OBLIGATION TO REPAIR A SITE
LexInter | October 18, 2005 | 0 Comments

OBLIGATION TO REPAIR A SITE

Council of State, November 17, 2004, n ° 252514, General Archives Society

BOARD OF STATE

Ruling on litigation

No. 252514

SOCIETE GENERALE D’ARCHIVES

Mr. Bertrand Dacosta
Rapporteur

Mr. Yann Aguila
Government Commissioner

Session of October 4, 2004
Reading of November 17, 2004

FRENCH REPUBLIC

IN THE NAME OF THE FRENCH PEOPLE

The Council of State deciding on litigation

(Litigation section, 6th and 1st sub-sections combined)

On the report of the 6th subsection of the Litigation Section

Having regard to the summary request and the additional memorandum, registered on 13 December 2002 and 4 April 2003 at the litigation secretariat of the Council of State, presented for the SOCIETE GENERALE D’ARCHIVES, whose head office is 10 rue des Pyramides in Paris (75001) ; the SOCIETE GENERALE D’ARCHIVES asks the Council of State:

1 °) to annul the judgment of October 3, 2002 by which the administrative court of appeal of Douai, only partially granting its requests, has, on the one hand, decided that there was no need to rule, as the decisions in question concerned an amount exceeding 614,000 F, on the conclusions of his requests for the annulment of the judgment dated December 15, 1998 by which the administrative court of Amiens rejected his request annulment of the order of May 31, 1995 of the prefect of Aisne initiating against him the deposit procedure provided for in article L. 514-1 of the environment code in the amount of 1,600,000 F as well as the judgment dated June 27, 2000 by which the said court rejected its request for annulment of the enforceable title dated July 3, 1995, and, on the other hand, rejected the surplus of its conclusions tending to the annulment of the aforementioned decree of May 31, 1995 and to the condemnation of the State to repair the damage suffered as a result of the failure of its services to be provided. surveillance and police of the industrial site on which it is installed;

2 °) ruling on the merits, to annul the judgment dated December 15, 1998 by which the administrative court of Amiens rejected its request for annulment of the order of May 31, 1995 of the prefect of Aisne committing to its against a consignment procedure;

3 °) to annul the judgment dated December 15, 1998 by which the administrative court of Amiens rejected its request for the condemnation of the State to repair its damage;

4 °) cancel the order dated May 31, 1995 of the prefect of Aisne;

5 °) to order the State to pay him a sum of 808 755, 14 euros in compensation for his damage with interest of right on the day of the request and capitalization of the interest due for more than one year;

6 °) to charge the State a sum of 5,000 euros in application of article L. 761-1 of the code of administrative justice;

Having regard to the other documents in the file;

Having regard to the environmental code;

Considering the law n ° 75-633 of July 15, 1975;

Considering the law n ° 76-633 of July 19, 1976;

Considering the decree n ° 50-722 of June 24, 1950 relating to the delegation of the powers specific to the prefects, sub-prefects and general secretaries of prefecture;

Considering the decree n ° 77-1133 of September 21, 1977;

Considering the code of administrative justice;

After hearing in public session:
– the report of Mr. Bertrand Dacosta, Master of Requests,
– the observations of SCP Nicolaÿ, of Lanouvelle, lawyer of the SOCIETE GENERALE D’ARCHIVES,
– the conclusions of Mr. Yann Aguila, Commissioner of the government ;

Considering that, on the basis of article 23 of the law of July 19, 1976, the provisions of which are now included in article L. 514-1 of the environment code, the prefect of Aisne has , by a decree dated April 15, 1994, gave notice to the SOCIETE GENERALE D’ARCHIVES to proceed with the regularization of its activities under the legislation on classified installations, with the elimination of waste present on the site that she occupied and the restoration of the premises; that, on May 31, 1995, the secretary general of the prefecture of the Aisne, after noting that the company had not complied with this injunction, issued a decree obliging it to record in the hands of a public accountant a sum of 1,600,000 F, to cover the amount of the work to be carried out, then issued, on July 3, 1995, an enforceable statement; that the SOCIETE GENERALE D’ARCHIVES seized the administrative court of Amiens of a request for cancellation of the decree of May 31, 1995 and formed an opposition to the enforceable state of July 3, 1995; that it then seized the same court of conclusions tending to the annulment of the implicit decision of rejection opposed by the prefect of the Aisne to his request tending that the State be condemned to repair the damage born, according to her , the fault he had committed in not getting the previous operator to fulfill his obligations; that, by three separate judgments, the administrative court of Amiens rejected these requests; that, after these judgments, by a new decree dated August 1, 2001, the Prefect of Aisne, to take account of the work carried out by the company, reduced the amount of the deposit to 624,000 F; that the administrative court of appeal of Douai, by a judgment dated October 3, 2002 rendered on the request of the SOCIETE GENERALE D’ARCHIVES, decided that there was no need to rule on the conclusions tending to annulment of the decree of May 31, 1995 and of the enforceable status of July 3, 1995 insofar as these decisions concerned an amount exceeding the sum of 614,000 F, annulled the judgment of the administrative court of Amiens dated June 27, 2000 rejecting the request for annulment of the executory state of July 3, 1995 as well as this executory state, and rejected the surplus of the conclusions of the request of the SOCIETE GENERALE D’ARCHIVES;

