Decision no. 2022-842 DC of 12 August 2022

THE CONSTITUTIONAL COUNCIL RECEIVED A REFERRAL, under the conditions provided for in the second paragraph of Article 61 of the Constitution, of the amending finance lct for 2022, under No. 2022-842 DC, on 5 August 2022, from Mathilde PANOT, Nadège ABOMANGOLI, Laurent ALEXANDRE, Gabriel AMARD, Ségolène AMIOT, Farida AMRANI, Rodrigo ARENAS, Clémentine AUTAIN, Ugo BERNALICIS, Christophe BEX, Carlos Martens BILONGO, Manuel BOMPARD, Idir BOUMERTIT, Louis BOYARD, Aymeric CARON, Sylvain CARRIÈRE, Florian CHAUCHE, Sophia CHIKIROU, Hadrien CLOUET, Éric COQUEREL, Alexis CORBIÈRE, Jean-François COULOMME, Catherine COUTURIER, Hendrik DAVI, Sébastien DELOGU, Alma DUFOUR, Karen ERODI, Martine ETIENNE, Emmanuel FERNANDES, Sylvie FERRER, Caroline FIAT, Perceval GAILLARD, Raquel GARRIDO, Clémence GUETTÉ, David GUIRAUD, Mathilde HIGNET, Rachel KEKE, Andy KERBRAT, Bastien LACHAUD, Maxime LAISNEY, Arnaud LE GALL, Antoine LÉAUMENT, Élise LEBOUCHER, Charlotte LEDUC, Jérôme LEGAVRE, Sarah LEGRAIN, Murielle LEPVRAUD, Pascale MARTIN, Élisa MARTIN, William MARTINET, Frédéric MATHIEU, Damien MAUDET, Marianne MAXIMI, Manon MEUNIER, Jean-Philippe NILOR, Danièle OBONO, Nathalie OZIOL, François PIQUEMAL, Thomas PORTES, Loïc PRUD'HOMME, Adrien QUATENNENS, Jean-Hugues RATENON, Sébastien ROME, François RUFFIN, Aurélien SAINTOUL, Michel SALA, Danielle SIMONNET, Ersilia SOUDAIS, Anne STAMBACH-TERRENOIR, Bénédicte TAURINE, Andrée TAURINYA Matthias TAVEL, Aurélie TROUVÉ, Paul VANNIER, Léo WALTER, Boris VALLAUD, Joël AVIRAGNET, Christian BAPTISTE, Marie-Noëlle BATTISTEL, Mickaël BOULOUX, Philippe BRUN, Elie CALIFER, Alain DAVID, Arthur DELAPORTE, Stéphane DELAUTRETTE, Inaki ECHANIZ, Olivier FAURE, Guillaume GAROT, Jérôme GUEDJ, Johnny HAJJAR, Chantal JOURDAN, Marietta KARAMANLI, Fatiha KELOUA HACHI, Gérard LESEUL, Philippe NAILLET, Bertrand PETIT, Anna PIC, Christine PIRÈS BEAUNE, Dominique POTIER, Valérie RABAULT, Claudia ROUAUX, Isabelle SANTIAGO, Hervé SAULIGNAC, Mélanie THOMIN, Cécile UNTERMAIER, Roger VICOT, André CHASSAIGNE, Soumya BOUROUAHA, Pierre DHARRÉVILLE, Elsa FAUCILLON, Sébastien JUMEL, Jean-Paul LECOQ, Yannick MONNET, Stéphane PEU, Fabien ROUSSEL, Nicolas SANSU, Jean-Marc TELLIER, Hubert WULFRANC, Moetai BROTHERSON, Jean-Victor CASTOR, Steve CHAILLOUX, Emeline K BIDI, Karine LEBON, Tematai LE GAYIC, Frédéric MAILLOT, Marcellin NADEAU, Davy RIMANE, Jiovanny WILLIAM, Julien BAYOU, Christine ARRIGHI, Lisa BELLUCO, Karim BEN CHEÏKH, Cyrielle CHATELAIN, Charles FOURNIER, Marie-Charlotte GARIN, Jérémie IORDANOFF, Hubert JULIEN-LAFERRIÈRE, Benjamin LUCAS, Francesca PASQUINI, Sébastien PEYTAVIE, Jean-Claude RAUX, Sandra REGOL, Sandrine ROUSSEAU, Eva SAS and Sabrina SEBAIHI, Members of Parliament.
It also received a referral on 8 August 2022 from Patrick KANNER, Viviane ARTIGALAS, David ASSOULINE, Joël BIGOT, Florence BLATRIX CONTAT, Denis BOUAD, Hussein BOURGI, Isabelle BRIQUET, Rémi CARDON, Marie-Arlette CARLOTTI, Yan CHANTREL, Catherine CONCONNE, Hélène CONWAY-MOURET, Thierry COZIC, Marie-Pierre de la GONTRIE, Gilbert-Luc DEVINAZ, Jérôme DURAIN, Vincent ÉBLÉ, Frédérique ESPAGNAC, Rémi FÉRAUD, Corinne FÉRET, Jean-Luc FICHET, Martine FILLEUL, M. Hervé GILLÉ, Mme Laurence HARRIBEY, Jean-Michel HOULLEGATTE, Olivier JACQUIN, Victoire JASMIN, Éric JEANSANNETAS, Patrice JOLY, Bernard JOMIER, Gisèle JOURDA, Eric KERROUCHE, Annie LE HOUEROU, Jean-Yves LECONTE, Jean-Jacques LOZACH, Monique LUBIN, Victorin LUREL, Jacques-Bernard MAGNER, Didier MARIE, Serge MÉRILLOU, Michelle MEUNIER, Jean-Jacques MICHAU, Marie-Pierre MONIER, Franck MONTAUGÉ, Sébastien PLA, Émilienne POUMIROL, Angèle PRÉVILLE, Claude RAYNAL, Christian REDON-SARRAZY, Sylvie ROBERT, Gilbert ROGER, Laurence ROSSIGNOL, Lucien STANZIONE, Jean-Pierre SUEUR, Rachid TEMAL, Jean-Claude TISSOT, Mickaël VALLET, André VALLINI, Sabine VAN HEGHE, Yannick VAUGRENARD, Guy BENARROCHE, Daniel BREUILLER, Ronan DANTEC, Thomas DOSSUS, Jacques FERNIQUE, Guillaume GONTARD, Joël LABBÉ, Monique de MARCO, Paul Toussaint PARIGI, Raymonde PONCET MONGE, Daniel SALMON, Mélanie VOGEL, Annick BILLON, Laurent LAFON and Catherine MORIN-DESAILLY, Senators.

