- Prima lezione : The Internationalisation of administrative law : a french perspective
- 5th april 2022 : 15. Contracting Out and Privatization/1
- 6th april 2022 : 15. Contracting Out and Privatization/2
- 12th april 2022 : Impact study, costs assessment and the precautionary principle: the declaration of public utility of works required for the realization of a high-tension line in France
Article : Commentaire sous CE 24 juin 2021, Fonderie & Mezzi (originally published in french : RFDA 2021 n° 5 p. 893.)
The sub-delegation of licensing discretionary powers to the aquaculture industry in Canada Federal Court of Canada (Ottawa, Ontario), 6 May 2015, 2015 FC 575 Morton v. Canada (Fisheries and Oceans)-
The privatization of prisons in Israel The Supreme Court of Israel sitting as the High Court of Justice 19 November 2009, HCJ 2605/05, Academic Center of Law and Business and others v. Ministries of Finance and Public Security, A.L.A. Management and Operation (2005) Ltd, and Knesset. (7.04.21)
1. Comments on the Morton v. Canada case
This case is very interesting in that it demonstrates a very different approach to some continental law traditions on the issue of delegation.
At issue here is the supervision of a regulated activity. The Supreme Court of Canada and the applicants are dealing with the principle of delegation of an administrative function.
However, from the point of view of some civil law traditions in general and French law in particular, the question would not arise in these terms at all.
If a company has the capacity to determine itself, by a kind of self-control, whether it meets the conditions set by the legislation for carrying out an activity, civil law will consider that it is exercising its freedom (to use an expression well known in French administrative law: freedom is the principle, restriction the exception).
If the administrative authority has not correctly determined the conditions for obtaining a transfer authorisation, as in this case, the question will arise not in terms of “delegation” but of the exercise of powers.
French law has created the theory of “negative incompetence” in this respect.
The theory of negative incompetence is old. This form of review mainly concerns the legislator. If the legislator does not exercise its competence, it violates the Constitution. This violation is due to the fact that by not specifying the conditions of implementation of the adopted provisions, the legislator has necessarily referred to the regulatory power or the judge. In the first case, by referring even implicitly to the regulatory power, the legislator violates the principle of separation of powers. By referring to the judge, he also violates the principle of equality, since each judge will be able to decide a dispute differently.
Bibliography : Aurélie Bretonneau, “L’incompétence négative, « faux ami » du juge administratif ?”, Les Nouveaux Cahiers du Conseil constitutionnel – n°46, janvier 2015
Notwithstanding these observations on the distinction between delegation and negative incompetence, we must point out that the latter theory exists in the jurisprudence of the Supreme Court of Canada.
The Supreme Court of Canada establishes that: A rule of law is unconstitutionally vague if it does not provide an adequate basis for judicial debate and analysis, if it does not sufficiently delimit a sphere of risk, or if it is not intelligible. The rule of law must give the judiciary a grip.
“Vagueness can be raised under s. 7 of the Charter, since it is a principle of fundamental justice that laws may not be too vague. It can also be raised under s. 1 of the Charter in limine, on the basis that an enactment is so vague as not to satisfy the requirement that a limitation on Charter rights be “prescribed by law”. Vagueness is also relevant to the “minimal impairment” stage of the Oakes test. Vagueness, when raised under s. 7 or under s. 1 in limine, involves similar considerations and should be considered a single concept. Vagueness as it relates to the “minimal impairment” branch of s. 1 merges with the related concept of “overbreadth””.
Cour suprême du Canada, R. c. Nova Scotia Pharmaceutical Society,  2. R.C.S. 606.
Bibliography : Jordane Arlettaz, “L’incompétence négative à l’étranger”, Les Nouveaux Cahiers du Conseil constitutionnel – n°46, janvier 2015 : https://www.conseil-constitutionnel.fr/nouveaux-cahiers-du-conseil-constitutionnel/l-incompetence-negative-a-l-etranger
This comparison between the two theories probably makes it possible to better understand the question of delegation in the sense of the case law of the Supreme Court of Canada: in the case studied, it is not a question of “vagueness” but of an abandonment to the controlled person itself of the conditions for the exercise of its activity.
Nevertheless, we personally find it difficult to relate this case to the idea of a “delegation” of a legislative or administrative power.
