The Administrative Court of Appeal of Marseille rules on the competence of administrative and judicial judges in cases of irregular emprise, highlighting the administrative judge's competence to repair material damage.
Extract
[...] This expression testifies to the difficult implementation of the dual jurisdictionalism; dualism imposing in principle a division of competences between administrative judge and judicial judge. According to the legal vocabulary of Cornu, competence is defined as « the entire set of cases that jurisdiction is intended to deal with. The same author thus distinguishes judicial competences, that is to say those relevant to the competence of the jurisdictions of the judicial order in opposition to administrative competences, those relevant to the jurisdictions of the administrative order. [...]
[...] This solution, taking up the motivation of the judgment Bergoend, is not surprising. In fact, the implantation of the public work (such as an electric pole in the case of [...]
[...] II- The assertion of a harmonized contentious liability The harmonization of the contentious is made in favor of the principal interested party, in this case the administrative judge which is favorable to the applicant A restrictive interpretation of judicial competence The Court holds that « The administrative judge is competent to rule on the conclusions seeking to indemnify the damaging consequences of this irregular occupation. » Historically, the emprise allowed for derogation from the principle of separation of administrative and judicial authorities. [...]
[...] Like for the act of violence, the judicial competence is largely reduced since in both cases of regular or irregular emprise, the administrative judge will be competent to stop and repair the damage. The judicial judge will only regain his competence in the case where the damage goes as far as to lead to the extinction of the right of property. That is to say, in the case of an act of violence. However, the field of application of the act of violence has been largely reduced, thereby reducing the competence of the judicial judge. [...]
[...] This is evidenced by the judgment of the Administrative Court of Marseille dated 4 February 2019. In this judgment, the Administrative Court of Appeal of Marseille pronounces on the sharing of competences between administrative judge and judicial judge. In this case, by a decision dated 17 February 2011, a commune decides to implement a procedure of expropriation for public utility on a plot held in indivision. The building on this plot is destroyed and replaced by a garage. The applicants brought an action before the Alès Court of First Instance seeking, inter alia, a condemnation of the commune to repair the damages suffered in connection with the fact that this community would have committed by demolishing the building that was there and building a garage. [...]
