DECISION OF 16 DECEMBER 1999 LEGAL
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DECISION OF 16 DECEMBER 1999 LEGAL

NOR: CSCL9903884S

LThe Constitutional Council was seized, on November 24, 1999, by MM. Jean-Louis DEBRÉ, Bernard ACCOYER, Mrs Michèle ALLIOT-MARIE, MM. René ANDRÉ, André ANGOT, Philippe AUBERGER, Jean AUCLAIR, Mmes Martine AURILLAC, Roselyne BACHELOT-NARQUIN, MM. François BAROIN, Christian BERGELIN, Léon BERTRAND, Jean-Yves BESSELAT, Jean BESSON, Franck BOROTRA, Bruno BOURG-BROC, Michel BOUVARD, Philippe BRIAND, Christian CABAL, Ms. Nicole CATALA, MM. Richard CAZENAVE, Henri CHABERT, Jean-Paul CHARIÉ, Jean CHARROPPIN, Jean-Marc CHAVANNE, Olivier de CHAZEAUX, François CORNUT-GENTILLE, Alain COUSIN, Henri CUQ, Lucien DEGAUCHY, Arthur DEHAINE, Jean-Pierre DELALANDE, Patrick DELNATTE, Jean- Marie DEMANGE, Xavier DENIAU, Yves DENIAUD, Patrick DEVEDJIAN, Eric DOLIGÉ, Guy DRUT, Nicolas DUPONT-AIGNAN, Christian ESTROSI, Jean-Claude ETIENNE, Jean FALALA, Jean-Michel FERRAND, François FILLON, Roland FRANCISCI, Robert GALLEY, René GALY-DEJEAN, Henri de GASTINES, Hervé GAYMARD, Jean-Pierre GIRAN, Michel GIRAUD, Jacques GODFRAIN, Louis GUÉDON, Jean-Claude GUIBAL, Lucien GUICHON, François GUILLAUME, Gérard HAMEL, Michel HUNAULT, Michel INCHAUSPÉ, Christian JACOB, Didier JULIA, Alain JUPPÉ, Jacques KOSSOWSKI, Robert LAMY, Pierre LASBORDES, Pierre LELLY Jean-Claude LEMOINE, Jacques LIMOUZY, Thierry MARIANI, Philippe MARTIN, Patrice MARTIN-LALANDE, Jacques MASDEU-ARUS, Mrs Jacqueline MATHIEU-OBADIA, MM. Gilbert MEYER, Jean-Claude MIGNON, Pierre MORANGE, Renaud MUSELIER, Jacques MYARD, Patrick OLLIER, Mrs Françoise de PANAFIEU, MM. Dominique PERBEN, Etienne PINTE, Bernard PONS, Robert POUJADE, Didier QUENTIN, André SCHNEIDER, Frantz TAITTINGER, Jean-Claude THOMAS, Jean TIBÉRI, Georges TRON, Anicet TURINAY, Jean UEBERSCHLAG, François VANNSON, Jean-Luc WARSMANN, Ms. Marie-Jo ZIMMERMANN, MM. Philippe DOUSTE-BLAZY, Pierre ALBERTINI, Claude BIRRAUX, Mrs Christine BOUTIN, MM. Dominique CAILLAUD, René COUANAU, Charles de COURSON, Jean-Pierre FOUCHER, Claude GAILLARD, Germain GENGENWIN, Hubert GRIMAULT, Ms Anne-Marie IDRAC, Bernadette ISAAC-SIBILLE, MM. Edouard LANDRAIN, Jean LÉONETTI, François LÉOTARD, Maurice LEROY, Maurice LIGOT, Christian MARTIN, Pierre MÉHAIGNERIE, Jean-Luc PRÉEL, Rudy SALLES, François SAUVADET, Pierre-André WILTZER, MM.

THE CONSTITUTIONAL COUNCIL,
Considering the Constitution;
Considering the ordinance n ° 58-1067 of November 7, 1958 modified bearing organic law on the Constitutional Council, in particular the chapter II of title II of the aforementioned ordinance;
Having regard to the additional brief presented by the striking deputies recorded on November 30, 1999;
Having regard to the observations of the Government recorded on December 8, 1999;
Having regard to the letter from Mr. Pierre ALBERTINI, deputy, registered on December 9, 1999;
The rapporteur having been heard;

