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Decision N ° 2012-281 Qpc 12 October 2012

Original Language Title: Décision n° 2012-281 QPC du 12 octobre 2012

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JORF #0239 of October 13, 2012 page 16034
text N ° 50



Decision No. 2012-281 QPC of October 12, 2012

NOR: CSCX1236723S ELI: Not available



(FUNCTIONARY DEFENCE SYNDICATE)


Constitutional Council Was seized on 23 July 2012 by the Conseil d' Etat (Decision No 356381-356386 of 23 July 2012), under the conditions laid down in Article 61-1 of the Constitution, a priority question of the constitutionality posed by the civil servants' defence union, on the conformity with the rights and freedoms guaranteed by the Constitution of Articles 1er-1, 29, 29-1 and 29-2 of The Act No. 90-568 of 2 July 1990 on the organisation of the public postal service and France Télécom and sections 2 and 8 of Law No. 2003-1365 of 31 December 2003 on the public service obligations of telecommunications and France Telecom.
Constitutional Council,
In view of the Constitution;
Seen underOrder No. 58-1067 of 7 November 1958 as amended by the Organic Law on the Constitutional Council ;
Seen Act No. 83-634 of 13 July 1983 on the rights and obligations of civil servants;
Seen Law n ° 84-16 of January 11, 1984 Laying down statutory provisions relating to the public service of the State;
In view of the Act No. 90-568 of 2 July 1990 on the organisation of the public service of the State Position and France Télécom;
Given the Act 2003-1365 of 31 December 2003 on the public service obligations of telecommunications and France Télécom;
Seen the Regulation of 4 February 2010 on the procedure followed before the Council Constitutional for priority questions of constitutionality;
In view of the intervention observations produced for the France Télécom company by the SCP Baker and McKenzie, a lawyer at the Paris Bar, registered on 7 August and 14 September 2012;
In view of the observations filed for the applicant union by CPC Hélène Didier and François Pinet, lawyer at the Conseil d' Etat and the Court of Cassation, registered on 31 August 2012;
In view of the observations made by the First Minister, registered on August 31, 2012;
Seen the exhibits filed and attached to the file;
Me Pinet for the civil servants' defence union, Emmanuel Guillaume for the France Télécom company and Xavier Pottier, appointed by the Prime Minister, having been heard at the public hearing on 2 October 2012;
The rapporteur Having been heard;
1. Considering that under Article 1-1 of the Act of 2 July 1990 referred to above : " The France Télécom undertaking shall be subject to the laws applicable to public limited-liability companies in so far as they are not contrary to this Law. ' ;
2. Whereas section 29 of the same Act states: The staff of La Poste and France Télécom are governed by specific statutes taken pursuant to Act No. 83-634 of 13 July 1983 on rights and obligations Civil servants and Act No. 84-16 of 11 January 1984 laying down statutory provisions relating to the public service of the State, which contain provisions Under the conditions laid down in the subparagraphs below, And to item 29-1.
" The homologous bodies of officials of La Poste and France Télécom are governed by specific statutes which define the conditions under which the agents of one of these bodies can be integrated, by simple mutation, into the body Peer reporting to the other enterprise.
" The provisions of Section 10 of Act No. 84-16 of January 11, 1984, supra apply to all bodies of Officials of La Poste and France Telecom.
" The staff of La Poste and France Télécom do not fall within the categories laid downArticle 29 of Law No. 84-16 of 11 January 1984, supra.
" The officials of La Poste and France Télécom may, on their request, be made available, seconded or placed outside the framework, in order to carry out functions specific to undertakings and their subsidiaries, in accordance with the procedure laid down by decree in State Council.
" The third, fourth, fifth and sixth paragraphs of Article 22 of Law No. 83-634 of 13 July 1983 referred to above are Applicable to officials of La Poste and France Télécom, except as expressly provided for in an interprofessional, branch or enterprise collective agreement or agreement providing for more favourable provisions " ;
3. Considering that under Article 29-1 of the same Law:
" 1. On 31 December 1996, the bodies of officials of France Télécom are attached to the national undertaking France Télécom and placed under the authority of its President, who has the powers of appointment and management to them. The staff members of France Telecom remain subject to Articles 29 and 30 of this Law. The President may delegate his powers of appointment and management and authorize the sub-delegation in the form, procedure and time limit which it determines.
