Expropriation due to public utility

The administrative expropriation can be legal only if it is carried out for reasons of public utility. The definition is rather vague, the administrative Juge having a broad power of appreciation which enables him to determine contours of them. The concept of public utility leaves a vast field to the administration since the law of 2001 giving a definition more than vague subject. The concept was much more restrictive before since it was about the public concept of Nécessité.

The administrative judge exerts a control of proportionality since the stop of assembly of the Council of State of May 28th, 1971 known as " New city Est". Within the framework of expropriation due to public utility, the judge applies the theory known as of the assessment " costs avantages". The disadvantages born of expropriation should not be excessive compared to the advantages. In fact, expropriation due to public utility leads in the majority of the cases, the judge cancels only seldom procedures of expropriation on the base of this theory.

The evolution is appreciated starting from article 17 of the declaration of the human rights and the citizen, which comes to protect the “inalienable right and crowned” that the Propriété constitutes, being able to be diverted for a cause of “public need” and realizing a “Juste and preliminary allowance”.

From the Civil code French then came to speak about “public utility” itself. Today, one prefers speech of “General interest”.

Since a law of 1810, the procedure of expropriation is traditionally cut out in two distinct phases: the administrative phase and the legal phase.

  • the administrative phase: This phase is led by the administrative authority (prefect to see minister in certain cases concerning the DUP of great linear works). After public survey, it leads to marked of the declaration of public utility (DUP) of the project. It also initiates the transfer of property which will be pronounced by the legal authority (judge of expropriation) with the profit of expropriant. The compartmental investigation, which can be led - under certain conditions - jointly to the investigation preliminary to the DUP, makes it possible on the one hand to identify the owners concerned with the project and on the other hand to bring to their attention the limits of influence of the project on their property. Under the terms of this investigation, the administrative authority declares the grounds concerned transferable with the profit of expropriant. The decree of transferability constitutes the background document on which the legal authority will rest to pronounce the transfer of property to the profit of expropriant.
  • the legal phase: This phase led by the legal authority (judge of expropriation) leads on the one hand to the transfer of property of the building exproprié to the profit of expropriant (ordinance of expropriation carrying transfer of property) and on the other hand to the determination of the compensations that expropriant it will have to allocate with exproprié in compensation for damage that this one undergoes by expropriation.

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