Court of Cassation Refuses to Refer Priority Constitutional Question to Constitutional Council
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Court of Cassation, Constitutional Council, Priority Constitutional Question, Constitutional Review, Article 1729 of the General Tax Code, Principle of Non-Retroactivity, Principle of Proportionality and Necessity of Penalties
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Abstract
In a ruling dated 20 February 2019, the Commercial, Financial and Economic Chamber of the Court of Cassation carried out the verification of the conditions allowing it to transmit a priority constitutional question to the Constitutional Council. The Court of Cassation refused to refer the priority constitutional question to the Constitutional Council, citing that the contested provision has already been declared constitutional in two decisions rendered by the Constitutional Council on 24 June 2016. This case highlights the strict criteria allowing it to refer or not a priority constitutional question to the Constitutional Council.
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[...] Scope of the judgment: The constitutional review can be carried out either a priori, that is to say before the promulgation of the law (Article 61 of the Constitution of 4 October 1958), or, since 2008, a posteriori, that is to say after the promulgation of the law (Article 61-1 of the Constitution of 4 October 1958). The a posteriori constitutional review consists, in the context of a case, of a claimant submitting a QPC to the Constitutional Council. However, the Constitutional Council cannot be directly seized. [...]
[...] The commercial chamber of the Court of Cassation applies the strict criteria allowing it to refer or not a priority constitutional question to the Constitutional Council. These criteria are three in number: In order to be transmitted to the Constitutional Council the criticized legislative provision must be: - applicable to the dispute and must constitute the basis of the proceedings; - must not have already been declared constitutional by the Constitutional Council, except in the event of a change in circumstances; - new or present a serious character. [...]
[...] These principles, and more generally the ECHR of 1789, are an integral part of the constitutional block since a decision of 16 July 1971 of the Constitutional Council 'freedom of association'. However, on 24 June 2016, the Constitutional Council states that the nature of the financial sanctions provided for in Article 1729 of the CGI is « directly linked to that of the infringements repressed. The rates of increase set by the legislator are not manifestly disproportionate. As a result, Article 1729 of the CGI is not contrary to the principles of necessity of crimes and penalties and proportionality of penalties. [...]
[...] 18-19.969 - Are the conditions of substance allowing the transmission of a priority constitutional question to the Constitutional Council met? - Case summary Case summary In a ruling dated 20 February 2019, the Commercial, Financial and Economic Chamber of the Court of Cassation carried out the verification of the conditions allowing it to transmit a priority constitutional question to the Constitutional Council. In other words, the Court of Cassation implemented the filtering procedure for QPCs. On 3 April 2018, the Paris Court of Appeal rendered a judgment. [...]
[...] The Court of Cassation must then answer a single question: Are the conditions of substance that allow for the transmission of a priority constitutional question to the Constitutional Council met? The Commercial, Financial and Economic Chamber of the Court of Cassation, in a ruling dated 20 February 2019, answered in the negative and refused to refer the priority constitutional question to the Constitutional Council. Although the article targeted by the priority constitutional question (Article 1729 of the General Tax Code, in its version resulting from Law No. [...]
