Decision no. 2014-692 DC of 27 March 2014

In the conditions provided for by Article 61-2 of the Constitution, the Constitutional Council was seized of an application relating to the Law to recapture the real economy on 27 February 2014 by Mr Christian JACOB, Mr Élie ABOUD, Mr Yves ALBARELLO, Mr Benoist APPARU, Mr Jean-Pierre BARBIER, Mr Sylvain BERRIOS, Mr Dominique BUSSEREAU, Mr Yves CENSI, Mr Dino CINIERI, Mr Philippe COCHET, Mr François CORNUT-GENTILLE, Mr Jean-Louis COSTES, Ms Marie-Christine DALLOZ, Mr Gérald DARMANIN, Mr Bernard DEFLESSELLES, Mr Rémi DELATTE, Ms Sophie DION, Mr Jean-Pierre DOOR, Mr David DOUILLET, Ms Marianne DUBOIS, Ms Virginie DUBY-MULLER, Mr Daniel FASQUELLE, Mr Georges FENECH, Ms Marie-Louise FORT, Mr Yves FOULON, Mr Marc FRANCINA, Mr Claude de GANAY, Mr Sauveur GANDOLFI-SCHEIT, Mr Hervé GAYMARD, Mr Guy GEOFFROY, Mr Bernard GÉRARD, Mr Alain GEST, Mr Franck GILARD, Mr Claude GOASGUEN, Mr Philippe GOSSELIN, Mr Philippe GOUJON, Ms Claude GREFF, Ms Anne GROMMERCH, Mr Christophe GUILLOTEAU, Mr Antoine HERTH, Mr Patrick HETZEL, Mr Sébastien HUYGHE, Mr Denis JACQUAT, Ms Valérie LACROUTE, Mr Jean-François LAMOUR, Ms Isabelle LE CALLENNEC, Mr Marc LE FUR, Mr Dominique LE MÈNER, Mr Philippe LE RAY, Mr Pierre LEQUILLER, Mr Céleste LETT, Ms Véronique LOUWAGIE, Mr Gilles LURTON, Mr Alain MARC, Mr Alain MARTY, Mr Philippe MEUNIER, Mr Yannick MOREAU, Mr Pierre MOREL-A-L'HUISSIER, Mr Alain MOYNE-BRESSAND, Ms Dominique NACHURY, Mr Jean Frédéric POISSON, Mr Frédéric REISS, Mr Franck RIESTER, Mr Camille de ROCCA-SERRA, Mr Paul SALEN, Mr François SCELLIER, Ms Claudine SCHMID, Mr André SCHNEIDER, Mr Thierry SOLÈRE, Mr Michel SORDI, Mr Éric STRAUMANN, Mr Jean-Charles TAUGOURDEAU, Mr Guy TEISSIER, Mr Michel TERROT, Mr Jean-Marie TETART, Mr Dominique TIAN, Mr François VANNSON, Ms Catherine VAUTRIN, Mr Éric WOERTH and Ms Mme Marie-Jo ZIMMERMANN, Members of Parliament;

