Advanced Search

Decision No.. 2004-509 Dc Of 13 January 2005

Original Language Title: Decision No. 2004-509 DC of 13 January 2005

Subscribe to a Global-Regulation Premium Membership Today!

Key Benefits:

Subscribe Now for only USD$40 per month.

Text information




JORF No. 15 of 19 January 2005 Page 896
Text N ° 2


DECISION
Decision No. 2004-509 DC of 13 January 2005

NOR: CSCL0508032S ELI: Not available


SOCIAL COHESION PROGRAMMING ACT


Council Under the conditions laid down in Article 61 (2) of the Constitution, of the Programming Act for Social Cohesion, on 23 December 2004, by Mr Jean-Marc Ayrault, Mrs Patricia Adam, Mrs Sylvie Andrieux, MM. Jean-Marie Aubron, Jean-Paul Bacquet, Jean-Pierre Balligand, Gérard Bapt, Claude Bartolone, Jacques Bascou, Christian Bataille, Jean-Claude Bateux, Jean-Claude Beauchaud, Eric Besson, Jean-Louis Bianco, Jean-Pierre Blazy, Serge Blisko, Jean-Claude Bois, Daniel Botry, Maxime Bono, Augustin Bonrepaux, Jean-Michel Boucheron, Pierre Bourguignon, Danielle Bousquet, MM. François Brottes, Jean-Christophe Cambadélis, Thierry Carcenac, Christophe Caresche, Martine Carrillon-Couvreur, MM. Laurent Cathala, Jean-Paul Chanteguet, Michel Charzat, Alain Claeys, Mme Marie-Françoise Clergeau, MM. Gilles Cocquempot, Pierre Cohen, Claude Darciaux, Michel Dasseux, Martine David, MM. Marcel Dehoux, Michel Delebarre, Jean Delobel, Bernard Derosier, Michel Destot, Marc Dolez, François Dosé, René Dosière, Julien Dray, Tony Dreyfus, Pierre Ducout, Jean-Pierre Dufaut, William Dumas, Jean-Paul Dupré, Yves Durand, Mme Odette Duriez, MM. Henri Emmanuelli, Claude Evin, Laurent Fabius, Albert Facon, Jacques Floch, Pierre Forgues, Michel Françaix, Jean Gaubert, Nathalie Gautier, Catherine Generisson, MM. Jean Glavany, Gaétan Gorce, Alain Gouriou, Elisabeth Guigou, Paulette Guinchard-Kunstler, Mr David Habib, Ms Danièle Hoffman-Rispal, MM. François Hollande, Jean-Louis Idiart, Françoise Imbert, MM. Armand Jung, Jean-Pierre Kucheida, Ms Conchita Lacuey, MM. Jérôme Lambert, François Lamy, Jack Lang, Jean Launay, Jean-Yves Le Bouillonnec, Gilbert Le Bris, Jean-Yves Le Déaut, Jean-Yves Le Drian, Jean Le Garrec, Jean-Marie Le Guen, Bruno Le Roux, Marylise Lebranchu, MM. Michel Lefait, Patrick Lemasle, Guy Lengagne, Ms Annick Lepetit, MM. Michel Liebgott, Ms Martine Lignières-Cassou, MM. François Loncle, Bernard Madrelle, Louis-Joseph Manscour, Philippe Martin, Christophe Masse, Didier Mathus, Jean Michel, Didier Migaud, Mme Hélène Mignon, MM. Arnaud Montebourg, Henri Nayrou, Alain Neri, Mme Marie-Renée Oget, MM. Michel Pajon, Christian Paul, Germinal Peiro, Jean-Claude Perez, Mme Marie-Françoise Pérol-Dumont, Geneviève Perrin-Gaillard, MM. Jean-Jack Queyranne, Paul Quilès, Bernard Roman, René Rouquet, Patrick Roy, Mme Ségolène Royal, M. Michel Sainte-Marie, Mme Odile Saugues, MM. Henri Sicre, Dominique Strauss-Kahn, Pascal Terrasse, Philippe Tourtelier, Daniel Vaillant, André Vallini, Manuel Valls, Michel Vergnier, Alain Vidalies, Jean-Claude Viollet, Philippe Vuilque, Jean-Pierre Defontaine, Paul Giacobbi, Simon Renucci, Mme Chantal Robin-Rodrigo, Roger-Gérard Schwartzenberg, Christiane Taubira, Martine Billard, MM. Yves Cochet, Noël Mamère, Emile Zuccarelli, François Asensi, Gilbert Biessy, Alain Bocquet, Patrick Braouezec, Jacques Brunhes, Mme Marie-George Buffet, MM. André Chassaigne, Jacques Desallangre, Frédéric Dutoit, Mme Jacqueline Fraysse, MM. André Gerin, Pierre Goldberg, Maxime Gremz, Georges Hage, Ms Muguette Jacquaint, Janine Jambu, MM. Jean-Claude Lefort, François Liberti, Daniel Paul, Jean-Claude Sandrier, Michel Vaxès, Deputies;
On the same day, he registered an appeal presented by MM. François Asensi, Gilbert Biessy, Alain Bocquet, Patrick Braouezec, Jacques Brunhes, Mme Marie-George Buffet, MM. André Chassaigne, Jacques Desallangre, Frédéric Dutoit, Mme Jacqueline Fraysse, MM. André Gerin, Pierre Goldberg, Maxime Gremz, Georges Hage, Ms Muguette Jacquaint, Janine Jambu, MM. Jean-Claude Lefort, François Liberti, Daniel Paul, Jean-Claude Sandrier, Michel Vaxès, Gérard Charasse, Joël Giraud, Chantal Robin-Rodrigo and Emile Zuccarelli, MEPs;
Constitutional Council,
Given the Constitution;
Vu Order No. 58-1067 of November 7, 1958 amending the Organic Law on the Constitutional Council;
Given the Code of Education;
Given the Code of Expropriation for Public Utility;
Given the General Code of Communities Territorial;
Given the General Tax Code;
Given the Labour Code;
Due to the Government's observations, recorded on January 6, 2005;
Seen in response, recorded on January 12, 2005;
