On 6 March 2012, 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 from the Cour de Cassation (commercial chamber, judgments no. 337 of 6 March 2012) raised by EURL David Ramirez, regarding the compatibility of Articles 722-6 to L. 722-16 and L. 724-1 to L. 724-6 of the Commercial 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 the basic law on the Constitutional Council;
Having regard to the Commercial Code;
Having regard to the Code of Judicial Organisation;
Having regard to Ordinance no. 58-1270 of 22 December 1958 laying down the basic law on the status of the judiciary;
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 filed on behalf of the applicant company by François Danglehant Esq., Attorney at the Seine-Saint-Denis Bar, registered on 12 April 2012;
Having regard to the observations filed on behalf of the SAS EUROLOC by Jacques Lavergne Esq., Attorney at the Toulouse Bar, registered on 5 April 2012;
Having regard to the observations of the Prime Minister, registered on 28 March 2012;
Having regard to the observations in intervention filed on behalf of the association "Conférence générale des juges consulaires de France" [General Conference of Lay Judges in France] by Didier Le Prado Esq., Attorney at the Conseil d'État and the Cour de cassation, registered on 27 March 2012;
Having regard to the observations made for SARL PHYSIK FIT, Mr Michel P. and Mr Charles S. by François Danglehant Esq., registered on 27 March and 12 April 2012;
Having regard to the observations made for Mr Charles S., by Bernard Kuchukian Esq., Attorney at the Marseille bar, registered on 10 April 2012;
Having regard to the observations made for SARL PHYSIK FIT, by Georges Berlioz Esq., Attorney at the Paris bar, registered on 12 April 2012;
Having regard to the documents produced and appended to the case files;
Having heard Le Prado Esq., Berlioz Esq., Kuchukian Esq., and Mr Xavier Pottier, appointed by the Prime Minister, at the public hearing on 17 April 2012;
Having heard the Rapporteur;
1. Considering that pursuant to Article L. 722-6 of the Commercial Code: "Without prejudice to the provisions on complementary elections provided for under the second paragraph of Article L. 723-11, judges in the commercial courts shall be elected for an initial period of two years. Upon expiry of their first appointment, they may be re-elected for a period of four years to the same court or to an entirely different commercial court, although may not exceed the maximum number of mandates provided for under Article L. 723-7.
"If the mandate of a judge in the commercial court expires prior to the start of the term specified for the appointment of a successor, it shall remain in post until such appointment for up to a maximum period of three months";
2. Considering that pursuant to Article L. 722-7 of that Code: "Before taking up office, the judges on the commercial court shall swear an oath.
"The oath shall be as follows: I swear that I shall faithfully perform my duties to the best of my abilities, that I shall strictly observe the secret nature of deliberations and that I shall act with dignity and loyalty in all respects as a judge.
"The oath shall be received by the court of appeal if the commercial court is established at the seat of the court of appeal or, in other cases, by the regional court within the jurisdiction of which the commercial court has its seat";
3. Considering that pursuant to Article L. 722-8 of that Code: "A judge in the commercial court shall cease to hold office in the following situations:
"1. Expiry of its electoral mandate, without prejudice to the provisions of the second paragraph of Article L. 722-6 and of the third paragraph of Article L. 722-11;
"2. Closure of the court;
"3. Resignation;
"4. Forfeiture".
4. Considering that pursuant to Article L. 722-9 of that Code: "If safeguard, reorganization or liquidation proceedings are initiated against a judge in a commercial court, the interested party shall cease to perform its duties starting from the time such procedures were commenced. The judge shall be deemed to have resigned.
"The same provisions shall apply to any judge in the commercial court occupying one of the positions referred to in the first paragraph of Article L. 713-3 if safeguard, reorganization or liquidation proceedings are initiated against the company or public establishment of which it is a member";
5. Considering that pursuant to Article L. 722-10 of that Code: "If a regional court has been designated under the conditions provided for under Article L. 722-4, the appointment of judges from the commercial court which no longer has jurisdiction shall not be suspended for the duration of that loss of jurisdiction";
- Considering that pursuant to Article L. 722-11 of that Code: "The president of the commercial court shall be selected from the judges in the court who have performed their duties in a commercial court for at least six years, without prejudice to the provisions of Article L. 722-13.
