Key Benefits:
(FINANCE ACT FOR 2014)
The Constitutional Council has been seized, under the conditions laid down in the second paragraph of Article 61 of the Constitution, of the Finance Law for 2014, On 19 December 2013, by MM. Christian JACOB, Damien ABAD, Elie ABOUD, Bernard ACCOYER, Yves ALBARELLO, Mrs Nicole AMELINE, MM. Julien AUBERT, Olivier AUDIBERT-TROIN, Jean-Pierre BARBIER, Jacques-Alain BÉNISTI, Sylvain BERRIOS, Xavier BERTRAND, Etienne BLANC, Mme Valérie BOYER, MM. Xavier BRETON, Dominique BUSSEREAU, Olivier CARRÉ, Gilles CARREZ, Yves CENSI, Luc CHATEL, Alain CHRÉTIEN, Dino CINIERI, Eric CIOTTI, Jean-François COPÉ, Jean-Louis COSTES, Edouard COURTIAL, Mme Marie-Christine DALLOZ, MM. Gérald DARMANIN, Bernard DEFLESSELLES, Lucien DEGAUCHY, Patrick DEVEDJIAN, Nicolas DHUICQ, Mrs Sophie DION, MM. Jean-Pierre DOOR, Dominique DORD, David DOUILLET, Daniel FASQUELLE, François FILLON, Mme Marie-Louise FORT, MM. Yves FOULON, Marc FRANCINA, Yves FROMION, Laurent FURST, Claude de GANAY, Sauveur GANDOLFI-SCHEIT, Hervé GAYMARD, Mme Annie GENEVARD, MM. Guy GEOFFROY, Bernard GÉRARD, Alain GEST, Georges GINESTA, Charles-Ange GINESY, Jean-Pierre GIRAN, Claude GOASGUEN, Philippe GOSSELIN, Mme Arlette GROSSKOST, Françoise GUÉGOT, MM. Jean-Jacques GUILLET, Christophe GUILLOTEAU, Michel HEINRICH, Antoine HERTH, Patrick HETZEL, Guénhaël HUET, Sébastien HUYGHE, Denis JACQUAT, Christian KERT, Mme Valérie LACROUTE, MM. Jacques LAMBLIN, Jean-François LAMOUR, Mme Laure de LA RAUDIÈRE, MM. Guillaume LARRIVÉ, Charles de LA VERPILLIÈRE, Mme Isabelle LE CALLENNEC, MM. Marc LE FUR, Bruno LE MAIRE, Pierre LEQUILLER, Mme Geneviève LEVY, Véronique LOUWAGIE, MM. Lionnel LUCA, Jean-François MANCEL, Thierry MARIANI, Hervé MARITON, Olivier MARLEIX, Alain MARTY, Jean-Claude MATHIS, Damien MESLOT, Philippe MEUNIER, Pierre MOREL-A-L ' HUISSIER, Jean-Luc MOUDENC, Alain MOYNE-BRESSAND, Mme Dominique NACHURY, MM. Yves NICOLIN, Bernard PERRUT, Jean-Frédéric POISSON, Mme Bérangère POLETTI, Josette PONS, MM. Didier QUENTIN, Frédéric REISS, Arnaud ROBINET, Mme Sophie ROHFRITSCH, MM. Martial SADDIER, Paul SALEN, François SCELLIER, Mrs Claudine SCHMID, MM. André SCHNEIDER, Jean-Marie SERMIER, Fernand SIRÉ, Thierry SOLÈRE, Lionel TARDY, Guy TEISSIER, Michel TERROT, François VANNSON, Mme Catherine VAUTRIN, MM. Patrice VERCHÈRE, Jean-Sébastien VIALATTE, Jean-Pierre VIGIER, Philippe VITEL, Jean-Luc WARSMANN, Eric WOERTH, Mme Marie-Jo ZIMMERMANN, MM. Charles de COURSON, Yves JEGO, Jean-Christophe LAGARDE and Philippe VIGIER, MEPs;
And on December 20, 2013, by MM. Jean-Claude GAUDIN, François ZOCCHETTO, Pierre ANDRÉ, Jean ARTHUIS, Gérard BAILLY, Philippe BAS, René BEAUMONT, Michel BÉCOT, Jean BIZET, Jean-Marie BOCKEL, Mme Françoise BOOG, MM. Pierre BORDIER, Joël BOURDIN, Jean BOYER, François-Noël BUFFET, François CALVET, Christian CAMBON, Jean-Pierre CANTEGRIT, Vincent CAPO-CANELLAS, Jean-Noël CARDOUX, Jean-Claude CARLE, Mme Caroline CAYEUX, MM. Gérard CÉSAR, Pierre CHARON, Alain CHATILLON, Jean-Pierre CHAUVEAU, Marcel-Pierre CLÉACH, Gérard CORNU, Raymond COUDERC, Jean-Patrick COURTOIS, Philippe DALLIER, Serge DASSAULT, Mme Isabelle DEBRÉ, MM. Vincent DELAHAYE, Francis DELATTRE, Robert DEL PICCHIA, Gérard DÉRIOT, Mme Catherine DEROCHE, Mme Marie-Hélène DES ESGAULX, M. Yves DÉTRAIGNE, Mme Muguette DINI, MM. Eric DOLIGÉ, Philippe DOMINATI, Michel DOUBLET, Daniel DUBOIS, Mme Marie-Annick DUCHÊNE, MM. Alain DUFAUT, André DULAIT, Jean-Léonce DUPONT, Louis DUVERNOIS, Jean-Paul EMORINE, Mme Françoise FERAT, MM. André FERRAND, René GARREC, Jacques GAUTIER, Patrice GÉLARD, Bruno GILLES, Mme Colette GIUDICELLI, MM. Alain GOURNAC, Francis GRIGNON, François GROSDIDIER, Charles GUÉNE, Pierre HÉRISSON, Michel HOUEL, Benoît HURÉ, Jean-François HUSSON, Jean-Jacques HYEST, Mme Chantal JOUANNO, Christiane KAMMERMANN, M. Roger KAROUTCHI, Mme Elisabeth LAMURE, MM. Gérard LARCHER, Jean-Jacques LASSERRE, Daniel LAURENT, Antoine LEFÈVRE, Jacques LEGENDRE, Dominique de LEGGE, Jean-Pierre LELEUX, Jean-Claude LENOIR, Philippe LEROY, Mme Valérie LÉTARD, MM. Gérard LONGUET, Roland du LUART, Hervé MARSEILLE, Pierre MARTIN, Mme Hélène MASSON-MARET, MM. Hervé MAUREY, Jean-François MAYET, Mrs Colette MÉLOT, MM. Michel MERCIER, Alain MILON, Aymeri de MONTESQUIOU, Albéric de MONTGOLFIER, Mme Catherine MORIN-DESAILLY, MM. Philippe NACHBAR, Louis NÈGRE, Philippe PAUL, Jackie PIERRE, François PILLET, Ladislas PONIATOWSKI, Yves POZZO di BORGO, Sophie PRIMAS, Catherine PROCACCIA, MM. Jean-Pierre RAFFARIN, Henri de RAINCOURT, André REICHARDT, Bruno RETAILLEAU, Gérard ROCHE, Bernard SAUGEY, René-Paul SAVARY, Mme Esther SITTLER, M. Henri TANDONNET, Mme Catherine TROENDLE, MM. Jean-Pierre VIAL and Jean-Marie VANLERENBERGHE, senators.
The Constitutional Council,
Given the Constitution;
SeenOrder No. 58-1067 of 7 November 1958 , as amended Organic Law on the Constitutional Council;
Seen the Organic Law No. 2001-692 of 1 August 2001 on finance laws;
Seen Social action and family code ;
Given the Civil Code ;
Seen general territorial community code ;
Given the commerce code ;
Seen consumption code ;
Given the general tax code ;
Seen tax procedures book ;
Given the social security code ;
Vu Order No. 96-50 of January 24, 1996 relating to the repayment of social debt;
Given the Act No. 2011-1906 of 21 December 2011 for financing social security for 2012;
Due to law n ° 2012-1509 of 29 December 2012 of finance for 2013, together the decision Constitutional Council n ° 2012-662 DC of 29 December 2012;
Seen Law n ° 2013-1117 of 6 December 2013 on the fight against tax fraud and serious economic and financial crime;
Seen Government observations recorded on 24 and 26 December 2013;
The rapporteur has been heard;
1. Considering that the petitioners and senators petitioned the Constitutional Council for the 2014 Finance Law; that they challenge the conformity with the Constitution of its Articles 13, 15, 22, 92, 96, 97, 98, 100 and 106; In addition to its articles 3, 27, 30 and 134 and the senators Articles 77, 78, 99 and 101;
Article 3:
2. Whereas Article 3 amends the 2 of paragraph I of Article 197 of the General Tax Code relating to The application of the family quotient; that it lowers from 2 000 to EUR 1 500 the ceiling of the amount per half of the tax reduction resulting from the application of this quotient; that it also lowers from EUR 4 040 to EUR 3 540 the reduction limit The amount of tax corresponding to the share granted under the first child Single or divorced persons living alone; from 997 to EUR 1 497, the tax reduction of certain taxpayers who receive half a share in special social or family situations; and 672 to 1,672 euros the tax reduction to which, subject to certain conditions, widowed taxpayers with dependent children with an additional share of family quotient are entitled;
3. Considering that, according to the applicants, this lowering of the ceiling on the advantage provided by the family quotient, which succeeds the one resulting from Article 4 of the Finances Act 2013 referred to above, leads to a breakdown of equality before the Public charges between families without children and families with children;
4. Considering that Article 13 of the 1789 Declaration of the Rights of Man and the Citizen states: 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'. ; in particular, in order to ensure respect for the principle of equality, the legislator must base its assessment on objective and rational criteria according to the aims it proposes; that this assessment should not, however, lead to A marked breakdown of equality before public office;
5. Considering that it results from the very purpose of the family quotient mechanism and its capping that taxpayers with dependent children are treated differently, on the one hand, from taxpayers without dependent children and, on the other hand, Number of dependent children, that the ceiling on the family quotient does not call into question the taking into account of the contribution faculties resulting from this difference in situation; that by lowering the ceiling by 2 000 to EUR 1 500 by Half of the tax reduction resulting from the application of the family quotient, the Parliament did not disregard the requirements resulting from Article 13 of the 1789 Declaration;
6. Considering that, moreover, Article 3 is not contrary to the requirements deriving from the tenth paragraph of the Preamble to the Constitution of 1946; that it must be declared in conformity with the Constitution;
On Article 13:
7. Considering that Article 13 amendsArticle 885 V bis of the General Tax Code in order to complete the list of income which Shall be taken into account for the calculation of the ceiling on the solidarity tax on capital and all taxes payable on income; that it supplements paragraph I of that Article by a paragraph under which: " For the purposes of the first paragraph of this I shall also be regarded as income earned in the same year in France or outside France as income from good or capital contracts and investments of the same nature, in particular Life insurance contracts, underwritten with insurance undertakings established in France or abroad, for their amount retained under the Href=" /viewCodeArticle.do?cidTexte=LEGITEXT000006073189&idArticle=LEGIARTI000006740308&dateTexte= &categorieLien=cid"> 3 ° II of article L. 136-7 of the security code Social " ;
8. Considering that, according to the applicants, the integration, in calculating the ceiling on tax, of income " Latents " Which have not been realised and which the taxpayer does not have freely, would lead to an erroneous assessment of the contribution faculties; that it would in particular be so because of the hazards which affect these products until the outcome of the Life insurance contract; that, as a result, these provisions would contravene the requirement to take into account the contribution faculties recalled by the Constitutional Council in recital 95 of its decision of 29 December 2012;
9. Considering that by virtue of the third paragraph of Article 62 of the Constitution the decisions of the Constitutional Council " Be binding on the public authorities and all administrative and judicial authorities " ; that the authority of the decisions referred to in this provision focuses not only on their device but also on the grounds on which it is necessary and is the basis thereof;
10. Considering that if the authority attached to a decision of the Constitutional Council declaring the provisions of a law to be unconstitutional cannot in principle be usefully invoked against another law designed in separate terms, it is not Where the provisions of that Act, although drafted in a different form, have, in substance, an object analogous to that of the legislative provisions declared to be contrary to the Constitution;
11. Considering that, in its decision of 29 December 2012, the Constitutional Council considered the provisions of Article 13 of the Finance Law for 2013, which included, inter alia, the purpose of integrating into the income taken into account for the calculation of the Ceiling on the solidarity tax on wealth and income taxes " The change in the value of the purchase of good or capital contracts, investments of the same nature, including life insurance contracts, as well as financial instruments of any kind aimed at capitalising on income, subscribed to Companies established in France or outside France, between 1 January and 31 December of the previous year, net of payments and repurchases made between those same dates " ; that in recital 95 of that decision, the Constitutional Council ruled " That, in so doing, in computing the income of the taxpayer for the calculation of the ceiling of the solidarity tax on capital and all taxes due in respect of income, amounts that do not correspond to profits or income that the Taxpayer has made or disposed of in the same year, the legislature based its assessment on criteria which ignore the requirement to take into account the contribution faculties " ;
12. Considering, on the other hand, that by providing, in Article 13, to include in the income taken into account for the calculation of the ceiling of the solidarity tax on capital and on income taxes certain income of the good or capital contracts And investments of the same nature, such as life insurance contracts, while these amounts do not correspond to profits or income that the taxpayer has realized or disposed of in the same year, the legislator has disregarded The authority, under Article 62 of the Constitution, to the decision of the Council The Constitution of 29 December 2012; that it follows that Article 13 must be declared unconstitutional;
Article 15:
13. Whereas paragraph I of Article 15 establishes, in charge of individual undertakings, legal persons and companies, groups or non-legal entities operating a business in France, a " Exceptional tax on high salaries awarded in 2013 and 2014 " ; that, by virtue of paragraph II of the same article, that tax shall be based " On the part of the individual remuneration exceeding one million euro " ; that individual remuneration means, in accordance with the provisions of that paragraph, the sum of the gross amounts of the items which it lists as eligible for deduction of the taxable result, before the possible application of the provisions of the Second paragraph of 1 ° of 1 and 5 bis of Article 39 and articles 154 and 210 sexies of the general tax code; that B and C of paragraph II define how to The tax base of the remuneration elements referred to in A; that paragraph III sets 50 % of the rate of the fee, the amount of which is capped, pursuant to paragraph IV, at 5 % The turnover achieved in the year in respect of which the tax is due; that, pursuant to paragraph V, for the remuneration taken into account in the tax base for 2013, it is due on 1 February 2014 and, for those taken in Account in the tax base for 2014, it is due on 1 February 2015; that the provisions of B and C of paragraph V, as well as those of paragraph VI, lay down the arrangements for recovery; that, pursuant to paragraph VII, the tax is not Not allowed to deduct taxable results for the calculation of the exceptional contribution Corporate income tax; and
14. Considering that, according to the applicants, the provisions of Article 15 infringe the principle of equality before the tax law and the public charges; that the requesting senators contest, in particular, the definition of the base of the Tax on the basis that it will apply only to certain high remuneration; that, according to the applicants, by retaining in the basis of the tax base, the powers of option to subscribe or purchase shares, the Free allocations of shares and the undertakings of the undertaking in respect of Pensions, the legislature has not adopted objective and rational criteria; that the applicants also argue that the rate of tax may, in certain cases, exceed 75 % of the remuneration allocated and be confectionary; that the Applicants further submit that, for the compensation awarded in 2013, Article 15 is vitiated by retroactivity and disregards the requirements deriving from Article 16 of the 1789 Declaration;
With regard to the complaint The achievement of equality before the law and public burdens:
15. Considering that Article 6 of the 1789 Declaration states that: The law ... must be the same for all, either that it protects, or that it punishes " ; that the principle of equality does not preclude the legislator from treating different situations differently or derogate from equality for reasons of public interest, provided that, in either case, the difference in treatment Resulting from it being directly related to the purpose of the law that establishes it;
16. 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 this requirement would not be met if the tax was forfeit or placed an undue burden on a class of taxpayers in relation to their contributory faculties; and that under Article 34 of the Constitution, it is for the legislator to determine, in accordance with the constitutional principles and taking into account the characteristics of each tax, the rules according to which the contribution faculties must be assessed; In order to ensure respect for the principle of equality, it must base its assessment on Objective and rational criteria according to the aims proposed; that this assessment should not, however, lead to a serious breach of equality before public office;
17. Whereas by establishing a " Exceptional tax on the high remuneration attributed in 2013 and 2014 ", the legislature has put in place a tax base on the share of individual remuneration in excess of one million euros paid by individual companies, Legal persons and non-incorporated companies, groups or bodies operating a business in France;
18. Considering that the Compensation elements " Included in the tax base include salaries, wages or similar income, as well as all cash or in-kind benefits, attendance fees, pensions, retirement supplements, allowances, allowances or benefits Allocated as a result of retirement, amounts allocated under the provisions of the Labour Code on participation, interest And payroll savings, underwriting options Or the purchase of shares, as well as the free distributions of shares, the terms of purchase of shares of a company creator as well as " Reimbursements to other compensation element entities " Previously mentioned; that this exceptional tax is based on the share of the sum of the gross amounts of each of the items listed which exceeds EUR 1 million; that these gross amounts must be ' May be allowed as a deduction from the taxable result " Before applying the provisions of the second subparagraph of 1 ° of 1 and 5 bis of Article 39 and of Articles 154 and 210 Sexies of the general tax code Limiting the deductibility of certain expenses;
19. Considering, in the first place, that the Exceptional tax on high salaries awarded in 2013 and 2014 " Does not appear in the number of impositions on income; that, by imposing such a tax, the legislator has heard not the contributory capacity of the natural persons to whom those persons are attributed. Elements of remuneration ", but that of the persons and other bodies that ascribe them; that by holding, for the determination of the tax base, the sum of the gross amounts of the remuneration elements liable to be admitted As a deduction from the taxable result, and thereby excluding from the tax base certain remuneration, such as those of individual entrepreneurs and associated managers of partnerships not subject to corporation tax, the Legislator did not treat persons placed in situations differently Identical; that, as a result, it did not disregard the principle of equality before the law;
20. Considering, in the second place, that the legislator has accepted as a criterion for the ability to pay the debt of that person " Exceptional tax on high salaries awarded in 2013 and 2014 " The sum not only of the remuneration actually paid but also, in particular, of options for the subscription or purchase of shares in application of the articles L. 225-177 to L. 225-186-1 of the code of commerce, free allocations of shares pursuant to articles L. 225-197-1 to L. 225-197-6 of the same code, as well as the assignments of warrants for company-creator shares mentioned in thesection 163 bis G of the general tax code ; and by holding the sum of the different " Compensation elements " As a criterion of contributory capacity, the legislator did not make any manifest error of assessment;
21. Considering, in the third place, that in order to assess the confectionory character of the ' Exceptional tax on the high remuneration attributed in 2013 and 2014 ", with regard to the contribution faculties of the debt obligations, it is appropriate to take into account the only charges to which the latter are subject by reason of the allocation Of these compensation elements;
22. Considering that the rate of " Exceptional tax on high salaries awarded in 2013 and 2014 " Is set at 50 %; that it is clear from the parliamentary debates that the legislator has taken into account that, for most of the remuneration elements retained, the tax is accumulated with an average rate of taxes and social contributions having the same Plate and the same fact generator of 25 %; that it has thus heard that the cumulation of the rates of these taxes and contributions is set at 75 % of the remuneration attributed;
23. Considering that, in the case of the application of the maximum marginal tax rate, where the employer allocates pre-retirement benefits for which the Href=" /viewCodeArticle.do?cidTexte=LEGITEXT000006073189&idArticle=LEGIARTI000006741128&dateTexte= &categorieLink = cid"> article L. 137-10 of the social security code establishes a tax payable by the employer at the rate of 50 %, or when it assigns Gratuitous shares or subscription option assignments for which Article L. 137-13 of the same code establishes a tax due by The employer at the rate of 30 %, the cumulative rate of deductions exceeds 75 % of the amount corresponding to the remuneration allocated; that is the same when the enterprise grants defined benefit pension benefits; that, in this case, the Benefits are subject to a tax owing by the employer at the rate of 32 % under Article L. 137-11 of Article L. 137-11 of the same code, to which the employer's social package is added, for which Articles L. 137-15 and L. 137-16 have provided for a Rate of 20 % as well as an additional contribution due by the employer under the Href=" /viewCodeArticle.do?cidTexte=LEGITEXT000006073189&idArticle=LEGIARTI000006741129&dateTexte= &categorieLink = cid"> paragraph II bis of article L. 137-11 of the social security code at the rate of 30 %, for annuities exceeding eight times The annual social security ceiling;
24. Considering that the provisions of Article 15 establish a non-renewable tax for the only high remuneration granted in 2013 and 2014; that this taxation is based on the share of individual remuneration Individual, corporate and other similar bodies decide to allocate more than EUR 1 million; that the amount of that fee is capped at 5 % of the turnover of the year in respect of which it is due; and, finally, the assessment The forfeiture of the maximum marginal rate of levies Pay the person or organization that allocates the remuneration subject to this exceptional contribution, taking into account the various elements included in the tax base, reporting the cumulative total of the taxes it owes To pay the sum of that total and the remuneration granted; that, in those circumstances, and in view of the exceptional nature of the tax, the contested provisions do not have the effect of placing a burden on a class of taxpayers Excessive in relation to their ability to contribute; that, as a result, the complaint Disregard of the principle of equality before public office should be dismissed;
With regard to the grievance relating to the retroactivity of the contested provisions:
25. Considering that Article 16 of the 1789 Declaration states that: Any society in which the guarantee of rights is not guaranteed, nor the separation of powers, has no Constitution " ; if the legislator can retroactively amend a rule of law, it is on the condition of pursuing a goal of sufficient general interest and of respecting both the decisions of justice having the force of res judici and the principle of non-retroactivity Penalties and sanctions;
26. Considering that the provisions of Article 15 provide that for the remuneration allocated in 2013, taken into account in the tax base for 2013, the tax is due on 1 February 2014 and that for those allocated in 2014, Account in the tax base for 2014, it is due on February 1, 2015; that these provisions do not affect the requirements deriving from Article 16 of the 1789 Declaration;
27. Considering that it follows from the foregoing that Article 15 must be declared in conformity with the Constitution;
On Article 22:
28. Considering thatArticle 212 of the General Tax Code relates to rules for the deduction of certain interests of the tax base Company tax; that its paragraph I provides that interest relating to sums left or made available to a business by a related undertaking, directly or indirectly, within the meaning of Article 39 of Article 39 of the same code, shall be Deductible within the limit of those calculated on the basis of the First paragraph of 3 ° 1 of Article 39 or, if they are higher, according to the rate that this borrowing company could have obtained on the market;
29. Considering that paragraph I of Article 22 alters paragraph I of Article 212 of the General Tax Code in order to Make the deductibility of those interests subject to a second condition; that the debtor company must demonstrate, at the request of the administration, that the company that has made the money available is, in respect of the Subject to the same interest in a tax on income Or on profits of which the amount is at least equal to one quarter of the tax on profits determined under the conditions of common law; that its paragraph II provides that the new provisions shall apply to the financial years ended after 25 September 2013;
