LAW RELATING TO FREEDOM OF COMMUNICATION
Full Text
The Constitutional Council was seized, on December 22, 1988, by MM Bernard Pons, Claude Labbé, Jacques Chirac, Alain Juppé, Pierre Mazeaud, Mrs Elisabeth Hubert, Mr Jean Ueberschlag, Mrs Suzanne Sauvaigo, MM Jean Kiffer, Jean-Louis Goasduff, Pierre Pasquini, Mme Roselyne Bachelot, MM Michel Cointat, Philippe Auberger, Roland Nungesser, Patrick Ollier, Franck Borotra, Christian Estrosi, Mme Lucette Michaux-Chevry, MM Robert-André Vivien, Patrick Balkany, Lucien Guichon, Régis Perbet, Claude-Gérard Marcus, Mme Michèle Alliot-Marie, MM Robert Pandraud, Eric Raoult, Jean-Michel Dubernard, Bernard Debré, Martial Taugourdeau, Arnaud Lepercq, Jean-Yves Chamard, François Fillon, Jacques Godfrain, Mme Nicole Catala, MM Jacques Baumel, Jean- Paul Charié, Alain Jonemann, Patrick Devedjian, Nicolas Sarkozy, Georges Gorse, Edouard Balladur, Michel Barnier, Etienne Pinte, Mme Michèle Barzach, MM Pierre Raynal, Jean-Claude Gaudin, Philippe Mestre, André Rossi, Gilbert Gantier, Pierre Lequiller, Marc Reymann, Francisque Perrut, Henri Bayard, Michel Pelchat, Jean-Marie Caro, José Rossi , Maurice Ligot, René Beaumont, Jean Brocard, Maurice Dousset, Gilles de Robien, Alain Mayoud, Léonce Deprez, deputies, under the conditions provided for in article 61, paragraph 2, of the Constitution, of the conformity with it of the law amending law n ° 86-1067 of September 30, 1986 relating to freedom of communication; Jean Brocard, Maurice Dousset, Gilles de Robien, Alain Mayoud, Léonce Deprez, deputies, under the conditions provided for in article 61, paragraph 2, of the Constitution, of the conformity with it of the law amending law no. 86-1067 of September 30, 1986 relating to freedom of communication; Jean Brocard, Maurice Dousset, Gilles de Robien, Alain Mayoud, Léonce Deprez, deputies, under the conditions provided for in article 61, paragraph 2, of the Constitution, of the conformity with it of the law amending law no. 86-1067 of September 30, 1986 relating to freedom of communication;
The Constitutional Council,
Considering the Constitution;
Considering the ordinance n ° 58-1067 of November 7, 1958 bearing organic law on the Constitutional Council, in particular chapter II of title II of the aforementioned ordinance;
Considering the ordinance n ° 59-2 of January 2, 1959 bearing organic law relating to the laws of finance;
The rapporteur having been heard;
1. Considering that the authors of the referral aim to have articles 5, 8, 11, 13, 19 and 30 of the law amending law n ° 86-1067 of September 30, 1986 relating to the freedom of communication;
– ON ARTICLE 5 RELATING TO THE STAFF REGIME AND OPERATING APPROPRIATIONS OF THE AUDIOVISUAL SUPERIOR COUNCIL:
2. Considering that article 5 of the law comprises two paragraphs which modify article 7 of law n ° 86-1067 of September 30, 1986; that paragraph I of Article 5 of the referred law is intended to extend, to the case of the company liable to be responsible for the programming of television programs broadcast by satellite, the prohibitions intended to guarantee independence the audiovisual regulatory body; that by virtue of paragraph II, the Superior council of audio-visual, which replaces the National Commission of the communication and freedoms, “proposes, during the development of the bill of finance of the year, the necessary credits to the accomplishment of its missions “; that it is specified that these credits are entered in the general budget of the State; that the provisions of the law of August 10, 1922 relating to the organization of the control of expenditure incurred are not applicable to their management and that, finally, the President of the Superior Council is the authorizing officer of the expenditure and that he is responsible for presenting the Council accounts audited by the Court of Auditors;
3. Considering that the authors of the referral only question the constitutionality of part of these provisions; that they only argue that the fact for the Superior council of audio-visual to propose “during the development of the bill of finance of the year” the credits necessary for the accomplishment of its missions results in submit these credits to arbitration by the Prime Minister; that there would thereby be a risk of arbitrariness; that the independence of the audiovisual regulatory body could be affected, which would be contrary to the freedom of expression recognized by Article 11 of the Declaration of Human Rights;
4. Considering that under the fifth paragraph of article 34 of the Constitution, “the finance laws determine the resources and charges of the State under the conditions and subject to the reservations provided for by an organic law”; that it emerges from article 39 of the Constitution that the initiative of the finance laws belongs to the Prime Minister; that article 37 of ordinance n ° 59-2 of January 2, 1959 on the organic law relating to finance laws provides that “under the authority of the Prime Minister, the Minister of Finance prepares finance bills which are decrees in the Council of Ministers “;
5. Considering that by providing that the Superior council of audio-visual proposes, during the development of the budget bill of the year, the credits necessary for the accomplishment of its missions, article 5-II of the referred law intended to devote expressly to the benefit of this body a power of proposal, while complying with the constitutional and organic rules governing the preparation of finance bills; that he in no way disregarded the principle of the free communication of thoughts and opinions proclaimed by article 11 of the Declaration of the Rights of Man and of the Citizen;
