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MONTESQUIEU LAW REVIEW Issue No.1 January 2015
Contents this issue
Editorials: Professor Jean-Bernard Auby and Professor Mireille Delmas-Marty 4 Professor Olivier Dubos 6
Developments in French Law Administrative law: Recent changes in administrative litigation concerning contracts: on third-party remedies against administrative contracts Professor Jean-François Brisson 7
The Dieudonné case: freedom of expression, freedom of assembly and public order requirements Professor Aude Rouyère 15
Civil law : Compensation for environmental damage under French law: past, present... but what future? Laurent Bloch 23
The end of life decision: on the Vincent Lambert case Cécile Castaing and Marie Lamarche 30
Marriage and the prohibition on incest Professor Jean Hauser 42
Constitutional law : Recent draft amendments to the Environmental Charter Florian Savonitto 46
Consumer law : The introduction of class actions in French law Françoise Gonthier 55
Contract law : The curious process reforming France's law of obligations Professor Hélène Boucard 62
Employment law : The ban on the wearing of the Islamic veil in creches: the Baby Loup case Professor Christophe Radé and Marie Peyronnet 75
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MONTESQUIEU LAW REVIEW Issue No.1 January 2015
French Law in a Globalizing World Business law : A step towards the harmonisation of EU law in matters of insolvency Professor Jean-Luc Vallens 86
Criminal law : The influence and false influence of European Union law on French criminal procedure Amane Gogorza 94
European law : Surrogacy agreements: at last, the primacy of the child's interests Professor Adeline Gouttenoire 103
The difficulties faced by public bodies in light of competition law Sébastien Martin 108
The notion of "public authority" in the recent case law of the European Court of Justice and its impact on French administrative law Professor Sébastien Platon 116
The European Court of Human Rights: an ambiguous comdemnation for a planned repeal Professor David Scymzcak 122
Public international law : The trial of Pascal Simbikangwa, or how the application of the principle of universal Jurisdiction has led to the very first conviction of a Rwandan genocide fugitive in France Professor Anne-Marie Tournepiche and Justine Castillo 133
French Political Life Political science : The Front National at the heart of the French political scene and the consequences for the UMP's failing strategy to win back and remain in power Clémence Faure and Professor Patrick Troude-Chastenet 148
Dialogues A Huron at the Palais-Royal Professor Jean Rivero, with a commentary by Professor Jean-Bernard Auby 158
The absurdity of the law, following an exposition of Racine and Kafka Professor Jean Carbonnier, with a commentary by Professor Jean Hauser 164
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MONTESQUIEU LAW REVIEW Issue No.1 January 2015
Editorials Professor Jean-Bernard Auby and Professor Mireille Delmas-Marty
As a lawyer and a political scientist, Montesquieu famously admired and praised the British institutions: he thought that they were based upon an admirable system of separation and balance of powers.
It is then only natural that a periodical based at the University of Bordeaux, aiming to communicate with the English-speaking world and prepared to uphold the fundamental values of democracy and the rule of law, would use the name of the Baron de la Brède et de Montesquieu, who was and remains one of the most remarkable figures in Bordeaux’s history.
Now, what is the purpose of this “Montesquieu Law Review”, of which you are discovering the first issue? The answer is quite simple: it is to give English-speaking lawyers curious to be regularly informed about the main events occurring in French Law – whether in written law, case law or doctrine - direct access, in the language of Shakespeare.
The promoters of this review, most of them involved in comparative work, are conscious that while French Law continues to attract the attention of some international audience because of its specific past and current features, the number of foreign lawyers who are able to work in the language of Molière is in steady decline. This, they believe, has to be taken into consideration in legal literature by spreading information about major developments in French law, on the internet and in English.
Of course, among the scientific benefits they expect from the enterprise, there is not only the creation of flows of information from French legal sources to English-speaking readers, but also an encouragement to intellectual dialogue between the French legal tradition –which is part of the continental one, but possesses its own peculiarities - and other, more or less different, legal traditions.
Most contemporary lawyers and analysts of legal globalization are driven to observe a lot of amazing convergences caused by various harmonization phenomena, ranging from formal international legislation or jurisprudence to a more inconspicuous cross-fertilization or spillover effects. These convergences certainly have their limits, and national legal idiosyncrasies still have a strong say, but they are an important characteristic of this period, and a fundamental contextual change for all comparative work.
Moreover, what the observation of legal globalization shows is that the differences between the common law world and the civil law one are not, or perhaps are no longer, this enormous gap that they were traditionally supposed to be.
In fact, some forerunners have already, some time ago, discerned that legal distances created by the Channel then by the Atlantic Ocean had, to some extent, been exaggerated. Let us just quote here F.H. Lawson, who wrote in “A Common Lawyer looks at the Civil Law” (1953): “The more one
4 studies French law, the more ones realizes that in many ways it resembles the Common Law”.
All lawyers belonging to democratic systems, whether they come from the Anglo-Saxon tradition or from the continental one, share at least some basic values in the core of which one finds the separation of powers and the rule of law, of which Montesquieu was one of the main advocates in history.
It is in the chapter of The Spirit of Laws dedicated to the British Constitution that he wrote: “When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner. Again, there is no liberty if the judiciary power be not separated from the legislative and the executive. Were it joined with the legislative power, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression".
Here are some of the principles on which our readers will certainly converge. Let us be clear: we do not mean to say that the review will intend to concentrate on constitutional issues: on the contrary, it will try and inform in all sectors of French law. But these fundamental principles are certainly their cup of tea, be they public lawyers or private lawyers.
To all of them, present and future, we bid a warm welcome. To those who will join us now, we add our wishes for a happy 2015.
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MONTESQUIEU LAW REVIEW Issue No.1 January 2015
Editorials Professor Olivier Dubos
A review is a collective adventure. This first issue is obviously not the beginning of that adventure, but it is its first expression. It was in the course of a conversation on the future of French law faculties that Marie-Claire Ponthoreau floated this idea, which I hastened to seize upon. It quickly emerged that, for the Montesquieu Law Review to be a publication in the spirit of Bordeaux – i.e. cosmopolitan – it could not be produced exclusively by the city’s legal academics. Professors Jean- Bernard Auby and Mireille Delmas-Marty, both of whom have worked so tirelessly in promoting French legal culture, graciously agreed straightaway to chair the Scientific Board.
But a review, like a child, does not just need parents; it must also have godparents. Leading personalities in France and overseas, known throughout the legal world, have agreed to stand as the review’s “godparents”. Yet more will join their ranks over time. The review will therefore have to take up the challenge that such a gift represents. In order to guarantee its quality, the MLR had to have a Scientific Board composed of both French and foreign colleagues, all acknowledged specialists in their chosen fields, tasked with ensuring the accuracy and relevance of the information and discussions contained in the articles; those asked were generous enough to answer the call.
A review also consists of a group of authors. My colleagues at the University of Bordeaux’s Faculty of Law and Political Science have shown the greatest enthusiasm for this inaugural issue: some have contributed articles themselves, while others approached colleagues for papers. In order for the MLR to publish two general issues and two special issues every year, this momentum must be maintained, and it is our hope that many French and foreign authors will contribute to subsequent editions. The review would not have seen the light of day without a project manager, Rachael Singh, whose linguistic and legal skills serve in the translating and editing of articles submitted by authors.
I offer my wholehearted and sincere thanks to all those who have agreed to embark on this adventure, which is also very efficiently supported by IdEx Bordeaux. It is our hope that the MLR will garner many loyal friends and readers
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MONTESQUIEU LAW REVIEW Issue No.1 January 2015 Developments in French Law Administrative law:
Recent changes in administrative litigation concerning contracts: on third- party remedies against administrative contracts Professor Jean-François Brisson, University of Bordeaux
Cases brought before French administrative courts are governed by the distinction, established in the 19th century by Edouard Laferrière (1), between the contentieux de l’excès de pouvoir (essentially, judicial review proceedings) in which strict issues of objective legality are raised before the administrative court; and the plein contentieux (or full remedy proceedings), in which the court is called upon to rule on the applicants’ subjective rights arising in particular from a contract. This distinction, built around judicial review, is of paramount importance in terms of its theoretical scope. It provides a framework and has historically made French administrative cases famous overseas (2). The recent developments in French administrative case law now highlight the extent to which its virtues have tended to wane, as shown by the actions brought by third parties against administrative contracts.
In the context of this study, “third parties” not only means candidates who have been unsuccessful in the tender process, but also local elected representatives who are members of the deliberative assembly that authorised the signature of the contract (3); the Prefect, as the representative of the State; and, more widely, any local citizen, individual or tax payer (4), and associations, public service users allowed to bring grievances concerning the public service’s operating conditions before the administrative courts (5).
Traditionally, with the exception of actions brought by the Prefect against local authority contracts, as provided by law, third parties could not challenge administrative contracts directly. Actions against administrative contracts were open only to parties who could have such contracts declared null and void in full remedy proceedings. However, administrative case law has taken account of the fact that administrative contracts, concluded for public service purposes and in the context of missions organised by the law, can raise questions of legality. To this end, in its famous decision in Martin of 4 October 1905, the Conseil d’Etat accepted that third parties could use an action for judicial review to challenge unilateral acts related to the disputed contractual situation, which the court then identified as not being intrinsically connected to the contract (6). The theory of l’acte détachable (or "separable administrative decision") was born. This case-law strategy allowed applications to be made to administrative courts for the annulment of decisions authorising or preparing for the signature of an administrative contract and, through an additional legal artifice, even the annulment of the decision to sign the contract which, while it is only materialised in the signature of the contract, can be separated from it at least on an intellectual level. In the context of such proceedings, third parties could thus obtain the annulment of an acte détachable on grounds of its vices propres (inherent defects) or vices résultant du contrat lui- même (defects in the contract itself), the content of its clauses or the procurement process.
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French legal theorists were not slow in pointing out that the annulments pronounced by administrative courts in judicial review proceedings were more often done so on grounds of form, as they did not necessarily - and in practice, only exceptionally – render the contract null and void(CE 10 Dec. 2003, Institut de recherche pour le développement, Rec., p. 501). Some scholars, including Marcel Waline (Manuel de Droit administratif, Sirey 1946), even argued in favour of allowing actions for judicial review against administrative contracts.
The Conseil d’Etat’s case law gradually became more aware of this demand for greater effectiveness and disputes involving contracts have become increasingly sophisticated in such a way as to ensure that annulments pronounced in judicial review proceedings not be purely symbolic but also have effects on illegal contracts. The parties to a contract were thus permitted to cite the annulment of the acte détachable in order to refuse to enforce an illegal contract (CE, 1 October 1993, Société Le Yacht-club international de Bormes-les-Mimosas) while third parties were finally permitted to make submissions in judicial review proceedings petitioning the court either to order the parties to apply for a ruling on the invalidity of the contract, or to cancel the contract itself where regularisation measures are not possible (CE, 21 February 2011, Société Ophrys, Communauté d’agglomération Clermont-Communauté, Rec. p. 54).
It is this hundred year-old line of authority, made up of successive adjustments and technical compromises, which was overturned by the Conseil d’Etat’s decision of 4 April 2014 in Département de Tarn-et-Garonne. Henceforth, any interested third party may bring full remedy (rather than judicial review) proceedings before an administrative court with a view to cancelling the contract itself. However, the fact that this action belongs to the "full remedy proceedings" category means that any improvement to the litigation position of third parties in contractual matters is only very relative: indeed, depending on the facts of the case before it, the court hearing the full remedy action finds itself in a position strictly to define an interest in bringing proceedings before it; to restrict the bringing of such actions to interested third parties; to strictly define the interest in bringing an action in contractual cases; to render void some of the legal grounds raised by third parties; and to modulate the consequences arising from the illegality of the contract in such a way as to safeguard the stability of contractual relations – to the detriment of the strict respect for legality, where necessary.
I. A new kind of legal action The stage for the solution adopted in the decision of 4 April 2014 had been set by an earlier case which, under the influence in particular of European case law (7) and Directives (8), had opened the possibility of directly challenging a signed contract to those candidates who had been unsuccessful in a tender process (CE, Ass. 16 July 2007, Société Tropic Travaux Signalisation). The 2014 decision extends this solution to all third parties but within the framework of a new litigation configuration which completely stands apart from the traditional balances found in the Conseil’s case law.
A. A specific action justified by the rejection of the judicial review litigation model in contractual matters The Conseil d’Etat chose not to open the possibility of bringing judicial review proceedings to third parties. The reasons for this refusal lay in the Conseil’s judicial policy as, technically, such a solution would have been possible. Since 1982, French law on decentralisation has provided that the Prefect of a département may bring an appeal against local contracts. This appeal has
8 historically been compared to actions for judicial review; it is only recently that, in order to prepare for the turnaround already under way, case law re-characterised it as a recours de pleine jurisdiction or full remedy action (CE, 23 December 2011, Ministre de l’Intérieur, de l’Outre-mer, des collectivités territoriales et de l’immigration, Rec p. 662). Furthermore, it is still possible to bring an action for judicial review of certain clauses contained in administrative contracts, namely those that the court characterises as regulatory in that, contained as they are in the contract, their purpose is to define not the relationship between the parties to the contract, but rather the organizational conditions for the public service delegated by government (CE. Ass., 10 July 1996, Cayzeele, Rec. p. 274). As they set the law governing the service in question, they could very easily feature in a separate document adopted unilaterally by the delegating authority. Finally, French case law again allows actions to be brought for judicial review of civil service staff contracts insofar as the content of these formally contractual acts is directly and entirely dictated by regulatory texts (CE sect., 30 October 1998, Ville de Lisieux).
The obstacles to the expansion of actions for judicial review in contractual matters are the result of the Conseil d’Etat’s efforts to safeguard the judicial review paradigm and maintain a distinction between the two actions that is other than strictly formal in its scope. Indeed, it was not feasible to extend the action to third parties without making a number of adjustments as to admissibility: specifically, as to the understanding of "interest in bringing an action", traditionally very broadly understood in judicial review proceedings; and as to the nature of the legal grounds likely to be raised in challenging the contract (Jacques-Henri Stahl, RFDA 1999 p. 128, Conclusions sur Conseil d'Etat, Section, 30 octobre 1998, Ville de Lisieux). Proceeding with such adjustments in respect of actions for judicial review would have rendered the two different actions indistinguishable, which the Conseil d’Etat did not want. Attached as it was to the classification of the various actions and upholding the position adopted in 2007 (9), it therefore opted to open the possibility of a full remedy action, the contours of which it could define as it saw fit, stating as much in one of its longest ever obiter dicta in its decision of 4 April 2014.
B. A full remedy action better suited to the specific features of contractual litigation The security of the contract, which guarantees the continuity of the public service in particular, includes a filter for access to the contract judge. Indeed, the situation in which the contract, as a bilateral commitment (this is itself important), is pointlessly exposed to third-party claims should be avoided. This is precisely what the Assembly of the Conseil d’Etat set out to do, giving details of the procedural arrangements for the new action.
Firstly, the new action replaces those actions against actes détachables previously open to third parties, which may no longer be brought as they fall within the remit of the exception known as a recours parallèle, or parallel remedy. Under this exception, owing to the facilities of a judicial review action, the latter may not be brought while another procedural route is not specially provided before the administrative court. Thus only signed contracts may be challenged in full remedy actions, and even then only within a period of two months following the completion of the advertising formalities attached to the contract. It is now only during this sole action against a contract that third parties may challenge acts prior to the contract, such as procedural acts before a contractor is selected, unless such challenges are brought as part of a référé contractuel or a référé précontractuel (summary proceedings relating to contractual or pre-contractual matters) provided under French public procurement law (Articles L.551-1 to 3 and L.551-13 to 16 of the Code de justice administrative), the illegality of which matters affect the contract as a whole.
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Secondly, it falls to the court to assess the applicants’ interest in bringing an action in a manner adapted to the scope of the contractual situations in question. The Conseil d’Etat gives a particularly restrictive reading of the same, which includes companies tendering for contracts covered up until now by the Société Tropic decision. The judgment of 4 April 2014 identifies two categories of third party: the requérants privilégiés - priority third parties - and requérants ordinaires, or ordinary third parties. Priority third parties do not have to establish any interest in bringing an action; their standing will suffice. This concerns Prefects in their capacity as State representatives, owing in particular to the powers that they hold under Article 72 of the Constitution giving them responsibility for overseeing the acts of local authorities. It also applies to elected representatives, members of the deliberative assembly of the local authority that signed the contract, for reasons not explicitly mentioned by the Conseil d’Etat, but which undoubtedly result from the possibility offered to opposition representatives to overcome failures on the part of Prefects and use the full remedy action as a legal weapon for the purposes of political debate.
Conversely, ordinary applicants will have to establish a sufficiently characterised interest in bringing the action and prove to the court that their personal situation is "likely to be adversely affected in a sufficiently direct and definite way” by the conclusion of the contract in question. This admissibility requirement is halfway between the definition of the interest in bringing an action in judicial review proceedings and that of the droit lésé or infringed right encountered in disputes concerning rights. It concerns, first of all, candidates who have been unsuccessful in the tender process. Actions brought by such parties, which may also include a référé-suspension (or application for suspension) as for any other third party, will now be examined subject to conditions similar to those of the référé précontractuel and, therefore, more restrictively than the Conseil d’Etat had considered up until then following the decision in Tropic, which had admitted actions brought by companies that had simply intended to tender for the contract in question.
Secondly, it concerns all other third parties: third parties with no particular standing, citizens, service users, taxpayers, associations, all of whom will however have difficulty in satisfying the subjective requirements of the interest condition. They may then find themselves deprived of any possibility of challenging an illegal contractual situation. Quite beyond the regression in terms of democratic life that would result from such a restrictive approach, it is in no way certain that contractual litigation stands to make any gains in terms of consistency: either third parties will turn to the criminal courts to denounce illegal contractual practices, or they will ensure that their challenge to the contract in question is brought by sympathetic elected representatives released from any specific requirements. One can imagine that the contract judge will have to give a broad assessment of their interest, failing which the option of bringing an action for judicial review of the actes détachables will be open to them once more.
II. A new definition of the role played by the administrative contract judge The subjectivisation of disputes carries with it a decline in issues of legality brought before the administrative court dealing with an illegal contractual situation. It emerges from the recommendations drawn from the decision of 4 April 2014 that the principle of legality has not been “erased” as such, but must instead be reconciled with other requirements, in particular the clarity of contractual situations. It is for the contract judge to undertake a permanent exercise in proportionality, taking account of the relationship between the interest affected and the alleged illegality, together with the seriousness of the illegality in light of the contractual situation. There follows a sort of assertion of variable legality: variable because, as a function of the applicant’s
10 situation, not all illegalities are enforceable against the administration; and variable because, as a function of the gravity of the vice or defect affecting it, not all illegal contracts will be censured.
A. Not all grounds of illegality can necessarily be relied upon before the contract judge This decline in issues of legality in disputes brought before the contract judge is reflected in the fact that third parties are no longer permitted to rely upon all sorts of illegalities. This is undoubtedly one of the most notable innovations introduced by the Département de Tarn et Garonne decision. Third parties may only rely on defects relating directly to the interest affected. The consequence is that the applicants’ interest in bringing an action is no longer assessed in light of their submissions – the application made to the judge for the cancellation of the contract – but rather in relation to the grounds argued in support of those submissions. This solution is taken directly from the référé précontractuel regime (Code de Justice administrative, Article L.551-1 and subsequent) under which the Conseil d’Etat has, since 2008, required an unsuccessful candidate applying to the interim relief judge to rely solely on those breaches which, in light of their scope and the stage in the tender process to which they relate, “are likely to have affected or run the risk of affecting them, be it indirectly, by giving an advantage to a rival business” (10). This is the exact opposite of the Conseil d’Etat’s ruling in the context of its Tropic case law (CE, opinion, 11 April 2012, Société Gouelle). There are now only two exceptions to the limits imposed on the grounds to be argued. Firstly, the rule does not apply to priority third parties who do not have a specific interest in bringing an action before the contract judge. Secondly, the decision reserves a particular fate for particularly serious defects: insofar as the court may raise them of its own motion, third parties are also invited to rely on them. This concerns the illegality of contractual clauses, defects of consent and, more widely, any other defect as the judge may identify as being particularly serious. The issue of whether breaches of the rules relating to advertising and competition constitute a particularly serious defect will be one of the first for case law to decide, as answers given by the court in the context of actions for invalidity brought by the parties (CE Ass., 28 December 2009, Commune de Béziers, GAJA, supra, p. 939) are not transferrable, other than to consider that the same reasoning will guide the judge who must necessarily consider the seriousness of the defect, and not solely in light of the circumstances in which it was committed.
A new conception of the principle of legality is emerging. Legality in contractual matters is now split in two with, on the one hand, public order in contractual matters; and, on the other, an attenuated legality which depends on the situation of the third parties who rely on it, a legality that is in some ways subjective and does not exist per se but rather in light of the dispute to be ruled upon by the judge.
B. Not all illegalities identified will result in the cancellation of the contract This duplication of the principle of legality is supported by the powers and prerogatives that the Conseil d’Etat’s Assembly has given to the new contract judge, to whom it falls when identifying an illegality “to assess the importance and consequences thereof”. This discretion is not an innovation: it had already been granted in 2009 to judges hearing applications for the cancellation of a contract brought by the parties themselves. The Conseil d’Etat has therefore pursued its endeavours to unify contractual litigation. On that basis, it allows the contract judge hearing an application brought by a third party to modulate the effects of any declaration on the invalidity of the contract. A number of solutions are consequently open to the judge. It is possible, first of all, to find that the illegalities committed do not prevent the execution of the contract, as these have in no way influenced the content of the contract or deprived third parties of a procedural
11 guarantee. Otherwise, it falls to the judge to invite the parties to take remedial action where the continuation of the contract nonetheless seems possible. This relates in particular to certain formal or procedural defects, which case law already allows to be remedied. It is only where no remedial measures are possible that the contract judge will have to consider terminating the contract. However, the cancellation of the contract may only be considered subject to extreme caution: the immediate cancellation of the contract is thus reserved for sanctioning the most serious defects. The judge must check beforehand that such a decision, which is necessary in order to restore legality, does not have an excessive adverse effect on the general interest; failing which, the judge may order either the prospective termination of the contract or the cancellation thereof (in whole or in part) but with a deferred effect so as to allow the contracting authority to take the measures necessary for the proper management of the service in question. In any case, even when inviting the parties to take remedial measures, the judge may also grant a third party’s request for damages, thus turning what had been an issue of legality into one of compensation – with the proviso (and it is an important one) that undoubtedly, just as before, only those candidates who were unsuccessful in the tender process will be able to establish compensable damage.
While it highlights the inexorable decline of actions for judicial review, the expansion of the administrative court’s role ultimately conceals a particular form of constancy in the Conseil d’Etat’s judicial policy. Contract security remains the judge’s priority. It was before, in a kind of fool’s bargain which saw third party actions succeed without the life of the contract necessarily being threatened, even when the contract was defective and when the judge ruling on the legality thereof would have acknowledged as much for the moral satisfaction of the interested third party (11). And it is now, in a manner more clearly claimed, since the new action has been expressly calibrated by the Assembly of the Conseil d’Etat to allow illegal contracts to be safeguarded as far as possible. However, this is a kind of democratic conception of administrative litigation which, together actions for judicial review, tends to disappear only to be replaced by a more managerial approach to economic issues raised by the survival of contracts concluded by public administrations.
Notes: (1) Traité de la juridiction administrative et des recours contentieux, 2nd ed. 1896 (reprint LGDJ 1989) (2) This, at least, is the opinion held by French legal scholars - and in particular by Gaston Jèze, in "Les libertés individuelles", Annuaire de l'institut international de droit public, 1929, p. 180, according to whom judicial review is "the most effective, economic and practical weapon in the world to defend individual liberties". (3) CE, 4 August 1905, Martin, in Grands arrêts de la jurisprudence administrative (GAJA), 19th édition, 2013, p.88. The Conseil d’Etat’s most important decisions are also available in French at http://www.conseil-etat.fr/Decisions-Avis-Publications/Selection-contentieuse while a search facility is available in English at http://english.conseil-etat.fr/Judging (4) CE, 29 March 1901, Casanova, GAJA, p. 50 (5) CE, 21 December 1906, Syndicat des propriétaires et contribuables du quartier Croix de Seguey –Tivoli, GAJA p.98 (6) CE, 4 August 1905, Martin, above, GAJA, p. 88 (7) Case C-503/04, Commission v Germany [2007] ECR I-06153, Opinion of Advocate General Trstenjak
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(8) Directive 2007/66/EC of the European Parliament and of the Council of 11 December 2007 with regard to improving the effectiveness of review procedures concerning the award of public contracts, transposed to Articles L.551-1 and subsequent of the Code de Justice administrative (Administrative Justice Code), available in French and in English at http://www.legifrance.gouv.fr (9) See D. Casas, conclusions sur CE, Ass. 16 juillet 2007, Société Tropic Travaux Signalisation, Rec. p. 360 (10) CE sect., 3 October 2008, SMIRGEOMES, conclusions by Dacosta, Rec. p. 324 (11) Conclusions by Stalh, above.
Annex: Excerpt from CE, 4 April 2014, Département du Tarn et Garonne, Application n°358994 On actions available to third parties challenging the validity of the contract:
2. Whereas, independently of actions available to the parties to an administrative contract and available actions for judicial review challenging the regulatory clauses of a contract or the référé contractuel judge on the basis of Article L. 551-13 and subsequent of the Code de justice administrative, any third party to an administrative contract whose interests are likely to be adversely affected in a sufficiently direct and definite way by the conclusion thereof or by its clauses may bring a full remedy action before the contract judge challenging the validity of the contract or of some of its non-regulatory clauses which are separable therefrom; this action before the contract judge is also open to members of the deliberative body of the local authority or group of local authorities concerned, as well as the State representative in the département, in exercising a review of legality; the applicants may potentially include in the action brought and on the basis of Article L. 521-1 of the Code de justice administrative, an application to suspend the execution of the contract; such an action must be brought, even when the disputed contract relates to public works, within a period of two months as of the completion of the appropriate advertising formalities, in particular by giving notice mentioning both the conclusion of the contract and the arrangements for consulting the same whilst respecting confidential matters protected by law; the legality of the choice of contractor, the deliberative process authorising the conclusion of the contract and the decision to sign it, may only be challenged by bringing the action defined above; however, when reviewing the legality of an administrative contract, the State representative may bring an action for the judicial review of the legality of such acts until such time as the contract is concluded, upon which date ongoing actions which have yet to be tried become devoid of purpose;
3. Whereas the State representative in the département and the members of the deliberative body of the local authority or of the group of local authorities concerned, given the interests that they represent, may rely on any grounds in support of the action defined above; other third parties may only rely on defects in direct relation with the interest that they claim has been affected, or defects so serious that the court would identify them of its own motion;
4. Whereas, when a third party brings an action in the circumstances defined above, with submissions challenging the validity of the contract or some of the clauses thereof, it falls to the contract judge, having verified that the party bringing the action other than the State representative in the département or a member of the deliberative body of the local authority or of the group of authorities concerned claims to have an interest likely to be affected in a sufficiently direct and definite way and that the irregularities criticised are amongst those upon which they
13 may rely, where the judge notes the existence of defects affecting the validity of the contract, to assess the importance and the consequences thereof; it therefore falls to the judge, taking into consideration the nature of such defects, either to decide that these do not prevent the execution of the contract, or to invite the parties to take remedial measures within a timeframe set by the judge, with the exception of terminating or rescinding the contract; in the presence of irregularities that cannot be covered by a remedial measure and which do not allow a contract to be executed, it falls to the judge to order, where necessary with delayed effect, having verified that his decision will not have an excessive adverse effect on the general interest, either the termination of the contract or, where the content of the contract is illegal or the contract is affected by a defect of consent or by any other defect of such seriousness that the court should identify it of its own motion, the cancellation of the contract in whole or in part; finally, even where he has invited the parties to take remedial measures, the judge may grant a request, if made, for the compensation of damage resulting from the infringement of adversely affected rights;
5. Whereas in theory it falls to the judge to apply the rules defined above which, taken as whole, do not impose restrictions on the fundamental right that is the right to turn to the courts; however, in light of the imperative to ensure legal certainty and so prevent any excessive infringement of existing contractual relations, the action defined above may not be brought by third parties who did not benefit therefrom and, in accordance with the abovementioned modalities, said action may only be brought against contracts signed as of the date on which this decision is handed down; the existence of an action against administrative contracts which, aside from prefectural referrals, was open only to unsuccessful candidates prior to this decision, does not render devoid of purpose any actions for judicial review as may be brought by other third parties against separable administrative acts related to contracts prior to the date of this decision; as a result, the present case has retained its purpose […].
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MONTESQUIEU LAW REVIEW Issue No.1 January 2015
Administrative law:
The Dieudonné case: freedom of expression, freedom of assembly and public order requirements
Professor Aude Rouyère, CERDARE, University of Bordeaux
The three temporary orders handed down by the Conseil d’Etat on 9, 10 and 11 January 2014 (1) concerning the live stage show performed by Dieudonné M’Bala M’Bala (known simply as Dieudonné) have had extraordinary repercussions, on a par with the legal and political issues that they raise.
At the heart of the litigation was a stage show, titled “Le Mur” ("The Wall"), which was first performed in 2013 in Paris and scheduled to tour various other French cities. The live show contains openly anti-Semitic views mixed in with more general points, jibes against well-known Jewish personalities and jokes about the Holocaust. The “artist” is not unknown in France – far from it. For over ten years, be it in stage shows or other media appearances, Dieudonné has broadcast anti-Semitic views in a more or less allusive manner yet still sufficiently clearly for them to become his signature brand of “humour”… and justify a series of criminal convictions.
However, the penalties imposed were not enforced and the stage shows allowed Dieudonné to continue to overstep the mark set down by French criminal law. Faced with a legal and political situation that was problematic to say the least, the Ministry of the Interior issued a circular to all préfets on 6 January 2014 (2), the purpose of which is expressed in terms that leave the reader in no doubt as to the concerns behind it: “Lutte contre le racisme et l’antisémitisme-manifestations et réunions publiques-spectacles de M. Dieudonné M’BALA M’BALA” (the fight against racism and anti-Semitism – public meetings and demonstrations – shows performed by Dieudonné M’BALA M’BALA).
The text merits examination as it forms the very basis of the intervention on the part of the authorities which led to the three orders handed down by the Conseil d’Etat. Firstly, the Minister recalls therein that the response to such views must above all be criminal proceedings, in accordance with the provisions of the Law of 29 July 1881 on the Freedom of the press. The Minister then states that the administrative authority also has powers to quell public unrest and that, while freedom of expression must be guaranteed, it must also be reconciled with other constitutional principles or objectives (including the preservation of public order). Mention is also made of Article 10 of the European Convention on Human Rights and Fundamental Freedoms.
From this starting point, it is established that “respect for freedom of expression does not prevent the authority vested with power to enforce legislation from forbidding an activity, on an exceptional basis, where only a measure of that nature can prevent public unrest”. Finally, the Minister recalls the conditions, as established in case law, under which the relevant administrative authority may prevent a meeting or show from going ahead, i.e. on the one hand "the risk of serious public unrest resulting from this performance” and, on the other hand, “the impossibility
15 of preventing such unrest by means of the appropriate enforcement measures which are less intrusive than a ban” (3). The Minister goes on to stipulate the components of the risk of public unrest in the event of a performance in cases such as that of Dieudonné, namely inclusion in a series of performances having already given rise to criminal offences; the recurrent and therefore foreseeable nature of the facts in question; and, finally, the possible affront to human dignity, a component of public order (4).
The message sent by the Minister was clearly received: the performances scheduled in three towns were banned in quick succession on 9, 10 and 11 January 2014 by the administrative authorities. In each instance, an interim application was made to the court on the basis of Article L.512-2 of the Code de justice administrative (Administrative Justice Code). The suspension of the order banning the performance in the first case and the dismissal of the application for suspension in the two remaining cases were the subject of an appeal brought before the Conseil d’Etat, which overturned the first decision and confirmed the other two. This is tantamount to rescuing (if we may call it that) the orders banning performances given by Dieudonné.
We will comment on these decisions in light of the legal argument put forward by the Conseil d’Etat, emphasising those elements that have contributed to markedly different doctrinal points of view. Although the political stakes of the stance adopted by the Conseil are far from insignificant, it is indeed in the legal arena that the sparring began between those who defend the decision and those who view it as an unjustifiable break with established case law. In such a context, our commentary will not limit itself to reiterating the grounds of the Conseil d’Etat’s decision, but will also give an assessment of the same.
A few words beforehand on the application made under Article L.512-2 of the CJA, created by Law n°2000-597 of 30 June 2000, which provides:
“Where such an application for interim measures is brought before it on grounds of urgency, the court hearing the application may order any and all measures necessary to safeguard a fundamental freedom with which, it is alleged, a public law body, or a private law body responsible for the management of a public service, has gravely and unlawfully interfered in the exercise of one of its powers. The court will give its ruling within a period of forty-eight hours”.
This is a major procedural advance which provides administrative courts with an essential tool in cases concerning the protection of fundamental rights and freedoms. The Dieudonné cases – just as in other recent decisions (5) – also show that a référé liberté (an urgent application for the protection of fundamental rights) may impose a duty on the courts, in highly complex situations heightened by controversy, to take steps that are tantamount to taking the place of the Administration.
What are the elements in the three orders issued by the Conseil d’Etat that, quite beyond the political dimension, are evidence of a noteworthy trend in case law? In amongst all the aspects that can be drawn from these decisions, there are two essential points: one concerning the public order perspective, the other on how to reconcile the latter with rights and freedoms. On the one hand, there is the confirmation of the place occupied by the principle of human dignity amongst the various components of the concept of public order. On the other, there is the
16 assertion made in the first order that the high degree of probability that a criminal offence will be committed constitutes a threat of public unrest.
1. The legal principle of human dignity as a central component of public order Public order is a situation that can only be grasped through its opposite, i.e. public disorder or unrest. The latter may manifest itself in the form of various breaches, which may be classed as tangible or intangible breaches.
According to Maurice Hauriou, in his Précis de droit administratif et de droit public (12th edition, 1933), “[p]ublic order […] is material, external order, a state of affairs considered the opposite to disorder, peace as the opposite to disturbance […]”. It may be thus understood by means of the classic components of general public order, being public peace, public security and public health.
Intangible public order or disorder has been established in French case law for some time, on the basis of a conception of public morality, being a synthesis of a group of established values at a given time and within an identified community. The relativity of this concept, which is used in light of local circumstances, serves to prevent a general public morality from being set by means of police measures.
The emergence of respect for human dignity as a component of public order, in the 1995 Commune de Morsang-sur-Orge decision in the "dwarf-tossing" case, was a development in case law that sparked much debate, not only regarding the reference itself, but also because the limits pertaining to the relativity of intangible disorder were notably absent. This fact was openly presented as “an absolute concept” (6) independent of specific local circumstances. The danger presented to rights and freedoms by the manipulation of an objectivized conception of dignity was not lost on some commentators, who viewed the decision as a licence for police authorities to intervene in the private, or even the intimate, sphere.
After stressing that "the reality and gravity of the risks of public unrest mentioned in the contested order are established", the Dieudonné orders once again use the reference to human dignity as the basis of the breach of public order. Therein lies one of the interesting elements of the decisions, but the latter also and above all holds in the conception of human dignity held here and which stands in stark contrast with the 1995 case law. First of all, the initial decision invokes the “values and principles, particularly of human dignity, enshrined by the Declaration of the Right of Man and the Citizen, and by the republican tradition” (7), while the latter two mention the “values and principles, such as human dignity”.
It may be deduced that human dignity could be supplemented by other values and principles. We can see above all – and this is central to the case – that in order to ban Dieudonné’s live stage show, the arguments put forward by the Conseil d’Etat state that the show contains "anti-Semitic views, which incite to racial hatred and, in breach of the principle of human dignity, condone the discrimination, persecution and extermination perpetrated over the course of the Second World War”. Here lays a remarkable difference as compared with the “dwarf-tossing” case, in which the court did not offer up an “objectivized” conception of human dignity, but rather one that in reality fell within the scope of its own discretion. This is a breach of the concept of dignity that does not lend itself to much debate in light of the values that are now protected in our
17 society and punishable under criminal law. The difference is crucial as such a breach of the concept of dignity is based on a simple finding by the court.
2. Criminal offences and administrative police While the existence of a criminal offence (Article 24 of the Law of 29 July 1881 on the freedom of the press) consisting in condoning crimes against humanity and in the incitement "to discrimination, hatred or violence towards a person or a group of persons because of their origins or their membership or non-membership of a specific ethnicity, nation, race or religion" provides a legal basis for breaches of the principle of human dignity, the link established between the intervention of an administrative police measure as radical as a ban and the risk of that criminal offence being contested is legally dubious. Moreover, it is this aspect that has fuelled the liveliest criticism of the Conseil’s orders.
The Conseil d’Etat argued in the first order – having identified the reality and gravity of the risks of public unrest and the serious risk of repeated and grave violations of the respect for values and principles, particularly of human dignity – “that it falls moreover to the administrative authority to take such measures as to prevent the commission of criminal offences”. It is therefore a matter of including, within the scope of public unrest, the fact that it falls to administrative police authorities to prevent the commission of a criminal offence.
The arguments against that line of reasoning are not, it must be said, lacking in relevance. The rights and freedoms in question are part of a "repressive", i.e. liberal, system of freedoms, by virtue of which those rights and freedoms would not be subject of an a priori review by the administrative authority; the persons benefiting from such rights or freedoms are only exposed on the intervention of a criminal court where a right is exercised in a way that is against the law, i.e. the commission of a criminal offence. In the present case, the ban on Dieudonné’s show to prevent the line drawn by the law from being crossed obviously poses problems, by instituting a preventive system. The opposing argument was that it was a matter of simply punishing such offences systematically once, and only once, these had indeed been committed.
It is clear that the role of the administrative police should not include anticipating all possible, potential or probably breaches of the law, at the risk of switching all rights and freedoms into a highly restrictive system.
However, it would appear that the facts of the Dieudonné case are part of an exceptional scenario in which, as emphasised by the court, the public unrest constituted by the commission of criminal offences – and by no means insignificant ones - is in this case sufficiently likely, even certain (being in some ways the sinister “hallmark” of the show itself), for the administrative police authorities to be able and even have a duty to intervene. Indeed, the only possible measure would be to ban such an assembly. The case is extreme but not entirely unprecedented, the administrative authorities having previously been entrusted with a similar task by the law.
In terms of their legal basis, the orders are fully justified. If we want such scenarios (i.e. criminal offences “performed” on stage and radical response on the part of public authorities) to remain the exception, we cannot, for all that, invalidate the exceptional solutions that they demand. There is, in these decisions of the Conseil d’Etat, a courageous firmness in the apparently (but only apparently) paradoxical defence of fundamental rights and freedoms.
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Notes (1) CE ord 9 January 2014 req n°374508, CE ord 10 January 2014 req n°374528, CE ord 11 January 2014 req n°374552 (2) NOR: INTK1400238C, available in French on the Légifrance website (3) Cf. The Conseil d’Etat’s landmark decision in Benjamin of 19 May 1933 req n° 17413 17520 (4) Cf. CE 27 October 1995 Commune de Morsang sur Orge req n° 136727 (5) Cf. CE 14 February 2014 Mme Lambert req n° 375081, 375090, 375091 (6) Cf. the conclusions of Patrick Frydman (7) Cf. Mme Hoffman-Glemane, 16 February 2009 N° 315499, featured in the order’s endorsements and using that same phrasing
Conseil d'Etat, ORD., 11 January 2014, SARL LES PRODUCTION DE LA PLUME and MD, application number 374552 Given the application, filed on 11 January 2014 with the Judicial Section of the Conseil d'Etat by the limited company (SARL) "Les Productions de la Plume" whose registered office is 1, rue des Volaillers, Saint-Lubin-de-la-Haye (28410) by MD, resident at ... Paris; the applicants ask the interim relief judge of the Conseil d'Etat to:
1) set aside Order No. 1400080 of 11 January 2014 by which the interim relief judge of the Administrative Court at Orléans, acting on the basis of Article L. 521-2 of the Code de justice administrative, dismissed their request for the suspension of the execution of the decree of 9 January 2014 the mayor of Orléans prohibiting the performance of the show "The Wall" by MD, scheduled for Saturday 11 January 2014 at Orléans;
2) grant the application made at first instance;
3) order the Minister of the Interior and the Prefect of Le Loiret to put the appropriate police measures in place;
4) order the town of Orléans to pay them the sum of 4,500 euros;
It is argued that:
The urgency condition is met, as the show is scheduled for tonight; The same applies to the serious infringement of a fundamental freedom; That indeed the order issued by the mayor of Orleans was not preceded by an adversarial procedure with the applicants and is not sufficiently justified, failing to note the inability to prevent possible disturbances to public order by the establishment of police measures; It is a misuse of power, the mayor having followed the instructions of the Minister of the Interior ignoring the legal regime of freedom of assembly; and the risk of disturbing public order has been brought about by people hostile to the performance of the show; The order itself is not sufficiently substantiated;
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Given the contested order;
Given the separate memorandum of law filed on 11 January 2014 with the Judicial Section of the Conseil d'Etat by "Les Productions de la Plume" and MD, pursuant to Article 23-5 of Ordinance No. 58 -1067 of 7 November 1958; the company "Les Productions de la Plume" and MD ask the interim relief judge of the Conseil d'Etat to refer the issue of the compliance of the Conseil d'Etat's Decision No. 136727 of 27 October 1995, Commune de Morsang-sur-Orge, with the rights and freedoms guaranteed by the Constitution to the Constitutional Council;
They argue that this decision is applicable to the dispute and is contrary to Articles 6, 10 and 11 of the Declaration of the Rights of Man and of the Citizen of 27 August 1789; Given the statement, filed on 11 January 2014, in which the Minister of the Interior requests that the Conseil d'Etat dismiss the application on the grounds relied upon at first instance by the Prefect of Le Loiret;
Given the other materials on the case file; Given the Constitution, including its Preamble and Article 61-1; Given the European Convention for the Protection of Human Rights and Fundamental Freedoms; Given the Penal Code; Given the Code général des collectivités territoriales; Given Ordinance 58-1067 of 7 November 1958; Given the Law of 30 June 1881 on freedom of assembly; Given the Law of 29 July 1881 on the freedom of the press; Given the Code de justice administrative;
After summoning, on the one hand, the company "Les Productions de la Plume" and MD and, on the other hand, the municipality of Orleans and the Minister of the Interior, to a public hearing;
Given the record of the public hearing on January 11, 2014 at 4:00pm, during which were heard:
Maître Ricard, lawyer to the Conseil d'Etat and the Court of Cassation, counsel for the company "Les Productions de la Plume" and MD; Representatives of the company "Les Productions de la Plume" and MD; Maître Hazan, lawyer to the Conseil d'Etat and the Court of Cassation, counsel for the town of Orléans; The representative of the Minister of the Interior; at the end of which the interim relief judge closed the inquiry;
1. Whereas under Article L. 521-2 of the Code de justice administrative: "Where such an application for interim measures is brought before it on grounds of urgency, the court hearing the application may order any and all measures necessary to safeguard a fundamental freedom with which, it is alleged, a public law body, or a private law body responsible for the management of a public service, has gravely and unlawfully interfered in the exercise of one of its powers. The court will give its ruling within a period of forty-eight hours" and that under Article L. 522-1 of the Code: "The court shall rule at the conclusion of written or oral arguments in adversarial proceedings. When asked to order, modify or halt the measures to which Articles L.521-1 and
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L.521-2 refer, the court will immediately inform the parties of the date and time of the public hearing (...) ";
2. Whereas, by the contested Order, the judge of the Administrative Court at Orléans dismissed the application of SARL "Les Productions de la Plume" and MD for the suspension of the execution of the Order of 9 January 2014 issued by the mayor of Orléans prohibiting the show "The Wall", scheduled to be performed there on Saturday 11 January 2014;
On the defence statement made by the Minister of the Interior:
3. Whereas the Minister has a sufficient interest in maintaining the contested order; his statement is therefore admissible; On the appeal brought by the company "Les Productions de la Plume" and Mr. M'Bala M'Bala:
Regarding the preliminary ruling on constitutionality:
4. Whereas under the first paragraph of Article 23-5 of the Ordinance of 7 November 1958 on the organic law on the Constitutional Council: "The grounds alleging that a legislative provision infringes the rights and freedoms guaranteed by the Constitution can be raised (...) in the course of proceedings before the Conseil d'Etat (...) ";
It follows from the wording of these provisions that a preliminary ruling on the issue of constitutionality can only be directed against a legislative provision; that the issue of constitutionality raised by the company "Les Productions de la Plume" and Dieudonne M'Bala M'B is directed not against any legislative provision, but against a decision of the Conseil d'Etat; it is, therefore, inadmissible;
As regards the other grounds:
5. Whereas, as recalled by the interim relief judge of the Administrative Court, the exercise of freedom of expression is a prerequisite for democracy and one of the guarantees of respect for other rights and freedoms; it is for the authorities in charge of administrative police to take the measures necessary for the exercise of the freedom of assembly; that any interference in the exercise of these fundamental freedoms must be necessary, appropriate and proportionate for the purposes of maintaining public order;
6. Whereas, to prohibit the performance of the show "The Wall" in Orléans, previously performed at the Théâtre de la Main d'Or in Paris, the mayor of Orléans noted in particular that this show, as designed, contains anti-Semitic views that shame members of the Jewish community and makes disgraceful references to the Holocaust; that the contested order recalls that MD was the subject of nine criminal convictions, seven of which are final, for views of that nature, and he has made clear his desire to continue in that same vein; that the order notes, furthermore, that the holding of this show is likely to incite racial hatred and racial discrimination, in a context of exacerbated controversy between supporters and opponents of Mr. M'Bala M'Bala and, beyond that, between supporters and opponents of the messages he conveys;
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7. Whereas, under the very terms of Article L. 521-2 of the Code de justice administrative, the exercise by the interim relief judge of his powers under said article is subject to the serious and manifest nature of the unlawfulness of an infringement of or interference in a fundamental freedom; in this regard, the fact, contradicted by the evidence, that the disputed order was not preceded by an adversarial procedure and would not be sufficiently substantiated is, in any event, not likely to characterize unlawfulness of that kind;
8. Whereas in light the evidence before it, the interim relief judge ruling at first instance referred considered, correctly, that in view of the planned show, as it was announced and scheduled, the allegations that the views constituting criminal offences, likely to cause serious harm to the respect of values and principles such as human dignity and provoke hatred and racial discrimination, raised at meetings held in Paris, would not be repeated in Orléans do not suffice to prevent a serious risk that the planned show itself constitutes a threat of such a nature to public order; that the evidence adduced on appeal, particularly the exchanges during the public hearing, are not such as to cast doubt on that assessment; that the allegation, which cannot, moreover, be regarded as established by the investigation, that Mr. M'Bala M'Bala could perform a different show in Orléans does not affect the legality of the decision prohibiting the performance of the show "The Wall", the suspension of which is requested;
9. Whereas, when the reality of such a risk is sufficiently established, on the evidence put before the interim relief judge, and where the deployment of police forces is not sufficient to breaches of public order of such a nature as those in question here, which consist in inciting racial hatred and racial discrimination, the mayor cannot be considered as having issued a manifestly unlawful act in the exercise of his administrative police powers by issuing the disputed ban; that, in these circumstances, the submission that the mayor would thereby have obeyed the instructions of the Minister of Interior and thus vitiated his decision by a misuse of power must be rejected;
10. It follows from the above that the SARL "Les Productions de la Plume" and MD have no grounds to argue that, by the contested order, which is sufficiently substantiated, the interim relief judge of the Administrative Court at Orléans was wrong to dismiss their request; that their submissions arguing for an injunction and compensation can therefore only be dismissed;
Orders: Article 1: The defence statement submitted by the Minister of the Interior is accepted. Article 2: The application made by SARL "Les Productions de la Plume" and MD is dismissed. Article 3: This Order shall be notified to the SARL "Les Productions de la Plume", MD, the town of Orléans, the Prime Minister and the Minister of Interior.
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MONTESQUIEU LAW REVIEW Issue No.1 January 2015
Civil law:
Compensation for environmental damage under French law: past, present… but what future? Laurent Bloch, Associate Professor, University of Bordeaux
Issues relating to the environment are often front and centre in the media or in politics, but rarely occupy the legal stage. It is true that, behind all the statements of principle and electoral mantras, it is very difficult to construct civil liability for environmental damage. The latter is nonetheless necessary, particularly in light of an exhausted ordinary law, even if the Court of Cassation has shown its ability to breathe new life into it with the Erika case.
There is, however, no lack of law. Thus Article 1 of France’s Charte de l’environnement (Charter for the Environment) proclaims "[…] the right to live in a balanced environment which shows due respect for health". The Charter has constitutional value, as it was made part of French constitutional law in 2005. Equally, the right to a safe environment has been enshrined in the Code de l’environnement (Environmental Code) as a stand-alone right. Furthermore, Directive n°2004/35/EC, adopted on 21st April 2004, also considered environmental liability.
Despite wishing to be at the forefront of the struggle in environmental matters, France was condemned by the ECJ for the late transposition of the above Directive, as it took Law n°2008-757 of 1st August 2008, on environmental liability, various provisions bringing French law into line with European Community law in the environmental sphere (known as the loi LRE or LRE Law), and Decree n° 2008-468 of 23rd April 2009 on the prevention of and compensation for particular kinds of environmental damage. This new mechanism, which institutes a new form of police administrative (administrative police), imposes a duty on professionals to take the necessary steps to prevent environmental damage. This is a very different approach to that which had dominated previously.
Indeed, the true difficulty in France’s classic rules relating to civil liability is that these did not recognise environmental damage per se, but rather addressed the issue as part of the broader question of damage to property, a consequence of environment damage. This was the case for the operating losses suffered by a beachfront hotel where the beach was devastated by an oil slick. French case law thus resorted to the theory of trouble anormal de voisinage (1) or abnormal neighbourhood disturbance or nuisance; fault-based liability for negligence as provided under Articles 1382 and 1383 of the Civil Code; the notion of responsabilité du fait des choses (liability for damage or injury caused by things in one’s care), as provided under Article 1384 paragraph 1; or even the principle of responsabilité du fait des produits défectueux (liability for damage or injury caused by defective products) established in 1998 under Articles 1386-1 to 1386-18 of the Civil Code. Furthermore, such an analysis matches that of the European Court of Human Rights, which does not directly take environmental damage into account but instead compensates the victims of an unhealthy environment by applying the concept of infringements of the right to life (2).
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As such, the damage suffered by the environment itself appeared to be out of range since it was viewed only in terms of its repercussions on persons and their property. So the decision that was handed down by the Court of Cassation on 25 September 2012 in the Erika case – taken from the name of the petrol tanker that sank off the coast of Brittany – was a real turning point, in that it clearly enshrined the concept of “pure” ecological damage (see part I below). This warning shot - the prelude to probable legislative enshrinement - may yet nevertheless prove to be in vain if the attacks on the precautionary principle bear fruit. Indeed, it would appear that the precautionary principle has been under threat for some months (see part II).
I. The Erika decision – a turning point Despite a proliferation of legislation, environmental damage struggled to emerge prior to the Erika decision (see section A). Following the decision, its recognition is no longer in dispute (see section B), and the statutory entrenchment of environmental liability seems possible (section C).
A. Pre-Erika While the Charter for the Environment provides that "[e]veryone has the right to live in a balanced environment", whether a person has an actual, existing legal right to act in procedural terms is quite another matter (3). For associations or legal persons governed by public law, this is difficult to prove as they represent collective interests. However, the former are authorised under the Code de l’environnement while the latter benefit from a frequently broad interpretation in French case law of the right to bring an action. Nevertheless, while the procedural obstacle could thus be surmounted, the issue of pure ecological damage, i.e. damage to the environment itself, had never been tackled head-on by the courts.
We may cite a decision of the First Civil Chamber of the Court of Cassation, ordering a hunting association to pay compensation for the damage suffered by an association for the protection of birds, owing to the death of an osprey shot by hunters; or even the decision handed down by the Tribunal de grande instance (regional court) at Bastia on 4 July 1985, ruling in favour of the départements in Corsica and finding a company liable for the discharge of red mud slurry. In reality, case law made no provision for compensation for environmental damage per se; furthermore, the terms "damage to the environment", "ecological damage" or even "environmental damage" had long been absent from the grounds of the courts’ decisions.
Admittedly, draft legislation (which has often been rejected) such as the bill to reform the law of obligations and the statute of limitations – known as the projet Catala (Catala Bill) – gave a glimmer of a possibility of recognition. Indeed, the latter put forward, under a new Article 1343 to the Civil Code, a very broad definition of reparable losses or damage; this would have encompassed environmental damage, as “any established damage, consisting in a wrong against a lawful, proprietary or non-proprietary, individual or collective interest, shall be reparable”. The reference to collective damage is clearly intended to include environmental damage.