2. Comments on The Supreme Court of Israel sitting as the High Court of Justice 19 November 2009, HCJ 2605/05
57. Before we conclude our deliberations and examine the consequences of the unconstitutionality of amendment 28, we think it right to address in brief the parties’ arguments regarding the phenomenon of prison privatization around the world. The petitioners argued that experience in other countries shows that the violation of the human rights of inmates of private prisons is greater than the violation of the human rights of their counterparts in state prisons. The respondents for their part argued that the phenomenon of privatizing prisons is not unique to Israel, and various democratic countries, including the United States and Britain, have adopted this method of dealing with the problem of overcrowding in prisons and in order to save on the cost of imprisoning offenders. In none of these countries, it is claimed, has it been held that the privatization of prisons is unconstitutional, or that the state has a constitutional obligation to manage the prisons itself.
In terms of comparative law, this passage is probably the most important: it shows that the Israeli court’s decision is unique. Indeed, the privatisation of prisons, in the USA, the UK and also in France, is a widespread phenomenon. And it is also true that there is little or no case law in this regard.
The most striking example is the UK’s famous Private Finance Initiative programme.
I myself spent 6 years studying this issue in my doctoral thesis (Philippe Cossalter, Les délégations d’activités publiques dans l’Union européenne, LGDJ, 2006). And despite my efforts I have not found any relevant case law on the privatisation of public activities in the UK.
The first example of prison PFI in the UK is Bridgend and Fazarkerley Prison
What is striking is that the approach of public authorities has been limited to an analysis in terms of management gains and risk transfer, never in terms of rights protection.
Obviously the National Audit Office (NAO) analysis is limited to the issue of auditing accounts and not to the protection of rights. But it is striking that there are no other reliable sources of information on the subject.
NAO, The PFI Contracts for Bridgend and Fazakerley Prisons, 1997 :
However, the efficiency gain, which is taken up without discussion by the Israeli court, is itself highly questionable.
The PFI represented an investment of several tens of billions of pounds over 15 years, and the duration of the contracts is sometimes several decades.
English contract law, like civil contract law, is based on the principle of stability: pacta sunt servanda, expressed in English law in the adage of the “Sanctity of contract”.
However, there is no effective system for adapting the public service management system in the contract.
PFI contracts and their equivalents are characterised by a high degree of completeness: economists contrast the complete contract with the incomplete contract.
The PFI contract and these types of contracts for prisons and other public services are complete contracts: everything is provided for.
For example, the definition of escape is provided: is it climbing a 3-metre wall, two walls, a fence? The content of meals, the temperature of the cells, the number of telephones are defined.
The contractualisation of all the details in contracts of thousands of pages leads to unbearable rigidity and, in the event of change, to unbearable additional costs.
These drawbacks have always kept the French Council of State and the Constitutional Council from giving absolute authorisation to the delegation of public activities.
But the reservations of the French judicial authorities are not based on the protection of human rights: they are based on two considerations.
The first consideration is the better use of public funds and the protection of the public domain.
The second consideration concerns the administration’s obligation to exercise the functions of sovereignty itself.
a. The better use of public funds and the protection of the public domain
The French Constitutional Council was seized in 2003 of the constitutionality of a law providing for the use of a contract directly inspired by the PFI model, a PFI model itself inspired by French law (a detail we do not have time to go into).
The Constitutional Council authorised the use of this type of contract but considered that their derogatory nature made it necessary in all cases to prove the legal, economic and financial interest of their use. The use of these “partnership contracts” is only in conformity with the Constitution if their advantage is proven on a case by case basis.
Conseil constitutionnel, décision n° 2003-473 DC du 26 juin 2003, Loi habilitant le Gouvernement à simplifier le droit:
18. […] la généralisation de telles dérogations au droit commun de la commande publique ou de la domanialité publique serait susceptible de priver de garanties légales les exigences constitutionnelles inhérentes à l’égalité devant la commande publique, à la protection des propriétés publiques et au bon usage des deniers publics ; que, dans ces conditions, les ordonnances prises sur le fondement de l’article 6 de la loi déférée devront réserver de semblables dérogations à des situations répondant à des motifs d’intérêt général tels que l’urgence qui s’attache, en raison de circonstances particulières ou locales, à rattraper un retard préjudiciable, ou bien la nécessité de tenir compte des caractéristiques techniques, fonctionnelles ou économiques d’un équipement ou d’un service déterminé ;
19.Considérant, enfin, que l’article 6 ne saurait être entendu comme permettant de déléguer à une personne privée l’exercice d’une mission de souveraineté ;
18. […] . the generalisation of such derogations from the ordinary law of public procurement or public ownership would be likely to deprive of legal guarantees the constitutional requirements inherent in equality before public procurement, the protection of public property and the proper use of public funds ; that, under these conditions, the orders issued on the basis of Article 6 of the law referred to must reserve similar derogations for situations that meet reasons of general interest such as the urgency, due to particular or local circumstances, of making up for a prejudicial delay, or the need to take account of the technical, functional or economic characteristics of a specific facility or service;
19 Considering, finally, that Article 6 cannot be understood as allowing the delegation to a private person of the exercise of a mission of sovereignty;
b. The direct exercice of sovereignty functions
For many decades, the question has been raised as to which of the state’s inherent functions could not be abandoned, either by no longer performing them or simply by entrusting them to the private sector. Theses have been written on the subject but no jurisprudence has ever specified the contours of what is called in France “constitutional public services”.
