Referral To The Constitutional Council Dated February 9, 2009 Presented By At Least Sixty Members, Pursuant To Article 61, Paragraph 2, Of The Constitution, And Referred In Decision N ° 2009-577 Dc

Original Language Title: Saisine du Conseil constitutionnel en date du 9 février 2009 présentée par au moins soixante députés, en application de l'article 61, alinéa 2, de la Constitution, et visée dans la décision n° 2009-577 DC

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JORF n ° 0056 March 7, 2009 page 4342 text no. 6 referral of the Constitutional Council dated February 9, 2009 by at least sixty members, in accordance with article 61, paragraph 2, of the Constitution, and referred to in decision n ° 2009-577 DC NOR: CSCL0903346X ELI: not available Act relating to the audiovisual COMMUNICATION and the new SERVICE PUBLIC DE LA TELEVISION we have the honour to refer you in accordance with the second paragraph of article 61 of the Constitution, the whole of the law on audiovisual communication and the new public service television.
I. ― on article 8 of the law this article amending article 47-4 of Act No. 86-1067 of 30 September 1986 amended the terms of appointment of the Chairmen of corporations, France Télévisions, Radio France and company in charge of the audiovisual outside of the France.
I-1. The criticised provision violates the freedom of communication guaranteed under article 11 of the Declaration of the rights of man and of the Citzen of 1789 and the principle of pluralism that you built in condition even of democracy. In this regard, and consequently, it violates therefore paragraph 3 of article 4 States that the law guarantees pluralist expressions of opinions and article 34 of the Constitution providing that "the law lays down the rules concerning freedom, pluralism and independence of the media". Being understood that these provisions are the result of the constitutional law of July 23, 2008.
If regard freedom of communication and expression, and the principle of pluralism, and before even the constitutional law of 23 July 2008 register it expressis verbis in our basic law, you constantly judged "that pluralism in socio-cultural currents of expression is in itself an objective of constitutional value; that respect for pluralism is one of the conditions of democracy; the free communication of thoughts and opinions, guaranteed by article 11 of the Declaration of rights of man and of the citizen of 1789, would be not effective if the public are means of audiovisual communication was not able to have, both within the public sector than in the private sector, programs that guarantee the expression of trends of different characters in the respect of the imperative for honesty of information; ultimately, the goal to achieve is that listeners and viewers who are among the key recipients of freedom proclaimed by article 11 of the Declaration of 1789 are able to exercise their free choice although neither private nor public authorities cannot substitute their own decisions, or it can be the objects of a market "(decision No. 86-217 DC of 18 September 1986).
Pulling all the consequences of this recital in principle, you have therefore considered that, in order to ensure the independence of national programme companies responsible for the design and the sound broadcasting or television programming and thus contribute to the implementation of the freedom of communication proclaimed by article 11 of the Declaration of the rights of man and of the citizen Act No. 86-1067 of 30 September 1986 provides that the presidents of these companies are appointed, for a period of three years, by an independent administrative authority (decision No. 89-259 DC's July 26, 1989).
Decision that you have yet confirmed by considering that "the Conseil supérieur de l'audiovisuel is an authority administrative independent guarantee of the exercise of the freedom of communication;" in order to ensure the independence of national programme companies responsible for the design and the sound broadcasting or television programming and thus contribute to the implementation of the freedom of communication proclaimed by article 11 of the Declaration of the rights of man and of the citizen of 1789, sections 47-1 and 47-3 of the Act of 30 September 1986 have presidents of the said companies are named , for a period of five years, by this authority "(decision No. 2000-433 DC of 27 July 2000).
In other words, your settled and clear principle that the appointment of the president of France Télévisions by an independent administrative authority constitutes a guarantee of the independence of public service broadcasting and therefore freedom of communication and of the principle of pluralism. You have thus established a direct and indissoluble link between the appointment procedure by an independent authority of political power and the rights to the constitutional requirements that are here in the heart of democracy.
It is clear that the Constitution Act, July 23, 2008, by registering the pluralism and independence of the media in our basic law, has strengthened this reasoning.
It would therefore be to the less paradoxical law reneges on a provision implementing these constitutional principles and objectives derived from the Declaration of 1789 at the time where they make their entry in the body of the Constitution itself to increase the scope concrete just as much as the symbolic force.
The founding Covenant of our democracy as much as the spirit of the constituent of 2008 would be so spectacularly denied.
However the impugned provision violates so seriously these constitutional principles and provision.
I-2. Indeed, article 8 disputed transfers the power of appointment of the president of such companies from program to the President of the Republic.
Until then this power of appointment was returning to the Conseil supérieur de l'audiovisuel acting as independent administrative authority. In depriving this body for the benefit of the Executive power, the act directly contradicts your such jurisprudence as expressed in 1989 and repeated in 2000.
It is therefore a setback against constitutional requirements.
Vain is that the Government will try to claim that the new device is surrounded by guarantees equivalent to those deleted in nature.
Because, except that the words lose their meaning, the Executive cannot be equated to an organization whose statutory independence, and particularly with respect to the same executive power, is constitutive originality, guaranteed by the Constitution to the very title of the freedom of communication.
Above all, in seeking to avoid censorship by the introduction of an alibi masked as collateral, the legislature has committed other unconstitutionality which he cannot extricate himself. This is taken who believed so take!
I-3. Indeed, the fact that this opinion of the CSA is an assent poses another constitutional problem, because that implies that the ordinary law directly violates the fifth paragraph of article 13 of the Constitution with such as: "an organic law determines the jobs or functions, other than those referred to in the third paragraph, for which, because of their importance to 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 is exercised after public notice of the competent Standing Committee of each House. "In this regard, the sole article of the organic law which you before it also provides well that the appointment to the job of president of France Télévisions is subject to the procedure of the fifth paragraph of article 13 of the Constitution.
It follows giving the CSA power likely to expressly limit the exercise of own power that the President of the Republic derives from the Constitution, the impugned legislation is violently unconstitutional.
As to the title of the fifth paragraph of article 13 of the Constitution cited above, it belongs only to the competent Standing Committee of parliamentary assemblies to decide by a notice on the jobs determined by an organic law.
However, it is certain that the ordinary law may not, for its part, limit the exercise of an own power of the President of the Republic beyond what the Constitution specifically provided.
And it is accepted that the CSA is not among the authorities or public authority covered by article 13 of the Constitution as having jurisdiction to confine the exercise of presidential power of appointment.
To establish the CSA in the boundary of constitutional power in question, should be to introduce this possibility in article 13 of the Constitution.
In those circumstances, article 8 of the Act is vitiated by some end that should be: ― either the CSA notice is not binding on the President of the Republic, and it is down serious with regard to the principle of pluralism and freedom of communication as guaranteed by the Constitution and the Declaration of the rights of man of 1789;
― is the opinion of the CSA binds the President, and then it is a provision which clearly violates article 13 of the Constitution in its fifth preambular paragraph.
The inevitable censorship of the power thus granted to the CSA will result in delete consequently coverage enacted ― according to parliamentary work ― freedom of communication and the principle of pluralism. Therefore, the invalidation of the word: "compliant" in article 8 leads necessarily to the censorship of the whole of the mechanism for the appointment of the president of France Télévisions.

