RANA FAWADLEH

EXPROPRIATION IN FRANCE

WHAT IS EXPROPRIATION? * Nationalizing private property compulsorily for public interests by the state. * Converting the ownership from private to public towards achieving the public interest.  under certain conditions + just compensation

People in the world are seeking for the spread of justice and human rights. One of the most important rights is the right to property. Aforementioned, The right to private property should be protected. But when the latter is contradicted with the public interests, which is more likely to be considered?

On one hand, the public interests should take the priority to be protected if it is contradicted with the private property towards achieving the social purposes.

For example, if the government decided to build a hospital in a village, it might have the land necessary to build the actual hospital but the problem could be that there is no road linking to the hospital, so the government might need to pave a way to the hospital. Imagine if the government intends to buy a piece of land to pave that way but the owners don’t like to sell their lands!

Basic principle is that the owners are free to decide to sell or not to sell or to decide to whom to sell and in the price they want. However, as we see from the aforementioned example, if the owners refuse to sell the land this will hinder achieving the social purposes (the Hospital in our example). Therefore, in most countries there is legislation stipulating that the State right to the expropriation, which allows the state to take the land despite of the refusal of the other party.

COMPENSATION On the other hand, justice requires that the former owner be compensated for his loss.

DANGEROUS PROCEDURE Expropriation is a dangerous procedure on private property because it limits individual property, thus, most of the constitutions and basic laws stipulates that this procedure should be organized by laws and under certain conditions.

FRENCH SYSTEM: THE RESPONSIBILITY OF THE ADMINISTRATION Historical Background The feudal state had used to be irresponsible for its different acts and also irresponsible for any fault of its employees. This relates to the idea which was that era “the king can do no wrong”. This means that the state is embodied in the king who don’t do any wrong.

19 TH & 20 TH CENTURY But then in the late of 19 th century and the beginning of 20 th century, the concept of the absolute irresponsibility started to disappear, especially, because the state Interfere in all of the areas such as the high taxes under the last French aristocratic regimes. “Let them eat cake”

LE ROI NE PEUT MAL FAIRE France France as the other states, used to be subjected for the principle “le roi ne peut mal faire” * The king as the shadow of God on the earth

ABSOLUTE AUTHORITY That lead that the king has an absolute authority for controlling the state without being controlled from the judiciary power, because he used to be considered the source of the justice so he can fix any conflict.

“ADMINISTRATION RESPONSIBILITY PRINCIPLE” French Revolution Separation between the authorities (thanks to Montesquie) Administration responsibility principle

JURISPRUDENTIAL DEBATE After that, there was a big Jurisprudential debate about the responsibility of the executive authority of its acts and the compensation of its faults, in front of the judiciary, unlike to the principle of the separation between the authorities. Absolute separation between the authorities Flexible separation between the authorities

RESPONSIBILITY ABOUT THE EMPLOYEES Moreover, historically there had been an idea that the administration is not responsible for all of its employees, because this may hinder the administration from its goals. Thus, it was necessary to separate between the ordinary courts and the administrative courts. 

SUING THE ADMINISTRATION However, some believe that suing the administration may hinder its acts which aim to the public interest. They believe, for example, if the administration is sued for the expropriation of a land this will hamper the public interest.

SIXTH YEAR OF THE REVOLUTION Therefore, in the sixth year of the revolution, the administrative cases was seen by the same authority (executive authority), that means the administration monitors itself (the central administration monitor the local administration) 

After that, the council of the state was established in addition to the provincial councils. However, the council decisions were pending on the approval of the head of the state 

JUDICIARY SEPARATION Then, this situation continued unless the separation between the ordinary and administrative judiciary. And so, the council of the state was given the power to decide on the administrative issues without the approval of the head of the state. 

LOCAL LEGISLATIONS AND EUROPEAN CONVENTIONS * The First Law related to the expropriation in France was in 8th March 1810 (thanks to Napoleon). * It should be noted that all the Legislations and convention stipulated that the private property should be protected unless it’s contradicted with the public interest.

EXPROPRIATION IN LOCAL LEGISLATIONS

FRENCH CONSTITUTION Preamble to the 1946 Constitution paragraph 9 “All property and all enterprises that have or that may acquire the character of a public service or de facto monopoly shall become the property of society.”

FRENCH CONSTITUTION Constitution of 4 th October, 1958 Article 34 “Statutes shall determine the rules concerning: nationalization of companies and the transfer of ownership of companies from the public to the private sector.”

FRENCH CIVIL CODE French Civil Code Art. 545 “No one may be compelled to yield his ownership, unless for public purposes and for a fair and previous indemnity.”

DECLARATION OF THE RIGHTS OF MAN AND CITIZEN Declaration of the Rights of Man and Citizen Article 17 “Since the right to Property is inviolable and sacred, no one may be deprived thereof, unless public necessity, legally ascertained, obviously requires it, and just and prior indemnity has been paid”.

EXPROPRIATION IN EUROPEAN CONVENTIONS

Charter of fundamental Rights of the European Union Article 17 “1. Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in goodtime for their loss. The use of property may be regulated by law in so far as is necessary for the general interest.”

European Convention on the Protection of Human Rights and Fundamental Freedoms Article 1 of Protocol No. 1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

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