Key Benefits:
RELATING TO ORGANIZATION AND REGULATION OF RAIL AND OTHER TRANSPORT PROVISIONS
Mr President of the Constitutional Council, ladies and gentlemen the members of the Constitutional Council, we have the honour to refer to you, in accordance with the second paragraph of Article 61 of the Constitution, the law on the organization and regulation of railway transport and bearing various provisions on transport, and in particular its Article 5.
Introductory title:
By criticizing the provisions of this Article 5, introduced by a government amendment tabled four days before the reading before the National Assembly, the authors of the referral call on the Constitutional Council to exercise all its vigilance with respect to a text of law which, initially and at the stage of the bill examined in emergency proceedings before the Senate, had for the purpose the organization and regulation of railway transport and which ultimately includes more national provisions, to the extent
In accordance with your jurisprudence regarding provisions that are not related to the text filed or transmitted, the provisions of this Article 5 should be invalidated, which constitutes a "legislative rider".
I. ― Non-compliance with section 5 provisions
the principle of free administration of local authorities
1. Provisions relating to the mastery of "divided" work between the Ile-de-France Transport Union (STIF) and the Autonomous Régie des transports parisiens (RATP)
The current rules applicable in Ile-de-France regarding the control of the work of the investment operations relating to the transport of passengers give competence to the STIF, either to ensure directly and fully this mastery of work, or to designate the owner(s) of the various operations.
However, Article 5 of the Act amends these rules by providing for a new drafting of the last paragraph of Article 1 of Order No. 59-151 of 7 January 1959 on the organization of passenger transport in Ile-de-France.
This new paragraph provides for a mandatory "divided" mastery regime between the STIF and the RATP with respect to operations, not decided on January 1, 2010, "with the aim of the direct, dependent or accessories modifications of the existing lines, structures or installations on the same date".
As part of this "divided" project, the STIF will ensure the feasibility and timeliness of the transaction, determine its location, program and forecast financial envelope, and ensure its funding. For its part, the PRTR will choose the process whereby infrastructure and equipment will be carried out or acquired, will ensure or ensure mastery of work and will enter into contracts for the study and execution of work. For each operation, a convention between the STIF and the RATP will specify the organizational conditions of this division of master's work.
This mandatory division of control of work between STIF and RATP ignores the principle of free administration of local authorities. Indeed, as long as the STIF (local public establishment) is the owner, depriving him of the ability to choose the process of realizing the infrastructure or of acquiring the equipment (choice between the different possible contractual modes) and the responsibility for contracting carries an excessive breach both to the decision-making capacity and to the freedom of action of the STIF and, therefore, to the free administration of this local public institution, No other principle of constitutional scope has justified this breach of the free administration of the STIF in the matter of mastery of work.
There is no precedent in the mandatory divisional legislation of the workmaster's duties between two distinct legal entities in which the legal person decides on the operation and to ensure its financing (the owner of the work) is deprived of the possibility (i) to determine the process at which the operation will be conducted and (ii) to pass the contracts related to that operation. Such a division is certainly contrary to the principle of free administration of local authorities as long as the local public institution, the owner, is amputed, without any justification, of the responsibility to pass the legal acts allowing the execution of the operation. In this case, the circumstance that a convention is provided between the STIF and the RATP does not in any way mitigate the serious breaches of the above-mentioned constitutional principles to which this article leads.
For these reasons, this part of Article 5 should be invalidated.
2. Provisions relating to free transfer
elements of the STIF domain for the benefit of the RATP
Section 5 provides that the ownership of all the constituent properties of the metro and RER infrastructure, which will be managed by the RATP (see infra), will be transferred from STIF to the RATP on 1 January 2010, free of charge.
However, this transfer of property without compensation has the effect of depriving the STIF of a significant part of the resources and means necessary for the exercise of its competence as a transport organization in Ile-de-France.
Thus, by impeding the normal exercise of the competence of this local public institution, these provisions also affect the principle of free administration of local authorities.
For these reasons, this part of Article 5 should be invalidated.
3. Financing arrangements
STIF des missions de la RATP
A lArticle 2 of Order No. 59-151 of 7 January 1959 relating to the organization of passenger transport in Ile-de-France, section 5 of the Act provides a funding mechanism by the STIF of the infrastructure manager missions conferred on the RATP.
To this end, a multi-year agreement between the STIF and the RATP is expected to be passed, which "determines objectively and transparently the structure and distribution of costs, takes into account the infrastructure renewal obligations and ensures appropriate compensation for the capital involved".
The financing of a State public institution by a local public institution is, in principle, critical to the constitutional obligations related to the free administration of local authorities. In this case, this financial transfer organized by law is, in a certain way, contrary to the Constitution because of the fact that it puts the STIF in charge of potentially very important financing, without common measure with its means, and whose bases are not clearly defined (cf. infra).
In this case, the very high degree of uncertainty as to the level of actual funding that the STIF will have to provide to the RATP is contrary to the Constitution as it reveals, inter alia, that the legislator has not ascertained that the level of funding would be consistent with the STIF's exercise of the tasks entrusted to it by law.
Thus, and in particular, the principle of "appropriate remuneration of committed capital" is particularly vague and, depending on the basis and method of calculating such remuneration, it is likely that STIF will be required to make substantial funding to the PGR. As long as the burden on STIF, as a result of these provisions, is likely to jeopardize the very ability of STIF to carry out the other tasks conferred on it by law, these provisions undermine the principle of free administration of local authorities.
