The law relating to military programming for the years 2024 to 2030 and containing various provisions concerning Defense was published in the Official Journal of August 2, 2023. Its article 47 reforms the requisition regime. This new regime will come into force no later than August 1, 2024.
A complex system
Requisitions have long been governed by old laws, often amended, now codified in Book II of Part 2 of the Defense Code, which set out the main principles: the law of July 3, 1877 on military requisitions; the law of July 11, 1938 on the general organization of the Nation in wartime; Order no. 59-63 of January 6, 1959 on requisitions of goods and services, applicable in peacetime, and Order no. 59-147 of January 7, 1959 on the general organization of Defense.
The provisions of these laws and ordinances constitute "the common law corpus of requisitions that can be mobilized by the State, in both peacetime and wartime, referred to respectively as 'requisitions for the general needs of the Nation', for prerogatives conferred on the civil authority, and 'military requisitions', for those devolved to the military authority".
The current system of requisitions for the general needs of the Nation is twofold:
- Article L. 2211-1 of the French Defense Code, on requisitions for defense purposes, applicable in the cases covered by Article L. 1111-2 and in the event of a state of emergency;
- article L. 2211-2 of the same code, which is applicable in all cases other than those covered by article L. 1111-2.
In parallel with this common law system, there are several special civil requisition systems for housing (Ord. no. 45-2394, Oct. 11, 1945), protection of marine waters (L. no. 61-1262, Nov. 24, 1961; L. no. 76-599, July 7, 1976), health (L. no. 2004-806, Aug. 9, 2004, art. 20), space (Ord. no. 2022-232, Feb. 23, 2022), and so on.
The texts governing the current law on requisitions are very numerous, with objectives and procedures that are neither homogeneous nor coordinated.
In times of crisis, however, the State needs to have the tools it needs to compensate for the inadequacy of the resources at its disposal, in order to fully meet the requirements of its defense policy (strategic objective no. 3 of the Revue nationale stratégique 2022).
A completely overhauled system
Article 47 of Law no. 2023-703 of August 1, 2023 therefore recasts the existing requisition regime in its entirety.
The two types of requisition are no longer divided into requisitions for the needs of the nation and military requisitions. They are replaced by requisitions to meet :
- a current or foreseeable threat to activities essential to the life of the Nation, the protection of the population, the integrity of the territory, the permanence of the institutions of the Republic, or justifying the implementation of the State's international defense commitments. A decree in the Council of Ministers will be required for this type of requisition (C. défense, art. L. 2212-1, nouv.);
- an emergency, when justified by the need to safeguard national defense. A decree from the Prime Minister is required to initiate this type of requisition (C. défense, art. L. 2212-2, nouv.).
In both cases, requisitions may be issued to any person or legal entity, as well as to any goods and services required to counter the threat or emergency (C. défense, art. L. 2212-1, nouv.).
With regard to the substantive conditions of requisitions, the measures prescribed must be strictly proportionate to the objectives pursued, and adapted to the circumstances of time and place. They may only be ordered in the absence of any other adequate means available within a useful timeframe, and may not last longer than necessary (C. défense, art. L. 2212-3, nouv.).
The requisitioning decision must specify its purpose and application procedures (C. défense, art. L. 2212-4, nouv.). Individuals will be requisitioned on the basis of their physical and mental aptitudes, and their professional or technical skills (C. défense, art. L. 2212-5, nouv.).
The following may be subject to requisition:
- any individual present on French territory;
- any individual of French nationality who is not resident in France;
- any legal entity whose registered office is located in France;
- any vessel flying the French flag, whether the shipowner is of French or foreign nationality, including on the high seas or in foreign waters (C. défense, art. L. 2212-6, nouv.).
The terms and conditions of compensation are specified in the new article L. 2212-8 of the French Defense Code. Compensation will be paid for direct and certain material costs arising from the application of prescribed measures. In the case of damage not covered by compensation, the said damage is to be made good in full, except in the case of personal fault on the part of the person required to perform the task (C. défense, art. L. 2212-8, nouv.).
The provisions also include the possibility for the State to have the measures prescribed by the requisition decision carried out ex officio (C. défense, art. L. 2212-7, nouv.).
Failure to comply with legally ordered requisition measures will be punishable by 5 years' imprisonment and a fine of €500,000 (C. défense, art. L. 2212-9, nouv.). It will also be a criminal offence for a public official to carry out illegal requisitions (C. défense, art. L. 2212-10, nouv.).
The application of these new provisions will be determined by decree of the Conseil d'Etat (C. défense, art. L. 2212-11, nouv.).
Lastly, Article 47 of the present law includes adaptation provisions in various parts of the Defense Code and in other codes and legislative texts, in order to update existing cross-references.
These new provisions will come into force on a date to be set by decree, but no later than one year after the promulgation of the law, i.e. August 1, 2024.
Translated with DeepL.com (free version)
