Decision no. 2010-72/75/82 QPC of 10 December 2010

On September 28th 2010 the Constitutional Council, in the conditions provided for by Artic on the issue of constitutionality transmitted by the Cour de cassation (Criminal Division, decision N° 5255 of September 22nd 2010), made by Mr Alain D. pertaining to the conformity with the rights and freedoms guaranteed by the Constitution of Article 1741 paragraph 4 of the General Taxle 61-1 of the Constitution, received an application for a priority preliminary ruling Code.

It received further applications made respectively by Mrs Sylvie B and Mr Eric V and transmitted by the same Court on September 30th 2010 (decision n° 5254 of September 22nd 2010) and October 8th 2010 (decision n° 5554 of October 5th 2010) in the same conditions and challenging the same provision.

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 General Tax Code;

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 Mr D made by the SCP Delaporte, Briard and Trichet, Attorneys at the Conseil d'Etat and Cour de cassation, registered on October 21st and November 8th 2010;

Having regard to the observations on behalf of Mrs B. made by Me Martin Le Guerer, Attorney at the Paris Bar, registered on October 21st 2010;

Having regard to the observations made on behalf of Mr V. by Me Jean-Felix Luciani, Attorney at the Lyon Bar, registered on November 17th 2010;

Having regard to the observations of the Prime Minister, registered on October 22nd and November 2nd 2010;

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

Attorneys François-Henri Briard, Le Guerer and Luciani for the Applicants, and Mr Xavier Pottier, representing the Prime Minister, were heard by the Council in open court on November 30th 2010;

Having heard the Rapporteur;

1. Paragraph 4 of Article 1741 of the General Tax Code provides as follows : "The court shall in all cases order the publication of judgments in their entirety or by way of extracts thereof in the Journal officiel of the French Republic and in such other newspapers as the Court shall see fit to order, together with the publicising of said judgments either in their entirety or by way of extracts thereof by the posting of the same on official notice boards of the Commune in which the taxpayer involved resides, and on the outside main door of the building or professional premises occupied by said taxpayer or taxpayers. The cost of such publication in the press and the posting of the judgment on notice boards and designated premises shall be borne by the convicted offender".

2. The parties making the application argue that the above provisions infringe the principles of necessity and tailoring of punishments as guaranteed by Article 8 of the Declaration of the Rights of Man and the Citizen of 1789.

3. Article 8 of the Declaration of 1789 proclaims that "The Law must prescribe only such punishments as are strictly and evidently necessary and no one shall be punished except by virtue of a statute drawn up and promulgated before the commission of the offence and legally applied". The principle of the tailoring of punishments which derives from this Article implies that the punishment consisting in the publication of judgments in the press and their posting on notice boards or designated premises cannot be imposed unless a judge has expressly ordered the same, taking into account the specific circumstances of the case in hand.

4. By introducing a mandatory punishment of the publication of judgments concerning tax evasion in the press and the publicising of the same by their posting on notice boards and designated premises, the challenged provision is designed to assist in combating such an offence by ensuring that convictions are given the widest possible publicity.

5. The Judge who finds a taxpayer guilty of the offence of tax evasion is required to order the publication of said judgment in the Journal officiel and the posting of the same on official notice boards and designated premises. He cannot modify the length of time of such posting on notice boards or designated premises, which is fixed at a mandatory three months. Neither can he intervene to modify the manner in which such posting of judgments is to be effected, namely on official notice boards of the Commune in which the taxpayer involved resides, and on the outside door of the building or professional premises occupied by said taxpayer or taxpayers. Although the Judge is at liberty to decide whether the judgment be published in its entirety or by way of extracts thereof, this faculty cannot alone ensure compliance with the requirements which derive from the principle of the tailoring of punishments. Paragraph 4 of Article 1741 of the General Tax Code must thus be held to be unconstitutional.

HELD

Article 1: Paragraph 4 of Article 1741 of the General Tax Code is unconstitutional.

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 December 9th 2010 and composed of Messrs Jean-Louis DEBRE, President, Mr Jacques BARROT, Mrs Claire BAZY MALAURIE, Messrs Guy CANIVET, Michel CHARASSE, Renaud DENOIX de SAINT MARC, Mrs Jacqueline de GUILLENCHMIDT, Messrs Hubert HAENEL and Pierre STEINMETZ.

Announced on December 10th 2010.