30. Taking the view that the applicants submit that those provisions define in a manner imprecise the scope of the new criterion on the deductibility of interest, do not specify the conditions under which the calculation of The tax paid by the lending business and provide a different interest deduction rule than the one provided for in 238 A of the General Tax Code for the deduction of Interest paid or owed to a business domiciled or established in a foreign state; that, as a result, the constitutional requirements for accessibility and intelligibility of the law are disregarded; and
31. Considering that the applicants and the requesting senators argue that by allowing the tax system of a company established in France to be dependent on that applicable to another undertaking established in another State, the contested provisions Infringe on equality before public office;
32. Considering that they support finally that by providing for the application of the provisions of article 22 to all financial years ended on 25 September 2013 and, consequently, the interest paid for those years in respect of operations of Previously concluded, the impugned provisions violate a legally acquired situation and disregard the requirements of Article 16 of the 1789 Declaration;
With regard to the grievance against the objective of Constitutional value of accessibility and intelligibility of the law:
33. Considering that it is for the legislator to exercise fully the competence entrusted to it by the Constitution and, in particular, Article 34; that the objective of the constitutional value of accessibility and intelligibility of the law, which flows from the Articles 4, 5, 6 and 16 of the Declaration of the Rights of Man and of the Citizen of 1789, requires it to adopt sufficiently precise provisions and unambiguous formulae in order to protect the subjects of law from an interpretation contrary to the Constitution or the risk of arbitrariness, without any reference to authorities Administrative or judicial authority to lay down rules whose determination has been entrusted by the Constitution only to the law;
34. Considering that the contested provisions are applicable only to the interest relating to the sums left or made available to a business by a business that meets the characteristics defined by the 12 of Section 39 of the General Tax Code ; that section 39 defines two types of dependency links, on the one hand, Where a business directly or directly owns the majority of the Social capital of the other, or in fact exercises the power of decision and, on the other hand, where the undertakings are placed both under the control of the same third undertaking; that, for the purposes of applying the contested provisions, it is the responsibility of The debtor company to demonstrate, at the request of the administration and by any means of evidence, that the business that made the money is, in respect of the current fiscal year, subject to taxation on income or profits Interest in issue at least equal to one-quarter of the tax on profits; Finally, where interest is deductible from the corporate tax base pursuant to the provisions of paragraph I of section 212, the provisions of section 238 A, which provide rules for the deduction of interest Owing by a natural person or legal person domiciled in France to natural persons or legal persons domiciled or established in a foreign State or territory outside France and subject to a tax system Privileged also find, if applicable, to apply;
35. Considering that it follows from the foregoing that the legislator did not disregard the objective of accessibility and intelligibility of the law;
With regard to the complaint alleging infringement of equality before public office:
36. Taking the view that it is clear from the travaux préparatoires that, by the impugned provisions, the legislator has heard, for the purposes of performance, combating artificial debt schemes that enable businesses to reduce the tax base On profits by means of loans from other companies with which they have links and who benefit from an exemption scheme or a low tax system; and, by making a subordering, for the calculation of the Tax on profits, deduction of interest in respect of amounts Left or made available to a business by a business related to the payment of a tax on income or profits by the lending business of an amount at least equal to one quarter of the tax on profits determined in the Conditions of common law, irrespective of the place of domicile or establishment of that undertaking, the legislature adopted an objective and rational criterion in relation to the objective pursued; that it did not treat persons placed in different places differently In the same situation; it does not result from a marked breakdown of equality In the face of public charges;
With regard to the complaint of infringement of the requirements of Article 16 of the 1789 Declaration:
37. Considering that Article 16 of the 1789 Declaration states that: Any society in which the guarantee of rights is not guaranteed, nor the separation of powers, has no Constitution " ;
38. Considering that it is at all times open to the legislature, acting in the field of its jurisdiction, to amend earlier texts or to repeal them by substituting, where appropriate, other provisions; that, in so doing, it cannot , however, deprive legal guarantees of the constitutional requirements; in particular, it cannot, without grounds of general interest, neither harm the legally acquired situations nor challenge the effects which may Legitimate expectations of such situations;
39. Considering that article 22, paragraph II, provides for the implementation of the provisions of paragraph I, To the financial years ended on 25 September 2013 " ; that by providing for the application of the new criteria authorizing the deduction by a business of interest in respect of amounts left or made available to it by a related business for the fiscal years ended September 25, 2013, The date on which the draft finance bill was introduced, the legislator has heard that the announcement of the reform does not result in effects contrary to the objective of performance pursued; that the retroactive effect resulting from these Provisions for interest paid before September 25, 2013 by the company The debtor, which is limited solely to the interest paid in respect of the financial year of the undertaking which made the sums available not to be closed on 25 September 2013, is justified on grounds of sufficient general interest; that the requirements of Article 16 The 1789 Declaration was not known;
40. Considering that it follows from all the foregoing that Article 22 must be declared in conformity with the Constitution;
On certain provisions of Article 27:
41. Considering that article 27 reform the regime for the taxation of capital gains and property rights;
42. Whereas the 1 ° of the A of paragraph I of Article 27 amends the first paragraph of Article 150 VC of the general code of Tax in order to exclude the application of any abatement on the gross capital gain subject to income tax for assignments of building land defined in 1 ° of 2 of paragraph I of Article 257 of the same code; that the 2 inserted in the Article L. 136-7 of the Social Security Code by the 3 ° of paragraph II, inter alia, to exclude from In the same manner the application of any deduction on the gross capital gain realized on assignments of land to be built for the liability for social levies on investment products; that the A of paragraph IV provides for Application of the provisions of 1 ° of A of paragraph I to capital gains Made in respect of assignments that occur on or after March 1, 2014;
43. Considering that the applicants dispute the abolition of any abatement for the establishment of the tax base on income tax and social levies on investment products in respect of capital gains from land transfer to Build on the provisions mentioned above in Article 27; that they submit that while the other provisions of Article 27 provide for increased permanent abatement and a temporary exceptional abatement under the provisions of Article 27 Other capital gains from disposal of real property to continue the same To put an end to the paralysis of the housing market, the provision of provisions contrary to the disposals of land to be built would reveal a lack of awareness of the objective of the constitutional value of intelligibility of the Act; that they also dispute the abolition of any abatement for the establishment of the income tax base in respect of capital gains from the sale of land to be constructed in the light of the principle of equality before public office, The resulting taxation for the taxpayer is forfeit and Creating distortions of taxation between taxpayers placed in the same situation; that they argue that the constitutional requirement for a fair and prior compensation is also disregarded, as long as the compensation paid in respect of a Expropriation of land to be constructed will be taxed as an obstacle to the acquisition of a property equivalent to the expropriated property; and finally, the legislature would have disregarded the extent of its field of jurisdiction, to the extent that the provisions Would refer to the local authorities the definition of the Taxation on capital gains from land to be built; and
44. Considering that, on the one hand, the legislator has, by the other provisions of Article 27, increased the annual rates of abatement for the period of detention of immovable property and related rights for the calculation of the gross capital gain subject to Income tax, thereby reducing the length of detention after which the capital gain is exempt from income tax from thirty to twenty-two years; and that it has also introduced an exceptional abatement mechanism for the Transfers intervening between 1 September 2013 and 31 August 2014, and Conditions, until 31 December 2016; that, on the other hand, the legislature has, by the impugned provisions, removed any device for abatement on the gross capital gain relating to the assignment of the land to be built defined at the 1 ° of the 2 of paragraph I of section 257 of the general tax code or of the rights relating to it Income tax, rather than the liability for social levies on Investment products; neitherArticle 150 VB of the General Tax Code nor any other provision have as its object or To take monetary erosion into account for the calculation of this gross capital gain;
45. Considering that it is clear from the preparatory work that the legislator has heard changes to the regime for the taxation of capital gains realized on the sale of land to be built in order to combat the retention of land resources by The owners; that the legislature considered that the market for the assignments of the land to be built defined in paragraph 1 of 2 of paragraph I Of Article 257 of the General Tax Code or of the rights In particular, the first of these markets would be more sensitive than other markets to a tax incentive for detention The application of different tax rules to the gross capital gain resulting from the assignment of building land and related rights, on the one hand, and the gross capital gain resulting from the transfer of other property, or Real estate rights, on the other hand, do not, in itself, ignore the principle Equality before the law;
46. Considering, however, that the imposition of capital gains on the sale of land to be taxed on income under section 200 B of the general tax code as well as the social levies provided by the section 16 of the order of January 24, 1996, by article L. 14-10-4 of the social action code and families, by the article 1600-0 F bis of the general tax code and articles L. 136-7 and L. 245-15 of the Social Security Code, irrespective of the time elapsed since the date of acquisition of the immovable property or immovable property disposed of and without taking account of the erosion of the value of the currency or of any abatement on The amount of the gross capital gain calculated pursuant to Articles 150 V to 150 VB of the same code, leads to the determination of the basis of those taxes in conditions which are unfamiliar with the requirement to take account of the contribution faculties of the Concerned taxpayers; that, in those circumstances, the provisions of Article 27 contested Infringe on equality before public office;
47. Taking the view that it follows from the above that, without the need to examine the other complaints, 1 ° of A of paragraph I, the words: " Or carried out during the assignment of building land as defined in paragraph 1 of 2 of the I of Article 257 of the Code, or of rights relating thereto " As set out in paragraph 2 of L. 136-7 of the Code of Social Security L. 136-7 of Article L. 136-7 of Article L. 136-7 In article 27, paragraph IV, must be declared contrary to the Constitution;
