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 n ° 0239 October 13, 2012 page 16034 text no. 50 Decision n ° 2012-281 12 October 2012 QPC NOR: CSCX1236723S ELI: not available (Union for the DEFENSE of officials) the Constitutional Council has received 23 July 2012 by the Council of State (decision No. 356381-356386 of July 23, 2012), under the conditions provided for in article 61-1 of the Constitution a priority issue of constitutionality raised by the Union of defence of officials, relating to compliance with the rights and freedoms that the Constitution guarantees of articles 1-1, 29, 29-1 and 29-2 of Act No. 90-568 of 2 July 1990 relating to the organisation of the public service of post and France Telecom and articles 2 and 8 of Act No. 2003-1365 31 December 2003 relating to the obligations of public service telecommunications and in France Telecom.
The Constitutional Council, having regard to the Constitution;
Saw the Ordinance No. 58 - 1067 November 7, 1958 amended organic law on the Constitutional Council.
Having regard to Act No. 83 - 634 of 13 July 1983 on the rights and obligations of civil servants;
Pursuant to Act No. 84 - 16 of 11 January 1984 on statutory provisions on the public service of the State;
Having regard to law No 90 - 568 of 2 July 1990 on the Organization of the public service of the post office and France Telecom;
Pursuant to law No. 2003 - 1365 31 December 2003 regarding the obligations of public telecommunications service and France Telecom.
Having regard to regulation of February 4, 2010 on the procedure followed before the Constitutional Council for the priority issues of constitutionality;
Having regard to the observations in intervention produced for the France Telecom company by the SCP Baker and McKenzie, lawyer at the bar of Paris, registered on 7 August and 14 September 2012.
Having regard to the observations produced to the applicant Union by the SCP Hélène Didier and François Pinet, lawyer at the Conseil d'Etat and the Cour de cassation, recorded August 31, 2012.
Having regard to the observations produced by the premier, recorded August 31, 2012;
Having regard to the parts produced and attached to the folder;
Mr. Patel for the Union for the defense of officials, Mr. Emmanuel Guillaume for the company France Telecom and Mr. Xavier Pottier, appointed by the Prime Minister, having heard at the hearing of October 2, 2012;
The rapporteur having been heard;
1. whereas pursuant to section 1-1 of the law of 2 July 1990 referred to above: "the France Telecom company is subject to the legislative provisions applicable to public limited liability companies insofar as they are not contrary to this Act.";
2. whereas pursuant to article 29 of the same Act: "La Poste and France Télécom staff are governed by specific statutes made under Act No. 83-634 of 13 July 1983 on the rights and obligations of officials and Act No. 84-16 of 11 January 1984 containing statutory provisions relating to the public service of the State." which contain specific provisions in the conditions laid down in the following paragraphs, as well as to article 29-1.
"The homologous body of officials of La Poste and France Telecom are governed by particular statutes that define the conditions under which agents of one of these bodies may be integrated, by simple mutation, in the homologous body of the other enterprise.
' The provisions of article 10 of Act No. 84-16 of 11 January 1984 shall apply to officials of the post office and France Telecom body. ' Staff of the post office and France Telecom are not the categories laid down in article 29 of Act No. 84-16 of 11 January 1984.
"La Poste and France Telecom officials may be, on request, available, seconded or placed out of the frame, ensuring the eigenfunctions in the companies and their subsidiaries, in a manner laid down by Decree in Council of State.".
'The third, fourth, fifth and sixth paragraphs of article 22 of Act No. 83-634 of 13 July 1983 shall apply to officials of La Poste and France Télécom, unless specific provisions of a convention or an inter-trade collective agreement, branch or company providing for more favourable provisions';
3. whereas pursuant to article 29-1 of the Act: "1. at December 31, 1996, the body of officials of France Telecom are attached to the national company France Telecom and placed under the authority of its president, who has the powers of appointment and management towards them. '' Officials of France Telecom staff remain subject to sections 29 and 30 of this Act. The president may delegate his powers of appointment and management and allow sub-delegation in form, procedure and time conditions he determines.
"The national company France Telecom may proceed until January 1, 2002 to external recruitment of officials to serve with her in the position of activity.
"France Telecom employs freely contractual agents under the regime of collective agreements.
"By derogation from article 9 of Act No. 83-634 of 13 July 1983 supra, chapter II of Act No. 84-16 of 11 January 1984, France Telecom officials participate with company employees to the Organization and the operation of their business, as well as in management of its social action, through representative institutions laid down in titles Ier in IV of Book III of the second part of the labour code , subject to the adjustments specified by Decree in Council of State, which are justified by the particular situation of officials of France Telecom.
'Article 16 of Act No. 84-16 of 11 January 1984 does not apply to employees of France Telecom. The fourth part of the labour code is applicable to France Telecom staff, subject to the adjustments specified by Decree in Council of State, which are justified by the particular situation of officials of France Telecom.
' Article 9 bis of Act No. 83-634 of 13 July 1983 supra applies for the election of the committees provided for in article 14 of Act No. 84-16 of 11 January 1984 above and for the determination of the composition of the joint appeals body representing France Telecom officials and responsible for 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 employees of France Telecom. By way of derogation to 7 of article 34 of Act No. 84-16 of 11 January 1984, France Telecom officials right to economic, social and trade union 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 establish specific benefits, which amount can be modulated to take account of the evolution of the other elements of the remuneration of officials of France Télécom, as resulting from article 20 of Act No. 83-634 of 13 July 1983.
"Detailed rules for the application of this article are specified by Decree in Council of State. This Decree specifies inter alia the particular composition and modalities of operation of the joint appeals body representing officials and to give an opinion on the texts relating to their statutes";
4. whereas pursuant to article 29-2 of the Act: 'during a transitional period, linked to the presence of officials in the company, powers the appointment and management of the officials present in the undertaking are conferred to the France Telecom president designated by the Board of Directors. However, the power to pronounce disciplinary sanctions of the fourth group, provided for in article 66 of Act No. 84-16 of 11 January 1984, belongs to the Minister of telecommunications who shall exercise it on proposal of the president of France Telecom and after receiving the opinion of the joint administrative commission sitting at the disciplinary board. » ;
5. whereas pursuant to article 2 of the aforementioned law of December 31, 2003: "Act No. 90-568 of 2 July 1990 on the organisation of the public post and telecommunications service is thus amended:" i. ― in the title, the words: 'and telecommunications' are replaced by the words: 'and France Télécom'.»
"II. — in article 1, the words:" and France Telecom and are referred to as the designation of operator France Telecom, and public, "..
"III. ― article 3 is repealed.
«IV. ― to article 4, the words: 'and France Telecom compete' shall be replaced by the word: "competing", the words: "in their sector of activity" by the words: "in its sector of activity", and the words: "Participate" by the words: "Participates".»
«V. ― article 5 is amended as follows: ' 1 ° the words: 'and France Telecom contribute' shall be replaced by the word: 'contribute';
«2 ° it is complemented by five well written paragraphs: «'without prejudice to the obligations entrusted to him for the purposes of national defence and security public pursuant to article l. 33-1 of the code of posts and telecommunications, France Telecom, at the request of the Government, establishes, operates, provides and maintains at all times and throughout the national territory» : '' a) networks or telecommunications services specialized security, assigned to the use of governmental authorities and representatives of the State on the national territory;
"" b) telecommunications services necessary during the travel of the President of the Republic. ".
«"The costs of these benefits shall be paid to France Telecom."» "» "A decree shall determine, as appropriate, the conditions for the application of this article."
«VI. ― article 6 is amended as follows: ' 1 ° in the first paragraph, the words: 'and France Telecom are involved' shall be replaced by the word: "participating";
«2 ° in the second paragraph, the words: "these operators may" shall be replaced by the words: "she can".»
«VII. ― article 8 is amended as follows: ' 1 ° in the first paragraph, the words: "fixed, for each public operators, its rights and obligations" are replaced by the words: "fixed the rights and obligations of the public operator";
«2 ° in the last paragraph, the words: "provided by each operator" are removed.»
"VIII. ― article 17 is repealed.
"IX. ― article 23-1 is repealed.
"X. ― article 34 is amended as follows: ' 1 ° in the first paragraph, the words:" the public operators' are replaced by the words: "to the public operator and France Télécom";
«2 ° in the second paragraph, the words: 'public operators' are replaced by the words: "of the public operator", and the words: 'two public operators' with the words: "two companies".»
«XI. ― article 35 is amended as follows: ' 1 ° in the seventh and thirteenth paragraphs, the words: 'France Télécom' are replaced by the words: "operators responsible for providing the universal service for telecommunications";
«2 ° in the eighth paragraph, after the words: 'the projects of plan contracts, are inserted the words: "of the public operator" and after the words: "and specification", shall be inserted the words: "the public operator and the operators responsible for providing the universal service for telecommunications";
«3 ° to the tenth preambular paragraph, the words: "operators" are replaced by the words: "the public operator and the operators responsible for providing the universal service for telecommunications".
6. whereas pursuant to article 8 of the law of December 31, 2003: "Act No. 90-568 of 2 July 1990 is amended:" i. ― to article 7, the words: "Each public operator" shall be replaced by the words: "The public operator".»
«II. ― article 9 is amended as follows: ' 1 ° in the first paragraph, the words: "and France Telecom" are 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' shall be replaced by the words: "This agreement".»
"III. ― article 10-1 is repealed.
«IV. ― A article 11, after the words: "of the Governing Council," shall be inserted the words: "of the public operator".»
"V. ― article 12 is amended as follows: ' 1 ° words:"on the boards"are replaced by the words:" Governing Council", the words:"of each of these public operators and their respective subsidiaries"by the words:" operator public and its subsidiaries", the words:"of public operators' with the words: "of the public operator" and the words: "and France Telecom" are deleted;