And on the same day by Mr Jean-Claude GAUDIN, Mr Pierre ANDRÉ, Mr Gérard BAILLY, Mr Philippe BAS, Mr René BEAUMONT, Mr Michel BÉCOT, Mr Jean BIZET, Ms Françoise BOOG, Mr Pierre BORDIER, Mr Joël BOURDIN, Ms Marie-Thérèse BRUGUIÈRE, Mr François-Noël BUFFET, Mr François CALVET, Mr Christian CAMBON, Mr Jean-Pierre CANTEGRIT, 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 Robert DEL PICCHIA, Mr Gérard DÉRIOT, Ms Catherine DEROCHE, Ms Marie-Hélène DES ESGAULX, Mr Éric DOLIGÉ, Mr Michel DOUBLET, Ms Marie-Annick DUCHÊNE, Mr Alain DUFAUT, Mr André DULAIT, Mr Ambroise DUPONT, Mr Louis DUVERNOIS, Mr Jean-Paul EMORINE, Mr André FERRAND, Mr Bernard FOURNIER, Mr Jean-Paul FOURNIER, Mr Christophe-André FRASSA, Mr Pierre FROGIER, Mr Yann GAILLARD, Mr René GARREC, Ms Joëlle GARRIAUD MAYLAM, Mr Jacques GAUTIER, Mr Patrice GÉLARD, Ms Colette GIUDICELLI, Mr Alain GOURNAC, Mr Francis GRIGNON, Mr François GROSDIDIER, Mr Charles GUENÉ, Mr Pierre HÉRISSON, Mr Michel HOUEL, Ms Christiane HUMMEL, Mr Benoît HURÉ, Mr Jean-François HUSSON, Mr Jean-Jacques HYEST, Ms Christiane KAMMERMANN, Mr Roger KAROUTCHI, 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, Mr Gérard LONGUET, Mr Roland du LUART, Mr Philippe MARINI, Mr Pierre MARTIN, Ms Hélène MASSON-MARET, Mr Jean-François MAYET, Ms Colette MÉLOT, Mr Alain MILON, Mr Albéric de MONTGOLFIER, Mr Philippe NACHBARD, Mr Louis NÈGRE, Mr Philippe PAUL, Mr Jackie PIERRE, Mr Xavier PINTAT, Mr Rémy POINTEREAU, Mr Christian PONCELET, Mr Ladislas PONIATOWSKI, Mr Hugues PORTELLI, Ms Catherine PROCACCIA, Mr Jean-Pierre RAFFARIN, Mr Henri de RAINCOURT, Mr André REICHARDT, Mr Bruno RETAILLEAU, Mr Charles REVET, Mr Bernard SAUGEY, Mr René-Paul SAVARY, Mr Bruno SIDO, Ms Esther SITTLER, Mr André TRILLARD, Ms Catherine TROENDLÉ, Mr François TRUCY and Mr Jean-Pierre VIAL, Senators.

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. 2001-692 of 1 August 2001 regarding the laws on finance;

Having regard to the Labour Code;

Having regard to the Commercial Code;

Having regard to the observations of the Government, registered on 14 March 2014;

Having heard the Rapporteur;

1. Considering that the applicant Members of Parliament and Senators have referred to the Constitutional Council the Law to recapture the real economy; that they dispute the constitutionality of certain provisions of Article 1; that the applicant Senators also dispute the constitutionality of Article 9 and of certain provisions of Article 8;

• CERTAIN PROVISIONS OF ARTICLE 1:

2. Considering that paragraph I of Article 1 introduces into chapter III of section III of book II of the first part of the Labour code a section 4-bis entitled “Obligation to search for a buyer in the event of an offer to close an establishment” including Articles L. 1233-57-9 to L. 1233-57-22; that paragraph II supplements book VII of the Commercial Code with a section VII entitled “The search for a buyer” including Articles L. 771-1 to L. 773-3 on applications to the commercial court, the verification procedure for this court and the sanctions applicable in the event that the obligations to search for a buyer are not complied with; that paragraph III concerns the entry into force of these new provisions;

3. Considering that the provisions of Article 1 replace those of Article L. 1233-90-1 of the Labour Code, which was repealed by paragraph I of Article 2; that they establish new obligations for companies with at least one thousand employees or belonging to a group with at least one thousand employees that are not subject to conciliation, safeguard, insolvency or liquidation procedures to attempt to find a buyer if it is planned to close an establishment which would result in planned collective redundancies, and imposing sanctions on any employer which does not comply with these obligations or rejects a serious buy-out offer without a legitimate reason;