S. Ramu de Bellescize, Les services publics constitutionnels, LGDJ 2005
Some decisions of the Council of State have given examples of activities that cannot be delegated. For example, the police function of recording traffic violations cannot be entrusted to the private sector.
Conseil d’Etat, 1 avril 1994, n° 144152 n° 144241, publié au recueil Lebon
But these limitations have not prevented the construction of prisons in public-private partnership, nor the transportation of foreigners to detention centres.
Conseil constitutionnel, décision n° 2021-940 QPC du 15 octobre 2021, Société Air France [Obligation pour les transporteurs aériens de réacheminer les étrangers auxquels l’entrée en France est refusée]
15. […] according to Article 12 of the Declaration of Human and Civic Rights of 1789: “To guarantee the Rights of Man and of the Citizen a public force is necessary; this force is therefore established for the benefit of all, and not for the particular use of those to whom it is entrusted.” It results that it is prohibited to delegate to private entities the general administrative police powers which are inherent to the use of “public force” necessary for guaranteeing rights. This requirement constitutes an inherent principle of France’s constitutional identity.
It was only in the very recent Air France decision that the Constitutional Council clearly identified a constitutional limit to delegation to the private sector, but this limit is hardly operational. What cannot be delegated is only the strict exercise of public power, but not any accessory ‘services’: transport, catering, etc.
Court of Justice of the European Union, (Fifth Chamber), 19 June 2014, C-574/12 Centro Hospitalar de Setúbal EPE and Serviço de Utilização Comum dos Hospitais (SUCH) vs. Eurest (Portugal) – Sociedade Europeia de Restaurantes Lda
Document : Philippe Cossalter, “The principles of public-public cooperation”, in : Stéphane de La Rosa, Patricia Valcarcel Fernandez, Les principes des contrats publics en Europe / Principles of public contracts in Europe, Bruylant, 1re édition 2022, pp. 535-553 : PUBLIC-PUBLIC_COSSALTER
12th april 2022 : Impact study, costs assessment and the precautionary principle: the declaration of public utility of works required for the realization of a high-tension line in France
CE, ass., 28 mai 1971, Ministre de l’équipement et du logement c. Fédération de défense des personnes concernées par le projet actuellement dénommé « Ville Nouvelle-Est », req. n° 78825.
CONSIDERING THAT UNDER THE TERMS OF ARTICLE 1 OF DECREE NO. 59-701 OF 6 JUNE 1959 ON THE PUBLIC ADMINISTRATION REGULATIONS RELATING TO THE PROCEDURE FOR THE ENQUIRY PRIOR TO THE DECLARATION OF PUBLIC UTILITY, THE DETERMINATION OF THE PLOTS TO BE EXPROPRIATED AND THE CESSATION OF USE ORDER: “THE EXPROPRIATOR SHALL SEND TO THE PREFECT TO BE SUBMITTED TO THE ENQUIRY A FILE WHICH MUST INCLUDE :
I. WHEN THE DECLARATION OF PUBLIC UTILITY IS REQUESTED WITH A VIEW TO CARRYING OUT WORKS OR STRUCTURES :
1° AN EXPLANATORY NOTE INDICATING IN PARTICULAR THE PURPOSE OF THE OPERATION;
2° A SITE PLAN ;
3° THE GENERAL PLAN OF THE WORKS;
4° THE MAIN CHARACTERISTICS OF THE MOST IMPORTANT WORKS
5° A SUMMARY ASSESSMENT OF THE EXPENSES.