On Article 30:
48. Whereas paragraph I of Article 30 amendsArticle 1010 of the General Tax Code relating to the tax on Company vehicles in order to include in the tariffs of this fee a scale allowing to take into account the differences in pollution levels emitted by vehicles according to their type of motorisation and the year of their commissioning; that the 2 ° of this Paragraph I shall include after the first paragraph of Article 1010 a paragraph in Under which " The amount of the tax is equal to the sum of the two components, the tariff of which is determined in application, respectively, of the a or b, on the one hand, and of the other " ; that the 3 ° insert after the table of the b six paragraphs; that according to the first of these paragraphs: " Vehicles combining electric power and motorisation with petrol or diesel with emissions less than or equal to 110 grams of carbon dioxide per kilometre travelled shall be exempt from the tax component of a and b For a period of eight quarters, counted from the first day of the first quarter in progress on the first release date of the vehicle " ; that the c, inserted by the 3 ° of paragraph I of Article 30, is relative to the " Tariff applicable to the air pollutant emissions component, determined on the basis of fuel type " ; that it includes a table relating to that tariff; and specifies which vehicles are designated by the terms " Diesel and assimilated " And " Gasoline and Related " Finally, it states that this tariff does not apply to vehicles operated exclusively by electric power;
49. Whereas paragraph II of Article 30 repeals the paragraph III of Article 21 of the aforementioned Law of 21 December 2011 which Exempt from the tax underArticle 1010 of the General Tax Code vehicles combining electric power and one Gasoline or diesel engine that emits less than 110 grams of carbon dioxide per kilometre travelled; Article 30, paragraph III, provides that the new pricing rules provided for in paragraph I shall apply as from the taxation period opened on 1 October 2013; That paragraph IV states that " Fraction of the tax set out inArticle 1010 of the General Tax Code is assigned to the State with a sum of EUR 150 million In 2014 " ;
50. Considering that, according to the Members, by not distinguishing a passenger vehicle used by a company from the same passenger vehicle used by an individual, this additional tax disregards the principle of equality before public office ;
51. Considering that the impugned provisions are related to the only corporate vehicle tax; that it is clear from the parliamentary proceedings that the legislature, by amending the tariff of that tax, has heard an increase in its performance; Surplus, of course, to encourage companies to renew their fleet with vehicles emitting less air pollutants; and by not subjecting the vehicles of individuals to the same provisions, the legislator did not ignore the Principle of equality before public office;
52. Considering that it follows from the foregoing that Article 30 must be declared in conformity with the Constitution;
On Articles 77 and 78:
53. Considering, on the one hand, that article 77, paragraph 1, authorizes general advice to " Raise the rate of the property advertising tax or the right of registration provided for inArticle 1594 D of the general code of the Tax above 3.80 % and within the limit of 4.50 % for past acts and conventions concluded between 1 March 2014 and 29 February 2016. ; that paragraphs II and III lay down the conditions for implementation and application within the time of this faculty;
54. Considering, on the other hand, that Article 78 inserts Article L. 3335-3 into the general code of local authorities; that paragraph I of this article establishes a solidarity fund for the departments in 2014; that its paragraph II Provides that this fund shall be financed by a levy equal to 0.35 % of the amount of the property advertising tax base and the registration fees collected by the departments in 2013 in accordance with Articles 1594 A and 1595 of the general tax code; that its paragraph III sets out the allocation of funds between the funds Departments; that in accordance with paragraph III: III. -Fund resources are allocated to departments according to the following modalities.
" 1. For each department, the balance is calculated between:
" (a) The expenditure incurred by the department during the penultimate year in respect of active solidarity income in accordance with article L. 262-24 of the code of social action and families, of the custom allocation for the autonomy mentioned in the article L. 232-1 of the same code and of the compensation provision referred to in Article L. 245-1 of that code;
" (b) The sum of the amounts of compensation due to the department in respect of active solidarity income, during the year of allocation, pursuant to Article 59 of the Finance Law for 2004 (No 2003-1311 of 30 December 2003) and the section 51 of Act No. 2008-1425 of December 27, 2008 of finance for 2009, amounts of compensation paid to the department, during the course of The previous year, under Article L. 3334-16-2 of this Code, In the penultimate year, under the Personalized Benefit for Autonomy under the Articles L. 14-10-5 and L. 14-10-6 of the Code of Social Action and Families and in respect of the provision of compensation pursuant to Articles L. 14-10-5 and L. 14-10-7 of the same Code, as well as the allocation to the Department in application of the section 42 of Law n ° 2013-1278 of December 29, 2013 of finance for 2014.
" The per capita balance shall be equal to the balance divided by the population of the department calculated pursuant to Article L. 3334-2 of this
. 2. Fund resources are divided into two fractions:
" (a) The first part, of which the amount represents 30 % of the resources defined in II of this Article, benefits to departments whose tax potential per capita as defined in Article L. 3334-6 is less than the average tax potential by In all departments, or whose per capita income is less than 1.2 times the average per capita income of all departments. This fraction shall be distributed among the eligible departments according to the ratio, carried to the square, between the per capita balance of the department as defined in 1 of this III and the per capita balance noted for all departments;
" (b) The second part, the amount of which represents 70 per cent of the resources defined in II of this article, benefits the first half of the departments classified in descending order of their balance per capita as defined in 1 of present III and eligible This fraction shall be allocated between the eligible departments according to the population as defined in Article L. 3334-2 and the relative difference between the per capita balance set out in 1 of this III and the Median per capita balance.
" 3. Those departments whose per-capita amounts of transfer fees collected in the previous year are more than 1.4 times the per capita amount of all departments are not eligible for allocation under the Fund. The allocation under the funds of the departments eligible for the first fraction or the second fraction and whose transfer fee per capita is more than 1.1 times the average per inhabitant of the fees charged by the All departments are subject to a 50 % abatement.
" 4. For the purposes of this Article, the tax potential used shall be increased or, where appropriate, reduced by a fraction of the equal correction for each department with the difference between the following two terms:
" (a) The sum of the product determined by the application at the departmental bases of property tax on the constructed properties, of the property tax on the non-built-up property and the residential tax of the national average rate of taxation of each of those taxes in the Title of the year 2010 and the product determined by the application to the departmental occupational tax bases of the national average rate of taxation of this fee for the year 2009;
" (b) The sum of the product determined by the application to the departmental property tax bases on the constructed properties of the national average rate of that tax in respect of the year 2011, products collected in 2011 by the Department under the Contribution on the added value of undertakings and flat-rate charges on network undertakings provided for in theArticle 1586 of the general tax code and the products collected in 2011 by the Department in respect of the taxation provided for in 2 ° and 6 ° of Article 1001 of the same code and of the positive or negative amounts resulting from the application of 1.2 and 2.2 of the section 78 of Law No. 2009-1673 of 30 December 2009 of finance for 2010 collected or supported by the department in 2011.
" For the calculation of the tax potential per capita, the population to be taken into account is that calculated under Article L. 3334-2 of this Code.
" 5. For the purposes of this Article, unless otherwise stated, the population to be taken into account is that defined in the first paragraph of Article L. 3334-2 " ;
55. Considering that, according to the requesting senators, the adoption of those provisions, which originate in an agreement between the State and the local authorities, disregard the competence of the legislature; that Article 78 would have been adopted in accordance with a Procedure contrary to the Constitution, in particular Article 39 and the principle of the sincerity of parliamentary debates, in that its adoption by amendment of the Government would have removed the requirement for an impact assessment and an opinion of the Council of State ;
56. Considering that the requesting senators also argue that by imposing a levy of 0.35 % of the proceeds of transfer duties for consideration, while raising the maximum rate that the General Councils may fix, the maximum rate of 0.7 percentage points, the Combined provisions of Articles 77 and 78 lead to the imposition on the General Councils of raising the rate of such impositions in order to maintain the same level of resources; that this would result in interference by the legislator in the competence of the Departments; and, in addition, the perenniality of the levy, while the authorization for recovery The rate of duty would necessarily lead to a decrease in the resources of the departments; that this would result in an infringement of the principle of the free administration of local authorities and the financial autonomy of the Departments;
57. Considering that they are at last contesting the equalization arrangements between the departments established by Article 78; that they argue that the allocation criteria will lead to a very small number of funds being allocated to the Fund. The most populous departments; that this would result in a marked breakdown of equality before the law and public office;
With regard to the procedure:
58. Considering, on the one hand, that Article 77 originates from Article 58 of the draft finance bill for 2014 under advisability in the Council of Ministers on 25 September 2013 and deposited on the same day on the Bureau of the National Assembly; that the fact that In substance the terms of an agreement between the State and the representatives of the departments do not affect the regularity of the procedure for the adoption of this Article;
59. Considering, on the other hand, that by introducing by amendment an article establishing the Solidarity Fund in favour of the departments during the examination of the text at first reading in the National Assembly, the Government has made use of the right The provisions of the first paragraph of Article 44 of the Constitution; that no other constitutional or organic rules impede the use of this right;
60. Considering that Articles 77 and 78 have been adopted in accordance with a procedure in accordance with the Constitution;
With regard to the substance:
61. Considering that, while Article 13 of the 1789 Declaration does not prohibit the carrying out of certain categories of persons for a general purpose of interest, it must not result in a marked breach of equality Before public payloads;
62. Considering that, pursuant to Article 72 of the Constitution, the territorial authorities " Are freely administered by elected councils ", it is" Under the conditions laid down by law " ;
63. Whereas under the first three paragraphs of Article 72-2 of the Constitution: Territorial communities benefit from the resources available to them freely in accordance with the conditions laid down by
. They may receive all or part of the product from impositions of any kind. The law may authorize them to fix the plate and the rate within the limits it determines.
