Decision no. 2014-432 QPC of 28 November 2014

On 24 September 2014 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. 381698 of 24 September 2014) on behalf of Mr Dominique de L., raising the conformity of the first subparagraph of Article L. 46 and the last subparagraph of Article L. 237 of the Electoral 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 the basic law on the Constitutional Council;

Having regard to Ordinance no. 58-998 of 24 October 1958 concerning the basic law on eligibility conditions and parliamentary incompatibility;

Having regard to the Defence Code;

Having regard to the Electoral Code;

Having regard to Ordinance no. 45-1839 of 17 August 1945 on the electorate and the eligibility of military personnel, including in particular Article 3;

Having regard to Decree no. 56-981 of 1 October 1956 laying down the Electoral Code;

Having regard to decree no. 64-1086 of 27 October 1964 amending the Electoral Code;

Having regard to the Regulation of 4 February 2010 on 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 filed on behalf of the applicant by the SELARL Winston et Strawn LLP, registered on 15 October 2014;

Having regard to the observations of the Prime Minister, registered on 16 October 2014;

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

Having heard Gilles Bigot Esq. and Jean-Marc Tchernonog Esq., Attorneys at the Paris Bar, on behalf of the applicant, and Mr Xavier Pottier, appointed by the Prime Minister, at the public hearing on 18 November 2014;

Having heard the Rapporteur;

1. Considering that pursuant to the last subparagraph of Article L.46 of the Electoral Code: "The functions of a professional member of the armed forces or an equivalent position in active service or serving beyond the legal duration are incompatible with the offices falling under book I"; that book I concerns the election of members of the National Assembly, general councillors, municipal councillors and community councillors;

2. Considering that pursuant to the last subparagraph of Article L. 237 of the Code: "Any person referred to under Article L. 46 and this Article who is elected to serve as a member of a local council shall choose within ten days of the announcement of the results of the vote whether to accept the mandate or to continue in his or her employment. If no declaration is made within this period to their hierarchical superiors, they shall be deemed to have chosen to remain in the said employment";

3. Considering that, according to the applicant, the general incompatibility between the functions of a professional member of the armed forces and service in any elected office falling within the scope of Article L. 46 of the Electoral Code, including in particular within the decision-making chamber of a municipal authority, is not justified by the need to protect the freedom of choice of voters or the independence of elected officials against the risks of confusion or conflict of interest; that accordingly, the contested provisions violate the right to serve in elected office vested in all citizens pursuant to Article 6 of the 1789 Declaration of the Rights of Man and the Citizen;

4. Considering that the priority preliminary ruling on the issue of constitutionality concerns the first paragraph of Article L. 46 of the Electoral Code and the phrase: "to Article L. 46 and " appearing in the last subparagraph of Article L. 237 of the Code;

• THE PROVISIONS REFERRED TO THE CONSTITUTIONAL COUNCIL FOR REVIEW:

5. Considering that the first subparagraph of Article 61 -1 of the Constitution provides: "If, during proceedings in progress before a court of law, it is claimed that a statutory provision infringes the rights and freedoms guaranteed by the Constitution, the matter may be referred by the Conseil d'État or by the Cour de Cassation to the Constitutional Council, within a determined period"; that the Constitutional Council may only be seized under the conditions provided for by this Article in relation to provisions with legislative status;

6. Considering in the first place that the incompatibility between the functions of a professional member of the armed forces or an equivalent position in active service or serving beyond the legal duration and the elected offices was established by Article 3 of the aforementioned Ordinance of 17 August 1945; that the provisions were subsequently codified within Article 60 of the Electoral Code by the aforementioned Decree of 1 October 1956 and then by Article L. 46 of this Code by the aforementioned Decree of 27 October 1964; that the rules according to which the incompatibility referred to above is resolved were laid down by Article 3 of the Ordinance of 17 August 1945; that these provisions were subsequently codified in Article 258 of the Electoral Code by the Decree of 1 October 1956 and then in Article L. 237 of this Code by the Decree of 27 October 1964; that this codification occurred without affecting existing legislation; that accordingly, the provisions of the first subparagraph of Article L. 46 of the Electoral Code and the phrase: "to Article L. 46 and " appearing in the subparagraph of Article L. 237 of the Code have the status of legislative provisions for the purposes of Article 61-1 of the Constitution; that there are grounds for the Constitutional Court to cognise them;

