Where the Declaration of unconstitutionality made by decision of 30 November 2006

Regardless of the privatization of GDF, the decision of November 30, 2006 was an opportunity for the Constitutional Council to address the question of the regularity of the "regulated energy prices". Indeed, in the line of the distinction between eligible and non-eligible consumers established internally in the first phase of opening up competition, article 17 of the text adopted by Parliament was the institution of the regulated tariffs, for the benefit of consumers eligible as a non-eligible under certain conditions. It is on the compliance of this regime to the rule of competition that ruled the decision of 30 November 2006.

This question raises the more general problem of the place of regulation of prices in a market economy regime. If it follows much of the order of 1 December 1986 on the freedom of prices and competition that "the price of the goods, products and services are freely determined by the competition," a regulated tariff is still possible Both the Council of State was himself seized of the problem, and he seized the Council of competition expected to notice (judgment of 7 July 2006, company POWEO).

In this case, the Constitutional Council had to examine whether the regulated tariff was manifestly contrary to the provisions of the two Community directives of 26 June 2003 on the common rules of the electricity and gas market. The reading of the two texts shows that they spend in identical terms the opening the market to competition: "the Member States shall without prejudice to paragraph 2, electricity undertakings, are operated in accordance with the principle of this directive, to achieve a sustainable environmentally, sur and competitive electricity market, and to refrain from any discrimination with regard to rights and obligations companies." Paragraph 2 of article 3 adds however that this principle does not prejudice the right of Member States "to impose on the undertakings of the electricity sector, in the general economic interest, public service obligations.

Concept of "universal service".

In the only one seen from these provisions, the fate of the tariff regulated as defined by the text adopted by Parliament was thus sealed. Indeed, as the noted explicitly the Constitutional Council in its decision, the reviewed provisions "does not merely apply rates regulated current contracts, but impose historical operators of the energy sector, and to them alone, permanent, general tariff obligations, and foreign reserve objectives of public service". Where the Declaration of unconstitutionality made by decision of 30 November 2006.

Is any regulated tariff therefore sentenced to disappear No, because, without prejudice to the possibilities created for social purposes (as mentioned in the Council in its decision), Community law has developed the concept of "universal service", which means "a set of requirements of interest whose objective is to ensure that certain services are made available to all consumers and users, on the whole of the territory of a Member State independently of their geographical location"", at a quality level specified, and, taking into account the national circumstances particular to an affordable price" (green paper on Services of general interest on May 21, 2003). The use of the concept of universal service is explicitly envisaged by the directive of 26 June 2003 on the market of electricity (article 3.2). In a notice of March 31, 2005, the competition Council also studied its implementation in the banking sector.

Decision of 30 November 2006 not must therefore not be interpreted as excluding definitively any remedy at a regulated rate, and therefore regretted that the High Court has not considered it in a reserve of interpretation. Undoubtedly, the development of the tariff won't be easy, but in any case, it will show that Community law is capable of balancing regulation of prices and competition.