Decision no. 2017-651 QPC of 31 May 2017

THE CONSTITUTIONAL COUNCIL WAS ASKED TO DECIDE UPON a priority matter of constitutionality on 29 May 2017 by the Conseil d'État (Ordinance no. 410833 of that same date), under the conditions set out in Article 61-1 of the Constitution. This question was raised regarding the Association En Marche ! by the firm Piwnica and Molinié, Attorneys at the Conseil d'État and the Cour de Cassation. It was recorded by the General Secretariat of the Constitutional Council under number 2017-651 QPC. It relates to compliance with the rights and freedoms that the Constitution guarantees under Article L. 167-1 of the Electoral Code, as written resulting in Law number 2016-1917 of 29 December 2016 on finances for 2017.

In light of the following texts:

• the Constitution;
• Ordinance no. 58-1067 of 7 November 1958 concerning the Organic Law on the Constitutional Council;
• the Electoral Code;
• Law no. 86-1067 of 30 September 1986 on the freedom of communication;
• Law no. 88-277 of 11 March 1988 on the financial transparency of political life;
• Law no. 2016-1917 of 29 December 2016 on finances for 2017;
• the Regulation of 4 February 2010 on the procedure applicable before the Constitutional Council for priority matters of constitutionality;

In light of the following items:

• the observations presented on behalf of the applicant by the firm Piwnica and Molinié, registered on 30 May 2017;

• the observations presented on behalf of the parliamentary groups “the Republicans” and “the Union of Democrats and Independents” by the firm Waquet, Farge, Hazan, Attorneys at the Conseil d'État and the Cour de Cassation, registered on 30 May 2017;

• the observations presented by the Prime Minister, registered on 30 May 2017;

• the documents produced and appended to the case file;

Having heard Mr. Emmanuel Piwnica, Esq., attorney at the Conseil d'État and the Cour de cassation, for the applicant association, and Mr. Xavier Pottier, appointed by the Prime Minister, at the public hearing of 30 May 2017;

And having heard the rapporteur;

THE CONSTITUTIONAL COUNCIL WAS ASKED TO DECIDE ON THE FOLLOWING:

1. Article L. 167-1 of the Electoral Code, as written resulting from the Law of 29 December 2016 mentioned above, provides that:
   “I. - The parties and groups may use public service radio and television broadcast channels for their legislative election campaigns. Each program is broadcast by national television and radio companies.
   "II. - For the first round of elections, a broadcast time of three hours is provided to the parties and groups represented in the National Assembly.
   “This time period is divided into two equal parts, one allocated to groups belonging to the majority party, the other to those that do not.
   “The time allocated to each group or party for one of these broadcast time periods is determined by agreement between the presidents of the groups in question. Barring amicable agreement, the division thereof is set by the members that make up the outgoing National Assembly bureau, specifically taking into account the respective importance of these groups; for this deliberation, this bureau is made up of the presidents of the groups.
   “The broadcasts preceding the second election rounds have a time period of an hour and a half: it is split between the same parties and groups and according to the same proportions.
   "III. - Any political party or group that is not represented by the National Assembly's parliamentary groups has access, upon its request, to public service broadcast for a time period of seven minutes for the first round and five minutes for the second round, when at least 75 candidates have indicated, upon declaring their candidature, being part of it, in application of the procedure established by the second Subparagraph of Article 9 of the Law no. 88-277 of 11 March 1988 relating to the financial transparency of political life;
   “This authorisation is granted to these parties or groups under the conditions that are established by Decree.
   " IV. - The conditions for production, programming, and broadcasting are set by the Conseil Supérieur de l'Audiovisuel [the French audiovisual council] after consulting with the boards of the national television and radio companies.
   “V. - In regard to broadcasts that will be aired outside of mainland France, the Conseil Supérieur de l'Audiovisuel shall take into account broadcast delays and time zone differences.
   "VI. - The costs associated with official audiovisual campaigns are the responsibility of the State”.

2. The applicant Association claims that in treating the political parties and groups differently depending on if they are represented by parliamentary groups in the National Assembly or not, the contested provisions infringe on Articles 3 and 4 of the Constitution and Articles 6 and 11 of the Declaration of the Rights of Man and the Citizen of 1789. Additionally, these provisions do not reflect the importance in electoral debates of new political groups and contribute to hindering their emergence, which infringes on the pluralism of streams of ideas and opinions. Furthermore, the difference in treatment enacted by the legislature, that leads to very limited access to public service broadcasts for groups and parties not represented in the National Assembly, infringes on equality of the vote and the principle of equality before the law.

3. Consequently, the issue of constitutionality concerns Paragraphs II and III of Article L. 167-1 of the Electoral Code;

• On the merits:

4. According to the third Subparagraph of Article 3 of the Constitution, the vote “is always universal, equal, and secret”. Article 6 of the 1789 Declaration states that the law "must be the same for all, whether it protects or punishes".

5. According to the third Subparagraph of Article 4 of the Constitution: “The law guarantees the pluralistic expression of opinions and the equitable participation of the political parties and groups in the democratic life of the Nation”. The principle of the pluralism of streams of ideas and opinions is a foundation of democracy.

6. It follows from the provisions cited in Paragraphs 4 and 5 that when the legislature determines, in terms of the political parties and groups, different rules of access to public broadcast services, it is incumbent upon it to oversee that the terms that it establishes are not likely to lead to the establishment of broadcast times that are clearly out of proportion in terms of the participation of these parties and groups in the democratic life of the Nation.