French case law has proved to be more audacious and, above all, more effective than the legislature. Trial judges have, meanwhile, appeared gradually to be moving towards a separate concept of environmental damage. In a decision handed down in 2006, the Court of Appeal at Bordeaux awarded compensation to a group of associations “for the damage suffered by aquatic flora and invertebrates” when there was no damage to private property (4). This daring on the part
24 of trial judges had never really been enshrined by the higher courts until the celebrated decision in Erika.
B. Back to Erika In December 1999, off the coast of Saint-Nazaire, the Maltese petrol tanker MV Erika (chartered by Total) broke up and sank, spilling its cargo of fuel oil along more than 400 km of coastline between Finistère and Charente-Maritime. The significant environmental damage triggered the mobilisation of regional bodies and the voluntary sector. What could have been yet another oil slick instead witnessed particularly innovative legal developments, thus circumventing the “flag of convenience” stratagem that protected ship charterers.
In its decision of 25 September 2012 (5) in the Erika case, the Court of Cassation ruled that there had been negligence on the part of Total; this in turn led the Court to find Total and its co- defendants jointly liable in civil claims. On the issue of criminal prosecutions, it was confirmed that French courts did indeed have jurisdiction.
Admittedly, the MV Erika was a foreign vessel sailing in an Exclusive Economic Zone (EEZ), but the environmental damage was suffered in territorial waters and along the French coast. While in civil matters, legislation in favour of jurisdiction for the place where the damage in question has been suffered has proliferated (Articles 4 and 7 of the “Rome II” Regulations or Article 5.3 of the “Brussels I” Regulations), the question of jurisdiction in criminal matters was much vaguer. The Court of Cassation gave an unequivocal decision on the issue, ruling that the French and not the Maltese courts had jurisdiction.
Thus Total, having a power of supervision or control in the management or operation of the vessel, could have checked the latter’s suitability for transporting cargo, without being able to hide behind its sister classification society, Rina. The criminal offence of negligent pollution had thus been committed and could be imputed to Total. The guilt established by the Court of Appeal was not challenged by the decision handed down by the Court of Cassation. The order that Total pay a fine of €375,000 was therefore final.
As regards the civil claims, the Court of Appeal, applying the 1992 CLC Civil Liability Convention (CLC), overturned the decision of the court of first instance by clearing the Total Group. The oil company, deemed a charterer by the appeal judges, could therefore benefit from the immunity conferred by the CLC’s special scheme, liability falling exclusively to the owner of the vessel. The Court of Appeal thus ruled that civil liability lay solely with the parties falling outside the scope of the Convention, namely the owner’s agent, the ship management company and the classification society. Although the Erika case was admittedly disastrous for its image, the French oil company came out of it pretty well in financial terms.
Before the Court of Cassation, the argument (contained in a judgment that is over 300 pages long) centred in particular on the issue of negligence on the part of the oil company. The immunity enjoyed by the charterer falls down if the latter has been grossly negligent. While the French Court of Appeal had indeed acknowledged that Total had not respected "the rules that the company it had itself put in place so as not to risk chartering a vessel unsuited to the transportation of dangerous pollutants” but that the negligence had not been committed with the “awareness that by acting in this way, damage caused by pollution would probably ensue”. The Court of Cassation
25 stepped into this particular breach by imputing negligence to all parties to the shipping operation – including, therefore, Total: having simply been found guilty by the trial judges, Total became guilty under criminal law and liable under civil law by France’s highest court. The hierarchy of blame was thus re-affirmed and the separate concept of environmental damage, which had already been acknowledged by the trial judges, definitively established. Total was ultimately ordered to pay the sum of 200 million Euros in damages. Regardless of the amount, the Group, doubtless out of concern to repair its image, had already got a head start by compensating the various communities affected by the oil spill. The decision will apply above all for the future: it is intended to serve as a warning to all those who, hidden in international waters or benefitting from immunity under international agreements or conventions, thought that they could avoid liability.
A. Post Erika This vitality in ordinary French law will serve to fill in the gaps left by the law emanating from the 2004 Directive. While the latter does allow environmental damage to be taken into account on a European Community level, it only covers damage sustained after 30 April 2007. Damage covered by the Directive relates only to three aspects that must have been “gravely affected”. This concerns, first of all, those species and habitats protected by Directives 79/409/EEC and 92/43/EC (wild birds; wild flora and fauna); water policy under Framework Directive 2000/60/EC; and finally, contaminated soil, insofar as the contamination poses a serious risk to human health (6). Furthermore, only the damage caused or that may be caused by certain activities fall within the remit of the programme.
The list is contained in Decree n° 2009-468 of 23 April 2009 and codified under Article R. 162-1 of the Code de l’environnement. Thus only professional activities are covered (para. 1). Moreover, for environmental damage that falls within the scope thereof, the administration – more specifically, the Prefect of the département - will be responsible for the implementation of reparations and preventative measures. The Prefect will also be the point of contact for any natural or legal persons directly affected. We can therefore understand that ordinary law, which has admittedly be at fault in ignoring environmental damage for far too long, has the merit of being much more straightforward in comparison with a framework of administrative provisions, which can seem a little dated. Admittedly, we can take comfort from the fact that the law faithfully transposing the Directive instituted a strict liability scheme found on the well-known “polluter pays” principle.
The overly inflexible “co-habitation" of two emerging laws - an ordinary law that managed to extend the concept of damage and a special law, based on EU legislation – may pose problems in future.
For the purpose of clarification, following the vote in May 2013 by the Senate on a bill relative to the insertion into the Civil Code of the duty to repair environmental damage, the Minister of Justice and Garde des Sceaux (“Keeper of the Seals”, a title held by the Minister) set up a working party on the issue. The group, chaired by Professor Yves Jégouzo, published its findings in September 2013. The report provides for the creation of sections of legislations that would later become Articles 1386-19 to 1386-23. These provisions firstly aim to define environmental harm and create a specific reparations scheme. Environmental harm would therefore be “abnormal damage to the elements and functioning of ecosystems, as well the collective benefits drawn from the environment by humankind”. For the purposes of effectiveness, a list will be established by decree.
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The new scheme also provides for the costs incurred in preventing the imminent occurrence of environmental harm to be borne by the person liable. The courts have been given powers to prescribe “reasonable measures suitable to prevent or halt the illegal nuisance to which the environment is exposed”. In order to overcome the usual procedural obstacles, essentially linked to the issue of the interest to act, in addition to the procedures already provided in the Code de l’environnement, the State, the Public Prosecutor’s Office, the regional and local authorities, groups from the communities concerned by the area at risk, public institutions, foundations and voluntary organisations whose purpose is to protect nature and the environment, are all authorised to institute legal proceedings. A specific limitation period, extended to 10 years, is also provided. That period runs from the date on which the complainant had knowledge or ought to have had knowledge of the damage. Following the 2004 Directive on this point, priority is given to reparation in kind of the damage suffered. In the event of gross negligence, provision is made for a civil fine.
This draft bill is innovative in many respects and it highlights the necessary operation of a process to anticipate damage. Admittedly, yet again, positive law is not entirely ill-equipped on this point: complainants can validly claim imminent damage, which allows them to bring an action for interim relief on the basis of Article 809 of the CPC, but that remains the exception rather than the norm.
The future has appeared bleaker in recent months. There lay at the heart of environmental protection provisions the now famous precautionary principle. This keystone of the newly emerging legal edifice has been the subject of repeated attacks on the part of the French National Assembly and the Senate.
I. The precautionary principle under threat While the precautionary principle has been readying itself finally to find the legal tools allowing it to become truly consistent, it seems to have been confined within new limits so as not to annoy manufacturers, who were formerly dubbed polluters and recently renamed as innovators. Behind all those words, there is much political and economic tension. In order to gauge the issues, it is useful to go back over the origins of the precautionary principle (section A below) the better to understand the threats that it currently faces (section B below).
A. The origins of the precautionary principle The precautionary principle took centre stage in 1992, at the United Nations Conference on Environment and Development (UNCED), Rio de Janeiro (also known as the Earth Summit). It posits a prudence rule by virtue of which "the absence of absolute scientific certainty must not serve as a pretext for deferring the adoption of effective measures serving to prevent the deterioration of the environment". The Maastricht Treaty, which was adopted in the same year, reiterated the principle. It featured at Article 130-R, which became Article 134 of the Treaty of Amsterdam then Article 191 of the Treaty on the Functioning of the European Union (TFEU). On a European level, the scope of the principle is very broad; obviously it concerns the environment but also the fields of human and plant health.
It was thereafter introduced into French national law by the 1995 Law on Environmental Protection, though more limited in scope than under European law (Article 110-1 of the Code de l’environnement). Then, ten years later, it was Article 5 of the Charter for the Environment, on a
27 constitutional level, which imposed a duty on public authorities to make decisions in light of the precautionary principle.
Prior to that legislation, the precautionary principle had above all been a doctrinal concept. Arguing for a new ethical responsibility, some scholars suggested a radical break with classic theories, at least as regarded the risks of serious and irreversible harm (7). It would therefore be a preventive responsibility founded on the precautionary principle. Where there is doubt, there must be no delay: action must be taken as soon as the risk is apparent and even where the harm has not yet come about. This is potential harm. A person who does not act when he ought to have intervened is deemed negligent. Ultimately, we come back to negligence: negligence resulting from the failure to take the steps necessary to prevent a possible risk.
The precautionary principle is now part of the French Constitution but is only incumbent on public authorities. Its scope is for the time being relatively limited except that it will undoubtedly be behind a restoration of the preventive aspects of civil liability. In spite of it all, the principle seems to frighten a number of France’s elected representatives.
B. The threats faced by the precautionary principle Surprisingly, both Houses of the French Parliament are currently proving to be less than benevolent towards the precautionary principle. On 27 May 2014, the Senate adopted a constitutional bill (PPL n° 532) that aimed to define the scope of the precautionary principle and to amend Articles 5, 7 and 8 of the Charter for the Environment. In detailing the reasoning behind the bill, the rapporteur stressed that "the assessment of the application of the new constitutional principle reveals its limits. An often excessive, even unreasonable interpretation of deviations, but also of material difficulties in its application". He adds that "[i]n a context of increased competition and a loss of competitiveness, the precautionary principle must not manifest itself in an standstill that would harm our economy; on the contrary, it must bring out truly dynamic activity: the precautionary principle now cannot be divorced from the innovation principle".
The rapporteur for the bill pursues his line of argument by asserting that the precautionary principle "may have amplified the atmosphere of suspicion towards innovation, and even towards scientific and technical progress". He states further that "this danger is all the more worrying in that it now entails a dismissal of scientific expertise". The purpose of the bill is therefore to reassure citizens terrified by the precautionary principle by amending Article 7 of the Charter for the Environment which may consequently provide that "public information and policy-making are based on the dissemination of research results and the use of independent, multidisciplinary scientific expertise, conducted in line with the conditions defined by law”. The Senate has not, however, sought to strip the precautionary principle of its constitutional status. The final blow may well come from the National Assembly. On 12 June 2014, a group of 121 deputies put forward a bill seeking to remove the principle from the Constitution. Deputy Eric Woerth, who proposed the bill, takes the view that the precautionary principle "has, over time, become a principle of inaction, all too often obstructing research and risk-taking in the economy".
The bill seeks nothing less than the repeal of Article 5 of the Charter for the Environment, the main provision containing the principle. But the proponents of the precautionary principle need not worry. It is simply a matter of stripping it of its constitutional status so that it may be reinvigorated. The reasons for the bill state that “by stripping the precautionary principle of its
28 constitutional scope, it is not a matter of bringing the principle to an end but rather giving Parliament, the nation’s representatives the opportunity better to define it and thus strengthen and make it more indisputable than it currently is".
It remains to be seen whether these bills or drafts are passed into law. In any event, they reveal an attitude of defiance towards the precautionary principle. The issue of environmental liability is far from resolved. To paraphrase Robert Badinter, who said with some malice that France was not the land of human rights but the land of the declaration of human rights, let us hope that France does not become merely the land of the Charter for the Environment.
Notes: (1) Recent applications: Versailles, 4 February 2009, n° 08/08775, - Montpellier, 15 September 2011, n° 10/04612, and Ph. Stoffel-Munck, La théorie des troubles anormaux de voisinage à l'épreuve du principe de précaution : observations sur le cas des antennes relais, Dalloz. 2009. 2817; J.-Ph. Feldman, Le trouble voisinage du principe de précaution, Dalloz 2009. 1369 (2) See, in particular, ECHR, Öneryildiz v Turkey, Application no. 48939/99, 18 June 2002. (3) Section 31, CPC (4) CA Bordeaux, n° 05-00.567. (5) n°10-82.938 (6) Now Article L. 161-1 of the Code de l’environnement (7) For example, C. Thibierge, Libres propos sur l'évolution du droit de la responsabilité. Vers un élargissement de la fonction de la responsabilité civile?, RTD civ. 1999; Avenir de la responsabilité, responsabilité de l'avenir, Dalloz 2004. Chron. 577
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MONTESQUIEU LAW REVIEW Issue No.1 January 2015
Civil law:
The end-of-life decision: the Vincent Lambert case Cécile Castaing, Associate Professor of Public Law, CERDARE, University of Bordeaux Marie Lamarche, Associate Professor of Private Law, CERFAP, University of Bordeaux
After the medicalization of the end of life, the "jurisdictionalization" of the end of life demands that the issue be re-addressed in terms of the legal restrictions on individual autonomy. In light of the prohibition on ending a person’s life and of individual freedom opposed by those invoking a right to die with dignity (1), the balance sought from a legislative point of view compels a court to intrude into a troubling sort of “medico-legal intimacy”. The distinctive feature of the end-of-life decision is that it results in a person’s death. It concerns not only those persons at end-of-life, but any person who decides to end their life. In French medical law, the end-of-life decision is the choice made by a doctor and the patient where the latter is able to express their wish to terminate treatment, the consequence of which is to bring about the patient’s death.
The scientific, legal and ethical issues raised by this decision affect each person’s moral or religious convictions, society’s choices and the fundamental rights of the individual.
While some foreign legislations have already made the final leap and, as in Belgium (2), allow end- of-life applications to be granted, discussions are ongoing in Europe which may result in a legislative framework for “assisted dying” (3).
In France, the Conseil d’Etat had the opportunity to rule for the first time on the end-of-life decision, in the context of an appeal brought against an interlocutory order, where it had to decide whether the medical decision to stop Vincent Lambert’s artificial nutrition and hydration was legal.
Vincent Lambert has been hospitalized since 2009 following an accident that left him in a vegetative, then a minimally conscious state. He is fed and hydrated through tubes but does not receive any other medical treatment. On 10 April 2013, Vincent Lambert’s attending physician decided to stop artificial nutrition and reduce hydration and implemented the decision. The patient’s parents asked the doctor to resume treatment and, when the doctor refused, applied to the administrative court for an interim order ordering the hospital to resume the patient’s usual nutrition and hydration. As the interlocutory application to the court concerned the safeguarding of a fundamental freedom (Article L. 521-2 of the Code de justice administrative (4)), the urgency and the serious and manifestly unlawful violation of a fundamental freedom had to be characterized. The urgency is characterized "where the action or failure to act on the part of the establishment creates a characterized and imminent danger to a patient’s life"; there is indeed a serious violation of the right to life (5), as stopping artificial nutrition and limiting hydration reveals a danger to the patient’s life. Where the patient is not at end-of-life, it is not the special provisions contained in the Law of 22 April 2005 (known as the loi Léonetti) that apply but rather the ordinary law on patients, in particular Article L. 1111-4 para. 5 of the Code de la santé publique (Public Health Code) under which "where the person is not in a state to express his wishes, the limitation or termination of treatment likely to put his life in danger may not be carried out without following the collegiate procedure […] and without consulting the person of trust 30
[…]or the family or, failing which, a relative and, where necessary, the person’s own advance directives”. Having qualified artificial nutrition and hydration as care or treatment that could therefore be limited or stopped altogether, the tribunal administrative (administrative court) at Châlons-en-Champagne considered that the failure to follow the collegiate procedure constituted sufficient grounds for the injunction requested to be granted (6). This case reveals one of the difficulties arising from the duty imposed on a doctor to initiate a collegiate procedure. In the present case, the patient had not appointed a person of trust or drawn up any advance directives, but there remained the family to be consulted. The administrative court held that while the patient’s wife had been involved in the collegiate discussion, the same could not be said for his parents, who had not even been informed of it.
Following another collegiate procedure, Vincent Lambert’s attending physician again decided on 11 January 2014 to stop artificial nutrition and hydration as of 14 January 2014, though the implementation of this medical decision would have to be deferred in the event of an application to the administrative court. The patient’s parents made another interim application to the administrative court, following the same procedure, to order the hospital to forbid the termination of artificial nutrition and hydration. In order to characterize the serious and manifestly unlawful violation of a fundamental freedom, the panel of judges had to rule on two issues: could the doctor base his decision to stop treatment on a wish that the patient allegedly expressed that he not be kept alive in a state of high dependency, although this statement was made outside any formal framework? Did the continued nutrition and hydration constitute "unreasonable obstinacy", thus justifying the interruption thereof? The administrative court, sitting in plenary session, found in the negative on both points and consequently held that the disputed medical decision constituted “a serious and manifestly unlawful violation of Vincent Lambert’s right to life" (7).
The patient’s wife, other family members and the centre hospitalier universitaire (university hospital) in Reims appealed the decision to the Conseil d’Etat which, in light of the "extreme gravity of the situation”, decided to bring the dispute before the General Assembly of the Conseil d’Etat sitting as a panel of judges. The formation of the court, prior to staying proceedings, enshrined a new fundamental freedom to stand alongside the right to life and the right to consent to a medical procedure (8): the right “not to undergo a treatment that may result from unreasonable obstinacy”. The Assembly hearing the case also stated that the legislative provisions on the notion of unreasonable obstinacy are of general application and apply in respect of all users of the French health system, be they at end-of-life or not. The Conseil d’Etat decided to stay proceedings while awaiting, on the one hand, new expert evidence which would describe the patient’s clinical state, the irreversible or otherwise nature of his brain damage, his ability to communicate with the people around him and to respond to the care given to him; and, on the other hand, observations, as amici curiae, from the Académie nationale de médecine (French National Academy of Medicine), the Comité consultatif national d’éthique (National Consultative Ethics Committee), the Conseil national de l’ordre des médecins (French national medical association), and Mr. Jean Léonetti, author of the bill that passed into law on 22 April 2005 on the end of life (9).
The Conseil d’Etat finally gave judgment on 24 June 2014. Given the importance of the decision, the novelty of the issues brought before the court and the exceptional nature of the consequences of the court’s decision, the Conseil’s General Assembly again gave judgment sitting as a panel of judges. It held that the medical decision to stop treatment was lawful, both in terms of the
31 procedures imposed by law and in terms of its soundness. The Conseil’s decision does not, however, bring the legal soap-opera to a close as the European Court of Human Rights, following an application by the patient’s parents, asked the French Government to suspend the Conseil d’Etat’s judgment until it has ruled on the merits of the case.
The Vincent Lambert case has fuelled the ongoing debate on the end-of-life decision and the continuation of discussions instigated by the commitment made by the President of the Republic, during the presidential campaign, to legislating on the end of life. Where a person is in no condition to express his or her wishes, the end-of-life decision is a medical one, the consequence of which is a person’s death. The peculiarity of the issues related the end of life and the quickening pace of scientific, medical and social developments are seen in the demand for new rights to be secured. Consequently, the temptation to legislate is strong and the number of laws continues to grow. While it is far from certain that the issue requires further regulation with regard to existing law, consideration is being given to the amendment of the Law of 22 April 2005 and the legalisation of assisted dying in order to respond to the President’s commitment. The case of Vincent Lambert allows the current legislative framework to be compared with medical conditions, the judicial review of the medical decision on the end of life to be analysed, and then further consideration potentially to be given to the opportunity of legislating on the issue once again.
1. The patient’s legal position The Law of 22 April 2005 on patients’ rights and the end of life (10) established the legal framework in which the decision to limit, interrupt or not to undertake treatment may be taken. A number of procedures were laid down, which differ depending on a patient’s medical condition. There is a set of legal rules applicable to each medical condition. It is the patient’s ability to express his wishes that determines which procedure applies; in this respect, the 2005 Law follows the logic behind the Law of 4 March 2002 on patients’ rights and the quality of the French health system (11) which enshrines the patient’s right to consent to treatment and, therefore, his right also to refuse it. Where the patient is able to express his wishes, this must be respected even when he refuses the treatment and care on offer; in such circumstances, the doctor must inform the patient of the consequences of his choice (12). The law reinforces the procedural requirements incumbent on the doctor, as he must "make every effort to convince the patient to accept essential treatment"; he may, furthermore, call upon another member of the medical profession and the patient must above all reiterate his refusal to be treated. In any case, regardless of whether the patient is at end-of-life when he expresses his wishes, where the refusal of treatment puts the patient’s life in danger, the doctor must safeguard the dying person’s dignity and guarantee the quality of end-of-life by administering palliative care.
It is where the patient is in no condition to express his wishes at the time when the question of stopping treatment is under consideration that the doctor again has full decision-making power, without being legally bound by wishes other than his own. Where a patient is not at end of life, which is the case for Vincent Lambert, the decision to restrict or stop treatment, which is likely to put the patient’s life in danger, cannot be made without having followed the collegiate procedure and consulted the appointed person of trust, the family or relatives as well as any advance directives where these have been drafted (13). When the patient is at end-of-life, the law expressly frees the doctor of his obligation to provide treatment, providing that he may decide to limit or stop treatment that would amount to unreasonable obstinacy subject to a number of conditions, which are the same as those applicable when a patient was not at end of life when the decision to
32 stop treatment was taken: collegiate procedure and consultation of the appointed person of trust, the family or the relatives as well as any advance directives where these have been drafted (14).
Legally, Vincent Lambert is at the stage when the first decision to stop artificial nutrition and hydration resides with the patient who is not at end of life and is unable to express his wishes. The medical decision is based on Articles L. 1110-5 and L. 1111-4 (5) of the Code de la santé publique (Public Health Code). Article L. 1110-5 prohibits medical acts pursued on grounds of unreasonable obstinacy; the only legal duty incumbent on the doctor deciding to stop treatment is to safeguard the dying person’s dignity and guarantee the quality of end-of-life by administering palliative care. This provision is general in scope, and the procedure to be followed in order to make the decision depends on the patient’s medical condition.
2. Review by the administrative courts The law is quite clear on one point: it is the doctor, and the doctor alone, who bears full responsibility for the decision to stop treatment where the patient is not able to express his wishes. This does not imply that his decision goes completely unsupervised or that it is made in isolation: the legislature has set the legal framework in which the decision can be made. Where the attending physician is considering limiting, stopping or not starting treatment and the patient is unable to express his wishes, the doctor is legally bound to instigate the collegiate procedure in order to make the necessary decision. The decision must be reasoned, and a continuation of treatment as may amount to unreasonable obstinacy is clearly a legal ground allowing – even requiring – the doctor to halt treatment. From the moment when the doctor considers, "following discussions with the healthcare team where applicable and on the basis of the reasoned opinion of at least one doctor" (15), that continuing artificial nutrition and hydration amounts to unreasonable obstinacy, taking into account any wishes as the patient may have expressed beforehand and discussions with the relatives will allow the doctor to make a legally sound decision.
While there is nothing unusual in the courts reviewing medical decisions, the decision to stop treatment bringing about the patient’s death is such as to justify close judicial scrutiny. It is in those terms that the Conseil d’Etat recalled that it fell to it to ensure that the medical decision "had met the conditions laid down by law so that a decision may be made to end a treatment, the continuation of which would amount to unreasonable obstinacy”. It thus went on to check whether the collegiate procedure had been followed; whether the patient’s medical condition would bear the hallmarks of unreasonable obstinacy if treatment were to be continued; and whether the patient’s wishes and requisite opinions of third parties had been sought.
Following the collegiate procedure The Conseil d’Etat considered that the collegiate procedure had been followed and that the doctor treating Vincent Lambert had even gone beyond what was required under the code of ethics, having consulted six other doctors where the law requires only "the reasoned opinion of at least one doctor”. The Conseil did not have to rule on the issue raised by the first decision of 11 May 2013 concerning the concept of "family", who must be informed that the collegiate procedure has been instigated and whose opinion must be sought; this was because a new collegiate procedure had begun between the first two decisions.
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The hallmarks of unreasonable obstinacy The Conseil d’Etat also reviewed the legal classification of the patient’s medical condition. The doctor had taken the view that to continue artificial nutrition and hydration amounted to unreasonable obstinacy in light, on the one hand, of the patient’s state of health and, on the other hand, the certainty that the patient did not wish to live under such circumstances. The Conseil d’Etat reviewed these two aspects. In order for the continuation of treatment to be qualified as unreasonable obstinacy, French law has set down three alternative criteria, the meaning of which emerges from the parliamentary work on the subject and was clearly explained in the public rapporteur’s conclusions on the judgment of 14 February 2014 (16). These are: effectiveness of treatment; proportionality of treatment; and artificial life support. Effective treatment being understood as that which will cure a patient or improve his health, this criterion does not apply to artificial nutrition which compensates for a failing vital function but does not cure.
The relevant parliamentary debates serve to qualify as “disproportionate any treatment, the benefit of which is average compared to its aggressiveness or painfulness for the patient, even the suffering that it may entail” (17). As artificial nutrition and hydration are not aggressive techniques and do not appear to entail real suffering, this criterion does not apply either, except to consider that given the state of Vincent Lambert’s health, any treatment seems disproportionate. It was the artificial life support criterion that was applied in this case by the doctor and confirmed by the various experts. Artificial nutrition and hydration indisputably allow Vincent Lambert to be kept alive, but the crux of the issue is whether they have this "sole effect" (18) and therefore amount to unreasonable obstinacy or, on the contrary, they have another effect.
The administrative court in interlocutory proceedings on 16 January 2014, taking inspiration from Jean Léonetti’s report evaluating the Law of 22 April 2005 (19), ruled that the fact that treatment allowed the patient to maintain “a relationship” was sufficient grounds to dismiss the unreasonable obstinacy argument. However, the limits of unreasonable obstinacy are difficult to define and that one fact did not suffice in resolving the issue of unreasonable obstinacy, in the view of the Conseil d’Etat, taking inspiration from the same evaluation report, which concluded that "the law clearly condemns any watch-and-wait attitude, the consequence of which would be to allow individuals unable to express their wishes to waste away over many years, without a convincing argument particular to each case being constructed, formulated and communicated”. This is why the Conseil d’Etat preferred to stay proceedings on 14 February 2014 while another expert opinion was sought. Once this was done, and in light of the results thereof, the Conseil considered on 24 June 2014 that the expert opinions confirmed the attending physician’s analysis of the patient’s health, and in particular the fact that his brain damage was irreversible, his consciousness was deteriorating, his clinical prognosis was poor and his response to treatment could not be interpreted.
Taking account of the patient’s wishes From the moment when the attending physician considered that to continue artificial nutrition and hydration amounted to unreasonable obstinacy, the collegiate authority - together with the consideration of the wishes the patient would have expressed and discussions with the relatives - allowed him to make his decision.
Where the patient is unable to express his wishes at the time when the decision to stop treatment must be made, as in the present case, the attending physician must establish whether the patient
34 has expressed those wishes previously. The Law of 22 April 2005 laid down various possibilities for persons in such situations. The patient may have expressed his wishes by drawing up an advance directive or by appointing a person of trust to whom he may have confided his wishes.
Advance directives (20) are instructions given in advance by persons in good health or who are affected by old age or a terminal illness, on the action to take in the event that they find themselves unable to express their wishes. This practice has developed in a number of Western countries, but the indicative or binding value of such directives varies. The choice made by the French legislature is to confer purely indicative value; it is even stipulated that an advance directive must be drawn up at least three years before the patient’s unconscious state in order that the attending physician "take it into account”. The various reports submitted in 2014 highlight the confusion surrounding the concept of advance directives, founded on a lack of knowledge on two counts: people (be they healthy or ill) often do not know about the measure and the very existence of a directive is not always known insofar as provisions on keeping and publicising advance directives are phrased in rather vague terms (21). Furthermore, the purely indicative nature of advance directives may undermine the measure and may not incite people to draft their own. It is for that reason that the most recent report from the CCNE, published in October 2014, recommends that directives be made binding (22).
The law also provides that the patient may appoint a person of trust to whom they may have confided their wishes as to the end of their life for the time when they may no longer be able to express them (23). The law states that the opinion of the person of trust prevails over any other non-medical opinion, thus recalling the principle under which the decision ultimately falls to the attending physician. When the patient’s wishes have thus been expressed in this formal framework, the law simply requires that the attending physician take these into account when he makes his decision: they constitute an element that will be taken into consideration but the physician will in no way be bound by them. The only duty that the formal expression of the patient’s wishes may imply is an ethical one: the physician must initiate the collegiate procedure (24).
Outside this formal framework, the law does not prohibit the patient’s wishes being taken into account in another form. The code of ethics states that the physician must take into consideration “the wishes that the patient may have expressed previously, in particular [therefore not only] in advance directives”. This issue was raised before the administrative court in the Vincent Lambert case, the administrative tribunal having refused, in its order of 16 January 2014, to take into account the wishes that Lambert had expressed before his accident. The Conseil d’Etat overturned this point and went further in considering that the physician must "pay special attention to the wishes that the patient may, where applicable, have expressed previously, whatever the form and meaning” (25). Thus, in terms of the order of importance to be given to the opinions taken into consideration, it must be understood that the patient’s wishes prevail over those of the family or the relatives. Where those wishes have been expressed outside the formal framework provided by law, the attending physician checks that they have been expressed clearly, in full knowledge of the facts and with conviction. This is how, in its decision of 24 June 2014, the Conseil d’Etat noted that the patient and his wife were nurses and were therefore well versed with the issue of the end of life, that Vincent Lambert had "clearly and a number of times" expressed the wish not to be kept on life support in the event that he should find himself in a state of high dependency, that the content of those wishes had been accurately reported by his wife, confirmed by one of his brothers
35 and was not disputed by the parents, who nevertheless opposed the termination of treatment. In such circumstances, not only must the wishes expressed be taken into consideration by the physician, but he must also pay special attention thereto.
Discussions with the family and/or relatives It was the problem posed by the very notion of “family” whose opinion must be sought, and by that of "relatives" as regards the observance of the collegiate procedure (mentioned above), that emerged as the focus for discussion from the media’s point of view. In making the relevant medical decision, where the patient is no longer able to express his wishes, the law requires the physician to consult either the person of trust, or the family or, failing that, one of the patient’s relatives (26).
In the initial order, the administrative tribunal considered that it did not suffice that the deciding physician should involve one or several members of the family only and that he must, as far as possible, seek the opinion of each family member – or at least those closest to the patient. The tribunal’s decision seems unfortunately to complicate a situation for the physician that is already highly complex on the facts, particularly where the family members do not share the same opinion on the end of the patient’s life. To which circle should the consultation be extended? And which opinion takes priority where there is disagreement? (27)
In the absence of any indication as to the persons to be consulted, should the notions of family and relatives be understood within the meaning of Article L. 1231-1 of the Code de la santé publique (Public Health Code) on the removal of organs from living persons? Under the terms of the latter provision, the donation may only proceed in the direct therapeutic interests of the recipient, and the law states that the donor must have capacity as the father or mother of the recipient, before enumerating a list of persons likely, by way of derogation, to have capacity as donor: sons or daughters, grandparents, uncles or aunts, first cousins, together with the partner of the patient’s father or mother. The law also adds that the donor may be “any person able to provide proof of communal life with the recipient for a period of at least two years, as well as any person able to prove a close and stable bond of affection with the recipient for a period of at least two years". The tribunal’s decision gave no guidance and Vincent Lambert’s attending physician had to initiate another collegiate procedure, involving the parents as well as the patient’s wife and siblings. However, such an approach does not seem appropriate as, transposed to the end-of-life decision to stop treatment, on principle the patient’s parents would have to be consulted first, while the other family members or relatives would only be consulted by way of exception. The administrative court ruling on the case of Vincent Lambert gave priority to the those persons who had remained close to the patient, requiring the physician to "strive to achieve a consensus" (28) and clearly stating that although those opinions had to be taken into consideration by the physician, the fact that the persons consulted did not hold a unanimous view as to the direction of the medical decision to be made would not constitute an obstacle to that decision (29).
3. Is further legislation needed? Would a new law improve the current legal measures? The issue of a new law on the end of life is regularly raised and, just as regularly, proposals are tabled but go no further (30): proposal on the right to end life with dignity (31), proposal to guarantee patients at end of life the right to die with dignity (32), proposal on the free and informed choice of medical assistance for a dignified end of life (33). The process of reflection on the amendment of the Law of 22 April 2005 and the
36 legalisation of active assistance in dying supports these proposals and is ongoing. It is a response to President François Hollande’s commitment during the 2012 electoral campaign, where he stated that, if elected, he would propose that "any person of legal age, at an advanced or terminal stage of an incurable illness, causing unbearable physical or psychological suffering, under clear and strict circumstances, benefit from medical assistance in ending their life with dignity” (34). In line with that commitment, the President set up a mission entrusted to Professor Sicard; since then, other consultations have taken place and given rise to the adoption of reports, texts or instructions (35). The reports unanimously acknowledge that the Law of 22 April 2005 is apparently "an unknown and untaken path" (36) but which nevertheless responds to the majority of situations, thus dismissing the need for a new law; only the Conférence des citoyens (citizens’ conference) declared itself in favour of an amendment of the 2005 Law. However, the most recent report from the CCNE on the end of life accepts the use of “deep sedation” (37).
The law as it stands allows treatment or care to be limited, stopped or not begun at all, whether the patient is at end of life or not, when the patient requests it or, when they are no longer able to express themselves, by following an enhanced procedure. The current legislative framework is therefore sufficient to respond to Vincent Lambert’s situation, and all the more so given that his continued treatment amounts to unreasonable obstinacy according to the physicians on the one hand, and the Conseil d’Etat on the other. Obviously the fact that he did not draw up any advance directives or appoint a person of trust has undoubtedly made the decision-making process more complex.
According to the various reports and opinions, the text of the law has been poorly circulated, poorly explained and misunderstood by all, particularly as regards the procedure for stopping or limiting treatment for patients at end of life. The merely indicative nature of advance directives is unanimously singled out, but the reports are ultimately fairly reluctant to make them binding (38), as such instructions can lose their meaning between the time when they are drawn up (when the person is in good health) and the time when the person is ill. The only constraints that may result from a directive expressing the wish not to be artificially kept alive could be that of initiating a collegiate discussion and to raise the issue of sedating the patient to alleviate suffering. The reports all decry the absence of any real culture of collegiality; the latter ought to be applied more widely and thoroughly for any decision involving the end of life, and be opened systematically to the patient or, failing that, to the person of trust, the family or relatives. Again, the Vincent Lambert case reveals the difficulties encountered in implementing a real process of collective deliberation for any decision involving the end of life.
In a more limited way, the law provides for situations in which the attending physician may take positive action, i.e. administer a substance, the effect of which would be to bring the patient’s life to an end. The only scenario is that of a patient who is at end of life and suffering; the attending physician may then administer a product intended to alleviate pain, even where the secondary effect of that treatment is to shorten the patient’s life (39). However, the qualifications remain extremely difficult to establish and the various attempts to distinguish legal medical interventions from criminal acts – as shown by a circular from the French Ministry of Justice dated 20 October 2011 (40) published the day after media coverage of the Bonnemaison case – struggle to account for the variety of situations and the distinction between the intention to alleviate suffering and the intention to kill within the meaning of Article 221-5 of the Code pénal (Penal Code) (41). The terminological subtleties – see in particular the difference between le traitement qui peut avoir
37 pour effet secondaire d’abréger la vie (“treatment which may have the secondary effect of shortening life”) under Article 1110-5 of the Code de la santé publique and la possibilité d’un geste accompli par un médecin, accélérant la survenue de la mort ("the possibility of an action performed by a doctor, accelerating death") considered in the Sicard Report (42) – are but a reflection of a development that co-operation between physicians and judges can make easier.
In any event, the possibility of a "treatment which may have the secondary effect of shortening life" does not concern patients who are not at end of life or those patients, even at end of life, who are not suffering.
The reports have considered exceptional situations not taken into account by current legislation: patients suffering from a serious and incurable illness, who are not at end of life yet wish to accelerate their death; patients who are unable to express their wishes, are not at end of life, have never formulated their wishes as to their death and for whom treatment does not amount to unreasonable obstinacy; or patients at end of life, who are not suffering, who refuse any and all treatment and ask to die. It is in respect of these situations that the issue arises as to “terminal sedation for distress" (43) or a real "right to sedation” (44), assisted suicide or even a euthanasia exception. The United Kingdom Supreme Court gave a decision on 25 June 2014 on three separate cases that were similar on the facts: each of the men concerned suffered “such a distressing and undignified life that he had long wished to end it but could not do so himself because of his acute physical incapacity” (45). Each claimed a right to “assisted suicide” and all three argued that English law on assisted suicide, and in particular Section 2 of the Suicide Act 1961 on criminal liability for complicity in another’s suicide, infringed their fundamental human rights, particularly Articles 2 and 8 of the ECHR. In a 132-page decision, the Supreme Court (exceptionally composed of nine law lords) dismissed the appeals brought by the three appellants and ruled that national legislation (in the context of the State’s margin of appreciation, as acknowledged by the ECHR) still prohibited assisted suicide whatever the circumstances and that it was for Parliament to decide, it being “institutionally inappropriate” for the Court to do so. In this sense, the Assisted Dying Bill is currently at the committee stage.
In France, a quick comparison between the President’s commitment and such situations shows a lack of political will to resolve the difficulties raised by these exceptional cases. The President’s commitment was to propose that “any person of legal age, at an advanced or terminal stage of an incurable illness, causing unbearable physical or psychological suffering, under clear and strict circumstances, benefit from medical assistance in ending their life with dignity” (46). The scope is voluntarily limited to persons of legal age at end of life and suffering. The question put before the Comité consultatif national d’éthique in 2013, in line with that same political commitment, is doubtless even more restrictive: "By what procedures and under what strict conditions can a conscious and independent patient, suffering from a serious and incurable illness, be permitted to be supported and assisted in his wish to end his own life?” (47). The legalisation of assisted suicide considered through that question would only benefit conscious and independent patients at end of life and physically capable of administering the lethal substance to themselves, therefore excluding requests made by third parties for persons who are no longer able to express themselves, persons who are not at end of life and also excluding the scenario of a lethal act administered by a third party.
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Notes: (1) See ECHR, Pretty v United Kingdom, Application n° 2346/02, 29 April 2002 (2) After extended assisted dying to children, Belgium has seen a surge in the number of problematic cases. In particular, a second inmate (imprisoned for nearly 30 years in the closed psychiatric wing of a prison near Antwerp, for the rape and murder of a 19 year-old student) has asked to be euthanized, a request granted by the Belgian courts on 14 September 2014. (3) This is the case particularly in Scotland, where the Parliamentary Justice Committee is preparing to debate a bill allowing assisted suicide from the age of 16 for terminally ill patients or suffering from serious illnesses with low life expectancies. In the United Kingdom, the Assisted Dying Bill ([HL] 2014-2015) comes over ten years after the decision in Pretty. In Germany, however, a bill put forward by the Christian Democrat Union should soon be put before the Bundestag, prohibiting organised assistance for suicide and thus fill what seems to be a legislative void and allows charities to offer lethal substances for patients to inject themselves. (4) Translator’s note: Article L. 521-2 reads: Where such an application had been made, the urgency of which is justified, the court in interlocutory proceedings may order any and all measures necessary to safeguard a fundamental freedom that a public body or a private body entrusted with the operation of a public service may have seriously and manifestly unlawfully violated in the exercise of one of its powers. The court shall give a ruling within forty-eight hours. (5) The right to life has already been described as a fundamental freedom within the meaning of Article L. 521-2 of the Code de justice administrative (Administrative Justice Code): CE, Sect., 16 November 2011, Ville de Paris et Société d’Economie Mixte PariSeine, n°s 353172 and 353173. (6) TA Châlons-en-Champagne, 11 May 2013, n° 1300740. (7) TA Châlons-en-Champagne, 16 January 2014, M. Pierre Lambert et autres, n° 1400029. (8) CE, 16 August 2002, Mme Valérie Feuillatey et Mme Isabelle Feuillatey, n° 249552. (9) CE, Ass., 14 February 2014, Mme Lambert et autres, n°s 375081, 375090 and 375091. (10) Loi n° 2005-370 du 22 April 2005 relative aux droits des malades et à la fin de vie (Law n° 2005-370 of 22 April 2005 on patients’ rights and the end of life), JORF n°95 23 April 2005 page 7089. (11) Law n° 2002-303, JORF 5 March 2002, p. 4118; Article L. 1111-4 CSP. (12) Article L. 1111-4 para. 2 and L. 1111-10 CSP. (13) Article L. 1111-4 para. 5 CSP. (14) Article L. 1111-13 CSP. (15) Article L. 4127-37 CSP. (16) Rémi Keller on CE, Ass., 14 February 2014, Mme Lambert et autres, n°s 375081, 375090 and 375091, RFDA 2014, p. 255. (17) See conclusions of Rémi Keller, ibid. (18) Article L. 1110-5 CSP. (19) Rapport d’évaluation de la loi n° 2005-370 du 22 avril 2005 relative aux droits des malades et à la fin de vie (Evaluation Report on Law n° 2005-370 of 22 April 2005 on patients’ rights and the end of life), 28 November 2008, AN n° 1287, p. 52. (20) Article L. 1111-11 CSP. (21) Décret n°2006-119 du 6 février 2006 relatif aux directives anticipées prévues par la loi n° 2005-370 du 22 avril 2005 relative aux droits des malades et à la fin de vie et modifiant le code de la santé publique (dispositions réglementaires) (Decree n°2006-119 of 6 February
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2006 on advance directives provided by Law n° 2005-370 of 22 April 2005 on patients’ rights and the end of life and amending the Code de la santé publique (regulatory provisions); Articles R. 1111-17 to R. 1111-20 CSP. (22) CCNE Report, 23 October 2014, on the end of life. Directives must, according to Professor Aubry, a member of the CCNE, embody “the patient’s thoughts on his future”. (23) Article L. 1111-12 CSP. (24) Article R. 4127-37 CSP. (25) CE, Ass., 24 June 2014, para. 17. (26) Article L. 1111-4 para. 4 CSP and L. 1111-13 CSP in particular. (27) Questions arise in the same way regarding funeral arrangements, or the choice of burial for the urn containing the deceased’s ashes (see, on the last point Cass. 1ère civ. 30 April 2014, n° 13-18.951, which found in favour of the mother, sister and son of the deceased against the spouse). (28) CE, Ass., 24 June 2014, para. 17. (29) CE, Ass., 24 June 2014, para. 31. (30) Proposition de loi relative au droit de finir sa vie dans la dignité (Proposal on the right to end one’s life with dignity), AN n° 1960, 7 October 2009, rejected at first reading by the National Assembly on 24 November 2009, TA n° 361. (31) Proposition de loi, visant à renforcer les droits des patients en fin de vie (Proposal aiming to enhance the rights of patients at end of life), AN n° 754, 27 February 2013. (32) Proposition de loi visant à assurer aux patients en fin de vie le droit de mourir dans la dignité (Proposal aiming to guarantee patients at end of life the right to die with dignity), AN n° 1140, 13 June 2013. (33) Proposition de loi relative au choix libre et éclairé d'une assistance médicalisée pour une fin de vie digne (Proposal on the free and informed choice for medical assistance for a dignified end of life), Sénat n° 182, 2 December 2013. (34) Proposal 21 of presidential candidate François Hollande, 2012. (35) See in particular « Penser solidairement la fin de vie », the Report of the Commission de réflexion sur la fin de vie en France, dite « Commission Sicard » (Sicard Report), 18 December 2012; « Fin de vie, "Assistance à mourir" », by the Conseil national de l’ordre des médecins, 8 February 2013; Report from the Comité consultatif national d’éthique (CCNE Report), June 2013; Opinion of the Conférence de citoyens, 14 December 2013. (36) Commission de réflexion sur la fin de vie en France, dite « Commission Sicard » « Penser solidairement la fin de vie » (Sicard Report), 18 December 2012, p. 42. (37) CCNE Report, 23 October 2014. (38) Except the CCNE Report of 23 October 2014. (39) Article L. 1110-5, final para.. 40) Circ. 20 octobre 2011, concernant la mise en œuvre de la loi du 22 avril 2005 relative aux droits des malades et à la fin de vie et de traitement judiciaire des affaires dites de « fin de vie » (Circular of 20 October 2011, on the implementation of the Law of 22 April 2005 on patients’ rights and the end of life and the judicial treatment of "end of life" cases), NOR : JUSD1128836 : BO min. justice n° 2011-10, 31 October 2011. (41) The Pyrénées-Atlantiques Assize Court, ruling at first instance on 25 June 2014, was not convinced of Nicolas Bonnemaison’s guilt in making attempts on the life of seven patients through the use or administration of substances likely to cause death as it had not been proven that, in proceeding with the injections, he had intended to kill within the meaning of Article 221-5 of the French Penal Code.
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(42) Sicard Report, p. 93. See also the Opinion of the CCNE (para. 4) which envisages the possibility of implementing a euthanasia exception under the supervision of the French judicial authorities. (43) Sicard Report and CCNE Report. (44) CCNE and Conférence des citoyens. (45) R (on the application of Nicklinson and another) (Appellants) v Ministry of Justice (Respondent); R (on the application of AM) (AP) (Respondent) v The Director of Public Prosecutions (Appellant); R (on the application of AM) (AP) (Respondent) v The Director of Public Prosecutions (Appellant) [2014] EWCA Civ 961 (46) Proposal 21 of presidential candidate François Hollande, 2012. (47) CCNE Report, June 2013.
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MONTESQUIEU LAW REVIEW Issue No.1 January 2015
Civil law – family law:
Marriage and the prohibition on incest Jean Hauser Emeritus Professor of Civil Law, University of Bordeaux (CERFAP, Faculty of Law)
The prohibition on incest is a constant of humanity long emphasised by ethnology and sociology. However, contrary to what may be thought, it is susceptible to nuances and distinctions within the various marriage laws in existence, quite aside from those differences connected to the civilisations in question (1).
Under European law, the prohibition has never been limited solely to biological incest (be it in the direct or the collateral line), but has often been extended to what French doctrine has termed the sociological prohibition, i.e. between persons related by affinity. Thus the French Code civil imposes a prohibition on remarriage between son-in-law and mother-in-law, daughter-in-law and father-in-law, and even between sister-in-law and brother-in-law. In the absence of biological grounds, the risk of social scandal has often been argued but that justification has diminished considerably.
In reality, fine distinctions have always been admitted; in the modern era, some prohibitions have even disappeared altogether. Firstly, a distinction has often been made depending on whether the marriage which yielded the affinity has been dissolved by death or divorce. Where the latter has raised fears of foul play on the part of one person in order to bring about the divorce of his or her son, daughter, brother or sister, the former scenario is considered more acceptable and remarriage may emerge as a happy solution for the family.
Furthermore, these social prohibitions have been diminished in French law either by the disappearance of such cases, or by the admission of dispensations. We could be permitted to wonder whether the non-biological prohibitions on marriage continue to be truly justified when the conditions of marriage in general, together with its social role, have been considerably relaxed.
In French law, there remains a prohibition in the direct line between all ascendants and descendants and persons related by affinity in the same line (Civil Code, Article 161). However, if the marriage producing the affinity has been dissolved by the death of the spouse producing the affinity in question, it is possible to obtain a dispensation from the President of the Republic. There is no dispensation available where the marriage has been dissolved by divorce.
In a case that came before the Court of Cassation in 2013 (2), two people married in 1969. A daughter was born in 1973 before the marriage was dissolved by divorce in 1980. The woman then married her ex-husband’s father – her former father-in-law – in 1983 and this without any objection on the part of the French état civil français (civil status registry). The second husband, who died in 2005, named his wife as sole legatee. The first husband subsequently invoked the nullity of the marriage contract entered into by his father in 1983, arguing on grounds of moral and successorial interests.
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The answer provided by statute left no room for doubt: the abovementioned Article 161 of the Civil Code absolutely prohibits marriages between relatives by affinity and the relevant dispensation may only come into play in the event of death, not divorce.
It is generally admitted that actions for the nullity of a marriage - absolute nullity - is not subject to limitation. In application of those rules, the Court of Appeal at Aix-en-Provence, in its decision of 21st June 2012, therefore declared null and void the marriage celebrated in 1983. That decision was subsequently overturned.
Several years prior to the above, the issue of the conventionality of such a prohibition was brought before the European Court of Human Rights. In its decision in B and L v United Kingdom (decision & just settlement) Application no. 36536, 13 September 2005, the Court ruled in similar circumstances that the United Kingdom was in breach of Article 12 ECHR on the right to marry, though this provides that the exercise of this right must be in accordance with national laws. The scope of the decision, however, remained dubious. Indeed, the Court had above all stressed the cumbersome and costly nature of a possible dispensation, where an application had to be made to the UK Parliament itself, without really ruling on the very principle of the prohibition in the case of divorce.
The French Court of Cassation therefore remained free to assess French law in principle. Contrary to all expectations, it overturned the decision of the lower court at Aix-en-Provence when the law itself was perfectly clear, essentially relying on Article 8 ECHR on the right to respect for private and family life. The court held that “the nullity declaration made in relation to the marriage of Raymond Y… to Mrs Denise X… was, in relation to the latter, such that it constituted an unjustified interference in the exercise of her right to respect for private life when the union, celebrated without objection, had lasted for over twenty years…”. Having been handed down without leave to appeal, the decision of the Court of Cassation was final.
The much-commented decision has consequences on two fronts.
On the one hand, the system of social prohibitions on marriage is legally in question and, bearing in mind the above, one might wonder whether the decision is a call for legislative reform. Indeed, it may be argued that the absolute nature of the prohibition, even limited to the case of divorce, barely corresponds to the reality of modern times. The ease with which a divorce may be obtained; the fact that it is now an integral part of the prevailing mores in all European countries; the complexity of stepfamilies; increasing human longevity which can lead to a multiplication in the number of stepfamily scenarios; all militate in favour of a change in legislation. If we accept the argument, we can envisage two possible avenues for such a change: simply abolishing the prohibition altogether, or extending the possibility of obtaining a dispensation to all scenarios. In the latter case, and in view of the decision discussed above, UK law doubtless ought to make provision for a system other than applications to Parliament. As for French law, it too ought to settle the issue of the potential right of appeal against a decision of the President of the Republic: there is no clear indication as to whether there is such a right; and, if there is, whether it would fall within the remit of either a judicial or an administrative jurisdiction.
However, while the substance of the decision has barely been criticised (the facts of the case being such as to inspire leniency), it has been the topic of lively debate as regards the sources of French
43 law. French civil law is legalistic and the court does not have the authority to set aside a clear, precise provision, its role being one of interpreting obscure or insufficient statutes (Civil Code, Article 4).
Article 5 of the Civil Code expressly provides that: "[j]udges are hereby forbidden from ruling by way of general and regulatory provisions on cases brought before them”. In this instance, the Court has drafted a factual decision that carefully avoids any reproach as to a breach of Article 5, but there then arises a further sizeable obstacle in the form of Article L.411-2, sub-paragraph 2 of the Code de procédure civile (French civil procedure code): “[t]he Court of Cassation shall not rule on the substance of cases, unless otherwise provided by law”. The Court of Cassation has quite evidently based its decision on the substance of the case here.
Aware as it was of appearing to spark a revolution in terms of the sources of French law, and following a procedure that it otherwise rarely employs, the Court issued a communiqué along with its decision, stressing the fact that its ruling did not constitute a landmark decision and that the rules contained in the Civil Code were still applicable. It may also be accepted that, given the lengthy grounds given on the basis of Article 8 ECHR, the Court applied the Convention directly to domestic law. While this procedure has been employed for the purposes of interpreting particular legal provisions or limiting their scope, it has never been used purely and simply to set aside a statute; the scope of such an action could be considerable and well beyond the bounds of the matter in question.
Thus the social impediments to marriage, which could well be viewed as relics of the past, have led to UK and French law being called very specifically into question. Sometimes smaller issues reveal much bigger ones.
Notes: (1) C. Levi-Strauss (1948) Les structures élémentaires de la parenté : la prohibition de l’inceste est-elle naturelle? Editions Mouton, Paris, p.28-29 (2) Decision n°12-26066, Court of Cassation, First Civil Chamber, 4th December 2013
Judgment no.1389 of 4 December 2013 Case no. 12-26.066 First Civil Chamber By a judgment handed down on 4 December, 2013, the First Civil Division of the Court of Cassation, has ruled that the nullity declaration issued in respect of the marriage between a father-in-law and his daughter-in-law, the latter having divorced his son, constitutes in relation to the latter an unjustified interference in the exercise of her right to respect for private life when the union; celebrated without objection, had lasted for over twenty years.
The factual circumstances played a determining role in this case, where the annulment of the marriage had been requested and granted by the court of first instance on the basis of Article 161 of the Civil Code which, in particular prohibits a marriage between a father-in-law and his daughter-in-law where the union between the latter and the son of the former has been dissolved by divorce. The husband’s son had brought the nullity action 22 years after the marriage had been celebrated, following the death of his father, who had named his wife as sole legatee.
