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

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text-indent:14.2pt } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 }     GRAND CHAMBER                   CASE OF BROSSET-TRIBOULET AND OTHERS v. FRANCE   (Application no. 34078/02)                 JUDGMENT       STRASBOURG   29 March 2010     This judgment is final but may be subject to editorial revision.   In the case of Brosset-Triboulet and Others 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,   David 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.   34078/02) 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 two French nationals, Mrs Ijjo Brosset-Triboulet and Mrs   Eliane Brosset-Pospisil (“the applicants”), on 4 September 2002. On 26 November 2008 the Registry was informed that the applicant Eliane Brosset-Pospisil had died on 14 May 2008 and that her daughters, Mrs Sophie Epiard and Ms Elisabeth Pospisil, wished to continue the proceedings in her stead. 2.     The applicants were 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 applicants alleged, in particular, that both their right of property guaranteed by Article   1 of Protocol No.   1 and their right to respect for their home within the meaning of Article 8 of the Convention had been infringed as a result of the French authorities' refusal to authorise them to continue occupying a plot of public land on which stands a house that has belonged to their family since 1945 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 the following judges: Ireneu Cabral Barreto, Jean-Paul Costa, Karel Jungwiert, Volodymyr Butkevych, Mindia Ugrekhelidze, Antonella Mularoni, Elisabet   Fura ‑ Sandström, and also of 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 the following judges: Peer Lorenzen, Snejana Botoucharova, Jean-Paul Costa, Karel   Jungwiert, Rait   Maruste, Mark Villiger, Isabelle Berro-Lefèvre, and also of Claudia   Westerdiek, Section Registrar. On 25 September 2008 the Chamber of that Section, composed of the following judges: Peer Lorenzen, Rait Maruste, Jean ‑ Paul   Costa, Karel Jungwiert, Renate Jaeger, Mark   Villiger, Isabelle   Berro ‑ Lefèvre, and also of Claudia Westerdieck, 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 applicants and the Government each filed written 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 , Mrs   A.-F. Tissier , Head of the Human Rights Section,     Department of Legal Affairs, Ministry of Foreign     Affairs, Mrs   M.-G. Merloz , Drafting Secretary, Human Rights Section,     Department of Legal Affairs, Ministry of Foreign     Affairs, Mrs   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,   Mrs   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 applicants 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 applicants were born in 1935 and 1938 respectively and live in Sainte-Croix-Grand-Tonne and Caen respectively. A.     The house in issue 9.     On 26 May 1909 A. purchased the Isle of Irus in the Morbihan Bay from R., by contract signed before a notary. 10.     By a decision of 25 September 1909, the Prefect of Morbihan authorised A. to build a dyke on a parcel of maritime public property situated on land belonging to the municipality of Arradon for the purposes of installing a four-metre by four-metre approach ramp on it from which he could reach the Isle of Irus, in particular, by boat. 11.     By a decision of 25 August 1911, the Prefect of Morbihan authorised A. to enlarge the dyke. The relevant parts of the decision read as follows: “... From the point of view of conformity with the requirements of the Highways Authority, the dyke – once enlarged as requested – cannot interfere with navigation in any way, on condition that it is levelled above the high and spring tide water marks, or with maritime coastal traffic on condition that it is accessible to the public   at all times. Regarding the fee to be charged ... the permittee shall pay an annual fee of 30 francs 40 centimes. ... ... In the event that this authorisation is revoked, the permittee must, if requested, restore the site to its original state. Should he fail to fulfil this obligation, the authorities shall do so of their own motion and at his expense. Any advance payments shall be reimbursed by the permittee on the basis of instruments enforceable at the Prefect's request ...” 12.     On 2 May 1921 a deed of sale concluded before Mr Maigre, a notary, was published in the Vannes Mortgage Registry. By that deed, A. transferred ownership of the Isle of Irus to Mr S. The registration of this deed by the Mortgage Registry, in so far as it relates to the dyke in particular, reads as follows: “... Entry into possession – The purchaser shall acquire ownership of the Isle of Irus hereby conveyed to him from the date hereof and by virtue of this deed and shall take possession thereof from 1 March nineteen hundred and twenty-one. ... Mr [A.] declares that by a decision of the Prefect of Morbihan dated twenty-fifth September nineteen hundred and nine and by another decision dated twenty-fifth August nineteen hundred and eleven, he acquired at the place known as Pen-er-men a stretch of land measuring three hundred and thirty-three square metres ninety-eight square decimetres, registered in the land register of the municipality of Arradon under section number 137 for the purpose of building a dyke with a steel ramp measuring four metres by four metres. This concession was granted to him on the express condition that the dyke be accessible to the public and in consideration of an annual fee of thirty francs and forty centimes subject to review every five years. Accordingly, Mr [A.] hereby assigns all his rights relating to this stretch of land to the purchaser together with all structures erected by the vendor thereon and declares that there is no other positive or negative easement ...” 