Decision no. 2013-667 DC of 16 May 2013

Under the terms provided for by Article 61-2 of the Constitution, the Constitutional Council was seized of the Law on the election of departmental councillors, municipal councillors and community councillors, and amending the electoral calendar on 18 April 2013 by Mr François ZOCCHETTO, Mr Jean-Claude GAUDIN, Mr Jean-Paul AMOUDRY, Mr Pierre ANDRÉ, Mr Jean ARTHUIS, Mr Gérard BAILLY, Mr Philippe BAS, Mr René BEAUMONT, Mr Christophe BÉCHU, Mr Michel BÉCOT, Mr Joël BILLARD, Mr Jean BIZET, Mr Jean-Marie BOCKEL, Mr Pierre BORDIER, Ms Natacha BOUCHART, Mr Joël BOURDIN, Mr Jean BOYER, Ms Marie-Thérèse BRUGUIÈRE, Mr François-Noël BUFFET, Mr François CALVET, Mr Christian CAMBON, Mr Jean-Pierre CANTEGRIT, Mr Vincent CAPO-CANELLAS, Mr Jean-Noël CARDOUX, Mr Jean-Claude CARLE, Ms Caroline CAYEUX, Mr Gérard CÉSAR, Mr Pierre CHARON, Mr Alain CHATILLON, Mr Jean-Pierre CHAUVEAU, Mr Marcel-Pierre CLÉACH, Mr Christian COINTAT, Mr Gérard CORNU, Mr Raymond COUDERC, Mr Jean-Patrick COURTOIS, Mr Philippe DALLIER, Mr Serge DASSAULT, Ms Isabelle DEBRÉ, Mr Francis DELATTRE, Mr Vincent DELAHAYE, Mr Robert del PICCHIA, Mr Marcel DENEUX, Mr Gérard DÉRIOT, Ms Catherine DEROCHE, Ms Marie-Hélène DES ESGAULX, Mr Yves DÉTRAIGNE, Ms Muguette DINI, Mr Éric DOLIGÉ, Mr Philippe DOMINATI, Mr Michel DOUBLET, Ms Marie-Annick DUCHÊNE, Mr Daniel DUBOIS, Mr Alain DUFAUT, Mr André DULAIT, Mr Ambroise DUPONT, Mr Jean-Léonce DUPONT, Mr Louis DUVERNOIS, Mr Jean-Paul EMORINE, Ms Françoise FÉRAT, Mr André FERRAND, Mr Louis-Constant FLEMING, Mr Michel FONTAINE, Mr Bernard FOURNIER, Mr Jean-Paul FOURNIER, Mr Christophe-André FRASSA, Mr Yann GAILLARD, Mr René GARREC, Ms Joëlle GARRIAUD-MAYLAM, Mr Jacques GAUTIER, Mr Patrice GÉLARD, Mr Bruno GILLES, Ms Colette GIUDICELLI, Mr Alain GOURNAC, Mr Francis GRIGNON, Mr François GROSDIDIER, Mr Charles GUENÉ, Mr Joël GUERRIAU, Mr Pierre HÉRISSON, Mr Michel HOUEL, Mr Alain HOUPERT, Mr Jean-François HUMBERT, Mr Benoît HURÉ, Mr Jean-Jacques HYEST, Ms Sophie JOISSAINS, Ms Chantal JOUANNO, Ms Christiane KAMMERMANN, Mr Roger KAROUTCHI, Ms Fabienne KELLER, Mr Marc LAMÉNIE, Ms Élisabeth LAMURE, Mr Gérard LARCHER, Mr Robert LAUFOAULU, Mr Daniel LAURENT, Mr Jean-René LECERF, Mr Antoine LEFÈVRE, Mr Jacques LEGENDRE, Mr Dominique de LEGGE, Mr Jean-Pierre LELEUX, Mr Jean-Claude LENOIR, Mr Philippe LEROY, Ms Valérie LÉTARD, Mr Gérard LONGUET, Mr Roland du LUART, Mr Michel MAGRAS, Mr Philippe MARINI, Mr Hervé MARSEILLE, Mr Hervé MAUREY, Ms Hélène MASSON-MARET, Mr Jean-François MAYET, Ms Colette MÉLOT, Mr Jean-Claude MERCERON, Mr Michel MERCIER, Mr Alain MILON, Mr Aymeri de MONTESQUIOU, Mr Albéric de MONTGOLFIER, Ms Catherine MORIN-DESAILLY, Mr Philippe NACHBAR, Mr Christian NAMY, Mr Louis NÈGRE, Mr Philippe PAUL, Mr Jackie PIERRE, Mr François PILLET, Mr Xavier PINTAT, Mr Louis PINTON, Mr Rémy POINTEREAU, Mr Christian PONCELET, Mr Ladislas PONIATOWSKI, Mr Hugues PORTELLI, Mr Yves POZZO di BORGO, Ms Sophie PRIMAS, Ms Catherine PROCACCIA, Mr Jean-Pierre RAFFARIN, Mr Henri de RAINCOURT, Mr André REICHARDT, Mr Bruno RETAILLEAU, Mr Charles REVET, Mr Gérard ROCHE, Mr Bernard SAUGEY, Mr René-Paul SAVARY, Mr Michel SAVIN, Mr Bruno SIDO, Ms Esther SITTLER, Mr Abdourahamane SOILIHI, Mr Henri TANDONNET, Mr André TRILLARD, Ms Catherine TROENDLE, Mr François TRUCY, Mr Jean-Marie VANLERENBERGHE, Mr Hilarion VENDEGOU and Mr Jean-Pierre VIAL, Senators;

