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06-09-2019

Forced expropriation: prior considerations

The expropriatory administrative power, as well as the legal business that forced expropriation constitutes, through which its exercise is concretized through the expropriation procedure, is a paradigmatic manifestation of the so-called administrative powers whose ownership corresponds, by concept, to a public Administration.

I. Property rights and guarantees
 Public Administrations defined as instrumental bureaucratic organizations aimed at the effective management and execution of the options and political decisions of the Government or of the respective governments that direct foreign and domestic policy at European, state, regional or local community level, through the performance of administrative powers recognized exclusively to them by the legal system, in order to satisfy the public and / or general interest, the expropriatory power is the legal power attributed to one of these organizations – necessarily, territorially based – to apply certain public policies through the deprivation of the administered, coercive and onerous title, of certain assets or rights of patrimonial content, for concrete reasons of public utility or social interest, through a special administrative procedure that determines the celebration of a legal exchange transfer business by which the ownership of a good or right is necessarily transmitted to the expropriating Administration or to a public or private third party, so that, through the fun of its use, a need of social interest or public utility can be satisfied. All this in the terms established by law and without prejudice to the potential reversion, as a legal guarantee of the expropriated.

Guarantees of private property
 The guarantees of private property – and, in general, of property rights-holders – against the expropriatory power, are three:

  • the requirement of an end of public utility or social interest identified with the “cause expropriation”;
  • the right of the expropriated or its successors to the just compensation-principle of property indemnity;
  • the submission of the expropriation and its procedure to what is established in the Laws.

Justification of public utility or social interest

Forced expropriation is provided in art. 33 EC, which after recognizing the right to private property and inheritance, delimited the content of both by their social function, states that no one can be deprived of their property and rights except for justified cause of public utility or social interest through the corresponding compensation (not necessarily prior, which exceeds the rule of art. 349 CC) and in accordance with the provisions of the Laws.

Proportionality between the medium and the end pursued

In general, it is recognized that the definition of “public utility” – a broad concept by nature – corresponds to the national authorities, provided that a fair balance is maintained between the deprivations imposed by the general interest and respect for individual rights.
In particular, there must be a reasonable relationship of proportionality between the means used and the purpose sought to be achieved by depriving the person of their property or rights or controlling or restricting their use.

Law reserve principle
 The property right is fundamental in a broad sense, subject to the reservation of the Law, but not subject to protection at the amparo appeal before the Constitutional Court or, in ordinary jurisdictional headquarters, through the process of protection of fundamental rights.

II. Expropriation, social function and essential content of property rights
 The expropriatory institute is a manifestation or consequence of the social function of the property (in the sense of ownership of property and ownership of property rights). And at the same time, it is not incompatible with the essential content of this right, insofar as its normative regulation exceeds the constitutionality judgment to which it must be submitted.

Social function of property
 The reference to the “social function” as a structural element of the very definition of the right to private property shows that the Constitution has not included an abstract conception of this right as a mere subjective area of ​​free disposition or lordship of the owner over its assets , subject only in its exercise to the general limitations imposed by the Laws to safeguard the legitimate rights or interests of third parties or the general interest.

On the contrary, the Constitution recognizes a right to private property that is configured and protected, certainly, as a set of individual powers over things, but also, and at the same time, as a set of established duties and obligations, in accordance with the laws, in attention to values ​​or interests of the community, that is, to the purpose or social utility that each category of property subject to ownership is called to fulfill.

Therefore, the fixing of the essential content of private property cannot be done from the exclusive subjective consideration of the right or the individual interests that underlie it, but must also include the necessary reference to the social function, understood as an integral part. of the law itself. Individual utility and social function that define, inescapably, the content of the property right over each category or type of property.

Use or use of certain assets
 On the other hand, private property has undergone such a profound transformation that it is currently impossible to conceive it as a legal figure that can only be converted to the type of property of art. 348 CC, which understood it as an absolute right “without further limitations than those established by law.” On the contrary, the progressive incorporation of social purposes related to the use or exploitation of the different types of goods on which the right of ownership can fall, more intensely on real estate property due to its economic importance, has produced a diversification of the Sunday institution in a plurality of legal figures or situations regulated with a diverse meaning and scope. And it is with respect to each of them that the social function is defined, that which is the basic spring, in one way or another, the forced expropriation.

Essential content of the property right
 Only by law, which in any case must respect its essential content, can the exercise of the right to property be regulated. Therefore, the regulation of forced expropriation – necessarily legal in its fundamental aspects; regulatory in the accessories or complementary- must respect the essential content of the property (that is, not only the domain but the ownership of property and rights).

The delimitation of the content of the economic rights or the introduction of new limitations cannot ignore its essential content, since in that case it would not be possible to speak of a general regulation of the right, but of a deprivation or suppression of the same. However, the establishment of the essential content of the property right cannot be done from the exclusive consideration of the interests of the owner, but must also include the supra-individual or social dimension of the law itself. And it is precisely in the plane of this dimension that the figure of forced expropriation fits.

III. Exorbitant administrative regime
 The expropriatory power is one of the paradigmatic and more intense manifestations of the legal regime of “potentior person” typical of any Administration (although it is attributed exclusively to those of territorial base, not to the so-called institutional Administration).

Public administrations are invested in a special legal regime that means, in many respects, the subjective repeal of the common norms applicable to the rest of the subjects of Law. This regime also implies the attribution of administrative powers to them. What it means:

  • Executive and enforceable actions
  • Ownership of regulatory power
  • Jurisdictional control of their acts
  • Special regime for the execution of convictions