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CONSTEXT000038602048_2
|
CONSTEXT000038602048
| 2 |
e8f9455cdfcfe530
|
DC
|
Conformité
|
Résolution renforçant les capacités de contrôle de l'application des lois
|
2019-782
|
2019-06-06
|
Article 1er. - La résolution adoptée par le Sénat le 7 mai 2019 est conforme à la Constitution.
Article 2. - Cette décision sera publiée au Journal officiel de la République française.
Jugé par le Conseil constitutionnel dans sa séance du 6 juin 2019, où siégeaient : M. Laurent FABIUS, Président, Mme Claire BAZY MALAURIE, M. Alain JUPPÉ, Mmes Dominique LOTTIN, Corinne LUQUIENS, Nicole MAESTRACCI, MM. Jacques MÉZARD, François PILLET et Michel PINAULT.
Rendu public le 6 juin 2019.
|
Résolution renforçant les capacités de contrôle de l'application des lois
Article 1er. - La résolution adoptée par le Sénat le 7 mai 2019 est conforme à la Constitution.
Article 2. - Cette décision sera publiée au Journal officiel de la République française.
Jugé par le Conseil constitutionnel dans sa séance du 6 juin 2019, où siégeaient : M. Laurent FABIUS, Président, Mme Claire BAZY MALAURIE, M. Alain JUPPÉ, Mmes Dominique LOTTIN, Corinne LUQUIENS, Nicole MAESTRACCI, MM. Jacques MÉZARD, François PILLET et Michel PINAULT.
Rendu public le 6 juin 2019.
|
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|
CONSTEXT000038602054_0
|
CONSTEXT000038602054
| 0 |
c54fc5b11b46ecfa
|
QPC
|
Conformité
|
M. Taoufik B. [Absence de sursis à exécution du licenciement d'un salarié protégé]
|
2019-787
|
2019-06-07
|
LE CONSEIL CONSTITUTIONNEL A ÉTÉ SAISI le 8 mars 2019 par le Conseil d'État (décision n° 425779 du 7 mars 2019), dans les conditions prévues à l'article 61-1 de la Constitution, d'une question prioritaire de constitutionnalité. Cette question a été posée pour M. Taoufik B. par la SCP Krivine et Viaud, avocat au Conseil d'État et à la Cour de cassation. Elle a été enregistrée au secrétariat général du Conseil constitutionnel sous le n° 2019-787 QPC. Elle est relative à la conformité aux droits et libertés que la Constitution garantit de l'article L. 1232-6 du code du travail, dans sa rédaction résultant de la loi n° 2018-217 du 29 mars 2018 ratifiant diverses ordonnances prises sur le fondement de la loi n° 2017-1340 du 15 septembre 2017 d'habilitation à prendre par ordonnances les mesures pour le renforcement du dialogue social.
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M. Taoufik B. [Absence de sursis à exécution du licenciement d'un salarié protégé]
LE CONSEIL CONSTITUTIONNEL A ÉTÉ SAISI le 8 mars 2019 par le Conseil d'État (décision n° 425779 du 7 mars 2019), dans les conditions prévues à l'article 61-1 de la Constitution, d'une question prioritaire de constitutionnalité. Cette question a été posée pour M. Taoufik B. par la SCP Krivine et Viaud, avocat au Conseil d'État et à la Cour de cassation. Elle a été enregistrée au secrétariat général du Conseil constitutionnel sous le n° 2019-787 QPC. Elle est relative à la conformité aux droits et libertés que la Constitution garantit de l'article L. 1232-6 du code du travail, dans sa rédaction résultant de la loi n° 2018-217 du 29 mars 2018 ratifiant diverses ordonnances prises sur le fondement de la loi n° 2017-1340 du 15 septembre 2017 d'habilitation à prendre par ordonnances les mesures pour le renforcement du dialogue social.
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CONSTEXT000038602054_1
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CONSTEXT000038602054
| 1 |
10a530142da40a51
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QPC
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Conformité
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M. Taoufik B. [Absence de sursis à exécution du licenciement d'un salarié protégé]
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2019-787
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2019-06-07
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Au vu des textes suivants :- la Constitution ;- l'ordonnance n° 58-1067 du 7 novembre 1958 portant loi organique sur le Conseil constitutionnel ;- le code de justice administrative ;- le code du travail ;- la loi n° 2018-217 du 29 mars 2018 ratifiant diverses ordonnances prises sur le fondement de la loi n° 2017-1340 du 15 septembre 2017 d'habilitation à prendre par ordonnances les mesures pour le renforcement du dialogue social ;- le règlement du 4 février 2010 sur la procédure suivie devant le Conseil constitutionnel pour les questions prioritaires de constitutionnalité ;Au vu des pièces suivantes :- les observations présentées pour la société Fiducial private security, partie au litige à l'occasion duquel la question prioritaire de constitutionnalité a été posée, par Me Jean-Jacques Gatineau, avocat au Conseil d'État et à la Cour de cassation, enregistrées le 28 mars 2019 ;- les observations en intervention présentées pour Mme Christiane C. par la SCP Spinosi et Sureau, avocat au Conseil d'État et à la Cour de cassation, enregistrées le 29 mars 2019 ;- les observations présentées pour le requérant par la SCP Krivine et Viaud, enregistrées le 1er avril 2019 ; - les observations présentées par le Premier ministre, enregistrées le même jour ;- les secondes observations en intervention présentées pour Mme Christiane C. par la SCP Spinosi et Sureau, enregistrées le 16 avril 2019 ; - les autres pièces produites et jointes au dossier ;Après avoir entendu Me Jérôme Krivine,
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M. Taoufik B. [Absence de sursis à exécution du licenciement d'un salarié protégé]
Au vu des textes suivants :- la Constitution ;- l'ordonnance n° 58-1067 du 7 novembre 1958 portant loi organique sur le Conseil constitutionnel ;- le code de justice administrative ;- le code du travail ;- la loi n° 2018-217 du 29 mars 2018 ratifiant diverses ordonnances prises sur le fondement de la loi n° 2017-1340 du 15 septembre 2017 d'habilitation à prendre par ordonnances les mesures pour le renforcement du dialogue social ;- le règlement du 4 février 2010 sur la procédure suivie devant le Conseil constitutionnel pour les questions prioritaires de constitutionnalité ;Au vu des pièces suivantes :- les observations présentées pour la société Fiducial private security, partie au litige à l'occasion duquel la question prioritaire de constitutionnalité a été posée, par Me Jean-Jacques Gatineau, avocat au Conseil d'État et à la Cour de cassation, enregistrées le 28 mars 2019 ;- les observations en intervention présentées pour Mme Christiane C. par la SCP Spinosi et Sureau, avocat au Conseil d'État et à la Cour de cassation, enregistrées le 29 mars 2019 ;- les observations présentées pour le requérant par la SCP Krivine et Viaud, enregistrées le 1er avril 2019 ; - les observations présentées par le Premier ministre, enregistrées le même jour ;- les secondes observations en intervention présentées pour Mme Christiane C. par la SCP Spinosi et Sureau, enregistrées le 16 avril 2019 ; - les autres pièces produites et jointes au dossier ;Après avoir entendu Me Jérôme Krivine,
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CONSTEXT000038602054_2
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CONSTEXT000038602054
| 2 |
601ef4d2b56968eb
|
QPC
|
Conformité
|
M. Taoufik B. [Absence de sursis à exécution du licenciement d'un salarié protégé]
|
2019-787
|
2019-06-07
|
présentées pour Mme Christiane C. par la SCP Spinosi et Sureau, enregistrées le 16 avril 2019 ; - les autres pièces produites et jointes au dossier ;Après avoir entendu Me Jérôme Krivine, avocat au Conseil d'État et à la Cour de cassation, pour le requérant, Me Gatineau, pour la société Fiducial private security, Me Patrice Spinosi, avocat au Conseil d'État et à la Cour de cassation, pour l'intervenante, et M. Philippe Blanc, désigné par le Premier ministre, à l'audience publique du 29 mai 2019 ;Et après avoir entendu le rapporteur ; LE CONSEIL CONSTITUTIONNEL S'EST FONDÉ SUR CE QUI SUIT :
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M. Taoufik B. [Absence de sursis à exécution du licenciement d'un salarié protégé]
présentées pour Mme Christiane C. par la SCP Spinosi et Sureau, enregistrées le 16 avril 2019 ; - les autres pièces produites et jointes au dossier ;Après avoir entendu Me Jérôme Krivine, avocat au Conseil d'État et à la Cour de cassation, pour le requérant, Me Gatineau, pour la société Fiducial private security, Me Patrice Spinosi, avocat au Conseil d'État et à la Cour de cassation, pour l'intervenante, et M. Philippe Blanc, désigné par le Premier ministre, à l'audience publique du 29 mai 2019 ;Et après avoir entendu le rapporteur ; LE CONSEIL CONSTITUTIONNEL S'EST FONDÉ SUR CE QUI SUIT :
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CONSTEXT000038602054_3
|
CONSTEXT000038602054
| 3 |
074bf47f5f399923
|
QPC
|
Conformité
|
M. Taoufik B. [Absence de sursis à exécution du licenciement d'un salarié protégé]
|
2019-787
|
2019-06-07
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1. L'article L. 1232-6 du code du travail, dans sa rédaction résultant de la loi 29 mars 2018 mentionnée ci-dessus, prévoit :« Lorsque l'employeur décide de licencier un salarié, il lui notifie sa décision par lettre recommandée avec avis de réception.« Cette lettre comporte l'énoncé du ou des motifs invoqués par l'employeur.« Elle ne peut être expédiée moins de deux jours ouvrables après la date prévue de l'entretien préalable au licenciement auquel le salarié a été convoqué.« Un décret en Conseil d'État détermine les modalités d'application du présent article. Un arrêté du ministre chargé du travail fixe les modèles que l'employeur peut utiliser pour procéder à la notification du licenciement ».
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M. Taoufik B. [Absence de sursis à exécution du licenciement d'un salarié protégé]
1. L'article L. 1232-6 du code du travail, dans sa rédaction résultant de la loi 29 mars 2018 mentionnée ci-dessus, prévoit :« Lorsque l'employeur décide de licencier un salarié, il lui notifie sa décision par lettre recommandée avec avis de réception.« Cette lettre comporte l'énoncé du ou des motifs invoqués par l'employeur.« Elle ne peut être expédiée moins de deux jours ouvrables après la date prévue de l'entretien préalable au licenciement auquel le salarié a été convoqué.« Un décret en Conseil d'État détermine les modalités d'application du présent article. Un arrêté du ministre chargé du travail fixe les modèles que l'employeur peut utiliser pour procéder à la notification du licenciement ».
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CONSTEXT000025911756_3
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CONSTEXT000025911756
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ab7fcd494bf587a0
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QPC
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Conformité
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M. Pierre G. [Inéligibilités au mandat de conseiller général]
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2012-230
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2012-04-06
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3. Considérant que les dispositions contestées sont issues de la loi du 10 août 1871 relative aux conseils généraux ; qu'après leur insertion dans le code électoral, elles ont été modifiées, notamment, par les lois susvisées du 10 mai 1969 et du 30 décembre 1988 ; que l'article L. 195 du code électoral a pour objet de fixer la liste des inéligibilités au conseil général ; qu'en vertu de son 14° sont inéligibles les ingénieurs en chef, ingénieurs principaux, ingénieurs des travaux et autres agents du génie rural ou des eaux et forêts ; qu'une telle inéligibilité, qui s'applique aux personnes, notamment aux agents de l'Office national des forêts, remplissant les missions antérieurement dévolues à ces ingénieurs et agents, est toutefois limitée aux cantons où elles exercent leurs fonctions ou les ont exercées depuis moins de six mois ;
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M. Pierre G. [Inéligibilités au mandat de conseiller général]
3. Considérant que les dispositions contestées sont issues de la loi du 10 août 1871 relative aux conseils généraux ; qu'après leur insertion dans le code électoral, elles ont été modifiées, notamment, par les lois susvisées du 10 mai 1969 et du 30 décembre 1988 ; que l'article L. 195 du code électoral a pour objet de fixer la liste des inéligibilités au conseil général ; qu'en vertu de son 14° sont inéligibles les ingénieurs en chef, ingénieurs principaux, ingénieurs des travaux et autres agents du génie rural ou des eaux et forêts ; qu'une telle inéligibilité, qui s'applique aux personnes, notamment aux agents de l'Office national des forêts, remplissant les missions antérieurement dévolues à ces ingénieurs et agents, est toutefois limitée aux cantons où elles exercent leurs fonctions ou les ont exercées depuis moins de six mois ;
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CONSTEXT000038602054_4
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CONSTEXT000038602054
| 4 |
d7dbed52da70a4fe
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QPC
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Conformité
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M. Taoufik B. [Absence de sursis à exécution du licenciement d'un salarié protégé]
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2019-787
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2019-06-07
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2. Selon le requérant, rejoint par l'intervenante, lorsqu'elles s'appliquent à un salarié protégé dont l'autorité administrative a autorisé le licenciement, ces dispositions ne garantiraient pas à ce salarié l'effectivité de son recours en suspension de l'exécution de cette autorisation, formé devant le juge administratif des référés, dans la mesure où ce recours se trouve privé d'objet dès l'envoi de la lettre de licenciement par l'employeur. Il en résulterait une méconnaissance du droit à un recours juridictionnel effectif et une incompétence négative, faute pour le législateur d'avoir prévu un mécanisme préservant l'effet utile de la demande de suspension. En outre, ces dispositions contreviendraient au principe d'égalité devant la loi, dès lors qu'un salarié non protégé pourrait contester son licenciement devant le juge judiciaire des référés sans que ce recours puisse, à la différence de celui exercé devant le juge administratif par un salarié protégé, être privé d'effet par l'envoi de la lettre de licenciement.3. Par conséquent, la question prioritaire de constitutionnalité porte sur le premier alinéa de l'article L. 1232-6 du code du travail.- Sur le grief tiré de l'incompétence négative et de la méconnaissance du droit à un recours juridictionnel effectif :4. La méconnaissance par le législateur de sa propre compétence ne peut être invoquée à l'appui d'une question prioritaire de constitutionnalité que dans le cas où cette méconnaissance affecte par elle-même un
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M. Taoufik B. [Absence de sursis à exécution du licenciement d'un salarié protégé]
2. Selon le requérant, rejoint par l'intervenante, lorsqu'elles s'appliquent à un salarié protégé dont l'autorité administrative a autorisé le licenciement, ces dispositions ne garantiraient pas à ce salarié l'effectivité de son recours en suspension de l'exécution de cette autorisation, formé devant le juge administratif des référés, dans la mesure où ce recours se trouve privé d'objet dès l'envoi de la lettre de licenciement par l'employeur. Il en résulterait une méconnaissance du droit à un recours juridictionnel effectif et une incompétence négative, faute pour le législateur d'avoir prévu un mécanisme préservant l'effet utile de la demande de suspension. En outre, ces dispositions contreviendraient au principe d'égalité devant la loi, dès lors qu'un salarié non protégé pourrait contester son licenciement devant le juge judiciaire des référés sans que ce recours puisse, à la différence de celui exercé devant le juge administratif par un salarié protégé, être privé d'effet par l'envoi de la lettre de licenciement.3. Par conséquent, la question prioritaire de constitutionnalité porte sur le premier alinéa de l'article L. 1232-6 du code du travail.- Sur le grief tiré de l'incompétence négative et de la méconnaissance du droit à un recours juridictionnel effectif :4. La méconnaissance par le législateur de sa propre compétence ne peut être invoquée à l'appui d'une question prioritaire de constitutionnalité que dans le cas où cette méconnaissance affecte par elle-même un
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CONSTEXT000038602054_5
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CONSTEXT000038602054
| 5 |
2f450c13a1f0016f
|
QPC
|
Conformité
|
M. Taoufik B. [Absence de sursis à exécution du licenciement d'un salarié protégé]
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2019-787
|
2019-06-07
|
par le législateur de sa propre compétence ne peut être invoquée à l'appui d'une question prioritaire de constitutionnalité que dans le cas où cette méconnaissance affecte par elle-même un droit ou une liberté que la Constitution garantit.5. Selon l'article 34 de la Constitution, la loi fixe les règles concernant les garanties fondamentales accordées aux citoyens pour l'exercice des libertés publiques et détermine les principes fondamentaux du droit du travail et du droit syndical. Il incombe au législateur d'exercer pleinement la compétence que lui confie la Constitution et, en particulier, son article 34.6. Selon l'article 16 de la Déclaration des droits de l'homme et du citoyen de 1789 : « Toute société dans laquelle la garantie des droits n'est pas assurée, ni la séparation des pouvoirs déterminée, n'a point de Constitution ». Il résulte de cette disposition qu'il ne doit pas être porté d'atteintes substantielles au droit des personnes intéressées d'exercer un recours effectif devant une juridiction.7. Lorsque les salariés bénéficient, en application des articles L. 2411-1 et L. 2411-2 du code du travail, d'une protection particulière à raison du mandat de représentation dont ils sont investis, le licenciement ne peut intervenir qu'après autorisation de l'inspecteur du travail. Cette autorisation est susceptible de recours, dans les conditions de droit commun, devant le juge administratif. En vertu de l'article L. 521-1 du code de justice administrative, le juge des
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M. Taoufik B. [Absence de sursis à exécution du licenciement d'un salarié protégé]
par le législateur de sa propre compétence ne peut être invoquée à l'appui d'une question prioritaire de constitutionnalité que dans le cas où cette méconnaissance affecte par elle-même un droit ou une liberté que la Constitution garantit.5. Selon l'article 34 de la Constitution, la loi fixe les règles concernant les garanties fondamentales accordées aux citoyens pour l'exercice des libertés publiques et détermine les principes fondamentaux du droit du travail et du droit syndical. Il incombe au législateur d'exercer pleinement la compétence que lui confie la Constitution et, en particulier, son article 34.6. Selon l'article 16 de la Déclaration des droits de l'homme et du citoyen de 1789 : « Toute société dans laquelle la garantie des droits n'est pas assurée, ni la séparation des pouvoirs déterminée, n'a point de Constitution ». Il résulte de cette disposition qu'il ne doit pas être porté d'atteintes substantielles au droit des personnes intéressées d'exercer un recours effectif devant une juridiction.7. Lorsque les salariés bénéficient, en application des articles L. 2411-1 et L. 2411-2 du code du travail, d'une protection particulière à raison du mandat de représentation dont ils sont investis, le licenciement ne peut intervenir qu'après autorisation de l'inspecteur du travail. Cette autorisation est susceptible de recours, dans les conditions de droit commun, devant le juge administratif. En vertu de l'article L. 521-1 du code de justice administrative, le juge des
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CONSTEXT000038602054_6
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CONSTEXT000038602054
| 6 |
918654681067c338
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QPC
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Conformité
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M. Taoufik B. [Absence de sursis à exécution du licenciement d'un salarié protégé]
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2019-787
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2019-06-07
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Cette autorisation est susceptible de recours, dans les conditions de droit commun, devant le juge administratif. En vertu de l'article L. 521-1 du code de justice administrative, le juge des référés peut ordonner la suspension de l'exécution de cette décision ou de certains de ses effets. Cependant, selon la jurisprudence constante du Conseil d'État, l'autorisation de licenciement d'un salarié protégé doit être regardée comme entièrement exécutée à compter de l'envoi de la lettre de licenciement par l'employeur, dans les conditions prévues par les dispositions contestées. La demande de suspension formée devant le juge des référés est alors privée d'objet, ce qui conduit à son rejet.8. Dès lors, à compter de la notification par l'employeur de son licenciement, le salarié protégé ne peut plus obtenir la suspension, par le juge administratif, de l'exécution de la décision administrative ayant autorisé ce licenciement. Il ne peut pas davantage obtenir le maintien de son contrat de travail auprès du juge judiciaire des référés, dans la mesure où celui-ci est tenu de surseoir à statuer jusqu'à ce que le juge administratif se prononce sur l'autorisation administrative de licenciement.9. Toutefois, en premier lieu, le caractère non suspensif d'une voie de recours ne méconnaît pas, en lui-même, le droit à un recours juridictionnel effectif garanti par l'article 16 de la Déclaration de 1789.10. En deuxième lieu, en dépit de l'absence de suspension de la décision administrative
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M. Taoufik B. [Absence de sursis à exécution du licenciement d'un salarié protégé]
Cette autorisation est susceptible de recours, dans les conditions de droit commun, devant le juge administratif. En vertu de l'article L. 521-1 du code de justice administrative, le juge des référés peut ordonner la suspension de l'exécution de cette décision ou de certains de ses effets. Cependant, selon la jurisprudence constante du Conseil d'État, l'autorisation de licenciement d'un salarié protégé doit être regardée comme entièrement exécutée à compter de l'envoi de la lettre de licenciement par l'employeur, dans les conditions prévues par les dispositions contestées. La demande de suspension formée devant le juge des référés est alors privée d'objet, ce qui conduit à son rejet.8. Dès lors, à compter de la notification par l'employeur de son licenciement, le salarié protégé ne peut plus obtenir la suspension, par le juge administratif, de l'exécution de la décision administrative ayant autorisé ce licenciement. Il ne peut pas davantage obtenir le maintien de son contrat de travail auprès du juge judiciaire des référés, dans la mesure où celui-ci est tenu de surseoir à statuer jusqu'à ce que le juge administratif se prononce sur l'autorisation administrative de licenciement.9. Toutefois, en premier lieu, le caractère non suspensif d'une voie de recours ne méconnaît pas, en lui-même, le droit à un recours juridictionnel effectif garanti par l'article 16 de la Déclaration de 1789.10. En deuxième lieu, en dépit de l'absence de suspension de la décision administrative
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CONSTEXT000038602054_7
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CONSTEXT000038602054
| 7 |
ead039594f6601a8
|
QPC
|
Conformité
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M. Taoufik B. [Absence de sursis à exécution du licenciement d'un salarié protégé]
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2019-787
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2019-06-07
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en lui-même, le droit à un recours juridictionnel effectif garanti par l'article 16 de la Déclaration de 1789.10. En deuxième lieu, en dépit de l'absence de suspension de la décision administrative autorisant le licenciement, le juge administratif saisi du recours au fond contre cette autorisation peut, le cas échéant, en prononcer l'annulation.11. Dans ce cas, d'une part, le salarié investi d'un des mandats de représentation mentionnés à l'article L. 2422-1 du code du travail bénéficie, sur sa demande, d'une réintégration de plein droit dans son emploi ou dans un emploi équivalent.12. D'autre part, en application de l'article L. 2422-2 du même code, le membre de la délégation du personnel au comité social et économique, le représentant de proximité et le membre de la délégation du personnel au comité social et économique interentreprises bénéficient d'une réintégration de plein droit dans leur mandat si l'institution n'a pas été renouvelée entre-temps. À défaut, ils bénéficient de la protection contre le licenciement pendant une durée de six mois, à compter du jour où ils retrouvent leur place dans l'entreprise. Si ce droit à réintégration dans le mandat ne s'étend pas au délégué syndical, ce dernier peut faire l'objet d'une nouvelle désignation par son organisation syndicale.13. Enfin, l'article L. 2422-4 du même code prévoit que le salarié investi d'un des mandats mentionnés à l'article L. 2422-1 a droit à une indemnité correspondant à la totalité du préjudice subi au
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M. Taoufik B. [Absence de sursis à exécution du licenciement d'un salarié protégé]
en lui-même, le droit à un recours juridictionnel effectif garanti par l'article 16 de la Déclaration de 1789.10. En deuxième lieu, en dépit de l'absence de suspension de la décision administrative autorisant le licenciement, le juge administratif saisi du recours au fond contre cette autorisation peut, le cas échéant, en prononcer l'annulation.11. Dans ce cas, d'une part, le salarié investi d'un des mandats de représentation mentionnés à l'article L. 2422-1 du code du travail bénéficie, sur sa demande, d'une réintégration de plein droit dans son emploi ou dans un emploi équivalent.12. D'autre part, en application de l'article L. 2422-2 du même code, le membre de la délégation du personnel au comité social et économique, le représentant de proximité et le membre de la délégation du personnel au comité social et économique interentreprises bénéficient d'une réintégration de plein droit dans leur mandat si l'institution n'a pas été renouvelée entre-temps. À défaut, ils bénéficient de la protection contre le licenciement pendant une durée de six mois, à compter du jour où ils retrouvent leur place dans l'entreprise. Si ce droit à réintégration dans le mandat ne s'étend pas au délégué syndical, ce dernier peut faire l'objet d'une nouvelle désignation par son organisation syndicale.13. Enfin, l'article L. 2422-4 du même code prévoit que le salarié investi d'un des mandats mentionnés à l'article L. 2422-1 a droit à une indemnité correspondant à la totalité du préjudice subi au
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CONSTEXT000038602054_8
|
CONSTEXT000038602054
| 8 |
f5f9fa494e3582c0
|
QPC
|
Conformité
|
M. Taoufik B. [Absence de sursis à exécution du licenciement d'un salarié protégé]
|
2019-787
|
2019-06-07
|
Enfin, l'article L. 2422-4 du même code prévoit que le salarié investi d'un des mandats mentionnés à l'article L. 2422-1 a droit à une indemnité correspondant à la totalité du préjudice subi au cours de la période écoulée entre son licenciement et sa réintégration. S'il n'a pas demandé cette réintégration, l'indemnisation couvre la période écoulée entre le licenciement et les deux mois suivant la notification de l'annulation de l'autorisation administrative de licenciement.14. Il résulte de ce qui précède que le législateur a institué des garanties suffisantes visant à remédier aux conséquences, pour le salarié protégé, de l'exécution de l'autorisation administrative de licenciement.15. En dernier lieu, en cas de licenciement, le membre titulaire de la délégation du personnel au comité social et économique est remplacé, en application de l'article L. 2314-37, par un suppléant élu sur une liste présentée par la même organisation syndicale. En l'absence d'un tel suppléant élu, le remplacement est assuré par un candidat non élu présenté par la même organisation ou, à défaut, par un suppléant élu appartenant à la même catégorie professionnelle et ayant obtenu le plus grand nombre de voix. Si la loi ne prévoit pas de dispositif de suppléance des délégués syndicaux, une organisation syndicale peut, dans les conditions prévues à l'article L. 2143-7, remplacer le délégué syndical licencié qu'elle avait désigné. 16. De telles garanties permettent de remédier aux conséquences, pour
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M. Taoufik B. [Absence de sursis à exécution du licenciement d'un salarié protégé]
Enfin, l'article L. 2422-4 du même code prévoit que le salarié investi d'un des mandats mentionnés à l'article L. 2422-1 a droit à une indemnité correspondant à la totalité du préjudice subi au cours de la période écoulée entre son licenciement et sa réintégration. S'il n'a pas demandé cette réintégration, l'indemnisation couvre la période écoulée entre le licenciement et les deux mois suivant la notification de l'annulation de l'autorisation administrative de licenciement.14. Il résulte de ce qui précède que le législateur a institué des garanties suffisantes visant à remédier aux conséquences, pour le salarié protégé, de l'exécution de l'autorisation administrative de licenciement.15. En dernier lieu, en cas de licenciement, le membre titulaire de la délégation du personnel au comité social et économique est remplacé, en application de l'article L. 2314-37, par un suppléant élu sur une liste présentée par la même organisation syndicale. En l'absence d'un tel suppléant élu, le remplacement est assuré par un candidat non élu présenté par la même organisation ou, à défaut, par un suppléant élu appartenant à la même catégorie professionnelle et ayant obtenu le plus grand nombre de voix. Si la loi ne prévoit pas de dispositif de suppléance des délégués syndicaux, une organisation syndicale peut, dans les conditions prévues à l'article L. 2143-7, remplacer le délégué syndical licencié qu'elle avait désigné. 16. De telles garanties permettent de remédier aux conséquences, pour
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CONSTEXT000038602054_9
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CONSTEXT000038602054
| 9 |
cdba9bd27c817246
|
QPC
|
Conformité
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M. Taoufik B. [Absence de sursis à exécution du licenciement d'un salarié protégé]
|
2019-787
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2019-06-07
|
syndicale peut, dans les conditions prévues à l'article L. 2143-7, remplacer le délégué syndical licencié qu'elle avait désigné. 16. De telles garanties permettent de remédier aux conséquences, pour les institutions représentatives du personnel, de l'exécution de l'autorisation administrative de licenciement.17. Il résulte de tout ce qui précède que, en ne garantissant pas l'effet suspensif du recours formé contre cette autorisation, les dispositions contestées ne méconnaissent pas le droit à un recours juridictionnel effectif et ne sont pas entachées d'incompétence négative.- Sur le grief tiré de la méconnaissance du principe d'égalité devant la loi :18. Selon l'article 6 de la Déclaration de 1789, la loi « doit être la même pour tous, soit qu'elle protège, soit qu'elle punisse ». Le principe d'égalité ne s'oppose ni à ce que le législateur règle de façon différente des situations différentes, ni à ce qu'il déroge à l'égalité pour des raisons d'intérêt général, pourvu que, dans l'un et l'autre cas, la différence de traitement qui en résulte soit en rapport direct avec l'objet de la loi qui l'établit. Il n'en résulte pas pour autant que le principe d'égalité oblige à traiter différemment des personnes se trouvant dans des situations différentes.19. En vertu du premier alinéa de l'article L. 1232-6 du code du travail, la décision de l'employeur de licencier un salarié prend effet lors de sa notification par lettre recommandée avec avis de réception. Ces dispositions
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M. Taoufik B. [Absence de sursis à exécution du licenciement d'un salarié protégé]
syndicale peut, dans les conditions prévues à l'article L. 2143-7, remplacer le délégué syndical licencié qu'elle avait désigné. 16. De telles garanties permettent de remédier aux conséquences, pour les institutions représentatives du personnel, de l'exécution de l'autorisation administrative de licenciement.17. Il résulte de tout ce qui précède que, en ne garantissant pas l'effet suspensif du recours formé contre cette autorisation, les dispositions contestées ne méconnaissent pas le droit à un recours juridictionnel effectif et ne sont pas entachées d'incompétence négative.- Sur le grief tiré de la méconnaissance du principe d'égalité devant la loi :18. Selon l'article 6 de la Déclaration de 1789, la loi « doit être la même pour tous, soit qu'elle protège, soit qu'elle punisse ». Le principe d'égalité ne s'oppose ni à ce que le législateur règle de façon différente des situations différentes, ni à ce qu'il déroge à l'égalité pour des raisons d'intérêt général, pourvu que, dans l'un et l'autre cas, la différence de traitement qui en résulte soit en rapport direct avec l'objet de la loi qui l'établit. Il n'en résulte pas pour autant que le principe d'égalité oblige à traiter différemment des personnes se trouvant dans des situations différentes.19. En vertu du premier alinéa de l'article L. 1232-6 du code du travail, la décision de l'employeur de licencier un salarié prend effet lors de sa notification par lettre recommandée avec avis de réception. Ces dispositions
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CONSTEXT000038602054_10
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CONSTEXT000038602054
| 10 |
bdfc2daefffbd5a1
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QPC
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Conformité
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M. Taoufik B. [Absence de sursis à exécution du licenciement d'un salarié protégé]
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2019-787
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2019-06-07
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de l'article L. 1232-6 du code du travail, la décision de l'employeur de licencier un salarié prend effet lors de sa notification par lettre recommandée avec avis de réception. Ces dispositions s'appliquent à l'ensemble des salariés, que leur licenciement soit ou non subordonné à une autorisation administrative préalable. Le législateur n'ayant ainsi institué aucune différence de traitement, le grief tiré de la méconnaissance du principe d'égalité devant la loi doit être écarté.20. Par conséquent, les dispositions contestées, qui ne méconnaissent aucun autre droit ou liberté que la Constitution garantit, doivent être déclarées conformes à la Constitution.
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M. Taoufik B. [Absence de sursis à exécution du licenciement d'un salarié protégé]
de l'article L. 1232-6 du code du travail, la décision de l'employeur de licencier un salarié prend effet lors de sa notification par lettre recommandée avec avis de réception. Ces dispositions s'appliquent à l'ensemble des salariés, que leur licenciement soit ou non subordonné à une autorisation administrative préalable. Le législateur n'ayant ainsi institué aucune différence de traitement, le grief tiré de la méconnaissance du principe d'égalité devant la loi doit être écarté.20. Par conséquent, les dispositions contestées, qui ne méconnaissent aucun autre droit ou liberté que la Constitution garantit, doivent être déclarées conformes à la Constitution.
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CONSTEXT000038602054_11
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CONSTEXT000038602054
| 11 |
f97f3f7c2e460817
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QPC
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Conformité
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M. Taoufik B. [Absence de sursis à exécution du licenciement d'un salarié protégé]
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2019-787
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2019-06-07
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LE CONSEIL CONSTITUTIONNEL DÉCIDE :
Article 1er. - Le premier alinéa de l'article L. 1232-6 du code du travail, dans sa rédaction résultant de la loi n° 2018-217 du 29 mars 2018 ratifiant diverses ordonnances prises sur le fondement de la loi n° 2017-1340 du 15 septembre 2017 d'habilitation à prendre par ordonnances les mesures pour le renforcement du dialogue social, est conforme à la Constitution.
Article 2. - Cette décision sera publiée au Journal officiel de la République française et notifiée dans les conditions prévues à l'article 23-11 de l'ordonnance du 7 novembre 1958 susvisée.
Jugé par le Conseil constitutionnel dans sa séance du 6 juin 2019, où siégeaient : M. Laurent FABIUS, Président, Mmes Claire BAZY MALAURIE, Dominique LOTTIN, Corinne LUQUIENS, Nicole MAESTRACCI, MM. Jacques MÉZARD, François PILLET et Michel PINAULT.
Rendu public le 7 juin 2019.
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M. Taoufik B. [Absence de sursis à exécution du licenciement d'un salarié protégé]
LE CONSEIL CONSTITUTIONNEL DÉCIDE :
Article 1er. - Le premier alinéa de l'article L. 1232-6 du code du travail, dans sa rédaction résultant de la loi n° 2018-217 du 29 mars 2018 ratifiant diverses ordonnances prises sur le fondement de la loi n° 2017-1340 du 15 septembre 2017 d'habilitation à prendre par ordonnances les mesures pour le renforcement du dialogue social, est conforme à la Constitution.
