On 21 March 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. 345216 of 21 March 2011) on behalf of the Senate Officials Trade Union, raising the conformity of Article 8 of Ordinance no. 58-1100 of 17 November 1958 on the operation of the parliamentary assemblies 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 Ordinance no. 58−1100 of 17 November 1958 on the operation of the parliamentary assemblies;
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 of the Prime Minister, registered on 12.04.11;
Having regard to the observations made on behalf of the Senate Officials Trade Union by SCP Boutet, Attorneys to the Conseil d'État and the Cour de Cassation, registered on 12 and 26 April 2011;
Having regard to the observations made on behalf of the Senate by SCP Lyon−Caen et Thiriez, Attorneys to the Conseil d'État and the Cour de Cassation, registered on 12 and 26 April 2011;
Having regard to the documents produced and appended to the case files;
Having heard François Boutet Esq. on behalf of the applicant trade union and Frédéric Thiriez Esq. for the Senate, and Mr Thierry-Xavier Girardot, appointed by the Prime Minister, at the public hearing on 3 May 2011;
Having heard the Rapporteur;
1. Considering that pursuant to Article 8 of Ordinance no. 58−1100 of 17 November 1958 on the operation of the parliamentary assemblies: "The State shall be liable for damage of any nature caused by the services of the parliamentary assemblies.
"Actions for damages shall be brought before the courts with jurisdiction to cognise them.
"The officials responsible for the provision of the services of the parliamentary assemblies are civil servants of the State, the status and superannuation arrangements of whom are determined by the bureau of the assembly concerned, having obtained the opinion of the trade union organisations that represent the staff. They shall be recruited by public competition according to the procedures determined by the competent bodies of the assemblies. The administrative courts shall have jurisdiction over all disputes of an individual nature concerning these agents, and shall rule on the general principles of law and the fundamental guarantees conferred on the category of civil and military State officials falling under Article 34 of the Constitution. The administrative courts shall also have jurisdiction to rule on individual disputes concerning public sector tenders.
"In the cases covered by the above, which represent the only instances in which legal action may be initiated against a parliamentary assembly, the State is represented by the president of the assembly concerned, who may delegate this competence to the assembly questors.
"The decision to initiate legal action is taken by the president of the assembly concerned, who represents it in these proceedings. The president may delegate this power to the questors of the assembly that he presides. In cases involving the recovery of debts of any nature, specific procedures may be decided upon by the bureau of each assembly";
2. Considering that, according to the applicant trade union, the provisions of Article 8 of the aforementioned Ordinance of 17 November 1958 limit the possibility for parliamentary assembly agents and their trade union organisations to challenge the decisions taken by the authorities of these assemblies other than those specified in a closed list in this Article; that, in particular, they do not establish a direct right of action against the statutory instruments issued by these authorities; that accordingly, they infringe the right to effective judicial remedy guaranteed under Article 16 of the 1789 Declaration of the Rights of Man and the Citizen;
3. 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 both the right of persons who are affected to obtain judicial remedy and the separation of powers are guaranteed by this provision;
4. Considering that the provisions of Article 8 of the aforementioned Ordinance of 17 November 1958 permit any staff member of the parliamentary assemblies to contest before the administrative courts any individual decision taken by the authorities of the parliamentary assembly which has infringed his rights; that in such cases, the staff member concerned may in turn raise an objection challenging the legality of the statutory instruments on the basis of which the decision infringing his rights was taken and initiate an action for damages against the State; that in such cases, a trade union organisation has the right to intervene before the court seised; that, accordingly, in not permitting such an organisation to seise the administrative courts itself with a challenge to a statutory instrument adopted by the authorities of a parliamentary assembly, the legislator has reconciled the right of the persons interested in obtaining effective judicial remedy and the principle of the separation of powers guaranteed under Article 16 of the 1789 Declaration in a manner that is not disproportionate;
5. Considering that the contested provisions are not contrary to any other right or freedom guaranteed by the Constitution,
HELD:
Article 1.- Article 8 of Ordinance no. 58−1100 of 17 November 1958 on the operation of the parliamentary assemblies 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 23-11 of the Ordinance of 7 November 1958 referred to hereinabove.
Deliberated by the Constitutional Council in its session of 12 May 2011, sat on by: Mr Jean-Louis DEBRÉ, President, Mr Jacques BARROT, Mrs Claire BAZY MALAURIE, Mr. Guy CANIVET, Mr. Michel CHARASSE, Mrs Jacqueline de GUILLENCHMIDT, Mr. Hubert HAENEL and Mr. Pierre STEINMETZ
Announced on 13 May 2011.
Journal officiel of 14 May 11, p 8401 (@ 72)