The procedure for expropriation in the public interest is that by which the State may, in the public interest, and subject to fair and prior compensation, compel any person expropriated to relinquish ownership of a building or a right in real property to the State[1]. It applies both to land subject to the rules of private ownership and to the dependencies of the National Estate. This mechanism, which is monitored by the authorized State expropriating service, applies to both State land and private real estate[2].

In the absence of an amicable agreement at the end of the administrative phase, the competent court is responsible for issuing the expropriation order. Similarly, in the event of inertia on the part of the expropriator, the expropriated party may obtain a waiver order.

Thus, it is the successful completion of the administrative phase that makes it possible to avoid, in particular, the judicial phase and to reduce the length of the procedure.

Within the framework of the ordinary law procedure, this phase is organised around 2 stages, consisting of the conciliation report (II) preceded by the Decree declaring that it is in the public interest (I).

I – ON THE DECREE DECLARING THE PUBLIC INTEREST

It can be presented through its advertising (B) and its characters (A).

A – ON ITS CHARACTERS

The declaration of public utility is the trigger for the expropriation procedure[3]. Contrary to the solution provided for by French law[4], the public utility is declared, obligatorily, by a Presidential Decree establishing and declaring the public utility of the planned operation as well as designating the buildings affected by the procedure. This Act, which designates the area concerned, is taken on the basis of a joint report by the Minister responsible for finance and the Minister responsible for the project to be carried out.

In practice, the public interest, which is not defined, may relate, in particular, to buildings required for projects of general interest relating, for example, to the execution of public works[5], the installation of State services, public health, internal security, territorial defence, forest conservation, the exploitation of mineral substances, the execution of master plans for town planning, housing estates, development and development. It shall be proved under the supervision of the competent court. It shall be assessed on a case-by-case basis in the absence of a normative framework. To this end, French case law applies the “balance sheet theory” using the “cost-benefit” method. It considers that a transaction cannot be declared to be in the public interest, in particular, when the aim sought is mainly financial, the main purpose is to promote particular interests or expropriation is not necessary[6].

This declaration of public utility must be preceded by a preliminary investigation. This must allow, in particular, the determination of the plots of land to be expropriated and the estimation of the compensation to be paid to the occupants. The opening of this inquiry, known as “de commodo et incommodo”, is prescribed by the Directorate of Registration, Estates and Stamps.  The file of the investigation is kept by the Receiver of Estates territorially competent. He is appointed the “Commissaire-Enquêteur”. It is announced to the public by all usual means of publicity.

During its duration, which is fixed at a minimum of 8 days and a maximum of one month[7], a file including the indicative project of the works or operations to be declared as being of public utility and a plan of the site or the necessary zone is deposited in the offices of the Regional Inspectorate of Domains. It may be consulted there by any interested person. Comments may be made by the latter.

An opinion is issued by the Commission for the Control of State Operations on the amount of compensation to be proposed and the appropriateness of resorting to the emergency procedure. It is applicable to all expropriation procedures for reasons of public utility, unlike the procedure for environmental impacts. It ends with the investigation report drawn up by the Investigating Commissioner, which reports, in particular, on the observations recorded or their absence that may lead to the registration and withdrawal of the National Domain lands concerned[8].

In principle, at the end of the investigation, the above-mentioned Decree declaring the project to be in the public interest is issued on the basis of a joint report by the Minister of Finance and the Minister responsible for the project[9]. It shall set the period during which the expropriation must be carried out. This period may not exceed three years. It may be extended by decree for a period not exceeding two years.

Where it also constitutes an Act of transferability[10], the decree declaring the public interest shall apply, in particular, to the portion of the building included in the work or indispensable for its execution. In such case, it shall be entered in the registers of the Land Registry. No modification likely to increase the value of the property concerned may be made as from this entry. In other words, such property may not be alienated or encumbered with rights, on pain of nullity of the agreement.

Finally, this Administrative Act, like the decree of abandonment referred to below and other arbitrary administrative acts allocating land[11], may be challenged on grounds of misuse of power within two months from its publication or notification. In the event of rejection of a complaint, the time limit for appeal shall run from the day of notification of the explicit decision to reject the complaint and, at the latest, from the expiry of the period of 2 months following the silence kept for more than 2 months. Before contesting that decision, the persons concerned may, within the time-limit for lodging an appeal on grounds of misuse of powers, submit a hierarchical or ex gratia administrative appeal seeking to have it set aside. The time limit for appeal and the appeal shall have suspensive effect[12]. Failure to appeal or rejection of an appeal shall make it possible to open the conciliation stage.

