Doping: restriction of AFLD's disciplinary power

Under Article L. 232-22, 3°, in the field of doping, the French Agency for the Fight against Doping (AFLD) has the right to take up disciplinary sanctions taken by sports federations ex officio and then, if necessary, reform them. In order to better understand the scope of this decision, it is necessary to address: on the one hand, the role of AFLD (I.); on the other hand, the foundations of the QPC (II.).

I. The role of AFLD

The AFLD is an independent public authority created in 2006. Its role consists in particular in defining and implementing anti-doping actions. The AFLD has many powers, including: the definition of the testing strategy and their operational implementation, for competitions and training taking place in France outside the rules of international federations; the ability to carry out analyses through its analysis department; prevention, in particular, through recommendations to federations or even actions to raise awareness about anti-doping controls during sports events; research through its analysis committee; scientific orientation; or even disciplinary authority.

Indeed, while, in principle, Article L. 232-21 of the Sports Code entrusts approved sports federations with the imposition of disciplinary sanctions in the field of doping, Article L. 232-22 of the said code determines the cases in which the AFLD exercises sanctioning powers. Section 3° of Article L. 232-22 of the Sports Code, thus provides for the right, for the AFLD, to take action ex officio to reform a decision taken by an approved federation. However, according to the applicant, these provisions are not in conformity with the Constitution.

II. The foundations of the QPC

As a reminder, a QPC is a mechanism allowing the plaintiff, during proceedings, to raise the unconstitutionality of a legal provision that would infringe his rights and freedoms guaranteed by the Constitution. In this QPC, the applicant maintained that Article L.232-22, 3° of the Sports Code, infringed the principles of independence and impartiality arising from Article 16 of the Declaration of Human and Citizen Rights of 1789 insofar as the authority deciding to refer the matter ex officio to the AFLD, the prosecuting body, was not distinct from the authority responsible for the judgment, namely the judicial body. In its decision No. 2017-688 QPC of 2 February 2018, the Constitutional Council noted, first of all, that the contested provisions did not specify to whom the power was attributed, whether to a person or to a specific body within the agency. However, according to the Constitutional Council, it is then up to the latter to judge the breaches that were the subject of the federation's decision. The Constitutional Council therefore concludes that, in the absence of separation, within AFLD, between, on the one hand, the functions of prosecuting possible breaches that have been the subject of a decision by a sports federation pursuant to Article L. 232-21 and, on the other hand, the functions of judging these same breaches. Article L. 232-22, 3° therefore infringes the principle of impartiality guaranteed by article 16 of the Constitution and is therefore declared contrary to the Constitution.