4. Considering that the applicant Members of Parliament and Senators dispute the compatibility of the provisions of Article 1 providing for judicial review and a penalty in the event that a serious buy-out offer is rejected without a legitimate reason with the principles of constitutional law in the area of freedom of enterprise and the right of ownership; that they assert that these provisions, along with those imposing a duty to provide information on the employer during the search for a buyer and those providing that the commercial court may impose penalties in the event that these obligations are breached, are contrary to the legal principles governing offences and their penalties, as well as to the necessity and proportionality of penalties; that the applicant Senators also dispute the constitutionality of the provisions of Article 1 on the allocation of the proceeds of these penalties;

5. Considering that pursuant to the first phrase of the fifth recital of the Preamble to the 1946 Constitution: “Each person has the duty to work and the right to employment”; that it is for Parliament, which is vested with jurisdiction pursuant to Article 34 of the Constitution to determine the fundamental principles of employment law, to establish rules in order to ensure, in accordance with the provisions of the 1946 Preamble, the right of each person to obtain employment whilst enabling as many people as possible to exercise this right;

6. Considering that property is included under the human rights established by Articles 2 and 17 of the 1789 Declaration; that pursuant to Article 17: “Since property is an inviolable and sacred right, no one shall be deprived thereof except where public necessity, legally determined, shall clearly demand it, and then only on condition that the owner shall have been previously and equitably indemnified”; that even if there is no violation of the right to property pursuant to that Article, it nonetheless follows from Article 2 of the 1789 Declaration that the limits placed on this right must be justified by a reason of general interest and be proportionate with the objective pursued;

7. Considering that the legislator is free to subject the freedom of enterprise, as resulting from Article 4 of the 1789 Declaration, to limitations associated with constitutional requirements or which are justified by the general interest, provided that this does not result in harm that is disproportionate to the objective pursued;

8. Considering that, by enacting the contested provisions, Parliament sought to maintain economic activity and to protect jobs by favouring the resumption of operations by establishments slated for closure where this would result in planned collective redundancies; that it thus pursued a goal which seeks to give effect to the requirement resulting from the first phrase of the fifth recital of the Preamble to the 1946 Constitution;

The obligations to provide information incumbent upon the employer during the search for a buyer where there is a plan to close the establishment:

9. Considering that Article L. 1233-57-14 requires an employer which has informed the works council of the plan to close an establishment which would result in planned collective redundancies to search for a buyer; that in this regard, the employer is required: “1. To inform the potential buyers by any means appropriate of its intention to sell the establishment;

10. To draw up as quickly as possible a document presenting the establishment for the attention of potential buyers;

11. As the case may be, to instruct the preparation of an environmental report as provided for under Article L. 623-1 of the Commercial Code, such report containing a precise assessment of pollution resulting from the operation of the establishment and presenting conceivable de-contamination solutions along with their cost;

12. To grant access to all information necessary for companies interested in buying the establishment, except information the disclosure of which would be liable to harm the interests of the company or to jeopardise the conduct of its operations as a whole. Companies interested in buying the establishment shall be subject to a duty of confidentiality;

13. To examine the bids received;

14. To provide a reasoned response to each bid received within the time limits provided for under Article L. 1233-30”;

15. Considering that the applicant Members of Parliament assert that, in requiring the disclosure of information to any competitor company that states an interest in buying the establishment planned for closure whilst not stipulating that the breach of the duty of confidentiality relating to such information imposed on potential buyers may be sanctioned, the contested provisions violate the entrepreneurial freedom of the company planning to close its establishment;

16. Considering that Article L. 1233-57-14 of the Labour Code subjects the companies provided for under Article L. 1233-71 of the Code which plan to close an establishment, under certain circumstances, to the obligation to search for a buyer; that a duty to provide information is imposed in this regard along with the obligations to draw up a document presenting the establishment, as the case may be to prepare an environmental report, to examine bids and to provide a reasoned response to each bid received; that the legislator thereby intended to enable potential buyers to have access to useful information relating to the establishment planned for closure, without however requiring the disclosure of information where such disclosure would be liable to harm the selling company or where such information would be related to establishments other than that planned for closure; that, taking these elements into account, the duty to provide information does not violate the freedom of enterprise in an evidently disproportionate manner, having regard to the objective pursued; that the objection alleging the violation of freedom of enterprise must be rejected;

