REGULATORY MEASURES AND FREEDOM OF TRADE AND INDUSTRY
LexInter | April 28, 2013 | 0 Comments

REGULATORY MEASURES AND FREEDOM OF TRADE AND INDUSTRY

Having regard to the summary request and the additional memorandum recorded on February 7, 1986 and June 8, 1986 at the Litigation Secretariat of the Council of State, presented for the ASSOCIATION DES PECHEURS AUX FILETS ET ENGINS GARONNE, ISLE ET DORDOGNE MARITIMES, and tending that the Council of State cancels a decree n ° 85-1316 of December 11, 1985 relating to freshwater fishing practiced by professionals,
Having regard to the other documents in the file;
Considering the law n ° 84-512 of June 29, 1984 modified by the law n ° 85-542 of May 22, 1985 relating to freshwater fishing and the management of fish resources;
Considering the rural code;
Having regard to the code of administrative courts;
Considering the ordinance of July 31, 1945 and the decree of September 30, 1953;
Considering the law of December 30, 1977;
After having heard:
– the report of Mrs. Falque-Pierrotin, Auditor,
– the observations of SCP Piwnica, Molinié, lawyer of the ASSOCIATION DES PECHEURS AUX FILETS ET ENGINS GARONNE, ISLE ET DORDOGNE MARITIMES,
– the conclusions of ME Guillaume, Government commissioner;
On the lack of countersignature of the Minister of the Economy and Finance and the Minister of Public Works, Transport and Tourism:

Considering that under article 22 of the Constitution of October 4, 1958: “The acts of the Prime Minister are countersigned, if necessary, by the ministers responsible for their execution”; that in the case of an act of a regulatory nature, the ministers responsible for its execution are those who have the competence to sign or countersign the regulatory and individual measures that necessarily entail the execution of this act;
Considering that none of the provisions of the decree of December 11, 1985 necessarily implies the intervention of regulatory or individual measures that the Minister of the Economy and Finance or the Minister of Public Works, Transport and Tourism would have the competence to sign or countersign;
On the plea alleging violation of the principle of freedom of trade and industry:
Considering that the Constitution of October 4, 1958 provides in its article 37, first paragraph, that “matters other than those which are within the domain of law, have a regulatory character “and, in its article 34, that” the law fixes the rules concerning … the fundamental guarantees granted to the citizens for the exercise of the public liberties “; that among the public freedoms of which, by virtue of the latter provision, the fundamental guarantees fall within the scope of the law is the free access by citizens to the exercise of any professional activity which has not been the subject of

Considering that it follows from article 414 of the rural code, resulting from the law of June 29, 1984, that people who engage in fishing on a professional basis must join a rigged association of professional fishermen and that, according to the article 416 of the same code, “the approved associations of professional fishermen bring together, in the departmental or interdepartmental framework, the professional fishermen working full or part time who alone are authorized to sell the product of their fishing …”; that if the last paragraph of the same article specifies that the conditions of membership to these associations are fixed by decree in the Council of State, this provision did not authorize the government, in the absence of an express authorization, to submit the ‘access to the exercise of
Considering that article 3 of decree n ° 85-1316 of December 11, 1985 taken for the application of this text makes membership of an approved association of professional freshwater fishermen subject to the following conditions: “- be of legal age; – consecrate at least half of his working time professional fishing with gear or nets in freshwater or to derive at least half of his professional income; – justify the required professional capacity, resulting either from the practice of fishing in freshwater professionally for a minimum period of three years, or possession of a certificate of capacity issued under the conditions defined by joint order of the Minister responsible for freshwater fishing and the Minister of Agriculture; – be affiliated to the social protection scheme for self-employed persons in agricultural professions as professional freshwater fishermen “; that the second of these provisions be limited to specifying the notion of full-time or part-time work appearing in the law , and the fourth, relating to the social protection system, is a necessary consequence of the practice of professional fishing; whereas, on the other hand, the requirements relating to majority and to capacity provide free access to the profession, such as ‘there were previously restrictions which are not provided for by law and which exceed the powers granted to the government by the aforementioned provisions of article 416 of the rural code;
On the plea alleging breach of the principle of freedom of association:

