The right to an effective remedy before an impartial judge: civil society on hostile ground

Since 2019, students at Polytechnique (Saclay) have been in revolt against energy giant Total. The company has long wanted to set up a research and innovation center near the campus. 1 Between illegal interest-taking and non-compliance with environmental standards, Total Energie has aroused and continues to arouse the ire of several associations, including Sphinx, a Polytechnique student association dedicated to defending environmental issues. 2 But that is no longer the heart of the matter. By taking legal action, the Polytechnique students had no intention of opening Pandora’s box and facing other serious legal issues that infringe freedom of association and the right to a fair trial.

Although the project was finally abandoned by Total, the legal battle is far from over for the Polytechnique students.

The first legal action: rejection by the administrative court

In April 2021, three associations (La Sphinx, Anticor and Greenpeace France) filed a complaint with the Paris Public Prosecutor’s Office against Patrick Pouyanné, CEO of Total Energie, on the grounds of illegal interest-taking. There are several indications that he may have taken advantage of his position as a member of the Board of Directors of the École Polytechnique to intervene, on behalf of Total, in the decision-making process that led to the final agreement given by the Board. 3

At the same time, the Sphinx association lodged an application with the Versailles Administrative Court for “un référé suspension” and “un recours en annulation”4 of the building permit granted to Total by the town council. A “référé suspension” is an emergency procedure designed to suspend the execution of a decision that is the subject of an application for annulment or reversal. This mechanism can be triggered when justified by urgency and when there is serious doubt as to the legality of the contested decision. 5

In an order issued a few days later, the interim relief judge of the administrative court rejected this request. The reason for this rejection was the ELAN law, which amends article L. 600-1-1 of the French Urban Planning Code. 6 This law establishes that, in order to be able to act against a town planning authorization, an association must have obtained its associative status at least one year prior to the posting of the request for authorization. In this case, the interim relief judge of the administrative court pointed out that the association’s amended status had been filed less than a year before Total’s application for planning permission was posted at the town hall, thereby justifying the rejection of the petitioners’ application. However, the student association did not stop there, and referred the matter to the Conseil d’Etat, arguing that the right to legal recourse had been flouted, despite the French Constitution.7

Restricting access to justice for certain associations: constitutionally compliant measure or obstacle to the right an effective remedy?

La Sphinx, joined by France Nature Environnement, appealed to the Conseil d’Etat to overturn the order handed down by the Versailles administrative court and to refer a “question prioritaire de constitutionnalité” (QPC) to the Conseil Constitutionnel.8 The Conseil d’Etat ruled in favor of the association, recognizing that “the question of the infringement that these provisions have on the rights and freedoms guaranteed by the Constitution, in particular the right to appeal guaranteed by article 16 of the Declaration of the Rights of Man and of the Citizen, is of a serious nature”.9

In pointing to the serious and potentially unconstitutional nature of the ELAN Law, the Conseil d’Etat highlights the endangerment of certain fundamental freedoms such as access to justice. Indeed, while the primary aim of the ELAN law is to avoid abusive appeals, its effect is quite different: this law deprives certain associations of legal recourse in town planning matters.

But doesn’t French laws have to respect the French Constitution, which in turn obeys the Declaration of Human and Civic Rights (DHCR)? And doesn’t article 16 of the DHCR enshrine, in particular, the right to an effective remedy before an independent and impartial judge? Doesn’t this article guarantee that the other rights and freedoms proclaimed by the French Constitution will be respected?

Certainly, the application of certain rights, including the right to access justice, may be subject to exceptions, but only if they are legally justified. In this case, how can it be justified that the length of time an association has been in existence determines whether it has abused the legal system? This is the question that the associations (Sphinx and FNE) put to the Constitutional Council. 10

The Conseil Constitutionnel’s decision: a questionable and biased assessment of constitutional conformity

The associations concerned have referred the ELAN law to the Conseil Constitutionnel for a “question prioritaire de constitutionnalité” (QPC). The QPC is a mechanism provided for in article 61.1 of the French Constitution, which enables conformity of an already promulgated law with the French Constitution to be examined a posteriori. In a decision dated April 1, 2022, the Conseil Constitutionnel declared the ELAN law to be constitutionally compliant.11 In other words, the nine judges sitting on the Council saw no provisions in this law that contravened the freedoms guaranteed by the French Constitution. The ELAN law does not unjustifiably or illegally hinder associations’ right to access justice.

