Decision no. 2010-93 QPC of 4 February 2011

On 25 November 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 Conseil d'État (decision no. 342957 of 24 November 2010) on behalf of Comité Harkis et Vérité, raising the conformity of the following provisions with the rights and freedoms guaranteed by the Constitution:

• Article 9 of Act no. 87-549 of 16 July 1987 on settlement of compensation for repatriated citizens;

• Article 2 of Act no. 94-488 of 11 June 1994 on repatriated former members of supplementary forces and similar or victims of captivity in Algeria;

• Article 47 of Act no. 99-1173 of 30 December 1999 on finances, amended for 1999;

• Article 67 of Act no. 2002-1576 of 30 December 2002 on finances, amended for 2002;

• Articles 6, 7 and 9 of Act no. 2005-158 of 23 February 2005 concerning the gratitude of the Nation and the national contribution for the benefit of repatriated French citizens.

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 Act no. 87-549 of 16 July 1987 on settlement of compensation for repatriated citizens;

Having regard to Act no. 94-488 of 11 June 1994 on repatriated former members of supplementary forces and similar or victims of captivity in Algeria;

Having regard to Act no. 99-1173 of 30 December 1999 on finances, amended for 1999;

Having regard to Act no. 2002-1576 of 30 December 2002 on finances, amended for 2002;

Having regard to Act no. 2005-158 of 23 February 2005 concerning the gratitude of the Nation and the national contribution for the benefit of repatriated French citizens;

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 by Comité Harkis et Vérité, registered on 20 December 2010, 4 January 2011 and 1 February 2011;

Having regard to the rectified observations of the Prime Minister, registered on 20 December 2010;

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

Having heard Esq. Jean-Emmanuel Nunes, Attorney at the Paris Bar, on behalf of the applicant, and Mr Xavier Pottier, appointed by the Prime Minister, at the public hearing on 25 January 2011;

Having heard the Rapporteur:

1. Considering that Article 9 of the Act no. 87-549 of 16 July 1987 provides: “An allowance of 60,000F is paid, in instalments of 25,000F in 1989 and 1990, and 10,000F in 1991, to former Harkis, Moghaznis and staff of various supplementary forces that served in Algeria, and who retained French nationality in application of Article 2 of Order 62-825 of 21 July 1962 on provisions relating to French nationality, taken in application of Act 62-421 of 13 April 1962 and who took up residence in France.
   In case of death of the person, the allowance is paid under the same conditions to the surviving spouse.
   In the absence of a surviving spouse, the allowance is distributed equally between children with French nationality who are resident in France.
   The deadline for requesting this allowance under the present article is 31 December 1997";

2. Considering that Article 2 of the Act no. 94-488 of 11 July 1994 provides: “An additional lump-sum allowance of 110,000F is paid to each of the beneficiaries of the provisions of the first subparagraph of Article 9 of Act 87-549 of 16 July 1987 on settlement of compensation of repatriated citizens, provided that the person meets the conditions imposed by that subparagraph on the date of entry into force of this Act.
   If the person in question is deceased, the additional lump-sum allowance is paid to the surviving spouse who meets the conditions of nationality and domicile set out in the first subparagraph of Article 9 of Act 97-549 of 16 July 1987 on the date of entry into force of the present Act. If the person in question had been married several times, the additional lump-sum allowance is divided equally between the surviving spouse and the preceding spouse(s) provided they meet the conditions mentioned above, unless they are divorced and remarried.
   If one of the spouses or ex-spouses is deceased or fails to meet these conditions, the allowance that could have been claimed by that person is divided equally between the children born of the union with the person in question, provided they have French nationality and are resident on the territory of a Member State of the European Union on the date of entry into force of this Act";

3. Considering that Article 47 of the Act no. 99-1173 of 30 December 1999 provides: “I. A gratitude allowance linked to the irreversible increase in the yearly average of the consumer price index for households (excluding tobacco), on conditions of age, is instituted as of 1 January 1999 for those persons indicated in the first subparagraph of Article 2 of Act 94-448 of 11 June 1994 on repatriated former members of supplementary forces and similar or victims of captivity in Algeria.
   The conditions for payment and the amount are defined by legal decree.
   I. bis: A gratitude allowance linked to the irreversible increase in the yearly average of the consumer price index for households (excluding tobacco), on conditions of age, is paid to non-remarried surviving spouses or ex-spouses of those named in the first subparagraph of Article 2 of Act 94-448 of 11 June 1994 and who meet the conditions of nationality as set out in Article 9 of Act 87-549 of 16 July 1987 regarding the settlement of compensation for repatriated citizens. This provision enters into force as of 1 January 2001. The conditions and amount of the allowance are determined by legal decree”;

4. Considering that Article 67 of the Act no. 2002 1576 of 30 December 2002 provides: “ In I and I bis of Article 47 of the Act on Finances amended for 1999 (no. 99-1173 of 30 December 1999), the words: “life annuity” are replaced with the words: “gratitude allowance linked to the average consumer price index for households (excluding tobacco)” and the words: “on condition of age and resources” are replaced with the words: “on condition of age”.

