Council of State's Ruling on Chambord Domain Public Domaniality

Extract

[...] It adds that the State has ensured a direct management of the domain for seventy-five years and that, as a historical monument, the President of the Republic has the mission to preserve and promote it. In view of these elements, the Council of State places the Chambord domain in the public domain. Thus, it affirms itself in the face of the legislator and demonstrates a certain form of audacity. This opinion presents even more audacity in that the Council of State deliberately set aside the application of another jurisprudential theory proposed by the minister, although this theory was taken up by the legislator in 2006. B. [...]

[...] However, it is not a decision contra legem, since the Legislator has not prohibited the application of the theory of global public domaniality. Although the Council of State's opinion on the Chambord domain appears very clear, its position on the application of the theory of global public domaniality seems much less evident. II. A position to be specified If the position of the Legislator is not entirely clear and transparent on its approval regarding the application of the theory of global public domaniality, the Council of State is no less so. [...]

[...] It is the application of the theory of public domaniality by accessory. The theory of public domaniality by accessory, also known as the 'theory of the accessory', refers to the incorporation of goods into the public domain that, in an autonomous manner, contribute to the proper functioning of the public domain, although they do not meet the conditions. This theory was presented by the minister regarding the commercial spaces around the domain, these spaces being intended for the reception of visitors, it would seem coherent to make them fall under public domaniality by the application of the theory of public domaniality by accessory. [...]

[...] This example is one among many decisions of the Council of State that reflect a very irregular jurisprudence on the question of the application of global public domaniality. B. An irregular application It happens that the Council of State proceeds to reversals of jurisprudence, and that it changes its position on a specific point depending on customs, for example, or other factors. Justly, the jurisprudence allows the rule of law to evolve over time so that the legal system evolves at the same time as society. [...]

[...] In some cases, the Council of State easily and logically admits the application of global public domaniality. This is the case in 1965 in a Council of State ruling called Société lyonnaise des transports, the Council of State applies global public domaniality to the entire set of assets that contribute to the functioning of the station by qualifying them as dependencies of the public domain. This solution will be confirmed more recently in 2007, in the ruling of the Agence foncière et technique de la région parisienne concerning the premises of a station. [...]