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Decision no. 2011-201 QPC of 2 DECEMBER 2011

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D. and family [Alignment Plan]

On 28 September 2011 the Constitutional Council, in the conditions provided for by Article 61-1 of the Constitution, received an application for a priority preliminary ruling on the issue of constitutionality raised by the Cour de Cassation (third civil chamber, decree no. 1236 of 28 September 2011) on behalf of Ms Christiane D., née V., and Messrs JeanPierre and Christophe D. relating to Articles 4 and 5 of the Edict of 16 December 1607, which subsequently became Articles L. 1121 and L. 1122 of the Roadway Code.

THE CONSTITUTIONAL COUNCIL,

Having regard to the Constitution;

Having regard to Ordinance no. 581067 of 7 November 1958 as amended, concerning organic law on the Constitutional Council;

Having regard to the Roadway Code;

Having regard to the Code on Expropriation in the Public Interest;

Having regard to the Regulation of 4 February 2010 on the procedure applicable before the Constitutional Council with respect to applications for priority preliminary rulings on the issue of constitutionality;

Having regard to the observations made on behalf of the applicants by SCP MonodColin, Attorneys at the Conseil d'État and the Cour de Cassation, registered on 20 October and 4 November 2011;

Having regard to the observations made on behalf of the municipality of Salers by SCP Vincent-Ohl, Attorneys at the Conseil d'État and the Cour de Cassation, registered on 19 October 2011;

Having regard to the observations of the Prime Minister, registered on 20 October 2011;

Having regard to the documents produced and appended to the case files;

Having heard Alain Monod, Esq. on behalf of the applicant and Mr Xavier Pottier, appointed by the Prime Minister, at the public hearing on 22 November 2011;

Having heard the Rapporteur;

1. Considering that pursuant to Article L. 1121 of the Roadway Code, as in force prior to Law no. 2010788 of 12 July 2010 setting out the national commitment for the environment: "The alignment is the decision adopted by the administrative authority as to the limit of the public road on the rights of local residents. It shall be determined by alignment plan or by an individual alignment.

"The alignment plan, to which a cadastral plan shall be annexed, shall be adopted after a public inquiry and determine the limit between the public road and local properties.

"The individual alignment shall be served on the owner in accordance with the alignment plan, if applicable. If there is no such plan, it shall specify the limit of the public road on the right of the local property";

2. Considering that Article L. 1122 of the Roadway Code: "The publication of an alignment plan automatically entitles the public owner of the public road to use the land of undeveloped properties subject to the limits specified in that plan.

"The land of properties which have been built upon on the date of publication of the alignment plan shall be allocated to the public owner of the road after the building has been demolished.

"Unless agreed otherwise, upon transfer of ownership, the indemnity shall be set and paid according to the procedures applicable to expropriations";

3. Considering that, according to the applicants, in first permitting the administration to benefit from a compulsory purchase of private property by publication of an alignment plan determined unilaterally without any ruling that it is necessary in the public interest and without entitlement to any prior indemnity, Articles L. 1121 and L. 1122 of the Roadway Code violate the right of ownership guaranteed by Articles 2 and 17 of the 1789 Declaration of the Rights of Man and the Citizen; that secondly in not providing for any effective remedy, Articles L. 1121 and L. 1122 of the Roadway Code violate the requirement to respect the rights of the defence and the right to effective judicial relief according to Article 16 of the Declaration;

WITH RESPECT TO THE RIGHT OF OWNERSHIP:

4. Considering that property is included under the human rights enshrined by Articles 2 and 17 of the 1789 Declaration; that pursuant to Article 17: "Since property is an inviolable and sacred right, no one shall be deprived thereof except where public necessity, legally determined, shall clearly demand it, and then only on condition that the owner shall have been previously and equitably indemnified"; that even if there is no violation of the right to property, it nonetheless follows from Article 2 of the 1789 Declaration that the limits placed on its exercise must be justified by a reason of general interest and be proportionate with the objective pursued;

5. Considering first that according to the case law of the Conseil d'État on the contested provisions, the alignment plan only entitles the public owner to use the properties which it designates in relation to minor adjustments of the route of the public road; that it does not permit significant expansions or, a fortiori, the opening of new routes; that it cannot result in a significant encroachment on rights over immovable property; that accordingly, the alignment does not fall within the scope of Article 17 of the 1789 Declaration;

6. Considering secondly that the alignment plan seeks to improve road safety and to facilitate traffic conditions; that accordingly it meets with a requirement of general interest;

7. Considering that according to the contested provisions the alignment plan is to be determined after a public inquiry; that according to the third subparagraph of Article L. 1122, unless agreed otherwise, upon transfer of ownership, the indemnity shall be set and paid according to the procedures applicable to expropriations; that accordingly, Article L. 1313 of the Code on Expropriation in the Public Interest, which provides that the indemnity must cover the full amount of direct, material and certain harm, is applicable to the determination of the compulsory purchase indemnity resulting from the alignment;

8. Considering nonetheless that according to the second subparagraph of Article L. 1122 of the Roadway Code, where the alignment plan includes developed land, the transfer of ownership shall follow the demolition of the building; that until transfer occurs, the land is subject to an easement of restraint, as provided for under Article L. 1126 of the Roadway Code, which prohibits as a matter of principle all improvement work; that the easement accordingly requires the owner to bear the gradual deterioration of the property built upon for an indefinite period of time; that the enjoyment of the building is therefore limited by this prohibition; that, under these conditions, the encroachment upon the conditions applicable to the exercise of ownership rights is disproportionate with the objective pursued if the indemnity due upon transfer of ownership does not compensate for the damage suffered as a result of the easement of restraint; that, subject to this reservation, the second and third subparagraphs of Article L. 1122 of the Roadway Code are compatible with Article 2 of the 1789 Declaration;

9. Considering that the remainder of Articles L. 1121 and L. 1122 of the Roadway Code do not violate the conditions applicable to the exercise of ownership rights in a manner that is disproportionate with the goal pursued;

WITH RESPECT TO THE RIGHT TO EFFECTIVE JUDICIAL RELIEF:

10. Considering that the contested provisions do not infringe any right of the owner to challenge the alignment plan or the easement of restraint; that the challenge alleging the violation of Article 16 of the 1789 Declaration is groundless;

11. Considering that the contested provisions are not contrary to any other right or freedom guaranteed by the Constitution;

HELD:

Article 1 Subject to the reservation set out in recital 8, the second and third subparagraphs of Article 112-2 of the Roadway Code are constitutional.

Article 2. Article L. 1121 of the Roadway Code, as in force prior to Law no. 2010788 of 12 July 2010 setting out the national commitment for the environment, and the remainder of Article L. 1122 of the same Code are constitutional.

Article 3. – This decision shall be published in the Journal Officiel of the French Republic and notified in the conditions provided for under Article 23 11 of the Ordinance of 7 November 1958 referred to hereinabove.

Deliberated by the Constitutional Council in its session on 1 December 2011, sat on by: Mr JeanLouis DEBRÉ, President, Mr Jacques BARROT, Ms Claire BAZY MALAURIE, Mr Guy CANIVET, Mr Michel CHARASSE, Mr Renaud DENOIX de SAINT MARC, Ms Jacqueline de GUILLENCHMIDT, Mr Hubert HAENEL and Mr Pierre STEINMETZ.

Announced on 2 December 2011.

Journal officiel of 3 December 2011, p 20497 (@ 81)