RE2020: the Council of State rejects the appeal for unconstitutionality filed by the concrete and terracotta sectors

At the end of December 2021, several industrial construction federations filed a Priority Question of Constitutionality with the Council of State to request the cancellation "for excess of power" of the first decrees and orders published in 2021 concerning the requirements and methods of calculation of RE2020. These organizations considered that a form of favoritism in the use of wood for building construction was contrary to “freedom of enterprise” and the “principle of equality”.

"While it is argued that the contested provisions establish a difference in treatment between the wood sector, which would present good results in terms of carbon storage during the life of the buildings, and the other sectors and materials, it follows from the terms of Articles L. 171-1 and L. 171-2 of the Construction and Housing Code that the disputed provisions apply equally to all builders and are limited to introducing a requirement for minimum results, without identifying any material given. Consequently, and in any event, it cannot be seriously maintained that these provisions would infringe the constitutional principle of equality before the law. »

With RE2020, "the legislator intended to promote the reduction of greenhouse gas emissions, with the aim of protecting the environment" by imposing an expectation of results in terms of limiting the impact on climate change and calculated over the entire life of the building and taking into account carbon storage during the building's life cycle. But the Council of State specifies that “this obligation does not however impose on the actors of the construction a particular choice of material, and does not fix any quantitative prescription directly imposing a proportion of materials identified in the building. The attack thus made on the freedom of enterprise of construction players by the legislator is therefore not manifestly disproportionate with regard to the general interest objective of environmental protection”.

The Council of State therefore declared in its decision of March 29 “that the question of the conformity with the rights and freedoms guaranteed by the Constitution of the disputed provisions is not of a serious nature. There is therefore no reason to refer it to the Constitutional Council”.