Article 2. - Cette décision sera publiée au Journal officiel de la République française et notifiée dans les conditions prévues à l'article 23-11 de l'ordonnance du 7 novembre 1958 susvisée.
Jugé par le Conseil constitutionnel dans sa séance du 6 juin 2019, où siégeaient : M. Laurent FABIUS, Président, Mmes Claire BAZY MALAURIE, Dominique LOTTIN, Corinne LUQUIENS, Nicole MAESTRACCI, MM. Jacques MÉZARD, François PILLET et Michel PINAULT.
Rendu public le 7 juin 2019.
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CONSTEXT000038602055_0
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CONSTEXT000038602055
| 0 |
811a16ec1af0856e
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QPC
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Conformité
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Mme Lara A. [Absence de recours juridictionnel à l'encontre de la décision de placement d'animaux vivants prise par le procureur de la République]
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2019-788
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2019-06-07
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LE CONSEIL CONSTITUTIONNEL A ÉTÉ SAISI le 22 mars 2019 par la Cour de cassation (chambre criminelle, arrêt n° 694 du 19 mars 2019), dans les conditions prévues à l'article 61-1 de la Constitution, d'une question prioritaire de constitutionnalité. Cette question a été posée pour Mme Lara A. par Me Frédéric Volpato, avocat au barreau des Hautes-Alpes. Elle a été enregistrée au secrétariat général du Conseil constitutionnel sous le n° 2019-788 QPC. Elle est relative à la conformité aux droits et libertés que la Constitution garantit des premier et troisième alinéas de l'article 99-1 du code de procédure pénale.
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Mme Lara A. [Absence de recours juridictionnel à l'encontre de la décision de placement d'animaux vivants prise par le procureur de la République]
LE CONSEIL CONSTITUTIONNEL A ÉTÉ SAISI le 22 mars 2019 par la Cour de cassation (chambre criminelle, arrêt n° 694 du 19 mars 2019), dans les conditions prévues à l'article 61-1 de la Constitution, d'une question prioritaire de constitutionnalité. Cette question a été posée pour Mme Lara A. par Me Frédéric Volpato, avocat au barreau des Hautes-Alpes. Elle a été enregistrée au secrétariat général du Conseil constitutionnel sous le n° 2019-788 QPC. Elle est relative à la conformité aux droits et libertés que la Constitution garantit des premier et troisième alinéas de l'article 99-1 du code de procédure pénale.
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CONSTEXT000038602055_1
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CONSTEXT000038602055
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85f015335cdbb264
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QPC
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Conformité
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Mme Lara A. [Absence de recours juridictionnel à l'encontre de la décision de placement d'animaux vivants prise par le procureur de la République]
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2019-788
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2019-06-07
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Au vu des textes suivants :- la Constitution ;- l'ordonnance n° 58-1067 du 7 novembre 1958 portant loi organique sur le Conseil constitutionnel ;- le code de procédure pénale ;- l'ordonnance n° 2010-462 du 6 mai 2010 créant un livre IX du code rural relatif à la pêche maritime et à l'aquaculture marine ;- le règlement du 4 février 2010 sur la procédure suivie devant le Conseil constitutionnel pour les questions prioritaires de constitutionnalité ;Au vu des pièces suivantes :- les observations présentées pour la requérante par la SCP Baraduc-Duhamel-Rameix, avocat au Conseil d'État et à la Cour de cassation, enregistrées le 15 avril 2019 ; - les observations présentées par le Premier ministre, enregistrées le même jour ;- les secondes observations présentées pour la requérante par la SCP Baraduc-Duhamel-Rameix, enregistrées le 30 avril 2019 ; - les autres pièces produites et jointes au dossier ;Après avoir entendu Me Claire Rameix-Seguin, avocate au Conseil d'État et à la Cour de cassation, pour la requérante, et M. Philippe Blanc, désigné par le Premier ministre, à l'audience publique du 28 mai 2019 ;Et après avoir entendu le rapporteur ; LE CONSEIL CONSTITUTIONNEL S'EST FONDÉ SUR CE QUI SUIT :
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Mme Lara A. [Absence de recours juridictionnel à l'encontre de la décision de placement d'animaux vivants prise par le procureur de la République]
Au vu des textes suivants :- la Constitution ;- l'ordonnance n° 58-1067 du 7 novembre 1958 portant loi organique sur le Conseil constitutionnel ;- le code de procédure pénale ;- l'ordonnance n° 2010-462 du 6 mai 2010 créant un livre IX du code rural relatif à la pêche maritime et à l'aquaculture marine ;- le règlement du 4 février 2010 sur la procédure suivie devant le Conseil constitutionnel pour les questions prioritaires de constitutionnalité ;Au vu des pièces suivantes :- les observations présentées pour la requérante par la SCP Baraduc-Duhamel-Rameix, avocat au Conseil d'État et à la Cour de cassation, enregistrées le 15 avril 2019 ; - les observations présentées par le Premier ministre, enregistrées le même jour ;- les secondes observations présentées pour la requérante par la SCP Baraduc-Duhamel-Rameix, enregistrées le 30 avril 2019 ; - les autres pièces produites et jointes au dossier ;Après avoir entendu Me Claire Rameix-Seguin, avocate au Conseil d'État et à la Cour de cassation, pour la requérante, et M. Philippe Blanc, désigné par le Premier ministre, à l'audience publique du 28 mai 2019 ;Et après avoir entendu le rapporteur ; LE CONSEIL CONSTITUTIONNEL S'EST FONDÉ SUR CE QUI SUIT :
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CONSTEXT000038602055_2
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CONSTEXT000038602055
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2093a9eb202317b8
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QPC
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Conformité
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Mme Lara A. [Absence de recours juridictionnel à l'encontre de la décision de placement d'animaux vivants prise par le procureur de la République]
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2019-788
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2019-06-07
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1. La question prioritaire de constitutionnalité doit être considérée comme portant sur les dispositions applicables au litige à l'occasion duquel elle a été posée. Dès lors, le Conseil constitutionnel est saisi des premier et troisième alinéas de l'article 99-1 du code de procédure pénale, dans sa rédaction résultant de l'ordonnance du 6 mai 2010 mentionnée ci-dessus.2. Le premier alinéa de l'article 99-1 du code de procédure pénale, dans cette rédaction, prévoit :« Lorsque, au cours d'une procédure judiciaire ou des contrôles mentionnés à l'article L. 214-23 du code rural et de la pêche maritime, il a été procédé à la saisie ou au retrait, à quelque titre que ce soit, d'un ou plusieurs animaux vivants, le procureur de la République près le tribunal de grande instance du lieu de l'infraction ou, lorsqu'il est saisi, le juge d'instruction peut placer l'animal dans un lieu de dépôt prévu à cet effet ou le confier à une fondation ou à une association de protection animale reconnue d'utilité publique ou déclarée. La décision mentionne le lieu de placement et vaut jusqu'à ce qu'il ait été statué sur l'infraction ».
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Mme Lara A. [Absence de recours juridictionnel à l'encontre de la décision de placement d'animaux vivants prise par le procureur de la République]
1. La question prioritaire de constitutionnalité doit être considérée comme portant sur les dispositions applicables au litige à l'occasion duquel elle a été posée. Dès lors, le Conseil constitutionnel est saisi des premier et troisième alinéas de l'article 99-1 du code de procédure pénale, dans sa rédaction résultant de l'ordonnance du 6 mai 2010 mentionnée ci-dessus.2. Le premier alinéa de l'article 99-1 du code de procédure pénale, dans cette rédaction, prévoit :« Lorsque, au cours d'une procédure judiciaire ou des contrôles mentionnés à l'article L. 214-23 du code rural et de la pêche maritime, il a été procédé à la saisie ou au retrait, à quelque titre que ce soit, d'un ou plusieurs animaux vivants, le procureur de la République près le tribunal de grande instance du lieu de l'infraction ou, lorsqu'il est saisi, le juge d'instruction peut placer l'animal dans un lieu de dépôt prévu à cet effet ou le confier à une fondation ou à une association de protection animale reconnue d'utilité publique ou déclarée. La décision mentionne le lieu de placement et vaut jusqu'à ce qu'il ait été statué sur l'infraction ».
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CONSTEXT000038016791_2
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CONSTEXT000038016791
| 2 |
189cb6c1d22c74e6
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SEN
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Inéligibilité
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SEN, Lozère
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2018-5640
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2018-11-23
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une attestation d'absence de dépense et de recette.2. L'article L.O. 136-1 du même code dispose que le Conseil constitutionnel peut déclarer inéligible le candidat qui n'a pas déposé son compte de campagne dans les conditions et le délai prescrits à l'article L. 52-12.3. M. GAUDRY a obtenu au moins 1 % des suffrages exprimés à l'issue du scrutin dont le premier tour s'est tenu le 24 septembre 2017. À l'expiration du délai prévu à l'article L. 52-12 du code électoral, soit le 1er décembre 2017 à 18 heures, il n'avait pas déposé de compte de campagne alors qu'il y était tenu. Il n'avait pas davantage produit une attestation d'absence de dépense et de recette établie par un mandataire.4. M. GAUDRY soutient qu'il n'a pas effectué d'autres dépenses que celles correspondant aux frais de la campagne officielle et produit des documents bancaires en ce sens. Toutefois, bien qu'il ait été invité à le faire par le Conseil constitutionnel, M. GAUDRY n'a produit ni compte de campagne ni attestation d'absence de dépense et de recette établie par son mandataire financier. Par suite, M. GAUDRY n'a pas satisfait aux exigences de l'article L. 52-12 du code électoral. Dès lors, il y a lieu de prononcer, dans les circonstances de l'espèce, son inéligibilité à tout mandat pour une durée d'un an à compter de la présente décision.
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SEN, Lozère
une attestation d'absence de dépense et de recette.2. L'article L.O. 136-1 du même code dispose que le Conseil constitutionnel peut déclarer inéligible le candidat qui n'a pas déposé son compte de campagne dans les conditions et le délai prescrits à l'article L. 52-12.3. M. GAUDRY a obtenu au moins 1 % des suffrages exprimés à l'issue du scrutin dont le premier tour s'est tenu le 24 septembre 2017. À l'expiration du délai prévu à l'article L. 52-12 du code électoral, soit le 1er décembre 2017 à 18 heures, il n'avait pas déposé de compte de campagne alors qu'il y était tenu. Il n'avait pas davantage produit une attestation d'absence de dépense et de recette établie par un mandataire.4. M. GAUDRY soutient qu'il n'a pas effectué d'autres dépenses que celles correspondant aux frais de la campagne officielle et produit des documents bancaires en ce sens. Toutefois, bien qu'il ait été invité à le faire par le Conseil constitutionnel, M. GAUDRY n'a produit ni compte de campagne ni attestation d'absence de dépense et de recette établie par son mandataire financier. Par suite, M. GAUDRY n'a pas satisfait aux exigences de l'article L. 52-12 du code électoral. Dès lors, il y a lieu de prononcer, dans les circonstances de l'espèce, son inéligibilité à tout mandat pour une durée d'un an à compter de la présente décision.
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CONSTEXT000038602055_3
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CONSTEXT000038602055
| 3 |
a1fb0d756d8b40b8
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QPC
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Conformité
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Mme Lara A. [Absence de recours juridictionnel à l'encontre de la décision de placement d'animaux vivants prise par le procureur de la République]
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2019-788
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2019-06-07
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3. Le deuxième alinéa du même article prévoit les conditions dans lesquelles le juge d'instruction ou le président du tribunal de grande instance peut, par ordonnance, décider que l'animal ainsi placé sera cédé à titre onéreux ou confié à un tiers ou qu'il sera procédé à son euthanasie. Son troisième alinéa prévoit :« Cette ordonnance est notifiée au propriétaire s'il est connu, qui peut la déférer soit au premier président de la cour d'appel du ressort ou à un magistrat de cette cour désigné par lui, soit, lorsqu'il s'agit d'une ordonnance du juge d'instruction, à la chambre de l'instruction dans les conditions prévues aux cinquième et sixième alinéas de l'article 99 ».
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Mme Lara A. [Absence de recours juridictionnel à l'encontre de la décision de placement d'animaux vivants prise par le procureur de la République]
3. Le deuxième alinéa du même article prévoit les conditions dans lesquelles le juge d'instruction ou le président du tribunal de grande instance peut, par ordonnance, décider que l'animal ainsi placé sera cédé à titre onéreux ou confié à un tiers ou qu'il sera procédé à son euthanasie. Son troisième alinéa prévoit :« Cette ordonnance est notifiée au propriétaire s'il est connu, qui peut la déférer soit au premier président de la cour d'appel du ressort ou à un magistrat de cette cour désigné par lui, soit, lorsqu'il s'agit d'une ordonnance du juge d'instruction, à la chambre de l'instruction dans les conditions prévues aux cinquième et sixième alinéas de l'article 99 ».
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CONSTEXT000038602055_4
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CONSTEXT000038602055
| 4 |
049e9f3e4f0632f2
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QPC
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Conformité
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Mme Lara A. [Absence de recours juridictionnel à l'encontre de la décision de placement d'animaux vivants prise par le procureur de la République]
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2019-788
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2019-06-07
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4. Selon la requérante, faute de permettre l'exercice d'un recours contre la décision du procureur de la République de placer un animal faisant l'objet d'une saisie judiciaire, ces dispositions méconnaîtraient le droit à un recours juridictionnel effectif, le droit à un procès équitable et le principe du contradictoire. Il en résulterait également une méconnaissance du droit de propriété.5. Par conséquent, la question prioritaire de constitutionnalité porte sur les mots « le procureur de la République près le tribunal de grande instance du lieu de l'infraction ou » figurant au premier alinéa de l'article 99-1 du code de procédure pénale.6. Selon l'article 16 de la Déclaration des droits de l'homme et du citoyen de 1789 : « Toute société dans laquelle la garantie des droits n'est pas assurée ni la séparation des pouvoirs déterminée, n'a point de Constitution ». Il résulte de cette disposition qu'il ne doit pas être porté d'atteinte substantielle au droit des personnes intéressées d'exercer un recours effectif devant une juridiction.7. En vertu du premier alinéa de l'article 99-1 du code de procédure pénale, lorsque, au cours d'une procédure judiciaire ou d'une procédure de contrôle conduite par des agents des services vétérinaires ou du ministère de l'agriculture, il a été procédé à la saisie ou au retrait d'un animal vivant, le procureur de la République près le tribunal de grande instance du lieu de l'infraction peut placer l'animal dans un lieu de dépôt prévu à cet effet
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Mme Lara A. [Absence de recours juridictionnel à l'encontre de la décision de placement d'animaux vivants prise par le procureur de la République]
4. Selon la requérante, faute de permettre l'exercice d'un recours contre la décision du procureur de la République de placer un animal faisant l'objet d'une saisie judiciaire, ces dispositions méconnaîtraient le droit à un recours juridictionnel effectif, le droit à un procès équitable et le principe du contradictoire. Il en résulterait également une méconnaissance du droit de propriété.5. Par conséquent, la question prioritaire de constitutionnalité porte sur les mots « le procureur de la République près le tribunal de grande instance du lieu de l'infraction ou » figurant au premier alinéa de l'article 99-1 du code de procédure pénale.6. Selon l'article 16 de la Déclaration des droits de l'homme et du citoyen de 1789 : « Toute société dans laquelle la garantie des droits n'est pas assurée ni la séparation des pouvoirs déterminée, n'a point de Constitution ». Il résulte de cette disposition qu'il ne doit pas être porté d'atteinte substantielle au droit des personnes intéressées d'exercer un recours effectif devant une juridiction.7. En vertu du premier alinéa de l'article 99-1 du code de procédure pénale, lorsque, au cours d'une procédure judiciaire ou d'une procédure de contrôle conduite par des agents des services vétérinaires ou du ministère de l'agriculture, il a été procédé à la saisie ou au retrait d'un animal vivant, le procureur de la République près le tribunal de grande instance du lieu de l'infraction peut placer l'animal dans un lieu de dépôt prévu à cet effet
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CONSTEXT000038602055_5
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CONSTEXT000038602055
| 5 |
caf0057b0bb3395e
|
QPC
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Conformité
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Mme Lara A. [Absence de recours juridictionnel à l'encontre de la décision de placement d'animaux vivants prise par le procureur de la République]
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2019-788
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2019-06-07
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à la saisie ou au retrait d'un animal vivant, le procureur de la République près le tribunal de grande instance du lieu de l'infraction peut placer l'animal dans un lieu de dépôt prévu à cet effet ou le confier à une fondation ou à une association de protection animale reconnue d'utilité publique ou déclarée.8. Il résulte de la jurisprudence constante de la Cour de cassation qu'il n'existe pas de recours spécifique à l'encontre de cette décision de placement. 9. Toutefois, en application des articles 41-4 et 99 du code de procédure pénale, une personne dont les biens ont été saisis peut en demander la restitution au juge d'instruction au cours d'une information judiciaire et au procureur de la République dans les autres cas. 10. Dès lors, dans la mesure où le placement d'un animal effectué sur le fondement de l'article 99-1 intervient nécessairement à la suite d'une décision de saisie ou de retrait, son propriétaire peut en demander la restitution sur le fondement des articles 41-4 ou 99. Cette restitution a pour effet de mettre un terme à la mesure de placement. Le refus éventuellement opposé à sa demande peut également faire l'objet d'un recours juridictionnel. 11. Il en résulte que le propriétaire en cause dispose d'un recours lui permettant d'obtenir qu'il soit mis fin à la mesure de placement. Le grief tiré de la méconnaissance du droit à un recours juridictionnel effectif doit donc être écarté. Il en va de même de ceux tirés de la violation du droit à un procès
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Mme Lara A. [Absence de recours juridictionnel à l'encontre de la décision de placement d'animaux vivants prise par le procureur de la République]
à la saisie ou au retrait d'un animal vivant, le procureur de la République près le tribunal de grande instance du lieu de l'infraction peut placer l'animal dans un lieu de dépôt prévu à cet effet ou le confier à une fondation ou à une association de protection animale reconnue d'utilité publique ou déclarée.8. Il résulte de la jurisprudence constante de la Cour de cassation qu'il n'existe pas de recours spécifique à l'encontre de cette décision de placement. 9. Toutefois, en application des articles 41-4 et 99 du code de procédure pénale, une personne dont les biens ont été saisis peut en demander la restitution au juge d'instruction au cours d'une information judiciaire et au procureur de la République dans les autres cas. 10. Dès lors, dans la mesure où le placement d'un animal effectué sur le fondement de l'article 99-1 intervient nécessairement à la suite d'une décision de saisie ou de retrait, son propriétaire peut en demander la restitution sur le fondement des articles 41-4 ou 99. Cette restitution a pour effet de mettre un terme à la mesure de placement. Le refus éventuellement opposé à sa demande peut également faire l'objet d'un recours juridictionnel. 11. Il en résulte que le propriétaire en cause dispose d'un recours lui permettant d'obtenir qu'il soit mis fin à la mesure de placement. Le grief tiré de la méconnaissance du droit à un recours juridictionnel effectif doit donc être écarté. Il en va de même de ceux tirés de la violation du droit à un procès
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CONSTEXT000038602055_6
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CONSTEXT000038602055
| 6 |
b5bab04acf4dc19a
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QPC
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Conformité
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Mme Lara A. [Absence de recours juridictionnel à l'encontre de la décision de placement d'animaux vivants prise par le procureur de la République]
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2019-788
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2019-06-07
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à la mesure de placement. Le grief tiré de la méconnaissance du droit à un recours juridictionnel effectif doit donc être écarté. Il en va de même de ceux tirés de la violation du droit à un procès équitable, des droits de la défense et du droit de propriété.12. Les dispositions contestées, qui ne méconnaissent aucun autre droit ou liberté que la Constitution garantit, doivent être déclarées conformes à la Constitution.
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Mme Lara A. [Absence de recours juridictionnel à l'encontre de la décision de placement d'animaux vivants prise par le procureur de la République]
à la mesure de placement. Le grief tiré de la méconnaissance du droit à un recours juridictionnel effectif doit donc être écarté. Il en va de même de ceux tirés de la violation du droit à un procès équitable, des droits de la défense et du droit de propriété.12. Les dispositions contestées, qui ne méconnaissent aucun autre droit ou liberté que la Constitution garantit, doivent être déclarées conformes à la Constitution.
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CONSTEXT000038602055_7
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CONSTEXT000038602055
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d2d720e78c502a3c
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QPC
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Conformité
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Mme Lara A. [Absence de recours juridictionnel à l'encontre de la décision de placement d'animaux vivants prise par le procureur de la République]
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2019-788
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2019-06-07
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LE CONSEIL CONSTITUTIONNEL DÉCIDE :
Article 1er. - Les mots « le procureur de la République près le tribunal de grande instance du lieu de l'infraction ou » figurant au premier alinéa de l'article 99-1 du code de procédure pénale, dans sa rédaction résultant de l'ordonnance n° 2010-462 du 6 mai 2010 créant un livre IX du code rural relatif à la pêche maritime et à l'aquaculture marine, sont conformes à la Constitution.
Article 2. - Cette décision sera publiée au Journal officiel de la République française et notifiée dans les conditions prévues à l'article 23-11 de l'ordonnance du 7 novembre 1958 susvisée.
Jugé par le Conseil constitutionnel dans sa séance du 6 juin 2019, où siégeaient : M. Laurent FABIUS, Président, Mmes Claire BAZY MALAURIE, Dominique LOTTIN, Corinne LUQUIENS, Nicole MAESTRACCI, MM. Jacques MÉZARD, François PILLET et Michel PINAULT.
Rendu public le 7 juin 2019.
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Mme Lara A. [Absence de recours juridictionnel à l'encontre de la décision de placement d'animaux vivants prise par le procureur de la République]
LE CONSEIL CONSTITUTIONNEL DÉCIDE :
Article 1er. - Les mots « le procureur de la République près le tribunal de grande instance du lieu de l'infraction ou » figurant au premier alinéa de l'article 99-1 du code de procédure pénale, dans sa rédaction résultant de l'ordonnance n° 2010-462 du 6 mai 2010 créant un livre IX du code rural relatif à la pêche maritime et à l'aquaculture marine, sont conformes à la Constitution.
Article 2. - Cette décision sera publiée au Journal officiel de la République française et notifiée dans les conditions prévues à l'article 23-11 de l'ordonnance du 7 novembre 1958 susvisée.
Jugé par le Conseil constitutionnel dans sa séance du 6 juin 2019, où siégeaient : M. Laurent FABIUS, Président, Mmes Claire BAZY MALAURIE, Dominique LOTTIN, Corinne LUQUIENS, Nicole MAESTRACCI, MM. Jacques MÉZARD, François PILLET et Michel PINAULT.
Rendu public le 7 juin 2019.
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CONSTEXT000031128404_3
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CONSTEXT000031128404
| 3 |
0aceb813722052ee
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DC
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Non conformité partielle
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Loi portant adaptation de la procédure pénale au droit de l'Union européenne
|
2015-719
|
2015-08-13
|
LE CONSEIL CONSTITUTIONNEL,
Vu la Constitution ;Vu l'ordonnance n° 58-1067 du 7 novembre 1958 modifiée portant loi organique sur le Conseil constitutionnel ;Vu les observations du Gouvernement, enregistrées le 3 août 2015 ;Le rapporteur ayant été entendu ;
|
Loi portant adaptation de la procédure pénale au droit de l'Union européenne
LE CONSEIL CONSTITUTIONNEL,
Vu la Constitution ;Vu l'ordonnance n° 58-1067 du 7 novembre 1958 modifiée portant loi organique sur le Conseil constitutionnel ;Vu les observations du Gouvernement, enregistrées le 3 août 2015 ;Le rapporteur ayant été entendu ;
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CONSTEXT000038602050_1
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CONSTEXT000038602050
| 1 |
d0793da189711b85
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QPC
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Conformité
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M. Nicolas S. [Cumul de poursuites et de sanctions en cas de dépassement du plafond de dépenses par un candidat à l'élection présidentielle]
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2019-783
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2019-05-17
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Au vu des textes suivants :- la Constitution ;- l'ordonnance n° 58-1067 du 7 novembre 1958 portant loi organique sur le Conseil constitutionnel ;- le code électoral ;- la loi n° 62-1292 du 6 novembre 1962 relative à l'élection du Président de la République au suffrage universel ;- la loi organique n° 2012-272 du 28 février 2012 relative au remboursement des dépenses de campagne de l'élection présidentielle ;- l'ordonnance n° 2000-916 du 19 septembre 2000 portant adaptation de la valeur en euros de certains montants exprimés en francs dans les textes législatifs ;- les décisions du Conseil constitutionnel n° 2006-536 DC du 5 avril 2006 et nos 2016-545 QPC et 2016-546 QPC du 24 juin 2016 ;- le règlement du 4 février 2010 sur la procédure suivie devant le Conseil constitutionnel pour les questions prioritaires de constitutionnalité ;Au vu des pièces suivantes :- les observations présentées pour le requérant par la SCP Piwnica et Molinié, enregistrées le 18 mars 2019 ; - les observations présentées par le Premier ministre, enregistrées le même jour ;- les autres pièces produites et jointes au dossier ;Après avoir entendu Me Emmanuel Piwnica, avocat au Conseil d'État et à la Cour de cassation, pour le requérant, et M. Philippe Blanc, désigné par le Premier ministre, à l'audience publique du 7 mai 2019 ;Et après avoir entendu le rapporteur ; LE CONSEIL CONSTITUTIONNEL S'EST FONDÉ SUR CE QUI SUIT :
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M. Nicolas S. [Cumul de poursuites et de sanctions en cas de dépassement du plafond de dépenses par un candidat à l'élection présidentielle]
Au vu des textes suivants :- la Constitution ;- l'ordonnance n° 58-1067 du 7 novembre 1958 portant loi organique sur le Conseil constitutionnel ;- le code électoral ;- la loi n° 62-1292 du 6 novembre 1962 relative à l'élection du Président de la République au suffrage universel ;- la loi organique n° 2012-272 du 28 février 2012 relative au remboursement des dépenses de campagne de l'élection présidentielle ;- l'ordonnance n° 2000-916 du 19 septembre 2000 portant adaptation de la valeur en euros de certains montants exprimés en francs dans les textes législatifs ;- les décisions du Conseil constitutionnel n° 2006-536 DC du 5 avril 2006 et nos 2016-545 QPC et 2016-546 QPC du 24 juin 2016 ;- le règlement du 4 février 2010 sur la procédure suivie devant le Conseil constitutionnel pour les questions prioritaires de constitutionnalité ;Au vu des pièces suivantes :- les observations présentées pour le requérant par la SCP Piwnica et Molinié, enregistrées le 18 mars 2019 ; - les observations présentées par le Premier ministre, enregistrées le même jour ;- les autres pièces produites et jointes au dossier ;Après avoir entendu Me Emmanuel Piwnica, avocat au Conseil d'État et à la Cour de cassation, pour le requérant, et M. Philippe Blanc, désigné par le Premier ministre, à l'audience publique du 7 mai 2019 ;Et après avoir entendu le rapporteur ; LE CONSEIL CONSTITUTIONNEL S'EST FONDÉ SUR CE QUI SUIT :
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CONSTEXT000038602050_2
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CONSTEXT000038602050
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02198c59a00f60f4
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QPC
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Conformité
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M. Nicolas S. [Cumul de poursuites et de sanctions en cas de dépassement du plafond de dépenses par un candidat à l'élection présidentielle]
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2019-783
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2019-05-17
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1. La question prioritaire de constitutionnalité doit être considérée comme portant sur les dispositions applicables au litige à l'occasion duquel elle a été posée. Dès lors, le Conseil constitutionnel est saisi du 3° du paragraphe I de l'article L. 113-1 du code électoral dans sa rédaction résultant de l'ordonnance du 19 septembre 2000 mentionnée ci-dessus et de l'article 3 de la loi du 6 novembre 1962 dans sa rédaction résultant de la loi organique du 28 février 2012 mentionnée ci-dessus.2. Le 3° du paragraphe I de l'article L. 113-1 du code électoral, dans cette rédaction, prévoit que sera puni d'une amende de 3 750 euros et d'un emprisonnement d'un an, ou de l'une de ces deux peines seulement, tout candidat en cas de scrutin uninominal, ou tout candidat tête de liste en cas de scrutin de liste, qui :« Aura dépassé le plafond des dépenses électorales fixé en application de l'article L. 52-11 ».
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M. Nicolas S. [Cumul de poursuites et de sanctions en cas de dépassement du plafond de dépenses par un candidat à l'élection présidentielle]
1. La question prioritaire de constitutionnalité doit être considérée comme portant sur les dispositions applicables au litige à l'occasion duquel elle a été posée. Dès lors, le Conseil constitutionnel est saisi du 3° du paragraphe I de l'article L. 113-1 du code électoral dans sa rédaction résultant de l'ordonnance du 19 septembre 2000 mentionnée ci-dessus et de l'article 3 de la loi du 6 novembre 1962 dans sa rédaction résultant de la loi organique du 28 février 2012 mentionnée ci-dessus.2. Le 3° du paragraphe I de l'article L. 113-1 du code électoral, dans cette rédaction, prévoit que sera puni d'une amende de 3 750 euros et d'un emprisonnement d'un an, ou de l'une de ces deux peines seulement, tout candidat en cas de scrutin uninominal, ou tout candidat tête de liste en cas de scrutin de liste, qui :« Aura dépassé le plafond des dépenses électorales fixé en application de l'article L. 52-11 ».