Sanctions in the event of failure to comply with the obligations to search for a buyer:

12. Considering that the new Article L. 772-2 of the Commercial Code provides that, upon an application by the works council, the commercial court shall examine: “1. The compliance of the search with the obligations provided for under Articles L. 1233-57-14 to L. 1233-57-16, L. 1233-57-19 and L. 1233-57-20 of the Labour Code;

13. The seriousness of the bids, having regard in particular to the bidder's capacity to guarantee ongoing operations and employment at the establishment;

14. The existence of a legitimate reason to refuse to sell, such as the fact that it would jeopardise the conduct of the company's operations as a whole.”;

15. Considering that pursuant to the first subparagraph of the new Article 773-1 of the Commercial Code: “Where the commercial court has held pursuant to chapter II of this section that the company has not complied with the obligations referred to under subparagraph 1 of Article L. 772-2 or that it has rejected a serious bid without legitimate grounds for refusal, it may impose a penalty of up to twenty times the monthly value of the statutory minimum wage for the jobs lost as part of the collective redundancy resulting from the closure of the establishment, up to the limit of 2% of the annual turnover of the company. The amount of the penalty shall take account of the circumstances of the company and the efforts made to search for a buyer”;

16. Considering that pursuant to Article L. 773-2 of that Code: “If the judgment referred to under Article L. 773-1 establishes that the company has not complied with the obligations referred to under subparagraph 1 of Article L. 772-2 or that it has refused a bid that is deemed to be serious pursuant to subparagraph 2 of that Article and there was no legitimate reason to refuse to sell under subparagraph 3 of the Article, the competent public authorities may issue an enforceable order within one year of this judgment seeking the repayment of all or part of the pecuniary support provided in relation to start-up, economic development or employment which was granted to the company during the two years prior to this judgment in respect of the establishment affected by the closure plan”;

17. Considering that the applicant Members of Parliament and Senators question the review by the commercial court of bids to purchase the establishment and the penalty incurred in the event that a serious bid is refused without a legitimate reason; that they argue that the resulting violation of the right of ownership and freedom of enterprise is disproportionate;

18. Considering that they also question the penalty incurred where the company fails to comply with the obligations referred to under subparagraph 1 of Article L. 772-2 of the Commercial Code and where it has refused a serious bid without a legitimate reason; that they argue that this penalty is manifestly disproportionate having regard to the breaches which it punishes;

19. Considering that the applicant Senators also dispute the lack of clarity in the definition of the obligations the breach of which is punished; that this is the case in particular for the employer's obligation “to inform potential buyers by any means appropriate of its intention to sell the establishment” and that “to grant access to all information necessary for companies interested in buying the establishment, except information the disclosure of which would be liable to harm the interests of the company or to jeopardise the conduct of its operations as a whole”; that this results in a breach of the requirements resulting of legal principles governing offences and their penalties;

20. Considering that the Senators argue finally that the requirements of constitutional standing resulting from the organic law of 1 August 2001 on finance laws have been violated by the provisions on the allocation of penalty proceeds;

• The objection alleging the violation of the right of ownership and freedom of enterprise:

19. Considering on the one hand that in allowing a sale to be turned down in the event that a serious bid is submitted only where it is justified by the “fact that it would jeopardise the conduct of the [seller] company”, the contested provisions have the effect of depriving the company of its capacity to anticipate economic difficulties and to make economic choices on a different level than that of the operations of the company as a whole;

20. Considering on the other hand that the contested provisions require a company that intends to close an establishment to accept a “serious offer to buy”; that whilst the legislator specifies that the seriousness of offers to buy is to be assessed “having regard in particular to the bidder's capacity to guarantee ongoing operations and employment at the establishment”, these provisions grant the power to assess its seriousness to the commercial court seized in the conditions provided for under Article L. 771-1; that the contested provisions also enable a commercial court to rule that a company has refused a serious offer to buy without a legitimate reason and to impose a penalty of up to twenty times the monthly value of the statutory minimum wage for the jobs lost; that the contested provisions thereby lead the court to impose its assessment in place of that of the head of a company, which is not in difficulty, regarding the economic choices relating to the operation and development of that company;

