Key Benefits:
(HARKIS COMMITTEE AND VÉRITÉ)
The Constitutional Council was entered on 25 November 2010 by the Council of State (Decision No 342957 of 24 November 2010), under the conditions laid down in Article 61-1 of the Constitution, a priority question of constitutionality put forward by the Harkis Committee and Truth, relating to the conformity with the rights and freedoms guaranteed by the Constitution:
-fromArticle 9 of Law No. 87-549 of 16 July 1987 on the settlement of compensation for returnees;
-de Articleof Act No. 94-488 of 11 June 1994 on members of the former members of the alternate and assimilated formations Or victims of captivity in Algeria;
-fromArticle 47 of Law No. 99-1173 of 30 December 1999 of amending finance for 1999;
-de l' section 67 of Law No. 2002-1576 of December 30, 2002 of amending finance for 2002;
-des Articles 6, 7 and 9 of Law No. 2005-158 of February 23, 2005 on the recognition of the Nation and national contribution to the French repatriated.
The Constitutional Council,
In view of the Constitution;
Seen underOrder No. 58-1067 of 7 November 1958 as amended by the Organic Law on the Council Constitutional;
Seen Law n ° 87-549 dated 16 July 1987 on the settlement of compensation for returnees;
Given the law N ° 94-488 of 11 June 1994 on repatriated former members of alternate and assimilated or victims of captivity in Algeria;
Seen under Act No. 99-1173 of 30 December 1999 of amending finance For 1999;
Due to Act No. 2002-1576 of December 30, 2002 of amending finance for 2002;
Seen Law n ° 2005-158 of 23 February 2005 on the recognition of the nation and national contribution to the French returnees;
In view of the regulation of 4 February 2010 on the Procedure before the Constitutional Council on priority constitutionality issues;
Seen Observations produced by the Harkis and Truth Committee, recorded on December 20, 2010, January 4, 2011, and February 1, 2011;
Due to the corrected observations filed by the Prime Minister, recorded on December 20, 2010;
Seen the exhibits Filed and attached to the file;
Me Jean-Emmanuel Nunes, lawyer at the Paris Bar, for the applicant and Mr Xavier Pottier, appointed by the Prime Minister, having been heard at the public hearing on 25 January 2011;
The rapporteur having been Heard;
1. Considering that according to the terms of article 9 of Law No. 87-549 of 16 July 1987 mentioned above : An allowance of 60 000 F is paid, at a rate of 25 000 F in 1989 and 1990, and from 10 000 F in 1991, to the former harkis, Mughaznis and staff of the various auxiliary formations who have served in Algeria, who have retained French nationality in Application of Article 2 of Order No. 62-825 of 21 July 1962 concerning certain provisions concerning French nationality, taken pursuant to Act No. 62-421 of 13 April 1962 , which set their home in France.
" In the event of death, the allowance shall be paid under the same conditions to the surviving
. In the absence of a surviving spouse, the allowance shall be paid equally to the children when they have French nationality and have fixed their domicile in France
The deadline for applying for the allocation under this Article shall be 31 December 1997." ;
2. Considering that according to the terms of Article 2 of Law No. 94-488 of 11 June 1994 above : A supplementary flat-rate allowance of 110 000 F shall be paid to each of the beneficiaries of the provisions of the first subparagraph of Article 9 of Act No. 87-549 of 16 July 1987 on the settlement of compensation for returnees if it meets the requirements of this paragraph on the date of entry into force of this
. In the event of the death of the person concerned, the supplementary flat-rate allowance shall be paid to the surviving spouse fulfilling the nationality and residence requirements of the Href=" /viewTexteArticle.do?cidTexte=JORFTEXT000000508818&idArticle=LEGIARTI000006657000&dateTexte= &categorieLink = cid"> first paragraph of Article 9 of Law No. 87-549 dated 16 July 1987 on the date of entry into force of this Law. Where the person concerned has entered into several marriages, the supplementary flat-rate allowance shall be divided equally between the surviving spouse and the former spouse or former spouses who meet the above conditions unless they are divorced Remarried.
" If one of the spouses or former spouses has died or does not meet those conditions, the allowance to which he may have been entitled shall be divided equally between the children born of his or her union with the person concerned, if they have French nationality And have fixed their domicile in the territory of a Member State of the European Union on the date of entry into force of this Law " ;
3. Considering that the terms of Article 47 of Act No. 99-1173 of 30 December 1999, above : I.-Indexed recognition allowance on the annual average rate of change in the consumption prices of all non-reversible non-tobacco households, under age conditions, is hereby established, effective 1 January 1999, in favour of the Persons designated by the first paragraph of Article 2 of Act No. 94-488 of 11 June 1994 on former returnees Members of the alternate and assimilated or victims of the Captivity in Algeria.