an approved association or of its territorial jurisdiction must be communicated to the commissioner of the Republic of the department of the head office, who transmits the proposal to this minister. This one makes known its opinion within three months following its referral “; that article 6 of the same decree provides that” The designation of the president and that of the treasurer are subjected to the approval of the Commissioner of the Republic of the department of the seat social of the association. The withdrawal of one of these approvals by the same authority and after opinion of the Superior Council of Fisheries causes a new election of the office “; that the control thus entrusted to the administration does not exceed the limits of the delegation granted to the power regulatory by article 416 of the rural code when it provides that associations must be approved and that the terms of approval of their statutes, as well as those of control of the administration, are fixed by decree in the Council of State; that, consequently, the ASSOCIATION DES PECHEURS AUX FILETS ET ENGINS GARONNE ISLE AND DORDOGNE MARITIMES is not justified in invoking the aforementioned provisions of the decree of December 11, 1985 of an alleged disregard of the principle of thefreedom of association;
Article 1: Article 3 of decree n ° 85-1316 of December 11, 1985 is canceled insofar as it provides that, in order to join an approved association of professional freshwater fishermen, it is necessary to be of legal age and to prove the capacity professional requirement resulting either from the practice of freshwater fishing on a professional basis for a minimum period of three years, or from the possession of a certificate of capacity issued under the conditions defined by joint order of the Minister responsible for wetland fishing sweet and the Minister of Agriculture.
Article 2:: The surplus of the conclusions of the request of the ASSOCIATION OF FISHERS WITH NETS AND GEAR GARONNE ISLE AND DORDOGNE MARITIMES is rejected.
Article 3: This decision will be notified to the GARONNE ISLE AND DORDOGNE MARITIMES FISHERS ‘ASSOCIATION OF NETS AND GEAR, to the Minister of Agriculture and Forestry and to the Secretary of State attached to the Prime Minister, in charge of the environment .


Analysis

Abstrats: 01-02-01-04-02 LEGISLATIVE AND ADMINISTRATIVE ACTS – VALIDITY OF ADMINISTRATIVE ACTS – JURISDICTION – LAW AND REGULATIONS – LEGISLATIVE AUTHORITIES – REGULATORY MEASURES CONFORMING TO THE AUTHORIZATION GIVEN BY THE LEGISLATOR – Article 416 of the rural code – Decree of December 11, 1985 relating to professional freshwater fishing (Articles 5 and 6).
01-02-01-04-03 LEGISLATIVE AND ADMINISTRATIVE ACTS – VALIDITY OF ADMINISTRATIVE ACTS – JURISDICTION – LAW AND REGULATIONS – LEGISLATIVE AUTHORITIES – REGULATORY MEASURES DISCLAIMING THE AUTHORIZATION GIVEN BY THE LEGISLATOR – Article 416 of the Rural Code – Decree of 11 December 1985 on professional freshwater fishing (Article 3).
01-04-03-04-01 LEGISLATIVE MEASURES AND ADMINISTRATIVE – VALIDITY OF ADMINISTRATIVE MEASURES – DIRECT VIOLATION OF THE RULE OF LAW – GENERAL PRINCIPLES OF LAW – PRINCIPLES TO ENSURE THE EXERCISE OF INDIVIDUAL FREEDOMS AND COLLECTIVE – FREEDOMS OF THE PERSON – Freedom of association – No violation – Articles 5 and 6 of the decree of 11 December 1985 relating to professional freshwater fishing – Control by the administration of professional fishermen’s associations.
01-04-03-04-03 LEGISLATIVE AND ADMINISTRATIVE ACTS – VALIDITY OF ADMINISTRATIVE ACTS – DIRECT VIOLATION OF THE RULE OF LAW – GENERAL PRINCIPLES OF LAW – PRINCIPLES GUARANTEING THE EXERCISE OF INDIVIDUAL OR COLLECTIVE FREEDOMS – FREEDOM OF TRADEAND INDUSTRY – Violation – Article 3 of the decree of 11 December 1985 relating to professional freshwater fishing – Establishment of age and capacity conditions for joining professional fishermen’s associations – Lack of legislative authorization due to article 416 of the rural code.
03-09-02 AGRICULTURE – FISHING – FISHING AND FISH FISHING ASSOCIATIONS – Decree of 11 December 1985 relating to professional freshwater fishing – (1) Article 3 – Establishment of age and capacity conditions for joining associations of professional fishermen – Illegality – Lack of legislative authorization due to Article 416 of the Rural Code – Violation of the principle of freedom of trade and industry. (2) Articles 5 and 6 – Control by the administration of professional fishermen’s associations – Legality – Legislative empowerment by virtue of article 416 of the rural code – No violation of the principle of freedom of association.
10-02-04 ASSOCIATIONS AND FOUNDATIONS – LEGAL REGIME OF THE DIFFERENT ASSOCIATIONS – ASSOCIATIONS GOVERNED BY SPECIFIC PROVISIONS – Professional fishermen’s associations – Decree of 11 December 1985 relating to professional freshwater fishing – (1) Setting of age conditions and capacity to join associations – Lack of legislative authorization – Violation of the principle of freedom of tradeand industry. (2) Control by the administration of professional fishermen’s associations – Legislative empowerment – No violation of the principle of freedom of association.