– II. WHEN THE DECLARATION OF PUBLIC UTILITY IS REQUESTED WITH A VIEW TO THE ACQUISITION OF REAL ESTATE: 1° AN EXPLANATORY NOTE INDICATING IN PARTICULAR THE PURPOSE OF THE OPERATION; 2° THE LOCATION PLAN; 3° THE PERIMETER DELIMITING THE REAL ESTATE TO BE EXPROPRIATED; 4° THE SUMMARY ESTIMATE OF THE ACQUISITIONS TO BE MADE;
CONS. THAT THESE PROVISIONS DISTINGUISH, AS REGARDS THE CONSTITUTION OF THE FILE SUBMITTED TO THE ENQUIRY PRIOR TO THE DECLARATION OF PUBLIC UTILITY, ON THE ONE HAND, IN ITS PARAGRAPH 1, THE CASE WHERE THE PURPOSE OF THE EXPROPRIATION IS TO CARRY OUT WORKS OR STRUCTURES, AND ON THE OTHER HAND, IN ITS PARAGRAPH 2, THE CASE WHERE THE EXPROPRIATION HAS NO OTHER PURPOSE THAN THE ACQUISITION OF IMMOVABLE PROPERTY;
CONS. THAT, IF THE CREATION OF A NEW TOWN NORMALLY IMPLIES, ON THE ONE HAND, THE ACQUISITION OF LAND AND, ON THE OTHER HAND, THE CARRYING OUT OF WORKS AND STRUCTURES BY THE PUBLIC AUTHORITY CALLED UPON TO ACQUIRE THIS LAND, THE ADMINISTRATION MAY CONFINE ITSELF TO PROCEEDING, IN THE FIRST INSTANCE IN THE FIRST INSTANCE, THE ADMINISTRATION MAY CONFINE ITSELF TO ACQUIRING THE LAND INSTEAD OF PURSUING THE TWO OPERATIONS SIMULTANEOUSLY, WHEN IT APPEARS THAT, AT THE DATE OF THE OPENING OF THE ENQUIRY PRIOR TO THE DECLARATION OF PUBLIC UTILITY, THE STUDY OF THE PROGRAMME OF WORKS AND STRUCTURES HAS NOT BEEN SUFFICIENTLY ADVANCED IN THE ABSENCE OF THE NECESSARY ELEMENTS; THAT IN SUCH A CASE THE INVESTIGATION FILE MAY INCLUDE ONLY THE DOCUMENTS REQUIRED BY ARTICLE 1, PARAGRAPH II OF THE DECREE OF 6 JUNE 1959;
CONS. THAT IT APPEARS FROM THE DOCUMENTS IN THE FILE THAT ON THE DATE OF 23 SEPTEMBER 1967, WHEN THE PREFECTORAL ORDER WAS ISSUED OPENING THE INQUIRY PRESCRIBED FOR THE DECLARATION OF PUBLIC UTILITY OF THE ACQUISITION OF THE BUILDINGS NECESSARY FOR THE CREATION OF THE NEW TOWN OF LILLE EAST, THE ADMINISTRATION ONLY HAD A FIRST OUTLINE OF THE DEVELOPMENT AND TOWN PLANNING SECTOR PLAN APPLICABLE TO THE NEW TOWN; THAT, IN PARTICULAR, NEITHER THE UNIVERSITY ESTABLISHMENTS WHICH IT IS TO INCLUDE, NOR THE ROAD INTENDED TO SERVE IT, HAD BEEN THE SUBJECT OF PRECISE STUDIES AS TO THEIR LOCATION AND CHARACTERISTICS; THAT THE ADMINISTRATION WAS THUS NOT IN A POSITION TO PRESENT ON THE ABOVE-MENTIONED DATE A GENERAL PLAN OF THE WORKS AS WELL AS THE CHARACTERISTICS OF THE MOST IMPORTANT WORKS; THAT, CONSEQUENTLY, IT COULD, AS IT DID, CONFINE ITSELF TO ACQUIRING THE NECESSARY LAND AND WAS CONSEQUENTLY ABLE LEGALLY TO INCLUDE IN THE FILE FOR THE ENQUIRY PRIOR TO THE DECLARATION OF PUBLIC UTILITY ONLY THE DOCUMENTS REQUIRED BY ARTICLE 1 PARAGRAPH II OF THE ABOVE-MENTIONED DECREE OF 6 JUNE 1959;
CONS. THAT IT FOLLOWS FROM THE FOREGOING THAT THE ADMINISTRATIVE COURT WAS WRONG TO BASE ITSELF ON THE ABSENCE, IN THE ENQUIRY FILE, OF CERTAIN DOCUMENTS REQUIRED BY PARAGRAPH A OF ARTICLE 1 OF THAT DECREE IN ORDER TO ANNUL, AS BEING BASED ON AN IRREGULAR PROCEDURE, THE ABOVEMENTIONED ORDER OF THE MINISTER FOR EQUIPMENT AND HOUSING;