" The allocation conditions and the amount of this pension are defined by decree.
" I bis. -Indexed recognition allowance on the annual average rate of change in consumer prices for all households (excluding tobacco) is paid, under conditions of age, to non-remarried spouses or former spouses of persons Referred to in the first paragraph of Article 2 of Law No 94-488 of 11 June 1994 referred to above and fulfilling the conditions of Nationality as defined to section 9 of Law No. 87-549 of 16 July 1987 on the settlement of compensation for returnees. This provision shall enter into force on 1 January 2001. The conditions of allocation and the amount of this pension shall be defined by decree " ;
4. Considering that the terms of Article 67 of Law No. 2002-1576 of 30 December 2002, above : I.-I and I bis of Article 47 of the amending finance law for 1999 (No. 99-1173 of 30 December 1999), the words: "life annuity are replaced by the words:" Indexed recognition allowance on the annual average rate of change Consumer prices for all households (excluding tobacco) and words: "under age and resource conditions are replaced by the words:" under age.
" II. -The 4 ° of Article 81 of the General Tax Code is thus
: 1 ° Its provisions are a a;
" 2 ° It is supplemented by a b thus written:
" (b) The recognition allowance provided for in the I and I bis of Article 47 of the amending finance law for 1999 (No. 99-1173 of 30 December 1999) in favour of the persons designated to the first paragraph of Article 2 of Law No. 94-488 of 11 June 1994 on former members of the alternate training And assimilated or victims of captivity in Algeria and their surviving spouses or ex-spouses not Remarried.
" III. -The provisions of the I come into force on January 1, 2003. The provisions of II shall apply for the taxation of income received as from 1 January 2003." ;
5. Considering that the terms of Article 6 of Act No. 2005-158 of 23 February 2005, above : I.-The beneficiaries of the recognition allowance referred to in Article 67 of the amending finance law for 2002 (No 2002-1576 of 30 December 2002) may
: -for the maintenance of the recognition allowance with an annual rate of € 2,800 as from 1 January 2005;
" -for the maintenance of the recognition allowance at the rate in force on 1 January 2004 and the payment of a capital of EUR 20 000;
' -for the payment, instead of the recognition allowance, of a capital of EUR 30 000.
' In the case of an option for the payment of capital, the recognition allowance is served at the rate in effect on January 1, 2004, until such capital is paid. As a conservatory, pending the exercise of the right of option, the allowance is paid at the same rate.
" In the event of death, on the date of entry into force of this Law, of the former substitute or assimilated and of his surviving spouses or former spouses when they fulfilled the conditions laid down by the Href=" /viewTexteArticle.do?cidTexte=JORFTEXT000000184000&idArticle=LEGIARTI000006658140&dateTexte= &categorieLink = cid"> section 2 of Act No. 94-488 of June 11, 1994 on former members of the alternate and assimilated formations, or Victims of captivity in Algeria, an allowance of EUR 20 000 is allocated equally between the children From their union if they have French nationality and have fixed their domicile in France or in a State of the European Community as of 1 January 2004
The persons recognised as pupils of the Nation, orphans of father and mother, of French nationality and having fixed their domicile in France or in a State of the European Community on 1 January 2004, one of whose parents served in the capacity of Harki or a member of a substitute training, not referred to in the preceding paragraph, shall be entitled to an allowance of EUR 20 000, distributed equally between the children of the same
. The arrangements for the application of this Article, and in particular the time limit for exercising the option and the schedule of payments taking into account the age of the beneficiaries, shall be fixed by decree in the Council of
. II. -The capital allowances paid under the I are elusive and do not show the character of income for the tax base recovered for the benefit of the State or the public authorities' ;
6. Considering that the terms of Article 7 of the aforementioned Law of 23 February , which alters the conditions for the allocation of Housing-specific aid: I.-In Articles 7, 8 and 9 of Act No. 94-488 of 11 June 1994 on former members of the former members of the auxiliary training and the victims of captivity in Algeria, the date: "31 December 2004 is replaced by the date:" 31 December 2009.
" II. -The second paragraph of Article 7 of the Act is replaced by two sub-paragraphs thus written:
" This aid shall be allocated to the aforementioned persons intended to become owners in personal or personal name with their children, provided that they co-exist with the children in the acquired property.
" It is cumulative with any other form of assistance provided by the code of construction and housing.