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In countering the son’s claim, the widow argued that there was a breach of the substance of the right to marry guaranteed under Article 12 of the Convention for the Protection of Human Rights and Fundamental Freedoms, basing her argument on a decision handed down by the European Court of Human Rights on 13 September 2005, concerning the proposed marriage between persons related by affinity claiming many years of cohabitation.
The court of first instance entertained the nullity application, ruling that the prohibition on marriage between a father-in-law and his daughter-in-law, as provided under Article 161 of the Civil Code, was justified insofar as it achieved the legitimate purposes of preserving family homogeneity and, in the present case, the presence of a surviving spouse necessarily brought about prejudicial successorial consequences for this sole heir who therefore had an investment in the annulment.
The Court of Cassation has ruled that the findings of the court of first instance were sufficient to infer that the right to respect for private and family life, within the meaning of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, had of necessity to result in the in the dismissal of the application for the annulment of the marriage, celebrated without any objection being raised by the Public Prosecutor when the civil status papers produced by the future spouses necessarily revealed the cause of the obstacle to the marriage.
Owing to its basis, the scope of this decision is limited to the case in point. The principle of the prohibition on marriage between persons related by affinity has not been overturned.
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MONTESQUIEU LAW REVIEW Issue No.1 January 2015 Constitutional law:
Recent proposed amendments to the Charter for the Environment Florian Savonitto, Lecturer, CERCCLE, University of Bordeaux
Almost ten years on since its promulgation, France’s Charter for the Environment continues to surprise (1). Its adoption on 1 March 2005 on the initiative of the then President of the Republic, Jacques Chirac, was just one such surprise (2), even when the idea of extending the corpus of French constitutional law to include the environment was not new (3). Another surprise was its immediate application by the constitutional (4), administrative (5) and criminal (6) courts, as compared with the contentious fate of other declarations under French law to which the Preamble to the 1958 Constitution refers, i.e. the Declaration of the Rights of Man and of the Citizen and the Preamble to the 1946 Constitution. A third surprise lays in the situation whereby the nature of some of the Charter’s provisions remains as yet undecided, almost ten years after the promulgation of a law composed of ten articles preceded by a Preamble of seven short paragraphs.
The uniqueness of the Charter on the Environment is well established. It is unique, firstly, in terms of its ambition. Contained as it is within the Preamble to the 1958 Constitution, it is intended to become the 21st-century equivalent of the very declarations of rights which the Charter features alongside, namely the 1789 Declaration of the Rights of Man and of the Citizen, together with the Preamble to the 1946 Constitution. Secondly, the Charter is also unique in terms of the context in which it was drafted. Unlike the adoption of other French declarations of rights, the 2005 constitutional amendment was quite removed from any change of regime such as the French Revolution of 1789 or the advent of the Fourth Republic in 1946. Thirdly, it is unique in terms of the drafting process, which attached particular importance to the involvement of civil society. Prior to the parliamentary debates and the adoption of the constitutional law by the Congress of the French Parliament, a national consultation and regional workshops were conducted and followed by the Yves Coppens Commission (named after the palaeontologist chairing it). Composed primarily of representatives from employers’ organisations, trade unions, agricultural and consumer groups, together with qualified individuals from the fields of the social sciences, medicine and biology, the Commission was tasked with producing a report which served as the basis for the Government’s draft amendment. Finally, the Charter is unique in terms of its content. Indeed, this was the first time that a State had armed itself with a constitutional law devoted entirely to the environment. The purpose of this constitutionalisation was to respond "to the gradual assertion, in the second half of the previous century, of so-called "third-generation" rights, environmental rights, consumer rights, citizens’ rights, etc.” (7).
Thus the 2004 Charter recognises, under Article 1, "the right to live in a balanced environment which shows due respect for health"; and, under Article 7, "the right […] to have access to information pertaining to the environment in the possession of public bodies and to participate in the public decision-making process likely to affect the environment”. While it is no longer considered “fashionable”, the Charter also specifies a number of duties: the duty to participate in preserving and enhancing the environment (Article 2); to prevent damage that anyone may cause to the environment or, failing that, limit the consequences thereof (Article 3); to contribute to the
46 reparation of the damage that anyone may cause to the environment (Article 4). Finally, aside from the requirement that public policies promote sustainable development (Article 6), it is incumbent upon public authorities, in applying the precautionary principle and in their respective fields of operation, to implement risk assessment procedures and adopt temporary measures commensurate to the risk involved in order to preclude the occurrence of any damage, albeit unpredictable in the current state of scientific knowledge, which may seriously and irreversibly harm the environment (Article 5).
Nevertheless the Charter’s uniqueness must not be overstated. It is not a revolutionary legal document. It is not “as innovative in its field as were some landmark, historic declarations in the field of individual rights and civil liberties" (8). Indeed, on the one hand, “a comparison with foreign States shows France to be a latecomer to the constitutionalisation of environmental law" (9). On the other hand, the Charter for the Environment has not had the same influence in the world as the other two French declarations of rights. Finally, the Charter’s content is not particularly innovative. Firstly, "since the 1970s, international law and European Union law have broadly recognised a large part of the general rights and principles of environmental law that are enshrined by the Charter”. Secondly, some principles or rights laid down by the Charter already featured in the Code de l’environnement or Environmental Code, although the phrasing differs. This is the case, for instance, of the right to live in a balanced environment, the precautionary principle, the right of access to information and to participate in environmental matters under Articles L.110-1 and L.110-2 of the Code de l’environnement.
Today, the surprising aspect of the Charter for the Environment is the number of proposals to amend it. And these are themselves surprising for several reasons: firstly, the proposed constitutional bills are put forward as much by Deputies in the National Assembly as they are by Senators; secondly, the proposed bills were all tabled very recently, whereas the members of France’s Parliament had not previously shown the slightest inclination to make any changes to the Charter; thirdly, they all concern the same provision, namely the precautionary principle. Some aim to de-constitutionalise it (10), while others provide that the scope of the principle is to be defined (entrusting Parliament with the task of establishing the conditions for its application (11)), while still others aim to balance the principle out with the addition of a new principle, the innovation principle – although the term already features in the text of the Charter – in order to compensate for the excesses that the precautionary principle has allegedly brought about (12). It is surprising that the principle should be at the heart of all of these challenges: on the one hand, it drew the attention of all members of Parliament during the debates on the Charter in 2004; on the other hand, it was the members of Parliament themselves who carved the principle into the constitutional marble when the Coppens Commission, which was behind the constituent procedure, had itself refused to do so, precisely because it could not reach a consensus (13); finally, while the definition of the conditions of application and limits of the principle was not referred back to the legislature (unlike other rights and freedoms laid down in the Charter), the phrasing of the principle is quite precise (14).
Nonetheless, while Parliament’s challenge to the precautionary principle is astonishing compared with the debates in 2004, it is only half a surprise in light of the relevant reports. According to the report from the Commission pour la libération de la croissance française (France’s Commission for Growth) chaired by Jacques Attali, the constitutionalisation of the principle is allegedly based on a petrified notion of reality and thus is an obstacle to growth; the report recommends that the
47 principle should either be repealed or, at the very least, its scope be clearly defined in an amendment (15). Equally, Le Pacte pour la compétitivité de l’industrie (16), written by Louis Gallois, and an official report titled Pour un Big-Bang économique fiscal et culturel (17) by "Génération Entreprise-Entrepreneurs associés", an industry lobby group, both challenge broad, even abusive, interpretations (without mentioning which) of the precautionary principle which prevent technical progress and paralyse research. Also, the precautionary principle faced more criticism when the Innovation 2030 Commission "proposes to acknowledge at the highest level the existence of an innovation principle" (18) in order to redress the balance of its effects, or when the Académie des sciences morales et politiques suggested that the rights and duties of citizens in the protection of the environment and its conservation for future generations are exercised under the conditions laid down by the law (19). Finally, further to an information report highlighting the issues surround the application of the precautionary principle and the concerns raised (20), the National Assembly adopted a draft resolution on 1 February 2012 aiming to establish guidelines for the implementation of the precautionary principle with a view to defining the intentions of both the legislature and Parliament and thus take the monopoly away from case law (21).
The recent proposed constitutional laws are therefore the result of the constant and growing challenges to the precautionary principle laid down under Article 5 of the Charter. The recurring criticisms of the excessive interpretations of the principle would justify the amendment of the Charter, on condition that both Houses of Parliament decide so, as well as the French people, who would necessarily be consulted in view of the author of the initiative (22). This constitutional review is not welcome in light of the doctrine of the Veil Committee, developed in 2008 during the review undertaken of the Preamble to the 1958 Constitution (23). The Comité de réflexion sur le Préambule de la Constitution (Committee appointed to review the Preamble to the Constitution) – generally known to as the Veil Committee after the chairwoman, Simone Veil – was tasked by the then President, Nicolas Sarkozy, to examine "whether and to what extent the fundamental rights acknowledged by the Constitution must be supplemented by new principles” (24). However, before publishing its findings, the Committee attempted to develop a doctrine on its idea "of the constituent power’s role in fundamental rights" (25). This methodological preliminary led it to establish four principles, the first of which are "to respect France’s constitutional heritage” and “to guarantee the inviolability of recent constitutional texts”.
The Charter for the Environment is not yet ten years old. Furthermore, it is mentioned in the Preamble to the 1958 Constitution alongside other French declarations of rights. Consequently, owing to its relative “youth”, any proposed amendment surely constitutes a correction of recent constitutional texts (I) and, in view of its position in the Constitution, a challenge to France’s constitutional heritage (II). The doctrine is therefore an invitation to Parliament to bring an end to the current procedure to amend the Charter for the Environment, owing to the questionable subject to which Parliament’s proposals relate.
I - A correction of recent constitutional texts
Although the Constitution is no longer "that work etched in bronze which, as in ancient Rome, it would suffice to admire and respect" (26), its stability remains essential. Indeed, “the instability of the Constitution is harmful to maintaining constitutionalism” (27). Between 1992 and 2008, 19 amendments were made to the Constitution; bearing in mind that the current President of the Republic also intends to alter it before the end of his term of office, this will bring the total
48 number of amendments under the Fifth Republic to 25. Furthermore, some have been quite significant. For example, the amendment of 23 July 2008 changed or added no fewer than 47 articles (28). An umpteenth amendment would surely add further instability to the Constitution.
Above all, according to the Veil Committee, when it comes to “setting aside one of the constitutionalized norms, qualifying it, supplementing it, even expressing it differently, the answer could only ever be in the negative (…) the experiment is too recent for any potentially corrective lessons to be drawn from it” (29). While some members of Parliament refuse to undertake any corrections (30), where it is a matter of deconstitutionalising the precautionary principle, to balance it out or even task the legislature with defining it, the proposals surely aim to correct the work done by the constituent power in 2004. Some members of Parliament clearly acknowledge as much when they admit either that the proposed bill proceeds with a “substantial redrafting of the Charter” (31) or that what it produces "is not perfect” (32), or that “the abolition of the precautionary principle’s direct effect could be perceived as a step backwards” (33). Furthermore, the constitutionalisation of the principle was the subject of vigorous debate (34), thus expressing a real choice on the part of members of Parliament, and all the more so given that the Coppens Committee hesitated as to its inclusion in the Constitution. Moreover, the direct effect of Article 5 is the result of a desire on the part of the constituent power in 2005. This choice is confirmed, a contrario, by Articles 3, 4 and 7 of the Charter, which refer to the law, namely the duties to prevent environmental damage and to contribute to the repair of any damage, as well as the rights of access to information and public participation on environmental issues. Consequently, correcting the deliberate choice made by Parliament less than ten years after that choice was made may serve to emphasise the Constitution’s instability even further. Besides, this is not an isolated case. A proposed constitutional bill on the jurisdictional liability of the President and the Government (35) was tabled on 14 March 2013 at the National Assembly, when the provisions on the liability of the Head of State under Articles 67 and 68 of the Constitution (which, incidentally, have never been applied) had already been reformed on 23 February 2007.
The precautionary principle did not escape the Veil Committee’s scrutiny either. The Committee explicitly refused to recommend any amendments to it, along with the other provisions of the Charter for the Environment, owing to the legal authority that it carries (36). Indeed, having acknowledged the constitutional value of all of the Charter’s provisions in 2008, the Conseil d’Etat and the Constitutional Council went so far as to state that they "are binding on the government and on administrative authorities in their respective areas of responsibility” (37). It follows that it would be regrettable for the Constitution’s readability and stability if Parliament were to follow the trend of demolishing that which they have only just built and if the same problems affecting France’s laws were also to impact on the Constitution.
II - The challenge to France’s constitutional heritage
According to the Veil Committee, "when it comes to fundamental rights, France’s constitutional heritage rests indissolubly both on the founding legal texts and on the case law arising therefrom" (38). By “founding texts”, the Committee means the 1789 Declaration of the Rights of Man and of the Citizen, the Preamble to the 1946 Constitution, and the Charter for the Environment that came into force in 2005. In other words, France’s constitutional heritage is made up of texts, each drawing on a different source of inspiration, to which the Preamble to the 1958 Constitution refers. Indeed the framers of the 1958 Constitution had "deliberately chosen the path of
49 sedimentation" (39) and "the constituent power, in recent times, has not moved away from the same of reverence towards the bequests of 1789 and 1946. The constitutionalisation of the Charter for the Environment in March 2005 came about in the form of the simple addition of a new level to the constitutional edifice, without amendment and, therefore, without entrenchment vis à vis the existing one” (40). The Charter for the Environment cannot be amended without this affecting France’s constitutional heritage, especially as it is a matter here, not of enhancing it, but of excising – or at least limiting the effects of – one of its articles. Admittedly, there are no constitutional provisions preventing the framers of the Constitution to amend the Charter for the Environment. Aside from a number of time limits scattered through the Constitution, the derived constituent power has only one material limit imposed on it by Article 89: the impossibility of amending the republican form of government. An amendment to the Charter for the Environment would certainly not contravene that interdict. Nevertheless, proceeding with such an amendment would necessarily go against the historic tradition of stratification of constitutional standards on the protection of fundamental rights.
Even more fundamentally, the question is whether the provisions of the Charter for the Environment are constitutional provisions like the others. Formally, there is nothing to suggest that they could be anything else insofar as, by virtue of the principle of parallel powers, that which the derived constituent power can do, it can also undo. Conversely, still others consider that the Charter "is a rather poorly identified legal and constitutional object" (41) with “the same character as the two declarations of rights” (42). Certainly, its position in the body of the Constitution alongside the 1789 Declaration of the Rights of Man and of the Citizen and the Preamble to the 1946 Constitution renders the three declarations indissociable, although the Charter does not have the seniority of its counterparts. The Conseil d’Etat has acknowledged this bond - indeed, more explicitly than did the Constitutional Council in its decision concerning to the law on genetically-modified organisms (43) when it asserted that the provisions under Article 7 of the Charter "as with all rights and duties defined in the Charter for the Environment, and like all those proceeding from the Preamble to the Constitution, have constitutional value” (44). Consequently, to envisage an amendment of the Charter for the Environment is akin to opening a Pandora’s Box. Once the newest declaration of rights has been amended, there will no longer be any obstacle, in view of the precedent created, to an amendment of the older declarations (i.e. those of 1789 and 1946), although that possibility remains unimaginable for the time being (45). It follows that if the amendment process reaches completion, this will break down the political – if not psychological – barriers which currently prevent any amendment of the rights to which the Preamble to the 1958 Constitution refers. France’s constitutional heritage would then be called into question in its entirety.
All in all, as far as the precautionary principle is concerned, amending the Constitution is not the answer, especially where this involves amending a part of France’s constitutional heritage that is so firmly focused on future generations.
Notes: (1) HEDARY D., « Les surprises de la Charte de l’environnement », Droit de l’environnement, 2009, n°175, p. 3. (2) PRIEUR M., « Promesses et réalisations de la Charte de l’environnement », NCCC, 2012, n°43, p. 5.
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(3) PRIEUR M., « La constitutionnalisation du droit de l’environnement », in Cinquantième anniversaire de la Constitution française, MATHIEU B. (dir.), Dalloz, 2008, p. 489. (4) CC n° 2005-31 REF, 24 March 2005, Rec. p. 56 ; CC n°2005-516 DC, 7 July 2005, Rec. p. 102. (5) TA Chalons-en-Champagne, order of 29 April 2005; CE, 6 April 2006, Ligue pour la protection des oiseaux, n°283103 ; CE, 13 June 2006, Association FNE, n°293764 ; CE, 19 June 2006, Association eaux et rivières de Bretagne, n°282456. (6) Tribunal correctionnel (criminal court) of Orléans, 9 December 2005, note J.-Ph. Feldman, Rec. Dalloz, 2006, p. 814. (7) JEGOUZO Y., « La Charte de l’environnement », AJDA, 2005, p. 1156. (8) Ibid. (9) MORAND-DEVILLER J., « L’environnement dans les constitutions étrangères », NCCC, 2012, n°43, p. 83. (10) Proposition de loi constitutionnelle visant à ôter au principe de précaution sa portée constitutionnelle, (Constitutional proposal to strip the precautionary principle of its constitutional scope), National Assembly, n°1242, 10 July 2013; Proposition de loi constitutionnelle visant à retirer le principe de précaution du bloc de constitutionnalité (Constitutional proposal to withdraw the precautionary principle from the constitutional frame work), National Assembly, n°2033, 13 June 2014. (11) Proposition de loi constitutionnelle visant à modifier la Charte de l’environnement pour préciser la portée du principe de précaution (Constitutional proposal to amend the Charter for the Environment in order to stipulate the scope of the precautionary principle), Senate, n°125, 27 May 2014. (12) Proposition de loi constitutionnelle visant à équilibrer le principe de précaution avec le principe d’innovation (Constitutional proposal to balance the precautionary principle against the innovation principle), National Assembly, n°1580, 26 November 2013; Proposition de loi constitutionnelle visant à modifier la Charte de l’environnement pour exprimer clairement que le principe de précaution est aussi un principe d’innovation (Constitutional proposal to amend the Charter for the Environment to state clearly that the precautionary principkle is also an innovation principle), Senate, n°183, 3 December 2013. (13) See the two proposed variations: Yves Coppens, Rapport de la Commission Coppens de préparation de la Charte de l’environnement, published by the French Ministry for the Environment and Sustainable Development, 2005, p. 38 et s. (14) PRIEUR M., « Promesses et réalisations de la Charte de l’environnement », cited above, p. 13. (15) Jacques Attali, Rapport de la Commission pour la libération de la croissance française : 300 décisions pour changer la France, La documentation française, 2008, p. 91-92. (16) Louis Gallois, Pacte pour la compétitivité de l’industrie française, La documentation française, 2012, p. 39. (17) GEEA, Pour un Big-Bang économique, fiscal et culturel, 2013, http://www.generation-entreprise.fr/spip.php?article46 (18) Anne Lauvergeon, Un principe et sept ambitions pour l’innovation, La documentation française, 2013, p. 14. (19) Avis de l’Académie sur le projet de loi constitutionnelle concernant la Charte de l’Environnement, http://www.asmp.fr/travaux/avis_charte.htm (20) Alain Gest et Philippe Tourtelier, Evaluation de la mise en œuvre de l’article 5 de la Charte de l’environnement relatif à l’application du principe de précaution, Rapport d’information (Information Report: Evalutating the implementation of Article 5 of the Charter for the
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Environment on the application of the precautionary principle), National Assembly, n°2719, 8 July 2010. (21) Alain Gest et Philippe Tourtelier, Proposition de résolution sur la mise en œuvre du principe de précaution (Proposed resolution on the implementation of the precautionary principle), National Assembly, n°4008, 25 November 2001. (22) Under Article 89 of the Constitution, only Government Bills to amend the constitution may be submitted to Parliament convened in Congress where the President of the Republic so decides where these are passed by both Houses in identical terms. As to proposed constitutional amendments, these are compulsorily subject to final approval, not by Parliament convened in Congress, but by referendum. (23) Simone Veil, Redécouvrir le Préambule de la Constitution, La documentation française, 2008, p. 18 et s. (24) Article 1, Décret n°2008-328 du 9 avril 2008 portant création d’un comité de réflexion sur le Préambule de la Constitution (Decree n°2008-328 of 9 April 2008 for the creation of a committee to examine the Preamble to the Constitution). (25) Simone Veil, Redécouvrir le Préambule de la Constitution, op. cit., p. 21. (26) LAVROFF D. G., « De l’abus des réformes : réflexions sur le révionnisme constitutionnel », RFDC, 2008, n°5, p. 57. (27) Ibid., p. 58. (28) MONTALIVET P., « La dégradation de la qualité de la norme constitutionnelle sous la Ve République », RDP, 2012, n°4, p. 925. (29) Simone Veil, Redécouvrir le Préambule de la Constitution, op. cit., p. 26. (30) "The aim of Amendment n°3 put forward by M. Détraigne (…) is not to restrict the scope of the precautionary principle, but to stipulate for educational purposes that it is not an obstacle to scientific research”, Patrice Gélard, Compte rendu des débats de la commission des lois (Transcript of debates, Law Commission), 27 May 2014, Senate. (31) Michel Teston, Séance du 27 mai 2014 (compte rendu intégral des débats) [Session of 27 May 2014 (full transcript of debates)], Senate. (32) Yves Détraigne, Comptes rendus de la commission des lois (Report from the Law Commission), 21 May 2014, Senate. (33) Patrice Gélard, Compte rendu des débats de la commission des lois (Transcript of debates, Law Commission), 27 May 2014, Senate. (34) Jean Bizet, Avis visant à modifier la Charte de l’environnement pour exprimer plus clairement que le principe de précaution est aussi un principe d’innovation (Opinion on amendments to the Charter on the Environment to state more clearly that the precautionary principle is also an innovation principe), Senate, n°532, 14 May 2014, p. 13. (35) Projet de loi constitutionnelle relatif à la responsabilité juridictionnelle du Président de la République et des membres du Gouvernement (Draft constitutional law on the jurisdictional responsibility of the President of the Republic and members of the Government), National Assembly, n°816, 14 March 2013. (36) Simone Veil, Redécouvrir le Préambule de la Constitution, op. cit., p. 27 et 28. (37) CE, Ass., 3 October 2008, Commune d’Annecy, n°297931 ; CC n°2008-564 DC, 19 June 2008, Rec. p. 313. (38) Simone Veil, Redécouvrir le Préambule de la Constitution, op. cit., p. 21. (39) Ibid., p. 11. (40) Ibid., p. 26.
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(41) Jean-Jacques Hyest, Séance du 27 mai 2014 (compte rendu intégral des débats) (Session of 27 May 2014 (full transcript of debates), Senate. (42) Alain Richard, Comptes rendus de la commission des lois (Report from the Law Commission) 21 May 2014, Senate. (43) CC n°2008-564 DC, 19 June 2008, Rec. p. 313. (44) CE, Ass., 3 October 2008, Commune d’Annecy, n°297931. (45) "From a sociological or historical point of view, the 1789 Declaration is an irreversible achievement in the minds of the French people (…) For the French, the 1789 Declaration is an intangible treasure. That precludes the slightest thing being excised from it", G. VEDEL, La déclaration des droits et la jurisprudence, PUF, 1989, p. 72.
The Charter for the Environment
The French People,
Considering that:
Natural resources and equilibriums have conditioned the emergence of mankind;
The future and very existence of mankind are inextricably linked with its natural environment; The environment is the common heritage of all mankind;
Mankind exerts ever-increasing influence over the conditions for life and its own evolution; Biological diversity, the fulfilment of the person and the progress of human societies are affected by certain types of consumption or production and by excessive exploitation of natural resources;
Care must be taken to safeguard the environment along with the other fundamental interests of the Nation;
In order to ensure sustainable development, choices designed to meet the needs of the present generation should not jeopardise the ability of future generations and other peoples to meet their own needs,
Hereby proclaim:
Article 1 Everyone has the right to live in a balanced environment which shows due respect for health.
Article2 Everyone is under a duty to participate in preserving and enhancing the environment.
Article 3 Everyone shall, in the conditions provided for by law, foresee and avoid the occurrence of any damage which he or she may cause to the environment or, failing that, limit the consequences of such damage.
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Article 4 Everyone shall be required, in the conditions provided for by law, to contribute to the making good of any damage he or she may have caused to the environment.
Article 5 When the occurrence of any damage, albeit unpredictable in the current state of scientific knowledge, may seriously and irreversibly harm the environment, public authorities shall, with due respect for the principle of precaution and the areas within their jurisdiction, ensure the implementation of procedures for risk assessment and the adoption of temporary measures commensurate with the risk involved in order to preclude the occurrence of such damage.
Article 6 Public policies shall promote sustainable development. To this end they shall reconcile the protection and enhancement of the environment with economic development and social progress.
Article 7 Everyone has the right, in the conditions and to the extent provided for by law, to have access to information pertaining to the environment in the possession of public bodies and to participate in the public decision-taking process likely to affect the environment.
Article 8 Education and training with regard to the environment shall contribute to the exercising of the rights and duties set out in this Charter.
Article 9 Research and innovation shall contribute to the preservation and development of the environment.
Article 10 This Charter shall inspire France's actions at both European and international levels.
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MONTESQUIEU LAW REVIEW Issue No.1 January 2015 Consumer law:
The introduction of class actions in French law Françoise Gonthier, Associate Professor, ISCJ, University of Bordeaux
The introduction of class actions in French law has been a laborious process. The commission de refonte du droit de la consommation (Commission for the Reform of Consumer Law), chaired by Jean Calais-Aulois, had recommended the adoption of class actions as early as 1985, but the draft bill inspired by the Commission’s report was never tabled. Jacques Chirac made an election promise on class actions in 2005: new reports were ordered and a draft bill was adopted on 8 November 2006 then withdrawn from Parliament’s agenda at the last minute. In 2007, the new President, Nicolas Sarkozy, again announced the imminent introduction of class actions, but the reform was put back several times.
While France was increasingly bogged down by her own prevarication, class actions were progressing in many countries, and particularly in EU States; this led the European Commission to issue a Recommendation on 11 June 2013, on the one hand to encourage Member States to make provision for class actions and, on the other hand, to harmonise national legislations by detailing a series of common non-binding principles intended to regulate the various measures (1). The Commission’s recommendations were certainly the last bit of encouragement that France needed to adopt Law n°2014-344 of 17 March 2014 on consumer affairs (known as the loi Hamon or Hamon law), which finally instituted class actions in French law (2).
While class actions appear to be the most emblematic provision under the Law of 17 March 2014, they are only one aspect of a law that brings sweeping reforms to the Code de la consommation (Consumer Code). Thus, for the first time, the Law provides a definition of "consumer" (3); it also strengthens existing consumer rights (particularly the right of access to information); it transposes European Directive 2011/83/EU of 25 October 2011 on off-premises sales and distance selling and, lastly, regulates a multitude of special contracts concluded between consumers and professionals. Prior to its promulgation, the Law was referred to the Constitutional Council which, in its decision n° 2014-690 of 13 March 2014, struck down Article 67 which provided for the creation of a registre national des crédits aux particuliers (national register of personal loans) to prevent debt situations. The Council considered that the creation of such a scheme did not bring with it sufficient guarantees and thus constituted a disproportionate infringement of privacy in light of the aim pursued. Conversely, it ruled that class actions were not contrary to any constitutional requirements (neither to personal freedom, nor to the right to a fair trial), as consumers can only be drawn into the proceedings with their consent, while providers may assert all useful grounds during the proceedings in the defence of their interests.
It therefore appears that the Law of 17 March 2014 has succeeded in introducing a class action à la française, i.e. compatible with the principles of French law, and in particular those principles governing trials (4).
Before we examine the modalities of class actions, we must first explain why their introduction proved both necessary and delicate.
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I- The context of the admission of class actions à la française
Consumer protection is a priority for the French legislature, but the proliferation of regulations imposed on providers has a purpose only if consumers benefit from effective steps to penalise any failure to comply with those regulations. Class actions have therefore emerged as the ideal procedure to remedy the absence of steps available to consumers. However, the excesses linked to the development of class actions, as have been observed in the United States, raised fears amongst many providers and a number of legal scholars. The hostility towards class actions was for a long time based on a procedural obstacle: the principle of nul ne plaide par procureur (only the injured party has recourse to the law), which is a fundamental principle of French civil procedure. The Law of 17 March 2014 gives precedence to consumer interests by enshrining an additional exception to that principle.
A- The deficiencies of existing actions
While consumer law instituted greater consumer protection, there was a lack of effectiveness in that protection, owing to the absence of remedies appropriate to what often proves to be mass litigation. Indeed, the failure to comply with consumer protection measures generally results in very slight damage for consumers, whilst being highly profitable for providers. Although the total sum of individual damage is high, taken individually they are too low a sum to motivate the victim to instigate legal proceedings. An individual action therefore proves to be inappropriate.
The use of consumer associations is no more effective. Indeed, accredited consumer associations were granted legal standing but only in order to protect the collective interests of consumers. Thus, in the event of a criminal offence, aside from compensation for the damage to those collective interests, consumer associations may, in bringing a civil action, petition both the civil and criminal courts to order the cessation of illegal practices or the removal of abusive or illegal clauses in consumer contracts (5). These actions, provided by the Code de la consommation, do not allow actions to be brought by associations in defence of the individual interests of consumers. This is why, in order to improve consumer protection, the Law of 18 January 1992 created l’action en représentation conjointe (6), or joint representation action, which allows any accredited consumer association, recognised and representative on a national level, to bring an action before any court for compensation for the damage suffered individually by a more or less large number of identified consumers, on condition that this damage is the result of the activities of the same provider and that the cause of the damage is the same for each consumer. In order for the association to bring an action, a minimum of two consumers must give the association a written mandate.
This procedure was a failure: it was only used a dozen times in 20 years. This failure is explained by the fact that the action cannot be publicised and requires significant financial means that consumer associations do not always have.
Class actions then emerged as the most appropriate means to allow mass litigation, the protection of consumers’ personal interests and the moralization of trade to be managed at the same time by deterring offenders from pursuing illegal practices. However, there remained an obstacle to the admission of class actions: the nul ne plaide par procureur principle.
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B- The procedural obstacle to class actions
The action de groupe is a direct translation into French of "class action". A class action is an action by which one person is authorised to represent a group of persons in legal proceedings without having obtained their consent beforehand. It first appeared in the United Kingdom and spread to the United States, Quebec and many other countries. The forms vary from country to country, but generally there are two systems: the opt-in system, under which only those persons who have agreed to the action are included; and the opt-out system, under which all victims, even those who have not expressly agreed, are included in the action and those who expressly refuse are excluded. The class action is a collective action within the meaning of the Recommendation of 11 June 2013 as it allows compensation to be paid to a group of persons who have been the victims of the same action or event. It is also an action bought in the personal interest of others. Article 31 of the Code de procédure civile (civil procedure code) provides that "the action is open to all those who have a legitimate interest in the success or dismissal of a claim". In order to bring a legal action, there must therefore be proof of an interest to act which must be an actual, existing, personal and direct interest. To require that the interest be person is to require that any advantage that the action is likely to yield for the litigant will benefit them personally and directly. The principle is contained in an adage: nul ne plaide par procureur (only the injured party has recourse to the law), which means that a person may not in theory act in another’s interests. This requirement does not preclude the possibility of being represented in bringing legal action. In the event of such representation, it is the represented person who remains the party to the proceedings, and it is they who must meet the conditions for bringing the action by proving a personal interest in particular. Thus consumer groups can bring actions as representatives, on the basis of a power that is attributed to them by mandate: this is the case with joint representation actions.
If the principle is strictly observed, class actions are not possible as they allow actions to be brought in another’s interests without obtaining their prior consent or receiving a mandate to that effect.
The principle is not, however, absolute. The legislature may set it aside by giving legal standing to a person who cannot establish a personal interest in bringing a legal action.
In order to have legal standing, the rule is that it suffices to have an interest in bringing an action, in such a way that the person who has an interest in bringing an action necessarily has legal standing. Exceptionally, for some actions known as actions attitrées or dedicated actions, a personal interest will not suffice: a person must also establish that he or she has the legal standing required by law. In this sense, divorce proceedings are a dedicated action: it may be argued that the children concerned have a legitimate interest in bringing such an action, but the legislature gives legal standing to the spouses only, thus in turn preventing children from petitioning for their parents’ divorce. The independence of legal standing is all the more evident in a very small number of cases by becoming the only condition for the right to bring an action. This is the case where the law recognizes a person’s or a group’s legal standing to bring an action in another person’s personal interest or in the collective interest. This person or group is then recognised as having their own right in the interests of a third party: they have the right to bring an action, although they have no personal interest in doing so, owing solely to the fact that the law gives them legal standing to do so. This undermines the nul ne plaide par procureur principle.
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There are only a few exceptions and these are always provided by law. Thus Article 46 (1) of Law n°85-98 of 25 January 1985 on the administration and compulsory liquidation of companies provides that the creditors’ representative alone may act in the creditors’ interests. It is the representative who brings the action, and it is on that basis that the grounds of the action are examined. Equally, a trade union is authorised in certain situations provided by the Code du travail (Labour Code) to act in the individual interest of a salaried employee who, as such, exercises his or her own right to bring an action. The Law of 17 March 2014 simply introduces a new exception to the nul ne plaide par procureur rule: the class action. This exception applies to a very narrow category of actions for the time being, as it only concerns consumer law and competition law and may only be brought by accredited consumer associations, as established by the modalities of class actions provided by the Law of 17 March 2014.
II- The modalities of class actions provided by the Law of 17 March 2014
The Law of 17 March 2014 sought to introduce a modest innovation by granting a narrow scope of application for class actions. It provides for an original standard procedure, together with a simplified procedure and a specific one for anti-competitive practices.
A- The limited field of application for class actions Class actions are, first of all, limited in their scope as they are the preserve of consumer law. Previous bills had intended to introduce a general class action for all catastrophes - including those linked to the environment and health - regulated by the Civil Code so as to underscore its general nature. The Law of 17 March did not make the same choice: it limits class actions to damage within the scope of consumer law or some aspects of competition law, which is why these actions are regulated by the Code de la consommation.
So class actions are reserved for consumers. Since the Law of 17 March 2014 came into force, "within the meaning of the present Code, shall be deemed a consumer any natural person who acts for purposes that do not fall within the scope of their commercial, industrial, craft or professional activities”. It must therefore be deduced that class actions are reserved for natural persons and thus exclude legal persons, as these cannot be considered as consumers.
Class actions are also limited in terms of their purpose, as they may only be brought for compensation in respect of individual damage suffered by a consumer as a result of negligence on the part of a professional in respect of their legal or contractual obligations in the sale of goods or the supply of services, or as a result of certain anti-competition practices. Furthermore, the action may only be brought for compensation in respect of material damage. Article L.423-1 of the Code de la consommation provides that "a class action may only concern the compensation for financial loss resulting from material damage suffered by consumers". Thus personal injury is excluded, as is financial loss resulting from personal injury, such as the loss of professional income or the costs associated with the assistance of a third party. Non-financial losses, resulting in particular from the violation of a personality right such as the right to privacy or image rights, are also excluded. Compensation for other kinds of damage can only be sought in the context of traditional proceedings. Where a victim suffers damage other than material damage, they must bring an individual action for compensation for all damage before one single court. Finally, class actions are limited in terms of whom may bring the action, as they are the preserve of accredited consumer protection associations that are representative on a national level and accredited under the terms
58 of Article L. 411-1 of the Code de la consommation (7). In reserving legal standing – and, therefore, the right to bring an action – for such consumer associations, the legislature clearly wishes to remain consistent insofar as those same associations are competent to bring the other actions provided in the individual or collective interest of the consumer. These associations thus appeared to be the best placed and most legitimate to act in the collective interest of a group of consumers. It was also certainly a matter of avoiding American-style aberrations by preventing an excess of zeal on the part of some lawyers or even vexatious applications through the prior scrutiny of such associations.
This choice has, however, been criticised. The legal conditions for obtaining accreditation are such that only a handful of associations are successful. The lack of accredited associations will necessarily restrict the number of class actions brought. Furthermore, the financial burden may well prove too great for those associations that have the monopoly on class actions, insofar as, unlike previous proposals, the law does not make provision public funding to be made available for publicity and the costs associated with recovery and redistribution. It is this lack of funding that is already partly to blame for the failure of joint representation actions.
B- Procedure In reality, the 2014 Law provides for three procedures: a specific procedure for anti-competitive practices; a standard procedure; and a simplified procedure.
Articles L 423-1 and L 423-17 to L 423-19 of the Code de la consommation set down specific rules for the scenario in which a class action is brought in order to obtain compensation for damage suffered as a result of anti-competitive practices. Indeed, where the alleged deficiencies on the part of a provider concern the observance of the rules defined under Title II, Book IV of the Code du commerce or Articles 101 and 102 of the Treaty on the Functioning of the European Union, the provider cannot be found liable in the context of a class action, but rather on the basis of a decision against the provider handed down by the Competition Authority or the competent authorities of the European Union, a decision which finds deficiencies and can no longer be appealed by the party concerned as regards the identification of those deficiencies. This mechanism is the follow-on system, the adoption of which in French law raised many reservations as to the length of the procedure and the submission of France’s ordinary courts to decisions of the Competition Authority.
The standard procedure provided under Article L 423-3 and subsequent of the Code de la consommation falls within the remit of the Tribunal de grande instance’s jurisdiction. As representation by a lawyer is compulsory there, while the latter does not have legal standing, he still has a part to play in the procedure as a representative ad litem. An accredited consumer association must issue a writ in order to bring a class action. The court must then rule, in the same decision, on the admissibility of the action, the provider’s liability in light of the individual cases presented by the association, and finally on the formation of the group. The court determines the group of consumers to whom the provider is liable, and sets the criteria for membership of the group and the damage likely to be compensated, as well as the various aspects allowing the damage to be assessed. In this way, the particularities of this procedure in comparison with the systems operating in other countries lay in the fact that the consumer can wait for the court’s decision before deciding whether to bring an individual action or a class action by opting to join the group.
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Where the court finds the provider liable, it orders advertising formalities, the costs of which are borne by the provider, to inform consumers likely to belong to the group and sets the timescale for consumers to join the group in order to obtain compensation for the damage suffered (the timescale cannot be less than two months or greater than six months following the completion of the advertising formalities ordered by the court). In this initial phase, the association does not act by representation but by virtue of its own right (8). As regards the modalities for joining the group, in accordance with the Recommendation of the European Commission of 11 June 2013, there is an opt-in system under which only those persons who have expressed their willingness to do so can join the group: consumers wishing to receive compensation must therefore join the group. Article L. 423-5 of the Code de la consommation states that "membership of the group shall be equivalent to a mandate to the association for the purposes of obtaining compensation”. From that moment on, the action becomes a joint representation action as the association no longer acts by virtue of its own right but as the representative of the consumer (so there is no longer any exception to the nul ne plaide par procureur rule).
The provider held liable must then pay compensation to each consumer in the group within the timeframe set by the court. The provider may however challenge some consumers’ membership of the group before the same regional court, which triggers a second hearing on the enforcement of the initial judgment. The court will then rule in one same judgment on all of the difficulties relating to enforcement. Any sum received by the association as part of the compensation to the consumers affected must be paid into a deposit account opened with the Caisse des dépôts et consignation (French Deposit and Consignment Office).
The Law of 17 March 2014 also institutes a simplified procedure, provided under Article L. 423-10 of the Code de la consommation and applicable where "the identity of number of consumers affected are known and where those consumers have suffered damage in the same sum, an identical sum per service provided or an identical sum by reference to a period or duration…”. In such cases, the court ruling on the provider’s liability can order that provider to compensate victims directly and individually within the timeframe and in accordance with the formalities set by the court. The consumers concerned having already been identified, the requirements concerning group membership and publicity are replaced with individual information to be supplied by the provider at their expense in order to allow the identified consumers to agree to be compensated in accordance with the terms of the court’s decision.
To conclude, in accordance with the European Commission’s wishes expressed in its Recommendation of 11 June 2013, which advocates the use of alternative dispute resolution methods, the possibility of resorting to mediation is expressly envisaged under Articles L 423-15 and L 423-16 of the Code de la consommation. However, only the applicant consumer association can take part in such mediation and any settlement negotiated on behalf of the group must, in order to be legally binding, be submitted for approval to the court, which ensures that the settlement conforms to the interests of those to whom it is intended to apply.
Notes: (1) The Commission’s recommendations can be accessed via the website: ec.europa.eu (2) « L’action de groupe à la française, une curiosité » K. Haeri et B. Javaux, JCP 2014, p. 375; « L’exorbitance de l’action de groupe à la française » N. Molfessis, D. 2014, p.947; « La nouvelle action de groupe » V. Rebeyrol, D. 2014, p. 940; « Introduction de l’action de groupe
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en droit français » M. Bacache, JCP 2014, p. 377; « L’introduction de l’action de groupe en droit français » D. Mainguy et M. Depincé, JCP ent 2014, p. 1144. (3) See below. (4) The original French expression, action de groupe à la française, is borrowed from Serge Guinchard, « Une class action à la française ? » D. 2005 p. 2180. The rules on class actions are set down under Articles L 423-1 to L 423-26 of the Code de la consommation. (5) Articles L.421-1 and L.421-2 of the Code de la consommation (6) Articles L.422-1 to L.422-3 of the Code de la consommation (7) Currently 16 associations. (8) There is, therefore, a real exception to the nul ne plaide par procureur rule.
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MONTESQUIEU LAW REVIEW Issue No.1 January 2015 Contract law:
The curious process of reforming France’s law of obligations Professor Hélène Boucard, Agrégée des Facultés de droit, Full Professor of Private Law at the University of Poitiers, Member of the Civil Law Research Team
For a long time, the reform of France’s law of obligations seemed impracticable. Desired since the centenary of the Civil Code and announced at its bicentenary, the reform – which concerned French legal doctrine, above all – had yet to see the light of day. Unlike Germany, which had already completed out its aggiornamento (1), France simply could not manage the modernisation of her own law of obligations when she had succeeded in revising her law of succession, securities law and statute of limitations.
At the time of the Civil Code’s centenary, in 1904 (2), Germany’s BGB had just come into force (3). In the eyes of certain French scholars, in matters of the law of obligations, the German Code was more modern while their own was already out of date. For decades, however, case law took liberties with legislation; to some extent, it managed to adapt the law with the legislature only having to intervene on an ad hoc basis. Come the late 1920s, a draft Franco-Italian Code of Obligations had been drawn up but got no further (4). At the end of the Second World War, a Commission de réforme du Code civil (Commission for the reform of the Civil Code) was set up; it toiled for a decade but its efforts proved fruitless too – at least as far as the law of obligations was concerned (5). From the 1960s onwards, entire chapters of the Civil Code were overhauled, particularly in the law of persons and family law. This regeneration (or at least its beginnings) owes a great deal to the alliance forged between legal knowledge and political power: Dean Jean Carbonnier and the then Minister of Justice, Jean Foyer, not to mention Dean Gérard Cornu for the Code de procédure civile (Civil Procedure Code). On the other hand, the letter of the law of obligations has essentially remained unchanged. Amendments have been marginal if not minor. There appears to be no sense of urgency in reforming it; legal practitioners and scholars have accommodated the status quo. This, however, amounts to a “décodification” (6) as the "living law" of obligations is to be found outside the Civil Code, in the Bulletin of Court of Cassation decisions.
The end of the 20th century gave new European and international impetus to the reform of the French law of obligations. A number of phenomena came together to encourage the reform (part I below), including the growing influence of the European Union, the danger of a decline in France’s own influence, or even the new wave of national (re)codifications in a context of global competition. Nevertheless, French divisions relative to the various ways for reform are so many obstacles to real recodification (part II below). The doctrinal controversies relating to the direction to be taken by the new law of obligations have long resulted in stagnation.
Political leaders, now impatient to achieve the reform, have opted for a more expeditious process – the ordinance technique rather than resorting to statute – which has itself sparked institutional debate.
I. European and international incitement to reform the French law of obligations The initial attempts at reform did not relate to the law of obligations as a whole, but focused
62 instead on one aspect of it: sales law, the historic model for the theory of contract. These vague desires to reform the special law of contract sprang from the national transposition of two European directives in the field of consumer protection (see A below). Responsibility for defective goods, then consumer goods guarantees still stand as missed opportunities for France. The need to reform the general law of contract became all the more acute in light of the increased competition between national laws on a European and, beyond that, an international level (see B below).
A. National transposition of directives and the vague desires to reform the special law of contract The EC Directive of 25 July 1985 on responsibility for defective goods ought to have been transposed by 1988; this was only done in 1998, ten years later, by a statute of 19 May 1998 incorporated into the Civil Code under Title IV bis which follows Title III, Of contracts and conventional obligations in general and Title IV, Of undertakings formed without an agreement.
There are various reasons for this delay. Firstly, the scheme provided in the directive is, in some respects, less favourable to victims than French law, be it legislation or case law (7). The legislature therefore only resigned itself to transposing the directive once the European Court of Justice gave judgment against France. The legislature was in even less of a hurry as the contaminated blood scandal had been unearthed, a matter in which a number of political leaders were likely implicated. Furthermore, the economic and voluntary sectors, together with scholars, clashed over the possible exemption of producers on grounds of “development risks”. Finally, from 1988 onwards, a draft bill was produced by a working party chaired by Professor Jacques Ghestin (8). The draft bill went beyond the transposition of the EC directive on responsibility for defective goods, proposing a partial overhaul of the Civil Code in the form of a renewed sales law. This was particularly ambitious, as sales are the model on which the French law of contract is based. The ambitious nature of the draft bill is doubtless one of the reasons for its failure as there was no academic consensus on sales law.
This holds also true for the EU Directive of 25 May 1999 on sale of consumer goods and associated guarantees (9). From the French point of view, this directive again presented the disadvantage of being, in some respects, less favourable to the consumer than the Civil Code and the relevant developments in case law, particularly as the Directive draws on the United Nations Vienna Convention on Contracts for the International Sale of Goods 1980, conceived for international traders. On the other hand, the Directive had the advantage of simplifying those obligations falling to the vendor: from 1804 onwards, case law and doctrine had complicated matters at will, and to such an extent that the subject had become a veritable maze for practitioners. The transposition of the EU Directive was therefore the opportunity to overhaul sales law and perhaps even the law of obligations (10). This was the path successfully taken by Germany, with the "great transposition" brought about by the Act of 26 November 2001. France missed another opportunity, again for various reasons and doctrinal divisions in particular.
Indeed, in 2002 a working party chaired by Professor Geneviève Viney submitted a draft bill to the Ministry of Justice which went beyond the transposition of the EU Directive and aimed to modernize French sales law (11). Professor Olivier Tournafond, who was hostile to the proposed legislation, mobilized members of various professional communities and drafted a counter- proposal (12). Again, the lack of academic consensus was obvious to France’s political power, which consequently opted for a petite transposition or small-scale transposition: the directive was
63 not transposed into the "big" code, being the Civil Code, but rather the "little” code, being the Code de la consommation or French Consumer Code (by an Ordinance of 17 February 2005, ratified by statute on 5 April 2006 (13)). France therefore did not manage to reform its special law of contract.
Since that time, the Association Henri Capitant has set up a working party chaired by Professor Jérôme Huet, with a view to reforming the law of special contracts, but the current status of the group’s work is not known.
B. International competition and the need to reform the general law of contract In 2004, France celebrated the bicentenary of the Civil Code (14), a venerable ancestor naturally considered even more ancient than it had been in 1904. The political power seemed to become aware of the urgent need for reforming the law of obligations. During the conference held at the Sorbonne to mark the bicentenary (15), President Jacques Chirac promised the legal overhaul within a period of five years, by ordinance (16). A number of factors contributed to that sense of urgency.
Firstly, the BGB had taken on a new lease of life with the major legal reform in 2001 (17). Franco- German rivalry being what it is, it was high time that France’s Civil Code be updated. Furthermore, after Quebec and the Russian Federation, Europe had witnessed a wave of recodification of national laws of obligations (18); France therefore ran the risk of isolation.
This, secondly, was because international competition between legal systems was intensifying (19). The World Bank published its famous – and fallacious – Doing Business reports, which wrongly concluded that the legal tradition in continental Europe was economically inefficient. A very recent impact study conducted by the French government claimed that the sheer age of the French law of obligations harmed the competitiveness of French businesses (20). Aside from the fact that such an assertion is far from convincing (21), it all too prosaically reduces civil law to little more than a servant of the economy.
The European Union likewise put the national laws of its Member States in competition, with France and Germany as frontrunners, be it for negotiating harmonization directives and standardization regulations, or for initiatives with a view to establishing, if not a European Civil Code (22), then a unified European contract law based on sales law (23).
France was therefore a little late in acknowledging the European Union’s tightening hold on her civil law and the phenomenon of international competition between legal systems. If she was to retain or regain her influence, she too would have to breathe new life into her law of obligations.
It is one thing to say it, but quite another to do it: far from becoming less stark, French divisions have resurfaced on the subject of the various ways for reform.
II. French divisions on the ways for reform of the law of obligations Over the course of almost a decade, the doctrinal hubbub born out of the rivalry between different draft bills led to a stalemate on the reform (see A below). For the last year, the controversial “eviction” of the French Parliament has aimed to speed up the reform process: opting for the
64 hybrid path of an ordinance rather than a statute would, it is claimed, condition the successful completion of the reform (see B below).
A. Doctrinal hubbub and stalemate on reform At first, a working party was set up under the chairmanship of Professor Pierre Catala, bringing together a large number of scholars, many of whom were members of the Association Henri Capitant. A White Paper titled Rapport pour une réforme du droit des obligations et de la prescription (hereinafter referred to as the Catala draft bill) (24) was submitted to the Ministry of Justice in September 2005, a report in which the working party adopted a double standpoint.
From the French perspective, the reform had to be effective: in order to be readily adopted, it had to create consensus; it therefore had to be an evolution rather than a revolution. There was no need to upset everything; it was simply a matter of updating the existing legislation to include the case law acquis. Consequently, while there was no shortage of innovation, it was often a recodification of established or almost established law, through the codification of case-law constructs (i.e. by integrating into the Civil Code those new solutions enshrined by the Court of Cassation as guided by the existing legislation).
From an international and European perspective, the reform had to be French. There was no point in systematically discarding what foreign commentators sometimes considered an exception. It was not necessary for the French law of obligations to lose its identity in order to (re)gain its rightful place. It was a matter of making the law clearer, modernising it in the very spirit that nurtures that law. Thus the French legislative model, renewed and revitalized, can continue to influence within the European Union and beyond. For instance, the theory of the “cause de l’obligation ou du contrat” or cause of the obligation or the contract, rechristened “cause de l’engagement”, or the cause of the commitment (25).
This “offre de loi” (26) - literally, “offer of law” - made by legal doctrine to the political power was of a particularly high standard, though there was a degree of disagreement with some of the proposed solutions (27). This draft bill had the enormous merit of being in existence; the discussions could then begin in order to refine and amend it. There was hope, finally, that the reform would come to pass.
Secondly, a Court of Cassation working party set up by the then First President of the Court, Guy Canivet, issued a report that painted a mixed portrait of the Catala draft bill (28). One may be led to wonder whether it was fully representative of the Court of Cassation’s doctrine as, without any real degree of coherence, the report criticises solutions put forward in the draft bill which draw inspiration from the same court’s case law. A number of scholars supported the objections (29), which was more than a little surprising as they were contributors to the Catala draft bill. It is true that Dean Jean Carbonnier died before the bill could be published covered by his authority his passing, which preceded that of Dean Gérard Cornu and then Professor Pierre Catala, also marked the collapse of a rampart.
There was therefore no consensus: neither academic (within the École), nor with the Court of Cassation (between the École and the Palais). Reluctant and ill-informed, the political power dithered. The Catala draft bill was not adopted, and the Government drew up its own in 2008 (30).
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There would be more of these government draft bills which would immediately be discussed in French legal doctrine. Conversely, the reform of the statute of limitations was finalised by the Act of 17 June 2008, which has since been codified.
Thirdly, a working party chaired by Professor François Terré under the auspices of the Académie des sciences morales et politiques, competed with the Catala draft bill. From 2009 onwards, a counter-proposal (hereinafter referred to as the Terré draft bill) was published in three parts: contract, liability, “régime général de l’obligation” (31) or the law of obligations in general (32). The Terré draft bill, which was also of a particularly high standard, challenged the Catala draft bill – obviously, otherwise the whole initiative would have been meaningless. On the one hand, the modernisation of the law of obligations had to be radical, and it had to be European. It was appropriate to erase that which had made French law unique and, if not “denationalise” it, at least make it more “Euro-compatible”: neutral enough for it to be understood overseas and particularly within the European Union. For instance, the Terré draft bill strove to do away with the theory of cause (if not the theory of the object), for which it substituted "the content of the contract” (33). In doing so, the draft bill sacrificed the French model and its international influence for the sake of European integration, thus abandoning one of the major concerns of the Catala draft bill. On the other hand, the latter was an expression of a constant intention to compensate victims in civil cases; the Terré draft bill showed itself less generous towards them, hinting at the stance adopted in the BGB, which incidentally was not universally popular in Germany.