B – ON THE PUBLICITY OF THE ACT OF TRANSFERABILITY

The Deed of Transferability[13] or the Decree of Declaration of Public Utility must be entered in the registers of the Land Registry. No modification likely to increase the value of the property concerned may be made as from this entry. In other words, such property may not be alienated or encumbered with rights, under penalty of nullity of the agreement.

After its registration, the expropriator shall notify the owners of the property and holders of real rights concerned or their representatives. Within a period of 15 days from the said notification, the latter shall be bound to make known the holders of personal or real rights of any kind over their real property. Failing this, they alone shall remain liable to such holders.

The expropriator shall request the Land Registry to deliver to the Property Registry a statement of the registrations, charges or real rights encumbering the real property designated in this Act. The expropriator shall draw up an inventory of fixtures with the owners and shall gather all documents and information likely to enlighten the Conciliation Commission.

At the expiry of the above-mentioned period of 15 days and before one year at the latest, the expropriator shall invite the parties concerned to appear in person or by proxy before the Conciliation Commission responsible for drawing up the minutes of the amicable settlement[14].

II – ON CONCILIATION

It refers to the minutes (B) drawn up by the Conciliation Commission (A).

A – ON COMMISSION

Conciliation is the second stage of the administrative phase and is carried out by a Commission composed as follows:

-President ……………………….the Governor of the Region or his Representative;

Members :

– a Representative of the Public Works Department or the Agriculture Department or both if applicable ;

– a representative of the Domain Service;

– a Representative of the Municipal Council when the property is located within the territory of a Commune;

– a Representative of the Regional Council when the property is located outside a Commune’s territory[15].

The Department of Domains is responsible for convening this Commission. It provides its secretariat, draws up its minutes and indicates the amount of expropriation compensation offered to the owner or right holder concerned[16].

In the case of a procedure for the registration in the name of the State of lands in the National Domain, this Commission is composed of :

-President …………………………………………………the Prefect or his Representative;

Members:

– a Representative of the Local Services of the Ministry of Public Works ;

– a Representative of the Local Services of the Ministry of Rural Economy;

– a Representative of the Domain Service;

– 2 Representatives of the communities, associations or organizations concerned.

B – ON THE MINUTES OF CONCILIATION

The Conciliation Commission shall ascertain or seek to achieve the agreement of the parties on the amount of compensation. It shall be calculated on the basis of the consistency of the property on the date of the inventory report[17]. It shall be fixed in accordance with the practice of compensation. It shall be estimated at the earned value. The earned value shall take account of the intrinsic value of the property in question and the added value incorporated therein. The compensable gain, which corresponds to the general increase in the cost of goods and services resulting from monetary depreciation[18]. This estimate is the source of most of the disagreements between the expropriator and the expropriated persons, especially with regard to the expropriation of agricultural land in the National Domain used during the winter period[19].

At the end, minutes recording the agreement reached, in particular on the amount of compensation, shall be drawn up and signed by the President of the Commission, each of its members and the parties. In addition, the minutes shall indicate, in particular, the comments of the interested parties, the names of the beneficiaries, the amount of compensation proposed and the impact of the implementation of the project on the production possibilities of the expropriated persons.

The minutes, which are treated as a deed of amicable transfer, constitute an authentic instrument and are authentic until forged. Like the expropriation order, it extinguishes on its date all real or personal rights relating to the expropriated property under the resolutory condition of payment of the final compensation. In this case, the expropriation indemnity is subrogated to the building. These immovables, governed by land ownership law, are subject to transfer in the name of the State or to an amending entry in the Land Register.

With regard to land in the National Domain, on the basis of these minutes, a Decree, issued on the joint proposal of the Minister of Finance and the Minister in charge of Development, declares the area concerned to be withdrawn from use. It fixes the final amount of compensation, orders its payment or deposit and authorizes the taking possession of the said zone for the implementation of the public utility project. Such land is first registered in the name of the State following its requisition. All the rights that may exist in the disused land are extinguished by the said Decree as of its date[20].

[1] Article 4 of Law No. 76-67 as amended refers to the term “expropriator”: the National Expropriation Agency (ANER) created by Decree No. 2006-12 of 10 January 2006 and APIX, created in 2000, as the Executing Agency for certain major infrastructure projects.

[2] Articles 15 of the Constitution, 17 of the Declaration of the Rights of Man and the Citizen, 17 of the Declaration of Human Rights, 545 of the Civil Code and 1 of Law 76-67.

