Decision no. 2010-13 QPC of 9 July 2010

On May 28th 2010 the Constitutional Council, in the conditions provided for by Article 61-1 of the Constitution, received an application for a priority preliminary ruling on the issue of constitutionality transmitted by the Conseil d'Etat (decision n° 337840 of May 28th 2010), application made by Messrs Orient O and Puiu B, pertaining to the conformity of sections 9 and 9-1 of Act n° 2000-614 of July 5th 2000 pertaining to the Reception and Accommodation of Travelling Communities with the rights and freedoms guaranteed by the Constitution.

THE CONSTITUTIONAL COUNCIL

Having regard to the Constitution;

Having regard to Ordinance n° 58-1067 of November 7th 1958 as amended (Institutional Act on the Constitutional Council);

Having regard to the Town Planning Code;

Having regard to the Code of Administrative Justice;

Having regard to Act n° 69-3 of January 3rd 1969 as amended pertaining to the carrying on of transient and itinerant business and the regulations applicable to persons of no fixed abode travelling around in France;

Having regard to Act n° 2000-614 of July 5th 2000 as amended pertaining to the Reception and Accommodation of Travelling Communities;

Having regard to the Regulation of February 4th 2010 as to the procedure applicable before the Constitutional Council with respect to applications for priority preliminary rulings on the issue of constitutionality;

Having regard to the observations on behalf of Messrs O and B made by Me Henri Braun, Attorney at the Paris Bar, registered on June 16th 2010;

Having regard to the observations of the Prime Minister, registered on June 17th 2010;

Having regard to the documents produced and appended to the case file;:

Maitre Braun, on behalf of Messrs O and B, Mr Thierry-Xavier Girardot, representing the Prime Minister, were heard by the Council in open court on June 29th 2010;

Having heard the Rapporteur;

ON THE FOLLOWING GROUNDS

1. Section 9 of the Act of July 5th 2000 referred to above provides : "Once a Commune meets the requirements with which it is under a duty to comply under section 2 hereof, the Mayor of said Commune or, in Paris, the Prefect of Police may by an official order forbid the parking of mobile homes or caravans as referred to in section 1 on land other than equipped halting sites. These provisions shall also apply to Communes which are not involved in the Departmental plan but which have a halting site and to those Communes which freely decide, without being required to do so, to contribute to the funding of such a site or which belong to a group of Communes which has given itself the power to implement the Departmental plan.
   The same provisions shall apply to Communes which have been given additional time for compliance under III of section 2 until the expiry of said time and to Communes which have a temporary site which has been approved by the Prefect, within a period of time determined by the Prefect and which shall not exceed six months as from the date of said approval.
   Such approval shall be given depending on the locality, the capacity and the equipment of such a site in the conditions laid down by Decree.
   Approval of a temporary halting site shall not dispense the Commune from compliance with its obligations within the time provided for in section 2 hereof.

II- In the event of parking of vehicles in infringement of the terms of the order referred to in I hereinabove, the Mayor, the owner of the occupied land or the licensee thereof may request the Prefect to formally notify the occupants to quit said area.
Such formal notice shall only be given if the parking is such as to adversely affect the health, safety or tranquillity of the public.
Formal notice to quit shall be accompanied by a specified time for compliance which shall not be less than 24 hours. It shall be notified to the occupants and publicized by way of the posting of said notice at the Town Hall and on the land involved. If need be, it shall also be notified to the owner of the land or the licensee thereof. In the event of non compliance with formal notice to quit the land within the allotted period of time and in the absence of any appeal against the same in the conditions laid down in II bis, the Prefect may proceed to forcibly evict mobile homes and caravans, unless such a measure is opposed by the owner of the land or the licensee thereof within the time allotted for the enforcement of the notice to quit.
In the event of the owner of the land or the licensee thereof opposing the enforcement of the formal notice to quit, the Prefect may require said person to take all necessary steps to put an end to the interference with the health, safety and tranquillity of the public within a time determined by the Prefect.
Failure to comply with the notice given under the foregoing paragraph shall incur payment of a fine of 3 750 euros.
II bis - Persons receiving the formal notice to quit served by the Prefect referred to in II hereinabove, together with the owner of the land or the licensee thereof may, within the time specified in said formal notice request the Administrative Court to set aside said formal notice. The filing of such a request shall suspend the enforcement of the decision of the Prefect where the parties making such request are concerned. The President of the Court or his delegate shall rule within 72 hours of the making of the request.

III- The provisions of I, II and II bis shall not apply to the parking of mobile homes or caravans belonging to the persons mentioned in section 1 hereof:
1° When such persons are the owners of the land on which such vehicles are parked
2° When such persons hold a permit issued under Article L 443-1 of the Town Planning Code
3° When such persons park their vehicles on a site equipped in the manner provided for in Article L 443-3 of the said Code.

IV- In the event of occupation, contrary to the terms of the order provided for in I, of private land used for business of an economic nature when such an occupation is likely to hinder the carrying on of such business, the owner of the land or the licensee thereof may apply to the President of the Tribunal de grande instance in order to obtain the forced eviction of such mobile homes or caravans. In such a case the judge shall rule in summary proceedings. His decision shall be provisionally enforceable. In cases of necessity he may order that the eviction shall be carried out upon sole presentation of the record of his decision. If the situation requires swift resolution, the provisions of paragraph 2 of Article 485 of the Code of Civil Procedure shall apply.".

