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The property of public bodies, which comes under the public domain, is inalienable and not subject to any statute of limitations . These include the State, local authorities and their groupings, as well as public establishments . A distinction must be made between the public and private domains of public bodies.
The public domain of a public entity comprises property belonging to it and assigned f …

Inalienability of the public domain

The property of public bodies, which comes under the public domain, is inalienable and not subject to any statute of limitations . These include the State, local authorities and their groupings, as well as public establishments . A distinction must be made between the public and private domains of public bodies.

The public domain of a public entity comprises property belonging to it and assigned for direct use by the public or for a public service, “provided that, in this case, it is subject to development essential to the performance of the missions of this public service” . Also included are assets belonging to public bodies which, by contributing to the use of an asset belonging to the public domain, constitute an indissociable part of the latter . More generally, property that does not belong to private individuals forms part of the public domain, and can therefore only be disposed of in accordance with specific rules and procedures .

The legal principle that the public domain assets of local authorities, their public establishments and their groupings are inalienable and not subject to acquisitive prescription is enshrined in settled case law. In the absence of any prior declassification ruling, this principle precludes one public entity from transferring to another a property  or a parcel of land belonging to the public domain . Thus, the request for restitution submitted by the purchaser of several Roman gold coins from the Lava treasure, which has been declared a maritime cultural asset and as such falls within the public domain of the State, runs up against the principles of non-applicability of acquisitive prescription and inalienability of the latter . However, there are several exceptions to this principle. Firstly, property belonging to public bodies may be transferred amicably, without prior declassification, between such public bodies, when it is intended for the exercise of the powers of the public body acquiring it and will come under its public domain .They may also be exchanged between public entities  and, after declassification, with assets belonging to private individuals or belonging to the private domain of a public entity .  Since the entry into force of Article L. 3112-4 of the General Code of Public Property (Code général de la propriété des personnes publiques), property in the public domain may be included in a promise to sell, provided that its declassification is decided by the competent administrative authority, and that the requirements of public service or direct use by the public justify this declassification taking effect only within the time-limit defined in the promise  . Furthermore, for the period prior to the adoption of this legislation, public domain property may be the subject of a promise of sale subject to the condition precedent of its declassification, provided that it is preceded by the declassification of the property and that the promise contains clauses guaranteeing that the property will remain in the public domain if a justification, based in particular on the continuity of the public service, requires it . The sale of public property must be sanctioned by nullity. Consequently, the sale of a plot of land that turns out to be part of the département's public domain rather than its private domain must be annulled because it contravenes the principle of the inalienability of the public domain . Any person may rely on the rule of inalienability of the public domain whenever it becomes necessary to defend his or her rights, in order to have the transfer declared unenforceable and to prevent the proprietor from exercising the prerogatives pertaining to his or her right . The private domain is made up of property belonging to public bodies that is not part of the public domain. This is the case, for example, of land reserves and real estate for office use, excluding those which form an indivisible whole with real estate belonging to the public domain . Property belonging to the private domain may only be alienated in accordance with specific rules and procedures . For example, the Court of Cassation has ruled that, even if the law on the nationalization of electricity only prohibited the disposal of EDF's share capital, but not of any of its assets, it was necessary to verify whether asset disposals, given their nature, size and purpose, did not in fact constitute a transfer of a public-sector undertaking to the private sector . Secondly, buildings in the private domain may be sold when they are no longer used by a civil or military service of the State, or by a public establishment of the State . Lastly, the State may sell land in its private domain at a price lower than its market value when it is to be used to implement programs with a majority of housing units, at least part of which is for social housing .

Administrative authorizations given to persons as opposed to administrative authorizations in rem are not, in principle, subject to the principle of non-transferability of the public domain. This is the situation with regard to an arrangement whereby the beneficiary of a lease of a market space presents a successor to the municipal authorities .

General Code of Public Property, Art. L. 3111-1.(Code général de la propriété des personnes publiques)

General Code of Public Property, Art. L. 1.

General Code of Public Property, Art. L. 3112-3.

General Code of Public Property, Art. L. 3112-4.

Cons. d'Et., 15 November 2017, LawLex202200000991JBJ.

Cons. d'Et., 1 March 1989, LawLex202200000990JBJ.

Cass. 1re civ. 3 May 1988, LawLex202200000039JBJ.

General Code of Public Property, Art. L. 2211-1.

Law No 46-628 of 8 April 1946, Art. 16. For an application, See Cass. 1re civ. 3 May 1988, LawLex202200000039JBJ.

General Code of Public Property, Art. L. 3211-1.

General Code of Public Property, Art. L. 3211-7.

General Code of Public Property, Art. L. 2111-1.

Cass. 1re. civ. 5 December 1995, LawLex202200000424JBJ.

General Code of Public Property, Art. L. 2111-2.

Cons. constit., 18 September 1986, LawLex202200000989JBJ.

Cons. d'Et., 11 October  1995, LawLex202200000988JBJ.

Cass. crim., 17 March 2015, LawLex202200000575JBJ.

General Code of Public Property, Art. L. 3112-1.

General Code of Public Property, Art. L. 3112-2.

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10. Inalienability of the public domain

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10. Inalienability of the public domain

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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