1. Considering that the deputies authors of the referral refer to the Constitutional Council the law empowering the Government to proceed, by ordinances, to the adoption of the legislative part of certain codes by calling into question its conformity with the Constitution;
2. Considering that a deputy, by letter addressed to the Constitutional Council, asked not to be counted among the signatories of the referral, by invoking “the confusion which accompanied the signature of this referral”;
3. Considering that by virtue of article 61 of the Constitution and article 18 of the aforementioned ordinance of 7 November 1958, the referral to the Constitutional Council by members of Parliament results indivisibly from one or more signed letters by at least sixty deputies or sixty senators; that the effect of this referral is to implement, before the closure of the legislative procedure, the verification by the Constitutional Council of the provisions of the referred law; that no provision of the Constitution nor of the organic law relating to the Constitutional Council allows the authorities or parliamentarians empowered to refer a law to the Constitutional Council to relinquish it by obstructing the implementation of the constitutional review initiated; that therefore, except in cases of material error, fraud or defect of consent, the Constitutional Council could not take into account requests expressed in this direction;
4. Considering that it does not appear from the documents in the file that the consent of the deputy concerned was vitiated or that the latter made a material error in referring the matter to the Constitutional Council; that the handwritten signature affixed to the referral could be authenticated; whereas it is therefore necessary to include it in the number of signatories of the referral;

ON THE COMPLAINT BASED ON THE VIOLATION OF ARTICLE 34 OF THE CONSTITUTION:

5. Considering that the applicant deputies maintain that the law submitted to the control of the Constitutional Council would infringe article 34 of the Constitution; in this regard, they argue that recourse to a codification enabling law would not allow Parliament to exercise its power to repeal existing legislative provisions; that the adoption of codes by ordinance would have the effect of losing their legislative nature to the codified provisions; that finally, they underline that “a codification can only come under the constitutional domain of the law if it exists, in parallel with the regrouping of the legislative texts to which it proceeds,
6. Considering that under article 38 of the Constitution:
“The Government may, for the execution of its program, ask Parliament for authorization to take by ordinance, for a limited period, measures which are normally of the field of the law.
“The ordinances are taken in the Council of Ministers after opinion of the Council of State. They come into force as soon as they are published but become null and void if the ratification bill is not submitted to Parliament before the date set by the enabling law.
“At the end of the period mentioned in the first paragraph of this article, the ordinances can no longer be modified except by law in matters which are in the legislative domain.”;
7. Considering that in application of article 1 of the referred law, the Government is authorized to proceed, by ordinances, to the adoption of the legislative part of nine codes, each code having to be the subject of an ordinance which brings together and organizes the legislative provisions relating to the corresponding subject; that according to the last paragraph of this same article: “The codified provisions are those in force at the time of the publication of the ordinances, subject only to the modifications which would be made necessary to ensure the respect of the hierarchy of the standards and the coherence drafting of the texts thus collected and harmonize the rule of law.In addition, the Government may,
8. Considering, in the first place, that the field of empowerment, under the very terms of article 38 of the Constitution, may include any matter which falls within the domain of the law in application of its article 34; that the power to codify legislative provisions rests with the legislature; that the repeal of legislative provisions prior to the codification and falling within the scope of the latter is inherent in the codification itself and does not impose any express provision in the enabling law; that this repeal should result from the resumption of the provisions in question in the code, from the finding that they had previously been implicitly repealed,
9. Considering, in the second place, that, if the adoption of the legislative part of a code by means of ordinances results in it being temporarily brought under the contentious regime of regulatory acts, this situation results directly from the combination of Articles 38 and 61 of the Constitution; that, moreover, in application of article 38 of the Constitution, at the expiration of the authorization period, the ordinances can no longer be modified except by law in matters which fall within the legislative domain;
10. Considering, therefore, that the complaint relating to the violation of article 34 of the Constitution must be rejected;

ON THE COMPLAINT RELATING TO THE VIOLATION OF ARTICLE 38 OF THE CONSTITUTION:

11. Considering that the authors of the referral maintain that the referred law would be contrary to the provisions of article 38 of the Constitution; that in this regard, they argue that the purpose of the measures that the Government proposes to take would not be specified, since the substantive rules to be adopted by ordinances are not indicated; that moreover, the expressions used by the legislator, in particular the “respect for the hierarchy of the norms”, are imprecise; that moreover, Parliament would not be aware of the content of certain codes, or even of the principles which will govern their development and could not “be that the requesting deputies indicate, moreover, that the explanation relating to the delay in the work of codification linked to the congestion of the parliamentary calendar is “insufficient from a constitutional point of view to justify recourse to the procedure of Article 38 of the Constitution ” ; that finally, the scope of the authorization would not make it possible to respect the areas reserved for the organic law, the finance and social security financing laws and the regulatory power; that the requesting deputies indicate, moreover, that the explanation relating to the delay in the work of codification linked to the congestion of the parliamentary calendar is “insufficient from a constitutional point of view to justify recourse to the procedure of Article 38 of the Constitution ” ; that finally, the scope of the authorization would not make it possible to respect the areas reserved for the organic law, the finance and social security financing laws and the regulatory power;