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CONSTEXT000038602050_3
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CONSTEXT000038602050
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703262d49b9a3a5d
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QPC
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Conformité
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M. Nicolas S. [Cumul de poursuites et de sanctions en cas de dépassement du plafond de dépenses par un candidat à l'élection présidentielle]
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2019-783
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2019-05-17
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3. L'article 3 de la loi du 6 novembre 1962, dans la rédaction mentionnée ci-dessus, prévoit : « L'ordonnance n° 58-1064 du 7 novembre 1958 portant loi organique relative à l'élection du Président de la République est remplacée par les dispositions suivantes ayant valeur organique.« I. Quinze jours au moins avant le premier tour de scrutin ouvert pour l'élection du Président de la République, le Gouvernement assure la publication de la liste des candidats.« Cette liste est préalablement établie par le Conseil constitutionnel au vu des présentations qui lui sont adressées par au moins cinq cents citoyens membres du Parlement, des conseils régionaux, de l'Assemblée de Corse, des conseils généraux des départements, de Mayotte, des conseils territoriaux de Saint-Barthélemy, de Saint-Martin et de Saint-Pierre-et-Miquelon, du Conseil de Paris, de l'assemblée de la Polynésie française, du congrès et des assemblées de province de la Nouvelle-Calédonie, de l'assemblée territoriale des îles Wallis-et-Futuna, maires, maires délégués des communes associées, maires des arrondissements de Lyon et de Marseille ou membres élus de l'Assemblée des Français de l'étranger. Les présidents des organes délibérants des communautés urbaines, des communautés d'agglomération, les présidents des communautés de communes, le président de la Polynésie française, le président du gouvernement de la Nouvelle-Calédonie et les ressortissants français membres du Parlement européen élus en France peuvent
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M. Nicolas S. [Cumul de poursuites et de sanctions en cas de dépassement du plafond de dépenses par un candidat à l'élection présidentielle]
3. L'article 3 de la loi du 6 novembre 1962, dans la rédaction mentionnée ci-dessus, prévoit : « L'ordonnance n° 58-1064 du 7 novembre 1958 portant loi organique relative à l'élection du Président de la République est remplacée par les dispositions suivantes ayant valeur organique.« I. Quinze jours au moins avant le premier tour de scrutin ouvert pour l'élection du Président de la République, le Gouvernement assure la publication de la liste des candidats.« Cette liste est préalablement établie par le Conseil constitutionnel au vu des présentations qui lui sont adressées par au moins cinq cents citoyens membres du Parlement, des conseils régionaux, de l'Assemblée de Corse, des conseils généraux des départements, de Mayotte, des conseils territoriaux de Saint-Barthélemy, de Saint-Martin et de Saint-Pierre-et-Miquelon, du Conseil de Paris, de l'assemblée de la Polynésie française, du congrès et des assemblées de province de la Nouvelle-Calédonie, de l'assemblée territoriale des îles Wallis-et-Futuna, maires, maires délégués des communes associées, maires des arrondissements de Lyon et de Marseille ou membres élus de l'Assemblée des Français de l'étranger. Les présidents des organes délibérants des communautés urbaines, des communautés d'agglomération, les présidents des communautés de communes, le président de la Polynésie française, le président du gouvernement de la Nouvelle-Calédonie et les ressortissants français membres du Parlement européen élus en France peuvent
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CONSTEXT000038602050_4
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CONSTEXT000038602050
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b8e45681174ce696
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QPC
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Conformité
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M. Nicolas S. [Cumul de poursuites et de sanctions en cas de dépassement du plafond de dépenses par un candidat à l'élection présidentielle]
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2019-783
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2019-05-17
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de communes, le président de la Polynésie française, le président du gouvernement de la Nouvelle-Calédonie et les ressortissants français membres du Parlement européen élus en France peuvent également, dans les mêmes conditions, présenter un candidat à l'élection présidentielle. Les présentations doivent parvenir au Conseil constitutionnel au plus tard le sixième vendredi précédant le premier tour de scrutin à dix-huit heures. Lorsqu'il est fait application des dispositions du cinquième alinéa de l'article 7 de la Constitution, elles doivent parvenir au plus tard le troisième mardi précédant le premier tour de scrutin à dix-huit heures. Une candidature ne peut être retenue que si, parmi les signataires de la présentation, figurent des élus d'au moins trente départements ou collectivités d'outre-mer, sans que plus d'un dixième d'entre eux puissent être les élus d'un même département ou d'une même collectivité d'outre-mer.« Pour l'application des dispositions de l'alinéa précédent, les sénateurs représentant les Français établis hors de France et les membres élus de l'Assemblée des Français de l'étranger sont réputés être les élus d'un même département. Pour l'application des mêmes dispositions, les députés et le sénateur élus en Nouvelle-Calédonie et les membres des assemblées de province de la Nouvelle-Calédonie sont réputés être élus d'un même département d'outre-mer ou d'une même collectivité d'outre-mer. Pour l'application des mêmes dispositions, les ressortissants
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M. Nicolas S. [Cumul de poursuites et de sanctions en cas de dépassement du plafond de dépenses par un candidat à l'élection présidentielle]
de communes, le président de la Polynésie française, le président du gouvernement de la Nouvelle-Calédonie et les ressortissants français membres du Parlement européen élus en France peuvent également, dans les mêmes conditions, présenter un candidat à l'élection présidentielle. Les présentations doivent parvenir au Conseil constitutionnel au plus tard le sixième vendredi précédant le premier tour de scrutin à dix-huit heures. Lorsqu'il est fait application des dispositions du cinquième alinéa de l'article 7 de la Constitution, elles doivent parvenir au plus tard le troisième mardi précédant le premier tour de scrutin à dix-huit heures. Une candidature ne peut être retenue que si, parmi les signataires de la présentation, figurent des élus d'au moins trente départements ou collectivités d'outre-mer, sans que plus d'un dixième d'entre eux puissent être les élus d'un même département ou d'une même collectivité d'outre-mer.« Pour l'application des dispositions de l'alinéa précédent, les sénateurs représentant les Français établis hors de France et les membres élus de l'Assemblée des Français de l'étranger sont réputés être les élus d'un même département. Pour l'application des mêmes dispositions, les députés et le sénateur élus en Nouvelle-Calédonie et les membres des assemblées de province de la Nouvelle-Calédonie sont réputés être élus d'un même département d'outre-mer ou d'une même collectivité d'outre-mer. Pour l'application des mêmes dispositions, les ressortissants
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CONSTEXT000038602050_5
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CONSTEXT000038602050
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75d54e9ed7c5cc0f
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QPC
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Conformité
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M. Nicolas S. [Cumul de poursuites et de sanctions en cas de dépassement du plafond de dépenses par un candidat à l'élection présidentielle]
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2019-783
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2019-05-17
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de province de la Nouvelle-Calédonie sont réputés être élus d'un même département d'outre-mer ou d'une même collectivité d'outre-mer. Pour l'application des mêmes dispositions, les ressortissants français membres du Parlement européen élus en France sont réputés être les élus d'un même département. Aux mêmes fins, les présidents des organes délibérants des communautés urbaines, des communautés d'agglomération ou des communautés de communes sont réputés être les élus du département auquel appartient la commune dont ils sont délégués. Aux mêmes fins, les conseillers régionaux sont réputés être les élus des départements correspondant aux sections départementales mentionnées par l'article L. 338-1 du code électoral. Aux mêmes fins, les conseillers à l'Assemblée de Corse sont réputés être les élus des départements entre lesquels ils sont répartis en application des dispositions des articles L. 293-1 et L. 293-2 du même code.« Le Conseil constitutionnel doit s'assurer du consentement des personnes présentées qui, à peine de nullité de leur candidature, doivent lui remettre, sous pli scellé, une déclaration de leur situation patrimoniale conforme aux dispositions de l'article L.O. 135-1 du code électoral et l'engagement, en cas d'élection, de déposer deux mois au plus tôt et un mois au plus tard avant l'expiration du mandat ou, en cas de démission, dans un délai d'un mois après celle-ci, une nouvelle déclaration conforme à ces dispositions qui sera publiée au Journal officiel de la
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M. Nicolas S. [Cumul de poursuites et de sanctions en cas de dépassement du plafond de dépenses par un candidat à l'élection présidentielle]
de province de la Nouvelle-Calédonie sont réputés être élus d'un même département d'outre-mer ou d'une même collectivité d'outre-mer. Pour l'application des mêmes dispositions, les ressortissants français membres du Parlement européen élus en France sont réputés être les élus d'un même département. Aux mêmes fins, les présidents des organes délibérants des communautés urbaines, des communautés d'agglomération ou des communautés de communes sont réputés être les élus du département auquel appartient la commune dont ils sont délégués. Aux mêmes fins, les conseillers régionaux sont réputés être les élus des départements correspondant aux sections départementales mentionnées par l'article L. 338-1 du code électoral. Aux mêmes fins, les conseillers à l'Assemblée de Corse sont réputés être les élus des départements entre lesquels ils sont répartis en application des dispositions des articles L. 293-1 et L. 293-2 du même code.« Le Conseil constitutionnel doit s'assurer du consentement des personnes présentées qui, à peine de nullité de leur candidature, doivent lui remettre, sous pli scellé, une déclaration de leur situation patrimoniale conforme aux dispositions de l'article L.O. 135-1 du code électoral et l'engagement, en cas d'élection, de déposer deux mois au plus tôt et un mois au plus tard avant l'expiration du mandat ou, en cas de démission, dans un délai d'un mois après celle-ci, une nouvelle déclaration conforme à ces dispositions qui sera publiée au Journal officiel de la
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CONSTEXT000046216470_2
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CONSTEXT000046216470
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fb88c15003d67c36
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AN
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Rejet
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A.N., Ensemble des circonscriptions, M. André Gérard DURINGER
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2022-5737
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2022-07-29
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Jugé par le Conseil constitutionnel dans sa séance du 28 juillet 2022, où siégeaient : M. Laurent FABIUS, Président, Mme Jacqueline GOURAULT, M. Alain JUPPÉ, Mmes Corinne LUQUIENS, Véronique MALBEC, MM. Jacques MÉZARD, François PILLET, Michel PINAULT et François SÉNERS.
Rendu public le 29 juillet 2022.
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A.N., Ensemble des circonscriptions, M. André Gérard DURINGER
Jugé par le Conseil constitutionnel dans sa séance du 28 juillet 2022, où siégeaient : M. Laurent FABIUS, Président, Mme Jacqueline GOURAULT, M. Alain JUPPÉ, Mmes Corinne LUQUIENS, Véronique MALBEC, MM. Jacques MÉZARD, François PILLET, Michel PINAULT et François SÉNERS.
Rendu public le 29 juillet 2022.
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CONSTEXT000038602050_6
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CONSTEXT000038602050
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385f1d0fc25a4d10
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QPC
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Conformité
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M. Nicolas S. [Cumul de poursuites et de sanctions en cas de dépassement du plafond de dépenses par un candidat à l'élection présidentielle]
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2019-783
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2019-05-17
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plus tard avant l'expiration du mandat ou, en cas de démission, dans un délai d'un mois après celle-ci, une nouvelle déclaration conforme à ces dispositions qui sera publiée au Journal officiel de la République française dans les huit jours de son dépôt.« Le nom et la qualité des citoyens qui ont proposé les candidats inscrits sur la liste sont rendus publics par le Conseil constitutionnel huit jours au moins avant le premier tour de scrutin, dans la limite du nombre requis pour la validité de la candidature.« II. Les opérations électorales sont organisées selon les règles fixées par les articles L. 1er, L. 2, L. 5 à L. 7, L. 9 à L. 21, L. 23, L. 25, L. 27 à L. 40, L. 42, L. 43, L. 45, L. 47 à L. 52-2, L. 52-4 à L. 52-11, L. 52-12, L. 52-14, L. 52-15, quatrième alinéa, L. 52-16 à L. 52-18, L. 53 à L. 55, L. 57 à L. 78, L. 85-1 à L. 111, L. 113 à L. 114, L. 116, L. 117, L.O. 127, L. 199, L. 200, L. 203, L. 385 à L. 387, L. 389, L. 393, L. 451 à L. 453, L. 477, L. 504 et L. 531 du code électoral, sous réserve des dispositions suivantes :« Le plafond des dépenses électorales prévu par l'article L. 52-11 du code électoral est fixé à 13,7 millions d'euros pour un candidat à l'élection du Président de la République. Il est porté à 18,3 millions d'euros pour chacun des candidats présents au second tour.« Les personnes physiques ne peuvent, dans le cadre de l'application des dispositions de l'article L. 52-8 du code électoral, accorder des prêts et avances remboursables aux
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M. Nicolas S. [Cumul de poursuites et de sanctions en cas de dépassement du plafond de dépenses par un candidat à l'élection présidentielle]
plus tard avant l'expiration du mandat ou, en cas de démission, dans un délai d'un mois après celle-ci, une nouvelle déclaration conforme à ces dispositions qui sera publiée au Journal officiel de la République française dans les huit jours de son dépôt.« Le nom et la qualité des citoyens qui ont proposé les candidats inscrits sur la liste sont rendus publics par le Conseil constitutionnel huit jours au moins avant le premier tour de scrutin, dans la limite du nombre requis pour la validité de la candidature.« II. Les opérations électorales sont organisées selon les règles fixées par les articles L. 1er, L. 2, L. 5 à L. 7, L. 9 à L. 21, L. 23, L. 25, L. 27 à L. 40, L. 42, L. 43, L. 45, L. 47 à L. 52-2, L. 52-4 à L. 52-11, L. 52-12, L. 52-14, L. 52-15, quatrième alinéa, L. 52-16 à L. 52-18, L. 53 à L. 55, L. 57 à L. 78, L. 85-1 à L. 111, L. 113 à L. 114, L. 116, L. 117, L.O. 127, L. 199, L. 200, L. 203, L. 385 à L. 387, L. 389, L. 393, L. 451 à L. 453, L. 477, L. 504 et L. 531 du code électoral, sous réserve des dispositions suivantes :« Le plafond des dépenses électorales prévu par l'article L. 52-11 du code électoral est fixé à 13,7 millions d'euros pour un candidat à l'élection du Président de la République. Il est porté à 18,3 millions d'euros pour chacun des candidats présents au second tour.« Les personnes physiques ne peuvent, dans le cadre de l'application des dispositions de l'article L. 52-8 du code électoral, accorder des prêts et avances remboursables aux
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CONSTEXT000038602050_7
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CONSTEXT000038602050
| 7 |
c377bf43a38af335
|
QPC
|
Conformité
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M. Nicolas S. [Cumul de poursuites et de sanctions en cas de dépassement du plafond de dépenses par un candidat à l'élection présidentielle]
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2019-783
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2019-05-17
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présents au second tour.« Les personnes physiques ne peuvent, dans le cadre de l'application des dispositions de l'article L. 52-8 du code électoral, accorder des prêts et avances remboursables aux candidats.« L'obligation de dépôt du compte de campagne ainsi que la présentation de ce compte par un membre de l'ordre des experts-comptables et des comptables agréés s'imposent à tous les candidats. Les frais d'expertise comptable liés à l'application de l'article L. 52-12 du code électoral sont inscrits dans le compte de campagne.« La Commission nationale des comptes de campagne et des financements politiques approuve, rejette ou réforme, après procédure contradictoire, les comptes de campagne et arrête le montant du remboursement forfaitaire prévu au V du présent article. Elle se prononce dans les six mois du dépôt des comptes.« Dans tous les cas où un dépassement du plafond des dépenses électorales est constaté, la commission fixe une somme, égale au montant du dépassement, que le candidat est tenu de verser au Trésor public. Cette somme est recouvrée comme les créances de l'État étrangères à l'impôt et au domaine.« Par dérogation au quatrième alinéa de l'article L. 52-12 du code électoral, les comptes de campagne des candidats sont publiés par la commission au Journal officiel dans le mois suivant l'expiration du délai prévu au deuxième alinéa du même article L. 52-12.« Pour l'application des dispositions du quatrième alinéa de l'article L. 52-5 et du quatrième alinéa de
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M. Nicolas S. [Cumul de poursuites et de sanctions en cas de dépassement du plafond de dépenses par un candidat à l'élection présidentielle]
présents au second tour.« Les personnes physiques ne peuvent, dans le cadre de l'application des dispositions de l'article L. 52-8 du code électoral, accorder des prêts et avances remboursables aux candidats.« L'obligation de dépôt du compte de campagne ainsi que la présentation de ce compte par un membre de l'ordre des experts-comptables et des comptables agréés s'imposent à tous les candidats. Les frais d'expertise comptable liés à l'application de l'article L. 52-12 du code électoral sont inscrits dans le compte de campagne.« La Commission nationale des comptes de campagne et des financements politiques approuve, rejette ou réforme, après procédure contradictoire, les comptes de campagne et arrête le montant du remboursement forfaitaire prévu au V du présent article. Elle se prononce dans les six mois du dépôt des comptes.« Dans tous les cas où un dépassement du plafond des dépenses électorales est constaté, la commission fixe une somme, égale au montant du dépassement, que le candidat est tenu de verser au Trésor public. Cette somme est recouvrée comme les créances de l'État étrangères à l'impôt et au domaine.« Par dérogation au quatrième alinéa de l'article L. 52-12 du code électoral, les comptes de campagne des candidats sont publiés par la commission au Journal officiel dans le mois suivant l'expiration du délai prévu au deuxième alinéa du même article L. 52-12.« Pour l'application des dispositions du quatrième alinéa de l'article L. 52-5 et du quatrième alinéa de
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CONSTEXT000038602050_8
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CONSTEXT000038602050
| 8 |
e15d7898cf64212c
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QPC
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Conformité
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M. Nicolas S. [Cumul de poursuites et de sanctions en cas de dépassement du plafond de dépenses par un candidat à l'élection présidentielle]
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2019-783
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2019-05-17
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dans le mois suivant l'expiration du délai prévu au deuxième alinéa du même article L. 52-12.« Pour l'application des dispositions du quatrième alinéa de l'article L. 52-5 et du quatrième alinéa de l'article L. 52-6 du code électoral, le délai pour la dissolution de plein droit de l'association de financement électoral et pour la cessation des fonctions du mandataire financier est fixé à un mois à compter de la publication prévue au dernier alinéa du V du présent article.« Le solde positif éventuel des comptes des associations électorales et mandataires financiers des candidats est dévolu à la Fondation de France.« Le montant de l'avance prévue au deuxième alinéa du paragraphe V du présent article doit figurer dans les recettes retracées dans le compte de campagne.« Par dérogation aux dispositions de l'article L. 55 du code électoral, le scrutin est organisé le samedi en Guadeloupe, en Guyane, en Martinique, à Saint-Barthélemy, à Saint-Martin, à Saint-Pierre-et-Miquelon, en Polynésie française et dans les ambassades et les postes consulaires situés sur le continent américain.« III. Le Conseil constitutionnel veille à la régularité des opérations et examine les réclamations dans les mêmes conditions que celles fixées pour les opérations de référendum par les articles 46, 48, 49, 50 de l'ordonnance n° 58-1067 du 7 novembre 1958 portant loi organique sur le Conseil constitutionnel.« Le Conseil constitutionnel arrête et proclame les résultats de l'élection qui sont publiés au
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M. Nicolas S. [Cumul de poursuites et de sanctions en cas de dépassement du plafond de dépenses par un candidat à l'élection présidentielle]
dans le mois suivant l'expiration du délai prévu au deuxième alinéa du même article L. 52-12.« Pour l'application des dispositions du quatrième alinéa de l'article L. 52-5 et du quatrième alinéa de l'article L. 52-6 du code électoral, le délai pour la dissolution de plein droit de l'association de financement électoral et pour la cessation des fonctions du mandataire financier est fixé à un mois à compter de la publication prévue au dernier alinéa du V du présent article.« Le solde positif éventuel des comptes des associations électorales et mandataires financiers des candidats est dévolu à la Fondation de France.« Le montant de l'avance prévue au deuxième alinéa du paragraphe V du présent article doit figurer dans les recettes retracées dans le compte de campagne.« Par dérogation aux dispositions de l'article L. 55 du code électoral, le scrutin est organisé le samedi en Guadeloupe, en Guyane, en Martinique, à Saint-Barthélemy, à Saint-Martin, à Saint-Pierre-et-Miquelon, en Polynésie française et dans les ambassades et les postes consulaires situés sur le continent américain.« III. Le Conseil constitutionnel veille à la régularité des opérations et examine les réclamations dans les mêmes conditions que celles fixées pour les opérations de référendum par les articles 46, 48, 49, 50 de l'ordonnance n° 58-1067 du 7 novembre 1958 portant loi organique sur le Conseil constitutionnel.« Le Conseil constitutionnel arrête et proclame les résultats de l'élection qui sont publiés au
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CONSTEXT000038602050_9
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CONSTEXT000038602050
| 9 |
09cada6965b8477f
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QPC
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Conformité
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M. Nicolas S. [Cumul de poursuites et de sanctions en cas de dépassement du plafond de dépenses par un candidat à l'élection présidentielle]
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2019-783
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2019-05-17
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50 de l'ordonnance n° 58-1067 du 7 novembre 1958 portant loi organique sur le Conseil constitutionnel.« Le Conseil constitutionnel arrête et proclame les résultats de l'élection qui sont publiés au Journal officiel de la République française dans les vingt-quatre heures de la proclamation. La déclaration de situation patrimoniale du candidat proclamé élu est jointe à cette publication.« Les décisions de la Commission nationale des comptes de campagne et des financements politiques mentionnées au II du présent article peuvent faire l'objet d'un recours de pleine juridiction devant le Conseil constitutionnel par le candidat concerné, dans le mois suivant leur notification. Pour l'examen des comptes comme des réclamations visées au premier alinéa du présent paragraphe, le président du Conseil constitutionnel désigne des rapporteurs, choisis parmi les membres du Conseil et les rapporteurs adjoints mentionnés au second alinéa de l'article 36 de l'ordonnance n° 58-1067 du 7 novembre 1958 portant loi organique sur le Conseil constitutionnel. Les agents de l'administration des impôts sont déliés du secret professionnel à l'égard des membres du Conseil constitutionnel et de ses rapporteurs adjoints à l'occasion des enquêtes qu'ils effectuent pour contrôler les comptes de campagne des candidats à l'élection du Président de la République.« IV. Tous les candidats bénéficient, de la part de l'État, des mêmes facilités pour la campagne en vue de l'élection présidentielle.« V. Un décret en
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M. Nicolas S. [Cumul de poursuites et de sanctions en cas de dépassement du plafond de dépenses par un candidat à l'élection présidentielle]
50 de l'ordonnance n° 58-1067 du 7 novembre 1958 portant loi organique sur le Conseil constitutionnel.« Le Conseil constitutionnel arrête et proclame les résultats de l'élection qui sont publiés au Journal officiel de la République française dans les vingt-quatre heures de la proclamation. La déclaration de situation patrimoniale du candidat proclamé élu est jointe à cette publication.« Les décisions de la Commission nationale des comptes de campagne et des financements politiques mentionnées au II du présent article peuvent faire l'objet d'un recours de pleine juridiction devant le Conseil constitutionnel par le candidat concerné, dans le mois suivant leur notification. Pour l'examen des comptes comme des réclamations visées au premier alinéa du présent paragraphe, le président du Conseil constitutionnel désigne des rapporteurs, choisis parmi les membres du Conseil et les rapporteurs adjoints mentionnés au second alinéa de l'article 36 de l'ordonnance n° 58-1067 du 7 novembre 1958 portant loi organique sur le Conseil constitutionnel. Les agents de l'administration des impôts sont déliés du secret professionnel à l'égard des membres du Conseil constitutionnel et de ses rapporteurs adjoints à l'occasion des enquêtes qu'ils effectuent pour contrôler les comptes de campagne des candidats à l'élection du Président de la République.« IV. Tous les candidats bénéficient, de la part de l'État, des mêmes facilités pour la campagne en vue de l'élection présidentielle.« V. Un décret en
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CONSTEXT000038602050_10
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CONSTEXT000038602050
| 10 |
11cea7b768d17750
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QPC
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Conformité
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M. Nicolas S. [Cumul de poursuites et de sanctions en cas de dépassement du plafond de dépenses par un candidat à l'élection présidentielle]
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2019-783
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2019-05-17
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à l'élection du Président de la République.« IV. Tous les candidats bénéficient, de la part de l'État, des mêmes facilités pour la campagne en vue de l'élection présidentielle.« V. Un décret en Conseil d'État fixe les modalités d'application des présentes dispositions organiques ; il détermine notamment les conditions de la participation de l'État aux dépenses de propagande.« Lors de la publication de la liste des candidats au premier tour, l'État verse à chacun d'entre eux une somme de 153 000 euros, à titre d'avance sur le remboursement forfaitaire de leurs dépenses de campagne prévu à l'alinéa suivant. Si le montant du remboursement n'atteint pas cette somme, l'excédent fait l'objet d'un reversement.« Une somme égale à 4,75 % du montant du plafond des dépenses de campagne qui leur est applicable est remboursée, à titre forfaitaire, à chaque candidat ; cette somme est portée à 47,5 % dudit plafond pour chaque candidat ayant obtenu plus de 5 % du total des suffrages exprimés au premier tour. Elle ne peut excéder le montant des dépenses du candidat retracées dans son compte de campagne.« Le remboursement total ou partiel des dépenses retracées dans le compte de campagne n'est possible qu'après l'approbation définitive de ce compte. Le remboursement forfaitaire n'est pas versé aux candidats qui ne se sont pas conformés aux prescriptions du deuxième alinéa du II du présent article, qui n'ont pas déposé leur compte de campagne au plus tard à 18 heures le onzième vendredi
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M. Nicolas S. [Cumul de poursuites et de sanctions en cas de dépassement du plafond de dépenses par un candidat à l'élection présidentielle]
à l'élection du Président de la République.« IV. Tous les candidats bénéficient, de la part de l'État, des mêmes facilités pour la campagne en vue de l'élection présidentielle.« V. Un décret en Conseil d'État fixe les modalités d'application des présentes dispositions organiques ; il détermine notamment les conditions de la participation de l'État aux dépenses de propagande.« Lors de la publication de la liste des candidats au premier tour, l'État verse à chacun d'entre eux une somme de 153 000 euros, à titre d'avance sur le remboursement forfaitaire de leurs dépenses de campagne prévu à l'alinéa suivant. Si le montant du remboursement n'atteint pas cette somme, l'excédent fait l'objet d'un reversement.« Une somme égale à 4,75 % du montant du plafond des dépenses de campagne qui leur est applicable est remboursée, à titre forfaitaire, à chaque candidat ; cette somme est portée à 47,5 % dudit plafond pour chaque candidat ayant obtenu plus de 5 % du total des suffrages exprimés au premier tour. Elle ne peut excéder le montant des dépenses du candidat retracées dans son compte de campagne.« Le remboursement total ou partiel des dépenses retracées dans le compte de campagne n'est possible qu'après l'approbation définitive de ce compte. Le remboursement forfaitaire n'est pas versé aux candidats qui ne se sont pas conformés aux prescriptions du deuxième alinéa du II du présent article, qui n'ont pas déposé leur compte de campagne au plus tard à 18 heures le onzième vendredi
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CONSTEXT000038602050_11
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CONSTEXT000038602050
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db1481f15cbf2bc6
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QPC
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Conformité
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M. Nicolas S. [Cumul de poursuites et de sanctions en cas de dépassement du plafond de dépenses par un candidat à l'élection présidentielle]
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2019-783
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2019-05-17
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aux candidats qui ne se sont pas conformés aux prescriptions du deuxième alinéa du II du présent article, qui n'ont pas déposé leur compte de campagne au plus tard à 18 heures le onzième vendredi suivant le premier tour de scrutin ou dont le compte de campagne est rejeté pour d'autres motifs. Dans les cas où les irrégularités commises ne conduisent pas au rejet du compte, la décision concernant ce dernier peut réduire le montant du remboursement forfaitaire en fonction du nombre et de la gravité de ces irrégularités.« La Commission nationale des comptes de campagne et des financements politiques ou, en cas de recours, le Conseil constitutionnel fait publier au Journal officiel les décisions prises pour approuver, rejeter ou réformer les comptes de campagne et arrêter le montant du remboursement ».
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M. Nicolas S. [Cumul de poursuites et de sanctions en cas de dépassement du plafond de dépenses par un candidat à l'élection présidentielle]
aux candidats qui ne se sont pas conformés aux prescriptions du deuxième alinéa du II du présent article, qui n'ont pas déposé leur compte de campagne au plus tard à 18 heures le onzième vendredi suivant le premier tour de scrutin ou dont le compte de campagne est rejeté pour d'autres motifs. Dans les cas où les irrégularités commises ne conduisent pas au rejet du compte, la décision concernant ce dernier peut réduire le montant du remboursement forfaitaire en fonction du nombre et de la gravité de ces irrégularités.« La Commission nationale des comptes de campagne et des financements politiques ou, en cas de recours, le Conseil constitutionnel fait publier au Journal officiel les décisions prises pour approuver, rejeter ou réformer les comptes de campagne et arrêter le montant du remboursement ».
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CONSTEXT000038602050_12
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CONSTEXT000038602050
| 12 |
d2431c4b74a60904
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QPC
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Conformité
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M. Nicolas S. [Cumul de poursuites et de sanctions en cas de dépassement du plafond de dépenses par un candidat à l'élection présidentielle]
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2019-783
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2019-05-17
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4. Le requérant soutient que ces dispositions contreviendraient, en méconnaissance du principe non bis in idem, aux exigences de nécessité et de proportionnalité des peines, dans la mesure où elles permettraient des poursuites et des sanctions pénales à l'égard de candidats à l'élection présidentielle ayant déjà été sanctionnés financièrement pour des faits identiques de dépassement du plafond des dépenses électorales par la Commission nationale des comptes de campagne et des financements politiques et, en cas de recours, par le Conseil constitutionnel.5. Par conséquent, la question prioritaire de constitutionnalité porte, d'une part, sur le renvoi opéré, par le premier alinéa du paragraphe II de l'article 3 de la loi du 6 novembre 1962, au 3° du paragraphe I de l'article L. 113-1 du code électoral et, d'autre part, sur la première phrase du sixième alinéa du paragraphe II du même article 3.- Sur la recevabilité :6. Selon les dispositions combinées du troisième alinéa de l'article 23-2 et du troisième alinéa de l'article 23-5 de l'ordonnance du 7 novembre 1958 mentionnée ci-dessus, le Conseil constitutionnel ne peut être saisi d'une question prioritaire de constitutionnalité relative à une disposition qu'il a déjà déclarée conforme à la Constitution dans les motifs et le dispositif d'une de ses décisions, sauf changement des circonstances.7. Dans sa décision du 5 avril 2006 mentionnée ci-dessus, le Conseil constitutionnel a spécialement examiné le premier alinéa et la
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M. Nicolas S. [Cumul de poursuites et de sanctions en cas de dépassement du plafond de dépenses par un candidat à l'élection présidentielle]
4. Le requérant soutient que ces dispositions contreviendraient, en méconnaissance du principe non bis in idem, aux exigences de nécessité et de proportionnalité des peines, dans la mesure où elles permettraient des poursuites et des sanctions pénales à l'égard de candidats à l'élection présidentielle ayant déjà été sanctionnés financièrement pour des faits identiques de dépassement du plafond des dépenses électorales par la Commission nationale des comptes de campagne et des financements politiques et, en cas de recours, par le Conseil constitutionnel.5. Par conséquent, la question prioritaire de constitutionnalité porte, d'une part, sur le renvoi opéré, par le premier alinéa du paragraphe II de l'article 3 de la loi du 6 novembre 1962, au 3° du paragraphe I de l'article L. 113-1 du code électoral et, d'autre part, sur la première phrase du sixième alinéa du paragraphe II du même article 3.- Sur la recevabilité :6. Selon les dispositions combinées du troisième alinéa de l'article 23-2 et du troisième alinéa de l'article 23-5 de l'ordonnance du 7 novembre 1958 mentionnée ci-dessus, le Conseil constitutionnel ne peut être saisi d'une question prioritaire de constitutionnalité relative à une disposition qu'il a déjà déclarée conforme à la Constitution dans les motifs et le dispositif d'une de ses décisions, sauf changement des circonstances.7. Dans sa décision du 5 avril 2006 mentionnée ci-dessus, le Conseil constitutionnel a spécialement examiné le premier alinéa et la
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CONSTEXT000038602050_13
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CONSTEXT000038602050
| 13 |
252faee3d5e6fe38
|
QPC
|
Conformité
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M. Nicolas S. [Cumul de poursuites et de sanctions en cas de dépassement du plafond de dépenses par un candidat à l'élection présidentielle]
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2019-783
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2019-05-17
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d'une de ses décisions, sauf changement des circonstances.7. Dans sa décision du 5 avril 2006 mentionnée ci-dessus, le Conseil constitutionnel a spécialement examiné le premier alinéa et la première phrase du sixième alinéa du paragraphe II de l'article 3 de la loi du 6 novembre 1962 et les a déclarés conformes à la Constitution dans les motifs et le dispositif de cette décision. Ces dispositions sont identiques à celles contestées par le requérant dans la présente question prioritaire de constitutionnalité.8. Toutefois, depuis cette déclaration de conformité, le Conseil constitutionnel a jugé, dans ses décisions du 24 juin 2016 mentionnées ci-dessus, que, dans certaines hypothèses, le principe de nécessité des délits et des peines pouvait faire obstacle à des cumuls de poursuites. Ces décisions constituent un changement des circonstances justifiant le réexamen des dispositions contestées.- Sur le fond :9. Selon l'article 8 de la Déclaration des droits de l'homme et du citoyen de 1789 : « La loi ne doit établir que des peines strictement et évidemment nécessaires, et nul ne peut être puni qu'en vertu d'une loi établie et promulguée antérieurement au délit, et légalement appliquée ». Les principes ainsi énoncés ne concernent pas seulement les peines prononcées par les juridictions pénales mais s'étendent à toute sanction ayant le caractère d'une punition. Le principe de nécessité des délits et des peines ne fait pas obstacle à ce que les mêmes faits commis par une même
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M. Nicolas S. [Cumul de poursuites et de sanctions en cas de dépassement du plafond de dépenses par un candidat à l'élection présidentielle]
d'une de ses décisions, sauf changement des circonstances.7. Dans sa décision du 5 avril 2006 mentionnée ci-dessus, le Conseil constitutionnel a spécialement examiné le premier alinéa et la première phrase du sixième alinéa du paragraphe II de l'article 3 de la loi du 6 novembre 1962 et les a déclarés conformes à la Constitution dans les motifs et le dispositif de cette décision. Ces dispositions sont identiques à celles contestées par le requérant dans la présente question prioritaire de constitutionnalité.8. Toutefois, depuis cette déclaration de conformité, le Conseil constitutionnel a jugé, dans ses décisions du 24 juin 2016 mentionnées ci-dessus, que, dans certaines hypothèses, le principe de nécessité des délits et des peines pouvait faire obstacle à des cumuls de poursuites. Ces décisions constituent un changement des circonstances justifiant le réexamen des dispositions contestées.- Sur le fond :9. Selon l'article 8 de la Déclaration des droits de l'homme et du citoyen de 1789 : « La loi ne doit établir que des peines strictement et évidemment nécessaires, et nul ne peut être puni qu'en vertu d'une loi établie et promulguée antérieurement au délit, et légalement appliquée ». Les principes ainsi énoncés ne concernent pas seulement les peines prononcées par les juridictions pénales mais s'étendent à toute sanction ayant le caractère d'une punition. Le principe de nécessité des délits et des peines ne fait pas obstacle à ce que les mêmes faits commis par une même
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CONSTEXT000038602050_14
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CONSTEXT000038602050
| 14 |
77fba021ec810074
|
QPC
|
Conformité
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M. Nicolas S. [Cumul de poursuites et de sanctions en cas de dépassement du plafond de dépenses par un candidat à l'élection présidentielle]
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2019-783
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2019-05-17
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pénales mais s'étendent à toute sanction ayant le caractère d'une punition. Le principe de nécessité des délits et des peines ne fait pas obstacle à ce que les mêmes faits commis par une même personne puissent faire l'objet de poursuites différentes aux fins de sanctions de nature différente en application de corps de règles distincts. Si l'éventualité que deux procédures soient engagées peut conduire à un cumul de sanctions, le principe de proportionnalité implique qu'en tout état de cause le montant global des sanctions éventuellement prononcées ne dépasse pas le montant le plus élevé de l'une des sanctions encourues.10. En application des deux premiers alinéas du paragraphe II de l'article 3 de la loi du 6 novembre 1962 et de l'article L. 52-11 du code électoral, les candidats à l'élection du Président de la République sont tenus, au cours de la campagne, de respecter un plafond des dépenses électorales. Lorsque la Commission nationale des comptes de campagne et des financements politiques constate un dépassement de ce plafond par un candidat, celui-ci est, en vertu des dispositions contestées du sixième alinéa du même paragraphe II, tenu de verser au Trésor public une somme égale au montant du dépassement. En application du paragraphe III du même article 3, la décision de cette commission peut faire l'objet d'un recours de pleine juridiction devant le Conseil constitutionnel par le candidat en cause. En outre, en application des dispositions contestées du premier alinéa
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M. Nicolas S. [Cumul de poursuites et de sanctions en cas de dépassement du plafond de dépenses par un candidat à l'élection présidentielle]
pénales mais s'étendent à toute sanction ayant le caractère d'une punition. Le principe de nécessité des délits et des peines ne fait pas obstacle à ce que les mêmes faits commis par une même personne puissent faire l'objet de poursuites différentes aux fins de sanctions de nature différente en application de corps de règles distincts. Si l'éventualité que deux procédures soient engagées peut conduire à un cumul de sanctions, le principe de proportionnalité implique qu'en tout état de cause le montant global des sanctions éventuellement prononcées ne dépasse pas le montant le plus élevé de l'une des sanctions encourues.10. En application des deux premiers alinéas du paragraphe II de l'article 3 de la loi du 6 novembre 1962 et de l'article L. 52-11 du code électoral, les candidats à l'élection du Président de la République sont tenus, au cours de la campagne, de respecter un plafond des dépenses électorales. Lorsque la Commission nationale des comptes de campagne et des financements politiques constate un dépassement de ce plafond par un candidat, celui-ci est, en vertu des dispositions contestées du sixième alinéa du même paragraphe II, tenu de verser au Trésor public une somme égale au montant du dépassement. En application du paragraphe III du même article 3, la décision de cette commission peut faire l'objet d'un recours de pleine juridiction devant le Conseil constitutionnel par le candidat en cause. En outre, en application des dispositions contestées du premier alinéa
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CONSTEXT000038602050_15
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CONSTEXT000038602050
| 15 |
4f22406f218d8e4d
|
QPC
|
Conformité
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M. Nicolas S. [Cumul de poursuites et de sanctions en cas de dépassement du plafond de dépenses par un candidat à l'élection présidentielle]
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2019-783
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2019-05-17
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commission peut faire l'objet d'un recours de pleine juridiction devant le Conseil constitutionnel par le candidat en cause. En outre, en application des dispositions contestées du premier alinéa du paragraphe II du même article, qui renvoient au 3° du paragraphe I de l'article L. 113-1 du code électoral, le candidat ayant dépassé le plafond des dépenses électorales encourt également une amende de 3 750 euros et une peine d'emprisonnement d'un an.11. Par conséquent, les dispositions contestées tendent à réprimer de mêmes faits qualifiés de manière identique.12. Toutefois, en premier lieu, la sanction financière prononcée par la Commission nationale des comptes de campagne et des financements politiques intervient à l'issue de l'examen par cette commission, sous le contrôle du Conseil constitutionnel, des comptes de campagne de chacun des candidats à l'élection du Président de la République. En conférant à cette sanction un caractère systématique et en prévoyant que son montant est égal au dépassement du plafond des dépenses électorales, le législateur a entendu assurer le bon déroulement de l'élection du Président de la République et, en particulier, l'égalité entre les candidats au cours de la campagne électorale. En revanche, en instaurant une répression pénale des mêmes faits, qui exige un élément intentionnel et permet de tenir compte des circonstances de l'infraction et d'adapter la sévérité de la peine à la gravité de ces faits, le législateur a entendu sanctionner
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M. Nicolas S. [Cumul de poursuites et de sanctions en cas de dépassement du plafond de dépenses par un candidat à l'élection présidentielle]
commission peut faire l'objet d'un recours de pleine juridiction devant le Conseil constitutionnel par le candidat en cause. En outre, en application des dispositions contestées du premier alinéa du paragraphe II du même article, qui renvoient au 3° du paragraphe I de l'article L. 113-1 du code électoral, le candidat ayant dépassé le plafond des dépenses électorales encourt également une amende de 3 750 euros et une peine d'emprisonnement d'un an.11. Par conséquent, les dispositions contestées tendent à réprimer de mêmes faits qualifiés de manière identique.12. Toutefois, en premier lieu, la sanction financière prononcée par la Commission nationale des comptes de campagne et des financements politiques intervient à l'issue de l'examen par cette commission, sous le contrôle du Conseil constitutionnel, des comptes de campagne de chacun des candidats à l'élection du Président de la République. En conférant à cette sanction un caractère systématique et en prévoyant que son montant est égal au dépassement du plafond des dépenses électorales, le législateur a entendu assurer le bon déroulement de l'élection du Président de la République et, en particulier, l'égalité entre les candidats au cours de la campagne électorale. En revanche, en instaurant une répression pénale des mêmes faits, qui exige un élément intentionnel et permet de tenir compte des circonstances de l'infraction et d'adapter la sévérité de la peine à la gravité de ces faits, le législateur a entendu sanctionner
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CONSTEXT000038602050_16
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CONSTEXT000038602050
| 16 |
9e71b225a0aecb56
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QPC
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Conformité
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M. Nicolas S. [Cumul de poursuites et de sanctions en cas de dépassement du plafond de dépenses par un candidat à l'élection présidentielle]
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2019-783
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2019-05-17
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qui exige un élément intentionnel et permet de tenir compte des circonstances de l'infraction et d'adapter la sévérité de la peine à la gravité de ces faits, le législateur a entendu sanctionner les éventuels manquements à la probité des candidats et des élus.13. En second lieu, la sanction prononcée par la Commission nationale des comptes de campagne et des financements politiques est une pénalité financière, strictement égale au montant du dépassement constaté. Sa nature est donc différente de la peine d'emprisonnement encourue par le candidat poursuivi pour le délit de dépassement du plafond des dépenses électorales.14. Il résulte de ce qui précède que les deux répressions prévues par les dispositions contestées relèvent de corps de règles qui protègent des intérêts sociaux distincts aux fins de sanctions de nature différente. Le grief tiré de la méconnaissance du principe de nécessité et de proportionnalité des peines doit donc être écarté.15. Par suite, le renvoi opéré, par le premier alinéa du paragraphe II de l'article 3 de la loi du 6 novembre 1962, au 3° du paragraphe I de l'article L. 113-1 du code électoral et la première phrase du sixième alinéa du paragraphe II du même article 3, qui ne méconnaissent aucun autre droit ou liberté que la Constitution garantit, doivent être déclarés conformes à la Constitution.