And on 19 April 2013 by Mr Christian JACOB, Mr Damien ABAD, Mr Élie ABOUD, Mr Bernard ACCOYER, Mr Yves ALBARELLO, Ms Nicole AMELINE, Mr Benoist APPARU, Mr Olivier AUDIBERT TROIN, Mr Patrick BALKANY, Mr Jean-Pierre BARBIER, Mr Sylvain BERRIOS, Mr Xavier BERTRAND, Mr Étienne BLANC, Mr Marcel BONNOT, Mr Jean-Claude BOUCHET, Ms Valérie BOYER, Mr Xavier BRETON, Mr Dominique BUSSEREAU, Mr Yves CENSI, Mr Luc CHATEL, Mr Gérard CHERPION, Mr Guillaume CHEVROLLIER, Mr Alain CHRÉTIEN, Mr Dino CINIERI, Mr Jean-François COPÉ, Mr Édouard COURTIAL, Ms Marie-Christine DALLOZ, Mr Gérald DARMANIN, Mr Marc-Philippe DAUBRESSE, Mr Jean-Pierre DECOOL, Mr Bernard DEFLESSELLES, Mr Lucien DEGAUCHY, Mr Rémi DELATTE, Mr Nicolas DHUICQ, Mr Jean-Pierre DOOR, Mr Dominique DORD, Mr David DOUILLET, Ms Marianne DUBOIS, Ms Virginie DUBY-MULLER, Mr Georges FENECH, Ms Marie-Louise FORT, Mr Yves FOULON, Mr Marc FRANCINA, Mr Yves FROMION, Mr Laurent FURST, Mr Claude de GANAY, Mr Sauveur GANDOLFI-SCHEIT, Mr Hervé GAYMARD, Ms Annie GENEVARD, Mr Guy GEOFFROY, Mr Bernard GÉRARD, Mr Alain GEST, Mr Franck GILARD, Mr Claude GOASGUEN, Mr Philippe GOSSELIN, Ms Claude GREFF, Ms Françoise GUÉGOT, Mr Jean-Claude GUIBAL, Mr Jean-Jacques GUILLET, Mr Christophe GUILLOTEAU, Mr Michel HEINRICH, Mr Michel HERBILLON, Mr Antoine HERTH, Mr Patrick HETZEL, Mr Philippe HOUILLON, Mr Guénhaël HUET, Mr Sébastien HUYGHE, Mr Christian KERT, Mr Jacques KOSSOWSKI, Mr Jacques LAMBLIN, Mr Jean-François LAMOUR, Ms Laure de LA RAUDIÈRE, Mr Guillaume LARRIVÉ, Mr Charles de LA VERPILLIÈRE, Ms Isabelle LE CALLENNEC, Mr Marc LE FUR, Mr Pierre LELLOUCHE, Mr Dominique LE MÈNER, Mr Philippe LE RAY, Mr Céleste LETT, Ms Geneviève LEVY, Mr Thierry MARIANI, Mr Olivier MARLEIX, Mr Jean-Claude MATHIS, Mr François de MAZIÈRES, Mr Philippe MEUNIER, Mr Pierre MOREL-A-L'HUISSIER, Mr Jean-Luc MOUDENC, Mr Jacques MYARD, Ms Dominique NACHURY, Ms Valérie PECRESSE, Mr Jacques PÉLISSARD, Mr Bernard PERRUT, Mr Édouard PHILIPPE, Mr Jean-Frédéric POISSON, Ms Bérangère POLETTI, Ms Josette PONS, Mr Didier QUENTIN, Mr Arnaud ROBINET, Mr Camille de ROCCA-SERRA, Mr Martial SADDIER, Mr François SCELLIER, Mr André SCHNEIDER, Mr Fernand SIRÉ, Mr Thierry SOLÈRE, Mr Michel SORDI, Mr Éric STRAUMANN, Mr Claude STURNI, Mr Alain SUGUENOT, Ms Michèle TABAROT, Mr Jean-Charles TAUGOURDEAU, Mr Guy TEISSIER, Mr Michel TERROT, Mr Jean-Marie TETART, Mr Dominique TIAN, Mr François VANNSON, Ms Catherine VAUTRIN, Mr Patrice VERCHÈRE, Mr Jean-Pierre VIGIER, Mr Michel VOISIN, Mr Jean-Luc WARSMANN, Mr Éric WOERTH and Mr François SAUVADET, Members of Parliament.

THE CONSTITUTIONAL COUNCIL,

Having regard to the Constitution;

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

Having regard to basic law no. 2009-403 of 15 April 2009 on the application of Articles 34-1, 39 and 44 of the Constitution;

Having regard to the Electoral Code;

Having regard to the General Local Authorities Code;

Having regard to the General Tax Code;

Having regard to Law no. 2010-145 of 16 February 2010 on the holding of parallel elections to renew general councils and regional councils;

Having regard to Law no. 2011-884 of 27 July 2011 on the territorial authorities of French Guyana and Martinique;

Having regard to the observations of the Government, registered on 26 April 2013;

Having regard to the observations in response presented by the applicant Senators registered on 26 April 2013;

Having heard the Rapporteur;