Since the operative part of article 8 concerning the appointment is well a set inseparable provisions forming an indivisible whole. And don't leave in effect act as a power of the simple opinion for the benefit of the CSA would inevitably lead to deprive any guarantee the constitutional requirements of article 11 of the Declaration of 1789 and articles 4 and 34 of the Constitution. Moreover, it would be contrary to the stated intention of the Government which, by introducing this notion of assent, had tried to avoid a censure for lack of equivalent guarantees. But the borrowed track was hopeless. At the end was the wall of unconstitutionality.
All these leaders, censorship is inevitable.
II. ― on article 9 of the Act this section amends section 47-5 of Act No. 86-1067 of 30 September 1986, which provides the mechanism of revocation of the presidents of the companies of program like what is organized by article 8 previously critical.
The same complaints are developed against him by authors of the referral.
The same causes produce the same effects, censorship is therefore inevitable.
III. ― on the VI, article 18 of law this article amending article 53 of Act No. 86-1067 of 30 September 1986 is designed to remove the dissemination of advertising messages on the public service channels.
This provision is however irrelevant normative scope contrary to appearances and is therefore liable to censorship under your jurisprudence relating to the quality of the Act, in particular the reasoning in your decision of 22 April 2005 (decision No. 2005-521 DC).
Indeed, in this case, it turns out that, during the parliamentary shuttle on the review of the Bill which you today before it, and before even that the Senate has to deal with this text, the Board of Directors of France Télévisions decided, at the behest of the Government, take a note of own management putting an end to the dissemination of advertising on the airwaves. It follows that paragraph VI of article 18 critical lost any object before even be considered by the Senate and before be voted on definitively.
Therefore, we must consider that this provision in the Act was neither legislative nor the regulatory field. The fact that the management body of a public or private undertaking could take a decision of this nature, including with the benefit of the vote by the representatives of the Government, leads to the conclusion that it was a simple decision by management of the undertaking and not a matter of law or regulation.
It is certain that this provision was therefore not necessary for the exercise by Parliament of its jurisdiction or even useful to satisfy the objective of intelligibility of the Act.
If one were to consider however that the criticized provision had a normative value and fell within either of the Act in respect of article 34 or regulatory power autonomous or derivative, then the decision of the Board of Directors of France Télévisions is vitiated by illegality flagrant as adopted at a time where the new law removing the advertising had not yet been passed. But the authors of the appeal do not want to imagine that the Government made an injunction to a management body of a public company to knowingly break the law disregard the rights of Parliament, and particularly those of the Senate.
This head, censorship is incurred.
IV. ― on section 21 of the Act, this provision creates a new tax on services provided by the operators of electronic communications based on the amount of the subscriptions and others are paid by users to such operators, but excluding the paid amounts to the benefit of diffusion or transport of audiovisual communication services.
It is, no one can ignore it, of one of the routes selected by the Government to offset the loss of revenue suffered by the public broadcasters of the fact of the suppression of the dissemination of advertising messages.
Force is to admit that this article violates the principle of equality before the tax and article 13 of the Declaration of 1789.
IV-1. On the principle of equality before the tax.
You constantly feel that the principle of equality before the tax and public charges requires that the establishment of specific charges is based on objective and rational criteria in relation to an objective of general interest.
So you have censored a tax intended to fight against the greenhouse effect (the so-called ecotax) since, on the one hand, it hit less heavily companies that had further contributed to the release of carbon dioxide and on the other hand, provided companies whose activity does not really helped the ecological problem that new tax intended to limit (decision No. 2000-441 DC of 28 December 2000 see article 37 then invalidated).
In this case, it is clear that criticized tax hitting companies whose main activity is foreign to the issue of the public service broadcasting, its financing and, if one should focus on the very specific purpose of this provision, the abolition of advertising on public service channels.