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M. Nicolas S. [Cumul de poursuites et de sanctions en cas de dépassement du plafond de dépenses par un candidat à l'élection présidentielle]
qui exige un élément intentionnel et permet de tenir compte des circonstances de l'infraction et d'adapter la sévérité de la peine à la gravité de ces faits, le législateur a entendu sanctionner les éventuels manquements à la probité des candidats et des élus.13. En second lieu, la sanction prononcée par la Commission nationale des comptes de campagne et des financements politiques est une pénalité financière, strictement égale au montant du dépassement constaté. Sa nature est donc différente de la peine d'emprisonnement encourue par le candidat poursuivi pour le délit de dépassement du plafond des dépenses électorales.14. Il résulte de ce qui précède que les deux répressions prévues par les dispositions contestées relèvent de corps de règles qui protègent des intérêts sociaux distincts aux fins de sanctions de nature différente. Le grief tiré de la méconnaissance du principe de nécessité et de proportionnalité des peines doit donc être écarté.15. Par suite, le renvoi opéré, par le premier alinéa du paragraphe II de l'article 3 de la loi du 6 novembre 1962, au 3° du paragraphe I de l'article L. 113-1 du code électoral et la première phrase du sixième alinéa du paragraphe II du même article 3, qui ne méconnaissent aucun autre droit ou liberté que la Constitution garantit, doivent être déclarés conformes à la Constitution.
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CONSTEXT000038472165_5
|
CONSTEXT000038472165
| 5 |
1558a9bfa24bc01f
|
QPC
|
Conformité
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M. Joseph R. [Imposition au nom du donataire de la plus-value en report d'imposition]
|
2019-775
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2019-04-12
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cas de cession ultérieure des titres reçus dans un délai de dix-huit mois à compter de la donation ou en cas de cession des titres apportés à la société bénéficiaire dans les trois ans de l'apport, sauf réinvestissement du produit de la cession.6. En premier lieu, les dispositions contestées s'inscrivent dans un mécanisme de report d'imposition qui vise à favoriser les restructurations d'entreprises susceptibles d'intervenir par échanges de titres, en évitant que le contribuable soit contraint de vendre une partie des titres qu'il a reçus lors de l'échange pour acquitter la plus-value qu'il a réalisée, à cette occasion, sur les titres apportés. Afin de maintenir le bénéfice du report d'imposition, en cas de donation, le législateur a transféré la charge d'imposition du donateur au donataire. 7. En deuxième lieu, le premier alinéa du paragraphe II de l'article 150-0 B ter du code général des impôts prévoit que la plus-value réalisée à l'occasion de l'échange est constatée et déclarée par le contribuable et placée en report d'imposition. Au moment de la donation des titres reçus en échange de l'apport, le donataire mentionne, dans la proportion des titres transmis, le montant de la plus-value en report dans la déclaration de revenus. Ainsi, lorsqu'il accepte la donation, le donataire a une connaissance exacte du montant et des modalités de l'imposition des plus-values placées en report qui grève les titres qu'il reçoit.8. En dernier lieu, il n'est mis fin au report de
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M. Joseph R. [Imposition au nom du donataire de la plus-value en report d'imposition]
cas de cession ultérieure des titres reçus dans un délai de dix-huit mois à compter de la donation ou en cas de cession des titres apportés à la société bénéficiaire dans les trois ans de l'apport, sauf réinvestissement du produit de la cession.6. En premier lieu, les dispositions contestées s'inscrivent dans un mécanisme de report d'imposition qui vise à favoriser les restructurations d'entreprises susceptibles d'intervenir par échanges de titres, en évitant que le contribuable soit contraint de vendre une partie des titres qu'il a reçus lors de l'échange pour acquitter la plus-value qu'il a réalisée, à cette occasion, sur les titres apportés. Afin de maintenir le bénéfice du report d'imposition, en cas de donation, le législateur a transféré la charge d'imposition du donateur au donataire. 7. En deuxième lieu, le premier alinéa du paragraphe II de l'article 150-0 B ter du code général des impôts prévoit que la plus-value réalisée à l'occasion de l'échange est constatée et déclarée par le contribuable et placée en report d'imposition. Au moment de la donation des titres reçus en échange de l'apport, le donataire mentionne, dans la proportion des titres transmis, le montant de la plus-value en report dans la déclaration de revenus. Ainsi, lorsqu'il accepte la donation, le donataire a une connaissance exacte du montant et des modalités de l'imposition des plus-values placées en report qui grève les titres qu'il reçoit.8. En dernier lieu, il n'est mis fin au report de
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CONSTEXT000038602050_17
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CONSTEXT000038602050
| 17 |
023137a06ac3a58d
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QPC
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Conformité
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M. Nicolas S. [Cumul de poursuites et de sanctions en cas de dépassement du plafond de dépenses par un candidat à l'élection présidentielle]
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2019-783
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2019-05-17
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LE CONSEIL CONSTITUTIONNEL DÉCIDE :
Article 1er. - Sont conformes à la Constitution :- le renvoi opéré, par le premier alinéa du paragraphe II de l'article 3 de la loi n° 62-1292 du 6 novembre 1962 relative à l'élection du Président de la République au suffrage universel, dans sa rédaction résultant de la loi organique n° 2012-272 du 28 février 2012 relative au remboursement des dépenses de campagne de l'élection présidentielle, au 3° du paragraphe I de l'article L. 113-1 du code électoral ;- la première phrase du sixième alinéa du paragraphe II de l'article 3 de la même loi du 6 novembre 1962, dans la même rédaction.
Article 2. - Cette décision sera publiée au Journal officiel de la République française et notifiée dans les conditions prévues à l'article 23-11 de l'ordonnance du 7 novembre 1958 susvisée.
Jugé par le Conseil constitutionnel dans sa séance du 16 mai 2019, où siégeaient : M. Laurent FABIUS, Président, Mmes Dominique LOTTIN, Corinne LUQUIENS, Nicole MAESTRACCI, MM. Jacques MÉZARD, François PILLET et Michel PINAULT.
Rendu public le 17 mai 2019.
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M. Nicolas S. [Cumul de poursuites et de sanctions en cas de dépassement du plafond de dépenses par un candidat à l'élection présidentielle]
LE CONSEIL CONSTITUTIONNEL DÉCIDE :
Article 1er. - Sont conformes à la Constitution :- le renvoi opéré, par le premier alinéa du paragraphe II de l'article 3 de la loi n° 62-1292 du 6 novembre 1962 relative à l'élection du Président de la République au suffrage universel, dans sa rédaction résultant de la loi organique n° 2012-272 du 28 février 2012 relative au remboursement des dépenses de campagne de l'élection présidentielle, au 3° du paragraphe I de l'article L. 113-1 du code électoral ;- la première phrase du sixième alinéa du paragraphe II de l'article 3 de la même loi du 6 novembre 1962, dans la même rédaction.
Article 2. - Cette décision sera publiée au Journal officiel de la République française et notifiée dans les conditions prévues à l'article 23-11 de l'ordonnance du 7 novembre 1958 susvisée.
Jugé par le Conseil constitutionnel dans sa séance du 16 mai 2019, où siégeaient : M. Laurent FABIUS, Président, Mmes Dominique LOTTIN, Corinne LUQUIENS, Nicole MAESTRACCI, MM. Jacques MÉZARD, François PILLET et Michel PINAULT.
Rendu public le 17 mai 2019.
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CONSTEXT000038602049_0
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CONSTEXT000038602049
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cebc79065f7bc6fc
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QPC
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Conformité
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Mme Élise D. [Déductibilité de l'assiette de l'impôt de solidarité sur la fortune des dettes du redevable à l'égard de ses héritiers ou de personnes interposées]
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2019-782
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2019-05-17
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LE CONSEIL CONSTITUTIONNEL A ÉTÉ SAISI le 20 février 2019 par la Cour de cassation (chambre commerciale, arrêt n° 301 du même jour), dans les conditions prévues à l'article 61-1 de la Constitution, d'une question prioritaire de constitutionnalité. Cette question a été posée pour Mme Élise D. par Mes Pierre Le Roux et André Loup, avocats au barreau des Hauts-de-Seine. Elle a été enregistrée au secrétariat général du Conseil constitutionnel sous le n° 2019-782 QPC. Elle est relative à la conformité aux droits et libertés que la Constitution garantit de l'article 885 D du code général des impôts.
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Mme Élise D. [Déductibilité de l'assiette de l'impôt de solidarité sur la fortune des dettes du redevable à l'égard de ses héritiers ou de personnes interposées]
LE CONSEIL CONSTITUTIONNEL A ÉTÉ SAISI le 20 février 2019 par la Cour de cassation (chambre commerciale, arrêt n° 301 du même jour), dans les conditions prévues à l'article 61-1 de la Constitution, d'une question prioritaire de constitutionnalité. Cette question a été posée pour Mme Élise D. par Mes Pierre Le Roux et André Loup, avocats au barreau des Hauts-de-Seine. Elle a été enregistrée au secrétariat général du Conseil constitutionnel sous le n° 2019-782 QPC. Elle est relative à la conformité aux droits et libertés que la Constitution garantit de l'article 885 D du code général des impôts.
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CONSTEXT000038602049_1
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CONSTEXT000038602049
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b9ba6732c8f9f265
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QPC
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Conformité
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Mme Élise D. [Déductibilité de l'assiette de l'impôt de solidarité sur la fortune des dettes du redevable à l'égard de ses héritiers ou de personnes interposées]
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2019-782
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2019-05-17
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Au vu des textes suivants :- la Constitution ;- l'ordonnance n° 58-1067 du 7 novembre 1958 portant loi organique sur le Conseil constitutionnel ;- le code général des impôts ;- la loi n° 88-1149 du 23 décembre 1988 de finances pour 1989 ;- le règlement du 4 février 2010 sur la procédure suivie devant le Conseil constitutionnel pour les questions prioritaires de constitutionnalité ;Au vu des pièces suivantes :- les observations présentées pour la requérante par la SCP Piwnica et Molinié, avocat au Conseil d'État et à la Cour de cassation, enregistrées le 14 mars 2019 ;- les observations présentées par le Premier ministre, enregistrées le même jour ;- les secondes observations présentées pour la requérante par la SCP Piwnica et Molinié, enregistrées le 28 mars 2019 ;- les autres pièces produites et jointes au dossier ;Après avoir entendu Me Jacques Molinié, avocat au Conseil d'État et à la Cour de cassation, pour la requérante, et M. Philippe Blanc, désigné par le Premier ministre, à l'audience publique du 7 mai 2019 ;Et après avoir entendu le rapporteur ;LE CONSEIL CONSTITUTIONNEL S'EST FONDÉ SUR CE QUI SUIT:
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Mme Élise D. [Déductibilité de l'assiette de l'impôt de solidarité sur la fortune des dettes du redevable à l'égard de ses héritiers ou de personnes interposées]
Au vu des textes suivants :- la Constitution ;- l'ordonnance n° 58-1067 du 7 novembre 1958 portant loi organique sur le Conseil constitutionnel ;- le code général des impôts ;- la loi n° 88-1149 du 23 décembre 1988 de finances pour 1989 ;- le règlement du 4 février 2010 sur la procédure suivie devant le Conseil constitutionnel pour les questions prioritaires de constitutionnalité ;Au vu des pièces suivantes :- les observations présentées pour la requérante par la SCP Piwnica et Molinié, avocat au Conseil d'État et à la Cour de cassation, enregistrées le 14 mars 2019 ;- les observations présentées par le Premier ministre, enregistrées le même jour ;- les secondes observations présentées pour la requérante par la SCP Piwnica et Molinié, enregistrées le 28 mars 2019 ;- les autres pièces produites et jointes au dossier ;Après avoir entendu Me Jacques Molinié, avocat au Conseil d'État et à la Cour de cassation, pour la requérante, et M. Philippe Blanc, désigné par le Premier ministre, à l'audience publique du 7 mai 2019 ;Et après avoir entendu le rapporteur ;LE CONSEIL CONSTITUTIONNEL S'EST FONDÉ SUR CE QUI SUIT:
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CONSTEXT000038602049_2
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CONSTEXT000038602049
| 2 |
0b624f01df4db812
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QPC
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Conformité
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Mme Élise D. [Déductibilité de l'assiette de l'impôt de solidarité sur la fortune des dettes du redevable à l'égard de ses héritiers ou de personnes interposées]
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2019-782
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2019-05-17
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1. La question prioritaire de constitutionnalité doit être considérée comme portant sur les dispositions applicables au litige à l'occasion duquel elle a été posée. Dès lors, le Conseil constitutionnel est saisi de l'article 885 D du code général des impôts, dans sa rédaction résultant de la loi du 23 décembre 1988 mentionnée ci-dessus.2. L'article 885 D du code général des impôts, dans cette rédaction, prévoit :« L'impôt de solidarité sur la fortune est assis et les bases d'imposition déclarées selon les mêmes règles et sous les mêmes sanctions que les droits de mutation par décès sous réserve des dispositions particulières du présent chapitre ».
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Mme Élise D. [Déductibilité de l'assiette de l'impôt de solidarité sur la fortune des dettes du redevable à l'égard de ses héritiers ou de personnes interposées]
1. La question prioritaire de constitutionnalité doit être considérée comme portant sur les dispositions applicables au litige à l'occasion duquel elle a été posée. Dès lors, le Conseil constitutionnel est saisi de l'article 885 D du code général des impôts, dans sa rédaction résultant de la loi du 23 décembre 1988 mentionnée ci-dessus.2. L'article 885 D du code général des impôts, dans cette rédaction, prévoit :« L'impôt de solidarité sur la fortune est assis et les bases d'imposition déclarées selon les mêmes règles et sous les mêmes sanctions que les droits de mutation par décès sous réserve des dispositions particulières du présent chapitre ».
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CONSTEXT000038472165_6
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CONSTEXT000038472165
| 6 |
fadf3834d0da351a
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QPC
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Conformité
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M. Joseph R. [Imposition au nom du donataire de la plus-value en report d'imposition]
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2019-775
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2019-04-12
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donataire a une connaissance exacte du montant et des modalités de l'imposition des plus-values placées en report qui grève les titres qu'il reçoit.8. En dernier lieu, il n'est mis fin au report de l'imposition de ces plus-values que lorsque le donataire cède les titres qui lui ont été donnés ou lorsque la société bénéficiaire, qu'il contrôle, cède les titres apportés. Au surplus, la plus-value placée en report d'imposition est définitivement exonérée lorsque le donataire cède les titres au-delà d'un délai de dix-huit mois. Il en est de même en cas de cession des titres apportés, par la société, au-delà d'un délai de trois ans ou lorsque le produit de la cession fait l'objet d'un réinvestissement. 9. Par conséquent, le législateur s'est fondé sur des critères objectifs et rationnels en rapport avec l'objet de la loi et n'a pas méconnu l'exigence de prise en compte des capacités contributives. Il résulte de ce qui précède que le grief tiré de la méconnaissance du principe d'égalité devant les charges publiques doit être écarté.10. Les mots « au nom du donataire » figurant au deuxième alinéa du paragraphe II de l'article 150-0 B ter du code général des impôts, qui ne méconnaissent aucun autre droit ou liberté que la Constitution garantit, doivent être déclarés conformes à la Constitution.
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M. Joseph R. [Imposition au nom du donataire de la plus-value en report d'imposition]
donataire a une connaissance exacte du montant et des modalités de l'imposition des plus-values placées en report qui grève les titres qu'il reçoit.8. En dernier lieu, il n'est mis fin au report de l'imposition de ces plus-values que lorsque le donataire cède les titres qui lui ont été donnés ou lorsque la société bénéficiaire, qu'il contrôle, cède les titres apportés. Au surplus, la plus-value placée en report d'imposition est définitivement exonérée lorsque le donataire cède les titres au-delà d'un délai de dix-huit mois. Il en est de même en cas de cession des titres apportés, par la société, au-delà d'un délai de trois ans ou lorsque le produit de la cession fait l'objet d'un réinvestissement. 9. Par conséquent, le législateur s'est fondé sur des critères objectifs et rationnels en rapport avec l'objet de la loi et n'a pas méconnu l'exigence de prise en compte des capacités contributives. Il résulte de ce qui précède que le grief tiré de la méconnaissance du principe d'égalité devant les charges publiques doit être écarté.10. Les mots « au nom du donataire » figurant au deuxième alinéa du paragraphe II de l'article 150-0 B ter du code général des impôts, qui ne méconnaissent aucun autre droit ou liberté que la Constitution garantit, doivent être déclarés conformes à la Constitution.
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CONSTEXT000038602049_3
|
CONSTEXT000038602049
| 3 |
11e85ea7c1a543e1
|
QPC
|
Conformité
|
Mme Élise D. [Déductibilité de l'assiette de l'impôt de solidarité sur la fortune des dettes du redevable à l'égard de ses héritiers ou de personnes interposées]
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2019-782
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2019-05-17
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3. La requérante soutient que cet article serait inconstitutionnel en ce qu'il rend applicable à l'impôt de solidarité sur la fortune le 2° de l'article 773 du code général des impôts, relatif aux droits de succession, et a ainsi pour effet d'interdire à un assujetti à l'impôt de solidarité sur la fortune de déduire de l'assiette de cet impôt les dettes qu'il a contractées auprès d'un de ses héritiers. 4. Ce renvoi au 2° de l'article 773 contreviendrait tout d'abord au principe d'égalité devant la loi. En effet, il introduirait une différence de traitement entre les redevables de cet impôt selon que le redevable a contracté une dette auprès d'un membre de sa famille ou auprès d'un tiers. Or, cette différence de traitement serait injustifiée dès lors que l'article 773 aurait pour seul objet d'éviter les fraudes aux droits de succession. Par ailleurs, à supposer même que le législateur ait entendu poursuivre un objectif de lutte contre la fraude fiscale dans le cadre de l'impôt de solidarité sur la fortune, cette différence de traitement ne serait pas cohérente avec cet objectif dès lors que le risque de fraude serait identique, que le prêteur soit un héritier ou une autre personne proche de l'emprunteur. Enfin, cette différence de traitement serait dépourvue de toute justification lorsque le prêt est consenti par un héritier lui-même soumis à l'impôt de solidarité sur la fortune et qui doit à ce titre inclure sa créance dans sa déclaration de patrimoine.5. Le renvoi opéré par
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Mme Élise D. [Déductibilité de l'assiette de l'impôt de solidarité sur la fortune des dettes du redevable à l'égard de ses héritiers ou de personnes interposées]
3. La requérante soutient que cet article serait inconstitutionnel en ce qu'il rend applicable à l'impôt de solidarité sur la fortune le 2° de l'article 773 du code général des impôts, relatif aux droits de succession, et a ainsi pour effet d'interdire à un assujetti à l'impôt de solidarité sur la fortune de déduire de l'assiette de cet impôt les dettes qu'il a contractées auprès d'un de ses héritiers. 4. Ce renvoi au 2° de l'article 773 contreviendrait tout d'abord au principe d'égalité devant la loi. En effet, il introduirait une différence de traitement entre les redevables de cet impôt selon que le redevable a contracté une dette auprès d'un membre de sa famille ou auprès d'un tiers. Or, cette différence de traitement serait injustifiée dès lors que l'article 773 aurait pour seul objet d'éviter les fraudes aux droits de succession. Par ailleurs, à supposer même que le législateur ait entendu poursuivre un objectif de lutte contre la fraude fiscale dans le cadre de l'impôt de solidarité sur la fortune, cette différence de traitement ne serait pas cohérente avec cet objectif dès lors que le risque de fraude serait identique, que le prêteur soit un héritier ou une autre personne proche de l'emprunteur. Enfin, cette différence de traitement serait dépourvue de toute justification lorsque le prêt est consenti par un héritier lui-même soumis à l'impôt de solidarité sur la fortune et qui doit à ce titre inclure sa créance dans sa déclaration de patrimoine.5. Le renvoi opéré par
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CONSTEXT000038602049_4
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CONSTEXT000038602049
| 4 |
ecd783e068af02d2
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QPC
|
Conformité
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Mme Élise D. [Déductibilité de l'assiette de l'impôt de solidarité sur la fortune des dettes du redevable à l'égard de ses héritiers ou de personnes interposées]
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2019-782
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2019-05-17
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lorsque le prêt est consenti par un héritier lui-même soumis à l'impôt de solidarité sur la fortune et qui doit à ce titre inclure sa créance dans sa déclaration de patrimoine.5. Le renvoi opéré par l'article 885 D au 2° de l'article 773 violerait également le principe d'égalité devant les charges publiques. Pour les raisons exposées précédemment, la différence de traitement contestée ne serait pas non plus fondée sur des critères objectifs et rationnels. Par ailleurs, ce renvoi aurait pour conséquence une situation dans laquelle le même prêt serait considéré, pour l'emprunteur, comme une dette fictive non déductible de son patrimoine et, pour le prêteur, comme une créance réelle imposable. Il en résulterait une double imposition contraire au principe d'égalité devant les charges publiques. La requérante soutient également que ce dispositif ferait peser une charge excessive sur le contribuable qui devrait intégrer dans l'assiette de l'impôt de solidarité sur la fortune un bien sans pouvoir déduire de cette assiette la dette effectivement contractée pour l'achat de ce bien. 6. Enfin, pour ces mêmes raisons, la requérante soutient que les dispositions en cause méconnaîtraient le droit de propriété.7. Par conséquent, la question prioritaire de constitutionnalité porte sur le renvoi opéré par l'article 885 D du code général des impôts au 2° de l'article 773 du même code.8. Selon l'article 6 de la Déclaration des droits de l'homme et du citoyen de 1789, la loi « doit être la même
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Mme Élise D. [Déductibilité de l'assiette de l'impôt de solidarité sur la fortune des dettes du redevable à l'égard de ses héritiers ou de personnes interposées]
lorsque le prêt est consenti par un héritier lui-même soumis à l'impôt de solidarité sur la fortune et qui doit à ce titre inclure sa créance dans sa déclaration de patrimoine.5. Le renvoi opéré par l'article 885 D au 2° de l'article 773 violerait également le principe d'égalité devant les charges publiques. Pour les raisons exposées précédemment, la différence de traitement contestée ne serait pas non plus fondée sur des critères objectifs et rationnels. Par ailleurs, ce renvoi aurait pour conséquence une situation dans laquelle le même prêt serait considéré, pour l'emprunteur, comme une dette fictive non déductible de son patrimoine et, pour le prêteur, comme une créance réelle imposable. Il en résulterait une double imposition contraire au principe d'égalité devant les charges publiques. La requérante soutient également que ce dispositif ferait peser une charge excessive sur le contribuable qui devrait intégrer dans l'assiette de l'impôt de solidarité sur la fortune un bien sans pouvoir déduire de cette assiette la dette effectivement contractée pour l'achat de ce bien. 6. Enfin, pour ces mêmes raisons, la requérante soutient que les dispositions en cause méconnaîtraient le droit de propriété.7. Par conséquent, la question prioritaire de constitutionnalité porte sur le renvoi opéré par l'article 885 D du code général des impôts au 2° de l'article 773 du même code.8. Selon l'article 6 de la Déclaration des droits de l'homme et du citoyen de 1789, la loi « doit être la même
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CONSTEXT000038602049_5
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CONSTEXT000038602049
| 5 |
7ca652e079421e59
|
QPC
|
Conformité
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Mme Élise D. [Déductibilité de l'assiette de l'impôt de solidarité sur la fortune des dettes du redevable à l'égard de ses héritiers ou de personnes interposées]
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2019-782
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2019-05-17
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opéré par l'article 885 D du code général des impôts au 2° de l'article 773 du même code.8. Selon l'article 6 de la Déclaration des droits de l'homme et du citoyen de 1789, la loi « doit être la même pour tous, soit qu'elle protège, soit qu'elle punisse ». Le principe d'égalité ne s'oppose ni à ce que le législateur règle de façon différente des situations différentes, ni à ce qu'il déroge à l'égalité pour des raisons d'intérêt général, pourvu que, dans l'un et l'autre cas, la différence de traitement qui en résulte soit en rapport direct avec l'objet de la loi qui l'établit.9. Selon l'article 13 de la Déclaration de 1789 : « Pour l'entretien de la force publique, et pour les dépenses d'administration, une contribution commune est indispensable : elle doit être également répartie entre tous les citoyens, en raison de leurs facultés ». Cette exigence ne serait pas respectée si l'impôt revêtait un caractère confiscatoire ou faisait peser sur une catégorie de contribuables une charge excessive au regard de leurs facultés contributives. En vertu de l'article 34 de la Constitution, il appartient au législateur de déterminer, dans le respect des principes constitutionnels et compte tenu des caractéristiques de chaque impôt, les règles selon lesquelles doivent être appréciées les facultés contributives. En particulier, pour assurer le respect du principe d'égalité, il doit fonder son appréciation sur des critères objectifs et rationnels en fonction des buts qu'il se propose. Cette
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Mme Élise D. [Déductibilité de l'assiette de l'impôt de solidarité sur la fortune des dettes du redevable à l'égard de ses héritiers ou de personnes interposées]
opéré par l'article 885 D du code général des impôts au 2° de l'article 773 du même code.8. Selon l'article 6 de la Déclaration des droits de l'homme et du citoyen de 1789, la loi « doit être la même pour tous, soit qu'elle protège, soit qu'elle punisse ». Le principe d'égalité ne s'oppose ni à ce que le législateur règle de façon différente des situations différentes, ni à ce qu'il déroge à l'égalité pour des raisons d'intérêt général, pourvu que, dans l'un et l'autre cas, la différence de traitement qui en résulte soit en rapport direct avec l'objet de la loi qui l'établit.9. Selon l'article 13 de la Déclaration de 1789 : « Pour l'entretien de la force publique, et pour les dépenses d'administration, une contribution commune est indispensable : elle doit être également répartie entre tous les citoyens, en raison de leurs facultés ». Cette exigence ne serait pas respectée si l'impôt revêtait un caractère confiscatoire ou faisait peser sur une catégorie de contribuables une charge excessive au regard de leurs facultés contributives. En vertu de l'article 34 de la Constitution, il appartient au législateur de déterminer, dans le respect des principes constitutionnels et compte tenu des caractéristiques de chaque impôt, les règles selon lesquelles doivent être appréciées les facultés contributives. En particulier, pour assurer le respect du principe d'égalité, il doit fonder son appréciation sur des critères objectifs et rationnels en fonction des buts qu'il se propose. Cette
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CONSTEXT000038602049_6
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CONSTEXT000038602049
| 6 |
89e341ce240c5fb1
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QPC
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Conformité
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Mme Élise D. [Déductibilité de l'assiette de l'impôt de solidarité sur la fortune des dettes du redevable à l'égard de ses héritiers ou de personnes interposées]
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2019-782
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2019-05-17
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contributives. En particulier, pour assurer le respect du principe d'égalité, il doit fonder son appréciation sur des critères objectifs et rationnels en fonction des buts qu'il se propose. Cette appréciation ne doit cependant pas entraîner de rupture caractérisée de l'égalité devant les charges publiques.10. Par exception au principe, fixé à l'article 768 du code général des impôts, suivant lequel les dettes du défunt au jour de l'ouverture de la succession sont déductibles de l'actif successoral pour l'établissement des droits de mutation à titre gratuit, le premier alinéa du 2° de l'article 773 du même code exclut la déduction des dettes contractées par le défunt à l'égard de ses héritiers ou de personnes interposées. Le second alinéa de ce 2° prévoit un tempérament à cette exclusion, en permettant aux héritiers et aux personnes interposées de prouver la sincérité et l'existence de la dette à condition que celle-ci ait fait l'objet d'un acte authentique ou d'un acte sous seing privé ayant date certaine avant l'ouverture de la succession. 11. L'article 885 D du code général des impôts prévoit que l'impôt de solidarité sur la fortune obéit aux mêmes règles que les droits de mutation par décès. Il résulte ainsi du renvoi opéré par cet article au 2° de l'article 773 du même code que les dettes contractées par le redevable de l'impôt de solidarité sur la fortune à l'égard de ses héritiers ou de personnes interposées ne peuvent être déduites de l'assiette de cet impôt, sauf si
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Mme Élise D. [Déductibilité de l'assiette de l'impôt de solidarité sur la fortune des dettes du redevable à l'égard de ses héritiers ou de personnes interposées]
contributives. En particulier, pour assurer le respect du principe d'égalité, il doit fonder son appréciation sur des critères objectifs et rationnels en fonction des buts qu'il se propose. Cette appréciation ne doit cependant pas entraîner de rupture caractérisée de l'égalité devant les charges publiques.10. Par exception au principe, fixé à l'article 768 du code général des impôts, suivant lequel les dettes du défunt au jour de l'ouverture de la succession sont déductibles de l'actif successoral pour l'établissement des droits de mutation à titre gratuit, le premier alinéa du 2° de l'article 773 du même code exclut la déduction des dettes contractées par le défunt à l'égard de ses héritiers ou de personnes interposées. Le second alinéa de ce 2° prévoit un tempérament à cette exclusion, en permettant aux héritiers et aux personnes interposées de prouver la sincérité et l'existence de la dette à condition que celle-ci ait fait l'objet d'un acte authentique ou d'un acte sous seing privé ayant date certaine avant l'ouverture de la succession. 11. L'article 885 D du code général des impôts prévoit que l'impôt de solidarité sur la fortune obéit aux mêmes règles que les droits de mutation par décès. Il résulte ainsi du renvoi opéré par cet article au 2° de l'article 773 du même code que les dettes contractées par le redevable de l'impôt de solidarité sur la fortune à l'égard de ses héritiers ou de personnes interposées ne peuvent être déduites de l'assiette de cet impôt, sauf si
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CONSTEXT000038602049_7
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CONSTEXT000038602049
| 7 |
3cf391e25212aded
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QPC
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Conformité
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Mme Élise D. [Déductibilité de l'assiette de l'impôt de solidarité sur la fortune des dettes du redevable à l'égard de ses héritiers ou de personnes interposées]
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2019-782
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2019-05-17
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que les dettes contractées par le redevable de l'impôt de solidarité sur la fortune à l'égard de ses héritiers ou de personnes interposées ne peuvent être déduites de l'assiette de cet impôt, sauf si la dette a fait l'objet d'un acte authentique ou d'un acte sous seing privé ayant date certaine avant la date du fait générateur de l'impôt. 12. En premier lieu, les dispositions contestées instituent une différence de traitement entre les redevables de l'impôt de solidarité sur la fortune selon que la dette qu'ils ont contractée l'a été à l'égard d'un de leurs héritiers ou d'une personne interposée, d'une part, ou à l'égard d'un tiers, d'autre part. Toutefois, en adoptant ces dispositions, le législateur a entendu permettre le contrôle de la sincérité de ces dettes et ainsi réduire les risques de minoration de l'impôt de solidarité sur la fortune qu'il a jugés plus élevés dans le premier cas compte tenu des liens unissant une personne et ses héritiers. Le législateur a donc poursuivi l'objectif de valeur constitutionnelle de lutte contre la fraude et l'évasion fiscales. 13. Par conséquent, et dès lors qu'un tel risque de minoration de l'impôt demeure y compris lorsque les héritiers auprès desquels l'emprunt a été contracté sont eux-mêmes redevables de l'impôt de solidarité sur la fortune, la différence de traitement opérée par les dispositions contestées repose sur des critères objectifs et rationnels en rapport direct avec l'objet de la loi.14. En second lieu, d'une part, les
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Mme Élise D. [Déductibilité de l'assiette de l'impôt de solidarité sur la fortune des dettes du redevable à l'égard de ses héritiers ou de personnes interposées]
que les dettes contractées par le redevable de l'impôt de solidarité sur la fortune à l'égard de ses héritiers ou de personnes interposées ne peuvent être déduites de l'assiette de cet impôt, sauf si la dette a fait l'objet d'un acte authentique ou d'un acte sous seing privé ayant date certaine avant la date du fait générateur de l'impôt. 12. En premier lieu, les dispositions contestées instituent une différence de traitement entre les redevables de l'impôt de solidarité sur la fortune selon que la dette qu'ils ont contractée l'a été à l'égard d'un de leurs héritiers ou d'une personne interposée, d'une part, ou à l'égard d'un tiers, d'autre part. Toutefois, en adoptant ces dispositions, le législateur a entendu permettre le contrôle de la sincérité de ces dettes et ainsi réduire les risques de minoration de l'impôt de solidarité sur la fortune qu'il a jugés plus élevés dans le premier cas compte tenu des liens unissant une personne et ses héritiers. Le législateur a donc poursuivi l'objectif de valeur constitutionnelle de lutte contre la fraude et l'évasion fiscales. 13. Par conséquent, et dès lors qu'un tel risque de minoration de l'impôt demeure y compris lorsque les héritiers auprès desquels l'emprunt a été contracté sont eux-mêmes redevables de l'impôt de solidarité sur la fortune, la différence de traitement opérée par les dispositions contestées repose sur des critères objectifs et rationnels en rapport direct avec l'objet de la loi.14. En second lieu, d'une part, les
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CONSTEXT000038472153_4
|
CONSTEXT000038472153
| 4 |
c9495e9a8648f35b
|
QPC
|
Conformité
|
Société ODDO BHF [Exclusion de l'assiette des cotisations sociales des actions attribuées gratuitement ]
|
2018-767
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2019-02-22
|
1. L'article L. 242-1 du code de la sécurité sociale, dans sa rédaction résultant de la loi du 20 décembre 2010 mentionnée ci-dessus prévoit :« Pour le calcul des cotisations des assurances sociales, des accidents du travail et des allocations familiales, sont considérées comme rémunérations toutes les sommes versées aux travailleurs en contrepartie ou à l'occasion du travail, notamment les salaires ou gains, les indemnités de congés payés, le montant des retenues pour cotisations ouvrières, les indemnités, primes, gratifications et tous autres avantages en argent, les avantages en nature, ainsi que les sommes perçues directement ou par l'entremise d'un tiers à titre de pourboire. La compensation salariale d'une perte de rémunération induite par une mesure de réduction du temps de travail est également considérée comme une rémunération, qu'elle prenne la forme, notamment, d'un complément différentiel de salaire ou d'une hausse du taux de salaire horaire. « Lorsque le bénéficiaire d'une option accordée dans les conditions prévues aux articles L. 225-177 à L. 225-186 du code de commerce ne remplit pas les conditions prévues au I de l'article 163 bis C du code général des impôts, est considéré comme une rémunération le montant déterminé conformément au II du même article. Toutefois l'avantage correspondant à la différence définie au II de l'article 80 bis du code général des impôts est considéré comme une rémunération lors de la levée de l'option. « Il ne peut être opéré sur la
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Société ODDO BHF [Exclusion de l'assiette des cotisations sociales des actions attribuées gratuitement ]
1. L'article L. 242-1 du code de la sécurité sociale, dans sa rédaction résultant de la loi du 20 décembre 2010 mentionnée ci-dessus prévoit :« Pour le calcul des cotisations des assurances sociales, des accidents du travail et des allocations familiales, sont considérées comme rémunérations toutes les sommes versées aux travailleurs en contrepartie ou à l'occasion du travail, notamment les salaires ou gains, les indemnités de congés payés, le montant des retenues pour cotisations ouvrières, les indemnités, primes, gratifications et tous autres avantages en argent, les avantages en nature, ainsi que les sommes perçues directement ou par l'entremise d'un tiers à titre de pourboire. La compensation salariale d'une perte de rémunération induite par une mesure de réduction du temps de travail est également considérée comme une rémunération, qu'elle prenne la forme, notamment, d'un complément différentiel de salaire ou d'une hausse du taux de salaire horaire. « Lorsque le bénéficiaire d'une option accordée dans les conditions prévues aux articles L. 225-177 à L. 225-186 du code de commerce ne remplit pas les conditions prévues au I de l'article 163 bis C du code général des impôts, est considéré comme une rémunération le montant déterminé conformément au II du même article. Toutefois l'avantage correspondant à la différence définie au II de l'article 80 bis du code général des impôts est considéré comme une rémunération lors de la levée de l'option. « Il ne peut être opéré sur la
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CONSTEXT000038602049_8
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CONSTEXT000038602049
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63ebed371cc34515
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QPC
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Conformité
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Mme Élise D. [Déductibilité de l'assiette de l'impôt de solidarité sur la fortune des dettes du redevable à l'égard de ses héritiers ou de personnes interposées]
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2019-782
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2019-05-17
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la différence de traitement opérée par les dispositions contestées repose sur des critères objectifs et rationnels en rapport direct avec l'objet de la loi.14. En second lieu, d'une part, les dispositions contestées n'ont pas pour objet d'interdire à un redevable de l'impôt de solidarité sur la fortune, qui souhaite déduire de son patrimoine la dette contractée auprès d'un héritier ou d'une personne interposée, d'en prouver l'existence et la sincérité. Elles ont seulement pour objet d'exiger à cette fin qu'elle ait fait l'objet d'un acte authentique ou d'un acte sous seing privé ayant date certaine. 15. D'autre part, dans l'hypothèse où cette formalité n'a pas été respectée et où l'héritier ou la personne interposée ayant consenti le prêt sont eux-mêmes redevables de l'impôt de solidarité sur la fortune, les dispositions contestées n'ont pas pour effet d'imposer deux fois une même personne sur un même patrimoine. 16. Il résulte de ce qui précède que le grief tiré de la méconnaissance de l'égalité devant les charges publiques doit être écarté. Il en est de même du grief tiré de la méconnaissance du principe d'égalité devant la loi. 17. Le renvoi opéré par l'article 885 D du code général des impôts au 2° de l'article 773 du même code, qui ne méconnaît ni le droit de propriété, ni aucun autre droit ou liberté que la Constitution garantit, doit être déclaré conforme à la Constitution.