Consensus seemed impossible: fierce competition between the different doctrinal draft bills was never synonymous with dialogue. Moreover, the situation was further complicated by another division which did not always coincide with the previous one. There were two schools of thought in French doctrine with, on the one side the proponents of liberalism, even ultra-liberalism in the law of obligations; and, on the other side, the supporters of social proactivity, a less economistic and more human conception of the subject.
France’s reform of her law of obligations therefore reached a stalemate. The Ministry of Justice either could not or would not choose: all of its draft bills, from the first in 2008 to the last in 2013, sought a third way, a different balance. In the meantime, a bill submitted to the Senate in 2010, looking to reform civil, contractual and extra-contractual liability, fizzled out (34).
B. “Eviction” of Parliament and completion of the reform? Wishing to bring the reform to a swift conclusion, the Ministry of Justice preferred the hybrid technique of the ordinance over the ordinary legislative process (1); that choice sparked a symbolic and institutional conflict between the Senate on one side, the Government and the National Assembly on the other (2) (35).
1. The alternative between a hybrid and a legislative process On 27 November 2013, the Government put a bill before the Senate, under an accelerated procedure, asking Parliament (inter alia) to allow it to reform the law of obligations by means of an Ordinance (36). The promise made by Jacques Chirac would finally be kept, during President François Hollande’s five-year term of office.
A few points of constitutional law will be useful at this juncture.
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Under Articles 34 and 37 of the French Constitution, the Government has statutory competence to adopt regulations (decrees or orders) while Parliament has exceptional competence to vote on statutes. Within the scope of that exceptional competence, firstly Parliament has an exclusive province in which the Government may not intervene. Here, Parliament alone may set the “exact rules" applicable, such as the determination of serious crimes, other offences and the penalties these carry. Secondly, there is a province shared with the Government. Here, Parliament only sets downs the "fundamental principles” while the exact rules are set by the Government. This is precisely the case for civil and commercial obligations.
Under Article 38 of the Constitution, the Government may also ask Parliament for authorisation to adopt measures by ordinance that would usually fall within the remit of Parliament’s competence. Where the latter consents to the request, the Government adopts the ordinance, which is a temporary regulation. On the expiry of the authorisation period, either Parliament ratifies the ordinance and it becomes a statute; or Parliament refuses to ratify the ordinance and the regulation is null and void. Unlike statutes, reform via ordinance therefore amounts to a hybrid process, part regulatory, part legislative.
Coming back to the law of obligations, on 15 January 2014, Les Echos (a financial daily newspaper) was the first to publish on its website an incomplete working paper dated 23 October 2013, presented as the Government’s draft reform of the law of obligations by ordinance. Proponents of French civil law doctrine had been hoping that the law, drafted in secret by the Ministry of Justice, would finally be revealed – only this was done by the press. Unfortunately, the document was a disappointment, written in a style that was frequently awkward, containing solutions that were sometimes poorly thought out; a patchwork of the Catala and Terré draft bills, the coherence of which left much to be desired as a result. That was regrettable: such a text could not breathe new life into the French law of obligations, especially as it broke the subject matter up: in accordance with the draft enabling law, the draft ordinance concerned contracts, quasi-contracts and the “régime général de l’obligation” (37), excluding civil, contractual and extra-contractual liability.
2. Antagonism between the Senate, the National Assembly and the Government
The Senate’s resistance: Unlike the National Assembly, the Senate is not directly elected by the people but by the grands électeurs or electoral colleges. The political opposition groups are occasionally less at odds, and there are instances where the majority is less submissive to the Government. As with the Assembly, before the Senate votes on a bill, the latter is put before a Committee, the Commission des lois or Law Commission, which produces a report (be it positive or negative) and has the power to amend the text that is read before the Senate Chamber. In the present case, in light of the Report (38) dated 15 January 2014, the Law Commission refused to authorize the Government to reform the law of obligations by ordinance. The members of the Commission were unanimous in their refusal, regardless of their political persuasion. Consequently, the request for authorization no longer featured in the text put to the vote in the Senate on 21 and 23 January 2014 (39). During those public debates held on 21 (40) and 23 January (41), the Senators politely but firmly resisted the arguments put to them by the Minister of Justice, Christiane Taubira. The amendment tabled by the Government, intended to reintroduce the authorization, was rejected almost unanimously: only one Senator voted in favour.
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The grounds for the Senate’s rejection of its arguments prompted the Government to exercise caution and give further consider to the reform.
The Senate, sitting in committee then in plenary session, did not deny the urgent need to reform the law of obligations. It stated, however, that the urgency was not reason enough to bypass Parliament, which had already shown that it could pass laws quickly.
Nor did the Senate deny that the civil law issues were technical and difficult. It stated that Members of Parliament were neither more nor less knowledgeable than the drafters at the Ministry of Justice. Parliament had also shown in the past that it was able to pass good civil laws, as with the statute of limitations or the law governing inheritance – this is doubtless a rose-tinted view of things, when one thinks that those reforms are tinged with defects.
Above all, the Senate stressed that, quite beyond the matter of legal techniques, the law of obligations raised political and economic issues that required Parliament’s involvement. Difficult choices had to be made, balances to be struck in matters relating to civil liability, contracts and the “régime général de l’obligation”.
It would take time, a mature discussion that only Parliament could conduct. Furthermore, experience shows that ordinances in civil matters are rarely any good. Once the authorization has been granted to the Government, when the ordinance is put before Parliament for ratification, it is too late to make any far-reaching amendments, even where the ordinance proves to be ill- conceived and/or poorly drafted.
In short, according to the Senate, the reform of the law of obligations by ordinance constitutes a denial of democracy.
As a jurist and a citizen, one can feel torn: history does not always repeat itself. The Civil Code of 1804 was drafted by some great legal scholars, such as Portalis, Bigot-Préameneu, Tronchet and Maleville, who surrounded Napoleon on the Conseil d’État (or even Merlin de Douai, more controversially). Parliament was "purged" by side-lining opponents, thus allowing a vote within a few months on an unadulterated law. The Civil Code is therefore not a result of the democratic process. However, despite (though perhaps thanks to) that, it is a “beau droit”, a beautiful law of obligations. After Demolombe, Glasson and Giraud (42), Dean Jean Carbonnier said that the Code was, symbolically, "France’s civil constitution” (43). But those times have passed. Foyer, Carbonnier, Cornu and Catala are no more. Who will stand as the heirs of Portalis and his peers now?
Had there been scholarly consensus, we could perhaps have imagined that the Government would have reformed the law of obligations by ordinance. It would have saved on postures so vain as the disappearance from the Civil code of the “bon père de famille” (44), deemed patriarchal and therefore archaic and an affront to gender equality (45). Insofar as there is no such consensus, however, is it not inevitable that the nation’s representative, Parliament, should be called upon to decide on the reforms to be made? No matter what it says, the Ministry of Justice is all too aware of the discord. This is why it excluded civil, contractual and extra-contractual liability from the draft ordinance; incidentally, a bill will soon be put before Parliament – a bill that was apparently fully drafted in the summer of 2012 but never disseminated. A comparison of various draft bills,
68 whether doctrinal or governmental, reveal a lack of consensus on many more aspects of the law of obligations (46).
The obedience of the National Assembly: Deaf to the Senate’s admonition, on 24 January 2014 the Government nevertheless put the bill before the National Assembly (47), which proved to be rather more docile. At the meeting of the Law Commission on 19 February 2014, the rapporteur stated that he had suggested that the Government not present an amendment with a view to reintroducing the authorization only in public session, so as to allow the Minister of Justice to present her arguments (48). This is why it does not feature in the Commission’s text that was tabled for reading before the National Assembly (49). Indeed, during the public debate held on 16 April 2014 (50), each objection raised by the Senate was swept aside by Christiane Taubira, asserting that an ordinance would be the only avenue for modernising the law of obligations (liability being excluded), before the end of the five-year term: the reform would therefore be done, or it would not. Consequently, and despite opposition objections, the authorization was granted by the National Assembly (51) – with an indefinite majority, because there was no accurate count of the vote by show of hands.
In accordance with Article 45 of the Constitution, the conflicting votes of the two Houses led to a meeting of a joint committee, without a second reading beforehand as this was an accelerated procedure. Unsurprisingly, at the meeting held on 13 May 2014, the committee failed to reach a consensus (52). The authorisation bill will therefore be subject to a further reading before the National Assembly (53) and the Senate. The Assembly will have the last word and, unless there is some unlikely turnaround on its part (54), so will the Government which will, sooner or later, obtain the authorization necessary to reform the law of contracts, quasi-contracts and the “’régime général de l’obligation” by ordinance. Meanwhile, again unless there is some unforeseen about-turn, the overhaul of the law relating to civil, contractual and extra-contractual liability, will remain in Parliament’s hands. This dividing up of the law of obligations between the executive and the legislature bodes ill for the coherence of the recodification.
The pangs experienced in reforming the law of obligations are not France’s preserve alone: the German aggiornamento, to name but one, was not without its issues either (55). The least we could have expected, however, was a modernisation process for a French law of obligations for the 21st century that was more worthy of the stakes involved.
A comparison with other civil recodifications is edifying. The more former are exemplary: over the course of decades, Québec (56) and the Netherlands (57) have cultivated a dialogue between doctrine and practice, Ministry of Justice and Parliament. The quality of the resulting statutes contributes to their international influence. The German method, though not as long, is similar to the previous one. The new Romanian Civil Code, the most recent, also associated Parliament with a Commission of academics set up by the Ministry of Justice (58). For the Russian Federation, the recodification initiative, more closely subject to the presidential influence, has not escaped parliamentary discussion either (59). By contrast, France chose a very curious process of reform of her law of obligations, as disjointed in its substances as in its authors. Is it that a civil recodification?
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Notes: (1) Schuldrechtsmodernisierungsgesetz, Modernization of the Law of Obligations Act, November 26th, 2001; see, specifically, R. Zimmermann The New German Law of Obligations Oxford University Press 2005, p. 30; German Civil Code, Bürgerliches Gesetzbuch (BGB) translation and commentary, Juriscope / Dalloz 2010. (2) Livre du centenaire du Code civil Duchemin, Paris, 1904. (3) See, specifically, R. Saleilles Étude sur la théorie générale des obligations dans la seconde rédaction du projet de Code civil pour l’Empire d’Allemagne Cotillon, Paris, 1895; by the same author, Étude sur la théorie générale des obligations dans le premier projet de Code civil pour l’Empire d’Allemagne Pichon, Paris, 1901. (4) See C. Witz "La longue gestation d’un Code européen des contrats – Rappel de quelques initiatives oubliées", RTD civ. 2003 p. 447. (5) See Travaux de la Commission de réforme du Code civil (années 1948-1949) Sirey 1950, recension in RID comp. 1950 p.568, http://www.persee.fr/web/revues/home/prescript/article/ridc_0035 and references in previous volumes. (6) On this point, see e.g. P. Remy "Le processus de dé-codification", J.-P. Dunand and B. Winiger (ed.) Le Code civil des français dans le droit européen Bruylant 2005 p. 197. (7) See again: La responsabilité du fait des produits défectueux (Groupe de recherche européen sur la responsabilité civile et l’assurance, GRERCA) IRJS Éditions 2013. (8) See J. Ghestin "L’avant-projet de loi sur la responsabilité du fait des produits défectueux : une refonte partielle du code civil", Rev. jurispr. comm. 1988 p. 201. (9) See. H. Boucard L’agréation de la livraison dans la vente, Essai de théorie générale Université de Poitiers diff. Lgdj 2005 preface by P. Remy. (10) See e.g. P. Jourdain "Transposition de la directive sur la vente du 25 mai 1999 : Ne pas manquer une occasion de progrès", Dalloz 2003, Point de vue, p. 4. (11) Rapport général du groupe de travail sur l’intégration en droit français de la directive no 1999-44 du Parlement européen et du Conseil du 25 mars 1999 sur certains aspects de la vente et des garanties des biens de consommation (General Report of the Working Party on incorporating Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees into French law) http://www.justice.gouv.fr/art_pix/0000.pdf; see La transposition en droit français de la directive européenne du 25 mai 1999 relative à la vente Conference 8 Nov. 2002, Univ. Paris I Panthéon Sorbonne, Cah. dr. entr. 2003 n° 1. (12) Proposition de transposition de la directive du 25 mai 1999 sur certains aspects de la vente et des garanties des biens de consommation (Proposal on the transposition of the Directive of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees), in conjunction with the Fédération des Industries Électriques, Électroniques et de Communication (FIEEC – Federation of Electrical, Electronic and Communications Industries) – text no longer available online. (13) On the concept of ordinance, see infra. (14) See, in particular, Le Code civil 1804-2004, livre du bicentenaire Dalloz/Litec 2004; 1804- 2004, Le Code civil, un passé, un présent, un avenir Dalloz 2004. (15) Colloque de célébration du bicentenaire du Code civil Droit In-Situ 2004. (16) On the notion of ordinance, see infra. (17) See, e.g. C. Witz "La nouvelle jeunesse du BGB insufflée par la réforme du droit des obligations", Dalloz 2002 chr. p. 3156.
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(18) See R. Schulze and F. Zoll (ed.) The Law of Obligations in Europe, A New Wave of Codifications Sellier 2013. (19) See H. Boucard "La compétition internationale des systèmes juridiques", Les voyages du droit, Mélanges en l’honneur de Dominique Breillat Université de Poitiers diff. Lgdj 2011 p. 81; adde "Les instruments internationaux d’unification : concurrence ou modèle pour les droits nationaux", Droit européen du contrat et droits du contrat en Europe : quelles perspectives pour quel équilibre ? LexisNexis 2008 p. 21, and the references cited. (20) Projet de loi n° 175 relatif à la modernisation et à la simplification du droit et des procédures dans les domaines de la justice et des affaires intérieures (Bill n°175 on the modernisation and simplification of the law and procedures in the fields of justice and internal affairs), tabled before the Senate on 27 November 2013, http://www.senat.fr/dossier-legislatif/pjl13-175.html, Impact study dated 26 November 2013 p. 70, http://www.senat.fr/leg/etudes-impact/pjl13-175-ei/pjl13-175-ei.pdf (21) See C. Pérès « L’étude d’impact à la lumière de la réforme par ordonnance du droit des obligations », RDC 2014 p. 275. (22) See Resolution of the European Parliament of 26 May 1989 on action to bring into line the private law of the Member States, OJEC C 158 of 26 June 1989 p. 400, French version available at http://www.europarl.europa.eu/comparl/juri/events/20040428/res_1989_fr.pdf; Resolution of the European Parliament of 6 May 1994 on the harmonization of certain sectors of the private law of the Member States, OJEC C 205 du 25 July 1994 p. 518. (23) Including, firstly , the Communication from the Commission to the Council and the European Parliament on European Contract Law, 11 July 2001 COM(2001) 398 final, OJEC C 255, 13 Sept. 2001, p. 1; lastly, Proposal for a Regulation of the European Parliament and of the Council on a Common European Sales Law of 11 October 2011 COM(2011) 635 final 2011/0284 (COD), {SEC(2011) 1165 final}{SEC(2011) 1166 final}, http://ec.europa.eu/justice/contract/files/common_sales_law/regulation_sales_law_fr.pdf; adde Communication of the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions of 11 October 2011, A Common European Sales Law to Facilitate Cross-Border Transactions in the Single Market COM(2011) 636 final, http://ec.europa.eu/justice/contract/files/common_sales_law/communication_sales_law_en.p df (24) Rapport sur l'avant-projet de réforme du droit des obligations (Articles 1101 à 1386 du Code civil) et du droit de la prescription (Articles 2234 à 2281 du Code civil) dir. P. Catala La documentation française 2005, http://www.ladocumentationfrancaise.fr/var/storage/rapports-publics/054000622/0000.pdf English translation by J. Cartwright and S. Whittaker available at http://www.justice.gouv.fr/art_pix/rapportcatatla0905-anglais.pdf (25) See Exposé des motifs by J. Ghestin, p. 25, and Articles 1108, 1124 and subsequent. p. 79 of the Catala draft bill; adde G. Wicker "La réforme du droit français du contrat : de la cause à la causalité juridique", Nouveaux défis du droit des contrats en France et en Europe G. Mäsch, D. Mazeaud and R. Schulze ed., Sellier 2009 p. 53. (26) As per the expression coined by J. Carbonnier, P. Catala, J. de Saint Afrique and G. Morin Des libéralités, Une offre de loi Defrénois 2003 preface by J. Carbonnier. (27) See, e.g. on contractual damages and interest, H. Boucard Rép. civ. Dalloz v° Responsabilité contractuelle, 2014.
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(28) Rapport du groupe de travail de la Cour de cassation sur l’avant-projet de réforme du droit des obligations et de la prescription (Report of the Court of Cassation Working Party on the draft bill of reform of the law of obligations), 15 June 2007, www.courdecassation.fr/institution_1/autres_publications_discours_2039/discours_22 (29) Some had been formulated in advance; see, in particular, P. Remy « Nouveaux développements de la responsabilité civile, observations critiques sur l’arrêt SA Planet Wattohm (Cass. Civ. 1re, 17 janvier 1995) », RGAT 1995 p. 529 ; « Critique du système français de responsabilité civile », Dr. et cultures 1996 p. 31 ; « La “responsabilité contractuelle” : histoire d’un faux concept », RTD civ. 1997 p. 323 ; « Réviser le titre III du livre troisième du Code civil ? », RDC 2004 p. 1169. (30) Ministère de la justice, Projet de réforme du droit des contrats (juillet 2008) (Proposed reform of contract law – July 2008), http://www.chairejlb.ca/pdf/reforme_all.pdf ; see also Ministère de la justice, Projet de réforme du droit des contrats (mai 2009) (Proposed reform of contract law – May 2009), http://droit.wester.ouisse.free.fr/textes/TD_contrats/projet_contrats_mai_2009.pdf Ministère de la justice, Projet de réforme du régime des obligations et des quasi-contrats (Proposed reform of the law of obligations and quasi-contracts), http://www.textes.justice.gouv.fr/art_pix/avant_projet_regime_obligations.pdf (May 2011); and Note de présentation (Introductory note) (31) I. e. General rules applying to the relationship of obligation independently of its source, and concerning its modalities (e. g. with term, condition, multiple persons, divisible, alternative), its transfer (e. g. by assumption or subrogation) and its extinction (e. g. by performance, novation or compensation). The concept of “régime général de l’obligation”, of doctrinal origin and a little distinct from that of “general law of obligations” inspired by the correspondent general part of Germany’s BGB, seems, at least as regards continental Europe, peculiar to French law (see e. g. J. Flour, J.-L. Aubert et É. Savaux Les obligations t. 3 Le rapport d'obligation Dalloz/Sirey 2013 by É. Savaux); it’s literally dedicated only by the Terré draft bill, below, and by the Government draft bill of 2011, above, unlike the Catala bill. Adde Draft Common Frame of Reference (DCFR) Full ed. Principles, Definitions and Model Rules of European Private Law prepared by the Study Group on a European Civil Code and the Research Group in EC private law (Acquis Group), C. von Bar and E. Clive (ed.), Sellier European Law Publishers 2009, vol. 1 and 2, Book III, about “Rights and Obligations in general”. (32) F. Terré (ed.) Pour une réforme du droit des contrats Dalloz 2009 ; Pour une réforme du droit de la responsabilité civile Dalloz 2011; Pour une réforme du régime général des obligations Dalloz 2013. (33) Articles 13, 58 and subsequent, Pour une réforme du droit des contrats, above. (34) See Rapport d’information n° 558, Sénat 15 juill. 2009, A. Anziani et L. Béteille, http://www.senat.fr/rap/r08-558/r08-5581.pdf; Proposition de loi n° 657 portant réforme de la responsabilité civile, Sénat 9 juill. 2010, prés. L. Béteille, http://www.senat.fr/leg/ppl09-657.pdf; C. Juillet « La reconnaissance maladroite de la responsabilité contractuelle par la proposition de loi portant réforme de la responsabilité civile » Dalloz 2011 p. 259. (35) On this point, see e. g. P. Deumier “Le code civil, la loi et l’ordonnance”, RTD civ. 2014 p. 597 and the references cited. (36) Projet de loi n° 175 relatif à la modernisation et à la simplification du droit dans le domaine de la justice et des affaires intérieures (Bill n°175 on the modernisation and simplification of the law and procedures in the fields of justice and internal affairs), Senate 27 Nov. 2013, section
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3, http://www.senat.fr/leg/pjl13-175.pdf. Pour le dossier législatif, v. http://www.senat.fr/dossier-legislatif/pjl13-175.html (37) See note 29. (38) Rapport no 288 fait au nom de la Commission des lois par T. Mohamed Soihili (Report nº288 on behalf of the Law Commission, by T. Mohamed Soihili), 15 Jan. 2014, http://www.senat.fr/rap/l13-288/l13-2881.pdf (39) Projet de loi no 289 relatif à la modernisation et à la simplification du droit dans le domaine de la justice et des affaires intérieures (Bill n°289 on the modernisation and simplification of the law and procedures in the fields of justice and internal affairs), Texte de la Commission des lois, 15 Jan. 2014, http://www.senat.fr/leg/pjl13-289.pdf (40) See http://www.senat.fr/cra/s20140121/s20140121_som.html (41) See http://www.senat.fr/cra/s20140123/s20140123_4.html#par_548 (42) See P. Remy « Le processus de dé-codification », eod. loc. p. 200 n. 7. (43) J. Carbonnier « Le Code civil », Les lieux de mémoire dir. P. Nora, III, La Nation 2. Le territoire, l’Etat, le patrimoine Gallimard Paris 1986 p. 293 s. (44) Translator’s note: in French law, the concept of "bon père de famille" – literally "good father" – which succeeded the Roman law concept of Bonus pater familias, is the equivalent of the common law concept of the reasonable person. (45) Article 26 of the Law of 4 August 2014 on real equality between men and women), JORF 5 August 2014 p. 12949. (46) For this comparison, see specifically: J. Flour, J.-L. Aubert et É. Savaux Les obligations t. 1 L'acte juridique Dalloz/Sirey 2012 par É. Savaux ; t. 2 Le fait juridique éd. Dalloz/Sirey 2011 by É. Savaux; t. 3 Le rapport d'obligation Dalloz/Sirey 2013 par É. Savaux. (47) Projet de loi n° 1729 relatif à la modernisation et à la simplification du droit dans le domaine de la justice et des affaires intérieures (Bill n°1729 on the modernisation and simplification of the law and procedures in the fields of justice and internal affairs), Assemblée nationale, 24 Jan. 2014, http://www.assemblee-nationale.fr/14/pdf/projets/pl1729.pdf (48) Compte-rendu no 43 de la séance de la Commission des lois du 19 févr. 2014, p. 19, http://www.assemblee-nationale.fr/14/pdf/cr-cloi/13-14/c1314043.pdf (detail omitted by Rapport no 1808 de la Commission des lois par Mme C. Capdevielle, Assemblée nationale 19 Feb. 2014, p. 13 s., http://www.assemblee-nationale.fr/14/pdf/rapports/r1808.pdf). (49) Annexe 0 du Rapport, http://www.assemblee-nationale.fr/14/pdf/ta-commission/r1808- a0.pdf (50) Compte-rendu intégral, JORF no 35 A.N. (C.R.) 17 Apr. 2014, p. 2626 s., http://www.assemblee-nationale.fr/14/pdf/cri/2013-2014/20140191.pdf (51) Texte adopté no 324, « Petite loi », Projet de loi modifié par l’Assemblée nationale en première lecture (Adopted text nº324, « Petite loi », Bill amended by the National Assembly at first reading), 16 Apr. 2014, http://www.assemblee-nationale.fr/14/pdf/ta/ta0324.pdf; Projet de loi no 478 modifié par l'Assemblée nationale, relatif à la modernisation et à la simplification du droit et des procédures dans les domaines de la justice et des affaires intérieures (Bill n°478 on the modernisation and simplification of the law and procedures in the fields of justice and internal affairs), tabled 17 April 2014 and referred to the Senate Law Commission. (52) See Compte-rendu de la séance, http://www.senat.fr/compte-renducommissions/20140512/cmp.html#toc3; Rapport no 1933 et no 529 fait au nom de la Commission des lois par Mme C. Capdevielle et M. T. Mohamed Soilihi, (Report nº1933 and nº529 on behalf of the Law Commission, by Mrs. C. Capdevielle and T. Mohamed Soihili) 13 May 2014,
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http://www.senat.fr/rap/l13-529/l13-5291.pdf (53) See Projet de loi no 1952 modifié, par l'Assemblée nationale, relatif à la modernisation et à la simplification du droit et des procédures dans les domaines de la justice et des affaires intérieures (Bill n°1952 on the modernisation and simplification of the law and procedures in the fields of justice and internal affairs), tabled 14 May 2014 and referred to the Law Commission, http://www.assemblee-nationale.fr/14/pdf/projets/pl1952.pdf p. 9 s. (54) A reversal made all the more improbable as on 17 September 2014, the Law Commission reiterated its support: see Rapport no 2200 fait au nom de la Commission des lois par Mme C. Capdevielle, 17 septembre 2014, et Annexe 0, http://www.assemblee-nationale.fr/14/ta-commission/r2200-a0.asp then the authorization was granted in plenary session on October 30th, 2014, again in spite of the criticisms of the parliamentary opposition, see Compte-rendu de la séance, http://www.assemblee-nationale.fr/14/cri/2014-2015/20150043.asp Le Projet de loi relatif à la modernisation et à la simplification du droit et des procédures dans les domaines de la justice et des affaires intérieures, adopté en nouvelle lecture par l'Assemblée nationale le 30 octobre 2014, TA n° 416, http://www.assemblee-nationale.fr/14/ta/ta0416.asp, was tabled at the Senate on October 31th, 2014 (draft bill no 76, http://www.senat.fr/leg/pjl14-076.html) and referred to the Senate Law Commission before being submitted for debate in plenary session on 22 January 2015. (55) See R. Zimmermann op. cit. p. 30 and subsequent. (56) See e. g. P.-A. Crépeau La réforme du droit civil canadien, Une certaine conception de la recodification (1965-1977) Centre de recherche en droit privé et comparé du Québec, éditions Thémis Montréal 2003, specifically p. 33 and subsequent.; M.-J. Longtin « La réforme du Code civil : la gestion d’un projet », in Du Code civil du Québec (Contribution à l’histoire immédiate d’une recodification réussie) éditions Thémis, Montréal, 2005 p. 163 and subsequent; adde J.-F. Niort « Le nouveau Code civil du Québec et la théorie de la codification: une perspective française », Droits 1996 vol. 24 La codification p. 135 and subsequent. (57) See A. S. Hartkamp « La révision du Code civil aux Pays-Bas, 1947-1992 », in Nieuw Nederlands Burgerlijk Wetboek, Het Vermogensrecht (Zakenrecht, verbintenissenrecht en bijzondere overeenkomsten), Nouveau Code civil néerlandais, Le droit patrimonial (Les biens, les obligations et les contrats particuliers), translated to French by P. P. C. Haanappel and E. Mackaay, under the auspices of the Ministry of Justice of the Netherlands and the Centre de recherche en droit privé et comparé of Québec, Kluwer Law and Taxation Publishers, Deventer/Boston, 1990 p. XVIII s., no 5 and subsequent. (58) See C. M. Predoiu « Préface : Genèse du nouveau Code civil roumain », Nouveau Code civil roumain (French translation and commentary) Juriscope / Dalloz 2013 p. 14. (59) See S. Alexeev « Préface », Code civil de la Fédération de Russie (French translation and commentary), Juriscope 2005 p. 9 s., 10 ; N. Y. Rasskazova « Russian Law of Obligations : Structure, Positioning and Connection with Supranational Law », in R. Schulze and F. Zoll (ed.) The Law of Obligations in Europe, A New Wave of Codifications Sellier 2013 p. 139 and subsequent.
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MONTESQUIEU LAW REVIEW Issue No.1 January 2015 Employment law:
The ban on the wearing of the Islamic veil in crèches Marie Peyronnet and Professor Christophe Radé University of Bordeaux
Deo Juvante (3), “Dios, Patria, Libertad” (4), “Für Gott, Fürst und ,(2) اللهأكبر ,(Dieu et mon droit” (1“ Vaterland” (5) or “In God We Trust” (6) : close to thirty States have a reference to religion in their motto. Be it a relic of the past or the symbol of close ties between government and religion, such a reference would be inconceivable in France, an “indivisible, secular, democratic and social" Republic (Article 1 of the 1958 Constitution).
After a century of tensions and several fruitless attempts, the Law of 9 December 1905 marked the break between political and religious powers by instituting a strict separation between Church and State. However, such a divorce is difficult to effect, as religion has been and continues to be inextricably woven into the fabric of European societies: public holidays are Christian; religious ceremonies (baptisms, marriages, funerals) continue to punctuate the lives of French citizens; time is measured by the Gregorian calendar; workers rest on the seventh day; schoolchildren enjoy holidays for Christmas, Easter and All Saints’ Day. Since the Revolution, the State has sought to "secularize" not only events (civil marriages; civil baptisms; the PACS or civil partnerships; extending marriage to same-sex couples), public holidays (May Day, remembrance days), but also administrations. Whilst clearly acknowledging "freedom of conscience", the 1905 Law provides that “the Republic neither recognises, pays salaries to nor subsidises any faith” (7).
The constitutional principle of secularism is doubtless the most emblematic manifestation of the 1905 Law. This principle is expressed in the denominational neutrality of the Republic, its administration and its officials. The idea is that the State can only respect the beliefs of its citizens and remain independent of the religious authorities by maintaining constant and complete denominational neutrality. The latter is expressed, in particular, by the ban on the wearing of religious symbols by public service employees (8). The principle of secularism, and the neutrality that results therefrom, are deeply rooted in French culture – indeed, to such an extent that it is no longer possible to tell whether the principle of secularism remains solely a principle of the “legal and political organisation of the Republic” or whether it has also become a “specific philosophical or political trend” (9). This confusion has thus been maintained since the Law of 15 March 2004, which banned users (10) of the public services of primary and secondary education (no longer simply public service employees) from wearing any symbols or clothing conspicuously displaying religious affiliation (11).
Can an undertaking (12), like the State, wish to give the appearance of religious neutrality to its customers?
Salaried employees are not officers of the State; private-sector employers cannot, therefore, require their staff to comply with such a duty of neutrality (13) on the basis of the constitutional principle of secularism. Workers lease their labour to the employer in exchange for payment but they do not, for all that, thereby give up their individual freedoms. Religious freedom is an individual freedom which must therefore be protected within a business. The latter consequently
75 runs the risk of becoming a place of tension on the issue of religion, as the employer must ensure that business activities are conducted peacefully whilst respecting the freedoms of salaried employees. It is in this difficult context that the recently concluded Baby Loup case arose.
The Baby Loup case "Baby Loup" is a group of community crèches, in a popular and multicultural neighbourhood, admitting children aged between two months and nine years; their aim is "to develop activities directed at young children from underprivileged backgrounds and, at the same time, work for the social and professional insertion of women living in the neighbourhood".
The crèche’s internal regulations (14) provided that "the principle of freedom of conscience and religion of all members of staff shall not prevent the observance of the principles of secularism and neutrality that apply in the performance of any and all activities developed by Baby Loup, both on the premises of the crèche or annexes and outside when accompanying children entrusted to the crèche”.
A salaried employee of the group, returning from parental leave, arrived at work wearing an Islamic veil. As her clothing contravened the provisions of the internal regulations, the employee was suspended (15); following her persistent refusal to respect the suspension, she was dismissed for gross negligence. She challenged her dismissal on grounds of discrimination and freedom of religion.
The case concluded, at least before the French courts, with a decision of the Court of Cassation sitting exceptionally in plenary session (16) on 25 June 2014 (17). It is, however, the case as a whole – not merely the final decision – which allows the veil to be lifted on the state of French law concerning the expression of religious beliefs in the workplace.
The relegation of the secularism principle to companies running public services The Conseil de prud’hommes (18) or industrial tribunal, ruling on the case at first instance, held that the Baby Loup crèche could assume the neutrality attributes of a public service because it provided a service of general interest. While the Court of Appeal at Versailles overturned the decision to qualify the crèche as a public service (19), the argument as to the applicability of the principle of secularism was raised once again before the Social Chamber of the Court of Cassation (20). The latter firmly recalled that "the principle of secularism established by Article 1 of the Constitution not being applicable to the salaries employees of private-sector employers who do not run a public service… it may consequently not be relied upon in order to deprive them of the protection that is guaranteed to them under the provisions of the Code du travail”. As a consequence, an employer must observe the prescriptions under Articles L. 1121-1, L. 1132-1, L. 1133-1 and L. 1321-3 of the Code du travail (Labour Code), which impose a requirement “that any restrictions on religious freedom [be] justified by the nature of the task to be performed, [meet] an essential and determining professional requirement and [be] proportional to the ends to be achieved”.
In this case, the crèche did offer a service of general interest but this did not, for all that, amount to the delegation of a public service (21). The employer could therefore not require its employees to behave as though they were State employees, regardless of the nature of the activities of the community group in question. In this case, it was the activity that proved the most problematic.
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Places in public crèches are scarce; criticising a private institution for wishing to replicate the terms and conditions for admissions applied by public institutions in order to compensate for their scarcity is therefore a delicate matter.
Conversely, where a salaried employee works in a private institution to which a public service has been delegated, then the regulations that apply to public services also apply to the employees therein, regardless of the nature of the activity. This split view of the world of work was illustrated by a second decision of the Social Chamber of the Court of Cassation, handed down on the same day as the judgment in Baby Loup (22). A salaried employee, who had no contact with the users of the public service in question (a caisse primaire d’assurance maladie, or local sickness insurance fund), had been dismissed for wearing a knotted headscarf in the workplace. The Court of Cassation held that “the principles of neutrality and secularism within public services are applicable to all public services, including those instances where such services are provided by bodies governed by private law; and, while the provisions of the Code du travail are intended to apply to employees [of private institutions], the latter are nevertheless subject to specific constraints resulting from the fact that they perform public service functions, which forbid them in particular from displaying their religious beliefs through external symbols, and particularly their clothing”.
The principle of secularism and the duty of religious neutrality resulting therefrom could not therefore extend beyond the public sector. However, some private companies could put forward an argument as to the protection of specific convictions in order to require compliance with the same on the part of their employees.
The rejection of the "entreprise de conviction" qualification The entreprise de tendance has been defined under French legal doctrine as an undertaking or business in which “an ideology, morality, philosophy or policy is expressly advocated” (23).
The legal recognition of such a business has serious consequences (24) as it allows employers to introduce significant restrictions "to the rights and freedoms of employees in the name of the values protected" by the company: "a solution permitted by European Community law (25) under which "owing to the nature of a professional activity or the conditions for its performance, the (religious) characteristic constitutes an essential and determining professional requirement, provided that the aim is legitimate and the requirement is established" (26). This conception of the entreprise de tendance was argued by counsel for the crèche at the first appeal hearing on points of law (27) and went unmentioned by the Court of Cassation, likely owing to paragraph 2 of the Directive of 27 November 2000. The latter requires "national legislation in force at the date of adoption of this Directive" (i.e. a standstill clause) for the application of the exception for entreprises de tendance - legislation that France has never had (28).
The Court of Appeal to which the case was referred by the Court of Cassation (29) circumvented the standstill clause by skilfully taking pains to state that it was referring to the idea of entreprise de conviction “within the meaning of the case law of the European Court of Human Rights” (30). While the ECHR acknowledges that "under the Convention, an employer whose ethos is based on religion or a philosophical belief may impose specific duties of loyalty on its employees" (31), the Court endeavours closely to monitor the proportionality of any breaches of individual freedoms,
77 and above all to strike a balance between the justifications put forward and the opposing freedoms.
However, the Court of Cassation sitting in plenary session did not enter into this debate and refused to grant the label of entreprise de conviction (laïque) (32) (literally, an “undertaking of (secular) belief”) to the crèche, on the grounds that the group’s "purpose was not to promote and defend religious, political or philosophical convictions but, under the terms of its articles of association (33), "to develop activities directed at young children from disadvantaged backgrounds and to work for the social and professional reinsertion of women […] whatever their political or religious affiliations"”. The neutrality imposed on employees was therefore not connected to the promotion of a “secular philosophy” but was instead "an organisational method for a group intended to allow the coexistence of competing ideologies. It is therefore the opposite of an entreprise militante [literally, an “activist undertaking”]” (34). The Court thus approved the French doctrinal conception, according to which the entreprise de tendance or de conviction is one whose essential purpose is the defence or promotion of a doctrine or ethos.
This doctrinal stance is a marked deviation from the provisions of Article 4 (2) of the Directive of the European Council of 27 November 2000, which do not require the aim "of occupational activities within churches and other public or private organisations the ethos of which is based on religion or belief” to be the defence or promotion of a religion or specific beliefs.
As Gwénaële Calvès argues, such a restrictive definition of secularism results in “depriving the notion of any useful scope” insofar as “no major school of thought limits its activities to promoting doctrinal or spiritual beliefs”. Consequently, such logic may only be explained by a reluctance on the part of the courts to rule on the issue of the entreprise de conviction laïque (35).
Recognising the possibility of a company or undertaking claiming to be “de conviction laïque” (secular in its beliefs) in order to restrict the freedom to display one’s religion within the company strikes many as being fatal to freedom and contrary to the principle of secularism. Indeed, "whatever the reasons for a company wishing to exclude religion from its premises (social power, brand image, etc.), the mere intention not to offend non-believers may not be reason enough. This would amount […] to giving carte blanche to employers in order to deprive their employees of their right to express their religious beliefs” (36). For others, it is little more than an acknowledgement of the ambivalence arising from the notion of entreprise de tendance itself. If a given religion can be promoted by means of an entreprise de tendance, then secularism – defined as the belief that religious neutrality is the best way of living together – ought also to be promoted (37).
There is an ongoing debate as to the issue of whether secularism can, in France, be a belief like any other or whether, on the other hand, it must be confined to a role as an organising principle for the State vis-à-vis religion (38). For the European Court of Human Rights, the matter appears to be settled, at least as regards the principle, as it takes the view that "supporters of secularism are able to lay claim to views that attain the “level of cogency, seriousness, cohesion and importance” required for them to be considered “convictions” within the meaning of Articles 9 of the Convention and 2 of Protocol No. 1” (39).
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The recognition of an entreprise de tendance ou de conviction laïque (undertaking of secular belief or convictions) would necessarily bring about a marked decline in religion within companies, as all denominational businesses could potentially arm themselves with a neutrality clause in their internal regulations (whether it be in order to remain neutral in the eyes of their clientele or to ease relations within the company, for example). The restrictive definition adopted by the Court of Cassation sitting in plenary session ought, therefore, to allow trial judges to sort the convinced secularists from the opportunists – on condition, however, that those judges recognise the legitimacy of promoting secular convictions.
How then should one interpret the “promotion and defence of religious convictions" requirement in the recognition of an entreprise de tendance? As Gwénaële Calvès puts it, should the promotion and defence of such convictions be “the direct, essential or exclusive purpose” of the establishment in question? The uncertainty surrounding this definition will most certainly worry the multitude of denominational businesses whose primary purpose is not the promotion or defence of their religion. Be it a halal butcher’s shop, a kosher restaurant, a Catholic school - all exist to meet demand from a particular community in keeping with the convictions or beliefs of that community. The promotion and defence of religious dogmas may ultimately only be consequences of that type of activity.
In the absence of any recognition of the existence of an entreprise de conviction laïque, an employer may not rely on the duty of loyalty in order to require its employees to respect company doctrine. The Court in Baby Loup therefore decided to check the crèche’s internal regulations in light of ordinary law.
The assessment of the proportionality of the internal regulations in light of the aims pursued It is on the point concerning the validity of the clause in the internal regulations imposing neutrality on employees that the Plenary Session repudiated the decision of the Social Chamber of the Court of Cassation.
Article L. 1121-1 of the Labour Code provides that "no-one shall impose restrictions on rights of individuals, together with individual and collective freedoms, that are not be justified by the nature of the task to be performed or proportionate to the aims pursued". This rule is reiterated specifically at Article L. 1321-3 of the Labour Code in order to establish a framework for the provisions of internal regulations.
The proportionality of the clause In the first decision on the Baby Loup case, handed down in 2013, the Social Chamber of the Court of Cassation held that “the clause in the internal regulations, instituting a general and vague restriction, did not meet the requirements under provided Article L. 1321-3 of the Labour Code”. The Court therefore concluded that "the dismissal, decided on discriminatory grounds, was null and void”. Indeed, where the internal regulations were illegal, the refusal to obey the same on the part of the employee was legitimate and her dismissal unjustified. Consequently, the dismissal is deemed “contaminated”. The latter being based on an illegal clause in the internal regulations, and that clause violating a fundamental freedom protected from all forms of discrimination, the dismissal in turn becomes discriminatory. Regardless of whether the dismissal is based on additional grounds other than the refusal to obey the specific clause, the dismissal has been contaminated by the existence of a discriminatory element and can no longer be justified.
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The Court of Cassation sitting in plenary session took a different approach to the internal regulations. Rather than assessing its wording in an abstract way, it opted for an examination in concreto; i.e. regardless of the fact that the wording of the clause in question was formulated in general terms where the rule was intended to apply de facto to all members of staff by virtue of their position and to the premises where they performed their task. The Court ruled that, in light of the wording of the Baby Loup group’s internal regulations and above all the context in which the regulations were intended to apply ("a small-scale group, employing only eighteen members of staff, who were or could be in direct contact with the children and their parents”), the Court of Appeal could have deduced therefrom that it was sufficiently “justified by the nature of the tasks performed by the group’s employees and proportional to the aims pursued”. Had the internal regulations been intended to apply to a large company in which the employees perform highly diverse and clearly distinguished tasks, with some in contact with customers and others not, then the clause would have been too general and vague as it would have been disproportional for some members of staff. However, as in the present case all employees could find themselves in contact with the children and their parents, it was irrelevant that the clause did not stipulate exactly which positions were concerned by the duty of loyalty (40) as it was justified for all employees. The Court sitting in plenary session therefore contented itself with providing a method for examining the provisions of internal regulations and left the issue to be decided by the lower court. This approach is interesting as it will serve in future to take account of the context in which the internal regulations are worded and, above all, to identify an employer’s intention when drafting those regulations.
The justification for the measures in light of the legitimacy of the aims pursued It is not simply a matter of examining the proportionality of the measure in question; the objective pursued must also be legitimate and justified. The grounds of the Court’s decision are terse on those particular points. In putting the examination of the internal regulations in the hands of the lower court, it refused to give any guidelines, not to mention any explanation, on what would justify a violation on the freedom to express one’s religion in the workplace. And yet it is on precisely that justification that public debate is based.
The justification is not to be found in the existence of a mission of general interest justifying the application of the secularism principle. The Court sitting in plenary session did not overturn the decision of the Social Chamber on this point: the principle of secularism, as provided under Article 1 of the Constitution, has no place in business.
The only indication offering a glimmer of an answer to this question lays in the designation, by the Court of Cassation, of those employees at whom the measure is directed: those who “were or could be in direct contact with the children and their parents”. It therefore comes as no great surprise that the nature of the activity concerned appears to play a significant part in justifying a restriction on individual freedoms. But how does the presence of children and parents justify a crèche employee having to comply with a duty of neutrality? The answer to the latter question is to be found in the solution proffered by the Paris Court of Appeal, as the Court of Cassation sitting in plenary session contented itself with a limited review of the lower court’s solution.
When the matter was referred back to the Paris Court of Appeal (41), the Public Prosecutor, François Falletti, recalled that the European Court of Human Rights considers that in order to “protect an individual as a free and responsible person”, it is possible to protect from any
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“religious influence [those] persons who lack judgement” (42). This decision concerned the wearing of the Islamic veil (hijab) at a primary school admitting children aged between four and eight years. The Court held that young children were “a particularly suggestible and sensitive audience". The Baby-Loup crèche, which is both a crèche and a daycare provider, admits young children aged between two months and nine years. They therefore are indeed a "particularly suggestible and sensitive audience”. The fact remains, however, that the European Court of Human Rights has never had to rule on the issue of religious neutrality outside of school, except in Turkey where the Court admits the ban on religious symbols in higher education institutions on the grounds of freedom of thought, conscience and religion (43).
However, the argument whereby the duty of neutrality would be justified by the need to respect freedom of thought, conscience and religion “to be constructed for every child” (44) seems flimsy. It can immediately be countered with the argument that exposing children to cultures other than that of their parents could tend to get them “accustomed […] to social diversity” (45).
The Court did, however, take care to state that it is not only proximity to "children" that justifies such a duty of neutrality, but also contact with the "parents”. There is consequently a swing towards a completely opposite line of reasoning, as the aim of such neutrality may be to avoid any interference in the educational choices made by parents. "The duty of political and religious neutrality would therefore be justified by the need to care for children in circumstances that do not clash with… the convictions held by parents” (46).
It is thus by means of an examination of the justification for the internal regulations in light of the specificity of the business that the Court cursorily recognizes the existence of an entreprise de tendance laïque. “The Court notes that some parents consider secularism – in the "privatised" sense of promoting silence on religion in certain spheres of life in society – is a value that fits into a system of "political or philosophical convictions"” (47).
Insofar as the crèche clearly displayed in its articles of association that its purpose was to admit children in a neutral environment, it could, where the aims pursued were legitimate and justified, require its employees to comply with such a duty of neutrality.
Conclusion Despite the solemnity that accompanies any decision of the Court of Cassation sitting in plenary session, this judgment does not shed any light on the powers of employers in matters concerning the management of religion within the company – and that is fortunate. It is not for the courts to decree such a demarcation where a fundamental freedom is at stake. However, they can provide a definition for the entreprise de conviction which had been lacking previously, but this also raises more questions than it answers. With this new definition, what will happen to religious educational institutions, for instance, or specialist restaurants? There is no guarantee that their purpose will suffice in justifying an infringement of employee freedoms. Will they also have to draft their own internal regulations in order to establish clearly those particular duties with which they expect their employees to comply (including those instances where they are not legally bound to issue such regulations)? On the other hand, internal regulations may always provide for such infringements where these are justified and proportional to the aims pursued. In attempting to be all things to all people, the Court opted for a solution that is more technical than it is political. The Social Chamber has not been directly contradicted, particularly on the issue of the non-
81 applicability of the principle of secularism in companies governed by private law that do not provide a public service, but its method of assessing the internal regulations has been amended, resulting in a different solution.
The main question that remains is that relating to the decision’s compliance with European law. It has been announced that the employee will take her case before the European Court of Human Rights, but it is very difficult indeed to predict the outcome. Will the employee’s freedom of expression outweigh the crèche’s freedom of association?
Notes: (1) Motto of the United Kingdom since the reign of Henry V, in French. (2) "Allah is Great", motto of Iraq. (3) "With God’s Help", motto of the Principality of Monaco. (4) "God, Fatherland, Freedom", motto of the Dominican Republic. (5) "For God, the Prince and the Fatherland", motto of Liechtenstein. (6) Motto of the United States since 1956. (7) Art. 2 of the Act of 9 December 1905 concerning the separation of Church and State. (8) A public service is defined as an activity intended to meet a need in the general interest which recognised as such by the public authorities and not in light of the objective nature of that activity. But the general interest alone does not suffice in characterizing a public service. It is also necessary that a legal person governed by public law take on the management of that service. This is the central issue in the Baby Loup decision: some crèches are public services while others are not, based on the capacity of the person running the crèche. Litigation concerning public services is not heard by the ordinary courts but is instead brought before the administrative courts. (9) G. Calvès, interview by Nicolas Hervieu, “Entretien croisé des Professeurs Gwénaële Calvès et Emmanuel Dockès sur le retentissant arrêt baby-Loup”, in La revue des droits de l’homme [online], Actualités Droits-Libertés, posted on 1 July 2014, para. 34 p.7. (10) The term "public service users" is revealing as to the French conception of a public service. There are no “customers” insofar as the purpose of a public service is not to turn a profit, or even to be viable. (11) Art. L. 141-5-1 of the Code de l’éducation (Education Code): “The wearing of symbols or clothing whereby students conspicuously display a religious affiliation is forbidden in state primary, lower secondary and higher secondary schools”. (12) Conversely, the purpose of a private-sector undertaking is generally to make a profit. Where this is not the case, particularly in the charities sector, the distinction between a private- sector undertaking and a public service will be made based on the person running the activity in question. (13) In theory, at least. (14) The internal regulations allow an employer to set rules for all staff members relative to discipline, working hours, health and safety, together with the penalties applicable in the event of a breach of those rules. (15) Temporary suspension of the employment contract, decided by the employer, as a penalty. (16) The Cour de cassation (Court of Cassation) is the highest court in the French legal order. It is divided into six Chambers. The plenary session is an exceptional formation for the Court of Cassation and is composed of 19 members: the First Presiding Judge and three members from each Chamber.
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(17) Court of Cassation (plenary session) Cass., ass. plén., 25 June 2014, F-P+B+R+I, n° 13-28.369, Dalloz, 2014, p. 1386 (see translation); AJDA, “Point final à la saga de la crèche Baby-Loup?”, 2014, p. 1293, note. J.-M. Pastor; Nicolas Hervieu, “Entretien croisé des Professeurs Gwénaële Calvès et Emmanuel Dockès sur le retentissant arrêt baby-Loup”, above; C. Willmann, “Affaire Baby-Loup : entre souplesse et fermeté”, Lexbase Hebdo édition sociale, La lettre juridique n°577 of 3 July 2014; F. Champeaux, “Il fallait sauver le soldat Baby-Loup”, Sem. Soc. Lamy, 30 June 2014, n°1637 ; “Entretien avec C. Radé : l’après Baby-Loup”,Dalloz 2014, n°26. (18) Decision of Industrial Tribual at Mantes la Jolie: CPH, Mantes la Jolie, 13 décembre 2010, n°10/00587, (19) Court of Appeal at Versailles: CA Versailles, 27 octobre 2011, n°10/05642, J-E Ray, “À propos d'une rébellion”, Dr. Soc. 2014. 4 ; F. Laronze, “Affaire Baby Loup : l'épuisement du droit dans sa recherche d'une vision apolitisée de la religion”, Dr. Soc. 2014. 100; J. Mouly, “L'affaire Baby Loup devant la cour de renvoi : la revanche de la laïcité?”, Dalloz. 2014. 65 ; J.-F. Akandji-Kombe, “La valse « Baby-Loup », troisième temps :la laïcité dans l’entreprise privée à droit forcé”, Cahiers sociaux, 1 February 2014 n° 260, P. 90 ; P.-H. Antonmattéi, “Le port de signes religieux dans l'entreprise : au-delà de Baby Loup”, Semaine sociale Lamy, suppl., 23 Dec. 2011, n° 1611, p. 9. (20) Cass. Soc. 19 mars 2013, Fatima X c/ Association Baby-Loup, FS-P+B+R+I, n° 11-28.845 : Bull. civ. V, n° 76; Dalloz 2013. Actu. 777; Dalloz 2013. Pan. 1026, obs. Porta; RJS 5/13, no 346; Dr. soc. 2013. 388, obs. Dockès ; JS Lamy 2013, no 342-2, obs. Lhernould ; JCP S 2013 no 1146 (2e esp.) note B. Bossu ; F. Rome, Baby Loup dans la bergerie : D. 2013, p. 761 ; Dalloz actualité, 27 March 2013, obs. M. Peyronnet; G. Calvès, “La chambre sociale de la Cour de Cassation face à l’affaire Baby Loup : Trois leçons de droit, et un silence assourdissant”, Respublica, 21 mars 2013; E. Dockès, “Liberté, laïcité, Baby Loup : de la très modeste et très contestée résistance de la Cour de cassation face à la xénophobie montante”, Dr. soc. 2013. 388 ; R. Schwartz, “La laïcité paradoxalement consacrée”, Semaine sociale Lamy 2013, n° 1577, p. 8, I. Desbarats, “Affaire Baby Loup : laïcité fragilisée ou liberté religieuse renforcée?”, JCP S n° 29, 16 July 2013, 1297. (21) The delegation of a public service is a contract under the terms of which a legal person governed by public law entrusts the running of a public service for which it is responsible to a public or private person, called the concession holder, whose remuneration is substantially linked to operational results (Article L 1411-1 of the Code général des collectivités territoriales (General Local Authorities Code)). (22) Social Chamber, Court of Cassation: Cass. Soc. 19 mars 2013, Mme X c/ CPAM de Seine-Saint-Denis, FS-P+B+R+I, n° 12-11.690; F. Dieu, “Le principe de laïcité s'impose à tous les employés des services publics”, JCP S 2013, 1298 ; J.-P. Lhernould, “Signes religieux au travail: arrêts Baby-Loup et CPAM 93”, Jurisprudence Sociale Lamy, 2013, p. 342. (23) P. Waquet, Loyauté du salarié dans les entreprises de tendance, Gaz. Pal. 1996. 1427. (24) See the recent decision of the ECHR, Fernández Martínez v Spain, application n° 56030/07, 12 June 2014. (25) Art. 4 (1) of EC Directive n° 2000/78, 27 Nov. 2000, establishing a general framework for equal treatment in employment and occupation. (26) Isabelle Desbarats, Affaire Baby Loup : laïcité fragilisée ou liberté religieuse renforcée ?, JCP S 2013. 1297, § 7.