1. Considering that the applicant Senators and Members of Parliament have referred to the Constitutional Council the Law on the election of departmental councillors, municipal councillors and community councillors, and amending the electoral calendar; that they object to the procedure according to which the Law was adopted; that they raise the constitutionality of Articles 3, 4, 24, 30 and 47 thereof; that the Senators moreover challenge the constitutionality of Article 33 thereof and the Members of the National Assembly also challenge the constitutionality of Articles 15, 16, 17, 18 and 19 thereof;

• THE PROCEDURE FOLLOWED WHEN ADOPTING THE LAW:

Regarding the impact study annexed to the bill:

2. Considering that the applicant Members of Parliament assert that the impact study appended to the bill did not enable sufficient clarification to be provided to the parliamentarians as to the scope of the text placed before them; that the impact study in particular failed to specify the impact which Article 8 of the bill tabled by the government would have on the second round of cantonal elections, that it disregarded the difficulties in drawing up candidate lists for municipal elections in small municipalities owing to the amendments provided for under Articles 16 et seq of the bill and that it provided insufficient substantiation of the grounds justifying the postponement of departmental and regional elections until 2015 pursuant to Article 24 of the bill; that consequently, it violated the requirement of clarity within parliamentary debate;

3. Considering that the third and fourth subparagraphs of Article 39 of the Constitution provide that: "The tabling of Government Bills before the National Assembly or the Senate shall comply with the terms determined by an organic law. − Government Bills may not be included on the agenda if the Conference of Presidents of the first House to which the Bill has been referred declares that the rules determined by the organic law have not been complied with. In case of a disagreement between the Conference of Presidents and the Government, the President of the relevant House or the Prime Minister may refer the matter to the Constitutional Council, which shall rule within a period of eight days"; that the first subparagraph of Article 8 of the aforementioned basic law of 15 April 2009 provides that: "Draft bills shall be subject to an impact study. The documents setting out the results of this impact study shall be appended to the draft laws upon transmission to the Conseil d'État. They shall be filed with the bureau of the first assembly to take action at the same time as the draft bills to which they refer"; that, according to the first subparagraph of Article 9 of the same organic law, the Conference of Presidents of the Assembly for the bureau to which the draft bill was submitted shall have a time-limit of ten days after it was tabled in order to determine whether or not the rules on the impact studies have been complied with;

4. Considering that the bill was tabled in the Senate on 28 November 2012 and that the Conference of Presidents of the Senate did not receive any application objecting that the rules on impact studies had been breached; that, having regard to the contents of the impact study, the objection alleging that Article 8 of the organic law of 15 April 2009 has been violated must be rejected; that the same applies for the objection alleging a breach of the constitutional requirements of clarity and sincerity within parliamentary debates;

With regard to the parliamentary procedure:

5. Considering that, according to the applicant Members of the National Assembly, in suspending the public session after announcing the results of a vote on Article 1 of the law referred during the first reading before the National Assembly and in holding three successive votes on a motion for prior rejection during the second reading before the National Assembly, the President of the session violated the regulations of that house, including in particular Article 64 thereof, and breached the principle of sincerity within parliamentary debates;

6. Considering on the one hand that according to the preliminary works, during the examination of the amendments to remove Article 1 of the law referred during the first reading before the National Assembly at the first session of 19 February 2013, the president of the session did not declare voting open before deciding to suspend the session during the explanations of votes; that none of the provisions of the regulations of the National Assembly prevent the president of the session from suspending the session during the explanations of votes;

7. Considering on the other hand that the preliminary works also reveal that, when the motion for a preliminary rejection during the second reading before the National Assembly was put to a vote during the first session of 26 March 2013, having noted the entry of numerous Members of Parliament into the chamber and the resulting doubt as to the result of a vote by a show of hands, the president of the session on two occasions conducted a count by requesting those in favour to stand up, notwithstanding that a public vote had not been requested; that upon conclusion of the last count, he ascertained that the motion had been rejected; that pursuant to the second subparagraph of Article 64 of the regulations of the National Assembly: "Should there be any doubt as to the result of a vote by a show of hands, a vote shall be conducted by requesting those in favour to stand up; should the doubt persist, the vote shall be conducted by an ordinary public ballot"; that in the present case, no request was made to hold a public ballot after initially conducting a vote by requesting those in favour to stand up;

8. Considering that in any case the breach of the provisions of the regulations could not in itself have the effect of rendering the legislative procedure unconstitutional; that in the present case, the constitutional requirements of clarity and sincerity within parliamentary debates were not violated;

• ARTICLES 3, 15, 16, 17, 18 and 19:

9. Considering that the provisions of Articles 3, 15, 16, 17, 18 and 19 are included within Title I of the Law entitled "Provisions on the departmental council"; that Articles 3, 15 and 16 concern the arrangements governing the election of departmental councillors; that Articles 17 and 18 amend the provisions on the financing of election campaigns; that Article 19 lays down rules on coordination;

As regards Article 3:

10. Considering that Article 3 amends Article L. 191 of the Electoral Code; that pursuant to that Article: "The voters from each departmental canton shall elect two members of a different sex to the departmental council, whereby candidates shall stand in pairs and their names shall be listed in alphabetical order on all ballot papers printed for the election";

11. Considering that, according to the applicant Senators, insofar as they place limits on the choice of voters by requiring simultaneous parity within a single election which is not associated with a requirement of solidarity by the elected officials when exercising their mandate, the provisions of Article 3 violate the principle of freedom of choice for the voter and the principle of equality in voting; that, according to the applicant Members of the National Assembly, in laying down the principle of the voting of pairs of candidates, this Article does not guarantee the sincerity of the vote "with regard to intelligibility, clarity or loyalty";