– ON ARTICLE 8 RELATING TO THE COMPETENCES OF THE SUPERIOR AUDIOVISUAL COUNCIL WITH REGARD TO THE PUBLIC SECTOR:
6. Considering that article 8 of the law confers a new wording on article 13 of the law of September 30, 1986; that in the first place, it is affirmed that the Superior council of audio-visual “ensures the respect of the pluralistic expression of the currents of thought and of opinion in the programs of the national companies of program and in particular for the emissions of information political “whereas previously the regulatory body ensured respect for pluralism; that secondly, it is provided that in the event of a serious breach of the obligations imposed on the national program companies or on the National Audiovisual Institute by virtue of the law, the Superior Council may, in addition to public comments to the board of directors, designate one of its members to explain its content to the said board and collect its response; that thirdly, it is specified that in the event of a serious breach of the provisions of a specification or of the decrees of the Council of State taken in application of article 27 of the law of September 30, 1986, in its drafting resulting from article 11 of the law presently submitted to the examination of the Constitutional Council, the Superior council of audio-visual “can also, by reasoned decision, order the president of the organization to take, within a time fixed in the decision, the measures necessary to put an end to the breach “; that in such a hypothesis ”
7. Considering that the authors of the referral maintain that “by limiting themselves to evoking the case of serious breach”, without specifying its content, the legislator leaves room for arbitrariness; that they also argue that the fact for the law to specify that the measures taken in execution of the decision of the Superior council of audio-visual “cannot in any case engage the personal responsibility of the president of the organization” is contrary ” to the principles which govern the exercise of authority and to the freedom of commerce and industry “;
. As regards the reference to the concept of “serious breach”:
8. Considering that by referring to the concept of “serious breach” by the organizations of the public sector of the audio-visual one of the obligations which are imposed on them by virtue of the law of September 30, 1986 modified, of the decrees in Council of State envisaged in its article 27, or of the specifications, the legislator intended to exclude, for non-serious breaches, the implementation of a binding procedure with regard to the national program companies or the National Institute of audiovisual; that it will be up to the Superior council of audio-visual to conform, under the control of the judge of legality, with the distinction made by the law according to the degree of gravity of the breach; that in this way, the legislature cannot be criticized for
. With regard to the exemption from the personal responsibility of the president of the organization:
9. Considering that no one can, by a general provision of the law, be exempted from all personal responsibility whatever the nature or the seriousness of the act imputed to him; that thus, the provisions of the last sentence of article 13 of the law of September 30, 1986, in their wording resulting from article 8 of the referred law, must be declared contrary to the constitutional principle of equality, and which are worded thus: “The measures taken in execution of these decisions can in no case engage the personal responsibility of the president of the organization”;
– ON ARTICLE 11 RELATING TO PROVISIONS COMMON TO THE PUBLIC AND PRIVATE SECTORS OF AUDIOVISUAL COMMUNICATION:
3 ° the contribution to the development of cinematographic and audiovisual production and the minimum expenditure devoted to the acquisition of broadcasting rights for cinematographic and audiovisual works as well as the independence of producers with regard to broadcasters. after opinion of the Superior council of audio-visual. This reasoned opinion is published in the Official Journal of the French Republic, as well as the report presenting the decree. – The ethical rules concerning advertising and the rules applicable to institutional communication, sponsorship and practices similar to it are set. by the Superior council of audio-visual “; cinematographic and audiovisual works as well as the independence of the producers with regard to the broadcasters. These decrees are taken after the opinion of the Superior council of audio-visual. This reasoned opinion is published in the Official Journal of the French Republic, as well as the report presenting the decree. – The ethical rules concerning advertising and the rules applicable to institutional communication, sponsorship and practices similar to it are set. by the Superior council of audio-visual “; cinematographic and audiovisual works as well as the independence of the producers with regard to the broadcasters. These decrees are taken after the opinion of the Superior council of audio-visual. This reasoned opinion is published in the Official Journal of the French Republic, as well as the report presenting the decree. – The ethical rules concerning advertising and the rules applicable to institutional communication, sponsorship and practices similar to it are set. by the Superior council of audio-visual “;