"The president shall be elected for four years by secret ballot of the judges in the commercial court sitting in a general assembly under the chairmanship of the outgoing president or, in its absence, the judge with most seniority. The candidate shall be elected by absolute majority in the first two rounds of voting, and by relative majority from the third round. In the event of a tie in the third round of voting, the candidate with the most seniority as a judge shall be elected; in the event of equal seniority, the oldest candidate shall be elected.
"The president shall remain in office until the installation of its successor, although such an extension may not exceed more than three months";
6. Considering that pursuant to Article L. 722-12 of that Code: "If for any reason the president of the court ceases to perform its duties during its term in office, a new president shall be elected within three months for the remaining period of its predecessor's mandate.
"In the event of impediment, the president shall be replaced by the judge appointed by it. If such a designation isn't made, or in the event of impediment of the judge selected, the president shall be replaced by the judge with most seniority";
7. Considering that pursuant to Article L. 722-13 of that Code: "If none of the candidates fulfil the length of service condition required for election as president of the commercial court, the first president of the court of appeal may order, upon request by the public prosecutor general, that the length of service requirement be waived";
8. Considering that pursuant to Article L. 722-14 of that Code: "Without prejudice to the application of the provisions of Article L. 722-15, no person may be appointed to exercise the functions of a lay judge under the conditions set forth in Book VI unless it has worked as a judge in a commercial court for at least two years.
"At the start of each judicial year, the president of the commercial court shall issue the list of judges who may exercise the functions of a lay judge by order adopted after hearing the opinion of the general assembly of the court";
9. Considering that pursuant to Article L. 722-15 of that Code: "If none of the judges from the commercial court fulfil the length of service conditions required to rule on safeguard, reorganization or liquidation proceedings, a judicial settlement or the liquidation of assets in accordance with the provisions of Article L. 722-2, to preside over proceedings under the conditions provided for pursuant to Article L. 722-3, or to perform the duties of a lay judge under the conditions provided for in Article L. 722-14, the first president of the court of appeal may order, upon request by the public prosecutor, that the length of service requirement be waived";
10. Considering that pursuant to Article L. 722-16 of that Code: "The mandate of judges elected in commercial courts shall not be remunerated";
11. Considering that pursuant to Article L. 724-1 of that Code: "Any failure from a judge in the commercial courts to act with honour, probity and dignity or to comply with the duties incumbent upon him shall constitute a disciplinary offence";
12. Considering that pursuant to Article L. 724-2 of that Code: "Disciplinary powers shall be exercised by a national disciplinary board which shall be chaired by a division president of the Court of Cassation appointed by the first president of the Court of Cassation, and shall include:
"1. A member of the Conseil d’État appointed by the Vice-President of the Conseil d’État ;
"2. Two magistrates from the seat of the courts of appeal designated by the first president of the Cour de cassation from a list drawn up by the first presidents of the courts of appeal, each stating the name of a magistrate from the seat of its court of appeal, after hearing the opinion of the general assembly of the magistrates from the seat of the court of appeal;
"3. Four judges from the commercial courts elected by all of the presidents of the commercial courts;
"An equal number of substitute members shall be appointed under the same conditions. The members of the national disciplinary board shall be appointed for a four-year term";
13. Considering that pursuant to Article L. 724-3 of that Code: "After the interested party has been heard by the president of the court of which it is a member, the national disciplinary board may be seized by the Justice Minister.
