Key Benefits:
(ACT WITH RESPECT TO COMBATING TAX FRAUD
AND LARGE ECONOMIC AND FINANCIAL OFFENDER)
The Constitutional Council was seized, under the conditions set out in the Second paragraph Article 61 of the Constitution, of the Law on the fight against tax fraud and the great economic and financial delinquency, on 6 November 2013, by MM. Jean-Claude GAUDIN, Pierre ANDRÉ, Gérard BAILLY, Philippe BAS, René BEAUMONT, Christophe BÉCHU, Michel BÉCOT, Mme Françoise BOOG, MM. Pierre BORDIER, Joël BOURDIN, Mme Marie-Thérèse BRUGUIÈRE, MM. François-Noël BUFFET, François CALVET, Christian CAMBON, Jean-Pierre CANTEGRIT, Jean-Noël CARDOUX, Jean-Claude CARLE, Gérard CÉSAR, Pierre CHARON, Alain CHATILLON, Jean-Pierre CHAUVEAU, Marcel-Pierre CLÉACH, Gérard CORNU, Jean-Patrick COURTOIS, Philippe DALLIER, Serge DASSAULT, Mme Isabelle DEBRÉ, MM. Francis DELATTRE, Gérard DÉRIOT, Mrs Catherine DEROCHE, MM. Eric DOLIGÉ, Philippe DOMINATI, Michel DOUBLET, Alain DUFAUT, André DULAIT, Louis DUVERNOIS, Jean-Paul ÉMORINE, Louis-Constant FLEMING, Jean-Paul FOURNIER, Yann GAILLARD, René GARREC, Mme Joëlle GARRIAUD-MAYLAM, MM. Jacques GAUTIER, Patrice GÉLARD, Bruno GILLES, Mrs Colette GIUDICELLI, MM. Alain GOURNAC, Francis GRIGNON, François GROSDIDIER, Charles GUENÉ, Pierre HÉRISSON, Michel HOUEL, Jean-François HUSSON, Jean-Jacques HYEST, Mrs Sophie JOISSAINS, Mrs Christiane KAMMERMANN, Mr Roger KAROUTCHI, Mrs Elisabeth LAMURE, MM. Gérard LARCHER, Daniel LAURENT, Jean-René LECERF, Antoine LEFÈVRE, Dominique de LEGGE, Jean-Pierre LELEUX, Jean-Claude LENOIR, Philippe LEROY, Gérard LONGUET, Roland du LUART, Michel MAGRAS, Philippe MARINI, Pierre MARTIN, Mme Hélène MASSON-MARET, M. Jean-François MAYET, Mrs Colette MÉLOT, MM. Alain MILON, Philippe NACHBAR, Louis NÈGRE, Philippe PAUL, Jackie PIERRE, Rémy POINTEREAU, Christian PONCELET, Ladislas PONIATOWSKI, Sophie PRIMAS, Catherine PROCACCIA, MM. Jean-Pierre RAFFARIN, Henri de RAINCOURT, André REICHARDT, Bruno RETAILLEAU, Charles REVET, René-Paul SAVARY, Michel SAVIN, Bruno SIDO, Mme Esther SITTLER, M. André TRILLARD, Mme Catherine TROENDLÉ, MM. François TRUCY, Hilarion VENDEGOU, Jean-Pierre VIAL, Jean-Paul AMOUDRY, Jean ARTHUIS, Jean-Marie BOCKEL, Jean BOYER, Vincent CAPO-CANELLAS, Vincent DELAHAYE, Yves DÉTRAIGNE, Mme Muguette DINI, MM. Daniel DUBOIS, Jean-Léonce DUPONT, Mme Françoise FERAT, Jacqueline GOURAULT, Sylvie GOY-CHAVENT, Chantal JOUANNO, M. Jean-Jacques LASSERRE, Mme Valérie LÉTARD, MM. Hervé MARSEILLE, Hervé MAUREY, Jean-Claude MERCERON, Michel MERCIER, Aymeri de MONTESQUIOU, Mme Catherine MORIN-DESAILLY, MM. Yves POZZO DI BORGO, Gérard ROCHE, Henri TANDONNET, Jean-Marie VANLERENBERGHE and François ZOCCHETTO, senators.