21. Considering that the obligation to accept a serious offer to buy if there is no legitimate reason to refuse it and the competence vested in the commercial court to punish the breach of this obligation weigh upon the economic choices by the company, including in particular those relating to the sale of certain assets, and on its management of constraints, which violate both the right of ownership and the freedom of enterprise in a manner that is disproportionate having regard to the objective pursued; that accordingly, the provisions of subparagraphs 2 and 3 of Article L. 772-2 of the Commercial Code must be ruled unconstitutional; that the same consequently applies to the phrase “or that it has rejected a serious bid without legitimate grounds for refusal” appearing in the first subparagraph of Article L. 773-1 of the Code and the phrase: “or that it has refused a bid that is deemed to be serious pursuant to subparagraph 2 of that Article and there was no legitimate reason to refuse to sell under subparagraph 3 of the Article” appearing in Article L. 773-2 of the Code;

• The objection alleging the violation of the principles of the necessity and proportionality of punishment:

22. Considering that pursuant to Article 8 of the 1789 Declaration: “The law shall provide for such punishments only as strictly and obviously necessary, and no one shall suffer punishment except where it be legally enforced further to a law passed and promulgated before the offence was committed”; that the principles laid down by this Article apply not only to penalties issued by the criminal courts but also to any penalty of a punishing nature;

23. Considering that Article 61−1 of the Constitution does not grant the Constitutional Council any general power of appreciation and decision making of the same nature as that of Parliament, but solely grants it competence to rule on the compatibility of the laws referred to it for examination with the Constitution; that, whilst the requirement as to whether penalties be associated with offences falls within the power of appreciation of Parliament, it is for the Constitutional Council to ensure that there is no manifest imbalance between the offence and the penalty imposed;

24. Considering in the first place that the provisions of the first subparagraph of Article L. 773-1 of the Commercial Code require the commercial court to punish the breach by the company of the obligations provided for under Articles L. 1233-57-14 to L. 1233-57-16, L. 1233-57-19 and L. 1233-57-20 of the Labour Code by requiring it to pay a penalty of up to twenty times the monthly value of the statutory minimum wage for the jobs lost as part of the collective redundancy, up to the limit of 2% of the annual turnover of the company; that in establishing this penalty, the legislator sought to ensure compliance by the company with its obligations to search for a buyer, to inform and consult the works council and to punish breaches of these obligations; that accordingly, this penalty amounts to a sanction with the status of a punishment for the purposes of Article 8 of the 1789 Declaration;

25. Considering secondly that, following the finding of unconstitutionality made in recital 21 of this ruling, the penalty under Article L. 773-1 of the Commercial Code now relates solely to the failure to comply with the duty of consultation provided for under Articles L. 1233-57-14 to L. 1233-57-16, L. 1233-57-19 and L. 1233-57-20 of the Labour Code; that, in relation to a breach of these obligations to search for a buyer and to consult the works council, this penalty of up to twenty times the monthly value of the statutory minimum wage for the jobs lost as part of the collective redundancy is manifestly out of proportion with the seriousness of the breach punished; that it follows from the above that the remaining provisions of the first subparagraph of Article L. 773-1 of the Commercial Code must be ruled unconstitutional;

26. Considering that, since they are inseparable from the provisions of the first subparagraph of Article L. 773-1 of the Commercial Code, the provisions of the second subparagraph of Article L. 773-1 and those of paragraph IV of Article 2 which refer to the allocation of the proceeds of the penalty referred to under Article L. 773-1 of the Commercial Code must also be ruled unconstitutional, without any requirement to examine the other challenges;

27. Considering that the remainder of Article 1233-57-14 of the Labour Code, which does not violate any other requirement of constitutional law, must be ruled constitutional;

