not preclude the legislator from different situations in different situations, nor does it derogate from equality for reasons of public interest, provided that, in one and The other case, the resulting difference in treatment is in direct relation to the object of the law which establishes it. In the present case, the legislator has confined itself to providing for a minimum threshold for the triggering of taxation, as it very often does when it establishes impositions.
The surface criterion used is based on objective elements. It is simple and applies to all assumptions. It applies to both public and private persons and applies regardless of the nature of the project or the quality of the manager. The threshold amounts to exempt from the payment of the levy the manufacturers who would have to pay less than EUR 1 000, that is to say a small amount in the light of the cost of recovery. In order to highlight the adequacy of the tax criterion, 85 % of the diagnostic operations to be financed by the levy will cover land of more than 3,000 square metres.
In these Conditions, it appears that the grievance, as formulated by recourse, and from an infringement of the principle of equality, cannot be upheld.


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In the end, the Government is of the opinion That none of the grievances articulated by the applicant parliamentarians are likely to lead to Censorship of the provisions of the law referred to. It therefore considers that the Constitutional Council will have to reject the appeals before it.


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