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 general tax code ;
Seen tax procedures book ;
Given the Customs Code ;
Seen Criminal Code ;
Given the Criminal Procedure Code ;
Seen Law n ° 2009-1674 of 30 December 2009 of rectifying finance for 2009;
Given the Organic Law on the Prosecutor of the Financial Republic, adopted definitively by the Parliament on 5 November 2013, together with the decision of the Constitutional Council n ° 2013-680 DC of 4 December 2013;
In view of the decree of 12 February 2010 modified in application of second paragraph of 1 of article 238-0 A of the general tax code ;
In view of the Government's observations, recorded on 19 November 2013;
The rapporteur was heard;
1. Considering that the petitioners have defected to the Constitutional Council the law on the fight against tax fraud and serious economic and financial delinquency; that they challenge the conformity with the Constitution of provisions of its Articles 1, 3, 5, 9, 15, 37, 38, 44, 57, 61 and 65;
Article 1, paragraph I:
paragraph I of Article 1 inserts into the Code of Criminal Procedure a Article 2-23 which recognises to any recognised association that has been declared for at least five years, proposing by its Statute to fight corruption, The possibility of exercising the rights granted to the civil party with regard to certain offences connected with that object; that this article enumerates these offences and refers to a decree in the Council of State to lay down the conditions under which These associations can be licensed;
3. Considering that, according to the applicants, the inadequacy of the guarantees surrounding the right of associations to implement public action violates the right to respect for privacy and the presumption of innocence; Would also result in " Privatization of public action " Contrary to the Constitution;
4. Considering, first, that the exercise by an association of the rights granted to the civil party does not call into question the presumption of innocence; that, for the offences listed in Article 1, it does not call into question the right to respect for Privacy; that the grievances arising from the lack of knowledge of these constitutional requirements are inoperative; and
5. Considering, second, that, on the one hand, only those associations which have been declared for at least five years and who have received, under the conditions laid down by decree in the Council of State, an authorisation of The administrative authority; that this authorisation may be granted only after verification of compliance by these associations with the laws and regulations applicable to them; that, on the other hand, it appears from the articles 88 and 392-1 of the Code of Criminal Procedure that the admissibility of the complaint with the formation of a civil party before the investigating judge And the action of the civil party before the court which is not attached to that of the public prosecutor shall be subject to the deposit, by the civil party, A deposit, the amount of which is fixed by the judge or the court, unless the court delivers the exemption; that it is apparent from Articles 91, 472 and 516 of the same code as when, after the civil action is brought by the civil party, a Decision not to take place or to relax is made, the persons referred to in the complaint may, without prejudice to a prosecution for slanderous denunciation, obtain damages either before the civil court or in the forms provided for in those cases. Article 800-2 of the same Code also provides that the court may Request from the person concerned, grant the person sought compensation in respect of the unrepeatable costs and pay that compensation to the civil party who has brought the public action into motion; that Articles 177-2 and 212-2 The same code allows the conviction to a civil fine of the author of a complaint with a civil party deemed abusive; that, in this case, the second paragraph of Article 800-1 provides that the costs of justice corresponding to the reports Ordered at the request of the author of the constitution of a civil party may be placed That it is clear from the foregoing that the complaint is in fact lacking that the right of an association to initiate public action under the rights granted to the civil party would not be surrounded by guarantees To ensure compliance with the requirements resulting from Article 16 of the 1789 Declaration of Human and Citizen Rights;
6. Considering that it follows from the foregoing that Article 1 must be declared in conformity with the Constitution;
On Article 3:
7. Considering that Article 3 amendsArticle 131-38 of the Penal Code, in order to establish, in certain cases, a new criterion Alternative to the determination of the criminal or correctional penalty incurred by legal persons; that it provides that, for a crime or an offence punishable by at least five years' imprisonment and having provided direct or indirect profit, the maximum number of The penalty is either the quintuple of the maximum rate of the fine provided for The natural persons is the tenth of the annual average turnover of the legal person, calculated on the last three annual sales figures known at the date of the facts; that it provides that, for a crime for which no penalty is imposed Is not provided for in respect of natural persons and where the crime has provided direct or indirect profit, the maximum amount of the penalty is either EUR 1 million or the fifth of the annual average turnover of the legal person, calculated on the The last three annual sales figures known at the actual date;
8. Considering that, according to the applicants, the new method of calculating the quantum of criminal and criminal penalties incurred by legal persons, based solely on their financial capacity, is contrary to the principle of Proportionality of the penalties and the principle of individualisation of penalties, both of which derive from Article 8 of the 1789 Declaration; that the provisions of Article 3, by holding turnover as a criterion for calculating the quantum of the Sentence, institute a difference in treatment between legal persons contrary to the Principle of equality before the law; that by not determining with sufficient precision the cases in which the alternative criterion for calculating the quantum of the sentence is applicable, those provisions would not respect the objective of value The constitutional accessibility and intelligibility of the law; that the legislator would also have misunderstood the scope of its jurisdiction;
9. Considering that Article 8 of the 1789 Declaration provides: " The law must establish only strictly and obviously necessary penalties ... " ; that under Article 34 of the Constitution: The law sets out the rules concerning ... the determination of the crimes and the penalties applicable to them " ; that Article 61 of the Constitution does not confer on the Constitutional Council a general power of assessment and decision of the same nature as that of Parliament; that, if the need for the penalties attached to the offences falls within the scope of the It is the responsibility of the Constitutional Council to ensure that there is no clear discrepancy between the offence and the penalty incurred;
10. Considering that by providing that, for any crime or offence punishable by at least five years' imprisonment by a legal person, where the offence has provided a direct or indirect benefit, the maximum penalty shall be established in proportion to the Turnover of the accused or accused legal person, the legislator has adopted a criterion for determining the maximum amount of the penalty incurred which does not depend on the link between the infringement to which it applies and the turnover and is Likely to be clearly out of proportion with the gravity of the The infringement found; that, as a result, the provisions of Article 3 disregard the requirements of Article 8 of the 1789 Declaration; that, without the need to examine the other complaints, they must be declared to be contrary to the Constitution;
On item 5:
11. Considering that Article 5 of Article 5 supplements the first section of Chapter IV of Title II of Book III of the Penal Code, relating to the offence of money laundering, by means of Article 324-6-1, under which: Any person who has attempted to commit the offences provided for in this section shall be exempt from punishment if, having notified the administrative or judicial authority, it has prevented the infringement and has identified, where appropriate, Other authors or accomplices.