While one might think that the legal battle ends here, this is not the case. In fact, the associations bringing these legal actions, notably France Nature Environnement, are challenging this QPC decision. On the one hand, the justifications put forward by France before the Conseil Constitutionnel are insufficient, and do not clearly highlight the causal link between the length of existence of an association and its interest in taking legal action. On the other hand, the associations point out that two of the judges on the Conseil Constitutionnel are former ministers who actively participated in the drafting and adoption of the disputed law. Indeed Ms. Jacqueline Gourault and Mr. Jacques Mézard, both former ministers of the “Cohésion des territoires and Relations avec les collectivités territoriales”, carried the ELAN bill.

This raises the question of the impartiality of judges. As explained above, the French Constitution obeys the DHCR, which itself enshrines the right to an effective remedy before an independent and impartial judge. How is it conceivable that former ministers should pass impartial judgement on a law that they themselves initiated?

However, this is exactly what the rules of procedure for the QPC mechanism stipulate. Paragraph 4 of article 4 states that “The mere fact that a member of the Constitutional Council participated in the drafting of the legislative provision that is the subject of the constitutionality question does not in itself constitute a cause for recusal.” 12 A new legal problem then arises, in addition to those raised by the ELAN law: the partiality of constitutional judges.

Referral to the Aarhus Convention Compliance Committee: the last chapter in the legal saga?

On August 29, 2022, France Nature Environnement and two other associations submitted a communication to the Compliance Committee of the Aarhus Convention.13 The 1998 Aarhus Convention is an international agreement on environmental democracy. Its three main objectives are: to improve the environmental information provided by public authorities; to promote public participation in decision-making affecting the environment; and to extend the conditions of access to justice in matters of environmental legislation and access to information. The Compliance Committee is in charge of monitoring the implementation of the Convention.

The associations’ communication alleges non-compliance by France with article 2, paragraph 5, and article 9, paragraphs 2, 3 and 5, of the Convention as regards access to justice for non-governmental organizations in planning matters and access to justice before an impartial body in cases before the Conseil Constitutionnel.

For the time being, France has replied through its Permanent Representation to the United Nations, and considers that there is no problem with restrictions on access to justice, nor with regard to the partiality of constitutional judges.14 As the Committee has already ruled in favor of the admissibility of the request, we will have to wait several years to hear all the arguments from both sides and the Committee’s conclusions.

To be continued…

1 Marine Miller, « Hypocrisie Total : à Polytechnique, la révolte des élèves contre la major pétrolière ne faiblit pas » (Le Monde, publié le 06 juillet 2021, modifié le 06 juillet 2021) https://www.lemonde.fr/campus/article/2021/07/06/hypocrisie-total-a-polytechnique-la-revolte-des-eleves-contre-la-major-petroliere-ne-faiblit-pas_6087141_4401467.html

2 La Sphinx, « Affaire Total : La Sphinx porte plainte » (publié par le 29 Avril 2021) https://la-sphinx.fr/la-sphinx-porte-plainte/

3 Greenpeace, « Total à Polytechnique : plainte contre Patrick Pouyanné » (publié le 29 Avril 2021) https://www.greenpeace.fr/total-a-polytechnique-plainte-contre-patrick-pouyanne/

4 It translates to a suspension petition and an annulment.

5 Article L521-1 du Code de Justice Administrative.

6 LOI n° 2018-1021 du 23 novembre 2018 portant évolution du logement, de l’aménagement et du numérique.

7 Conseil d’Etat, Décision CE n° 455122 du 31 janvier 2022.

8 It translates to the Constitutional Council

9 Ibid Considérant 4.

10 France Nature Environnement, « La France entrave l’accès à la justice des associations : nous saisissons les Nations Unies » (publié le 27 Septembre 2023)

11 Conseil Constitutionnel, Décision n° 2022-986 QPC du 1er avril 2022.

12 Conseil Constitutionnel, Règlement intérieur de la procédure de QPC devant le Conseil Constitutionnel article 4.4

13 Nations Unies, Convention sur l’accès à l’information, la participation du public au processus décisionnel et l’accès à la justice en matière d’environnement (signée en 1998 et entrée en vigueur 30 octobre 2001), Nations Unies, Recueil des Traités, vol. 2161, p. 447.

14 France Nature Environnement, « La France entrave l’accès à la justice des associations : nous saisissons les Nations Unies » (publié le 27 Septembre 2023)

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