public domain
LexInter | November 3, 2011 | 0 Comments

PUBLIC DOMAIN

The public domain is made up of all “  goods not susceptible to private appropriation  ”. It brings together all the property belonging to the State , to local communities and to public establishments and assigned to public use.

This public use may result from an assignment for direct public use (such as roads ) or for a public service , provided that in this case, the property is subject to a development essential to the performance of the missions of this public service.

The notion of “public domain” is usually traced back to the Edit de Moulins of February 1566 which marks the separation between the physical person of the king and the power of the Crown. The principle of inalienability of the kingdom translates the transformation of the royal domain into public matter. The king cannot freely dispose of sales of Crown property and of the royal domain made up of all the feudal seignorial rights which the king holds.

According to article L. 2111-1 of the general code of the property of public entities , the public domain of a public entity ( State , local authorities and their groups,  public establishments ) consists, except for special legislative provisions, of property that belongs to this public body and:

  • either are assigned for direct public use ,

  • or are assigned to a public service . In this case, they must have undergone an ”  adjustment essential to the performance of the missions of this public service  “.

The judge checks these criteria when it comes to determining whether a piece of land or property is part of the public domain. Thus in the Dauphin decision of 1959, the Council of State considered that an alley had been incorporated into the public domain because:

  • on the one hand, the State had assigned it to a public service because of the presence there of an archaeological site

  • on the other hand, the authorities had installed two poles and a chain to close off access to this alley, which constituted a “special arrangement” made especially for the purpose of allocating the alley to this cultural public service.

The general code of the property of public persons took up this notion but specifying that the development must be “essential” to the public service mission: it is a question of limiting the development of case law which tended to extend the public domain.

The status of property belonging to the public domain can also result from a qualification of the law. This is the case with radio waves that the law of July 26, 1996  placed in a “public domain of radio frequencies”.


PRIVATE OCCUPATION OF THE PUBLIC DOMAIN AND CHARGE

any private occupation of the public domain is in principle subject to the issuance of an authorization and the payment of a fee ; that if the law of June 15, 1906 was intended to confer on a permanent basis to the concessionary companies of the electricity distribution and transport network the right to occupy public roads without authorization in order to carry out their public service mission there. , its provisions do not establish a derogation from the principle of payment of a fee for the occupation of the public domain EC February 1, 2012


PUBLIC DOMAIN OCCUPANCY AUTHORIZATIONS

if the authorizations to occupy the public domain must in principle be issued for a fixed period, as recalled by article L. 2122-2 of the general code of the property of public persons, the only circumstance that an agreement does not confer no real rights to the occupant of the public domain did not contain any precision relating to its duration is not likely to vitiate it of nullity; that in fact, in the silence on this point of the convention, the principle of inalienability of the public domain, which applies unless a legislative text to the contrary, implies that the authority managing the domain can terminate at any time, subject to to justify this decision by a reason of general interest, with the authorization of occupation which it granted; than, CE February 5, 2009


OCCUPATION OF THE PUBLIC DOMAIN AND FREEDOM OF TRADE AND INDUSTRY

Considering that the authority responsible for the management of the public domain may authorize a private person to occupy an outbuilding in this domain with a view to exercising an economic activity, on condition that this occupation is compatible with the allocation and conservation of this domain ; that the decision to issue or not such an authorization, which the administration is never required to grant, is not in itself liable to infringe the freedom of trade and industry, of which compliance implies, on the one hand, that public entities do not impose restrictions on production, distribution or service activities carried out by third parties which are not justified by the general interest and proportionate to the objective pursued And on the other hand, that they cannot take charge of an economic activity themselves without justifying a public interest; that the public body cannot however legally issue such an authorization when its decision would have the effect of disregarding competition law, in particular by automatically placing the occupier in a situation of abusing a dominant position, contrary to the provisions of the article L. 420-2 of the commercial code CE May 23, 2012 Autonomous Parisian transport authority


 FIXATION BY THE PUBLIC DOMAIN MANAGER OF THE OCCUPANCY FEE

In the absence of contrary provisions, it is for the authority in charge of the management of the public domain in question, whether or not it is the owner, to grant the permissions of occupation and to fix the conditions under which it. intends to make their issuance conditional and, as such, to determine the tariff rate taking into account the advantages of any kind that the license holder is likely to derive from the occupation of the public domain CE February 1, 2012

DEALER AND SETTING OF OCCUPANCY PERMISSIONS

 it is up to the authority responsible for the management of the public domain, in the absence of contrary provisions, to set the conditions for the issuance of occupancy permits and, as such, to determine the tariff rate taking into account the advantages of any kind that the permit holder is likely to withdraw from the occupation of the public domain. These rules apply, even in the absence of any specific regulations, to the concessionaire authorized to issue permits of occupation on the public domain whose exploitation is granted to him . EC June 10, 2010

ROAD PERMISSION AND OCCUPANCY FEES

the fee imposed on an occupant of the public domain must be calculated not only on the basis of the rental value of a private property comparable to the dependence of the public domain for which the permission is issued but also, as has also been recalled by Article R. 56 of the State Domain Code, depending on the specific advantage provided by this private enjoyment of the public domain ; CE March 21, 2003


PUBLIC DOMAIN OCCUPANCY AGREEMENTS

the desire to ensure a better use of the public domain , in particular by the introduction of a royalty taking into account the advantages of any kind that a licensee is likely to derive from the occupation of this domain , is one of the reasons for general interest that can justify terminating a public domain occupation contract before its expiry   C.E. 23 May 2011

 The principle of non-discrimination on the basis of nationality from which results an obligation of transparency in European Union law does not require public persons to organize a publicity procedure prior to the issuance of an authorization or the awarding of ” a contract having for sole purpose the occupation of a domain dependency, even if the occupant is an operator in a competitive market.

