Key Benefits:
The Constitutional Council was seized on 23 April 2010 by the Council of State (Decision No. 323830 of 23 April 2010), under the conditions provided for in Article 61-1 of the Constitution, of a priority question of constitutionality asked by Mr. Alain C. and concerning the conformity of the rights and freedoms guaranteed by the Constitution in paragraph IV of Article 137 of Law No. 2008-1443 of 30 December 2008 of the Corrigendum for 2008.
It was also seized on 2 June 2010 by the Council of State (Decision No. 326444 of 2 June 2010), under the same conditions, of a priority question of constitutionality asked by the Association of Civil and Military Pensioners in New Caledonia and concerning the conformity of the rights and freedoms guaranteed by the Constitution in paragraph III of Article 137 of the same Law,
The Constitutional Council,
Considering the Constitution;
See?Order No. 58-1067 of 7 November 1958 amended Act on the Constitutional Council
Considering the amended Organic Law No. 99-209 of 19 March 1999 on New Caledonia;
In view of the amended Organic Law No. 2001-692 of 1 August 2001 on Financial Laws;
Given the Civil and Military Pension Code;
Considering the Code of Military Disability Pensions and War Victims;
Vu la Act No. 83-676 of 26 July 1983 approving a tax treaty with the territory of New Caledonia and dependencies, together with Constitutional Council decision No. 83-160 DC of 19 July 1983;
Vu la Act No. 2008-1443 of 30 December 2008 for 2008;
Having regard to the Regulation of 4 February 2010 on the procedure before the Constitutional Council on priority constitutional issues;
Having regard to the observations made by the President of the National Assembly, recorded on 12 May 2010;
Considering the comments made by the Prime Minister, recorded on 17 May 2010;
Considering the reply comments made by Mr. C., recorded on 19 May 2010;
Considering the observations made by the applicant association, registered on 16 June 2010;
Considering the comments made by the Prime Minister, recorded on 17 June 2010;
Considering the new observations made by Mr. C., recorded on 24 June 2010;
Considering the new observations produced by the applicant association, registered on 24 and 28 June 2010;
Considering the parts produced and attached to the files;
The case was called to the public hearing on 12 July 2010;
The rapporteur was heard,
1. Considering that these priority questions of constitutionality should be added to decide by a single decision;
2. Considering that Article 137 of the above-mentioned Act of 30 December 2008 amends the temporary pension allowance scheme for pensioners who hold a civil or military pension of the State residing in La Réunion, Mayotte, Saint-Pierre-et-Miquelon, Wallis and Futuna, French Polynesia or New Caledonia;
3. Considering that pursuant to Article 137, paragraph III: "The amount of temporary allowances awarded as of January 1, 2009 is equal to the amount fixed on the date of first payment of the allowance and cannot exceed an annual amount defined by decree according to the residential community. This ceiling decreases under conditions provided by decree. He became null as of January 1, 2028.
"When the temporary allowance is awarded over the course of the year, the limits set out in the previous paragraph are calculated on a pro rata basis for the effective duration of the award of the temporary allowance over the year.
"Temporary allowances granted to pensioners under 1° of the II shall be entitled to reversion to the benefit of the surviving spouse subject to the respect by the surviving spouse of the condition of residential effectiveness set out in I.
"Temporary allowances granted to pensioners under b of 1° of II shall be entitled to reversion to the benefit of the surviving spouse subject to the condition of residence in the territory of the community under which the temporary allowance has been granted";
4. Considering that paragraph IV of the same article 137 states: "The amount of temporary allowances awarded before 1 January 2009 shall be credited to the value in payment as at 31 December 2008 and shall not exceed an annual amount defined by decree according to the community of residence. The portion of temporary allowances exceeding the ceiling is phased out each year to reach the annual amount for the year 2018.