11. Considering that the authors of the referral consider that Article 11, while leaving complete freedom to the executive to govern such fundamental areas “as the financing of audiovisual communication services, as well as the content of their program”, is contrary to the Constitution on two counts; on the one hand, it contravenes article 11 of the Declaration of Human Rights which reserves to the law the care of determining the cases in which there is “abuse” of the freedom of communication of thoughts and opinions ; on the other hand, it disregards the provisions of article 34 of the Constitution which leaves it to the legislator to lay down the rules concerning the fundamental guarantees granted to citizens for the exercise of public freedoms;
12. Considering that the scope of this argument must be assessed on the basis both of the specific content of the new article 27 of the law of September 30, 1986 and of the other provisions of this law, as amended and supplemented by the law referred;
. Regarding the reference to decrees in the Council of State:
13. Considering that the law of September 30, 1986 itself fixed provisions which limit the competence devolved in its article 27, paragraph 1, to the Government acting by decree in Council of State; that article 1 of the aforementioned law provides, in its wording resulting from article 1 of the referred law, that “audiovisual communication is free” and that “the exercise of this freedom can only be limited to the extent required, on the one hand, by respect for the dignity of the human person, the liberty and property of others, the pluralist character of the expression of currents of thought and opinion and, on the other hand , by safeguarding public order, by the needs of national defense, by the requirements of public service, it makes their development subject to compliance with essential guarantees; that, in the hypotheses mentioned in the first paragraph of new article 27, the Government will have to make a decision in the Council of State after having collected the public and motivated opinion of the Superior council of audio-visual as it is said in the second paragraph of same article; that it follows from there that the provisions of the first and second paragraphs of article 27 of the law of September 30, 1986, in their drafting resulting from article 11 of the law subjected to the examination of the Constitutional Council, do not disregard neither article 11 of the Declaration of the Rights of Man and of the Citizen, nor article 34 of the Constitution; the Government will have to decide in the Council of State after having collected the public and motivated opinion of the Superior council of audio-visual as it is said in the second paragraph of the same article; that it follows from there that the provisions of the first and second paragraphs of article 27 of the law of September 30, 1986, in their drafting resulting from article 11 of the law subjected to the examination of the Constitutional Council, do not disregard neither article 11 of the Declaration of the Rights of Man and of the Citizen, nor article 34 of the Constitution; the Government will have to decide in the Council of State after having collected the public and motivated opinion of the Superior council of audio-visual as it is said in the second paragraph of the same article; that it follows from there that the provisions of the first and second paragraphs of article 27 of the law of September 30, 1986, in their drafting resulting from article 11 of the law subjected to the examination of the Constitutional Council, do not disregard neither article 11 of the Declaration of the Rights of Man and of the Citizen, nor article 34 of the Constitution;
. With regard to the attribution of regulatory competences to the Superior council of audio-visual:
14. Considering that the first two paragraphs of article 21 of the Constitution are thus conceived: “The Prime Minister directs the action of the Government. is responsible for national defense. It ensures the execution of the laws. – Subject to the provisions of article 13, it exercises the regulatory power and appoints to civil and military posts. It can delegate some of its powers to the ministers “;
15. Considering that these provisions confer on the Prime Minister, subject to the powers granted to the President of the Republic, the exercise of regulatory power at the national level; that if they do not prevent the legislator from entrusting a State authority other than the Prime Minister with the task of setting standards making it possible to implement a law, it is on condition that this authorization does not concern that measures of limited scope both in terms of their scope and content;
16. Considering that the law authorizes the Superior council of audio-visual to fix alone by regulatory way not only the ethical rules concerning the publicity but also the whole of the rules relating to the institutional communication, the sponsorship and the practices similar to this- this ; that because of its too wide scope this empowerment disregards the provisions of Article 21 of the Constitution; that follows from there that must be declared contrary to this one the provisions of the third paragraph of article 27 of the law of September 30, 1986, in their drafting resulting from article 11 of the referred law; that are inseparable from the third paragraph of article 27 of the law of 1986, the words: “subject to the provisions of the last paragraph of this article”