WHEREAS, HOWEVER, IT IS FOR THE CONSEIL D’ETAT, WHICH IS SEIZED OF THE WHOLE DISPUTE BY THE DEVOLVING EFFECT OF THE APPEAL, TO EXAMINE THE OTHER PLEAS RAISED BY THE “FEDERATION DE DÉFENSE DES PERSONNES CONCERNES PAR LE PROJET ACTUELLEMENT DENOMME VILLE NOUVELLE EST”;
ON THE COMPETENCE OF THE MINISTER OF EQUIPMENT AND HOUSING TO DECLARE THE PUBLIC UTILITY OF THE OPERATION :
– CONS. THAT IT FOLLOWS FROM THE PROVISIONS OF ARTICLE 2 OF THE ORDER OF 23 OCTOBER 1958 AND ARTICLE 1 OF DECREE NO. 59-680 OF 19 MAY 1959 THAT THE MINISTER FOR EQUIPMENT AND HOUSING WAS COMPETENT TO DECLARE THE ACQUISITION OF THE LAND NECESSARY FOR THE CREATION OF THE NEW TOWN TO BE IN THE PUBLIC INTEREST ONCE THE OPINION OF THE INVESTIGATING COMMISSIONER WAS FAVOURABLE; THAT, IF, ACCORDING TO THE SAID ARTICLE 1 OF THE DECREE OF 19 MAY 1959, THE CONSTRUCTION OF A MOTORWAY MUST IN ALL CASES BE DECLARED TO BE IN THE PUBLIC INTEREST BY DECREE OF THE COUNCIL OF STATE, THE PLEA THAT SUCH A ROAD APPEARS IN THE PLANS DRAWN UP FOR THE NEW TOWN LACKS IN FACT; THAT, IF PART OF THE LAND TO BE ACQUIRED IS INTENDED FOR HIGHER EDUCATION ESTABLISHMENTS, NO LEGISLATIVE OR REGULATORY PROVISION REQUIRES THAT THE DECREE DECLARING THIS ACQUISITION TO BE IN THE PUBLIC INTEREST BE SIGNED BY THE MINISTER OF NATIONAL EDUCATION;
ON THE INVESTIGATION PROCEDURE: – CONS. THAT ARTICLE 2 OF THE DECREE OF 6 JUNE 1959, ACCORDING TO WHICH “THE PREFECT SHALL DESIGNATE BY ORDER A COMMISSIONER OF INQUIRY OR A COMMISSION OF INQUIRY”, LEAVES THIS AUTHORITY FREE TO CHOOSE ONE OR THE OTHER FORMULA; THAT THE PLAINTIFF FEDERATION IS NOT, THEREFORE, ENTITLED TO MAINTAIN THAT, BECAUSE OF THE IMPORTANCE OF THE OPERATION, A COMMISSION SHOULD HAVE BEEN DESIGNATED;
CONS. IT IS CLEAR FROM THE DOCUMENTS IN THE FILE THAT THE PROVISIONS OF ARTICLE 2 OF THE DECREE OF 6 JUNE 1959 CONCERNING THE PUBLICATION OF THE ORDER ORDERING THE ENQUIRY WERE COMPLIED WITH; NO LEGISLATIVE OR REGULATORY PROVISION STIPULATES THAT THE ENQUIRY COMMISSIONER’S REPORT, WHICH, ACCORDING TO ARTICLES 8 AND 20 OF THE DECREE, IS TO BE FORWARDED TO THE PREFECT OR SUB-PREFECT, MUST BE COMMUNICATED TO THE PERSONS CONCERNED BY THE EXPROPRIATION PROCEDURE;
CONS. THAT IT DOES NOT EMERGE FROM THE DOCUMENTS IN THE FILE THAT, AS THE PLAINTIFF FEDERATION MAINTAINS, THE EVALUATION OF THE COST OF THE LAND ACQUISITIONS ATTACHED TO THE INVESTIGATION FILE WAS AFFECTED BY A SERIOUS INACCURACY;
ON THE PUBLIC UTILITY OF THE OPERATION: – CONS. THAT AN OPERATION CAN ONLY BE LEGALLY DECLARED TO BE IN THE PUBLIC INTEREST IF THE DAMAGE TO PRIVATE PROPERTY, THE FINANCIAL COST AND ANY SOCIAL INCONVENIENCE IT ENTAILS ARE NOT EXCESSIVE IN RELATION TO THE INTEREST IT PRESENTS;
CONS. THE DOCUMENTS IN THE FILE SHOW THAT THE DEVELOPMENT OF THE AREA TO WHICH THE DECLARATION OF PUBLIC UTILITY RELATES WAS DESIGNED IN SUCH A WAY THAT THE UNIVERSITY BUILDINGS TO BE ERECTED THERE ARE NOT SEPARATED FROM THE SECTORS RESERVED FOR HOUSING; THAT THE ADMINISTRATION JUSTIFIES HAVING HAD TO INCLUDE IN THIS AREA A CERTAIN NUMBER OF PLOTS OF LAND CONTAINING BUILDINGS WHICH WILL HAVE TO BE DEMOLISHED IN ORDER TO ENSURE SUCH A DEVELOPMENT; THAT, UNDER THESE CONDITIONS, AND TAKING INTO ACCOUNT THE IMPORTANCE OF THE PROJECT AS A WHOLE, THE FACT THAT ITS EXECUTION IMPLIES THE DISAPPEARANCE OF A HUNDRED OR SO DWELLINGS IS NOT SUCH AS TO DEPRIVE THE OPERATION OF ITS PUBLIC UTILITY CHARACTER;