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Mme Élise D. [Déductibilité de l'assiette de l'impôt de solidarité sur la fortune des dettes du redevable à l'égard de ses héritiers ou de personnes interposées]
la différence de traitement opérée par les dispositions contestées repose sur des critères objectifs et rationnels en rapport direct avec l'objet de la loi.14. En second lieu, d'une part, les dispositions contestées n'ont pas pour objet d'interdire à un redevable de l'impôt de solidarité sur la fortune, qui souhaite déduire de son patrimoine la dette contractée auprès d'un héritier ou d'une personne interposée, d'en prouver l'existence et la sincérité. Elles ont seulement pour objet d'exiger à cette fin qu'elle ait fait l'objet d'un acte authentique ou d'un acte sous seing privé ayant date certaine. 15. D'autre part, dans l'hypothèse où cette formalité n'a pas été respectée et où l'héritier ou la personne interposée ayant consenti le prêt sont eux-mêmes redevables de l'impôt de solidarité sur la fortune, les dispositions contestées n'ont pas pour effet d'imposer deux fois une même personne sur un même patrimoine. 16. Il résulte de ce qui précède que le grief tiré de la méconnaissance de l'égalité devant les charges publiques doit être écarté. Il en est de même du grief tiré de la méconnaissance du principe d'égalité devant la loi. 17. Le renvoi opéré par l'article 885 D du code général des impôts au 2° de l'article 773 du même code, qui ne méconnaît ni le droit de propriété, ni aucun autre droit ou liberté que la Constitution garantit, doit être déclaré conforme à la Constitution.
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CONSTEXT000038602049_9
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CONSTEXT000038602049
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f2f5996616f7a656
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QPC
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Conformité
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Mme Élise D. [Déductibilité de l'assiette de l'impôt de solidarité sur la fortune des dettes du redevable à l'égard de ses héritiers ou de personnes interposées]
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2019-782
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2019-05-17
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LE CONSEIL CONSTITUTIONNEL DÉCIDE :
Article 1er. - Le renvoi opéré par l'article 885 D du code général des impôts, dans sa rédaction résultant de la loi n° 88-1149 du 23 décembre 1988 de finances pour 1989, au 2° de l'article 773 du même code est conforme à la Constitution.
Article 2. - Cette décision sera publiée au Journal officiel de la République française et notifiée dans les conditions prévues à l'article 23-11 de l'ordonnance du 7 novembre 1958 susvisée.
Jugé par le Conseil constitutionnel dans sa séance du 16 mai 2019, où siégeaient : M. Alain JUPPÉ exerçant les fonctions de Président, Mmes Dominique LOTTIN, Corinne LUQUIENS, Nicole MAESTRACCI, MM. Jacques MÉZARD, François PILLET et Michel PINAULT.
Rendu public le 17 mai 2019.
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Mme Élise D. [Déductibilité de l'assiette de l'impôt de solidarité sur la fortune des dettes du redevable à l'égard de ses héritiers ou de personnes interposées]
LE CONSEIL CONSTITUTIONNEL DÉCIDE :
Article 1er. - Le renvoi opéré par l'article 885 D du code général des impôts, dans sa rédaction résultant de la loi n° 88-1149 du 23 décembre 1988 de finances pour 1989, au 2° de l'article 773 du même code est conforme à la Constitution.
Article 2. - Cette décision sera publiée au Journal officiel de la République française et notifiée dans les conditions prévues à l'article 23-11 de l'ordonnance du 7 novembre 1958 susvisée.
Jugé par le Conseil constitutionnel dans sa séance du 16 mai 2019, où siégeaient : M. Alain JUPPÉ exerçant les fonctions de Président, Mmes Dominique LOTTIN, Corinne LUQUIENS, Nicole MAESTRACCI, MM. Jacques MÉZARD, François PILLET et Michel PINAULT.
Rendu public le 17 mai 2019.
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CONSTEXT000038602053_0
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CONSTEXT000038602053
| 0 |
8e3aa1b7f907061f
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QPC
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Non conformité totale - effet différé - réserve transitoire
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Association Sea Shepherd [Délai entre la citation et la comparution devant un tribunal correctionnel en matière d'infractions de presse]
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2019-786
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2019-05-24
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LE CONSEIL CONSTITUTIONNEL A ÉTÉ SAISI le 6 mars 2019 par la Cour de cassation (chambre criminelle, arrêt n° 450 du 5 mars 2019), dans les conditions prévues à l'article 61-1 de la Constitution, d'une question prioritaire de constitutionnalité. Cette question a été posée pour l'association Sea Shepherd par la SCP Spinosi et Sureau, avocat au Conseil d'État et à la Cour de cassation. Elle a été enregistrée au secrétariat général du Conseil constitutionnel sous le n° 2019-786 QPC. Elle est relative à la conformité aux droits et libertés que la Constitution garantit de l'article 54 de la loi du 29 juillet 1881 sur la liberté de la presse.
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Association Sea Shepherd [Délai entre la citation et la comparution devant un tribunal correctionnel en matière d'infractions de presse]
LE CONSEIL CONSTITUTIONNEL A ÉTÉ SAISI le 6 mars 2019 par la Cour de cassation (chambre criminelle, arrêt n° 450 du 5 mars 2019), dans les conditions prévues à l'article 61-1 de la Constitution, d'une question prioritaire de constitutionnalité. Cette question a été posée pour l'association Sea Shepherd par la SCP Spinosi et Sureau, avocat au Conseil d'État et à la Cour de cassation. Elle a été enregistrée au secrétariat général du Conseil constitutionnel sous le n° 2019-786 QPC. Elle est relative à la conformité aux droits et libertés que la Constitution garantit de l'article 54 de la loi du 29 juillet 1881 sur la liberté de la presse.
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CONSTEXT000038602053_1
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CONSTEXT000038602053
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0584ff5037e5a5bf
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QPC
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Non conformité totale - effet différé - réserve transitoire
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Association Sea Shepherd [Délai entre la citation et la comparution devant un tribunal correctionnel en matière d'infractions de presse]
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2019-786
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2019-05-24
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Au vu des textes suivants :- la Constitution ;- l'ordonnance n° 58-1067 du 7 novembre 1958 portant loi organique sur le Conseil constitutionnel ;- le code de procédure pénale ;- la loi du 29 juillet 1881 sur la liberté de la presse ;- l'ordonnance n° 45-2090 du 13 septembre 1945 modifiant la loi du 29 juillet 1881 sur la liberté de la presse ;- le règlement du 4 février 2010 sur la procédure suivie devant le Conseil constitutionnel pour les questions prioritaires de constitutionnalité ;Au vu des pièces suivantes :- les observations présentées pour l'association requérante par la SCP Spinosi et Sureau, enregistrées le 28 mars 2019 ; - les observations présentées pour l'association Océan Prévention Réunion, M. Amaury L. et M. Jean-François N., parties au litige à l'occasion duquel la question prioritaire de constitutionnalité a été posée, par la SCP Boutet - Hourdeaux, avocat au Conseil d'État et à la Cour de cassation, enregistrées le même jour ;- les observations présentées par le Premier ministre, enregistrées le même jour ;- les secondes observations présentées pour l'association requérante par la SCP Spinosi et Sureau, enregistrées le 12 avril 2019 ; - les autres pièces produites et jointes au dossier ;Après avoir entendu Me Patrice Spinosi, avocat au Conseil d'État et à la Cour de cassation, pour l'association requérante, Me Clémence Hourdeaux, avocate au Conseil d'État et à la Cour de cassation, pour les parties au litige à l'occasion duquel la question prioritaire de
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Association Sea Shepherd [Délai entre la citation et la comparution devant un tribunal correctionnel en matière d'infractions de presse]
Au vu des textes suivants :- la Constitution ;- l'ordonnance n° 58-1067 du 7 novembre 1958 portant loi organique sur le Conseil constitutionnel ;- le code de procédure pénale ;- la loi du 29 juillet 1881 sur la liberté de la presse ;- l'ordonnance n° 45-2090 du 13 septembre 1945 modifiant la loi du 29 juillet 1881 sur la liberté de la presse ;- le règlement du 4 février 2010 sur la procédure suivie devant le Conseil constitutionnel pour les questions prioritaires de constitutionnalité ;Au vu des pièces suivantes :- les observations présentées pour l'association requérante par la SCP Spinosi et Sureau, enregistrées le 28 mars 2019 ; - les observations présentées pour l'association Océan Prévention Réunion, M. Amaury L. et M. Jean-François N., parties au litige à l'occasion duquel la question prioritaire de constitutionnalité a été posée, par la SCP Boutet - Hourdeaux, avocat au Conseil d'État et à la Cour de cassation, enregistrées le même jour ;- les observations présentées par le Premier ministre, enregistrées le même jour ;- les secondes observations présentées pour l'association requérante par la SCP Spinosi et Sureau, enregistrées le 12 avril 2019 ; - les autres pièces produites et jointes au dossier ;Après avoir entendu Me Patrice Spinosi, avocat au Conseil d'État et à la Cour de cassation, pour l'association requérante, Me Clémence Hourdeaux, avocate au Conseil d'État et à la Cour de cassation, pour les parties au litige à l'occasion duquel la question prioritaire de
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CONSTEXT000038602053_2
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CONSTEXT000038602053
| 2 |
f2caaf99c800ba46
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QPC
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Non conformité totale - effet différé - réserve transitoire
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Association Sea Shepherd [Délai entre la citation et la comparution devant un tribunal correctionnel en matière d'infractions de presse]
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2019-786
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2019-05-24
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Cour de cassation, pour l'association requérante, Me Clémence Hourdeaux, avocate au Conseil d'État et à la Cour de cassation, pour les parties au litige à l'occasion duquel la question prioritaire de constitutionnalité a été posée, et M. Philippe Blanc, désigné par le Premier ministre, à l'audience publique du 14 mai 2019 ;Et après avoir entendu le rapporteur ; LE CONSEIL CONSTITUTIONNEL S'EST FONDÉ SUR CE QUI SUIT :
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Association Sea Shepherd [Délai entre la citation et la comparution devant un tribunal correctionnel en matière d'infractions de presse]
Cour de cassation, pour l'association requérante, Me Clémence Hourdeaux, avocate au Conseil d'État et à la Cour de cassation, pour les parties au litige à l'occasion duquel la question prioritaire de constitutionnalité a été posée, et M. Philippe Blanc, désigné par le Premier ministre, à l'audience publique du 14 mai 2019 ;Et après avoir entendu le rapporteur ; LE CONSEIL CONSTITUTIONNEL S'EST FONDÉ SUR CE QUI SUIT :
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CONSTEXT000038472150_1
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CONSTEXT000038472150
| 1 |
c35ce24c371caf52
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QPC
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Non conformité totale
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M. Paulo M. [Droit de communication aux agents des douanes des données de connexion]
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2018-764
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2019-02-15
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Au vu des textes suivants :- la Constitution ;- l'ordonnance n° 58-1067 du 7 novembre 1958 portant loi organique sur le Conseil constitutionnel ;- le code des douanes ;- le code des postes et des communications électroniques ;- la loi n° 2004-575 du 21 juin 2004 pour la confiance dans l'économie numérique ;- la loi n° 2004-1485 du 30 décembre 2004 de finances rectificative pour 2004 ;- la loi n° 2016-1918 du 29 décembre 2016 de finances rectificative pour 2016 ;- la loi n° 2018-898 du 23 octobre 2018 relative à la lutte contre la fraude ;- les décisions du Conseil constitutionnel nos 2011-214 QPC du 27 janvier 2012 et 2015-715 DC du 5 août 2015 ;- le règlement du 4 février 2010 sur la procédure suivie devant le Conseil constitutionnel pour les questions prioritaires de constitutionnalité ;Au vu des pièces suivantes :- les observations présentées pour le requérant par Me Marsigny, enregistrées le 28 décembre 2018 ; - les observations présentées par le Premier ministre, enregistrées le 31 décembre 2018 ;- les observations en intervention présentées pour les associations La Quadrature du Net, Franciliens.net, FAImaison, Midway's Network et Rézine par Me Alexis Fitzjean Ó Cobhthaigh, avocat au barreau de Paris, enregistrées le 31 décembre 2018 ;- les secondes observations présentées par le Premier ministre, enregistrées le 15 janvier 2019 ;- les autres pièces produites et jointes au dossier ;Après avoir entendu Me Marsigny, pour le requérant, Me Fitzjean Ó Cobhthaigh, pour les
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M. Paulo M. [Droit de communication aux agents des douanes des données de connexion]
Au vu des textes suivants :- la Constitution ;- l'ordonnance n° 58-1067 du 7 novembre 1958 portant loi organique sur le Conseil constitutionnel ;- le code des douanes ;- le code des postes et des communications électroniques ;- la loi n° 2004-575 du 21 juin 2004 pour la confiance dans l'économie numérique ;- la loi n° 2004-1485 du 30 décembre 2004 de finances rectificative pour 2004 ;- la loi n° 2016-1918 du 29 décembre 2016 de finances rectificative pour 2016 ;- la loi n° 2018-898 du 23 octobre 2018 relative à la lutte contre la fraude ;- les décisions du Conseil constitutionnel nos 2011-214 QPC du 27 janvier 2012 et 2015-715 DC du 5 août 2015 ;- le règlement du 4 février 2010 sur la procédure suivie devant le Conseil constitutionnel pour les questions prioritaires de constitutionnalité ;Au vu des pièces suivantes :- les observations présentées pour le requérant par Me Marsigny, enregistrées le 28 décembre 2018 ; - les observations présentées par le Premier ministre, enregistrées le 31 décembre 2018 ;- les observations en intervention présentées pour les associations La Quadrature du Net, Franciliens.net, FAImaison, Midway's Network et Rézine par Me Alexis Fitzjean Ó Cobhthaigh, avocat au barreau de Paris, enregistrées le 31 décembre 2018 ;- les secondes observations présentées par le Premier ministre, enregistrées le 15 janvier 2019 ;- les autres pièces produites et jointes au dossier ;Après avoir entendu Me Marsigny, pour le requérant, Me Fitzjean Ó Cobhthaigh, pour les
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CONSTEXT000038602053_3
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CONSTEXT000038602053
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af64cdc7a2d12cca
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QPC
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Non conformité totale - effet différé - réserve transitoire
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Association Sea Shepherd [Délai entre la citation et la comparution devant un tribunal correctionnel en matière d'infractions de presse]
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2019-786
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2019-05-24
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1. La question prioritaire de constitutionnalité doit être considérée comme portant sur les dispositions applicables au litige à l'occasion duquel elle a été posée. Dès lors, le Conseil constitutionnel est saisi de l'article 54 de la loi du 29 juillet 1881 mentionnée ci-dessus, dans sa rédaction résultant de l'ordonnance du 13 septembre 1945 mentionnée ci-dessus.2. L'article 54 de la loi du 29 juillet 1881, dans cette rédaction, prévoit : « Le délai entre la citation et la comparution sera de vingt jours outre un jour par cinq myriamètres de distance.« Toutefois, en cas de diffamation ou d'injure pendant la période électorale contre un candidat à une fonction électorale, ce délai sera réduit à vingt-quatre heures, outre le délai de distance, et les dispositions des articles 55 et 56 ne seront pas applicables ».
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Association Sea Shepherd [Délai entre la citation et la comparution devant un tribunal correctionnel en matière d'infractions de presse]
1. La question prioritaire de constitutionnalité doit être considérée comme portant sur les dispositions applicables au litige à l'occasion duquel elle a été posée. Dès lors, le Conseil constitutionnel est saisi de l'article 54 de la loi du 29 juillet 1881 mentionnée ci-dessus, dans sa rédaction résultant de l'ordonnance du 13 septembre 1945 mentionnée ci-dessus.2. L'article 54 de la loi du 29 juillet 1881, dans cette rédaction, prévoit : « Le délai entre la citation et la comparution sera de vingt jours outre un jour par cinq myriamètres de distance.« Toutefois, en cas de diffamation ou d'injure pendant la période électorale contre un candidat à une fonction électorale, ce délai sera réduit à vingt-quatre heures, outre le délai de distance, et les dispositions des articles 55 et 56 ne seront pas applicables ».
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CONSTEXT000038602053_4
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CONSTEXT000038602053
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879f15d733108ef0
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QPC
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Non conformité totale - effet différé - réserve transitoire
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Association Sea Shepherd [Délai entre la citation et la comparution devant un tribunal correctionnel en matière d'infractions de presse]
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2019-786
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2019-05-24
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3. La requérante soutient tout d'abord que ces dispositions seraient contraires au droit à un recours juridictionnel effectif de la victime d'une infraction de presse dès lors que, en raison du délai de distance d'un jour par cinq myriamètres qui doit être respecté entre la citation et la comparution, elles pourraient conduire, en fonction du lieu de résidence de la personne citée à comparaître, à retarder excessivement la date de comparution. Elle soutient ensuite que ces dispositions méconnaîtraient le principe d'égalité devant la justice au motif qu'elles introduiraient une distinction injustifiée entre les victimes d'infractions de presse selon le lieu de résidence de la personne poursuivie. Elle soutient enfin que ces dispositions méconnaîtraient le droit à la protection de la réputation qui découlerait du droit au respect de la vie privée.4. Par conséquent, la question prioritaire de constitutionnalité porte sur les mots « outre un jour par cinq myriamètres de distance » figurant au premier alinéa de l'article 54 de la loi du 29 juillet 1881.- Sur le fond :5. Aux termes de l'article 6 de la Déclaration des droits de l'homme et du citoyen de 1789, la loi est « la même pour tous, soit qu'elle protège, soit qu'elle punisse ». Son article 16 dispose : « Toute société dans laquelle la garantie des droits n'est pas assurée, ni la séparation des pouvoirs déterminée, n'a point de Constitution ». Si le législateur peut prévoir des règles de procédure différentes selon les
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Association Sea Shepherd [Délai entre la citation et la comparution devant un tribunal correctionnel en matière d'infractions de presse]
3. La requérante soutient tout d'abord que ces dispositions seraient contraires au droit à un recours juridictionnel effectif de la victime d'une infraction de presse dès lors que, en raison du délai de distance d'un jour par cinq myriamètres qui doit être respecté entre la citation et la comparution, elles pourraient conduire, en fonction du lieu de résidence de la personne citée à comparaître, à retarder excessivement la date de comparution. Elle soutient ensuite que ces dispositions méconnaîtraient le principe d'égalité devant la justice au motif qu'elles introduiraient une distinction injustifiée entre les victimes d'infractions de presse selon le lieu de résidence de la personne poursuivie. Elle soutient enfin que ces dispositions méconnaîtraient le droit à la protection de la réputation qui découlerait du droit au respect de la vie privée.4. Par conséquent, la question prioritaire de constitutionnalité porte sur les mots « outre un jour par cinq myriamètres de distance » figurant au premier alinéa de l'article 54 de la loi du 29 juillet 1881.- Sur le fond :5. Aux termes de l'article 6 de la Déclaration des droits de l'homme et du citoyen de 1789, la loi est « la même pour tous, soit qu'elle protège, soit qu'elle punisse ». Son article 16 dispose : « Toute société dans laquelle la garantie des droits n'est pas assurée, ni la séparation des pouvoirs déterminée, n'a point de Constitution ». Si le législateur peut prévoir des règles de procédure différentes selon les
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CONSTEXT000038602053_5
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CONSTEXT000038602053
| 5 |
4cb2017af09ac957
|
QPC
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Non conformité totale - effet différé - réserve transitoire
|
Association Sea Shepherd [Délai entre la citation et la comparution devant un tribunal correctionnel en matière d'infractions de presse]
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2019-786
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2019-05-24
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laquelle la garantie des droits n'est pas assurée, ni la séparation des pouvoirs déterminée, n'a point de Constitution ». Si le législateur peut prévoir des règles de procédure différentes selon les faits, les situations et les personnes auxquelles elles s'appliquent, c'est à la condition que ces différences ne procèdent pas de distinctions injustifiées et que soient assurées aux justiciables des garanties égales.6. En vertu des articles 48 et 53 de la loi du 29 juillet 1881, la poursuite des délits et contraventions commis par voie de presse peut être exercée par la partie lésée au moyen d'une citation directe. Dans ce cas, l'article 54 précité prévoit que le délai entre la délivrance de la citation et la comparution devant la juridiction de jugement doit être de vingt jours, augmenté d'un délai de distance. Les dispositions contestées prévoient que ce délai de distance est d'un jour par cinq myriamètres de distance, soit un jour par cinquante kilomètres, entre le lieu de résidence de la personne poursuivie et celui du tribunal devant lequel elle est citée à comparaître.7. En instaurant un délai de distance, en plus de celui de vingt jours fixé pour la préparation de la défense, le législateur a entendu garantir à la partie poursuivie un temps nécessaire à son déplacement vers le lieu où elle est citée à comparaître.8. La prise en compte, par l'instauration d'un délai spécifique, de la distance séparant le lieu de résidence de la personne poursuivie du lieu où elle est
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Association Sea Shepherd [Délai entre la citation et la comparution devant un tribunal correctionnel en matière d'infractions de presse]
laquelle la garantie des droits n'est pas assurée, ni la séparation des pouvoirs déterminée, n'a point de Constitution ». Si le législateur peut prévoir des règles de procédure différentes selon les faits, les situations et les personnes auxquelles elles s'appliquent, c'est à la condition que ces différences ne procèdent pas de distinctions injustifiées et que soient assurées aux justiciables des garanties égales.6. En vertu des articles 48 et 53 de la loi du 29 juillet 1881, la poursuite des délits et contraventions commis par voie de presse peut être exercée par la partie lésée au moyen d'une citation directe. Dans ce cas, l'article 54 précité prévoit que le délai entre la délivrance de la citation et la comparution devant la juridiction de jugement doit être de vingt jours, augmenté d'un délai de distance. Les dispositions contestées prévoient que ce délai de distance est d'un jour par cinq myriamètres de distance, soit un jour par cinquante kilomètres, entre le lieu de résidence de la personne poursuivie et celui du tribunal devant lequel elle est citée à comparaître.7. En instaurant un délai de distance, en plus de celui de vingt jours fixé pour la préparation de la défense, le législateur a entendu garantir à la partie poursuivie un temps nécessaire à son déplacement vers le lieu où elle est citée à comparaître.8. La prise en compte, par l'instauration d'un délai spécifique, de la distance séparant le lieu de résidence de la personne poursuivie du lieu où elle est
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CONSTEXT000038602053_6
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CONSTEXT000038602053
| 6 |
07a0a1a977746747
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QPC
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Non conformité totale - effet différé - réserve transitoire
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Association Sea Shepherd [Délai entre la citation et la comparution devant un tribunal correctionnel en matière d'infractions de presse]
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2019-786
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2019-05-24
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le lieu où elle est citée à comparaître.8. La prise en compte, par l'instauration d'un délai spécifique, de la distance séparant le lieu de résidence de la personne poursuivie du lieu où elle est citée à comparaître n'est, par elle-même, pas contraire au principe d'égalité devant la justice. Toutefois, en raison de l'étendue du territoire de la République, les modalités de détermination de ce délai définies par les dispositions contestées sont susceptibles de conduire à des délais de distance très différents. Compte tenu des moyens actuels de transport, ces différences dépassent manifestement ce qui serait nécessaire pour prendre en compte les contraintes de déplacement, et ce quelle que soit la distance séparant le lieu de résidence du prévenu de celui de sa comparution. Dès lors, les dispositions contestées procèdent à une distinction injustifiée entre les justiciables.9. Dans ces conditions, sans qu'il soit nécessaire d'examiner les autres griefs, les mots « outre un jour par cinq myriamètres de distance » figurant au premier alinéa de l'article 54 de la loi du 29 juillet 1881, qui méconnaissant le principe d'égalité devant la justice, doivent être déclarés contraires à la Constitution.- Sur les effets de la déclaration d'inconstitutionnalité : 10. Selon le deuxième alinéa de l'article 62 de la Constitution : « Une disposition déclarée inconstitutionnelle sur le fondement de l'article 61-1 est abrogée à compter de la publication de la décision du Conseil constitutionnel
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Association Sea Shepherd [Délai entre la citation et la comparution devant un tribunal correctionnel en matière d'infractions de presse]
le lieu où elle est citée à comparaître.8. La prise en compte, par l'instauration d'un délai spécifique, de la distance séparant le lieu de résidence de la personne poursuivie du lieu où elle est citée à comparaître n'est, par elle-même, pas contraire au principe d'égalité devant la justice. Toutefois, en raison de l'étendue du territoire de la République, les modalités de détermination de ce délai définies par les dispositions contestées sont susceptibles de conduire à des délais de distance très différents. Compte tenu des moyens actuels de transport, ces différences dépassent manifestement ce qui serait nécessaire pour prendre en compte les contraintes de déplacement, et ce quelle que soit la distance séparant le lieu de résidence du prévenu de celui de sa comparution. Dès lors, les dispositions contestées procèdent à une distinction injustifiée entre les justiciables.9. Dans ces conditions, sans qu'il soit nécessaire d'examiner les autres griefs, les mots « outre un jour par cinq myriamètres de distance » figurant au premier alinéa de l'article 54 de la loi du 29 juillet 1881, qui méconnaissant le principe d'égalité devant la justice, doivent être déclarés contraires à la Constitution.- Sur les effets de la déclaration d'inconstitutionnalité : 10. Selon le deuxième alinéa de l'article 62 de la Constitution : « Une disposition déclarée inconstitutionnelle sur le fondement de l'article 61-1 est abrogée à compter de la publication de la décision du Conseil constitutionnel
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CONSTEXT000038602053_7
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CONSTEXT000038602053
| 7 |
885b682850e48ba2
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QPC
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Non conformité totale - effet différé - réserve transitoire
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Association Sea Shepherd [Délai entre la citation et la comparution devant un tribunal correctionnel en matière d'infractions de presse]
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2019-786
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2019-05-24
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l'article 62 de la Constitution : « Une disposition déclarée inconstitutionnelle sur le fondement de l'article 61-1 est abrogée à compter de la publication de la décision du Conseil constitutionnel ou d'une date ultérieure fixée par cette décision. Le Conseil constitutionnel détermine les conditions et limites dans lesquelles les effets que la disposition a produits sont susceptibles d'être remis en cause ». En principe, la déclaration d'inconstitutionnalité doit bénéficier à l'auteur de la question prioritaire de constitutionnalité et la disposition déclarée contraire à la Constitution ne peut être appliquée dans les instances en cours à la date de la publication de la décision du Conseil constitutionnel. Cependant, les dispositions de l'article 62 de la Constitution réservent à ce dernier le pouvoir tant de fixer la date de l'abrogation et de reporter dans le temps ses effets que de prévoir la remise en cause des effets que la disposition a produits avant l'intervention de cette déclaration.11. L'abrogation immédiate des dispositions contestées aurait pour effet de supprimer tout délai de distance pour les citations directes délivrées en application de la loi du 29 juillet 1881. Elle entraînerait ainsi des conséquences manifestement excessives. Par suite, afin de permettre au législateur de remédier à l'inconstitutionnalité constatée, il y a lieu de reporter au 31 mars 2020 la date de l'abrogation des dispositions contestées.12. Afin de faire cesser l'inconstitutionnalité
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Association Sea Shepherd [Délai entre la citation et la comparution devant un tribunal correctionnel en matière d'infractions de presse]
l'article 62 de la Constitution : « Une disposition déclarée inconstitutionnelle sur le fondement de l'article 61-1 est abrogée à compter de la publication de la décision du Conseil constitutionnel ou d'une date ultérieure fixée par cette décision. Le Conseil constitutionnel détermine les conditions et limites dans lesquelles les effets que la disposition a produits sont susceptibles d'être remis en cause ». En principe, la déclaration d'inconstitutionnalité doit bénéficier à l'auteur de la question prioritaire de constitutionnalité et la disposition déclarée contraire à la Constitution ne peut être appliquée dans les instances en cours à la date de la publication de la décision du Conseil constitutionnel. Cependant, les dispositions de l'article 62 de la Constitution réservent à ce dernier le pouvoir tant de fixer la date de l'abrogation et de reporter dans le temps ses effets que de prévoir la remise en cause des effets que la disposition a produits avant l'intervention de cette déclaration.11. L'abrogation immédiate des dispositions contestées aurait pour effet de supprimer tout délai de distance pour les citations directes délivrées en application de la loi du 29 juillet 1881. Elle entraînerait ainsi des conséquences manifestement excessives. Par suite, afin de permettre au législateur de remédier à l'inconstitutionnalité constatée, il y a lieu de reporter au 31 mars 2020 la date de l'abrogation des dispositions contestées.12. Afin de faire cesser l'inconstitutionnalité
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CONSTEXT000038602053_8
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CONSTEXT000038602053
| 8 |
de37bc09258987e8
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QPC
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Non conformité totale - effet différé - réserve transitoire
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Association Sea Shepherd [Délai entre la citation et la comparution devant un tribunal correctionnel en matière d'infractions de presse]
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2019-786
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2019-05-24
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législateur de remédier à l'inconstitutionnalité constatée, il y a lieu de reporter au 31 mars 2020 la date de l'abrogation des dispositions contestées.12. Afin de faire cesser l'inconstitutionnalité constatée à compter de la publication de la présente décision, il y a lieu de juger que les citations délivrées en application de la loi du 29 juillet 1881 après cette date sont soumises aux délais de distance déterminés aux deux derniers alinéas de l'article 552 du code de procédure pénale.13. La déclaration d'inconstitutionnalité ne peut être invoquée dans les instances engagées par une citation délivrée avant la publication de la présente décision.
