Primary Sources
Legislation, Codes, Constitutions: (Approved by the National Assembly of France, August 26, 1789). This document has also been translated to Declaration of Human and Civic Rights on the French Constitutional Council official English version.
In 1789, in France there was a revolution that marked the history of mankind with the sign of citizens obtaining political power, as opposed to the previous feudal system of an absolute monarchy. The French Revolution, Declaration of the Rights of Man and Citizen and associated Enlightenment ideas strongly influenced European humanity, and European colonies in America throughout modernity.
The ideas of liberty, equality and fraternity that inspired the French revolutionary case were embodied in the Declaration of the Rights of the Man and Citizen which established the natural rights of man that should be applied as an obligation for the leaders or governors in France. In relation with the aforementioned, it is important to establish that until then, legal “rights” were granted by the monarch by his only absolute discretion.
The following articles of the The Declaration of the Rights of Man and of the Citizen are relevant to Article 41 of Italy’s Political Constitution:
Article 2:The aim of every political association is the preservation of the natural and imprescriptible rights of Man. These rights are Liberty, Property, Safety and Resistance to Oppression”.
This article consecrates on natural and inalienable rights (not extinguished by lapse of time) to liberty, property, security and resistance to oppression. The maintenance of these rights should become the goal of all political association.
Article 4: “Liberty consists in being able to do anything that does not harm others: thus, the exercise of the natural rights of every man has no bounds other than those that ensure to the other members of society the enjoyment of these same rights. These bounds may be determined only by Law”.
This article was created explicitly to protect freedom, under the sense that each individual could do anything that he/she wanted; meaning with that he/she could freely exercise his/her natural rights (such as property rights) within the framework of the law, and while not harming others.
Article 17: “Since the right to Property is inviolable and sacred, no one may be deprived thereof, unless public necessity, legally ascertained, obviously requires it, and just and prior indemnity has been paid”.
This article safeguards the inviolability of private property, only allowing its expropriation for public utility and upon compensation.
Based on the aforementioned, it can be noted that the Declaration of the Rights of Man and Citizenhas been the seed of the European Democracy in Europe and in the world, and as a consequence of that, that spirit of the law has influenced to many legislations (as Italian Legislation) that had recognized and picked up those universal principles in France’s internal law.
(Translation to English obtained from the official Conseil Constitutionnel (Constitutional Council) website.)

Preamble to the 1946 Constitution, paragraph 9. This preamble has been also recognized in the preamble of the French Constitution of 4th October, 1958.

Paragraph 9:“All property and all enterprises that have or that may acquire the character of a public service or de facto monopoly shall become the property of society.”
This is relevant to Art. 41 because it talks about the state’s power to interfere with private property rights. This provision gives government the power to nationalize private properties in the interests of the common goods.
(Translation to English obtained from the official Conseil Constitutionnel (Constitutional Council) website.)

(otherwise known as the “Constitution of the Fifth Political Constitution of France of 4th October, 1958 (otherwise known as the “Constitution of the Fifth Republic”). Article 34.


