On 8 September 2014 the Constitutional Council, in the conditions provided for by Article 61-1 of the Constitution, received an application for a priority preliminary ruling on the issue of constitutionality raised by the Conseil d'État (decision no. 381813 of the Conseil d'État of 8 September 2014) on behalf of Mr Alain L., raising the conformity of Article 2 of the Law of 23 June 1941 on the exportation of works of art.
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 Law no. 2595 of 23 June 1941 on the exportation of works of art;
Having regard to Law no. 92-1477 of 31 December 1992 on products subject to certain restrictions on circulation and the complementarity between the police, gendarmerie and customs services;
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 the applicant by Lionel Levain Esq., Attorney at the Paris Bar, registered on 30 September 2014;
Having regard to the observations of the Prime Minister, registered on 30 September 2014;
Having regard to the documents produced and appended to the case file;
Having heard Mr Levain Esq. on behalf of the applicant and Mr Xavier Pottier, appointed by the Prime Minister, at the public hearing on 4 November 2014;
Having heard the Rapporteur;
Considering that pursuant to Article 2 of the Law of 23 June 1941 on the exportation of works of art: "The state shall be entitled to retain in its own right or on behalf of a department, municipality or public establishment any objects proposed for exportation at the price set by the exporter.
"This right may be exercised within a time limit of six months";
Considering that, according to the applicant, the contested provisions, which enable the state to retain certain works of art for the benefit of public collections, violate the right of ownership; that he points out in particular that these provisions do not provide for fair and foreseeable compensation to the owner of the work of art thereby expropriated;
Considering that Article 17 of the Declaration of the Rights of Man and the Citizen of 1789 provides that: "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 make provision for a person to be deprived or his or her ownership rights due to reasons of public necessity established by law;
Considering that the Law of 23 June 1941 governed the exportation of works to which it was applicable until it was repealed by the aforementioned Law of 31 December 1992; that it had the objective of preventing the uncontrolled removal from the country of objects of national interest with regard to history of art; that pursuant to Article 1 of the Law of 23 June 1941, the exportation of such objects requires the issue of an authorisation by the Secretary of State for National Education and Young Persons, who must rule within one month of the declaration submitted to the customs authorities by the owner intending to export these objects; that this authorisation regime is applicable to items of furniture made before 1830, to works by painters, engravers, designers, sculptors and decorators completed before 1 January 1900 and to objects originating from archaeological excavations carried out in France or Algeria;
Considering that the contested provisions of Article 2 of the Law of 23 June 1941 grant the state the right to "retain" the objects for which authorisation to export has been refused in accordance with Article 1; that this right may be exercised for a period of six months after submission of the application for export authorisation, irrespective of whether the owner states any intention to sell them; that accordingly, this appropriation of moveable property by a public authority results in a deprivation of ownership rights for the purposes of Article 17 of the 1789 Declaration;
Considering that the ability to refuse authorisation secures the realisation of the objective of general interest of retaining within the country objects of national interest with regard to history of art; that the deprivation of ownership permitted under the contested provisions in force at the time was not necessary in order to achieve this objective; that in providing for the compulsory acquisition of these assets by a public authority after their removal from the country had been refused, the legislator made provision for the deprivation of ownership without laying down criteria on the establishment of public necessity; that accordingly, the contested provisions do not comply with the requirement of public necessity;
Considering that it follows from the above that the deprivation of the right of ownership permitted under the contested provisions violates the requirements laid down by Article 17 of the 1789 Declaration; that accordingly, Article 2 of the Law of 23 June 1941 must be ruled unconstitutional;
Considering that the second paragraph of Article 62 of the Constitution provides: “A provision declared unconstitutional on the basis of Article 61-1 is revoked as from the publication of the decision of the Constitutional Council or at a later date stipulated in the decision. The Constitutional Council determines the conditions and the limits under which the effects produced by the provision may be questioned"; that, if, 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;
Considering that the declaration that certain provisions of Article 2 of the Law of 23 June 1941 are unconstitutional shall take effect on the date of publication of this decision; that it may be invoked in all proceedings previously initiated before the date of publication of this decision that have not been definitively resolved at this time,
Article 1.- The provisions of Article 2 of the Law of 23 June 1941 on the exportation of works of art are unconstitutional.
Article 2.- The declaration of unconstitutionality of Article 1 shall take effect on the date of publication of this decision in the conditions set down by its recital 9.
Article3.- 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 of 13 November 2014, sat on by: Mr Jean-Louis DEBRÉ, President, Mr Jacques BARROT, Ms Claire BAZY MALAURIE, Ms Nicole BELLOUBET, Mr Guy CANIVET, Mr Michel CHARASSE, Mr Renaud DENOIX de SAINT MARC, Mr Hubert HAENEL and Ms Nicole MAESTRACCI.
Announced on 14 November 2014.