12. Considering that pursuant to Article 34 of the Constitution, statutes shall determine the rules concerning the system for electing members of the local assemblies; that the legislator is at liberty at any time, when deciding on matters within its competence, to amend existing legislation or to repeal it and replace it, depending upon the circumstances, with other legislation; that, in doing so, it must not infringe the legal guarantees set forth under constitutional law;

13. Considering that, on the one hand, pursuant to the third subparagraph of Article 3 of the Constitution: "Suffrage may be direct or indirect as provided for by the Constitution. It shall always be universal, equal and secret";

14. Considering that, on the one hand, pursuant to the last sentence of Article 1 of the Constitution: "Statutes shall promote equal access by women and men to elective offices and posts ..."; that these provisions enable the legislator to enact any provision seeking to give effect to the principle of equal access by women and men to elective office and posts; that it is at liberty at any time to enact legislation which is either indicative or binding in nature; that it is nevertheless for the legislator to ensure that these provisions are reconciled with other rules and principles of constitutional standing which the constituent power abides by;

15. Considering that in providing that the voters in each canton or department "shall elect two members of a different sex to the departmental council, whereby candidates shall stand in pairs and their names shall be listed in alphabetical order on all ballot papers printed for the election", the legislator established a form of paired majority voting with two rounds without the possibility for mixed or preferential votes; that according to these provisions, which are not affected by any form of unintelligibility, the legislator intended to ensure equality within departmental councils; that it accordingly favoured equal access by women and men to the office of departmental councillor; that it did not violate any requirement of constitutional standing;

16. Considering that according to the above, Article 3 must be ruled constitutional;

As regards Article 15:

17. Considering that Article 15 amends Article L. 221 of the Electoral Code on the replacement of general councillors; that the new version of the first subparagraph of Article L. 221 provides that in the event of removal from office pursuant to Article L. 118-3 of the Code or if the election of a pair of candidates is annulled, a partial election shall be held within three months of the date of that declaration or annulment; that pursuant to the second subparagraph of Article L. 221, the departmental councillor whose seat is to fall vacant on any other grounds shall be replaced by the individual elected at the same time as this occurs; that the third subparagraph provides that where a departmental councillor cannot be replaced in accordance with the second subparagraph, the seat shall remain vacant; that nevertheless, pursuant to the third subparagraph, if the two seats for a canton are vacant, a partial election shall be organised within three months of the more recent vacancy; that, according to the fourth subparagraph of Article L. 221, no partial election may be held during the six months falling prior to the re-election of the departmental councils;

18. Considering that, according to the applicant Members of the National Assembly, in defining the conditions governing the replacement of a departmental councillor, along with the grounds which may lead to the holding of partial elections, Article 15 enables a departmental council to pass resolutions, under certain circumstances, where half of the seats are vacant; that such a situation would moreover make it impossible to elect the president of that council; that accordingly, this Article breaches the free administration of local authorities and the sincerity of voting;

19. Considering that pursuant to Article 34 of the Constitution, statutes shall determine "the rules concerning the system for electing members of the local assemblies"; that the same Article leaves it to the legislator to specify the fundamental principles of the free administration of local authorities, their powers and their resources; that pursuant to the third subparagraph of Article 72 of the Constitution, local authorities "shall be self-governing through elected councils";

20. Considering that pursuant to these provisions, it is for statute to specify the time limit within which partial elections to the departmental council must be held; that however, the procedures adopted by the legislator cannot have the effect of calling into question the conduct of the free administration of the local authorities;

21. Considering that the provisions of Article 15 of the law referred may lead to a situation in which various seats within a departmental council remain vacant without a partial election being held where, for each of these seats, the departmental councillor and thereafter his substitute have resigned, died or been declared ineligible for a reason specific to them; that this vacancy may last for up to six years; that, notwithstanding the limited range of situations in which such a vacancy may arise without a partial election being held, the procedures adopted by the legislator may leave multiple seats vacant for the full term in office; that, in certain cases, the rule laid down under the law may lead to a situation in which the normal running of the departmental council is affected under conditions which call into question the exercise of the free administration of the local authorities and the principle according to which they are freely administered by elected councils;

22. Considering that according to the above, without any requirement to examine other challenges, the third subparagraph of Article L. 221 of the Electoral Code must be ruled unconstitutional; that the remainder of Article 15 must be upheld as constitutional;

With regard to Articles 16, 17, 18 and 19:

23. Considering that Article 16 amends Article L. 223 of the Electoral Code on electoral disputes, in particular by adapting it in line with the election of paired candidates; that it provides that the two departmental councillors elected within the same canton shall remain in office until a definitive ruling has been reached on the objection;