Seen the News Government observations, recorded on 12 January 2005;
The rapporteur has been heard;
1. Considering that the authors of the first action defected to the Constitutional Council the Social Cohesion Programming Act; that they challenge the conformity with the Constitution of its Articles 1, 17, 24, 31, 44, 69, 77 and 139;
Sur Admissibility:
2. Considering that, while the second paragraph of Article 61 of the Constitution provides that laws may be referred to the Constitutional Council by members of Parliament, it reserves the right to exercise this power to sixty members or to sixty senators ;
3. Considering that, on 23 December 2004, a second appeal was registered in the General Secretariat of the Constitutional Council, signed by twenty-five Members, of which 23 were already signatories to the first action, challenging Articles 72 and 77 of the Act Referred;
4. Considering that it follows from the above-mentioned provisions of the second paragraph of Article 61 of the Constitution that this action must be declared inadmissible;
On Articles 1, 17, 24, 31 and 44:
5. Considering that Article 1 of the law referred to provides for the creation of " Employment houses " ; that Articles 17, 24 and 31 are related to the development of apprenticeship; that Article 44 of the Act establishes new employment contracts. Employment coaching contracts " ;
6. Considering that, according to the applicants, those articles are an extension of the powers of the territorial authorities resulting in new expenditure, which are not subject to any financial compensation; that they consider, therefore, That the provisions in question ignore Article 72-2 of the Constitution and may enter into force only when such compensation has been provided for by law;
7. Whereas under the fourth paragraph of Article 72-2 of the Constitution: Any transfer of powers between the State and the local authorities shall be accompanied by the allocation of resources equivalent to those devoted to Their exercise. Any creation or extension of competences resulting in increased expenditure by local authorities shall be accompanied by resources determined by law " ;
8. Whereas, on the one hand, it follows from those provisions that, when it transfers powers formerly exercised by the State to the territorial authorities, the legislator is required to allocate resources corresponding to the charges On the date of transfer;
9. Taking the view, on the other hand, that those provisions apply, in respect of creations and extensions of powers, only to those which are compulsory; that, in this case, the legislator is not required to To accompany these creations or extensions of resource skills which it belongs to it to appreciate the level, without, however, distorting the principle of the free administration of local authorities;
10. Considering that the contested provisions should be examined in the light of the principles thus defined;
11. Considering, first, that Article 1 of the Act, which amends Article L. 311-10 of the Labour Code and inserts Article L. 311-10-1, merely permits the creation of " Employment houses ", whose spring may not exceed In order, in particular, to contribute to the coordination of the actions carried out within the framework of the public employment service; that it has neither the purpose nor the effect of making it compulsory and, therefore, of obliging the territorial authorities to contribute to the Their creation or participation in their operation; that Article 44 of the Act, which gives a new wording to Article L. 322-4-8-1 of the Labour Code, which has become L. 322-4-7, does not require the territorial authorities to recruit Persons experiencing particular difficulties in access to employment by means of " Employment coaching contracts " ; that, therefore, in the case of powers whose exercise remains optional, the complaint alleging non-compliance with the Article 72-2 of the Constitution must be rejected;
12. Considering, second, that, if Article 17 of the Act, which amends Article L. 115-2 of the Labour Code, affects the competence of the regions in matters of apprenticeship by allowing the conclusion, in certain cases, of Contracts of between six months and one year, it does not extend the possibility of concluding a learning contract to another category of persons and thus does not alter the scope of that competence; that it does not constitute an extension Competence within the meaning of Article 72 (2) of the Constitution; that the same applies to Article 31 of the law referred to, which inserts into the general tax code an article 244 quater G in order to establish a corporate tax credit in order to induce Enterprises to have recourse to apprentices; it follows that the complaint alleging infringement of Article 72-2 of the Constitution must be rejected;
