Key Benefits:
(Mr. FRÉDÉRIC P.)
The Constitutional Council was seized on 19 January 2015 by the Conseil d' Etat (Decision No 385787 of 16 January 2015), under the conditions laid down in Article 61-1 of the Constitution, of a priority issue of Mr Frédéric P., by Mr Bernard Kuchukian, lawyer at the Marseilles Bar, on the conformity with the rights and freedoms guaranteed by the Constitution " The provisions of section 91 of the Act of April 28, 1816 as they apply to court registrars ".
The Constitutional Council,
Given the Constitution;
Seen Order n ° 58-1067 of 7 November 1958 as amended by the Organic Law on the Constitutional Council;
Seen commerce code ;
Due to the law of April 28, 1816 on the Finances;
Seen under Act No. 65-1002 of 30 November 1965 reforming the registries of civil and criminal courts, in particular Article 2;
Seen Law n ° 2012-387 of 22 March 2012 on the simplification of the law and the alleviation of administrative procedures, in particular Article 29;
In view of the Regulation of 4 February 2010 on the procedure before the Constitutional Council for the Priority constitutionality issues;
In view of the observations made for the applicant by Mr. Kuchukian, recorded on 2 and 23 February 2015;
In view of the observations made by the Prime Minister, recorded on 10 February 2015 ;
In view of the observations made for Mr Emeric V., a defence party, by the SCP Delaporte, Briard, Trichet, lawyer at the Conseil d' Etat and the Court of Cassation, registered on 9 February 2015;
In view of the comments made by Mr. Pierre T., recorded on January 26, 4 and 19 February 2015;
Seen the Intervention observations produced for the National Council of Clerks of the Commercial Courts, by Georges Holleaux, lawyer at the Paris Bar, registered on 9 February 2015;
Seen the documents produced and attached to the file;
Me Kuchukian for the applicant, Mr. François-Henri Briard, counsel for the Conseil d' Etat and the Court of Cassation, for the defence party, Mr. Louis Richard, counsel for the Paris Bar, and Mr. Holleaux, respectively, for Mr. Pierre T. and the National Council of Tribunal clerks, interveners, and Xavier Pottier, Appointed by the Prime Minister, having been heard at the public hearing on March 17, 2015;
The rapporteur was heard;
1. Considering that, by virtue of Article 6 of the Rules of Procedure of 4 February 2010, only persons justifying a " Special interest " Are allowed to present an intervention; that Mr Pierre T., who put before the Paris Commercial Court on 3 October 2014, a priority question of constitutionality relating to Article 91 of the Law of 28 April 1816 on finances in Paris That it is applicable to the registrars of trade tribunals, justifies a special interest in intervening in the proceedings of this priority question of constitutionality; that, as a result, its intervention is allowed;
2. Considering that Article 91 of the Act of 28 April 1816 reads as follows: Lawyers for the Court of Cassation, notaries, clerks, bailiffs, brokers, auctioneers, auctioneers, auctioneers, auctioneers, auctioneers, auctioneers, auctioneers, auctioneers, auctioneers, auctioneers, etc. This faculty will not take place for the deposed holders. The successors submitted for approval under this paragraph may be natural persons or professional civil societies.
" It shall be decided by a particular law, on the execution of this provision, and on the To the benefit of the heirs and successors in title of the said officers.