" The tax revenue and other own resources of the local authorities represent, for each category of communities, a decisive part of all their resources " ;
64. Considering that according to the last paragraph of Article 72-2 of the Constitution: The law provides for equalization schemes to promote equality between local and regional authorities. ; that it is open to the legislator to implement financial equalization between these communities by grouping them by categories, since the definition of the latter is based on objective and rational criteria; that this equalization Can correct not only the inequalities affecting the resources, but also the inequalities in the burdens; that it can be implemented by means of a state endowment or through a fund financed by the resources of the communities The rules laid down by the law on the basis of the last paragraph of Article 72-2 of the Constitution should not restrict the resources of local authorities to the point of distorting the principle of the free administration of these communities, as defined by Article 72 of the Constitution;
65. Considering, in the first place, that by adopting Article 77 which increased by 0.7 percentage point, for two years, the maximum ceiling of the rate of transfer fees for pecuniary duty that the General Councils are entitled to fix, the legislator has heard that The departments to finance the increase " Expenditure on the solidarity of the departments, following a crisis situation " ; that, by instituting, in Article 78, a levy equal to 0.35 % of the amount of the revenue base of these same rights to supply an equalization fund between the departments created for the year 2014 alone, the legislator has implemented the The provisions of the last paragraph of Article 72-2 of the Constitution; that no constitutional requirement shall require that the measures adopted by those two Articles be fixed for the same duration;
66. Considering, in the second place, that by fixing, in paragraph III of Article L. 3335-3 of the general code of the territorial authorities, the arrangements for the allocation between the resources departments of the Solidarity Fund, the legislator has On the understanding that this allocation is carried out not only in relation to inequalities affecting the tax potential per inhabitant and the amount and growth of revenue from transfer fees for consideration, but also taking into account the " Caselorest per capita " Of each department in respect of the individual solidarity allowances; that it has pursued the objective of reducing disparities between departments as regards this " Remains on a per capita basis " ; that the criteria for determining the recipient departments as the redistributive criteria chosen are objective and rational; that they are directly linked to the objective pursued by the legislator to redistribute a share of the revenue Originating from the departmental share of the transfer fee for consideration; that it does not result from a marked breakdown in the equality of departments before public office;
67. Considering, in the third place, that the legislator has instituted a ceiling which applies to the sum of the levy for the benefit of the solidarity fund in favour of the departments and levies operated in favour of the national equalization fund Transfer fees for consideration pursuant toArticle L. 3335-2 of the General Code of Territorial Communities ; That it has set this ceiling to 12 % of the product of the transfer rights to Pecuniary interest received by the department in the year preceding that of the allocation; that neither the amount of the levy thus capped nor the rules for the allocation of the fund's resources restrict the resources of the departments to the point of distortion The principle of their free administration;
68. Considering that it follows from the foregoing that Articles 77 and 78 must be declared in conformity with the Constitution;
On Article 92:
69. Considering that Article 92, paragraph I, creates a support fund of EUR 100 million per year for a period of up to 15 years, intended for local authorities, their groups, local public institutions and Departmental fire and rescue services, as well as the overseas communities and New Caledonia having subscribed to certain borrowings " Structured " And financial instruments; that this fund, which is managed on behalf of the State by the Service and Payment Agency, is intended to provide assistance to these communities and institutions in order to enable them to repay in advance the loans " The most sensitive and related hedging instruments " ;
70. Considering that the second to sixth subparagraphs of Article 92 (1) of Article 92 lay down the conditions and arrangements for the payment of the aid granted by the support fund; in particular, the second paragraph provides that the aid shall not exceed 45 % of the amount of the early repayment payments due; furthermore, the fifth paragraph provides that the payment of aid in respect of one or more borrowings from the same credit institution is subject to the conclusion Prior to this establishment of a transaction, within the meaning of section 2044 of the Civil Code, relating to them;
71. Considering that article 92, paragraph II, reads: " Subject to res judiced court decisions, loan contracts and endorsements to such contracts concluded prior to the publication of this Law between a credit institution and a legal entity shall be validated. As long as the validity of the stipulation of interest is disputed by the plea alleging failure to mention the overall effective rate prescribed by the article L. 313-2 of the Consumer Code, starting When these contracts and endorsements specify jointly:
" 1 ° The amount or method for determining loan repayment dates in principal and interest;
" 2 ° The periodicity of these deadlines;
" 3 ° The number of such maturities or the duration of the loan " ;
72. Whereas paragraph III supplements sub-section 1 of Section 1 of Chapter III of Title I of Book III of the Consumer Code by Article L. 313-2-2, which states: Where a loan agreement entered into between a credit institution and a legal person refers to a total effective rate below the overall effective rate determined in accordance with Article L. 313-1, the conventional interest shall remain payable by the borrower, But the latter is entitled to the payment by the lender of the difference between the two rates applied to the remaining capital due to each maturity " ; that section 2 of this section specifies that this section applies to loan contracts in progress on the date of publication of the Act; and
73. Considering that, according to the applicants, first, the combined provisions of Article 92 infringe the free administration and financial autonomy of the territorial authorities in so far as they make the payment of aid conditional By the support fund for a transaction concluded by the territorial community concerned with the lending institution and relating to the arrangements for early repayment of the loan, while at the same time they deprive them of the same Communities of the faculty to take advantage of the failure to mention in the contract Loan of the overall effective rate; second, the provisions of paragraphs II and III of Article 92 would not have their place in financial law; that, in the third place, those paragraphs II and III would have retroactive validation of Contracts for loans in breach of the requirements arising from Article 16 of the 1789 Declaration; that they claim, in the fourth place, that paragraphs II and III of Article 92 relate only to loan contracts entered into by Legal persons and institute, as a result, an unsubstantiated difference in treatment between Natural persons and legal persons; that the difference between the scope of paragraph I, which establishes a fund in support of certain legal persons under public law, and the scope of paragraphs II and III, which Apply to all legal persons, is not justified any more; that it would result from differences in treatment contrary to the principle of equality before the law and public charges;
With regard to paragraph I of Section 92:
74. Considering that Article 34 of the Constitution reserves to the legislator the determination of the fundamental principles of the free administration of local authorities, their powers and resources; that under the third paragraph Article 72 of the Constitution, local and regional authorities' Administer freely by elected councils " In accordance with the conditions laid down by law; that the first sentence of Article 72-2 also provides that local and regional authorities are entitled to resources which they may freely dispose of under the conditions laid down by law;
75. Considering that by subordinating the benefit of the aid paid by the support fund to the conclusion of a transaction between the borrower and the lending institution, the legislator has heard that the repayment of the loans in question has been favoured and To terminate any litigation; that these provisions do not affect the above constitutional requirements;
With respect to paragraph II:
76. Considering that Article 16 of the 1789 Declaration states that: Any society in which the guarantee of rights is not guaranteed, nor the separation of powers, has no Constitution " ; if the legislator can retroactively amend a rule of law or validate an administrative act or private law, it is on the condition of pursuing a goal of sufficient general interest and of respecting both the decisions of justice having force The principle of non-retroactivity of penalties and sanctions; moreover, the amended or validated act must not disregard any rule or principle of constitutional value, except that the purpose of the general interest concerned is Itself of constitutional value; finally, the scope of the amendment or Validation must be strictly defined;
77. Considering that theArticle L. 313-2 of the Consumer Code provides that the overall effective rate determined as Article L. 313-1 must be mentioned in any written statement of a loan agreement governed by the same article; that the reference to the overall effective rate in the loan agreement constitutes an essential element of the information of the borrower; The settled case-law of the Court of Cassation that the requirement A written statement indicating the overall effective rate is a condition of the validity of the stipulation of interest and that, in the absence of a conventional stipulation of interest, the legal rate must be applied from the loan; and
78. Considering that by validating the loan agreements and the riders to those contracts between a credit institution and a legal person, as the validity of the stipulation of interest would be challenged by the plea alleging failure to mention the rate As a whole, the provisions of paragraph II are intended to validate, retroactively, the clauses of contracts with a knowledge of section L. 313-2 of the code Consumption ; that it is clear from the parliamentary proceedings that, by adopting these provisions, the legislator has heard that the financial consequences which may result, for certain credit institutions to which the State has provided its Guarantee and have granted loans " Structured " To local authorities, their groups or local public institutions, of the generalisation of the reasons for judgment of the Tribunal de Grande Instance of Nanterre of 8 February 2013 on the grounds that, in the present case, A fax exchange can be viewed as a loan agreement;
79. Considering, however, that the validation resulting from paragraph II applies to all legal persons and to all loan contracts as the validity of the stipulation of interest would be challenged by the plea alleging failure to mention the The overall effective rate; that, on the one hand, these criteria are not in line with the objective pursued; that, on the other hand, this validation is very broad in scope; that, as a result, the contested provisions constitute an unjustified infringement of the Rights of legal persons who have subscribed to a loan; that, without need To examine the other grievances, Article 92, paragraph II, disregards the requirements of Article 16 of the 1789 Declaration;
With regard to paragraph III:
80. Considering that the provisions of paragraph III modify, in the consumption code, the applicable sanction where the overall effective rate mentioned in The loan contract shall be less than the overall effective rate determined in accordance with Article L. 313-1 of that code; that these provisions shall not apply to resources, charges, cash, borrowings, debt, guarantees or guarantees Accounting of the State; that they do not relate to taxation All types assigned to legal persons other than the State; that they are not intended to be allocated to territorial authorities or to approve financial agreements; that they are not related to the Financial responsibility of public service officials or the information and control of Parliament on the management of public finances; thus, they are foreign to the field of financial laws as a result of the Organic Law of 1 August 2001;
81. Considering that it follows from the foregoing that paragraphs II and III of article 92 must be declared to be contrary to the Constitution; that paragraph I of that article, which does not ignore any other constitutional requirements, must be declared In accordance with the Constitution;
Article 96:
82. Whereas paragraph I of Article 96 inserts in Title V of the first part of the book Ier of the General Tax Code a Chapter II entitled " Reporting of tax optimization schemes " Including 1378 undecies 1378 undecies;
83. Considering that the first paragraph of Article 1378 shall be binding on any person marketing a " Tax optimization scheme " Declare it to the administration before it is marketed; the following three paragraphs define the " Tax optimization scheme " As " Any combination of legal, tax, accounting or financial processes and instruments:
1 ° Dont the main purpose is to reduce a taxpayer's tax burden, to defer its liability or payment or to obtain the refund Taxes or contributions;
2 ° And which fulfils the criteria laid down by decree in the Council of State " ; that, in accordance with the last paragraph of Article 1378 h, the failure to comply with the obligation to declare the Tax optimization scheme " Results in the application of a fine equal to 5 % of the amount of revenue received in connection with the marketing of the scheme;
