Key Benefits:
LOI RELATIVE À LA COMMUNICATION AUDIOVISUELLE
AND THE NEW PUBLIC SERVICE OF THE
Mr. President, ladies and gentlemen, the members of the Constitutional Council, we have the honour to refer you in accordance with the second paragraph of the Constitutional Council.Article 61 of the Constitution, l 'all of the law on audiovisual communication and the new public television service.
I. ― On Article 13 of the Law
This article amending article 47-4 of Act No. 86-1067 of 30 September 1986 amends the conditions of appointment of the presidents of the companies France Télévisions and Radio France and of the company in charge of the external audiovisual of France.
I-1. The criticized provision violates the guaranteed freedom of communication under theArticle 11 of the Declaration of Human and Citizen Rights of 1789 and the principle of pluralism that you have established as a condition of democracy. In this respect and consequently, it therefore violates article 4, paragraph 3, which states that the law guarantees pluralistic expressions of opinion and Article 34 of the Constitution providing that " the law sets the rules concerning freedom, pluralism and media independence ". On the understanding that these provisions are the result of the constitutional law of 23 July 2008.
With regard to freedom of communication and expression and the principle of pluralism, and even before the constitutional law of 23 July 2008 enshrines it expressis verbis in our Basic Law, you have judged constantly " that pluralism of sociocultural expression is in itself an objective of constitutional value; that respect for this pluralism is one of the conditions of democracy that the free communication of thoughts and opinions, guaranteed by Article 11 of the Declaration of Human and Citizen's Rights of 1789, would not be effective if the public to whom the means of audio-visual communication were not able to have, both within the public sector and in the private sector, programs that guarantee the expression of different character trends in respect of the imperative of honesty; the ultimate objective is that listeners and viewers who are among the key recipients of freedom proclaimed by Article 11 of the 1789 Declaration are able to exercise their free choice without the private interests the Government could substitute its own decisionsnor can we make the objects of a market " (Decision No. 86-217 DC of 18 September 1986).
Drawing all the consequences of this principled consideration, you have therefore judged that in order to ensure the independence of national programming companies responsible for the design and programming of sound or television broadcasting programs and thus to contribute to the implementation of the freedom of communication proclaimed by Article 11 of the Declaration of Human and Citizen Rights, Act No. 86-1067 of 30 September 1986 states that the presidents of these societies are appointed, for a period of three years, by an independent authority (Decision No. 89-259 DC of 26 July 1989).
Decision that you have confirmed again considering that " the Conseil supérieur de l'audiovisuel is an independent administrative authority guaranteeing the exercise of freedom of communication; that in order to ensure the independence of national programming companies responsible for the design and programming of sound or television broadcasting programs and thus to contribute to the implementation of the freedom of communication proclaimed in article 11 of the Declaration of Human and Citizen Rights of 1789, sections 47-1 and 47-3 of the Act of 30 September 1986 provide that the presidents of the said companies are appointed for a five-year term, for the purpose of (Decision No. 2000-433 DC of 27 July 2000).
In other words, it appears from your constant and principled jurisprudence that the appointment of the President of France Télévisions by an independent administrative authority constitutes a guarantee of the independence of the public service of audiovisual and thus of freedom of communication and the principle of pluralism. You have thus established a direct and indissoluble link between the appointment process by an independent authority of political power and the guarantees due to the constitutional requirements that are here at the heart of democracy.
It is clear that the constitutional law of July 23, 2008, by enshrining pluralism and media independence in our Basic Law, reinforced this reasoning.
It would therefore be, at the very least, paradoxical that the law came back on a provision implementing these constitutional principles and objectives derived from the Declaration of 1789 when they entered the body of the Constitution itself in order to strengthen its concrete scope as well as the symbolic force.
The founding pact of our democracy as much as the spirit of the 2008 constituent would then be dramatically denied.
The disputed provision therefore seriously violates these constitutional principles and provisions.
I-2. Indeed, the quarreled article 13 transfers the appointing authority of the president of these programme companies to the President of the Republic.
Until then, this appointing authority had returned to the High Council of Audiovisual Affairs acting as an independent administrative authority. By disposing this body to the executive branch, the law directly contradicts your jurisprudence as expressed in 1989 and reiterated in 2000.
It is therefore a step back in terms of constitutional requirements.
It is in vain that the Government will attempt to claim that the new system is surrounded by guarantees of a nature equivalent to those deleted.
For, unless the words lose their meaning, the executive power cannot be assimilated to an organization whose statutory independence, particularly in respect of the same executive power, is its constituent originality, guaranteed by the Constitution under the same freedom of communication.
Most importantly, by seeking to avoid censorship through the introduction of a guaranteed alibi, the legislator has committed another unconstitutionality which he cannot extract.