13. Considering, third, that Article 24 of the Act amends Article L. 117-3 of the Labour Code in order to provide for a new derogation from the age limit applicable to the subscription of a learning contract; that it provides that Be able to benefit from such a contract for persons over twenty-five years of age as soon as they intend to create or resume a business; that by opening the apprenticeship to a new category of persons, it modifies the scope thereof and Is, therefore, an extension of powers; however, the law referred to removes certain exemptions from the apprenticeship tax due by undertakings and affects the additional resources resulting from the National Fund for Development and modernisation of apprenticeship; that this fund will, within the framework of contracts of objectives and means concluded between the State, the regions, the consular chambers and the professional branches, the regional funds of Learning and continuing vocational training; that the legislator has, therefore, accompanied by the limited extension of the powers of the regions implemented by Article 24 of the law referred to as new resources In accordance with the second sentence of the fourth paragraph of Article 72-2 of the Constitution;
14. Considering that it follows from the above that the complaints against Articles 1, 17, 24, 31 and 44 must be rejected;
On Article 69:
15. Considering that Article 69 of the Act amends Article L. 212-4 of the Labour Code; that it provides that travel time to the place of performance of the contract of employment does not constitute an effective working time, But must be the subject of consideration either in the form of rest, or in financial form, if it exceeds the normal journey time between the domicile and the usual place of work; that in the absence of a collective agreement or agreement, The employer determines this consideration after consultation with the works council or staff delegates, if they exist;
16. Considering that the applicants submit that this provision disregards the principle of equality by introducing in the " Accounting for working time " A criterion related to the residence, which is not an element of the employment contract; Argue that the working time of two employees who, from their home, perform a similar occupational shift to their place of work will be calculated differently depending on where they live;
17. Considering that the principle of equality does not preclude the legislator from different situations in different situations, nor does it preclude equality for reasons of public interest, provided that, in either case, the difference in The resulting treatment is directly related to the purpose of the legislation that establishes it;
18. Considering that in order to clarify the definition of " Effective working time " Mentioned in the first paragraph of Article L. 212-4 of the Labour Code, the legislator provided that the time required for an employee to join, from his home, a Place of performance of the employment contract separate from the usual place, does not constitute an effective working time; however, it has instituted a counterpart for the duration of travel which exceeds the normal journey time between the place of residence and the place of employment That, in addition, the legislator intended that the share of professional travel time coinciding with the work schedule should not result in loss of wages; that it was based on objective and rational criteria, Identical for all employees and directly related to the object of the measure;
19. Considering that the fact that a movement of the same duration may result in a different consideration according to the fact that employees have established their domicile in a place more or less distant from their usual place of work is not constitutive of a Breach of equality, since it is the result of a difference in the situation inherent in the freedom of choice of domicile;
20. Considering, therefore, that the complaint directed against Article 69 must be rejected;
On Article 77:
21. Whereas in the words of the last two sentences of the first paragraph of Article L. 122-14-4 of the Labour Code, in its wording resulting from the V of Article 77 of the Act referred to: " Where the Court finds that the dismissal occurred at that time That the dismissal procedure is null and void, in accordance with the provisions of the fifth paragraph of Article L. 321-4-1, it may declare the dismissal null and void and order, at the request of the employee, the continuation of his contract of Work, unless reinstatement has become impossible, in particular as a result of the closure of the institution or site or the absence of available employment of such a nature as to allow the reinstatement of the employee. Where the employee does not request the continuation of his employment contract or where reinstatement is impossible, the court shall grant the employee compensation which may not be less than the wages of the last twelve months." ;
22. Considering that the applicants submit that by illustrating the impossibility of reinstatement by a non-exhaustive list of cases which do not necessarily reflect a real impossibility, the legislator has conferred on this concept one " Obscure sense and Adversarial " And thus disregarded its jurisdiction and the principle of clarity of the law; that, in addition, they consider that the impugnable provision, by obstructs the case-law which allows reinstatement in an equivalent job, when it Is impossible in the same job, carries a disproportionate infringement of the right to employment; that they argue in that respect that the legislator has not balanced the right of everyone to obtain employment and the freedom to undertake ;
23. Considering that the Preamble of the Constitution reaffirms the principles of both the Declaration of the Rights of Man and the Citizen of 1789 and the Preamble to the Constitution of 1946; that, in the number of these, freedom should be maintained To undertake, as a result of Article 4 of the 1789 Declaration, as well as the economic and social principles enumerated in the text of the Preamble of 1946, including, according to its fifth paragraph, the right of everyone to obtain employment ;
24. Considering that it is for the legislature, within the framework of its competence under Article 34 of the Constitution to determine the fundamental principles of labour law, to ensure the implementation of the economic and social principles of the Preamble of 1946, while reconciling them with constitutionally guaranteed freedoms; that, in order to lay down rules to best ensure, in accordance with the fifth paragraph of the Preamble of 1946, the right of everyone to obtain employment, he may To provide for the freedom to undertake limitations related to this constitutional requirement, provided that it does not result in disproportionate harm to the objective pursued;
25. Considering that it is for the legislator to exercise fully the competence entrusted to it by Article 34 of the Constitution; that in this respect, the principle of clarity of the law, which derives from the same article of the Constitution, and the objective of value Constitution of intelligibility and accessibility of the law, which follows from Articles 4, 5, 6 and 16 of the Declaration of 1789, requires it to adopt sufficiently precise provisions and unambiguous formulae; 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 the task of laying down rules whose determination has not been entrusted By the Constitution as to the law; that, however, these authorities retain the discretion and, if necessary, the interpretation inherent in the application of a general rule to particular situations;
26. Taking the view that it follows from the very wording of the first paragraph of Article L. 122-14-4 of the Labour Code, in its wording resulting from Article 77, paragraph V, of the law referred to, that it will be for the judge, if he receives a request to that effect, to Finds that the dismissal procedure is null and void in the absence of the reclassification plan provided for in Article L. 321-4-1 of the same Code, to order reinstatement of the employee unless such reinstatement has become impossible; Of such impossibility, the legislator mentioned certain examples such as the closure of the institution or site, or the absence of available employment of such a nature as to allow the reinstatement of the employee;
27. Taking the view, on the one hand, that by enacting these provisions, which define a rule which is sufficiently clear and precise that it will be for the court to implement, the legislature has not disregarded the jurisdiction which is its own under Article 34 of the Constitution and the objective of the constitutional value of intelligibility of the law;
