Law governing Common Land
Community means of production;
Assignment of economic use
RULING No. 595/15
17 of November of 2015
The Constitutional Court found no unconstitutionality in norms that modified the Law governing Common Land in such a way as to change the concept of ‘commoner’ (here, a person who is entitled to use or enjoy the benefit of common or community land). The Court said that the amendments did not change anything in the legal status of the dominion over this type of community property. The fact that membership of the civic community that holds the rights to use, enjoy the benefit of and hold dominion over common land is now directly determined by the Law and is automatically attributed to the community/collectivity made up of all the registered voters who reside or engage in certain types of occupation or business in the parishes where the common land is located, does not in itself mean those community assets are incorporated into the parish’s public domain; nor does it imply that the parish’s governing bodies are now empowered to condition or interfere with the assets’ administration or management. The reason for expanding the universe of commoners to include all those citizens, rather than just some parishioners as used to be the case, was to adjust the legal regime governing common land to new forms of economic use. To the extent that the change remains within the limits derived from match between the community of commoners and the parish’s human substrate, it continues to ensure that the community of reference possesses a dimension which is compatible with the community archetype. There is thus no violation of the constitutional norm which recognises the existence of community means of production that are possessed and managed by local communities and are incorporated into the cooperative and social sector of property and ownership.
Nor did the Court declare the unconstitutionality of norms that increased the number of forms of title that allow enjoyment of the benefit of common land to be assigned from one to two. The two contractual formats that can now be used to assign the use and enjoyment of common land – assignment of economic use, and rental for rural or other purposes – share the characteristic that they temporarily transfer the benefit of the land in return for compensation. As in the previous version of the Law, the new one still precludes the terms and conditions of rental contracts or assignments of use from prejudicing commoners’ traditional ability to use common land in accordance with local usages and customs. This means the Law continues to ensure that the community can go on benefiting from common land under the terms that consuetudinary practice has established over time. The constitutional prohibition of the suppression or depreciation of the community subsector of the ownership of the means of production is thus respected.
The Court reached the same conclusion of an absence of any unconstitutionality in relation to a norm that now makes it possible to include common land in the “Land Exchange” provided for in a 2012 Law that created a national exchange for land used for agricultural, forestry or woodland grazing purposes. This format makes land available via a contract with the entity that manages the exchange, and that document must not only set out the terms and conditions and the parties’ rights and obligations, but in the case of common land, must also respect the respective legal regime. The principle that title to common land cannot be transferred or otherwise disposed, appropriated or taken possession of in any way is maintained, and such land can thus not be sold.
This abstract ex post facto review was requested by two groups of Members of the Assembly of the Republic, who both sought a declaration of the unconstitutionality of norms amending certain provisions of the Law governing Common Land. The President of the Constitutional Court ordered that the two requests be combined under the terms of a norm contained in the Organic Law governing the Constitutional Court whereby subsequent petitions with the same object as one that has already been admitted are incorporated into the first case file.
The challenged norms concern: the concept of ‘commoner’; the rental or assignment contracts of which common land can be the object; the competences of the assembly of commoners and its executive council; the inclusion of common land in the Land Exchange; and the assignment of such land to third parties for use on a precarious basis.
The Constitution guarantees the coexistence of three sectors of ownership of the means of production – the public sector, the private sector, and the cooperative and social sector. The latter is made up of four subsectors, one of which is the community subsector. It is doctrinally consensual that the Constitution does not allow the ordinary legislator to do away with any of these sectors and subsectors or reduce them to marginal realities. In the case of the community subsector, which encompasses the “Community means of production possessed and managed by local communities”, the constitutional norm indicates that the ownership of such assets must be of a community nature, and that they cannot belong to public-sector entities. The norm attributes the rights to use, enjoy the benefit of and hold dominion over community means of production to local communities, defined as communities of inhabitants, in an area in which the principles of self-administration and self-management apply.
The 2014 revision of the regime governing common land was intended to update the existing legal framework in the light of the fact that in virtually every case, such land was no longer being used and managed in ways that generated the previously idealised types of benefit.
The initial (1976) legal definition of common land was: “pieces of land used by the community and whose benefit is enjoyed by the residents of one or more given parishes or part thereof”. Commoners were defined as residents who engage in an occupation or business and who possess the right to enjoy the benefit of them under the usages and customs recognised by the community. The law attributed the possession of this right to persons who fulfilled all the following requisites: 1) they lived in the parish or parishes in which the common land was located; 2) they engaged in their occupation or business there; and 3) they were entitled to enjoy the benefit of the land under local usages and customs.