" The penalty of deprivation of liberty incurred by the perpetrator or accomplice in any of the offences provided for in this section shall be reduced by half if, having notified the administrative or judicial authority, the offence has been discontinued or Identify, where appropriate, other authors or accomplices." ;
12. Considering that Articles 432-11-1, 432-11-1, 433-2-1, 434-9-2, 435-6-1 and 435-11-1 respectively, respectively, insert in the same Code the same code as sections 432-11-1, 433-2-1, 435-6-1 and 435-11-1, which provide that the penalty of deprivation of liberty incurred by the author or accomplice of a crime of Active or passive corruption or influence peddled is reduced by half if, having notified the administrative or judicial authority, it has made it possible to stop the offence or, where appropriate, to identify the other perpetrators or accomplices;
13. Considering that, according to the applicants, the penalty imposed by the perpetrators of offences will vary arbitrarily by the effect of those provisions; that it would result in an infringement of the principle of equality before the courts; that the absence of reliability Evidence from the testimony of " Turncoats " Would also violate the rights of the defence and the right to a fair trial; that the principle of individualisation of penalties should finally be disregarded;
14. Considering that, according to article 6 of the 1789 Declaration, the law " Must be the same for all, either protecting or punishing " Article 16 provides as follows: Any society in which the guarantee of rights is not guaranteed, nor the separation of powers, has no Constitution." ; that, if the legislator may provide for different rules of procedure according to the facts, the situations and the persons to whom they apply, it is on the condition that these differences do not make unjustified distinctions and that they are Guaranteed equal guarantees, in particular with respect to the principle of the rights of the defence, which in particular implies the existence of a fair and just procedure guaranteeing the balance of the rights of the parties;
15. Considering that, by the contested provisions, the legislature has implemented, for the offences of active or passive bribery and trading in influence, the general provisions of second paragraph of article 132-78 of the Penal Code which states: " The duration of the penalty of deprivation of liberty incurred by a person who has committed a crime or an offence shall be reduced if, having notified the administrative or judicial authority, it has made it possible to stop the offence, to prevent the infringement from occurring Damage or identification of other authors or accomplices." It has thus established, for the offences designated by the impugned provisions, a legal cause for the mitigation of the penalty according to the assistance provided to the administrative or judicial authorities by an offender or an accomplice, after the Commission of facts or some of them;
16. Considering, on the one hand, that by holding a reduction of half of the penalty incurred, the legislator has heard the cooperation of the perpetrators or their accomplices; that it has also pursued the objective of prevention of infringements The public order and the search for the offenders; and the differences in treatment which may result from the impugned provisions between persons who have committed or attempted to commit, as an author or an accomplice, the facts of the same Nature is based on objective and rational criteria in direct relation to the Objectives pursued; that, as a result, these provisions do not ignore the principle of equality;
17. Taking the view, on the other hand, that the contested provisions do not have the effect of derogating from the rules relating to the hearing of witnesses or that resulting from last paragraph of article 132-78 of the Penal Code that no conviction can be made on the basis of Declarations from persons who have been the subject of the provisions of this article; and Href=" /viewCodeArticle.do?cidTexte=LEGITEXT000006071154&idArticle=LEGIARTI000006577745&dateTexte= &categorieLink = cid"> provisions of Article 706-58 of the Code of Criminal Procedure, which allow, under certain conditions, the collection of Statements by a witness without his or her identity appearing in the proceedings, are applicable only to persons against whom there is no plausible reason to suspect that they have committed or attempted to commit an offence and, by May not apply to persons benefiting from the Finally, the provisions of the paragraph of Article 427 of the Code of Criminal procedure under which: " The judge may base his decision only on evidence brought before him in the course of the debates and the contradictorally discussed." ; that, under these conditions, the impugned provisions do not disregard the rights of the defence and the right to a fair and equitable procedure;
18. Considering that it follows from the foregoing that the provisions of Article 5, which do not infringe the principle of individualisation of penalties or any other constitutional requirement, must be declared in conformity with the Constitution;
Paragraph I of Article 9:
19. Considering that paragraph I of Article 9 relates to the aggravating circumstances of the offence of tax fraud provided for by the Href=" /viewCodeArticle.do?cidTexte=LEGITEXT000006069577&idArticle=LEGIARTI000006312980&dateTexte= &categorieLink = cid"> section 1741 of the general tax code ; that it replaces the last two sentences of the first paragraph of this article with six paragraphs Under which: " The penalties shall be increased to EUR 2 000 000 and seven years' imprisonment where the facts have been committed in the band or carried out or facilitated by means of:
' 1 ° Open accounts or contracts with organizations established outside Canada;
" 2. Either the interposition of natural or legal persons or of any body, trust or comparable institution established abroad;
" 3. Either the use of a false identity or false documents, within the meaning ofArticle 441-1 of the Penal Code, or any other Forgery;
" 4 ° either a fictitious or artificial resident tax resident abroad;
" 5 ° A fictitious or artificial act or the interposition of a fictitious or artificial entity " ;
20. Considering that, according to the applicants, the aggravation of the penalties incurred in cases of aggravated tax fraud disregards the principles of the need for offences and penalties and the proportionality of penalties; that the same would apply to the use of the concept "From" Organized band " In matters of tax fraud and inclusion, among aggravating circumstances, " The mere opening of an account abroad, including if it is declared " ;
21. Considering, first, thatArticle 132-71 of the Criminal Code provides: It is an organized band within the meaning of the law any grouping or arrangement established for the preparation, characterized by one or more material facts, one or more offences." ; that the principle of the necessity of the offences does not preclude the fact that the acts of tax evasion committed in the circumstances provided for in that article are subject to aggravated repression;
22. Considering, second, that the opening of accounts or contracts with organisations established abroad does not in itself constitute an unlawful act; that, however, that account has been used to commit the crime of fraud Tax, the legislator may adopt such a circumstance among those which lead to an increase in the repression of the crime of tax fraud; that, in the present case, the legislature considered that the use of accounts or contracts entered into with the Bodies established abroad could be of such a nature as to facilitate the commission and the Concealing the crime of tax fraud; that, by withholding this aggravating circumstance from the crime of tax fraud, it has not disregarded the principle of the need for offences;
