CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 29 mars 2010

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margin-bottom:0pt; text-indent:21.25pt; text-align:justify }     GRAND CHAMBER             CASE OF DEPALLE v. FRANCE   (Application no. 34044/02)                     JUDGMENT     STRASBOURG   29 March 2010       In the case of Depalle v. France, The European Court of Human Rights, sitting as a Grand Chamber composed of:   Nicolas Bratza, President ,   Jean-Paul Costa,   Peer Lorenzen,   Françoise Tulkens,   Josep Casadevall,   Karel Jungwiert,   Nina Vajić,   Rait Maruste,   Anatoly Kovler,   Ljiljana Mijović,   Renate Jaeger,   Davíd Thór Björgvinsson,   Ineta Ziemele,   Mark Villiger,   Isabelle Berro-Lefèvre,   George Nicolaou,   Zdravka Kalaydjieva, judges , and Michael O’Boyle, Deputy Registrar , Having deliberated in private on 11 February 2009 and on 3 February 2010, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.     The case originated in an application (no. 34044/02) against the French Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a French national, Mr Louis Depalle (“the applicant”), on 4   September 2002. 2.     The applicant was represented by Mr P. Blondel, of the Conseil d’Etat and Court of Cassation Bar. The French Government (“the Government”) were represented by their Agent, Mrs E. Belliard, Director of Legal Affairs, Ministry of Foreign Affairs. 3.     The applicant alleged, in particular, that both his right of property guaranteed by Article 1 of Protocol No. 1 and his right to respect for his home within the meaning of Article 8 of the Convention had been infringed as a result of the French authorities’ refusal to authorise him to continue occupying a plot of public land on which stands a house he has owned since 1960 and as a result of an order to demolish the house. 4.     The application was allocated to the Second Section of the Court (Rule   52 § 1 of the Rules of Court). On 14 June 2005 it was declared partly inadmissible by a Chamber of that Section, composed of Ireneu Cabral Barreto, Jean-Paul Costa, Karel Jungwiert, Volodymyr Butkevych, Mindia Ugrekhelidze, Antonella Mularoni, Elisabet Fura-Sandström, judges, and Sally Dollé, Section Registrar. On 29 April 2008, following a change of Section, the application was declared admissible under Article 1 of Protocol No. 1 and Article   8 of the Convention by a Chamber of the Fifth Section, composed of Peer   Lorenzen, Snejana Botoucharova, Jean-Paul Costa, Karel Jungwiert, Rait   Maruste, Mark Villiger, Isabelle Berro-Lefèvre, judges, and Claudia Westerdiek, Section Registrar. On 25 September 2008 a Chamber of that Section, composed of Peer Lorenzen, Rait Maruste, Jean-Paul Costa, Karel Jungwiert, Renate Jaeger, Mark Villiger, Isabelle Berro-Lefèvre, judges, and Claudia Westerdiek, Section Registrar, relinquished jurisdiction in favour of the Grand Chamber, neither of the parties having objected to relinquishment (Article 30 of the Convention and Rule 72). 5.     The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24. 6.     The applicant and the Government each filed observations. 7.     A hearing took place in public in the Human Rights Building, Strasbourg, on 11 February 2009 (Rule 59 § 3).   There appeared before the Court: (a)     for the Government Mrs   E. Belliard , Director of Legal Affairs, Ministry of     Foreign Affairs,   Agent , Ms   A.-F. Tissier , Head of the Human Rights Section,     Department of Legal Affairs, Ministry of Foreign     Affairs, Ms   M.-G. Merloz , Drafting Secretary, Human Rights Section,     Department of Legal Affairs, Ministry of Foreign     Affairs, Ms   C. Stoven , Research Officer for the economic and tourist     development of beaches, and Litigation Officer,     Natural Maritime Public Property Litigation     Department, Ministry of Ecology, Energy and     Sustainable Development,     Ms   D. Medjaed, trainee judge, Department of Legal     Affairs, Ministry of Foreign Affairs, Mr   P. Bourreau , Director for the département , State     Property Office, Directorate-General of Public     Finances, Ministry of the Budget,   Advisers ; (b)     for the applicant Mr   P. Blondel , member of the Conseil d’Etat and Court     of Cassation Bar,   Counsel .   The Court heard addresses by Mr Blondel and Mrs Belliard. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 8.     The applicant was born in 1919 and lives in Monistrol-d’Allier. A.     The house in issue 9.     On 3 November 1960 the applicant and his wife purchased by notarial deed a dwelling house built on land in the municipality of Arradon, in the département of Morbihan. The house had been built on a dyke that overlapped with land on the seashore falling within the category of maritime public property. 10.     