" The national undertaking France Télécom may, until 1 January 2002, carry out external recruitment of officials to serve it in the position of activity.
" France Télécom freely employs contractual agents under the collective agreements.
" By way of derogation fromArticle 9 of Law No. 83-634 of 13 July 1983, cited above and chapter II of the law n ° 84-16 of 11 January 1984, the employees of France Télécom participate with the employees of The enterprise to the organisation and functioning of their enterprise, and to the Management of its social action, through the representative institutions provided for in Titles Ier to IV of Book III of Part Two of the Labour Code, subject to adaptations, specified by decree in the Council of State, which are Justified by the special situation of France Telecom officials.
" Articleof Law No. 84-16 of 11 January 1984, cited , does not apply to officials of France Télécom. The fourth part of the Labour Code is applicable to employees of France Télécom, subject to adaptations, specified by decree in the Council of State, which are justified by the special situation of France Telecom officials.
" Article(a) of Law No. 83-634 of 13 July 1983 (cited above applies to the election of commissions under the Href=" /viewTexteArticle.do?cidTexte=JORFTEXT000000501099&idArticle=LEGIARTI000006450520&dateTexte= &categorieLink = cid"> article 14 of the law n ° 84-16 of 11 January 1984 and for determining the composition of the parity body Representing the officials of France Télécom And charged with giving an opinion on the texts relating to their statutes, provided for in this Article. Chapter II of Title I of Book IV of the Labour Code applies to officials of France Télécom. By way of derogation from the 7 ° of Article 34 of Law No. 84-16 of 11 January 1984, the officials of France Télécom have Entitlement to economic, social and trade training leave under the conditions laid down in Chapters I and II of Title V of Book IV of the Labour Code.
" The President of France Telecom may institute specific allowances, the amount of which may be modulated to take account of the evolution of the other elements of the remuneration of the employees of France Télécom, as they result from section 20 of Law No. 83-634 of 13 July 1983.
" Detailed rules for the application of this Article shall be specified by decree in the Council of State. This Decree shall specify in particular the specific composition and manner of operation of the joint body representing officials and responsible for giving an opinion on the texts relating to their statutes' ;
4. Considering that under Article 29-2 of the same Law:
" During a transitional period, linked to the presence of officials in the undertaking, the powers necessary for the appointment and management of the employees present in the undertaking are conferred on the President of France Télécom designated by the Board of Directors. However, the power to impose the disciplinary sanctions of the fourth group, provided for in66 of Law No 84-16 of the January 11, 1984 referred to above, belongs to the minister responsible for telecommunications who exercises it on the proposal of the President of France Telecom and after consulting the Joint Administrative Committee sitting on the Disciplinary Board." ;
5. Considering that, according to article 2 of the above-mentioned law of 31 December 2003:
" Act No. 90-568 of 2 July 1990 on the organisation of the public service of post and telecommunications is thus
: I.-In the title, the words: "and telecommunications are replaced by the words" and France Télécom.
" II. -In Article 1, the words: "and France Télécom and are hereinafter referred to as the public operator, and France Télécom,.
" III. -Article 3 is repealed.
" IV. -In Article 4, the words: "and France Télécom concur are replaced by the word:" conshort, les mots: "dans leur secteur d' activité par les mots:" dans son secteur d' activité, et les mots: "They participate by the words:" Elle Participates.
" V.-Article 5 is thus amended:
" 1 ° The words: "and France Télécom contribute are replaced by the word:" contributes;
" 2 ° It is supplemented by five paragraphs thus written:
" " Without prejudice to its obligations for the purposes of national defence and public security pursuant to Article L. 33-1 of the Code of Posts and Telecommunications, France Télécom, at the request of the Government, shall establish, Operates, provides and maintains in all circumstances and throughout the national territory:
" "(a) Specialized security telecommunications networks or services for use by government authorities and state representatives on national territory;
" " (b) Telecommunication services necessary for the Travel by the President of the Republic.
" "The costs of these benefits are reimbursed to France Telecom.
" " A decree shall determine, as appropriate, the conditions for the application of this
. VI. -Article 6 is thus amended:
" 1 ° In the first subparagraph, the words'and France Télécom participate shall be replaced by the word' participates;
' 2 ° In the second paragraph, the words: 'these operators may be replaced by the words' it may.
' VII. -Article 8 is thus amended:
" In the first paragraph, the words'fixed, for each public operator, its rights and obligations shall be replaced by the words' fixed the rights and obligations of the public operator; '
' 2 ° In the last paragraph, the words: " insured by each operator shall be
. VIII. Article 17 is repealed.
" IX. Article 23-1 is repealed.
" X. -Article 34 is thus amended:
" In the first paragraph, the words'to public operators shall be replaced by the words' to the public operator and to France Télécom;
' 2 ° In the second subparagraph, the words'public operators shall be replaced by the words' of the public operator, and the words'the two public operators with the words' the two undertakings.
' XI. -Article 35 is thus amended:
" 1 ° To the seventh and thirteenth paragraphs, the words: 'France Télécom are replaced by the words' the operators responsible for providing the universal telecommunication service;
' 2 ° In the eighth paragraph, after the words: 'the draft plan contracts shall be inserted the words' of the public operator and, after the words: 'and of the specifications, shall be inserted the words' of the public operator and of the operators responsible for Provide the universal telecommunication service;
" In the tenth paragraph, the words'operators shall be replaced by the words' of the public operator and of the operators responsible for providing the universal telecommunication service ' ;
6. Considering that under Article 8 of the Law of 31 December 2003:
" Act No. 90-568 of 2 July 1990 reads as follows: "
" I.-In Article 7, the words: "Each public operator shall be replaced by the words" The public
. II. -Article 9 is thus amended:
" 1 ° In the first paragraph, the words'and France Télécom shall be deleted, and the words' each public operator shall be replaced by the words' the public operator;
' 2 ° In the second paragraph, the words: "Each contract is replaced by the words:" This contract.
" III. -Item 10-1 is repealed.
" IV. -In Article 11, after the words: "of the board of directors, are inserted the words:" of the public
. V.-Article 12 is thus amended:
" 1 ° The words: "to the boards of directors shall be replaced by the words:" to the board of directors, the words: "of each of those public operators and their respective subsidiaries by the words" of the public operator and of its subsidiaries, the Words: "public operators by the words" of the public operator and the words: "and France Télécom are deleted;
" 2 ° It shall be supplemented by a paragraph worded as follows:
" " Articles L. 225-27 to L. 225-34 of the Commercial Code shall apply to all staff of France Télécom, subject to adaptations, specified by decree in Council of State, which are rendered necessary by the status of defined staff By Article 29 of this Law.
" VI. -In Article 14, the words: "Each public operator shall be replaced by the words" The public
. VII. -Article 15 is thus amended:
" In the first paragraph, the words'each public operator shall be replaced by the words' the public operator, and the words' and to France Télécom shall be deleted;
' 2 ° In the second paragraph, the words: "Each public operator shall be replaced by the words" The public
. VIII. -In Article 25, the words: "and France Télécom with their users, suppliers and third parties shall be replaced by the words" with its users, suppliers and third parties.
" IX. -In Article 26, the words'public operators in relation to their users shall be replaced by the words' the public operator in relation to its users.
' X. -In Article 27, the words'of each public operator shall be replaced by the words' of the public operator.
' XI. -In Article 28, the words: "and France Télécom are replaced by the word:" dispose.
" XII. -Article 38 is thus amended:
" In the first subparagraph, the words'to the specific nature of each operator shall be replaced by the words' to the specific nature of the public operator;
' 2 ° In the second paragraph, the words: 'representatives of the operators, users and staff of La Poste and France Télécom are replaced by the words' representatives of the public operator, its users and its staff;