Article 34:"Statutes shall determine the rules concerning: - civic rights and the fundamental guarantees granted to citizens for the exercise of their civil liberties; freedom, diversity and the independence of the media; the obligations imposed for the purposes of national defense upon the person and property of citizens; - nationality, the status and capacity of persons, matrimonial property systems, inheritance and gifts; Statutes shall also determine the rules governing: - nationalisation of companies and the transfer of ownership of companies from the public to the private sector. Statutes shall also lay down the basic principles of: - the preservation of the environment; - systems of ownership, property rights and civil and commercial obligations; The provisions of this article may be further specified and completed by an Institutional Act".
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.
Translation to English obtained from the official Conseil Constitutionnel (Constitutional Council) website.)
Ordinance N° 58-1067 Constituting an Institutional Act on the Constitutional Council
This ordinance outlines the organisation of the Constitutional Council and the operation of the Constitutional Council. Chapter II outlines the Constitutional Council’s powers and procedures in relation to ruling on the constitutionality of a law.
Translation to English obtained from the official Conseil Constitutionnel (Constitutional Council) website.)
French Civil Code of 1804 (Napoleon’s Code) - The original version from 1804 (for historical analysis)
First of all, the French Civil Code of 1804 is important because it establishes logical principles and rules. Napoleon’s Code recognised the principles of property that are now established in the today’s French Civil Code.
The most relevant articles in relation to article 41 of Italy’s Political Constitution are as follows:
Article 544: “Property is the right of enjoying and disposing of things in the most absolute manner, provided they are not used in a way prohibited by the laws or statutes”.
Article 545: “No one can be compelled to give up his property, except for the public good and for a just and previous indemnity”.
In relation to article 41 of the Italian Political Constitution, a clear respect and recognition of private property law can be inferred from an absolutist conception. Nevertheless, Napoleon’s code also acknowledges the exception to absolute private property rights in the circumstance that such rights affect the public good, so long as the State has previously provided compensation for expropriation of property.
(Source: Code Napoleon; or the French Civil Code (literally translated from the original and official edition), published at Paris, 1804, William Benning, Law Bookseller, 52 Pleet Street, 1827)
(current version as of 31/10/11)
Art. 537: “Private individuals have the free disposal of property which belongs to them, subject to the modifications established by legislation. Property which does not belong to private individuals is administered and may be transferred only in the forms and according to the rules which are peculiar to it.”
Art. 538: “Ways, roads and streets of which the State is in charge, navigable or floatable rivers and streams, beaches, foreshore, ports, harbours, anchorages and generally all parts of French territory which are not capable of private ownership are deemed to be dependencies of the Public Domain.”
Art. 542:Common property is that to whose ownership or revenue the inhabitants or one or several communes have a vested right.”
Art. 544: “Ownership is the right to enjoy and dispose of things in the most absolute manner, provided they are not used in a way prohibited by statutes or regulations.”
Art. 545: “No one may be compelled to yield his ownership, unless for public purposes and for a fair and previous indemnity.”
Art. 537 is relevant because it is about the individual’s power on disposal of property, with the limitation of being subject to the regulation of law. Art. 538 is relevant because it is about the scope and definition of public domain, which is equivalent to the common resources. Art. 542 is relevant because it gives a definition of the common property. Art. 544 is relevant because it gives a definition of ownership and the limitation on the usage of it. Art. 545 is relevant because it talks about the sacredness of private ownership and its exception when common goods are involved. Even under such exception, the fair and adequate indemnity is required.
, Art. 2. 210-1 Article L210-1:“Water is part of the common heritage of the nation. Its protection, enhancement and development as a usable resource, with due respect to natural equilibriums are of general interest. The use of water belongs to all within the framework of laws and regulations as well as that of previously established rights”
Translation to English obtained from Legi France French legislation website
Article L210-1 is relevant to Art.41because water is one part of common resourses and can be used by every people within (not “above”) the framework of laws, regulations ands that of previously established rights.
Law No. 86–793 of July 2, 1986, Journel Officiél de la République Française [J.O] [Official Gazette of France], 3 July 1986, 8240 (The 1986 denationalisation law)

Obtained from the Journel Officiél de la République Française (Official Journal of the French Republic).
LOI n. 86-793 of 2 July 1986 authorised by the Government to take diverse measures for economic nd social order. This is the 1986 denationalisation law, which was a significant turning point in French politics. Following with the general 80s trend to allow private companies to perform public functions. No official English translation of this law could be located by the authors. Law No. 86-912 of 6 August 1986 as amended by Law No. 93-923 of 19 July 1993, and Law No. 96-314 of 16 April 1996, hereafter referred to as the "Privatization Law of 1986”.
No official English translation of this law could be found by the authors. The abovementioned links for Laws No. 93-923 and 96-314 are a like to both the original French version and the current versions of these laws. Click on the top left hand side of the linked website to change versions.

