(CANAL GROUP PLUS AND OTHER GROUP)
The Constitutional Council has Was seized on 17 July 2012 by the Council of State (Decision No 353856 of 17 July 2012), under the conditions laid down in Article 61-1 Of the Constitution, of a priority question of constitutionality raised by Groupe Canal Plus and Vivendi Universal, relating to the conformity with the rights and freedoms guaranteed by the Constitution of the IV of article L. 430-8 of the code of commerce, as well as of article L. 461-1, of article L. 461-3 and of article L. 462-5 of the same code.
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 commerce code ;
Seen Act No. 2008-776 of 4 August 2008 to modernize the economy ;
Seen Order n ° 2008-1161 of November 13, 2008 to modernize the regulation of competition;
Seen Law n ° 2009-526 of May 12, 2009 simplifying and clarifying the law and easing procedures;
Seen Law n ° 2010-838 of 23 July 2010 on the application of the fifth paragraph of Article 13 of the Constitution;
Having regard to the Rules of Procedure of 4 February 2010 on the procedure before the Constitutional Council for priority questions of constitutionality;
In view of the observations made in response to the The association of lawyers practising competition law by the SCP Defrénois and Lévis, a lawyer at the Conseil d' Etat and the Court of Cassation, registered on 7 August and 17 September 2012;
Seen the observations produced for the companies Applicants by Bird and Bird AARPI, a lawyer at the Paris Bar, and by the law firm Veil Jourde, lawyer to the Paris Bar, registered on 30 August and 17 September 2012;
In view of the observations submitted for the Competition Authority by the CPC Baraduc and Duhamel, a lawyer at the Conseil d' Etat and the Court of Cassation, registered on 31 August and 17 September 2012;
Seen the submissions of the Prime Minister, recorded on August 31, 2012;
Seen the exhibits filed and attached to the file;
Me Emmanuel Glaser and Claude Lazarus, in the interest of the applicants, Me Elisabeth Baraduc-Bénabent, in the interest of the defence party, Mr. Marc Lévis, in The interest of the intervener, and Mr. Thierry-Xavier Girardot, appointed by the Prime Minister, having been heard at the public hearing on 2 October 2012;
The rapporteur was heard;
1. Considering that the Constitutional Council is referred to paragraph II of Article L. 461-1 of the Commercial Code " In its drafting of the order of 13 November 2008 " That this paragraph, which was amended by the Act of 4 August 2008 referred to above, has not subsequently been amended before Law of July 23, 2010 mentioned above ; that the priority issue of constitutionality must be regarded as referring to the provisions applicable to the dispute on the occasion of which It was put; thus the Constitutional Council is seized of the Href=" /viewCodeArticle.do?cidTexte=LEGITEXT000005634379&idArticle=LEGIARTI000006232516&dateTexte= &categorieLink = cid"> article L. 461-1 of the code of commerce in its output from law of 23 July 2010 mentioned above ; that the Constitutional Council has before it Article L. 461-3 of the same code " In its drafting of the order of 13 November 2008 " Article 139 of the aforementioned Law of 12 May, which has proceeded with the ratification of that order, has at the same time Amended the drafting of the fourth paragraph of Article L. 461-3; that the Constitutional Council can only be seized of provisions which are of a legislative nature within the meaning of Article 61 (1) of the Constitution; Constitutional Council has before it article L. 461-3 of the commerce code in its output from Law of 12 May 2009 above ;
2. Considering that at terms of paragraph IV of article L. 430-8 of the code of commerce Act of August 4, 2008 referred to above : " If it considers that the parties have not executed within the time limits an injunction, limitation or undertaking set out in its decision or in the decision of the Minister having decided on the operation pursuant to Article L. 430-7-1, The Competition Authority shall observe the non-performance. It can:
" 1 ° Remove the decision allowing the operation to proceed. Unless the parties revert to the pre-merger state, the parties are required to notify the transaction again within one month of the withdrawal of the decision, except for the sanctions provided for in I;
" 2. Joining under penalty, within the limit laid down in Article L. 464-2 of Article L. 464-2, to the parties to which the non-executing obligation was responsible to execute within a period that they lay down injunctions, prescriptions or undertakings.