23. Considering, in the third place, that by punishing the crime of aggravated tax fraud with a fine of EUR 2 million and a term of imprisonment of which the maximum is fixed at seven years, the legislator did not disregard the Principles of necessity and proportionality of penalties;
24. Considering that it follows from the foregoing that paragraph I of Article 9 must be declared in conformity with the Constitution;
On the 1 ° of Article 15:
25. Whereas the 1 ° of Article 15 supplements theArticle L. 247 of the book of tax procedures by three paragraphs which fix Cases in which the tax administration cannot compromise on tax fines or tax increases; that the penultimate paragraph of this article prohibits the tax administration from trading " (a) When considering the movement of public action for the offences referred to in the General Tax Code " ; that the last paragraph of this section prohibits the tax administration from trading " (b) Where the taxpayer implements delaying tactics aimed at undermining the proper conduct of the control " ;
26. Considering that, according to the applicants, the prohibition on trade when the administration " Contemplates " To put public action in motion depriving the tax administration and the judicial authority of their discretion and prerogatives; that this would result in an infringement of the separation of powers; and, furthermore, the reference to Situation in which the administration " Contemplates " To compromise the constitutional requirements of accessibility and intelligibility of the law; finally, the principle of individualisation of penalties would also be disregarded;
27. Considering that it is for the legislator to exercise fully the competence entrusted to it by the Constitution and, in particular, Article 34 thereof; that the full exercise of that competence and the objective of constitutional value of accessibility and Intelligibility of the law, which derives from Articles 4, 5, 6 and 16 of the 1789 Declaration, requires it to adopt sufficiently precise provisions and unambiguous formulae;
28. Considering that by adopting the a of Article L. 247 of the book of tax procedures, the legislator has heard that The tax administration will not be able to transact subsequently, as the case may be, to refer the matter to the criminal court by the administration or the referral to the Committee on Tax Offences; that no constitutional requirement obstructs What the law determines cases in which the tax administration Cannot compromise on tax fines or tax increases; that, in any eventArticle L. 247 of the book of the Tax procedures does not give the taxpayer a right to obtain a transaction in respect of such fines or increases; and that section 15, which does not ignore any other constitutional requirements and is not vitiated by inintelligibility, must Be declared constitutionally compliant;
On items 37 and 39:
29. Considering that Article 37 inserts in the book tax procedures a Article L. 10-0 AA according to which documents, documents or information which the tax administration uses and which are brought to its knowledge cannot be excluded " On the sole ground of origin " ; that such documents, documents or information must have been regularly brought to the attention of the administration, either under the conditions laid down in Chapter II of Title II of the book of tax procedures or Articles L. 114 and L. 114 A of Same code, " Either in application of the communication rights conferred on it by other texts or in accordance with the provisions relating to administrative assistance by the competent authorities of the foreign states " ;
30. Considering that, according to the applicants, the provisions of Article 37 infringe the right to respect for private life and the rights of the defence guaranteed by Article 16 of the 1789 Declaration;
31. Considering, moreover, that Article 39 of the Law amends Article 67 E of the Customs Code in order to introduce in this Article provisions similar to those of Article 37;
32. Considering that it is for the legislature to ensure the conciliation between, on the one hand, the exercise of constitutionally guaranteed freedoms, including the right to respect for private life arising from Article 2 of the Declaration of 1789 and the rights of the defence, and, on the other hand, the prevention of attacks on public order and the fight against tax fraud which are objectives of constitutional value;
33. Considering that the provisions of Articles 37 and 39 relate to the use of documents, documents or information brought to the attention of the tax or customs administrations, in the context of the control procedures with the exception of Visits to all places, whether or not private; that if such documents, documents or information cannot be excluded solely on the grounds of their origin, they must, however, have been regularly brought to the attention of the authorities In the context of the right of communication provided for, as the case may be, by tax procedures book or customs code, either Rights of communication provided for in other texts, or in application of the provisions relating to administrative assistance by the competent authorities of foreign States; that these provisions cannot, without prejudice to the requirements Pursuant to Article 16 of the 1789 Declaration, Enable the tax and customs authorities to avail themselves of documents or documents obtained by an administrative or judicial authority in conditions declared subsequently unlawful by the judge; that, under that reservation, the legislature has, in Adopting these provisions, or violating the right to privacy, or disregarded the rights of the defence;
34. Considering that it follows from the foregoing that, subject to the reservation set out in recital 33, Articles 37 and 39 must be declared in conformity with the Constitution;
On Articles 38 and 40:
35. Considering that section 38 of the Act amends the book of tax procedures in order to enable the tax administration to ask the judge for freedoms and The authorisation to carry out home visits on the basis of any information of origin; that it inserts, after the second subparagraph of paragraph II of Article L. 16 B of that Code, relating to income tax Or on profits and value added tax, as well as after Second paragraph of Article L. 38 of the same Code, relating to indirect contributions, stamp and assimilated legislation, a paragraph worded as follows: ' Exceptionally, the judge may take into account the documents, documents or information referred to in Article L. 10-0 AA, which cannot be excluded solely on the ground of their origin, where it appears that their use by the administration is Proportionate to the objective of researching and prosecuting offences under the general tax code " ; it also inserts, after paragraph V of Article L. 16 B, a paragraph V bis to the effect that: In the event that the visit concerns the office or domicile of a lawyer, the premises of the Bar Association or the premises of the financial settlement funds of the lawyers, it is made application of the Href=" /viewCodeArticle.do?cidTexte=LEGITEXT000006071154&idArticle=LEGIARTI000006575030&dateTexte= &categorieLink = cid"> article 56-1 of the Criminal Procedure Code " ;
36. Considering that, according to the applicants, the provisions of Article 38 of the Act disregard both the right to respect for privacy and the respect for the rights of the defence guaranteed by Article 16 of the 1789 Declaration;
37. Considering, moreover, that Article 40 of the Law amendsArticle 64 of the Customs Code in order to introduce into this Article of the provisions similar to those of Article 38;
38. Considering that the freedom proclaimed by Article 2 of the Declaration of 1789 implies the right to respect for private life and, in particular, the inviolability of the home;