7. Considering secondly that pursuant to the first subparagraph of Article L. 46 of the Electoral Code, the functions of a professional member of the armed forces or an equivalent position in active service or serving beyond the legal duration are incompatible with the elected offices falling under book I of the Electoral Code; that this book concerns the election of members of the National Assembly, general councillors, municipal councillors and community councillors; that Article 25 of the Constitution of 4 October 1958 provided that basic laws should have in particular the task of laying down "the regime applicable to ineligibility and incompatibility" for each house of Parliament; that the aforementioned Ordinance of 24 October 1958 determined the regime governing incompatibility with the exercise of a parliamentary mandate; that it thus follows from this Article of the Constitution as well as the provisions of the basic law adopted in order to implement it that the incompatibility provided for under Article L. 46 of the Electoral Code does not apply to mandates to serve as a member of the National Assembly;

8. Considering moreover that pursuant to Article L. 342 of the Electoral Code, service in office as a regional councillor is incompatible throughout France with the functions listed in Article L. 46; that pursuant to Article L. 368, the same applies for service in office as a councillor of the Corsican Assembly and, pursuant to Article L. 558-15, with service in office as a councillor of the French Guyana Assembly or a councillor of the Martinique Assembly; that pursuant to the first subparagraph of Article L. 344: "Any regional councillor who, at the time of his or her election, falls under any of the situations provided for under Articles L. 342 and L. 343, shall be granted a period of one month from the date on which his or her election became definitive in order to resign his or her elected office or to put an end to the situation incompatible with its exercise. He or she shall give notice of his or her choice in writing to the state representative in the region, who shall inform the president of the regional council thereof. If no choice is made within the time limit imposed, the person shall be deemed to have resigned his or her office; this resignation shall be certified by order of the state representative in the region"; that, pursuant to Article L. 368, this provision is applicable to all councillors of the Corsican Assembly; that Article L. 558-17 provides for an identical provision for councillors of the French Guyana Assembly and councillors of the Martinique Assembly; that the Council has not been seized with these provisions;

• THE COMPATIBILITY OF THE CONTESTED PROVISIONS WITH THE RIGHTS AND FREEDOMS GUARANTEED UNDER THE CONSTITUTION:

9. Considering that pursuant to Articles 5 and 15 of the Constitution, the President of the Republic shall be Commander-in-Chief of the Armed Forces, shall ensure by his decision-making authority the continuity of the state and shall be the guarantor of national independence, territorial integrity and respect for treaties; that pursuant to Articles 20 and 21 of the Constitution, the Government has at its disposal the armed forces and the Prime Ministers is responsible for national defence; that according to these provisions, without prejudice to Article 35 of the Constitution, the Government decides on the deployment of the armed forces acting under the authority of the President of the Republic; that service in elected office or in elected functions by military officers in active service cannot violate this requirement of freedom to dispose of the armed forces;

10. Considering that pursuant to Article 6 of the 1789 Declaration, the law "must be the same for all, whether it protects or punishes". All citizens, being equal in the eyes of the law, are equally eligible to all dignities and to all public positions and occupations, according to their abilities, and without distinction except that of their virtues and talents"; that the principle of equality neither prevents the legislator from settling different situations in different ways, nor does it depart from equality in the general interest, provided that in both cases the resulting difference in treatment is directly related to the subject matter of the law providing for the different treatment;

11. Considering that whilst the legislator may make provision that service in elected office or in elected functions shall be incompatible with certain professional activities or functions, any restriction thereby imposed on the exercise of public functions must be justified having regard to the requirements resulting from Article 6 of the 1789 Declaration by the need to protect the freedom of choice of voters or the independence of elected officials against the risks of confusion or conflict of interest;

12. Considering that the incompatibility established under the first subparagraph of Article L. 46 of the Electoral Code is applicable both to professional members of the armed forces and to members of the armed forces admitted to serve under contract in accordance with the conditions laid down by Article L. 4132-6 of the Defence Code;