' 3 ° In the third subparagraph, the words'public operators shall be replaced by the words' of the public operator.
' XIII. -Article 39 is thus amended:
" 1 ° In the first subparagraph, the words'and France Télécom shall be replaced by the words' shall be submitted;
' In the second paragraph, the words: "They shall be replaced by the words:" It shall be subject.
" XIV. -In Article 40, the words' or France Télécom shall be deleted ' ;
7. Considering that, according to the applicant union, by providing for the maintenance of civil servants in the company France Télécom, whereas that undertaking is no longer invested by the law of a public service mission, the contested provisions Ignore " The constitutional principle according to which the bodies of State officials may be constituted and maintained only for the purpose of providing for the performance of public service tasks " ; that it further submits that Articles 29-1 and 29-2 of the Act of 2 July 1990 disregard the provisions of Article 13 of the Constitution;
8. Whereas Article 1 (1) of the Act of 2 July 1990, which draws the consequences of the abolition of the compulsory majority shareholding of the State in the capital of France Télécom, provides that this undertaking is subject in principle to the Legislative provisions applicable to public limited-liability companies; that the provisions of Articles 29, 29-1 and 29-2 maintain for the employees of France Télécom the principle that they are governed by specific statutes taken in application Of the 13 July 1983 and January 11, 1984 above; that they specify that the employees' bodies France Télécom is under the authority of the President of the undertaking designated by the Management Board; that the President of France Telecom has the powers of appointment and management in respect of those officials; that Articles 2 And 8 of the Act of 31 December 2003 is intended to amend the Act of 2 July 1990 by repealing or amending the provisions resulting from the direct investment by France Télécom of public service missions in the field of telecommunications;
9. Considering that the priority issue of constitutionality relates to Articles 29, 29-1 and 29-2 of the Act of 2 July 1990;
10. Considering, first, that, according to the second, third and fourth paragraphs of Article 13 of the Constitution, the President of the Republic " Names civil and military jobs in the state. -The State Councillors, the Grand Chancellor of the Legion of Honor, Ambassadors and Special Envoys, the Senior Advisors to the Court of Auditors, the Prefects, the State Representatives in the Overseas Communities Governed by Article 74 and New Caledonia, the General Officers, the Rectors of the Academies, the Directors of the Central Authorities shall be appointed in the Council of Ministers. -An organic law shall determine the jobs to which it is provided in the Council of Ministers and the conditions under which the power of appointment of the President of the Republic may be delegated to him to be exercised on his behalf. ; that these provisions do not establish a right or freedom that the Constitution guarantees; that their ignorance cannot therefore be invoked in support of a priority question of constitutionality on the basis of Article 61-1 of the Constitution; that, therefore, the complaint raised against Articles 29-1 and 29-2 of the Law of 2 July 1990 must be rejected;
11. Considering, second, that contrary to what the applicant union supports, the contested provisions do not affect any constitutional principle applicable to civil servants or to any right or freedom of the Constitution Guarantees; that, as a result, articles 29, 29-1 and 29-2 of the Act of 2 July 1990 must be declared in conformity with the Constitution,
Decides:

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Sections 29, 29-1 and 29-2 of Act No. 90-568 of 2 July 1990 concerning the organisation of the public service of the postal service and France Télécom are in conformity with the Constitution.

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This Decision will be published in the Official Journal of the French Republic and notified under the conditions laid downArticle 23-11 of the The order of 7 November 1958 referred to above.
Issued by the Constitutional Council at its meeting on 11 October 2012, attended by Mr Jean-Louis DEBRÉ, President, Mr Jacques BARROT, Mrs Claire BAZY MALAURIE, MM. Guy CANIVET, Michel CHARASSE, Hubert HAENEL and Pierre STEINMETZ.
Rendu public on October 12, 2012.


The President,

Jean-Louis Debré


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