12. Considering, in the first place, that, although Article 38 of the Constitution requires the Government to indicate precisely to Parliament, in order to justify the request it presents, the purpose of the measures it proposes to take take by way of ordinances as well as their field of intervention, it does not require the Government to inform Parliament of the content of the ordinances that it will take by virtue of this empowerment;
13. Considering, in the second place, that urgency is one of the justifications that the Government can invoke to have recourse to article 38 of the Constitution; that in this case, the Government provided Parliament with the necessary details by recalling the general interest which attaches to the completion of the nine codes mentioned in article 1, which was an obstacle to the congestion of the order parliamentary day; that this purpose responds moreover to the objective of constitutional value of accessibility and intelligibility of the law ; that indeed the equality before the law enunciated by Article 6 of the Declaration of the Rights of Man and of the Citizen and the “guarantee of rights” required by its Article 16 may not be effective if citizens do not have sufficient knowledge of standards applicable to them; that such knowledge is also necessary for the exercise of the rights and freedoms guaranteed both by Article 4 of the Declaration, by virtue of which this exercise has limits only those determined by law, and by its Article 5 , according to which “anything which is not forbidden by the law cannot be prevented, and no one can be compelled to do what it does not order”;
14. Considering, thirdly, that are precisely defined, in this case, the legislative provisions being the object of the empowerment, as well as the conditions under which it will be proceeded to their adoption by way of ordinances; that the authorization given to the Government to proceed with the adoption of the legislative part of the nine codes mentioned in Article 1 of the referred law aims at the codification of legislative provisions in force at the time of publication of the ordinances; whereas the Government cannot therefore make substantive changes to existing legislative provisions; that the only exceptions provided for in this principle are limited in scope and are strictly defined by the law referred; that the reference to the hierarchy of standards requires the Government to respect the supremacy of the treaty over the law, set out in article 55 of the Constitution, as well as the distinction between legislative and regulatory matters determined by its articles 34 and 37; that it follows moreover from the terms of Article 1 of the referred law, informed by the preparatory work, that the modifications made necessary to “harmonize the state of law” must be limited to remedying any incompatibilities that may appear between provisions subject to codification; that the reference to the hierarchy of norms requires the Government to respect the supremacy of the treaty over the law, set out in article 55 of the Constitution, as well as the distinction between legislative and regulatory matters determined by its articles 34 and 37; that it follows moreover from the terms of Article 1 of the referred law, informed by the preparatory work, that the modifications made necessary to “harmonize the state of law” must be limited to remedying any incompatibilities that may appear between provisions subject to codification; that the reference to the hierarchy of norms requires the Government to respect the supremacy of the treaty over the law, set out in article 55 of the Constitution, as well as the distinction between legislative and regulatory matters determined by its articles 34 and 37; that it follows moreover from the terms of Article 1 of the referred law, clarified by the preparatory work, that the modifications made necessary to “harmonize the state of the law” must be limited to remedying the incompatibilities which may appear between provisions subject to codification; article 55 of the Constitution, as well as the distinction between legislative and regulatory matters determined by its articles 34 and 37; that it follows moreover from the terms of Article 1 of the referred law, informed by the preparatory work, that the modifications made necessary to “harmonize the state of law” must be limited to remedying any incompatibilities that may appear between provisions subject to codification; article 55 of the Constitution, as well as the distinction between legislative and regulatory matters determined by its articles 34 and 37; that it follows moreover from the terms of Article 1 of the referred law, informed by the preparatory work, that the modifications made necessary to “harmonize the state of law” must be limited to remedying any incompatibilities that may appear between provisions subject to codification;
15. Considering, in the fourth place, that the enabling law cannot allow the intervention of ordinances in areas reserved by Articles 46, 47, 47-1, 74 and 77 of the Constitution to the organic law, to the finance laws and social security financing laws;
16. Considering, finally, that the applicability of the codified provisions to New Caledonia, to overseas territories and to overseas territorial collectivities with special status can only be decided in matters falling within the competence of the State and with only the adaptations justified by the particular organization of these communities;
17. Considering that it follows from the foregoing that the complaint based on the violation of article 38 of the Constitution must be rejected;