It can be seen from the various documents relating to the house that, by a decision of 5 December 1889, the prefect of Morbihan had authorised Mr   A., in consideration of payment of a charge, to “retain on maritime public property in the cove of Kérion, in the municipality of Arradon, a dyke ... on which stands a dwelling house”. The house had allegedly been built prior to that decision despite a decision of the prefect of 31 May 1856 refusing an application for a building permit. The decision of 1889 specified that “the existence of this dyke and dwelling house on maritime public property was recorded in 1886 ... and the permittee undertakes to pay the charge from 1 January 1887”. It also pointed out that the dyke, irregularly shaped and of a surface area of 359.40 sq. m, on which stood the dwelling house measuring 7.60 m by 6.60 m, “cannot interfere in any way with navigation rights or maritime coastal traffic on condition that steps are built at each end of the dyke in order to facilitate public access” and that the authorities “reserved the right to modify or withdraw the authorisation without the permittee thereby acquiring any right to claim compensation or damages in that regard. He must, if required, restore the site to its original state”. 11.     Prior to that, on 2 December 1889, the Directorate-General for Registration and Property had written to the prefect in the following terms: “... Having regard to Mr A.’s genuine lack of means, as a former seaman who has reached an advanced age and cannot possibly pay the normal charge, and considering, furthermore, that it would be a drastic measure to order the demolition of the little house that he has built on land reclaimed from the sea and uses as a dwelling house, I have decided to impose the minimum charge thus reflecting the precariousness of the occupancy and preventing the rights of the State from becoming time-barred. In the circumstances I consider ... that there is now no further obstacle to disposing of this case by issuing a concession order, but on Mr A.’s death, his heirs should be served with notice either to purchase the usurped land or to pay the charge at the rate applicable for private occupancy of maritime public property.” 12.     Following the death of Mr A., his two daughters requested authorisation from the authorities to keep the house on the same terms as their parents. Authorisation was granted them by a decision of 9 July 1897 conferring a right of temporary occupancy of the public property in question. The house was subsequently transferred in 1909 and sold in 1957, with the title deeds specifying each time that the small house built on maritime land was included in the sale. The deed of 1957 reads as follows: “Title and entry into possession: the purchasers shall hereby acquire title to the land and the little house of Kérion from today’s date. The property is sold free of tenants or occupants.” 13.     The relevant passages of the deed of sale of 1960 read as follows: “Title – Entry into possession: The purchasers hereby acquire title to the property conveyed to them under this deed, and shall enter into actual possession thereof from today’s date ... From the date of their entry into possession they shall pay all taxes and charges payable now or in the future on the house hereby sold together with the land. ... ... The present sale is concluded in consideration of the principal price of three thousand new francs ...” 14.     Following this purchase, and in order to acquire legal access to the house, the applicant and his wife were granted rights of temporary occupancy of maritime public property that were regularly renewed in 1961 (year during which the applicant was permitted to extend the dyke and a public right of way was granted along the seaward edge of the dyke), 1975, 1986 and 1991. The authorisation of temporary occupancy of 1986 specified that the applicant sought “the renewal of the prefectoral decision of 17   August 1961 authorising the construction of a dyke with a dwelling house on it ...”. The last agreement granting them the right to occupy public property expired on 31 December 1992. The decisions specified that “the requested dyke will not in any way interfere with navigation rights, on condition that it is levelled off above the highest water mark, or with maritime coastal traffic provided that public access is guaranteed at all times” and that “in accordance with Article A 26 of the Code of State Property [see paragraph 40 below], the authorities reserve the right to modify or withdraw the authorisation should they deem it necessary, on any ground whatsoever, without the permittee thereby acquiring any right to claim damages or compensation in that regard. The permittee must, if required, restore the site to its original state by demolishing the constructions built on the public property, including those existing on the date on which the decision was signed. Should he fail to comply with that obligation, the authorities shall do so of their own motion and at his expense”. B.     Administrative proceedings 15.     