The principle of equality in the French Constitutional Council’s case-law: what changes after ten years of ex post review implementation
A feature of non-compliance or partial compliance with the principle of equality. Analysis of the gradual strengthening of control over the observance of the principle of equality, even if the Constitutional Council refuses to recognize it as such.
Рубрика | Государство и право |
Вид | статья |
Язык | английский |
Дата добавления | 22.09.2022 |
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Finally, the concretization of the control is revealed in the effects that are attached to the QPC decisions. Article 62 of the Constitution states that within the framework of the ex post review, a provision that is declared unconstitutional is repealed from the date of the publication of the Constitutional Council's decision or at a later date that is determined by the said decision. The constitutional judges have the possibility to modulate the effects of their decisions in order to preserve the legal security and to allow the necessary time to the legislator for doing the required legislative changes. In the same time, the deferral to a later date of the effects of a decision will deprive the author of the request from benefiting of its effects. In order to ensure the useful effects of the pronounced QPC decisions, the Constitutional Council pays much attention to the situation of the litigant who challenged the unconstitutional legislative provisions and that of other litigants who are in the same case. This principle was established from the first QPC decision1 and underlines the impact of the facts on the control that is exercised by the French constitutional judges.
The concretization of the control aims to allow better effectiveness of the fundamental rights by responding practically on a case-by-case basis to the encountered situations. The concrete dimension of this control is accentuated regarding the respect of the principle of equality because they deal with situations that reveal not only unconstitutionality but also a form of injustice that the legislator had not imagined and that the judge must stop as quickly as possible.
B) The acceleration of the concretization of the control by guaranteeing the principle of equality.
On 31 May 2017, the Constitutional Council rendered a very important decision following the request presented by the political party En Marche! created by President Emmanuel Macron CC, decision No. 2010-1 QPC of 28 May 2010. CC, decision No. 2017-651 QPC of 31 May 2017.. The party raised the unconstitutionality of article L. 167-1 of the Electoral Code that provided for all political parties an airtime in order to promote the electoral campaign in function of results obtained in the last elections for the National Assembly. The party En Marche! had just been created and had never participated in elections. Consequently, it had almost no airtime. The Constitutional Council was called to appreciate the compliance of this article with the principle of equality before the suffrage and with the principle of equality before the law.
This decision is important not only from the point of view of its issue, as regards in particular the guarantee of political pluralism, which is an inherent condition for building and safeguarding a democratic regime. It represents a scholar case of concretization of the control that is exercised by the constitutional judges. The concrete dimension seems to be triple in this case. First of all, the decision of unconstitutionality could only be supported by the concrete circumstances, namely those of a new party represented by the President of the Republic who had just been elected and who needed a majority in the National Assembly in order to realize its political program. Secondly, the Constitutional Council anticipated the concrete consequences of its declaration of unconstitutionality. Considering that such a declaration would have had the effect of “removing all legal basis for the determination by the Superior council of audio-visual (...) of the durations of the emissions of the electoral campaign for the legislative elections”, it has postponed to 30 June 2018 the date of effect of the repeal. Thirdly, in order to enable the political party En Marche! to benefit from the decision of unconstitutionality, and therefore to benefit from its useful effect, the Constitutional Council defined itself a legal framework in conformity with the Constitution, aiming, in an extremely concrete way, the case of the said political party. It ruled that for the 2017 legislative elections, the article L.167-1 of the Electoral Code should be applied by taking into account the importance of the new political party, the number of candidates who declare to be attached to it and their representativeness, appreciated in particular by reference to the results obtained during other previous elections, such as European, local or presidential ones. The Constitutional Council judged that it was the only condition to ensure equal participation of the new political parties or movements in democratic life and to guarantee the respect of the political pluralism. In this decision, the entire reasoning of the judges is based on the control of proportionality of the factual elements with regard to the principle of equality and we can see that this technique of control allows them to exercise a more extensive control than in the cases when they do it with regard to the intention of the legislator or to the general interest. As we could see above, this second approach, which excludes concrete control, leads finally to a more restrictive interpretation.