39. Considering that the provisions of Articles 38 and 40 allow the tax and customs administrations to use all the information they receive, irrespective of their origin, in support of requests for authorisation to carry out visits Tax domiciled on the basis of Articles L. 16 B and L. 38 of the book of tax procedures or customs house visits operated on the basis ofArticle 64 of the Code of Customs ; that they provide that the use of this information must be exceptional and " Proportionate to the objective of research and enforcement of planned offences ", as the case may be, to the general tax code or to Customs code ; however, by allowing the judge to allow the administration to make home visits on the basis of documents, parts or Information of any origin, including illegal, the legislator has deprived Legal safeguards the requirements of the right to respect for privacy and, in particular, the inviolability of the home;
40. Considering that it follows from the foregoing that Articles 38 and 40 must be declared contrary to the Constitution;
On Article 44:
41. Considering that Article 44 relates to the taking of copies of documents subject to the right of communication of the tax administration; that its paragraph II introduces within section 1 of Chapter I of Title II of the first part of the book Tax procedures a new 2 ° ter including a new Article L. 13 F under which the Administrative Officers may, without the taxpayer being able to oppose them, take copies of the documents which they are aware of in the context of the Procedures for the adversarial examination of the tax situation of natural persons and Accounting procedures; that the purpose of its paragraph I is to supplementArticle 1734 of the General Tax, relating to the fine of EUR 1 500 applicable to the absence of the holding and to the destruction before the prescribed time limits of the documents subject to the right of communication of the tax administration or to the refusal to disclose those documents; that it Provides that this fine is applicable, in the case of opposition to the Copy of the documents provided for in the new Article L. 13 F of the book of tax procedures, for each document, without the total fines exceeding EUR 10 000 or, if this amount is higher, to 1 % of the turnover Reported by exercise subject to control or 1 % of the amount of gross revenue reported per year subject to control;
42. Considering that the applicants claim ignorance of the requirements of Article 8 of the 1789 Declaration as a result of the manifest disproportion between the offence and the penalty incurred;
43. Considering that by introducing, in paragraph I of Article 44, a fine in the event of opposition to the taking of copies of the documents subject to the communication right of 1 'tax administration amounting to EUR 1 500 ' For each document, without the total fines being more than EUR 10 000 or, if this amount is higher, 1 % of the turnover declared by exercise subject to control or 1 % of the gross revenue reported per year submitted ", the legislator has heard the repression of the right of the administration to obtain a copy of documents pursuant to Article 44, paragraph II; that, by providing for a fine of EUR 1 500 per document to be copied Would be refused, within the limit of a total of fines not exceeding EUR 10 000, Parliament did not establish a tax fine which was manifestly disproportionate in the light of the failure to fulfil obligations; whereas, on the other hand, in order to establish a global cap on the amount of sanctions that could be incurred, the legislature adopted criteria for Calculation, alternative to the threshold of EUR 10 000, in proportion to the turnover or the amount of gross revenue declared, unrelated to the infringements, and which are manifestly out of proportion with the seriousness of the infringements Which, therefore, should be declared to be contrary to the Constitution, Words: " Or, if this amount is higher, to 1 % of the turnover declared by exercise subject to control or 1 % of the amount of gross revenue reported per year subject to control " In the second subparagraph of paragraph I of Article 44;
44. Considering that, for the remainder, Article 44 must be declared in conformity with the Constitution;
On Article 57:
45. Considering that Article 57 amends the 2 of Article 238-0 A of the General Tax Code to add to the list Non-cooperative states and territories in tax matters, the non-member states and territories of the European Union which have not concluded an administrative assistance agreement with France whose stipulations or implementation ensure Obtaining the necessary information through the exchange On request or automatic as well as non-member states and territories of the European Union which have not made a commitment to set up an exchange both on request and by automatic means of information with France; Are applicable from January 1, 2016;
46. Considering that, according to the applicants, by establishing such a criterion for drawing up the list of non-cooperative states and territories, the legislator adopted " An impossible criterion to be defined to date in the absence of an international consensus on the modalities of an automatic exchange of information " ; that these provisions, by placing undue burden on a class of taxpayers in relation to their contributory faculties, would disregard the principle of equality before public office;
47. Considering that Article 13 of the 1789 Declaration states that: For the maintenance of the public force, and for administrative expenditure, a common contribution is essential: it must also be allocated among all citizens, because of their faculties'. ; that the legislator must, in order to comply with the principle of equality before public office, base its assessment on objective and rational criteria according to the aims it proposes; that this assessment should not, however, Cause a marked breakdown of this equality;
48. Considering that in order to combat tax fraud, the legislator, by Article 22 of the aforementioned Law of 30 December 2009, inserted Article 238-0 A in the Code General tax ; that under the first paragraph of paragraph 1 of this article: " The non-cooperative states and territories of the European Community, whose situation with regard to transparency and exchange of information in tax matters, have been considered non-cooperative at the date of 1 January 2010 Examination by the Organisation for Economic Cooperation and Development and which, on that date, did not conclude an administrative assistance agreement with France allowing the exchange of any information necessary for the application of the Tax legislation of the parties, nor signed with at least twelve States or territories Such a convention " ; that, pursuant to the second subparagraph of paragraph 1, the list of non-cooperative states and territories shall be fixed by order of the Ministers responsible for the economy and the budget taken after the opinion of the Minister for Foreign Affairs; 238-0 A provides that, as from 1 January 2011, the list referred to in paragraph 1 shall be updated, on 1 January each year, and specifies the conditions under which the States or Territories are withdrawn from or added to that list; that The decree of 12 February 2010 referred to above includes to date a list of ten states;
