INTRODUCTION

 

“ Whether the tour of the sun begins or ends,

With an indifferent eye I follow him as he goes;

In a dark or pure sky whether it sets or rises,

What does the sun matter? I don't expect anything from the days»[1]

 

What if, like Lamartine, the occupant of a state-owned outbuilding had, ultimately, little to expect from the promises of the “Pinel” law of 2014?

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As a reminder, this text introduced new provisions to the General Code of Property of Public Persons, in particular an articleL.2124-32-1providing that “a business can be operated in the public domain subject to the existence of its own clientele ". Other provisions then allowed the person wishing to acquire such funds to request in advance to occupy the public domain, or provided a mechanism allowing the occupant's beneficiaries, in the event of death, to obtain an occupation authorization. identical in order to continue operating the fund. Finally, the natural public domain was, logically, excluded from the system.

 

This text naturally brought hope for the proponents of a proactive policy of economic development of the public domain, because after having set about securing the rights of the occupant, in particular with the creation of the long administrative lease by law of January 5, 1988, the legislator seemed to be working to lock in the conditions for commercial exploitation of the public domain by allowing the creation of business funds, where administrative jurisprudence refused to do so (CE, July 31, 2009, Sté Jonathan Loisirs), putting forward arguments sometimes described as “fragile »[2] by the doctrine, without however crossing the Rubicon of admitting the possibility of granting a commercial lease on the domain (on the prohibition, v.CE, Jan. 23, 1976, Kergo), which would clearly undermine the precarious nature of occupation authorizations.

 

However, it should be noted that the advantages of the possibility of establishing a business in the public domain are limited.

 

First, bythe precarious and revocable nature of authorizationswhich does not allow the occupant to be given a right to renew their authorization. Although mitigated by case lawMunicipality of Port-Vendres II according to which the domain manager can only oppose a renewal request for reasons of general interest, this precarious and revocable nature leaves the occupant in a certain uncertainty.

 

Then, by the requirement resulting from Ordinance No. 2017-562 of April 19, 2017 to set up aselection procedure for the allocation of occupancy titles for the public domain with a view to economic exploitation.

 

Finally,the decision commented on here could well further call into question the advantages of the Pinel law.

 

The facts are quite classic:

 

Mr. G. had operated a bar-restaurant on a state property in the commune of Cap d'Ail since 1986. That year, he had benefited from an occupation authorization for a period of 9 years, renewed for 20 years. in 1995. When this agreement expired, he again requested its renewal, which was granted to him by agreement concluded on February 15, 2016. Nevertheless, while Mr. G. was, in good faith, pconvinced of having acquired a business from the previous occupant in 1986, the new agreement specified on the one hand that it could not be qualified as a commercial lease, that it wasprecarious and insusceptible of tacit renewal and, finally, that it did not give “ no reason for the creation of a business". Signing, despite everything, the agreement to maintain its activity, the occupier submitted an appeal to the Nice administrative court for Béziers I to annul the agreement, accompanied by subsidiary conclusions for annulment of the clause ruling out the constitution of the business.

 

If a question of jurisdictional competence arose, it will not be developed here: the occupant considered that the occupied plot was not an outbuilding of the public domain, but the judges of the fund, like the Council of State, did not did not follow in his reasoning, qualifying the plot as a state dependency in a classic application of the criteria of public state ownership.

 

More interesting – and practically important – is the question of knowingifa public person can, contractually, obstruct the creation of a business on its public domain, a question to which the Council of State does not answer clearly, sheltering itself under the screen of its jurisdictional office in matters of appeal contesting the validity of a contract (I), while the practical consequences attached to this response are decisive (II).

 

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I – BUSINESS IN THE PUBLIC DOMAIN AND BEZIERS JURISPRUDENCE I

 

The central question posed by this case is perfectly summarized by the public rapporteur.

 

She is that of “ know whether a public person can, by an act of will, deny to the operator of an economic activity carried out on an outbuilding of its public domain any possibility of invoking for its benefit the constitution of a business »[3].