The question of the choice between the two approaches arises regularly in the field of tax law. More specifically, tax litigations have always been the privileged field for invoking the principle of equality. This observation is confirmed, even amplified, since the introduction of the QPC procedure. According to statistical data, in 73% of the requests received by the Constitutional Council, the legislative provisions are challenged with regard to their compliance with the principle of equality. In 92% of cases, the QPC decisions of unconstitutionality or partial constitutionality in the field of tax law are based on the conclusion of non-compliance with the principle of equality. The consequences of these cancellations are very significant, particularly in terms of maintaining a balanced and fair tax system. This is probably the reason explaining the frequent use by the constitutional judges of the technique of reserve of interpretation in the QPC decisions relating to the tax law. For example, during the period from 2016 to 2018, the challenged legislative provisions were declared unconstitutional or partially constitutional in 27% of cases. At the same time, a quarter of the decisions of constitutionality contain reservations of interpretation.
This technique of control used firstly in a decision of 1959 CC, decision No. 59-2 DC of 24 June 1959., allows maintaining of the challenged legislative provisions in the national legal order under the condition they are interpreted in the way the Constitutional Council decided in its decisions. It constitutes a “rescue” procedure by which the constitutional judges do not get stuck in a binary choice between the censure of the law and the rejection of the request. The reserve of interpretation often settles very important points of law and has two major advantages. From the legal point of view, it contributes to the guarantee of the legal security as it settles questions of application of the law, which are of a constitutional nature and have the effect of res judicata. On the political level, the technique of reservation of interpretation allows to avoid an excessively brutal conflict with the Government and with the majority of the Parliament that voted for the law, while giving satisfaction to the seizers who criticize it.
In the practice of the French Constitutional Council, three types of reserves of interpretation can be distinguished:
neutralizing reserves, which eliminate possible interpretations that would be contrary to the Constitution;
guideline reserves, which include a requirement for the legislator or a law enforcement authority;
constructive reserves, when the Council makes additions to the law in order to bring it into conformity with the Constitution.
Since the entry into force of the QPC procedure, the Constitutional Council maintains the consistency of its case-law on the main points of control of tax law. Continuity is evident in the application of the principle of equality before taxes guaranteed by article 13 of the 1789 Declaration. In its decisions, it reminds each time that the taxpayers' situation has to be assessed with regard to each tax separately1. As for the respect of the principle of equality before the law, that is guaranteed by article 6 of the same Declaration, it verifies whether the criteria implemented by the legislator are objective and rational and whether they are related to the object of the measure and the aim pursued or to the differences in situation taken into account. Finally, it censures the marked breaks in equality before public charges. By using the technique of reserve of interpretation, the Constitutional Council verifies if these two principles are respected with regard to the concrete situation of the litigant who submitted the request and if the challenged legislative provisions lead to a “marked breach of equality before public charges”. So, in this case again, we have a piece of evidence of the concretization of the control that is exercised by the Constitutional Council.
We'll take for analysis two QPC decisions, which are quite emblematic on this question. The first one is a decision of 21 January 2011 CC, decision No. 2010-28 QPC of 17 September 2010. CC, decision No. 2010-88 QPC of 21 January 2011.. The Constitutional Council was asked to appreciate the compliance with the Constitution of article 168 of the Tax Code providing the possibility of taxation on the basis of a scale applied to certain elements of the taxpayer's lifestyle. It's the case of automatic taxation that can be imputed by tax administration in the light of “external signs of richness” revealing that the taxpayers lead a lifestyle that does not correspond to the income they declared and if the threshold exceeds the sum of 40,000 euros. The Constitutional Council validated the paragraph 1 of the challenged article considering that there was no violation of the principle of equality before law and public charges, as it was asserted by the litigant. It is related to the object of the measure and the aim pursued by legislator in fighting against fraud and tax evasion in the general interest. The paragraph 2 of the said article, which provided for a 50% increase in the tax scale if the value of the goods considered as undeclared was greater than 80,000 euros, was however declared unconstitutional because of its noncompliance with the principle of equality before public charges. The QPC decision contains also a reserve of interpretation concerning the respect of contradictory principle. The Constitutional Council recognized that the litigant hadn't had any possibility to prove that the financing of his heritage goods did not imply the possession of incomes defined on a lump sum basis. The determination of the tax base must however be considered as part of a contradictory procedure in order to allow the taxpayers to effectively defend their fundamental rights.