 No legislative or regulatory provision or principle requires a public body to organize a publicity procedure prior to the issuance of an authorization or the signing of a contract for the occupation of an outbuilding in the public domain, having in either case for the sole purpose of occupying such an outbuilding. The fact that the occupant of the domain dependency would be an operator on a competitive market is irrelevant. ,, 2) In the silence of the texts, the authority managing the domain can implement a publicity procedure as well as, if appropriate, competitive bidding, in order to generate competing offers. However, in the absence of any text the CE December 3, 2010 City of Paris and Association Paris Jean Bouin


INDEMNITIES OF OCCUPATION WITHOUT TITLE OF THE PUBLIC DOMAIN

under the terms of article L. 28 of the State domain code, then in force: No one may, without an authorization issued by the competent authority, occupy a dependency of the national public domain or use it within limits exceeding the right of use which belongs to all. ; that the occupation without right or title of a dependency of the public domain constitutes a fault committed by the occupant and which obliges it to repair the damage caused to the manager of this domain by this irregular occupation; that, if the authority managing the public domain has not given notice to the illegal occupant to leave the premises, has not invited him to regularize his situation or has maintained an ambiguity with regard to him as to the regularity of his situation , these circumstances are of such a nature, if applicable, CE April 15, 2011, SNCF / France Telecom

a municipality is justified in claiming from the occupant without title to its public domain , for the period of irregular occupation, compensation compensating for the income it could have received from a regular occupant during this period; that to this end, it must find the amount of the fees that would have been applied if the occupant had been placed in a regular situation, either by reference to an existing tariff, which must take into account the advantages of any kind provided by the occupation of the public domain , or, in the absence of an applicable tariff, by reference to income, taking into account the same advantages, which could have been produced by the communal C.E. May 16, 2001, Municipality of Moulins


 

TERMINATION OF A DOMANIAL OCCUPATION AGREEMENT

 The desire to ensure better exploitation of the public domain , in particular by the introduction of a fee taking into account the advantages of any kind that a licensee is likely to derive from the occupation of this domain , is one of the reasons for general interest that may justify terminating a public domain occupancy contract before it expires . CE May 23, 2011


OCCUPATION OF THE PUBLIC DOMAIN, JURISDICTION BETWEEN AN OCCUPANT OF THE PUBLIC DOMAIN AND A SUB-OCCUPANT


EVACUATION OF AN UNTITLED OCCUPANT FROM THE PUBLIC DOMAIN


If Réseau Ferré de France (RFF) invokes, to justify that the expulsion measure requested from the summary judge on the basis of Article L. 521-3 of the CJA is of an urgent nature, the fact of be placed in the impossibility of exploiting this land dependency normally and therefore not being able to respect the objectives of the multi-year performance contract concluded in 2008 with the State, the management objectives which are thus assigned to it and which RFF avails itself of are not sufficient, whereas it does not mention any specific development or rehabilitation project necessary for the enhancement of the domain dependency in question and it does not invoke any harm to thenormal use of the public railway domain resulting in particular from the fact that the maintenance in the premises of the occupant without title would be likely to compromise the installation of a new occupant, to characterize the urgency of the requested measure CE February 1, 2012


BEACH CONCESSION AND COASTAL PROTECTION


LARGE HIGHWAY CONTRAVENTION

INALIENABILITY OF THE PUBLIC DOMAIN OF LOCAL AUTHORITIES

DOMANIAL FEES AND TELECOMMUNICATION OPERATORS BENEFITING FROM A ROAD PERMISSION

 

Submission to competition law of authorizations to occupy the public domain granted by public entities when the public domain is “the seat of production, distribution or service activities

Considering that if it is up to the administrative authority affected by dependencies in the public domain to manage them both in the interest of the domain and its use and in the general interest, it is also incumbent upon it when, in accordance with the ‘affectation of these dependencies, they are the seat of production, distribution or service activities, to take into consideration the various rules, such as the principle of freedom of trade and industry or the ordinance of December 1, 1986, within the framework of which these activities are carried out; that it is then up to the judge of excess of power, who is responsible for assessing the legality of legal acts for the management of the public domain, to ensure that these acts have been taken into account Sté EDA, CE March 26, 1999

EXPULSION OF AN UNTITLED OCCUPANT FROM THE PUBLIC DOMAIN

ROAD PERMISSION

COMPETENCE TO SET THE CHARGES FOR OCCUPANCY OF THE PUBLIC DOMAIN


PUBLIC DOMAIN AND FREEDOM OF TRADE AND INDUSTRY

As soon as the yard of a station, which has been incorporated into the municipal road network, no longer belongs to the public railway domain, the prefect is not competent to take police measures relating to the parking of taxis on the reserved spaces. in front of this station. On the other hand, it is up to the mayor to take such measures
Order of the mayor of Vannes prohibiting taxis from outside this municipality from parking in the spaces reserved for taxis in front of the station. In view of the importance of the restriction thus placed on the exercise of this professional activity and the fact that the service function of the Vannes stationgoes far beyond the framework of this municipality, the mayor was not legally able to reserve only taxis in his municipality to park on these spaces 
CE June 6, 2000 Municipality of Vannes

Leave a Comment

Your email address will not be published.


CAPTCHA Image
Reload Image