Public Domain and Commerce: Valuation and Protection

Extract

[...] The consecration of new rights for the administered If originally the management of public goods was only a protection of the public goods of the public person affected by a public service or the public today, the management of public goods goes further and tends to a new objective, which is the valuation of goods. It is for the public person to value the goods that can be a burden for her or to value goods by creating an activity that generates profits for them. These changes in policy are not without consequences. If they first allow the recognition of freedoms for the administered it also appears that the communities must now fulfill a new mission A. [...]

[...] In accordance with its mission to value public goods, the public person has sometimes made private occupation of the public domain payable. This was the case for parking spaces, with the rise of the automobile, the public person saw it as a means of valuing the public domain and the Council of State thus admitted in 1928 in the Laurens decision the regulation of a fee for certain parking spaces on the grounds that this parking is subject to an arrangement by the public person to be able to park there. [...]

[...] Beyond the fees, the public person may sometimes impose additional restrictions on the quality of the occupation. That is to say, it requires that the occupation be at least compatible with the original purpose of the property and at best conforming. The conformity criterion is the highest, meaning that the occupant's activity must be close to the original purpose of the property. In the absence of conformity, the Council of State admits that the occupation is only compatible, meaning that it must not be contrary to the original purpose or harm it. [...]

[...] The public domain and commerce inevitably maintain close links in that the public person fulfills a double objective: the valuation of public goods correlated with the protection of its goods. These objectives bring together the two notions of our subject, hence it no longer involves only the administrative law of goods, but also commercial law and competition law. The commerce refers to the activity of sale or resale of goods or services allowing for financial profit. The public domain refers to the terms of article 2111-1 of the CG3P as 'of goods belonging to it that are either assigned to the direct use of the public, or assigned to a public service provided that in this case they are the subject of an indispensable arrangement for the execution of the missions of this public service». [...]

[...] These are essentially collective freedoms. Collective freedoms are individual freedoms that can be exercised collectively, for example, we can mention freedom of expression or the freedom to demonstrate. Within the framework of our analysis, it seems coherent to focus on the freedom to come and go, consecrated by the Constitutional Council by articles 2 and 4 of the Declaration of the Rights of Man and of the Citizen. Beyond these articles, the Constitutional Council has recognized the constitutional value of this principle in the decision of July entitled "tolls bridges". [...]