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Furnished accommodation: the civil fine is constitutional

DR

The civil fine sanctioning, under the terms of Article L. 324-1-1, IV and V, of the Tourism Code, the failure to transmit to the municipality the data requested concerning the rental periods is not in contradiction with the principle of the legality of offenses and penalties, or with the presumption of innocence, or, finally, with the right to remain silent.

Cas. 3e civ., Jan. 26, 2022, noh 21-40026

The practice of renting residential or commercial premises by transforming them into tourist accommodation is the source of various problems. Indeed, this practice constitutes unfair competition for hoteliers, a nuisance for co-owners who deplore the disturbances caused by the rotation of users and the public authorities who note a reduction in the supply of housing for residential use. This explains why some urban areas, such as Paris, have taken measures to regulate this practice. Thus, among other things, by a municipal regulation of December 15, 20211, it tightened the obligation of compensation due in the event of assignment of residential accommodation as furnished tourist accommodation as well as the conditions for converting commercial premises into such furnished accommodation. The legislator has also taken this phenomenon into account through article L. 324-1-1 of the Tourism Code, which sanctions by civil fines the violation of the obligations that it imposes on owners who wish to transform their premises into tourist accommodation. It is to this provision that a judgment delivered by the third civil chamber of the Court of Cassation on January 26, 2022 relates.2.

In this case, owners of real estate rented as furnished tourist accommodation are, among other things, ordered to pay civil fines for not having complied with the obligations imposed on them by Article L. 324- 1-1 of the Tourism Code. This is in particular the one, provided for in paragraph IV of the text, which obliges people who have used the option of renting their premises as tourist accommodation to inform, within one month, the municipality where they are located of the number of days when this premises was rented under this name. In defence, the persons prosecuted file a priority question of constitutionality (QPC) against paragraphs IV and V of the aforementioned text.

According to them, they are in contradiction with the principle of legality of offenses and penalties as well as with the presumption of innocence and the right to remain silent. This claim is rejected by the third civil chamber which refuses to transmit this QPC to the Constitutional Council on the grounds that the question posed is neither new nor serious.

This lack of seriousness of the question posed is beyond doubt. Indeed, in the first place, it appears that the failure which is penalized here is precisely provided for by the second paragraph of paragraph IV of article L. 324-1-1 of the Tourism Code. As for his penalty, it is also specifically provided for in the second paragraph of paragraph V of the same article. There is therefore no violation of the principle of legality of offenses and penalties. Secondly, the condemnation to a civil fine aims to sanction the only violation of the obligation of information of the municipality, it has no influence on the sanction of the rental of the building as furnished tourist accommodation. There is therefore no violation of the presumption of innocence. Finally, ultimately, the order to pay a fine for non-transmission of information is only intended to sanction the failure to comply with a specific obligation and is not intended to obtain a confession. with respect to the main offence. In these conditions, there was no infringement of the right to remain silent.

This is not the first time that a QPC has been asked in terms of furnished accommodation, even if these attempts have not, in most cases, been crowned with success. Thus it was judged that the fine sanctioning the illegal transformation of the dwelling is justified by a reason of general interest and does not infringe the right of property3or that the specific obligations borne by intermediaries in terms of tourist rental do not infringe the principle of equality before public charges4. Conversely, the Constitutional Council considered that the faculty granted to municipal agents to carry out a visit to the dwelling (CCH, art. L. 621-6) without the authorization of the occupant or possession of a mission order is unconstitutional5.

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