On 24 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. 348771 of 24.10.11) on behalf of Mr Ahmed S., raising the conformity of Article L. 2122 16 of the General Local Authorities 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 General Local Authorities 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 made on behalf of the applicant by SCP Ortscheidt, Attorney at the Conseil d’État and the Cour de Cassation, registered on 10 November 2011;
Having regard to the observations of the Prime Minister, registered on 15 November 2011;
Having regard to the documents produced and appended to the case files;
Having heard Mr Xavier Pottier, appointed by the Prime Minister, at the public hearing on 13 December 2011;
Having heard the Rapporteur;
1. Considering that Article L. 2122-16 of the General Local Authorities Code provides: "The mayor or an assistant mayor may be suspended by ministerial order supported by reasons for a term not exceeding one month, provided that they have been heard or invited to provide explanations in writing regarding the facts alleged against them. They may only be removed from office by motivated decree adopted by the Council of Ministers.
"Judicial challenges to the suspension order or decree of removal from office may be submitted through a lawyer.
"Removal from office shall entail automatic ineligibility to hold the office of mayor or assistant for a term of one year starting from the decree of removal from office unless general municipal elections are held sooner";
2. Considering that, according to the applicant, on the one hand in not specifying the grounds on which a decision to suspend or remove a mayor from office may be based, these provisions violate Article 8 of the 1789 Declaration of the Rights of Man and the Citizen; that on the other hand in permitting this disciplinary power to apply without distinction having regard to the exercise of decentralised powers and those devolved to the executive organs of the municipalities, these provisions violate the principle of the freedom of administration of local authorities guaranteed under Article 72 of the Constitution;
- WITH RESPECT TO THE CHALLENGE ALLEGING THE VIOLATION OF THE CONSTITUTIONAL REQUIREMENTS APPLICABLE TO DISCIPLINARY PROCEEDINGS AND PENALTIES :
3. Considering that Article 8 of the 1789 Declaration provides: « "The law shall provide for such punishments only as are strictly and obviously necessary, and no one shall suffer punishment except it be legally inflicted in virtue of a law passed and promulgated before the commission of the offence"; that the principles thereby enunciated relate not only to the penalties issued by the criminal courts but also extend to any penalty with the nature of a punishment;
4. Considering that when applied outwith the criminal law, the requirement to define punishable breaches is satisfied, as a matter of administrative law, by reference to the obligations to which the holder of the public office is subject according to law and regulations;
5. Considering that, according to the settled case law of the Conseil d’État, the contested provisions have the purpose of punishing serious and repeated breaches of the obligations applicable to the office of mayor and accordingly putting an end to conduct, the particular seriousness of which has been established; that under these circumstances, whilst the contested provisions establish a penalty having the characteristics of punishment, the lack of any express reference to the obligations to which mayors are subject by virtue of their functions does not violate the principle that offences must be established by law;
- WITH RESPECT TO THE CHALLENGE ALLEGING THE VIOLATION OF THE PRINCIPLE OF FREEDOM OF ADMINISTRATION OF THE LOCAL AUTHORITIES :
6. Considering that, whereas according to the third subparagraph of Article 72 of the Constitution, the local authorities "shall be self-governing through elected councils", each of them must to so "in the conditions provided for by statute"; that Article 34 reserves to Parliament the ability to determine the fundamental principles governing the free administration of local authorities;
7. Considering that the contested provisions enable sanctions to be adopted against the mayor who has acted in his capacity as an official of the State or as an executive officer of the municipality; that the imposition of sanctions punishing breaches by mayors of the obligations accruing to their duties does not in itself violate the principle of freedom of administration of local authorities; that an order of suspension or removal from office, which has effects for all functions of the mayor, is adopted according to law; that accordingly the contested provisions do not violate the principle of freedom of administration of local authorities;
8. Considering that the contested provisions do not violate any other right or freedom guaranteed by the Constitution;
HELD :
Article 1.- Article L. 2122-16 of the General Local Authorities Code is 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 2311 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. Michel CHARASSE, Mr. Renaud DENOIX de SAINT MARC, Mrs Jacqueline de GUILLENCHMIDT, Mr. Hubert HAENEL and Mr. Pierre STEINMETZ.
Announced on 13 January 2012.