"It may issue a reprimand or dismiss the judge";
14. Considering that pursuant to Article L. 724-4 of that Code: "Acting on a proposal by the Justice Minister, the president of the national disciplinary board may suspend a judge from the commercial court for a period of up to six months if the interested party, who must be heard in advance by the president of the court of which it is a member, is alleged to have committed acts of such a nature as to entail a disciplinary penalty. The suspension may be renewed once by the national board for a period of up to six months. If the commercial judge is subject to criminal prosecution, the suspension may be ordered by the president of the national board until a definitive decision is reached in the criminal proceedings";
15. Considering that pursuant to Article L. 724-5 of that Code: "The national disciplinary board may only resolve if at least four of its members, including the president, are present. "If there is a tie, the Chairman shall have the casting vote";
16. Considering that pursuant to Article L. 724-6 of that Code: "The decisions of the national disciplinary board and those of its president shall be supported by reasons. They may only be appealed against in the Cour de cassation";
17. Considering that, according to the applicants, the aforementioned provisions encroach upon the matters reserved to the basic law by the third paragraph of Article 64 of the Constitution; that the provisions relating to the mandate of the judges from the commercial courts also violate the principles of impartiality and the independence of the judiciary and the separation of powers as well as the requirement of merit resulting from the principle of equal access to public sector employment; that the provisions governing the judges from the commercial courts violate the principle of equality before the law;
- REGARDING THE OBJECTION ALLEGING THE ENCROACHMENT ONTO THE MATTERS RESERVED BY THE CONSTITUTION TO THE BASIC LAW:
18. Considering that, according to the applicants, the contested provisions concern the status of the judiciary, which falls under the basic law in accordance with the third paragraph of Article 64 of the Constitution; that accordingly, they encroach upon the powers of the legislature enacting the basic law;
19. Considering that the encroachment by the legislature onto the area which the Constitution has reserved to the basic law cannot be invoked in support of a priority preliminary ruling on the issue of constitutionality on the basis of Article 61-1 of the Constitution; that accordingly, the objection must in any case be rejected;
- THE MANDATE OF THE JUDGES FROM THE TRADE COURTS:
20. Considering that, according to the applicants, the contested provisions governing the appointment of judges from the commercial courts do not enable respect for the impartiality and independence of the commercial courts, in particular with regard to enterprises, to be guaranteed; that in permitting simultaneous appointments as a judge on the commercial court and, in particular, as a member of the chamber of commerce and industry, these provisions violate the principle of the separation of powers; that moreover in failing to stipulate either the prerequisite of a recognised qualification or a prior control of the suitability to carry out the duties prior to appointment as a commercial judge, these provisions violate the requirement that appointments should be based on merit resulting from the principle of equal access to public sector employment;
. With regard to the principles of the impartiality and independence of the judiciary and the separation of powers:
21. Considering that Article 16 of the Declaration of the Rights of Man and the Citizen of 1789 provides that: "A society in which the observance of the law is not assured, nor the separation of powers defined, has no constitution at all"; the principles of independence and impartiality are indissociable from the exercise of judicial functions;
22. Considering that Articles L. 722-6 to L. 722-16 of the Commercial Code concern the appointment of judges in commercial courts; that according to Article L. 722-6 of the Commercial Code, these judges are elected for a fixed term; that pursuant to Article L. 722-8, the appointment of a judge in a commercial courts may only be terminated as a result of the expiry of its mandate, the closure of the court, resignation or forfeiture; that Article L. 722-9 provides for the automatic dismissal of any judge from the commercial courts against whom safeguard, reorganization or liquidation proceedings are initiated; that Articles L. 724-2 and L. 724-3 reserve to the national disciplinary board, chaired by a division president of the Cour de Cassation and comprised of a member of the Conseil d’État and magistrates and judges from the commercial courts, the power to issue a reprimand or to dismiss a judge in cases involving a disciplinary offence falling under Article L. 724-1;
23. Considering that Article L. 722-7 provides that before taking up office, judges in the commercial court shall swear an oath undertaking to fulfil their duties faithfully and to the best of their abilities, to strictly observe the secret nature of deliberations and to act with dignity and loyalty in all respects as a judge;
24. Considering that pursuant to the second paragraph of Article L. 721-1, the commercial courts shall be subject to the provisions, which are common to all courts, of Book I of the Code of Judicial Organisation; that pursuant to Article L. 111-7 of the Code:
"Any judge which supposes that there are grounds for its recusal or considers as a matter of conscience that it should not participate shall arrange to be replaced by another specially appointed judge"; that, similarly, the provisions of Articles L. 111-6 and L. 111-8 specify the cases in which the recusal of a judge may be required and permit a reference to be made to another court, in particular where there are legitimate grounds to question impartiality or if there are grounds for the recusal of more than one judge;
