Key Benefits:
The Government has provided defence observations on the appeal against the Audiovisual Communication Act and the new audiovisual public service.
These observations call for the following brief remarks.
The Government's argument does not actually respond to the referral grievances and leaves for the least perplexed.
I-1. Certainly, as the authors of the referral had pointed out themselves, the legislator can modify a device that encapsulates the exercise of fundamental freedom. so, and only if, it maintains equivalent guarantees in relation to constitutional requirements.
The ordinary legislator, therefore, attempted to avoid censorship because of a change in the powers of the CSA and a reduction in constitutional guarantees that pluralism must benefit. To achieve this, it was obliged, at the cost of a complex construction and perhaps without seeing it, to restrict the meaning and scope of the constructionArticle 13 of the Constitution.
However, it is not possible for the ordinary law to amend a provision of a constitutional nature unless you wish by your decision to change the nature of our Constitution and challenge the very principle of hierarchy of norms.
The Government's desperate attempt to claim that the criticized system results from the conciliation between two constitutional norms, thearticle 11 of the Declaration of 1789 and Article 13 of the Constitution, of course, cannot convince.
For, if not, it would be necessary to admit against the text of the Constitution that whenever a constitutional norm is concerned, the ordinary legislator could amend a specific constitutional power of the President and, a fortiori, of the Government and limit its scope and exercise, or even more broadly, change the overall balance of powers. It is an interesting hypothesis but of a nature to empty the principle of the separation of powers of its substance.
Admitting this reasoning would lead, after changing the nature of our Constitution, to modify the very nature of the regime and to radically transform our institutional system.
This is obviously a fictional scenario that is foreign to the will of the legislator who, more simply, committed a major constitutional error.
Again and in any case, Article 13, paragraph 5, of the Constitution merely refers to the law to determine the competent permanent parliamentary committees according to the jobs or functions concerned, but in no way does it allow the ordinary law to add an authority other than these permanent parliamentary committees among the bodies holding a co-decision power over the exercise of a power of the President of the Republic.
Even more so, as the parliamentary committees do not have such a co-decision power. By providing the CSA with a compliant advisory competence, the legislator would go further than the grantor went for the Standing Committees of Parliament.
Once this unconstitutionality is found, it is then necessary to admit that the scope of the CSA's opinion can only be that of a simple opinion. But then, its role as a guarantor of pluralism will be reduced to a congruous portion and the conditions of its intervention will no longer be considered equivalent to the meaning of your jurisprudence.
I-2. Aware of the unconstitutionality in this regard, it is in vain that the Government tries to present the intervention of the parliamentary standing committees as such an equivalent alternative guarantee.
Indeed, Article 13 of the Constitution states that "e power of appointment of the President of the Republic shall be exercised after public notice of the competent permanent commission of each assembly. The President of the Republic cannot make an appointment when the addition of the negative votes in each commission represents at least three fifths of the votes cast in the two commissions. "
He only infers, on the one hand , the Commissions seized render in principle a simple opinion and that, on the other hand , the contrary opinion preventing such appointment could only be obtainedby majority of the 3 / 5th of the votes cast in the two commissions. That is to say, and no one can contest it because such was the proponent's claimed intention, that the contrary opinion hypothesis – a sort of negative compliant opinion – is likely to intervene only in constitutionally and politically marginal assumptions.
In fact, parliamentary work such as the Balladur Committee's report shows that the intervention of the commissions has, mainly, to promote transparency of the appointment process but not to establish a co-decision procedure.
I-3. At this point, it should be emphasized that the principle of pluralism could not be guaranteed by the intervention of permanent parliamentary committees whose composition is political in nature and established at the proportion of political groups. Thus, it cannot be considered that their simple opinion taken by a political majority is constitutionally equivalent to the decision-making role of an independent administrative authority.
We'll want proof of your recent decision of 8 January 2009 DC no. 2008-573 by which you judged " the commission provided by theArticle 25 of the Constitution is responsible for ensuring respect for the principle of equality before suffrage; that it is, by the will of the grantor, status of independence that, if the delimitation of constituencies for the election of members or the modification of the distribution of seats of members or senators participate in the democratic life of the Nation, the guarantee of independence and the rules of incompatibility provided by theArticle L. 567-3 of the Electoral Code to ensure that political parties or groups are directly or indirectly represented in the commission that, therefore, the grievance drawn from the fact that the composition of the commission would ignore the third paragraph of article 4 of the Constitution must be dismissed. ".
Of course, this is a separate procedure from the one currently considered. But it does, however, concern the principle of pluralism taken in another of its dimensions and it deviates from your reasoning that is incompatible with the guarantee of independence of an authority responsible for overseeing pluralism, the circumstance of having representatives of political parties or groups sit in it.
A parliamentary committee whose composition is, by construction, political, since emanating from parliamentary groups, cannot, in fact, be considered more independent in the sense of your most recent jurisprudence on pluralism.
In these circumstances, it would clearly be contrary to your jurisprudence and to the guarantees due to the constitutional requirements of pluralism to consider as equivalent to the protective mechanism that existed until then a mechanism whose reality would ultimately be: a decision of the President of the Republic under his sole initiative taken after simple advice of the CSA (after inevitable censorship of the conformity of that opinion) and simple advice of the relevant standing parliamentary commissions.
The censorship that will intervene as a result of the absence of equivalent guarantees for the principle of pluralism will not pose any difficulties in this regard, since the role of the CSA will be maintained in the current state of law.
For all these reasons, articles 13 and 14 must be invalidated.