On the conclusions directed against the non-need to rule on the requests for the annulment of the decree of 31 May 1995 and of the enforceable state of 3 July 1995 in so far as these decisions relate to an amount which exceeds the sum from 624,000 F:

Considering that by judging that the administration had definitively renounced to require a deposit of an amount exceeding 624,000 F and that, consequently, the conclusions of the requests had become devoid of object in so far as they related to a sum exceeding this amount, even though the prefectural decree of August 1, 2001 had been attacked in turn by the SOCIETE GENERALE D’ARCHIVES before the administrative court of Amiens, the administrative court of appeal of Douai, which gave sufficient reasons for its decision, did not commit an error of law and engaged in a sovereign assessment of the circumstances of the case which it does not appear from the documents in the file submitted to the trial judges that it was based on materially inaccurate facts; that by mentioning an amount of 614,000 and not of 624,000 F, the court made an error of pen without influence on the regularity of its judgment; that it follows from the above that the conclusions of the request directed against the partial non-place pronounced by the court must be rejected;

On the conclusions directed against the rejection of the request for the annulment of the deposit order in so far as it relates to a sum of 624,000 F

Considering that under article 2 of the decree of June 24, 1950 relating to the delegation of powers specific to prefects, sub-prefects and general secretaries of prefecture: “In the event of temporary vacancy of a prefecture, absence or prevention of a prefect, without the latter having delegated the exercise of his functions under the conditions provided for in the preceding article, the secretary general of the prefecture ensures the administration of the department “;

Considering, in the first place, that, in order to rule out the plea alleging that the secretary general of the department of Aisne was not competent to issue the decree of May 31, 1995, the prefecture not being, according to the company applicant, not vacant on this date, the administrative court of appeal of Douai noted that this one did not demonstrate that the prefect was neither absent, nor prevented; that in responding to the plea in this way, the court, contrary to what the SOCIETE GENERALE D’ARCHIVES claims, did not automatically take up a plea not invoked by the parties of which it should have previously informed them. ci and has, consequently, not disregarded the provisions of article R. 611-7 of the code of administrative justice;

Considering, secondly, that the decree dated May 24, 1995 appointing Mr. Jean-Marc Sauvé, until then Prefect of Aisne, Secretary General of the Government took effect, in the absence of any indication to the contrary, from the date of signature; that in this regard without incidence the circumstance that the decree of the same day putting an end to its functions of prefect of the Aisne was not published in the Official Journal of the French Republic that on May 30, 1995; that such publication, in the case of an individual administrative decision, has the sole effect of running the time limit for litigation against third parties; that the new prefect of the Aisne was appointed and installed only at a date subsequent to May 31, 1995; that thus the prefecture of Should Aisne be regarded as vacant on the date of the signing of the contested decree, which was therefore competently signed by the secretary general of the prefecture, on the basis of article 2 of the decree of 24 June 1950; that this reason, which responds to a plea invoked before the trial judges and does not include the assessment of any factual circumstance, must be substituted for the legally erroneous reason retained by the judgment under appeal of the administrative court of appeal of Douai , of which he legally justifies the device;

Considering that it follows from the foregoing that the conclusions directed against the rejection of the request for the annulment of the deposit decree as it relates to a sum of 624,000 F must be rejected;

On the claims against the rejection of the request for the State to be ordered to compensate for the damage suffered by the SOCIETE GENERALE D’ARCHIVES

Considering, in the first place, that, in order to rule out the plea alleging that the State had committed a fault by not exercising its power of control with regard to the company “Manufactures du Soissonais”, the previous operator of the site, the administrative court of appeal noted that the inspections then carried out had not revealed any breach by this company of its obligations, that no complaint had moreover been filed, that the company having refrained from declaring its cessation of activity in 1987, the prefect had not been able to use the powers which he holds under article 34 of the decree of September 21, 1977 to impose on him a restoration of the site, which he did not was informed of the presence of waste on the site only in the spring of 1994 and thathe had then made haste;

Considering that, contrary to what the applicant company maintains, it does not follow from the terms of the judgment under appeal that the court held that the power, for the prefect, to prescribe the restoration of the site was subordinated to the presentation by the company of a declaration of cessation of activity; that thus the plea based on error of law must be rejected; considering that in the absence of such a declaration, and for lack of having been informed by third parties, the prefect had not, in this case, been able to make use of his powers, the court legally justified its decision and responded to the plea raised before it;