[3] Articles 15 of the Constitution, 17 of the Declaration of the Rights of Man and the Citizen, 17 of the Declaration of Human Rights, 545 of the Civil Code and 1 of Law 76-67.

[4] Articles R 121-1 and R 121-2 of the French Expropriation Code: public utility may be declared by Prefectoral Order, Ministerial Order or Decree in Council of State.

[5] Decree no. 2003/944 of 26 November 2003 declaring the Project to build overpasses at the Malick SY X motorway crossroads to be in the public interest…designating and declaring the registered buildings necessary for its implementation to be transferable and ordering the withdrawal of the real rights registered on the land titles belonging to the State in its right-of-way. Decree no. 2013/853 of 13 June 2013 declaring the installation of a power substation for SENELEC to be in the public interest. Decree No 2017/326 of 21 February 2017 declaring the various infrastructures built on Land Title No 183/DP to be of public utility. Decree No. 2014-968 of 19 August 2014 prescribing the registration in the name of the State of a piece of land dependent on the National Domain located in Diamniadio forming the Diamniadio Urban Development Pole with a surface area of approximately 1,644 ha and declaring it abandoned.

[6] Council of State, 28 May 1971, Ville Nouvelle Est, 10 October 1961, Consorts White, 22 October 1958, Consorts Moreau, 20 November 1974 Husband Thony and Husband Hartman.

[7] Article L 121-2 of the ECUP Code: Public utility must be declared within 12 months of the closure of the investigation (+6 months in the case of a decree by the Conseil d’Etat). After one or other of these deadlines, a new investigation must be carried out .

[8] Commodo et incommodo investigation opened following Decision No 000693/MEF/DGID/DEDT of the Director of Registration of 26 February 2010 mentioned in the Presentation Report of Presidential Decree No 2010/1070 of 13 August 2010 prescribing the registration in the name of the State of a piece of land of the National Domain located in Diamniadio, with a surface area of 80 hectares with a view to its allocation by way of lease and pronouncing its abandonment.

[9] Article 17 of the Declaration of the Rights of Man and of the Citizen of 1789, Article 545 of the Civil Code, pronounces itself in almost identical terms: “no one may be forced to transfer his or her property except for the public interest and in return for fair and prior compensation”.

[10]  Article L132-1 of the ECUP Code.

[11] Supreme Court, Judgment No 09 of 28 March 2019 annulling Decision No 16/C-DYA/2017 of 4 November 2017 and Judgment No 08 of 28 March 2019 annulling Decision No 007/COM/SAND of 1 October 2014.

[12] Articles 74 et seq. of Organic Law No. 2017-09 of 17 January 2017 on the Supreme Court

[13] Article L132-1 of the ECUP Code.

[14] Articles 9 of Law No. 76-67 and 3 of Decree No. 77-563 on the composition of the Conciliation Commission .

[15] Act III of Decentralization has, since 2013, eliminated the Regional Councils and instituted the Departmental Councils.

[16] Article 3 of Decree No. 77-563 of 3 July 1977 implementing Act No. 77-67.

[17] Article 31 of Decree No. 64-573, Commission responsible for estimating the compensation to be paid to the employees concerned in the event of the withdrawal of land from the national domain.

[18] Article 29 of Decree No. 64-573 of 30 July 1964, setting the conditions for the application of Law No. 64-46 of 17 June 1964, Decree No. 2010-439 of 6 April 2010 setting the price scale for bare land and built-up land, applicable to rent.

[19] In the implementation of the expropriation procedure on the basis of Decree 2010-1074 of the populations denounce the non-conformity between the designated zone and the expropriated agricultural lands as well as the weakness of the proposed compensations. of the village of Dougar for the benefit of the Project “Une Famille un toit” and the Company Peacock Investments.

[20] Article 34 of Law No. 2011-07 of March 30, 2011 on the Land Ownership Regime, Decree No. 2010-1074 on the requisition of registration in the name of the State of a piece of land in the National Domain, referred to above. Decree No. 2014-968 of August 19, 2014 prescribing the registration in the name of the State of a piece of land belonging to the National Domain located in Diamniadio in the Department of Rufisque forming the Diamniadio Urban Development Pole with a surface area of approximately 1,644 ha and declaring it abandoned.

Decree no. 2015-2014 of December 9, 2015 authorizing the definitive transfer to the General Delegation of the land belonging to its Private Domain in the Diamniadio Urban Development Pole’s tax base and the withdrawal of the lease rights granted by the State for reasons of public utility.

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