I. The legal context
Article L.542-10-1 of the Environment Code concerns deep geological disposal centers for radioactive waste, which are basic nuclear installations. The provision regulates the conditions for obtaining authorization to create these hazardous facilities. At the root of the dispute is the decree of July 7, 2022 declaring the Cigéo project, a deep geological disposal center for radioactive waste, to be in the public interest. The decree is being challenged by several environmental and anti-nuclear waste associations. In the context of this dispute, the petitioners have also asked the Conseil d'Etat to send to the Conseil constitutionnel the question of the conformity of the article L.542-10-1 with the rights and freedoms guaranteed by the Constitution. The plaintiffs consider that the disputed article infringes "the right of future generations to live in a balanced and healthy environment, guaranteed by recital 7 and article 1 of the Charter of the Environment, the principle of intergenerational solidarity, guaranteed by articles 2, 3 and 4 of the Charter of the Environment, clarified by its preamble, and the principle of transgenerational fraternity, guaranteed by the Preamble and articles 2 and 72-3 of the Constitution".
II. The conditions for the transmission of a QPC
As a reminder, article 61-1 of the Constitution allows any litigant to challenge the conformity of a legislative provision with the rights and freedoms guaranteed by the Constitution. If certain conditions are met, the "question prioritaire de constitutionnalité" (QPC) thus raised is transmitted to the Conseil constitutionnel. To be admissible, the QPC must first be submitted in the context of proceedings pending before a court under the jurisdiction of the Conseil d'Etat or the Cour de cassation. It must be presented in a brief separate from the brief relating to the substantive dispute, and motivated. Secondly, it may only relate to a legislative provision. Finally, it may only challenge a breach of the rights and freedoms guaranteed by the Constitution. Once the conditions of admissibility have been examined, the QPC must also meet certain conditions to be forwarded. The judge verifies that these three conditions are met:
1. The provision whose constitutionality is challenged is applicable to the dispute or proceedings, or constitutes the basis for the prosecution,
2. This provision has not already been declared to be in conformity with the Constitution in the grounds and operative part of a decision of the Constitutional Council, unless circumstances have changed,
3. The question is of a serious nature
If the court considers that the conditions have not been met, it settles the dispute without forwarding the QPC. However, if it considers that the conditions have been met, it will forward the QPC to the Conseil d'Etat or the Cour de cassation, depending on whether it is an administrative or judicial court. In principle, it must defer ruling on the main dispute waiting the return of the superior jurisdiction.
At the level of the Conseil d'Etat or the Cour de cassation, they carry out a more detailed examination of the conditions for sending the QPC to the Conseil constitutionnel in their capacity as "filter judge". In addition, they examine the "new" nature of the question, a criterion not examined by the judge dealing with the merits of the case. The question is new when the constitutional norm invoked has not been applied by the Constitutional Council. As for seriousness, which is examined more strictly at this stage, it makes it possible to rule out questions that are manifestly unfounded or leave no doubt that the Conseil constitutionnel would be led not to censure the contested legislative provision.
III. The stakes of this QPC
Once a QPC has been referred to the Conseil constitutionnel, there are two possible outcomes. Either it declares the legislative provision compliant with the Constitution. In this case, the provision retains its place in the domestic legal order. The Conseil d'Etat will have to apply it, considering any reservations of interpretation the Conseil Constitutionnel may have eventually formulated. Or the Council declares the legislative provision contrary to the Constitution. In this case, it will be repealed from the date of publication of the decision, in accordance with article 62 of the Constitution.
As already mentioned, the Conseil d'Etat only refers new and serious questions to the Conseil constitutionnel after careful and very strict examination of the conditions required. Consequently, if this QPC has been transmitted in this case, it is because it is not impossible that the Conseil Constitutionnel will declare article L. 542-10-1 of the Environmental Code unconstitutional. Considering that this is the provision that authorizes the creation of basic nuclear facilities, its repeal would threaten the very existence of these facilities. What's more, the declaration of unconstitutionality benefits not only the party that submitted the QPC, but also all those who have QPCs pending on the same provision, or those who had proceedings in progress involving this provision. Secondly, even beyond the disputed article L.542-10-1, its repeal could open the door to similar QPCs targeting any type of facility with the same characteristics. This foundation of the "right of future generations to live in a balanced environment respectful of health" derived from Article 1 of the Environmental Charter would be a real filter for the many nuclear-related projects. Finally, such jurisprudence could have a knock-on effect, paving the way for QPC on provisions relating to fossil fuels, for example. In short, a whole area of environmental and energy law could fall or be modified.
The Conseil Constitutionnel has three months to rule. The Conseil d'Etat has postponed its decision until the “Wise” ruled on the question of constitutionality. To be continued…