Decision N ° 2012-279 Qpc's October 5, 2012

Original Language Title: Décision n° 2012-279 QPC du 5 octobre 2012

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JORF n ° 0233 of October 6, 2012 page 15655
text N ° 69



Decision No. 2012-279 QPC of October 5, 2012

NOR: CSCX1236184S ELI: Not available



(Mr. JEAN-CLAUDE P.)


The Constitutional Council was seized on 17 July 2012 by the Council of State (Decision No 359223 of 17 July 2012), under the conditions laid down in Article 61-1 of the Constitution, of a priority issue of Constitutionality raised by Mr Jean-Claude P., relating to the conformity with the rights and freedoms guaranteed by the Constitution of Href=" /viewTexteArticle.do?cidTexte=JORFTEXT000000317526&idArticle=LEGIARTI000006507304&dateTexte= &categorieLink = cid"> provisions of Sections 2 to 11 of Act No. 69-3 of January 3, 1969 On the exercise of ambulatory activities and the regime applicable to persons moving in France without a domicile or a fixed place of residence.
The Constitutional Council,
Given the Constitution;
Seen Order n ° 58-1067 of 7 November 1958 as amended by the Organic Law on the Constitutional Council;
Seen Law n ° 69-3 of 3 January 1969 on the exercise of the travelling activities and the Regime applicable to persons circulating in France without domicile or fixed residence;
Having regard to the Rules of Procedure of 4 February 2010 on the procedure before the Constitutional Council for priority questions of constitutionality;
Seen Observations filed for the applicant by Olivier Le Mailloux, lawyer at the Marseilles Bar, registered on 27 July 2012 and 3 September 2012;
In view of the intervention observations submitted for the association France freedom travel by Me Henri Braun, lawyer at the Paris Bar, registered on 2 August 2012;
Seen the Observations filed by the Prime Minister, recorded on August 31, 2012;
Seen the exhibits filed and attached to the file;
Me Le Mailloux, for the applicant, Mr. Braun, for the intervener, and Mr. Xavier Pottier, designated by the Prime Minister, having been heard at the public hearing on September 25, 2012;
The rapporteur was heard;
1. Considering that the terms of article 2 of the aforementioned law of 3 January : " Persons with no residence or permanent residence of more than six months in a Member State of the European Union must have a special circulation booklet issued by the administrative authorities;
" The persons accompanying those mentioned in the preceding paragraph, and the servants of the latter must, if they are more than sixteen years of age and have in France neither domicile nor fixed residence for more than six months, be equipped with a booklet Same traffic;
" Employers must ensure that their employees are effectively equipped with this document when required to do so." ;
2. Whereas under section 3 of the Act: " Persons who are more than sixteen years of age other than those mentioned in Article 2 and have no domicile or fixed residence for more than six months must, in order to be able to move in France, be equipped with one of the traffic titles provided for in the Articles 4 and 5 if they permanently reside in a vehicle, trailer or other mobile shelter " ;
3. Whereas under Article 4 of the same Law: Where the persons referred to in Article 3 justify regular resources which provide them with normal conditions of existence, in particular by the exercise of an employed activity, they shall be provided with a circulation booklet which shall be referred to Intervals that cannot be less than three months by the administrative authority. An identical booklet is given to the people who are responsible for them." ;
4. Whereas under Article 5 of the same Law: Where the persons referred to in Article 3 do not comply with the conditions laid down in the preceding Article, they shall be given a circulation log which shall be referred to every three months, by the administrative authority, by the administrative authority ;
" If they circulate without having obtained such a book, they will be liable to imprisonment for three months to one year. ;
5. Whereas under Article 6 of the same Law: Circulation titles may only be issued to persons from abroad if they are certain to justify their identity;
" The validity of the special circulation booklet provided for in Article 2, of the books and accounts provided for in Articles 3, 4 and 5, shall be continued periodically by the administrative authority " ;
6. Whereas under Article 7 of the same Law: Any person applying for the grant of a traffic title provided for in the foregoing Articles shall make known the municipality to which it wishes to be connected;
" The attachment is pronounced by the prefect or the sub-prefect after the mayor's reasoned opinion " ;
7. Whereas under Article 8 of the same Law: The number of persons holding a title of movement, without domicile or fixed residence, attached to a municipality, shall not exceed 3 % of the municipal population as counted at the last census;
" When this percentage is reached, the prefect or sub-prefect shall invite the registrant to choose another connecting factor;
" The prefect may, under conditions laid down by decree in the Council of State, make exceptions to the rule laid down in the first paragraph of this article, in particular to ensure the unity of families " ;
8. Whereas under Article 9 of the same Law: The choice of the connecting factor is made for a minimum period of two years. A derogation may be granted where circumstances of a particular gravity justify it. Any request for change must be accompanied by supporting documents, attesting to the existence of ties established by the person concerned in another municipality of his choice " ;
9. Whereas under Article 10 of the same Law: The attachment referred to in the foregoing Articles shall produce all or part of the effects attached to the domicile, residence or place of work, under the conditions laid down by an order in Council of State, in respect of:
" The celebration of marriage;
" The entry on the list of electors, on the request of the persons concerned, after three years of continuous connection in the same municipality;
" Fulfillment of tax obligations;
" Fulfillment of obligations under social security legislation and legislation on aid for unemployed workers;
" The obligation of the national service.
" The attachment to a municipality does not apply to a fixed and determined residence. It cannot entail the transfer of State charges to local authorities, in particular as regards social assistance costs. ' ;
10. Whereas under Article 11 of the same Law: Decrees in the Council of State shall lay down the rules for the application of Titles I and II and, in particular, the conditions under which circulating titles are issued and renewed and the particulars to be included in them, the arrangements for controls In order to establish that the holders of the traffic titles referred to in Articles 2, 3, 4 and 5, and the minors subject to their authority, have effectively complied with the health protection measures provided for in the laws and regulations In force and the conditions under which the Mayor, in accordance with Article 7, Must give its reasoned opinion and in which the persons holding a title of movement provide the grounds for the derogation provided for in Article 9 ' ;
