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Decision no. 2012-226 QPC of 6 April 2012

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T. et al.[Conditions governing the taking of possession of a property which has been expropriated on the grounds of public interest]

On 16 January 2012, in the conditions provided for by Article 61-2 of the Constitution, the Constitutional Council received an application for a priority preliminary ruling on the issue of constitutionality raised by the Cour de Cassation (third civil division, judgment no. 165 of 16 January 2012) on behalf of Messrs Youssef and Brahim T., raising the conformity of Articles L. 15-1 and L. 15-2 of the Expropriation Code on the grounds of public interest with the rights and freedoms guaranteed by the Constitution.

THE CONSTITUTIONAL COUNCIL,

Having regard to the Constitution;

Having regard to Ordinance no. 58-1067 of 7 November 1958 as amended, concerning the basic law on the Constitutional Council;

Having regard to the Expropriation Code on the grounds of public interest;

Having regard to the Regulation of 4 February 2010 on the procedure applicable before the Constitutional Council with respect to applications for priority preliminary rulings on the issue of constitutionality;

Having regard to the observations on behalf of société d'économie mixte d'aménagement de la ville de Paris (SEMAVIP) by the SELARL Le Sourd Desforges, attorney at the Paris bar, registered on 7 February 2012;

Having regard to the observations on behalf of the Prime Minster, registered on 7 February 2012;

Having regard to the observations on behalf of the applicants by Didier Berhault Esq., attorney at the Paris bar, registered on 20 February 2012;

Having regard to the documents produced and appended to the case files;

Having heard Berhault Esq. for the applicants, Desforges Esq. for SEMAVIP and Mr Xavier Pottier, appointed by the Prime Minister, at the public hearing on 20 March 2012;

Having heard the Rapporteur;

1. Considering that pursuant to Article L. 15-1 of the Expropriation Code on the grounds of public interest: “Within one month of payment or deposit of compensation, or of acceptance or approval of the offer of a replacement property, the occupiers shall be required to vacate the premises. After expiry of this time limit, which may not under any circumstances be amended even by the judicial authorities, the occupants may be evicted”; that pursuant to Article L. 15-2 of the same Code: “The expropriating body may take possession by payment of compensation equal at least to the offer made by it and deposit of the supplementary compensation set by a court”;

2. Considering that, according to the applicants, by permitting the expropriating authority to take possession of premises by virtue of the fact that it has paid the amount that it proposed itself as compensation, whereas the difference with the compensation set by the court hearing the expropriation proceedings need simply be deposited, these provisions violate Article 17 of the 1789 Declaration of the Rights of Man and the Citizen; that by benefiting the expropriating authority in the event of an appeal, it also violates Articles 6 and 16 which require that proceedings must be just and fair and guarantee a fair balance between the rights of the parties;

3. Considering that pursuant to Article 17 of the 1789 Declaration: “Since property is an inviolable and sacred right, no one shall be deprived thereof except where public necessity, legally determined, shall clearly demand it, and then only on condition that the owner shall have been previously and equitably indemnified”; that in order to comply with these constitutional requirements, the law may only authorise the expropriation of properties or real rights in order to carry out an initiative the public interest of which has been established by law; that the taking of possession by the expropriating authority must be subject to the prior payment of compensation; that, in order to be fair, the compensation must cover in full the direct, tangible and certain harm caused by the expropriation; that in the event of disagreement on the amount of compensation set, the expropriated party must have an appropriate right of appeal;

4. Considering that the contested provisions lay down the ordinary statutory provisions applicable to the taking of possession following expropriation on the grounds of public interest; that Article L. 15-1 of the Expropriation Code on the grounds of public interest permits the expropriating authority to take possession of expropriated property within one month of payment or deposit of compensation, or of acceptance or approval of the offer of a replacement property; that according to the provisions of Article L. 15-2 of the same Code, when a ruling setting compensation for expropriation is subject to appeal, the expropriating authority may take possession of the property by payment of compensation equal at least to the offer made by it and deposit of the supplementary compensation set by a court;

5. Considering that, whilst Parliament may determine the circumstances under which deposit is equivalent to payment having regard to the requirements of Article 17 of the 1789 Declaration, these requirements must in principle result in the payment of compensation on the day of eviction; that in the event that an appeal is filed against the court order setting the compensation for expropriation, the contested provisions authorise the expropriating authority to take possession of the expropriated properties, irrespective of the circumstances, by payment of compensation equal to that proposed by it, and lower than that set by the court of first instance, and deposit of the supplementary compensation; that accordingly, the contested provisions contained in Articles L. 15-1 and L. 15-2 of the Expropriation Code on the grounds of public interest violate the requirement that no person may be deprived of his property other than subject to payment of fair compensation in advance; that, without the need to examine the other challenge, the provisions of Articles L. 15-1 and L. 15-2 of the Expropriation Code on the grounds of public interest must be ruled unconstitutional;

6. Considering that pursuant to the second subparagraph of Article 62 of the Constitution: “A provision declared unconstitutional on the basis of article 61-1 shall be repealed as of the publication of the said decision of the Constitutional Council or as of a subsequent date determined by said decision. The Constitutional Council shall determine the conditions and the limits according to which the effects produced by the provision shall be liable to challenge”; that whilst, as a matter of principle, the declaration of unconstitutionality must benefit the party submitting the priority question on constitutionality and the provision ruled unconstitutional cannot be applied to proceedings in progress at the time the decision of the Constitutional Council is published, the provisions of Article 62 of the Constitution grant the Council the power both to set the date of repeal and to defer its effects as well as to provide for the review of the effects that the provision generates before this declaration takes effect;

7. Considering that the immediate repeal of Articles L. 15-1 and L. 15-2 of the Expropriation Code on the grounds of public interest would have manifestly excessive consequences; that accordingly, in order to enable Parliament to resolve this unconstitutionality, it is appropriate to defer the date of repeal to 1 July 2013,

HELD :

Article 1 . – Articles L. 15-1 and L. 15-2 of the Expropriation Code on the grounds of public interest are unconstitutional.

Article 2. – The declaration of unconstitutionality contained in Article 1 shall take effect on 1 July 2013 in the conditions set down by recital 7.

Article 3 . – This decision shall be published in the Journal Officiel of the French Republic and notified in the conditions provided for in Section 23-11 of the Ordinance of 7 November 1958 referred to hereinabove.

Deliberated by the Constitutional Council in its session on 5 April 2012 sat on by: Mr Jean-Louis DEBRÉ, President, Mr Jacques BARROT, Ms Claire BAZY MALAURIE, Mr Guy CANIVET, Mr Michel CHARASSE, Mr Renaud DENOIX de SAINT MARC, Ms Jacqueline de GUILLENCHMIDT, Mr Hubert HAENEL and Mr Pierre STEINMETZ.

Announced on 6 April 2012.