25. Considering that Article L. 662-2 of the Commercial Code provides that, when the interests involved justify it, the court of appeal may decide to refer the case to another court of comparable degree that has jurisdiction within the territorial jurisdiction of the court of appeal, to hear safeguard, reorganization or liquidation proceedings;
26. Considering that it follows from the above that the provisions on the appointment of judges on the commercial courts establish guarantees which prevent a judge in a commercial court from participating in the examination of a case in which it has an interest, even if indirect; that these provisions as a whole do not violate either the principles of impartiality and independence or the separation of powers;
. With regard to the principle of equal access to public sector employment:
27. Considering that, according to Article 6 of the 1789 Declaration:
"The law… must be the same for all, whether it protects or punishes. All citizens, being equal in the eyes of the law, are equally eligible to all dignities and to all public positions and occupations, according to their abilities, and without distinction except that of their virtues and talents";
28. Considering that the commercial courts are civil courts of first instance competent to cognise disputes relating to commitments between commercial operators, between credit establishments and between commercial operators and credit establishments, as well as those relating to commercial companies and commercial acts; that pursuant to Article L. 723-1 of the Commercial Code, judges in commercial courts are elected by a board composed, on the one hand, of lay representatives elected from within the jurisdiction of the court and, on the other hand, judges from the commercial court and senior judges from the court who have applied for inclusion in a list of electors;
29. Considering on the one hand that Article L. 723-4 specifies the conditions establishing eligibility for appointment as a judge on the commercial court; that it provides in particular that eligibility for appointment shall be open to persons of French nationality of at least thirty years of age who are able to establish either that they have been registered for the five previous years at least in the Trade & Corporate Register or that they have carried out, for a cumulative total of five years, functions involving senior management responsibilities in a commercial company or a public establishment of an industrial or commercial nature; that persons against whom safeguard, reorganization or liquidation proceedings have been initiated or who are members of a company or public establishment which has been subject to safeguard, reorganization or liquidation proceedings are not eligible;
30. Considering on the other hand that Article L. 722-11 provides that the president of the commercial court shall be chosen from the judges of the court who have worked as a judge in a commercial court for at least six years; that Article L. 722-14 provides that, as a matter of principle, no person may be appointed to exercise the functions of a lay judge under the conditions set forth in Book VI unless it has worked as a judge in a commercial court for at least two years;
31. Considering that the legislature is at liberty to amend the provisions regulating the conditions governing access to appointment as a judge on the commercial courts in order to reinforce the requirements of merit necessary for the exercise of these judicial functions; that, nevertheless, having regard to the special competence of the commercial courts, which specialise in commercial disputes, the contested provisions - which provide on the one hand that judges on the commercial courts shall be chosen by their peers from individuals with professional experience in economics and business, whilst on the other hand reserving the most important functions on these courts to judges with judicial experience - have not violated the requirements of merit resulting from Article 6 of the 1789 Declaration;
- REGARDING THE REGULATION OF THE JUDGES FROM THE TRADE COURTS:
32. Considering that, according to the applicants, in preventing a party from applying directly to the disciplinary board with a complaint against a judge on the commercial court, whereas complaints to the Supreme Council of the Judiciary are permitted against ordinary judges, the provisions of Article L. 724-3 violate the principle of equality;
33. Considering that, according to Article 6 of the 1789 Declaration, the principle of equality does not prevent the legislature from regulating different situations in different ways, nor does it depart from equality in the general interest, provided that in both cases the resulting difference in treatment is directly related to the subject matter of the law providing for the different treatment;
34. Considering that the first subparagraph of Article L. 724-3 reserves to the Minister of Justice the power to seize the national disciplinary board for judges in the commercial courts; that, whilst the tenth subparagraph of Article 65 of the Constitution provides that the Supreme Council of the Judiciary may be seized by a litigant under the conditions specified in a basic law, the judges in commercial courts exercising an elected public role are not subject to the rules governing the status of magistrates and are not in a situation identical to that of magistrates; that accordingly, the objection that the disciplinary action regime applicable to judges from the commercial courts is not identical to that applicable to magistrates must be rejected;
35. Considering that Articles L. 722-6 to L. 722-16 and L. 724-1 to L. 724-6 of the Commercial Code are not contrary to any right or freedom guaranteed by the Constitution; that they must be upheld as constitutional;
HELD :
Article 1.- Articles L. 722-6 to L. 722-16 and L. 724-1 to L. 724-6 of the Commercial Code are constitutional.
Article 2.- 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 of 3 May 2012, sat on by: Mr Jean-Louis DEBRÉ, President, Mr Jacques BARROT, Mrs Claire BAZY MALAURIE, Mr Michel CHARASSE, Mr Renaud DENOIX de SAINT MARC, Mrs Jacqueline de GUILLENCHMIDT, Mr Hubert HAENEL and Mr. Pierre STEINMETZ.
Announced on 4 May 2012.