The Government claims that the suppression of advertising is a matter of law as to its principle as long as the suppression or creation of a public audiovisual resource is an element of the independence of this type of media within the meaning ofArticle 34 of the Constitution (page 6 of the Government ' s observations).
This reasoning is interesting and the authors of the referral see another vice of unconstitutionality resulting from the negative incompetence of the legislator and therefore from the violation of article 34 of the Constitution.
Indeed, if, as the Government supports, the creation or suppression of advertising resources falls within the scope of the law under guarantees of independence of public media, then it is important that the law also determines the alternative resources that guarantee this independent status of public audiovisual.
However, in the same writings, the Government takes care to hammer out that this has not been the case and that no recipes have been allocated to public audiovisual.
Thus, his defence of section 33 of the law is built on the idea that the taxes voted under the quarrelled law are taxation of any nature having " for only purpose to contribute to the financing of the general budget of the State ". To be certain to be well understood, he adds further: " And, whatever the statements, strictly political in scope, pronounced before Parliament, the tax that it introduces is, in law, a simple recipe from the state budget. " (p. 9 of the defence observations). And if that wasn't enough, he insists that he " is true that no principle of national law forbids the legislator to make the choice of assigning this tax to France Télévisions. But no constitutional principle, nor the provisions of the Organic Law on Financial Laws, required it to do so. "(p. 11 of the defence observations). We understand that he didn't.
In other words, and given the reasoning of the Government, it follows that the suppression of advertising on the waves of the audio-visual public service falls within the sphere of the law as it is an element of the independence of the public media within the meaning of Article 34 of the Constitution, but that the taxes established in the law suppressing such advertising are not affected by the public audiovisual system.
In these circumstances, it must be deduced that the legislator, by suppressing public service advertising resources without providing for alternative financing to guarantee the independence of the same public audiovisual service, has not exhausted the competence it draws from Article 34 of the Constitution.
This particularly serious negative incompetence, as long as the independence of the public audiovisual service and therefore the principle of pluralism are involved, can only lead to the censorship of section 28 of the law.
As we have seen, the Government argues that the tax established on the turnover of electronic communication operators is an imposition of any kind, therefore not affected. That, therefore, the class of subject-matters is defined sufficiently accurately and that your jurisprudence on incentive taxation does not have to apply in this case.
This argument is absolutely not convincing as it twists the neck to the very principle of equality of all before the public charges asserted by thearticle 13 of the Declaration of 1789.
III-1. First of all, it should be recalled that your jurisprudence, based on the strongest republican principles, consistently considers that the difference in treatment cannot in any case be arbitrary. Your assumption of principle that we must recall at this moment is unambiguous:
" The principle of equality is not opposed to the fact that the legislator rules differently from different situations, nor does it derogate from equality for reasons of general interest, provided that, in both cases, the difference in treatment resulting from it is in relation to the subject matter of the law that establishes it . "
This principle has received multiple tax applications, including when taxation of all kinds is involved.
However, in this case, it is difficult to understand how this tax is directly related to the subject matter of the law since the Government is stiff to explain to us that it is not intended to finance the public service of the audiovisual but the general budget of the State.
Therefore, we do not see why electronic communication operators would be taxed rather than another category of companies or another industrial sector. What is the basis of this tax? To this question the Government seems to answer: the abundant general budget of the State. But this is not a constitutionally satisfactory answer.
If this is the reality, the respect for Article 13 of the 1789 Declaration requires that the common contribution be distributed among all citizens because of their ability.
Of two things one: or this imposition of any kind is indeed unrelated to the subject matter of the law and there is no objective reason to tax this sector rather than another except to subject the tax to the reign of the arbitrator; or, it is implicitly intended to be affected but then it was necessary to establish other precise objective and rational criteria to subject companies that make advertising their main or even exclusive revenue source.
In any case, the case law has never admitted that an imposition of any kind could arbitrarily strike a class of taxpayers.
Contrary to what the Government claims, this would be absolutely unprecedented. No taxation presents both the characteristics of the latter, which strikes legal persons, limitedly designated unrelated to the object of the text and the continuation of the exclusively budgetary purpose that betrays the absence of a claimed assignment.
In this regard, decision 84-184 DC of 29 December 1984 Not relevant. First of all, was at stake a very large sector of the economy – that of the entire financial institutions – while here only the operators of an incomparablely less important and smaller sector are concerned. Then, the tax in question was about a portion of the general expenses of the companies concerned, which they were also entitled to reduce, and not on the bulk of their turnover. I mean, last paragraph of article 21 of Act No. 84-1208 of 29 December 1984 For 1985, there was a special plan for deficit companies, totally absent here. In addition to these notable differences, this precedent is too old, doubtful and isolated to be probative.
As for the other decisions cited, it was intended to ensure, and not certainly to break, real equality between incomes of different types (83-164), or tended to provide tax benefits to amounts that could justify them (97-388, 99-416), without, in any of these cases, the discretionary strike of the taxpayers chosen themselves in a discretionary manner.
III-2. Secondly, the tax base is subject to the same adjudicator's grievance.
Because nothing is more false than asserting that revenue is " a representative criterion of the contributive capacity of an economic actor ".
Many specialized operators, although making a turnover significantly greater than 5 million euros, remain structurally deficit and will remain so for several years, so that, with regard to them in particular, there is a non-existent contribution capacity or, at the very least, insufficient.
For all these reasons, section 33 must be invalid.
By these and other reasons to deduce or even supple, the applicants persist in their appeal.
We ask you to believe, Mr President, ladies and gentlemen, the members of the Constitutional Council, in the expression of our high consideration.