" In addition, the Competition Authority may impose on persons to whom a non-pecuniary penalty has been imposed, which cannot exceed the amount set out in I.
" The procedure applicable is that provided for in the second paragraph of Article L. 463-2 and in Articles L. 463-4, L. 463-6 and L. 463-7. However, the parties who have made the notification and the Commissioner of the Government must submit their observations in response to the communication of the report within 15 working
. The Competition Authority shall take a decision within seventy-five working days " ;
3. Considering that the wording of article L. 461-1 of the same code in the wording of L. 461-1 of the Act of 23 July 2010 referred to above reads: " The powers entrusted to the Competition Authority shall be exercised by a college composed of seventeen members, including a chairman, appointed for a term of five years by decree adopted on the report of the Minister responsible for the economy
The President is appointed because of his expertise in the legal and economic
. The college also includes:
" 1 ° Six members or former members of the Council of State, the Court of Cassation, the Court of Auditors or other administrative or judicial courts;
' 2 ° Five personalities chosen because of their competence in economic or competition and consumption matters;
" 3 ° Five persons exercising or having carried out their activities in the fields of production, distribution, crafts, services or professions.
" Four Vice-Presidents are appointed from among the members of the College, including at least two of the persons mentioned at 2 ° and 3 ° " ;
4. Considering that according to Article L. 461-3 of the same Code in its drafting after the Act of 12 May 2009 referred to above : " The Competition Authority may sit either in plenary or in sections or in the Standing Committee. The Standing Committee shall be composed of the President and the four Vice-
. The formations of the authority shall deliberate by a majority of the members present. The rules of procedure of the authority shall determine the quorum criteria applicable to each of these trainings
In the event of an equal sharing of votes, the voice of the chairperson shall be paramount.
" The President, or a Vice-President appointed by him, may adopt only the decisions provided for in Article L. 462-8, as well as those provided for in Articles L. 464-2 to L. 464-6 when they apply to acts of which the Competition Authority has been seized by the Minister pursuant to the fourth paragraph of Article L. 464-9. It may also do so in the case of decisions provided for in Article L. 430-5 " ;
5. Considering that, according to paragraph III of Article L. 462-5 of the same Code in its drafting of theorder of 13 November 2008 referred to above : " The General Rapporteur may propose to the Competition Authority to refer ex officio to the practices referred to in I and II and Article L. 430-8 as well as breaches of commitments made in the application of decisions authorising operations Concentration before the entry into force ofOrder No. 2008-1161 of 13 November 2008 on the modernisation of the regulation of competition ' ;
6. Considering that the applicants dispute, on the one hand, the provisions of paragraph IV of Article L. 430-8 of the Trade relating to sanctions which may be imposed on companies having been granted permission to concentrate, and, on the other hand, the provisions of paragraph II of Article L. 461-1, Article L. 461-3 and paragraph III of article L. 462-5 of the code of commerce relating to the composition, the rules for deliberation and the procedure for referring The Competition Authority;
On Paragraph IV of Article L. 430-8 of the Commercial Code :
7. Considering that, according to the applicant companies, by allowing the Competition Authority to withdraw an authorisation of concentration already issued and, subsequently, to call into question an operation of effective concentration or to compel the Company concerned to comply with new obligations, the provisions of paragraph IV of Article L. 430-8 of the Trade carries a disproportionate attack on freedom To undertake; that by not determining the nature of the analysis of the competitive situation by the Competition Authority and by not specifying the starting point of the procedure for the withdrawal of the concentration authorisation, those provisions shall Would also be contrary to the objective of the constitutional value of intelligibility and accessibility of the law as well as to the constitutional requirement of clarity and precision of the law;
With respect to freedom to undertake:
8. Considering that it is open to the legislature to provide for the freedom to undertake, as a result of Article 4 of the Declaration of Human Rights and of the Citizen of 1789, limitations related to constitutional requirements or justified by The general interest, provided that it does not result in disproportionate damage to the objective pursued;