ON THE MISUSE OF POWERS :
– CONS. THAT THE ALLEGED MISUSE OF POWERS IS NOT ESTABLISHED;
ANNULMENT OF THE JUDGMENT; REJECTION OF THE APPLICATION SUBMITTED BY THE “FEDERATION FOR THE DEFENCE OF PERSONS CONCERNED BY THE PROJECT CURRENTLY KNOWN AS VILLE NOUVELLE EST
CE, 20 octobre 1972, Sainte-Marie-de-l’Assomption, req. n° 78829.
PETITION OF THE SOCIETE CIVILE SAINTE-MARIE DE L’ASSOMPTION SEEKING THE ANNULMENT FOR EXCESS OF POWER OF THE DECREE OF 19 JULY 1969 BY WHICH THE PRIME MINISTER DECLARED OF PUBLIC UTILITY THE CONSTRUCTION IN THE COMMUNE OF NICE OF THE SECTION CALLED “AUTOROUTE NORD DE NICE” OF THE MOTORWAY A-8 AS WELL AS OF THE SLIP ROAD CONNECTING THIS SECTION OF MOTORWAY TO THE DEPARTMENTAL ROAD N° 19 AND OF THE INTERCHANGE “NICE-EST” ;
HAVING REGARD TO THE ORDER OF 23 OCTOBER 1958 AND THE DECREE OF 6 JUNE 1959; THE ORDER OF 31 JULY 1945 AND THE DECREE OF 30 SEPTEMBER 1953; THE GENERAL TAX CODE;
CONSIDERING THAT UNDER THE TERMS OF ARTICLE 1 OF THE DECREE OF 6 JUNE 1959 RELATING TO THE PROCEDURE PRIOR TO A DECLARATION OF PUBLIC UTILITY AND APPLICABLE IN THIS CASE, “THE INVESTIGATION FILE MUST INCLUDE: 1° WHEN THE DECLARATION OF PUBLIC UTILITY IS REQUESTED WITH A VIEW TO CARRYING OUT WORKS OR STRUCTURES… 2° A SITE PLAN; 3° A GENERAL PLAN OF THE WORKS”;
CONS. THAT IT IS CLEAR FROM THE DOCUMENTS IN THE FILE THAT THE FILE SUBMITTED BY THE PREFECTORAL ORDER OF 28 OCTOBER 1968 TO THE ENQUIRY PRIOR TO THE DECLARATION OF PUBLIC UTILITY FOR THE CONSTRUCTION OF THE NORTH NICE MOTORWAY INCLUDED A LOCATION PLAN AT A SCALE OF 1:200,000 AND A GENERAL PLAN OF THE WORKS AT A SCALE OF 1:20,000; THAT THE LATTER PLAN, THE PURPOSE OF WHICH IS TO ENABLE THE INTERESTED PARTIES TO KNOW THE NATURE AND EXTENT OF THE PLANNED WORKS, WAS NOT REQUIRED TO DETERMINE PRECISELY, IN THE STATE OF THE STUDIES CARRIED OUT BY THE ADMINISTRATION, THE PLOTS OF LAND TO BE EXPROPRIATED; THAT, CONSEQUENTLY, THE PLEA ALLEGING IRREGULARITY IN THE COMPOSITION OF THE FILE SUBMITTED TO THE ENQUIRY CANNOT BE ACCEPTED;
CONS. ON THE OTHER HAND, IT IS CLEAR FROM THE DOCUMENTS IN THE FILE THAT THE PLEAS ALLEGING NON-COMPLIANCE WITH THE PROVISIONS OF ARTICLE 2 OF THE DECREE OF 6 JUNE 1959 RELATING TO THE PUBLICITY OF THE ORDER ORDERING THE ENQUIRY AND TO THE DURATION OF THE ENQUIRY ARE IN FACT LACKING;
ON THE PUBLIC UTILITY OF THE OPERATION: – CONS. THAT AN OPERATION MAY LEGALLY BE DECLARED TO BE IN THE PUBLIC INTEREST ONLY IF THE DAMAGE TO PRIVATE PROPERTY, THE FINANCIAL COST AND POSSIBLY THE SOCIAL INCONVENIENCE OR THE DAMAGE TO OTHER PUBLIC INTERESTS WHICH IT ENTAILS ARE NOT EXCESSIVE IN RELATION TO THE INTEREST WHICH IT PRESENTS;
