On 27 January 2011 the Constitutional Council, pursuant to Article 61-1 of the Constitution, received an application for a priority preliminary ruling on the issue of constitutionality from the Cour de Cassation (third civil chamber, decree no. 221 of 27 January 2011) raised by Mr Michel Z. and Ms Catherine J., regarding the compatibility of Article L. 112-16 of the Buildings and Dwellings Code 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 Buildings and Dwellings Code;
Having regard to the Regulation of 4 February 2010 as to 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 of the Prime Minister, registered on 11 February 2011;
Having regard to the observations on behalf of the applicants by Esq. Caroline Lemeland, Attorney at the Troyes Bar, registered on 24 February 2011;
Having regard to the documents produced and appended to the case files;
Having heard Esq. Lemeland on behalf of the applicant and Mr Xavier Pottier, appointed by the Prime Minister, at the public hearing on 22 March 2011;
Having heard the Rapporteur;
Considering that pursuant to Article L. 112-16 of the Buildings and Dwellings Code: "Any damage caused to the occupants of a building by nuisances caused by agricultural, industrial, craft, commercial or aeronautical activities shall not give rise to a right to compensation if the planning consent relating to the building exposed to these nuisances was applied for or if the public deed attesting the sale or lease was executed after the activities giving rise to such nuisance were started provided that such activities are carried out in accordance with the legislative or regulatory provisions in force and that they are continued subject to the same conditions";
Considering that, according to the applicants, this provision releases the party responsible for the nuisance caused by an agricultural, industrial, craft, commercial or aeronautical activity from any obligation to restore the damage caused by these nuisances to any persons who have established themselves after the activity concerned was commenced and, in their view, violates Articles 1 to 4 of the Environmental Charter;
Considering that Article 34 of the Constitution provides: "The law shall determine the fundamental principles… governing property law, real rights and obligations under private and commercial law" as well as "environmental protection"; that the legislator is at liberty at any time, when ruling on matters falling under its jurisdiction, to adopt new provisions that it may deem appropriate and to amend or repeal previous legislation and replace it, depending on the circumstances, with other provisions provided that, when exercising these powers, it does not deprive legal guarantees of their mandatory content under constitutional law;
Considering, in the first place, that Article 4 of the Declaration of Man and the Citizen of 1789 provides: "Liberty consists in the freedom to do everything which injures no one else"; that it follows from these provisions that, as a matter of principle, any act whatever of man, which causes damage to another, obliges the one by whose fault it occurred, to compensate it; that the right to bring an action for damages is the manifestation of this constitutional requirement; that, nonetheless, this requirement does not prevent the legislator from specifying, for reasons of general interest, the conditions subject to which such liability may be incurred; that it may on the same grounds make exceptions to this principle or limit its application provided that it does not disproportionately impinge upon the rights of the victims of tortious acts or the right to effective judicial redress resulting from Article 16 of the 1789 Declaration;
Considering, secondly, that Articles 1 and 2 of the Environmental Charter provide that: "Every person has the right to live in a balanced environment that respects health. - Every person has the duty to participate in the preservation and improvement of the environment"; that compliance with the rights and duties set out in general terms under these Articles is a requirement not only for public bodies and the administrative authorities within their respective areas of competence but also for all persons; that it follows from these provisions that every person is under an obligation to exercise care that no damage to the environment results from his actions; that the legislator is at liberty to determine the conditions under which an action for damages may be initiated due to the violation of this obligation; that, nevertheless, when exercising these powers, it may not limit the right to initiate damages actions under conditions which distort their scope;
Considering, thirdly, that Articles 3 and 4 of the Environmental Charter provide that: "Subject to the conditions specified by law, every person shall prevent the harm that he is liable to cause to the environment or, alternatively, to limit its consequences. - Every person must contribute to the reparation of the damages that he causes to the environment, subject to the conditions provided for by law"; that it shall be for the legislator and, within the framework defined by law, the administrative authorities to determine the procedures for implementing these provisions, subject to respect for the principles set out above;
Considering that Article L. 112-16 of the Buildings and Dwellings Code prevents any person who considers that he is the victim of abnormal nuisance from neighbours from initiating a damages action on this basis against the author of the nuisances caused by an agricultural, industrial, craft, commercial or aeronautical activity if that activity, which initiated prior to their establishment, was carried out and pursued in accordance with the legislative or regulatory provisions in force and, in particular, those seeking to promote the conservation and protection of the environment; that this provision does not preclude an action for damages based on this tortious act; that, under these circumstances, Article L. 112-16 of the Buildings and Dwellings Code does not preclude either the principle of liability or the rights and obligations resulting from Articles 1 to 4 of the Environmental Charter;
Considering that the contested provision is not contrary to any other right or freedom guaranteed by the Constitution;
Article 1.- Article L. 112 of the Buildings and Dwellings Code is constitutional.
Article 2.- This decision shall be published in the Journal Officiel of the French Republic and notified in the conditions provided for under Article 23-11 of the Ordinance of 7 November 1958 referred to hereinabove.
Deliberated by the Constitutional Council in its session on 7 April 2011, sat on by: Mr Jean-Louis DEBRÉ, President, Mr Jacques BARROT, Mrs Claire BAZY MALAURIE, Mr. Guy CANIVET, Mr. Michel CHARASSE, Mr. Renaud DENOIX de SAINT MARC, Mrs Jacqueline de GUILLENCHMIDT, Mr. Hubert HAENEL and Mr. Pierre STEINMETZ.
Announced on 8 April 2011.