Inalienability of Public Domain Goods

Extract

[...] Consequently, these doctrinal divergences have led to a necessary adjustment of the principle of inalienability of the public domain. After highlighting the rigidity of the principle of inalienability and consequently the prohibition on transferring goods belonging to the public domain of public persons, it is appropriate to examine the relaxation of the principle through the process of declassification allowing the sale of a public good. II. The relaxation of the principle: the breach of declassification The prohibition on transferring a good belonging to the public domain can be circumvented by declassifying this good. [...]

[...] The assets belonging to the public domain of public persons are inalienable and imprescriptible (Article L.3111-1 of the General Code of Public Property). The commune of Presles wishes to sell a real estate ensemble that belongs to it. In this regard, it concludes, on 26 September 2016, a non-exclusive sales mandate with the Ykha Standing Home company, which exercises a real estate agency activity. This real estate ensemble consists of a cultural center and a media library, municipal equipment open to the public and assigned to the cultural public service of the commune. [...]

[...] It can be done by a simple observation that the good is no longer assigned to the public service, however, it can also be the subject of a decision, it is the public entity that chooses how to proceed with the de-assignment. In a second step and when the de-assignment of the good is established, the good must be declassified and this must necessarily be formalized in a document, this is the administrative part of the good leaving the public domain. The declassification must be explicit and clearly stated. In practice, the declassification is carried out by a written administrative act (decree, resolution, decision . ) emanating from the public entity that owns the good. [...]

[...] This rule of prohibition has been confirmed by jurisprudence through the Association Eurolat ruling of May the Council of State pronounces the nullity of a clause allowing an association to claim a real right on a public good, this clause is incompatible with the principles of public domain. The aforementioned ruling also confirms the insolvency of public goods. However, the doctrine is contradictory on this question, in fact, Professor Yves Gaudemet estimates that inalienability should only protect the allocation of the good to public utility. [...]

[...] In what measures can a commune conclude a sales mandate in order to cede a property that is part of its public domain? The court rejected the company's request. In fact, the very object of the sales mandate had an illicit character in that it concerned a property belonging to the public domain and therefore, the company could not claim compensation on the basis of the commune's contractual liability. According to the principle of inalienability, public domain goods cannot be transferred in any way In this regard, a commune cannot conclude a sales mandate to sell a property that is part of its public domain unless it has been declassified (II). [...]