• CERTAIN PROVISIONS OF ARTICLE 8:

28. Considering that Article 8 of the Law referred amends the provisions of the Labour Code relating, in particular, to the provision of information to and consultation of the works council in relation to a public offer to buy; that in particular, it amends the wording of Article L. 2323-23 of this Code; that the first subparagraph of paragraph I of this Article provides that “before the reasoned opinion is issued by the board of directors or the supervisory board regarding interest in the bid and its consequences for the company concerned, its shareholders and its employees, the works council of the company to which the bid relates shall be convened and consulted regarding the planned bid” and that, during this meeting, the works council “shall examine the report drawn up by the accounting expert pursuant to Article L. 2323-22-1 and may request that the bidder be present”; that the second subparagraph of the same paragraph specifies that the works council shall issue its opinion within one month of presentation of the public offer to buy and that, should it fail to issue an opinion within this time limit, it shall be deemed to have been consulted;

29. Considering that the first subparagraph of paragraph II of Article L. 2323-23 enables the elected members of the works council, if they consider that they have not been provided with sufficient information, to “apply to the president of the regional court, which shall issue a final ruling in summary proceedings, seeking an order against the company to which the bid relates and the bidder to disclose the missing information” and provides that the court shall rule within a period of eight days; that the second subparagraph of this paragraph provides that “such an application shall not have the effect of extending the period available to the council to issue its opinion” but that in the event “of particular difficulties in accessing the information necessary for the works council to formulate its opinion, the court may decide to extend the time limit provided for under the second subparagraph of paragraph I, except where such difficulties result from an obvious intention on the part of the company to which the bid relates to withhold such information”;

30. Considering that the applicant Senators argue that, due to their lack of precision, the provisions of the second subparagraph of paragraph II of Article L. 2323-23, including in particular the concept of withholding information, violate the objective of constitutional standing that the law should be accessible and intelligible in a manner that violates freedom of enterprise;

31. Considering that it is for the legislator to exercise to the full the powers vested in it by the Constitution, further in particular to Article 34; that the full exercise of this competence and the objective of constitutional standing that the law should be accessible and intelligible which results from Articles 4, 5, 6 and 16 of the 1789 Declaration require it to enact provisions which are sufficiently precise and which are not formulated in an equivocal manner;

32. Considering that, through the contested provisions, the legislator intended that the works council should be informed in the event of a public buy-out offer and, to that effect, permitted the elected members of that committee, if they consider that they do not dispose of sufficient information, to apply to the courts seeking an order against the company that received the bid and the bidder to disclose the information useful in order to reach a conclusion regarding the public offer to buy; that, in order to ensure that the procedure applicable to the public buy-out offer is not needlessly delayed, the legislator provided that, in the event that the president of the regional court is seized with summary proceedings, this court must rule within eight days and this application to the courts shall not extend the time limit of one month from the date on which the public buy-out offer was submitted, which is available to the works council in order to give its opinion; that however, the court may decide to extend this time limit of one month in the event of “particular difficulties in accessing the information necessary for the works council to formulate its opinion”; that the court may only exercise this power if it appears to it that these difficulties result “from an obvious intention on the part of the company to which the bid relates to withhold such information”; that these provisions are not unintelligible in any way;

33. Considering that it follows from the above that the provisions of paragraph II of Article L. 2323-23 of the Labour Code, as in force following the enactment of Article 8 of the Law referred, do not violate either freedom of enterprise or any other requirement of constitutional law and must be ruled constitutional;

• ARTICLE 9:

34. Considering that pursuant to the first subparagraph of Article L. 225-197-1 of the Commercial Code on the allocation of shares for no consideration, “based on a report issued by the board of directors or management, as the case may be, and a special auditors' report, an extraordinary shareholders' meeting may authorise the board of directors or management to issue shares or subscription warrants for no consideration to employees of the company or certain categories thereof”;

