Decision no. 2010-101 QPC of 11 February 2011

On 16 December 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 raised by the Cour de Cassation (second civil chamber, decree no. 2339 of 16 December 2010) on behalf of Mrs Monique B., spouse P., and Mr Marcel P., acting as a legal representative on the insolvency proceedings of Mrs P., raising the conformity of the first subparagraph of Article L.243-5 of the Social Security Code, in the version issued from Act 2006-1640 of 21 December 2006 on financing Social Security for 2007, and its sixth subparagraph, in the version issued under Act 2005-845 of 26 July 2005 on safeguarding businesses with the rights and freedoms guaranteed by the Constitution.

THE CONSTITUTIONAL COUNCIL,

Having regard to the Constitution;

Having regard to Ordinance no. 58-1067 of 7 November 1958 as amended, concerning organic law on the Constitutional Council;

Having regard to the Social Security Code;

Having regard to Act 2005-845 of 26 July 2005 on safeguarding businesses;

Having regard to Act 2006-1640 of 21 December 2006 on financing Social Security for 2007;

Having regard to the decrees of the Cour de Cassation nos. 08-13459 and 08-10470 of 12 February 2009;

Having regard to the Regulation of 4 February 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 made on behalf of the applicants by SCP Gatineau - Fattaccini, Attorney at the Conseil d'État and the Cour de Cassation, registered on 6 January 2011;

Having regard to the observations of the Prime Minister, registered on 7 January 2011;

Having regard to the observations for the Independent pension fund for French doctors by Esq. Dominique Foussard, Attorney at the Conseil d'État and the Cour de Cassation, registered on 7 and 24 January 2011;

Having regard to the documents produced and appended to the case files;

Having heard Esq. Carole Fattaccini for the applicants, Esq. Foussard for the Independent pension fund for French doctors and Mr Thierry-Xavier Girardot, appointed by the Prime Minister, at the public hearing on 1 February 2011;

Having heard the Rapporteur:

1. Considering that the first subparagraph of Article L. 243-5 of the Social Security Code, in its version issued from Article 39 of the Act of 21 December 2006, provides: “Once they exceed an amount determined by decree, the preferential claims in application of the first subparagraph of Article L. 243-4 payable by a trader, craftsman or moral entity by private law even if not trading, must be deposited on a public register held at the Commercial Court or at the Regional Court within six months following their final payment date or, where appropriate, the date of notification or official warning as set out in Article L. 244-2, when the debt is established in the course of an organized control in application of the provisions of Article L. 243-7. The amount cited in this subparagraph is determined according to the category to which the contributor is assigned and the number of staff in his business".

2. Considering that the sixth subparagraph of the same article, in the version from Article 165 of the Act of 26 July 2005, provides: “In case of a safeguarding or receivership procedure or legal liquidation, the penalties, late-payment interest and debt-collection fees due by the contributor on the date of the opening judgment are handed over";

3. Considering that the applicants stress that these provisions do not include members of the liberal professions acting as individuals in the field of application of the lawful submission set out in the sixth subparagraph of Article L. 243-5, while collective procedures have been made applicable to the liberal professions by the Act of 26 July 2005; that consequently these provisions would infringe the principle of equality before the law guaranteed by Articles 1 and 6 of the Declaration of the Rights of Man and the Citizen of 1789;

4. Considering that Article 6 of the Declaration of the Rights of Man and the Citizen of 1789 provides: “The law…must be the same for all, whether it protects or punishes”; that the principle of equality does not prevent the legislator settling different situations in different ways, or from derogating from equality for the general interest, provided that in both cases the difference in treatment that results is either in direct relationship with the subject of the law established thereby;

5. Considering that by extending the application of collective procedures to all members of the liberal professions by means of the Act of 26 July 2005, the legislator has enabled them to benefit from a procedure for handling debt in case of financial difficulty; that, consequently, these provisions of the first and sixth subparagraphs of Article L. 243-5 cannot, without failing to have regard for the principle of equality before the law, be interpreted as excluding members of the liberal professions exercising individually the benefit of the lawful return of the penalties, late-payment interest and debt-collection fees payable to social security organizations;

6. Considering that, without prejudice to the preceding recital, the contested provisions are not contrary to the principle of equality before the Law nor to any other right or freedom guaranteed by the Constitution;

HELD:

Article 1: Without prejudice to recital 5, the following are constitutional:

• the first subparagraph of Article L.243-5 of the Social Security Code, in its version issued from Act 2006-1640 of 21 December 2006 on financing for Social Security for 2007;
• the sixth subparagraph of the same article, in the version issued from Act 2005-845 of 26 July 2005 on safeguarding businesses.

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 7 November 1958 referred to hereinabove.

Deliberated by the Constitutional Council in its session on 10 February 2011 and sat on by: Mr. Jean-Louis DEBRÉ, President, Mrs Claire BAZY MALAURIE, Mr. Guy CANIVET, Mr. Michel CHARASSE, Mr. Renaud DENOIX de SAINT MARC, Mr. Hubert HAENEL and Mr. Pierre STEINMETZ.

Announced on 11 February 2011.

Journal Officiel of 12 February 2011, p. 2758 (@ 52)