49. Considering that the operations carried out by persons located in these non-cooperative states or territories are subject to specific tax measures, including, in particular, the increase in the rates of levy on the Income and capital gains pursuant to articles 244 bis, 244 bis A and 244 bis B of the general tax code or an increase in the withholding rates on interest and dividends under the Articles 125-0 A, 125 A and 187 of the same code or on certain earnings and remuneration pursuant to Articles 182 A bis, 182 A ter and 187 of the same code; Carried out with companies established in these non-cooperative states or territories by residents in France are also subject to specific tax measures; that is so, in particular, from the exclusion of the regime of ' Parent companies " Undersection 145 of the General Tax Code, restrictions on the deduction of expenses under the section 238 A of the same code, of the increase in the taxation of capital gains from the sale of securities of companies domiciled in non-cooperative states and territories under Articles 39 and 219 of the same code, of the enlargement of the base Minimum lump-sum taxation under the section 123 bis of the general tax code, restrictions on the attribution of deductions to the source in That of Article 209 B of the same Code; that, on the other hand, certain tax fines are also increased when they concern non-cooperative states or territories; that is, in particular, the fines provided for by the Articles 1736 and 1766 of the general tax code;
50. Considering that by inserting in the general tax code an article 238-0 A the law of 30 December 2009 has heard fighting against the " Tax haven " By introducing a system of taxation to discourage investment and financial operations in the States and territories refusing to exchange tax information between administrations; rather, by providing for the inclusion on the list of Non-cooperative states and territories non-member states and territories of the European Union which have not concluded an administrative assistance agreement with France, the stipulations or implementation of which ensure that the Information required by the exchange on request or automatic as well as States and territories which are not members of the European Union which have not made a commitment to set up an automatic exchange of information, Article 57 of the Act referred to the promotion of assistance between States in the field of taxation ;
51. Considering that, according to the information provided by the Government, France has so far not concluded any bilateral agreements with a specific clause on the automatic exchange of information complying with the conditions laid down by the Consequently, in accordance with those provisions, a significant number of States and territories will be liable, in the absence of conventions passed on 1 January 2016 or in the absence of a commitment to do so Conventions or in the absence of interpretations of existing conventions As permitting automatic exchange of information, to be included on this list of non-cooperative states and territories; that, as is, the consequences resulting from the new criteria for the registration of a State or territory on that list In the case of undertakings which have an activity, are disproportionate to the objective pursued and are likely to result in a marked breakdown of equality before public office; that the provisions of Article 57 Unfamiliar with the requirements of Article 13 of the 1789 Declaration;
52. Considering, therefore, that Article 57 must be declared contrary to the Constitution;
On Article 61:
53. Considering that Article 61 provides for sanctions in the event of failure to reply or partial response to a notice to produce certain declarative elements relating to shareholders, subsidiaries and holdings; Paragraph I introduces a new paragraph IV inArticle 1763 of the General Tax Code providing for a fine of 1 500 EUR, or 10 % of the rights recalled if the latter amount is higher, for Each non-compliance by person or group of persons in respect of an exercise where the failure to reply or the partial answer relates to the lists of persons or groups of persons provided for under the provisions of the Articles 53 A, 172, 172 bis and 223 of the same code; that the 2 ° of its paragraph 1 restores an Article 1763 A providing for a fine of the same amount, " For each non-compliance by entity in respect of an exercise " Where the failure to reply or the partial answer relates to the declaration provided for in paragraph IV of Article 209 B of the same Code; Article 61, paragraph II, provides for the application of the new sanctions to declarations of which The deposit obligation ends on the date the law enters into force;
54. Considering that the applicants dispute the criteria for failure to comply with the provisions of Article 61, which would be insufficiently objective and precise; that they also submit that the principle of proportionality of the penalties is Unknown;
55. Considering, first, that under Article 34 of the Constitution, " The law sets out the rules for the determination of crimes and offences and the penalties applicable to them " ; that by referring to the lists of persons or groups of persons of law or fact provided for in accordance with the provisions of Articles 53 A, 172, 172 bis and 223 of the general tax code, the new paragraph IV of Article 1763 of the same code aims to quell the breach Obligations that do not arise directly from the law itself but from the regulatory measures required by its application; that the same applies to the reinstatement of Article 1763 A In the General Tax Code that refers to " The declaration provided for in paragraph IV of Article 209 B " The same code, whereas this paragraph merely refers to the declaratory obligations of the legal person to be fixed by decree in the Council of State; that, however, by repriming the absence of a response or the partial response to a Remains to produce documents required by regulatory measures of application, the legislator has defined the constitutive behaviour of these offences without disregarding the principle of the legality of the offences;
56. Considering, in the second place, that by providing for the suppression of the failure to reply or the partial response to a notice to produce certain documents of a fine of EUR 1 500 or 10 % of the rights recalled if the latter amount is higher, for For each non-compliance found in respect of an exercise, the legislature has not established a tax fine which is manifestly disproportionate to the failure to fulfil obligations and the consequences which may result from the tax to be paid by the taxpayer ;
57. Considering that the provisions of Article 61, which do not disregard any other constitutional requirements, must be declared in conformity with the Constitution;
On Article 65:
58. Whereas Article 65 insert after Chapter I of Title XIII of Book IV of the Code of Criminal Procedure a Chapter II entitled: Special powers of the Tribunal de grande instance de Paris and the Prosecutor of the Financial Republic " And including Articles 705 to 705-4; in particular, Article 705 provides that the Public Prosecutor of the Financial Republic, the investigating judge and the Paris Correctional Court shall exercise concurrent jurisdiction over that resulting from the Articles 43, 52, 704 and 706-42 of the same Code for the prosecution, investigation and judgment of certain economic and financial crimes, in particular, for some of these offences, ' In cases which are or would appear to be of great complexity, in particular due to the large number of authors, accomplices or victims or the geographical jurisdiction over which they extend " ;
59. Considering that, according to the applicants, the institution of the Prosecutor of the Financial Republic with a jurisdiction exercised in conjunction with the Public Prosecutor of the Republic near the Tribunal de Grande Instance of Paris and the other prosecutors of the The Republic is unaware of the objective of the constitutional value of accessibility and intelligibility of the law; in particular, by not determining precisely the rules on the allocation of jurisdiction between the public prosecutor's offices and the courts Concurrent jurisdiction and leave to the custody of seals to proceed to That distribution by means of a general circular of public action, the legislature would have disregarded the extent of its jurisdiction; that it would also result in an infringement of the principle of equality before the courts; that, finally, the presence of two Prosecutors close to the Tribunal de grande instance de Paris exercising concurrent jurisdiction would disregard the objective of the constitutional value of good administration of justice;