By a letter of 14 March 1993, the applicant and his wife requested the prefect of Morbihan to renew authorisation of their occupancy. 16.     The prefect of Morbihan replied on 6 September 1993 informing the applicant that the entry into force of Law no. 86-2 of 3 January 1986 on the development, protection and enhancement of coastal areas (“the Coastal Areas Act”), and in particular section 25 thereof, no longer allowed him to renew authorisation on the previous terms and conditions. Section 25 provided that decisions regarding the use of maritime public property had to take account of the vocation of the zones in question, which ruled out any private use including dwelling houses. However, in order to take account of the length of occupancy and the applicant’s sentimental attachment to the house in question, he proposed to enter into an agreement with the applicant that would authorise limited and strictly personal use and prohibit him from transferring or selling the land and house and from carrying out any work on the property other than maintenance and would include an option for the State, on the expiry of the authorisation, to have the property restored to its original condition or to reuse the buildings. 17.     By a letter dated 19 November 1993, the applicant and his wife rejected the prefect’s offer and requested a concession to build a dyke that would be valid as a transfer of ownership under Article L. 64 of the Code of State Property (see paragraph 43 below). 18.     On 9 March 1994 the prefect of Morbihan gave a decision, based on section   25 of the Coastal Areas Act, in which he considered that there was no public interest justifying the concession requested. He did, however, renew his offer to grant the applicant and his wife a right of temporary occupancy subject to conditions. 19.     On 5 May 1994 the applicant and his wife applied to the Rennes Administrative Court for the prefect’s decision of 9 March 1994 to be set aside. In support of their application, they submitted that the refusal to grant them a concession to build a dyke was unlawful. 20.     By a letter of 4 July 1994, the prefect of Morbihan served notice on the applicant and his wife to regularise their status as unauthorised occupants of public property. That notice was renewed on 10 April 1995. 21.     On 6 September 1995 the Public Works Department of the département of Morbihan drew up an official report recording the administrative offence of unlawful interference with the highway and noting the unlawful occupancy of the land by the applicant, contrary to the provisions of Article   L. 28 of the Code of State Property (see paragraph 40 below). 22.     On 20 December 1995 the prefect of Morbihan lodged an application with the Rennes Administrative Court citing the applicant and his wife as defendants in respect of an offence of unlawful interference with the highway as they continued to unlawfully occupy public property. He sought an order against them to pay a fine and restore the foreshore to its original state prior to construction of the house and to restore the dyke on which it stood, within three months. 23.     On 19 February 1996 the Revenue Department served notice on the applicant to pay the sums due for the years 1995 and 1996 for unauthorised occupancy of public property, namely, a total of 56,754 French francs (FRF). 24.     By two separate judgments delivered on 20 March 1997, the Rennes Administrative Court ruled on the application lodged by the applicants on 5   May 1994 (case no. 941506) and the application lodged by the prefect of Morbihan on 20 December 1995 (case no. 953517). The application for the prefect’s decision rejecting their request for a permit to build a dyke to be set aside (case no. 941506) was dismissed on the following grounds: “... In support of their argument that the stretch of land on which the dwelling house stands belongs to the category of maritime private property the applicants have exhibited in the proceedings a decision authorising the temporary occupancy of maritime public property dating back to 1889. However, this decision merely takes note that the land in question has been drained and does not certify the lawfulness thereof. Accordingly, it does not call into question the classification of the land as public property. In accordance with Article L. 64 of the Code of State Property, ‘the State may concede, on conditions it shall determine ... the right to build a dyke’. While section   27 of the above-mentioned Act of 3 January 1986 [Coastal Areas Act] has reduced the scope of application of that Article, it does nonetheless specify that ‘land draining carried out prior to the present Act shall continue to be governed by the previous legislation’. Accordingly, the only provisions applicable to the present case are Article L. 64 of the above-mentioned Code and the Maritime Public Property Act of 28 November 1963, which provides that ... ‘subject to any contrary provisions of deeds of concession, land artificially removed from the action of the tide shall be incorporated into the category of maritime public property’. In rejecting the request on the basis of the principles and guidelines laid down in the inter-ministerial circular of 3   January 1973 setting out the policy to be followed for the use of maritime public property, the prefect – when examining the applicant’s particular situation involving an application for a concession – did not err as to the scope of the circular in question, which neither repeals nor amends the above-mentioned legislative provisions but is limited to applying them. The above-mentioned circular, which instructs the authorities responsible for deciding whether or not to grant concessions to build dykes not to transfer title to the plots of land thus created and to accept only installations designed for collective use, to the exclusion of private dwellings, was issued in respect of an area in which the relevant authorities have discretionary power. In referring to the principles laid down in the circular, the prefect does not appear to have interpreted the legislative provisions inaccurately; nor did he fail to consider the specificity of the applicant’s proposal before concluding that there was no special factor justifying an exemption from the instructions analysed above.” The application lodged by the prefect of Morbihan (case no. 953517) was granted. The court stated that “the land on which Mr and Mrs Depalle’s dwelling house stands is indeed public property”. With regard to the offence of unlawful interference with the highway, the court found as follows: “... The rules governing public property ... The purpose of prosecuting someone for the administrative offence of interference with the highway is to preserve the integrity of public property. As can be seen from the judgment delivered by the court today in case no. 941506, the land on which Mr and Mrs Depalle’s dwelling house was built is indeed public property. The administrative courts base their determination of the substance of artificial public property on the judicial interpretation of any private deeds that may be produced whose examination raises a serious difficulty. In the present case the dyke and the house are not publicly owned property, given the exclusively private use made of them and the fact that they do not belong to a public authority, as confirmed by the deed of sale dated 8 October 1960. Accordingly, as it is not seriously disputed that the property in question has been appropriated for private use, it is not necessary to adjourn the application. ... Whether there has been unlawful interference with the highway While Mr and Mrs Depalle have full title to the dwelling house occupied by them and claim, accordingly, that they are therefore not the unlawful occupants of public property, the fact remains that the erection of a permanent structure on public property could not be legally undertaken without either a concession to build a dyke or another type of concession. The investigation into the facts and, in particular, the absence of any documents evidencing that a concession was granted show that the dwelling house in question was illegally built on maritime public property. Accordingly, and despite the production by the owners of undisputed title deeds, the prefect is justified in requesting an order against Mr Depalle to pay a fine and restore the foreshore to its original state prior to the construction of the house. Penalty for the offence   ... Mr Depalle is hereby ordered to pay a fine of FRF 500. State property proceedings Mr Depalle is hereby ordered to restore the property to the state it was in prior to the construction of the buildings within three months of service of this judgment. On expiry of that time-limit Mr Depalle shall pay a fine of FRF 100 per day’s delay in the event of failure to comply with the present judgment and the authorities shall be authorised to enforce it at the cost and risk of the offender ...” 25.     On 2 July 1997 the applicant and his wife lodged an appeal against the judgment delivered in case no. 953517. On 7 July 1997 they appealed against the judgment delivered in case no. 941506. In support of their appeal against the judgment delivered in case no.   941506, the applicant and his wife submitted that the land in question was not public property belonging to the State. They maintained that the land was private property belonging to the State with the twofold effect that the usual rules governing acquisition by adverse possession under private law were applicable to their situation and that the administrative courts did not have jurisdiction to decide the dispute. 26.     