28. Taking the view, on the other hand, that the legislator has thus operated between the right of everyone to obtain employment, the right to the reclassification of redundant employees stems directly, and the freedom to undertake, to which the reinstatement of employees Dismissal is liable to prejudice, a conciliation which is not vitiated by any manifest error;
On Article 139:
29. Whereas article 139 of the Act referred to: Subject to court decisions in force of res judica, the legality of acts allowing the carrying out of the works, works and arrangements provided for by the orders Prefectural initiatives taken in 2004 declaring public utility the acquisitions and works of creation and extension of tram lines, in particular to improve the service of urban free zones, the realization of related operations Described by those arrested and brought into the compatibility of urban planning documents cannot be challenged on the basis of the illegality of the above-mentioned prefectural orders as they would be attacked or annulled on the grounds that the study The impact defined in Article 2 of Decree No. 77-1141 of 12 October 1977 taken for the application of Article 2 of Act No. 76-629 of 10 July 1976 on the protection of nature would have shortcomings in the analysis of the effects of the Project on road traffic and the failure to state reasons for the conclusions of the investigating commissioners or commissions of inquiry prior to the declaration of public utility of such operations " ;
30. Taking the view that the applicants submit, first, that this provision was adopted in disregard of Articles 39, 44 and 45 of the Constitution, on the other hand, that the validation would not be justified by a sufficient general interest;
31. Considering that, if the legislator can validate an administrative act with a sufficient general interest, it is subject to the respect of the decisions of justice having the force of res judici and the principle of non-retroactivity of the penalties and of the Sanctions; moreover, the validated act must not disregard any rule or principle of constitutional value, except that the purpose of the general interest concerned by the validation itself is of constitutional value; that the scope of the Validation must be strictly defined, subject to disregard of Article 16 of the 1789 Declaration; that it is in the light of all these principles that conformity with the Constitution of the provisions submitted to Review of the Constitutional Council; and
32. Taking the view that the main purpose of Article 139 is to permit the rapid extension of the tramway lines of the urban community of Strasbourg despite the annulment by the administrative court of the order by which the prefect of the Bas-Rhin had declared Of public utility the necessary acquisitions and construction works; that the validation would allow, as an accessory, to reinforce the tramway lines of Marseille, Montpellier, Le Mans and Valenciennes;
33. Considering, however, that the general interest thus pursued is not sufficient to justify the infringement of the principle of the separation of powers and the right to an effective judicial remedy, which derive from Article 16 of the Declaration of 1789, which is all the more important since the contested measure concerns the whole of the tramway lines which were the subject of a declaration of public utility in 2004; that it does not further justify the infringement of the right of guaranteed property Article 17 of the 1789 Declaration, which requires, before any expropriation, that the public necessity of the deprivation of ownership has been legally established;
34. Considering, on the other hand, and without the need to examine the other complaints of the reference, that section 139 of the law referred to must be declared unconstitutional;
35. Considering that there is no place for the Constitutional Council to raise ex officio any question of conformity with the Constitution,
Decides:

Article 1


Section 139 of the Social Cohesion Programming Act is declared unconstitutional.

Article 2


Sections 1, 17, 24, 31, 44, 69 and 77 of the same Act do not conflict with the Constitution.

Item 3


The This decision will be published in the Official Journal of the French Republic.
Issued by the Constitutional Council at its meeting on 13 January 2005, attended by: Mr Pierre Mazeaud, President, MM. Jean-Claude Colliard, Olivier Dutheillet de Lamothe, Valéry Giscard d' Estaing, Mme Jacqueline de Guillenchmidt, MM. Pierre Joxe and Jean-Louis Pezant, Dominique Schnapper, Pierre Steinmetz and Simone Veil.


The President,

Pierre Mazeaud


Download the document in RTF (weight < 1MB) Facsimile (format: pdf, weight < 3.5 MB)