Key Benefits:
LOI ORGANIZANT LA CONCOMITANCE DES RENOUVELLEMENTS
GENERAL AND REGIONAL COUNCILS
Mr. President, ladies and gentlemen the councillors,
We have the honour to submit to your examination, in accordance with the second paragraph of Article 61 of the Constitution, the law organizing the renewals of the General Councils and Regional Councils as it was definitively adopted on January 26, 2010.
This project consists of two articles: Article 1 aims to reduce the term of office of the General Councillors elected in 2011 from six to three years. Article 2 also provides for a reduction in the terms of reference of the regional advisers and members of the Assembly of Corsica, to be elected for four years instead of six.
A priori anodin, this project is part of the prospect of a comprehensive reform of the territorial authorities, which is aimed at the creation of territorial advisers; to be replaced by the General and Regional Advisers. By cutting this reform of the territorial authorities into four tranches, the Government did not allow Parliament to exercise its constitutional competence in full knowledge.
The project is fundamentally affected by this overall inconsistency that affects its constitutionality both on the procedure and on the merits. Modifying the organization of the elections, this project will not fail to generate greater vigilance on your part.
On the procedure:
The draft that is now referred to you has been adopted in accordance with a procedure contrary to the Constitution. It is subject to censorship under the following constitutional requirements: an infringement characterized by the principle of the sovereignty of parliamentary assemblies and a lack of understanding of the need for clarity and sincerity of parliamentary debates.
1. A breach characterized by the principle
of the Parliamentary Assembly
The combination of the renewal of regional and general advisers in 2014 is the result and not the cause of the creation of territorial advisers. However, the deliberate choice of the Government to reverse parliamentary deliberation has necessarily led to depriving Parliament of the fullness of its legislative authority under articles 34 and 72 of the Constitution.
The draft submitted to your control could be qualified during the debates of the "crushing project", since its adoption has meaning only in relation to the bills that are being examined by the parliamentary assemblies or whose examination has not yet begun in Parliament. The modification of the electoral calendar leads in these conditions to bind legislators for the future in disregard of the principle of sovereignty of parliamentary assemblies.
The sovereignty of the parliamentary assemblies would have been fully respected if the Government had chosen to allow the representatives of the nation to vote the concomitance of the two elections concerned within the framework of a single project clearly defining the status, competence and voting mode of the territorial council. Such an approach would have enabled members of Parliament and senators to be informed of the scope of the text submitted to them. Criticism is based not only on the existence of alternatives but mainly on the fact that the option chosen by the legislator is in the midst of unconstitutionality. There is no justification for the dissociation of the three ordinary bills if it is perhaps the Government's dolosive intention.
Impact study submitted by the Government in accordance with theArticle 8 of Organic Law No. 2009-403 of 15 April 2009 is in this respect revealing. The impact of each of these projects being, under these conditions, absolutely impossible to assess, the Government has chosen to present a single impact study for three ordinary bills: the draft law on the election of territorial advisers and the strengthening of local democracy, the bill organizing the concomitance of renewals of general councils and regional councils, and the draft organic law on the election of members of the councils of local authorities and
However, this impact study does not meet the conditions established by the same organic law, which, using unambiguously in its article 8 the singular, requires the Government to submit an impact study for each bill.
You will be able to see that this project is a clear violation of the principle of the sovereignty of the parliamentary assemblies and thus undermines your censorship.
2. Unrecognition of clarity requirements
and sincerity of parliamentary debates
Once again, the unreported use of the voting reserve and the vote blocked by the Government has contributed to a clear violation of the requirements for the clarity and sincerity of parliamentary debates. It is important to note that the Government uses these means, not by necessity, but by convenience, allowing the majority members to dispense from being present in public session. In these circumstances, the notion of a meeting referred to in articles 26, 28, 33, 42, 44, 47-1, 48 and 51 of the Constitution is predicated on any substance. The parliamentary debate is also simply prevented in disregard of the requirements for clarity and sincerity of the debates. This project, which constitutes the first act of a territorial reform as important as a questionable one, was examined by a majority deserted assembly. The Speaker of the National Assembly has publicly regretted this devaluation of the Parliament in which you have the opportunity to react as a judge of the legislative procedure and therefore constitutional requirements attached to the parliamentary debate.
