The Right of Property in French
Constitution
Importance of property right
• The property right, the right of life, and the
right of liberty are the most fundamental
rights of citizen, which collectively reflects
human basic values and respects.
• French Revolution in 1789
• Declaration of Human Rights establishes
people’s constitutional recognition to the
position of property right for the first time.
Declaration of the Rights of Man and
the Citizen
Article 2:
• “ The aim of all political associations shall be to
preserve natural and imprescriptible rights of
Man. These rights are liberty, property, security
and resistance to oppression”.
Article 17:
• “ Since property is an inviolable and sacred right,
no one may be deprived of it, unless it is
demanded evidently by public necessity, lawfully
ascertained and under the condition of prior and
just compensation.”
Constitution of 1958
• Article 34:"Statutes shall determine the rules
concerning: … … nationalisation of companies
and the transfer of ownership of companies from
the public to the private sector … … systems of
ownership, property rights and civil and
commercial obligations … …
This is relevant to Art. 41 because it talks about
the government’s duties in relation to private
property rights, nationalisation of companies and
the preservation of the commons.
Civil Code
• Article 544 of the Civil Code contains the
qualification mentioned above:
• “ Ownership is the right to enjoy and to
dispose of things in the most absolute manner,
provided that they are not used in a way
prohibited by statutes and regulations”.
Protection and Limitations
• Protect while at the same time restrict
property right
• Who is responsible to interpret the restriction
to private property right?
Constitutional Council
• As the highest judicial body in constitutional matters,
was asked to answer the fundamental question of
whether there are limitations to privatization.
• At first, it is not created for constitutional review of
statutes.
• Since the Constitution included a limitative list of areas
on which Parliament might legislate, the Constitutional
Council was to be a kind of “watchdog” in charge of
preventing Parliament from overstepping such a
imitation of its competence.
How to interpret the limitations
• Before we get that issue, let us first see the
brief privatization history in France
Privatization history
• Before privatization, France has lived through
a long period of nationalization and has built
at some time a “doctrine” about the
coexistence of the private and the public
sector. Public services were traditionally
provided by state-owned monopolies.
Why?
• Some private companies were in poor
financial health, but provided substandard
services (railways, telephones, steel-makers,
computer manufacturers, etc.)
• Some firms were thought to be too powerful
or strategic to remain private companies: their
resources and policies had a large impact on
economic policies as a whole (banks, energy,
transportation, defense).
Nationalization policy
• After the socialist party won the 1981
parliamentary elections, the government
started to nationalize all the largest industrial
companies and banks remaining in private
hands.
• By 1986, the total public sector represented
21% of production, 23% of wages earners,
28% of GDP, 30% of exports and 49% of gross
capital formation.
Privatization history Cont.
• After five years of socialist government, the
center-right parties were in power again in
1986-1988 and started dismantling the then
enormous state sector.
• The Socialists came back to power in 1988
with a fragile majority in the National
Assembly. They enforced a policy that was
called “neither-neither.”
Privatization history Cont.
• The Socialists lost the general elections in 1993,
so privatization continued.
• In 1995, Jacques Chirac won the presidential
elections as well as the legislative elections and
additional privatization took place.
• In 1997, the president called for legislative
elections and lost them to the Socialists. After
some hesitation, the new Prime Minister Jospin
went on privatizing state firms on a large scale.
Privatization history Cont.
• Finally, in 2002, Jacques Chirac won the
presidential elections and the Right won the
legislative elections.
• Since 2002, the center-right government have
made clear that they favor privatizing stateowned companies.
The Council’s affirmation of the
constitutional protection
• The program of the Socialist party which won
the 1981 parliamentary elections included
substantial nationalizations.
• The Council affirmed the constitutional
standing of the right of property by first
quoting Art. 2 and 17 of the 1789 Declaration,
then using an historical argument (i.e what
happened in 1946 during the constitutional
debate.)
Has 1789 Declaration lost its value?
• A number of legal commentators questioned it,
based on historical evolution and the wording of
nationalization in 1946 Preamble.
• The Council did not agree:” On the contrary, it
held, by two referendums held in 1946 and in
1958 the French people approved texts giving full
constitutional value to the principles and rights
proclaimed in 1789, as shown by the 1946 and
1958 Preambles to both Constitutions.
Public Necessity
• Under Art. 17 of the 1789 Declaration
deprivation of property may take place only
when the following conditions are met:
• It must be demanded evidently by “public
necessity”, lawfully ascertained.
• There must be prior and just compensation.
Two possible explanations
• First one
• The assessment of necessity is by definition an
exclusively political choice, to be left to
Parliament and thus refrain from reviewing it by
the Council.
• Second one
• Review it together, the political character of the
choices made by Parliament and the inherent
limits of judicial review in this domain.
Council’s Conclusion
• Parliament’s evaluation on the necessity of the
nationalizations would not be reviewed by the
Council, unless one of two situations occurred:
• Either a manifest error of valuation of the scope
of the nationalizations
• or a situation in which the transfer of property
and of companies from the private to the public
sector would restrict the scope of private
property and that of freedom of enterprise in
such a way as to violate Articles 2 , 4 and 17 of
the Declaration