– ON ARTICLE 13 RELATING TO CONVENTIONS MADE FOR THE OPERATION OF PRIVATE AUDIOVISUAL COMMUNICATION SERVICES BY TERRESTRIAL AIRWAY OR BY SATELLITE:
17. Considering that article 13 of the referred law replaces article 28 of the law of September 30, 1986 with a new wording; that the first paragraph of the new Article 28 makes the issuance of authorizations for the use of frequencies conditional for each new sound or television broadcasting service broadcast by terrestrial hertzian way or by satellite, other than those operated by the national program companies, at the conclusion of an agreement between the Superior council of audio-visual, acting on behalf of the State, and the person who requests the authorization; that the second paragraph of the same article states that, in the respect of the honesty and pluralism of information and programs and general rules set by law, ”
18. Considering that according to the authors of the referral, article 13 of the referred law would be contrary to the principle of equality from a double point of view; on the one hand, in that it provides that the specific rules applicable to the authorized service are fixed by the agreement “taking into account … the service’s share in the advertising market”, whereas this share can only be assessed ‘after a certain period of operation and is, moreover, fluctuating; on the other hand, in that it provides that the convention “relates in particular to one or more” points, because this implies that the various conventions may, without this being clearly justified, provide for constraints of degree and variable intensity;
19. Considering that the fact for the legislator to subordinate the granting of an authorization for the exploitation of a private sound or television broadcasting service diffused by terrestrial hertzian way or by satellite to the signing of an agreement, answers the concern to allow the Superior council of audio-visual to adapt to each particular situation the rules of general scope defined by the law of September 30, 1986 modified or on its basis; that, in the same spirit, the new Article 28 establishes a distinction between, on the one hand, requirements which, such as those relating to respect for honesty and pluralism of information, have an imperative character and, on the other part, elements of assessment which are indicative, non-limiting and even for some of them, scalable; that it is expressly specified by article 28 new that must be respected “the equality of treatment between the various services” as well as the “conditions of competition specific to each of them”; whereas the rules thus laid down, far from disregarding the principle of equality, make it possible, on the contrary, to ensure its implementation;
– ON ARTICLE 19 RELATING TO THE POWERS OF SANCTION OF THE SUPERIOR AUDIOVISUAL COUNCIL:
20. Considering that article 19 of the referred law replaces the initial text of article 42 of the law of September 30, 1986, news in the form of a new article 42 and articles 42-1 to 42-11 added to the law of 1986;
21. Considering that, in its wording resulting from article 19 of the referred law, article 42 provides in particular that the Superior council of audio-visual can put in residence the holders of authorization for the exploitation of a service of audiovisual communication to comply with the obligations imposed on them by legislative and regulatory texts and by the principles defined in the amended article 1 of the law of September 30, 1986; that, according to article 42-1 added to this same law, if the holder of an authorization does not respect the above-mentioned obligations or does not comply with the formal notices sent to him, the Superior Council of the audiovisual industry can pronounce against it, taking into account the seriousness of the breach, one of the following four sanctions: “1 ° the suspension, after formal notice, of the authorization or part of the program for a maximum of one month; 2 ° the reduction of the duration of the authorization within the limit of one year; 3 ° a financial penalty possibly accompanied by a suspension of the authorization or part of the program, if the failure does not constitute a criminal offense; 4 ° the withdrawal of the authorization. ” ; that the first paragraph of article 42-2 added to the law of 1986 specifies that “the amount of the financial penalty must be based on the seriousness of the breaches committed and in relation to the benefits derived from the breach by the authorized service, without be able to exceed 3 per cent of turnover excluding tax, realized during the last closed financial year calculated over a period of twelve months. The maximum is increased to 5 per cent in the event of violation of the same obligation “; that article 42-3 added to the law of 1986, drawing on this point from the provisions of the fourth paragraph of article 42 in its previous draft, provides that the authorization can be withdrawn, without prior notice, in the event of a substantial modification of the data in view of which the authorization had been issued; that by virtue of article 42-4 added to the law of 1986, in all cases of breach of the obligations incumbent on the holders of authorization for the exploitation of an audiovisual communication service, the Superior council of audio-visual can order the insertion in the programs of