7. The contested provisions distinguish between parliamentary parties and groups that are represented in the National Assembly, and those that are not. The first of these benefit, in terms of audiovisual public broadcasting, of a time period of three hours made available to them for the first round and a time period of one hour and a half for the second round, divided into two equal parts between the parties and groups that belong to the majority and those that do not. The party or group that is not represented in the National Assembly's parliamentary groups has access to public service broadcast for a time period of seven minutes for the first round and five minutes for the second round, when at least 75 candidates have declared being part of it, in application of the procedure established by the second Subparagraph of Article 9 of the Law no. 88-277 of 11 March 1988 mentioned herein above.

8. The legislature is permitted, since it grants access to public service channels to the political parties and groups for their campaigns for legislative elections, to put an end to the terms that tend to favour expressing the main opinions that animate the democratic life of the Nation and to seek the objective of the general interest of clarity in the electoral debate. The legislature may then, by adopting the contested provisions, take into account the composition of the National Assembly to renew, and in terms of the votes that it gathers, to reserve the specific broadcast times for the parties and groups that are represented therein.

9. However, in this case, it is also up to the legislature to determine the proper rules for granting political parties and groups that are not represented in the National Assembly access to public broadcast services that will ensure their equal participation in the democratic life of the Nation and guarantee the pluralism of streams of ideas and opinions. The terms under which the legislature determines the broadcast times granted to the parties and groups that are not or have not yet acquired representation in the National Assembly cannot lead to them being granted broadcast times clearly out of proportion with their representativeness, given the particular methods for establishing the time periods granted to groups that are represented in the National Assembly.

10. In this case, on the one hand, the contested provisions set three hours for the first round and one hour and a half for the second round available to the parliamentary parties and groups represented in the National Assembly, no matter the number of these groups. However, they limit to seven minutes for the first round and five minutes for the second round the amount of airtime granted to other parties and groups which are allowed to do so pursuant to the second Subparagraph of Paragraph III of Article L. 167-1 of the Electoral Code. On the other hand, for all of the parties and groups under Paragraph III Article L. 167-1 of the Electoral Code, the broadcast times are set in an identical manner, without any distinction as to the importance of the streams of ideas and opinions that they represent. Additionally, the broadcast times that these parties and groups benefit from may be significantly less than those that the groups described in Paragraph II Article L. 167-1 of the Electoral Code benefit from, and that do not reflect their representativeness.

11. Thus, the contested provisions may lead to granting public broadcast times that are clearly out of proportion with the participation in the democratic life of the Nation of these political parties and groups. The contested provisions infringe on the provisions of the third Subparagraph of Article 4 of the Constitution and affects the equality of the vote in a disproportionate measure.

12. Consequently, Paragraphs II and III of Article L. 167-1 of the Electoral Code should be declared unconstitutional.

• On the effects of the ruling of unconstitutionality:

13. According to the second Subparagraph of Article 62 of the Constitution:
    “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 according to which the effects produced by the provision shall be liable to be challenged". In principle, the declaration of unconstitutionality should benefit the individual who brought up this priority matter and the provision declared unconstitutional may not be applied in proceedings pending on the date of publication of the Constitutional Council's Decision. However, the provisions of Article 62 of the Constitution reserve for the latter the power both to set the date of repeal and to postpone its effects as well as to reconsider the effects that the provision may produce before this declaration takes effect.

14. Firstly, the repeal of Paragraphs II and III of Article L. 167-1 of the Electoral Code would have the effect of removing any legal basis for determination by the Conseil Supérieur de l'Audiovisuel, on the basis of Paragraph IV of the same Article, in terms of Article 16 of the Law of 30 September 1986 mentioned herein above, of the broadcast times of the electoral campaigns for legislative elections, the first and second rounds of which are to be held on 11 and 18 June 2017. Furthermore, the Constitutional Council does not have general discretionary powers of the same nature that Parliament does. Consequently, the date of repeal of these contested provisions should be postponed until 30 June 2018.

15. Secondly, in order to bring an end to the contested unconstitutionality, and in light of the legislative elections of 11 and 18 June 2017, application of Paragraph III of Article L. 167-1 of the Electoral Code must allow, in order to determine the broadcast times that the political parties and groups are able to benefit from, the taking into account of the importance of the stream of ideas and opinions that are represented, evaluated by the number of candidates declaring being a part thereof and their representativeness, and assessed in particular by reference to the results obtained from elections having occurred since the previous legislative elections. On this basis, in the event of clear disproportionality, in regard to their representativeness, between the broadcast times granted to certain parties and groups in Paragraph III of Article L. 167-1 of the Electoral Code and those granted to certain parties and groups in its Paragraph II, the broadcast times that have been granted to this first group must be increased. This increase, however, cannot exceed five times the time periods established in the provisions of Paragraph III of Article L. 167-1 of the Electoral Code.

IT HAS BEEN RULED:

Article 1. - Paragraphs II and III of Article L.167-1 of the Electoral code, in its drafting resulting in Law no. 2016-1917 of 29 December 2016 on finances for 2017, are unconstitutional.

Article 2.- The declaration of unconstitutionality of Article 1 shall take effect under the conditions set out in Paragraphs 14 and 15.

Article 3.- This decision shall be published in the Journal officiel of the French Republic and notified under the terms set down in Article 23-11 of the Ordinance of 7 November 1958 referred to hereinabove.

Deliberated by the Constitutional Council in its session of 30 May 2017, in attendance: Mr. Laurent FABIUS, Chairperson, Ms. Claire BAZY MALAURIE, Ms. Nicole BELLOUBET, Mr. Michel CHARASSE, Mr. Jacques HYEST, Mr. Lionel JOSPIN, Ms. Corinne LUQUIENS, Ms. Nicole MAESTRACCI and Mr. Michel PINAULT.

Made public on 31 May 2017.