11. Taking the view that the applicant and the intervener dispute the rules governing the movement of traffic, established by Articles 2 to 6, and the rules relating to the connecting factor provided for in Articles 7 to 10;
On the Applicable constitutionality standards:
12. Considering, on the one hand, that under Article 1 of the Declaration on Human and Citizen's Rights of 1789: Men are born and remain free and equal in rights. Social distinctions can only be based on common utility." ; that under Article 1 of the Constitution: France is an indivisible, secular, democratic and social Republic. It ensures equality before the law of all citizens without distinction of origin, race or religion ... " ;
13. Considering that article 6 of the 1789 Declaration provides that 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 Act that establishes it;
14. Taking the view, on the other hand, that under Article 34 of the Constitution the law lays down the rules concerning the fundamental guarantees given to citizens for the exercise of civil liberties; that, in the context of this mission, it belongs to the Legislator to make the necessary reconciliation between the respect of freedoms and the safeguarding of public order without which the exercise of freedoms cannot be ensured;
15. Considering that administrative police measures capable of affecting the exercise of constitutionally guaranteed freedoms, including the freedom to go and come, part of the personal freedom protected by the Articles 2 and 4 of the Declaration of 1789 and the respect for privacy implied by the freedom proclaimed by Article 2 of the Declaration, must be justified by the need to safeguard public order and proportionate to that objective;
On circulation titles:
16. Taking the view that, according to the applicant and the intervener, the requirement for movement titles imposed solely on persons in France without residence or fixed residence for more than six months establishes a difference in treatment which Disregards the principle of equality before the law; furthermore, the regime of these circulating titles would also establish differences in treatment contrary to the principle of equality and would have a disproportionate impact on the freedom to go and Come;
With regard to the existence and visa rules of the Traffic applicable to persons travelling in France without residence or fixed residence:
17. Considering that Articles 2 to 6 relate to the system of traffic titles to be held by persons without a domicile or fixed residence of more than six months; that it follows from the combined provisions of the first subparagraph of article 2 and section 3 of the aforementioned Act of January 3, 1969 That those provisions apply, on the one hand, to " Persons having no residence or permanent residence of more than six months in a Member State of the European Union ", persons over sixteen years of age who accompany them and their servants, and, on the other hand," Persons over sixteen years of age " Other than those mentioned above that are " Have no domicile or fixed residence for more than six months' And " Permanently lodging in a vehicle, trailer or other mobile shelter " ;
18. Whereas, by requiring all such persons to be provided with a title of movement, the legislator has heard that, for civil, social, administrative or judicial purposes, the identification and search of those who cannot be Found in a domicile or a fixed place of residence of a certain duration, while ensuring, for the same purposes, a means of communicating with them; that those provisions are based on a difference in the situation between persons, irrespective of their Nationalities and their origins, who have a domicile or a fixed residence of more than six Months and those without it; thus the distinction they operate is based on objective and rational criteria in direct relation to the purpose assigned by the legislator; that they do not establish any discrimination on the basis of a That the legislature did not disregard the principle of equality by requiring the persons concerned to carry a title of movement; that the extent to which the freedom to go and to come as a result is justified by the The need to protect public order and be proportionate to this objective;
In terms of Concerns Articles 2 and 3:
19. Considering that, pursuant to Article 2 of the Act of 3 January 1969, persons having no residence or permanent residence of more than six months in a Member State of the European Union, the persons accompanying them, and the servants of the latter, if They are more than sixteen years old and have in France no residence, no fixed residence for more than six months, must have a special circulation booklet; that Article 3 provides that persons, other than the former, who are not Home or fixed place of residence for more than six months that permanently reside in a Vehicle, trailer or other mobile shelter must, in order to be able to circulate in France, be equipped with either a circulation book or a circulation book; that it is the result of the combined provisions of Articles 2 and 3 of the law that only the Circulation titles provided to persons who reside in a mobile shelter shall be subject to regular intervals by the administrative authority; that, by distinguishing between persons who have not lived or fixed residence for more than six months, those who have not been resident Who practice an itinerant lifestyle by permanently living in a shelter These provisions establish a difference in treatment based on a difference in situation in direct relation to the subject-matter of the law which Establishes it and, subsequently, does not disregard the principle of equality; that, having regard to the purpose of the law, the obligation of periodic extension of the validity of those titles provided for in Article 6 does not constitute an unconstitutional infringement of freedom To go and come;
20. Considering that it follows from the foregoing that Articles 2 and 3 of the Law must be declared in conformity with the Constitution;
With regard to Articles 4 and 5:
21. Considering that under the combined provisions of Articles 4 and 5 of the Act of 3 January 1969 persons over the age of sixteen who have no domicile or fixed residence for more than six months permanently residing in a Vehicle, trailer or other mobile shelter must, in order to be able to move in France, be equipped either, where they justify regular resources providing them with normal conditions of existence, in particular by carrying out an activity Employee, of a traffic booklet which must be targeted by the administrative authority at Prescribed intervals which cannot be less than three months, or, where they do not justify such regular resources, a circulation log which must be targeted by the administrative authority every three months, In addition, under the second paragraph of Article 5 of the Act of 3 January 1969, persons travelling without a circulation book are liable to one year's imprisonment;
