On 17 October 2011 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. 351085 of 17 October 2011) on behalf of B. and associates, raising the conformity of Articles 374 and 376 of the Customs 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 organic law on the Constitutional Council;
Having regard to Law no. 48−1268 of 17 August 1948 on economic and financial recovery;
Having regard to Decree no. 48−1985 of 8 December 1948 reforming the Customs Code, annexed to Law no. 48−1973 of 31 December 1948 on finance, amended for 1949;
Having regard to the Customs 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 on behalf of the applicants by Xavier Morin, Esq., Attorney at the Paris Bar, registered on 8 and 22 November 2011;
Having regard to the observations of the Prime Minister, registered on 08.11.11;
Having regard to the request for recusation submitted by the applicants, registered on 26 October 2011;
Having regard to the documents produced and appended to the case files;
Having heard Mr Morin Esq. on behalf of the applicant and Mr Xavier Pottier, appointed by the Prime Minister, at the public hearing on 13 December 2011;
Having heard the Rapporteur;
1. Considering that Article 374 of the Customs Code provides: « 1. The confiscation of goods seized may be ordered against the parties transporting or declaring such goods without any requirement on the customs administration to inform the owners, even if the latter have been specified.
"2. However, if the owners take action or are called upon by those against whom the seizures have been enforced, the courts shall rule, according to law, on the interventions or summons";
2. Considering that pursuant to Article 376 of the Code: « 1. The articles seized or confiscated may not be reclaimed by the owners, and the price cannot be reclaimed by creditors, including privileged creditors, irrespective or whether it has been paid, without prejudice to their right of recourse against the perpetrators of the fraud.
"2. No actions for recovery shall be admissible following expiry of the time limits for appeal, third party opposition and sale";
3. Considering that, according to the applicants, these provisions violate on the one hand the right to property guaranteed under Articles 2 and 17 of the 1789 Declaration of the Rights of Man and the Citizen, and on the other hand the rights to a defence and the principle of effective judicial relief; that they further violate the principles of equality and the necessity of punishments and Article 9 of the 1789 Declaration;
4. Considering that property is included under the human rights enshrined 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 restrictions placed on this right must be justified by a reason of general interest and be proportionate with the objective pursued;
5. Considering that Article 16 of the 1789 Declaration provides: "A society in which the observance of the law is not assured, nor the separation of powers defined, has no constitution at all"; that the right of persons who are affected to obtain judicial redress, the right to a fair trial and the principle of a fair hearing are guaranteed by this provision;
6. Considering in the first place that the provisions of Article 374 of the Customs Code permit the customs administration to order the confiscation of goods seized from the parties transporting or declaring such goods without any requirement to inform the owners, even if the latter have been specified; that in thereby depriving the owner of the right to effective judicial relief against a measure infringing upon his rights, these provisions violate Article 16 of the 1789 Declaration;
7. Considering secondly that the provisions of Article 376 of the Code prevent the owners of property seized or confiscated from claiming it; that such a prohibition pursues the goal of combating customs crime by requiring the owners of goods to exercise greater care when choosing freight forwarders and of guaranteeing the recovery of moneys due to the public Exchequer; that they accordingly pursue a goal in the general interest;
8. Considering however that in depriving the owners under all circumstances of the possibility to reclaim the goods seized or confiscated, the provisions of Article 376 of the Customs Code violate the right of ownership in a manner which is disproportionate to the goal pursued;
9. Considering that it follows from the above that Articles 374 and 376 of the Customs Code must be ruled unconstitutional, without any requirement to examine the other challenges;
10. Considering that the second paragraph of Article 62 of the Constitution provides: “A provision declared unconstitutional on the basis of Article 61−1 is repealed 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 are subject to revision"; whilst, 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;
11. Considering that the immediate repeal of Articles 374 and 376 of the Customs Code would have manifestly excessive consequences; that accordingly, in order to enable Parliament to remedy the unconstitutionality of these Articles, there are grounds to defer the date of repeal to 1 January 2013,
HELD :
Article 1.- Articles 374 and 376 of the Customs Code are unconstitutional.
Article 2.- The declaration of unconstitutionality contained in Article 1 shall take effect on 1 January 2013 in the conditions specified in recital 11.
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 on 12 January 2012, sat on by: Mr. Jean−Louis DEBRÉ, President, Mr. Jacques BARROT, Mrs Claire BAZY MALAURIE, Mr. Guy CANIVET, Mr. Renaud DENOIX de SAINT MARC, Mrs Jacqueline de GUILLENCHMIDT, Mr. Hubert HAENEL and Mr. Pierre STEINMETZ.
Announced on 13 January 2012.
Journal officiel of 14 January 2012, p 752 (@ 94)