276. The promulgation of the law n° 2003-26 of 14th April 2003, amending and
completing the law on expropriation for public use, provided a set of guarantees
and rights for the victims of expropriation, including notably:
A) The exceptional character of the action of expropriation
277. The new law on expropriation establishes the exceptional character of the
recourse to the Public Service regarding the practice of expropriation. The new
paragraph of Article 1 of this law stipulates that « expropriation can only be
carried out in an exceptional manner » and after having observed all the
conciliatory measures outlined in the new Article 11.
278. One of the merits of this regulation is to limit the violations perpetrated by
the law on the expropriation to the right to property. Similarly, this regulation
authorizes the exercise of judicial control on the Public Service by submitting an
appeal on the grounds of abuse of power. The new Article 11 has integrated the
actions of reconciliation with the fundamental procedural forms, the violation of
which may give rise, during judicial appeal proceedings, to the annulment of the
expropriation Decree.
B) Application of the rule of creative effect of the registration
279. The application, in matters of expropriation, of the principle of creative
effect of registration, has major importance for the stability of the transactions
linked to landed property. The implementation of this principle is of a nature to
unify the system which is applicable to buildings and registered rights. In effect,
all that the interested parties have to do is to consult the data in the property
register to verify the possessory and material situation of the building in relation
to which they intend to make a transaction. Thus, the interested parties can
avoid finding themselves, after the purchase and acquisition of the rights, faced
with a Public Service opposition based on the fact that it had expropriated a part
of the building which is the object of the transaction.
C) Creation of the Inquiry and Reconciliation Commission
280. Among the guarantees instituted for the benefit of the two parties involved
in the expropriation activity figures the setting up of a Commission of Inquiry and
Reconciliation. The objective for putting this structure in place is to provide the
Public Service with the opportunity of intervening during the period preceding
the promulgation of the expropriation decree, and this by endeavouring to
conclude, with the rightful owners and the holders of rights relating to the
building, in terms of a future expropriation, an agreement which may transform
the expropriation operation into one of amicable sale. This approach tallies with
the exceptional character of expropriation instituted by the new paragraph 1 of
Article 1 of the law on expropriation.
D) Broadening of the field for appeal for retrocession
281. The field of the right of the victims of expropriation to obtain retrocession of
the expropriated buildings has been broadened. In effect, it is the responsibility
of the expropriation victims to obtain retrocession of the areas acquired by the
Public Service. Article 3 of the law n° 2003-26 of 14th April 2003, amending and
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