“II. Subparagraph 4 of Article 81 of the General Tax Code is thus amended:
1st Its provisions constitute an a;
2nd It is complemented by a b thus redacted:
“b. The gratitude allowance set out in I and I bis of Article 47 of the Act on Finances amended for 1999 (no. 99-1173 of 30 December 1999) in favour respectively of those named in the first subparagraph of Article 2 of Act 94-488 of 11 June 1994 on repatriated former members of supplementary forces and similar or victims of captivity in Algeria, and their surviving non-remarried spouses or ex-spouses”.
“III The provisions of I enter into force on 1 January 2003. The provisions of II are applicable for taxation as of 1 January 2003.

5. Considering that Article 6 of the Act no. 2005-158 of 23 February 2005 provides: “I. Beneficiaries of the gratitude allowance cited in Article 67 of the Act on Finances amended for 2002 (2002-1576 of 30 December 2002), may opt for:

• maintenance of the gratitude allowance at the annual rate of 2800 Euros from 1 January 2005;
• maintenance of the gratitude allowance at the rates current at 1 January 2004 and the payment of a lump sum of 20,000 Euros;
• for the payment, in lieu and in place of the gratitude allowance, of a lump sum of 30,000 euros.
  If the lump sum option is chosen, the gratitude allowance is rendered at the rates current at 1 January 2004 until the lump sum has been paid. As a precaution, the gratitude allowance shall be paid at this same rate until this option has been exercised.
  In case of death, at the date of entry into force of this Act, of the former supplementary forces member or similar and of his or her surviving spouses or ex-spouses who met the conditions of Aarticle 2 of Act 94-448 of 11 June 1994 on repatriated former members of supplementary forces and similar or victims of captivity in Algeria, a payment of 20,000 euros is divided equally between the children of the union if they have French nationality and resident in France or a European Community Member State on 1 January 2004.
  “Persons who are wards of the Nation, and orphaned of mother and father, who have French nationality and are resident in France or in a Member State of the European Community on 1 January 2004, one of whose parents served as a Harki or member of supplementary forces not mentioned in the preceding paragraph, shall benefit from an allowance of 20,000 euros, divided equally between the children of such a union.
  The modalities of application of this article, particularly the timescale for exercising the option and the payment schedule for transfers taking account of the age of beneficiaries, are set by decree in the Conseil d'État.
  II. Lump sum compensation paid in application of I are intangible and are not considered as income taxable by the State for its benefit or that of public authorities";

6. Considering that Article 7 of the Act of 23 February 2005, which amends the conditions for the allocation to repatriated citizens of specific housing benefits: “I. In Articles 7, 8 and 9 of Act 94-488 of 11 June 1994 on repatriated former members of supplementary forces and similar or victims of captivity in Algeria, the date: “31 December 2004" is replaced by: “31 December 2009”.
   II. The second subparagraph of Article 7 of the same Act is replaced by the following two subparagraphs:
   “This benefit is paid to the persons cited above who are to become personal owners or jointly with their children on condition that they cohabit with them in the property inherited in this way.
   The benefit is in addition to any other form of benefit set out by the Construction and Housing Code.
   III. In the first subparagraph of Article 9 of the same Act, the words: “completed before 1 January 1994” are replaced with: "Completed prior to 1 January 2005"”;

7. Considering that Article 9 of the same Act of 23 February 2005 provides: “By derogation to the conditions determined for benefiting from the gratitude allowance and specific housing benefits cited in Articles 6, the Minister in charge of repatriated citizens grants this benefit to former Harkis and members of supplementary forces member who served in Algeria, or widows and repatriated citizens, aged sixty years or over, who can prove continuous residence in France or other Member State of the European Community since 10 January 1973, and who acquired French nationality before 1 January 1995.