CONS. THAT THE WORKS WHOSE DECLARATION OF PUBLIC UTILITY IS BEING CONTESTED INVOLVE, ON THE ONE HAND, THE CONNECTION BY A MOTORWAY BYPASSING THE CONURBATION OF NICE TO THE NORTH BETWEEN THE WESTERN ACCESS MOTORWAY TO CANNES AND PARIS AND THE EASTERN MOTORWAY TO MENTON AND, ON THE OTHER HAND, THE CONNECTION BETWEEN THE NEW MOTORWAY AND THE URBAN ROAD NETWORK OF NICE AS WELL AS WITH THE SOUTH-NORTHERN TRAFFIC FLOWS BY MEANS, IN PARTICULAR, OF A SLIP ROAD CONNECTING THE MOTORWAY TO DEPARTMENTAL ROAD NO. 19 AND THE “NICE-EAST” INTERCHANGE; THAT THIS OPERATION ENTAILS THE EXPROPRIATION OF LAND BELONGING TO THE SAINTE-MARIE PSYCHIATRIC HOSPITAL, A PRIVATE ESTABLISHMENT MANAGED BY THE SOCIETE CIVILE SAINTE-MARIE DE L’ASSOMPTION, ACTING AS A PUBLIC ESTABLISHMENT OF THE ALPES-MARITIMES DEPARTMENT, AND HAS THE EFFECT OF SURROUNDING IT WITH HIGH-SPEED ROADS TO THE NORTH, EAST AND WEST; THAT IT FOLLOWS FROM THE OBSERVATIONS OF THE MINISTER FOR PUBLIC HEALTH AND SOCIAL SECURITY THAT THIS HOSPITAL IS “THE ONLY ESTABLISHMENT WITH A PSYCHIATRIC VOCATION INTENDED TO MEET, FOR MANY YEARS TO COME, THE CONSIDERABLE NEEDS OF THE ENTIRE DEPARTMENT OF THE ALPES-MARITIMES”;
CONS. THAT THE PUBLIC UTILITY ATTACHED TO THE CONSTRUCTION OF THE MOTORWAY IS NOT SERIOUSLY DISPUTED BY THE PLAINTIFF CIVIL COMPANY; THAT IT IS NOT FOR THE COUNCIL OF STATE RULING IN THE CONTENTIOUS CASE TO ASSESS THE APPROPRIATENESS OF THE ROUTE CHOSEN; THAT, ALTHOUGH THIS WORK ENTAILS THE EXPROPRIATION OF LAND BELONGING TO THE SAINTE-MARIE DE L’ASSOMPTION PSYCHIATRIC HOSPITAL AND THE REMOVAL OF A BUILDING, THE INCONVENIENCES RESULTING FROM IT FOR THE HOSPITAL ARE NOT EXCESSIVE OWING, IN PARTICULAR, TO THE UNDERGROUND CONSTRUCTION OF PART OF THIS ROAD;
CONS. ON THE OTHER HAND, IT IS CLEAR FROM THE INVESTIGATION THAT THE EXISTENCE OF THE LINK ROAD TO DEPARTMENTAL ROAD NO. 19 AND THE OPERATION OF THIS STRUCTURE, IN THE CONDITIONS IN WHICH THEY WERE PLANNED ON THE DATE OF THE CONTESTED DECREE, WOULD SERIOUSLY HARM THE CONDITIONS OF HOSPITALISATION; THAT, MOREOVER, THE CONSTRUCTION OF THE “NICE-EST” INTERCHANGE WOULD ENTAIL THE EXPROPRIATION OF ALL THE GREEN SPACES OF THE HOSPITAL;
CONS. THAT THE CIVIL COMPANY “SAINTE-MARIE DE L’ASSOMPTION” MAINTAINS, WITHOUT BEING CONTRADICTED, THAT THE NUMBER OF PATIENTS IN THE HOSPITAL GREATLY EXCEEDS ITS REGULATORY CAPACITY; THAT THE MINISTER FOR PUBLIC HEALTH AND SOCIAL SECURITY, ALTHOUGH IT DOES NOT APPEAR FROM THE DOCUMENTS IN THE FILE THAT HE WAS CONSULTED WHEN THE PLAN FOR THE WORK WAS DRAWN UP, POINTS OUT THAT THE PLANNED OPERATION “WOULD SERIOUSLY AFFECT THE FUNCTIONING AND FUTURE OF THE HOSPITAL”;
CONS. THAT, IN THESE CIRCUMSTANCES, DESPITE THE INTEREST FOR ROAD TRAFFIC THAT THE TWO WORKS IN QUESTION WOULD PRESENT, THE APPLICANT COMPANY IS NOT IN A POSITION TO TAKE ANY ACTION, THE APPLICANT COMPANY IS ENTITLED TO MAINTAIN THAT THE SERIOUS DISTURBANCE CAUSED BY THEIR EXISTENCE AND OPERATION TO THE TREATMENT OF MENTAL PATIENTS IN THE DEPARTMENT OF THE ALPES-MARITIMES WOULD BE DETRIMENTAL TO THE GENERAL INTEREST, WITH THE EFFECT OF VITIATING THE DECLARATION OF PUBLIC UTILITY OF THE LINK ROAD TO DEPARTMENTAL ROAD NO. 19 AND THE “NICE-EST” INTERCHANGE AND TO SEEK, ON THIS GROUND, ITS ANNULMENT;