IV-1. 1. Indeed, the operators of electronic communication are not players in the audiovisual industry and their business model is not, otherwise marginally, on advertising revenue.
In reference to evidence the mere fact that Parliament has itself provided that the new tax base is based on revenues from subscriptions paid by users of the services offered by such electronic communication operators. At no time, advertising revenues are integrated into this tax base. There is a paradox to fund the removal of advertising France Télévisions losses by the taxation of economic actors who do not draw their income from the advertising production or audiovisual dissemination.
Need to be more convinced, simply noted that the legislature has itself provided that are excluded from this base of tax "them are paid to the benefit of diffusion or transport of audiovisual communication services".
In other words, the only part of activity, even marginal, that has a connection with the object of the Act is excluded from the tax base. It is showing the non-rational character of such taxation.
Either, so this is in fact to compensate shortfall France Télévisions due to suppression of the dissemination of advertising messages, and electronic communications operators are so concerned to any particular title.
Either it is hitting the increase in turnover resulting from a shift in the advertising market after its drying up on France Televisions. But in this case, the operators of electronic communications are not more concerned because their economic model is based — as well as the Act itself recognizes it in determining tax ― on subscriptions and consumption base and not on advertising revenues or only marginally. This device would be even less acceptable that, moreover, he reached these operators but not, for example, an actor whose economic model is exclusively based on the revenues collected through the sponsored links appearing through its internet search engine and which, in France particularly, alone accounts for almost 90% of market share!
The disputed tax is based on no objective or rational criterion and is therefore constitutive of a breach of equality of citizens before public burdens.
IV-1. 2. in addition, defined as base generates a second breach of equality before public burdens (see your decision of 28 December 2000 on the ecotax) using the turnover of operators.
However, everyone knows that turnover is not representative of the ability to pay. Some companies may achieve a significant turnover but not to produce only a modest beneficiary result, while others, whose turnover is lower, may prove more profitable and have a significantly greater contributory capacity.
Even more, nothing comes that concerned turnover is one related to advertising revenues. A test that could make sense of the purpose of the legislation. Of course, as already demonstrated, this criterion was not available where these operators do not draw the majority of their revenues in the advertising market, but subscriptions of their users for foreign activities, most often, on television. Therefore, it can be in inferred that the taxation of turnover without specific and objective criterion discriminates the purposes of the Act.
Accordingly, after the breakdown of equality between taxable persons and others, here is made a new rupture of equality within the subject themselves, since they would not hit at the rate of their ability but at the rate of turnover.
IV-2. On the absence of assignment of this tax.
In does not affect the new tax, the legislator reinforces the violation of the principle of equality. One is obliged to see that the resulting fee shall be paid to the general budget of the State and is in no way affected the very object that underlies.

Indeed, the organic law for the laws of Finance provides limited, and especially in its articles 2 and 21, opportunities of certain revenue expenditure. None of these possibilities are used here, nor in the draft finance law for 2009.the ' is all the more justified in surprise that, consequently, no general interest identified cannot be invoked, other than to finance public office by a sector of private activities.
In this case, no allocation having been operated, operators will be subject of abnormal and special way without that products of this tax benefit to the public service TV.
In these circumstances, the legislature creates a blatant discrimination and does not put the State in a position to ensure sustainable funding of France Télévisions.
This provision demonstrates beautifully the classical theory of the rifle to shoot in the corners. It is known to be always unconstitutional.
All these leaders, censorship is incurred.
We pray you to believe, Mr president, ladies and gentlemen Members of the Council, to the expression of our highest consideration.

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