By a judgment of 8 December 1999, the Nantes Administrative Court decided to join the two sets of proceedings on the ground that they were connected and to dismiss the applicant and his wife’s appeals on the following grounds: “With regard to the application ... concerning the offence of unlawful interference with the highway: Regarding the State property proceedings Firstly, it is not disputed that the land on which the dyke on which the house occupied by Mr and Mrs Depalle was built was entirely covered by water, independently of any exceptional meteorological circumstances, prior to the draining works undertaken in order to build the dyke. It has not been established, or even alleged by the applicants moreover, that the undrained portion of this land had ever been removed from the action of the tide. The investigation shows, moreover, that the dyke is the result of land draining carried out prior to the entry into force of the above-mentioned Act of 28 November 1963 [the Maritime Public Property Act] ... and that, notwithstanding the various authorisations of temporary occupancy granted by the authorities, as this was not done in the manner prescribed for concessions for the construction of a dyke it has not had the effect of bringing this part of the land thus removed from the action of the tide outside the category of maritime public property. In accordance with the principles of inalienability and imprescriptibility of public property, the submissions by Mr and Mrs Depalle to the effect that the house was built legally and its occupancy accepted by the authorities for a very long time and tolerated even after expiry of the last authorisation to occupy it do not alter the fact that the property falls within the category of maritime public property. Secondly, as has been said, the last decision in favour of Mr and Mrs Depalle authorising temporary occupancy of the maritime public property expired on 31   December 1992. In the absence, since that date, of a lawful title of occupancy, the prefect of Morbihan is justified in requesting an order against the occupants to restore the site – if they have not already done so – to its original state prior to construction of the house on maritime public property. In disputing that obligation, the applicants cannot properly rely on the long period of occupancy of the premises or on the fact that the authorities have tolerated the continuation of that occupancy since 31   December 1992 and proposed draft occupancy agreements in order to regularise the situation, which, moreover, they have not taken up. ... Fifthly, [the obligation to restore the site to its original state] does not constitute a measure prohibited by the requirement of Article 1 of Protocol No. 1 that no one shall be deprived of his possessions except in the public interest. ... The application regarding the refusal to grant a concession to build a dyke ... Secondly, as section 27 of the above-mentioned Act of 3 January 1986 [the Coastal Areas Act] provides that draining works carried out prior to enactment of that Act shall continue to be governed by the previous legislation, the provisions codified under Article L. 64 of the Code of State Property according to which ‘the State may concede, on conditions it shall determine ... the right to build a dyke ...’ are applicable. The prefect of Morbihan based his decision not to grant Mr and Mrs Depalle the requested concession to build a dyke on the guidelines set out in the circular of 3   January 1973 issued by the Minister for Economic Affairs and the Minister for Regional Development on the use of public property other than commercial or fishing ports. He did not discern any general-interest ground in favour of granting the applicants’ request. By instructing the authorities responsible for granting concessions to build a dyke not to allow any plot of land whatsoever falling into the category of public property to be reclassified as private property with a view to transferring full title thereto, the ministers signatory to the circular of 3 January 1973 did not adopt any legal rules amending or supplementing the above-mentioned provisions of Article L. 64 of the Code of State Property but confined themselves to applying them. Accordingly, as stated above, the plot of land in question is State-owned public property. There is no evidence in the case that the prefect, before reaching his decision, either failed to examine the particular circumstances of Mr and Mrs Depalle’s request or made a manifest error of assessment in concluding that there was no special feature or general-interest consideration in the case justifying an exemption from the above-mentioned rules.” 27.     