ANNULMENT OF THE DECREE INSOFAR AS IT DECLARES THE CONSTRUCTION OF THE LINK ROAD FROM THE NORTHERN MOTORWAY OF NICE TO DEPARTMENTAL ROAD NO. 19 AND THE “NICE-EST” INTERCHANGE TO BE IN THE PUBLIC INTEREST; REJECTION OF THE REMAINDER.
Margaux Frayssinet, « La théorie du bilan à l’épreuve du droit de l’environnement », Revue juridique de l’environnement, 2021/2 (Volume 46), p. 283-299. URL : https://www.cairn.info/revue-juridique-de-l-environnement-2021-2-page-283.htm
Thus, in the face of the need for public utility projects, the environmental interest takes a back seat. The reason of State imposes itself. Developed as part of government programmes, certain ‘public necessity’ projects benefit from an ‘irrefutable presumption of legality’, such as road and motorway networks, national defence, the construction of high-speed lines, international airports, etc. Necessity is the law [and] cannot be weighed up against any disutility, since it transcends any disadvantages. Nuclear policy remains the perfect example.
Faced with the obvious weakness of the environmental interest, the hope of a renewal and a “greening” of the balance sheet theory has been entirely focused on the interpretation, by the judges, of the Charter of the Environment and in particular of its articles 5 and 6.
CE, Sect. 19 november 2020, Grande-Synthe, n° 427301 : “the case of the Century”
Conseil d’État, CHR., 15 april 2021, France Nature Environnement, n°425424
10. It appears from the table annexed to Article R. 122-2 of the Environmental Code shows that the thresholds below which projects are exempted from environmental assessment are mainly based on a criterion relating to their size, such as the size or capacity of the planned installation, even though, as stated in point 7, the question of whether a project is likely to have significant effects on the environment and human health may also depend on other characteristics of the project, such as its location, as expressly provided for in Annex III of the Directive of 13 December 2011 to which Article L. 122-1 of the Environmental Code. Consequently, by not providing for an environmental assessment to be carried out, where this appears necessary, of projects which, although they are below the thresholds it sets, are likely to have significant effects on the environment or human health, in particular because of their location, the contested decree fails to have regard to the objectives of the directive of 13 December 2011. It follows, without there being any need to refer the matter to the Court of Justice of the European Union for a preliminary ruling, that the applicant associations are entitled to seek annulment of the contested decree in so far as it excludes certain projects from any environmental assessment solely on the basis of their size, without including provisions allowing projects which, by reason of other characteristics such as their location, are likely to have a significant impact on the environment or human health to be subject to an environmental assessment.