Presentation on theme: "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."— Presentation transcript:
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 state- owned 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