On 21 February 2000 the applicant lodged an appeal on points of law against the judgment of 8 December 1999. The Government Commissioner pointed out, in the same submissions as those made in a similar case, that the value in today’s terms of the purchase price of the house was 1,067,143   euros (EUR). He continued as follows: “... However, the acquisition of rights in rem is not permitted under the Law of 25   July 1994 on State-owned Natural Public Property ... nor were these acquired before that Law was passed ... The appellants have not acquired any property rights over their houses; nor have they acquired rights in rem over public property as a result of the successive sales. Given the precarious situation of the buildings, the market value could not be established without taking account of that essential fact and it is to be hoped that the applicants were duly informed of the position when the purchase deeds were drawn up ... Lastly, and despite the fact that we are not especially enthusiastic about the outcome of this case, we have no alternative but to dismiss the appellants’ pleadings. ... They probably committed a tactical error in refusing the prefect’s reiterated offer. Even if they were not exactly delighted by the prospect, it was at least preferable to a straightforward demolition order which will have to be judicially enforced at their expense. All hope is perhaps not lost of renewing contact with the authorities with a view to finding what might be a less drastic solution. There may be a case for suing the State in tort for allowing occupants of public property to nurture for almost a century the hope that they would not be ruthlessly compelled to demolish their property. It should be pointed out that the prospects of success of such an action are fairly slim, however, given the legitimate protection enjoyed by public property. In any event, it is clear that if the public authority were to be found liable, the offenders would bear a considerable portion of liability too.” 28.     By a judgment delivered on 6 March 2002, the Conseil d’Etat dismissed the applicant’s appeal. It held that he could not rely on any right in rem over the land in question or over the buildings that had been erected on it and that the obligation to restore the land to its original state without any prior compensation was therefore not a measure prohibited by Article 1 of Protocol No. 1. It also held that the applicant could not rely on the fact that the authorities had tolerated the occupancy of the property in support of his submission that he should be allowed to restore the site to the state it had been in at the time of acquisition of the house. 29.     Following a fire in 2005 the applicant applied for a building permit for identical refurbishment of the house. By a decision of 5 September 2005, he was issued with a building permit following a favourable opinion given by an architect from the Architectes des bâtiments de France under the Coastal Areas Act. The permit was subsequently revoked, however, at the request of the prefect lodged with the mayor of Arradon, on the ground that it was illegal because it had been issued in contravention of the rules of inalienability and imprescriptibility of public property. 30.     In 2007 and 2008 the Revenue Department sent the applicant a reminder to pay the charges for the years 2006 and 2007 in the sum of EUR   5,518 and EUR 5,794 respectively, plus property tax. 31.     The applicant produced a valuation of his house drawn up by an estate agent’s office in November 2008 which states as follows: “... a dwelling house ... situated on a plot of land measuring 850 sq. m. ... Having regard to the geographical situation of the property, the condition of the building, the surface area, its location on maritime public property and the local property market, and subject to the owners’ ability to produce a concession agreement in respect of maritime public property, this property is worth between EUR 1,150,000 and 1,200,000.” II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Maritime public property and management thereof 1.     The protection of maritime public property 32.     The idea that the foreshore is “common property”, that is, cannot be appropriated for private use and is managed by the public authorities, dates back to Roman times (Institutiones Justiniani, Book II, Title I, De rerum divisione ), when even then a permit was necessary in order to build on the seashore. Colbert’s Ordinance of the Marine of August 1681 codified the principle and up until recently was still the legal basis for the State’s management of maritime public property. In addition to defining what constituted the “seashore and foreshore”, it laid down the applicable rules: “No one shall build on the foreshore, set stakes in the ground or erect any construction that may interfere with navigation, on pain of demolition of the constructions, confiscation of the materials and discretionary fines.” At the time of the Revolution, the idea developed that maritime public property was governed by the government in the interest of the nation, and not merely as part of the heritage that used to belong to the Crown and now belongs to the State. The management of maritime public property is still largely guided by this principle today. Over and above the idea of State ownership of