On the bottom:
This project, on the merits, undermines the censorship of several titles. It is enough to convince oneself to recall the terms of your case law regarding the modification of the electoral calendar. You have, on many occasions, recalled that it was lawful for the legislature, competent under Article 34 of the Constitution, to make such amendments "subject to compliance with the provisions and principles of constitutional value" (including your decision No. 94-341 DC). Three requirements are clear from your jurisprudence: first, the legislator's decision must be motivated by the pursuit of an objective; Secondly, the modification of the schedule should not be disproportionate to that objective and must therefore be "exceptional and limited"; Thirdly, it must not create "confusion in the mind of electors with other electoral consultations." You will be able to see that these requirements are not respected by the project currently under your control and thus censor this law on the basis of stable principles and clearly established by your jurisprudence.
1. The hypothetical character of the objective
prosecuted by the legislator
It is permissible for the legislator to justify a change in the calendar by pursuing various objectives: a desire to fight against electoral abstentionism (decision 90-280 DC), a desire to prevent difficulties in the implementation of the presidential election organization related to its proximity to the municipal elections (decision 94-341 DC). The quality of general interest must also be characterized when the law is likely to affect a principle of constitutional value.
If it appears that you greatly appreciate the notion of objective, it results from your jurisprudence that it must, at the very least, take a reality.
However, in the present case, this objective is summed up, excluding any other, to the creation of the territorial councillor. The explanation of the reasons for the bill tabled in the Senate is in this respect explicit: "The Territorial Community Reform Bill provides that, in the future, the General Councils and Regional Councillors will form a single set of elected representatives, the Territorial Councillors, serving both on the General Council of their election department and on the Regional Council of the region to which it belongs. The coming into force of this reform, scheduled for March 2014, requires that at that date be organized the election of all of these elected officials, so that the terms of reference of all General Councillors and Regional Councillors end simultaneously. You can see that the objective pursued by the legislature is linked to the possible adoption of other bills. As parliamentary assemblies are sovereign, no one can now prejudge the content of texts that are not yet voted. There is no guarantee that the other two texts, announced as being to be completed, will be voted by Parliament. True to your past jurisprudence (especially your decision 82-142 DC; "the legislator cannot bind himself"), so you will have no choice but to rigorously limit your control of the text voted by the parliamentary assemblies and thus find that the objective of this modification of the calendar is purely hypothetical and cannot meet the constitutional requirements of which you are the guardian.
At a minimum, the law should have included a final article stating that it would only come into effect on the date of promulgation of the territorial community reform and the election of territorial advisers. In the absence of this, in fact, all kinds of circumstances could fail the government project, or amend the substance, in which case the law that is referred to you would lose its object itself. To this, it could be objected that Parliament, if any, could still repeal it before it comes into effect, in a final provision of the project on the reform of the territorial authorities or that on the election of the territorial advisers. But this would presume that the latter were adopted. If, on the contrary, they were repelled, or declared contrary to the Constitution, it would then follow that the present law should apply without it being consistent with a necessity, or even with the actual intention of Parliament itself in this hypothesis. Thus, in order not to have taken the basic precaution of deferring its entry into force to that of future laws that alone justify it, the present law is contrary to the Constitution.
Finally, such a fragmentation of the development of the law is in a way that makes it particularly sensitive to the exercise of your constitutional control, since it is up to you to ensure that "the terms used by law do not [so] manifestly inappropriate" to the objectives it pursues (including your decisions No. 94-341 DC and No. 2001-444 DC). Indeed, this text that defines one of the modalities of territorial reform being separated from those, to come, that will define the objectives and other means of this same reform, your control of the adequacy is mechanically circumcised since it is impossible to appreciate the proportionality of the means in relation to the purposes pursued by the legislator. This control of the internal coherence of the law, however, remains essential, since it "has protected from the risk (...) of a change by pure caprice of the duration of elective mandates" (Jérôme Roux, Revue du droit public, 2001). This is one of the fundamental aspects of your jurisprudence in this field, which is neutralized, especially since this change in the electoral calendar is unprecedented.