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(27) Social Chamber of the Court of Cassation: https://www.courdecassation.fr/jurisprudence_2/chambre_sociale_576/536_19_25762.html: at no point does the judgment address the issue raised by the respondent association. (28) Unless case law can be considered as "national legislation", in which case there is a legal scheme governing such an entreprise de tendance in the absence of a legal definition of the same: Cass. soc., 17 Apr. 1991, n°90-42.636, Painsecq c/ Assoc. Fraternité Saint Pie X, Dr. soc., 1991, p. 485, note J. Savatier, JCP G, 1991, II, 21724, obs. A. Sériaux ; Cass., ass. plén., 19 May 1978, Dame Roy c/ Assoc. Sainte Marthe, D. 1978, p. 541, concl. Schmelck R., note P. Ardant ; JCP G 1978, II, 19009, note R. Lindon; P. Waquet, above; Soc. 20 Nov. 1986, Fischer, JCP 1987. II. 20198, note Revet. (29) This designates the court of appeal ruling on referral from the Court of Cassation. As the latter only rules on points of law, it makes referrals back to the courts of appeal for the purposes of applying the rule that it has just identified. It is when the court of appeal refuses to comply with the decision of the Court of Cassation that the matter may be brought before the Court sitting in plenary session. (30) CA Paris, 27 Nov. 2013, n° 13/02981, J. Mouly, “ L'affaire Baby Loup devant la cour de renvoi : larevanche de la laïcité ?”, Dalloz., 2014, p. 65. (31) ECHR, Schüth v Germany, application n° 1620/03, 23 Sept. 2010; reported in France in Dalloz 2011. 1637, chron. J.-P. Marguénaud et J. Mouly ; ibid. 2012. 901, obs. P. Lokiec et J. Porta ; RDT 2011. 45, obs. J. Couard. In a case concerning the dismissal of a salaried employee working for a Mormon church, on grounds of extra-marital sexual relations, see ECHR, 3 Feb. 2011: Dalloz 2011, p.1637, note J. Mouly. (32) On the concept of entreprise de tendance laïque, see: F. Gaudu, “La religion dans l'entreprise”, Dr. soc. 2010. 65, and “L'entreprise de tendance laïque”, Dr. soc. 2011. 1186. (33) All constitutive provisions on legal personality. (34) J. Mouly, "L'affaire Baby Loup devant la cour de renvoi : la revanche de la laïcité?" note ss CA Paris, 27 Nov. 2001 : Dalloz 2014, p. 65; in the same vein, see E. Dockès, interview by Nicolas Hervieu, "Entretien croisé des Professeurs Gwénaële Calvès et Emmanuel Dockès sur le retentissant arrêt baby-Loup", ibid., §37 p.7: "neutrality of the antithesis of conviction, of belief. A crèche claiming to be secular or neutral does not defend a belief: it accepts them all"; or E. Dockès, "Liberté, laïcité, Baby Loup : de la très modeste et très contestée résistance de la Cour de cassation face à la xénophobie montante": Dr. soc. 2013, p. 388. (35) G. Calvès, ibid. §33 p.7. (36) B. Bossu, “Affaire Baby Loup : la décision en demi-teinte de l'assemblée plénière”, JCL S, n° 27, 8 July 2014, p. 1287: in this respect, he relies on a report from the Commission nationale consultative des droits de l'homme (French National Consultative Committee on Human Rights): Avis sur la laïcité, 26 sept. 2013. (37) In the same vein, see G. Calvès, “La chambre sociale de la Cour de Cassation face à l’affaire Baby Loup : Trois leçons de droit, et un silence assourdissant”, Respublica, 21 March 2013, [online]: “the idea of an association "de tendance laïque" is not surprising, unless secularism is reduced to its legal and political dimension. Secularism (be it liberal, open, strict, pluralist, based on recognition, etc.: there is no shortage of interpretations) may also be understood as a social project, worthy of being set up as the “proper purpose” of an entreprise de tendance”. (38) P. Adam, “La crèche et l'au-delà”: Semaine sociale Lamy, 2011, n° 1515, p. 10. (39) ECHR, Campbell & Cosans v United Kingdom, 25 Feb 1982, series A n/48, § 36, cited in the decision of the Grand Chamber in Lautsi and others y Italy, Application No °30814/06, 20 March 2011
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(40) The duty of loyalty is a corollary to the employment contract, resulting from the duty of good faith inherent to any contract under French law. (41) See Rapport du procureur général (Report from the Public Prosecutor) p. 11 in CA Paris, 27 Nov. 2013, n° 13/02981. (42) ECHR, Dahlab v Switzerland, Application N° 42393/98, 15 February 2001; French references: AJDA, 2001, p.480, note J.-F. Flauss ; RFDA, 2003, p.536, note N. Chauvin. (43) ECHR, Sahin v Turquie, Application N° 44774/98, 10 November 2005; French references: AJDA, 2004, p.1809, chron. J.-F. Flauss ; D., 2005, P.204, note G. Yildirim. (44) Art. 14 of the New York Convention on the Rights of the Child, 20 November 1989. (45) E. Dockès, ibid. §17 p.4 (46) G. Calvès, ibid. §47 p.9 (47) Idem.
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MONTESQUIEU LAW REVIEW Issue No.1 January 2015 French Law in a Globalizing World Business law:
A step towards the harmonisation of EU law in matters of insolvency Professor Jean-Luc Vallens
The Recommendation of the European Commission and France’s Ordinance of 12 March 2014
It is quite natural to be surprised at the differences between national legislations when the respective economies of each European Member State are increasingly integrated and interdependent. The rules relating to the reorganisation and winding-up of credit institutions were the subject of a "forced-march" harmonisation as a result of the banking and financial crisis of recent years. Those relative to compulsory administration and liquidation of commercial and industrial enterprises remain, in contrast, singularly marked by the civil laws of each State. The European Union has doubtless already concerned itself with facilitating the effectiveness of judicial decisions in this field: such was the purpose of Council Regulation (EC) 1346/2000 of 29 May 2000 on insolvency proceedings, which is currently being reviewed (1). However, the approximation of such laws was not the purpose of the Regulation, which pushed first the European Parliament (2), then the European Commission (3), to embark on this work.
On the same day when French law was renewed with Ordinance n° 20014-326 of 12 March 2014, the European Commission adopted a Recommendation intended to give national legislatures guidelines for the adaptation and approximation of laws on insolvency.
A comment may be made here: in Europe, harmonisation is not, as one American scholar has observed, "a euphemism for forcing commercially less important countries to adopt the remedies and priorities of the commercially more important countries" (4). The perspectives evoked by the European Commission are not those of a uniform law of insolvency based on the American federal model, but a harmonisation, allowing the legal insecurity of economic and banking players to be reduced and facilitating foreign investment. This is the goal expressed at the beginning of Recommendation: "[i]t is necessary to encourage greater coherence between the national the insolvency frameworks” (5). By “coherence”, we must understand “convergence” or “harmonisation”, and not standardisation. The tools available for Community regulation allow such a nuanced, gradual approach. A Recommendation is first of all the result of a choice made by the Commission’s departments, which may be followed by a subsequent Directive, destined to see those principles adopted therein transposed into national legislations, whilst being adapted to the local rules under domestic law. There is an indication in that sense in the final points of the Recommendation: the Member States are invited to implement the principles set out within 12 months and the Commission will assess national legislations within 18 months (6).
This “open method of co-ordination" is an expression of the concern for convergence, on the one hand, between national legislative systems and, on the other, between those systems and Community policy. We must recall, at this point, the objective pursued by the European Union, as expressed in the Recommendation: "to ensure that viable enterprises in financial difficulties, wherever they are located in the Union, have access to national insolvency frameworks which
86 enable them to restructure at an early stage with a view to preventing their insolvency, and therefore maximise the total value to creditors, employees, owners and the economy as a whole" (7): this is one way of expressing the general interest, even public economic policy, as highlighted by Professor Lucas (8).
This objective cannot be ignored when it is a matter of bringing successive amendments and adaptations to national law, as the French legislature does periodically.
The title of the Recommendation expresses the ambition pursued: it aims to provide "a new approach to business failure and insolvency". The stakes are considerable, given that national legislations are marked by the civil traditions of each legal system and find themselves at the confluence of multiple legal rules: securities law, property law, contract law, credit law and procedural rules.
The Commission has nonetheless adopted a particularly prudent approach, recommending a convergence of laws in fields where that convergence already exists: the early restructuring of companies in financial difficulty, which is intended to prevent insolvency and which is based on an analysis according to which insolvency is harmful both to the company and to its creditors, and a writing-off of an honest bankrupt entrepreneur’s debts, which is considered as an independent method of recovery, to guarantee them a “fresh start”.
The Commission thus avoids touching on the more sensitive subjects, i.e. more delicate issues: the adoption of standard criteria for opening insolvency proceedings, the establishment of common rules for verifying liabilities, the handling of debts subsequent to opening insolvency proceedings, the redefinition of those privileges and securities as may affect or be binding on the proceedings, or the establishment of standard rules for the voidability of legal acts detrimental to creditors. Some of these issues have already drawn the attention of the European Parliament, particularly the conditions for opening proceedings, the lodgement of claims, nullity actions, the treatment of corporate groups in insolvency and the powers held by receivers (9): the harmonisation of these rules would contribute even more fundamentally to legal certainty and investment. In opting for the two areas that it did select, the Commission has taken a partial approach which may be viewed as pragmatic. It is true that the Commission has undertaken to modernise (in the context of reviewing Regulation n° EC 1346/2000 of 29 May 2000) important topics such as the lodgement of claims, judicial co-operation and the treatment of groups in difficulty. However, these are essentially issues of judicial co-operation and the recognition of decisions more than substantive law.
The Commission’s sector-based approach does, however, involve real co-ordination between the Commission, the European Parliament and the Member States in order to guarantee the coherence of the chosen approach. The expansion of the Parliament’s prerogatives may even favour coherence in this instance.
The method employed also has the merit of giving the lie to a pessimistic interpretation, according to which harmonisation would always result in a “race to the bottom”, where the convergence point between laws would be the least relevant and the least protective scheme for the interests concerned.
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Conversely, while the Commission has limited its Recommendations to those areas where harmonisation appears, at the very least, to be useful and practicable, it does not confine itself to those general principles, but deliberately goes into the detail of the provisions that strike it as desirable. It is an interesting exercise to compare this with the guidelines chosen by the French legislature on the same day.
The simultaneity of these two legal documents allows, quite beyond differing objectives, a useful comparison to be made between the respective choices made by the Community legislature and the French legislature. We will use the Recommendation’s titles to examine the relevance of French law in light of European law.
1. Preventive restructuring framework
The Commission provides a detailed “road map” for Member States:
debtors should be able to restructure at an early stage, as soon as it is apparent that there is a likelihood of insolvency; debtors should keep control over the day-to-day operation of its business; debtors should be able to request a temporary stay of individual enforcement actions; a restructuring plan adopted by the majority prescribed by national law should be binding on all creditors provided that the plan is confirmed by a court;, new financing which is necessary for the implementation of a restructuring plan should not be declared void, voidable or unenforceable as an act detrimental to the general body of creditors (10).
A few comments on these various points:
Negotiating an agreement: French law, as reformed by Ordinance on 12 March 2014, broadly answers the concerns raised by the European Commission: the mediation procedure, like the accelerated safeguard procedure and the safeguard procedure (we will leave aside the accelerated financial safeguard, insofar as it does not constitute a true collective procedure) allow the debtor to keep control of the operation of its business, either in its entirety (under the mediation procedure and the accelerated safeguard procedure) or under the supervision of a professional (under the safeguard procedure). Under no circumstances is the debtor stripped of its powers but rather remains "in possession", as per the term used under Chapter XI of the American Bankruptcy Code.
Opening proceedings at an early stage:
The opening of these proceedings is also made possible as soon as difficulties emerge (mediation procedure) or in the event of insurmountable difficulties (safeguard procedure), whereas the accelerated safeguard procedure is available to a debtor previously subject to a mediation procedure and presenting the same risk of financial failure, with no consideration other than the existence of a plan likely to receive “sufficiently broad support from creditors" (11). A debtor involved in a mediation procedure may ask to be granted time limits, in the event of individual lawsuits (12); and, if it is successful in securing the opening of an accelerated safeguard procedure, individual lawsuits are stayed automatically for the duration of the same, which is the
88 equivalent of the “moratorium” recommended by the Commission in its Recommendation. Nothing is said, however, on the recognition and enforcement of decisions given in proceedings, or on their public or confidential nature. The Commission and the European Parliament have taken this difficulty into account in the context of reviewing Regulation n° EC 1346/2000 of 29 May 2000 on insolvency proceedings.
Confirmation by a court:
A draft amicable agreement which has not been approved by all creditors may also be approved by a majority of them, followed by confirmation by a court, this making the agreement binding on all parties. Furthermore, where a debtor has obtained an amicable agreement that is confirmed by the court, the agreement will in future obstruct any potential deferral of the date for the suspension of payments, thus protecting the financing granted from any subsequent cancellation on the basis of acts during the suspect period.
Finally, it should be noted that the European Commission recommends limiting the timeframes for the various procedures, by setting the moratorium and negotiation period at four months, which is close to the duration of a mediation or an accelerated safeguard procedure (13).
Adoption of a restructuring plan:
The second aspect of the framework prescribed for the restructuring of companies in difficulty concerns the adoption of a plan, be it a restructuring or a recovery plan.
The Commission recommends a number of measures in that sense:
a classification of creditors, a majority vote in the amount of creditors' claims in each class, equality between creditors irrespective of where they are located, confirmation of the plan by a court protecting the legitimate interests of, the guarantee of treatment that is at least equivalent to what they would reasonably have received in the event of a compulsory liquidation, thus making the plan legally binding on all parties, safeguards, such as the rejection of an unrealistic plan, the protection of those creditors providing financing against the cancellation of measures and against any liability, and a general exception in the event of fraud on the part of the debtor (14).
In terms of French national law, both the legislation in place prior to the Ordinance of 12 March 2014 and that resulting from the reforms broadly meet the Recommendation’s requirements, and France will have no difficulty in presenting an outline of her law at the assessment stage announced by the Commission.
The debtor presents a draft plan to its creditors, either individually or in the context of the creditor committees set up for the largest companies. An agreement voted by a majority of creditors on such committees results in the court approving the plan on condition that it respects the interests of all creditors. The approved plan then becomes legally binding on all parties. No distinction is made between creditors on the basis of their location, or indeed of their nationality: equal
89 treatment is enshrined here, bearing in mind that this equality concerns unsecured or non- preferred creditors only, preferred creditors being guaranteed priority treatment provided by law.
Conversely, some of the European Commission’s recommendations are hardly reflected in French law and present a challenge for France’s national legislature.
The Recommendation of 12 March 2014 invites Member States to curb their legal formalities, particularly by avoiding the appointment of a mediator or a supervisor in order to "avoid unnecessary costs" (15). The Commission shows more naive optimism than pragmatism here, insofar as the intervention of an insolvency professional, whilst generating some costs, serves first of all to build up creditor confidence and ensure the equal treatment called for by the Commission. It is true that it concedes that the court may consider such an appointment necessary (16), which restricts the interest of this particular recommendation to a general call for cost containment. This approach could be more of a transfer to institutional creditors of the freedom to impose their own advisors on a debtor, with a view to developing the basis of a favourable agreement, thus confusing the specific interests of those creditors with the collective interests of all parties concerned, thereby also setting aside the expectations of heads of business. In the United States, for instance, where an insolvency professional is not appointed by the court, the head of the company will, at the request of the bank creditors, have an ad hoc administrator appointed, the Chief Restructuration Officer, who will negotiate the company’s debts. On this point, it is not certain that the Commission’s Recommendation truly meets the objective that it has set for itself. The French approach seems preferable here: this consists in establishing a framework for the remuneration of appointed professionals, which is the subject of many of the provisions contained in the Ordinance of 12 March 2014 (17).
The Commission also recommends the application of preventive procedures to all financial entities and providing for a creditor vote in all scenarios (18). The French legislature is more realistic in this respect; while the mediation procedure is open to all companies regardless of size, this is not the case for the other two aspects: the accelerated safeguard procedure and the creation of creditor committees.
Only the largest companies are eligible for the accelerated safeguard procedure created by the Ordinance of 12 March 2014 (19) and given creditor committees (20), in such a way that a vote by creditors on those committees concerns only credit institutions and the main suppliers to the debtor company. The following are excluding from these mechanisms: as regards debtors, companies that do not reach the requisite threshold (unless the bankruptcy judge rules otherwise); and, as regards creditors, those that are neither credit institutions nor the main suppliers to the debtor company.
For those creditors not called upon to vote, current French law restricts their involvement to an individual consultation, with no binding effect on the courts. From this perspective, national law is less favourable to creditor voting than is recommended by the Commission. French law differs on this point from several other national legislations, under which creditors gather in assemblies or committees and vote in the majority of procedures on the solutions presented by the head of the company. Whether the French legislature will resist taking the same course is not certain, despite the inconvenience presented by the creditors’ meeting in terms of cost and time. French law’s
90 experiment with bankruptcy meetings in 1967 does not serve as an argument in favour of restoring these mechanisms.
The European Commission does appear to have guessed that there are difficulties, as it suggests that creditors be able to vote "by distance means of communication such as registered letter or secure electronic technologies" (21).
One final noteworthy difference between the respective directions of Community law and French law concerns the treatment of creditors in the context of a plan, for which the Commission recommends a specific safeguard: the rule on the best interests of creditors, i.e. a comparison between the treatment applied by the draft plan to a creditor and the creditor’s fate in the event of compulsory liquidation (22). This mechanism draws inspiration from the "best interest test", itself inspired by American law, and incorporated in particular into the German insolvency code (23).
Again, this rule should in no way trouble the French legislature, which already recommends that courts confirm amicable agreements once they have ensured that those agreements safeguard the interests of those creditors who are not party to the agreement (24), and restricts voting to those creditors for whom the plan would change the payment methods (25).
2. Second chance for entrepreneurs
The European Commission deals with this issue in a more cursory manner. Under this heading, the Commission recommends the creation of a legal scheme for discharging entrepreneurs from their debts, prescribing a maximum period of 3 years as of the opening of bankruptcy proceedings or the confirmation of a recovery plan (26).
The rule recommended by the European Commission is also inspired from the common-law device known as discharge, and already featured as a major objective with the adoption of the Small Business Act in June 2008, redrafted in 2011. It can be found under a variety of names (e.g. esdebitazzione, excusabilité or Restschuldsbefreiung) in the national legislations of many European States, all reformed in this sense over the last twenty years: Belgium, Germany, Italy and Spain have thus opened the possibility of a complete discharge of their debts to those debtors in difficulty subject to bankruptcy proceedings, in order to allow them to resume an economic or commercial activity.
The concept of a compulsory remission of residual debts, which have not been paid in the context of compulsory liquidation proceedings, has – despite the initial criticisms from many civil law experts – found its place in the general economy of insolvency procedures in France and neighbouring countries.
It is expressed in national law by a prohibition on renewing individual lawsuits against a debtor at the end of compulsory liquidation proceedings closed on grounds of inadequacy of assets. The Commission’s intention is to limit this possibility to honest debtors acting in good faith, which corresponds to the conditions set under French law, owing to the exceptions featured in Book IV of the Code de commerce (Commercial Code). Enshrined by the French legislature in 1985 (27), the right to a second chance for debtors has been extended to consumers who are heavily in debt by the Code de la consommation (Consumer Code) (28), for reasons more closely related in this
91 instance to the need to maintain social harmony than the intention to encourage new individual businesses. The Ordinance of 12 March 2014 extends this option still further in favour of entrepreneurs with few assets by means of a new mechanism: the professional recovery procedure (29). The procedure is brief (lasting 4 months, in theory), stripped of any measures relating to liquidation and the audit of liabilities, and results in the writing-off of existing debts (30). On this point, the French legislature wished to facilitate the recovery of insolvent debtors with a good- faith condition whilst providing the possibility of ending it at any time, even cancelling the write- off of debts thereafter (31). The aim is to avoid onerous legal proceedings that generate additional costs and delays. The conditions recommended by the Commission, which mentions exceptions and restrictions, are linked to dishonest or good-faith behaviour on the part of the debtor. Other mechanisms are also connected to this aim, such as the simplified compulsory liquidation proceedings which end, in theory, within a year and now within six months following the reforms brought about by the Ordinance of 12 March 2014 (32), or the possibility of ending compulsory liquidation proceedings where the realisation of assets seems disproportionate with the interests of the proceedings (33), which covers the concept of a cost/benefit analysis: while they do not fully coincide with domestic law, these rules do express the common idea of a concession intended for debtors having been subject to insolvency procedures with no actions in bad faith or fraud on their part.
As mentioned above, the European Commission recommends a period of three years as of the opening of bankruptcy proceedings, to encourage Member States to set a reasonable timeframe for the duration of liquidation proceedings. Conventional law, which guarantees proceedings of a reasonable duration for litigants, appears to be an underlying principle behind the Recommendation. However, the Commission appears to deviate from this clear objective as it considers another option: it also recommends, as an alternative, a period of three years as of the implementation of a repayment plan. Does this mean that the duration of such a plan ought not to be longer? If so, the chances of success would be smaller, unless there were a significant drop in the number of creditors to repay. If not, it is scarcely conceivable that the Recommendation should appear to seek to discharge the debtor after three yearly instalments, in defiance of its own obligations.
Finally, the Commission recommends that debtors be allowed "means of survival", particularly through the possibility of "allowing the entrepreneur to keep certain assets" (34): again, the Ordinance of 12 March 2014 is consistent with the Recommendation, insofar as it allows the liquidator to release less valuable assets to the debtor’s relatives, to allow timeframes to be set for a bankrupt debtor to vacate premises, and to exclude any property acquired by the debtor through inheritance from the scope of insolvency proceedings.
If, at the end of the assessment period scheduled by the Commission, French law has again to be changed, practitioners and courts will not be disorientated by the direction taken by the Community legislature.
Notes (1) On 3 June 2014, the Commission and the European Parliament produced a joint version of a proposal for a revised Regulation, n° 10/284 (2) European Parliament, Resolution of 15 November 2011, P7 TA (2011) 0484. (3) European Commission, Communication of 12 December 2012
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(4) L. LoPucki, Global and out of control?, Amer. Bankr. Law Journal 2005, p 79 (5) European Commission, Recomm, guidance notes n° 11 (6) European Commission, Recomm, pt. 34 and s. (7) European Commission., Recomm, guidance notes n° 1 (8) L'essentiel Dr. Entr. en diff., May 2014, n° 8, p 1 (9) EP, Resolution 2011(2006) of 15 November 2011 (10) European Commission. Recomm, pt. 6 (11) Code de commerce, Article L 628-1, para. 2 (12) Code de commerce, Article L 611-17 para. 5 (13) European Commission. Recomm, pt n° 13 (14) European Commission. Recomm, pt n° 15 and subs. (15) European Commission. Recomm, guidance notes n° 17 and pts n°8 and 9 (16) European Commission. Recomm, pt. n°9 (17) Code de commerce, Article L 611-14, para 1, and L 611-16, para 2 (18) European Commission. Recomm., pt. n°16 and s. (19) Being 20 employees, €3 million turnover and total assets of €1.5m (Code de commerce, Article D 628-3) (20) Being 150 employees or €20m turnover (Code de commerce, Article R 626-52) (21) European Commission. Recomm., pt. n°19 (22) European Commission. Recomm., pt. n°22, c) (23) InsO, § 245 and 251 (24) Code de commerce, Article L 611-8 II, 3° (25) Code de commerce, Article L 626-30-2, final para. (26) European Commission. Recomm., pt. 30 (27) Now: Code de commerce, Article L 643-11 (28) Code de la consommation, Article L 332-6 para. 2 and L 332-9 para. 2 (29) Code de commerce, Article L 645-1 & subs., threshold set at €5000 (C com sec. R 645-1) (30) Code de commerce, Article L 645-11 (31) Code de commerce, Articles L 645-9 and L 645-12 (32) Code de commerce, Article L 644-5 (33) Code de commerce, Article L 643-9 (34) European Commission. Recomm., pt n° 32 c)
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MONTESQUIEU LAW REVIEW Issue No.1 January 2015 Criminal law:
The influence and false influence of European Union law on French criminal procedure Amane Gogorza, Associate Professor, ISCJ, University of Bordeaux
The Law of 27 May 2014 transposing Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings
The Law of 27 May 2014 (1), transposing Directive 2012/13/EU on the right to information in criminal proceedings, which came into force for the most part on 2 June 2014 (2), was eagerly awaited. Not that the level of the European Union’s requirements in this area was especially high, or that French criminal procedure would undergo any major upheavals as a result of the transposition; it was rather that, as part of a movement in French case law and legislation to enhance the rights of the defence, this Law – which had been debated since the beginning of 2014 (3) – presented an opportunity to refine and clarify the position of individuals implicated in police investigations. The Law was expected, in particular, to provide a framework for the so-called “audition libre" (4) – voluntary questioning or hearing without any placement in police custody – of the suspect and to reconsider the issue of access to case materials during periods of police custody. In many respects, the opportunity went begging.
The right to information in criminal proceedings – the very purpose of the Law of 27 May 2014 – responds to a more ambitious objective of guaranteeing the rights of persons implicated in police investigations, as proclaimed by the European Union. Directive 2012/13/EU – also known as Directive B, transposed by the Law discussed here – is, in effect, the second of a series of texts adopted or projected by the Union (5) implementing a road map issued by the European Council aiming to enhance the procedural rights of suspects and defendants in the context of criminal proceedings (6). It follows Directive “A” (7) on the right to interpretation and translation in criminal proceedings, which was incorporated into the body of French legislation by a Law of 5 August 2013 (8); and precedes a Directive “C” of 22 October 2013 (9), on the right of access to a lawyer, which will have to be transposed by Member States before 27 November 2016. Some of the points contained in the latter Directive, particularly those concerning the lawyer of a person interviewed "freely", have nevertheless been incorporated ahead of time into the Law of 27 May 2014 (10).
Logically enough, the right to information runs through the entire criminal process, from the police investigation stage to trial. Doubtless because the police investigation stage currently finds itself in the spotlight, the French legislature has dedicated two chapters of the Law to the issue of informing suspects, which essentially refers to the police investigation stage, and only a third chapter to defendants appearing before investigative and trial bodies. While this formal presentation says little a priori as to the content of the Law, the Directive’s two cardinal points have naturally served as a guiding principle for the French legislature. Thus the right of a defendant to be informed of their rights and access to information useful and necessary to their defence inspire and cement the new provisions as a whole (11).
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As far as it responds to the European Union’s requirements in relation to the minimum set of procedural rights to be acknowledged to persons involved in criminal proceedings, the Law of 27 May 2014 indisputably contributes to an area of freedom, security and justice. Admittedly, the construction of such an area can proceed without any major problems: aside from the fact that the European Union is in no position to impose a rigid procedural blueprint on Member States (12), the rights of defendants have continued to be enhanced, especially under the influence of conventional law, to such an extent that the impact study relative to the Law of 27 May 2014 concluded that many EU Member States already have legislation that complies overall with the Directive’s requirements (13). This observation naturally applies to France, where the defendant’s right to information has continued to be consolidated under the influence of extra-Community sources. In this respect, and on a number of aspects, the new Law is part of what is after all a quite natural continuum of previous reforms or advances in case law, thus making the Union’s involvement almost non-existent (I below). Nevertheless, the Directive is not without significance. By placing people rather than procedural actions (the names and arrangements of which vary from one country to the next) at the heart of its measures, it allows French law to rethink the police investigation stage by giving substance to a legal status that is widely ignored: that of suspects (II below) (14). And this, it would seem, is the essential contribution made by the Directive and the new Law.
I It would undoubtedly be excessive to conclude that the transposition of the Directive has, from a technical point of view, brought nothing to French criminal procedure. First of all, the rights of persons in police custody have been supplemented. To the notification and the right to have a relative and the place of work informed of the detention order, to be examined by a doctor, to have a lawyer present, to make statements or to remain silent under the Law of 14 April 2011 (15), the following must be added, where applicable: the notification and the right to have an interpreter present, together with the right to see certain documents relating to the proceedings, whereas up until then only the lawyer had the right to do so (16). It should also be noted that there is a new right to submit observations to the magistrate responsible for deciding on the extension of police custody (17), which may be interpreted as a further step towards the adversarial process and the “jurisdictionalization” of the police investigation stage. Information on the reasons for the deprivation of liberty is also given, as the notification of the nature and the presumed date of the offence justifying the placement in police custody is replaced with the more complete information as to the classification and the presumed date and time of the offence, together with the purpose of the detention (18). Above all, the new Law provides that the rights in question shall be made known to the interested party according to specific arrangements, in a document separate from the statement, which must be given to the person, to which the Directive refers as the "Letter of Rights" (19).
As regards the pre-trial phase, the parties to the proceedings will, just like the person in police custody, have direct access to the materials of the case which are therefore no longer reserved for lawyers. More specifically, the parties will have the possibility, with exceptions (20), of being given copies of all or part of the evidence and statements on the case file (21), the Law wishing to guarantee an equal right to information between those being assisted by a lawyer and those preferring to prepare their own defence. Finally, as regards the trial phase, access to the materials of the case in criminal proceedings has also been opened up: while the person brought before the Public Prosecutor may now see said case file, be it directly or through the intermediary of their
95 lawyer (22), this access is guaranteed to the lawyer where the referral to the criminal court is made by summons or by notice to appear (23); the parties may also obtain copies of the same.
In spite of these new developments, one cannot help but think that European Union influence on French criminal procedure is marginal. Indeed, that influence does not take the form of an impetus for far-reaching reforms but rather that of adjustments, which serve to put the finishing touches to an earlier movement that is in some way inevitable. Worse still, in relation to the most controversial – and, in reality, the most highly anticipated – points, the Directive’s technical impact remains symbolic, even non-existent, as the European legislation is neither sufficiently clear nor sufficiently precise to establish indisputable solutions.
First of all, let us consider the direct access now acknowledged at every stage of the proceedings, although subject to different arrangements. On closer examination, the acknowledgement of this direct access was not really implied by the Directive which considers, on the contrary, that the right of access to the materials of the case ought to be guaranteed alternatively either to the person arrested or detained or to their lawyer (24), without however deciding on the scenario in which the defendant chooses to defend himself. Admittedly, it may be argued, as some legal scholars have, that the effectiveness of the right to information assumes, implicitly but necessarily, that the person not assisted by a lawyer may have sight of the case file themselves (25). By linking the exercise of the right to information with the assistance of a lawyer, the legislature would effectively have limited the scope thereof, contrary to European recommendations.
It nevertheless strikes us that while that interpretation of the Directive is desirable and the most rational, it is not the only possibility. Such direct access could just as easily be refused to the suspect by making the assistance of a lawyer compulsory or, if opting for a minimal interpretation of the Directive, deciding that from the moment when the lawyer may have access to the materials of the case, the alternative has been fulfilled, at least where the State provides a satisfactory legal aid system. In such cases, the defendant would simply have to ask for free legal assistance for the right to information to be guaranteed (26). Spain’s draft organic law transposing the Directive does not provide for direct access to the materials of the case for defendants or persons deprived of liberty (27).
The acknowledgement of the right of direct access to the materials of the case is instead the result of Constitutional Council case law. The latter has declared on a number of occasions that the provisions of the Code de procédure pénale (Criminal Procedure Code), under which disclosure of the evidence in the case was reserved for the lawyer acting for the parties – the defendant and the civil party – were incompatible with Articles 6 and 16 of the Declaration of the Rights of Man and of the Citizen, considering that such a filter was an infringement, on the one hand, of the right to a fair trial and of the right to a defence of persons not assisted or represented by a lawyer; and that, on the other hand, it contravened the principle of equality between persons wanting legal assistance from counsel and those wishing to defend themselves (28). Insofar as representation by a lawyer is not compulsory, except in exceptional cases, it is easy to understand that such discrimination may seem unjustified. The influence of the European Directive has yet to be proved on the issue of direct access to the materials of the case.
Secondly, the same applies to the right of a person in police custody to access the basic materials of the case, which right has not been acknowledged by the Law of 27 May 2014.
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In 2011, the French legislature authorised lawyers acting for persons in police custody to consult certain materials or documents on the case file: the statement on the placement in police custody and the notification of rights, the medical certificate and the transcripts of interviews with the person they are assisting. This restricted access to the case file was and remains highly controversial: firstly, because the materials envisaged by the legislature do not give a complete picture of the case and the prosecution evidence (29); secondly, and as a corollary, because this limited knowledge of the materials of the case deviates from the requirements laid down in respect of fair trials by the European Court of Human Rights. Given that the ECHR considers that legal assistance must encompass "the whole range of services specifically associated with legal assistance" and especially “discussion of the case, organisation of the defence, collection of evidence favourable to the accused, preparation for questioning, support of an accused in distress and checking of the conditions of detention” (30), it is difficult to see how this mission can be accomplished if the lawyer for the person in police custody cannot consult the basic materials of the case, and particularly those relating to the prosecution evidence.
The Law of 27 May 2014 naturally afforded the opportunity to reconsider the issue. This was particularly the case as Directive 2012/13/EU had given a certain amount of hope, some legal scholars considering that EU law imposed a requirement of fuller access to the materials of the case as soon as a person is placed in police custody. However, things remain unchanged, the French legislature having in some ways made the most of the ambiguities contained in the European text. In spite of appearances, the Directive remains unclear on the content of the right of access to the materials of the case. Article 7 identifies a number of scenarios. Paragraph 1 gives a person deprived of liberty the right to access any document allowing him to challenge the legality of their arrest. The following paragraph relates to suspects and defendants, independent of the deprivation of liberty; it guarantees access to all material evidence, whether for or against suspects or defendants, in order to safeguard the fairness of the trial and to prepare their defence. Finally, a third paragraph provides that “{w}ithout prejudice to paragraph 1, access to the materials referred to in paragraph 2 shall be granted in due time to allow the effective exercise of the rights of the defence and at the latest upon submission of the merits of the accusation to the judgment of a court”. The precise meaning of the latter paragraph raises a number of difficulties.
The reference to due time to allow the effective exercise of the rights of the defence leaves a wide margin of appreciation to Member States and allows the moment when the interested party will have access to all evidence in the case to be deferred, while the possibility of defending oneself has not been initiated. However, because paragraph 3, which states the time limits for access to the full case file, is not applicable where a person is deprived of liberty (31), it must doubtless be considered that a person who is arrested or detained, a person in police custody being at the forefront, must be able to access essential documents allowing them immediately to challenge the legality of their arrest or detention – in other words, during the deprivation of liberty (32).
The reality strikes us as being far more complex. While it is right that a person under arrest ought to be made aware of certain documents, it would appear that the purpose of this is to allow them to challenge the legality of the measure involving deprivation of liberty. The problem lays in the fact that, in French law, the legality of police custody may only be challenge at the pre-trial stage, before the investigation chamber or the criminal court, in limine litis. It is therefore at those stages, a priori, that access to documents allowing the deprivation of liberty to be challenged must be guaranteed to the defendant – as French law already does – and not while the person is in
97 police custody, unless the new right introduced provisions in favour of persons in police custody, namely that the right to submit observations to the magistrate responsible for deciding on the extension of police custody be considered as a means of challenging the legality of the arrest. This remains to be seen. It should be noted, moreover, that in its decision of 18 November 2011, the Constitutional Council justified the limited access to evidence during police custody, in particular because at that stage, there was no question of challenging the legality of the measure involving deprivation of liberty.
II Bearing in mind the ambiguities of the Directive transposed by the Law of 27 May 2014, the contribution made by EU law to the developments in French criminal procedure does not appear to have examined legal technique: the rights contained in the Directive already existed overall in the French legal system (not to mention many others) (33), even though the exercise of those rights or some aspects thereof may have been clarified by the Directive. Paradoxically, the latter’s main impact on French criminal procedure remains theoretical. The Union’s perception of criminal procedure - doubtless because it is built on the basis of different legal systems - brought to light the need to give greater visibility to the concept of suspect (in other words, to the person), rather than allegations, namely evidence or proof against an individual, which the French Code de procédure pénale already exploits to permit such and such a procedural act infringing individual freedoms (34). The thinking behind the right to a defence, particularly at the police investigation phase, was thus renewed. Indeed, up until now in France, people detained during the police investigation had not been recognised as having any particular legal status, unlike during the pre- trial phase. This deficiency could be explained by the fact that, the prosecution not having been instigated, the police investigation phase was generally viewed as being a unilateral investigation phase in which individuals – and particularly the suspect – were virtually non-existent. In this respect, procedural rights have traditionally been connected to pleadings, not to the status of suspect as such. Traditionally, therefore, hearings were a function of pleadings chosen by the investigating officer – police custody or not – not of the existence of allegations against a person. This situation was in contrast with that encountered at the pre-trial phase, in which defendants find themselves granted rights owing to a status related to their involvement in the facts (35), while investigative acts depend on the status of the interested parties.
Admittedly, the notion that suspects had to be recognised as having a specific legal status has caught on in recent years. Two decisions of the Constitutional Court subjugated the legality of the so-called "free" or voluntary questioning of a suspect (i.e. questioning without any placement in police custody) to the notification of certain rights: that of being informed of the allegations against them and that of leaving the offices of the judicial police at their convenience. It was in order to give substance to the status of suspect put forward by European Union law that the legal regime applicable to police questioning was supplemented by the Law of 27 May 2014 (36). Indeed, legal scholars expressed serious reservations as to the Constitutional Council’s recognition of voluntary questioning, thus calling for legislation. The beginnings of a framework for a well-known police practice were praiseworthy, but the incomplete legal regime was heavily criticised. It was especially regrettable that such questioning, which no-one viewed as an act of co-operation with police, could be conducted without a lawyer present, and there were ancillary fears that it could be open to abuse, allowing police to take statements from a suspect without the latter having received assistance from counsel. It was easy to imagine, for example, that a suspect wishing to avoid police custody would agree to voluntary questioning and that the investigating
98 officer would place them in custody when, feeling that their statements have begun to incriminate them, the same suspect decided to leave the offices of the judicial police. There was also something slightly embarrassing about the questioning – or perhaps even interrogation - of a suspect without the completely voluntary waiver (37) of the assistance of a lawyer, because the guarantees attached to the defence must logically be attributed in relation to the necessities of that defence and, therefore, to the existence of allegations, not exclusively to the coercion of the suspect (38). An overhaul of voluntary questioning was therefore essential, either to prohibit it by making the placement of the suspect in police custody compulsory; or by proposing a better framework for it.
This has now happened, as a suspect questioned "voluntarily" has, as a result of the new Law, identical rights to those of persons placed in police custody, though the arrangements for the notification of those rights differ, in that a Letter of Rights is not required (39). Thus a suspect must be informed of the classification and the presumed date and time of the offence of which they are suspected of committing or attempting to commit; the right to leave the police offices at any time; where applicable, the right to have an interpreter present; the right to make statements, answer questions or remain silent; whether the offence for which they are being questioned is a crime or a misdemeanour punishable by a term of imprisonment; the right to be assisted, during questioning or a confrontation, by a lawyer of their choice or, at their request, designated by the President of the Bar Association; and finally, the possibility of receiving legal advice, free of charge where applicable, from a legal advisory service (40).
The right of access to a lawyer will come into force on 1 January 2015, unlike the other rights which have been effective since 2 June 2014. This delay can be explained by the fact that the measures relative to assistance from counsel anticipate the transposition of Directive C (41), the transposition of which by Member States can wait until 27 November 2016. This time management has, however, had consequences for the notification of the right, which has also been deferred in the interests of consistency (42). Once again, the French adaptation of the Directive raises the question of an incorrect transposition. The duty to notify suspects of their rights being imposed by Directive B, and therefore having to be effective before 2 June 2014, has France not failed to fulfil its legal obligation to transpose the Directive within the relevant timeframe?
Without prejudice to what the European Court of Justice’s opinion may be in the event that an action is brought for failure to fulfil an obligation, such a conclusion strikes us as dubious. Indeed, while a suspect has not been arrested, Directive B does not stipulate the moment that they must be notified of their rights, simply stating that it must be done “promptly” (43) “in order to allow for those rights to be exercised effectively”, “as they apply under national law”. In reality, the moment when a suspect should be notified of their procedural rights is only made clear in a combined reading of Directives B and C. If a free suspect under interrogation must be able to have a lawyer present (Directive C) then the notification of that right must necessarily be given before the interrogation, when the possibility of voluntary questioning is offering to the suspect, without which the latter is ineffective (Directive B). All in all, the notification given to a free suspect of their right to have a lawyer present could be based on the timescales provided in Directive C. However, this is EU law at its own particular pace. As previously mentioned, it would appear that, according to the European Court of Human Rights, it is not possible for a suspect to be questioned, even before 2016, without their being notified of their right to have a lawyer present (44).
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So we return to our initial considerations. European Union law often settles for setting down a general framework for recognising rights with a view,, in its own words, to creating a secure Europe serving its citizens; the proposed technical provisions are deliberately vague so as to leave a wide margin of appreciation for Member States which, in reality, find themselves bound by other sources of law well before the Union intervenes.
Notes: (1) Law n° 2014-535, JORF 28 May 2014, p. 8864. (2) This was the timeframe set for the transposition of the Directive. Some provisions will only enter into force on 1 January 2015. This is the case, in particular, for the right of a suspect questioned voluntarily (i.e. without being placed in police custody) to have a lawyer present, or the right of a victim confronting a person questioned voluntarily to be assisted by counsel. See Article 15, Law of 27 May 2014, cited above. The recognition of rights relating to legal assistance was not implied by Directive 2013/13/EU of 22 May 2012, but by the later one of 22 October 2013 (Directive 2013/48/EU); French law therefore did not fail to comply with its transposition obligations within the time allowed. (3) The draft law on the right to information in criminal proceedings was tabled by the Government before the Senate on 22 January 2014, following the accelerated procedure. For a full commentary of the draft, see A. Botton, Droit à l'information dans le cadre des procédures pénales : un projet de loi contrasté, Dalloz. 2014, p. 431. (4) In French law, the audition libre, the hearing or voluntary questioning of a free suspect, conducted without coercion by an officer of the judicial police, also known as l'audition du suspect sans placement en garde à vue (the voluntary questioning of a suspect without placement in police custody). This has always existed, as the judicial police being under no duty to place suspects in custody. However, following two decisions of the Constitutional Council requiring that a person being voluntarily questioned be informed of the allegations against them as well as their right to leave the offices of the judicial police (Cons. Const. 18 Nov. 2011, n° 2011-191/194/195/196/197 QPC, Garde à vue, JO 19 Nov. 2011; Cons. Const. 18 June 2012, n° 2012/257 QPC , JO 19 June 2011), debate has raged on the conditions for the legality of such questioning. Observers have wondered whether the right to have a lawyer present should not also be recognised. (5) On 27 November 2013, the Commission published a number of draft Directives and Recommendations of the procedural rights of vulnerable persons (COM(2013) 822 final - 2013/0408 (COD)), the presumption of innocence (COM (2013) 821 final - 2013/0407 (COD) and legal aid (COM(2013) 824 final - 2013/0409 (COD) (6) The roadmap was adopted by a Resolution of the European Council on 30 November 2009 and was incorporated on 11 December 2009 into the Stockholm Program - An open and secure Europe serving and protecting citizens; See Directive 2012/13/EU of 22 May 2012, OJEU, 01/06/2012, L 142/2, § 11-14. The roadmap provides for a number of measures intended to achieve this result: the right to translation and interpretation (measure A), the right to be informed of their rights and the charges against them (measure B), the right to legal aid (measure C), the right to communicate with relatives, employers and consular authorities (measure D) and the guarantees for vulnerable suspects and defendants (measure E). There was also a Green Paper on provisional detention (measure F). (7) Directive 2010/64/EU, OJEU 26/10/2010, L280/1. (8) Law n° 2013-711, JORF 6 August 2013, p. 13338. (9) Directive 2013/48/EU, OJEU 6/11/2013, L. 294/1.
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(10) Article 61-1 (5) of the Code de procédure pénale now provides that a person questioned voluntarily must be able to have a lawyer present. Nevertheless, this provision will only come into force on 1 January 2015 (Article 15 of the Law of 27 May 2014, cited above). (11) On these two essential points, G. Taupiac-Nouvel et A. Botton, La réforme du droit à l’information en procédure pénale, JCP, G, 2014, n° 27, doct. 802. (12) Under Article 82 TFEU, the European Union’s competence is limited in matters of criminal procedure. The European Parliament and the Council can adopt minimum rules to facilitate the mutual recognition of judgments and judicial decisions, as well as police and judicial co- operation in criminal matters having a cross-border dimension (13) See impact study of the Law of 27 May 2014, p. 17 and subsequent. (14) On this point, R. Ollard, Quel statut juridique pour le suspect, JCP, G, 2014, n° 36, p. 1547. (15) Law. n° 2011-392 on police custody, JORF 15 April 2011, p. 6610. (16) CPP, Article 63-1 as amended. (17) CPP, Article. 63-1, (3). (18) CPP, Article 63-1, (3). (19) Art. 4. (20) This will be the case in the event of "risks of pressure on victims, persons charged, their lawyers, witnesses, investigators, expert witnesses or any other person involved in the proceedings" - Article 114 (8) CPP. (21) CPP, Article 114 (4). (22) CPP, Article 393 (23) CPP, Article 388-4. (24) Article 7 of the Directive indeed envisages "suspects, defendants or their lawyers". (25) In this sense, see, A. Botton and G. Taupiac-Nouvel, cited above. (26) The ECHR does not consider that the fact of subjugating access to the materials of the case to legal assistance is incompatible with Article 6 of the Convention and the right to a fair trial: ECHR, Kermzow v Austria Application n°12350/86, 21 September 1993. It is true, however, that the issue was examined from the perspective of procedural fairness, not that of equality or non-discrimination between persons assisted by a lawyer and those wishing to defend themselves. (27) Proyecto de ley organica del 1 de agosto 2014 por la que se modifica la ley de enjuiciamiento criminal para transponer la directive 2010/64UE, de 20 de octubre 2010, relativa al derecho a interpretacion y a traduccion en los procesos penales y la Directiva 2012/13/UE de 22 de mayo 2012 relativa al derecho a informacion en los procesos penales, p. 11, available at http://www.mjusticia.gob.es/cs/Satellite/1292427088645?blobheader=application%2Fpdf&b (28) See Cons. Const. 9 Sept. 2011, n° 2011-160 QPC considering that, on conclusion of a preliminary inquiry, the notification of the initiation of a prosecution to the lawyers acting for the parties only is contrary to the Constitution; Cons. Const. 23 Nov. 2012, n° 2012-284 QPC on Article 161-1 CPP. The Council censured the provision as it provided that a copy of the decision ordering that an expert report be obtained should be sent to the Public Prosecutor and the lawyers acting for the parties. (29) Article 63-4-1 of the Code de procédure pénale, resulting from the Law of 14 April 2011 (cited above) provided that the lawyer may consult the statement on the placement in custody notification of rights, medical certificate and the statements made under questioning by the person they are assisting. The new law has not amended the list of documents that may be consulted. It simply added that such consultation could be direct, the person in police custody being able to access said documents themselves.
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(30) ECHR, Dayanan v Turkey, Application n°, §32, 13 October 2009. (31) It is stated that the time limits are established without prejudice to the provisions under Paragraph 1. (32) Under Article 7 (1) of the Directive, “[w]here a person is arrested and detained at any stage of the criminal proceedings, Member States shall ensure that documents related to the specific case in the possession of the competent authorities which are essential to challenging effectively, in accordance with national law, the lawfulness of the arrest or detention, are made available to arrested persons or to their lawyers”. (33) See Impact Study, cited above, p. 17 and subsequent. (34) This remains true even if, as such, this situation is obviously not envisaged by the Directive, and even if the term "suspect" is not reiterated by the Code de procédure pénale, which continues to mention the person against whom there exists "one of more plausible reasons to suspect that they have committed or attempted to commit a crime or misdemeanour”. The relevant Impact Study (cited above), page 5, is clear on this point: relative to the three Directives adopted to date, "a true status of suspect has thus been created, generating an entitlement to standard rights within the EU". (35) The framework thus varies depending on whether the person is placed under judicial examination, i.e. whether there is strong or corroborative evidence of their involvement in the facts (Article 80-1 CPP); whether they are an assisted witness, i.e. they have been found guilty without the requisite amount of serious corroborative evidence (Article 113-1 & subsequent, CPP); or the person is a witness and not suspected (Article 101 & subsequent, CPP). (36) Article 61-1 CPP. (37) Are we truly free when it is a question of choosing between voluntary questioning without a lawyer present, or police custody with a lawyer present? (38) ECHR, Simons v Belgium, Application no. 71407/10, 28 October 2012, Paras. 26-33, linking the right to a lawyer to the existence of an accusation in criminal matters and therefore to procedural fairness (Article 6 ECHR), not the deprivation of liberty (Article 5 ECHR). (39) Article 803-6 CPP does not provide for such a document to be given to a suspect or defendant in custody. (40) For more information, see v. Article 61-1 CPP. (41) Article 3 (2) (a) of Directive 2013/48/EU of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings recognises the right of access to a lawyer of suspects and defendants before they have been questioned by the police or a judicial or law enforcement. (42) It was a matter of avoiding the notification of a virtual right; see. J.-B. Perrier, La transposition tardive de la notification du droit du suspect libre à l’assistance d’un avocat, Dalloz 2014 p. 1160 (43) Art. 3(1) of the Directive of 22 May 2012. (44) ECHR, Simons v Belgium, cited above.
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MONTESQUIEU LAW REVIEW Issue No.1 January 2015 European law (ECHR):
Surrogacy agreements: at last, the primacy of the child’s interests Professor Adeline Gouttenoire, Director of the Institut des Mineurs de Bordeaux, University of Bordeaux
ECHR, Mennesson v France, Application no. 65192/11, 26 June 2014 ECHR, Labassee v France, Application no. 65941/11, 26 June 2014
With its decisions of 26 June 2014 in Mennesson v France and Labassee v France, the European Court of Human Rights finally gave a glimmer of hope for the "ghost children" whose parentage is not recognised in France. The European Court clearly condemned France for her refusal, and indeed that of the Court of Cassation in its decisions of 6 March 2011 (1), to recognise the filiation of children born to surrogate mothers overseas with their “intended” French parents.
The decisions concerned the Mennesson case, widely reported in France, and another similar case in which a French couple used an American surrogate. In both scenarios, the applicants – the parents and children – claimed that there had been an infringement of their right to respect for private and family life owing to the impossibility for them to secure recognition in France of the parentage legally established overseas.
In both decisions, the European Court proceeded with a detailed and subtle analysis of the situation brought about individuals entering overseas into an agreement that is prohibited in the national territory, by seeking to strike a balance between France’s refusal to permit surrogacy agreements and the interests of the children concerned. The solution is ultimately quite measured in that it does not allow the enshrinement of a right to parenthood but protects the child’s right to his or her identity.
Positioning itself on what it termed "negative obligations", the Court proceeded with a proportionality test, in terms of both the right to the respect of family life and the right to the respect of private life. In light of Articles 16-7 and 16-9 of the French Civil Code, which expressly provide for the nullity, on grounds of public policy, of agreements pertaining to the "procreation or gestation on account of a third party", and the decisions in which the Court of Cassation had held that such agreements contravened the principles of the inalienability of the human body and of civil status, the Court considered that the interference was provided by law. The ECHR also admitted that the refusal to recognise the parentage between children born overseas to a surrogate and the intended parents was founded on an intention on the part of the French State to deter her citizens from resorting overseas to a method of procreation that is prohibited on national territory.
The European Court did not call into question the objection on grounds of international public policy employed by the Court of Cassation, but it held that it was necessary of verify "whether in applying that mechanism to the present case the domestic courts duly took account of the need to strike a fair balance between the interest of the community in ensuring that its members conform to the choice made democratically within that community and the interest of the applicants – the
103 children’s best interests being paramount – in fully enjoying their rights to respect for their private and family life" (para. 84). One might think that the European Court would follow the same line of reasoning with regard to the Court of Cassation’s 2013 and 2014 decisions (2), which were not based on public policy but rather on fraud.
The Court observed that there was no consensus in Europe either on the legality of surrogacy or on the parentage between intended parents and children thus legally conceived overseas, and that "[t]his lack of consensus reflects the fact that recourse to a surrogacy arrangement raises sensitive ethical questions" (para. 79). While the European Court admitted that States must, in principle, be afforded a wide margin of appreciation when it comes to authorising surrogacy agreements and recognising the parentage of children legally conceived as a result of a surrogacy agreement overseas, it considered that this margin of appreciation ought to be reduced where parentage, an essential aspect of the identity of individuals, is at stake. Thus, the Court considered that it was incumbent to it to establish whether a fair balance had been struck between the interests of the State and those of the individuals directly affected by this solution, in light of the basic principle under which, each time a child’s situation is at issue, the latter’s interests must take precedence.
The Court proceeded with this test, firstly on the basis of the right to family life of all applicants, then on that of the right to private life of the children alone.