On 8 August 2022, the Prime Minister asked the Constitutional Council to rule according to the emergency procedure provided for in the third paragraph of Article 61 of the Constitution.
Having regard to the following texts:

• the Constitution;
• Ordinance No. 58-1067 of 7 November 1958, constituting an institutional act on the Constitutional Council;
• Institutional Act no. 2001-692 of 1 August 2001 on finance laws;
• the General Tax Code;
• the Labour Code;
• the Act of 31 May 1933 setting the general budget for the 1933 financial year;
• Act No. 2005-1719 of 30 December 2005 on finances for 2006;
• Opinion of the French high council for public finance (Haut Conseil des Finances Publiques) No. 2022-2 of 4 July 2022 on the first amending finance bill for 2022;
• the Regulation of 11 March 2022 as to the procedure applicable before the Constitutional Council with respect to rulings as to constitutionality;
  Having regard to the observations of the Government, registered on 9 August 2022;
  And after having heard the rapporteur;
  THE CONSTITUTIONAL COUNCIL DECIDED THAT:

1. The applicant Members of Parliament and Senators referred the amending finance act for 2022 to the Constitutional Council. The deputies question the sincerity of the law referred for review and oppose the place of Article 5 in the finance law. They also challenged the procedure for adopting Article 6 and, joined by the applicant Senators, the conformity with the Constitution of certain provisions of this article.

• On the sincerity of the amending finance law:

2. The applicant Members of Parliament argued that the law referred for review infringed the principle of budgetary accuracy, on the grounds that it was based on a manifest underestimation of tax revenue forecasts, the purpose of which was to allow the Government to present a more favourable execution at the end of the financial year.
3. According to Article 32 of the aforementioned Institutional Act of 1 August 2001: “The finance laws shall present in a sincere manner all the resources and expenses of the State. Their sincerity is assessed in the light of the information available and the forecasts that can reasonably be derived from it.” As a result, the sincerity of the amending finance act presents an absence of any intention to distort the broad lines of the balance that it determines.
4. Neither the opinion of the French high council for public finance (Haut Conseil des Finances Publiques) of 4 July 2022 mentioned above nor the other elements submitted to the Constitutional Council show that the economic assumptions and the revenue and expenditure forecasts on which the amending finance law is based are marked by an intention to distort the broad outlines of the balance that it determines.
5. The complaint that the amending finance law was not sincere must therefore be dismissed.

• On the place of Article 5 in the amending finance law:

6. Article 5 creates a system allowing employees to give up days of rest acquired as a result of the reduction in working time in exchange for an increase in salary benefiting from certain tax and social security exemptions.

7. The applicant Members of Parliament argue that these provisions do not fall into any of the categories falling within the scope of finance laws.