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Association Sea Shepherd [Délai entre la citation et la comparution devant un tribunal correctionnel en matière d'infractions de presse]
législateur de remédier à l'inconstitutionnalité constatée, il y a lieu de reporter au 31 mars 2020 la date de l'abrogation des dispositions contestées.12. Afin de faire cesser l'inconstitutionnalité constatée à compter de la publication de la présente décision, il y a lieu de juger que les citations délivrées en application de la loi du 29 juillet 1881 après cette date sont soumises aux délais de distance déterminés aux deux derniers alinéas de l'article 552 du code de procédure pénale.13. La déclaration d'inconstitutionnalité ne peut être invoquée dans les instances engagées par une citation délivrée avant la publication de la présente décision.
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CONSTEXT000038602053_9
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CONSTEXT000038602053
| 9 |
4c1050bd0a0de01c
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QPC
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Non conformité totale - effet différé - réserve transitoire
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Association Sea Shepherd [Délai entre la citation et la comparution devant un tribunal correctionnel en matière d'infractions de presse]
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2019-786
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2019-05-24
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LE CONSEIL CONSTITUTIONNEL DÉCIDE :
Article 1er. - Les mots « outre un jour par cinq myriamètres de distance » figurant au premier alinéa de l'article 54 de la loi du 29 juillet 1881 sur la liberté de la presse, dans sa rédaction résultant de l'ordonnance n° 45-2090 du 13 septembre 1945 modifiant la loi du 29 juillet 1881 sur la liberté de la presse, sont contraires à la Constitution.
Article 2. - La déclaration d'inconstitutionnalité de l'article 1er prend effet dans les conditions fixées aux paragraphes 11 à 13 de cette décision.
Article 3. - Cette décision sera publiée au Journal officiel de la République française et notifiée dans les conditions prévues à l'article 23-11 de l'ordonnance du 7 novembre 1958 susvisée.
Jugé par le Conseil constitutionnel dans sa séance du 23 mai 2019, où siégeaient : M. Laurent FABIUS, Président, Mme Claire BAZY MALAURIE, M. Alain JUPPÉ, Mmes Corinne LUQUIENS, Nicole MAESTRACCI, MM. Jacques MÉZARD, François PILLET et Michel PINAULT.
Rendu public le 24 mai 2019.
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Association Sea Shepherd [Délai entre la citation et la comparution devant un tribunal correctionnel en matière d'infractions de presse]
LE CONSEIL CONSTITUTIONNEL DÉCIDE :
Article 1er. - Les mots « outre un jour par cinq myriamètres de distance » figurant au premier alinéa de l'article 54 de la loi du 29 juillet 1881 sur la liberté de la presse, dans sa rédaction résultant de l'ordonnance n° 45-2090 du 13 septembre 1945 modifiant la loi du 29 juillet 1881 sur la liberté de la presse, sont contraires à la Constitution.
Article 2. - La déclaration d'inconstitutionnalité de l'article 1er prend effet dans les conditions fixées aux paragraphes 11 à 13 de cette décision.
Article 3. - Cette décision sera publiée au Journal officiel de la République française et notifiée dans les conditions prévues à l'article 23-11 de l'ordonnance du 7 novembre 1958 susvisée.
Jugé par le Conseil constitutionnel dans sa séance du 23 mai 2019, où siégeaient : M. Laurent FABIUS, Président, Mme Claire BAZY MALAURIE, M. Alain JUPPÉ, Mmes Corinne LUQUIENS, Nicole MAESTRACCI, MM. Jacques MÉZARD, François PILLET et Michel PINAULT.
Rendu public le 24 mai 2019.
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CONSTEXT000038472156_0
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CONSTEXT000038472156
| 0 |
c5788576ee355b2d
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QPC
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Conformité
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Mme Ruth S. [Calcul du plafonnement de l'impôt de solidarité sur la fortune]
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2019-769
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2019-03-22
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LE CONSEIL CONSTITUTIONNEL A ÉTÉ SAISI le 10 janvier 2019 par la Cour de cassation (chambre commerciale, arrêt n° 139 du 10 janvier 2019), dans les conditions prévues à l'article 61-1 de la Constitution, d'une question prioritaire de constitutionnalité. Cette question a été posée pour Mme Ruth S., par Me Marc Bornhauser, avocat au barreau de Paris. Elle a été enregistrée au secrétariat général du Conseil constitutionnel sous le n° 2019-769 QPC. Elle est relative à la conformité aux droits et libertés que la Constitution garantit du premier alinéa du paragraphe II de l'article 885 V bis du code général des impôts, dans sa rédaction résultant de la loi n° 2012-1509 du 29 décembre 2012 de finances pour 2013.
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Mme Ruth S. [Calcul du plafonnement de l'impôt de solidarité sur la fortune]
LE CONSEIL CONSTITUTIONNEL A ÉTÉ SAISI le 10 janvier 2019 par la Cour de cassation (chambre commerciale, arrêt n° 139 du 10 janvier 2019), dans les conditions prévues à l'article 61-1 de la Constitution, d'une question prioritaire de constitutionnalité. Cette question a été posée pour Mme Ruth S., par Me Marc Bornhauser, avocat au barreau de Paris. Elle a été enregistrée au secrétariat général du Conseil constitutionnel sous le n° 2019-769 QPC. Elle est relative à la conformité aux droits et libertés que la Constitution garantit du premier alinéa du paragraphe II de l'article 885 V bis du code général des impôts, dans sa rédaction résultant de la loi n° 2012-1509 du 29 décembre 2012 de finances pour 2013.
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CONSTEXT000038472156_1
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CONSTEXT000038472156
| 1 |
0a63860ced2664ae
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QPC
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Conformité
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Mme Ruth S. [Calcul du plafonnement de l'impôt de solidarité sur la fortune]
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2019-769
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2019-03-22
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Au vu des textes suivants :- la Constitution ;- l'ordonnance n° 58-1067 du 7 novembre 1958 portant loi organique sur le Conseil constitutionnel ;- le code général des impôts ;- la loi n° 2012-1509 du 29 décembre 2012 de finances pour 2013 ;- les décisions du Conseil constitutionnel nos 2012-662 DC du 29 décembre 2012 et 2016-538 QPC du 22 avril 2016 ;- le règlement du 4 février 2010 sur la procédure suivie devant le Conseil constitutionnel pour les questions prioritaires de constitutionnalité ;Au vu des pièces suivantes :- les observations présentées pour la requérante par Me Bornhauser, enregistrées le 1er février 2019 ; - les observations présentées par le Premier ministre, enregistrées le 1er février 2019 ;- les secondes observations présentées pour la requérante par Me Bornhauser, enregistrées le 15 février 2019 ;- les autres pièces produites et jointes au dossier ;Après avoir entendu Me Aurélie Monteiro, avocat au barreau de Paris, pour la requérante, et M. Philippe Blanc, désigné par le Premier ministre, à l'audience publique du 12 mars 2019 ;Et après avoir entendu le rapporteur ; LE CONSEIL CONSTITUTIONNEL S'EST FONDÉ SUR CE QUI SUIT :
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Mme Ruth S. [Calcul du plafonnement de l'impôt de solidarité sur la fortune]
Au vu des textes suivants :- la Constitution ;- l'ordonnance n° 58-1067 du 7 novembre 1958 portant loi organique sur le Conseil constitutionnel ;- le code général des impôts ;- la loi n° 2012-1509 du 29 décembre 2012 de finances pour 2013 ;- les décisions du Conseil constitutionnel nos 2012-662 DC du 29 décembre 2012 et 2016-538 QPC du 22 avril 2016 ;- le règlement du 4 février 2010 sur la procédure suivie devant le Conseil constitutionnel pour les questions prioritaires de constitutionnalité ;Au vu des pièces suivantes :- les observations présentées pour la requérante par Me Bornhauser, enregistrées le 1er février 2019 ; - les observations présentées par le Premier ministre, enregistrées le 1er février 2019 ;- les secondes observations présentées pour la requérante par Me Bornhauser, enregistrées le 15 février 2019 ;- les autres pièces produites et jointes au dossier ;Après avoir entendu Me Aurélie Monteiro, avocat au barreau de Paris, pour la requérante, et M. Philippe Blanc, désigné par le Premier ministre, à l'audience publique du 12 mars 2019 ;Et après avoir entendu le rapporteur ; LE CONSEIL CONSTITUTIONNEL S'EST FONDÉ SUR CE QUI SUIT :
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CONSTEXT000038472150_2
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CONSTEXT000038472150
| 2 |
11a86b6d6b7975c8
|
QPC
|
Non conformité totale
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M. Paulo M. [Droit de communication aux agents des douanes des données de connexion]
|
2018-764
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2019-02-15
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par le Premier ministre, enregistrées le 15 janvier 2019 ;- les autres pièces produites et jointes au dossier ;Après avoir entendu Me Marsigny, pour le requérant, Me Fitzjean Ó Cobhthaigh, pour les parties intervenantes, et M. Philippe Blanc, désigné par le Premier ministre, à l'audience publique du 5 février 2019 ;Et après avoir entendu le rapporteur ; LE CONSEIL CONSTITUTIONNEL S'EST FONDÉ SUR CE QUI SUIT :
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M. Paulo M. [Droit de communication aux agents des douanes des données de connexion]
par le Premier ministre, enregistrées le 15 janvier 2019 ;- les autres pièces produites et jointes au dossier ;Après avoir entendu Me Marsigny, pour le requérant, Me Fitzjean Ó Cobhthaigh, pour les parties intervenantes, et M. Philippe Blanc, désigné par le Premier ministre, à l'audience publique du 5 février 2019 ;Et après avoir entendu le rapporteur ; LE CONSEIL CONSTITUTIONNEL S'EST FONDÉ SUR CE QUI SUIT :
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CONSTEXT000038472156_2
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CONSTEXT000038472156
| 2 |
950dce631ff3d0ef
|
QPC
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Conformité
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Mme Ruth S. [Calcul du plafonnement de l'impôt de solidarité sur la fortune]
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2019-769
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2019-03-22
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1. L'article 885 V bis du code général des impôts, dans sa rédaction résultant de la loi du 29 décembre 2012 mentionnée ci-dessus, soumet l'impôt de solidarité sur la fortune à un plafonnement en fonction des revenus du contribuable. Précisant les modalités selon lesquelles ces revenus sont pris en compte, le premier alinéa de son paragraphe II prévoit :« Les plus-values ainsi que tous les revenus sont déterminés sans considération des exonérations, seuils, réductions et abattements prévus au présent code, à l'exception de ceux représentatifs de frais professionnels ».
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Mme Ruth S. [Calcul du plafonnement de l'impôt de solidarité sur la fortune]
1. L'article 885 V bis du code général des impôts, dans sa rédaction résultant de la loi du 29 décembre 2012 mentionnée ci-dessus, soumet l'impôt de solidarité sur la fortune à un plafonnement en fonction des revenus du contribuable. Précisant les modalités selon lesquelles ces revenus sont pris en compte, le premier alinéa de son paragraphe II prévoit :« Les plus-values ainsi que tous les revenus sont déterminés sans considération des exonérations, seuils, réductions et abattements prévus au présent code, à l'exception de ceux représentatifs de frais professionnels ».
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CONSTEXT000038472156_3
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CONSTEXT000038472156
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d40cdcb7482d3377
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QPC
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Conformité
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Mme Ruth S. [Calcul du plafonnement de l'impôt de solidarité sur la fortune]
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2019-769
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2019-03-22
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2. La requérante reproche à ces dispositions d'inclure dans le revenu en fonction duquel est plafonné l'impôt de solidarité sur la fortune le montant brut des plus-values réalisées par le contribuable, sans leur appliquer ni abattement pour durée de détention, ni aucun autre correctif tenant compte de l'érosion monétaire affectant leur valeur réelle. Ces dispositions auraient, dès lors, pour effet de majorer artificiellement les revenus pris en compte pour le calcul du plafonnement. Il en résulterait une méconnaissance des capacités contributives des redevables de l'impôt de solidarité sur la fortune et donc une rupture d'égalité devant les charges publiques. 3. Par conséquent, la question prioritaire de constitutionnalité porte sur les mots « Les plus-values ainsi que » figurant au premier alinéa du paragraphe II de l'article 885 V bis du code général des impôts.- Sur la recevabilité :4. Selon les dispositions combinées du troisième alinéa de l'article 23-2 et du troisième alinéa de l'article 23-5 de l'ordonnance du 7 novembre 1958 mentionnée ci-dessus, le Conseil constitutionnel ne peut être saisi d'une question prioritaire de constitutionnalité relative à une disposition qu'il a déjà déclarée conforme à la Constitution dans les motifs et le dispositif d'une de ses décisions, sauf changement des circonstances.5. Dans sa décision du 29 décembre 2012 mentionnée ci-dessus, le Conseil constitutionnel a spécialement examiné l'article 885 V bis du code général des impôts, dans
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Mme Ruth S. [Calcul du plafonnement de l'impôt de solidarité sur la fortune]
2. La requérante reproche à ces dispositions d'inclure dans le revenu en fonction duquel est plafonné l'impôt de solidarité sur la fortune le montant brut des plus-values réalisées par le contribuable, sans leur appliquer ni abattement pour durée de détention, ni aucun autre correctif tenant compte de l'érosion monétaire affectant leur valeur réelle. Ces dispositions auraient, dès lors, pour effet de majorer artificiellement les revenus pris en compte pour le calcul du plafonnement. Il en résulterait une méconnaissance des capacités contributives des redevables de l'impôt de solidarité sur la fortune et donc une rupture d'égalité devant les charges publiques. 3. Par conséquent, la question prioritaire de constitutionnalité porte sur les mots « Les plus-values ainsi que » figurant au premier alinéa du paragraphe II de l'article 885 V bis du code général des impôts.- Sur la recevabilité :4. Selon les dispositions combinées du troisième alinéa de l'article 23-2 et du troisième alinéa de l'article 23-5 de l'ordonnance du 7 novembre 1958 mentionnée ci-dessus, le Conseil constitutionnel ne peut être saisi d'une question prioritaire de constitutionnalité relative à une disposition qu'il a déjà déclarée conforme à la Constitution dans les motifs et le dispositif d'une de ses décisions, sauf changement des circonstances.5. Dans sa décision du 29 décembre 2012 mentionnée ci-dessus, le Conseil constitutionnel a spécialement examiné l'article 885 V bis du code général des impôts, dans
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CONSTEXT000038472156_4
|
CONSTEXT000038472156
| 4 |
32719318680e9280
|
QPC
|
Conformité
|
Mme Ruth S. [Calcul du plafonnement de l'impôt de solidarité sur la fortune]
|
2019-769
|
2019-03-22
|
sauf changement des circonstances.5. Dans sa décision du 29 décembre 2012 mentionnée ci-dessus, le Conseil constitutionnel a spécialement examiné l'article 885 V bis du code général des impôts, dans sa rédaction résultant de la loi du 29 décembre 2012. Il a jugé conformes à la Constitution, dans les motifs et le dispositif de cette décision, les dispositions de cet article contestées par la requérante dans la présente question prioritaire de constitutionnalité.6. Toutefois, depuis cette déclaration de conformité, le Conseil constitutionnel a énoncé, dans sa décision du 22 avril 2016 mentionnée ci-dessus, une réserve d'interprétation selon laquelle la soumission au barème progressif de l'impôt sur le revenu, à compter du 1er janvier 2013, des plus-values de cession à titre onéreux de valeurs mobilières, droits sociaux et titres assimilés ne saurait priver les plus-values placées en report d'imposition avant cette date, qui ne font l'objet d'aucun abattement sur leur montant brut, de l'application d'un coefficient d'érosion monétaire pour la période comprise entre l'acquisition des titres et le fait générateur de l'imposition. Cette décision constitue un changement des circonstances justifiant le réexamen des dispositions contestées.- Sur le fond :7. Selon l'article 13 de la Déclaration des droits de l'homme et du citoyen de 1789 : « Pour l'entretien de la force publique, et pour les dépenses d'administration, une contribution commune est indispensable : elle doit être
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Mme Ruth S. [Calcul du plafonnement de l'impôt de solidarité sur la fortune]
sauf changement des circonstances.5. Dans sa décision du 29 décembre 2012 mentionnée ci-dessus, le Conseil constitutionnel a spécialement examiné l'article 885 V bis du code général des impôts, dans sa rédaction résultant de la loi du 29 décembre 2012. Il a jugé conformes à la Constitution, dans les motifs et le dispositif de cette décision, les dispositions de cet article contestées par la requérante dans la présente question prioritaire de constitutionnalité.6. Toutefois, depuis cette déclaration de conformité, le Conseil constitutionnel a énoncé, dans sa décision du 22 avril 2016 mentionnée ci-dessus, une réserve d'interprétation selon laquelle la soumission au barème progressif de l'impôt sur le revenu, à compter du 1er janvier 2013, des plus-values de cession à titre onéreux de valeurs mobilières, droits sociaux et titres assimilés ne saurait priver les plus-values placées en report d'imposition avant cette date, qui ne font l'objet d'aucun abattement sur leur montant brut, de l'application d'un coefficient d'érosion monétaire pour la période comprise entre l'acquisition des titres et le fait générateur de l'imposition. Cette décision constitue un changement des circonstances justifiant le réexamen des dispositions contestées.- Sur le fond :7. Selon l'article 13 de la Déclaration des droits de l'homme et du citoyen de 1789 : « Pour l'entretien de la force publique, et pour les dépenses d'administration, une contribution commune est indispensable : elle doit être
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CONSTEXT000038472156_5
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CONSTEXT000038472156
| 5 |
f760dd8a43b4fdf3
|
QPC
|
Conformité
|
Mme Ruth S. [Calcul du plafonnement de l'impôt de solidarité sur la fortune]
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2019-769
|
2019-03-22
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Déclaration des droits de l'homme et du citoyen de 1789 : « Pour l'entretien de la force publique, et pour les dépenses d'administration, une contribution commune est indispensable : elle doit être également répartie entre tous les citoyens, en raison de leurs facultés ». En vertu de l'article 34 de la Constitution, il appartient au législateur de déterminer, dans le respect des principes constitutionnels et compte tenu des caractéristiques de chaque impôt, les règles selon lesquelles doivent être appréciées les facultés contributives. En particulier, pour assurer le respect du principe d'égalité, il doit fonder son appréciation sur des critères objectifs et rationnels en fonction des buts qu'il se propose. Cette appréciation ne doit cependant pas entraîner de rupture caractérisée de l'égalité devant les charges publiques.8. En application de l'article 885 V bis du code général des impôts, le cumul de l'impôt de solidarité sur la fortune et des impositions sur les revenus ne peut excéder 75 % du total des revenus du contribuable. En application des dispositions contestées, les plus-values sont incluses dans ces revenus, à hauteur de leur montant brut, sans application d'aucune exonération ou réduction ni d'aucun seuil ou abattement.9. En premier lieu, l'impôt de solidarité sur la fortune ne figure pas au nombre des impositions sur le revenu. En instituant cet impôt, le législateur a entendu frapper la capacité contributive que confère la détention d'un ensemble de biens et
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Mme Ruth S. [Calcul du plafonnement de l'impôt de solidarité sur la fortune]
Déclaration des droits de l'homme et du citoyen de 1789 : « Pour l'entretien de la force publique, et pour les dépenses d'administration, une contribution commune est indispensable : elle doit être également répartie entre tous les citoyens, en raison de leurs facultés ». En vertu de l'article 34 de la Constitution, il appartient au législateur de déterminer, dans le respect des principes constitutionnels et compte tenu des caractéristiques de chaque impôt, les règles selon lesquelles doivent être appréciées les facultés contributives. En particulier, pour assurer le respect du principe d'égalité, il doit fonder son appréciation sur des critères objectifs et rationnels en fonction des buts qu'il se propose. Cette appréciation ne doit cependant pas entraîner de rupture caractérisée de l'égalité devant les charges publiques.8. En application de l'article 885 V bis du code général des impôts, le cumul de l'impôt de solidarité sur la fortune et des impositions sur les revenus ne peut excéder 75 % du total des revenus du contribuable. En application des dispositions contestées, les plus-values sont incluses dans ces revenus, à hauteur de leur montant brut, sans application d'aucune exonération ou réduction ni d'aucun seuil ou abattement.9. En premier lieu, l'impôt de solidarité sur la fortune ne figure pas au nombre des impositions sur le revenu. En instituant cet impôt, le législateur a entendu frapper la capacité contributive que confère la détention d'un ensemble de biens et
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CONSTEXT000038472156_6
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CONSTEXT000038472156
| 6 |
b92c109cd8e2feea
|
QPC
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Conformité
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Mme Ruth S. [Calcul du plafonnement de l'impôt de solidarité sur la fortune]
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2019-769
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2019-03-22
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la fortune ne figure pas au nombre des impositions sur le revenu. En instituant cet impôt, le législateur a entendu frapper la capacité contributive que confère la détention d'un ensemble de biens et de droits. Les dispositions contestées n'ont ainsi pas pour objet de déterminer les conditions d'imposition des plus-values, mais les modalités selon lesquelles ces plus-values sont prises en compte dans les revenus en fonction desquels est plafonné l'impôt de solidarité sur la fortune.10. En second lieu, en prenant en compte, dans le calcul de ce plafonnement, les plus-values à hauteur de leur montant brut, le législateur a intégré aux revenus du contribuable des sommes correspondant à des revenus que ce dernier a réalisés et dont il a disposé au cours de la même année.11. Par conséquent, le fait que les dispositions contestées incluent dans ces revenus les plus-values réalisées par le contribuable, sans prendre en compte l'érosion monétaire entre la date d'acquisition des biens ou droits et celle de leur cession, ne méconnaît pas l'exigence de prise en compte des facultés contributives résultant de l'article 13 de la Déclaration de 1789.12. Le grief tiré de la violation du principe d'égalité devant les charges publiques doit ainsi être écarté. Les dispositions contestées, qui ne méconnaissent aucun autre droit ou liberté que la Constitution garantit, doivent donc être déclarées conformes à la Constitution.
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Mme Ruth S. [Calcul du plafonnement de l'impôt de solidarité sur la fortune]
la fortune ne figure pas au nombre des impositions sur le revenu. En instituant cet impôt, le législateur a entendu frapper la capacité contributive que confère la détention d'un ensemble de biens et de droits. Les dispositions contestées n'ont ainsi pas pour objet de déterminer les conditions d'imposition des plus-values, mais les modalités selon lesquelles ces plus-values sont prises en compte dans les revenus en fonction desquels est plafonné l'impôt de solidarité sur la fortune.10. En second lieu, en prenant en compte, dans le calcul de ce plafonnement, les plus-values à hauteur de leur montant brut, le législateur a intégré aux revenus du contribuable des sommes correspondant à des revenus que ce dernier a réalisés et dont il a disposé au cours de la même année.11. Par conséquent, le fait que les dispositions contestées incluent dans ces revenus les plus-values réalisées par le contribuable, sans prendre en compte l'érosion monétaire entre la date d'acquisition des biens ou droits et celle de leur cession, ne méconnaît pas l'exigence de prise en compte des facultés contributives résultant de l'article 13 de la Déclaration de 1789.12. Le grief tiré de la violation du principe d'égalité devant les charges publiques doit ainsi être écarté. Les dispositions contestées, qui ne méconnaissent aucun autre droit ou liberté que la Constitution garantit, doivent donc être déclarées conformes à la Constitution.
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CONSTEXT000038472153_5
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CONSTEXT000038472153
| 5 |
87a23765edfb1d99
|
QPC
|
Conformité
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Société ODDO BHF [Exclusion de l'assiette des cotisations sociales des actions attribuées gratuitement ]
|
2018-767
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2019-02-22
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l'avantage correspondant à la différence définie au II de l'article 80 bis du code général des impôts est considéré comme une rémunération lors de la levée de l'option. « Il ne peut être opéré sur la rémunération ou le gain des intéressés servant au calcul des cotisations des assurances sociales, des accidents du travail et des allocations familiales, de déduction au titre de frais professionnels que dans les conditions et limites fixées par arrêté interministériel. Il ne pourra également être procédé à des déductions au titre de frais d'atelier que dans les conditions et limites fixées par arrêté ministériel. « Ne seront pas comprises dans la rémunération les prestations de sécurité sociale versées au bénéfice de leurs salariés, anciens salariés et de leurs ayants droit par l'entremise de l'employeur. « Sont exclues de l'assiette des cotisations mentionnées au premier alinéa les contributions mises à la charge des employeurs en application d'une disposition législative ou réglementaire ou d'un accord national interprofessionnel mentionné à l'article L. 921-4, destinées au financement des régimes de retraite complémentaire mentionnés au chapitre Ier du titre II du livre IX ou versées en couverture d'engagements de retraite complémentaire souscrits antérieurement à l'adhésion des employeurs aux institutions mettant en œuvre les régimes institués en application de l'article L. 921-4 et dues au titre de la part patronale en application des textes régissant ces couvertures
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Société ODDO BHF [Exclusion de l'assiette des cotisations sociales des actions attribuées gratuitement ]
l'avantage correspondant à la différence définie au II de l'article 80 bis du code général des impôts est considéré comme une rémunération lors de la levée de l'option. « Il ne peut être opéré sur la rémunération ou le gain des intéressés servant au calcul des cotisations des assurances sociales, des accidents du travail et des allocations familiales, de déduction au titre de frais professionnels que dans les conditions et limites fixées par arrêté interministériel. Il ne pourra également être procédé à des déductions au titre de frais d'atelier que dans les conditions et limites fixées par arrêté ministériel. « Ne seront pas comprises dans la rémunération les prestations de sécurité sociale versées au bénéfice de leurs salariés, anciens salariés et de leurs ayants droit par l'entremise de l'employeur. « Sont exclues de l'assiette des cotisations mentionnées au premier alinéa les contributions mises à la charge des employeurs en application d'une disposition législative ou réglementaire ou d'un accord national interprofessionnel mentionné à l'article L. 921-4, destinées au financement des régimes de retraite complémentaire mentionnés au chapitre Ier du titre II du livre IX ou versées en couverture d'engagements de retraite complémentaire souscrits antérieurement à l'adhésion des employeurs aux institutions mettant en œuvre les régimes institués en application de l'article L. 921-4 et dues au titre de la part patronale en application des textes régissant ces couvertures
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CONSTEXT000038472156_7
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CONSTEXT000038472156
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9c8274c6e9425483
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QPC
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Conformité
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Mme Ruth S. [Calcul du plafonnement de l'impôt de solidarité sur la fortune]
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2019-769
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2019-03-22
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LE CONSEIL CONSTITUTIONNEL DÉCIDE :
Article 1er. - Les mots « Les plus-values ainsi que » figurant au premier alinéa du paragraphe II de l'article 885 V bis du code général des impôts, dans sa rédaction résultant de la loi n° 2012-1509 du 29 décembre 2012 de finances pour 2013, sont conformes à la Constitution.
Article 2. - Cette décision sera publiée au Journal officiel de la République française et notifiée dans les conditions prévues à l'article 23-11 de l'ordonnance du 7 novembre 1958 susvisée.
Jugé par le Conseil constitutionnel dans sa séance du 21 mars 2019, où siégeaient : M. Laurent FABIUS, Président, Mme Claire BAZY MALAURIE, M. Alain JUPPÉ, Mmes Dominique LOTTIN, Corinne LUQUIENS, Nicole MAESTRACCI, MM. Jacques MÉZARD, François PILLET et Michel PINAULT.
Rendu public le 22 mars 2019.
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Mme Ruth S. [Calcul du plafonnement de l'impôt de solidarité sur la fortune]
LE CONSEIL CONSTITUTIONNEL DÉCIDE :
Article 1er. - Les mots « Les plus-values ainsi que » figurant au premier alinéa du paragraphe II de l'article 885 V bis du code général des impôts, dans sa rédaction résultant de la loi n° 2012-1509 du 29 décembre 2012 de finances pour 2013, sont conformes à la Constitution.
Article 2. - Cette décision sera publiée au Journal officiel de la République française et notifiée dans les conditions prévues à l'article 23-11 de l'ordonnance du 7 novembre 1958 susvisée.
Jugé par le Conseil constitutionnel dans sa séance du 21 mars 2019, où siégeaient : M. Laurent FABIUS, Président, Mme Claire BAZY MALAURIE, M. Alain JUPPÉ, Mmes Dominique LOTTIN, Corinne LUQUIENS, Nicole MAESTRACCI, MM. Jacques MÉZARD, François PILLET et Michel PINAULT.
Rendu public le 22 mars 2019.
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CONSTEXT000038472153_0
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CONSTEXT000038472153
| 0 |
55f1e443a85bccc5
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QPC
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Conformité
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Société ODDO BHF [Exclusion de l'assiette des cotisations sociales des actions attribuées gratuitement ]
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2018-767
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2019-02-22
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LE CONSEIL CONSTITUTIONNEL A ÉTÉ SAISI le 14 décembre 2018 par la Cour de cassation (2ème chambre civile, arrêt n° 1582 du 13 décembre 2018), dans les conditions prévues à l'article 61-1 de la Constitution, d'une question prioritaire de constitutionnalité. Cette question a été posée pour la société ODDO BHF par Me Aurore Guido-Deaïbes, avocat au barreau de Paris. Elle a été enregistrée au secrétariat général du Conseil constitutionnel sous le n° 2018-767 QPC. Elle est relative à la conformité aux droits et libertés que la Constitution garantit de l'article L. 242-1 du code de la sécurité sociale, dans ses rédactions résultant de la loi n° 2010-1594 du 20 décembre 2010 de financement de la sécurité sociale pour 2011, de la loi n° 2011-1906 du 21 décembre 2011 de financement de la sécurité sociale pour 2012 et de la loi n° 2012-958 du 16 août 2012 de finances rectificative pour 2012.
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Société ODDO BHF [Exclusion de l'assiette des cotisations sociales des actions attribuées gratuitement ]
LE CONSEIL CONSTITUTIONNEL A ÉTÉ SAISI le 14 décembre 2018 par la Cour de cassation (2ème chambre civile, arrêt n° 1582 du 13 décembre 2018), dans les conditions prévues à l'article 61-1 de la Constitution, d'une question prioritaire de constitutionnalité. Cette question a été posée pour la société ODDO BHF par Me Aurore Guido-Deaïbes, avocat au barreau de Paris. Elle a été enregistrée au secrétariat général du Conseil constitutionnel sous le n° 2018-767 QPC. Elle est relative à la conformité aux droits et libertés que la Constitution garantit de l'article L. 242-1 du code de la sécurité sociale, dans ses rédactions résultant de la loi n° 2010-1594 du 20 décembre 2010 de financement de la sécurité sociale pour 2011, de la loi n° 2011-1906 du 21 décembre 2011 de financement de la sécurité sociale pour 2012 et de la loi n° 2012-958 du 16 août 2012 de finances rectificative pour 2012.