Europe: (Both the Council of Europe and European Union Jurisdictions)
The Charter for the Environment, Constitutional Law No 2005-205, March 1st, 2005. (Charte de l’environnement de 2004, loi constitutionnelle No 2005-205 , 1er Mars 2005)
Article 6: “Public policies should promote sustainable development. To this effect, they should reconcile the protection and enrichment of the environment, with economic development and social progress”
(Translation to English from the International Centre for Comparative Law and the Environment, orCentre International de Droit Comparé de l’Environnement - www.cidce.org)

Charter of Fundamental Rights of the European Union
Article 17:"Right to property1. Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in goodtime for their loss. The use of property may be regulated by law in so far as is necessary for the general interest.
2. Intellectual property shall be protected."
This article stipulates that everyone has the right of private property. Nevertheless, if that private property is contradicted with the general or public interest, the later will take the priority to be protected under the condition of fair compensation paid for the owner.
So we conclude that this article is mainly linked to article 41 of the Italian Constitution in the sense of the limitations on the private property.

European Convention on the Protection of Human Rights and Fundamental Freedoms, ETS 5, (1950)

Article 1 of Protocol No. 1: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
This article guarantees the right to possessions. And it protects individuals or legal persons from interference by the State with their possessions. However, it recognizes the right of the State to control the use of or even deprive an individual or legal person of possession belonging to them in case it is contradicted with the public interest or to secure the payment of taxes or other contributions or penalties.
http://conventions.coe.int/Treaty/en/Treaties/html/009.htm (The website of the Council of Europe).

of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy
EU Water Framework Directive, EC Directive 2000/60/EC(‘the Directive’) concerns the problem of water pollution. France, as a European Union member state must adopt domestic laws about water to conform with the Directive.The French Statute of January 3, 1992 was amended with Ordinance of September 18, 2000 to include EU Water Framework Directive, EC Directive 2000/60/EC.
The EU Water Framework Directive, EC Directive 2000/60/EC is not principally concerned with the question of property rights, denationalisation or privatisation. Rather, the Directive relates to water pollution. Nevertheless, some links can be made between the Directive and the notion of water as a common pool resource belonging to the commons. Paragraph 1 of the preamble to the Directive classifies water in a sense similar how it has been classified in discourses on the commons; “water is not a commercial product like any other but, rather, a heritage which must be protected, defended and treated as such”.
One of the purposes outlines in Article 1 of the Directive is:
[A]chieving the objectives of relevant international agreements, including those which aim to prevent and eliminate pollution of the marine environment, by Community action under Article 16(3) to cease or phaseout discharges, emissions and losses of priority hazardous substances, with the ultimate aim of achieving concentrations in the marine environment nearbackground values for naturally occurring substances and close to zero for man-made synthetic substances”.
This reference to international agreements is a subject for interesting legal debate. It has been argued that the water is a human right, implied through various rights in the International Covenant on Civil and Political Rights and the International Covenant on Economic Social and Cultural Rights (see below). Following this train of thought, if the Directive aims to achieve the objects of international agreements, then it could be argued that the Directive also exists for the purpose of protecting water as a human right. Such a legal interpretation links to the Italian idea of bene commune in Article 41 of the Italian Constitution.
Further information on the EU Water Framework Directive, EC Directive 2000/60/ECis available on the European Commission website - http://ec.europa.eu/environment/water/water-framework/index_en.html

Source: Official Journal of the European Communities, 22 December 2000
International Law and International Treaties to which France is a Party:
International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 U.N.T.S. 171 (entered into force 23 March 1976)
International Covenant on Economic Social and Cultural Rights, opened for signature 16 December 1966, 993 U.N.T.S. 3 (entered into force 3 January 1976)
//Universal Declaration of Human Rights//, G.A. Res. 217A (III), U.N. Doc. A/810 at 71 (1948)

