On 17 October 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 Conseil d'État (decision no. 351010 of 17 October 2011) on behalf of the company GRANDE BRASSERIE PATRIE SCHUTZENBERGER, raising the conformity of Article 621-25, the first and second subparagraphs of Article L. 621-27 and Article 621-29 of the Heritage Code with the rights and freedoms guaranteed by the Constitution.
THE CONSTITUTIONAL COUNCIL,
Having regard to the Constitution;
Having regard to Ordinance no. 58−1067 of 7 November 1958 as amended, concerning basic law on the Constitutional Council;
Having regard to the Heritage Code ;
Having regard to the Town Planning Code;
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 applicant by SCP J.−M. Defrénois et Levis, Attorneys at the Conseil d'État and the Cour de Cassation, registered on 7 and 17 November 2011;
Having regard to the observations of the Prime Minister, registered on 8 November 2011;
Having regard to the documents produced and appended to the case files;
Having heard Esq. Jean−Marie Defrénois on behalf of the applicant and Mr Xavier Pottier, appointed by the Prime Minister, at the public hearing on 6 December 2011;
Having heard the Rapporteur;
Considering that pursuant to Article L. 621-25 of the Heritage Code: "Any properties or parts of properties which do not justify an application for immediate classification as historical monuments but are of historical or artistic interest that is sufficient in order to make their preservation desirable may be registered as historical monuments at any time by decision of the administrative authorities.
"Any developed or undeveloped property located within the field of visibility of a property that has already been classified or registered as a historical monument may also be registered under the same conditions";
Considering that pursuant to the first and second subparagraphs of Article L. 621-27 of that Code: "Registration as a historical monument shall be notified to the owners and shall place them under an obligation to refrain from carrying out any modification to the property or the registered part of the property unless they have provided at least four months' notice of their intention to the administrative authorities and specified the work which they propose to carry out.
"If the constructions or works proposed on the properties registered as historical monuments are subject to the requirement of building consent, demolition consent, planning consent or a prior declaration of intent, the decision to grant consent or not to object may not be made without the agreement of the administrative authority responsible for historical monuments";
Considering that pursuant to Article L. 621-29 of that same Code: "The administrative authority shall be authorised to subsidise up to 40 % of the actual cost of the maintenance and repair work necessary in order to keep the properties or parts of properties registered as historical monuments";
Considering that, according to the applicant company, these provisions violate first the right to property guaranteed under Articles 2 and 17 of the 1789 Declaration of the Rights of Man and the Citizen, and secondly, since they do not provide for compensation to the owner of the properties registered as historical monuments, these provisions violate the principle of equality with regard to public burdens guaranteed under the Declaration;
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;
Considering on the one hand that the contested provisions seek to ensure protection for properties which "do not justify an application for immediate classification as historical monuments but are of historical or artistic interest that is sufficient in order to make their preservation desirable"; that to this effect they provide for a public utility easement on listed properties; that under the terms of this easement, the owner of the listed property is subject to the obligations provided for under Article L. 621−27 of the Heritage Code in relation to any work which he intends to carry out on his property; that the contested provisions, which do not result in any deprivation of ownership rights, do not fall within the scope of Article 17 of the 1789 Declaration;
Considering on the other hand that registration as a historical monument seeks to preserve historical and artistic heritage; that accordingly it meets a requirement of general interest;
Considering secondly that the decision to register a property as a historical monument must be taken on the basis of the sole consideration of the inherent characteristics of the property to be listed; that the assessment made by the administrative authority which takes this decision is subject to judicial review on the grounds of ultra vires;
Considering thirdly that according to the contested provisions, with respect to work falling within the scope of authorisations and prior declarations of intent in matters relating to town planning, the decision to grant consent or not to object may not be made without the agreement of the administrative authority responsible for historical monuments; that any other work which has the result of causing a modification to the property or the registered part of the property is subject to a simple declaration made four months before it is carried out; that if the administrative authority objects, it must initiate the procedure for classification as a historical monument, subject to judicial review by the administrative courts; that in all circumstances, ordinary maintenance or repair work are not subject to any formality; that the administrative authority has no standing to require the owner of a listed property to carry out work; that the owner remains at liberty to arrange for the intended work to be carried out by companies of his choosing, subject to the sole prerequisite of compliance with the requirements of the administrative authority, which are subject to judicial review on the grounds of ultra vires; that the owner may receive a state subsidy in order to finance part of this work;
Considering that it follows from all of the above that the contested provisions do not impose any restriction on the conditions applicable to the exercise of rights of ownership that are disproportionate to the goal pursued; that this restriction does not accordingly violate Article 2 of the 1789 Declaration; that these provisions do not result in any breach of the principle of equality in the discharge of public burdens;
Considering that the contested provisions are not contrary to any other right or freedom guaranteed by the Constitution;
Article 1.- Article L. 621−25, the first and second subparagraphs of Article L. 621−27 and Article L. 621−29 of the Heritage Code are constitutional.
Article 2.- 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 of 15 December 2011, sat on by: Mr. Jean−Louis DEBRÉ, President, Mr. Jacques BARROT, Mrs Claire BAZY MALAURIE, Mr. Guy CANIVET, Mr. Renaud DENOIX de SAINT MARC, Mrs Jacqueline de GUILLENCHMIDT, Mr. Hubert HAENEL and Mr. Pierre STEINMETZ.
Announced on 16 December 2011.
Journal officiel of 17 December 2011, p 21370 (@ 114)