35. Considering on the one hand that the first two phrases of the second subparagraph of this paragraph specify that the extraordinary shareholders' meeting shall set the maximum percentage of share capital that may be allocated under the terms defined above, and that the total number of shares allocated for no consideration may not exceed 10% of the share capital at the time the decision to allocate them was made by the board of directors or management;

36. Considering that Article 9 of the Law referred adds after these provisions two phrases according to which: “This percentage shall be increased to 30% where the allocation of shares for no consideration benefits all salaried employees of the company. The difference between the number of shares distributed to each employee may not exceed a ratio of one to five”;

37. Considering on the other hand that, pursuant to the same subparagraph of paragraph I of Article L. 225-197-1, within companies the shares of which are not eligible for trading on a regulated market or multi-lateral trading system, the articles of association may stipulate a higher maximum percentage of share capital that may be allocated; that this percentage may not however exceed 15% at the time of the decision to allocate them the shares made by the board of directors or management;

38. Considering that Article 9 also amends these provisions to specify that a maximum percentage of 15% shall only apply “in cases involving the allocation of shares for no consideration exclusively to certain categories of company employees”; that it adds two phrases according to which: “This percentage shall be increased to 30% where the allocation of shares for no consideration benefits all salaried company employees. The difference between the number of shares distributed to each employee may not exceed a ratio of one to five”;

39. Considering that, according to the applicant Senators, the provisions of Article 9 violate the objective of constitutional standing that the law should be accessible and intelligible, in particular in that they do not allow the determination of whether the free shares allocated up to the limit of 10% must respect the rule according to which “the difference between the number of shares distributed to each employee may not exceed a ratio of one to five”; that they also do not allow the determination of whether this difference must apply to the distribution itself or to the “stock held by each employee upon conclusion of subsequent distributions”; that these provisions violate the right of ownership and freedom of enterprise;

40. Considering that through parliamentary debate, the legislator intended to avoid “an excessively high gap between the employees concerned” where the allocation of free shares benefits all company employees; that it is also through parliamentary debate, this new rule governing the distribution of free shares must apply with regard to the implementation of a resolution made by the extraordinary shareholders' meeting authorising the board of directors or management to proceed with such a distribution;

41. Considering that the contested provisions enable the extraordinary shareholders' meeting to authorise the board of directors or the management to make a free allocation of shares to all employees of the company provided that, firstly, the percentage of share capital thereby allocated does not exceed 30%, and secondly that the difference between the number of shares distributed to each employee does not exceed a ratio of one to five; that this difference does not apply where the distribution of free shares does not benefit all employees of the company but only “certain categories of employees”; that these provisions are not unintelligible and do not violate freedom of enterprise or the right of ownership in any way;

42. Considering that according to the above, the provisions of Article 9 of the Law, which do not violate any other requirement of constitutional law, must be ruled constitutional;

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

HELD:

Article 1.- The following provisions of the Law to recapture the real economy are unconstitutional:

• in paragraph II of Article 1, subparagraphs 2 and 3 of Article L. 772-2 of the Commercial Code, the first two subparagraphs of Article L. 773-1 and, in the first subparagraph of Article L. 773-2, the phrase: “or that it has refused a bid that is deemed to be serious pursuant to subparagraph 2 of that Article and there was no legitimate reason to refuse to sell under subparagraph 3 of the Article”;
• paragraph IV of Article 2.

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

• in paragraph I of Article 1, the provisions of Article L. 1233-57-14 of the Labour Code;
• in Article 8, paragraph II of Article L. 2323-23 of the Labour Code;
• Article 9.

Article 3.- This ruling shall be published in the Journal Officiel of the French Republic.

Deliberated by the Constitutional Council in its session of 27 March 2014, sat on by: Mr Jean-Louis DEBRÉ, President, Ms Claire BAZY MALAURIE, Ms Nicole BELLOUBET, Mr Guy CANIVET, Mr Michel CHARASSE, Mr Renaud DENOIX de SAINT MARC and Ms Nicole MAESTRACCI.