9. Considering, first, that by adopting the provisions of paragraph IV of article L. 430-8 of the trade code, the Parliament has granted the Competition Authority, in the event of failure to comply with an order, a requirement or undertaking contained in a decision authorising a concentration, the power to withdraw the decision having authorised the Conduct of the concentration and to impose A pecuniary penalty for the persons to whom the obligation has not been fulfilled; that the withdrawal of the decision authorising the operation of concentration is applicable only where that authorisation has been granted on condition; The decision having authorised the operation is withdrawn, unless the concentration is returned to the prior state, the parties are required to notify the Competition Authority again within one month of the merger. Withdrawal of the authorization, except to expose themselves to other sanctions; Provisions, the legislator has heard the effective observance of injunctions, requirements or commitments with which the authorisations for concentration are accompanied;
10. Considering, second, that the sanctions provided for by paragraph IV of Article L. 430-8 of the Commercial Code are not Incurred only when a concentration operation is authorized " Requiring the parties to take any measure to ensure sufficient competition or by obliging them to comply with requirements to make economic progress a sufficient contribution to compensate for infringements of the Competition " ; furthermore, under the first paragraph of Article L. 462-7 of the Code: " The Authority shall not be seized of facts which are more than five years old if no action has been taken in respect of their research, finding or sanction." ; finally, the decisions taken by the Competition Authority on the basis of paragraph IV of Article L. 430-8 may be the subject of judicial review; that it is for the judge, before such an action, to ensure that the Decision;
11. Considering that the contested provisions relating to the control of merger operations are intended to ensure a competitive operation of the market in a particular sector; that, in adopting them, the legislator has failed to comply with the principle The freedom to undertake an infringement which is not justified by the objectives of preservation of the economic public order which it has assigned and proportionate for that purpose; that, as a result, the complaint of the infringement of freedom To undertake must be discarded;
As regards intelligibility and Accessibility of the law:
12. Considering that the lack of awareness of the objective of the constitutional value of intelligibility and accessibility of the law cannot, in itself, be invoked in support of a priority question of constitutionality on the basis of Article 61-1 The Constitution; that, as a result, the complaint against this objective is not admissible;
13. Whereas paragraph IV of Article L. 430-8 of the Commercial Code is contrary to any other right or freedom Constitution guarantees; that it must be declared in conformity with the Constitution;
Article L. 461-1, Article L. 461-3 and paragraph III of the article L. 462-5 of the commerce code :
14. Considering that, according to the applicant companies, the provisions of paragraph II of Article L. 461-1, Article L. 461-3 and paragraph III of article L. 462-5 of the code of commerce, which would not guarantee the separation between the Competition Authority formations Responsible for issuing authorisations for concentration and those responsible for imposing sanctions on the control of the operations of Nor does the separation of powers of prosecution and sanction of mergers within the Competition Authority ignore the principles of independence and impartiality of the courts arising out of Article 16 of the 1789 Declaration;
15. Considering that Article 16 of the 1789 Declaration states that: Any society in which the guarantee of rights is not guaranteed, nor the separation of powers, has no Constitution " ;
16. Considering that the principle of the separation of powers, no more than any other principle or rule of constitutional value, prevents an independent administrative authority acting within the framework of power prerogatives May exercise a power of sanction to the extent necessary for the performance of its mission, provided that the exercise of that power is accompanied by the law of measures designed to ensure the protection of rights and freedoms Constitutionally guaranteed; in particular, must be respected the principle of The legality of offences and penalties as well as the rights of the defence, principles applicable to any punishment having the character of a punishment, even if the legislature has left it to an authority of a non-judicial nature; that Must also be respected for the principles of independence and impartiality arising from Article 16 of the 1789 Declaration;
