Decision no. 2019-823 QPC of 31 January 2020

On 7 November 2019, 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. 433460 of the same date). This application was made on behalf of the Union des industries de la protection des plantes association by SCP Gadiou - Chevallier, Attorney for the Conseil d’État and for the Cour de Cassation. It was registered by the general secretariat of the Constitutional Council under no. 2019-823 QPC. It relates to the conformity with rights and freedoms that the Constitution guarantees in paragraph IV of Article L. 253-8 of the Rural and Maritime Fisheries Code, in its formulation resulting from Act No. 2018-938 of 30 October 2018 for the balance of trade relations in the agriculture and food sector, and for food that is healthy, sustainable, and accessible to all.
Having regard to the following texts:

• the Constitution;
• Ordinance No. 58-1067 of 7 November 1958, constituting an institutional act on the Constitutional Council;
• Regulation (EC) No. 1107/2009 of the European Parliament and the Council of 21 October 2009 concerning the placing of plant protection products on the market and repealing Council Directives 79/117/EEC and 91/414/EEC;
• the Rural and Maritime Fisheries Code;
• Act No. 2018-938 of 30 October 2018 for the balance of trade relations in the agriculture and food sector, and for food that is healthy, sustainable, and accessible to all;
• the Regulation of 4 February 2010 as to the procedure applicable before the Constitutional Council with respect to applications for a priority preliminary ruling on the issue of constitutionality;
  Having regard to the following documents:
• the observations of intervenors of the France Nature Environnement association, registered on 14 November 2019;
• the observations on behalf of the applicant by SCP Gadiou - Chevallier, registered on 26 November 2019;
• the observations of the Prime Minister, registered on 29 November 2019;
• the observations of intervenors on behalf of the Union française des semenciers association, by SCP Colin - Stoclet, Attorney at the Conseil d’État and at the Cour de Cassation, registered on the same date;
• the second observations on behalf of the applicant by SCP Gadiou - Chevallier, registered on 16 December 2019;
• the second observations of the France Nature Environnement association, registered on the same date;
• the additional documents produced and appended to the case files;
  After having heard Jean-Pierre Chevallier, Attorney for the Conseil d’État and for the Cour de Cassation, on behalf of the applicant, Benoist Busson, Attorney at the Paris Bar, on behalf of the France Nature Environnement association, Bertrand Colin, Attorney for the Conseil d’État and for the Cour de Cassation, on behalf of the Union française des semenciers association, and Philippe Blanc, appointed by the Prime Minister, at the public hearing of 21 January 2020;
  And after having heard the rapporteur;
  THE CONSTITUTIONAL COUNCIL DECIDED THAT:

1. Paragraph IV of Article L. 253-8 of the Rural and Maritime Fisheries Code, in its formulation resulting from the aforementioned Act of 30 October 2018, stipulates:
   “As of 1 January 2022, the production, storage, and transport of plant protection products that contain active substances that have not been approved for reasons related to the protection of human or animal health or the environment, as provided for in the aforementioned Regulation (EC) No. 1107/2009 of the European Parliament and the Council of 21 October 2009, are prohibited, subject to compliance with the rules of the World Trade Organization.”
2. According to the applicant, joined by one of the intervenors, the prohibition of export, put in place by these provisions, of certain plant protection products containing active substances that are not approved by the European Union, due to the seriousness of the consequences for the producing or exporting companies, would be contrary to the right of free enterprise. It esteems that in this respect, such a prohibition would not be related to the environmental and health protection objective in that the importing countries that allow these products will not discontinue using them, as they can purchase them from the foreign-based competitors of the companies based in France.
3. The right of free enterprise is derived from Article 4 of the Declaration of Human and Civic Rights of 1789.
4. According to the preamble of the Charter for the Environment: “the future and very existence of mankind are inextricably linked with its natural environment... the environment is the common heritage of all mankind... care must be taken to safeguard the environment along with the other fundamental interests of the Nation... in order to ensure sustainable development, choices designed to meet the needs of the present generation should not jeopardise the ability of future generations and other peoples to meet their own needs”. Protection of the environment, the common heritage of all mankind, therefore constitutes an objective of constitutional value.
5. Secondly, according to the eleventh section of the Preamble of the Constitution of 1946, the Nation “shall guarantee to all... protection of their health”. Protection of health therefore constitutes an objective of constitutional value.
6. It is the legislator’s responsibility to ensure the reconciliation between the aforementioned objectives and the exercise of the right of free enterprise. As such, the legislator decided to account for the effects that the activities carried out in France can have on the environment outside of France.
7. By virtue of the aforementioned Regulation of 21 October 2009, plant protection products can only be put on the European market if the active substances that they contain have been approved by the competent authorities of the European Union. Such approval is refused for substances that, among other aspects, have harmful effects on human or animal health, or unacceptable effects on the environment.
8. The disputed provisions prohibit the production, storage, and transport in France of plant protection products that contain active substances that have not been approved by the European Union because of these effects. They therefore act as a barrier not only to the sale of such products in France, but also to their export.
9. Firstly, by adopting these provisions, the legislator has undertaken to prevent harm to human health and the environment that could result from the spread of active substances contained in the products concerned, for which the harmful nature has been determined as part of the process provided for in the Regulation of 21 October 2009. As the Constitutional Council does not have a general mandate for judgements that is similar to that of Parliament, it cannot call into question, in light of current knowledge, the provisions put in place by the legislator.
10. The legislator has blocked businesses based in France from participating in the trade of such products on a global scale. They have therefore indirectly blocked the resulting harm of the use of these products to human health and the environment. This even extends outside of the European Union, where the production and marketing of such products may be authorised. These actions on the part of the legislator therefore have restricted the right of free enterprise in such a way as to comply with the pursued objectives of constitutional value of the protection of health and the environment.
11. Secondly, by deferring the date of application to 1 January 2022 for prohibiting the production, storage, and transport of plant protection products that contain active substances that have not been approved, the legislator has provided a delay to companies subject to the prohibition that is a little over three years to adapt their business accordingly.
12. It follows from the foregoing that, by adopting the contested provisions, the legislator has assured a reconciliation that is not manifestly unbalanced between the right of free enterprise and the objective of constitutional value of protecting health and the environment. The objection to the violation of this right must therefore be dismissed.
13. Paragraph IV of Article L. 253-8 of the Rural and Maritime Fisheries Code, which does not violate any other right or freedom guaranteed by the Constitution, must be declared as conforming to the Constitution.
    THE CONSTITUTIONAL COUNCIL DECIDES:
    Article 1 - Paragraph IV of Article L. 253-8 of the Rural and Maritime Fisheries Code, in its formulation resulting from Act No. 2018-938 of 30 October 2018 for the balance of trade relations in the agriculture and food sector, and for food that is healthy, sustainable, and accessible to all, conforms to the Constitution.
    Article 2. - This decision will be published in the Journal Officiel of the French Republic and notified in the manner provided for in Article 23-11 of the aforementioned Ordinance of 7 November 1958.
    Ruled by the Constitutional Council in its 30 January 2020 session, with the following members present: Laurent FABIUS, President, Claire BAZY MALAURIE, Alain JUPPÉ, Dominique LOTTIN, Corinne LUQUIENS, Nicole MAESTRACCI, Jacques MÉZARD, François PILLET and Michel PINAULT.
    Published on 31 January 2020.