84. Whereas the first paragraph of Article 1378 decies imposes on any person developing and implementing a Tax optimization scheme " Within the meaning of Article 1378 not to declare it to the administration before its implementation; that, under the second paragraph of that article, the failure to comply with that obligation to declare " Results in the application of a fine equal to 5 % of the amount of the tax benefit provided by the implementation of the tax optimization scheme. This benefit is the difference between the amount of tax actually owed by the person and the amount of tax that the person would have paid had it not implemented the scheme " ;
85. Considering that Article 1378 undecies provides that the rules for the application of Chapter II thus inserted in the general tax code shall be fixed by decree in State Council;
86. Whereas paragraph II of Article 96 sets the date of entry into force of this Article on 1 January 2015;
87. Considering that, according to the applicants, by so defining the " Tax optimization scheme " And by referring to the decree the provision of the criteria, the legislature disregarded its jurisdiction; that the provisions of Article 96, by the seriousness of the sanctions which they provide, would also infringe the principles of legality of the Offences and the proportionality of the penalties and disregard the guarantee of the rights of the taxpayer;
88. Considering that, on the one hand, by virtue of Article 34 of the Constitution, the law sets out the rules concerning " Guarantees given to citizens for the exercise of public freedoms " And those concerning " The plate, the rate and the procedure for the recovery of any impositions of any kind " ; that it is for the legislature to exercise fully the powers conferred on it by the Constitution and, in particular, Article 34; that the objective of the constitutional value of accessibility and intelligibility of the law, which is derived from Article 4, 5, 6 and 16 of the 1789 Declaration, requires it to adopt sufficiently precise provisions and unambiguous formulae in order to protect the subjects of law from an interpretation contrary to the Constitution or against the risk of arbitrariness, Without referring to administrative or judicial authorities To lay down rules whose determination has been entrusted by the Constitution only to the law; that, on the other hand, the freedom to undertake is derived from Article 4 of the 1789 Declaration;
89. Considering that the " Tax optimization scheme " Is defined by the contested provisions as " Any combination of legal, tax, accounting or financial processes and instruments " Having for " Primary object " "From" To reduce a taxpayer's tax burden, to defer its due or payment, or to obtain a refund of taxes, taxes or contributions " And " Which meets the criteria laid down by decree in the Council of State " ;
90. Considering that any person who commercialises or elaborates and implements such a scheme must, by virtue of the contested provisions, declare the scheme to the administration before its marketing or implementation; that the failure to do so Reporting obligations shall be subject to a fine equal to 5 % of the amount of revenue received for the marketing of the " Tax optimization scheme " Or the amount of the tax advantage provided by its implementation;
91. Considering that in view of the restrictions imposed by the contested provisions on the freedom to undertake and, in particular, the conditions for the exercise of the activity of legal and fiscal advice, and taking into account the seriousness of the sanctions In the event of a lack of knowledge of those provisions, the legislator could not, without disregarding the aforementioned constitutional requirements, adopt such a general and imprecise definition of the concept of " Tax optimization scheme " ;
92. Considering, therefore, and without the need to examine the other complaints, that Article 96 must be declared contrary to the Constitution;
On Article 97:
93. Considering thatArticle 1735 ter of the general tax code represses the failure to reply or the partial response to a Remains addressed by the administration pursuant to paragraph III of Article L. 13 AA of the book of tax procedures for the control of transfer prices between undertakings which are in a situation of dependency or control or where One of those undertakings is established or incorporated in a State or Non-cooperative territory within the meaning ofArticle 238-0 A of the General Tax Code , which it provides for each audited financial year, A fine of EUR 10 000 or, if the corresponding amount is greater than that sum, and taking into account the seriousness of the deficiencies, of an amount up to 5 % of the transferred profits;
94. Considering that Article 97 amends Article 1735 ter to replace the reference to " 5 % of transferred profits " By reference to " 0.5 % of turnover " ;
95. Considering that, according to the applicants, those provisions infringe the principle of proportionality of the penalties;
96. 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;
97. Considering that by repriming a penalty of up to 0.5 % of the turnover the failure to reply or the partial response to the administration's request for transfer pricing control, the Parliament has, in the case of a failure to comply with a documentary obligation, adopted a criterion for calculating the maximum penalty which is not linked to the offences which have been suppressed and which is manifestly out of proportion to their seriousness; that, Article 97 must be declared contrary to the Constitution;
98 :
98. Considering that Article L. 13 AA of the book of tax procedures relates to the accounting verification obligations in respect of transfer pricing; that this Article applies to legal persons whose annual turnover is not Taxes or gross assets on the balance sheet amount to more than EUR 400 million and to legal persons who are directly or indirectly related to them; that it imposes on these persons to make available to the administration To justify the transfer pricing policy in the context of Transactions of any kind carried out with " Associated enterprises " Established or incorporated outside France; that paragraph II of that article sets out the list of such documentation;
99. Considering that Article 98 supplements paragraph II of Article L. 13 AA by a 3 ° in order to require that the administration be made available: " Decisions of the same nature as the interpretations, instructions and circulars referred to in Article L. 80 A, taken by the foreign tax administrations in respect of the associated undertakings " ;
100. Considering that, according to the applicants, those provisions do not have their place in a finance law; that, in addition, by requiring undertakings to make available to the French administration the interpretations that the foreign administration Had made known by its instructions or circulars, these provisions impose an impossible formality in so far as there is no binding means for the French undertaking to obtain the transmission of the solutions adopted by the Foreign administrations for a foreign business even associated;
101. Considering, first, that article 34, paragraph II, paragraph II, of the Organic Law of 1 August 2001 provides that the financial law of the year may include provisions relating to the arrangements for the recovery of taxation of all persons Nature; that, as a result, have their place in finance law the contested provisions amending the list of documents which certain legal persons have to keep to the provision of the administration in the context of the right of control of Administration for tax collection; and
102. Considering, second, that the provisions of Article 98 have neither the purpose nor the effect of imposing on the undertakings concerned to make available to the administration of documents originating from foreign administrations that those undertakings Would not have in their possession; that, as a result, the grievance that these provisions would impose an impossible formality is in fact missing;
103. Considering that it follows from the above that the provisions of Article 98, which do not disregard any other constitutional requirements, must be declared in conformity with the Constitution;
On Article 99:
104. Considering that article 99, paragraph I, modifies articles L. 13 and L. 102 B of the book of tax procedures in order to impose on taxpayers who hold analytical accounts the obligation, in the context of the verification of accounts by tax administration officials, to present Where their turnover exceeds the threshold of EUR 152.4 million or EUR 76.2 million depending on the type of activity, or where the total of their gross assets is greater than or equal to EUR 400 million, or where they Belong to legal persons or groups of persons of law or fact replying Under one of these conditions; that an identical obligation to present consolidated accounts is also provided for commercial companies establishing such accounts; that Article 99, paragraph II, inserts a new Article 1729 E in The general tax code, in order to provide for the application of the fine provided for in Article 17296 D of the same code in the event of failure to present the cost accounting or consolidated accounts in accordance with the new provisions laid down in the Paragraph I; that paragraph III provides for the implementation of paragraphs I and II Notices of verification issued as of the coming into force of the law;
105. Considering that the requesting senators argue that the introduction of these new obligations for the presentation of analytical accounts and consolidated accounts, while, on the one hand, these documents, which are not related to the Information necessary during a tax audit, may reveal strategic information or information relating to third parties and that, on the other hand, the legislator introduced, by the statute of December 6, 2013, a right to copy the documents presented in the control procedures, disregards the right to privacy and the freedom to undertake; that they also argue that the penalties applicable in the absence of compliance New obligations would be unrelated to the offence prosecuted and would not be aware of the principle of proportionality of penalties;
With respect to grievances arising out of the violation of the right to privacy and freedom To begin:
106. Considering that the freedom proclaimed by Article 2 of the 1789 Declaration implies the right to respect for private life; that the freedom to undertake derives from Article 4 of the 1789 Declaration; that it is for the legislature to ensure the Reconciling, on the one hand, the fight against tax fraud which is an objective of constitutional value, and, on the other hand, the exercise of constitutionally guaranteed freedoms;
107. Considering that the provisions of article 99, paragraph I, are related to the mere submission of documents to the tax administration; that this right of access cannot be exercised under the provisions of article L. 13 of the book of tax procedures, than when " Tax administration officials shall verify on the spot, in accordance with the rules laid down in this book, the accounts of taxpayers who are required to keep and present accounting documents " ; that if the officers of the administration, who are held incommunicable under the conditions laid down in Article L. 103 of the same Code, may take copies of the documents, pursuant to Article L. 13 F of the same Code, this Article provides for Making those copies secure; that the conciliation thus effected by the legislator between the aforementioned constitutional requirements is not manifestly unbalanced;
As regards the complaint alleging infringement of the principle of proportionality Penalties:
108. Considering that conformity with the Constitution of a law already enacted may be assessed on the occasion of the examination of the legislative provisions which modify it, supplement it or affect its field; that the contested provisions of the paragraph Article 99 of the Act introduces a new Article 1729 E in the general tax code providing for a fine established by reference to the fine provided for in Article 1729 D of the same code; that the provisions of Article 1729 E, which reprimand Thus the lack of presentation of the cost accounting or accounts Consolidated in accordance with paragraphs II and III of Article L. 13 of the book of tax procedures To supplement the provisions of Article L. 1729 D relating to the enforcement of breaches of the reporting obligations of the tax administration in the context of a control;
109. Considering that under the provisions of Article 1729 D of the General Tax Code : " Failure to present the accounts in accordance with the procedure laid down in Article L. 47 A of the book of tax procedures shall be subject to a fine equal to:
" 1 ° In the absence of any increase, 5 % of the turnover declared by exercise subject to control or 5 % of the amount of gross revenue reported per year subject to control;
" 2 ° In case of improvement, 5 % of turnover raised per exercise subject to control or 5 % of the amount of gross revenue raised per year subject to control;
" 3 ° A EUR 1 500 where the amount of the fine referred to in the 1 ° and 2 ° is less than that sum " ;
110. Whereas, by providingArticle 1729 D of the General Tax Code a fine in the event of failure to present the Accounting maintained by computerised systems according to the procedure laid down in Article L. 47 A of the book of tax procedures, the legislator has heard the failure to comply with the rules for the presentation of accounting documents in the The framework of a control by the tax administration; Article 1729 E of the general tax code introduced by paragraph II of Article 99 of the Act referred to, the application of the fine provided for in Article 1729 D, the legislator has heard the failure to comply with the new obligations of Presentation of documents in the framework of the procedure for the verification of accounts; that, in fixing the amount of these fines, in the absence of any increase, 5 % of the turnover declared by exercise subject to control or 5 % of the amount of the Gross revenue reported per year subject to control and, if raised, to 5 % of the figure The legislator has, in the case of a failure to comply with a documentary obligation, adopted criteria for calculating the amount of gross revenue raised per year subject to scrutiny, or 5 % of the amount of gross revenue raised per year under review. Turnover or the amount of gross revenue declared unconnected with the offences and which are manifestly out of proportion with the seriousness of the offences repressed; that it is therefore necessary to declare contrary to the Constitution 1 ° and 2 ° of section 1729 D of the general tax code and, at the 3 ° of the same article, the words: " Where the amount of the fine referred to in the 1 ° and 2 ° is less than that amount " ;
