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TD N°3 : Le principe de légalité

Corrigé dissertation :

L’impôt est payé pour assurer la sécurité collective. A l’origine, le consentement est limité aux finances extraordinaires et à la noblesse et au clergé. La soupape de sécurité sera améliorée :

* en Angleterre en 1628 et en 1689 : élargissement du consentement * en Amérique : révoltes * 1789 en France avec la Révolution : le Royaume qui est dans une situation financière économique catastrophique mais Necker va faire lever de nouveaux impôts. Le plan était que le clergé et la noblesse vont voter contre le Tiers état le problème est que la noblesse se scinde en deux alors que le clergé reste unit. Dans la foulée, les privilèges sont abolis et l’introduction du droit d’aide. DDHC et art 14 : principe de consentement à l’impôt est généralisé (méthode du consentement par le parlement est choisie). * Lois des 1815 : principe n’est pas repris= le parlement va seul à continuer la loi jusqu’en 1914. * 1946 : IV République donc on réinscrit dans la loi que la loi est votée par le Parlement * Constitution de 1958 : loi fixe les règles pour l’assiette, le taux et des impositions de recouvrement

Les sanctions fiscales sont considérées par le Conseil constitutionnel comme des sanctions pénales.
Limites au principe de légalité :

* document 3 : les collectivités territoriales= on confère la libre administration aux collectivités mais cette liberté n’existe pas si elles n’ont pas d’autonomie financière. Donc on a fait tout pour qu’elles aient cette autonomie. On a laissé la possibilité aux CT de fixer elles même le taux et l’assiette des impôts. C’est une loi organique qui délègue et les fourchettes sont fixées de manière précise. En pratique c’est limité aux taux et l’autorisation de perception émane toujours du Parlement. * Document 7 : on a une taxe crée par un règlement communautaire et le Conseil constitutionnel se prononce sur le principe de légalité en matière fiscale. En principe, les traités>loi nationale transposition mais dans le cadre de l’UE il y a deux choses différentes : transfert de souveraineté relevé par le CC et le règlement communautaire est directement applicable donc on n’a pas besoin de le transposer. * En principe la loi est votée par le parlement mais ce dernier agit comme une chambre d’enregistrement.

Incompétence négative : document 6= le CC nie sa compétence d’où la compétence négative.

Sanctions par le CE : document 13= c’est le CE est plus généralement le juge administratif qui sanctionne. En l’espèce, Bouygues agit devant TA de Paris : deux moyens :

* principe de légalité d’une imposition de toute nature : TA est OK * restitution pour prélèvement illégal : TA refuse car enrichissement sans cause.

CAA : refus car enrichissement sans cause et développe deux arguments :

* Oui l’enrichissement sans cause existe * Preuve de l’enrichissement sans cause est apportée

Bouygues fait le pourvoi et on dit les moyens au pourvoi :

Technique : annoncer solution, motifs avant de faire le plan et de cela va se dégager le plan et problème.

Les origines de l’enrichissement sans cause :

* civil * communautaire : mais qui est devenu un principe général concerne tous les impôts prélevés à titre illégal

Plan :

i) L’enrichissement sans cause comme exception à la restitution d’une taxe illégale

A) Une explication de la solution et des ses fondements B) Une solution pérenne ?

II) La preuve

A) La charge de la preuve B) Les modalités

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