13.     By a decision of 3 February 1938 the Prefect granted S.'s widow, the applicants' mother's aunt, authorisation to occupy the dyke for five years, specifying that the “dyke shall have a total surface area of 333.98 sq. m, but that the condition of accessibility to the public shall reduce the taxable surface area to 303.98 sq. m ... a strip of land running the entire length of the dyke shall be reserved ... as a public right of way”. 14.     The applicants' mother acquired from her aunt, by inter vivos gift drawn up before a notary and published in the Vannes Mortgage Registry on 12 November 1945, a dwelling house built on the above-mentioned dyke:   “There appeared before me Mrs Mangin, widow of Mr S, who has ... made an inter vivos gift to ... Mrs Mangin, widow of General Brosset, her niece of the property belonging to her in the municipality of Arradon called the Isle of Irus. Description: the Isle of Irus hereby conveyed comprises the entire island and all the immovable property of which it is composed, registered in the land registry as an area of twelve hectares ... Conditions: The gift is made on the following conditions ... The donee shall take the property in its current state without any right of action against the donor on any ground whatsoever and shall enjoy the property from the date hereof, which is the date of entry into possession. ... She shall pay taxes and insurance premiums against fire from the date hereof. Civil status – authorisation ... The said gift was authorised by the Prefect of Morbihan on the twenty-first September 1945. ...” 15.     By a series of decisions, issued, inter alia , on 6 June 1951, 29 March 1967, 21   December 1977, 27 August 1984 and 10 July 1986, the Prefect of Morbihan authorised occupation of the dyke in question in consideration of payment of a fee. The decision of 1967 refers to renewal of the decision of 1951 authorising occupation of a dyke; those of 1984 and 1986 refer to the dyke and house. The prefect's decision of 10 July 1986 did not authorise occupation of the public property beyond 31   December 1990. The decisions stated that “the dyke cannot interfere with navigation in any way, on condition that it is levelled above the high and spring tide water marks, or with maritime coastal traffic on condition that it is accessible to the public   at all times”. The authorisation forms specified that, in accordance with Article 26 and 27 of the State Property Code, “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 a right to claim any compensation or damages 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”. 16.     In the meantime, in 1966, the Department of Revenue from State Lands had written to the director of the State Lands Department in Vannes in the following terms: “You have submitted to me for observations and opinion a request for renewal of temporary occupation of maritime public property made by [the applicants' mother]. This request concerns a dyke of a surface area of 333.98 sq. m, reduced to a taxable surface area of 304 sq. m, on which a dwelling house has been built. The annual fee proposed by the Highways Authority is 100 francs. The case gives rise to the following observations: Article R 56 of the Code of State Property provides that any fee payable to the Treasury Department must take into account the advantages of any kind procured to the concessionaire. In the aforementioned case, there is no doubt that the concession of the dyke in question procures a not inconsiderable advantage to the applicant: in particular, it allows her to save on the capital that would otherwise be invested in the purchase of a building plot in the area in question... In these circumstances I find it fully acceptable to retain a sum corresponding to the amount of interest calculated at the very reduced rate of 5% of the value of the land conceded. ...” B.     Administrative proceedings 17.     On 15 March 1993 the applicants' mother applied to the Prefect of Morbihan for renewal of the occupancy agreement. 18.     In a letter of 6   September 1993, the Prefect reminded her that the authorisation to occupy the house granted in 1986 had expired on 31   December 1990. He informed her that the entry into force of Law no.   86 ‑ 2 of 3 January 1986 on the Development, Protection and Enhancement of Coastal Areas (hereafter “the Coastal Areas Act”), and particularly section 25, prevented him from renewing the said authorisation on the former terms because the use of public property had to take account of the designated purpose of the areas concerned, which ruled out any private use, including dwelling houses. However, having regard to the long period of occupation and the applicants' and their mother's sentimental attachment to the house in question, the Prefect said that he was willing to consider, exceptionally, granting limited authorisation restricting use of the property to strictly personal use and prohibiting any sale or transfer of the land and house, any work thereon other than maintenance, and reserving an option to the State, on expiry of the authorisation, to have the property restored to its original state or to reuse the buildings. He concluded by asking her to let him know quickly whether these conditions met with her approval so that “an illegal situation that had lasted two and a half years could be regularised”. 