Decision no. 2010-3 QPC of 28 May 2010

On April 14th 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° 323830), application made by the Union des Familles en Europe (Union of Families in Europe) pertaining to the conformity of Article L 211-3 of the Family and Social Welfare Code 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 Family and Social Welfare Code;

Having regard to Act of July 1st 1901 as amended pertaining to association agreements;

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 of the President of the National Assembly, registered on April 22nd 2010;

Having regard to the observations on behalf of L'Union des familles en Europe made by the SCP Delaporte, Briard, Trichet, Attorneys at the Conseil d'Etat and the Cour de cassation, registered on May 4th 2010;

Having regard to the observations on behalf of l'Union nationale des associations familiales made by SCP Boutet, Attorney at the Conseil d'Etat and the Cour de cassation, registered on May 4th 2010;

Having regard to the observations of the Prime Minister, registered on May 4th 2010;

Having regard to the further observations on behalf of of l'Union nationale des associations familiales, registered on May 12th 2010

Having regard to the further observations on behalf of of l'Union des familles en Europe, registered on May 12th 2010

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

Maitre François-Henri Briard, on behalf of the Union des familles en Europe, Maitre Jean-François Boutet for the Union nationale des associations familiales and Mr Thierry-Xavier Girardot, representing the Prime Minister, were heard by the Council in open court on May 25th 2010;

Having heard the Rapporteur;

ON THE FOLLOWING GROUNDS

1. Under paragraph 3 of Article L 211-3 of the Family and Social Welfare Code, l'Union nationale (The National Union) and the Unions départementales (Departmental Unions) of Families Associations are authorised to "officially represent all families vis à vis the Public Authorities and in particular to appoint or recommend delegates representing families to sit on various Councils, Assemblies or other bodies set up by the State, the Region, the Department or the Commune".

2. The party making the application contends that the "absolute monopoly" which the Union nationale des associations familiales enjoys vis-à-vis the Public Authorities fails to comply with the principle of equality between Families Associations and the National Union of Families Associations. It also infringes firstly the freedom of expression of Families Associations and the diversity of thought and opinions and secondly freedom of association.

WITH RESPECT TO THE PRINCIPLE OF EQUALITY

3. Article 6 of the Declaration of the Rights of Man and the Citizen 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 for reasons of general interest provided that, in each case, the resulting different treatment is directly connected with the purpose sought to be achieved by the statute which introduces said different treatment.

4. Chapter I of Title 1 of Book II of the Family and Social Welfare Code pertains to "Families Associations". Firstly Article L 211-1 of this Code defines Families Associations as being "primarily intended to defend all material and moral interests either of all families or categories of families". These Associations are freely formed in accordance with Title I of the Act of July 1st 1901 referred to above. Secondly, Articles L 211-2 to L 211-12 of the same Code governs Departmental Unions and the National Union of Families Associations. These Articles provide that these Federations, which have been set up in the public interest, are composed at national and Departmental level of Families Associations which wish to join the same. They specify the purpose and the rules governing the composition thereof together with certain principles concerning their administration. They also provide that their Articles of association and internal regulations shall be submitted for approval.

5. In view of the rules governing their formation, running , composition and the missions which the law confers upon them, the National Union and the Departmental Unions of Families Associations are not in the same situation as that of Families Associations which may join them. When recognizing the representativeness of the National Union and the Departmental Unions, Parliament intended to ensure that families were granted official representation vis-à-vis the Public Authorities through an Association set up by the statute bringing together all Families Associations wishing to join such an Association. By do doing it acted in the general interest, and as such the argument based on failure to comply with the principle of equality must be dismissed.

WITH RESPECT TO FREEDOM OF EXPRESSION AND THE OBJECTIVE OF CONSTITUTIONAL STATUS OF THE DIVERSITY OF SCHOOLS OF THOUGHT AND OPINIONS:

6. Firstly, Article 11 of the Declaration of 1789 proclaims : "The free communication of ideas and opinions is one of the most precious rights of man. Every citizen may therefore speak, write and publish freely, except in such cases of abuse of this freedom as shall be determined by law". Freedom of expression and communication is all the more precious since the exercising thereof is a condition of democracy and one of the guarantees of respect for other rights and freedoms. Any restrictions on the exercising of this freedom should be necessary, adapted and proportionate to the purpose it is sought to achieve.

7. The final paragraph of Article L 211-3 of the Family and Social Welfare Code provides : "Each Families Association or Federation of Families Associations shall, within the limits of its Articles of Association, retain the right to represent vis-à-vis the Public Authorities the interests which it has agreed to defend". Although paragraph 3 of this Article requires the Public Authorities to recognize the representativeness of the National Union and Departmental Unions of Families Associations, the same Public Authorities may take into account the interests and positions defended by the Families Associations coming under the scope of Article L 211-1 of the same Code. The challenged provision does therefore not infringe the freedom of such Associations to make known the positions which they defend. The argument based on infringement of freedom of expression of Associations is therefore without foundation.

8. Secondly, the challenged statutory provision concerns neither politics nor the media. The argument based on failure to comply with the objective of constitutional status of the diversity of schools of thought and opinions is in all event inoperative.

WITH RESPECT TO FREEDOM OF ASSOCIATION:

9. Freedom of association is one of the fundamental principles recognized by the laws of the Republic and solemnly reaffirmed by the Preamble to the Constitution. Under the principle of freedom of association Associations may be constituted freely and may be publicized under the sole condition of a prior declaration to this effect. Thus, except for measures which may be taken with respect to certain specific categories of Associations, the setting up of Associations, even when they may seem to be void or have an unlawful object, cannot be subject to any prior intervention of administrative or judicial authorities as a prerequisite of validity.

10. The Families Associations provided for by Article L.211-1 of the Family and Social Welfare Code may be freely set up under the Act of July 1st 1901 referred to hereinabove. They are free to join or not to join the National Union or Departmental Unions of Families Associations in the conditions laid down by Articles L 211-4 and L 211-5 of the same Code. They are also at liberty to group together in the manner they see fit. The challenged provision does not therefore infringe the freedom of association.

11. The challenged provision does not run counter to any other right or freedom guaranteed by the Constitution.

HELD

Article 1: Paragraph 3 of Article L 211-3 of the Family and Social Welfare Code is 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 May 27th 2010 and composed of Messrs Jean-Louis DEBRE, President, Messrs Guy CANIVET, Michel CHARASSE, Jacques CHIRAC, Renaud DENOIX de SAINT MARC, Mrs Jacqueline de GUILLENCHMIDT, Messrs Hubert HAENEL, Jean-Louis PEZANT and Mr Pierre STEINMETZ.

Decision published on May 28th 2010.