Environment : a common heritage that can justify infringements on the freedom of entrepeneurship

The Council of State referred to the French Constitutional Council on 7 November 2019 a priority constitutional issue, which was worded as follows:

"the complaint by the French Association of Plant Protection Products Industries [Union des industries de la protection des plantes] alleging that the prohibition on the production, storage and movement of plant protection products containing active substances not approved by the European Union on grounds relating to the protection of human or animal health or the environment, as laid down by those provisions, is likely to infringe on the freedom of entrepreneurship guaranteed by Article 4 of the Declaration of the Rights of Man and of the Citizen of 1789, raises an issue of a serious nature. Under such circumstances, the priority constitutional issue invoked must be referred to the Constitutional Council."

The appellant submits that the prohibition on the export, as introduced by those provisions, of certain plant protection products containing active substances not approved by the European Union is, by reason of the seriousness of its consequences for manufacturing or exporting companies, in conflict with the freedom of entrepreneurship. The freedom of entrepreneurship derives from article 4 of the Declaration of the Rights of Man and of the Citizen of 1789.

Such a ban would be at odds with the objective of the protection of the environment and health.

Above all, the Constitutional Council provides the legal framework in its recitals 4 and 5 that:"

According to the preamble of the French Environmental Charter: "the future and the very existence of humankind are inseparable from its natural environment ... the environment is the common heritage of human beings ... the preservation of the environment must be pursued on an equal footing with the other fundamental interests of the nation ... in order to ensure sustainable development, the choices intended to meet the needs of the present must not compromise the ability of future generations and other peoples to meet their own needs." It follows that the protection of the environment, the common heritage of human beings, constitutes a constitutionally valid objective.

According to the eleventh paragraph of the Preamble of the 1946 Constitution, the Nation "guarantees to all ... the protection of their health." From this follows a constitutionally valid objective of health protection."

It is incumbent on the legislature to ensure that the aforementioned objectives are balanced with the exercise of the freedom of entrepreneurship, recalls said Council:

"In the regulation of 21 October 2009, it is stipulated that plant protection products may only be put on the European market if the active substances they contain have been approved by the competent bodies of the European Union. Such approval shall, in particular, be denied for those substances that have harmful effects on human or animal health or unacceptable effects on the environment.

The disputed provisions prohibit the production, storage and movement in France of plant protection products containing active substances not approved by the European Union on the grounds of such effects. It follows that, by adopting those provisions, the legislature intended to prevent harm to human health and the environment likely to result from the sale of the active substances contained in the products in question."

It follows firstly the observation that by adopting these provisions, the legislature intended to prevent harm to human health and to the environment likely to result from the spreading of the active substances contained in the products in question.

The second observation points out that, by deferring until 1 January 2022, the entering into force of the ban on the production, storage or movement of plant protection products containing unapproved active substances, the legislature has granted the companies which will be subject to it a period of slightly more than three years in which to adapt their activity accordingly.

The French Constitutional Council concludes by stating that: "It follows from the foregoing that, by adopting the contested provisions, the legislature has ensured a compromise that is not manifestly unbalanced between the freedom of entrepreneurship and the constitutionally valid objectives of environmental and health protection. The complaint alleging that this freedom is infringed upon must therefore be dismissed."

It is striking to note that, after consideration of the balancing of interests, entrepreneurial freedom may be limited as a result of environmental protection objectives being constitutionally valid. In other words, the protection of the environment, which is the common heritage of human beings, constitutes a constitutionally valid objective which can justify infringements on the freedom of entrepreneurship.