I-3. Indeed, the fact that the CSA's opinion, issued on the nomination proposal, is another constitutional problem, as it implies that the ordinary law directly violates the fifth paragraph of Article 13 of the Constitution, which states:
" An organic law determines the jobs or functions, other than those mentioned in the third paragraph, for which, because of their importance for the guarantee of rights and freedoms or the economic and social life of the Nation, the power of appointment of the President of the Republic shall be exercised after public notice of the competent permanent commission of each assembly ".
In this regard, the single article of the organic law before you, moreover, provides that the appointment to employment of President of France Télévisions is subject to the procedure of the fifth paragraph of Article 13 of the Constitution.
It follows that by giving the CSA a power to expressly limit the exercise of the power of the President of the Republic from the Constitution, the law under attack is clearly unconstitutional.
For, under the fifth paragraph of Article 13 of the Constitution referred to above, it is only up to the competent permanent commission of each assembly to make an opinion on the jobs determined by an organic law.
However, it is certain that the ordinary law cannot, for its part, limit the exercise of a power of the President of the Republic beyond what the Constitution has expressly provided for. And it is acquired that the CSA is not among the public authorities or authorities referred to in Article 13 of the Constitution as having jurisdiction to limit the exercise of the presidential power of appointment.
In order to establish the CSA as a limit to the constitutional power of which it is concerned, this possibility should be introduced in Article 13 of the Constitution.
Under these conditions, section 13 of the law is emptied by some end that is taken:
- the opinion of the CSA does not bind the President of the Republic, and it is a serious step backwards with regard to the principle of pluralism and freedom of communication as guaranteed by the Constitution and the Declaration of Human Rights of 1789;
either the opinion of the CSA binds the President, and then it is a provision that clearly violates Article 13 of the Constitution in its fifth paragraph.
The inevitable censorship of power thus granted to the CSA will result in the removal of a guarantee that has been enacted – according to parliamentary work – for freedom of communication and the principle of pluralism. Thus, the invalidation of the word: in accordance with Article 8 necessarily leads to the censorship of the whole mechanism for the appointment of the president of France Télévisions.
For the operative part of Article 13 on the appointment is indeed a set of inseparable provisions forming an indivisible whole. And leaving in force in the law only a simple power of opinion for the benefit of the CSA would inevitably result in depriving of any guarantee of the constitutional requirements drawn from Article 11 of the Declaration of 1789 and Articles 4 and 34 of the Constitution. It would be contrary to the Government's stated intention that, by introducing this concept of compliant opinion, had attempted to avoid censorship for lack of equivalent guarantees.
Of all these leaders, censorship is inevitable.
II. ― On Article 14 of the Law
This section amends section 47-5 of Act No. 86-1067 of 30 September 1986 and provides for the revocation mechanism of the presidents of the program companies, as is the case in section 13 previously criticized.
The same grievances are developed against him by the authors of the referral.
The same causes that produce the same effects, censorship is therefore inevitable.
The purpose of this article amending section 53 of Act No. 86-1067 of 30 September 1986 is to remove the broadcast of advertising messages on public service channels.
This provision is, however, devoid of normative scope, unlike appearances, and therefore precludes censorship in relation to your jurisprudence on the quality of the law, including the reasoning followed in your decision of 22 April 2005 (Decision No. 2005-521 DC).
Indeed, in this case, it turns out that, during the parliamentary space shuttle on the review of the bill before you today, and even before the Senate has to know this text, the board of directors of France Télévisions decided, on the injunction of the Government, to take a clean management act ending the broadcast of advertising on air. It follows that paragraph VI of Article 28 criticized has lost any object even before being examined by the Senate and before being voted definitively.
Therefore, it must be considered that this provision in the law did not fall within the legislative or regulatory sphere. The circumstance that the governing body of a public or private enterprise may make a decision of this nature, including with the benefit of the vote of government officials, leads to the conclusion that it was a simple decision to manage the company and not a matter of law or regulation.
It is certain that this provision was therefore not necessary for the legislator to exercise its jurisdiction or even useful to satisfy the objective of intelligibility of the law.
If it were to be considered, however, that the criticized provision had a normative value and was either the law under section 34, or the autonomous or derivative regulatory power, then the decision of the board of directors of France Télévisions would be in breach of a blatant illegality since adopted at a time when the new law abolishing the advertisement had not yet been passed. But the authors of the referral do not want to imagine that the Government has injuncted a public company's governing body to knowingly violate the law in disregard of the rights of Parliament, and especially those of the Senate.
From this leader, the censorship is running.