24. Considering that Article 17 amends chapter Va of Title I of Book I of the Electoral Code on financing election spending limits, in particular by inserting Article L. 52-3-1 into that Chapter; that under the terms of the fourth subparagraph of Article L. 52-3-1, "for the purposes of the application of this chapter to paired candidates, the members of the pair shall exercise the right granted to candidates and shall be required to comply with the obligations incumbent upon them in an indissociable manner"; that pursuant to the second subparagraph of that Article: "The members of the pair of candidates shall appoint a single agent and shall establish a single campaign account"; that Article 17 amends in particular Articles L. 52-4, L. 52-5, L. 52-6, L. 52-9, L. 52-12, L. 52-13 and L. 52-15 on the financing of electoral campaigns; that it inserts a subparagraph after the first subparagraph of Article L. 52-13 laying down the arrangements governing the addition and calculation of candidates' expenses during a list ballot, which is drafted as follows: "The expenses declared by candidates who acted separately before they were brought together within the same candidate pair shall be added together and calculated as if they have been incurred for the benefit of that pair"; that the last subparagraph of Article L. 52-15 on the payment of the amount due to the public exchequer in the event that the election spending limit is exceeded is completed by the following phrase: "In the event of a ballot involving a candidate pair, the two candidates presented within the same pair shall be jointly and severally liable to settle the claim";

25. Considering that Article 18 amends Article L. 118-3 of the Electoral Code on campaign account disputes in order to bring it into line with the rules laid down in relation to the elections of departmental councillors;

26. Considering that Article 19 lays down measures of coordination associated with the introduction of candidate pairs for the election of departmental councillors and the abolition of the staggered triennial renewal of parts of the general councils; that to this effect it amends the Electoral Code, the General Tax Code and the General Local Authorities Code; that it amends in particular Articles L. 3122-1 and L. 3122-2 of this law Code on the appointment and replacement of the president of the departmental council;

27. Considering that, according to the applicant Members of the National Assembly, insofar as they provide for the automatic penalty of the ineligibility of the two members of the candidate pair, Articles 16, 17, 18 and 19 breach Article 8 of the 1789 Declaration of the Rights of Man and the Citizen and the requirements of the necessity, individualisation and proportionality of penalties;

28. Considering that pursuant to Article 8 of the 1789 Declaration: "The law shall provide for such punishments only as are strictly and obviously necessary, and no one shall suffer punishment except it be legally inflicted in virtue of a law passed and promulgated before the commission of the offence"; that the principles thereby enunciated relate not only to the penalties issued by the criminal courts but also extend to any penalty with the nature of a punishment;

29. Considering that pursuant to Article 18 of the law referred, amending Article L. 118-3 of the Electoral Code, the electoral court may, when seized by the National Commission for Campaign Accounts and Political Spending, declare both candidates from the same pair to be ineligible where the campaign account indicates, as the case may be after adjustment, that the limit on campaign expenses has been exceeded, where the account has not been filed under the conditions and within the time limits provided for under Article L. 52-12 of the Electoral Code or, in addition, where the account has been duly rejected in the event of intention to defraud or a particularly serious breach of the rules on the financing of electoral campaigns; that this ruling of ineligibility may apply for a maximum period of three years; that it applies to all elections although has no effect on mandates taken up prior to the date of the decision; that if the electoral court has ruled that the members of an elected pair are ineligible, it shall annul their election or, if the election has not been contested, shall issue a ruling removing the members from office;

30. Considering that the provisions on the filing of campaign accounts and the financing of electoral campaigns have in particular the goal of ensuring sincerity within voting which is a requirement of constitutional law; that in providing for one single campaign account for candidates from a pair along with the requirement for a common agent and in retaining the principle of solidarity between candidates, the legislator intended the members of the pair to apply the rules on electoral campaign expenses jointly in order to ensure that they are complied with; that to this effect, according to the provisions of Article 18, the legislator provided that the two members of the same pair will be subject to the same rulings of ineligibility in the event of a breach of the rules laid down under Article L. 118-3 of the Electoral Code on the filing of a campaign account and the financing of the electoral campaign; that it is for the electoral court to take account of the circumstances of each individual case when ruling on ineligibility; that the provisions of Article 18 do not violate either Article 8 of the 1789 Declaration or any other requirement of constitutional law;

31. Considering that Articles 16, 17, 18 and 19, which do not violate any other requirement of constitutional law, must be ruled constitutional;

• ARTICLES 4 AND 46:

32. Considering that Article 4 introduces Article L. 191-1 into the Electoral Code; that according to the first subparagraph of this Article: "The number of cantons within which departmental councillors are elected shall be equal, for each department, to one half of the number of cantons existing on 1 January 2013, rounded up to the next odd number if that number is not an odd number"; that according to the second subparagraph of that Article: "The number of cantons within any department with more than 500,000 inhabitants may not be lower than seventeen. It may not be lower than thirteen in any department with between 150,000 and 500,000 inhabitants";

33. Considering that Article 46 amends Article L. 3113-2 of the General Local Authorities Code on adjustments to the boundaries of cantons, along with their creation and abolition; that it introduces a paragraph III into this Article according to which the adjustment of the boundaries of cantons must comply with the following rules:
    " a) The territory of each canton shall be determined essentially on demographic grounds;
    " b) The territory of each canton shall be continuous;
    " c) All municipalities with less than 3,500 inhabitants shall fall entirely within the same canton";

34. Considering that Article 46 of the law referred also introduces a paragraph IV into Article L. 3113-2 according to which: "The rules laid down in paragraph III may only be subject to exceptions which are limited in scope and specifically justified on a case by case basis by geographical considerations of a topographical nature, such as isolation, elevation or hydrography; of a demographic nature, such as the distribution of the population over the departmental territory; pertaining to the equilibrium of territorial management, such as isolation, surface area, the number of municipalities per canton; or by imperatives of general interest";