Summary :01-02-01-04-03, 01-04-03-04-03, 03-09-02 (1), 10-02-04 (1) It results from article 414 of the rural code, resulting from the law of June 29, 1984, that persons who engage in professional fishing must join an approved association of professional fishermen and that, according to article 416 of the same code, “the approved associations of professional fishermen bring together, in the departmental or interdepartmental framework, professional fishermen working full or part time who are the only ones authorized to sell the product of their fishing … “. If the last paragraph of the same article specifies that the conditions of membership to these associations are fixed by decree in the Council of State, this provision did not authorize the Government, in the absence of an express authorization, to submit the access to the exercise of the activity of professional fisherman with other limitations than those resulting from the aforementioned provisions of the law. However, article 3 of decree n ° 85-1316 of 11 December 1985 taken for the application of this text makes membership of an approved association of professional freshwater fishermen subject to the following conditions: “- be of legal age; – devote to at least half of his working time professional fishing with gear or nets in freshwater or to obtain at least half of his professional income; – justify the required professional capacity, resulting either from the practice of fishing in water soft in a professional capacity for a minimum period of three years, that is to say of the possession of a certificate of capacity issued under the conditions defined by joint order of the Minister responsible for freshwater fishing and the Minister of Agriculture; – be affiliated to the social protection scheme for self-employed persons in agricultural professions as professional freshwater fishermen. “The second of these provisions is limited to specifying the concept of full-time or part-time work appearing in the law, and the fourth, relating to the social protection system, is a necessary consequence of the practice of professional fishing. On the other hand, the requirements relating to the majority and to the capacity provide free access to the profession, such as it is. existed previously,
an approved association or of its territorial jurisdiction must be communicated to the commissioner of the Republic of the department of the head office, who transmits the proposal to this minister. This one makes known its opinion within three months following its referral. “Article 6 of the same decree provides that” the designation of the president and that of the treasurer are subject to the approval of the Commissioner of the Republic of the department of the head office from the Association. The withdrawal of one of these approvals by the same authority and after opinion of the Superior Council of Fisheries results in a new election of the board. “The control thus entrusted to the administration does not exceed the limits of the delegation granted to the regulatory power. by the

Leave a Comment

Your email address will not be published.


CAPTCHA Image
Reload Image