60. Considering, on the one hand, that under Article 6 of the 1789 Declaration, the Law " Must be the same for all, either protecting or punishing " Article 16 provides as follows: Any society in which the guarantee of rights is not guaranteed, nor the separation of powers, has no Constitution " ; that, if the legislator may provide for different rules of procedure according to the facts, the situations and the persons to whom they apply, it is on the condition that these differences do not make unjustified distinctions and that they are Guaranteed equal guarantees, in particular with respect to the principle of the rights of the defence, which in particular implies the existence of a fair and just procedure guaranteeing the balance of the rights of the parties;
61. Considering, on the other hand, that the proper administration of justice is an objective of constitutional value which results from Articles 12, 15 and 16 of the Declaration of 1789;
62. Considering, first, that under the paragraph of Article 30 of the Code of Criminal : The Minister of Justice conducts criminal policy as determined by the Government. It shall ensure the consistency of its application in the territory of the Republic " ; that the first paragraph and first sentence of the second paragraph of Article 35 shall have the following: The Attorney General ensures the application of the criminal law throughout the scope of the jurisdiction of the Court of Appeal and the proper functioning of the prosecutors' offices. -It facilitates and coordinates the action of the prosecutors of the Republic, both in the field of prevention and in the suppression of criminal offences " ; that the implementation of the public action in the context of those provisions must enable, in the interests of good administration of justice, to hinder the concurrent exercise of the powers defined by the contested provisions ;
63. Considering, second, that the fact that identical facts may give rise to several inquiries under the direction of various prosecutors in the Republic does not, in itself, disregard the principle of equality before the Justice;
64. Considering, last, that when two different investigating judges or two different courts are simultaneously seized of the same offence, the " Regulation of judges ", where appropriate by the Criminal Division of the Court of Cassation, under the conditions laid down in Articles 657 et seq. Of the Criminal Procedure Code ;
65. Considering that it follows from the above that the grievances alleging infringement of the principle of equality before the courts and the objective of the constitutional value of good administration of justice must be dismissed; Href=" /viewCodeArticle.do?cidTexte=LEGITEXT000006071154&idArticle=LEGIARTI000006577505&dateTexte= &categorieLink = cid"> provisions of Article 705 of the Code of Criminal Procedure resulting from Article 65, which are not tainted by any Unintelligibility and no other constitutional requirement, must be Declared in conformity with the Constitution;
On paragraphs IV and VI of Article 66:
66. Considering that article 66, paragraph IV, provides a new drafting of article 706-1-1 of the Code of Criminal Procedure ; That this item, on the one hand, applies the items 706-80 to 706-88, 706-95 to 706-103, 706-105 and 706-106 of the Code of Criminal Procedure, depending on the case, the investigation, prosecution, investigation and judgment of the offences of Tax evasion under sections 1741 and 1743 of the general tax code " When committed in an organized band or where there are presumptions that these offences result from one of the behaviours referred to in 1 ° to 5 ° of article L. 228 of the book of tax procedures ", customs offences provided for by the last paragraph of article 414 and Section 415 of the Customs Code " When they are punished by imprisonment for more than five years " And, finally, the laundering of such offences; that, on the other hand, this section 706-1-1 makes the provisions of the article applicable 706-88 of the Code of Criminal Procedure to the investigation and investigation of corruption and influence-trafficking offences, to which Articles 706-80 to 706-87, 706-95 to 706-103, 706-105 and 706-106 were already applicable under the article 706-1-3 of the Code of Criminal Procedure ; that, by implication, article 66, paragraph VI, repeals the article 706-1-3;
67. Considering that, according to the applicants, the possibility of resorting to tax fraud in the special investigation or investigation techniques reserved for organised crime and serious economic and financial crime and, in particular, In particular, the use of a custody measure for a period of ninety-six hours allowing the intervention of a lawyer to be postponed to the forty-eighth hour notice the prohibition of any rigour not necessary in the investigative measures and Statement;
68. Considering that Article 7 of the 1789 Declaration states that: No man shall be charged, arrested or detained except in cases determined by law, and in the manner prescribed by law. Those who seek, ship, execute or execute arbitrary orders must be punished; but every citizen called or seized under the law must obey at the moment: he is guilty by the resistance " ; that according to Article 9: Every man being presumed innocent until he has been found guilty, if it is deemed necessary to arrest him, any rigor that would not be necessary to ensure his person must be severely punished by law " Article 16 provides as follows: Any society in which the guarantee of rights is not guaranteed, nor the separation of powers, has no Constitution " ;
69. Considering that the legislature derives from Article 34 of the Constitution the obligation to lay down the scope of the criminal law itself; that, in the case of criminal procedure, this requirement is necessary in order to avoid unnecessary rigour Necessary when searching for offenses;
70. Considering that it is for the legislator to ensure conciliation between, on the one hand, the prevention of infringements of public order and the search for the perpetrators of offences, in particular in the objective of combating tax or customs fraud, all Two necessary for the preservation of rights and principles of constitutional value and, on the other hand, the exercise of constitutionally guaranteed freedoms; that the number of such freedoms is the freedom to go and come, the inviolability of the Home, confidentiality of correspondence and respect for privacy, protected Articles 2 and 4 of the 1789 Declaration, as well as individual liberty, that Article 66 of the Constitution places under the protection of the judicial authority;
With regard to the powers of supervision and investigation and the Conservatory measures:
71. Considering thatArticle 706-80 of the Code of Criminal Procedure allows that, except against the prosecutor of the Republic Prior informed, the competence of judicial police officers and judicial police officers is extended throughout the national territory for the supervision of persons suspected of having committed certain offences; Articles 706-81 to 706-87 allow the Public Prosecutor or the An investigating judge, where the requirements of the investigation or inquiry warrant, to authorize the conduct of an undercover operation of an officer or a judicial police officer consisting of " To supervise persons suspected of committing a crime or a crime by posing with such persons as one of their co-authors, accomplices or recelors " ;