22. Considering that the rules of procedure and the means of appeal applicable to the sanctions taken by the Superior council of audio-visual are the object of articles 42-5, 42-6, 42-7, 42-8 and 42-9 which are added to the law of September 30, 1986; that article 42-10 repeats, with modifications, the provisions of the seventh paragraph of article 42 of the law of 1986 under which in the event of failure to fulfill the obligations resulting from the provisions of this law and for the performance of missions of the Superior council of audio-visual, its president can ask in court that is ordered, under penalty, with the person which is responsible for it to conform to these provisions, to put an end to the irregularity or to remove the effects thereof; that finally, according to
23. Considering that the authors of the referral claim in the first place that the administrative sanctions are unconstitutional in principle; that they argue secondly that, even if the principle of such sanctions is accepted, the sanctions provided for by the referred law do not meet the constitutional requirements; that in any event, the sanction set out in 1 ° of Article 42-1 is infringing on freedom of expression;
. With regard to the very principle of the institution of administrative sanctions:
24. Considering that the authors of the referral argue first of all that articles 42-1 and 42-2 added to the law of September 30, 1986, in that they confer on an administrative authority and not on a judicial authority the power to impose sanctions, disregard the principle of the separation of powers affirmed by article 16 of the Declaration of Human Rights; that the respect of this principle is essential all the more since in question the free communication of the thoughts and the opinions guaranteed by article 11 of the Declaration of 1789;
25. Considering that under article 11 of the Declaration of the Rights of Man and of the Citizen: “The free communication of thoughts and opinions is one of the most precious human rights; any citizen can therefore speak, write, print freely, except to answer for the abuse of this freedom, in the cases determined by the law “;
26. Considering that it is for the legislator, competent by virtue of article 34 of the Constitution to lay down the rules concerning the fundamental guarantees granted to citizens for the exercise of public freedoms, to reconcile, in the current state of technology and their control, the exercise of freedom of communication as it results from Article 11 of the Declaration of Human Rights, with, on the one hand, the technical constraints inherent in the means of audiovisual communication and, on the other hand, the objectives of constitutional value which are the safeguard of public order, respect for the freedom of others and the preservation of the pluralistic character of the socio-cultural currents of expression to which these modes of communication, by their considerable influence, are likely to harm;
27. Considering that, for the achievement of these objectives of constitutional value, it is open to the legislator to subject the different categories of audiovisual communication services to a regime of administrative authorization; whereas it is also open to it to entrust an independent administrative authority with ensuring compliance with the constitutional principles in matters of audiovisual communication; that the law can, likewise, without undermining the principle of the separation of powers, endow the independent authority responsible for guaranteeing the exercise of the freedom of audiovisual communication with powers of sanction within the limits necessary for the ‘accomplishment of its mission;
28. Considering that it is for the legislature to combine the exercise of these powers with measures intended to safeguard the rights and freedoms constitutionally guaranteed;
29. Considering that, in accordance with the principle of respect for the rights of the defense, which constitutes a fundamental principle recognized by the laws of the Republic, no sanction may be imposed without the holder of the authorization having been given so much present his observations on the facts of which he is accused and to have access to the file concerning him; that in addition, for the penalties provided for in 2 °, 3 ° and 4 ° of article 42-1 as well as in the case of the withdrawal of the authorization mentioned in article 42-3, the legislator has prescribed the compliance with an adversarial procedure which is initiated by a member of the administrative court in accordance with the terms defined in article 42-7; that it emerges from Article 42-5 that the Superior Council of
