CC, October 11, 2024, QPC Decision No. 2024-1107
By two decisions dated October 11, 2024, the Constitutional Council examined the differences in regimes in terms of functional protection and their conformity with the Constitution.
1. In the first case it was (n° 2024-1106), the difference in treatment between public officials and local elected officials.
In this case, the municipal council of the commune of Istres had granted its mayor the benefit of functional protection as part of the preliminary investigation of which he was the subject, opened by the national financial prosecutor’s office for crimes of violation of probity.
This resulted, according to her, in an unjustified difference in treatment between municipal elected officials and public officials.
The Constitutional Council, however, refuses to see this as a breach of the principle of equality before the law, considering that public agents “ are not in the same situation as the elected officials responsible for administering the municipality, particularly with regard to the nature of their missions and the conditions of exercise of their functions ».
He then judged that, given the difference in situation between public officials and municipal elected officials, the legislator was not required to subject them to the same rules of functional protection.
2. In the second case (n° 2024-1107), the Constitutional Council was this time seized of the difference in treatment between regional councilors holding executive functions and other regional councilors.
In this case, the permanent commission of the Île-de-France regional council had refused to grant the benefit of functional protection to a regional councilor in the context of his direct summons before the Paris High Court for facts of defamation.
The applicant councilor then argued that, by reserving the benefit of functional protection for regional councilors holding executive functions, these provisions would establish an unjustified difference in treatment between the latter and the other regional councilors.
However, the Constitutional Council once again dismissed the complaint based on disregard for the principle of equality before the law.
He, in fact, ruled that “ by adopting the contested provisions, the legislator intended to grant the benefit of protection to regional councilors exercising executive functions, taking into account the risks of criminal prosecution to which these functions expose them ».
The Constitutional Council therefore deduces that regional councilors exercising executive functions are not placed in the same situation as other regional councilors, which justifies the difference in treatment.
Ultimately, we will note from the two aforementioned decisions that the Council judged to be consistent with the Constitution the differentiated granting of functional protection between public officials and municipal elected officials, on the one hand, and between regional councilors holding executive functions and other regional councilors , on the other hand.
It will nevertheless be noted that, in each of the two decisions, the Constitutional Council explicitly invites the legislator to take a position on the subject by reminding him that he “ would be permissible […] to extend functional protection » to other acts of criminal procedure, for the first case, and to other regional advisors, for the second.
By validating this double difference in treatment, these decisions question more broadly the need for new reflection on the effectiveness of functional protection mechanisms for local elected officials and on the modalities of their legislative translation.
[1] Namely the mayor, his deputies or the councilors having received a delegation from the mayor.
[2] CE, July 15, 2024, no. 490227, unpublished.
[3] Namely the president of the regional council or the regional councilor deputizing for him or having received a delegation.
[4] CE, July 15, 2024, no. 469682, unpublished.