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CONSTEXT000038472153_1
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CONSTEXT000038472153
| 1 |
cbf69ebd22555e77
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QPC
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Conformité
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Société ODDO BHF [Exclusion de l'assiette des cotisations sociales des actions attribuées gratuitement ]
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2018-767
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2019-02-22
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Au vu des textes suivants :- la Constitution ;- l'ordonnance n° 58-1067 du 7 novembre 1958 portant loi organique sur le Conseil constitutionnel ;- le code de la sécurité sociale ;- la loi n° 2005-1579 du 19 décembre 2005 de financement de la sécurité sociale pour 2006 ;- la loi n° 2007-1786 du 19 décembre 2007 de financement de la sécurité sociale pour 2008 ; - la loi n° 2010-1594 du 20 décembre 2010 de financement de la sécurité sociale pour 2011 ;- la loi n° 2011-1906 du 21 décembre 2011 de financement de la sécurité sociale pour 2012 ;- la loi n° 2012-958 du 16 août 2012 de finances rectificative pour 2012 ;- le règlement du 4 février 2010 sur la procédure suivie devant le Conseil constitutionnel pour les questions prioritaires de constitutionnalité ;Au vu des pièces suivantes :- les observations présentées pour l'Union de recouvrement des cotisations de sécurité sociale et d'allocations familiales d'Île-de-France, partie en défense, par la SCP Gatineau - Fattaccini, avocat au Conseil d'État et à la Cour de cassation, enregistrées le 3 janvier 2019 ; - les observations en intervention présentées pour les sociétés Sanofi Wintrop Industrie, Sanofi, Sanofi Pasteur, Sanofi Chimie, Sanofi Aventis Recherche et Développement, Sanofi Aventis Groupe et Sanofi Aventis France, par la SCP Célice, Soltner, Texidor, Perier, avocat au Conseil d'État et à la Cour de cassation, enregistrées le 4 janvier 2019 ;- les observations présentées pour la société requérante par Me Guido-Deaïbes,
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Société ODDO BHF [Exclusion de l'assiette des cotisations sociales des actions attribuées gratuitement ]
Au vu des textes suivants :- la Constitution ;- l'ordonnance n° 58-1067 du 7 novembre 1958 portant loi organique sur le Conseil constitutionnel ;- le code de la sécurité sociale ;- la loi n° 2005-1579 du 19 décembre 2005 de financement de la sécurité sociale pour 2006 ;- la loi n° 2007-1786 du 19 décembre 2007 de financement de la sécurité sociale pour 2008 ; - la loi n° 2010-1594 du 20 décembre 2010 de financement de la sécurité sociale pour 2011 ;- la loi n° 2011-1906 du 21 décembre 2011 de financement de la sécurité sociale pour 2012 ;- la loi n° 2012-958 du 16 août 2012 de finances rectificative pour 2012 ;- le règlement du 4 février 2010 sur la procédure suivie devant le Conseil constitutionnel pour les questions prioritaires de constitutionnalité ;Au vu des pièces suivantes :- les observations présentées pour l'Union de recouvrement des cotisations de sécurité sociale et d'allocations familiales d'Île-de-France, partie en défense, par la SCP Gatineau - Fattaccini, avocat au Conseil d'État et à la Cour de cassation, enregistrées le 3 janvier 2019 ; - les observations en intervention présentées pour les sociétés Sanofi Wintrop Industrie, Sanofi, Sanofi Pasteur, Sanofi Chimie, Sanofi Aventis Recherche et Développement, Sanofi Aventis Groupe et Sanofi Aventis France, par la SCP Célice, Soltner, Texidor, Perier, avocat au Conseil d'État et à la Cour de cassation, enregistrées le 4 janvier 2019 ;- les observations présentées pour la société requérante par Me Guido-Deaïbes,
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CONSTEXT000038472153_2
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CONSTEXT000038472153
| 2 |
8ecaa2c6b9934412
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QPC
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Conformité
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Société ODDO BHF [Exclusion de l'assiette des cotisations sociales des actions attribuées gratuitement ]
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2018-767
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2019-02-22
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Célice, Soltner, Texidor, Perier, avocat au Conseil d'État et à la Cour de cassation, enregistrées le 4 janvier 2019 ;- les observations présentées pour la société requérante par Me Guido-Deaïbes, enregistrées le 7 janvier 2019 ; - les observations présentées par le Premier ministre, enregistrées le 7 janvier 2019 ;- les observations en intervention présentées pour la société Arkema France par la SCP Célice, Soltner, Texidor, Perier, enregistrées le 7 janvier 2019 ;- les secondes observations présentées pour l'Union de recouvrement des cotisations de sécurité sociale et d'allocations familiales d'Île-de-France, par la SCP Gatineau - Fattaccini, enregistrées le 21 janvier 2019 ; - les secondes observations présentées pour la société requérante par Me Guido-Deaïbes, enregistrées le 22 janvier 2019 ; - les secondes observations en intervention présentées pour les sociétés Sanofi Wintrop Industrie, Sanofi, Sanofi Pasteur, Sanofi Chimie, Sanofi Aventis Recherche et Développement, Sanofi Aventis Groupe et Sanofi Aventis France, par la SCP Célice, Soltner, Texidor, Perier, enregistrées le 22 janvier 2019 ;- les secondes observations présentées pour la société Arkema par la SCP Célice, Soltner, Texidor, Perier, enregistrées le 22 janvier 2019 ; Après avoir entendu Me Guido-Deaïbes pour la société requérante, Me Jean-Jacques Gatineau, avocat au Conseil d'État et à la Cour de cassation, pour la partie en défense, Me Damien Célice, avocat au Conseil d'État et à la Cour de cassation
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Société ODDO BHF [Exclusion de l'assiette des cotisations sociales des actions attribuées gratuitement ]
Célice, Soltner, Texidor, Perier, avocat au Conseil d'État et à la Cour de cassation, enregistrées le 4 janvier 2019 ;- les observations présentées pour la société requérante par Me Guido-Deaïbes, enregistrées le 7 janvier 2019 ; - les observations présentées par le Premier ministre, enregistrées le 7 janvier 2019 ;- les observations en intervention présentées pour la société Arkema France par la SCP Célice, Soltner, Texidor, Perier, enregistrées le 7 janvier 2019 ;- les secondes observations présentées pour l'Union de recouvrement des cotisations de sécurité sociale et d'allocations familiales d'Île-de-France, par la SCP Gatineau - Fattaccini, enregistrées le 21 janvier 2019 ; - les secondes observations présentées pour la société requérante par Me Guido-Deaïbes, enregistrées le 22 janvier 2019 ; - les secondes observations en intervention présentées pour les sociétés Sanofi Wintrop Industrie, Sanofi, Sanofi Pasteur, Sanofi Chimie, Sanofi Aventis Recherche et Développement, Sanofi Aventis Groupe et Sanofi Aventis France, par la SCP Célice, Soltner, Texidor, Perier, enregistrées le 22 janvier 2019 ;- les secondes observations présentées pour la société Arkema par la SCP Célice, Soltner, Texidor, Perier, enregistrées le 22 janvier 2019 ; Après avoir entendu Me Guido-Deaïbes pour la société requérante, Me Jean-Jacques Gatineau, avocat au Conseil d'État et à la Cour de cassation, pour la partie en défense, Me Damien Célice, avocat au Conseil d'État et à la Cour de cassation
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CONSTEXT000038472153_3
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CONSTEXT000038472153
| 3 |
84eaec451ce22cfb
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QPC
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Conformité
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Société ODDO BHF [Exclusion de l'assiette des cotisations sociales des actions attribuées gratuitement ]
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2018-767
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2019-02-22
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la société requérante, Me Jean-Jacques Gatineau, avocat au Conseil d'État et à la Cour de cassation, pour la partie en défense, Me Damien Célice, avocat au Conseil d'État et à la Cour de cassation pour les sociétés intervenantes et M. Philippe Blanc, désigné par le Premier ministre, à l'audience publique du 12 février 2019 ;Et après avoir entendu le rapporteur ; LE CONSEIL CONSTITUTIONNEL S'EST FONDÉ SUR CE QUI SUIT :
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Société ODDO BHF [Exclusion de l'assiette des cotisations sociales des actions attribuées gratuitement ]
la société requérante, Me Jean-Jacques Gatineau, avocat au Conseil d'État et à la Cour de cassation, pour la partie en défense, Me Damien Célice, avocat au Conseil d'État et à la Cour de cassation pour les sociétés intervenantes et M. Philippe Blanc, désigné par le Premier ministre, à l'audience publique du 12 février 2019 ;Et après avoir entendu le rapporteur ; LE CONSEIL CONSTITUTIONNEL S'EST FONDÉ SUR CE QUI SUIT :
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CONSTEXT000038472153_6
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CONSTEXT000038472153
| 6 |
d586657922363989
|
QPC
|
Conformité
|
Société ODDO BHF [Exclusion de l'assiette des cotisations sociales des actions attribuées gratuitement ]
|
2018-767
|
2019-02-22
|
des employeurs aux institutions mettant en œuvre les régimes institués en application de l'article L. 921-4 et dues au titre de la part patronale en application des textes régissant ces couvertures d'engagements de retraite complémentaire. « Sont exclues de l'assiette des cotisations mentionnées au premier alinéa les contributions des employeurs destinées au financement des prestations complémentaires de retraite et de prévoyance versées au bénéfice de leurs salariés, anciens salariés et de leurs ayants droit par les organismes régis par les titres III et IV du livre IX du présent code ou le livre II du code de la mutualité, par des entreprises régies par le code des assurances ainsi que par les institutions mentionnées à l'article L. 370-1 du code des assurances et proposant des contrats mentionnés à l'article L. 143-1 dudit code, à la section 9 du chapitre II du titre III du livre IX du code de la sécurité sociale ou au chapitre II bis du titre II du livre II du code de la mutualité lorsque ces garanties entrent dans le champ des articles L. 911-1 et L. 911-2 du présent code, revêtent un caractère obligatoire et bénéficient à titre collectif à l'ensemble des salariés ou à une partie d'entre eux sous réserve qu'ils appartiennent à une catégorie établie à partir de critères objectifs déterminés par décret en Conseil d'État : « 1° Dans des limites fixées par décret, pour les contributions au financement d'opérations de retraite déterminées par décret ; l'abondement de
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Société ODDO BHF [Exclusion de l'assiette des cotisations sociales des actions attribuées gratuitement ]
des employeurs aux institutions mettant en œuvre les régimes institués en application de l'article L. 921-4 et dues au titre de la part patronale en application des textes régissant ces couvertures d'engagements de retraite complémentaire. « Sont exclues de l'assiette des cotisations mentionnées au premier alinéa les contributions des employeurs destinées au financement des prestations complémentaires de retraite et de prévoyance versées au bénéfice de leurs salariés, anciens salariés et de leurs ayants droit par les organismes régis par les titres III et IV du livre IX du présent code ou le livre II du code de la mutualité, par des entreprises régies par le code des assurances ainsi que par les institutions mentionnées à l'article L. 370-1 du code des assurances et proposant des contrats mentionnés à l'article L. 143-1 dudit code, à la section 9 du chapitre II du titre III du livre IX du code de la sécurité sociale ou au chapitre II bis du titre II du livre II du code de la mutualité lorsque ces garanties entrent dans le champ des articles L. 911-1 et L. 911-2 du présent code, revêtent un caractère obligatoire et bénéficient à titre collectif à l'ensemble des salariés ou à une partie d'entre eux sous réserve qu'ils appartiennent à une catégorie établie à partir de critères objectifs déterminés par décret en Conseil d'État : « 1° Dans des limites fixées par décret, pour les contributions au financement d'opérations de retraite déterminées par décret ; l'abondement de
|
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CONSTEXT000038472153_7
|
CONSTEXT000038472153
| 7 |
2530f98103b98ccf
|
QPC
|
Conformité
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Société ODDO BHF [Exclusion de l'assiette des cotisations sociales des actions attribuées gratuitement ]
|
2018-767
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2019-02-22
|
objectifs déterminés par décret en Conseil d'État : « 1° Dans des limites fixées par décret, pour les contributions au financement d'opérations de retraite déterminées par décret ; l'abondement de l'employeur à un plan d'épargne pour la retraite collectif exonéré aux termes du deuxième alinéa de l'article L. 443-8 du code du travail est pris en compte pour l'application de ces limites ; « 2° Dans des limites fixées par décret, pour les contributions au financement de prestations complémentaires de prévoyance, à condition, lorsque ces contributions financent des garanties portant sur le remboursement ou l'indemnisation de frais occasionnés par une maladie, une maternité ou un accident, que ces garanties ne couvrent pas la participation mentionnée au II de l'article L. 322-2 ou la franchise annuelle prévue au III du même article. « Toutefois, les dispositions des trois alinéas précédents ne sont pas applicables lorsque lesdites contributions se substituent à d'autres éléments de rémunération au sens du présent article, à moins qu'un délai de douze mois ne se soit écoulé entre le dernier versement de l'élément de rémunération en tout ou partie supprimé et le premier versement desdites contributions. « Les personnes visées au 20° de l'article L. 311-3 qui procèdent par achat et revente de produits ou de services sont tenues de communiquer le pourcentage de leur marge bénéficiaire à l'entreprise avec laquelle elles sont liées. « Sont également pris en compte, dans les conditions
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Société ODDO BHF [Exclusion de l'assiette des cotisations sociales des actions attribuées gratuitement ]
objectifs déterminés par décret en Conseil d'État : « 1° Dans des limites fixées par décret, pour les contributions au financement d'opérations de retraite déterminées par décret ; l'abondement de l'employeur à un plan d'épargne pour la retraite collectif exonéré aux termes du deuxième alinéa de l'article L. 443-8 du code du travail est pris en compte pour l'application de ces limites ; « 2° Dans des limites fixées par décret, pour les contributions au financement de prestations complémentaires de prévoyance, à condition, lorsque ces contributions financent des garanties portant sur le remboursement ou l'indemnisation de frais occasionnés par une maladie, une maternité ou un accident, que ces garanties ne couvrent pas la participation mentionnée au II de l'article L. 322-2 ou la franchise annuelle prévue au III du même article. « Toutefois, les dispositions des trois alinéas précédents ne sont pas applicables lorsque lesdites contributions se substituent à d'autres éléments de rémunération au sens du présent article, à moins qu'un délai de douze mois ne se soit écoulé entre le dernier versement de l'élément de rémunération en tout ou partie supprimé et le premier versement desdites contributions. « Les personnes visées au 20° de l'article L. 311-3 qui procèdent par achat et revente de produits ou de services sont tenues de communiquer le pourcentage de leur marge bénéficiaire à l'entreprise avec laquelle elles sont liées. « Sont également pris en compte, dans les conditions
|
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CONSTEXT000038472153_8
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CONSTEXT000038472153
| 8 |
978bb2d6966015ae
|
QPC
|
Conformité
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Société ODDO BHF [Exclusion de l'assiette des cotisations sociales des actions attribuées gratuitement ]
|
2018-767
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2019-02-22
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de produits ou de services sont tenues de communiquer le pourcentage de leur marge bénéficiaire à l'entreprise avec laquelle elles sont liées. « Sont également pris en compte, dans les conditions prévues à l'article L. 242-11, les revenus tirés de la location de tout ou partie d'un fonds de commerce, d'un établissement artisanal, ou d'un établissement commercial ou industriel muni du mobilier ou du matériel nécessaire à son exploitation, que la location, dans ce dernier cas, comprenne ou non tout ou partie des éléments incorporels du fonds de commerce ou d'industrie, lorsque ces revenus sont perçus par une personne qui réalise des actes de commerce au titre de l'entreprise louée ou y exerce une activité. « Est exclue de l'assiette des cotisations mentionnées au premier alinéa, dans la limite d'un montant fixé à trois fois la valeur annuelle du plafond mentionné à l'article L. 241-3, la part des indemnités versées à l'occasion de la rupture du contrat de travail ou de la cessation forcée des fonctions de mandataires sociaux, dirigeants et personnes visées à l'article 80 ter du code général des impôts qui n'est pas imposable en application de l'article 80 duodecies du même code. Toutefois, les indemnités d'un montant supérieur à trente fois le plafond annuel défini par l'article L. 241-3 du présent code sont intégralement assimilées à des rémunérations pour le calcul des cotisations visées au premier alinéa du présent article. Pour l'application du présent alinéa, il est fait
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Société ODDO BHF [Exclusion de l'assiette des cotisations sociales des actions attribuées gratuitement ]
de produits ou de services sont tenues de communiquer le pourcentage de leur marge bénéficiaire à l'entreprise avec laquelle elles sont liées. « Sont également pris en compte, dans les conditions prévues à l'article L. 242-11, les revenus tirés de la location de tout ou partie d'un fonds de commerce, d'un établissement artisanal, ou d'un établissement commercial ou industriel muni du mobilier ou du matériel nécessaire à son exploitation, que la location, dans ce dernier cas, comprenne ou non tout ou partie des éléments incorporels du fonds de commerce ou d'industrie, lorsque ces revenus sont perçus par une personne qui réalise des actes de commerce au titre de l'entreprise louée ou y exerce une activité. « Est exclue de l'assiette des cotisations mentionnées au premier alinéa, dans la limite d'un montant fixé à trois fois la valeur annuelle du plafond mentionné à l'article L. 241-3, la part des indemnités versées à l'occasion de la rupture du contrat de travail ou de la cessation forcée des fonctions de mandataires sociaux, dirigeants et personnes visées à l'article 80 ter du code général des impôts qui n'est pas imposable en application de l'article 80 duodecies du même code. Toutefois, les indemnités d'un montant supérieur à trente fois le plafond annuel défini par l'article L. 241-3 du présent code sont intégralement assimilées à des rémunérations pour le calcul des cotisations visées au premier alinéa du présent article. Pour l'application du présent alinéa, il est fait
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CONSTEXT000038472153_9
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CONSTEXT000038472153
| 9 |
3c021f9f7b0d5487
|
QPC
|
Conformité
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Société ODDO BHF [Exclusion de l'assiette des cotisations sociales des actions attribuées gratuitement ]
|
2018-767
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2019-02-22
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241-3 du présent code sont intégralement assimilées à des rémunérations pour le calcul des cotisations visées au premier alinéa du présent article. Pour l'application du présent alinéa, il est fait masse des indemnités liées à la rupture du contrat de travail et de celles liées à la cessation forcée des fonctions. « Les attributions gratuites d'actions effectuées conformément aux dispositions des articles L. 225-197-1 à L. 225-197-3 du code de commerce sont exclues de l'assiette des cotisations mentionnées au premier alinéa si elles sont conservées dans les conditions mentionnées au I de l'article 80 quaterdecies du code général des impôts et si l'employeur notifie à son organisme de recouvrement l'identité de ses salariés ou mandataires sociaux auxquels des actions gratuites ont été attribuées définitivement au cours de l'année civile précédente, ainsi que le nombre et la valeur des actions attribuées à chacun d'entre eux. À défaut, l'employeur est tenu au paiement de la totalité des cotisations sociales, y compris pour leur part salariale. « Les dispositions de l'avant-dernier alinéa sont également applicables lorsque l'attribution est effectuée, dans les mêmes conditions, par une société dont le siège est situé à l'étranger et qui est mère ou filiale de l'entreprise dans laquelle l'attributaire exerce son activité. « Les dispositions des deux alinéas précédents ne donnent pas lieu à application de l'article L. 131-7 ».
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Société ODDO BHF [Exclusion de l'assiette des cotisations sociales des actions attribuées gratuitement ]
241-3 du présent code sont intégralement assimilées à des rémunérations pour le calcul des cotisations visées au premier alinéa du présent article. Pour l'application du présent alinéa, il est fait masse des indemnités liées à la rupture du contrat de travail et de celles liées à la cessation forcée des fonctions. « Les attributions gratuites d'actions effectuées conformément aux dispositions des articles L. 225-197-1 à L. 225-197-3 du code de commerce sont exclues de l'assiette des cotisations mentionnées au premier alinéa si elles sont conservées dans les conditions mentionnées au I de l'article 80 quaterdecies du code général des impôts et si l'employeur notifie à son organisme de recouvrement l'identité de ses salariés ou mandataires sociaux auxquels des actions gratuites ont été attribuées définitivement au cours de l'année civile précédente, ainsi que le nombre et la valeur des actions attribuées à chacun d'entre eux. À défaut, l'employeur est tenu au paiement de la totalité des cotisations sociales, y compris pour leur part salariale. « Les dispositions de l'avant-dernier alinéa sont également applicables lorsque l'attribution est effectuée, dans les mêmes conditions, par une société dont le siège est situé à l'étranger et qui est mère ou filiale de l'entreprise dans laquelle l'attributaire exerce son activité. « Les dispositions des deux alinéas précédents ne donnent pas lieu à application de l'article L. 131-7 ».
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CONSTEXT000038472153_10
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CONSTEXT000038472153
| 10 |
de067abdbb1b34d6
|
QPC
|
Conformité
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Société ODDO BHF [Exclusion de l'assiette des cotisations sociales des actions attribuées gratuitement ]
|
2018-767
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2019-02-22
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2. L'article L. 242-1 du code de la sécurité sociale, dans sa rédaction résultant de la loi du 21 décembre 2011 mentionnée ci-dessus, prévoit :« Pour le calcul des cotisations des assurances sociales, des accidents du travail et des allocations familiales, sont considérées comme rémunérations toutes les sommes versées aux travailleurs en contrepartie ou à l'occasion du travail, notamment les salaires ou gains, les indemnités de congés payés, le montant des retenues pour cotisations ouvrières, les indemnités, primes, gratifications et tous autres avantages en argent, les avantages en nature, ainsi que les sommes perçues directement ou par l'entremise d'un tiers à titre de pourboire. La compensation salariale d'une perte de rémunération induite par une mesure de réduction du temps de travail est également considérée comme une rémunération, qu'elle prenne la forme, notamment, d'un complément différentiel de salaire ou d'une hausse du taux de salaire horaire. « Lorsque le bénéficiaire d'une option accordée dans les conditions prévues aux articles L. 225-177 à L. 225-186 du code de commerce ne remplit pas les conditions prévues au I de l'article 163 bis C du code général des impôts, est considéré comme une rémunération le montant déterminé conformément au II du même article. Toutefois l'avantage correspondant à la différence définie au II de l'article 80 bis du code général des impôts est considéré comme une rémunération lors de la levée de l'option. « Il ne peut être opéré sur
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Société ODDO BHF [Exclusion de l'assiette des cotisations sociales des actions attribuées gratuitement ]
2. L'article L. 242-1 du code de la sécurité sociale, dans sa rédaction résultant de la loi du 21 décembre 2011 mentionnée ci-dessus, prévoit :« Pour le calcul des cotisations des assurances sociales, des accidents du travail et des allocations familiales, sont considérées comme rémunérations toutes les sommes versées aux travailleurs en contrepartie ou à l'occasion du travail, notamment les salaires ou gains, les indemnités de congés payés, le montant des retenues pour cotisations ouvrières, les indemnités, primes, gratifications et tous autres avantages en argent, les avantages en nature, ainsi que les sommes perçues directement ou par l'entremise d'un tiers à titre de pourboire. La compensation salariale d'une perte de rémunération induite par une mesure de réduction du temps de travail est également considérée comme une rémunération, qu'elle prenne la forme, notamment, d'un complément différentiel de salaire ou d'une hausse du taux de salaire horaire. « Lorsque le bénéficiaire d'une option accordée dans les conditions prévues aux articles L. 225-177 à L. 225-186 du code de commerce ne remplit pas les conditions prévues au I de l'article 163 bis C du code général des impôts, est considéré comme une rémunération le montant déterminé conformément au II du même article. Toutefois l'avantage correspondant à la différence définie au II de l'article 80 bis du code général des impôts est considéré comme une rémunération lors de la levée de l'option. « Il ne peut être opéré sur
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CONSTEXT000038472153_11
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CONSTEXT000038472153
| 11 |
87a23765edfb1d99
|
QPC
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Conformité
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Société ODDO BHF [Exclusion de l'assiette des cotisations sociales des actions attribuées gratuitement ]
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2018-767
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2019-02-22
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l'avantage correspondant à la différence définie au II de l'article 80 bis du code général des impôts est considéré comme une rémunération lors de la levée de l'option. « Il ne peut être opéré sur la rémunération ou le gain des intéressés servant au calcul des cotisations des assurances sociales, des accidents du travail et des allocations familiales, de déduction au titre de frais professionnels que dans les conditions et limites fixées par arrêté interministériel. Il ne pourra également être procédé à des déductions au titre de frais d'atelier que dans les conditions et limites fixées par arrêté ministériel. « Ne seront pas comprises dans la rémunération les prestations de sécurité sociale versées au bénéfice de leurs salariés, anciens salariés et de leurs ayants droit par l'entremise de l'employeur. « Sont exclues de l'assiette des cotisations mentionnées au premier alinéa les contributions mises à la charge des employeurs en application d'une disposition législative ou réglementaire ou d'un accord national interprofessionnel mentionné à l'article L. 921-4, destinées au financement des régimes de retraite complémentaire mentionnés au chapitre Ier du titre II du livre IX ou versées en couverture d'engagements de retraite complémentaire souscrits antérieurement à l'adhésion des employeurs aux institutions mettant en œuvre les régimes institués en application de l'article L. 921-4 et dues au titre de la part patronale en application des textes régissant ces couvertures
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Société ODDO BHF [Exclusion de l'assiette des cotisations sociales des actions attribuées gratuitement ]
l'avantage correspondant à la différence définie au II de l'article 80 bis du code général des impôts est considéré comme une rémunération lors de la levée de l'option. « Il ne peut être opéré sur la rémunération ou le gain des intéressés servant au calcul des cotisations des assurances sociales, des accidents du travail et des allocations familiales, de déduction au titre de frais professionnels que dans les conditions et limites fixées par arrêté interministériel. Il ne pourra également être procédé à des déductions au titre de frais d'atelier que dans les conditions et limites fixées par arrêté ministériel. « Ne seront pas comprises dans la rémunération les prestations de sécurité sociale versées au bénéfice de leurs salariés, anciens salariés et de leurs ayants droit par l'entremise de l'employeur. « Sont exclues de l'assiette des cotisations mentionnées au premier alinéa les contributions mises à la charge des employeurs en application d'une disposition législative ou réglementaire ou d'un accord national interprofessionnel mentionné à l'article L. 921-4, destinées au financement des régimes de retraite complémentaire mentionnés au chapitre Ier du titre II du livre IX ou versées en couverture d'engagements de retraite complémentaire souscrits antérieurement à l'adhésion des employeurs aux institutions mettant en œuvre les régimes institués en application de l'article L. 921-4 et dues au titre de la part patronale en application des textes régissant ces couvertures
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CONSTEXT000038472153_12
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CONSTEXT000038472153
| 12 |
d586657922363989
|
QPC
|
Conformité
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Société ODDO BHF [Exclusion de l'assiette des cotisations sociales des actions attribuées gratuitement ]
|
2018-767
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2019-02-22
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des employeurs aux institutions mettant en œuvre les régimes institués en application de l'article L. 921-4 et dues au titre de la part patronale en application des textes régissant ces couvertures d'engagements de retraite complémentaire. « Sont exclues de l'assiette des cotisations mentionnées au premier alinéa les contributions des employeurs destinées au financement des prestations complémentaires de retraite et de prévoyance versées au bénéfice de leurs salariés, anciens salariés et de leurs ayants droit par les organismes régis par les titres III et IV du livre IX du présent code ou le livre II du code de la mutualité, par des entreprises régies par le code des assurances ainsi que par les institutions mentionnées à l'article L. 370-1 du code des assurances et proposant des contrats mentionnés à l'article L. 143-1 dudit code, à la section 9 du chapitre II du titre III du livre IX du code de la sécurité sociale ou au chapitre II bis du titre II du livre II du code de la mutualité lorsque ces garanties entrent dans le champ des articles L. 911-1 et L. 911-2 du présent code, revêtent un caractère obligatoire et bénéficient à titre collectif à l'ensemble des salariés ou à une partie d'entre eux sous réserve qu'ils appartiennent à une catégorie établie à partir de critères objectifs déterminés par décret en Conseil d'État : « 1° Dans des limites fixées par décret, pour les contributions au financement d'opérations de retraite déterminées par décret ; l'abondement de
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Société ODDO BHF [Exclusion de l'assiette des cotisations sociales des actions attribuées gratuitement ]
des employeurs aux institutions mettant en œuvre les régimes institués en application de l'article L. 921-4 et dues au titre de la part patronale en application des textes régissant ces couvertures d'engagements de retraite complémentaire. « Sont exclues de l'assiette des cotisations mentionnées au premier alinéa les contributions des employeurs destinées au financement des prestations complémentaires de retraite et de prévoyance versées au bénéfice de leurs salariés, anciens salariés et de leurs ayants droit par les organismes régis par les titres III et IV du livre IX du présent code ou le livre II du code de la mutualité, par des entreprises régies par le code des assurances ainsi que par les institutions mentionnées à l'article L. 370-1 du code des assurances et proposant des contrats mentionnés à l'article L. 143-1 dudit code, à la section 9 du chapitre II du titre III du livre IX du code de la sécurité sociale ou au chapitre II bis du titre II du livre II du code de la mutualité lorsque ces garanties entrent dans le champ des articles L. 911-1 et L. 911-2 du présent code, revêtent un caractère obligatoire et bénéficient à titre collectif à l'ensemble des salariés ou à une partie d'entre eux sous réserve qu'ils appartiennent à une catégorie établie à partir de critères objectifs déterminés par décret en Conseil d'État : « 1° Dans des limites fixées par décret, pour les contributions au financement d'opérations de retraite déterminées par décret ; l'abondement de
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CONSTEXT000038472153_13
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CONSTEXT000038472153
| 13 |
2530f98103b98ccf
|
QPC
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Conformité
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Société ODDO BHF [Exclusion de l'assiette des cotisations sociales des actions attribuées gratuitement ]
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2018-767
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2019-02-22
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objectifs déterminés par décret en Conseil d'État : « 1° Dans des limites fixées par décret, pour les contributions au financement d'opérations de retraite déterminées par décret ; l'abondement de l'employeur à un plan d'épargne pour la retraite collectif exonéré aux termes du deuxième alinéa de l'article L. 443-8 du code du travail est pris en compte pour l'application de ces limites ; « 2° Dans des limites fixées par décret, pour les contributions au financement de prestations complémentaires de prévoyance, à condition, lorsque ces contributions financent des garanties portant sur le remboursement ou l'indemnisation de frais occasionnés par une maladie, une maternité ou un accident, que ces garanties ne couvrent pas la participation mentionnée au II de l'article L. 322-2 ou la franchise annuelle prévue au III du même article. « Toutefois, les dispositions des trois alinéas précédents ne sont pas applicables lorsque lesdites contributions se substituent à d'autres éléments de rémunération au sens du présent article, à moins qu'un délai de douze mois ne se soit écoulé entre le dernier versement de l'élément de rémunération en tout ou partie supprimé et le premier versement desdites contributions. « Les personnes visées au 20° de l'article L. 311-3 qui procèdent par achat et revente de produits ou de services sont tenues de communiquer le pourcentage de leur marge bénéficiaire à l'entreprise avec laquelle elles sont liées. « Sont également pris en compte, dans les conditions
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Société ODDO BHF [Exclusion de l'assiette des cotisations sociales des actions attribuées gratuitement ]
objectifs déterminés par décret en Conseil d'État : « 1° Dans des limites fixées par décret, pour les contributions au financement d'opérations de retraite déterminées par décret ; l'abondement de l'employeur à un plan d'épargne pour la retraite collectif exonéré aux termes du deuxième alinéa de l'article L. 443-8 du code du travail est pris en compte pour l'application de ces limites ; « 2° Dans des limites fixées par décret, pour les contributions au financement de prestations complémentaires de prévoyance, à condition, lorsque ces contributions financent des garanties portant sur le remboursement ou l'indemnisation de frais occasionnés par une maladie, une maternité ou un accident, que ces garanties ne couvrent pas la participation mentionnée au II de l'article L. 322-2 ou la franchise annuelle prévue au III du même article. « Toutefois, les dispositions des trois alinéas précédents ne sont pas applicables lorsque lesdites contributions se substituent à d'autres éléments de rémunération au sens du présent article, à moins qu'un délai de douze mois ne se soit écoulé entre le dernier versement de l'élément de rémunération en tout ou partie supprimé et le premier versement desdites contributions. « Les personnes visées au 20° de l'article L. 311-3 qui procèdent par achat et revente de produits ou de services sont tenues de communiquer le pourcentage de leur marge bénéficiaire à l'entreprise avec laquelle elles sont liées. « Sont également pris en compte, dans les conditions
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CONSTEXT000038472153_14
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CONSTEXT000038472153
| 14 |
bdeebbea002c9f68
|
QPC
|
Conformité
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Société ODDO BHF [Exclusion de l'assiette des cotisations sociales des actions attribuées gratuitement ]
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2018-767
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2019-02-22
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de produits ou de services sont tenues de communiquer le pourcentage de leur marge bénéficiaire à l'entreprise avec laquelle elles sont liées. « Sont également pris en compte, dans les conditions prévues à l'article L. 242-11, les revenus tirés de la location de tout ou partie d'un fonds de commerce, d'un établissement artisanal, ou d'un établissement commercial ou industriel muni du mobilier ou du matériel nécessaire à son exploitation, que la location, dans ce dernier cas, comprenne ou non tout ou partie des éléments incorporels du fonds de commerce ou d'industrie, lorsque ces revenus sont perçus par une personne qui réalise des actes de commerce au titre de l'entreprise louée ou y exerce une activité. « Est exclue de l'assiette des cotisations mentionnées au premier alinéa, dans la limite d'un montant fixé à deux fois la valeur annuelle du plafond mentionné à l'article L. 241-3, la part des indemnités versées à l'occasion de la rupture du contrat de travail ou de la cessation forcée des fonctions de mandataires sociaux, dirigeants et personnes visées à l'article 80 ter du code général des impôts qui n'est pas imposable en application de l'article 80 duodecies du même code. Toutefois, les indemnités d'un montant supérieur à trente fois le plafond annuel défini par l'article L. 241-3 du présent code sont intégralement assimilées à des rémunérations pour le calcul des cotisations visées au premier alinéa du présent article. Pour l'application du présent alinéa, il est fait
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Société ODDO BHF [Exclusion de l'assiette des cotisations sociales des actions attribuées gratuitement ]
de produits ou de services sont tenues de communiquer le pourcentage de leur marge bénéficiaire à l'entreprise avec laquelle elles sont liées. « Sont également pris en compte, dans les conditions prévues à l'article L. 242-11, les revenus tirés de la location de tout ou partie d'un fonds de commerce, d'un établissement artisanal, ou d'un établissement commercial ou industriel muni du mobilier ou du matériel nécessaire à son exploitation, que la location, dans ce dernier cas, comprenne ou non tout ou partie des éléments incorporels du fonds de commerce ou d'industrie, lorsque ces revenus sont perçus par une personne qui réalise des actes de commerce au titre de l'entreprise louée ou y exerce une activité. « Est exclue de l'assiette des cotisations mentionnées au premier alinéa, dans la limite d'un montant fixé à deux fois la valeur annuelle du plafond mentionné à l'article L. 241-3, la part des indemnités versées à l'occasion de la rupture du contrat de travail ou de la cessation forcée des fonctions de mandataires sociaux, dirigeants et personnes visées à l'article 80 ter du code général des impôts qui n'est pas imposable en application de l'article 80 duodecies du même code. Toutefois, les indemnités d'un montant supérieur à trente fois le plafond annuel défini par l'article L. 241-3 du présent code sont intégralement assimilées à des rémunérations pour le calcul des cotisations visées au premier alinéa du présent article. Pour l'application du présent alinéa, il est fait
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CONSTEXT000038472153_15
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CONSTEXT000038472153
| 15 |
3c021f9f7b0d5487
|
QPC
|
Conformité
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Société ODDO BHF [Exclusion de l'assiette des cotisations sociales des actions attribuées gratuitement ]
|
2018-767
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2019-02-22
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241-3 du présent code sont intégralement assimilées à des rémunérations pour le calcul des cotisations visées au premier alinéa du présent article. Pour l'application du présent alinéa, il est fait masse des indemnités liées à la rupture du contrat de travail et de celles liées à la cessation forcée des fonctions. « Les attributions gratuites d'actions effectuées conformément aux dispositions des articles L. 225-197-1 à L. 225-197-3 du code de commerce sont exclues de l'assiette des cotisations mentionnées au premier alinéa si elles sont conservées dans les conditions mentionnées au I de l'article 80 quaterdecies du code général des impôts et si l'employeur notifie à son organisme de recouvrement l'identité de ses salariés ou mandataires sociaux auxquels des actions gratuites ont été attribuées définitivement au cours de l'année civile précédente, ainsi que le nombre et la valeur des actions attribuées à chacun d'entre eux. À défaut, l'employeur est tenu au paiement de la totalité des cotisations sociales, y compris pour leur part salariale. « Les dispositions de l'avant-dernier alinéa sont également applicables lorsque l'attribution est effectuée, dans les mêmes conditions, par une société dont le siège est situé à l'étranger et qui est mère ou filiale de l'entreprise dans laquelle l'attributaire exerce son activité. « Les dispositions des deux alinéas précédents ne donnent pas lieu à application de l'article L. 131-7 ».
