Forced Expropriation
Introduction
Forced expropriation, for Spanish law, is an administrative act "Administrative Act (Spain)") that, for public utility or social interest, strips a person of part of their assets, compensating them with the payment of a fair price. The essential framework of the figure is found in article 33.3 of the Constitution of '78. Despite its pre-constitutional nature, the Law of December 16, 1954, on Forced Expropriation (LEF) is still in force;[1] however, the Constitutional Court has come to make it compatible with the Constitution through jurisprudence.
It can be defined as the institution by virtue of which a territorial public administration (expropriator) determines the coercive transfer of ownership of a thing, right or legitimate interest susceptible to patrimonial valuation (expropriated object) from its owner (expropriated) to a public or private third party (beneficiary) for reasons of public utility or social interest (causa expropriandi) and through compensation through the established procedure.
Apart from the administrative expropriation we are talking about, there is also the so-called legislative expropriation, a figure in which the Cortes Generales issue a law that produces, without the need for administrative specification, the expropriation of certain assets in exchange for compensation that it itself establishes. This technique, substantially different from forced administrative expropriation, has often been used for the creation of industrial or service monopolies. The constitution of the match monopoly, the hydrocarbon monopoly, the Public Banking monopoly or the expropriation of RUMASA are some examples of situations in which legislative expropriation has been used.
Subjects
Expropriating
As this is an administrative act "Administrative Act (Spain)"), the holder of the expropriation power must necessarily be a public entity. The Forced Expropriation Law, in its article 2.1, mentions three territorial public entities, specifically, the State, the province and the municipality. The Constitutional Court jurisprudentially admitted the expropriation power of the autonomous communities. When the instrumental administrations require an expropriation, they will have to go to their parent territorial administration so that it can carry it out.
The jurisdiction of the expropriation power of the General Administration corresponds to the Government Delegates. In the case of the autonomous administration, the Government Council will be competent, or in any case, what is provided by the regulations of the autonomous community in question. Finally, in the local Administration, the competence is attributed to the mayor and the president of the Provincial Council.