This provision creates a new tax on services provided by electronic communications operators based on the amount of subscriptions and other amounts paid by users to the said operators, but excluding the amounts paid for the distribution or transport of audiovisual communication services.
This is one of the ways chosen by the Government to compensate for the loss of revenue suffered by public channels as a result of the deletion of advertising messages.
It is important to admit that this article violates the principle of equality before tax and Article 13 of the 1789 Declaration.
IV-1. On the principle of equality before tax.
You consistently believe that the principle of equality before tax and public expense requires that specific taxation be based on objective and rational criteria in relation to a general interest objective.
This is how you censored a tax to combat the greenhouse effect (called ecotax) as long as, on the one hand, it was less heavily affected by companies that had contributed more to the release of carbon dioxide and, on the other hand, subject to companies whose activity did not actually contribute to the ecological problem that the new tax intended to limit (Decision No. 2000-441 DC of 28 December 2000see article 37 then invalidated).
In the present case, it is clear that the criticized tax strikes companies whose main activity is foreign to the problem of the public service of the audiovisual, to its financing and, if one has to focus on the very specific objective at the origin of this provision, to the suppression of advertising on public service channels.
IV-1. 1. Indeed, electronic communication operators are not actors in the audiovisual industry and their economic model is not, if not marginally, based on advertising revenues.
It is evident from the fact that the legislator himself planned that the new tax base would be based on revenues derived from subscriptions paid by the users of the services offered by the said electronic communication operators.At no time, advertising revenues are included in this tax plate. There is therefore a paradox of wanting to finance the losses of France Televisions related to the suppression of advertising by the taxation of economic actors who do not derive their revenues from such advertising or from audiovisual production or broadcasting.
If there is a need to be more convinced, it is sufficient to note that the legislator himself has provided that this tax plate is excluded " the amounts paid for the broadcasting or transport services of audiovisual communication ".
In other words, the only share of activity, even marginal, that has a connection with the object of the law is excluded from the tax base. It is to show the unrational character of this imposition.
Either, therefore, it is indeed a matter of compensating France Télévisions' lack of profits because of the deletion of the broadcast of advertising messages, and the electronic communications operators are then not concerned at any particular capacity.
Either it's about hitting the increase in turnover that would result from a reorientation of the advertising market after its spread on France Télévisions. But in this case, electronic communications operators are not more concerned because their economic model is based — and the law itself recognizes it by determining the tax base — on subscriptions and consumption, and in no way on advertising revenues or only marginally. This would be all the less acceptable because, moreover, it would reach these operators, but not, for example, an American actor whose economic model is exclusively based on advertising revenues collected through the sponsored links appearing through his Internet search engine and which, in France in particular, represents almost 90% of market shares alone!
The quarreled tax is not based on any objective or rational criteria and is therefore constitutive of a breach of equality of citizens before public charges.
IV-1. 2. In addition, the plate as defined generates a second break of equality before the public charges (see your above-mentioned decision of 28 December 2000 on the ecotax) based on the turnover of the operators.
However, everyone knows that revenue is not representative of contributory capacity. Some businesses can achieve a significant turnover but only generate a modest profitable result, while others, whose turnover is lower, can be more profitable and have a substantially higher contribution capacity.
Even more, there is no indication that the turnover concerned is that related to advertising revenues. Criterion that could have made sense in relation to the subject matter of the law. Certainly, as already demonstrated, this criterion was not available to the extent that these operators do not earn the majority of their revenues from the advertising market, but subscriptions from their users for foreign activities, most often on television. Therefore, it is inferred that the taxation of revenue without precise and objective criteria constitutes discrimination against the purpose of the law.
As a result, after the breach of equality between the subservients and others, here is a new breach of equality within the subservients themselves, since they would not be struck by their capacity but because of their turnover.
IV-2. On the absence of an assignment of this tax.
By not affecting the new tax, the legislator reinforces the violation of the principle of equality. For, it must be noted, that the tax thus created is paid to the general budget of the State and is in no way affected by the object itself which underlies it.
Indeed, the Organic Law for Financial Laws provides in a limited manner, and especially in its articles 2 and 21, the possibilities of assigning certain revenues to certain expenses. None of these possibilities are used here, either in the 2009 Finance Bill. It is all the more important to be astonished that, as a result, no identified general interest can be invoked, other than that of financing public expenses by a specified private sector.
In this case, since no assignments have been made, operators will be subject in an abnormal and special way without the revenues of this tax benefiting the public service of television.
Under these conditions, the legislator creates flagrant discrimination and does not put the State in a position to guarantee the perennial financing of France Télévisions.
Of all these leaders, censorship is running.
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We ask you to believe, Mr.President, ladies and gentlemen, the members of the Council, in the expression of our high consideration.