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Société ODDO BHF [Exclusion de l'assiette des cotisations sociales des actions attribuées gratuitement ]
241-3 du présent code sont intégralement assimilées à des rémunérations pour le calcul des cotisations visées au premier alinéa du présent article. Pour l'application du présent alinéa, il est fait masse des indemnités liées à la rupture du contrat de travail et de celles liées à la cessation forcée des fonctions. « Les attributions gratuites d'actions effectuées conformément aux dispositions des articles L. 225-197-1 à L. 225-197-3 du code de commerce sont exclues de l'assiette des cotisations mentionnées au premier alinéa si elles sont conservées dans les conditions mentionnées au I de l'article 80 quaterdecies du code général des impôts et si l'employeur notifie à son organisme de recouvrement l'identité de ses salariés ou mandataires sociaux auxquels des actions gratuites ont été attribuées définitivement au cours de l'année civile précédente, ainsi que le nombre et la valeur des actions attribuées à chacun d'entre eux. À défaut, l'employeur est tenu au paiement de la totalité des cotisations sociales, y compris pour leur part salariale. « Les dispositions de l'avant-dernier alinéa sont également applicables lorsque l'attribution est effectuée, dans les mêmes conditions, par une société dont le siège est situé à l'étranger et qui est mère ou filiale de l'entreprise dans laquelle l'attributaire exerce son activité. « Les dispositions des deux alinéas précédents ne donnent pas lieu à application de l'article L. 131-7 ».
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CONSTEXT000038472153_16
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CONSTEXT000038472153
| 16 |
7e8d368a847f16a7
|
QPC
|
Conformité
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Société ODDO BHF [Exclusion de l'assiette des cotisations sociales des actions attribuées gratuitement ]
|
2018-767
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2019-02-22
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3. L'article L. 242-1 du code de la sécurité sociale, dans sa rédaction résultant de la loi du 16 août 2012 mentionnée ci-dessus, prévoit :« Pour le calcul des cotisations des assurances sociales, des accidents du travail et des allocations familiales, sont considérées comme rémunérations toutes les sommes versées aux travailleurs en contrepartie ou à l'occasion du travail, notamment les salaires ou gains, les indemnités de congés payés, le montant des retenues pour cotisations ouvrières, les indemnités, primes, gratifications et tous autres avantages en argent, les avantages en nature, ainsi que les sommes perçues directement ou par l'entremise d'un tiers à titre de pourboire. La compensation salariale d'une perte de rémunération induite par une mesure de réduction du temps de travail est également considérée comme une rémunération, qu'elle prenne la forme, notamment, d'un complément différentiel de salaire ou d'une hausse du taux de salaire horaire. « Lorsque le bénéficiaire d'une option accordée dans les conditions prévues aux articles L. 225-177 à L. 225-186 du code de commerce ne remplit pas les conditions prévues au I de l'article 163 bis C du code général des impôts, est considéré comme une rémunération le montant déterminé conformément au II du même article. Toutefois l'avantage correspondant à la différence définie au II de l'article 80 bis du code général des impôts est considéré comme une rémunération lors de la levée de l'option. « Il ne peut être opéré sur la
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Société ODDO BHF [Exclusion de l'assiette des cotisations sociales des actions attribuées gratuitement ]
3. L'article L. 242-1 du code de la sécurité sociale, dans sa rédaction résultant de la loi du 16 août 2012 mentionnée ci-dessus, prévoit :« Pour le calcul des cotisations des assurances sociales, des accidents du travail et des allocations familiales, sont considérées comme rémunérations toutes les sommes versées aux travailleurs en contrepartie ou à l'occasion du travail, notamment les salaires ou gains, les indemnités de congés payés, le montant des retenues pour cotisations ouvrières, les indemnités, primes, gratifications et tous autres avantages en argent, les avantages en nature, ainsi que les sommes perçues directement ou par l'entremise d'un tiers à titre de pourboire. La compensation salariale d'une perte de rémunération induite par une mesure de réduction du temps de travail est également considérée comme une rémunération, qu'elle prenne la forme, notamment, d'un complément différentiel de salaire ou d'une hausse du taux de salaire horaire. « Lorsque le bénéficiaire d'une option accordée dans les conditions prévues aux articles L. 225-177 à L. 225-186 du code de commerce ne remplit pas les conditions prévues au I de l'article 163 bis C du code général des impôts, est considéré comme une rémunération le montant déterminé conformément au II du même article. Toutefois l'avantage correspondant à la différence définie au II de l'article 80 bis du code général des impôts est considéré comme une rémunération lors de la levée de l'option. « Il ne peut être opéré sur la
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CONSTEXT000038472153_17
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CONSTEXT000038472153
| 17 |
87a23765edfb1d99
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QPC
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Conformité
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Société ODDO BHF [Exclusion de l'assiette des cotisations sociales des actions attribuées gratuitement ]
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2018-767
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2019-02-22
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l'avantage correspondant à la différence définie au II de l'article 80 bis du code général des impôts est considéré comme une rémunération lors de la levée de l'option. « Il ne peut être opéré sur la rémunération ou le gain des intéressés servant au calcul des cotisations des assurances sociales, des accidents du travail et des allocations familiales, de déduction au titre de frais professionnels que dans les conditions et limites fixées par arrêté interministériel. Il ne pourra également être procédé à des déductions au titre de frais d'atelier que dans les conditions et limites fixées par arrêté ministériel. « Ne seront pas comprises dans la rémunération les prestations de sécurité sociale versées au bénéfice de leurs salariés, anciens salariés et de leurs ayants droit par l'entremise de l'employeur. « Sont exclues de l'assiette des cotisations mentionnées au premier alinéa les contributions mises à la charge des employeurs en application d'une disposition législative ou réglementaire ou d'un accord national interprofessionnel mentionné à l'article L. 921-4, destinées au financement des régimes de retraite complémentaire mentionnés au chapitre Ier du titre II du livre IX ou versées en couverture d'engagements de retraite complémentaire souscrits antérieurement à l'adhésion des employeurs aux institutions mettant en œuvre les régimes institués en application de l'article L. 921-4 et dues au titre de la part patronale en application des textes régissant ces couvertures
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Société ODDO BHF [Exclusion de l'assiette des cotisations sociales des actions attribuées gratuitement ]
l'avantage correspondant à la différence définie au II de l'article 80 bis du code général des impôts est considéré comme une rémunération lors de la levée de l'option. « Il ne peut être opéré sur la rémunération ou le gain des intéressés servant au calcul des cotisations des assurances sociales, des accidents du travail et des allocations familiales, de déduction au titre de frais professionnels que dans les conditions et limites fixées par arrêté interministériel. Il ne pourra également être procédé à des déductions au titre de frais d'atelier que dans les conditions et limites fixées par arrêté ministériel. « Ne seront pas comprises dans la rémunération les prestations de sécurité sociale versées au bénéfice de leurs salariés, anciens salariés et de leurs ayants droit par l'entremise de l'employeur. « Sont exclues de l'assiette des cotisations mentionnées au premier alinéa les contributions mises à la charge des employeurs en application d'une disposition législative ou réglementaire ou d'un accord national interprofessionnel mentionné à l'article L. 921-4, destinées au financement des régimes de retraite complémentaire mentionnés au chapitre Ier du titre II du livre IX ou versées en couverture d'engagements de retraite complémentaire souscrits antérieurement à l'adhésion des employeurs aux institutions mettant en œuvre les régimes institués en application de l'article L. 921-4 et dues au titre de la part patronale en application des textes régissant ces couvertures
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CONSTEXT000038472153_18
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CONSTEXT000038472153
| 18 |
d586657922363989
|
QPC
|
Conformité
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Société ODDO BHF [Exclusion de l'assiette des cotisations sociales des actions attribuées gratuitement ]
|
2018-767
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2019-02-22
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des employeurs aux institutions mettant en œuvre les régimes institués en application de l'article L. 921-4 et dues au titre de la part patronale en application des textes régissant ces couvertures d'engagements de retraite complémentaire. « Sont exclues de l'assiette des cotisations mentionnées au premier alinéa les contributions des employeurs destinées au financement des prestations complémentaires de retraite et de prévoyance versées au bénéfice de leurs salariés, anciens salariés et de leurs ayants droit par les organismes régis par les titres III et IV du livre IX du présent code ou le livre II du code de la mutualité, par des entreprises régies par le code des assurances ainsi que par les institutions mentionnées à l'article L. 370-1 du code des assurances et proposant des contrats mentionnés à l'article L. 143-1 dudit code, à la section 9 du chapitre II du titre III du livre IX du code de la sécurité sociale ou au chapitre II bis du titre II du livre II du code de la mutualité lorsque ces garanties entrent dans le champ des articles L. 911-1 et L. 911-2 du présent code, revêtent un caractère obligatoire et bénéficient à titre collectif à l'ensemble des salariés ou à une partie d'entre eux sous réserve qu'ils appartiennent à une catégorie établie à partir de critères objectifs déterminés par décret en Conseil d'État : « 1° Dans des limites fixées par décret, pour les contributions au financement d'opérations de retraite déterminées par décret ; l'abondement de
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Société ODDO BHF [Exclusion de l'assiette des cotisations sociales des actions attribuées gratuitement ]
des employeurs aux institutions mettant en œuvre les régimes institués en application de l'article L. 921-4 et dues au titre de la part patronale en application des textes régissant ces couvertures d'engagements de retraite complémentaire. « Sont exclues de l'assiette des cotisations mentionnées au premier alinéa les contributions des employeurs destinées au financement des prestations complémentaires de retraite et de prévoyance versées au bénéfice de leurs salariés, anciens salariés et de leurs ayants droit par les organismes régis par les titres III et IV du livre IX du présent code ou le livre II du code de la mutualité, par des entreprises régies par le code des assurances ainsi que par les institutions mentionnées à l'article L. 370-1 du code des assurances et proposant des contrats mentionnés à l'article L. 143-1 dudit code, à la section 9 du chapitre II du titre III du livre IX du code de la sécurité sociale ou au chapitre II bis du titre II du livre II du code de la mutualité lorsque ces garanties entrent dans le champ des articles L. 911-1 et L. 911-2 du présent code, revêtent un caractère obligatoire et bénéficient à titre collectif à l'ensemble des salariés ou à une partie d'entre eux sous réserve qu'ils appartiennent à une catégorie établie à partir de critères objectifs déterminés par décret en Conseil d'État : « 1° Dans des limites fixées par décret, pour les contributions au financement d'opérations de retraite déterminées par décret ; l'abondement de
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CONSTEXT000038472153_19
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CONSTEXT000038472153
| 19 |
2530f98103b98ccf
|
QPC
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Conformité
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Société ODDO BHF [Exclusion de l'assiette des cotisations sociales des actions attribuées gratuitement ]
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2018-767
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2019-02-22
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objectifs déterminés par décret en Conseil d'État : « 1° Dans des limites fixées par décret, pour les contributions au financement d'opérations de retraite déterminées par décret ; l'abondement de l'employeur à un plan d'épargne pour la retraite collectif exonéré aux termes du deuxième alinéa de l'article L. 443-8 du code du travail est pris en compte pour l'application de ces limites ; « 2° Dans des limites fixées par décret, pour les contributions au financement de prestations complémentaires de prévoyance, à condition, lorsque ces contributions financent des garanties portant sur le remboursement ou l'indemnisation de frais occasionnés par une maladie, une maternité ou un accident, que ces garanties ne couvrent pas la participation mentionnée au II de l'article L. 322-2 ou la franchise annuelle prévue au III du même article. « Toutefois, les dispositions des trois alinéas précédents ne sont pas applicables lorsque lesdites contributions se substituent à d'autres éléments de rémunération au sens du présent article, à moins qu'un délai de douze mois ne se soit écoulé entre le dernier versement de l'élément de rémunération en tout ou partie supprimé et le premier versement desdites contributions. « Les personnes visées au 20° de l'article L. 311-3 qui procèdent par achat et revente de produits ou de services sont tenues de communiquer le pourcentage de leur marge bénéficiaire à l'entreprise avec laquelle elles sont liées. « Sont également pris en compte, dans les conditions
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Société ODDO BHF [Exclusion de l'assiette des cotisations sociales des actions attribuées gratuitement ]
objectifs déterminés par décret en Conseil d'État : « 1° Dans des limites fixées par décret, pour les contributions au financement d'opérations de retraite déterminées par décret ; l'abondement de l'employeur à un plan d'épargne pour la retraite collectif exonéré aux termes du deuxième alinéa de l'article L. 443-8 du code du travail est pris en compte pour l'application de ces limites ; « 2° Dans des limites fixées par décret, pour les contributions au financement de prestations complémentaires de prévoyance, à condition, lorsque ces contributions financent des garanties portant sur le remboursement ou l'indemnisation de frais occasionnés par une maladie, une maternité ou un accident, que ces garanties ne couvrent pas la participation mentionnée au II de l'article L. 322-2 ou la franchise annuelle prévue au III du même article. « Toutefois, les dispositions des trois alinéas précédents ne sont pas applicables lorsque lesdites contributions se substituent à d'autres éléments de rémunération au sens du présent article, à moins qu'un délai de douze mois ne se soit écoulé entre le dernier versement de l'élément de rémunération en tout ou partie supprimé et le premier versement desdites contributions. « Les personnes visées au 20° de l'article L. 311-3 qui procèdent par achat et revente de produits ou de services sont tenues de communiquer le pourcentage de leur marge bénéficiaire à l'entreprise avec laquelle elles sont liées. « Sont également pris en compte, dans les conditions
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CONSTEXT000038472153_20
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CONSTEXT000038472153
| 20 |
0ee1af792a5cc191
|
QPC
|
Conformité
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Société ODDO BHF [Exclusion de l'assiette des cotisations sociales des actions attribuées gratuitement ]
|
2018-767
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2019-02-22
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de produits ou de services sont tenues de communiquer le pourcentage de leur marge bénéficiaire à l'entreprise avec laquelle elles sont liées. « Sont également pris en compte, dans les conditions prévues à l'article L. 242-11, les revenus tirés de la location de tout ou partie d'un fonds de commerce, d'un établissement artisanal, ou d'un établissement commercial ou industriel muni du mobilier ou du matériel nécessaire à son exploitation, que la location, dans ce dernier cas, comprenne ou non tout ou partie des éléments incorporels du fonds de commerce ou d'industrie, lorsque ces revenus sont perçus par une personne qui réalise des actes de commerce au titre de l'entreprise louée ou y exerce une activité. « Est exclue de l'assiette des cotisations mentionnées au premier alinéa, dans la limite d'un montant fixé à deux fois la valeur annuelle du plafond mentionné à l'article L. 241-3, la part des indemnités versées à l'occasion de la rupture du contrat de travail ou de la cessation forcée des fonctions de mandataires sociaux, dirigeants et personnes visées à l'article 80 ter du code général des impôts qui n'est pas imposable en application de l'article 80 duodecies du même code. Toutefois, les indemnités d'un montant supérieur à dix fois le plafond annuel défini par l'article L. 241-3 du présent code sont intégralement assimilées à des rémunérations pour le calcul des cotisations visées au premier alinéa du présent article. Pour l'application du présent alinéa, il est fait
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Société ODDO BHF [Exclusion de l'assiette des cotisations sociales des actions attribuées gratuitement ]
de produits ou de services sont tenues de communiquer le pourcentage de leur marge bénéficiaire à l'entreprise avec laquelle elles sont liées. « Sont également pris en compte, dans les conditions prévues à l'article L. 242-11, les revenus tirés de la location de tout ou partie d'un fonds de commerce, d'un établissement artisanal, ou d'un établissement commercial ou industriel muni du mobilier ou du matériel nécessaire à son exploitation, que la location, dans ce dernier cas, comprenne ou non tout ou partie des éléments incorporels du fonds de commerce ou d'industrie, lorsque ces revenus sont perçus par une personne qui réalise des actes de commerce au titre de l'entreprise louée ou y exerce une activité. « Est exclue de l'assiette des cotisations mentionnées au premier alinéa, dans la limite d'un montant fixé à deux fois la valeur annuelle du plafond mentionné à l'article L. 241-3, la part des indemnités versées à l'occasion de la rupture du contrat de travail ou de la cessation forcée des fonctions de mandataires sociaux, dirigeants et personnes visées à l'article 80 ter du code général des impôts qui n'est pas imposable en application de l'article 80 duodecies du même code. Toutefois, les indemnités d'un montant supérieur à dix fois le plafond annuel défini par l'article L. 241-3 du présent code sont intégralement assimilées à des rémunérations pour le calcul des cotisations visées au premier alinéa du présent article. Pour l'application du présent alinéa, il est fait
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CONSTEXT000038472153_21
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CONSTEXT000038472153
| 21 |
3c021f9f7b0d5487
|
QPC
|
Conformité
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Société ODDO BHF [Exclusion de l'assiette des cotisations sociales des actions attribuées gratuitement ]
|
2018-767
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2019-02-22
|
241-3 du présent code sont intégralement assimilées à des rémunérations pour le calcul des cotisations visées au premier alinéa du présent article. Pour l'application du présent alinéa, il est fait masse des indemnités liées à la rupture du contrat de travail et de celles liées à la cessation forcée des fonctions. « Les attributions gratuites d'actions effectuées conformément aux dispositions des articles L. 225-197-1 à L. 225-197-3 du code de commerce sont exclues de l'assiette des cotisations mentionnées au premier alinéa si elles sont conservées dans les conditions mentionnées au I de l'article 80 quaterdecies du code général des impôts et si l'employeur notifie à son organisme de recouvrement l'identité de ses salariés ou mandataires sociaux auxquels des actions gratuites ont été attribuées définitivement au cours de l'année civile précédente, ainsi que le nombre et la valeur des actions attribuées à chacun d'entre eux. À défaut, l'employeur est tenu au paiement de la totalité des cotisations sociales, y compris pour leur part salariale. « Les dispositions de l'avant-dernier alinéa sont également applicables lorsque l'attribution est effectuée, dans les mêmes conditions, par une société dont le siège est situé à l'étranger et qui est mère ou filiale de l'entreprise dans laquelle l'attributaire exerce son activité. « Les dispositions des deux alinéas précédents ne donnent pas lieu à application de l'article L. 131-7 ».
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Société ODDO BHF [Exclusion de l'assiette des cotisations sociales des actions attribuées gratuitement ]
241-3 du présent code sont intégralement assimilées à des rémunérations pour le calcul des cotisations visées au premier alinéa du présent article. Pour l'application du présent alinéa, il est fait masse des indemnités liées à la rupture du contrat de travail et de celles liées à la cessation forcée des fonctions. « Les attributions gratuites d'actions effectuées conformément aux dispositions des articles L. 225-197-1 à L. 225-197-3 du code de commerce sont exclues de l'assiette des cotisations mentionnées au premier alinéa si elles sont conservées dans les conditions mentionnées au I de l'article 80 quaterdecies du code général des impôts et si l'employeur notifie à son organisme de recouvrement l'identité de ses salariés ou mandataires sociaux auxquels des actions gratuites ont été attribuées définitivement au cours de l'année civile précédente, ainsi que le nombre et la valeur des actions attribuées à chacun d'entre eux. À défaut, l'employeur est tenu au paiement de la totalité des cotisations sociales, y compris pour leur part salariale. « Les dispositions de l'avant-dernier alinéa sont également applicables lorsque l'attribution est effectuée, dans les mêmes conditions, par une société dont le siège est situé à l'étranger et qui est mère ou filiale de l'entreprise dans laquelle l'attributaire exerce son activité. « Les dispositions des deux alinéas précédents ne donnent pas lieu à application de l'article L. 131-7 ».
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CONSTEXT000038472153_22
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CONSTEXT000038472153
| 22 |
bbea25deebb1a9ab
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QPC
|
Conformité
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Société ODDO BHF [Exclusion de l'assiette des cotisations sociales des actions attribuées gratuitement ]
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2018-767
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2019-02-22
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4. La société requérante soutient que les dispositions précitées méconnaissent les principes d'égalité devant la loi et devant les charges publiques. En premier lieu, en subordonnant le bénéfice de l'exonération de cotisations sociales des actions attribuées gratuitement à une condition de notification à l'organisme de recouvrement de certaines informations relatives aux actions distribuées, le législateur aurait fondé le bénéfice de l'exonération sur un critère dépourvu de caractère objectif et rationnel. En deuxième lieu, elle critique le fait que la perte du bénéfice de l'exonération entraîne le paiement par l'employeur de la totalité des cotisations sociales, y compris dans leur part salariale, et se cumule avec le paiement de la contribution patronale établie par l'article L. 137-13 du code de la sécurité sociale. Par ailleurs, la société reproche au législateur de ne pas avoir épuisé sa compétence et d'avoir méconnu le droit de propriété, les principes de nécessité et de proportionnalité des peines ainsi que l'objectif à valeur constitutionnelle d'accessibilité et d'intelligibilité de la loi. 5. Par conséquent, la question prioritaire de constitutionnalité porte sur les mots « et si l'employeur notifie à son organisme de recouvrement l'identité de ses salariés ou mandataires sociaux auxquels des actions gratuites ont été attribuées définitivement au cours de l'année civile précédente, ainsi que le nombre et la valeur des actions attribuées à chacun d'entre eux. À
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Société ODDO BHF [Exclusion de l'assiette des cotisations sociales des actions attribuées gratuitement ]
4. La société requérante soutient que les dispositions précitées méconnaissent les principes d'égalité devant la loi et devant les charges publiques. En premier lieu, en subordonnant le bénéfice de l'exonération de cotisations sociales des actions attribuées gratuitement à une condition de notification à l'organisme de recouvrement de certaines informations relatives aux actions distribuées, le législateur aurait fondé le bénéfice de l'exonération sur un critère dépourvu de caractère objectif et rationnel. En deuxième lieu, elle critique le fait que la perte du bénéfice de l'exonération entraîne le paiement par l'employeur de la totalité des cotisations sociales, y compris dans leur part salariale, et se cumule avec le paiement de la contribution patronale établie par l'article L. 137-13 du code de la sécurité sociale. Par ailleurs, la société reproche au législateur de ne pas avoir épuisé sa compétence et d'avoir méconnu le droit de propriété, les principes de nécessité et de proportionnalité des peines ainsi que l'objectif à valeur constitutionnelle d'accessibilité et d'intelligibilité de la loi. 5. Par conséquent, la question prioritaire de constitutionnalité porte sur les mots « et si l'employeur notifie à son organisme de recouvrement l'identité de ses salariés ou mandataires sociaux auxquels des actions gratuites ont été attribuées définitivement au cours de l'année civile précédente, ainsi que le nombre et la valeur des actions attribuées à chacun d'entre eux. À
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CONSTEXT000038472153_23
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CONSTEXT000038472153
| 23 |
415b277c1b4c73aa
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QPC
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Conformité
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Société ODDO BHF [Exclusion de l'assiette des cotisations sociales des actions attribuées gratuitement ]
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2018-767
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2019-02-22
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sociaux auxquels des actions gratuites ont été attribuées définitivement au cours de l'année civile précédente, ainsi que le nombre et la valeur des actions attribuées à chacun d'entre eux. À défaut, l'employeur est tenu au paiement de la totalité des cotisations sociales, y compris pour leur part salariale » figurant au treizième alinéa de l'article L. 242-1 du code de la sécurité sociale. - Sur les griefs tirés de la méconnaissance des principes de nécessité et de proportionnalité des peines :6. Aux termes de l'article 8 de la Déclaration des droits de l'homme et du citoyen de 1789 : « La loi ne doit établir que des peines strictement et évidemment nécessaires, et nul ne peut être puni qu'en vertu d'une loi établie et promulguée antérieurement au délit, et légalement appliquée ». Les principes énoncés par cet article s'appliquent non seulement aux peines prononcées par les juridictions répressives mais aussi à toute sanction ayant le caractère d'une punition.7. Les dispositions du treizième alinéa de l'article L. 242-1 du code de la sécurité sociale instituent une exonération de cotisations sociales des actions attribuées gratuitement. Cette exonération est subordonnée à plusieurs conditions. En particulier, les dispositions contestées prévoient que l'employeur est tenu de notifier à son organisme de recouvrement l'identité de ses salariés ou mandataires sociaux auxquels des actions gratuites ont été attribuées définitivement au cours de l'année civile précédente, ainsi
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Société ODDO BHF [Exclusion de l'assiette des cotisations sociales des actions attribuées gratuitement ]
sociaux auxquels des actions gratuites ont été attribuées définitivement au cours de l'année civile précédente, ainsi que le nombre et la valeur des actions attribuées à chacun d'entre eux. À défaut, l'employeur est tenu au paiement de la totalité des cotisations sociales, y compris pour leur part salariale » figurant au treizième alinéa de l'article L. 242-1 du code de la sécurité sociale. - Sur les griefs tirés de la méconnaissance des principes de nécessité et de proportionnalité des peines :6. Aux termes de l'article 8 de la Déclaration des droits de l'homme et du citoyen de 1789 : « La loi ne doit établir que des peines strictement et évidemment nécessaires, et nul ne peut être puni qu'en vertu d'une loi établie et promulguée antérieurement au délit, et légalement appliquée ». Les principes énoncés par cet article s'appliquent non seulement aux peines prononcées par les juridictions répressives mais aussi à toute sanction ayant le caractère d'une punition.7. Les dispositions du treizième alinéa de l'article L. 242-1 du code de la sécurité sociale instituent une exonération de cotisations sociales des actions attribuées gratuitement. Cette exonération est subordonnée à plusieurs conditions. En particulier, les dispositions contestées prévoient que l'employeur est tenu de notifier à son organisme de recouvrement l'identité de ses salariés ou mandataires sociaux auxquels des actions gratuites ont été attribuées définitivement au cours de l'année civile précédente, ainsi
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CONSTEXT000038472153_24
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CONSTEXT000038472153
| 24 |
74fa7e195c2b2cdd
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QPC
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Conformité
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Société ODDO BHF [Exclusion de l'assiette des cotisations sociales des actions attribuées gratuitement ]
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2018-767
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2019-02-22
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à son organisme de recouvrement l'identité de ses salariés ou mandataires sociaux auxquels des actions gratuites ont été attribuées définitivement au cours de l'année civile précédente, ainsi que le nombre et la valeur des actions attribuées à chacun d'entre eux. Ces dispositions prévoient que l'employeur, qui n'a pas satisfait à cette condition, est tenu au paiement de la totalité des cotisations sociales, y compris pour leur part salariale. 8. D'une part, en mettant à la charge de l'employeur les cotisations sociales dans leur part patronale, ces dispositions se bornent à tirer les conséquences de la perte du bénéfice de l'exonération. D'autre part, en faisant peser sur l'employeur la part salariale de ces cotisations, elles visent à garantir le recouvrement des redressements de cotisations. Ainsi, ces dispositions n'édictent aucune peine ou sanction ayant le caractère de punition.9. Par conséquent, les griefs tirés de la méconnaissance des principes de nécessité et de proportionnalité des peines ne peuvent qu'être écartés.- Sur les griefs tirés de la méconnaissance des principes d'égalité devant la loi et devant les charges publiques :10. Aux termes de l'article 13 de la Déclaration de 1789 : « Pour l'entretien de la force publique, et pour les dépenses d'administration, une contribution commune est indispensable : elle doit être également répartie entre tous les citoyens, en raison de leurs facultés ». En particulier, pour assurer le respect du principe d'égalité, le
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Société ODDO BHF [Exclusion de l'assiette des cotisations sociales des actions attribuées gratuitement ]
à son organisme de recouvrement l'identité de ses salariés ou mandataires sociaux auxquels des actions gratuites ont été attribuées définitivement au cours de l'année civile précédente, ainsi que le nombre et la valeur des actions attribuées à chacun d'entre eux. Ces dispositions prévoient que l'employeur, qui n'a pas satisfait à cette condition, est tenu au paiement de la totalité des cotisations sociales, y compris pour leur part salariale. 8. D'une part, en mettant à la charge de l'employeur les cotisations sociales dans leur part patronale, ces dispositions se bornent à tirer les conséquences de la perte du bénéfice de l'exonération. D'autre part, en faisant peser sur l'employeur la part salariale de ces cotisations, elles visent à garantir le recouvrement des redressements de cotisations. Ainsi, ces dispositions n'édictent aucune peine ou sanction ayant le caractère de punition.9. Par conséquent, les griefs tirés de la méconnaissance des principes de nécessité et de proportionnalité des peines ne peuvent qu'être écartés.- Sur les griefs tirés de la méconnaissance des principes d'égalité devant la loi et devant les charges publiques :10. Aux termes de l'article 13 de la Déclaration de 1789 : « Pour l'entretien de la force publique, et pour les dépenses d'administration, une contribution commune est indispensable : elle doit être également répartie entre tous les citoyens, en raison de leurs facultés ». En particulier, pour assurer le respect du principe d'égalité, le
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CONSTEXT000038472153_25
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CONSTEXT000038472153
| 25 |
37f99dceb5e500e9
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QPC
|
Conformité
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Société ODDO BHF [Exclusion de l'assiette des cotisations sociales des actions attribuées gratuitement ]
|
2018-767
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2019-02-22
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contribution commune est indispensable : elle doit être également répartie entre tous les citoyens, en raison de leurs facultés ». En particulier, pour assurer le respect du principe d'égalité, le législateur doit fonder son appréciation sur des critères objectifs et rationnels en fonction des buts qu'il se propose. Cette appréciation ne doit cependant pas entraîner de rupture caractérisée de l'égalité devant les charges publiques.11. En premier lieu, il ressort des travaux préparatoires de la loi du 19 décembre 2005 mentionnée ci-dessus que l'exigence de notification aux organismes de recouvrement prévue par les dispositions contestées a pour objet de permettre une évaluation du montant de la perte de recettes pour la sécurité sociale résultant de l'exonération de cotisations sociales. 12. Si cette exigence de notification a été créée à une date à laquelle l'État était tenu de compenser la perte de recettes sociales résultant de cette exonération, la circonstance que cette obligation de compensation a été supprimée par la loi du 19 décembre 2007 n'a pas privé d'objet le dispositif contesté dès lors que le législateur a estimé nécessaire, en l'état, de maintenir une évaluation du coût de l'exonération. La faculté qu'auraient les organismes sociaux d'évaluer par d'autres voies le montant de cette perte de recettes est sans incidence à cet égard.13. Par ailleurs, la notification permet aux organismes de recouvrement de procéder, le cas échéant, à des contrôles et des
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Société ODDO BHF [Exclusion de l'assiette des cotisations sociales des actions attribuées gratuitement ]
contribution commune est indispensable : elle doit être également répartie entre tous les citoyens, en raison de leurs facultés ». En particulier, pour assurer le respect du principe d'égalité, le législateur doit fonder son appréciation sur des critères objectifs et rationnels en fonction des buts qu'il se propose. Cette appréciation ne doit cependant pas entraîner de rupture caractérisée de l'égalité devant les charges publiques.11. En premier lieu, il ressort des travaux préparatoires de la loi du 19 décembre 2005 mentionnée ci-dessus que l'exigence de notification aux organismes de recouvrement prévue par les dispositions contestées a pour objet de permettre une évaluation du montant de la perte de recettes pour la sécurité sociale résultant de l'exonération de cotisations sociales. 12. Si cette exigence de notification a été créée à une date à laquelle l'État était tenu de compenser la perte de recettes sociales résultant de cette exonération, la circonstance que cette obligation de compensation a été supprimée par la loi du 19 décembre 2007 n'a pas privé d'objet le dispositif contesté dès lors que le législateur a estimé nécessaire, en l'état, de maintenir une évaluation du coût de l'exonération. La faculté qu'auraient les organismes sociaux d'évaluer par d'autres voies le montant de cette perte de recettes est sans incidence à cet égard.13. Par ailleurs, la notification permet aux organismes de recouvrement de procéder, le cas échéant, à des contrôles et des
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