35. Considering that according to the applicants, Article 4 runs contrary to the division of powers provided for under Articles 34 and 37 of the Constitution on the boundaries of electoral constituencies; that in disregarding the requirement according to which seats are to be allocated essentially on demographic grounds, Article 4 moreover breaches the principle of equality in voting; that the applicant Senators finally assert that in choosing to retain cantons as constituencies in the election of departmental councillors, "despite the introduction of paired candidacies", the legislator exposed the regulatory authorities "to greater difficulties in the exercise of their constitutional mission of guaranteeing respect for the principle of equality in voting";

36. Considering that, on the one hand, pursuant to Article 34 of the Constitution, statutes shall determine the rules concerning "the electoral system … for the local authorities … as well as the conditions for holding elective offices and positions for the members of the deliberative assemblies of the local authorities"; that the legislator is at liberty at any time, when deciding on matters within its competence, to enact new legislation which it deems appropriate and to amend existing legislation or to repeal it and replace it, depending upon the circumstances, with other legislation provided that, in doing so, it does not infringe the legal guarantees set forth under constitutional law;

37. Considering that, on the other hand, pursuant to Article 1 of the Constitution, France "shall ensure the equality of all citizens before the law, without distinction of origin, race or religion"; that pursuant to the first subparagraph of Article 24: "The Senate … shall ensure the representation of the local authorities of the Republic"; that, according to the third subparagraph of Article 72, the local authorities "shall be self-governing through elected councils" "in the conditions provided for by statute"; that according to these provisions, the deliberative body of a department must be elected on essentially democratic bases in accordance with a division of seats and a delineation of constituencies which respects as far as possible the principle of equality in voting; that, whilst it does not follow that the division of seats must necessarily be proportional with the population of each department nor that account may not be taken of other requirements of general interest, these considerations may however only apply to a limited extent;

38. Considering in the first place that the legislator has stipulated that the number of cantons within which departmental councillors are to be elected shall be equal for each department to one half of the number of cantons existing on 1 January 2013, rounded up to the next odd number if that number "is not an odd number"; that it follows from the preliminary work that the legislator intended on the one hand "to maintain a close link between voters and their representatives" and on the other hand to maintain the number of departmental councillors at a level close to that of the number of current general councillors; that, with these goals in mind, the legislator was at liberty, in relation to the election of departmental councillors, to retain the principle that electoral constituencies should fall within the department whilst fixing their number;

39. Considering second that the rules on the boundaries of electoral constituencies for elections to local assemblies are constituent elements of the electoral regime applicable to them; that in the present case, in fixing the number of departmental councillors and organising the competence of the regulatory authorities to implement these rules, the legislator did not violate Articles 34 and 37 of the Constitution;

40. Considering third that departmental councillors are required to sit within the departmental councils; that compliance with the requirements associated with the principle of equality in voting is to be assessed with reference to each department; that the objection alleging the violation of the principle of equality in voting insofar as there are representative imbalances between departments compared to a national average is inoperative; that the contested provisions do not have the effect of altering the allocation by department of the seats of senators; that the departmental councillors themselves account for one limited part of the electoral colleges used to elect senators; that accordingly, the objection alleging that the principle of equality in voting has been breached must be rejected;

41. Considering fourth that according to the provisions of paragraph III introduced into Article L. 3113-2 of the General Local Authorities Code by Article 46 of the law referred, the alteration of the geographical boundaries of cantons must occur in accordance with rules according to which the territory of each canton is to be defined essentially on demographic grounds, the territory of each canton must be contiguous and each municipality with less than 3,500 inhabitants must fall entirely within the same canton;

42. Considering on the other hand that paragraph IV introduced into Article L. 3113-2 of the General Local Authorities Code by Article 46 of the law referred provides that the rules laid down in paragraph III may only be subject to specifically justified exceptions which are limited in extent; that according to these provisions, these exceptions may be justified on a case by case basis by geographical considerations of a topographical nature, such as insularity, elevation or hydrography; that they may also be justified by considerations of a demographic nature, such as the distribution of the population throughout the territory of the department or considerations of balanced spatial planning, such as isolation, surface area or the number of municipalities per canton; that finally, the legislator stipulated that the exceptions to the rules laid down in paragraph III could be justified "by other requirements of general interest"; that whilst the legislator may take account of geographical considerations, which include insularity, elevation, isolation or surface area, as well as other requirements of general interest which are likely to impinge upon the scope of the rule of equality in voting, it may only do so to a limited extent; that owing to their general nature, the exceptions provided for under paragraph IV may result in arbitrary boundaries to constituencies; that accordingly the phrase "of a topographical nature, such as insularity, elevation or hydrography; of a demographic nature, such as the distribution of the population over the departmental territory; pertaining to the equilibrium of territorial management, such as isolation, surface area, the number of municipalities per canton" is unconstitutional;

43. Considering that according to the above, with the exception of the words "of a topographical nature, such as isolation, elevation or hydrography; of a demographic nature, such as the distribution of the population over the departmental territory; pertaining to the equilibrium of territorial management, such as isolation, surface area, the number of municipalities per canton" included in paragraph IV of Article L. 3113-2 of the General Local Authorities Code, Article 4 and Article 46 of the law referred must be ruled constitutional;

• ARTICLE 24:

44. Considering that title IV of book I of the Electoral Code concerns municipal councillors; that Chapter II thereof, which is applicable to municipalities with less than 3,500 inhabitants, provides in Article L. 252 that members of the municipal councils of these municipalities shall be elected by majority vote; that chapter III, applicable to municipalities of 3,500 inhabitants or more, provides in Article L. 260 that, within these municipalities, the members of municipal councils shall be elected from lists of candidates with two rounds of voting, and that lists shall be filed containing a number of candidates equal to the seats to be filled; that the second phrase of the first subparagraph of Article L. 264 provides that the list shall be comprised alternately of male and female candidates;

