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01.02.2012Franklin

Public Law – Legal Brief – February 2012

Public Law – Legal Brief – February 2012

Constitutional Law

By ruling dated December 2, 2011, the French Constitutional Court struck down the former provisions of the French Monetary and Financial Code, on which the French Banking Commission relied to impose monetary penalties, on the grounds that they did not separate the prosecution and adjudication functions of the Commission. This decision therefore confirms the position adopted by the European Court of Human Rights on September 11, 2009, in the Dubus case, in which it ruled against France on the issue of the Banking Commission’s authority to hand out penalties, on account of its “lack of independence and impartiality”. This decision could have a major bearing on the organization of the judicial powers of independent administrative authorities.

Property / Energy

The Administrative Court of Appeals in Douai recently cancelled the planning permission issued to a wind farm, because the applicant had not received permission from the town or the electric transmission network operator to bury the cables connecting the supply station to the source stations (Administrative Court of Appeals in Douai, December 23, 2011, ruling no. 10DA00973). Although it was based on the provisions of former Article R.421-1-1 of the French Urban Planning Code, this decision usefully reminds operators that they should pay careful attention to public property occupancy issues, which are not confined within the boundaries of the wind farms. The Conseil d’Etat (France’s highest administrative court) has reaffirmed the principle that a public authority’s intention to impose public service obligations on the future occupant of public property constitutes a reason in the public interest to terminate a current public property occupancy agreement (Conseil d’Etat, January 19, 2011, decision n°338285). As a result of the publication of Decree (décret) 2011-1612 dated November 22, 2011, which came into effect on November 25, 2011, the French Public Property Code now contains a regulatory section. The decree introduces the first four regulatory sections of the Code (the fifth section, on overseas departments and territories, will be published later), specifies the terms of application of the statutory provisions of the Code and supersedes the regulatory provisions of the Code of State Property. The entire regulatory framework governing the property of public authorities is now codified, in particular the procedure by which temporary licenses to use public property are granted by the State and other public authorities. The Decree also includes provisions to update the Code and aligns it with other codes like the Code of Local Authorities, the Environmental Code and the Urban Planning Code.

General Administrative

Law By ruling dated October 24, 2011, the Conseil d’Etat confirmed the position it had adopted in its ruling of last February 23, which is that any circular or ruling is enforceable against citizens if it is posted on the website www.circulaires.gouv.fr. Obviously, in that case, these circulars or rulings will be enforceable only if they are issued by the competent authority and respect the hierarchy of laws.