The Court’s decision has important implications for the French Constitution and the interplay between economic growth and the environment.  

By Paul A. Davies, Fabrice Fages, and Michael D. Green

On 31 January 2020, the French Constitutional Court (Conseil Constitutionnel) took a decision that aimed to balance the protection of the environment and human health with the freedom of enterprise, both of which are protected under the French Constitution. (Decision n° 2019-823 QPC)

The matter was brought before the Court through an application for a priority preliminary ruling on the issue of constitutionality (question prioritaire de constitutionnalité). This procedure was introduced in 2008, and confers the right for any person involved in legal proceedings before a court to argue that a statutory provision invoked in the context of litigation infringes rights and freedoms guaranteed by the Constitution.

What is the impact of the provision in question?

The case before the Court related to a provision of the Rural Code, as amended by the so-called “EGALIM Law” of 30 October 2018 — an ambitious piece of legislation that was intended to create a balance between trade relations in the agricultural sector and a healthier and more sustainable food supply.

The provision provides: As from 1 January 2022, the production, storage and circulation of plant protection products containing active substances not approved for reasons related to the protection of human or animal health or the environment in accordance with Regulation (EC) n°1107/2009 of the European Parliament and of the Council of 21 October 2009 (…), shall be prohibited subject to compliance with the rules of the World Trade Organization”. (Rural Code, Article L.253-8 IV)

In view of the severity of the consequences of the provision for manufacturers and exporters alike, the claimant — the Plant Protection Industries Union (Union des industries de la protection des plantes) — alleged that the export ban violated the freedom of enterprise principle. The claimant stressed particularly that this prohibition bore no connection with the protection of the environment principle, since importing countries would not stop using the products in question and would simply continue to source them from countries other than France.

What was the Court’s approach?

In response, the Court first referred to the Preamble of the Environmental Charter of 2005, stressing that the protection of the environment and common heritage of living beings constitutes an objective of constitutional value. Second, it appealed to the Preamble of the 1946 Constitution (part of the current French Constitution), which also makes the protection of human health an objective of constitutional value.

The Court also pointed to the legislator’s duty to reconcile these objectives with the freedom of enterprise principle, which derives from Article 4 of the Declaration of Human and Civic Rights of 1789. Therefore, Parliament was justified in considering the effect that activities carried out in France may have on the environment abroad. The Court reiterated that the purpose of these provisions is to prevent the impact of toxic products on the environment and human health, which was established under the foregoing EC Regulation of 2009. The Court stressed that it was not within its purview to second-guess Parliament’s decision on these technical grounds.

However, the Court did clarify that in prohibiting companies established in France from participating in the sale of such products worldwide, and therefore, indirectly, prohibiting them from causing damage to human health and the environment — including outside the EU where the production and marketing of such products would likely be authorised — the legislator’s infringement on the freedom of enterprise was warranted by the objectives of constitutional value. The Court added that the three years the legislator afforded to companies affected by the ban was enough time for them to adapt.

What are the broader implications of the Court’s decision?

In conclusion, the Court considered that the reconciliation of interests between the freedom of enterprise and the protection of the environment and human health was not patently imbalanced, thus confirming the validity of the provision in question.

This decision is important and forward-looking in two respects. First, the decision positions the environment as the “common heritage of living beings” beyond French borders, which has important implications for assessing the constitutional validity of French legislative provisions. Second, the decision illustrates how economic growth and the preservation of the environment are interlinked, and how the latter may now impose new boundaries on the former.

This post was prepared with the assistance of David Desforges, Avocat à la Cour (Paris), and James Bee in the London office of Latham & Watkins.