Principle 10 of the Rio Declaration on the Environment and Development1992 (The Rio Declaration)
Principal 10 of the Rio Declaration recognises the role of public participation in environmental decision making. (Rio Declaration originated from the UN Conference of Environment and Development (UNCED) in Rio de Janeiro, also known as the Rio Earth Summit which was a meeting of 108 countries on environmental issues.
Principal 10: “Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided”
For further information on the Rio Declaration and Agenda 21 see also United Nations Department of Economic and Social Affairs, Division for Sustainable Development website: http://www.un.org/esa/dsd/agenda21/

Cases:

Constitutional Council (Conseil Constitutionnel) Cases:
The cases mentioned below are available in French at http://www.conseil-constitutionnel.fr/index.html. We have been unable to locate English translations of the cases. Each case relates to or comments on the scope of paragraph 9 of the preamble to the 1946 Constitution.
  • Conseil Constitutionnel decision no. 86 207 DC, June 25 26, 1986, J.O., June 27, 1986, p. 7978 at 53: on whether the abovementioned 1986 denationalisation law was contrary to para 9 of the preamble to the 1946 Constitution. Note the amendments that were made in 1993 and 1996 to the 1986 denationalisation law (see above sections).


  • CC, 18 septembre 1986, n° 86-217 DC, loi relative � la liberté de communication. At paragraph 45 this decision talks about the scope of Art 9 of the preamble to the 1946 Constitution.

  • Constitutional Council decision no. 2004-501 DC, Aug 5, 2004, Rec 134– on the provision of electricity and gas and whether the following laws were contrary to art 9 of the preamble to the 1946 Constitution:

    • La loi n° 2000-108 du 10 février 2000 modifiée relative � la modernisation et au développement du service public de l'électricité;
    • La loi n° 2003-8 du 3 janvier 2003 modifiée relative aux marchés du gaz et de l’électricité et au service public de l’énergie ;
    • Ministry of Economics, Finance and Industry Communication on the abovementioned decision of CC decision no. 2004-501 DC, Aug 5, 2004, Rec 1
  • Constitutional Council decision no. 79-105 DC, July 25, 1979, Rec. 3, CE, June 13, 1980, Mm Honjean Rec. Lebon 274

Source: Each of the abovementioned Constitutional Council cases were obtained from the Constitutional Council website (in French). Each of the abovementioned laws were obtained from the Official Journal of the French Republic (in French). Unfortunately, the authors have not been able to obtain English translations of these laws.
Cases on Article 1 of the European Convention of Human Rights:
The concept of possession-European Court of Human Rights
This is a group of cases held by the European Court of Human Rights with explanation to Article 1 of the protocol 1 of the European Convention of Human Rights. Which explained the concept of “possession” (everything is considered property rights is also considered possession). Moreover, it indicated to the social security benefits of the above-mentioned article.



Secondary Sources (France)Good Websites

Books and Articles on French Law
Introduction to French Lawby Di Walter Cairns, Robert McKeon (Available at Google Books)
“‘Hommage � Louis Favoreu’, Burt Neuborne, Background on French Constitutional Law and Administrative Law and the Conseil d’État and the Conseil Constitutionnel”, International Journal of Constitutional Law (2007)5(1):17-27
"" Manuel Tirard, Indiana Journal of Global Legal Studies Vol. 15, No. 1 (Winter 2008), pp. 285-304
Published by: Indiana University Press DOI: 10.2979/GLS.2008.15.1.285
Jean-Pierre Duprat, Les Garanties Constitutionnelles � L’Epreuve des Privatisations rapport franc,ais pour le Congrès de l’AIDC (2007), available at www.afdc.fr
Stephanie Princet, , Forest & Conservations History, Vol. 37, No. 2 (Apr., 1993), pp 80-89, Forest History Society and American Society for Environmental History
(Socio-political and historical background to contextualise the environmental movement in France and therefore any links between the commons idea of the environment)
Robert Durant & Jerome Legge, Jr,, Public Administration Review, Vol. 62, No. 3 (May - Jun., 2002), pp. 307-323
Published by:Blackwell Publishing on behalf of American Society for Public Administration
(Political and social background to how the public has responded to privatisation, denationalisation and public-private companies in France)

