French constitutional Council
2011, 13 may, n°2011-126 (QPC), Société Système U Centrale Nationale et autre
To read the decision, click here
The decision is also commented by :
- PICOD, Yves, D.2011, n°6, p.415 s. ; MAINGUY, Daniel, JCP, E, 2011, n°7, p.42.
This cas concerned the supposes contradiction between the French Constitution and the right of the Economy Minister to attach a private contract because it is contrary to competition law, and obtain the cancellation of a contract constitutes an anti-competitive practice
The applicants sued the contractors are at a disadvantage in relation to the Minister, which is a breach of the constitutional principle of due process.
The mechanism is also in contradiction with the principle of free enterprise as the Minister should not have the right to attack private contracts.
But the French Constitutional Council rejects the request, because Parliament has the right to limit the principle of free enterprise for reasons of general interest as long as it respects the principle of proportionality.
Due process is not affected by the exercise of a right of action by a public authority, even on a private contract, as soon as the parties are able to assert their rights during the procedure, as provided by law.