On 17 April 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 raised by the Conseil d'État (decision no. 356349 of 17 April 2012) on behalf of the association France Nature Environnement, raising the conformity of the last phrase of the first subparagraph of Article L. 512−5 of the Environmental Code as in force following the enactment of subparagraph 2 of paragraph I of Article 97 of Law no. 2011−525 of 17 May 2011 on the simplification and improvement of the quality of the law 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 the Environmental Code;
Having regard to Law no. 2010−788 of 12 July 2010 laying down a national commitment for the environment;
Having regard to Law no. 2011−525 of 17 May 2011 on the simplification and improvement of the quality of the law;
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 in intervention on behalf of companies Yprema, Modus Valoris, Valenseine, Lingenheld Environnement and Moroni by Carl Enckell Esq., attorney at the Paris bar, registered on 9 May 2012;
Having regard to the observations of the Prime Minister, registered on 9 May 2012;
Having regard to the observations of the applicant association, registered on 23 May 2012;
Having regard to the documents produced and appended to the case files;
Having heard Benoist Busson Esq., attorney at the Paris bar, for the applicant association, Enckell Esq. for the intervener companies and Mr Xavier Pottier, appointed by the Prime Minister, at the public hearing of 26 June 2012;
Having heard the Rapporteur;
1. Considering that pursuant to the last phrase of the first subparagraph of Article L. 512−5 of the Environmental Code as in force pursuant to the enactment of subparagraph 2 of paragraph I of Article 97 of the aforementioned Law of 17 May 2011: "Draft rules and requirements shall be subject to a requirement of publication, if appropriate electronically, prior to transmission to the Superior Council for the prevention of technological risks";
2. Considering that, according to the applicant association, by not making provision for the participation of the general public in the drafting of general requirements relating to classified installations subject to a requirement for authorisation, these principles violate the principle of participation guaranteed by Article 7 of the Environmental Charter;
3. Considering that the first subparagraph of Article 61 1 of the Constitution provides: "If, during proceedings in progress before a court of law, it is claimed that a statutory provision infringes the rights and freedoms guaranteed by the Constitution, the matter may be referred by the Conseil d’État or by the Cour de Cassation to the Constitutional Council, within a determined period"; that the fact that Parliament breached its own powers may only be invoked in support of an application for a priority preliminary ruling on the issue of constitutionality in cases in which such a violation itself infringes a right or freedom guaranteed by the Constitution is affected;
4. Considering that Article 7 of the Environmental Charter provides that: "Every person shall have the right, under the conditions and subject to the limits specified by law, to access information relating to the environment which is held by the public authorities and to participate in public decisions with an impact on the environment"; that these provisions fall under the rights and freedoms guaranteed by the Constitution; that it is incumbent on Parliament and, within the framework determined by law, on the administrative authorities, to determine the procedures for implementing these provisions, subject to compliance with the principles enunciated above;
5. Considering that the provisions of Article L. 512−5 of the Environmental Code apply to classified environmental protection installations subject to a requirement for authorisation; that, with a view to protecting the interests referred to in Article L. 511−1 of the Code, the minister responsible for classified installations may issue an order, after consultation with the ministers affected and the Superior Council for the prevention of technological risks, laying down the general rules and technical requirements applicable to these installations; that these rules and technical requirements shall determine the internal measures to be taken in order to prevent and reduce the risks of accident or pollution of any kind which are liable to occur, the conditions governing the incorporation of the installation into the environment and the restoration of the site after the exploitation has ended; that according to the contested provisions, the draft rules and technical requirements are subject to a requirement of publication, if appropriate electronically, prior to transmission to the Superior Council mentioned above;
6. Considering that the first subparagraph of Article L. 511−1 of the Environmental Code defines classified installations as "factories, workshops, depots, work sites and, in general, to all facilities operated or owned by any public or private person or entity, which might present hazards or drawbacks for the convenience of the neighbourhood, or for public health and safety, or for agriculture, or for the protection of nature and the environment, or for the conservation of sites and monuments or elements of the archaeological heritage"; that accordingly, the draft rules and technical regulations which, pursuant to Article L. 512−5 of the Code, classified environmental protection installations subject to a requirement for authorisation must respect amount to public decisions impinging upon the environment;
7. Considering that the provisions of Article L. 120−1 of the Environmental Code, as in force following the enactment of Article 244 of the aforementioned Law of 12 July 2010, lay down the conditions and limits subject to which the principle of participation by the general public defined under Article 7 of the Environmental Charter applies to the regulatory decisions of the State and its public establishments; that they provide that decisions having a direct and significant impact on the environment are to be subject both to a requirement of prior electronic publication of the draft decision under such conditions as enable the general public to make observations, as well as publication of the draft decision prior to referral to a body containing members of the categories of individuals affected by the decision concerned, consultation with which is mandatory; that however, the provisions of Article L. 120−1 apply without any particular provision on the participation of the general public; that in adopting the contested last phrase of the first subparagraph of Article L. 512−5 of the Environmental Code, Parliament sought to introduce, through subparagraph 2 of paragraph I of Article 97 of the Law of 17 May 2011, a special provision of this kind applicable to classified installations subject to a requirement of authorisation; that accordingly, the draft rules and technical requirements applicable to these installations cannot under any circumstances be deemed to be subject to the provisions of Article L. 120−1;
8. Considering on the other hand that the contested provisions stipulate that draft rules and technical regulations applicable to classified installations shall be subject to a requirement of publication, if appropriate electronically, prior to transmission to the Superior Council for the prevention of technological risks; that neither these provisions nor any other legislative provision assures the implementation of the principle that the general public should participate in the elaboration of the public decisions at issue; that accordingly, in adopting the contested legislative provisions without making provision for participation by the general public, Parliament acted outwith its jurisdiction; that therefore, the provisions of the last phrase of the first subparagraph of Article L. 512−5 of the Environmental Code are unconstitutional;
9. 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; that the immediate repeal of the provisions ruled unconstitutional would have the sole effect of expunging the provisions enabling the public to be informed without satisfying the requirements of the principle that the latter be enabled to participate; that accordingly, there are grounds to defer the date of repeal of these provisions until 1 January 2013
HELD:
Article 1.- The last phrase of the first subparagraph of Article L. 512−5 of the Environmental Code is unconstitutional.
Article 2.- The declaration of unconstitutionality contained in Article 1 shall take effect on 1 January 2013 in the conditions specified in recital 9.
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 of 12 July 2012, sat on by: Mr Jean-Louis DEBRÉ, President, Mr Jacques BARROT, Mrs Claire BAZY MALAURIE, Mr Guy CANIVET, Mr Michel CHARASSE, Mr Renaud DENOIX de SAINT MARC, Mrs Jacqueline de GUILLENCHMIDT, Mr Hubert HAENEL and Mr Pierre STEINMETZ.
Announced on 13 July 2012.