Key Benefits:
(EURL DAVID RAMIREZ)
The Constitutional Council was entered on March 6 2012 by the Court of Cassation (Chamber of Commerce, Judgment No. 337 6 March 2012), under the conditions laid down in Article 61-1 of the Constitution, A priority question of constitutionality posed by the EURL David Ramirez on the conformity with the rights and freedoms guaranteed by the Constitution of Articles L. 722-6 to L. 722-16 and L. 724-1 to L. 724-6 of the Code of Commerce.
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 commerce code ;
Given the code of the court organization;
Given theOrder No. 58-1270 of 22 December 1958 on the Organic Law on the Status of the Judiciary;
Having regard to the Rules of Procedure of 4 February 2010 on the procedure followed before the Constitutional Council for priority questions of constitutionality;
Vu The observations submitted for the applicant company By Mr François Danglehant, lawyer at the Bar of Seine-Saint-Denis, registered on 12 April 2012;
In view of the observations made for SAS EUROLOC by Mr Jacques Lavergne, lawyer at the Toulouse Bar, registered on 5 April 2012;
Vu les Observations submitted by the Prime Minister, registered on 28 March 2012;
In view of the observations made in intervention for the Association General Conference of Consular Judges of Franceby Didier Le Prado, lawyer to the Council of State and The Court of Cassation, registered on 27 March 2012;
In view of the observations Produced in intervention for the SARL PHYSIK FIT, Mr Michel P. and Mr Charles S by François Danglehant, registered on 27 March and 12 April 2012;
In view of the observations made in intervention for Mr Charles S. by Bernard Kuchukian, Lawyer to the bar of Marseille, registered on 10 April 2012;
In view of the observations filed in intervention for the SARL PHYSIK FIT by Georges Berlioz, lawyer at the Paris Bar, registered on 12 April 2012;
Seen the documents produced and File attachments;
Me Danglehant, Me Le Prado, Me Berlioz, Me Kuchukian and M. Xavier Pottier, appointed by the Prime Minister, having been heard at the public hearing on 17 April 2012;
The rapporteur was heard;
1. Considering that the terms of article L. 722-6 of the trade code : Subject to the provisions relating to the additional elections provided for in the second paragraph of Article L. 723-11, the judges of the trade courts shall be elected for two years at their first election. They may, at the end of a first term of office, be re-elected for a period of four years, in the same court or in any other commercial court, without exceeding the maximum number of warrants provided for in Article L. 723-7
When the term of office of the judges of the Commercial Courts expires before the beginning of the period fixed for the installation of their successors, they shall remain in office until such time as this facility is installed, without such extension exceeding A period of three months." ;
2. Considering that under Article L. 722-7 of the same Code: " Before taking office, the judges of the trade courts take an
. The oath is as follows: I swear correctly and faithfully to perform my duties, to religiously keep the secret of the proceedings and to behave like a dignified and loyal judge.
" It shall be received by the Court of Appeal, where the Commercial Court is established at the seat of the Court of Appeal and, in other cases, by the High Court in the jurisdiction of which the Commercial Court has its seat. ' ;
3. Whereas under Article L. 722-8 of the same Code: The termination of the functions of a commercial court judge results in:
" 1 ° From the expiry of the electoral mandate, subject to the provisions of the second subparagraph of Article L. 722-6 and the third paragraph of Article L. 722-11;
" 2 ° The removal of the court;
" 3 ° resignation;
" 4 ° of forfeiture." ;
4. Whereas in the words of Article L. 722-9 of the Code: Where a procedure for the protection, reorganization or liquidation of a court is open in respect of a judge of a commercial court, the person concerned shall cease to perform his duties as from the date of the opening judgment. He is deemed to have resigned.
" The same provisions shall apply to a judge of the Commercial Court who has one of the qualities mentioned in the first paragraph of Article L. 713-3, where the company or the public institution to which it belongs is the subject of a procedure of Legal protection, reorganization or liquidation." ;
5. Whereas under Article L. 722-10 of the same Code: Where a court of high instance has been appointed under the conditions laid down in Article L. 722-4, the term of office of the judges of the Commercial Court shall not be interrupted during the period of divestment." ;
6. Whereas under Article L. 722-11 of the same Code: The President of the Commercial Court shall be chosen from among the judges of the Tribunal who have served in a Commercial Court for at least six years, subject to the provisions of Article L. 722-13.