2. The unprecedented extent of this change
electoral calendar
On several occasions, you have justified the constitutionality of the changes in the electoral calendar by advancing the "exceptional and limited" character of such changes (including your decisions 90-280 DC, 93-331 DC, 94-341 DC, 2001-444 DC).
In 1994, your jurisdiction justified in these terms the constitutionality of the modification of the electoral calendar: "that this extension and consequently the reduction of the term of office of the municipal councillors to be elected has been limited to three months and is of an exceptional character" (decision 94-341 DC). An author of authority explained your compliance decision: "It is not so much the existence of a difference of situation between municipal councillors or the prosecution by the legislator of a general purpose, but above all the fact that the contested measure has been limited to three months and has an exceptional character..." (Ferdinand Mélin-Soucramanien, Dalloz, 1995).
In 2002, the organic law extended the mandate of the 11-week members. In 1990, section 9 of the Act extends the mandate of the general advisors of the series renewed in 1985. In 1988, the law extended the term of office of advisers. This bill provides for an amendment to the unprecedented and uncommon schedule with those you have had the opportunity to appreciate the constitutionality: this is a reduction in the terms of reference of the two-year and three-year regional advisers for the general advisers. Given its magnitude, the general interest of the objective will have to be characterized.
Finally, if you feel that the constitutional requirement to exercise the right to vote on a regular basis (decision No. 90-280 DC in particular) does not apply to the reductions in terms of terms of office, you will be able to see that this project affects the conditions for the exercise of the mandate of the elected officials concerned. Indeed, by reducing in such a proportion the term of office of the General and Regional Councillors, the text referred to you is a direct and substantial violation of the principle of free administration of the territorial authorities, since the elected officials concerned will therefore see their wide range of action and decisions.
3. A change of schedule creating "confusion in the minds of electors with other electoral consultations"
Until now, and with one exception, the changes in the electoral calendar were intended to avoid duplication of election deadlines or too much proximity between them. Thus, the Constitutional Council could see that these laws prevented confusion in the minds of electors.
Conversely, the amendment of the electoral calendar introduced by this project aims to ensure the concomitance of the cantonal and regional elections. Indeed, if the constitutional judge cannot judge the law against those that may be adopted, he will find that the effect of this law will be to create confusion between those elections whose elections will be held on the same date.
There is certainly a precedent with Act No. 90-1103 which organized the concomitance of the cantonal and regional elections. Examining this text, you recognized that the duality of application was " likely to influence the free choice of electors affected by each consultation" (Decision No. 90-280 DC). But you were then able to see that the legislator was pursuing a clearly identifiable objective of "to promote greater participation of the electoral body in each of these consultations." The breach of a constitutional principle was thus the result of "the very purpose of the law, which, finding its justification in order to reduce the number of abstentionists, thus presents a general interest" (F. Luchaire, Revue du droit public, 1991). However, this is not the case in this case so it is true that if, by extraordinary, you recognize the existence of the objective pursued by the legislator, you will find that the creation of the territorial adviser is not of those that can be described as a general interest but rather of those whose constitutionality can be doubted. You have also and above all recalled in this same decision that "the elections to the general councils and the elections to the regional councils are separate elections" and that the choice of consolidating these two consultations must be accompanied by "material modalities of organisation intended to avoid confusion in the mind of the electors". You can see that this is obviously not the case in this case since the effect of the law will reduce the confusion of these two election dates. Worse, in 2014, will also be held municipal elections probably at a close date or even in common with that envisaged for territorial advisers.
The legislator clearly ignores the meaning of the jurisprudence of the Constitutional Council since "the principle of clarity of the electoral consultation is confirmed as a component of the right to vote" (André Roux, Dalloz, 1995).
For all of these reasons, the members of Parliament who are signatories to this case wish that the Constitutional Council would like to fully censor this bill.