45. Considering that Article 24 lowers the threshold for the applicability of these provisions from 3,500 to 1,000 inhabitants;

46. Considering that, according to the applicant Senators, taking account of the requirement of equality within electoral lists, the extension of proportional list voting to municipalities with between 1,000 and 3,499 inhabitants will make it excessively difficult to compile lists in municipalities with a population of slightly more than 1,000 inhabitants; that this results in an unconstitutional breach of the freedom of choice of the electorate and the constitutional principle of pluralism of ideas and opinions;

47. Considering that pursuant to the second subparagraph of Article L. 228 of the Electoral Code: "All voters from the municipality and citizens registered in the roll of municipal taxpayers, or are able to establish that they should be enrolled on 1 January of the year of the election shall be eligible to be elected to the municipal council"; that Article L. 2121-2 of the General Local Authorities Code fixes the number of members of the municipal council at 15 for municipalities with between 500 and 1,499 inhabitants, at 19 for municipalities with between 1,500 and 2,499 inhabitants and at 23 for municipalities with between 2,500 and 3,499 inhabitants; that in lowering the population threshold of a municipality above which municipal councils shall be elected from lists from 3,500 to 1,000 inhabitants, the legislator intended to favour equal access of men and women to these offices within municipalities of this size; that the population threshold adopted and the number of municipal councillors limit any difficulties in compiling lists which meet with the requirement of parity adopted by the legislator; that under these conditions, the legislator did not breach the principle of pluralism of ideas and opinions in an unconstitutional manner; that accordingly, the provisions of Article 24 do not violate the aforementioned requirements of constitutional law; that they must be ruled constitutional;

• ARTICLE 30:

48. Considering that Article 30 concerns the allocation of the seats of the members of the Council of Paris; that it replaces table 2 appended to the Electoral Code with a table appended to the law referred; that this table provides that the 163 seats on the Council of Paris are to be divided into twenty sectors corresponding to the districts of Paris; that it maintains the rule according to which each district has at least three seats at its disposal, irrespective of its population; that the allocation under the new table removes a seat from the sectors of the 7th, 16th and 17th districts and adds a seat to the 10th, 19th and 20th districts;

49. Considering that, according to the applicants, the adjustments made to this table are not justified by changes to the population of the districts concerned; that the principle of equality in voting should have resulted in a more significant review of the allocation of councillors in Paris;

50. Considering that according to Articles 1, 24 and 72 of the Constitution, as is the case for any deliberative body of a local authority, the Council of Paris must be elected on essentially demographic grounds according to an allocation of seats and constituency boundaries which best respect the principle of equality in voting;

51. Considering that in fixing a minimum number of three councillors for each sector of Paris, the legislator intended to ensure that each sector has a minimum level of representation on the Council of Paris; that however, in the 1st, 2nd and 4th districts, the ratio between the number of Paris councillors and the district population differs from the average ascertained for Paris in a manner which is manifestly disproportionate; that it follows that Article 30 and the table annexed to the law, the provisions of which are inseparable, must be ruled unconstitutional; that the constitutionality of a law which has already been promulgated may be assessed upon examination of legislative provisions which amend or complete it or affect its scope; that in the present case, the contested provisions of Article 30 which have been ruled unconstitutional would have the effect of replacing table no. 2 annexed to the Electoral Code which fixes the allocation of Paris Councillors to each district; that for the same reasons, this table must also be ruled unconstitutional;

• ARTICLE 33:

52. Considering that Article 33 completes Book 1 of the Electoral Code through the inclusion of a Title V including Articles L. 273-1 to L. 273-12 concerning the election of "community councillors" comprising the deliberative body of groupings of municipalities, groupings of conurbations, urban communities and metropolitan centres; that it provides that the members of this deliberative body shall no longer be elected by the municipal councils of the member municipalities, but by direct universal suffrage and for the same term as the municipal councillors of the municipality which they represent and shall be renewed in full on the same date as those councils; that according to the first subparagraph of Article L. 273-6 of the Electoral Code, community councillors representing municipalities with at least 1,000 inhabitants "shall be elected at the same time as municipal councillors and shall be included in the list of candidates for the municipal council"; that pursuant to Article L. 273-11 of the Code, the community councillors representing municipalities with less than 1,000 inhabitants "shall be the members of the municipal council appointed in the order specified in the table";

53. Considering that, according to the applicant Senators, in permitting the members of the same inter-municipal assembly to be elected according to a different electoral system depending upon the size of the municipality, these provisions breach the principle, guaranteed under Article 72 of the Constitution, according to which the local authorities shall be self-governing through elected councils; that they also breach the principles of equality before the law and in voting;

54. Considering on the one hand that no requirement of constitutional law demands that all members of the deliberative body of a public establishment for inter-municipal cooperation must be elected according to the same balloting system;

55. Considering on the other hand that in providing that, in municipalities with less than 1,000 inhabitants, the community delegates shall be members of the municipal council appointed in the order specified in the table, the legislator intended to avoid the complexity which would result from an appointment procedure which distinguished between the election of municipal councillors and that of community councillors in municipalities where municipal councillors are elected by majority vote; that the resulting difference in treatment is based on an objective and rational criterion which is directly related to the object of the law;