" The president is elected for four years by secret ballot by the judges of the trade tribunal at a general assembly under the presidency of the outgoing president or, failing that, the oldest. The election is held by an absolute majority in the first two ballots and the majority in the third round. In the case of equality of votes in the third round, the candidate with the greatest seniority in the judicial functions shall be declared elected; in the case of equal seniority, the oldest shall be declared elected
The President shall remain in office until his successor is installed without such extension exceeding a period of three months." ;
7. Whereas in the words of Article L. 722-12 of the Code: Where, for any reason, the President of the Commercial Court ceases to be in office during his term of office, the new President shall be elected within three months for the remainder of the term of office of his predecessor
In the event of incapacity, the President shall be replaced by the judge appointed by the judge. In the absence of a designation or in the event of the incapacity of the designated judge, the President shall be replaced by the judge with the greatest seniority in the judicial functions. ' ;
8. Whereas, according to Article L. 722-13 of the Code: Where none of the candidates meets the seniority requirement to be the President of the Commercial Court, the first Chairman of the Court of Appeal, seized by the Attorney General's request, may decide, by order, that the seniority required Is not required." ;
9. Whereas in the words of Article L. 722-14 of the Code: Subject to the application of the provisions of Article L. 722-15, no person shall be appointed to perform the duties of a Judge Commissioner under the conditions laid down in Book VI if he has not exercised at least two years of judicial office In a trade tribunal.
" The President of the Commercial Court shall, at the beginning of each judicial year, make an order after the opinion of the General Assembly of the Court, the list of judges who may serve as Judge Commissioner." ;
10. Whereas, according to Article L. 722-15 of the Code: Where none of the judges of the Commercial Court meet the necessary conditions of seniority, either in the case of safeguard, reorganization or judicial liquidation, judicial settlement or liquidation of property, in accordance with The provisions of Article L. 722-2, that is, to preside over a formation of judgment under the conditions laid down in Article L. 722-3, or to fulfil the functions of the Judge Commissioner under the conditions laid down in Article L. 722-14, the first President of the Court of Appeal, seized by request of the Attorney General, may Decide, by order, that seniority is not required." ;
11. Whereas, according to Article L. 722-16 of the Code: The term of office of the elected judges of the commercial courts is free." ;
12. Whereas, according to Article L. 724-1 of the Code: Failure by a judge of a trade tribunal to honour, probity, dignity and duties is a disciplinary offense." ;
13. Whereas in the words of Article L. 724-2 of the Code: Disciplinary power is exercised by a National Disciplinary Commission, which is presided over by a President of the Chamber at the Court of Cassation, appointed by the first President of the Court of Cassation, which includes
1 ° A member of the Council of State designated by the Vice-President of the Council of State;
" 2 ° Two judges of the seat of the courts of appeal appointed by the first President of the Court of Cassation on a list drawn up by the first Presidents of the Courts of Appeal, each of them arresting the name of a judge of the seat of his Court of Appeal after Opinion of the General Assembly of Judges of the Court of Appeal;
" 3 ° Four judges of the trade courts elected by the presidents of the trade courts;
" Alternates in equal numbers shall be appointed under the same conditions. The members of the National Disciplinary Commission shall be appointed for four years." ;
14. Whereas under Article L. 724-3 of the same Code: After hearing the person concerned by the president of the court to which he belongs, the national disciplinary commission may be seized by the custody of the seals, Minister of
. It can pronounce either the blame or the disqualification." ;
15. Whereas in the words of Article L. 724-4 of the Code: On the proposal of the custody of the seals, the Minister of Justice, the Chairman of the National Disciplinary Commission may suspend a judge of a commercial court for a period which may not exceed six months, when there is a case against the person concerned, who shall have Before the President of the court to which he belongs, the facts of such a nature as to result in disciplinary action. The suspension may be renewed once by the National Commission for a period not exceeding six months. If the judge of the commercial court is subject to criminal proceedings, the suspension may be ordered by the chairman of the national commission until the intervention of the final criminal decision." ;
16. Whereas in the words of Article L. 724-5 of the Code: The National Disciplinary Commission may deliberate only if at least four of its members, including the President, are present. In the event of an equal division of votes, that of the President shall be paramount." ;