This request for derogation is submitted within one year of publication of the decree for the application of this article";

8. Considering that, according to the applicant, these provisions, which subordinate the payment of the aforementioned gratitude allowances and annuities and specific housing benefits to conditions of residence and nationality, infringe the principle of equality guaranteed by Article 6 of the Declaration of the Rights of Man and the Citizen of 1789;

9. Considering, on the other hand, that Article 6 of the Declaration of 1789 provides that 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 god, provided that in both cases the difference in treatment that results is either in direct relationship with the subject of the law established thereby;

10. Considering that, by instituting gratitude allowances and annuities and specific housing benefits for former Harkis and members of supplementary forces who served in Algeria and who are resident in France or in another Member State of the European Union, the legislator has decided to take account of the costs incurred by their departure from Algeria and their relocation to a European Union Member State; that, to do this, he was able, without failing to have regard for the principle of equality, to institute a residence criterion in direct relation to the subject of the law; that, on the other hand, he could not, without failing to have regard to the same principle, establish difference by nationality with regard to the subject of the law; that, consequently, the following must be declared contrary to the rights and freedoms guaranteed by the Constitution:

• in the first subparagraph of Article 9 of the Act of 16 July 1987, the words:
  “who retained French nationality in application of Article 2 of Order 62-825 of 21 July 1962 on some provisions relating to French nationality, taken in application of Act 62-421 of 13 April 1962 and”;
• in the penultimate sub-paragraph of the same article, the words: “have French nationality and who”;
• in the last subparagraph of Article 2 of the Act of 11 July 1994, the words: “have French nationality and";
• in paragraph I bis of Article 47 of the Act of 30 December 1999, the words: “ and meet the conditions of nationality as set out in Article 9 of Act no. 87-549 of 16 July 1987 on settlement of compensation for repatriated citizens”;
• in the sixth subparagraph of Article 6 of the Act of 23 February 2005, the words: “have French nationality and";
• in the seventh subparagraph of the same article, the words: “have French nationality and";
• in Article 9 of the same Act, the words: “and who acquired French nationality before 1 January 1995”;

11. Considering that the other contested provisions are not contrary to any other right or freedom guaranteed by the Constitution;

12. Considering that the second subparagraph of Article 62 of the Constitution provides: “A provision declared unconstitutional on the basis of Article 61-1 is repealed on publication of the decision of the Constitutional Council or at a later date stipulated in the decision. The Constitutional Council determines the conditions and limits within which the effects of the provision are a matter for contestation”; that the present declaration of unconstitutionality takes effect from the date of publication of this decision; that it may be used in the instances current at this date and whose outcome depends on the application of the provisions declared unconstitutional,

HELD:

Article 1: The following provisions are declared contrary to the Constitution:

• in the first subparagraph of Article 9 of Act no. 87-549 of 16 July 1987 on settlement of compensation for repatriated citizens the words: “who retained French nationality in application of Article 2 of Order 62-825 of 21 July 1962 on provisions relating to French nationality, taken in application of Act 62-421 of 13 April 1962 and”;
• in the penultimate sub-paragraph of the same article, the words: “have French nationality and who”;
• in the last subparagraph of Article 2 of Act no. 94-488 of 11 June 1994 on repatriated former members of supplementary forces and similar or victims of captivity in Algeria, the words: “have French nationality and";
• in paragraph I bis of Article 47 of Act no. 99-1173 of 30 December 1999 on Finances, amended for 1999, the words: “ and meet the conditions of nationality as set out in Article 9 of Act no. 87-549 of 16 July 1987 on settlement of compensation for repatriated citizens”;
• in the sixth subparagraph of Article 6 of Act no. 2005-158 of 23 February 2005 concerning the gratitude of the Nation and the national contribution for the benefit of repatriated French citizens, the words: “have French nationality and";
• in the seventh subparagraph of the same article, the words: “have French nationality and";
• in Article 9 of the same Act, the words: “and who acquired French nationality before 1 January 1995”.

Article 2: The declaration of unconstitutionality of Article 1 shall take effect on the date of publication of this decision in the conditions set down in recital 12.

Article 3: The following provisions are declared constitutional:

• the remaining provisions of Article 9 of Act no. 87-549 of 16 July 1987 on settlement of compensation for repatriated citizens;
• the remaining provisions of Article 2 of Act no. 94-488 of 11 June 1994 on repatriated former members of supplementary forces and similar or victims of captivity in Algeria;
• the remaining provisions of Article 47 of Act no. 99-1173 of 30 December 1999 on Finances, amended for 1999;
• the remaining provisions of Article 67 of Act no. 2002-1576 of 30 December 2002 on finances, amended for 2002;
• the remaining provisions of Articles 6, 7 and 9 of Act no. 2005-158 of 23 February 2005 concerning the gratitude of the Nation and the national contribution for the benefit of repatriated French citizens.

Article 4: 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 3 February 2011 and sat on by: Mr. Jean-Louis DEBRÉ, President, Mr. Jacques BARROT, 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 4 February 2011.

Journal Officiel of 5 February 2011, p. 2351 (@ 87)