Rules applicable to '.fr' domain names found to be unconstitutional

On October 6 2010 the Constitutional Court issued a decision calling for the complete redefinition of the existing French laws and regulations relating to domain names.
The decision came in application of a newly implemented procedure which allows any French citizen to contest the constitutional validity of any law or legislative provision. Up until March 1 2010, the Constitutional Court (the only body entitled to assess the compliance of a law with the French Constitution) could not be seized by private individuals. However, any French citizen can now, in the course of a procedure relying on the application of a legislative provision, allege that the provision in question violates the Constitution.
This major change came as a result of a modification of the Constitution in 2008. Prior to this reform, the constitutionality of a text could be contested only in strictly limited circumstances. Thanks to the new procedure, known as the question prioritaire de constitutionnalité ('priority constitutionality question' or QPC), a number of issues have been raised before the Constitutional Court. However, while the procedure allows for a large number of legal provisions to be contested, its scope is limited.
First, the procedure relates only to legislative provisions. International treaties and statutory instruments can be contested before the administrative and judicial courts (as appropriate), and, therefore, do not fall within the scope of this procedure.
Second, the procedure can be used only indirectly: the Constitutional Court cannot be seized at any time by any citizen to contest the validity of a law. Rather, the system allows for the use of the procedure in cases where a legislative provision is relied upon by a party in the course of existing proceedings.
Third, the system allows only for the contestation of legislative provisions which allegedly infringe the rights and fundamental liberties preserved by the Constitution (the scope of which includes the body of the current Constitution and its preamble, but also, by reference, the preamble of the Constitution of the Fourth Republic and the 1789 Declaration of Human and Citizenship Rights).
Finally, in order for a QPC to be validly raised, it must be deemed to be "serious" or to raise a serious concern with regard to the constitutionality of the legislative provision it addresses. This evaluation takes place in two stages: if the judges consider the question to raise a serious issue, they can in turn submit it to the highest judicial or administrative courts, which will, in turn, evaluate the seriousness of the QPC before either transmitting it to the Constitutional Court or rejecting it.
Relying on this procedure, a private individual, Mathieu P, contested the validity of the legislative provision setting out the legal framework for French domain names.
Article L45 of the French Posts and Electronic Communications Code is the only provision of a legislative nature which directly governs domain names. In essence, this provision states that the allocation and management of domain names relating to the French territory is delegated to one or several entities designated by the minister in charge of electronic communications. In addition, it specifies that such allocation and management of French domain names must occur:
"in the general interest, according to non-discriminatory rules made available to the public and which guarantee the compliance, by the person requesting the allocation of a domain name, of intellectual property rights."
The law leaves it to a statutory instrument (a decree adopted after consultation of the Conseil d'Etat) to define the conditions under which domain names should be allocated, renewed, rejected or cancelled. That decree was adopted in February 2007 and defined the conditions for:
  • the designation of the registries for the French top-level domain by the minister in charge of electronic communications; and
  • the allocation and management of French domain names by such registries (the implementation of this text notably led to a substantial modification of the conditions for the recuperation of domain names under the alternative dispute resolution procedures for '.fr' and '.re').
In application of the 2007 decree, the minister in charge of electronic communications designated, on February 19 2010, AFNIC as the registry for the management of '.fr' and '.re' domain names.
However, this decision was contested by P, who initiated a procedure calling for its cancellation. P argued that Article L45 of the code, from which the decision of the minister was directly derived, infringed the Constitution and, more specifically, Article 34.
Article 34 defines which matters must be regulated by law and those which can be regulated directly by regulations issued by the executive power. The areas which are set out as being the sole competence of the legislature include "the fundamental principles relating to... civil and commercial obligations". Based on the interpretation of the Constitution resulting from the Constitutional Court's case law, the fundamental principles relating to civil and commercial obligations include, by reference to the Declaration of Human and Citizenship Rights, freedom of entrepreneurship and freedom of speech.
On that basis, P argued that, by delegating the definition of the conditions for the allocation, management, renewal and cancellation of domain names to the executive power (by means of the 2007 decree), the French legislature had, when adopting Article L45, illegally delegated a legislative power to the executive power.
The Constitutional Court agreed with this reasoning. It started by underlining that:
"given the current state of the means of communication, and in consideration of the generalised development of online public communication services, as well as the importance of these services in economic and social life, notably for those who exercise their activity online, the definition of the framework in relation to the choice and use of domain names on the internet affects, both for individuals and for companies, intellectual property rights, freedom of communication and freedom of entrepreneurship."
The court noted that, while Article L45 provided that the allocation and management of domain names had to respect the general interest and IP rights, no legislative provisions addressed the preservation of freedom of entrepreneurship and communication, even though this fell within the scope of the Parliament's exclusive competence. Consequently, by allowing the executive to define the rules applicable to the allocation, management, rejection and cancellation of domain names by decree, the legislature had infringed the Constitution by denial of competence.
Article L45 was thus found to be unconstitutional. However, the court considered the potential consequences associated with the invalidation of Article L45: in effect, all subsequent acts resulting from it would be invalidated, including the allocation of all domain names by AFNIC in accordance with the 2007 decree. Pragmatically, it was thus decided to postpone the abrogation of the text and the invalidation of the decree to July 1 2011, and the court declared that all acts, including the allocation of domain names, carried out on the basis of Article L45 and of the decree could not be contested on the basis of its decision.
The relevance of this decision is twofold. On the one hand, it will result in the need for the adoption of new legislation regarding domain names, giving greater force to some of the rules defining the conditions for the allocation of domain names. On the other hand, this raises the question of the potential invalidation of AFNIC as the registry for '.fr' domain names, even though it seems unlikely that this invalidation would result, at least in the short term, in the designation of a new registry.
David Taylor, Hogan Lovells, Paris

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