I – No infringement of the right to respect of family life
Existence of family life Referring to its decisions of 22 April 1997 and 28 June 2007 (3), the Court noted first of all that there was indeed a family life between the children born as a result of the surrogacy agreement and their parents, who had raised them since birth (the children being aged 13 and 14), stating that "what matters in this type of situation is the concrete reality of the relationship between the interested parties. It is clear in this case that the first applicants have taken care as parents of the third and fourth applicants since birth, and that all four live together in a way that is in no way different to family life as it is usually accepted” (para. 45).
Infringement of the right to respect of family life According to the Court, the absence of recognition of parentage under French law necessarily affected the family life of the applicants. More specifically, the Court referred to the impossibility encountered by the children concerned to obtain French nationality (at this point, the Taubira circular of 25 January 2013 (4) had not been implemented in such cases) and the concerns relative to maintaining that family life between the intended mother and the children in the event of the death of the intended father or the separation of the intended parents.
No infringement of the right to respect of family life However, the Court noted that the applicants were able to live together in France "in conditions broadly comparable to those of other families and that there is nothing to suggest that they are at risk of being separated by the authorities on account of their situation under French law" (para. 92). It therefore deduced that "the situation brought about by the Court of Cassation’s conclusion in the present case strikes a fair balance between the interests of the applicants and those of the State in so far as their right to respect for family life is concerned" (para. 94). In doing so, the European Court of Human Rights refused to impose a duty on the State to recognise family life
104 which exists de facto, as it had already done in its decision in Harroudj v France of 4 October 2012 (5) or Gas & Dubois v France of 15 March 2012 (6).
II – Infringement of the right to respect of private life
The parentage aspect of private life The European Court stated that the respect of private life required that each person be able to establish the details of his identity as a human being, of which parentage is an essential aspect, and asserted that there was “a direct relationship between the private life of the children born as a result of a surrogacy arrangement and the legal determination of their parentage” (para. 46).
Infringement of the right to private life Firstly, the European Court generally characterised an infringement of the children’s right to private life without distinguishing between maternal or paternal filiation. It noted that the children found themselves in a position of legal uncertainty as to their parentage owing to the refusal on the part of the French authorities to grant any effect to the American ruling, as the French authorities, fully aware that they had been identified elsewhere as the children of their intended parents, nevertheless denied them that status in the French legal system. The Court considered that the same contradiction constituted an infringement of their identity in French society and the effects of the failure to recognise their parentage in France had consequences not only for the parents "who have chosen a particular method of assisted reproduction prohibited by the French authorities" (para. 99), but also for the children. This therefore raises the issue of the compatibility of that situation with the children’s best interests, respect for which must guide any decision concerning them.
Nationality and inheritance More specifically, the Court noted that the children were faced with a "worrying uncertainty" (para. 97) as to the possibility of obtaining recognition of French nationality, which could negatively affect the definition of their own identity. Furthermore, the failure to recognise their parentage entailed a lack of legal rights to inherit from their parents which could not be compensated by their appointment as universal legatees, which would place them in a clearly unfavourable position as third parties.
Paternal filiation Secondly, the Court focused more specifically on its analysis of paternal filiation. It highlighted the importance of biological filiation as an aspect of each person’s identity and asserted that "it cannot be said to be in the interests of the child to deprive him or her of a legal relationship of this nature where the biological reality of that relationship has been established and the child and parent concerned demand full recognition thereof" (para. 100). The Court of Cassation’s refusal to allow the recognition of the children’s paternal filiation, be it by the transcription of the foreign birth certificate, paternal recognition, or even adoption or de facto enjoyment of civil status, was viewed by the ECHR as a serious restriction on identity which went beyond that which was permitted by the State’s margin of appreciation, "[h]aving regard also to the importance to be given to the child’s interests when weighing up the competing interests at stake" (para. 101). The Court therefore concluded that there had been an infringement of the children’s right to respect for their private life.
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Maternal filiation However, in limiting part of its reasoning to paternal filiation, the Court appears to be restricting its condemnation to the non-recognition thereof. This would mean that the non-recognition of maternal filiation had not been condemned by the European Court. Such a solution would be in line with established ECHR case law, which tends to refuse to impose a duty on States to recognise or establish filiation which does not correspond to a biological link (7), aside from the context of adoption. Such an interpretation of the Mennesson and Labassee decisions is confirmed by the press release issued by the Registry, which announced a condemnation for a failure to recognise paternal filiation where it corresponds to biological reality.
Limited effect of the condemnation Ultimately, the sole effect of the Court’s condemnation of France in these two cases may be to impose a duty on the State to recognise the paternal filiation of the children concerned. In order to meet the Court’s requirements, the French authorities do not need to amend existing legislation as this does not preclude the recognition of paternal filiation based on biological reality. It would simply be a matter of the Court of Cassation amending its case law either so as to admit the transcription of the foreign birth certificate as regards paternal filiation, or so as not to annul any recognition as may be granted in France.
We can only hope that the Court of Cassation will not have to rule again in such cases and that prosecutors will now draw the appropriate conclusions from the ECHR’s judgment by no longer challenging paternal filiations established with regard to children born as a result of surrogacy agreements made overseas; this would effectively give precedence to the child’s best interests, assessed in practical terms, as required under Article 3 (1) of the UN Convention on the Rights of the Child. A circular issued by France’s Ministry of Justice on this topic would be more than welcome.
The French version of this article was originally published by Lexbase (Lexbase Hebdo édition privée n°577) on 3 July 2014. Translated to and published in English by kind permission.
Notes: (1) Cass. civ. 1, 6 April 2011, three judgments, n° 09-66.486, n° 10-19.053 et n° 09-17.130, FP- P+B+R+I; nos obs., Convention de gestation pour autrui à l'étranger : l'intérêt de l'enfant sacrifié sur l'autel de l'ordre public, Lexbase Hebdo n° 436 du 14 avril 2011, D., 2012, p. 22, obs. F. Granet-Lambrechts ; Dr. fam., 2012, n°5, p.19, obs. C. Neirinck. (2) Cass. civ. 1, 13 September 2013, 2 judgments, n° 12-18.315, et n° 12-30.138, FP-P+B+I+R ; obs. A. Gouttenoire, La fraude plus forte que l'intérêt supérieur de l'enfant !, Lexbase Hebdo n° 542 du 3 octobre 2013 - édition privée ; RJPF, 2013, n° 11, p. 6, obs. M.-C. Le Boursicot, D., 2014, p. 1171, obs. F. Granet-Lambrechts ; Cass. civ. 1, 19 March 2014, n° 13-50.005, FS- P+B+I, RJPF, 2014, n° 5, obs. I. Corpart ; D., 2014, p. 905, obs. H. Fulchiron et C. Bidaud- Garon. (3) ECHR, X, Y & Z v UK, 22 April 1997, Application no. 75/1995/581/667; ECHR, Wagner & JMWL v Luxembourg, 28 June 2007, Application no. 76240/01, RTDCiv., 2007, 738, obs. J.-P. Marguénaud. (4) Circulaire du 25 janvier 2013, JUSC1301528C, relative à la délivrance des certificats de nationalité française - convention de mère porteuse - Etat civil étranger, Dr. fam., 2013, comm. 42, obs. C. Neirinck. [Circular of 25 January 2013, JUSC1301528C, concerning the
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issuing of certificates of French nationality – surrogacy agreements – Overseas civil status] (5) ECHR, Harroudj v France, 4 October 2012, Application no. 43631/09. (6) ECHR, Gas & Dubois v France, 15 March 2012, Application no. 25951/07. (7) F. Sudre (ed.), Les grands arrêts de la Cour européenne des droits de l'Homme, PUF, 2014, forthcoming, comm. n° 51.
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MONTESQUIEU LAW REVIEW Issue No.1 January 2015 European Law (EU):
The difficulties faced by public establishments in light of competition law: a discussion of the "La Poste" case Sébastien Martin, Lecturer in Public Law, CRDEI, University of Bordeaux
In France, "not only do public authorities run the economy, but they also participate therein through public operators" (1). Influenced by European Union law, it appears that the State’s direct participation in the market, particularly through public bodies, has become a sensitive subject. Thus, the European Court of Justice’s decision on the status of the French incumbent postal operator, La Poste, handed down on 3 April 2014, is a striking illustration of the developments currently faced by the French model of state interventionism.
"As an organisational technique, public entities have always had a flexible, appropriate legal form, with a view to meeting various objectives of good administrative governance. […] In the context of market economics, it serves first of all in guaranteeing the competitiveness of some services of general economic interest, by offering them the financial independence that is conferred by legal personality” (2). The legal status of the établissement public industriel et commercial, public industrial and commercial establishment or EPIC, is founded on a number of specificities that make it a very different instrument to private companies which, like the EPIC, exercise an economic activity in a given market. The EPIC is an entity governed by public law which can only be created by a public body and has legal personality, which affords it a degree of autonomy in relation to the body that had created it and which, on that basis, is subject to the supervision of the public authority to which it is attached (3). The public establishment does not, however, have any share capital and has, like all "public bodies, the attributes of legal personality, its privileges and its constraints" (4).
Such a mechanism has not passed unnoticed by the authorities of the once European Communities, now the European Union. Indeed, through competition law, and in particular the rules on State aid, EU institutions have examined public operators and by extension public entities in order to ensure that these do not enjoy any unjustified economic advantage as compared to their competitors. La Poste, after EDF (5), suffered a humiliating defeat at the hands of European law as its legal status as a public establishment afforded it an unjustified economic advantage according to the European Commission.
In applying the objective of free and undistorted competition laid down by the Treaty to the French incumbent postal operator, the European authorities mean to guarantee the proper operation of the internal market. The fact remains that the consequences of litigation for the public establishment are significant, even when La Poste had changed status before the ECJ had given judgment (6).
In order to understand all the issues raised by the La Poste litigation, we must first go over the elements that formed the basis of the European Commission’s findings as to the incompatibility of La Poste’s public establishment status in light of the rules on state aid (I) before presenting the
108 arguments that led the General Court, then the Court of Justice, to dismiss the appeal brought by the French authorities against the European Authority’s decision (II).
I. The challenge to the status of public establishment under the law on State aid Before detailing the reasoning that led the Commission to conclude that public establishment status was incompatible, we must first explain the specificities of that public law status. A law passed in 1990 (7) transformed the former Directorate-General for Communications into two separate public-law entities: La Poste on the one hand, France Telecom on the other. In doing so, and while the law qualified them as public operators, the newly created bodies became public entities.
On this basis, as for all other public-law entities in France but unlike private companies, both La Poste and France Telecom do not have any share capital and are not subject to the ordinary law on receivership and judicial winding-up of firms in difficulty. As is emphasised in French legal doctrine, "the particularities of the legal regime for some state-owned companies remain linked to the fact that, behind a uniform title drawn from business law, there indeed remains the specific strength of the public-law nature of those companies that take the form of public entities” (8).
In the Commission’s opinion (9), such a situation constituted an advantage for La Poste that could be described as State aid (10). Indeed, according to the European Competition Authorities, status as a public establishment afforded La Poste a guarantee financed by State resources which, compared to its competitors, allowed it to draw an advantage in capital markets by obtaining, in particular, financing conditions deemed more favourable.
The crux of the European Authority’s reasoning therefore rests on the State guarantee from which La Poste allegedly benefited. In the Commission’s view, the status as a public establishment affords an implied and unlimited guarantee to operators who have that status. Indeed, in addition to allowing them to avoid insolvency and bankruptcy procedures under ordinary law, their status as legal entities governed by public law renders them subject to Law n° 80-539 of 16 July 1980 (11), whereby it falls to the State representative or the supervisory authority, where a local authority or public establishment is ordered to pay a sum of money, to issue formal notice to generate the necessary resources to the legal entity governed by public law. In addition to this, there is the implementing decree (12) which provides that "the supervisory authority shall, as appropriate, release the necessary resources […] either by reducing the credits that are assigned to other expenditure and still available for use or by increasing resources”. What is more, it notes that where a public establishment which has a public accountant is dissolved, there is always a transfer of its obligations either to the new public establishment that will take its place or by appointing an assignee for the balance of the liquidation – generally the State (13). All in all, in the Commission’s view, “the procedures described above imply that the State has a role as guarantor of last resort. It may therefore be legitimately concluded that La Poste benefits from an unlimited guarantee owing to its status as a public establishment” (14). It added that “La Poste pays no premium for that guarantee and the State therefore waives the remuneration that normally accompanies such guarantees. Furthermore, the guarantee creates the risk of a potential and future commitment of resources held by the State, which may find itself bound to settle debts incurred by La Poste” and therefore concluded that "the State’s unlimited guarantee for La Poste leads to a transfer of State resources" (15).
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In the second part of its reasoning, the Commission examines whether the State aid, the guarantee in this case, confers an advantage as compared with the competitors of the entity benefiting from the guarantee. Here, insofar as “the credit terms and conditions are set in particular on the basis of financial ratings […] a company that has a low risk of insolvency will be able to borrow in very favourable terms” (16). Indeed, according to the Commission, the ratings agencies would bade their decisions on the State guarantee in order to confer a rating to La Poste which would allow it to secure loans from credit companies at more advantageous rates or, at the very least, "more favourable than those it would have obtained had it been judged solely on its own merits” (17).
In the third and final part of its reasoning, the Commission examines whether the measure was likely to distort competition and affect trade. In this respect, since the advantage that benefits La Poste alone in the postal market allows it to reduce its operating costs, this favours the public establishment and thus distort competition. Furthermore, as the postal market is partially competitive and broadly open to intracommunity trade, the Commission concludes that "the existence of an unlimited State guarantee for La Poste is likely to distort competition and affect trade within the meaning of Article 107 (1) TFUE” (18).
In its decision of 26 January 2010, the Commission imposes a duty on the French authorities to withdraw the aid that constitutes the unlimited guarantee by 31 March 2010 at the latest. Although France had already begun the process of transforming La Poste as a public establishment into a limited company (19), she nevertheless brought an appeal against the decision before the General Court in the first instance, then the European Court of Justice.
II. The dismissal of the appeals brought by the French authorities against the Commission’s decision The French authorities put forward a number of arguments to secure the annulment of the Commission’s decision but the European Union’s courts, first through a decision of the General Court (20) then a judgment of the Court of Justice (21), considered that the European Competition Authorities had established, to the requisite legal standard, the existence of an advantage resulting from the alleged State guarantee, which sufficed to take the view that the latter amounted to State aid. We will go over the various exchanges of arguments before presenting the lessons to be learned from the La Poste litigation.
The main arguments put forward by France relate to the issue whether there was, in this particular case, State aid for a public establishment. Firstly, one argument concerns the existence of the guarantee itself. More specifically, for the requesting State, "the Commission made errors of fact and law in its examination of the question whether there was an unlimited, implied State guarantee in favour of La Poste” (22). However, the General Court took the view that “the Commission made no error in finding that, contrary to the French authorities’ assertions, French law did not preclude the possibility for the State to grant an implied guarantee to EPICs” (23). Indeed, "contrary to what the French Republic’s line of argument might seem to indicate, the Commission did not find that there was a principle of an implied State guarantee under French law […]. It is very clear from the contested decision that […] the Commission inter alia examined the issue whether such a guarantee was precluded under French law. It found that the texts and the case-law did not lead to a definitive conclusion that French law precluded the State from acting as a guarantor for EPICs in respect of commitments they had undertaken with third parties” (24). This approach was upheld by the Court of Justice, which stated that “in order to prove the existence of
110 such a guarantee, which does not result expressly from any legislative or contractual document, it is permissible for the Commission to rely on the method of a firm, precise and consistent body of evidence to determine whether there is, in domestic law, a real obligation on the State to use its own resources for the purposes of covering losses of an EPIC in default and therefore, in accordance with settled case-law, a sufficiently concrete economic risk of burdens on the State budget” (25).
Next, a second line of argument relates to the existence of an advantage. According to the French authorities, it was impossible that the ratings agencies should have used the unlimited State guarantee for public entities as the basis of their decision to award the good rating that was allegedly the underlying cause of the economic advantage, insofar as that guarantee, being implied, had not been identified prior to the Commission’s intervention. For the General Court, this argument had to be dismissed as “the French Republic has not succeeded in proving that the finding, made on the basis of methodological documents drawn up by the ratings agencies, according to which the ratings agencies were, in general, aware of the legal status of the entities rated, in this case the fact that they enjoyed the status of EPIC, was incorrect” (26). Equally, despite the uncertainty surrounding the relationship between the existence of the guarantee and that of the advantage, the Court of Justice took the view that “the General Court correctly found that the Commission had observed the burden and the level of proof on it in order to establish whether an implied and unlimited State guarantee constitutes an advantage, specifying that such a guarantee enables the borrower ‘to enjoy a lower interest rate or provide a lower level of security’” (27).
The dismissals of the French appeals by the European courts do not answer the various criticisms made of the line of reasoning followed by the Commission (28). In our view, some aspects developed over the course of the proceedings – which were not able to flourish as they were not taken up by the European institutions – deserve to be highlighted as they suggest that the case could be reopened.
On the one hand, the French authorities pointed out (29) that the Campoloro (30) case law, on which the Commission relied in recognising the State guarantee, had been developed in a civil liability case concerning a local authority. Consequently, it seems that the European Authorities’ analyses were based on a confusion, in that they did not make the distinction between public entities and local authorities on the grounds that they have in common a legal personality governed by public law that is separate from that of the State. It may be considered that placing local and regional authorities in the same category as public entities is, at the very least, debatable, and that there is a very real difference between the two legal personalities. This difference, clumsily justified by the French authorities on the basis of the constitutional status of local and regional authorities, deserved to be adopted and better supported particularly in light of the principle of a State’s strict liability.
Recognising an implied and unlimited State guarantee for local authorities is justified. Indeed, in the context of a unitary State, it is fairly logical that the central authority should alleviate the failure of a public authority. Consequently, the impossibility on the part of a local authority to honour its debts easily constitutes unusual and special damage that can then engage the State’s strict liability. This does not seem to be the case in the scenario where a public establishment defaults. On the one hand, this situation does not constitute unusual and special damage insofar as, in the business world, operators are sometimes forced out of existence. On the other hand, a
111 public establishment, although it may be responsible for the performance of public service tasks, does not take on the same powers and does not have the same authority as a public authority. On the other hand, as was brought out by the Advocate General in his conclusions (31), “the implied nature of a measure precludes any certainty that it exists. An implied guarantee inferred from a body of evidence must therefore be deemed to exist unless and until it is proved not to”. According to the Advocate General, “[i]n the present case it would be relatively easy to adduce such proof by pointing to specific cases where the debts of an EPIC or of a French territorial, local or regional authority persistently remained unpaid, despite there being no formal bankruptcy or insolvency procedure. In fact, such a defence of a Member State enables the view to be taken that the Commission decision is based on premises which are in fact erroneous” (32).
Finally, and this is an element that suggests that the phrase "public establishment" may continue to be used in future by public authorities (33), the organic law of 1 August 2001 on finance laws (34) imposes a requirement that each State guarantee be written beforehand into a budgetary bill (35), thus rendering any implied guarantee illegal since it came into force on 1 January 2005.
France lost the La Poste case, but the ongoing litigation between the French authorities and European institutions may not be over, for all that. As has already be stated, the fate of La Poste had already been decided before the EU courts gave judgment. The appeals brought by the French authorities are inextricably linked to their wish to see the SNCF, the incumbent rail operator, retain its status as a public establishment, which may incite the Commission to launch a new investigation
Notes: (1) S. Nicinski, Droit public des affaires, Montchrestien – Lextenso éditions, 2009, 619 p., p. 19. (2) B. Plessix « Fasc. 135 : Etablissements publics - Notion Création Contrôle », JurisClasseur Administratif, Mars 2014. (3) According to the Conseil d'État, "any public establishment must be technically attached to a legal person" (CE, avis, 16 juin 1992 : EDCE 1992, p. 419) and as highlighted by B. Plessix (cf. « fasc. 135 : Etablissements publics - Notion Création Contrôle », cited above), "the attachment above all involves an intervention on the part of the relevant authority in the organisation and operation of the public establishment". (4) Cf. B. Plessix « fasc. 135 : Etablissements publics - Notion Création Contrôle », cited above: "Under a classic presentation, these attributes are both prerogatives and constraints, assets and handicaps […]: the possibility of resorting to expropriation procedures in the public interest (See. JCl. Administratif, Fasc. 136); the possibility of owning State property (See. JCl. Administratif, Fasc. 136); the ability, for those public establishments with a public accountant (the vast majority), to recover their credits by means of enforceable receipts and allowing automatic recovery (See. JCl. Administratif, Fasc. 136); the benefit of a four-year limitation period for the repayment of debts (See. JCl. Administratif, Fasc. 136) ; the unattachable nature of assets implying the impossibility of exercising private- law enforcement procedures against a public establishment (See JCl. Administratif, Fasc. 136) ; the impossibility for private debtors to bind public establishments to the off-setting of credits held with them; the inapplicability of the Law of 25 January 1985 on receivership and the compulsory liquidation of undertakings (See JCl. Administratif, Fasc. 136) ;
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exemption from payment of premiums for wage-guarantee insurance (Cass. soc., 29 févr. 2000 : Dr. soc. 2001, p. 149, note B. Hatoux) ». (5) Cf. invitations to submit comments in application of Article 88 (2) of the EC Treaty, concerning the aid measures in favour of Electricité de France (EDF) in the form of the State’s unlimited guarantee linked to the status of industrial and commercial public establishment (OJEC n° C 280 of 16/11/2002, p. 8 – 18 and OJEC n° C 164 of 15/07/2003, p. 7 – 13). The Commission had already taken the view that "the granting by French authorities of EPIC status to EDF carries with it the granting of a guarantee covering all of that enterprise’s commitments. In granting that status, the State renders inapplicable to EDF all normal provisions governing insolvency and bankruptcy under ordinary French commercial law and consequently cancels out the risk of it failing to meet its commitments, including its borrowing. In the absence of the guarantee that EPIC status carries with it, EDF’s rating would fall steeply and the costs of its borrowings would rise as a reflection of the company’s real and intrinsic financial stability”. (6) Cf. Loi n° 2010-123, 9 févr. 2010, relative à l'entreprise publique La Poste et aux activités postales, JORF du 10 Février 2010 (7) Cf. Loi n°90-568 du 2 juillet 1990 relative à l'organisation du service public de la poste et des télécommunications, JORF n°157 du 8 juillet 1990 page 8069 (8) M. Lombard, « Les conséquences juridiques du passage de l’Etat propriétaire à l’Etat actionnaire : les contraintes du droit de la concurrence », Revue française d’administration publique 2007/4, n° 124, p. 573-584. (9) Cf. Decision C(2007)5778 final of the Commission of 29 November 2007 proceeding with the opening of the review procedure provided under Article 108 (2) TFUE (Unlimited State guarantee in favour of La Poste) (10) Cf. Communication of the Commission on the application of Articles 107 and 108 TFEU (ex 87 and 88 of the EC Treaty) to State aid in the form of a guarantee OJEC C 71, 11.03.2000, pages 14-18 (11) Loi n° 80-539 du 16 juillet 1980 relative aux astreintes prononcées en matière administrative et à l'exécution des jugements par les personnes morales de droit public (12) Décret N°81-501 du 12 mai 1981 pris pour l'application de la loi du 16 juillet 1980 relative aux astreintes prononcées en matière administrative et à l'exécution des jugements par les personnes morales de droit public. (13) L'instruction codificatrice N° 02-060-M95 du 18 juillet 2002 sur la réglementation financière et comptable des établissements publics nationaux à caractère industriel et commercial, published in the Bulletin Officiel de la Comptabilité publique (14) Decision C(2010)133 final of the European Commission of 26 January 2010, pt 253. (15) Ibid., pt 254. (16) Ibid., pt 257. (17) Ibid. (18) Ibid., pt 301 (19) In Decision C(2010)133 final, cited above, the Commission published a letter dated 31 July 2009 from the French authorities in why they communicated the proposed law on La Poste and postal services, adopted by the Council of Ministers on 29 July 2009, setting a date 1 January 2010 for the transformation of La Poste in to a limited company. Furthermore, under Article 2 of the Decision, the Commission asserts that "the effective transformation of La Poste
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into a limited company would thus remove the unlimited guarantee that it currently enjoys. The effective removal of this unlimited guarantee by 31 March 2010 at the latest constitutes a measure, in accordance with the law of the Union, the State aid found in Article 1”. (20) Case T 154/10, French Republic v European Commission [2012] (21) Case C-559/12 P, French Republic v European Commission [2014]. (22) Case T 154/10, pt 61. In the view of the French authorities, the European institution was mistaken on the determination of the consequences to be drawn from the inapplicability to public establishments of receivership and compulsory liquidation under ordinary law ; on the existence in French law of a principle of an implicit State guarantee resulting from public establishment status; on the conditions under which the State’s liability is incurred in a mechanism for the automatic and unlimited guarantee of La Poste’s liabilities and on the consequences of any potential transfer of the public service liabilities of a public establishment that has been wound up. (23) Case T 154/10, pt 78. (24) Ibid., pt 66. (25) Case C-559/12 P, pt 65. (26) Case T 154/10, pt 116. (27) Case C-559/12 P, pt 104. (28) Cf. in particular C. Barthélemy, « La garantie impliede, gratuite et illimitée de l’Etat aux établissements publics : mythe ou réalité ? », R.J.E.P./C.J.E.G., 2004, p. 423 and subsequent; or S. Nicinski, « La transformation des établissements publics industriels et commerciaux en sociétés », R.F.D.A., 2008, p. 35 and subsequent. (29) Cf. Decision C(2010)133 final, pt 212. (30) Conseil d'Etat, 10 novembre 1999, société de gestion du port de Campoloro, recueil du Conseil d'Etat p.348; Conseil d'Etat, 18 novembre 2005, société de gestion du port de Campoloro, recueil du Conseil d'Etat p 515. (31) Conclusions of Advocate General Niilo Jääskinen presented on 21 November 2013 on Case C 559/12 P, French Republic v European Commission (32) Ibid. (33) This aspect, developed in Decision C(2010)133 final, cited above, (cf. pt 43), surprisingly disappears completely from the remainder of its reasoning to such an extent that by the end of the Decision, the Commission considers that only the effective transformation of La Poste into a limited company can remove the unlimited guarantee enjoyed by a public establishment (cf. Article 2). (34) Cf. Loi organique du 1er août 2001 relative aux lois de finances, JORF n°177 du 2 août 2001, p. 12480. (35) Cf. article 34 § II. - Dans la seconde partie, la loi de finances de l'année […] 5o Autorise l'octroi des garanties de l'Etat et fixe leur régime. (36) Cf. The Law adopted definitively by the French Parliament at the end of July 2014, which contains the new Article L. 2101-1 of the Code des transports (Transport Code): "The SNCF, SNCF Réseau and SNCF Mobilités constitute the public railway group within the national railway system. These three entities are indissoluble. The group fulfils a mission, jointly undertaken by each of the public establishments within the scope of the powers granted to them by law, intended to operate the national railway network and provide the public with railway transport services. It performs tasks relating to the provision of regular ground transportation services for persons, the transportation of merchandise and the management
114 of railway infrastructure, in the interests of sustainable development and economic and social efficiency". “Chapter II of Title II of Book II of the first part is applicable to all three establishments within the public railway group. For its application to the SNCF and SNCF Réseau, the organising authority within the meaning of the same Chapter II is to be understood as being the State”.
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MONTESQUIEU LAW REVIEW Issue No.1 January 2015 European law (EU):
The notion of "public authority" in the recent case law of the European Court of Justice and its impact on French administrative law Professor Sébastien Platon, Professor of Public Law, University of Bordeaux
The distinction between public and private entities, which is an important distinction in French public law, has been affected by the recent case law of the European Court of Justice, and in particular by the decisions in Portgás of 12 December 2013 (1) and Fish Legal e.a. of 19 December 2013 (2).
The notion of “public entity” in French public law In French public law, the notion of "public entity" is of central importance. Public entities can be defined as being legal persons governed by public law. There are usually three categories of public entity: the State, local authorities, and public establishments.
The State is, in a sense, the "leading" public entity from which all others are derived. Local authorities are off-shoots of the State: it is through the State that those authorities exist; it is the State that decides on their organization and has sovereignly transferred part of its powers and areas of responsibility. As can been seen, this is a very French approach to decentralization, which is diametrically opposed to the American-style federalism which considers that federal government draws its powers from the federated States. At most, it may be observed that some scholars in the 19th and early 20th centuries defended the idea that the communes are the “original” subjects of public law. Thus Pierre-Joseph Proudhon asserted that “the Commune is, by its essence, like man, like the family, like any individuality and any intelligent, moral and free community, a sovereign being” (3). The same idea can be found in the writings of Raymond Carré de Malberg, who takes the view that the commune has “its own tasks, functions and rights, being rights that are not delegated to it by the State, but which answer to the administration of its own interests and affairs” (4).
As for public establishments, these are entities governed by public law, specially created with a view to managing a specific public service. They are created either by the State (we then speak of the établissement public national or national public establishment) or by local authorities (établissement public local or local public establishments). Although legally distinct from their "creator", public establishments remain within the latter’s fairly tight administrative purview. This administrative purview is currently known in France as tutelle.
The exhaustive nature of this tripartite classification is unclear. Some public entities do not seem to fit into any one of the three categories, such as the Banque de France (the independence of which contradicts the notion of tutelle or administrative purview) or even those known as groupements d’intérêt public or public interest groups. More recently, new specialist public establishments have emerged which do not seem to fit into any of the categories either: autorités publiques indépendantes or independent public authorities, which are administrative establishments responsible for the protection of certain rights or freedoms or for the regulation of some sectors of the economy (5).
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Public entities are not alone in their involvement in public action. In some instances, private entities may be awarded a public service contract. This award can take the form of a contract with a public entity (public service delegation agreement, even a public procurement contract in some cases). It may also be a “unilateral" delegation. This generally occurs in a scenario whereby a public entity creates a body to run a public service and chooses to incorporate it under private law. This is the case, for example, of caisses primaires d’assurance maladie (local sickness insurance funds), which are responsible for community relations with sickness insurance users.
While a public service may be operated as much by a public entity as by a private one, the distinction between the two remains nonetheless significant. The public or private nature of a given entity will, for instance, have an impact on its internal organisation, the law applicable to the contracts it may enter into, the accounting rules that apply, etc. This distinction between public and private entities must, in a sense, compete with the definition of "public authorities" established in ECJ case law, and in particular the abovementioned Portgás and Fish Legal decisions.
The European Court of Justice’s decision in Portgás In Portgás, the issue brought before the European Court of Justice was whether a Member State which has not transposed a Direction could invoke said Directive against a public service concession-holder before a national court. Under ECJ case law, a Directive cannot impose a duty on a private individual. It therefore cannot being invoked in legal proceedings against a private individual before a national court (6), particularly where the State has omitted to transpose the same.
However, by virtue of the Foster judgment of 12 July 1990 (7), a network concession holder may in some cases can be considered as a "public authority” rather than a private entity. In that decision, the Court took the view that “a body, whatever its legal form, which has been made responsible, pursuant to a measure adopted by the State, for providing a public service under the control of the State and has for that purpose special powers beyond those which result from the normal rules applicable in relations between individuals is included in any event among the bodies against which the provisions of a directive capable of having direct effect may be relied upon” (point 20). In the Portgás decision, the Court adopted the same criteria. However, owing to a lack of information in the file, the Court did not rule on the question as to whether Portgás could, in this case, be considered as a "public authority" within the meaning of the case law in Foster; instead, it left that assessment to the national court.
There remained the matter of determining whether the potential qualification of Portgás as a "public authority" could allow the State a Directive against it before the national courts, when the State had omitted to transpose it. On this point, the Court based its reasoning on the duty to take all necessary general and particular measures in order to achieve the result prescribed by a Directive. This duty is incumbent not only on the State but also on all its authorities (8). However, only central government is liable in fine, before European Union institutions, for the fulfilment of that duty. It would consequently be paradoxical if European Union law were to deprive the State of those means allowing it guarantee the fulfilment, on the part of its authorities, of a duty for which it alone would be liable, where applicable, before the Court of Justice. This is precisely the consequence that would result were it impossible for the State to invoke a Directive against its own authorities before the national courts.
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The European Court of Justice’s decision in Fish Legal In the Fish Legal judgment, the Court of Justice again used the definition of "public authority" established in Foster, only this time in an altogether different context. It was a matter in the second case of interpreting Directive 2003/4 of 28 January 2003 (9) on public access to environmental information which implemented the Aarhus Convention in European Union law.
Pursuant to Article 3 (1) of said Directive, “Member States shall ensure that public authorities are required, in accordance with the provisions of this Directive, to make available environmental information held by or for them to any applicant at his request and without his having to state an interest”. Article 2 (2) of the same Directive defines the notion of "public authority” as follows:
"[...] a) government or other public administration, including public advisory bodies, at national, regional or local level;
(b) any natural or legal person performing public administrative functions under national law, including specific duties, activities or services in relation to the environment; and
(c) any natural or legal person having public responsibilities or functions, or providing public services, relating to the environment under the control of a body or person falling within (a) or (b). Member States may provide that this definition shall not include bodies or institutions when acting in a judicial or legislative capacity. If their constitutional provisions at the date of adoption of this Directive make no provision for a review procedure within the meaning of Article 6, Member States may exclude those bodies or institutions from that definition.
In this context, the Court of Justice was asked to rule on the question of whether commercial companies responsible in the United Kingdom for water supply and sanitation services, in the framework for the privatisation of the sector in 1989, were likely to constitute public authorities within the meaning of the Directive and, if so, on the scope of their duty to issue the environmental information in their possession.
Proceeding with a systematic reading of the Directive, the Court took the view that a distinction ought to be made between, on the one hand, public authorities in the organic sense i.e. those enumerated under subparagraph a), namely “government or other public administration, including public advisory bodies, at national, regional or local level”; and, on the other hand, public authorities in the operational sense, i.e. any public or private entity performing a public administrative function. It was at this stage that the Court broke new ground in terms of definitions, by taking the view that this means "entities, be they legal persons governed by public law or by private law, which are entrusted, under the legal regime which is applicable to them, with the performance of services of public interest, inter alia in the environmental field, and which are, for this purpose, vested with special powers beyond those which result from the normal rules applicable in relations between persons governed by private law” (para. 52).
This definition is reminiscent of that given in the Foster decision. The Court did not, however, mention it at this point in its reasoning to justify its definition of “public authority”. Conversely, Advocate General Cruz Villalon explicitly used Foster in his conclusions in order to formulate the same definition as the Court. It will be noted, however, that the "control by a public authority" condition, which can be found in Foster, was not taken up in the definition of “public authorities”
118 put forward by the Court. This is another consequence of the systematic approach, as that condition features at point c) of Art. 2 (2), i.e. the third category of public authorities within the meaning of the Directive.
Point c) was also the subject of other preliminary questions that the Court handled together, precisely with a view to determining which criteria would serve to establish whether an entity finds itself "under the control" of a public authority within the meaning of either point a) or point b). It was only at this stage of its reasoning that the Court finally explicitly mentioned the judgment in Foster, and this because the national court wished to know whether the notion of "supervision” within the meaning of the Directive was to be interpreted in the same way as in the Foster case law. However, having drawn inspiration from that decision in order to identify the criteria for “service of public interest” and "special powers", the Court then moved away from it. Admittedly, according to the Court, “[w]here a situation of control is found when applying the criteria adopted in Foster and Others, paragraph 20, that may be considered to constitute an indication that the control condition in Article 2(2)(c) of Directive 2003/4 is satisfied, since in both of those contexts the concept of control is designed to cover manifestations of the concept of ‘State’ in the broad sense best suited to achieving the objectives of the legislation concerned” (para. 64). Nevertheless, it specified immediately afterwards that “[t]he precise meaning of the concept of control in Article 2(2)(c) of Directive 2003/4 must, however, be sought by taking account also of that directive’s own objectives”.
The Court then proceeded with an interpretation of "public authority" based on the notion of public powers: “in defining three categories of public authorities, Article 2(2) of Directive 2003/4 is intended to cover a set of entities, whatever their legal form, that must be regarded as constituting public authority, be it the State itself, an entity empowered by the State to act on its behalf or an entity controlled by the State” (para. 67). It went on: “Those factors lead to the adoption of an interpretation of ‘control’, within the meaning of Article 2(2)(c) of Directive 2003/4, under which this third, residual, category of public authorities covers any entity which does not determine in a genuinely autonomous manner the way in which it performs the functions in the environmental field which are vested in it, since a public authority covered by Article 2(2)(a) or (b) of the directive is in a position to exert decisive influence on the entity’s action in that field” (para. 68).
Finally, there remained one last important question as to the scope of the right of access to information held, in the scenario where an entity cannot only qualified as a public authority for part of its activities. In such cases, does the public have a right of access to all information held by that entity, or only that information held in the context of the supply of public services? On this point, the Court made a distinction between public authorities within the meaning of, on the one hand, Art. 2 (2) b) and, on the other, Art. 2 (2) c). According to the Court, "Article 2(2)(b) of Directive 2003/4 must be interpreted as meaning that a person falling within that provision constitutes a public authority in respect of all the environmental information which it holds. Commercial companies, such as the water companies concerned, which are capable of being a public authority by virtue of Article 2(2)(c) of the directive only in so far as, when they provide public services in the environmental field, they are under the control of a body or person falling within Article 2(2)(a) or (b) of the directive are not required to provide environmental information if it is not disputed that the information does not relate to the provision of such services” (para. 83 and operative part).
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Interference with French public law The "public authority" qualification within the meaning of the decision in Foster therefore has several significant and onerous consequences. It must be noted that the notion of “public authority”, within the meaning of European Union law, does not correspond with the notion of “public entity” within the meaning of French law.
Indeed, a private entity entrusted with a public service task, within the meaning of French law, may meet all the criteria for public authorities established in Foster. The definition of private entities entrusted with public service tasks is currently set by the Conseil d’Etat’s decision in A.P.R.E.I. (10). The following are now considered to be private entities entrusted with public service tasks:
- any private entity entrusted with tasks of general interest, monitored by the Administration AND having prérogatives de puissance publiques (the equivalent under French law of “special powers”) - OR, in the absence of such powers, any private entity “where, in light of the general interest of its activity, the circumstances of its creation, its organisation or its operation, the duties imposed on it as well as the measures adopted in order to verify whether the aims assigned to it have been achieved, it appears that the Administration intended to entrust such tasks to it”.
Entities that match the criteria in the first scenario may be qualified as being public authorities under European Union law, while they remain private entities within the meaning of French law. The result is that it is possible for any entity, including the State, to invoke a Directive against them before the national courts. They therefore do not benefit from the ECJ’s case law, which forbids the use of a Directive against a private entity before the national courts. Moreover, they are bound by a duty to disclose the environmental information in their possession to anyone requesting the same. Still further, insofar as they are the holders of prérogatives de puissance publique (public-authority powers), they may be considered as public authorities within the meaning of Article 2 (2) b) of Directive 2003/4. Therefore, pursuant to the decision in Fish Legal, they constitute public authorities "as regards all environmental information [that they hold]" and must therefore disclose all environmental information in their possession, even "where there is no doubt that these do not relate to the provision [of public services related to the environment]”.
These decisions of the European Court of Justice (and there are many others) further illustrate that European Union public law develops independently of the national public law of Member States, which can be disruptive for the latter, and particularly in a body of law as developed as French public law.
Notes: (1) ECJ, Case C-425/12, Portgás - Sociedade de Produção e Distribuição de Gás SA v Ministério da Agricultura, do Mar, do Ambiente e do Ordenamento do Território [2013] ECR xxxx. (2) ECJ, Case C-279/12, Fish Legal, Emily Shirley v Information Commissioner, United Utilities Water plc, Yorkshire Water Services Ltd, Southern Water Services Ltd [2013] ECR xxxx. (3) Proudhon P. J., De la capacité politique des classes ouvrières, in Œuvres complètes, Paris, éditions Rivière, 1924, IV, p. 285. (4) Carré de Malberg R., Contribution à la théorie générale de l’Etat, 1922, réimp. Dalloz 2003, pp. 65 s.
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(5) On all of these "new" public entities, see Rapport d’étude du Conseil d’Etat sur les établissements publics (Conseil d’Etat Report on public establishments), adopted on 15 October 2009. (6) ECJ, Case 80/86 Kolpinghuis Nijmegen [1987] ECR 03969, point 9; ECJ, Case C-91/92 Faccini Dori v Recreb Srl [1994] ECR I-03325, point 20. (7) ECJ, Case C-188/89, Foster and others v British Gas plc [1990] ECR I-03313. (8) ECJ, Case C-129/96, Inter-Environnement Wallonie v Région wallonne [1997] ECR I-07411, point 40. (9) Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Directive 90/313/EEC of the Council, OJEU n° L 41, 14 February 2003, p. 26. (10) Conseil d’Etat (CE), Sect., 22 January 2007, Association du Personnel Relevant des Etablissements pour Inadaptés (A.P.R.E.I.), application n° 264541.
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MONTESQUIEU LAW REVIEW Issue No.1 January 2015 European law (ECHR):
The European Court of Human Rights and the offence of insulting the President: an ambiguous condemnation for a planned repeal Professor David Szymczak, Sciences Po Bordeaux
ECHR, Fifth Section, Eon v France, Application Nº26118/10, 14 March 2013
Despite having long since renounced her monarchy, France did not hesitate in the last century to institute a veritable "republican monarchy" in the person of the President of the Fifth Republic. With extensive powers since the entry into force of the 1958 Constitution and, furthermore, enjoying a high degree of legitimacy owing to his election by direct universal suffrage (1), the President of the French Republic has been at the very heart – indeed, is the keystone - of French institutional and political life for over fifty years. Furthermore, he has traditionally benefited from an especially protected status, on the basis of which it is fitting to mention the offence of insulting the President, formerly provided under Article 26 of the Law of 29 July 1881 on the freedom of the press (2). Deemed by its detractors as the last vestige of the crime of lèse majesté (3) - which, moreover, only exists in a scant number of States (4) - the offence of insulting the President remained relatively unknown to the general public in France.
It must be said that while Charles de Gaulle, first President of the Fifth Republic (1959 - 1969), made ample use of the proceedings – he did so on more than 500 occasions (5) - the relevant provisions had only seldom been used before him (6) and subsequently appeared to have fallen into disuse: no other President of the Fifth Republic had used them since the end of Pompidou’s presidential term of office (1969 - 1974) (7). It was not until Nicolas Sarkozy’s presidency and the Eon case that the "offence of insulting the President" suddenly found itself centre stage – and not only the French but also the European stage as, on 14 March 2013, the European Court of Human Rights was called upon to give a ruling on the conformity of the offence with the European Convention on Human Rights and Fundamental Freedoms.
The apparently anodyne facts of the Eon case can be summarised as follows. On 28 August 2008, the then President of France, Nicolas Sarkozy, was on an official visit to Laval (Mayenne). When the arrival of the presidential motorcade was imminent, a protestor, Hervé Eon, silently brandished a placard bearing the words “Casse-toi pov’con” (loosely, “piss off, you sad bastard”). The slogan referred to a sentence uttered by the President himself some months previously at an agricultural show where a visitor there had refused to shake his hand. This reiteration of words uttered by the President, for which the latter was heavily criticised in the media, resulted in Hervé Eon being prosecuted for the offence of insulting the President. On 6 November 2008, he was found guilty by the tribunal de grande instance (regional court) at Laval and received a suspended fine of thirty Euros. The conviction was upheld on appeal on 24 March 2009; the Criminal Chamber of the Court of Cassation dismissed Mr Eon’s appeal because no arguable grounds of appeal could be made out. Having exhausted all options on a national level, the appellant brought a case before the European Court of Human Rights, alleging that his conviction and sentence constituted a breach of his right to freedom of expression, protected under Article 10 of the ECHR.
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All in all, the judgment in Eon v France given on 14 March 2013 led to a somewhat ambiguous solution. On the one hand, the ECHR in Strasbourg recognised, in concreto, a breach of Article 10 of the Convention, reminding the French authorities in passing that freedom of political expression ought to enjoy extensive protection as a matter of principle (see section I, below). On the other hand, however, the Eon decision also sparked criticism, as the Court refused to rule, in abstracto, on the issue of the conventionality of the offence. As such, it appeared to grant a “reprieve” to the offence – a reprieve that was cut short by a swift response on the part of the French authorities, who ultimately chose to repeal the offence of insulting the President of the Republic (see section II, below).
[I] A breach of Article 10 ECHR recognised in concreto: a reminder of the extensive protection granted to freedom of political expression
(A) The admissibility of the application Even before ruling on the potential breach of the Convention, the Court had to decide on the admissibility of the application. As such, the French Government raised two main objections to admissibility. Firstly, it expressed doubts as to whether the facts of the case truly fell within the ECHR’s remit; if they did not, this would mean that the Court had no jurisdiction to hear the case. This line of argument was hardly likely to succeed as it amounted to arguing that the contentious remarks did not come within the province of freedom of expression as they “did not contain any expression of opinion and had been displayed by a private individual, outside the context of any debate on a matter of public concern” (para. 40). In this case, the Court did not even trouble itself to respond explicitly to the French Government’s "doubts", contenting itself with laconically asserting that the applicant’s conviction amounted to ““interference by public authority” with his right to freedom of expression” (para. 47). This finding was inevitable in light of previous ECHR case law, particularly the decision in Faber which had accepted a little earlier that the mere fact of silently unfurling and displaying a banner with fascist connotations fell within the remit of freedom of expression (8).
More convincing, however, was the French Government’s second objection, based on the new admissibility conditions introduced by Protocol n°14: the significant disadvantage criterion (9). As of 1 June 2010, the latter allows the Court to refuse any application in which the applicant has not suffered a significant disadvantage, unless the human rights interest is such as to require an examination of the case on its merits and on condition that said case has been “duly considered” by a national court. A priori, this second point appeared to be the stronger argument, the Court even conceding that “the case concerns a modest sum of money and that its financial implications are therefore minimal” (para. 34) (10). It did, however, recall that a significant disadvantage may be identified independently of any pecuniary interest. Indeed, “the seriousness of a violation should also be assessed by taking into account both the applicant’s subjective perceptions and what is objectively at stake in a particular case” (para. 34). As regards "the subjective importance of the issue", the Court deemed this to be obvious, particularly because the applicant “pursued the proceedings to their conclusion, even after being refused legal aid because no arguable grounds of appeal could be made out” (para. 34) (11). As to "what was objectively at stake", the case had "received widespread media coverage and concerns the question whether insulting the head of State should remain a criminal offence, a matter that is regularly raised in Parliament” (para. 34). Lastly, for the sake of completeness (12), the Court considered that there was in any event a
123 human rights interest in the Court examining the case on its merits as “the application raises an issue that is not insignificant, either at national level or in Convention terms” (para. 35) (13).
From that point of view, the ECHR’s recognition of the significant disadvantage suffered amounts to a very real repudiation of France’s Court of Cassation. Previously, the latter had not only refused to admit the application submitted by Hervé Eon, but had also refused him legal aid because no arguable grounds of appeal could be made out. However, by stressing the "objective importance of the issue of maintaining the offence of insulting the President", the Court set a trap for itself that it later sprang, by refusing to rule on the conventionality per se of the offence of insulting the President (14). The main objective had nevertheless been achieved: having ruled on the admissibility of the application, the Court could then go on to examine the merits of the case.
(B) The examination of the alleged breach Having ruled on the admissibility of the application – and, incidentally, on the question of interference – the Court then had to establish whether the restriction imposed on freedom of expression by the French authorities met the three criteria required under Article 10 (2) ECHR. In order to be compatible with the Convention, state interference must be prescribed by law, pursue a legitimate aim and be necessary in a democratic society, i.e. proportionate to the legitimate aims pursued. It is on the third condition that the Court focused its attention, the first two (having been confirmed) being subject to only the briefest of examinations. Admittedly this is a typical stance, the Court only rarely sanctioning a State for a lack of lawful basis and/or legitimate aim, to such an extent that this double test sometimes seems formal, even artificial. Nevertheless, in this particular case, an examination of the first two criteria would have benefited from being a more in-depth one.
Firstly concerning whether the interference was "provided by law", the Court agreed that it was in the course of one sentence (para. 48), when the issue could have been discussed at greater length. Admittedly, the offence of insulting the President is “formally provided” by law (i.e. the Law of 29 July 1881, s. 26) but the notion of “insult” likely to constitute the offence (i.e. the material element of the offence) is not defined by that law. Now, while the ECHR sometimes settles for a definition drawn from case law (15), the French legal decisions that sought to define the notion of “insult” are some forty years old and precision is not necessarily their strong point (16). Suffice it to say that there is some doubt as to whether the foreseeability, accessibility and clarity requirement, usually an underlying element of the first condition for accepting an interference, was observed (17). Such uncertainty surrounding the constituent element of the offence of insulting the President does not, however, appear to trouble the Court at Strasbourg though, in our opinion, it is the main flaw in the judgment. Be that as it may, if the Court had sanctioned France at this stage for "lack of legal basis", it would in fact have ruled on the conventionality per se of the offence of insulting the President… which it evidently wished to avoid.
Next, the issue of “legitimate aim”. The Court was scarcely more forthcoming when it was making a substitution in relation to the aim argued by the Government: according to the latter, the aim of the offence was “the prevention of disorder, given the need to protect the institutional representative embodying one of the highest State authorities from verbal and physical attacks liable to undermine the State institutions themselves” (para. 41). This assertion contains the basic rationale behind the offence – or at least that which prevailed when the offence was created under the Third Republic and which serves in distinguishing it from the crime of lèse-majesté (18).
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However, the Court considered “the purpose of the interference was “protection of the reputation ... of others” (para. 49). Admittedly, the purpose retained is that which it "mobilises" most often in cases involving the privacy of public figures. However, such an automatic reclassification amounts to a denial of the specific dimension of the offence (19). This not only allows the Court, once again, to avoid the issue of the conventionality of the offence of insulting the President but also to tie the Eon case to its classic case law on the protection of freedom of political expression.
Moreover, this is revealed by the examination of the final criterion: that of the necessity of the interference in a democratic society. As such, the ECHR began by recalling that, even though its task was not to substitute itself for the national court, but rather “to look at the interference complained of in the light of the case as a whole, including the content of the comments held against the applicants and the context in which they made them” (para. 51). Equally, it stated that while the expression used by Mr Eon was "in literal terms, insulting", such a phrase had also to "be examined in the light of the case as a whole, particularly with regard to the status of the person at whom it was directed, the applicant’s own position, its form and the context of repetition of a previous statement” (para. 53). Consequently, the Court undertook a detailed examination of the case, which ultimately led it to conclude that the contentious statement did not constitute "a gratuitous personal attack against [the President]" (para. 57), but that they could be perceived as "criticism of a political nature” (para. 58), and were an expression moreover of “the medium of irreverent satire” (para. 59). So, in ruling as it did, the ECHR strengthened the guarantee of the applicant’s freedom of expression twice over.
Firstly, the Court chose to compare the contentious statement to "political speech", which is usually afforded a great deal of protection in ECHR case law. In this respect, it recalled that “there is little scope under Article 10 § 2 for restrictions on freedom of expression in the area of political speech or debate – where freedom of expression is of the utmost importance” (20). It also recalled that “[t]he limits of acceptable criticism are wider as regards a politician as such than as regards a private individual. Unlike the latter, the former inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must consequently display a greater degree of tolerance” (21). Such protective principles must apply in this case as, according to the Court, it is the case and the protagonists, taken as a whole, that are imbued with political connotations. In particular, it considered that "the applicant’s intention was to level public criticism of a political nature" and that a link could be established “between his political involvement and the very nature of the phrase he had used”. This view is further bolstered by Mr Eon’s “profile” which, as noted by the Court, was that of “an activist and former elected representative who had fought a long-running campaign actively supporting a Turkish family residing unlawfully in France” (para. 58).
It is appropriate at this stage to emphasize the clear-cut difference between the respective approaches of the French court and the ECHR: from the same starting point, each reached diametrically opposed conclusions. Indeed, when the case was tried at a national level, the French courts also acknowledged Mr Eon’s “political motives”. They ruled, however, that the political nature of the phrase featured on the applicant’s placard proved that the insulting phrase had been used solely with the intention of insulting the President. Equally, they considered that “in view specifically to his political activism and the premeditation of his act”, the applicant “could not have acted in good faith”. As can be seen, where the applicant’s “political motives” had the effect of
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"limiting" his freedom of expression before the French courts, those same motives served to "amplify" it before the European Court of Human Rights.
Secondly, the applicant’s freedom of expression was also bolstered as it resembled "satirical criticism", as recognized by the Court when it considered that “by adopting an abrupt phrase that had been used by the President himself […] the applicant chose to express his criticism through the medium of irreverent satire” (para. 60). According to ECHR case law, “satire is a form of artistic expression and social commentary which, by its inherent features of exaggeration and distortion of reality, naturally aims to provoke and agitate. Accordingly, any interference with the right of an artist – or anyone else – to use this means of expression should be examined with particular care” (para. 60) (22). In extending this reminder, the Court reasserted that the penalties for such views, even where they are minor, are “likely to have a chilling effect on satirical forms of expression relating to topical issues. Such forms of expression can themselves play a very important role in open discussion of matters of public concern, an indispensable feature of a democratic society” (para. 61). Consequently, the fact that the applicant had only been sentenced to a suspended (low) fine of thirty Euros would not suffice to exonerate the French authorities from their responsibility.