" III. -In the first paragraph of Article 9 of the same Law, the words: "carried out before 1 January 1994 shall be replaced by the words:" prior to January 1, 2005;
7. Considering that under Article 9 of the same Law of 23 February 2005: By way of derogation from the conditions laid down for the benefit of the recognition allowance and the housing-specific aid referred to in Articles 6 and 7, the Minister responsible for returnees shall accord the benefits of such aid to the former harkis and members Auxiliary training which has been used in Algeria or their widows, returnees, aged 60 and over, who may justify a continuous residence in France or in another Member State of the European Community since 10 January 1973 and who Acquired French nationality before January 1, 1995.
" This request for exemption shall be made within one year of the publication of the decree implementing this Article " ;
8. Considering that, according to the applicant, those provisions, which make the award of allowances and annuities specific to the abovementioned housing subject to conditions of residence and nationality, infringe the principle Equality guaranteed by Article 6 of the 1789 Declaration on Human and Citizens' Rights;
9. Considering, on the one hand, that under Article 6 of the 1789 Declaration, the Law " Must be the same for all, either protecting or punishing " ; that the principle of equality does not preclude the legislator from dealing with different situations in different ways, nor that it derogates from equality for reasons of public interest, provided that, in either case, the difference in The resulting treatment is directly related to the purpose of the law that establishes it;
10. Whereas, by establishing the abovementioned allowances and annuities specific to the abovementioned housing in favour of the former harkis and members of the auxiliary formations who have served in Algeria and who have fixed their domicile in France or in Another state of the European Union, the legislator decided to take account of the charges brought about by their departure from Algeria and their resettlement in a state of the European Union; that, in order to do so, it was able, without disregarding the principle of equality, Establish a residency requirement that is directly related to the purpose of the Act; However, it could not, without regard to the same principle, establish, in the light of the subject-matter of the law, a difference according to nationality; that, as a consequence, it must be declared contrary to the rights and freedoms guaranteed by the
: In the first paragraph of Article 9 of the aforementioned Law of 16 July 1987, the words: Who have retained French nationality pursuant to Article 2 of Order No. 62-825 of 21 July 1962 on certain provisions concerning French nationality, taken pursuant to Law n ° 62-421 of April 13, 1962 and " ;
-in the penultimate paragraph of the same article, the words: " Have French nationality and that they " ;
-in the last paragraph of Article 2 of the said Act of June 11, 1994, the words: " Have French nationality and " ;
-in paragraph I bis of Article 47 of the aforementioned Act of 30 December 1999, the words: And fulfilling the conditions of nationality as defined inArticle 9 of Law No. 87-549 of 16 July 1987 Settlement of the compensation of returnees " ;
-in the sixth paragraph of Article 6 of the aforementioned Law of February 23, 2005, the words: " Have French nationality and " ;
-in the seventh paragraph of the same article, the words: " Of French nationality and " ;
-in section 9 of the Act, the words: " And who acquired French nationality before January 1, 1995 " ;
11. Considering that the other contested provisions are contrary neither to the principle of equality nor to any other right or freedom that the Constitution guarantees;
12. Considering that under the second paragraph of Article 62 of the Constitution: A provision declared unconstitutional on the basis of Article 61-1 shall be repealed from the publication of the decision of the Constitutional Council or a later date fixed by that decision. The Constitutional Council shall determine the conditions and limits in which the effects of the disposition may be called into question." ; that this declaration of unconstitutionality takes effect from the date of publication of this Decision; that it may be invoked in proceedings in progress on that date and the outcome of which depends on the application of the provisions declared Unconstitutional,
Decides:
This declaration of unconstitutionality takes effect as of The publication of this Decision in accordance with the conditions laid down in its recital 12.
The following provisions are declared to be in conformity with the Constitution:
-other provisions of Article 9 of Law No. 87-549 of 16 July 1987 on the settlement of compensation Returnees;
-the other provisions of article 2 of Act No. 94-488 of 11 June 1994 on former returnees Members of the alternate training and Assimilated or victims of captivity in Algeria;
-the other provisions of Article 47 of Law No. 99-1173 of 30 December 1999 of amending finance for 1999;
Article 67 of Law No. 2002-1576 of 30 December 2002 2002 amending finance;
-others provisions of Articles 6, 7 and 9 of Law No. 2005-158 of 23 February 2005 on the recognition of the Nation and national contribution in French repatriated.
This decision shall be published in the Official Journal of the French Republic and notified under the conditions set out in The Order of 7 November 1958.
Issued by the Constitutional Council at its meeting on 3 February 2011, attended by Mr Jean-Louis DEBRÉ, President, Mr Jacques BARROT, Mrs Claire BAZY MALAURIE, MM. Guy CANIVET, Michel CHARASSE, Renaud DENOIX de SAINT MARC, Hubert HAENEL and Pierre STEINMETZ.
The President,
Jean-Louis Debré