In the QPC decision of 4 December 2015 concerning the fiscal solidarity between spouses, the Constitutional Council used the same method of constructive reserve of interpretation1. In French law, fiscal solidarity continues during the divorce proceedings, after the divorce and in the event of the breakdown of common life, if there are sums to be paid under common taxation. Thus, each of the spouses can be called to pay the total amount of the common taxation, without there being any need to proceed to a prior distribution of the tax debt. Consequently, the administration can prosecute either of the spouses for the recovery of all of the said income tax. In addition, the special agreements resulting from a divorce judgment regarding the distribution of the burden of these taxes cannot be opposed to it. In its decision, the Council judged that there was no problem of constitutionality because of the fact that the principle of irrefragable presumption is opposed to the two spouses after their separation for the common declarations of the income tax. Nevertheless, the constitutional judges ruled that when two persons, previously under common taxation, are subject to separate taxation on the date of notification of the assessment of additional taxes established on the income received during the period of joint taxation, the irrefragable presumption can prevent the spouse with whom the procedure was not followed from making a contentious claim, which is the first step in tax litigation. This problem is all the more evident when the two spouses live at different addresses, as it was the case of the litigants who initiated the present QPC procedure, and they informed tax administration of these changes. Henceforth, the right to an effective legal remedy is not guaranteed.
The Constitutional Council made a reserve of interpretation in order to prevent such infringement by staying that, in this concrete situation, the assessment of additional taxes has to be notified to both spouses. Moreover, as it ruled in several QPC decisions of 2016 and 20172, in the case the reserves of interpretation present difficulties of interpretation in a given situation, it may be seized for a new QPC procedure. This is further proof that it is impossible to disregard any concrete element while exercising ex post review, especially in certain areas, which particularly affect the litigants' personal situation. The introduction of the QPC procedure leads to an increased jurisdictionalization of the Constitutional Council in its role of judge of the tax law. This will probably lead it to take more into account than in the past the case-law of the Court of Strasbourg which control is of concrete nature only. CC, decision No. 2015-503 QPC of 4 December 2015. CC, decisions No. 2016-538 QPC of 22 April 2016, No. 2016-610 QPC of 10 February 2017, No. 2017-643/650 QPC of 7 July 2017.
In the context of this study, we have noted the presence of a certain number of inconsistencies. Many points should be improved so that the Constitutional Council strengthens its place as the German, Italian or Belgian Constitutional Courts did at specific moments of their history. However, the caution that we have underlined several times, even if it may seem confusing, has proven its effectiveness. The French Constitutional Council has gradually evolved from its original status of “watchdog of the executive power”, whose role was to supervise the action of the Parliament, to that of guardian of the Constitution. The introduction of the QPC procedure was an additional step in the assertion of its legitimacy as such. It is absolutely sure that revolutionary blows have rarely been part of the French Constitutional Council's activity, but progress has been continuous, a fact that calls to mind the widely known saying “Who goes slowly surely goes”. In increasingly complex political, economic and social contexts both on national and international levels, this could ultimately be the key to success.
Conclusion
This study revealed several important points. From the statistical point of view, the principle of equality occupies much more important place within the framework of the ex post review than that noted before its introduction. In some special fields, like tax law, in 73 % of the requests received by the Constitutional Council, the legislative provisions are challenged with regard to their compliance with the principle of equality. In 92 % of cases, the QPC decisions in this field are based on the conclusion of non-compliance or partial compliance with the principle of equality. In the same time, the realized analysis highlight the same degree of discretion of the constitutional judges' control as in the ex ante review. The most significant change that can be noted is, in fact, the gradual strengthening of the concrete nature of the control that is exercised over compliance with the principle of equality even if Constitutional Council itself refuses to recognize it as such. In the same time, throughout this study, we could see that it has always acted with caution. This did not prevent it from imposing its position when it considered essential for the effective protection of the fundamental rights and freedoms. In increasingly complex political, economic and social contexts both on national and international levels, this could ultimately be the key to success.
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