Finally, Article 5 provides that the provisions in question will be subject to an enforcement order. This provision, far from compensating the insufficient precision of the drafting of this article, stresses it. Indeed, the legislator has not exhausted its jurisdiction by not accurately determining the conditions and limits under which funding could be charged to the STIF for the benefit of the RATP. By not exhausting its jurisdiction on this point, the legislature has further aggravated the unconstitutionality resulting from the breach of the principle of free administration of local authorities, since it leaves the Government with the care to set rules that are, however, only within its own competence under the Constitution.
For these reasons, this part of Article 5 should be invalidated.
II. - On the non-compliance of the provisions of Article 5 with the constitutional principles governing the ownership of local authorities
1. Provisions relating to the mastery of work
"divided" between STIF and RATP
The provisions of Article 5 analysed above operating a division within the MOU between STIF and RATP are not only non-compliant with the principle of free administration of local authorities, as demonstrated above, they also violate the applicable constitutional value principles in respect of ownership.
Indeed, the master of work is the one for which the work will be built, that is, its owner. In this case, by depriving the owner of the possibility of passing the legal acts permitting the execution of the operation, the legislative provision in question deprives the owner of the possibility of exercising an indivisible prerogative from the exercise of the right of property, whether it is private property or public property.
The STIF, a master of work, cannot thus be constitutionally deprived of the legal possibility to pass the acts enabling the realization of the work which it finances and which it belongs to it.
For these reasons, this part of Article 5 should be invalidated.
2. Provisions relating to free transfer
elements of the STIF domain for the benefit of the RATP
The above-mentioned provisions by which there is a free transfer of certain equipment belonging to the STIF to the benefit of the RATP are also critical to the principles governing the protection of public property.
It should be noted that the Constitutional Council has found that the provisions of Article 17 of the Declaration of Human and Citizen Rights relating to property rights apply not only to private property but also to the public domain of the State and other public persons. The Constitutional Council recalled this principle in several decisions, including that of 26 June 2003 relating to the law enabling the Government to simplify the law (n° 2003-473 DC): "(considering that it appears from the parliamentary work) that (this authorization) does not allow the Government to deprive of legal guarantees the constitutional requirements that relate to the protection of the public domain; that these requirements reside in particular in the existence and the that, under these conditions, section 34 of the referred law is not contrary to section 38 of the Constitution."
The Constitutional Council ruled that the public domain "would not be permanently encumbered with real rights without appropriate consideration in view of the real value of this heritage and the public service missions to which it is assigned" (Decision No. 94-346 DC of 21 July 1994).
As a result, the Constitution does not allow a local public institution to be deprived, for the benefit of a public institution of the State, of a very substantial part of its heritage, which is nevertheless necessary for the exercise of the tasks entrusted to it by law, without benefiting from a fair and prior compensation corresponding to the value of this heritage.
For these reasons, this part of Article 5 should be invalidated.
III. - On unknowledge, by the provisions
Article 5, the principle of clarity and accessibility of the law
Section 5 of the Act provides a funding mechanism by the STIF of the infrastructure manager missions conferred on the ATPP (see above). The reference to "appropriate compensation for capital incurred" is particularly vague insofar as it is not specified either the nature of the capital involved or what to be heard by an appropriate level of remuneration.
In fact, these provisions do not specify whether the capital in question is only those that will be provided by the ATPP for the exercise of its infrastructure manager's duties as of the coming into force of the Act or whether the capital that is targeted includes all of the current capital assets of the ATPP on its balance sheet. Depending on whether any of these two interpretations is retained, the financial burden on the STIF under the Act is very different.
The imprecision of the STIF charges and their method of determination ignores the principle of clarity and accessibility of the law.
The imprecision of the drafting of this provision is such that it is impossible, when reading the law, to determine with precision and certainty the obligations of the STIF. This is a tangible sign of what the legislator has not established a sufficiently precise and clear standard to be applied in conditions consistent with its intentions.
In this regard, the circumstance that a decree of application of these provisions is provided is not likely to purge the breach of this constitutional principle as long as it is the sole legislator to provide for the obligations of local authorities and their public institutions.
For these reasons, this part of Article 5 should be invalidated.
IV. - On unknowledge, by the provisions
of Article 5, the principle of equality
Section 5 of the Act entrusts RATP not only to the ownership of infrastructure, but also to a mission as the infrastructure manager of the metro network assigned to the urban public transport of passengers and RER lines of which it operates (see above).
In such a legal context, it seems difficult to conceivably that an operator, such as the RATP, retains the ownership of certain lines, or even all of the metro's infrastructure and manages them, while the operation has been entrusted, at the end of the transitional period during which the contracts under way may continue, to another transport operator on the basis of a competition procedure organized by the STIF.
This situation would imply that the RATP "leases" to its competitor the buildings necessary for the operation of the works, on non-discriminatory conditions, i.e. the same conditions as the RATP would rebuke them internally to its service in charge of the operation of the works. It would then be up to the PRTR to value the infrastructure in the same way as it itself ensures the operation of the works or makes them available to third parties. Not only is it illusory to imagine such a device, but, moreover, the products of the rental of some of these infrastructures could allow the PRTR to make proposals particularly advantageous for other works, challenging the principle of effective, fair and transparent competition for the award of public service contracts.
As a result, such a device that provides that the historical operator of the railway lines becomes the sole owner and the sole manager of facilities that will be indispensable to candidates in the course of the procurement of public service contracts infringes the principle of equality and this especially since the provisions of section 5 do not provide for the obligation of the PRTR to hold accounts dissociated by activity (management of the infrastructure
The law therefore places the PRTR, a public institution beneficiary of the provision in question, in a legal situation such that the constitutional principle of equality cannot be respected between this public institution and its competitors in the context of the application of this legislative regime.
For these reasons, this part of Article 5 should be invalidated.
We ask you, Mr. President, ladies and gentlemen, to accept the expression of our high consideration.