17. Whereas in the words of Article L. 724-6 of the Code: The decisions of the National Disciplinary Commission and those of its President shall be reasoned. They are subject to appeal only before the Court of Cassation. ' ;
18. Considering that, according to the applicants, the above provisions impinge on the area reserved for organic law by the third paragraph of Article 64 of the Constitution; that the provisions relating to the mandate of judges of the courts of Trade would also disregard the principles of impartiality and independence of the judiciary and the separation of powers, as well as the requirement of capacity resulting from the principle of equal access to public employment; The discipline of the judges of the trade courts would disregard the principle of equality Before the law;
On the complaint of infringement of the field reserved by the Constitution to the Organic Law:
19. Considering that, according to the applicants, the contested provisions relate to the status of the judiciary, which is governed by the organic law under the third paragraph of Article 64 of the Constitution; thus, they would impinge on the power of the judiciary. Organic legislator;
20. Considering that the legislator's lack of knowledge of the area which the Constitution reserved for organic law cannot be invoked in support of a priority question of constitutionality on the basis of Article 61-1 of the Constitution; That, as a result, the grievance must in any event be dismissed;
On the mandate of the Commercial Court Judges:
21. Considering that, according to the applicants, the contested provisions governing the mandate of the judges of the trade courts do not guarantee respect for the impartiality and independence of the commercial justice system, in particular with regard to the That by permitting the accumulation of the term of office of a judge of the Commercial Court with, in particular, the functions of a member of a Chamber of Commerce and of the industry, those provisions would infringe the principle of the separation of powers; In addition, by not providing for a condition of diploma or prior checking of The ability to perform the duties prior to access to a court order of the Commercial Court, these provisions would not meet the requirement of capacity resulting from the principle of equal access to public jobs;
With respect to the principles Impartiality and independence of jurisdictions and separation of powers:
22. Considering that according to article 16 of the Declaration of Human and Citizen's Rights of 1789: Any society in which the guarantee of rights is not guaranteed, nor the separation of powers, has no Constitution." ; that the principles of independence and impartiality are inseparable from the exercise of judicial functions;
23. Considering that the Articles L. 722-6 to L. 722-16 of the Commercial Code relate to the mandate of the judges of the courts of Trade; that these judges are elected for a fixed term in accordanceArticle L. 722-6 of the Commercial Code Article L. 722-8, the functions of judges of the Trade courts may cease only because of the expiry of their terms of office, the removal of the court, the resignation or revocation; that Article L. 722-9 provides for the resignation of the Office of the Court of Commerce in respect of which it is That Articles L. 724-2 and L. 724-3 entrust to the National Disciplinary Committee, presided over by a President of the Chamber at the Court of Cassation and composed of a Member of the Council of State, judges and judges of the trade courts, the power of Pronounce the blame or lapse in the event of disciplinary misconduct as defined in Article L. 724-1;
24. Considering that article L. 722-7 provides that, before taking office, the judges of the trade courts shall take the oath of office, faithfully and faithfully carry out their functions, keep the secret of the proceedings and behave in accordance with the As a dignified and loyal judge;
25. Considering that, in accordance with the second subparagraph of Article L. 721-1, the trade courts are subject to the provisions, common to all courts, of the book Ier du Code de l' organisation judiciaire; that under Article L. 111-7 of the This code: " The judge who presupposes in his person a cause of recusal or reckless duty shall not be replaced by another specially appointed judge." ; that, similarly, the provisions of Articles L. 111-6 and L. 111-8 lay down the cases in which the objection of a judge may be requested and allow the referral to another court, in particular because of legitimate suspicion or if there are Causes of recusal against several judges;
26. Considering thatarticle L. 662-2 of the trade code provides that, where the interests in the presence justify it, the court Competent appeal may decide to refer a case to another court of the same nature, competent within the jurisdiction of the court, to determine the ad hoc terms of reference, the conciliation procedure or the safeguard procedures, Judicial liquidation;
27. Considering that it follows from the foregoing that the provisions relating to the mandate of the judges of the trade courts establish the prohibited warranties that a judge of a trade tribunal participates in the examination of a case in which he has a Interest, even indirect; that all these provisions infringe neither the principles of impartiality and independence of the courts nor the separation of powers;
As regards the principle of equal access to public employment :