, “ Property rights and Free enterprise : Constitution in practice”
Noelle Plack,("Drinking the Fruits of Revolution:Common Land Privatisation and the Expansion of Viticulture in Languedoc") , c.1789–1820, European Review of History—Revue europe´enne d’Histoire Vol. 13, No. 2, June 2006, pp. 175–202,
(Revolutionary privatisation of village common land and an expansion of viticulture in the department of Gard, southern France)
Henri Smets,,‘Legal Aspects of Water Sector Reforms’ ,Geneva 20th -21th April 2007 by ,International Environmental Law Research Centre (IELRC) and Swiss National Science Foundation (SNF)
(The new water law in France has addressed the issue of water poverty by requesting that water be affordable to all but such a law will need to be implemented in practice which is written in this sourse)
G. THEVA NEETHI DHAS(French system provided a simple and cheap method of recording transfer and other dealings with land ensuring security of title by a system of state guarantee)

Gilles Carbonnier,Article first published online: 13 NOV 2006 DOI: 10.1111/j.0361-3666.2006.00329.x( clarity some of the main challenges and fundamental issues inherent in the privatisation and subcontracting of essential public services. the economic pros and cons of the phenomenon of privatization subcontracting agreement between governments and private companies in areas as sensitive as water supply)
Pierre Van de Vyver, Marie Refalo*,EPPPL - Issue: 01/2009 (This expresses an opportunity for considerable progress in public and private governance and a better interface between actors in the service of economic competitiveness)
Public Private Partnerships and Prices Evidence from Water Distribution in France


Privatization Experiences in France, Michel Berne, Gerard Pogorel, Cesifo Working Paper NO. 1195, Category 9: Industrial Organization, May 2004: This article provides the privatization history of France. It gives a general introduction to the specific features of French privatization policies and their impact by using the example of France Telecom, the incumbent telecommunications operator, with additional information about other significant firms.



Secondary Sources (EU and General)
Joseph Dellapenna and Joyeeta Gupta, ‘Toward Global Law on Water’, Global Governance 14 (2008), 437-453
Alternatives to economic globalization: a better world is possible, John Cavanagh,Jerry Mander, International Forum on Globalization. Alternatives Task Force
Berrett-Koehler Publishers, 2004 (Google Books)
The Ambiguity of Community: Debating Alternatives to Private-Sector Provision of Urban Water Supply, Karen Bakker, Institute for Resources, Environment and Sustainability, University of British Columbia, Vancouver, Canada; bakker@geog.ubc.ca : this article provides general background on Private-Public community partnerships and some critiques of community management. This article is not specifically looking at the situation in France.


http://www.ccsenet.org/journal/index.php/jpl/article/download/679/656


Governing a Common-pool Resource in a Directed Network

Regulatory Expropriation Investment Protection and International Law When is Government Regulation Expropriatory and When should Compensation Be Paid
The right to property under the European Convention on Human Rights

Similar Laws from Other Countries
:
Article 21

1. The economic system in Palestine shall be based on the principles of a free market economy. The executive branch may establish public companies that shall be regulated by a law.
2. Freedom of economic activity is guaranteed. The law shall define the rules governing its supervision and their limits.
3. Private property, both real estate and movable assets, shall be protected and may not be expropriated except in the public interest and for fair compensation in accordance with the law or pursuant to a judicial ruling.
4. Confiscation shall be in accordance with a judicial ruling.

Power Point Presentations by the France Group


Our PowerPoint presentations are divided into five different documents.

1. Historical and Legal analysis

2. Expropriation

3.

4. The protection of property rights in Constitution and a brief history of privatization history.

5.Water privatization and remunicipalization in France