" This ability to present successors shall not, in addition, derogate from the right of Her Majesty to reduce the number of such officials, in particular notaries, in The cases provided for by the Law of 25 ventôse an XI on the notarial ;
3. Considering that, according to the applicant, the clerks of the trade courts perform a function which is " Public Places and Jobs " Within the meaning of Article 6 of the Declaration of the Rights of Man and of the Citizen of 1789; that by allowing any registrar of a trade tribunal with an office to present its successor to the approval of the custody of the seals, the Minister of Justice, The impugned provisions would disregard the principle of equal entitlement to " Public Places and Jobs " ; moreover, the applicant submits that those provisions disregard, on the one hand, the obligation to nationalise a national public service or a de facto monopoly provided for by the ninth preambular paragraph of the Preamble to the Constitution of 27 October 1946 And, on the other hand, the principle of freedom of access to public order;
4. Considering that the priority issue of constitutionality relates to the word " Clerks, " Appearing in the first sentence of the first paragraph of Article 91 of the Act of 28 April 1816;
5. Considering that, pursuant to the first paragraph of Article 2 of the aforementioned Act of 30 November 1965, the clerks of the civil and criminal courts have lost " The right to present a successor " ; that the word " Clerks, " Appearing in the first sentence of the first paragraph of Article 91 of the Act of 28 April 1816 means the only clerks of the trade courts;
6. Whereas under the ninth preambular paragraph of the Preamble of the Constitution of 1946: All property, any business, whose exploitation has or acquires the character of a national public service or a de facto monopoly, must become the property of the community " ; that this provision does not establish a right or freedom that the Constitution guarantees; that its ignorance cannot in itself be invoked in support of a priority question of constitutionality on the basis of Article 61-1 of the Constitution;
7. Considering that, according to Article 6 of the 1789 Declaration, the Law " Must be the same for all, either that it protects or that it punishes. All citizens being equal to their eyes are also entitled to all dignity, places and public employment, according to their capacity, and without any distinction other than that of their virtues and talents " ;
8. Whereas the first paragraph of Article 91 of the Act of 28 April 1816 allows the registrars of the trade courts holding an office to submit to the approval of the custody of the seals, the Minister of Justice, of the successors " Provided that they meet the requirements of the laws " ; that, under the same paragraph, this option does not take place for the destikilled holders;
9. Considering that according toArticle L. 741-1 of the Commercial Code, " Commercial Court Clerks are Public and Departmental Officers " ; that Article L. 743-12 of the same Code specifies the procedures for the exercise of the profession of court registrars; that it has, in particular, that " Registrars of trade courts may exercise their profession as an individual, as an employee of a natural or legal person holding a court of trade registry, in the form of professional civil societies or subcontractors. Form of liberal business corporations " ; thus, the registrars of trade courts practise a regulated profession within a liberal framework within the meaning of paragraph I of Section 29 of the above-mentioned Act of March 22, 2012 ;
10. Considering that it follows from the above that, if they participate in the exercise of the public service of justice and have the status of a public and ministerial officer appointed by the custody of the seals, the clerks of the trade courts holding a Office does not occupy " Public Places and Jobs " Within the meaning of Article 6 of the 1789 Declaration; that, as a consequence, the complaint that the right granted to the registrars of the trade courts to present their successors to the approval of the custody of seals would disregard the principle of equal access to the Public places and jobs is inoperative;
11. Considering that the appointment of a Registrar of Commercial Court does not constitute a public order; that the word " Clerks, " Appearing in the first sentence of the first paragraph of Article 91 of the Act of 28 April 1816, which is not contrary to any other right or freedom guaranteed by the Constitution, must be declared in conformity with the Constitution,
Decides:
The word " Clerks, " Appearing in the first sentence of the first paragraph of Article 91 of the amended financial law of 28 April 1816 is in conformity with the Constitution.
This Decision will be published in the Official Journal of the French Republic and notified under the conditions laid downArticle 23-11 of the The order of 7 November 1958 referred to above.
Issued by the Constitutional Council at its meeting on 26 March 2015, attended by Mr Jean-Louis DEBRÉ, President, Mrs Claire BAZY MALAURIE, Nicole BELLOUBET, MM. Guy CANIVET, Michel CHARASSE, Renaud DENOIX de SAINT MARC, Hubert HAENEL, Lionel JOSPIN, and Nicole MAESTRACCI.
Rendu public on March 26, 2015.
The President,
Jean-Louis Debré