Ultimately, the guarantee of “free political speech”, combined with that of “free satire”, serves to grant maximum protection to the applicant’s freedom of expression. The interference being disproportionate, the Court concluded that there had indeed been a violation of Article 10 of the Convention (23). From that point of view, the decision in Eon is part of a resolutely liberal approach to freedom of expression, allowing the European Court to renew (24) the wording adopted in the Handyside judgment, according to which "[freedom of expression] is applicable not only to "information" or "ideas" that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no "democratic society" (25). Nevertheless, the Court did not necessarily follow its line of thought through as it chose to avoid the issue of the conventionality of the offence of insulting the President.
[II] The refusal to rule in abstracto on the offence of insulting the President: a provisional suspension but a swift response on the part of the French authorities
(A) The refusal expressly to condemn the offence of insulting the President While concluding that there had indeed been a violation of Article 10, the Court considered that “it is not necessary in the present case to determine whether the criminal classification of the applicant’s acts was compatible with the Convention – even if it is recognised that this was a special measure”. It took the view that the classification “did not have any particular effects or confer any privilege on the head of State concerned vis-à-vis the right to convey information and opinions concerning him” (para. 55). The Court therefore relied on the essentially specific nature of its examination to justify its refusal to examine Article 26 of the 1881 Law. Prior to this, it took pains to make the distinction between Eon and its decision in Colombani (26). In the latter case, the Court had clearly condemned France for its offence of insulting foreign heads of State, the purpose of which "is to confer a special legal status on heads of State, shielding them from criticism solely on account of their function or status, irrespective of whether the criticism is warranted”. In the Court’s view, “that… amounts to conferring on foreign heads of State a special
126 privilege that cannot be reconciled with modern practice and political conceptions" (para. 68) and had to be considered as contrary to Article 10 ECHR.
It was therefore possible to think that the Court would be just as strict with regard to the "twin” offence of insulting the French President. Instead, it chose to undertake a subtle distinction between the two cases (27), recalling first of all that in Colombani, the prosecutions had been brought on the basis of a newspaper article, so that the litigation fell within the scope of press freedoms. Next, in Colombani, the offence of insulting a foreign head of State had been condemned "in itself" as “unlike the position under the ordinary law of defamation, the applicants had been unable to rely on a defence of justification – that is to say, proving the truth of the allegation – to escape criminal liability on the charge of insulting a foreign head of State” (para. 55). Admittedly, in Eon, the mechanism under Article 26 did not provide for a defence of justification either, but this had not had any specific consequences. Indeed, "the phrase [Mr Eon] used was an insult rather than an allegation”, and he would have been prevented from proving the truth of the same (para. 55). Finally, the Court noted that the applicant “did not claim that the head of State had acted or spoken offensively towards him”. Consequently, the fact that the offence of insulting the President did not allow the “defence of provocation” to be invoked was of no consequence in the present case (28).
Aside from the fact that the distinction between the two cases seems fairly artificial, the timidity shown by the Court in Eon also stands in stark contrast with other recent decisions, particularly in Otegi Mondragon (29) where Spain was condemned for a criminal penalty imposed on a Basque militant for “serious insult to the King”. In this instance, the Court criticised Spanish legislation, which afforded a higher level of protection to the Head of State than to other persons or institutions. It also recalled that "providing increased protection by means of a special law on insults will not, as a rule, be in keeping with the spirit of the Convention" and [t]hat interest, in the Court’s view, could not serve as justification for affording the Head of State privileged status or special protection vis-à-vis the right to convey information and opinions concerning him” (para. 55). The lessons drawn from the decision in Otegi Mondragon was ignored in Eon (30), when the same line of reasoning could well have been reiterated, even applied a fortiori. In the Spanish case, the special scheme criticised by the Court related to a monarch who, by its own admission, occupied “a unique institutional position”. The President of the Fifth Republic, as is known, performs a much more active political role than that of the Spanish sovereign (31)…
Consequently, while the offence of insulting the King per se raised the issue of conventionality in Otegi Mondragon, it is difficult to see why the Court decided otherwise in Eon (32). The fact remains that while the Court unquestionably demonstrated judicial self-restraint in the latter case by not expressly requiring that France repeal the offence of insulting the President, one might also think that the repeal was implicitly expected of the French authorities, which likely explains the swift response on their part.
(B) The swift repeal of the offence of insulting the President by the French authorities The refusal to rule in abstracto on the offence of insulting the President does not mean that it was judged to be in conformity with the Convention’s requirements, or that it had received absolution for the future. Evidently, it was simply a detailed refusal tied to the facts of the case, the Court having probably considered that this "case would not have been the right time to get to the legislative basis for the interference, through the review in concreto” (33). The Court having taken
127 great pains to emphasise that the offence of insulting the President was a “special measure", one could therefore think that, in other circumstances and particularly in a case concerning press freedoms, it would probably have been led directly to sanction this legal mechanism in that it confers special protection and procedural privilege to the President, particularly in cases of insults deemed defamatory. On that basis, and although the Court was careful to make the distinction between the two cases, the decision in Colombani proves instructive once again. In that case, the Court emphasised the incompatibility with Article 10 ECHR of the offence of insulting a foreign Head of State, formerly provided under Article 36 of the 1881 Law (34).
On this occasion, the Court pointed out that "[u]nlike the position under the ordinary law of defamation, the applicants were not able to rely on a defence of justification (…) to escape criminal liability” and that “[t]he inability to plead justification was a measure that went beyond what was required to protect a person’s reputation and rights, even when that person was a head of State or government” (para. 66). Furthermore, it stressed the fact that “[i]t is the special protection afforded foreign heads of State by section 36 that undermines freedom of expression, not their right to use the standard procedure available to everyone to complain if their honour or reputation has been attacked or they are subjected to insulting remarks” (para. 69). In Colombani, the condemnation was therefore based on the fact that in cases of insulting a foreign Head of State, the law did not grant the accused the same defence as he would have had in cases of defamation or insult. The offence of insulting the President – which was challenged in Eon - is exactly identical on this point to that of insulting a foreign Head of State, repealed in 2004. It is also an exception which places the President in a privileged position – a position which is even less justified when he actively occupies the centre of the political stage and is therefore necessarily exposed to criticism. Consequently, repressing those criticisms under cover of the offence of insulting the President can come across as an abuse of power.
The exceptional nature of the offence of insulting the President, which is potentially fatal to freedom, explains why, well before the Eon case, a number of bills had already be put before the French Parliament, with a view to repealing the offence (35) - without success, however. In that sense, France’s condemnation in Eon, while it did not directly concern the offence of insulting the President, not only renewed the debate but above all led to the swift removal of the offence from French law. More specifically, only a few months after the Eon judgment was handed down, Article 21 of the Law of 5th August 2013 (36) removed Article 26 of the 1881 Law. The repeal did not draw a great deal of media attention but gave rise to lively debate in Parliament. In particular, there was a set-to between, on the one hand, the National Assembly, which wanted simply to repeal the offence and, on the other hand, the Senate, which feared that the President of the Republic would in future be deprived of any effective protection. The two branches of the French legislature did, however, reach a compromise (37).
Thus, although the offence itself has been repealed, the President remains protected as prosecutions for criminal defamation or insult are still possible under ordinary law (38). Furthermore, France’s parliamentarians ensured that the protection afforded to the President is, at least, equivalent to that conferred to ministers, deputies and senators, as well as French civil servants in the performance of their duties. On that basis, the Head of State is therefore also subject to Article 31 of the 1881 Law, which carries a €45,000 fine in cases of defamation of such persons exercising public authority. Indeed, there still exists a kind of “aggravated repression” in cases of defamation of the President "on grounds of his function or capacity", the maximum fine
128 being the same as under the former offence (€45,000). Conversely, the 2013 Law reduced the penalties incurred where the views expressed against the President amount to insult (39). In such a scenario, the maximum fine is the same as that incurred in cases of defamation of or insult to a private individual, i.e. €12,000 (40). In summary, the possibility of an aggravated sentence is now limited to those cases of defamation of the President on grounds of his functions or his capacity. Finally, it should be noted that the author of the contentious statement may plead justification, and therefore establish the truth of the allegedly defamatory statement, in order to escape criminal liability.
It may also be said that while there remains a “special protection” afforded to the President of France, this now appears to be broadly in conformity with the requirements of the European Convention on Human Rights. Although “European influence” has been played down by some authors (41), the French legislature fortunately chose to go "beyond" a literal, minimalist reading of the Eon decision, in order to align national law with the Convention in advance – and this without waiting for a subsequent, explicit condemnation of the offence on the part of the European Court of Human Rights. Let us hope that such exemplary behaviour will be repeated in future in other contexts!
Notes: (1) Since the constitutional amendment of 6 November 1962. (2) Article 26 of the Law of 29 July 1881: "defamation of the President of the Republic by one of the means stipulated under Article 23 is punishable by a fine of 45,000 Euros”. As will be seen below, that provision was repealed by Law n° 2013-711 of 5 August 2013. (3) The "crime of lèse-majesté" disappeared as such from French law in 1832, following an amendment to the Code penal (penal code).Under the Third Republic, however, the Law of 29 July 1881 on freedom of the press created the new offence of insulting the President of the Republic. (4) This type of offence still exists under various guises in Thailand and Morocco, not to mention the Netherlands, Spain and Denmark. (5) And this in a troubled context where the President was under threat from far-right opposition and partisans in French Algeria. See O. BEAUD, « Le délit d’offense au Président de la République. Un épisode à redécouvrir de la République gaullienne (1959 - 1969) », Annuaire de l’Institut Michel Villey, vol. 4, 2013. (6) Six convictions under the Third Republic, and three under the Fourth Republic. The best known use of these proceedings was that of Mac-Mahon against Gambetta when the latter rudely remarked: “Lorsque la France aura fait entendre sa voix souveraine, il faudra se soumettre ou se démettre” (“When France makes her sovereign voice heard, you’ll have to submit or resign”). The most comical was the prosecution instigated, once again by Mac Mahon, against a journalist who, remarking on a statue of the Marshal on horseback, allegedly said “Le cheval a l’air intelligent ma foi” (“Well, the horse looks intelligent”). (7) It must be added that Georges Pompidou only instigated such proceedings on one occasion. Thereafter, Valery Giscard d’Estaing, François Mitterrand and Jacques Chirac all successively and expressly refused to resort to it. (8) ECHR, Faber v Hungary, Application n° 40721/08, 24 July 2012. (9) On this new criterion, see for example D. SZYMCZAK, « Le préjudice important… un Critère inquiétant ? Retour sur les premières années d’application de la nouvelle condition de recevabilité par la Cour de Strasbourg », RTDH 2014, n° 99, p. 555.
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(10) As a reminder, the applicant had been sentenced "on principle" to a fine of 30 Euros (suspended), when he faced a maximum fine of 45,000 Euros under the 1881 Act. (11) A contrario, the Court had already accepted that the applicant’s passivity during the criminal trial tended to show that the proceedings had been of little importance to him. See for example ECHR, Shefer v Russia, Application n° 45175/04, 13 March 2012. (12) The disadvantage being deemed significant, there was no need to bring the safeguard clause into play. (13) See a contrario the dissenting opinion of Judge Pejchal. (14) See below. (15) See for example ECHR Soros v France, Application n° 50425/06 6 October 2011. (16) See for example Cass. Crim., 31 May 1965, Bull. crim., n° 146 (17) We may also wonder whether the offence of insulting the President respects the principle of the legality of offences and sentences, also protected by the ECHR but not argued by the applicant in this case. (18) See. O. BEAUD, « A propos de la suppression du délit d'offense au président de la République. Explications et réflexions », AJDA 2014, p. 25 (19) Which consists, substantively, in protecting institutions over and above the persons attacked. (20) See for example ECHR, Dumas v France, Application n° 34875/07, 15 July 2010. (21) See for example ECHR, Renaud v France, Application n° 13290/07, 25 February 2010. See also an older decision, ECHR Lingens v Austria, Application n°9815/82, 6 July 1986. (22) See also ECHR (GC), Palomo Sánchez v. Spain, Application n° 28955/06, 12 September 2011. (23) The applicant does now, however, receive just satisfaction in this case; or, more precisely, the Court considers that the finding of a breach per se constitutes just satisfaction. (24) In some recent cases, the Court had indeed distanced itself from this liberal approach. See for example ECHR, Willem v France, Application n° 10883/05, 16 July 2009. (25) ECHR, Handyside v Royaume-Uni, Application no 5493/72, 7 December 1076. (26) ECHR, Colombani and others v France, Application n° 51279/99, 25 June 2002. (27) The distinction does not, however, convince the dissenting judges. See, in this sense, the partly dissenting opinion of Judge Power-Forde, to whose mind “the rationale behind the criminal offences in issue was the same, namely, to confer upon heads of State a special legal status”. (28) The latter argument serving to distinguish between the two cases is, however, hardly conclusive as, in Colombani, the lack of provocation had no effect either. (29) ECHR, Otegi Mondragon v Spain, Application n° 2034/07, 15 March 2011. (30) The decision in Otegi Mondragon is only cited once in Eon… (31) Or than the President of the Third Republic, a body protected originally by the offence of insulting the President provided under Article 26 of the 1881 Act. (32) See, in this sense, N. DROIN, « Le délit d’offense au Président de la République: une occasion manquée », RFDA 2013 p. 594 ; and N. HERVIEU, « L’équivoque sursis européen concédé au délit d’offense au Président de la République », Lettre Actualités Droits-Libertés du CREDOF, 20 mars 2013. (33) C. PICHERAL, « L’abrasion conventionnelle du délit d’offense au président de la République », JCP G 2013, p. 656. (34) Following Colombani, the offense of insulting foreign Heads of State was repealed by Article 52 of the loi Perben II (Perben II Law) of 9 March 2004. (35) See for example the Bill proposed by J-L Melenchon, "aiming to repeal the offence of insulting the President of the Republic", www.senat.fr, 19 November 2008.
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(36) Law n° 2013-711 of 5 August 2013 containing various provisions for adapting French justice to European Union law and France’s international obligations. (37) For an overview of the discussions, see in particular O. BEAUD, « A propos de la suppression du délit d'offense au président de la République. Explications et réflexions », cited above. (38) Such prosecutions are no longer entrusted to the Public Prosecutor (as they are for offences of insulting the President) but are now subject to a prior complaint on the part of the Head of State. This alignment with the ordinary law on defamation and insult thus allows the easier identification of the person behind the prosecution and, therefore, serves to establish whether the President shows "tolerance” in the face of criticism. (39) Or where such views, though defamatory, relate solely to the President’s private life. (40) When it was a fine of 45,000 Euros for the offence of insulting the President. (41) See, in particular, O. BEAUD, « A propos de la suppression du délit d'offense au président de la République. Explications et réflexions », (cited above), which evokes a politically expedient decision.
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MONTESQUIEU LAW REVIEW Issue No.1 January 2015 Public international law:
The Trial of Pascal Simbikangwa, or how the application of the principle of universal jurisdiction led to the very first conviction of a Rwandan genocide fugitive in France Anne-Marie Tournepiche Professor of Public Law, Doctoral student Justine Castillo Doctoral Student, University of Bordeaux
Paris Assize Court, 2nd Section ruling in first instance, criminal judgment of 14 March 2014, n° 13/0033, in the matter of Pascal SIMBIKANGWA
The decision handed down by the Paris Assize Court on 14 March 2014 is of particular interest on a number of counts.
On the one hand, it constitutes one of the few instances in which the principle of universal jurisdiction has been applied in France, whereby a French criminal court can judge the acts committed outside French territory by foreign nationals. On the other hand, it is the first time that a French court has been called upon to give a ruling on acts committed during the genocide in Rwanda. Furthermore, this case is also the first instance of a French court using the concept of the crime of genocide since this was included in the French Code penal (Penal Code) in 1994, as well as being the first time that the concept of crimes against humanity has been employed since the Papon trial in 1997 (1). Finally, from a symbolic point of view, it should be noted that this decision, which clearly demonstrates France’s willingness to fight against impunity, was handed down on the eve of the commemorations marking the twentieth anniversary of the genocide in Rwanda.
The trial of Pascal Simbikangwa, accused of complicity in genocide and crimes against humanity, opened before the Paris Assize Court on 4 February 2014. In order to understand how the court came to have jurisdiction to hear the case, we must first recall a number of factual and procedural aspects. Simbikangwa held the rank of captain in Rwanda’s regular army; he was also close to the President of Rwanda, Juvénal Habyarimana. On his arrival in Mayotte (an overseas French territory in the Comoros Islands) in February 2005, he applied to the Office français de protection des réfugiés et des apatrides (OFPRA - French Office for the Protection of Refugees and Stateless Persons) for asylum. He was arrested after presenting false identity papers and faced an extradition request made by the Rwandan authorities on grounds of genocide and complicity in crimes against humanity for acts committed in Rwanda in 1994. The Investigatory Chamber at Mamoudzou (the capital of Mayotte) refused this request. Further to a complaint lodged by the collective of civil parties for Rwanda, the Chief Prosecutor in Mayotte opened a judicial investigation of Simbikangwa. The Cour de cassation then decided to group together all the cases against persons suspected of involvement in the Rwandan genocide under the auspices of the Tribunal de grande instance (TGI – regional court) at Paris, thus taking the matter out of the hands of the examining magistrate at Mamoudzou. The examining magistrate at the Paris TGI then ordered Simbikangwa’s indictment before the Paris Assize Court.
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A verdict was reached following a six-week hearing. The members of the court (nine judges and six jurors), following their conscience and their innermost conviction (2), found the accused guilty of genocide and complicity in crimes against humanity, and sentenced him, by an absolute majority, to 25 years in prison.
The trial was made possible by the application of the concept of universal jurisdiction (see part I below), which allowed the French justice system to recognise the guilt of the accused and his involvement in the genocide in Rwanda, and thereby reach a verdict that clearly contributes to the fight against the impunity of those perpetrators of international crimes who seek refuge overseas (see part II below).
I: The unprecedented acknowledgement of the principle of universal jurisdiction in France for international crimes committed in Rwanda In theory, national courts do not have jurisdiction to try a foreign national for a crime committed overseas, as in the case in point, unless they apply the principle of universal jurisdiction.
The classic conditions for the jurisdiction of French courts According to the principle of territorial jurisdiction, French criminal courts have jurisdiction to judge those persons who have committed a crime on national territory. Alongside this territorial jurisdiction, the French courts may also exercise jurisdiction where the perpetrator (compétence personnelle active - active personality principle) or the victim (compétence personnelle passive – passive personality principle) of a given crime is a French national. Finally, it must be mentioned that there exists the compétence réelle (protective principle) for those crimes that “adversely affect the fundamental interests of the Nation”.
In the present case, on the one hand, genocide had been committed on Rwandan territory and, on the other hand, both Simbikangwa and the victims of the genocide were Rwandan nationals. Thus, the jurisdiction of the Paris Assize Court could be founded neither on the territory criterion nor on the personality principle, but rather on a specific criterion: universal jurisdiction (3). This acknowledges the jurisdiction exercised by national criminal courts in the location where the alleged offender is, wherever the offence has been committed and whatever the nationality of the perpetrator or the victim of the offence. (4)
The conditions for implementing universal jurisdiction French law upholds a specific conception of universal jurisdiction. Indeed, under Article 689-1 of the Code de procédure pénale (Criminal Procedure Code) introduced by statute on 16 December 1992, “[i]n accordance with the international Conventions quoted in the following articles, a person guilty of committing any of the offences listed by these provisions outside the territory of the Republic and who happens to be in France may be prosecuted and tried by French courts. The provisions of the present article apply to attempts to commit these offences, in every case where attempt is punishable”.
The conditions for exercising universal jurisdiction are restricted twofold: on the one hand, the accused must be on French territory at the time when the prosecution is undertaken. On the other hand, the exercise of universal jurisdiction is restricted by the need to incorporate into French law those international agreements that grant jurisdiction to national courts. Thus Articles 689-2 to 689-10 of the Criminal Procedure Code list the international agreements that may give rise to
133 prosecution before the French courts. To these agreements may be added the two resolutions passed by the UN Security Council, establishing the ad hoc International Criminal Tribunals for the former Yugoslavia and for Rwanda. French law has thus recognised the ad hoc universal jurisdiction of French courts to try those crimes specific to the Criminal Tribunal for Rwanda, pursuant to Law n° 96-432 of 22 May 1996 (5), which adapts French legislation to the provisions of Resolution 955 of the UN Security Council establishing the Criminal Tribunal for Rwanda.
Thus, in this case, the two conditions for the implementation of universal jurisdiction had been met: Simbikangwa was on French territory (at Mayotte) and accused of crimes falling under the jurisdiction of the Criminal Tribunal for Rwanda. The jurisdiction of the Paris Assize Court was therefore based on a jurisdiction that may be qualified as "quasi-universal" as enshrined in French law. These fairly restrictive conditions explain why so few people have been convicted in France on the basis of this jurisdiction.
II: The encouraging consequences of the recognition of universal jurisdiction in France for international crimes committed in Rwanda
In ruling that "(…) the above facts deemed established by this Court and jury constitute the crimes listed and punishable by (…) Articles 2 and 3 of the Statute of the International Criminal Tribunal for Rwanda (…)”, the Paris Assize Court considered that the facts that unfolded in Rwanda between April and July 1994 constituted genocide and a crime against humanity (6). Simbikangwa was thus convicted (by a majority of nine votes to six) of genocide and complicity in crimes against humanity. Pursuant to Law n°2011-939 of 10 August 2011, the court issued a feuille de motivation – a document containing the grounds for the court’s decision - along with its verdict.
Regarding the crime of genocide Generally, the Paris Assize Court ruled that the crime of genocide, as defined under Article 211-1 of the French Penal Code (7), had indeed been committed in Rwanda between April and July 1994. Thus, the fact "of enabling persons to commit acts, at Kigali (in Rwanda), between April and July 1994, in the execution of a concerted plan intended to destroy, in whole or in part, the Tutsi ethnic group: - killing members of said community, - causing serious bodily or mental harm to the members of said community” constitute genocide as “(…) the facts (…) constitute the crimes misted and punishable under Article 211-1 (…) of the Penal Code (…).".
It must be remembered that, under Article 211-1 of the Penal Code, genocide is defined both as committing and enabling another person to commit an act constituting genocide. The definition thus encompassed the fact of having supplied arms to persons responsible for checking the identity of individuals belonging to the Tutsi community and having given the order to execute them. Simbikangwa was consequently convicted of genocide, not complicity in genocide.
Regarding crimes against humanity In the same vein, the Assize Court ruled that the events that unfolded in Rwanda between April and July 1994 ‘characterize crimes against humanity, listed and punishable under Article 212-1 of the Penal Code (8)’(9) More specifically, the court asserted that the facts ‘of making oneself complicit, at Kigali (in Rwanda) between April and July 1994, in a massive, systematic practice of summary executions and inhuman acts, based on political, philosophical, racial or religious grounds, in the execution of a concerted plan directed at a section of a civil population by
134 knowingly aiding and abetting the perpetrators of said acts in order to facilitate the preparation or commission thereof, and by giving orders to commit said acts;” constitute complicity in crimes against humanity, as the court ruled that “ (…) the facts (…) constitute the crimes listed and punishable under (…) Articles 212-1 (…) of the Penal Code as was in force on 1 March 1994 (…).".
In addition to Article 212-1 of the Penal Code defining crimes against humanity, reference was also made to the definition of complicity given under Article 121-7 of the Penal Code, which is the fact of facilitating “the preparation or commission” of the main offence (10). Thus, as much for supplying arms to those persons on the road-blocks (complicity by aiding and abetting) as for issuing orders to execute Tutsis (complicity by instigation), Simbikangwa was found guilty of complicity in crimes against humanity, not crimes against humanity.
Through his counsel, Patrice Simbikangwa appealed against the verdict (main appeal), as did the prosecution (cross-appeal), on 18 March (11). Consequently, the Assize Court of Appeal will re- examine the case in fact and in law (12) and may sentence Simbikangwa to a longer term of imprisonment insofar as the latter is not alone in bringing an appeal (13).
It would therefore appear that the exercise of universal jurisdiction can contribute effectively to the fight against impunity, by depriving suspects of “any sanctuary” (14). France has given a clear signal, not only to other states, but also to persons who have committed international crimes and are tempted to seek refuge on French territory. Beyond that, the verdict demonstrates just how much of a determining role national courts have to play, alongside international courts, in the administration of international justice.
A full translation of the Court’s grounds for its verdict follows the notes.
Notes: (1) Translator’s note: Following a lengthy investigation, Maurice Papon was tried in 1997 on charges of crimes against humanity for his involvement in the deportation of 1,690 French Jews between 1942 and 1944 during the German Occupation. He was found guilty of complicity in crimes against humanity in 1998. (2) As per Article 304 of the Code de procédure pénale (French criminal procedure code). (3) Universal jurisdiction is also presented as the "system of the universal right to punish", cf. DESPORTES (Frédéric) et LE GUNEHEC (Francis), Droit pénal general (General Criminal Law), Paris, Economica, 2009, 16ème édition, 1248 p., p. 368. (4) See the resolution passed by the Institute of International Law, Universal criminal jurisdiction with regard to the crime of genocide, crimes against humanity and war crimes, 17th commission, Krakow Session 2005, in which universal jurisdiction is "the competence of a State to prosecute alleged offenders and to punish them if convicted, irrespective of the place of commission of the crime and regardless of any link of active or passive nationality, or other grounds of jurisdiction recognized by international law”. (5) It may also be mentioned that the Law of 9 August 2010 added a new Article 689-11 to the Code de procédure pénale, under the terms of which “(a)ny person who is habitually resident on the territory of the French Republic and who has been found guilty of a crime falling within the jurisdiction of the International Criminal Court, in application of the Statute of the International Criminal Court signed at Rome on 18 July 1998, may be prosecuted and convicted by the French courts, where the facts in question are punishable under the laws of the State
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where said facts unfolded or where said State or the State of which such an individual is a national is a party to the abovementioned Statute. The prosecution of such crimes may only be brought at the request of the Public Prosecutor’s Office where no national or international court has requested the surrender or extradition of said person. To this end, the Public Prosecutor’s Office shall ensure with the International Criminal Court that it expressly waives jurisdiction and that no other international court with jurisdiction to try said person has requested the surrender of said person and that no other State has requested the extradition of said person.” (6) Indeed, under the Statute of the International Criminal Tribunal for Rwanda, Article 2 defines genocide while Article 3 defines crimes against humanity. (7) Article 211-1 of the Penal Code: “Genocide occurs where, in the enforcement of a concerted plan aimed at the partial or total destruction of a national, ethnic, racial or religious group, or of a group determined by any other arbitrary criterion, one of the following actions are committed or caused to be committed against members of that group: - wilful attack on life; - serious attack on psychological or physical integrity; - subjection to living conditions likely to entail the partial or total destruction of that group; - measures aimed at preventing births; - enforced child transfers.. (…)" (8) Article 212-1 of the Penal Code: “Any one of the following acts, committed in the execution of a concerted plan targeting a section of the civil population within the scope of a generalised or systematic attack, shall also constitute crimes against humanity and be punishable by life imprisonment : 1. murder; 2. extermination ; 3. enslavement ; 4. deportation or forcible transfer of population; 5. imprisonment or any other form of serious deprivation of freedom, in violation of the fundamental provisions of international law; 6. torture; 7. rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; 8. persecution against any group or population identifiable on political, racial; national, ethnic, cultural, religious or sexist grounds or based on any other criteria universally recognised as inadmissible under international law; 9. enforced disappearance of persons; 10. acts of segregation committed within the scope of an institutionalised regime of systematic oppression and domination by one racial group against any or all other racial groups and with the intention of maintaining such a regime; 11. other inhumane acts of a similar character intentionally causing great suffering or serious bodily or mental injury. (…)” (9) Feuille de motivation (grounds for verdict), point 1. (10) Complicity is effectively an "ancillary form for imputing a crime to an individual" cf. DESPORTES (Frédéric) et LE GUNEHEC (Francis), Droit pénal général, Paris, Economica, 2009, 16ème édition, 1248 p., p. 515. (11) Since Law n° 2000-516 of 15 June 2000 and pursuant to Article 380-2 of the Criminal Procedure Code, both the accused and the prosecutor may appeal against conviction and sentence. (12) cf. Article 380-1, Criminal Procedure Code (13) cf. Article 380-3, Criminal Procedure Code (14) DESPORTES (Frédéric) et LE GUNEHEC (Francis), Droit pénal général, Paris, Economica, 2009, 16ème édition, 1248 p., p. 346
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Paris Assize Court ruling at first instance:
Feuille de motivation (Grounds for the verdict) In the case of Pascal Senyamuhara SAFARI alias Pascal SIMBIKANGWA In application of Article 365-1 of the Code de procédure pénale (criminal procedure code)
1: On the existence of crimes against humanity in Rwanda between April and July 1994 The Paris Assize Court considers that the tragic events that unfolded in Rwanda between April and July 1994 characterize crimes against humanity, as provided and punishable under Article 212-1 of the Penal Code in force at the time of the offence, being in the present case the massive and systematic practice of summary executions or inhuman acts, inspired by political or racial motives and organised in execution of a concerted plan directed against a section of the civil population.
Indeed, it is clearly apparent from historical examinations of that period, (developed in particular by Alison Desforges, André Guichaoua, Jean-Pierre Chrétien, Jacques Semelin or Stéphane Andouin-Rouzeau) and fully confirmed by journalists on the ground at the time of the offences (such as Colette Braeckman, Renaud Girard or Jean-Philippe Ceppi), that massive and systematic executions or inhuman acts, inspired by political or racial motives were committed within the scope of a concerted plan directed at a section of the civil population.
This finding was further shared as early as 28 June 1994 by the United Nations Human Rights Commission’s Special Rapporteur on Rwanda, René Degni-Segui.
Equally, since the Karemera decision of 16 June 2006, the Appeals Chamber of the International Criminal Tribunal for Rwanda has considered that there remains no reasonable doubt as to the existence of the crime of genocide and crimes against humanity committed in Rwanda between April and July 1994 against the Tutsi community and the political opponents of the Juvénal Habyarimana regime.
The speed of execution and the simultaneity of the massacres; their spread throughout the country; the mobilisation of the State’s civil and military capabilities; the development of propaganda in the media advocating inter-ethnic hatred and the murder of political opponents; the distribution of weapons and the military training provided to the Interahamwe; the systematic identity checks conducted on civilians at roadblocks and the immediate execution of those suspected of being Tutsi or enemy accomplices; and finally, the sheer number of victims, estimated to be in the hundreds of thousands over the course of three months; all reveal the efficiency of a collective organisation necessarily based on a concerted plan.
The Court consequently considers that the case argued by the accused as to a chaotic, spontaneous, uncontrollable popular movement that was neither concerted nor organised does not tally in any way with the findings of historians or eyewitnesses – journalists, survivors and diplomats, all of whom have on the contrary testified to the particularly effective preparation and organisation of the massacres perpetrated on political or racial grounds.
This argument as to widespread chaos is also incompatible with the scale of the murders committed and their spread throughout the country.
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2: On the existence of the crime of genocide in Rwanda between April and July 1994: Likewise, the Paris Assize Court is convinced that the crime of genocide as defined under Article 211-1 of the Penal Code, namely the existence of killings or acts causing serious physical or mental harm, in the execution of a concerted plan intended to destroy, in whole or in part, the Tutsi ethnic group, was indeed committed in Rwanda between April and July 1994.
Indeed, it is clearly apparent from the relevant debates and eyewitness testimony that the definition of “enemy of the state” gradually evolved, starting as a restrictive conception of “RPF accomplice” and then encompassing the entire Tutsi community; the latter eventually became synonymous with the notion of inyenzi, meaning cockroaches.
In this respect, the accounts regarding the operation of roadblocks speak volumes as the murderous selection process was based exclusively on the ethnic origin stated on identity cards, whatever the age, gender, identity or political involvement of the person who had been stopped. Resorting to physical or morphological characteristics to determine membership of the Tutsi ethnic group, in the absence of an identity card or in case of the suspected forgery of the latter, also illustrates an attempt at ethnic cleansing and the extermination of the entire group.
In the same way, the messages broadcast by RTLM calling for Tutsis to be hunted down on the basis of lists of names demonstrate the assimilation of the “Tutsi” into the definition of the enemy and prove the desire to eradicate that ethnicity, which allegedly made up the entire membership of the RPF.
The International Criminal Tribunal for Rwanda (ICTR) took judicial notice of the existence of the Tutsi genocide and, before that Tribunal, the Commission of Experts appointed by the Secretary General of the United Nations at the end of 1994 reached the same conclusion as René Degni- Segui.
The existence of a concerted plan in the race to exterminate the Tutsi community emerges from the same elements as those applicable to crimes against humanity: the speed of the elimination operations and their propagation throughout the country; the use of all echelons in the administrative and military chain; the formation of armed militias; the distribution of weapons to the Interahamwe and civilians; the preparation of lists of Tutsis to be killed; the searches conducted in houses occupied by Tutsis; the collection of corpses using lorries belonging to the administration; burial of the dead in unmarked mass graves; the sheer number of victims in the space of only three months.
Finally, the Court notes that, after making particularly ambiguous statements as to the realities of the Tutsi genocide over the course of the judicial investigation, Pascal Simbikangwa ultimately did not contest the existence of the genocide during the trial, even if he did evoke the reality of the massacre of Hutus, even a Hutu genocide (for which the RPF was allegedly responsible) where the events of April-July 1994 were concerned.
3: On the jurisdiction of the Paris Assize Court: The Court considers, moreover, that the charges brought against Senyamuhara Safari alias Pascal Simbikangwa do indeed fall within the scope of the definition of genocide and crimes against
138 humanity as provided under Articles 2 and 3 of the Statute of the ICTR, which did not wish to assume jurisdiction for this case.
Consequently, Senyamuhara Safari alias Pascal Simbikangwa, having been arrested at Mayotte where he had settled, the Paris Assize Court has jurisdiction on the basis of universal jurisdiction to examine the charges brought against the accused, in application of Law n°96-432 of 22 May 1996 bringing French legislation in line with Resolution 955 of the United Nations Security Council establishing the International Criminal Tribunal for Rwanda.
4: The involvement of Senyamuhara Safari alias Pascal Simbikangwa in crimes against humanity and genocide, committed in Kigali, Rwanda, between April and July 1994:
4.1: The person of Senyamuhara Safari alias Pascal Simbikangwa, his ties with President Juvénal Habyarimana and his support for the anti-Tutsi discourse: The Court considers that there evidently existed an especially strong intellectual and emotional bond between Pascal Senyamuhara Safari alias Pascal Simbikangwa and President Juvénal Habyarimana.
Aside from their family connections, their shared place of birth and the fact that the accused had served in the Presidential Guard before joining the Rwanda’s intelligence service (SCR – Service Central de Renseignement), which was answerable directly to the President, the views expressed by Pascal Simbikangwa in his book, “L’homme et sa croix” (“The man and his cross”), about President Habyarimana reveal the fascination that the Rwandan head of state exerted on the accused.
The psychology experts who have examined him confirm that President Habiyarimana represented an idealised father-figure for Pascal Simbikangwa.
Further, his social position fully illustrates his membership of a circle of dignitaries who were especially close to the government of the day prior to 1994.
Thus, his year-long hospitalisation in Belgium from 1986 to 1987 following a traffic accident proves that he was not a mere captain in the Rwandan Army, but rather a figure requiring particular care, whatever the cost.
Despite owning two houses, he was provided with government accommodation in the presidential quarter in Kigali reserved for the regime’s dignitaries, with a vehicle and chauffeur, when he argued at trial that he had only been a subaltern within the intelligence service.
Nevertheless, during his arrest, he himself claimed to be third in command of the service, with the title of “director”.
Augustin Iyamuremye, his immediate superior from April 1992 onwards, branded him a fanatical supporter of President Habyarimana; according to Iyamuremye, Simbikangwa was involved in parallel intelligence networks on behalf of the presidency once the SCR came under the authority of the Prime Minister.
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Augustin Iyamuremye confirmed that Pascal Simbikangwa went directly to printing works to perform the task of censoring opposition newspapers.
Finally, he stated that the circumstances of Simbikangwa’s administrative transfer from the Army to the SCR following the latter’s car accident, had struck him as obscure and suggestive of an intervention of a political nature.
Venance Munyakazi, a printworks technician, described the close ties between Hassan Ngeze, a notoriously anti-Tutsi journalist at Kangura, and Pascal Simbikangwa. He recounted the violent methods employed by the accused with the opposition press, and explained that Umurava, the newspaper edited by Pascal Simbikangwa, held an anti-Tutsi editorial line which was close to that of Kangura; this analysis is confirmed in a book written by Jean-Pierre Chrétien, Les medias du genocide (“The Genocide Media”).
Innocent Bigega, a former member of the SCR, stated that Pascal Simbikangwa - who insisted on being called by his rank of “Captain”, thus deliberately maintaining the ambiguity as to his exact status – could become verbally aggressive if President Habyarimana was criticised, and that he regularly made anti-Tutsi statements.
Even his disabled friend, Joseph Bazira Sibo, confirmed that Pascal Simbikangwa did not tolerate anyone calling President Habyarimana into question and that he also attempted to recruit members for the President’s party, the MRND (Mouvement républicain national pour la démocratie et le développement).
The sworn statements given in 1992 by Sam Gody Nshimiyimana, a journalist who was arrested and tortured at the SCR for having criticised the regime, confirmed that Pascal Simbikangwa did not tolerate any challenge to the President.
The Court also notes that Sam Gody Nshimiyimana did not hesitate in denouncing the FPR’s acts of violence, thus demonstrating complete freedom of speech and an unquestionable independence of mind.
The Court considers that these witness statements as to Pascal Simbikangwa’s character and his involvement in politics are all the more credible in that they are corroborative and do not incriminate the accused directly in the genocide.
Moreover, Pascal Simbikangwa’s membership of the anti-Tutsi school of thought (which developed in Rwanda from 1990 onwards) runs through his book, La guerre d’octobre (“The October War”), but also in his one-twenty-fifth stake in RTLM, the principal shareholders of which were President Habiyarimana himself, his family and pro-Hutu hardliners.
Pascal Simbikangwa never distanced himself subsequently from that radio station, which, from the autumn of 1993, extensively broadcast views calling for inter-ethnic hatred by gradually placing all Tutsis in the same category as enemies of Rwanda.
Simbikangwa’s statements claiming that he did not listen to that radio station are devoid of any
140 credibility, not only given the sums that he had invested therein, but also in light of his passion for politics and the media.
Speaking in Belgium in June 2012 following his release, Georges Riggiu, a journalist with RTLM, confirmed Pascal Simbikangwa’s extremist views and his closeness to the MRND, whose flags he had in his home, as well as his links with the Interahamwe.
The fact that Riggiu was not considered a credible witness in 2003 by the ICTR, in the context of another trial when he was still under arrest in Arusha and evidently under pressure from his co- detainees following his decision to plead guilty, is not binding upon the Paris Assize Court; indeed, for its part, the Court notes that at no time did Georges Riggiu implicate Pascal Simbikangwa in the genocide, but simply shared details of the accused’s political involvement and his support for radical pro-Hutu views.
The suspicions shared as early as 1992 by many international human rights groups, whose independence and neutrality in the conflict have been acknowledged, that Pascal Simbikangwa played an active part in this anti-Tutsi school of thought, cannot be the result of manipulation on the part of the RPF, contrary to the argument put forward by the accused.
Indeed, on the one hand the investigation teams set up by these groups were made up of members offering every guarantee of impartiality, as was recalled during the trial by the Belgian barrister, Eric Gillet; and, on the other hand, these same groups also denounced the RPF’s acts of violence.
Furthermore, had he indeed been the junior officer that he claimed to be at the time, it is difficult to comprehend how he could be been a media target for the RPF and, therefore, the victim of a plot to poison him.
The Belgian ambassador, Mr. Swinnen, also explained the circumstances under which he alerted the appropriate minister as to the existence of a parallel secret military staff in which, according to his information, Pascal Simbikangwa was involved. He described personally meeting and talking to the journalist Boniface Ntawuyrushintege, who appeared to be credible when he told the ambassador of the torture inflicted by Pascal Simbikangwa for having published an article opposed to President Habyarimana.
Professor Filip Reyntjens described having personally alerted President Habyarimana as to the existence of an extremist network in which Pascal Simbikangwa was involved.
Isaïe Harindintware, as well as Albert and Pascal Gahamanyi, confirmed having seen a MRND flag at Pascal Simbikangwa’s home when they went there to watch television.
Béatrice Nyirasafari, who fled to Pascal Simbikangwa’s home during the genocide, explained that he regularly expressed anti-Tutsi views.
Now, the lives of all of these witnesses were saved thanks to Pascal Simbikangwa, which makes their statements particularly reliable.
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As early as 1992, he was identified by the RDM as a recruiting agent for the Interahamwe, his name appearing in this capacity in the archives of the opposition party; this was subsequently confirmed by Grégoire Nyrimanzi.
The death threats made by Pascal Simbikangwa on 19 March 1994 to the presiding judge of Rwanda’s Cour de Cassation (Court of Cassation), and denounced by the latter to the President of the Republic in a letter of 23 March 1994, were confirmed by his wife.
The letter was, moreover, subsequently published in a Rwandan newspaper before the genocide began, thus confirming the reality of the same.
These threats clearly reveal the impunity of those close to President Habyarimana at that time.
The availability of two soldiers to guarantee his protection from the beginning of April 1994, when Simbikangwa was no longer at the Ministry of Defence, demonstrates the close ties that he had maintained with the Army.
The maintenance of this close protection throughout the genocide, even when the country was at war against the RPF, proves Simbikangwa’s ongoing influence within the Rwandan state apparatus, in complete contradiction of the subordinate role that he claims to have had.
Finally, the press release published by the White House in Washington on 22 April 1994, exhorting the highest political and military authorities in Rwanda, including Pascal Simbikangwa, to stop the massacre, clearly shows that he was considered a dignitary of the regime, having a certain amount of control over the course of events.
His explanation, claiming that his name had been mentioned in the press release owing to his alleged intervention in allowing two MINUAR buses through the roadblocks, is not substantiated.
4.2: The role of Pascal Senyamuahara Safari alias Pascal Simbikangwa in genocide and crimes against humanity between April and July 1994 at Kigali: The Court notes that, contrary to what Pascal Simbikangwa argued throughout the trial, aside from Martin Higiro and his family who were brought to him by his brother, those Tutsis who took refuge in Simbikangwa’s home were all born to mixed couples, i.e. belonging, as he did, to both Hutu and Tutsi ethnicities.
Mrs Sironi-Guilbaud, the psychologist, explained how this mixed ethnic origin was in no way incompatible on a psychological level with participation in genocide where such miscegenation may not have been integrated harmoniously in the construction of a person’s personality – which was, in her view, the case with Pascal Simbikangwa.
The Court considers that it is at the very least surprising that the other Tutsis, estimated at several dozen persons by the accused, have not come forward since the genocide to thank or support him.
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The Court further considers that the reasons for which Pascal Simbikangwa protected a number of Tutsis during the genocide remain particularly obscure in light of his personality and his political involvement at the time.
In this respect, the testimony of Béatrice Nyirasafari, Michel Gahamanyi and, to an even greater extent, Pascal Gahamanyi are especially evocative.
Indeed, while all may claim that Pascal Simbikangwa saved their lives, which none of them failed to do during the trial, not one of them was able to give the deeper reasons for his behaviour, each having a particularly ambivalent and unsettling recollection of their protector’s behaviour.
Pascal Gahamanyi and Béatrice Nyirasafari even feared on several occasions that their saviour could, at any time, become a potential killer.
The Court further considers that the saving of several Tutsis – who, incidentally, were for the most part the progeny of mixed marriages – did not incur any risks for Simbikangwa in reality, taking into account the authority that he held at the time of the genocide.
Finally, none of the survivors testified as to an emotional relationship which may have explained his behaviour; indeed, the lack of emotion on the part of Pascal Simbikangwa (with whom they barely managed to talk) marked them, on the contrary, to such an extent as to cause them distress.
Furthermore, in light of Pascal Simbikangwa’s political convictions and his admiration for President Habyarimana, who represented the ideal father-figure for him, the Court considers it improbable that he took no action in relation to those who allegedly carried out the assassination, between April and July 1994.
This purported inaction is indeed in complete contradiction with the personality of the accused, who presented himself at trial as a leader of men who essentially enjoys giving orders, which is the reason for his embarking on a military career. Additionally, while Pascal Simbikangwa had wanted to take cover as events unfolded – which would have seemed perfectly understandable given his disability – he would naturally have sought refuge at his family property at Rambura, a much less dangerous region than the city of Kigali.
Now, the Court notes in this respect that Pascal Simbikangwa, no doubt aware of the incongruity of his presence in the Rwandan capital at the time of the genocide when he could easily have fled to Rambura, began by lying about his movements, not only during his arrest but also at his initial interviews with the examining magistrate in the presence of his legal counsel, claiming to have spent almost the entirety of the genocide at the prefecture in Gisenyi and not in Kigali.
His confusing explanations to justify such lies do little to disguise his intention to hide the true nature of his activities in Kivoyu during that period. He only went back on his false account of his movements when he learned of a number of witness statements placing him in Kigali during the genocide.
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Equally, Pascal Simbikangwa clearly changed tack in his statements concerning his day-to-day activities between April and July 1994.
After claiming in vain that he had barely set foot outside his house, he finally admitted having left his home on a number of occasions when faced with the statements of those persons whom he sheltered, stating that they saw him leave every day with his bodyguard, as though he were going to work.
Again, the Court considers that this intention to mislead the Court as to his real activities during the genocide is a concrete manifestation of his involvement in the charges against him.
The long-maintained ambiguity as to his actual status, to such an extent that some of his neighbours believed that he was still a captain in the Rwandan Army; the use, belatedly acknowledged at trial, of a military-style jacket added to the presence of his bodyguards and his reputation as a former member of the presidential guard; all evidently gave him unquestionable authority in the neighbourhood and when crossing roadblocks in Kigali.
This authority - which the accused himself ultimately did not dispute, invoking his former status as an officer to justify it – was noticed by all who travelled with him during the genocide when crossing roadblocks, and particularly by the Gahamanyi brothers and Béatrice Nyirasafari.
Equally, Isaïe Harindintwari, the Tutsi security guard at the house opposite Pascal Simbikangwa’s home and whose life was saved by the latter when he was taken, in his own words, to the slaughterhouse – which, incidentally, demonstrates the authority that Pascal Simbikangwa had over the Interahamwe – explained in particularly significant terms that he had the power of life or death over any person in the neighbourhood. This expression was repeated in the same terms by another security guard, Joël Gasarasi.
The Court notes in this respect that Simbikangwa never exercised that authority for the survival or protection of those Tutsis who were killed at the roadblocks in Kivoyu, and yet these were less than one hundred metres away from his residence.
The fact that Pascal Simbikangwa claims not to have seen any corpses whatsoever over the course of the events described, in spite of his many journeys and in spite of the testimony of almost all the survivors of the tragedy in Rwanda, is clearly a part of his intention to minimize his role and disguise the full knowledge that he had at the time of the genocide, events which were unfolding close to his house and before his very eyes.
His initial statements made before the examining magistrate, which consisted in arguing that there had been no roadblocks within the city of Kigali, are clearly part of the same strategy.
His application for political asylum, submitted to the OFPRA on his arrival at Mayotte in February 2005 under the name of Senyamuhara Safari, which identity he had not used in thirty years, again illustrates his intention to evade justice and hide his true involvement in the Tutsi genocide and crimes against humanity committed in Rwanda in 1994.
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The Court considers that his arguments claiming that the witnesses calling him personally into question were subject to pressure brought by the Rwandan authorities or by IBUKA, a lobby group, are devoid of any factual basis given that many of those witnesses - particularly the Gahamanyi brothers, Isaïe Harindintwari and Béatrice Nyirasafari, all of whom continue to reside in Rwanda (with the exception of Pascal Gahamanyi) – freely stated during the trial that Pascal Simbikangwa was among those who contributed to their survival.
The Court consequently considers that their testimony cannot be motivated by a desire to harm the accused or result from outside pressure.
The Court also considers that any contradictions as may be between some of these accounts on such and such a factual aspect may easily be explained by the amount of time that has elapsed since the events in question took place, difficulties in translation or the fact that the witnesses did not necessarily see exactly the same events. Too close a similarity would, on the contrary, indicate potential fraudulent concertation between the witnesses.
In this regard, it must be admitted that while there are indeed differences in the statements given by Isaïe Harindintwari, Michel Gahamanyi and Pascal Gahamanyi on the transportation and stockpiling of weapons of war in Pascal Simbikangwa’s home during the genocide, all maintained at trial that they had seen those weapons in the accused’s residence.
These accounts are supported by the statements of Thadée Nzbonimana, Venance Munyakasi and Jean-Marie Vianney Niyrigira, all of whom had also seen soldiers or Interahamwe procuring weapons at the home of Pascal Simbikangwa or directly from him at the beginning of the genocide.
Adbelrahmane Sadama, Isaïe Harindintwari, Jonathan Rekeraho, Diogène Nyirishema and Joël Gasarasi all confirmed that Pascal Simbikangwa distributed weapons in the neighbourhood, including the “Chinese” roadblock which was one of the most murderous in Kivoyu, located some hundred metres or so from Simbikangwa’s home.
Again, while their statements differ on the circumstances surrounding the distribution of those weapons – which is unsurprising given the passage of time and the stress that the witnesses were under at the time of the events – all maintain that, on the orders issued by Pascal Simbikangwa, the weapons were intended to kill inyenzi, i.e. Tutsis.
On this point, Venance Munyakazi and Isaïe Harindintwari both stated that people were indeed killed with the weapons distributed by the accused. Jonathan Rekeraho had also confirmed this during the judicial investigation.
Faced with multiple and repeated allegations, Pascal Simbikangwa began by lying to the examining magistrate, disputing the handing over of a rifle to Jonathan Rekeraho only to admit subsequently, in light of the accumulation of statements made against him, that the weapon had been intended to be used solely in protecting the home of Abdelrahmane Sadala; this is devoid of any credibility, the rifle having been personally handed over to Jonathan Rekeraho, who was guarding a roadblock intended to filter out Tutsis and was in no way the employee of Mr Sadala.
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The particularly detailed and reliable testimony given by Jean-Marie Vianney Nyirigira, essentially confirmed by Jean-Népomuscène Nsengumuremyi, also proves that Pascal Simbikangwa gave orders at roadblocks to ensure that guards and Interahamwe immediately exterminated any Tutsis likely to present themselves there, especially by meticulously examining all identity cards.
Indeed, Jean-Marie Vianney Nyirigira, a Tutsi guard who survived the genocide, has given the same account in the same terms since 2000, i.e. long before the location and arrest of Pascal Simbikangwa: that the latter passed through the “Chinese” roadblock on numerous occasions, calling on the guards there to be vigilant and ordering Nyirigira’s execution after casting doubt on the authenticity of his identity card, which was indeed a forgery.
While, in the context of the appeal brought by Protais Zigiranyirazo, the ICTR found that the statement made by Jean-Marie Vianney Nyirigira did not establish beyond all reasonable doubt that Protais Zigiranyirazo was in Kigali in April 1994, this is only due to the uncertainty that remained as to his exact location in light of statements made by the defence witnesses brought before the Chamber of First Instance by Zigiranyirazo and in the absence of any verification as to the journey times between Kigali and the province where he allegedly was. The ICTR’s proper legal analysis therefore related to facts that are in no way connected to the present case.
Albert, Michel and Pascal Gahamanyi all described having heard Pascal Simbikangwa’s bodyguards boasting about having murdering Tutsis in the neighbourhood, and Michel even noticed on one occasion that there was blood on the weapon belonging to one of the bodyguards on their return – a fact of which Pascal Simbikangwa must have been aware, bearing in mind the authority that he had over the two soldiers attached permanently to his service and, indeed, his person.
Consequently, the bodyguards’ participation in the killings in the neighbourhood can only be explained by their knowing that their superior officer, to whom they were supposed to provide close protection 24 hours a day, supported such acts of violence and that they consequently ran no risk of being reprimanded or sanctioned by him for leaving the house.
In conclusion, it is clearly apparent from oral argument at trial that Pascal Simbikangwa actively supported the operation of the Kigali roadblocks and the killings there, supplying weapons and directly issuing orders that Tutsis be systematically executed on the spot, with a view to completely destroying the ethnic group presumed to be responsible for the death of President Habyarimana and, to his mind, consequently to be viewed as the enemy to be exterminated by its very nature, within the scope of a concerted plan, particularly through the meticulous organisation of roadblocks controlling the city and the systematic search of houses that may have been sheltering Tutsis.
Pascal Simbikangwa did indeed enable others to kill and commit acts causing serious physical or mental harm, in the execution of a concerted plan leading to the total destruction of the Tutsi ethnic group. This, in light of the offences under Article 211-1 of the Penal Code, constitutes genocide, not complicity in genocide.
Furthermore, Simbikangwa knew perfectly well that, at that time, opposition Hutus were put in the same category as enemies of the state and that they were suffering the same fate as the Tutsis thanks to the weapons that he had supplied and his orders to eliminate all inyenzi.