56. Considering that it follows from the above that the objections alleging a breach of the principle of equality before the law and in voting must be rejected; that Articles L. 273-6 and L. 273-11 of the Electoral Code must be ruled constitutional;

• ARTICLE 47:

57. Considering that, by way of dispensation to the provisions of Articles L. 192 and L. 336 of the Electoral Code which fix the term in office of general councillors, regional councillors and members of the Corsica Assembly at six years, within the perspective of the reform of territorial councils, the aforementioned Law of 16 February 2010 reduced the term in office of regional councillors elected in March 2010 from six to four years and that of general councillors elected in 2011 from six to three years; that, following this reform, the term in office of all general councillors, regional councillors and members of the Corsica Assembly will expire in March 2014; that pursuant to Article 21 of the aforementioned Law of 27 July 2011, the Assemblies of French Guyana and Martinique shall be elected in March 2014 in parallel with the renewal of the regional councils and the general councils;

58. Considering that Article 47 extends the mandate of general councillors, regional councillors and members of the Corsica Assembly by one year in order to enable these elections to be held in March 2015;

59. Considering that, according to the applicants, this change to the electoral calendar is not justified by a reason of general interest; that in particular, the law referred does not alter the system for electing regional councillors; that the link between the objective of favouring turnout in elections and the staggering of local elections over two years will not be achieved; that moreover the extension of the term in office of general councillors and regional councillors beyond the Senate elections scheduled for September 2014 is claimed to violate the principle laid down in Article 24 of the Constitution that the Senate shall ensure the representation of the local authorities of the Republic;

60. Considering that the legislator, which is competent under Article 34 of the Constitution to determine the rules governing the system for elections to local assemblies, may on this basis stipulate the length of the term in office of the elected officials comprising the deliberative body of a local authority; that nevertheless, when exercising this power, it must comply with principles of constitutional law, which require in particular that voters be called upon to exercise their right to vote at reasonable intervals;

61. Considering that the Constitutional Council does not have any power of appreciation or of decision-making of a nature similar to that of Parliament; that it is not for the Council to attempt to ascertain whether the goal which the legislator set itself could have been achieved in another manner, provided that the arrangements chosen by the law are not manifestly inappropriate for this objective;

62. Considering that in extending by one year the term in office of general councillors, regional councillors and members of the Corsica Assembly, the legislator considered that the holding in 2014 of elections to renew the deliberative assembly of departments, regional elections and municipal elections, along with the elections of Members of the European Parliament, would have been such as to favour abstention; that the postponement of the election of the members of the departmental assemblies is moreover rendered necessary by the time limits for implementing the reform provided for under Chapter I of Title I of the Law referred; that it is not for the Constitutional Council to substitute its appraisal for that of the legislator with regard to the decision to continue to hold regional elections and departmental elections at the same time, notwithstanding that the aforementioned Law of 16 February 2010 stipulating the requirement that they be held at the same time has been repealed; that this postponement, which is limited to one year, does not have the effect of breaching the principle according to which voters must be called upon to exercise their right to vote at reasonable intervals;

63. Considering that, on the one hand, pursuant to the fourth subparagraph of Article 24 of the Constitution: "The Senate ... shall be elected by indirect suffrage. It shall ensure the representation of the local authorities of the Republic";

64. Considering that the majority of the electoral college for the Senate is comprised of elected officials and representatives of the municipalities; that municipal elections will be held in March 2014; that the objection alleging that the Senators elected in September 2014 will be appointed by a college the majority of which is comprised of elected officials exercising their mandate beyond its normal time limit lacks in fact; that the objection alleging that Article 24 of the Constitution has been breached must accordingly be rejected;

65. Considering that according to the above, Article 47 of the law referred must be ruled constitutional;

66. Considering that there are no grounds for the Constitutional Council to raise any other question of compatibility with the Constitution ex officio,

HELD:

Article 1.- The following provisions of the Law on the election of departmental councillors, municipal councillors and community councillors, and amending the electoral calendar are ruled unconstitutional:

• in Article 15, the third subparagraph of Article L. 221 of the Electoral Code;
• Article 30 and the appended table;
• in Article 46 the phrase "of a topographical nature, such as insularity, elevation or hydrography; of a demographic nature, such as the distribution of the population over the departmental territory; pertaining to the equilibrium of territorial management, such as isolation, surface area, the number of municipalities per canton" included in paragraph IV of Article L. 3113-2 of the General Local Authorities Code.

Article 2.- The following provisions of the same Law are ruled constitutional:

• Articles 3 and 4;
• the remainder of Article 15;
• Articles 16, 17, 18, 19 and 24 ;
• in Article 33, Articles L. 273-6 and L. 273-11 of the Electoral Code;
• the remainder of Article 46 and Article 47.

Article 3.- Table 2 annexed to the Electoral Code (Table of sectors for the election of members of the Paris Council) is ruled unconstitutional.

Article 4.- This decision shall be published in the Journal officiel of the French Republic.

Deliberated by the Constitutional Council in its session of 16 May 2013, sat on by: Mr Jean-Louis DEBRÉ, President, Mr Jacques BARROT, Ms Claire BAZY MALAURIE, Ms Nicole BELLOUBET, Mr Guy CANIVET, Mr Michel CHARASSE, Mr Renaud DENOIX de SAINT MARC, Mr Valéry GISCARD d'ESTAING, Mr Hubert HAENEL and Ms Nicole MAESTRACCI.