such property, the conservation and management of it are more a matter of implementation of a policy regarding its use than the exercise of the owner’s “civil” rights. The prefect has a major role in the protection of maritime public property. He is the authority who, generally, governs the use of the property at local level, decides whether or not to allow private occupancy and protects the integrity of the property by prosecuting offenders (source: www.mer.gouv.fr , consulted on 3 February 2010). Colbert’s Ordinance of the Marine was definitively repealed in 2006. Since 1 July 2006 the General Code of Property owned by Public Bodies ( Code general de la propriété des personnes publiques – “the CGPPP”) has replaced the Code of State Property (dating from 1957). It restructures the law governing State-owned land and public bodies and combines the rules governing maritime public property into a whole, including provisions relating to the environment in particular. 2.     Substance of natural maritime public property 33.     Maritime public property, determined on the basis of natural phenomena, lies between the highest point of the shore, that is, up to the high-tide mark under normal meteorological conditions (CE Ass, Kreitmann , 12 October 1973) and the boundary of the territorial waters, seaward. Under Article L. 2111-4 of the CGPPP, “State natural maritime public property” shall comprise: “1.     The seabed and marine substrata between the external boundary of the territorial waters and, on land, the foreshore. The foreshore comprises the whole area covered (and uncovered) by the sea, up to the high-tide mark under normal meteorological conditions; 2.     The beds and substrata of salt pans communicating directly, naturally and permanently with the sea; 3.     Land naturally reclaimed from the sea: (a)     which was part of the State’s private property at 1 December 1963, subject to third-party rights; (b)     which has been constituted since 1 December 1963. ... 5.     Land reserved for public-interest maritime, seaside or tourist needs which has been purchased by the State. Land artificially removed from the action of the tide shall remain in the category of natural maritime public property unless otherwise stipulated in legally concluded and lawfully executed deeds of concession transferring ownership.” 3.     Protection of maritime public property (a)     Principle of inalienability 34.     The principle of inalienability of public land, which was established in the case-law and then incorporated into the Code of State Property (Article L. 52) and the CGPPP (Article L. 3111-1), is inextricably linked to the notion of public land. The basis of this principle is the designation of land for public use. As long as it remains thus designated, and no express decision has been taken reclassifying particular public land as private property, no transfer of land can be authorised. It is a means of preventing public land from being acquired by prescription or adverse possession under private law, hence the principle of imprescriptibility that is very often associated with the principle of inalienability. Accordingly, in its Cazeaux judgment, on the subject of plots of land situated close to the seashore in the Arcachon Basin, the Conseil d’Etat found: “... while the public authorities have authorised various building works on this land and on several occasions waived their right to apply the rules governing public land ..., neither the founders of the société du domaine des prés salés nor the company itself have been able to acquire any property right over the land, which, being part of public land, was inalienable and imprescriptible ...” 35.     The Constitutional Council has stated that inalienability is limited to precluding the transfer of public property that has not first been reclassified as private property (CC, no. 86-217 DC of 18 September 1986, Freedom of communication). It has not, however, recognised that the principle of inalienability has any constitutional status (CC, dec. no. 94-346 of 21 July 1994, Rights in rem over public property). The Conseil d’Etat has recently reiterated that “where property belonging to a public authority has been incorporated into the category of public land by virtue of a decision classifying it thus, it shall remain public land unless a decision is given expressly reclassifying it as private property”. Accordingly, it has held that the question whether or not short-stay factories fell into the category of public property was not affected by the fact “that these short-stay factories were intended to be rented or assigned to the occupants or that the occupancy leases granted were private-law contracts” (CE, Société Lucofer , 26   March 2008). 36.     