111. Considering that Article 99, which does not ignore any other constitutional requirements, must be declared in conformity with the Constitution;
On Article 100:
112. Considering that paragraph I of Article 100 amends the first paragraph of Article L. 64 of the book of tax procedures To amend the definition of acts constituting an abuse of law; that paragraph II of Article 100 provides that paragraph I applies to corrections notified as from 1 January 2016 for the only acts mentioned in the first paragraph Paragraph of article L. 64 of the book of past tax procedures or Completed as of January 1, 2014;
113. Considering that, according to the applicants, by defining the act constituting abuse of law as the act having the main motive of evading or mitigating the tax, the provisions of Article 100 are unfamiliar ' The freedom of the taxpayer to choose, for a given transaction, the cheapest tax route " ; that the freedom proclaimed in Article 2 of the 1789 Declaration would be disregarded; that Article 100 would also violate the requirements deriving from the principle of legality of offences and penalties; that the requesting senators support Moreover, the principle of legal certainty, the objective of accessibility and intelligibility of the law and Article 34 of the Constitution and the principle of non-retroactivity of the stricter criminal law are disregarded;
114. Considering, on the one hand, 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 objective of the constitutional value of accessibility and intelligibility of the law, which Derives from Articles 4, 5, 6 and 16 of the Declaration of the Rights of Man and of the Citizen of 1789, requires it to adopt sufficiently precise provisions and unambiguous formulae in order to protect the subjects of law against interpretation Contrary to the Constitution or the risk of arbitrariness, without reference to Administrative or judicial authorities to lay down rules whose determination has been entrusted by the Constitution only by law;
115. Considering, on the other hand, that the legislator maintains Article 34 of the Constitution, as well as the principle of legality of the offences and the penalties resulting from Article 8 of the Declaration of Human Rights and of the Citizen of 1789, the obligation to Establish the scope of criminal law and define crimes and offences in sufficiently clear and precise terms;
116. Considering thatArticle L. 64 of the book of tax procedures allows the administration, in a procedure of rectification, To dismiss the acts constituting an abuse of rights as not against it ' Either that those acts are fictitious or that, seeking the benefit of a literal application of the texts or decisions contrary to the objectives pursued by their authors, they could not be inspired by any other motive than that Evading or mitigating the tax burden that the person concerned, if such acts had not been carried out or carried out, would normally have borne in mind his or her situation or actual activities " ; that the contested provisions amend the definition of those acts in order to provide that they constitute an abuse of rights, not acts which " Could not be inspired by any other reason than to evade or mitigate " The tax that the person would have had to pay " Whether those acts had not been carried out or carried out ", but the acts which" Have for principal reason " To evade or mitigate the tax; that such a change in the definition of an act constituting an abuse of right has the effect of conferring a significant margin of appreciation to the tax administration;
117. Whereas, on the one hand, the procedure for the abuse of tax law may apply to all taxes on undertakings and individuals; that, on the other hand, the implementation of this procedure is accompanied, in addition to the recovery of The normal due tax and interest payment of 0.40 % per month under paragraph III of Article 1727 Of the general tax code, of an equal increase, under Article 1729 of the same code, 80 % of taxes payable, reduced to 40 % " Where it is not established that the taxpayer has had the main initiative of, or has been the main beneficiary of, the act of incorporation of the abuse of right " ;
118. Considering that, having regard to the consequences thus attached to the procedure of abuse of tax law, the legislature could not, without disregarding the abovementioned constitutional requirements, hold that acts of abuse of law would constitute an abuse of rights Having " For primary reason " Evade or mitigate the tax burden that the person would normally have incurred; and
119. Considering that it follows from the foregoing that, without the need to examine the other grievances, Article 100 must be declared contrary to the Constitution;
On Article 101:
120. Whereas pursuant to Article L. 189 A of the book of tax procedures: Where, following a proposal for rectification, an amicable procedure for the elimination of double taxation is opened between France and another State or territory on the basis of a bilateral tax treaty or convention European 90 /436/EEC on the elimination of double taxation in the event of the correction of the profits of the associated undertakings of 23 July 1990, the period for the period of establishment of the corresponding taxation shall be suspended from the date of the opening of the The amicable procedure at the end of the third month following the date of notification to the Taxpayer of the agreement or the finding of disagreement between the competent authorities, unless the rectified profits or income have benefited from a privileged tax system in the other State or territory within the meaning of section 238 A of the general tax code " ;
121. Considering that Article 101 repeals this Article; that this repeal is applicable to friendly procedures opened on or after 1 January 2014;
122. Considering that, according to the requesting senators, by removing the automatic suspension of the imposition of tax in the event of an amicable procedure, the repeal of Article L. 189 A of the book of tax procedures would deprive undertakings The possibility of recourse to an arbitration procedure intended to avoid double taxation; in particular, taking into account the provisions of Article 7 (3) of the European Convention of 23 July 1990 mentioned above, the repeal of Article L. 189 A would lead to the French taxpayer being unable to Recourse to the arbitral proceedings only after having given up any legal remedy in order to request a stay of payment of the impositions when he has already paid the tax abroad; that it would result in an infringement of the right to an appeal Jurisdictional;
123. Considering that it is clear from Article 16 of the 1789 Declaration that there should be no substantial infringement of the right of interested persons to bring an effective remedy before a court;
124. Considering that by removing the automatic suspension of the recovery of taxation in the event of the opening of the mutual agreement procedure for the elimination of double taxation, the legislator has heard the acceleration of the recovery of the tax; that The obligation to pay immediately the tax which may result from such removal shall not affect the right of the taxpayer concerned to obtain restitution if it is to be established that the power of taxation belongs to the other State concerned; that, in those circumstances, the repeal of Article L. 189 A of the The book of tax procedures does not constitute a substantial infringement of the right to an effective judicial remedy;
125. Considering that no other constitutional requirement requires the initiation of an amicable procedure to suspend the collection of tax; that, as a result, the provisions of Article 101 must be declared in conformity with the Constitution
On Article 106:
126. Whereas paragraph I of Article 106 inserts intoArticle 57 of the General Tax Code , in particular a new paragraph Which states: " Where a business transfers one or more functions or one or more risks to a related business, within the meaning of paragraph 12 of section 39, ceases to exercise or assume the risks in whole or in part, and that the business result of that business is One of the two fiscal years following the transfer is less than 20 % less than the average of the three fiscal years preceding the transfer, it must establish that it has received consideration equivalent to that which would have been agreed between Businesses that do not deal at arm's length. To this end, it shall provide to the administration, at the request of the Authority, all the elements necessary for the determination of the results achieved before and after the transfer by the undertakings which are parties to it, including those who are the beneficiaries of the transfer. Otherwise, the profits that should have been made are incorporated into its results. The obligation of justification referred to in the first paragraph of this Article shall not apply to the assignment of an isolated asset, nor to the grant of the right of use thereof where such assignment or concession is independent of all Other transfer of function or risk " ; that section 106, paragraph II, provides that these provisions apply to fiscal years ending on or after December 31, 2013;
127. Considering that, according to the applicants, the conditions for the entry into force of those provisions confer a retroactive effect in that they impose an amendment of the contractual provisions under which reorganizations Undertakings have already been carried out; that the requesting senators also argue that by failing to define precisely the scope and conditions of application of the rule for the reinstatement of profits, the legislature disregarded the scope of the Its jurisdiction; that it would in particular be so due to the absence of Definition of transfer concepts of " Functions " And " Risks " ;
128. Considering that according to article 34 of the Constitution, the law sets out the rules concerning " The plate, the rate and the procedure for the recovery of any impositions of any kind " ; that it is for the legislature to exercise fully the powers conferred on it by the Constitution and, in particular, Article 34; that the objective of the constitutional value of accessibility and intelligibility of the law, which is derived from Article 4, 5, 6 and 16 of the 1789 Declaration of Human and Citizen Rights, requires the legislator to adopt sufficiently precise provisions and unambiguous formulae;
129. Considering that the first paragraph of Article 57 of the General Tax Code provides that, for the purposes of establishing tax on the Income owed by enterprises which are under the dependency or who have control of undertakings located outside France, the profits indirectly transferred to them, either through the increase or decrease in the prices of purchase or sale, By any other means, " Are incorporated into the results charged by the accounts " ; that the new paragraph inserted in Article 57 by Article 106 provides, in the event of a transfer of functions or risks, and to certain conditions relating in particular to the negative development of the co-operating result of the transfer, On the one hand, that it is for the undertaking to provide evidence that it has received compensation equivalent to that which would have been agreed between undertakings not dealing at arm's length and, on the other hand, that, by default, ' The benefits that should have been realized " Are incorporated into the result;
130. Considering that the concepts of transfer of functions and risks are not defined; furthermore, the period corresponding to the benefits " Which should have been carried out " And are incorporated in the results is not determined; in addition, the last sentence of the new paragraph inserted in Article 57 shall define cases of exemption from " The obligation of justification referred to in the first subparagraph " Of this Article, whereas this first paragraph does not impose any " Obligation to show cause " ; in the light of the foregoing, that by adopting Article 106, the legislator has disregarded both the scope of its jurisdiction and the objective of constitutional value of accessibility and intelligibility of the law; that, without the need to examine The other grievance, section 106 must be declared contrary to the Constitution;
On section 134:
131. Considering that the Articles L. 2336-1 to L. 2336-7 of the General Code of Territorial Communities relate to the Fund National equalization of inter-communal and communal resources; that Articles L. 2531-12 to L. 2531-16 relate to the solidarity fund of the communes of the region of Ile-de-France;
132. Considering that paragraph I of Article 134 amends L. 2336-3 of Article L. 2336-3 of the General Code of the Communities the criteria for the calculation of the summary index of resources and charges according to which the levy on the tax resources of municipalities and public institutions for intercommunal cooperation is fixed. Taxation for the benefit of the National Equalization Fund Inter-communal and communal resources; that it brings from 11 % to 13 % the rate of resources defined in the 1 ° to 5 ° point of Article L. 2336-2 of Article L. 2336-2 of this code to which levies on the tax resources of the municipalities are capped and Public institutions for intercommunal cooperation in the field of taxation under this fund as well as the solidarity fund of the communes of the region of Ile-de-France; that paragraph II amends Article L. 2336-5 of the same code in order to carry out 0.75 to 0.9 the tax effort threshold calculated pursuant to paragraph V of Article L. 2336-2 from which municipalities and public institutions of inter-communal tax cooperation benefit from the allocation of the National Equalization Fund for inter-communal and communal resources; that paragraph III amends Paragraph II of Article L. 2531-13 of the Code; that it lays down new criteria for allocating the levy on the resources of the communes in favour of the solidarity fund of the communes of the region of Ile-de-France; that it bears the rate Maximum actual operating expenditure of the municipality that this levy does not May exceed 10 % to 11 %; it limits the increase in the levy when it exceeds 25 % compared to the increase in the previous year to half the increase exceeding that proportion;