30. Considering that the power to inflict the sanctions enumerated in article 42-1 is conferred on the Superior council of audio-visual which constitutes an independent body; that it follows from the terms of the law that no sanction is automatic; that, as prescribed by article 42-6, any decision pronouncing a sanction must be motivated; that the diversity of the measures likely to be taken on the basis of article 42-1 corresponds to the will of the legislator to proportion the repression to “the gravity of the breach” reproached to the holder of an authorization; that the principle of proportionality must likewise be applied for any of the sanctions listed in Article 42-1; that this applies in particular to the financial penalties provided for in 3 ° of this article; that in this regard, article 42-2 specifies that the amount of the pecuniary sanction must be function of the gravity of the breaches committed and in relation to the advantages drawn from the breach by the authorized service; a single breach can only give rise to a single administrative penalty, whether legal or contractual; that it follows from the wording of Article 42-1 (3 °) that a pecuniary sanction cannot be combined with a criminal sanction; a single breach can only give rise to a single administrative penalty, whether legal or contractual; that it follows from the wording of Article 42-1 (3 °) that a pecuniary sanction cannot be combined with a criminal sanction; a single breach can only give rise to a single administrative penalty, whether legal or contractual; that it follows from the wording of Article 42-1 (3 °) that a pecuniary sanction cannot be combined with a criminal sanction;
31. Considering that it should also be noted that any decision imposing a sanction may be the subject of a full jurisdiction appeal before the Council of State, as specified in article 42-8; that this appeal suspends execution in the event of withdrawal of the authorization referred to in article 42-3; that, in other cases, the suspension of the execution of the contested decision can be requested in application of article 48 of the ordinance n ° 45-1078 of July 31, 1945 and of the decree n ° 63-766 of the 30 July 1963; that the right of recourse being reserved for the person sanctioned, its exercise cannot, in accordance with general principles of law, lead to worsening its situation;
32. Considering that, in the case of breaches of the obligations attached to an administrative authorization and having regard to the guarantees provided, which are moreover also applicable to contractual penalties and to the sanction liable to be imposed by virtue of Article 42-4, articles 42-1 and 42-2 added to the law of September 30, 1986 by article 19 of the referred law, are not contrary, in principle, to articles 11 and 16 of the Bill of Rights. of Man and Citizen;
. With regard to the pleas alleging the violation of article 8 of the Declaration of Rights of 1789 and article 34 of the Constitution:
33. Considering that according to the authors of the referral, even if the principle of administrative sanctions is accepted, articles 42-1 and 42-2 are nonetheless contrary to article 8 of the Declaration of 1789 which requires that no one can be punished except by virtue of an established and legally enforced law as well as in article 34 of the Constitution which reserves to the law the care of fixing the fundamental guarantees granted to citizens for the exercise of public freedoms ; that indeed, the law fixed in the present case of the maximum financial limits without defining in a precise manner the infringements which could give rise to such sanctions;
34. Considering that article 8 of the Declaration of the Rights of Man and of the Citizen provides that “the law must only establish penalties which are strictly and obviously necessary, and no one can be punished except by virtue of a law established and promulgated prior to the offense, and legally enforced “;
35. Considering that it follows from these provisions, as from the fundamental principles recognized by the laws of the Republic, that a penalty can be imposed only on the condition that the principle of legality of the offenses and the penalties are respected, the principle of the necessity of penalties, the principle of non-retroactivity of the penal law of more severe incrimination as well as the principle of respect for the rights of the defense;
36. Considering that these requirements do not only concern the penalties pronounced by the criminal courts but extend to any sanction having the character of a punishment even if the legislator has left the task of pronouncing it to an authority of a non-judicial nature;
37. Considering, however, that applied outside criminal law, the requirement of a definition of the punishable offenses is satisfied, in administrative matters, by reference to the obligations to which the holder of an administrative authorization is subject by virtue of the laws and regulations;
38. Considering that it results from the bringing together of the new article 42 and of article 42-1 of the law of September 30, 1986 that the powers of sanction devolved to the Superior council of audio-visual are not likely to be exerted , subject to the case governed by articles 42-3 and 42-9, that after formal notice to the holders of authorization for the exploitation of an audiovisual communication service “to respect the obligations imposed on them by the legislative and regulatory texts and by the principles defined in article 1 “of the aforementioned law, and failure on the part of the interested parties to respect the aforesaid obligations or to comply with the formal notices sent to them; that the obligations liable to
39. Considering that, subject to the reservations of interpretation mentioned above, Articles 42-1 and 42-2 are not contrary to the provisions of either Article 8 of the Declaration of Human Rights or of the Article 34 of the Constitution which defines the extent of the competence of the legislator;
. With regard to the sanction set out in 1 ° of article 42-1:
40. Considering that the authors of the referral argue that the sanction set out in 1 ° of article 42-1, insofar as it allows the Superior council of audio-visual to pronounce the suspension of part of the program of a service, is contrary to the principle of the freedom of expression; that if it is wrongly inflicted, no adequate compensation can be granted to the holder of the
41. Considering that among the sanctions likely to be pronounced by the Superior council of audio-visual “taking into account the gravity of the breach”, figure “the suspension, after formal notice, of the authorization or of a part of the program for one month at most “, whereas under the third paragraph of article 42 of the law of September 30, 1986, in its previous wording, the regulatory body could suspend the authorization for a period of time. one month at most;
42. Considering that it results from the parliamentary debates which preceded the adoption of 1 ° of article 42-1 that the legislator intended to proportion both the duration and the extent of the suspension to the seriousness of the breach committed by the authorization holder; that, in this spirit, the part of the program which may be the subject of a measure of temporary suspension not exceeding one month must be directly related to the breach noted; that by that very same reason, the sanction which aims to repress it is not contrary to the constitutional principle of free communication of thoughts and opinions; that moreover, any decision of the Superior council of audio-visual which would intervene in violation of the legislative or regulatory provisions would be likely to
– ON ARTICLE 30 IN THAT IT MAKES THE LAW APPLICABLE TO FRENCH POLYNESIA:
43. Considering that article 30 is worded as follows: “This law is applicable to the overseas territories and to the territorial collectivity of Mayotte “;
44. Considering that the authors of the referral maintain that these provisions, in so far as they make the law applicable to French Polynesia, disregard article 74 of the Constitution; that indeed, the Senate, when it deliberated in first reading on the bill, was not in possession of the opinion delivered by the Territorial Assembly of Polynesia; that they consider that this irregularity affects both the entire
45. Considering that under article 74 of the Constitution the organization of overseas territories “is defined and modified by law after consultation with the territorial assembly concerned”; that it follows from this provision that the opinion issued in good time by the territorial assembly, consulted with sufficient notice, must be brought to the attention of parliamentarians, for whom it constitutes a necessary element of assessment, before the adoption of the bill on first reading by the assembly of which they are part, but no provision of constitutional value requires that this opinion be requested before the bill is tabled in Parliament;
46. Considering that the law n ° 86-1067 of September 30, 1986 is applicable to all the overseas territories, in accordance with its article 108; that the bill amending the aforementioned law was sent on October 18, 1988 by the High Commissioner of the Republic in French Polynesia to the President of the Territorial Assembly for the purpose of obtaining the opinion of this assembly; that, during the examination in first reading of the bill, the Senate, after noting that the requested opinion had not been issued, excluded French Polynesia from the scope of the text; that the National Assembly, called to vote on first reading, considered that, due to the expiry of the one-month period allotted to the Territorial Assembly by the article 72 of law n ° 84-820 of September 6, 1984 to give its opinion, it had to be deemed favorable; that consequently, it extended the text to French Polynesia; that the Senate subsequently ruled in the same direction; that, in these particular circumstances, the procedural irregularity noted by the authors of the referral during the examination of the bill at first reading could not, failing to be of a substantial nature, lead to Article 30 of the law referred to be declared contrary to the Constitution;
47. Considering that in the present case there is no need for the Constitutional Council to raise ex officio any question of conformity with the Constitution with regard to the other provisions of the law submitted for its examination;
Decides:
Article one: The
following provisions of the law amending law n ° 86-1067 of September 30, 1986 relating to freedom of communication are declared contrary to the Constitution:
In the text of article 8, the second sentence of the third paragraph of the new wording of article 13 of the law of September 30, 1986 as follows: “The measures taken in execution of these decisions can in no case engage the personal responsibility of the president of the organization”;
In the text of article 11, the third paragraph of the new wording of article 27 of the law of September 30, 1986 as follows: “The ethical rules concerning advertising and the rules applicable to institutional communication, sponsorship and the practices similar to this one are fixed by the Superior council of audio-visual “.
Article 2:
Are inseparable from the provisions of article 11 declared contrary to the Constitution by article 1 of this decision, the words “subject to the provisions of the last paragraph of this article” appearing in 1 ° of article 27 of the law of September 30, 1986 in the wording resulting from said article 11.
Article 3:
