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

FREEDOM OF TRADE AND INDUSTRY

Having regard to the summary request and the additional memorandum, registered on November 30, 2007 and February 29, 2008 at the litigation secretariat of the Council of State, presented for the SOCIETE COMPAGNIE DES BATEAUX MOUCHES, whose head office is Port de la Conférence in Paris (75008) , represented by its current Chairman and CEO; the SOCIETE COMPAGNIE DES BATEAUX MOUCHES asks the Council of State:

1 °) to annul the implicit decision of rejection resulting from the silence kept by the Minister of Ecology, Sustainable Development and Planning on his request, presented on July 30, 2007, tending, on the one hand, to the ‘repeal of the decree of 20 December 2006 modifying the amended decree of 2 September 1970 relating to the safety of passenger vessels not subject to maritime regulations, on the other hand, to compensation for the damage suffered;

2) to order the Minister of Ecology, Sustainable Development and Planning to repeal this decree, subject to a penalty of 1,500 euros per day of delay within a period of one month from the notification of the decision to be made;

3) to order the State to pay compensation amounting to 124,975 euros on the day of the request for compensation for the damage suffered with legal interest and capitalization of interest;

4 °) to charge the State the sum of 3,000 euros under Article L. 761-1 of the Code of Administrative Justice;
Having regard to the other documents in the file;

Considering the decree n ° 73-912 of September 21, 1973 relating to the general regulations of the police of the interior navigation;

Considering the decree n ° 91-731 of July 23, 1991 relating to the crew and the control of the boats circulating or stationing on internal waters;

Considering the decree n ° 2005-850 of July 27, 2005 relating to the delegations of signature of the members of the government;

Considering the code of administrative justice;

After having heard in public session:

– the report of Miss Constance Rivière, Auditor,

– the observations of Me Spinosi, lawyer of the SOCIÉTÉ COMPAGNIE DES BATEAUX MOUCHES,

– the conclusions of Ms. Béatrice Bourgeois-Machureau, public rapporteur,

– the floor having again given to Me Spinosi, lawyer of the SOCIÉTÉ COMPAGNIE DES BATEAUX MOUCHES;
On the external legality of the decree:

Considering that Mr. Pierre-Alain A, director of maritime, road and river transport, whose appointment was made by decree of August 26, 2005, regularly published in the official journal of the French Republic of August 27, 2005, benefited when he took over the attacked order of the delegation of the Minister of Transport, Equipment, Tourism and the Sea granted by point 1 of article 1 of the decree of July 27, 2005 to the directors of central administration to sign the whole acts, with the exception of decrees, relating to the affairs of the services placed under their authority; that as a following, the plea that Mr. A would not justify a delegation signature regular must be rejected;

On the internal legality of the decree:

Considering that the decree whose repeal is requested modifies the decree of 2 September 1970 relating to the safety of boats not subject to maritime regulations by providing that the minimum number of compulsory crew members for these boats will no longer be a function of the maximum number of passengers allowed on board but the maximum capacity of the boat; that it has the effect of requiring the presence on board of four crew members, including a captain, a mechanic and two sailors, for all boats with a reception capacity of between six hundred and one thousand passengers, regardless of the number of passengers actually on board during a crossing, whereas only one seaman is required for lower capacity vessels;

Considering, in the first place, that if the decree of September 2, 1970 relating to the safety of passenger ships not subject to maritime navigation regulations, which referred to an order of the Minister responsible for public works the task of enacting the provisions necessary techniques was repealed by a decree of August 2, 2007, this circumstance does not have the effect of depriving the contested decree of the legal basis, which is also taken for the application of the decree of July 23, 1991 relating to the crew and to the conduct of vessels circulating on inland waters;

Considering, in the second place, that dWhen the exercise of administrative police powers is likely to affect production, distribution or service activities, the fact that the objective of the police measures is the protection of public order does not exempt the authority vested with these police powers with the obligation to also take into account the freedom of trade and industry and the rules of competition; that it is up to the judge of the excess of power to assess the legality of these administrative police measures by investigating whether they were taken taking into account all of these objectives and these rules and if they did, by combining them, an exact application; that by prescribing, with a view to improving the safety of passengers, to calculate the minimum number of crew according to the maximum capacity of the boat, the contested decree provides for necessary and proportionate measures when, on the one hand, the objective of passenger safety supposes taking into account, for determining the composition of the required crew, not only the number of passengers present on board or likely to be, but also the size , the tonnage and the maneuverability of the boat and that, on the other hand, the requirement of a variable number of sailors according to the number of passengers admitted on board the boats did not allow effective control of the implementation, by the companies, regulations relating to