19.     The applicants' mother refused the offer. By way of counterproposal, she sought a permit 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 44 below). 20.     On 9 March 1994 the Prefect of Morbihan rejected the applicants' mother's request but maintained his initial offer of an occupancy agreement subject to conditions: “You have asked me to consider the possibility of having the dyke built on maritime public property that you occupy at Pen-Er-Men reclassified as private property, apparently with a view to acquiring the dyke and the property built on it   ... I regret to inform you that the classic method of conceding property whereby the concessionnee of the property acquired full title, under Article L. 64 of the Code of State Property, to land that had been drained was abandoned by ministerial circular some years ago, on grounds of lack of proven general interest. Your request goes against this policy and I repeat the conditions stipulated in my letter of 6 September with a view to regularising your situation. Regularisation in this way could be done on the terms set out in the draft agreement attached. I should point out that the property fee will be adjusted upwards in order to take account of the particular nature of the occupancy of the property.” 21.     On 5 May 1994 the applicants' mother applied to the Rennes Administrative Court for the Prefect's decision of 9   March 1994 rejecting her request for a permit to build a dyke to be set aside. 22.     On 4 July 1995 the Prefect of Morbihan informed the applicants' mother that he was considering drawing up an official report recording the administrative offence of unlawful interference with the highway with a view to formally establishing the unlawful occupancy of public property. That official report was drawn up on 6 September 1995 and served on the applicants' mother on 16 November 1995. On 20 December 1995, on the basis of the finding of illegal occupancy of public property and in accordance with Article L. 28 of the Code of State Property (see paragraph 41 below), the Prefect lodged an application with the Rennes Administrative Court for an order against the applicants' mother to pay a fine and restore the property to its original state, that is, prior to construction of the house. 23.     In two separate judgments delivered on 20 March 1997, the Rennes Administrative Court ruled on the application lodged by the applicants'   mother on 5 May 1994 (case no.   941509) and the application lodged by the Prefect of Morbihan on 20 December 1995 (case no.   953516). 24.     The court ruled as follows in respect of the applicants' mother's application for the Prefect's decision rejecting her request for a permit to build a dyke to be set aside: “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”. Whilst section 27 of the aforementioned Act of 3 January 1986 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 aforementioned 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 aforementioned 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.” 25.     In case no.   953516 the Rennes Administrative Court granted the Prefect's application of 20 December 1995, on the following grounds: “... 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 Mrs Brosset'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. 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 ... Whilst Mrs Brosset has full title to the dwelling house occupied by her and maintains that she is therefore not the unlawful occupant 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, the Prefect is justified in requesting an order against Mrs Brosset to pay a fine and restore the seashore to its original state prior to the construction of the house ... This must be done within three months of service of this judgment... . On the expiry of that period, Mrs Brosset shall pay a fine of 100 francs 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.” 26.     On 11 July 1997 the two applicants, acting in their capacity as their mother's heirs after her death, lodged an appeal against the judgment delivered in case no.   953516. On 18 July 1997 they appealed against the judgment delivered in case no.   941509. 27.     By a judgment of 8 December 1999, the Nantes Administrative Court of Appeal decided to join the two sets of proceedings on the ground that they were connected and to dismiss the applicants' appeals. With regard to the application relating to the offence of unlawful interference with the highway, the court noted first of all that Mrs Brosset had died during the proceedings and decided that the prosecution was therefore now extinguished. In respect of the State property proceedings, the Administrative Court of Appeal gave the following reasons for its decision: “   ... Firstly, it is not disputed that the parcel of land on which the dyke on which the house 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 aforementioned Act of 28 November 1963 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 Ms Triboulet and Ms   Brosset-Pospisil 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 the expiry of the last authorisation to occupy it do not alter the fact that the land falls within the category of maritime public property. Secondly, as has been said, the last decision authorising temporary occupancy of the maritime public property ... expired on 31 December 1990. 