22. Whereas, on the one hand, these provisions introduce two circulation titles subject to different schemes applicable to persons permanently residing in a vehicle, trailer or other mobile shelter; Whether or not regular resources are justified, they are subject to different visa requirements by the administrative authority of the circulation title given to them; that such a difference in treatment is not directly related to the The civil, social, administrative or judicial purposes pursued by the Law; that it must be declared contrary to the Constitution; and
23. Considering that, on the other hand, by requiring that the circulation book be targeted every three months by the administrative authority and by punishing persons travelling without a log book of one year's imprisonment, the provisions Article 5 of the Act of 3 January 1969 provides for the exercise of the freedom to go and to come out of a disproportionate attack with regard to the purpose pursued;
24. Considering that, of the foregoing, it follows that the words must be declared to be contrary to the Constitution: Where the persons referred to in Article 3 justify regular resources assuring them of the normal conditions of existence, in particular by the exercise of an employed activity, " In Article 4 of the Act of 3 January 1969 and Article 5 of the Act; that, by way of consequence, in Article 3 of the same Law, the words: Of one of the traffic titles provided for in Articles 4 and 5 ' Must be replaced by the words: " Of the traffic title provided for in Article 4 ' ; that in the second paragraph of section 6 of the Act, the words " , of the books and accounts set out in Articles 3, 4 and 5 " Must be replaced by the words: " And the traffic booklet provided for in Articles 3 and 4 " ; that in section 11 of the Act, the words " Articles 2, 3, 4 and 5, ' Must be replaced by the words: " Articles 2, 3 and 4, ' ;
On the connecting factor:
25. Considering that Article 7 of the impugned law provides that any person seeking the grant of a right of movement is required to make known the municipality to which it wishes to be connected; that that connection is pronounced by the Prefect or sub-prefect after reasoned opinion of the mayor; Article 8 provides that the number of persons holding a title of movement, without domicile or fixed residence, connected to a municipality, shall not exceed 3 % of the population Municipal as enumerated in the last census; the prefect may, however, Grant derogations from this rule " In particular to ensure the unity of families " ; that Article 9 requires that the choice of a common connecting factor be made for a minimum period of two years; that, under Article 10, that connection produces, under the conditions laid down by that Article, all or part of the effects attached In the home, residence or place of work in respect of, inter alia, the celebration of the marriage, the registration on the list of electors, the fulfilment of the tax obligations and those provided for in the laws of social security and Legislation on aid for unemployed workers, as well as the obligation to National service; that, in the case of registration on the lists of electors, the third paragraph of Article 10 specifies that, on the request of the parties concerned, only after three years of continuous connection in the same municipality;
26. Considering that, according to the applicant and the intervener, the obligation to designate a connecting commune and the limit of 3 % by common to persons holding a traffic title imposed by law infringe on freedom To go and come; that, in addition, it disregards the right to respect for privacy " As to the choice of domicile " ; furthermore, by imposing on persons holding a title of movement to justify three years of continuous connection in the same municipality to be included on an electoral list, the provisions of Article 10 would infringe The exercise of their civic rights by citizens;
With respect to freedom to go and to come and the right to privacy:
27. Considering that the obligation to attach to a municipality imposed on persons without domicile or fixed residence for more than six months is intended to remedy the impossibility, for them, of satisfying the conditions required for the enjoyment of Certain rights or duties; that this obligation does not restrict the freedom of movement of the persons concerned, nor their freedom to choose a fixed or movable method of dwelling, nor the freedom to decide the place of their temporary installation; It does not restrict their ability to determine a domicile or place of residence Fixed for more than six months; that it does not entail any further obligation to reside in the municipality whose connection is pronounced by the administrative authority; that, as a result, the complaints alleging that Articles 7 to 10 of the Act of 3 January 1969 would violate the freedom to go and come, and the right to privacy must be ruled out;
With regard to the exercise of civil rights:
28. Considering that under Article 3 of the Constitution: National sovereignty belongs to the people who exercise it by their representatives and through the referendum. No section of the people or any individual can attribute this to the exercise. The vote may be direct or indirect under the conditions laid down in the Constitution. It is always universal, equal and secret. The voters, under the conditions laid down by law, are all major French nationals of both sexes, enjoying their civil and political rights." ; that according to Article 6 of the 1789 Declaration: All citizens being equal in the eyes of the law are also entitled to all dignity, places and public employment, according to their capacity and without any distinction other than those of their virtues and talents " ;
29. Considering that the approximation of these texts, it follows that the quality of the citizen opens the right to vote and eligibility under identical conditions to all those who are not excluded for a reason of age, disability or nationality, or For a reason to preserve the freedom of the voter or the independence of the person elected; that these principles of constitutional value preclude any division by categories of voters or eligible voters;
30. Whereas, by imposing on persons circulating in France without domicile or fixed residence to justify three years of continuous attachment to the same municipality for their inclusion on the list of electors, the provisions of the third paragraph Article 10 is contrary to the above constitutional principles; thus, in the third paragraph of Article 10 of the Law, the words: " , after three years of continuous connection in the same municipality " Must be declared unconstitutional;
On declaration of unconstitutionality:
31. 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." ;
32. Considering that the declaration of unconstitutionality of the provisions of the Act of 3 January 1969 takes effect from the date of publication of this Decision; that it is applicable to all cases not considered definitively on that date;
33. Considering that, for the remainder, the impugned provisions of the Act of 3 January 1969 do not conflict with any right or freedom that the Constitution guarantees; that they must be declared in conformity with the Constitution,
Decides:

Item 1 -Article 5;
-in Article 10, the words: " , after three years of continuous attachment to the same municipality ".
As a result of this declaration of unconstitutionality:
-in section 3 of the same law, the words: Of one of the traffic titles provided for in Articles 4 and 5 ' Are replaced by the words: " Of the traffic title provided for in Article 4 ' ;
-in the second paragraph of Article 6, the words: " , of the books and accounts set out in Articles 3, 4 and 5 " Are replaced by the words: " And the traffic booklet provided for in Articles 3 and 4 " ;
-in Article 11, the words: " Articles 2, 3, 4 and 5, ' Are replaced by the words: " Articles 2, 3 and 4, ".

Article 2


The declaration of unconstitutionality of Article 1 shall take effect as from the publication of the


Sections 2, 3, 4, 6, 7, 8, 9, 10 and 11 of that Act are, for the purposes of The surplus, in accordance with the Constitution.

Item 4 Learn more about this Article ...


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.
Deliberated by the Constitutional Council in its session of 4 Mr Jean-Louis DEBRÉ, President, Mr Jacques BARROT, Mrs Claire BAZY MALAURIE, MM. Guy CANIVET, Michel CHARASSE, Renaud DENOIX de SAINT MARC, Mme Jacqueline de GUILLENCHMIDT, MM. Hubert HAENEL and Pierre STEINMETZ.
Public Rendu 5 October 2012.


The President,

Jean-Louis Debré


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