8. According to Article 34 of the Constitution: “Finance Acts shall determine the revenue and expenditure of the State in the conditions and with the reservations provided for by an Institutional Act.” The first section of Article 47 of the Constitution provides that: “Parliament shall pass Finance Bills in the manner provided for by an Institutional Act.” The Institutional Act of 1 August 2001 determines the content of finance laws. Article 34, paragraph II, 7° a provides that the second part of the finance law for the year may “contain provisions relating to the basis of assessment, the rate and the methods of collection of taxes of all kinds which do not affect the budget balance”. According to the last section of its Article 35: “Amending finance laws are presented in part or in full in the same form as the finance law for the year.”

9. In application of Title II of Book I of the third part of the Labour Code, the rest days acquired by employees as a result of the reduction in working time can only be converted into additional pay in certain limited cases.

10. By way of derogation, paragraph I of Article 5 of the law referred for review opens this possibility to all private-sector employees for days of rest acquired during the period from 1 January 2022 to 31 December 2025. Paragraphs II and III provide for the modalities according to which the remuneration paid in this respect gives rise to an exemption from income tax and social security contributions. Paragraphs IV and V compensate the State and social security bodies respectively for the loss of revenue resulting from the extension of this measure for the period from 31 December 2023 to 31 December 2025 by creating an additional excise tax on tobacco and by increasing the latter.

11. This article, whose provisions are inseverable, must be considered as having its place in the finance law under the provisions relating to the basis of assessment, rates and collection procedures for taxes of all kinds.

12. The objection that the procedure for the adoption of Article 5 was irregular must therefore be dismissed.

• Concerning Article 6:

13. Article 6 of the law referred for review repeals in particular Article 1605 of the General Tax Code and amends in particular Article 46 of the aforementioned Act of 30 December 2005 in order to replace the public broadcasting contribution by the allocation to the public broadcasting sector of a fraction of the proceeds of the value-added tax.
    . Regarding the procedure for adoption of Article 6:
14. The applicant Members of Parliament denounce the hasty conditions under which these provisions were examined by means of amendments adopted at first reading in the National Assembly without an impact study. This results in a violation of the constitutional requirements of clarity and sincerity of parliamentary debate.
15. On the one hand, as stated in Article 6 of the Declaration of Human and Civic Rights of 1789: “The Law is the expression of the general will.” According to the first section of Article 3 of the Constitution: “National sovereignty shall vest in the people, who shall exercise it through their representatives...” These provisions impose an obligation of clarity and sincerity of parliamentary debate.
16. According to the first section of Article 44 of the Constitution: “Members of Parliament and the Government shall have the right of amendment. This right may be used in plenary sitting or in committee under the conditions set down by the Rules of Procedure of the Houses, according to the framework determined by an Institutional Act.”
17. The disputed provisions of Article 6 were introduced in the National Assembly by way of amendments by Members of Parliament in exercise of their right under the first section of Article 44 of the Constitution. Neither the right of amendment nor the requirements of clarity and sincerity of parliamentary debate were infringed.
18. On the other hand, Article 39 of the Constitution and the Institutional Act of 1 August 2001 require the presentation of a prior assessment only for finance bills before they are submitted to the bureau of the National Assembly and not for amendments. Consequently, the objection that the Members of Parliament and the Government infringed this procedural requirement by exercising their right to amend is irrelevant.
19. It follows from the foregoing that Article 6 was adopted according to a procedure that conforms to the Constitution.

