Decision no. 2011-182 QPC of 14 October 2011

On 19 July 2011 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. 349657 of 18 July 2011) on behalf of Mr Pierre T., concerning the compatibility of Article L. 321−5−1 of the Forestry 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 basic law on the Constitutional Council;

Having regard to the Forestry Code;

Having regard to Framework Law no. 2001−602 of 9 July 2001 on Forestry;

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 SCP Delaporte, Briard & Trichet, Attorneys to the Conseil d'État and the Cour de Cassation, registered on 11 August 2011;

Having regard to the observations of the Prime Minister, registered on 11 August 2011;

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

Having heard Esq. Vincent Delaporte on behalf of the applicant and Mr Xavier Pottier, appointed by the Prime Minister, at the public hearing on 4 October 2011;

Having heard the Rapporteur;

1. Considering that Article L. 321−5−1 of the Forestry Code, as drafted pursuant to the aforementioned Law no. 2001−602 of 9 July 2001 provides: "In the wooded areas classified under Article L. 321−1 and the forests referred to under Article L. 321−6, a right of way and development shall be established by the State in its favour or in favour of another public body, a group of local public bodies or a trade union association in order to exclusively ensure continuity in fire prevention routes, the continuing existence of established routes, as well as the establishment of forest protection and monitoring facilities. The basis of this right of way may not exceed the width permitting the establishment of a six metre wide roadway. If the improvements require a wider right of way, it shall be granted after a public inquiry.
   "In mountain areas, a right of way and development necessary for the removal of wood shall be granted in favour of all owners.
   "If agreement is not reached amicably, the court shall determine the indemnity in the same manner as for expropriation.
   "If the exercise of this right of way makes the normal use of the encumbered land impossible, the owners of the land may request that all or part of the site being assigned to the right of way and, if appropriate, the remainder of the land plots be purchased.
   "The fire prevention routes shall have the status of specialist routes, not open for general circulation";

2. Considering that, according to the applicant, in providing for a right of way and development, these provisions not only impose limits on the exercise of ownership rights, but also organise, without any legal guarantee, a deprivation of ownership in breach of Articles 2 and 17 of the 1789 Declaration of the Rights of Man and the Citizen; that they also breach Articles 16 of the 1789 Declaration and 7 of the Environmental Charter;

3. Considering that the first subparagraph of Article 61 -1 of the Constitution provides: "If, during proceedings in progress before a court of law, it is claimed that a statutory provision infringes the rights and freedoms guaranteed by the Constitution, the matter may be referred by the Conseil d'État or by the Cour de Cassation to the Constitutional Council, who shall decide within a determined period"; that the lack of knowledge by the legislator of its own competence may only be invoked in support of a priority preliminary ruling on the issue of constitutionality in cases when a right or freedom guaranteed under the Constitution is affected;

4. Considering that property is included under the human rights enshrined by Articles 2 and 17 of the 1789 Declaration; that pursuant to Article 17: "Since property is an inviolable and sacred right, no one can be deprived of it, 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 if there is no violation of the right of property, it nonetheless follows from Article 2 of the 1789 Declaration that the limits placed on its exercise must be justified by a reason of general interest and be proportionate with the objective pursued;

5. Considering, in the first place, that the right granted to the State according to the contested provisions to create a right of way and development in order to ensure continuity in fire prevention routes, the continuing existence of established routes, as well as the establishment of forest protection and monitoring facilities does not lead to a deprivation of property for the purposes according to Article 17 of the 1789 Declaration;

6. Considering secondly, on the one hand, that by allowing the creation of a right of way and development in private property in order to facilitate the fight against forest fires, the contested provisions pursue a goal of general interest;

7. Considering on the other hand that the legislator specifically defined the scope and object of the right of way and development and provided that its basis may not exceed a width allowing the establishment of a six metre wide roadway; that he made it clear that if the developments require a wider right of way and development, it shall be granted after a public inquiry; that he planned for the compensation due to the owners of the land encumbered by the right of way by establishing the rule that if agreement is not reached amicably, the court shall determine the indemnity in the same manner as for expropriations;

8. Considering however that in this case the legislator limited himself to making provision for a public inquiry only for cases where the improvements require a right of way wider than six metres; that, since he has not provided, in other cases, for the principle of a procedure intended to allow the concerned owners to present their observations or any other procedure aimed at avoiding the risk of arbitrariness in the determination of the properties designated to be subject to the right of way, the contested provisions must be ruled unconstitutional;

9. Considering that, as a matter of principle, a declaration of unconstitutionality must benefit the party that filed the application for a priority preliminary ruling on the issue of constitutionality; that, nevertheless, the immediate repeal of Article L. 321-5-1 of the Forestry Code would have obviously excessive consequences; that accordingly, in order to allow the legislator to put an end to this breach of the Constitution, it is appropriate to delay the date of repeal until 1 January 2013,

HELD:
Article 1.- Article L. 321-5-1 of the Forestry Code is unconstitutional.
Article 2.- The declaration of unconstitutionality contained in Article 1 shall take effect on 1 January 2011 in the conditions specified in recital 9.
Article 3.- 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 13 October 2011, sat on by: Mr. Jean-Louis DEBRÉ, President, Mr. Jacques BARROT, Mrs Claire BAZY MALAURIE, Mr. Guy CANIVET, Mr. Renaud DENOIX de SAINT MARC, Mrs Jacqueline de GUILLENCHMIDT, Mr. Hubert HAENEL and Mr. Pierre STEINMETZ.

Announced on 14 October 2011.

Journal officiel of 15 October 2011, p 17465 (@ 77)