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The examination of his character and professional career proves that he fully supported those summary executions and inhuman acts, performed systematically and on a massive scale; this characterizes his involvement on grounds of complicity in crimes against humanity committed against a section of the civil population, in the execution of the same concerted plan as that for the crime of genocide committed against the Tutsi community, but also directed against opposition Hutus.
4.3: On the involvement of Senyamuhara Safari alias Pascal Simbikangwa in crimes against humanity and genocide committed at the prefecture of Gisenyi in Rwanda between April and July 1994: On the other hand, the Court considers that the charges brought against Pascal Simbikangwa regarding his alleged involvement in the roadblocks set up in the prefecture of Giyensi between April and July 1994 are too weak to secure a conviction.
Indeed, his presence at the meeting in Kibihekane on 7 April 1994, between 3:00 pm and 5:00 pm, during which orders were allegedly given to the Interahamwe to raise roadblocks and hunt down Tutsis, does not tally with the fact that he was seen in Kigali that day, bearing in mind the journey time between the capital and the prefecture in the north-west of the country, which was estimated to be three to four hours at normal times.
Furthermore, his presence on the morning of 8 April 1994 in the prefecture of Gisenyi does not tally with the testimony given by the Gahamanyi family, stating that he was at his home in Kivoyu that morning.
Equally, his involvement in the training provided to the Interahamwe in Kibihekane during the genocide does not tally with his state of health.
Finally, the statements taken from Théoneste Habarugira, Théoneste Marijoje and Jean de Dieu Bihintare, present striking similarities, particularly concerning Pascal Simbikangwa’s car registration plate, which had never been at issue prior to the trial; this suggests a degree of concertation between them which does not tally with the truth.
Consequently, Pascal Simbikangwa will be acquitted of the charges of genocide and crimes against humanity, as both accomplice and perpetrator, relating to the prefecture of Gisenyi.
Made at the Paris Law Court, 14 March 2014 The foreman of the jury The Presiding Judge of the Paris Assize Court
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MONTESQUIEU LAW REVIEW Issue No.1 January 2015
Political Science:
The Front National at the centre of the French political stage: a consequence of the UMP’s losing strategy to win and stay in power Clémence Faure, doctoral student, Centre Montesquieu de Recherches politiques, University of Bordeaux Professor Patrick Troude-Chastenet, Centre Montesquieu de Recherches politiques, University of Bordeaux
"Earthquake"; "tidal wave"; "volcanic eruption" (1)… The French media made a beeline for the language of natural disasters to describe the Front National’s (FN) victory in the European elections on 25 May 2014. The reaction in the press proves that these results are a significant historic event in French political life: for the first time, a party at the far-right of the political spectrum had won an election in France.
Admittedly, 21 April 2002 may have set something of a precedent. In coming second in the presidential elections, Jean-Marie Le Pen had proved that the FN could secure high numbers of votes. However, the current situation is not at all on the same scale at that in 2002. Firstly, the electoral contexts are not alike: the FN leader’s success in reaching the second round of the presidential elections could then be explained by a number of political parties putting up candidates for the first round of the elections (2). The inflated number of parties was especially unfavourable for the left, as it found itself deeply divided and was therefore unsuccessful in fielding a candidate in the second round (3). Secondly, the number of votes secured by the FN must be viewed in context. Indeed, whilst it is obvious that it was an unprecedented success for the party, it achieved a much better result in 2012: the number of votes for Jean-Marie Le Pen was lower than that garnered by his daughter, Marine Le Pen, ten years later (4), which adds weight to the argument that 2002 is far from being a zenith for the FN. Furthermore, the abstention rate seen in 2002 was much higher than in 2012, which goes some way to qualify the FN’s 2002 breakthrough (5). Finally the “shock of 21 April” prompted a large-scale response not only from political parties, who put up a united front in condemning and countering the FN’s success, but also from the French populace, which took to the streets in large numbers on election night and on 1 May – International Workers’ Day – to protest against Le Pen’s party. Conversely, the 2014 European elections met with little response from French society: on the evening when the results were announced, there were no mass demonstrations, and the national campaign organised, amongst others, by young high-school students was a failure. Moreover, while French political parties emerged from the 2002 elections stronger than ever, 2014 saw their relative collapse: the right, embodied by the Union pour un Mouvement Populaire (UMP) is divided and on the brink of implosion; the socialist left has suffered yet another defeat marked, in particular, by its desertion by part of its traditional support base.
If we examine the results of the 2014 European elections in detail, we cannot help but notice the FN’s success. With an almost equal turn-out, the party increased its 2009 result by 400%. It came first in five of the eight major electoral districts established for the European elections. It came second in two others, behind the UMP. France’s Overseas Countries and Territories were the only
148 district where the FN came fourth. A majority of voters in sixteen out of twenty-two regions voted for the FN, with levels over 30% in seven of these. As regards the départements, the FN came first in 71 of them. On a European level, France is not the only country where a far-right and/or populist party won. For the first time in its history, the United Kingdom saw a “rebel party (6)”, the United Kingdom Independence Party (UKIP), win the elections (7). The latter, founded in 1993, made a significant breakthrough, adding a further 11 MEPS to its total number of representatives (24 in total). It is anti-Europe and campaigns for the United Kingdom’s independence, which would lead to the UK’s withdrawal from the European Union. In Denmark, the Danish People’s Party was also victorious (8). The latter party is described as populist and xenophobic.
The 2014 European elections were therefore historic for the far-right on both a national and a European level. However, as regards French political life, they are a distraction: while the FN has indeed achieved impressive election results, we must remember that those results serve only to confirm the party’s steady progress since 2010. Furthermore, over the last four years, the FN has achieved results which have attracted less media coverage but are nonetheless significant and even of greater interest in analysing the FN’s growing influence in French national politics. Thus, as mentioned above, Marine Le Pen came third in the 2012 presidential elections with more votes than her father secured ten years earlier and against a smaller number of parties. Those elections are of greater significance for the French electorate than the European elections, as is shown in the higher voter turn-out. Equally, the 2012 parliamentary elections gave the FN two seats in the National Assembly, which had not happened since 1988. More recently, the FN won thirteen municipal councils at the 2014 municipal elections (9) and a large number of councillors (10).
This situation is all the more surprising when one considers that from 2007 to 2009, the FN was so unpopular that many observers predicted its demise. The most obvious illustration of that decline is the 2007 presidential elections: the FN won only 10.44% of the vote, a fall of 6 percentage points as compared with the first round in 2002. So what could explain this reversal of fortune?
In order to understand the rise of the FN from 2012 onwards, we must go back to its years in the wilderness and see what caused its collapse at the polls in 2007. The explanation can be found in the rise of Nicolas Sarkozy within the UMP and the campaign strategy that he and his team developed from 2004 onwards to win the 2007 presidential elections. One of that campaign’s main objectives was announced by Sarkozy himself: he intended to "tackle the FN on its home turf” (11), both geographical and ideological, To achieve this aim, he stripped the Le Pen rhetoric away from the FN’s favoured topics whilst building his own leadership ethos, which allowed him to present himself to his electorate as a legitimate presidential candidate and win over Le Pen voters by appearing more credible in implementing the latter’s policies. This strategy worked for a time (electoral successes of 2007 and 2009) but, ironically, its long-term effect was the advances made by the FN and, on a deeper level, the party’s gravitation from the fringes to the heart of the French political landscape. It also spawned the wider acceptance of the views held by the far-right, as shown by a greater outspokenness in French society. We cannot, however, ignore the part played by the FN in its own institutional legitimisation: the arrival of Marine Le Pen, in 2011, was an especially significant event for the part. Her “de-demonisation” strategy, which included a “republicanisation” of her views, accelerated the trend brought about by Sarkozy’s own strategy (12).
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In order to account for this scenario, we will present our findings in two parts. We will firstly show that the FN’s advances are the fruit of a rhetorical convergence between each party’s discourse, resulting (for the most part) from the strategic re-orientation instigated by Sarkozy’s team from 2004 onwards; and, secondly, we will examine the consequences of that convergence for French political life.
1. Winning over the right: a rhetorical convergence resulting from the UMP’s new strategy With a personality to instigate and embody it, the new strategy put forward by the main party of France’s institutional right would never have seen the light of day. Nicolas Sarkozy, a member of the "cadets de la droite" (13) generation, succeeded in building himself the leadership ethos necessary to impose a successful strategic reorientation. To do this, he capitalised on a troubled political context within the UMP, which allowed him to become chairman of the party; this is the key for anyone wishing to run for office. It was with a view to taking power that the délepénisation strategy - a difficult balance between the republican right and the far right – was formulated and succeeded in propelling its main proponent to the presidency.
1.1 Nicolas Sarkozy, the embodiment of the new right Nicolas Sarkozy became leader of the UMP on 28 November 2004, during the party conference at Le Bourget. He appeared to be the only man able to ensure that the party would retain the Presidency. The first question to be asked in light of that situation is one of understanding the context in which Sarkozy succeeded in becoming leader of the party and, therefore, ralliying the UMP around him, when he had been one of the most divisive personalities in the eyes of the left as well as those of his own party since his arrival at the French Ministry of the Interior in 2002.
1.1.1 Constructing the Sarkozy image: an uninhibited leader In order to attain high office within the party and then secure the Presidency, Nicolas Sarkozy had, since entering the Ministry of the Interior, sought to forge himself an image as a charismatic leader. To do this, he made particular use of language.
Language is one of the elements in building the image of a leader. An ethos, constructed primarily through words, is necessary for a candidate’s speech to have any force of persuasion. It is only possible for an orator to argue, convince or contradict if they have a positive self-image. Furthermore, while a politician’s image is forged though his speeches, that image will decide whether a speech is well received by voters. Damon Mayaffre (14) shows that, in order to give himself an authority worthy of high office, Nicolas Sarkozy used language above all for the image that it would confer (ethos) and not for the logic behind the speech (logos). That is to say, he used words to project his own personality rather than the substance of his speech. Furthermore, it was not only a matter of putting himself in the spotlight; the Sarkozy image reflected in his speeches had to be that of a determined, authoritative person ready to volunteer his service whilst also being paternal and thus inspiring confidence as a wise man offering protection to the weak. This is expressed, inter alia, in the over-use of je - "I" - and moi - "me": ““I” takes the place of a manifesto and strips it of all meaning. “Me” (pronoun) replaces “France”, the “people”, or the “Republic” (nouns)” (15). The inordinate use of on or "it" is also a constant in Sarkozy’s discourse. According to Mayaffre, it is there as a counter-balance to the I-me pairing and also contributes to the construction of a leadership ethos: "Everything is done in a speech for Nicolas Sarkozy’s je- moi (I-me) to appear as the only protection against a threat made all the more worrying by the fact that it is unqualified by the use of “it” (16). What is more, the promotion of the ethos of Sarkozy as
150 guide is based on the forbidden and therefore on the abundance of negative formulations and turns of phrase in his speeches. He is the one who permits and prohibits, because he is responsible and vested with authority: "On the subject of authority, Sarkozy’s discourse is above a discourse of authority: a paternal or martial authority likely to say “no”, likely to say “do not…”” (17). Finally, the use of "I want" abounds in Sarkozy-speak:
“NS’s charisma is thus built through the stage management or publicity (the fact of making public) his desire to become or to be President. As the winner can be defined as he who wants to win, the President is defined as he who wants to be President. Since 2006, NS has made no apologies for his ambition: he has made it an argument in his favour […]; once elected, that desire to be president is beyond all doubt”. (18)
While Nicolas Sarkozy presented himself as a charismatic guide, an image constructed through his specific use of language, he also wanted to be an "uninhibited" leader. This is done through specific lexical and grammatical turns of phrase, such as the recurrence of more relaxed expressions (qui est-ce qui..., ça…, je veux pas), which give the impression of a man of the people who speaks like the people and not like an intellectual or a technocrat (19), but also whilst laying claim to a right-wing identity.
Just as with the construction of the leadership ethos, taking on such a partisan identity is one of the bases of the strategy put in place by the UMP to appeal to FN voters. Their chosen candidate had to appear to be credible, and indeed more credible than Jean-Marie Le Pen, all whilst reassuring the FN electorate as to the content of the UMP’s manifesto. This was the first time under the Fifth Republic that the leader of a dominant party, on the right of the political spectrum, so openly declared his political stance. Such determination in asserting a political identity can be explained by the generational effect: Nicolas Sarkozy is a member of the "cadets de la droite" – the right-wing cadets, young cadres rising through the party’s ranks following the defeat of the RPR (20) at the hands of the Parti socialiste (PS – the French Socialist Party) in the 1981 presidential elections. This was the left’s first electoral victory since the Fifth Republic’s inception in 1958 and contributed to a generational renewal within the republican right fuelled by young people radicalised by the Socialists coming to power and determined to use ideas in order to vanquish the forces of the left. There was then a manifest desire on the part of those young cadres to establish their right-wing credentials and reject en masse the “laxity” deemed inherent to the left. This vehemence towards socialists can be seen in Sarkozy’s anti-May 1968 speech. In his diatribe, he rejected the idea of a society in decline which was, according to Sarkozy, the result of the events of May 1968 and of left-wing government. Behind May 1968, he was also taking aim at the events of 1981 so it is not surprising that, in the Sarkozy’s eyes, the "liquidation of the legacy of May 1968" should be synonymous with the assertion of an alternative model and, therefore, with the promotion of right-wing values.
1.1.2 A favourable political context The UMP was officially born on 17 November 2002 during the party conference at Le Bourget. It was the result of the merger of the three main parties on the republican right: the Gaullists of the RPR; the liberals of the Démocratie Libérale (Liberal Democracy) Party; and the centrists, the majority of whom were members of the Union Démocratique Française (French Democratic Union). At the same conference, during which old political formations were absorbed into the new entity, the members elected their new leader: Alain Juppé. He could be considered as the dauphin to
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Jacques Chirac, then serving his second term as President of the Republic. Juppé embodied the Gaullist trend. The UMP was thus adapted to him so as to allow him to run for office and succeed his mentor. He therefore quite naturally became leader of the UMP to await the presidential elections.
Nicolas Sarkozy’s supporters began to sow discord in 2003. Their leader had been Minister of the Interior for a year by that time, a position that he used, as we have already seen, to construct his ethos as a guide able to lead a country. Tensions grew between sarkozystes and chiraquiens, each defending a very different conception of politics. This was also a generational clash between those still bearing the Gaullist standard (the chiraquiens) and those who felt that it had to be updated and its message overhauled (the sarkozystes).
Two events allowed handed victory to Nicolas Sarkozy and his supporters. Firstly, the UMP suffered crushing defeats in the 2004 regional elections, in which the Socialists seized control of twenty out of twenty-two regions. More significantly, Alain Juppé was arrested by police in July 2004 as part of the investigation into fictitious jobs at Paris City Hall and was consequently forced to resign. With no other chiraquien leader able to unite the factions within the UMP, Nicolas Sarkozy emerged as being the only man capable of accomplishing the task. This set of circumstances thus allowed him to outflank the once hostile Gaullist right, which found itself compelled to follow and support him. He naturally became leader of the UMP following the election on 28 November 2004, in which he won 85.09% of the vote. The margin of victory was such as to bolster his legitimacy as then he appeared to be the chosen candidate of the republican right.
1.2 Winning over the right and reassuring the centre: délepénisation Sarkozy’s team then had all the authority needed to begin the party’s strategic reorientation, employing a double tactic drawn from the lessons of 2002. Nicolas Sarkozy endlessly hammered home his point, namely that the FN was a symbol of xenophobia and racism, and that it was anti- democratic. At the same time, he set about republicanising themes usually evoked by the FN. He thus embodied exactly a blend of right and far-right. This marked the beginning of the “uninhibited right” era, and Nicolas Sarkozy personified this best. Indeed, from the time of his arrival at the Ministry of the Interior in 2002, he was able to present himself as the leader in the fight against insecurity. He succeeded in taking that particular theme away from the lepéniste right in such a way that political rhetoric on security was no longer directly associated with an attempt to adopt far-right themes, as it had previously been in France during the 1980s. The assertion that insecurity is a right-wing issue whilst associating it with republican political discourse allowed Sarkozy to “de-lepenise” the subject, i.e. strip away associations with the Le Pen style of rhetoric. The same strategy was used in relation to illegal immigration and criminal justice policy. Sarkozy’s rhetoric became even more radical from 2005 onwards, when he began his preliminary presidential campaign. He intended to take on the FN on its home turf, be that geographical or ideological. To do this, he turned to the issue of immigration law. He declared that he was going to seek out FN voters “one by one” and proved it when he adopted the following stance: "If some of them are bothered by living in France, let them leave a country that they don’t like" (21). He then began advocating “selective immigration", which allowed him to distance himself from the Le Pen discourse but was only a more respectable version of the far right’s own policy. The announcement, on 8 March 2007, of a Ministry of Immigration and National Identity was also part of the strategy to win the FN vote through the "republicanisation" of FN policy, a strategy that proved to be a winning one: in the first round of the 2007 presidential elections, not only did
152 right-wing voters stay loyal to their candidate, but Sarkozy had also won over a third of Jean-Marie Le Pen’s supporters, the latter only winning 11% of the vote. Furthermore, Sarkozy won by a comfortable margin at the second round, securing 53% of the vote and allegedly gaining support from 70% of those voters who had voted for Le Pen at the first round (22). Le Pen himself had, however, called on FN voters to abstain. The same pattern repeated itself for the parliamentary elections in June of the same year. The FN came to grief and did not get beyond 5% (23) when it had hoped to win back the votes taken by the UMP. In the 2008 municipal elections, the party collapsed altogether, winning 0.93% of the vote at the first round and 0.28% at the second. The results from the 2008 cantonal elections were no better. The FN then began its spell in the wilderness; 2010 saw Jean-Marie Le Pen announce his resignation as leader while the party suffered a wave of defections and serious financial difficulties.
Nicolas Sarkozy’s new strategy had won the day. Thanks to the charisma and credibility that he has built up for himself during his time as minister, President Sarkozy had won at the ballot box. The strategic reorientation he had instigated within the UMP in what was a favourable political context, had worked in such a way as to secure votes that both the right and the left had believed to be lost. He also succeeded in not frightening off the more centrist electorate, even winning votes from other sections of society by not only playing on his personality as a leader but by relying on French society’s latent potential for xenophobia. The FN was defeated and did not recover after the presidential elections.
The roles were reversed three years later. The FN began to do well from the 2010 regional elections onward and continued to make gains right up until its victory in the 2014 European elections. While the Sarkozy strategy had worked in the short term, we cannot help but see that its effects were not sustainable over time. As has been shown by European research, it had a boomerang effect resulting in the trivialisation and legitimisation of far-right themes, as well as the wider acceptance of radical right-wing parties.
2. A new strategy, ineffective in the long run: the normalisation of the FN through the legitimisation of its themes 2010 was pivotal, with the FN’s return to the French political stage and a sea-change in the French representation of immigration, authority and Islam.
The issue here is one of ascertaining the extent to which the UMP’s strategy contributed to the shift of the margins in France’s political arena and the recrudescence of the population’s intolerance.
2.1 The reversal of the political spectrum: a legitimised, arbitral FN The only advantage of the "sarkozyste" discourse is that it legitimises our own. Our voters know that this government hasn’t solved any problems and they have returned to the fold in the regional elections. (24)
The above comment, made by French MEP Bruno Gollnisch, is far from meaningless. Indeed, if we examine the investigations conducted by European researchers into the radical right, we reach the same conclusion. According to their analysis, the adoption by a mainstream right-wing party of themes belonging more traditionally to the far right leads to the wider acceptance of far-right themes and political thought and to a shift in a country’s political margins, whereby parties on the
153 fringes of national politics move towards the centre, thus allowing them to dominate public debate.
Joost Van Spanje and Wouter Van Der Brug measured the impact of tactics adopted by dominant parties vis-à-vis the radical right. They concluded that pursuing a strategy of exclusion results in extremist parties maintaining their radical stances without getting worse. Conversely, integrating themes and stances associated with the radical right into a manifesto, or even working with the radical right, results in the trivialisation or wider acceptance of far-right ideology whilst weakening the extremist party (25).
Kay Arzheimer examined the issue of whether support for far-right parties grows because the main parties do not adopt strong stances on those themes evoked by the radical right, what Arzheimer terms "the conspiracy of silence"; or whether, on the contrary, the fact that the dominant parties adopt the ideological stances of far-right parties cements support for the latter. On the basis of the results of an investigation conducted in seven European countries from 1980 to 2002, he concluded that the second hypothesis holds true: not only does it legitimise those parties but it also perpetuates them (26).
According to Joost Van Spanje, who based his findings on a study of political ideologies in Europe, the more established a far-right party becomes, the greater the contagion for other political, even left-wing, parties. This contagion is seen especially in themes that then become central to political debate (particularly those concerning security and immigration) (27).
If we combine the results from these different studies and apply them to France and the UMP, we can assert that the new strategy implemented in 2007 allowed the FN to become more widely accepted and take a position at the centre of the political stage. This would explain the party’s growing successes at the ballot box. A further consequence, according to Joost Van Spanje and Wouter Van Der Brug, is the trivialisation of far-right thinking in society. In order to verify this theory, we will now turn to the annual reports published by France’s Commission nationale consultative des droits de l'Homme (CNCDH – National Consultative Commission on Human Rights).
2.2 The wider acceptance of far-right themes: greater outspokenness in French society The Commission’s experts have shown that, for the first time since the creation of indexes on French representations on immigration, the curve is inverted: while French society has become more open year on year, the indicators reversed in 2012, showing a growing intolerance.
The CNCDH’s 2012 report tells us that the perceptions and attitudes of French people on racism have evolved in particular. Indeed, we are witnessing a significant increase in the recriminations made against immigrants and growing criticism of Islam. The most striking fact is that this finding is not limited to right-wing voters but extends to the French population as a whole. This downward trend emerged in 2012, persisted in 2011 and became more acute in 2012. Thus, while previously we saw leaps in the level of conjectural intolerance, today we can wonder whether the conjectural has now become structural.
As regards racism, its level has admittedly remained stable as compared with 2011 but that disguises the ever more widely held view that racist acts may sometimes be justified. Furthermore,
154 while the percentage of people declaring themselves to be racist has remained more or less stable, the number of individuals stating that they are not racist has fallen by 5% per year. Above all, the feeling that there are too many immigrants in France has increased sharply (+10% compared to 2011 and +22% compared to 2009). It is also interesting to note that while the majority of those stating that there are too many immigrants in France are right-wing sympathisers, that feeling is less widespread amongst left-wing voters. It has thus increased by 3% amongst right-wing voters and 11% amongst left-wing voters. Moreover, the belief that in France “you don’t feel at home anymore" has risen by 6 percentage points, its highest level since 1990.
Islam is also increasingly criticised, the positive view of the religion having fallen by 7% in a year. This brings with it an increased hostility towards the practices associated with Islam.
Finally, if we look now at the tolerance index, it is closer to that of 2001, showing a sharp decrease. The analysts who contributed to the report stress the fact that the phenomenon is not only unprecedented in terms of scale but also in terms of duration. Indeed, it in the first that the index has fallen in three consecutive years.
This data is especially striking as it calls into question what is known as the "ratchet effect":
The consecutive falls in levels of tolerance had always remained higher than the minimum levels reached in periods of decline. This is how that the 2000 minimum was still higher than the 1991 level, and the 2005 minimum was higher than the 2000 one. For the first time, the 2012 minimum was lower than that in 2005. (28)
This phenomenon is widespread amongst right-wing sympathisers, which means that it has moved even further to the right as compared with previous years. The most striking fact is that the level of intolerance has increased in French society as a whole, which shows that tensions have spread through all the groups questioned.
The FN’s advances since 2010, together with the trivialisation of its thinking within French society, therefore originated in the UMP’s strategic reorientation from 2004 onwards in its desire to stay in power. This innovative strategy would have been impossible without a charismatic leader able to rally his party and its voters under his banner, and was successful in the short term. However, as we have seen, its advantages were not sustainable in the long run.
The sarkozystes’ show of force ultimately went against them and the violence of the boomerang effect threatens to smash the UMP to pieces. The party will have to rebuild and escape the noose that it willingly placed around its own neck. The main issue now is as to whether it will gravitate back towards its traditional centrist allies or continue with its drift further to the right of the political spectrum; and, above all, whether it will have time to pick itself up before the 2017 presidential elections.
Bibliography: Bernard M., La guerre des droites : droite et extrême droite en France de l'affaire Dreyfus à nos jours, Paris, Odile Jacob, 2007, 311 p.
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Chemin A., « La France en éruption volcanique », Le Monde, 26.05.2014, available at http://www.lemonde.fr
Frémontier J., Les cadets de la droite, Paris, Le Seuil, 1984, 303 p.
Garat J.-B., « La victoire du Front national provoque un séisme politique », Le Figaro, 26.05.2014, available at http://www.lefigaro.fr
Haegel F., Les droites en fusion, Transformations de l'UMP, Paris, Presses de Sciences Po, 2012, 339 p.
Mallet J.-B., « FN-UMP, Les liaisons dangereuses (1) - Relookage extrême », Regards, 6 janvier 2011, available at http://www.regards.fr
Mayaffre D., Nicolas Sarkozy, mesure et démesure du discours (2007-2012), Paris, Presses de la fondation nationale des sciences politiques, 2012, 368 p.
Mayer N., Michelat G., Tiberj V., « Montée de l'intolérance et polarisation anti-islam », Rapport de la CNCDH, 2012, pp. 28-47
Sulzer A., « Européennes : le raz-de-marée FN », L'Express, 26.05.2014 available at http://www.lexpress.fr/
Notes: (1) For example: Arianne Chemin, « La France en éruption volcanique », Le Monde, 26.05.2014, available at www.lemonde.fr; Alexandre Sulzer, « Européennes : le raz-de-marée FN », L'Express, 26.05.2014 available at www.lexpress.fr; Jean-Baptiste Garat, « La victoire du Front national provoque un séisme politique », Le Figaro, 26.05.2014, available at http://www.lefigaro.fr (2) Six parties had their candidacies approved by France’s Constitutional Council. (3) The Socialist party thus found itself isolated and unable to join forces with the Verts (Green Party), the Parti communiste (Communist Party) or the Parti radical de gauche (Radical Left Party). (4) In the first round of the 2002 presidential elections, Jean-Marie Le Pen garnered 16.86% of the vote, i.e. 4,804,713 votes. In the second round: 17.79% i.e. 5,525,032 votes. In the first round of the 2012 presidential elections, Marine Le Pen garnered 17.90% of the vote, i.e. 6,421,426. She therefore beat her father in terms of both percentage and the number of votes. (5) The abstention rate in 2002 was 28.4 %, the highest in the first round of the presidential elections since the beginnings of the Fifth Republic. The same rate was 20.3% in the second round. In 2012, abstention stood at 20.5% in the first round and 19.7% in the second. (6) This is also how UKIP leader Nigel Farage defines himself. (7) It won 27.5% of the vote, being 14 seats in the European parliament. (8) It won 4 seats by garnering 26.6% of the vote. (9) The thirteen towns are not all officially FN but are at the very least part of a far-right trend. Thus the mayor of Béziers, Robert Ménard, is not a member of the FN but the latter supported him during his campaign. Jacques Bompard, mayor of Orange, left the FN in 2005 and campaigned under the banner of the Ligue du Sud (Southern League).
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(10) 1,544 municipal councillors according to results compiled by the Ministry of the Interior. (11) Matthias Bernard, La guerre des droites : droite et extrême droite en France de l'affaire Dreyfus à nos jours, Paris, Odile Jacob, 2007, p. 251 (12) This subject merits an article on its own. We may still stress that the FN implemented its own strategic re-orientation later than the UMP did. It was only when Marine Le Pen was elected party leader in 2011 that the "de-demonisation" strategy was launched with a view to normalising the party’s discourse. The strategy is almost a mirror image of the UMP’s, as it seeks to advocate republican principles (such as secularism) in order give the FN credibility and legitimacy in its bid for power. It wishes to appear respectable and, in order to so this, it does not intend to present itself as anti-democratic or anti-republican. However, it is also a matter, like it is for the UMP, of retaining its more radical supporters by maintaining its anti- system image and through greater professionalization achieved by recruiting and training party cadres. It is the overlap between these two strategies – that of the FN and of the UMP – which blurred the line between the parties’ respective identities and discourses. Indeed, with each borrowing tactics from the other, the result is two kinds of political rhetoric that tend to muddy the ideological waters for voters. (13) Jacques Frémontier, Les cadets de la droite, Paris, Le Seuil, 1984, 303 p. (14) Damon Mayaffre, Nicolas Sarkozy, mesure et démesure du discours (2007-2012), Paris, Presses de la fondation nationale des sciences politiques, 2012, 368 p. (15) Ibid., p.197. (16) Ibid., p.104. (17) Ibid., p.307. (18) Ibid., p.313 (19) It should be noted on this point that Florence Haegel has highlighted, in Les droites en fusion (published in 2012 by Presses Universitaires de Sciences Po'), the inferiority complex shared by UMP members vis-à-vis left-wing voters deemed more intelligent and cultured. We can also connect the comments made by both researchers and put forward the idea that the way in which Nicolas Sarkozy speaks is also a way for him to take “non-intellectualism” on as part of his identity and thus put an end to his supporters’ inferiority complex. (20) Rassemblement Pour la France (21) Matthias Bernard, op. cit., p. 261 (22) Ibid., pp. 262-263 (23) He lost 7 percentage points as compared with the previous presidential elections. (24) Bruno Gollnisch quoted by Jean-Baptiste Mallet, « FN-UMP, Les liaisons dangereuses (1) - Relookage extrême », Regards, 6 janvier 2011, available at www.regards.fr (25) Joost Van Spanje et Wouter Van Der Brug, The Party as Pariah : The Exclusion of Anti- Immigration Parties and its Effect on their Ideological Positions, West European Politics, 30 (5), 2007, p. 1022-1040 in Florence Haegel, Les droites en fusion, transformations de l'UMP, Paris, Presses de la Fondation nationale des sciences politiques, 2012, p. 275 (26) Kay Arzheimer, Contextual Factors and the Extreme Right Vote in Western Europe, 1980- 2002, American Journal of Political Research, 48, 2009, pp. 335-358 in Ibid., p. 276 (27) Joost Van Spanje, Contagious Parties: Anti-Immigration Parties and Their Impact on Other Parties' Immigration Stances in Contemporary Western Europe, Party Politics, 16 (5), 2010, pp. 563-586 in Ibid., p. 273 (28) Nonna Mayer, Guy Michelat, Vincent Tiberj, « Montée de l'intolérance et polarisation anti- islam », Rapport de la CNCDH, 2012, p. 30
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MONTESQUIEU LAW REVIEW Issue No.1 January 2015
Dialogues:
The Huron at the Palais Royal, or innocent remarks on judicial review Professor Jean Rivero J. Rivero, « Le Huron au Palais-Royal, ou réflexions naïves sur le recours pour excès de pouvoir », Dalloz, 1962, chron., p. 37. Translated to and published in English by kind permission of the publishers.
He was a Huron, and a Huron lawyer at that. He sat at the foot of a copper beech that swayed in the breeze, occasionally dropping a leaf that came to rest on the Huron’s shoulder like the clasp on a red epitoga (1). There he sat, teaching public law to the future warriors of his tribe. The tender hearts of those good and virtuous young men sang as his learned words described the wonderful devices invented by the Wise Men across the Great Ocean to protect humankind against actions ultra vires. The Huron dreamed of making a pilgrimage to the city where the beacon of administrative law burned so brightly. A UNESCO scholarship granted his most ardent wish, and off he flew to Paris.
At Orly airport, where I went to welcome him, his first words were: “Take me, if you please, to the place where your Great Council sits”. As we stood in the courtyard of the Palais Royal, he prostrated himself, face down, saying “I kiss the ground where the great tree of judicial review takes root, “that most marvellous of lawyers’ creations, the most effective, the most practical, the most economical weapon that exists in this world to protect freedoms” as your Gaston Jèze (2) wrote. Bastion of the oppressed, scourge of the oppressor who, at the very moment when he will strike a fatal blow, stops dead as he hears the dread voice of the judge proclaim: “You shall go no further!””.
Gently, I interrupted him: “My dear fellow, don’t lose sight of the fact that legislators, in all their wisdom, have been unwilling to endow judicial review with a suspensory effect. It therefore doesn’t fall to the court to stay the hand of the Administration when it is about to act; its dreaded censure comes after the event”.
“I’m quite aware of that”, said he, “but have you forgotten the judge’s right to order a stay of execution?”
“No, indeed; but the law confines that power within some very narrow limits”.
His face creased into an impish smile: “I know, but I also know about the marvellous ingenuity that your courts put to the service of freedom against the letter of an oppressive law; where the law on stays of execution left only enough room for a musquash to squeeze through, I imagine that case law has surely widened the gap to allow a whole herd of bison to pass with ease”.
“The lower courts”, said I, “once tried to take that path; but the wise judges in the upper courts recognised their imprudence. They didn’t settle for ensuring that the conditions set by legislation
158 for ordering a stay of execution were strictly observed, but instead added further requirements (3), and have generally been praised for it”.
He looked disappointed at this, but quickly recovered: “No matter, after all! Isn’t the main thing that final decision, which with a single word annihilates an unjust act, obliterates its consequences as the sun melts the ice on our Great Lakes, and gives the victim all that the law grants him, all that the Administration has refused him?”.
A misgiving made me start speaking again: “Careful now, the court’s power doesn’t extend that far! Generally, you know, the court isn’t permitted to order the Administration to do anything, and may certainly not substitute its own decision for that which it has just overturned. Even in full remedy proceedings, it may only order the Administration to pay: in judicial review cases, the court is forbidden to go beyond a pure and simple annulment of the act in question”.
“That’s a strict prohibition,” he sighed, “which law imposed it?”.
I smiled: “There’s no need for a law when the very nature of things is in command; and the nature of things demands that, within the Executive, judging a matter be distinct from taking action. Where would we end up if, on the basis of the annulment, the court were to draw out the necessary consequences, dictate the behaviour to be adopted by the Administration in order to restore the law, or dare to substitute a legally correct decision for that which has been annulled?”
“Thus”, said he, “no obstacle other than the nature of things prevents the court from enjoining the Administration to act, or even decide a matter in the Administration’s stead?”. I could only agree. He thought for a moment then continued: “The nature of things… that can be understood in any number of ways! Where I come from, we believe that the court’s role is to state what the Law demands in all matters; when our judge decides which of the two hunters contesting a caribou carcass has actually killed the caribou that each claims to have killed and can take it (away) in accordance with our hunting laws, we think that he remains a judge and does not become a caribou hunter. You reason differently, it seems, when it concerns administrative acts rather than caribou. Does the nature of men impose itself? I’m not sure. Incidentally, in your country as in mine no doubt, it seems to me that what the litigant hopes is that something in the reality of his day-to-day life be changed for the better: that he be able to do something that had been wrongly forbidden to him, or be allowed to take up a post that he had been refused illegally. Is it the abstraction that is the annulment that interests him? No; what interests him is the result that he expects from it. That being the case, is it not a matter of dissociating the annulment from its consequences rather than being unaware of the nature of things? In casting an act into oblivion but refusing to say what ought necessarily to follow from its disappearance, is the court not stopping short, without seeing its task through to the end? And what would be said of the lumberjack who chops through a tree’s roots but refuses to fell the tree itself, entrusting that task to the winter storms instead? It is one thing when the new definition is part of what I believe you call judicial discretion: that is not at all the judge’s remit – though I could well have said that yours does sometimes go beyond that, when he sees fit to do so. But when everything results from the annulment by virtue of legal necessity, why does your judge, who is usually so fearless, not dare to substitute his own decision for the annulled act, or tell the Administration what it is bound to do?”
“He will indicate as much to the Administration, on occasion”, I retorted, “not as an imperative in
159 the court order, but rather as friendly advice in the grounds of the judgement. Authors cite a decision where this trend manifests itself (4); we would no doubt find others if we were to look. Incidentally, don’t underestimate our judge’s wisdom and prudence: if, in issuing an injunction, he sees that it comes to nought; if he is not obeyed; what would become of his prestige and authority? In confining himself simply to the annulment itself, he has saved the dignity of the judiciary, the very foundation of the legal system.”
Astonishment was etched across my companion’s face: “What? Is your judge the same as our weak sachem whose miserable rule was endured by my tribe for several years and who, knowing that that his authority was in dispute, found no better solution to allow him to rule peaceably than choosing never to use his authority as chief, safe in the knowledge that he would not be disobeyed when in fact he was in command of nothing at all? I could not believe it; anyway, is obedience not easier when order is clearly established? If, in my country, the judge were simply to tell those warriors in charge of the tribe’s departments “your act is null and void”, embarrassment would be written all over their faces; in order to obey, they expect to know what they must do and, unlike your civil servants in this respect, they definitely do not like initiatives and feel lighter when a clear decision stands between them and their responsibilities, just like those canvas shelters that offer protection from the great autumn rains. I for one don’t doubt that if your judge – your prestigious and powerful judge – were to order it, his own authority, together with that of the Law, would reduce even the most recalcitrant of administrators to immediate obedience.”
Here, I bent my head: “Alas! What makes me doubt that the judge would indeed be obeyed if he were to embark on the path of an injunction, is the fact that, when it comes to a simple annulment…”. He interrupted me: “Do not suggest that the Administration defies annulment decisions and does not proceed with restoring the Law even in the absence of an injunction! I know that is not true and that the enforcement of annulment decisions poses not the slightest problem, seeing as the most learned works devoted to judicial review (5) make no mention of it anywhere, and the majority of authors do not tarry on this issue”. (6)
“And what could they say about it?”, I cried. “One of two things: either the Administration agrees to interpret the consequences of the annulment itself, if indeed this is materially possible despite the passage of time; else it refuses to do so. In such cases, what is the court to do? Can it summon the army? Do you see it mobilising a platoon of guards to compel the chief of police, their own commanding officer, or even the Minister of Culture to enforce an annulment decision, should any of them not comply?”
I could see that that he was beginning to reel. “And so? Is there no law that makes a civil servant’s disobedience to the judge a crime punishable by a fine or a term of imprisonment? At the very least, should the person who so scorns the law not be personally liable for the same vis-à-vis his victim? Ruin would be just deserts for so great a crime.”
“Case law has sought to remedy the law’s deficiencies”, I replied. “A person who has been unable to secure the Administration’s compliance with the court’s decision has a simple, practical path open to him: he applies for compensation for the damage suffered as a result; if refused, he brings another action before a judge, in a full court hearing, with the costly ministrations of a wise barrister. The judge will then order the Administration to pay the compensation requested; if the order is confirmed on appeal, the Administration will settle, almost certainly, one day or another.”
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“So, if I have understood correctly, on payment of a ransom that will be even less of a burden as that it is, I believe, paid out of the public purse which is in turn fed by the offerings made by taxpayers, the Administration will secure its own freedom once and for all, together with the right not to respect the Law… And what if the victim is poor, or ill-informed, or tired of pleading his case? It seems to me that time passes, going from one appeal to the next. So, if that person does not take the matter before the second court, what will happen then?”
“What do you want to happen? In ordering the annulment, the judge has fulfilled his duties; the court is divested of jurisdiction in the matter; the decision will be published; the exegetes will appreciate its great doctrinal importance and weigh up its finer points. Would you have them follow the sidekick applicant in their subsequent and often petty quarrels with the Administration? Moreover, is the pure and simple failure to comply with a judgement all that commonplace? There are no statistics allowing such an assertion to be made; out of its concern for lawfulness, the Administration has at its disposal, when it deems necessary, a number of avenues to avoid scandal: it can replace the regulations breached by the annulled act with a new text, on the basis of which it could make the same decision again tomorrow; I could give you a very recent example of this without looking much further than the Théâtre Français that you can see over there. If it thus intends to protect the past, all it has to do is secure the passage of a law that reverses the effects of the res judicata and restores the previous state of affairs by giving it supreme authority; it most often does so without any great difficulty (7); and the Rule of Law thereby reclaims its empire”.
The Huron’s candid features registered his astonishment: “Let us sum up”, said he. “An apparently arbitrary administrative decision affects an individual; it is enforced, should the Administration so choose, without the judge preventing it. If this enforcement instantly takes full effect, all is said and done and an annulment after the event can only undo what has already been done. Where its effects are felt over a period of time, the annulment leaves the Administration with the task of deciding on the correct measures to take in order to restore the law; and all this without the court daring to do anything on this point other than suggest occasional, timid instructions without, for all that, consenting either to enjoin the Administration to act or to rule on the matter itself. Where the Administration refuses to draw the necessary conclusions, the victim has no recourse other than the remote possibility of compensation. But then why is it sometimes said that your great court acts as the Administration’s overseer? There are claims that it is audacious; I find it over- cautious. I concede, of course, that it cannot wield the battle axe against the very authority that wears it at its belt; however, that impossibility aside, could it not give teeth to a platonic annulment that nonetheless leaves the Administration essentially free to impose the most implacable arbitrariness on citizens without the slightest hindrance?”.
I made a vehement interruption: “Do not blaspheme! Judicial review is a great and glorious creation; even when it does not give concrete satisfaction to the person who brings the action successfully – though it does do so in many cases, in spite of it all – it maintains the principle that, above all contingencies, the Administration is subject to the Law. Firstly, it provides a means for individuals to protest against arbitrariness, to voice their indignation; next, as a bare minimum, the satisfaction of being proved right against the Administration. Does a moral victory count for nothing, in your eyes? And do the services rendered to the Law, the endlessly more demanding and rigorous definition of legality, also count for nothing? Must I remind you of all that has
161 flourished within the scope of such actions? The theory of general principles, the examination of the grounds…”
Now it was his turn to interrupt: “Whereas we noble savages, we are simple creatures: we believe that justice is made for litigants, and that its value is measured in terms of everyday life. It is not the development of the Law that concerns us, but rather the effective protection to be drawn from it by the individual. I thought that your great judicial review guaranteed that protection. Have I travelled so far to find that this is not so?”.
There was such a woebegone look on his face that I tried to comfort him: “Do not despair! The progress made is a guarantee of future progress; judicial review has not given its last word and the future remains open. Place your trust in the court’s liberalism.”
He hung his head and said: “But why would it be tempted to start anew the very thing that everyone tells him over and over again is a fully-formed masterpiece? How can the court not fear that it will debase the thing, if it so much as dares touch it? When our tribe’s artist has sculpted a new totem pole in secret, the tribe gathers around and looks at it. When the work is deemed fit for the god that it is intended to honour, the artist is forbidden to touch it again, for fear of angering the deity. Were I from your country, and if I were to admire your great Council and its judicial review as you all do, it seems to me that I would not stop denouncing its weaknesses rather than singing its praises, to encourage it to surpass itself and make it equal to the mighty god that you call the Rule of Law.”
“That is wise advice”, said I, “but there are some who will maintain that now is not the right time to push forward in the fight against arbitrariness and give fresh impetus to the development of judicial review on the road to effectiveness. We must, however, have faith in the future.”
“I shall return”, said he, “when the future will have answered to the faith that you place in it and when citizens will, through judicial review, have the effective remedies to which we humble Hurons attach what is doubtless too high a price.”
That very evening, without so much as a glance at the Eiffel Tower all lit up, he sadly took the path home to his copper beech and his wigwam. When will we see him again?
Notes: (1) Translator’s note: French barristers wear red robes, known as epitogas (2) Rapport à l’Institut international de droit public, Annuaire de l’Institut, 1929, p. 162 (3) Conseil d’Etat, 18 June 1954, Préfet du Var, D. 1955, Somm. 32; S. 1954. 3. 93, note by Guy Braibant; Long, Weil et Brabant, Les grands arrêts de la jurisprudence administrative, p. 411, for an analysis of the development of case law in this area. (4) Conseil d’Etat, 26 December 1925, Rodière, S. 1925. 3. 49, note by Maurice Hauriou. (5) This is undoubtedly the classic work by Raphaël Alibert, Le contrôle juridictionnel de l’Administration au moyen du recours pour excès de pouvoir, Payot, 1926, which indeed does not devote a separate chapter to the issue of the effects of judicial review. (6) Our colleague is obviously unaware of the book by Prosper Weil, Les consequences de l’annulation d’un acte administratif pour excès de pouvoir, 1952.
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(7) Cf. the many examples cited by Michel Lesage, Les interventions du législateur dans le fonctionnement de la justice, 1960.
Commentary by Professor Jean-Bernard Auby: All administrative lawyers know what a heavy task it has been (and continues to be) to impose the respect of the rule of law on the administrative authorities in an efficient way; that is, in making sure that judgments made by the courts are both truly implemented and really repair the illegal damage done by administrative misbehaviour.
In the paper above, written in 1962, Jean Rivero shows, with biting humour, that French law was, at that time, far from ensuring in a quite satisfactory way the rule of law in administrative matters. Jean Rivero was a very well-known administrative lawyer, and he was also a comparative lawyer. This is what had led him to take the critical position he adopts in this paper, which he drafted using the same rhetoric process that Montesquieu used in his “Lettres Persanes”.
His article especially underlines three weaknesses in the courts’ supervision of administrative authorities: the first one deriving from the fact that challenges brought before the courts had – with very limited exceptions - no suspensory effect on the administrative course of action; the second one residing within the fact that courts did not recognize to themselves the right of issuing injunctions against the administration;, and the third one, somewhat linked to the second, coming from the fact that judgments made by the courts against the administrative authorities could in general consist only of an annulment of the decisions taken by the latter, and not in a reestablishment of the situation illegally disrupted.
It is important to stress that things have very much changed and that, due to reforms made essentially in 1996 and 2000, these three weaknesses, pinpointed and implicitly criticized by Jean Rivero, have been strongly attenuated. First, actions brought to court against administrative bodies still do not have an automatic interrupting effect, but a “référé suspension”: these proceedings allow plaintiffs to make courts suspend challenged decisions where they can be seriously suspected of being illegal, and their implementation would cause significant harm; courts decide on these requests within a few days. Second, courts have received from legislation the right to issue injunctions when they are asked to do so by people challenging the administration before them. Finally, courts can, if required, add to the annulment of administrative decisions challenged before them an injunction to restore things to their previous situation or to re-examine a case within a certain period of time.
This is not to say that the French system has succeeded to perfectly discipline the administrative organizations to respect the law. Certainly, a lot has yet to be done, but dramatic progress has been made since Jean Rivero wrote “Le Huron au Palais-Royal”
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MONTESQUIEU LAW REVIEW Issue No.1 January 2015 Dialogues:
The absurdity of the law, following an exposition on Racine and Kafka Professor Jean Carbonnier An excerpt from Flexible Droit, Pour une sociologie du droit sans rigueur, 10th edition (2001), Paris, LGDJ, pp 432 – 433 Translated to and published in English by kind permission.
"Absurd" – now there is a grand word: laws, justice, social pressures… the entire apparatus of the law is absurd. According to Racine, the law is a rational mechanism open to abuse by madmen; for Kafka, it is a demented mechanism that draws the individual into its madness. The thing is, from Racine’s time to Kafka’s, the ways in which society works have undergone radical changes; the State has become an anonymous, multi-faceted, many-tentacled thing; its edicts have become so numerous, complex and fickle that, materially, it is no longer possible to know them, never mind understand the reasoning behind them. As to the rest, if the premise is that society knows better than the individual what the individual must do, why would society waste its time reasoning with him? Thus, at the time when each person came into increasingly frequent and inevitable contact with the law, the law was frighteningly strange and unintelligible. A fog of law-induced insanity has spread through peoples’ lives. No mind can resist completely, but the effects vary from person to person. For some, like Kafka, it is crushing. For others, it is a kind of legal anaesthetic: the citizen remains unmoved by the law; he lives (either as a criminal or as a wise man) as though the law did not exist.
There are no preventive measures at hand against this kind of legal psychopathy, to say nothing of the treatment that slightly eludes lawyers.
First of all, the legal knowledge that law faculties are tasked to impart contributes directly to the prevention of evil. It is a sign of the times that they are increasingly frequented by the masses. Many of those jostling each other there wish to learn not so much a science (required only for a small number of professionals) as a general familiarity with the beast, so as to render it less terrifying in their eyes.
But there is a duty incumbent upon the legislature, above all, to organise the prevention of the anxiety that spreads all around it. It ought to think to itself that any law, however excellent in its content, is harmful in view of the disturbance it produces in the psyche of its subjects. The legislature must always weigh up all the social advantages that it expects from a law against the disadvantages of the heavy-handed and damaging influence that any regulations may exert on any citizen’s nervous system. Nowadays, the hubbub in Paris is pierced at any given moment by the strident call of sirens: the fire brigade, police, ambulances... Who will compare the social cost of the emotional fright caused with the time saved for the emergency services?
The legislature would do well to agree to use its own emergency siren only when faced with real danger. It could even give up that siren; in legislating less, it would legislate more gently. Let the law drop its aggressive tone, that rasping, megaphone voice that it has all too often taken on and which has shattered the frazzled nerves of citizens. Let the law speak conversationally, explain its reasons, follow the rules of courtesy (non-retroactivity being one of them). Great progress will
164 have been made, and legal psychology could make a decisive contribution, when we come to notice that freedom – and, indeed, order – is not only a matter for abstract declarations, but a pure and simple need for good mental health.
Commentary by Professor Jean Hauser: The worrying expansion of the legal apparatus is a recurrent theme, particularly in politics, but the debate yields concrete results. Indeed, there was in France a recent statute on the simplification of French law, which consisted in several dozen articles and many pages that were almost impossible to read!
The crux of the Carbonnier text lays in the fact that it situates this phenomenon in the history, and the very philosophy, of humankind in society. The Racine reference will take connoisseurs back to the 17th century and one of the few comedies that he wrote, Les plaideurs, in which a judge who has lost his mind agrees to judge a dog who has stolen a chicken. He invokes innumerable laws, including a paragraph from the Justinian Code (Si quis canis, Digeste D6, paragrapho, messieurs, caponibus….). The damage may have been done by the broadly Roman origins of continental European law but that would omit the fact that Roman law – at least that of the Republic – was, for the most part, practical and rooted in case law. It is doubtless the various codifications that heightened the legislative and regulatory zeal, to the extent that, in French law, there has been a proliferation of “false” codes, which are the product of multiple laws being compiled without any changes being brought to existing legislation. However, it would doubtless be unjust to limit this criticism to legislation. The constant avalanche of case law in recent years adds to the flood of legal norms.
It is an expression of a degree of decline in freedom, as legal knowledge is now the preserve of a coterie of "experts" who control (with varying degrees of success) the foreseeability of a given rule whilst reserving the right to praise or criticize it. The interested party, reduced to being an applicant in respect of case law, is “subjected” to the rule more than he understands or approves of it.
Carbonnier’s powerful assertion that "any law is an evil" echoes the reservations voiced by Portalis, at the time when the Code civil was drafted: “there must be no pointless laws; they would weaken the necessary laws; they would compromise the certainty and the majesty of legislation” (Preliminary Address on the first draft of the Code Civil, 1 Pluviôse IX (21 January 1801)).
Lastly, the final link established between freedom and “mental hygiene” asks the real question: the normative proliferation of laws and case law is a fundamental challenge to democracy that is neither explained nor justified by the so-called natural complexity of our society. It is the pride of modern legislators (often little versed in history) that convinces them of a power that they do not truly have. Everything is doubtless simply a question of modesty and, ultimately, of “legal psychology”, to use the author’s own words.
This gargantuan task has not yet begun in national, let alone European, law.
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MONTESQUIEU LAW REVIEW Honorary Board: Stephen G. Breyer Hélène Gaudemet-Tallon Olivier Dutheillet de Lamothe Françoise Tulkens Guy Canivet J. H. H. Weiler Michel Fromont
Scientific Board Editorial Board: Chairs: Aurélie Bergeaud-Wetterwald Jean-Bernard Auby & Mireille Delmas-Marty Laurent Bloch Jean-François Brisson Gordon Anthony Pascal Combeau Michel Bouvier Florence Deboissy Pierre Brunet Sophie Delbrel Giacinto della Cananea Amane Gogorza Vlad Constantinesco Adeline Gouttenoire James Crawford Jean Hauser Joachim Englisch Marie Lamarche Frédérique Ferrand Leïla Lankarani Jean-François Gaudreault-DesBiens Florence Lerique Jean-Louis Halpérin Valérie Malabat Herwig Hofmann Sébastien Martin Pascale Idoux Philippe Mozas Jean-Pierre Laborde Alain Pariente Li Bin Gaël Piette Kathia Martin-Chenut Sébastien Platon Laurent Pech Jérôme Porta Marie-Claire Ponthoreau Christophe Radé Nikos Scandamis Aude Rouyère Jean-Michel Servais Frédérique Rueda Denys Simon Jean Sagot-Duvauroux Giovanni Tuzet Jean-Christophe Saint-Pau Pierre-Yves Verkindt Sandrine Sana Chaille de Néré Zhang Li Sébastien Saunier Jacques Ziller Laura Sautonie-Laguionie Florian Savonitto Stéphane Schott Managing Editor: David Szymczak Olivier Dubos Anne-Marie Tournepiche Patrick Troude-Chastenet Editor in Chief: Guillaume Wicker Rachael Singh Alexandre Zabalza
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