 

To this question, the administrative court of Nice, in its judgment on our case, answered in the affirmative, considering that the provisions of article L.2124-32-1 of the CG3P only had the effect of allowing the public person to authorize the creation of a business in the public domain. The Nice judges were undoubtedly influenced by the wording of the said article according to which, let us remember, “ a business can be operated in the public domain ”. However, it will not have escaped the attentive reader that the subject here is the business and that the legislator has not drafted this provision in these terms: the manager of the public domain can authorize the exploitation of a business. of business.

 

On appeal, the CAA of Marseille took great care not to answer the question, using a classic formula which suits both the judge and the scrum half kicking into touch: “ even assuming that this clause would be illegal » (CAA Marseille, April 9, 2021, Mr. G and Mr. H.).

 

In reality, the question of the legality of the clause was simply not useful in resolving the dispute, the Marseille judge considering that in any event, this clause was indivisible from the rest of the contract and that it did not constitute a particularly serious defect justifying its cancellation. The Council of State did not censor this reasoning, which was rather orthodox in the Béziers I dispute, remaining quite evasive on the question of the legality of the clause:

 

“ by ruling that the disregard by such a clause of the provisions of article L.2124-32-1 of the general code of property of public persons could not constitute, in itself, a particularly serious defect justifying the cancellation of the agreement or of this single clause indivisible from the rest of the agreement, the court, by a sufficiently reasoned judgment, did not commit an error of law ".

 

The fact remains that the conclusions of the public rapporteur provide elements likely to provide food for thought. He believes, rightly in our opinion, that “there is certainly every reason to believe that this clause was illegal»[4]. 

 

Indeed, a strict interpretation of the law leads one to believe that the legislator did not intend to confer any power on the manager of the estate to authorize or refuse to the operator the exploitation of a business, the latter "  is observed more than it is decreed;» and being subordinated, in the text, only to the existence of the operator's own clientele, distinct from people using the public domain according to its use.

 

There is therefore every reason to think thatwe are faced with an illegal clause, but the illegality of which does not constitute a particularly serious defect within the meaning of the Béziers I case law.

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II – UNCERTAIN PRACTICAL CONSEQUENCES

 

What practical consequences can we draw from this?Three hypotheses should be explored regarding the reception of this case law by public figures..

 

According to a first hypothesis, public figures could take the illegality of such a clause literally by stopping using it.

 

This would result in conferringoccupants the effective possibility of establishing a business on public property, with all the advantages that this implies, subject to compliance with the rules inherent to public ownership: pledging, rental management, transfer of the fund, etc.

 

However, it seems inevitable that these financial advantageswill lead to an increase in the amount of royaltieswhich, as a reminder, are calculated taking into account “benefits of any kind provided to the authorization holder », according to article L.2125-3 of the CG3P.

 

This link is also well recalled by the public rapporteur:the clause prohibiting the constitution of the business is not divisible from the rest of the contract since it finds its counterpart in the amount of the occupancy fee.

 

According to a second hypothesis, public persons would see in the coverage of the illegality of such a clause by the Béziers I case lawthe advisability of prohibiting the creation of business assets in its public domain – as was the case in this case – thus bringinga serious blow to the effectiveness of the Pinel law.

 

According to a third hypothesis, it would be logical to imagine that each occupant of the public domain who can prove the existence of their own clientele will question themselves (and the public person who owns the domain)on the conditions and modalities of the valuation of its business assets. If this subject can be dealt with more easily at the stage of execution of the agreement (in other words, when the fund still benefits from an occupation period), it will pose difficulties at the stage of the end of the occupation.Let's ask the question more simply: at the end of the duration of the title, if a goodwill exists, does it have any value? And if so, which one?

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[1] A. de Lamartine, “Isolation”, Poetic Meditations, 1820.

[2] C. Chamard-Heim and Ph. Yolka, “Recognition of goodwill in the public domain”, AJDA, 2014, p. 1641.

[3] R. Victor, “Concl. on CE, March 11, 2022, Mr. G and Mr. H”, ArianeWeb.

[4] Ibid.

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