Considering, in the third place, that if it emerges from the documents in the file, and that it is not disputed, that the applicant company is the only company organizing cruises on the Seine to have boats with a capacity of reception more than six hundred passengers, this circumstance alone is not sufficient to allow the conclusion that the police measures enacted by the contested decree would infringe the competition rules or disregard the principle of equality, since the measure adopted is based, with regard to its purpose, on objective criteria with regard to which it is proportionate;

Considering, fourthly, that the plea alleging infringement of Community law is, in any event, not accompanied by sufficient details to enable the court to assess its merits;

Considering finally that the alleged misuse of power has not been established;

Considering that it follows from the foregoing that the applicant company is not founded in requesting the annulment of the implicit decision of rejection of its request tending to the repeal of the decree of 20 December 2006; that in the absence of any fault engaging the responsibility of the State, the applicant company is therefore unfounded to seek compensation for the damage it claims to have suffered; that his conclusions indemnities can not consequently be rejected; that his conclusions at the end of injunction and penalty and his conclusions for the purposes of application of Article L. 761-1 of the code of administrative justice can not, consequently, that being also rejected;

DECIDE:
————–
Article 1: The request of the SOCIETE COMPAGNIE DES BATEAUX MOUCHES is rejected.

Article 2: This decision will be notified to the SOCIETE COMPAGNIE DES BATEAUX MOUCHES and to the Minister of State, Minister of Ecology, Energy, Sustainable Development and Regional Planning.


Analysis

Abstrats: 49-05-07 ADMINISTRATIVE POLICE. SPECIAL FONTS. POLICE OF NON-DOMANIAL WATERWAYS. – RIVER TRANSPORTS – DECREE RELATING TO THE SAFETY OF PASSENGER VESSELS NOT SUBJECT TO MARITIME REGULATIONS – FREEDOM OF TRADE AND INDUSTRY AND FREE COMPETITION [RJ1] – LACK OF KNOWLEDGE – ABSENCE – NON-IMPACTING CIRCUMSTANCE – APPLICATION OF REGULATION RIVER CRUISES ON THE SEINE COMPANY.
65-04 TRANSPORT. RIVER TRANSPORT. – DECREE RELATING TO THE SAFETY OF PASSENGER BOATS NOT SUBJECT TO MARITIME REGULATIONS – FREEDOM OF TRADEAND INDUSTRY AND FREE COMPETITION [RJ1] – LACK OF KNOWLEDGE – ABSENCE – NON-IMPACT CIRCUMSTANCE – APPLICATION OF REGULATIONS TO A SINGLE RIVER CRUISE COMPANY ON THE SEINE.

Summary: 49-05-07 Order of the Minister in charge of ecology of December 20, 2006 relating to the safety of passenger boats not subject to maritime regulations. This decree could legally provide for calculating the minimum number of crew based on the maximum capacity of the boat and no longer on the maximum number of passengers allowed on board. These police regulations in fact provide for measures that are necessary and proportionate to the safety objective, without undermining competition rules or freedom of trade. and industry. The fact that a single company organizing cruises on the Seine has boats with a capacity of more than six hundred passengers is not sufficient to justify considering that this regulation would, by itself, infringe the principle of equality. with regard to the objective criteria selected.
65-04 Decree of the Minister responsible for ecology of 20 December 2006 relating to the safety of passenger vessels not subject to maritime regulations. This decree could legally provide for calculating the minimum number of crew based on the maximum capacity of the boat and no longer on the maximum number of passengers allowed on board. These police regulations in fact provide for measures that are necessary and proportionate to the safety objective, without undermining competition rules or freedom of trade.and industry. The fact that a single company organizing cruises on the Seine has boats with a capacity of more than six hundred passengers is not sufficient to justify considering that this regulation would, by itself, infringe the principle of equality. with regard to the objective criteria selected.

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