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Opinion N ° S 364630, 364766 Of March 13, 2013, Of The Council Of State (Section Of Litigation) On The Report Of The 6Th Subsection Of The Section Of Litigation

Original Language Title: Avis n°s 364630, 364766 du 13 mars 2013 du Conseil d'Etat (section du contentieux) sur le rapport de la 6e sous-section de la section du contentieux

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JORF n°0068 of 21 March 2013 page 4863
text No. 68



Opinion No. 364630, 364766 of 13 March 2013 of the Council of State (Litigation Section) on the report of the 6th sub-section of the contentious section

NOR: CETX1307349V ELI: Not available



Considering, 1° under number 364630, judgment No. 1200287, 1200288, of 18 December 2012, recorded on 19 December 2012 to the Secretariat of the Dispute of the Council of State, by which the Administrative Court of Clermont-Ferrand, before deciding on the request of Mr. and Ms.Larvaron for the discharge of additional tax contributions on the income to which they were subject as late 2007 provisions of Article L. 113-1 of the Administrative Justice Code, to transmit the file of this request to the Council of State, by submitting to its consideration the following questions:
1° As long as the combination of provisions of Article 1635 bis Q of the General Tax Code, Article 3 of the amended Act of 31 December 1971 and Article 326 quinquies of Schedule II to the general code of taxes makes an obligation, for applications submitted by the Ministry of Lawyer, to the court officer to pay, for his client, the contribution for legal aid by electronic means, except to justify a case being foreign, authorizing only the use of a stamp issued by the client, provisions of Article R. 411-2 of the Administrative Justice Codein the event that the foreign cause to the auxiliary of justice is neither justified nor even invoked?
2° In the case of a positive answer to the first question:
provisions of the second paragraph of Article R. 411-2 of the Administrative Justice Code, who derogate from the obligation of the judge to apply for the regularization of the application, do they find to apply?
– Is the possible production of a dematerialized tax stamp after the intervention of the closing of the instruction in order to regulate the request?
Having regard to the comments, recorded on 31 January 2013, submitted by the Minister for Budget;
Having regard to the observations, recorded on 18 February 2013, by Mr. and Ms. Larvaron;
In view of the observations, recorded on February 21, 2013, by the Seal Guard, Minister of Justice;
Seen, 2° under number 364766, judgment No. 1201069 of 20 December 2012, recorded on 24 December 2012 to the Secretariat of the Dispute of the Council of State, by which the Administrative Court of Lille, before deciding on the request of Mr. and Mrs. Cucey for the cancellation of the certificate of negative urbanism issued by the mayor of Saulty on 14 December 2011 for the construction of a joint housing on the part 110 provisions of Article L. 113-1 of the Administrative Justice Code, to transmit the file of this request to the Council of State, by submitting to its consideration the following questions:
1° An application by a lawyer and for which the contribution for legal aid has been paid through mobile stamps is inadmissible when the lawyer does not avail himself of any foreign cause that prevented him from satisfying the obligation imposed by the lawyers provisions of Article 1635 bis Q of the General Tax Code using the electronic channel?
2° In the case of a positive answer to this first question, should the judge reject this request as an ex officio or should he invite the lawyer to regularize his request by accepting the contribution for legal aid electronically?
Considering the other records;
Vu le General Tax Codeincluding article 1635 bis Q;
Vu la Act No. 71-1130 of 31 December 1971 ;
Vu le Decree No. 2011-1202 of 28 September 2011 ;
Vu le Administrative Justice Codeincluding article L. 113-1;
After hearing in public session:
― the report of Mr. Didier Ribes, master of petitions;
― the conclusions of Ms. Suzanne von Coester, public rapporteur,
Make the following notice:
1. The requests for advice submitted to the State Council relate to the interpretation of the same provisions. It should be answered by a unique opinion.
2. TheArticle 1635 bis Q of the General Tax Code states that: "When the proceeding is filed by a court officer, the court shall pay the contribution electronically on behalf of the client. /When the proceeding is filed without a court auxiliary, the party pays this contribution by mobile stamp or electronically. /The consequences on the instance of the failure to pay the contribution for legal aid are set by regulation. "Section 326 quinquies of Schedule II to the same code, derived from the Decree of September 28, 2011 on the right to compensation for the occupation of omitted near the course of appeal and the contribution for legal aid, taken for its application, states that: "When, for a cause that is foreign to it, a legal aid officer may not electronically make the payment of the contribution to itArticle 1635 bis Q of the General Tax Code, it is justified from the acquittal of the contribution by the affixing of mobile stamps. » TheArticle R. 411-2 of the Administrative Justice Code, in its writing from the same decree, provides that: "When the contribution for legal aid provided for in theArticle 1635 bis Q of the General Tax Code is due and has not been acquitted, the request is inadmissible. /This inadmissibility may be covered after the expiry of the appeal period. Where the applicant justifies having sought legal aid, the regularization of his application is postponed until the final decision on his application. /With the exception of the first paragraph of Article R. 612-1, the court may, on its own initiative, reject an application for such inadmissibility without a request for prior regulation, where the obligation to pay the contribution or, failing that, to justify the filing of a request for legal aid is mentioned in the notification of the decision under appeal or when the request is filed by a lawyer. »
3. It is the result of these provisions that, when it is due, the contribution for legal aid is paid, on behalf of its client, by the lawyer who must effectively justify, at the time of the introduction of the proceeding, its acquittal. The failure to pay the contribution for legal aid, electronically or mobile stamps, is, in the absence of regularization after the expiry of the appeal period, sanctioned ex officio by the inadmissibility of the application filed by the lawyer.
4. On the other hand, if it results from the same provisions that the lawyer must pay for the contribution for legal aid electronically, unless it is prevented by an external cause, justifying that the contribution is paid by the affixing of mobile stamps, the non-compliance with these practical terms of justification for the payment of the sum of thirty-five euros on the occasion of the introduction of a proceeding is not sanctioned by the application. The legislator, who referred to the regulatory authority to define the consequences on the instance of the failure to pay the contribution, did not attach such an effect to the failure to pay the contribution for electronic legal aid. An application by a lawyer and for which the contribution for legal aid has been paid through mobile stamps is therefore not inadmissible, even though the lawyer does not avail himself of any foreign cause which prevented him from satisfying the obligation imposed by the lawyers provisions of Article 1635 bis Q of the General Tax Code use the electronic channel.
5. In view of the above, it is not necessary to answer the other questions posed by the Clermont-Ferrand Administrative Court and the Lille Administrative Court, which are not applicable.
This notice will be notified to the Administrative Court of Clermont-Ferrand, to the Administrative Court of Lille, to Mr. and Ms.Larvaron, to Mr. and Ms. Cucey, to the Minister of Economy and Finance, and to the Minister of Justice.
It will be published in the Official Journal of the French Republic.


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