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 number of years of occupancy of the premises or on the fact that the authorities have tolerated the continuation of that occupancy since 31 December 1990 and proposed draft occupancy agreements to Ms   Brosset in order to regularise the situation, which, moreover, she has 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.” Regarding the refusal to grant a concession to build a dyke, the Administrative Court of Appeal held as follows: “... Secondly, as section 27 of the above-mentioned Act of 3 January 1986 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 Mrs Brosset 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 applicant's 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 Mrs Brosset'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”. 28.     On 21 February 2000 the applicants lodged an appeal on points of law against the judgment of 8 December 1999. They submitted that in the absence of proof, which logically they could not have as they had acquired by gift a house already built on a previously constructed embankment, they had shown that the only legal means of building a dwelling house on a parcel of land supposedly falling within the category of public property was to obtain authorisation of temporary occupancy for private use of that land that did not expressly exclude the possibility of such an edifice being built on it. They concluded from this that the construction of a house, of which the authorities were aware and which they had accepted, had resulted in full title to the house passing to the occupants of the land. If this were not the case, it was for the Prefect to provide proof that the draining works undertaken at the beginning of the century had been illegal. The applicants also submitted that the penalty was disproportionate and that, in the absence of justification on grounds of the general interest, compensation should be paid for the damage wrongly caused. 29.     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 655,530   euros (EUR). He continued as follows: “ ... The appellants have not acquired any property right over their houses; nor have they acquired rights in rem over public property as a result of the successive transfers. 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.” 30.     By a judgment delivered on 6 March 2002 the Conseil d'Etat dismissed an appeal lodged by the applicants. It held that they 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. 31.     On 6 August 2002 the director of the Department of Culture and Legal and Political Affairs for the Morbihan département wrote to the applicants in the following terms: “I have received some information from the Brittany Regional Cultural Affairs Department. It appears first of all that your house was not specifically listed by the Regional Inventory Service when they drew up an inventory for the Vannes-Ouest district in the early 1990s. However, Pen er Men Bay is well documented, as can be seen from a photograph available at the Inventory Service, in which your house appears very clearly. Furthermore, the Inventory Service has told me orally that if an inventory of the Vannes-Ouest district were to be carried out today, your house, and others in the same situation, would definitely be listed. In any event, the Inventory Service could usefully make submissions on your behalf to the Public Works Department for the département , among others, with a view to protecting the region's cultural heritage if a further threat of demolition were to be made. As regards, lastly, the possible classification or registration of your house in the supplementary list of historical monuments, you should not count on this, firstly because the State does not consider you as owner and secondly because it is inundated with requests, especially in the Morbihan. For the time being, given that the Public Works Department appears kindly disposed to your problem, I am not particularly worried.” 32.     In 2008 the housing tax on the house came to EUR   584 and the land tax to EUR   708. The applicants produced a valuation of their house prepared by an estate agent in November 2008: “a dwelling house made of stone built in 1905 ... 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 800,000 and 1,000,000   euros”. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Maritime Public Property and management thereof 1.     The protection of maritime public property 33.     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 [1] , 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 34.     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 sub-strata 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 35.     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 that “whilst 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”. 36.     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 26   March 2008, Société Lucofer ). 37.     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 1994 Act. 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”. 38.     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