2. Section 9-1 of the same Act of July 5th 2000 provides : " In Communes which are not involved in the Departmental plan nor referred to in section 9 hereof, the Prefect may implement the procedure of service of formal notice to quit and eviction provided for in II of said section, at the request of the Mayor, the owner of the land or the licensee thereof, for the purpose of putting an end to the unauthorised parking of mobile homes or caravans likely to adversely affect the health, safety or tranquillity of the public.

These provisions shall not apply to the persons referred to in IV of section 9. Persons concerned by the formal notice to quit shall be entitled to avail themselves of the means of appeal laid down in II bis of the same section.

3. The applicants for the priority preliminary ruling argue that the abovementioned provisions run counter to the principle of equality and the freedom to come and go as one pleases.

As regards the principle of equality :

4. Article 1 of the Declaration of the Rights of Man and the Citizen of 1789 proclaims : "Men are born and remain free and equal in rights. Social distinctions may be based solely on considerations of the common good". Article 1 of the Constitution provides : "France shall be an indivisible, secular, democratic and social Republic. It shall ensure the equality of all citizens before the law, without distinction of origin, race or religion..".

5. Article 6 of the Declaration of 1789 proclaims that the law " shall be the same for all, whether it protects or punishes". The principle of equality does not preclude Parliament from treating different situations in different ways, nor from departing from the principle of equality in the general interest provided that in each case the resulting difference of treatment is directly related to the purpose of the statute providing for such different treatment.

6. The combined provisions of paragraph I of section 1 of the Act of July 5th 2000 and section 2 of the Act of January 3rd 1969 referred to above show that the challenged provisions are applicable to " persons known as Travelling communities.. whose normal mode of accommodation is composed of mobile homes or caravans …." and who "have no fixed place of abode or residence of longer than six months duration in a Member State of the European Union". The abovementioned provisions are based on a difference between the situation of such persons, irrespective of their origins, who have chosen to live in mobile homes or caravans and adopt an itinerant lifestyle and those persons who have opted to live in a sedentary, settled manner. The distinction thus imposed is based on objective and rational criteria directly connected with the purpose which Parliament sought to achieve, namely to ensure that such Travelling communities are accommodated in conditions compatible with maintaining public law and order and the rights of third parties. They do not introduce any discrimination based on any ethnic origin and hence do not run counter to the principle of equality.

As regards the freedom to come and go:

7. Under Article 34 of the Constitution statutes shall determine the rules concerning the fundamental guarantees granted to citizens for the exercise of their civil liberties. As part of this task, it is the duty of Parliament to achieve the necessary conciliation between the protection of freedoms and the safeguarding of law and order without which there can be no effective guarantee of the exercising of individual freedoms.

8. The administrative police measures likely to affect the exercising of constitutionally guaranteed freedoms, including the freedom to come and go, an element of the freedom of the individual protected by Articles 2 and 4 of the Declaration of 1789, must be justified by the need to safeguard public law and order and be proportionate to this purpose.

9. The forced eviction of mobile homes and caravans introduced by the challenged provisions can only be carried out by the representative of the State in the event of unauthorised parking likely to adversely affect the health, safety ad tranquillity of the public. It can only be proceeded with at the request of the Mayor, the owner of the land or the licensee thereof and can only be carried out after formally notifying the occupants that they are required to quit the piece of land in question. Said occupants have a period of at least twenty-four hours from the notification of the order to quit within which to spontaneously evacuate the land which they are illegally occupying. This procedure does not apply to persons who own the land on which they have parked vehicles, nor those persons holding a permit granted under Article 443-1 of the own Planning Code, nor those parking on an equipped site in the conditions provided for in Article L 443-3 of the same Code. The notice to quit may be appealed against before the Administrative Court and such appeal will suspend eviction pending the hearing thereof. In view of all the conditions and guarantees which Parliament has introduced and in view of the purpose which it seeks to achieve, Parliament has passed measures ensuring a conciliation which is not patently unbalanced between the need to safeguard public law and order and other rights and freedoms.

10. The challenged provisions do not run counter to any other constitutionally guaranteed right or freedom.

HELD:

Article 1: Sections 9 and 9-1 of Act n° 2000-614 of July 5th 2000 pertaining to the Reception and Accommodation of Travelling Communities are constitutional.

Article 2: This decision shall be published in the Journal officiel of the French Republic and notified in the conditions provided for in Section 23-11 of the Ordinance of November 7th 1958 referred to hereinabove.

Deliberated by the Constitutional Council sitting on July 8th 2010 and composed of Messrs Jean-Louis DEBRE, President, Messrs Jacques BARROT, Guy CANIVET, Michel CHARASSE, Renaud DENOIX de SAINT MARC, Mrs Jacqueline de GUILLENCHMIDT, Messrs Hubert HAENEL, and Mr Pierre STEINMETZ.

Announced on July 9th 2010.