28. Considering that, according to Article 6 of the 1789 Declaration: " The law [...] must be the same for all, either that it protects, or that it punishes. All citizens being equal to their eyes are also entitled to all dignity, public places and jobs, according to their capacity, and without any distinction other than that of their virtues and talents." ;
29. Considering that the trade courts are the first level civil courts competent to hear disputes relating to undertakings between traders, between credit institutions or between traders and establishments of Credit, as well as those relating either to commercial companies or to acts of commerce; andArticle L. 723-1 Of the trade code, the judges of the courts of Trade are elected by a college consisting of, on the one hand, the consular representatives elected within the jurisdiction of the court and, on the other hand, judges of the commercial court as well as former judges of the court who have applied for registration on the List of electors;
30. Taking the view, first, that Article L. 723-4 lays down the conditions for eligibility for the functions of a judge of a trade tribunal; that it provides in particular that persons of French nationality who are eligible for those functions are eligible for those functions. At least, which justify either registration for the last five years at least on the register of trade and companies, or the exercise, for a cumulative total period of five years, of functions involving responsibilities of Direction in a commercial corporation or a public institution Industrial and commercial character; persons in respect of whom a legal safeguard, reorganization or liquidation procedure has been opened or owned by a company or a public institution are not eligible Having undergone a legal safeguard, reorganization or liquidation procedure;
31. Considering, on the other hand, that Article L. 722-11 provides that the President of the Commercial Court shall be chosen from among the judges of the court who have served in a commercial court for at least six years; that Article L. 722-14 Provides that, in principle, no person may be appointed to perform the duties of a Judge Commissioner under the conditions laid down in Book VI of the Commercial Code if he or she has exercised at least two years of judicial functions in a court of Commerce;
32. Considering that it is open to the legislature to amend the provisions relating to the conditions of access to the mandate of judges of the trade courts in order to strengthen the capacity requirements necessary for the exercise of those functions Courts; that, however, in view of the particular competence of the trade courts, which specialise in commercial matters, the contested provisions, which, on the one hand, provide that the judges of the trade courts are elected by their Peers among people with professional experience in the field And, on the other hand, reserve the most important functions of these courts to judges with judicial experience, have not disregarded the capacity requirements arising from Article 6 of the Declaration of 1789;
On the Discipline of Commercial Court Judges:
33. Considering that, according to the applicants, by prohibiting a litigant from referring directly to the disciplinary body of a complaint against a judge of the commercial court, whereas the referral to the High Judicial Council is open to them With regard to judicial judges, the provisions of Article L. 724-3 infringe the principle of equality;
34. Considering that, in accordance with Article 6 of the 1789 Declaration, the principle of equality does not preclude the legislator from applying different situations in different ways nor does it derogate from equality for reasons of general interest, Provided that, in either case, the resulting difference in treatment is in direct relation to the object of the law that establishes it;
35. Considering that the first paragraph of Article L. 724-3 reserves the right to the Minister of Justice to refer the matter to the National Disciplinary Committee of Judges of the Chambers of Commerce; that, if the tenth paragraph of Article 65 of the Constitution Provides that the Supreme Council of the Judiciary may be seized by a litigant under the conditions laid down by an organic law, the judges of the commercial courts, who exercise an elective public service, are not subject to the status of the Magistrates and are not placed in the same situation as magistrates; that, by The complaint that the system of disciplinary action applicable to judges of the trade courts would not be identical to that applicable to judges should be dismissed;
36. Considering that Articles L. 722-6 to L. 722-16 and L. 724-1 to L. 724-6 of the Code of Commerce are contrary to any other right or freedom that the Constitution guarantees; that they must be declared in conformity with the Constitution,
Decides:
Articles L. 722-6 to L. 722-16 and L. 724-1 to L. 724-6 of the code of commerce are in conformity with the Constitution.
This decision shall be published in the Official Journal of the French Republic and notified under the conditions set out in section 23-11 of the order of November 7, 1958, above.
Issued by the Constitutional Council at its meeting on May 3 Mr Jean-Louis DEBRÉ, President, Mr Jacques BARROT, Mrs Claire BAZY MALAURIE, MM. Michel CHARASSE, Renaud DENOIX de SAINT MARC, Mme Jacqueline de GUILLENCHMIDT, MM. Hubert HAENEL and Pierre STEINMETZ.
The President,
Jean-Louis Debré