17. Considering, first, on the one hand, on the one hand, that the provisions of paragraph II of Article L. 461-1 of the trade code fix The composition of the College of the Competition Authority, whose various formations are competent to exercise the powers of sanction entrusted by the legislator to that independent administrative authority; that Article L. 461-2 of the same Code Provides for the obligations to which the Members of the authority; that the third and fourth paragraphs of this article shall specify in particular: Any member of the authority must inform the President of the interests he or she has or has acquired and the functions he or she carries out in an economic activity. -No member of the authority may deliberate in a case where he or she has an interest or represents or has represented one of the interested parties " ; that Article L. 461-3 of the same code sets the rules for the deliberation of authority;
18. Considering, on the other hand, that under the three first paragraphs of Article L. 461-4 of the Commercial Code : The Competition Authority has training services headed by a general rapporteur appointed by order of the Minister responsible for the economy after the opinion of the college. -These services shall carry out the investigations necessary for the application of Titles II and III of this book. -Assistant general rapporteurs, permanent or non-permanent rapporteurs and investigating officers are appointed by the general rapporteur, by decision published in the Official Journal. ; that under the penultimate paragraph of the same article: " The President shall be the authorising officer of revenue and expenditure of the authority. It delegates the ordering of the expenditure of training services to the general rapporteur " ; the aim of these provisions is to ensure the independence of the general rapporteur and his services with regard to the training of the Competition Authority competent to impose sanctions;
19. Whereas in the light of these legal guarantees, of which it is for the competent court to monitor compliance, paragraph II of Article L. 461-1 and article L. 461-3 of the code of commerce does not ignore the principles of independence and impartiality inseparable from The exercise of enforcement powers by an independent administrative authority;
20. Considering, in the second place, that if the provisions of paragraph III of Article L. 462-5 of the Commercial Code allow The Competition Authority to seize " Ex officio " Certain practices, as well as breaches of commitments made pursuant to decisions authorising mergers, are subject to the fact that this referral has been proposed by the general rapporteur; Concerning the opening of the procedure for verification of the performance of injunctions, requirements or undertakings contained in a decision authorising a concentration, does not lead the authority to prejudge the reality of breaches of Examine; that the investigation of the case is then provided by the General rapporteur in the conditions and in accordance with the guarantees laid down in Articles L. 463-1 and L. 463-2 of the said Code; that the College of the Authority is competent to rule, in accordance with the procedure laid down in Article L. 463-7 of the The same code, on the complaints notified by the general rapporteur and, where appropriate, impose sanctions; that the last two paragraphs of this article provide that, at the meeting, the general rapporteur may make observations, while at the same time Providing that where the authority decides on practices for which it has been seized in accordance with Article L. 462-5, the general rapporteur and the rapporteur do not attend the deliberation;
21. Considering that in the light of these legal guarantees, of which it is for the competent court to monitor compliance, the reference to the Competition Authority does not create confusion between the prosecution and prosecution functions and the Powers of sanctions; that, under these conditions, the provisions of paragraph III of Article L. 462-5 of the Commercial Code Bear no infringement of the principles of independence and Impartiality resulting from Article 16 of the 1789 Declaration;
22. Whereas paragraph II of article L. 461-1, article L. 461-3 and paragraph III ofL. 462-5 of the code of Commerce, which do not disregard any other right or freedom that the Constitution guarantees, must be declared in conformity with the Constitution,
Compliant with the Constitution:
-paragraph IV of Article L. 430-8, in its wording from Law No. 2008-776 of 4 August 2008 on the modernisation of the economy;
-paragraph II of Article L. 461-1, in its wording from Law No. 2010-838 of 23 July 2010 on the application of the fifth paragraph of Article 13 of the Constitution;
- Article L. 461-3, in its wording from Law n ° 2009-526 of May 12, 2009 simplifying and clarifying the law and streamlining procedures;
-le section III of article L. 462-5 of the code of commerce, in its output from Order No. 2008-1161 dated November 13, 2008 Modernization of competition regulation.
This decision will be published in the Official Journal of the French Republic and notified under the conditions Provided for inArticle 23-11 of the Order of 7 November 1958 referred to above.
Issued by the Constitutional Council in its 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 information on October 12, 2012.