Considering on the other hand, in the second place, that, in order to rule out the plea alleging that the State had committed a fault in making the SOCIETE GENERALE D’ARCHIVES responsible for the restoration of the site, the court confined itself to to note that the applicant company does not invoke any other means than those exposed in support of its conclusions directed against the decree of consignment and the enforceable state and which it had previously rejected; that if the court was rightly able to reject, within the framework of the examination of the request directed against the decree of consignment, the plea alleging the illegality of the formal notice, which had become final for lack of contested within the time limit for the legal appeal, SOCIETE GENERALE D’ARCHIVES could, however, rely on the illegality of this decision in support of its conclusions tending to the condemnation of the State to repair the damage which it considered to have suffered as a result of the execution of this decree; that as a following, the SOCIETE GENERALE D’ARCHIVES is founded to maintain that judgment attacked is, on this point, tainted error of law, and to request cancellation as he rejects his request compensation;

Considering that under the terms of article L. 821-2 of the administrative justice code, the Council of State, if it announces the annulment of a decision of an administrative court ruling in last resort, can “regulate the case on the merits if the interest of the good administration of justice justifies it “; that, in the circumstances of the case, it is necessary to settle the case on the merits;

Considering that under article 23 of the law of July 19, 1976, the provisions of which are now included in article L. 514-1 of the environment code: “I. – Regardless of criminal proceedings that may be exercised, and when an inspector of classified installations or an expert appointed by the minister responsible for classified installations has noted non-compliance with the conditions imposed on the operator of a classified installation, the prefect gives notice to the latter to meet these conditions within a determined period. If, at the end of the period fixed for execution, the operator has not complied with this injunction, the prefect may: 1 ° Oblige the operator to deposit in the hands of ‘a public accountant a sum answering the amount of the work to be carried out, which will be returned to the operator as and when the prescribed measures are carried out (.) “

Considering that it results from the instruction that the waste discovered, in 1994, on the site exploited by the SOCIETE GENERALE D’ARCHIVES came from the activity of the company “Manufactures du Soissonais” which manufactured refrigerators; that the activity of this company ceased at the latest in 1987, prior to the installation in 1992 of the SOCIETE GENERALE D’ARCHIVES, exercising an activity of storage of archives; that this first company was placed in compulsory liquidation then removed from the trade and companies register; that it is common ground that the SOCIETE GENERALE D’ARCHIVES did not replace the company “Manufactures du Soissonais” as operator and did not resume its rights and obligations; that, consequently, the prefect of

Considering, it is true, that the Minister of Ecology and Sustainable Development maintains that the Prefect could require the applicant company to ensure the disposal of the waste in question on the basis of the provisions of article 3 of the law of July 15, 1975, now codified in Article L. 541-3 of the Environment Code;

But considering that these provisions created a legal regime distinct from that of installations classified for the protection of the environment, do not have the same scope and do not confer jurisdiction on the same authorities; that, consequently, they cannot constitute the legal basis of the decision by which the restoration of the site has been charged to the SOCIETE GENERALE D’ARCHIVES;

Considering that it follows from the foregoing that the SOCIETE GENERALE D’ARCHIVES is justified in maintaining that the State, by enjoining it to carry out work to restore the site, has committed a fault such as to engage its liability and that it is wrong that, by the judgment attacked, the administrative court of Amiens rejected his request;

Considering that the SOCIETE GENERALE D’ARCHIVES maintains that it has suffered, due to the fault of the State, material damage linked to the expenses that it had to bear unduly and to the need in which it found itself to rent new premises, as well as non-pecuniary damage resulting from damage to its image;

Considering that it follows from the investigation that the moral damage resulting, for SOCIETE GENERALE D’ARCHIVES, from press articles and reports devoted to the presence of waste on the site it operates is not directly attributable to the State’s decision requiring it to restore this site; that thus the responsibility of the State is not engaged in this respect;

Considering, moreover, that the state of the investigation does not make it possible to determine whether and to what extent the other heads of damage alleged by SOCIETE GENERALE D’ARCHIVES were caused by the decision requiring it to proceed with the recovery. condition of the site and assess the amount of repair due in this regard; whereas it is necessary, before ruling on the request for compensation, to order an expertise for this purpose;

DECIDES:

Article 1: Article 3 of the judgment of the administrative court of appeal of Douai, insofar as it rejects the compensation claims of the SOCIETE GENERALE D’ARCHIVES, and judgment n ° 961615 of the administrative court of Amiens are canceled.

Article 2: Before ruling on the SOCIETE GENERALE D’ARCHIVES claim for compensation, an expert appointed by the president of the litigation section of the Council of State will carry out an expertise in order to determine whether and to what extent the material damage alleged by SOCIETE GENERALE D’ARCHIVES was caused by the decision requiring it to proceed with the restoration of the site and to assess the amount of the repair due in this regard.

Article 3: The expert will take an oath in writing or before the litigation secretary of the Council of State; the expert’s report will be submitted to the litigation secretariat within three months of taking the oath.

Article 4: The costs of expertise, as well as the conclusions tending to the application of article L.761-1 of the code of administrative justice, are reserved to be ruled at the end of the proceedings.

Article 5: The surplus of the conclusions of the request is rejected.

Article 6: This decision will be notified to the SOCIETE GENERALE D’ARCHIVES and to the Minister of Ecology and Sustainable Development.

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