PUBLIC DOMAIN PUBLIC MARITIME DOMAIN FREEDOM OF TRADE AND INDUSTRY FREEDOM OF ENTREPRENEURSHIP
LexInter | October 19, 2012 | 0 Comments

PUBLIC DOMAIN PUBLIC MARITIME DOMAIN FREEDOM OF TRADE AND INDUSTRY FREEDOM OF ENTREPRENEURSHIP

Considering the order of July 12, 2010, registered on July 15, 2010 at the litigation secretariat of the Council of State, by which the president of the 7th chamber of the administrative court of appeal of Marseille, before a ruling on the ‘appeal by Mr. A against the judgment of November 4, 2009 by which the administrative court of Marseille ordered him to demolish the café restaurant located on the public maritime domain that he operates and to restore the premises to their original state, in a ninety days from the notification of its judgment, subject to penalty of 150 euros per day of delay, the administration being able, after this period, to proceed ex officio to the execution of this measure, has decided, by application of the provisions of article 23-2 of theordinance n ° 58-1067 of November 7, 1958, to transmit to the Council of State the question of compliance with rights and freedom guaranteed by the Constitution of the provisions of article L. 2132-3 of the general code of the property of public persons;

Having regard to the other documents in the file;

Having regard to the Constitution, in particular its Preamble and its article 61-1;

Considering the ordinance n ° 58-1067 of November 7, 1958;

Considering the general code of the property of public persons annexed to the ordinance n ° 2006-460 of April 21, 2006, ratified by the 18 ° of I of article 138 of the law n ° 2009-526 of May 12, 2009, in particular its article L. 2132-3;

Considering the code of administrative justice;

After having heard in public session:

– the report of Mrs. Paquita Morellet-Steiner, Master of Requests,

– the conclusions of Mr. Laurent Olléon, public protractor;

Considering that it follows from the provisions of article 23-4 of the ordinance of 7 November 1958 on the organic law on the Constitutional Council that, when a jurisdiction under the Council of State has transmitted to the latter, in application of Article 23-2 of the same ordinance, the question of the conformity with the Constitution of a legislative provision, the Constitutional Council is seized of this question of constitutionality on the threefold condition that the contested provision is applicable to the dispute or to the procedure, that it has not already been declared in conformity with the Constitution in the reasons and the operative part of a decision of the Constitutional Council, except change of the circumstances, and that it is new or has a serious character;

Considering that article L. 2132-3 of the general code of the property of public persons provides that: No one may build on the public maritime domain or carry out any development or any work whatsoever on pain of their demolition or confiscation materials and fine. / In addition, in this area, no one may deposit or extract, nor engage in degradation. ; that Mr. A maintains that these provisions on which, seized of a traffic ticket, the administrative court of Marseille was based to order his expulsion from the maritime public domain and the destruction of the commercial establishment that he operated there untitled, violate the freedom to undertake as well astrade and industry guaranteed by article 4 of the Declaration of the Rights of Man and of the Citizen;
Considering that the provisions of article L. 2132-3 of the general code of the property of public persons, which in principle prohibit the erection or maintenance of developments or constructions not compatible with this public use and expose the person who is there proceed with the demolition of its installations, do not unduly infringe the freedom to undertake or the freedom of trade and industry, to which the legislator has, when they are exercised on the domain maritime public, set limits justified with regard to the constitutional requirement,freedom of the persons for whose use it is assigned, who is committed to the protection of this area and that implements the need to obtain an authorization, necessarily temporary, to occupy or use it within the limits exceeding the right of use belonging to all; that thus the question of constitutionality raised, which is not new, does not present a serious character;

Considering that it follows from the foregoing that there is no need to refer to the Constitutional Council the priority question of constitutionality invoked;

DECIDES:
————–
Article 1: It does not
Article 2: This decision will be notified to Mr. Lionel A, the Prime Minister and the Minister of State, Minister of Ecology, Energy, Sustainable Development and the Sea, in charge of green technologies and climate negotiations.
A copy will be sent to the Constitutional Council and to the Marseille administrative court of appeal.


Analysis

Abstrates: 24-01-03 DOMAIN. PUBLIC DOMAIN. DOMAIN PROTECTION. – PUBLIC MARITIME DOMAIN – CONSTITUTIONAL FOUNDATION OF PROTECTION – RIGHTS AND FREEDOMS OF PERSONS TO WHOM THIS AREA IS AFFECTED [RJ1] – PRIORITY ISSUE OF CONSTITUTIONALITY – PROHIBITION OF CONSTRUCTION AND MAINTENANCE IN THIS AREA OF IMPROVEMENT DESTINATION (ART. L. 2132-2 OF CG3P) – FREEDOM OF ENTREPRENEURSHIP AND FREEDOM OF COMMERCE AND INDUSTRY – NEW OR SERIOUS QUESTION – CONDITION NOT FULFILLED.
54-07-01 PROCEDURE. POWERS AND DUTIES OF THE JUDGE. GENERAL QUESTIONS. – PRIORITY ISSUE OF CONSTITUTIONALITY – REFERENCE TO THE CONSTITUTIONAL COUNCIL – NEW OR SERIOUS QUESTION – CONDITION NOT FULFILLED – PROHIBITION OF CONSTRUCTION AND MAINTENANCE ON THE PUBLIC MARINE DOMAIN OF DEVELOPMENTS INCOMPATIBLE WITH ITS DESTINATION (ART. 3P) 2132-2 OF THE CGS. – FREEDOM OF ENTREPRENEURSHIP AND FREEDOM OF COMMERCE AND INDUSTRY – CONSTITUTIONAL BASIS FOR THE PROTECTION OF THIS AREA – RIGHTS AND FREEDOMS OF PERSONS FOR THE USE OF WHICH IT IS AFFECTED [RJ1].

Summary: 24-01-03 Priority question of constitutionality relating to the provisions of Article L. 2132-3 of the General Code of Property of Public Persons (CG3P), criticized with regard to the freedom of enterprise and freedom of trade and industry. These provisions prohibit in principle the erection or maintenance of facilities or constructions not compatible with the public use of the public maritime domain and expose the person who proceeds there to the demolition of his installations. They do not unduly infringe the freedom to undertake or the freedom of trade and industry, to which the legislator has, when they are exercised in the public maritime domain, set justified limits. with regard to the constitutional requirement, residing in the rights and freedomss of the persons for whose use it is assigned, who is committed to the protection of this area and that implements the need to obtain an authorization, necessarily temporary, to occupy or use it within limits exceeding the right of use belonging to all. Consequently, lack of seriousness of the question raised.
54-07-01 Priority question of constitutionality relating to the provisions of article L. 2132-3 of the general code of the property of public persons (CG3P), criticized with regard to the freedom to undertake and the freedomtrade and industry. These provisions prohibit in principle the erection or maintenance of facilities or constructions not compatible with the public use of the public maritime domain and expose the person who proceeds there to the demolition of his installations. They do not unduly infringe the freedom to undertake or the freedom of trade and industry, to which the legislator has, when they are exercised in the public maritime domain, set justified limits. with regard to the constitutional requirement, residing in the rights and freedomss of the persons for whose use it is assigned, who is committed to the protection of this area and that implements the need to obtain an authorization, necessarily temporary, to occupy or use it within limits exceeding the right of use belonging to all. Consequently, lack of seriousness of the question raised.

[RJ1] Cf. Cons. const., June 26, 2003, n ° 2003-473 DC, Law enabling the Government to simplify the law, cons. 29.

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