"Temporary allowances granted to pensioners under this IV shall be entitled to reversion to the benefit of the surviving spouse subject to the fulfilment by the surviving spouse of the condition of residential effectiveness set out in I";
5. Considering that, according to the applicants, these provisions would have been adopted in an irregular manner, ignore the objective of intelligibility and accessibility of the law, would not be compatible with the international commitments of France, would not respect the tax convention between the State and New Caledonia and would undermine the guarantee of rights and the principle of equality;
On the procedure for the adoption of the contested provisions:
6. Considering that the appellants argue that the disputed provisions did not have their place in a finance law whose scope is defined by the above-mentioned organic law of 1 August 2001; that they consider that the amendment to which they were issued should have been declared inadmissible by the Government; that they further argue that they were not submitted, before their adoption, to the opinion of the Council of State or to that of the Constitutions 77
7. Considering that the grievance arising from the lack of knowledge of the adoption procedure of a law cannot be invoked in support of a priority issue of constitutionality on the basis of Article 61-1 of the Constitution;
On the objective of intelligibility and accessibility of the law:
8. Considering that the appellants argue that the disputed provisions have not been codified in the Civil and Military Pension Code; that they argue that they are intelligible as they relate to the revalorization of temporary retirement allowance;
9. Considering that, if the objective of constitutional value of the intelligibility and accessibility of the law, which stems from articles 4, 5, 6 and 16 of the Declaration of Human and Citizen Rights of 1789, requires the legislator to adopt sufficiently precise provisions and unequivocal formulas, its lack of knowledge can, in itself, be invoked in support of a priority constitutionality issue 6
On the international commitments of France:
10. Considering that, according to the applicants, the contested provisions would be contrary to the rights and freedoms guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms;
11. Considering that a grievance arising from the lack of compatibility of a legislative provision with the international commitments of France cannot be viewed as a grievance of unconstitutionality; that, as a result, it does not belong to the Constitutional Council, seized under Article 61-1 of the Constitution, to examine the compatibility of the disputed provisions with the international commitments of France; that consideration of such a grievance falls within the competence of the administrative and judicial courts;
On the tax treaty between the State and New-
Calédonie:
12. Considering that the appellants consider that the disputed provisions ignore Article 17 of the tax treaty between France and New Caledonia, which would be an international commitment of France;
13. Considering that, as the Constitutional Council ruled in its decision of 19 July 1983 referred to above, this convention proceeds from the application of rules of pure domestic law; that it has no constitutional value; that, as a result, his lack of knowledge cannot be invoked in the context of a priority issue of constitutionality;
On the guarantee of rights:
14. Considering that pursuant to Article 16 of the 1789 Declaration: "Every society in which the guarantee of rights is not guaranteed, nor the separation of powers determined, has no Constitution."
15. Considering, on the one hand, that it is at any time lawful to the legislator, ruling in the field of its jurisdiction, to amend or repeal previous texts by substituting, where appropriate, other provisions; in doing so, however, he could not deprive of legal guarantees of constitutional requirements; in particular, he would ignore the guarantee of the rights proclaimed by Article 16 of the Declaration of 1789 if he had in the legally acquired situations an infringement that was not justified by an adequate general interest;
16. Considering, as well, that, if the legislator can retroactively amend a rule of law or validate an administrative act or private law, it is on the condition of pursuing an objective of sufficient general interest and of complying with both the decisions of justice that have force of thing deemed to be that the principle of non-retroactivity of penalties and sanctions; that in addition, the amended or validated act shall not ignore any rule or principle of constitutional value, that the scope of the modification or validation must be strictly defined;
17. Considering that the caption and crestment of the temporary pension allowance established by paragraphs III and IV of Article 137 of the Act of 30 December 2008 do not affect the amount of the civil or military pension; that they only relate to an accessory of that pension, variable according to the place of residence of the pensioner; that they have entered into force only as of 1 January 2009
On the principle of equality:
18. Considering that Article 6 of the Declaration of 1789 provides that the law "must be the same for all, either that it protects, or that it punishes"; that the principle of equality does not oppose or that the legislator rules differently from different situations, or that it derogates from equality for reasons of general interest, provided that, in both cases, the difference of
19. Considering, in the first place, that the holders of the civil and military pensions of the State, who have made the choice to come to settle in the territory of the communities eligible for the temporary pension allowance, to return to it or to stay there after their overseas services, are in a different situation than that of the officials of the State who are liable to reside in their duty station; that, in addition, the legislator was able to consider, without misunderstood the principle of equality, that, if there is a general interest in encouraging metropolitan officials to serve overseas, the maintenance or arrival of retired officials was no longer such interest;
20. Considering, secondly, that the purpose of military disability pensions and war victims is to repair damage suffered by military personnel, civilian war victims or victims of terrorist acts; that, therefore, the legislator could, without misunderstood the principle of equality, maintain for the holders of such pensions a benefit that it has abolished or restricted for civil and military pension holders;
21. Considering, in the third place, that under article 21 of the above-mentioned organic law of 19 March 1999 on the basis of article 77 of the Constitution, the State is competent in the public service of the State; that under article 22 of the same organic law, New Caledonia is competent in the public service of New Caledonia; that, as a result, the grievance arising from the breach of equality between retired officials of the State residing in New Caledonia and those of the territorial public service of New Caledonia must be dismissed;
22. Considering that it follows that the disputed provisions are not contrary to the principle of equality;
23. Considering that paragraphs III and IV of Article 137 of the Law of 30 December 2008 are not contrary to any other right or freedom guaranteed by the Constitution,
Decides:
Paragraphs III and IV of Article 137 of Law No. 2008-1443 of 30 December 2008 of the corrigendum for 2008 are in conformity with the Constitution.
This decision will be published in the Official Journal of the French Republic and notified under the conditions set out in thesection 23-11 of the above-mentioned order of 7 November 1958.
Deliberated by the Constitutional Council in its session on 22 July 2010, where were: Mr. Jean-Louis DEBRÉ, President, Mr. Jacques BARROT, Guy CANIVET, Renaud DENOIX de SAINT MARC, Ms. Jacqueline de GUILLENCHMIDT, Mr. Hubert HAENEL and Pierre STEINMETZ.
The president,
Jean-Louis Debré