ON THE COMPLAINT ARISING FROM THE VIOLATION OF ARTICLE 44 OF THE CONSTITUTION:
18. Considering that the deputies who made the referral argue that the method of codification adopted would limit, by itself, the exercise of the right of amendment of the Parliament defined in article 44 of the Constitution; that the infringement thus brought to this right would be “aggravated by the recourse to the authorizations of article 38 of the Constitution”, the right of amendment being able to be exerted only vis-à-vis the articles of the bill d ‘authorization and not vis-à-vis the content of the codes presented;
19. Considering, on the one hand, that the members of Parliament have, in application of article 44 of the Constitution, the right of amendment; that they will be able in particular to exercise this right during the legislative procedure aiming at the adoption of the bills of law of ratification of the ordinances provided for by article 2 of the referred law;
20. Considering, on the other hand, that, the initiative of the laws belonging concurrently to the Prime Minister and to the members of Parliament, the latter may, at the expiration of the period allotted to the Government in application of the first paragraph of article 38 of the Constitution, submit any proposed law aimed at modifying the ordinances entered into in matters falling within the scope of the law;
21. Considering, consequently, that the complaint based on the violation of article 44 of the Constitution must be rejected;

– ON THE COMPLAINT OF NON-COMPLIANCE WITH THE RULES AND PRINCIPLES OF CONSTITUTIONAL VALUE:
22. Considering that the requesting deputies maintain that “the Constitutional Council must assess the content of the proposed codes by verifying in substance compliance with the constitutional requirements with regard to all the elements of the constitutionality bloc “; that they argue, in this regard, with regard to the Education Code, that the repeal of existing legislative provisions resulting from the codification could lead to the deprivation of constitutional requirements of legal guarantees, without replacing them by equivalent guarantees;
23. Considering, in the first place, that the principle of codification “at constant law”, imposed by article 1 of the referred law, precludes any modification of the substance of the codified legislative matters;
24. Considering, in the second place, that recourse to an enabling law can neither have the object nor the effect of exempting the Government, in the exercise of the powers conferred on it in application of article 38 of the Constitution, respect for constitutional principles; that the enabling law must be interpreted and applied, under the supervision of the Council of State, in strict compliance with the principles recalled above;

ON THE COMPLAINT RELATING TO THE VIOLATION OF THE SECOND PARAGRAPH OF ARTICLE 37 OF THE CONSTITUTION:

25. Considering that the applicant deputies maintain that the referred law would constitute an abuse of the procedure provided for by the second paragraph of article 37 of the Constitution; that they argue, in this regard, that the Constitutional Council would have exclusive competence to proceed with the downgrading of provisions of legislative form but whose nature is regulatory;
26. Considering that, if the second paragraph of article 37 of the Constitution opens up to the Government the possibility of seizing the Constitutional Council for the purpose of declaring that texts of legislative form, intervening after the entry into force of the Constitution of 1958 , have a regulatory character and can therefore be amended by decree, it is open to the legislator to himself repeal provisions of a regulatory nature appearing in legislative texts; that by virtue of the empowerment conferred on it pursuant to Article 38 of the Constitution, the Government is also not bound to submit to the procedure invoked by the applicants; that the grievance must therefore be rejected;

ON THE COMPLAINT ARISING FROM THE VIOLATION OF ARTICLES 74 AND 77 OF THE CONSTITUTION:
27. Considering that the requesting deputies criticize the legislator for not having respected the consultation procedures provided for in Articles 74 and 77 of the Constitution;
28. Considering that it results from the legislative work that the competent bodies of the overseas communities concerned have been consulted; that thus, and in any event, the grievance is lacking in fact;
29. Considering that there is no reason for the Constitutional Council to raise ex officio any question of conformity with the Constitution;

DECIDES:
Article 1.- The law authorizing the Government to proceed, by ordinances, with the adoption of the legislative part of certain codes is declared in conformity with the Constitution.
Article 2.- This decision will be published in the Official Journal of the Republic.
Deliberated by the Constitutional Council in its meeting of December 16, 1999, chaired by Mr. Yves GUÉNA and where sat: MM. Georges ABADIE, Michel AMELLER, Jean-Claude COLLIARD, Alain LANCELOT, Mrs. Noëlle LENOIR, Mr. Pierre MAZEAUD and Mrs. Simone VEIL.

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