In 1993, the concept of commoner was expanded to include all the residents of the parish or parishes whose territory included the common land and who were entitled to use it by local tradition. The amendments made in 2014 changed this to the voters who are registered in the parish and live in the local community area and/or engage in an agro-forestry or woodland grazing occupation or business there. The concept also covers emancipated minors who reside in the local communities in question. Commoners must use the common land in accordance with local usages and customs and manage the rural resources associated with the land sustainably and in accordance with both the law and any decisions taken by the assembly of commoners. To the extent that attribution of the status of commoner has now become structured in accordance with a precise and complete legal criterion that is applied automatically, no one can establish another procedure for identifying or registering commoners, nor can the bodies that administer common land be given any competence to intervene in this respect.
As configured by both groups of petitioners, the issue of constitutionality raised by the change in the concept of commoner was whether broadening the concept and excluding the ability to self-delimit it which local usages and customs had previously attributed to the members of each community, annulled or invalidated the autonomous dominion over, and/or the community nature of, the ownership or possession of this particular means of production.
The Court emphasised that these community assets continue to belong to the respective local communities, and so the holders of the rights are not the local territorial entities or local authorities. This means that the fact that the concept of commoner has been expanded to encompass all the voters who are registered and resident in the parish in which the common land is located, or who engage in certain occupations or businesses there, and the resulting match that tends to exist between the statuses of local parishioner and commoner, do not in their own right imply that the law no longer attributes the dominion over and ownership of a piece of common land to a community/collectivity of inhabitants and instead transfers it to one of the parish’s representative bodies.
The Constitution predetermines very little in this field, so the ordinary legislator has a lot of room in which to model the universe of members of those communities. It is the legislator that must determine both the type of rules to be used, and the element(s) which concretely serve(s) to link a member to the community.
The ordinary legislator’s power to shape the legislation in this field is subject to the limits derived from the constitutional guarantee that dominion over this type of community asset must possess a collective or civic nature: inasmuch as the Constitution attributes the ownership and useful possession of common land to the local community, defined as a community of inhabitants, when the legislator defines the universe of members of such communities it cannot do so in such broad and all-encompassing terms that the collectivity of reference is turned into a mere simulacrum of the concept of community because its material reality has been taken away or its operability has been diminished.
Both the general amendment of the legal regime governing common land and the reconfiguration of the concept of commoner are linked to a profound change in society’s relationship with the territory it lives in. In virtually every situation common land is no longer used and managed in the ways it was in the past. It has instead become the object of a type of economic use that is providing growing revenues – particularly as the site of wind farms or hydropower facilities.
The reasons given for the reform made by the 2014 Law in general and the reconfiguration of the concept of commoner in particular are similar to those which legal doctrine is advancing to support the view that the traditionally closed nature of local communities is now “rather questionable”.
The changes brought in by the 2014 Law also affected the regime governing the use and enjoyment of the benefit of common land by third parties. In this respect the number of forms of title that allow enjoyment of the benefit of common land to be assigned was doubled, and the limits on that assignment under the only contractual format that was previously admissible (an assignment of economic use, excluding the parts of the common land that are suitable for farming) were reduced. This alteration has made it possible for all or part of a piece of common land to be either assigned for economic use or rented out, and in both cases without now excluding the parts of the land that are fit for farming purposes.
Because of the introduction of this ability to assign the use and enjoyment of the benefit of common land under either an assignment or a rental format, the legal competences of the assembly of commoner and its executive council have been increased in such a way as to enable them to implement the new possibilities.
The 2014 Law also extended the competences of the assembly and the council to allow them to enter into rental contracts.
After considering all these changes, the Court took the view that the fact that the 2014 Law prohibits common-land rental or assignment contracts from including terms and conditions that would prejudice the land’s traditional use by its commoners in ways dictated by local usages and customs, ensures that it is still possible for local communities to use their common land in accordance with consuetudinary practice, and for the members of the local collectivity to exercise the de facto powers needed to pursue the consuetudinary form of enjoyment of that land.
As such, the Constitutional Court declined the requests for a declaration of unconstitutionality.
Rulings nos. 325/89 (04-04-1989); 240/91 (11-06-1991).