133. Considering that the applicants submit that these provisions would infringe the financial autonomy of the territorial authorities guaranteed by Article 72 (2) of the Constitution as a result of the extent of the levies carried out in the Application of the contested provisions on the resources of municipalities and public institutions for inter-communal cooperation when they experience a concomitant decrease in the overall functioning of the operation; that the provisions Would also institute a difference in treatment between the The capping of the sum of levies under the National Equalization Fund for inter-communal and communal resources and the solidarity fund of the communes of the region of Ile-de-France which may Promote certain municipalities in this region;
134. Considering, in the first place, that the criteria for determining the levies on the resources of municipalities or public institutions for intercommunal cooperation in taxation for the benefit of the National Fund for the Equalization of resources The criteria for the allocation of resources of this fund as amended by paragraph II, as well as the criteria for the determination of levies on the resources of the municipalities, as amended by Article 134 Benefit of the solidarity fund of the communes of the modified Ile-de-France region By paragraph III are objective and rational; that they are in direct connection with the objective pursued by the legislator to redistribute resources of the municipalities according to their tax wealth; that it does not result from a marked breakdown of Equality before public office;
135. Considering, second, that by virtue of paragraph I ofL. 2336-3 of the General Code of the Communities Territorial, the sum of the levies on the resources of the municipalities and the public institutions for inter-communal cooperation to the benefit of the National Equalization Fund for inter-communal and communal resources for the current year And those on the resources of the municipalities for the benefit of the Solidarity of the communes of the Ile-de-France region in respect of the previous year may not exceed a fraction of the proceeds of the resources referred to in the 1 ° to 5 ° of Article L. 2336-2 of Article L. 2336-2 collected by each inter-municipal body or each That by introducing such a cap on levies operated under these two equalization funds, the legislator has agreed to limit the scope of such levies for each municipality or public establishment of inter-communal cooperation in order to Avoid interference with the free administration of municipalities; That the ceiling is calculated on the basis of the levies made in respect of the current year for the national equalization fund and those operated under the previous year for the equalization fund in Ile-de-France, the Parliament also heard the effect of the cumulative cap on levies on the national equalization fund;
136. Taking the view that, by the contested provisions, the legislator has, on the one hand, raised the rate of the specific ceiling for the levy from the solidarity fund of the communes of the Ile-de-France region from 10 % to 11 % of the actual expenditure of Operation of the commune and, on the other hand, raised the rate of the cumulative ceiling of the levies under the two equalization funds from 11 % to 13 % of the tax resources of the municipality or the public establishment of inter-communal cooperation ;
137. Considering that the criteria for capping the levies on the resources of municipalities and public institutions for inter-communal cooperation are objective and rational; that they relate to the objective pursued; that the ceiling Combined with levies on a national equalization fund and a regional equalization fund, both of which are intended to allocate the resources of the communes according to their tax wealth, does not affect certain communes in charge In the area of equalization higher than those of other municipalities having The same characteristics; that it does not result from a marked breakdown of the equality of municipalities in the face of public burdens; that it is not further undermined by the financial autonomy of the communes;
138. Considering that it follows from the foregoing that Article 134, which is not contrary to any other constitutional requirement, must be declared in conformity with the Constitution;
On paragraph I of Article 12:
139. Whereas paragraph I of Article 12 modifiesArticle 1135 bis of the General Tax Code ; Exemption applicable to the value of real estate and real estate situated in Corsica for estates opened from 1 January 2013 and defers the termination of this five-year exemption scheme;
140. Considering that those provisions increase the reduction of the rights of transfer attached to the derogating tax system applicable to estates in immovable property situated in the departments of Corsica and extend the benefit of such an exemption system From 31 December 2017 to 31 December 2022; that they lead to that, without any legitimate reason, the transmission of such buildings may be exempt from the payment of part of the transfer rights; that, in addition, changes in the characteristics of the Tax treatment of estates on real property situated in the Departments of Corsica whose extinction is scheduled for December 31, 2017, increase its derogatory character; that these provisions disregard the principle of equality before the law and public office; that, as a result, paragraph I of the article 12 must be declared contrary to the Constitution;
On certain provisions of section 76:
141. Considering that Article 76, paragraph I, 1, E, amends the provisions of paragraph I of Article 1647 D of the Code General of taxes relating to the minimum contribution of the assessments of the property assessment of undertakings; that the 1 ° of the E of paragraph I of Article 76 amends the brackets of the scale of the minimum contribution due by undertakings Not exceeding a turnover or annual revenue of EUR 500 000; That, concomitantly, the third paragraph introduced in I of Article 1647 D of the General Tax Code 1) Institutes the option, on the discharge of the municipal council, to apply a minimum fee structure whose amounts of revenue or revenue are reduced by half for taxpayers engaged in an activity whose profits Fall within the category of non-commercial benefits; The fifth paragraph introduced in 1 of paragraph I of Article 1647 D of the General Tax Code provides for the A taxpayer simultaneously engaged in activities whose profits fall under several classes of taxation, that the class of taxation of the profits to which the taxpayer belongs is that corresponding to its principal business; and
142. Considering that it is clear from the preparatory work that by allowing the municipalities and their groups to increase taxation in respect of the property assessment of businesses of the sole taxpayers who carry on an activity whose profits Fall within the category of non-commercial profits, the legislator has taken into account the larger contributory faculties of the holders of these non-commercial profits whose external charges are on average lower and which Thereby, on turnover or equivalent amount of revenue, a value Higher added;
143. Considering that the property assessment of the enterprises is a taxation which is intended to tax the rental value of the immovable property used by the taxpayer for the purposes of the business; that the minimum contribution is to adapt Businesses with a turnover reduces the scale of that taxation on the rental value of real property; that taxpayers in the non-commercial profit category would be, where the deliberative body of the Common or public institution of inter-communal cooperation in taxation Thus decided, subject to a different minimum contribution scale than the one that applies to other taxpayers subject to the minimum contribution; that the proposed scheme thus leads to a different treatment of the Taxpayers who are in identical situations with regard to the purpose of the minimum contribution; that, as a consequence, the reduction from EUR 500 000 to EUR 250 000 the maximum threshold of turnover or revenue for the benefit of The application of the minimum contribution and the provision of higher scale bands for the only A taxpayer who has sole or primary interest in an activity whose profits fall under the non-commercial profit category constitutes a marked breach of tax equality:
144. Considering that it follows that the twelfth and fourteenth paragraphs of article 76, relating to the third and fifth paragraphs of 1 of paragraph I of the section 1647 D of the general tax code, must be declared contrary to the Constitution;
On the place of others Provisions in the law referred to:
As regards the provisions adopted at first reading:
145. Considering that article 12, paragraph II, modifies63 of Law No. 91-428 of 13 May 1991 on status of the Community of Corsica to clarify the mission of the Joint Committee provided for in this Article, in order to include the study of the possibilities for improving all the specific tax provisions applicable in Corsica, in particular Those intended to facilitate the revival of the titles of To impose on this joint committee an annual meeting before the end of the second quarter;
146. Considering that Article 112 provides for the submission of a report to Parliament on the social work of the National Office of Veterans and Victims of War, as well as on the support provided by veterans' associations;
147. Considering that Article 113 provides for the submission of a report to Parliament on the measures to be taken to effectively allocate the benefit of the double campaign to all former combatants in North Africa;
148. Considering that Article 114 provides for the submission of a report to Parliament on the advisability of recognizing the status of former combatants to former United Nations Interim Force peacekeepers in Lebanon;
149. Considering that Article 115 provides for the submission of a report to Parliament on the appropriateness and the details of the modification of the Decree n ° 2010-653 of 11 June 2010 Application of the law on the recognition and compensation of victims of French nuclear tests;
150. Considering that Article 116 provides for the submission of a report to Parliament on the application of Decree No. 2000-657 of 13 July 2000 establishing a remedy for Orphans whose parents were victims of anti-Semitic persecution and of the Decree n ° 2004-751 of 27 July 2004 establishing financial assistance in recognition of the The suffering of orphans whose parents have Were victims of acts of barbarism during the Second World War;
151. Considering that article 121, paragraph III, provides for the submission of a report to Parliament outlining possible reforms to improve the social efficiency of the arrangements for personalised housing assistance, housing allowance Family and social housing allowance with a constant budget envelope;
152. Considering that these provisions do not concern the resources, the charges, the treasury, the borrowings, the debt, the guarantees or the accounts of the State; that they do not relate to impositions of any kind assigned to Legal persons other than the State; that they are not intended to distribute appropriations to the territorial authorities or to approve financial conventions; that they are not related to the system of the financial liability of agents Public services or the information and control of Parliament on management Public finances; thus, they are foreign to the field of finance laws as a result of the Organic Law of 1 August 2001 mentioned above ; that it follows from there that Article 12, paragraph II, Articles 112, 113, 114, 115, 116 and paragraph III of Article 121 have been adopted in accordance with a procedure contrary to the Constitution;
As regards the provisions adopted after the first reading :
153. Considering that the C of paragraph I of Article 11 provides for the introduction of a new Article 776 quater in the general tax code relating to the allocation of the cost of reconstructing the title of property in the case of donation between vifs; that the E Of the same paragraph I shall supplement the 2 of Article 793 of the same Code by an 8 ° which provides for an abatement, up to 30 % of the value of immovable property and rights, in respect of the first transfer of the buildings or rights concerned after the Transcription or publication between 1 January 2014 and 31 December 2017 of an act Declaration for the first time the right of ownership in respect of such buildings or rights; that the F of the same paragraph shall insert a paragraph I a in Article 1135 bis of the same code relating to the cumulation of the abatement introduced by the E of the Paragraph I and the exemptions mentioned in the I of Article 1135 bis;
154. Considering that paragraph II of Article 19 amends Article 17 of the Ordinance of 24 January 1996 on subjection to the contribution to the repayment of the social debt of sales of precious metals, jewellery, articles of art, Collection and antiquity;
155. Considering that the amendments resulting from the above-mentioned provisions have been introduced in a new reading to the National Assembly; that these additions were not, at this stage of the procedure, in direct relation to a provision That they were not intended to ensure compliance with the Constitution, to coordinate with texts being examined or to correct a material error; that it follows that the C, E and F of paragraph I Of Article 11 and Article 19, paragraph II, were adopted in accordance with a procedure Contrary to the Constitution; that they must be declared contrary to the Constitution; and
156. Considering that it is not appropriate for the Constitutional Council to raise any other matter of conformity with the Constitution of its own motion,
Decides:
The following provisions of the Act are in conformity with the Constitution:
-items 3, 15, 22, 30, 77 and 78;
-section 92, paragraph I;
-sections 98, 99, 101, and 134.
1 ° and 2 ° of section 1729 D of the general tax code and, at the 3 ° of the same article, the words: " Where the amount of the fine referred to in the 1 ° and 2 ° is less than that amount " Unconstitutional.
This decision shall be published in the Official Journal of the French
. The Constitutional Council at its meeting on 28 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, Valéry GISCARD d' ESTAING, Hubert HAENEL and Nicole MAESTRACCI.
Public information December 29, 2013.
The President,
Jean-Louis Debré
