Extract
[...] This is why the Arcelor company invoked the violation of the constitutional principle. However, since the constitutional principle is equal to the European principle of equality, in application of the decision of the CJCE in the judgment Green Party, This is not the administrative judge's task to assess the decree's compliance, but the CJCE's. Thus, the dispute does not depend on the decree's compliance with the directive or the constitutional principle, but on the directive's compliance with the European principle. [...]
[...] According to the French judge, this principle implies that all people being in the same situation must be treated in the same way. However, in the judgment Arcelor, The Constitutional Council specifies that this principle 'does not imply that people in different situations must be subject to different regimes'. Thus, the standards do not have the obligation to take into account the different situations. However, although it is a constitutional principle, it is not superior to the equivalent European principle. [...]
[...] According to this decision, a directive is only invocable after its transposition deadline and administrative acts contrary to it must be abolished. In 2001, with the judgment France Nature Environnement, the Conseil d'État has expanded its previous decision and recognized the invocableness of directives during and after the transposition deadline. In the judgment Arcelor, in addition to recognizing the invocableness of directives to contest the conformity of a decree, the Conseil d'État recognizes the importance of European principles, if they have a constitutional equivalent. [...]
[...] However, in the absence of an equivalent European principle, the administrative judge reserves the right to conduct a constitutional review of the decree. Question on what does the party requesting invoke the argument of non-compliance with the principle of equality? The party requesting invokes the argument of non-compliance with the principle of equality based on the constitutional value of this principle. In fact, according to Kelsen's theory, the Constitution is the supreme norm of each state. Thus, no text should be contrary to it. [...]
[...] However, there is still the law, the directive, and the Constitution. Regarding the ordinance, it simply transposes the directive and leaves a decree to apply the norm. Thus, 'the provisions of the directive of 13 October 2003 fall within the domain of the law.' But the challenged decree applies the provisions of the ordinance, but it 'merely takes over, unchanged, the content' of the annex to the directive imposing quotas on the steel sector. The Conseil d'État excludes the control of legality of the decree to focus on the control of conventionality of the administrative act. [...]