72. Considering that Article 706-95 provides that, if the necessities of the investigation or the preliminary investigation so warrant, the Judge of Freedoms and Detention may authorize the interception, recording and transcribing of Connections issued by the telecommunications route;
73. Considering that Articles 706-96 to 706-102-9 provide that, where the requirements of the information so require, the examining magistrate may, by order, authorize the establishment, under his authority and his control, on the one hand, of a " Technical device having as its object, without the consent of the persons concerned, the capture, fixation, transmission and recording of words pronounced by one or more persons in private or confidential capacity, in places or vehicles Private or public, or the image of one or more persons in a private place " And, on the other hand, " Technical device having as its object, without the consent of the persons concerned, access, in any place, to computer data, to record, preserve and transmit them, as they appear on a screen for the user of a Automated data processing system or as it introduces them by entering characters " ;
74. Considering that Article 706-103 provides that in the course of the information the judge of liberty and detention may, in order to guarantee payment of the fines incurred and, where appropriate, compensation for the victims, order measures Conservatories on property, furniture or buildings, discrews or indivis, of the person being examined;
75. Considering that by allowing the use of these special powers of investigation and investigation for offences of corruption or trafficking in influence, aggravated tax fraud or customs offences punished by imprisonment of more than five Years, the legislator has considered that the difficulty in apprehending the perpetrators lies in the elements of extranite or the existence of a group or network whose identification, knowledge and dismantling pose problems Complex; and in the light of the seriousness of the offences committed by the Parliament has, for this purpose, been able to lay down special rules for surveillance and investigation; that, in the light of the safeguards for the implementation of these special investigative and investigative measures, the infringements of privacy and Ownership resulting from their implementation is not disproportionate to the purpose pursued;
With respect to custody:
76. ConsideringArticle 706-88 of the Code of Criminal provides that, if the necessities of an investigation so require, the May, on an exceptional basis, be the subject of two additional extensions of twenty-four hours each decided by the judge of liberty and detention or by the investigating judge; that, in this case, these Extensions, which are in addition to the duration of the common law defined by Article 63 of the same Code shall bring the maximum period of custody to a maximum of ninety-six hours; that this Article also allows the intervention of the lawyer to be postponed for a maximum period of 48 hours, taking into account the Compelling reasons relating to the particular circumstances of the investigation or inquiry, whether to permit the collection or retention of evidence, or to prevent harm to persons; that such postponement shall be decided by the investigating judge When custody is implemented in the course of judicial information; In the other cases, it is decided by the Public Prosecutor for the first extension and by the judge of liberty and detention for the second;
77. Whereas, with the exception of the offence provided for in the last paragraph of Article 414 of the Customs Code, the offences Listed in Article 706-1-1, bribery and trading in influence, as well as tax and customs fraud are offences which are not liable to affect the safety, dignity or life of persons in their own right; That by allowing the use of police custody in accordance with the procedures set out in Article 706-88 of the Code of Criminal Procedure in the course of investigations or instructions concerning these offences, the legislator has Permit that it be brought to the individual liberty and the rights of the defence an infringement which cannot be regarded as proportionate to the aim pursued; that, in consequence, at article 706-1-1 of the Code of Criminal Procedure, the reference to Article 706-88 of the Code must be declared contrary to the Constitution; Article 66, paragraph IV, must be declared to be in conformity with the Constitution; the same shall apply to its paragraph VI;
On the 3 ° of Article 15 and Article 16:
78. Considering that the 3 ° of Article 15 restores to the book of tax procedures a Article L. 251 A under which: " Each year, the Minister responsible for the budget publishes a report on the application of the tax administration's policy of free remittances and transactions. This report may be debated each year before the Standing Committees on Finance of the National Assembly and the Senate, in the presence of the Minister responsible for the budget " ; Article 16 inserts in the same code Article L. 228 B of which the second paragraph provides: ' The conditions for the initiation of criminal proceedings in the field of tax fraud and the criteria laid down by the Committee on Fiscal Offences in this matter are the subject of a debate each year before the relevant standing committees in The finances of the National Assembly and the Senate, in the presence of the Minister responsible for the budget " ;
79. Considering that these provisions, in so far as they impose the presence of the Minister of the Budget in the debates at issue before the permanent committees responsible for the finances of the National Assembly and the Senate, are contrary to The separation of powers; that, in the second paragraph of Article 15 and the last paragraph of Article 16, the words: " In the presence of the Minister responsible for the budget " Must be declared contrary to the Constitution;
Article 29:
80. Considering that under the second sentence of the first paragraph of Article 45 of the Constitution: Without prejudice to the application of Articles 40 and 41, any amendment shall be admissible at first reading if it contains a link, even indirect, with the text filed or transmitted " ;
81. Whereas Article 29 amended the second sentence of the penultimate subparagraph of Article 1844-5 of the Civil Code relating to The dissolution of the companies; the purpose of which is to extend from thirty to sixty days after the publication of that dissolution, the period during which the creditors may oppose the dissolution; that this article, introduced in the National Assembly At first reading, does not have a link, even indirect, With the provisions contained in the draft law; that, as a result, the provisions of Article 29 were adopted in accordance with a procedure contrary to Article 45 of the Constitution;
82. Considering that it is not appropriate for the Constitutional Council to raise any other constitutionality issue ex officio,
Decides:
Sections 37 and 39 of that Act are in accordance with the Constitution, subject to the reservation set out in recital 33.
Comply with the Constitution the following provisions of the Act:
-in Article 1, paragraph I;
-Article 5;
-in Article 9, paragraph I;
-Article 15, 1 °;
-the surplus of Article 44;
-Article 61;
-Article 65, section 705 of the Criminal Procedure Code ;
-in section 66, the surplus of article 706-1-1 of the Code of Criminal Procedure as a result of paragraph IV and paragraph VI.
This Decision shall be Published in the Official Journal of the French Republic.
Issued by the Constitutional Council at its meeting on 3 December 2013, attended by: Mr Jean-Louis DEBRÉ, President, Mr Jacques BARROT, Mrs Claire BAZY MALAURIE, Nicole BELLOUBET, MM. Guy CANIVET, Michel CHARASSE, Renaud DENOIX de SAINT MARC, Hubert HAENEL, and Nicole MAESTRACCI.
Public information December 4, 2013.
The President,
Jean-Louis Debré
