## Facts

- An EU directive created a greenhouse-gas emissions trading scheme requiring covered installations to hold tradable allowances.
- France implemented the directive through an ordonnance and a decree that applied the scheme to specified installations, including steel-sector installations.
- Steel companies subject to the decree argued that comparable competing sectors (notably aluminium and plastics) were not covered, creating unequal regulatory burdens.
- The companies asked national authorities to repeal (abrogate) key provisions of the decree; the authorities’ silence amounted to implicit refusals.
- The companies brought an annulment action challenging the refusals, invoking the French constitutional principle of equality and contesting the decree’s application to steel.

## Issues

1. How should a French administrative court review a constitutional challenge to a regulation that directly transposes an EU directive, where the challenge would effectively contest the directive’s content?
2. Does the constitutional principle of equality have an equivalent guarantee in EU law, requiring review to proceed under EU-law validity control?
3. If equality equivalence exists, must the court channel the claim into EU-law review (including a possible preliminary reference on validity) rather than directly assessing constitutionality?

## Decision

- The court held that when a challenged regulation merely transposes an EU directive, constitutional review follows a two-step method focused on whether the invoked constitutional guarantee has an EU-law equivalent.
- Because the constitutional equality principle has an equivalent in EU law (general principles of equality and non-discrimination), the court would not directly decide the regulation’s constitutionality on that ground.
- The claim was treated as raising the directive’s conformity with EU-law equality; resolution could require a preliminary reference to the EU Court of Justice on the directive’s validity.
- The court did not immediately annul the decree provisions; it structured further analysis around EU-law mechanisms rather than direct constitutional invalidation.

## Legal Principles

- The French Constitution remains supreme domestically, but Article 88-1 entails a constitutional requirement to transpose EU directives, creating potential conflicts when transposition appears constitutionally suspect.
- For a regulation that directly implements a directive, the reviewing court must first determine whether the invoked constitutional right or principle has an effectively protected equivalent in EU law.
- If an EU-law equivalent exists, the court reviews compliance through EU law: it checks faithful transposition and, if the directive’s validity is seriously in doubt under EU fundamental principles, it must seek EU Court of Justice review via a preliminary reference.
- If no EU-law equivalent exists, the court conducts direct constitutional review of the implementing regulation and may annul or disapply it to protect the constitutional guarantee.

## Conclusion

The court established a methodology for handling constitutional challenges to directive-transposing regulations: where the constitutional norm has an EU-law equivalent, the dispute is addressed through EU-law validity control (potentially involving a preliminary reference), rather than direct constitutional review of the transposition measure.


Société Arcelor Atlantique et Lorraine v. Fr., No. 287110 (Conseil d’État (Ass.) 2007)