13. Considering that pursuant to the first phrase of the second subparagraph of Article L. 4111-1 of the Defence Code: "Status as a member of the armed forces requires under all circumstances a spirit of sacrifice, which may include the supreme sacrifice, discipline, availability, loyalty and neutrality"; that according to Article L. 4121-1 of the Code: "Military personnel shall enjoy the rights and freedoms granted to citizens. However, the exercise of certain rights and freedoms may either be prohibited or restricted under the conditions laid down in this book"; that, according to the first subparagraph and the first phrase of the second subparagraph of Article L. 4121-2: "Opinions and beliefs, including in particular world views and religious or political opinions and beliefs, shall be free. However, they may only be expressed whilst not in service and with the reserve imposed by military status"; that pursuant to the first subparagraph of Article L. 4121-3: "Military personnel in active service are prohibited from joining groups or associations of a political nature"; that the second subparagraph provides that: "Subject to the grounds for ineligibility provided for by law, military personnel may stand as candidates for any public elected office; in such cases, the prohibition on membership of political parties provided for under the first subparagraph shall be suspended for the duration of the electoral campaign. If the mandate is accepted in the event of election, this suspension shall be extended for the term in office"; that, according to the third subparagraph: "Military personnel who are elected and who accept their mandate shall be placed on secondment as provided for under Article L. 4138-8"; that Article L. 4121-5 provides in the first subparagraph that "Military personnel may be called up to serve at any time and in any place", and in its last two subparagraphs that "The freedom of residence of military personnel may be restricted in the interests of the service. If the circumstances so require, the freedom of movement of military personnel may be restricted";

14. Considering in the first place that, having regard to the arrangements applicable to the election of general councillors and the requirements relating to the service of their mandate, in providing that status as a professional member of the armed forces or an equivalent position is incompatible with such a mandate, the contested provisions have established a prohibition the scope of which, having regard to the particular obligations associated with military status referred to above, is not manifestly broader than that which is necessary in order to protect the freedom of choice of voters or the independence of elected officials against the risks of confusion or conflict of interest; that the same applies to the grounds for incompatibility with election to the office of community councillor;

15. Considering however, secondly, that in stipulating that the status of a professional member of the armed forces or an equivalent position is incompatible with election as a municipal councillor, the legislator established a ground for incompatibility that is not limited with regard to the rank of the person elected, the responsibilities performed, the location at which these responsibilities are performed or the size of the municipalities; that having regard to the number of municipal mandates for which all professional members of the armed forces or equivalent positions thereby are made ineligible, the legislator established a prohibition with a scope which manifestly exceeds that which is necessary in order to protect the freedom of choice of voters or the independence of elected officials against the risks of confusion or conflict of interest; that accordingly, the first subparagraph of Article L. 46 of the Electoral Code must be ruled unconstitutional; that consequently, the phrase: "to Article L. 46 and " appearing in the last subparagraph of Article L. 237 of the Code must also be ruled unconstitutional;

• THE EFFECTS OF THE RULING OF UNCONSTITUTIONALITY:

16. Considering that the second paragraph of Article 62 of the Constitution provides: “A provision declared unconstitutional on the basis of Article 61-1 is revoked as from the publication of the decision of the Constitutional Council or at a later date stipulated in the decision. The Constitutional Council determines the conditions and the limits under which the effects produced by the provision may be questioned"; that, if, as a matter of principle, the declaration of unconstitutionality must benefit the party submitting the priority question on constitutionality and the provision ruled unconstitutional cannot be applied to proceedings in progress at the time the decision of the Constitutional Council is published, the provisions of Article 62 of the Constitution grant the Council the power both to set the date of repeal and to defer its effects as well as to provide for the review of the effects that the provision generates before this declaration takes effect;

17. Considering that the immediate repeal of the first subparagraph of Article L. 46 of the Electoral Code would have the effect of putting an end not only to the incompatibility of the functions of a professional member of the armed forces or an equivalent position in active service or serving beyond the legal duration and election to the office of municipal councillor but also to the incompatibility of these functions and election to the office of general councillor or the office of community councillor and the other local elected offices to which it is applicable by reference to the first subparagraph of Article L. 46; that in order to enable the legislator to remedy the unconstitutionality of the first subparagraph of Article L. 46, it is appropriate to defer this repeal until 1 January 2020 or until the next general renewal of municipal councils, should it occur prior to this date,

HELD:

Article 1.- The first subparagraph of Article L. 46 of the Electoral Code and the phrase: "to Article L. 46 and " appearing in the last subparagraph of Article L. 237 of the Code are unconstitutional.

Article 2.- The declaration of unconstitutionality contained in Article 1 shall take effect in the conditions specified in recital 17.

Article 3.- This decision shall be published in the Journal Officiel of the French Republic and notified in the conditions provided for under Article 23-11 of the Ordinance of 7 November 1958 referred to hereinabove.

Deliberated by the Constitutional Council in its session of 27 November 2014, 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 Hubert HAENEL and Ms Nicole MAESTRACCI.

Announced on 28 November 2014