«2 ° it is supplemented by a paragraph worded as follows: ""articles l. 225-27 to l. 225-34 of the commercial code are applicable to all the staff of France Telecom, under the modifications specified by Decree in Council of State, which are made necessary by the status of the personnel defined in article 29 of this Act."«»»»» VI. ― at article 14, the words: "Each public operator" shall be replaced by the words: "The public operator".
«VII. ― article 15 is amended as follows: ' 1 ° in the first paragraph, the words: "each public operator" shall be replaced by the words: "the public operator", and the words: 'and France Telecom' are deleted;
«2 ° in the second paragraph, the words: "Each public operator" shall be replaced by the words: "The public operator". ".
"VIII. ― to article 25, the words: 'and France Telecom with their users, suppliers and third parties' shall be replaced by the words:"with its users, providers and third parties"."
"IX. ― to in article 26, the words:"public operators towards their users"are replaced by the words:"the public operator to its users".".
"X. ― in article 27, the words:" each operator's public "are replaced by the words:"of the public operator".".
«XI. — in article 28, the words: 'and France Telecom have' shall be replaced by the word: "has". ".
"XII. ― article 38 is amended as follows: ' 1 ° in the first paragraph, the words:"to the specificity of each operator' shall be replaced by the words: "to the specificity of the public operator";
«2 ° in the second paragraph, the words: "representatives of operators, users and the staff of the post office and France Telecom" are replaced by the words: "of representatives of the public operator, its users and its staff";
«3 ° in the third paragraph, the words: 'public operators' are replaced by the words: "of the public operator". ".
«XIII. ― article 39 is amended as follows: ' 1 ° in the first paragraph, the words: 'and France Telecom are subject' are replaced by the words: ' subject';
«2 ° in the second paragraph, the words: "They are subject" shall be replaced by the words: "It is subject". ".
"XIV. — in article 40, the words:"or France Telecom"are removed."
7. whereas, according to the Union applicant, by providing the maintenance of officials in the France Telecom company, while the company is more invested by law with a public service mission, the impugned provisions ignore "the constitutional principle by virtue of which the bodies of State officials cannot be established and maintained to provide for the performance of public service tasks"; In addition, it supports sections 29-1 and 29-2 of the law of 2 July 1990 to ignore the provisions of article 13 of the Constitution;
8. whereas article 1-1 of the law of 2 July 1990, which draw the consequences of the abolition of the mandatory State shareholding in the capital of France Telecom, 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 the principle whereby they are governed by specific statutes made under the laws of 13 July 1983 and January 11, 1984 for France Telecom staff referred to above; that they specify that the body of officials of France Telecom are placed under the authority of the president of the company designated by the Board of Directors; that the president of France Telecom has the powers of appointment and management to these officials; whereas articles 2 and 8 of the Act of December 31, 2003 have to amend the law of 2 July 1990 by repealing or amending the provisions from which it resulted that France Telecom was directly vested with public service tasks in the field of telecommunications;
9. whereas the priority issue of constitutionality concerns articles 29 and 29-1-29-2 of the law of 2 July 1990;
10 whereas, first, that, according to the second, third and fourth paragraphs of article 13 of the Constitution, the President of the Republic "appoints civil and military State posts. ― State Councillors, the grand Chancellor of the Legion of honour, the ambassadors and envoys extraordinary, master to the Court advisers accounts, prefects, representatives of the State in the communities of overseas governed by article 74 and in New Caledonia, General officers, the rectors of academies, directors of central Governments are appointed by the Council of Ministers. "― An organic law determines the jobs provided by the Council of Ministers and the conditions under which the power of appointment of the President of the Republic may be by him to be exercised on his behalf"; These provisions did not establish a right or freedom guaranteed by the Constitution; whereas their ignorance may therefore be invoked in support of a priority issue of constitutionality on the basis of article 61-1 of the Constitution; that the grievance raised contrary to sections 29-1 and 29-2 of the law of 2 July 1990 must therefore be rejected.
11 whereas, secondly, that contrary to the applicant Union, the impugned provisions does not affect any applicable constitutional principle officials nor any right or freedom guaranteed by the Constitution; that, subsequently, articles 29, 29-1 and 29-2 of the law of 2 July 1990 must be reported in accordance with the Constitution, decides: Article 1 more on this article...

Articles 29, 29-1 and 29-2 of Act No. 90-568 of 2 July 1990 on the Organization of the public service of the post office and France Telecom are in accordance with the Constitution.


Article 2 more on this article...

This decision will be published in the Official Journal of the French Republic notified under the conditions laid down in article 23-11 of the above-mentioned Ordinance of November 7, 1958.
Deliberated by the Constitutional Council in its meeting of 11 October 2012, attended by: Mr. Jean-Louis DEBRÉ, president, Mr Jacques BARROT, Ms. Claire BAZY MALAURIE, Mr Guy CANIVET, Michel CHARASSE, Hubert HAENEL and Pierre STEINMETZ.
Published October 12, 2012.


President, Jean-Louis Debré

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