Decision no. 2010-97 QPC of 4 February 2011

On 7 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 (commercial chamber, decree no. 1259 of 7 December 2010), raising the conformity of the amending Article L.2333-5 of the General Local Authorities Code 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 General Local Authorities Code;

Having regard to Act 2010-1488 of 7 December 2010 on the restructuring of the electricity market;

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 on behalf of LAVAL DISTRIBUTION by Esq. Robert Alberti, Attorney at the Paris Bar, registered on 28 December 2010 and 17 January 2011;

Having regard to the observations on behalf of the Departmental Syndicate for Electricity and Gas of Mayenne, by Esq. Karine Cochard, Attorney at the Laval Bar, on 17 January 2011;

Having regard to the observations of the Prime Minister, registered on 29 December 2010;

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

Having heard Esq. Robert Alberti for the applicant company 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 L. 2333-5 of the General Authorities Code in the version prior to the cited Act of 7 December 2010 provides: “By derogation to the provisions of Articles L.2333-2, L.2333-3 and L.2333-4, in the municipalities where agreements have been concluded, before 5 December 1984, with companies supplied with medium/high voltage current, these agreements remain in force provided that the current is supplied with subscribed capacity of greater than 250 kVA";

2. Considering that, according to the applicant company, these provisions fail to have regard to the principle of equality before charges levied by the State;

3. Considering that Article 13 of the Declaration of the Rights of Man and the Citizen of 1789 provides: “A common contribution is essential for the maintenance of the public forces and for the cost of administration. This should be equitably distributed among all the citizens in proportion to their means”; that, in particular, to ensure the principle of equality is upheld, the legislator must base his judgment on objective and rational criteria according to the proposed objectives; that this judgment must however not jeopardize equality before the charges levied by the State;

4. Considering that article L.2333-3 of the General Authorities Code, in its version prior to the cited Act of 7 December 2010, exempts from taxation on the supply of low or medium-voltage electricity end users with a subscribed capacity greater than 250 kVa; that therefore the legislator has sought to promote the development of industrial uses of electricity and put an end to the difficulties caused by contractual and flat-rate conditions on taxable consumption of subscribers supplied with medium and high voltage; that, however, despite the contested provisions, the companies that have a subscribed capacity of greater than 250 kVa cannot benefit from this exemption if they have entered into an electricity supply contract with the municipality before 5 December 1984; that the difference in treatment of electricity businesses supplied with a current of at least 250 kVa capacity depending on whether or not they have signed such an agreement is not based on objective and rational criteria defined in terms of the legislator's stated aims; that this difference jeopardizes the principle of equality before the charges levied by the State; that it follows that Article L.2333-5 of the cited Code is declared unconstitutional;

5. Considering that the declaration of unconstitutionality shall take effect upon publication of this decision; that it can be invoked in cases current at that date and whose outcome depends on the application of the provisions declared unconstitutional,

HELD:

Article 1: Article L. 2333-5 of the General Authorities Code, in its version prior to Act 2010-1488 of 7 December 2010, on the restructuring of the electricity market, is declared unconstitutional.

Article 2: This declaration of unconstitutionality shall take effect on the date of publication of this decision in the conditions set down in recital 5.

Article 3: 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. 2355 (@ 89)