The effect of the principle of inalienability is that any transfer of public land that has not been “reclassified” is null and void, so third-party purchasers have a duty to return the land even if they have purchased it in good faith. Moreover, the fact that public land is inalienable means – in theory – that no rights in rem can be established over it. However, the legislature has departed from this principle by passing two Acts, one of 5   January 1988 which creates long administrative leases, and the other of 25   July 1994 on the constitution of rights in rem over public land, thus making it possible to grant private rights in rem to occupants of maritime public property. The Act of 5 January 1988 concerns only public land belonging to local and regional authorities or groups thereof. The Act of 25   July 1994 relates to artificial maritime property and immovable constructions and installations built for the purposes of an authorised activity (Article L. 34-1 of the Code of State Property and Article L. 2122-6 of the CGPPP). In its above-mentioned decision of 21 July 1994, the Constitutional Council held that granting rights in rem in this way was compatible with the Constitution as public services were maintained and public property protected under the Act of 25 July 1994. However, it declared the provision allowing the renewal of authorisation beyond seventy years unconstitutional on the ground that it could potentially render ineffective the public authority’s right to the automatic return, free of charge, of any constructions and therefore undermine the “protection due to public property”. 37.     The last consequence of the principle of inalienability is that property belonging to public authorities cannot be seized (Article L. 2311-1 of the CGPPP). This consequence has been attenuated by a decision of the Conseil d’Etat in a case which subsequently came before the Court ( Société de Gestion du Port de Campoloro and Société fermière de Campoloro v.   France , no. 57516/00, 26 September 2006). (b)     Conservation policy 38.     Apart from public easements intended to protect public property from the encroachment of private properties, such as a three-metre wide right of way along the coast over properties adjoining maritime public property, created by an Act of 31 December 1976 reforming town and country planning, the land conservation policy guarantees the protection of the physical integrity of maritime public property and compliance with its designated use. Offenders are prosecuted for unlawful interference with the highway on grounds of infringement of the land conservation policy. An interference of this kind is liable to a criminal fine imposed by the administrative courts and the offender is required to restore the site to its original state. The relevant provisions on unlawful interference with maritime public property no longer refer essentially to navigation but take account of the protection of coastal areas for their own sake (Articles   L.   2132-2 and L. 2132-3 of the CGPPP). 39.     According to the Conseil d’Etat , conservation agencies have a duty to prosecute offenders (CE, Ministre de l’équipement v. Association “des amis des chemins de ronde” , 23 February 1979). Regarding a plot of land incorporated into maritime public property at Verghia beach (southern Corsica), the Conseil d’Etat decided the following: “... the fact that M.A. produced title deeds to the property in question and had been authorised to build on the land under the regional planning legislation, as distinct from the legislation governing maritime public property, does not mean that the offence of unlawful interference with the highway has not been made out and, in any event, cannot preclude prosecution by the prefect ...” (CE, no. 292956, 4 February 2008). With regard to repairing damage caused to public property, the actual attitude adopted by the authorities prior to bringing proceedings for unlawful interference with the highway has been deemed to give rise to rights in favour of the offender, including the right not to assume personal responsibility for restoring the site to its original state (CE, Koeberlin , 21   November 1969). 4.     Use of maritime public property 40.     The use of maritime public property may be collective or private. Collective use which allows all citizens to benefit from public property (navigation on watercourses, beaches) is freely exercisable, equally available to all and free of charge. However, the principle that use is free of charge has not been expressly incorporated into the CGPPP because it is subject to numerous exceptions. Private occupancy must be compatible or in conformity with the designated use of the public property. Unlike collective use, it is subject to authorisation , issued personally, and a charge and is of a precarious nature. Article L. 28 of the Code of State Property (Article L. 2122-1 of the CGPPP) provided: “Subject to authorisation being issued by the competent authority, no one may occupy any national public property or make use thereof over and above the right of use vested in everyone.