. Regarding certain provisions of Article 6:
20. The applicant Senators and Members of Parliament criticise these provisions for depriving the freedom of communication of thoughts and opinions as well as the independence and pluralism of the media of legal guarantees, since they do not ensure the sustainability of the financing of public broadcasting. In support of this claim, they argue that they only provide for the allocation of a fraction of the value-added tax to this sector until 31 December 2024. In addition, for the years 2023 and 2024, the Members of Parliament argue that the amount allocated would not be guaranteed since the legislator can modify it and the Senators argue that the modalities for determining this amount would be insufficiently defined. For the same reasons, the applicant Senators maintain that these provisions are judged as not acting fully within the competence of jurisdiction.
21. The applicant Members of Parliament also considered that they disregarded a fundamental principle acknowledged in the laws of the Republic, which resulted from the aforementioned Act of 31 May 1933, according to which the public broadcasting sector must be financed by a licence fee.
22. Finally, the Members of Parliament allege that these provisions would be excessively complex, in breach of the objective of the intelligibility of the law.
23. Article 1605 of the General Tax Code institutes a tax called the public broadcasting contribution for the benefit of the national broadcasting companies France Télévisions and Radio France, the company in charge of broadcasting outside of France, the companies ARTE-France and TV5 Monde, and the Institut National de l'Audiovisuel (National broadcasting institute). Paragraph VI of article 46 of the Act of 30 December 2005 opens a financial assistance account in the Treasury's accounts, entitled “Advances to the public audiovisual sector”, which records in revenue the repayment of advances corresponding to the proceeds of the audiovisual contribution granted to these companies and to this establishment.
24. The disputed provisions of Article 6 repeal Article 1605 of the General Tax Code and amend paragraph VI of Article 46 of the Act of 30 December 2005 in order to replace, in the revenue of this financial assistance account, the proceeds of the public broadcasting contribution by a fraction of the proceeds of the value-added tax.
25. Firstly, by merely providing that, “with a view to devoting the proceeds to broadcasting expenditure, a licence fee shall be introduced... on broadcasting reception facilities”, Article 109 of the Act of 31 May 1933 had neither the object nor the effect of establishing a principle according to which the public broadcasting sector could be financed only by a licence fee. This law cannot therefore have given rise to a fundamental principle acknowledged by the laws of the Republic. Consequently, the objection to infringing such a principle must be dismissed.
26. According to Article 11 of the Declaration of Human and Civic Rights of 1789: “The free communication of ideas and of opinions is one of the most precious rights of man. Any citizen may therefore speak, write and publish freely, except what is tantamount to the abuse of this liberty in the cases determined by Law.” The free communication of ideas and of opinions would not be effective if the public to whom the audiovisual media are addressed were not able to have access, both in the private and public sectors, to programmes that guarantee the expression of different trends while respecting the need for honesty in information. Thus, listeners and viewers, who are among the essential recipients of the freedom proclaimed by Article 11, must be able to exercise their free choice without private interests or public authorities being able to substitute their own decisions.
27. If it is at all times possible for the legislator, ruling in the area reserved to them by Article 34 of the Constitution, to amend previous texts or to repeal them by substituting, if necessary, other provisions, it is on condition that the exercise of this power does not result in depriving requirements of legal guarantees that are of a constitutional nature.
28. By abolishing the public audiovisual broadcasting contribution as of 1 January 2022, the contested provisions are likely to affect the guarantee of resources of the public broadcasting sector which constitutes an element of its independence, which contributes to the implementation of the freedom of communication.
29. However, on the one hand, these provisions stipulate that, for the year 2022, the revenues of the financial assistance account are made up of a fraction of the proceeds of the value-added tax equivalent to the proceeds of the public audiovisual contribution for that same year.
30. On the other hand, the contested provisions provide that as of 1 January 2023 and until 31 December 2024, the revenue of the financial assistance account will come from a fraction of the proceeds of the value-added tax determined each year by the Finance Act for the year. It will be up to the legislator, on the one hand, in the finance laws for the years 2023 and 2024 and, on the other hand, for the period after 31 December 2024, to set the amount of this revenue so that the companies and the public broadcasting establishment are able to carry out the public service missions entrusted to them. Consequently, these disputed provisions do not infringe the requirements that come from Article 11 of the Declaration of Human and Civic Rights of 1789.
31. It follows from the foregoing that 6° of paragraph II of Article 6 of the law referred for review, 3 of paragraph VI of Article 46 of the Act of 30 December 2005 and, subject to the reservations set out in the previous paragraph, 2° of 1 of the same paragraph VI, which are neither unintelligible nor judged as not acting fully within the competence of jurisdiction, and do not infringe any other constitutional requirement, conform to the Constitution.

• Concerning the other provisions:

32. The Constitutional Council has not systematically raised any question of constitutionality and has therefore not ruled on the constitutionality of provisions other than those examined in this decision.
    THE CONSTITUTIONAL COUNCIL DECIDES:
    Article 1. - Subject to the reservations set out in paragraph 30, 2° of 1 of paragraph VI of Article 46 of Finance Act No. 2005-1719 of 30 December 2005 for the finances of 2006, in its wording resulting from Article 6 of the law referred for review, conforms to the Constitution.

Article 2. - 6° of paragraph II of Article 6 of the law referred for review, and 3 of paragraph VI of Article 46 of the aforementioned Act of 30 December 2005, in its formulation resulting from Article 6 of the law referred for review, conform to the Constitution.

Article 3. - This decision shall be published in the Journal Officiel of the French Republic.

Ruled by the Constitutional Council in its 12 August 2022 session, with the following members present: Laurent FABIUS, President, Jacqueline GOURAULT, Alain JUPPÉ, Corinne LUQUIENS, Véronique MALBEC, Jacques MÉZARD, François PILLET, Michel PINAULT and François SÉNERS.
Published on 12 August 2022.