The acquisition of property by way of expropriation subsequently resold by the expropriating party under conditions allowing him to realize a capital gain to the detriment of the expropriated parties is a question frequently invoked before the courts. The reported decision is yet another example.
As part of an expropriation procedure launched by the local public company Territoire d’innovation, the expropriation judge was seized for the determination of the compensation due to company F. following the expropriation of several plots belonging to him.
Dissatisfied with the decision of the Lyon Court of Appeal of December 7, 2021, company F. appealed to the Court of Cassation, on the occasion of which it asked to refer to the Constitutional Council the following priority question of constitutionality :
“The provisions of article L. 322-2, paragraphs 2 and 4, of the code of expropriation for public utility declared in conformity with the Constitution by a decision n° 2021-915 QPC of June 11, 2021 in the insofar as the expropriated party may appeal against the decision of public utility before the administrative courts, in the event of added value manifestly exceeding the needs of the project and certain realized by the expropriating authority to its detriment, do they not disregard Article 17 of the Declaration of the Rights of Man and of the Citizen of 1789 subjecting expropriation to the payment to the expropriated party of a fair and prior indemnity, insofar as they deprive the expropriated party of any control over the capital gains realized by the expropriating party since the Council of State, by a decision of March 22, 2022, made impossible any control by the administrative judge on the existence and the importance of the future capital gains of the expropriating party in judging that the expected revenue from the wind Does the future of the land and the expropriation operation not have to be included in the public inquiry file on the basis of which its control is exercised? »
To understand the stakes represented by this QPC, it is necessary to make a slight reminder of the jurisprudential series relating to the estimation of the value of an expropriated property subsequently resold by the expropriating party.
By decision no. 2021-915 QPC of June 11, 2021, the Constitutional Council declared article L. 322-2, paragraphs 2 and 4, of the code of expropriation for public utility to be constitutional, thus refusing the judge setting the compensation for expropriation to take into account the price at which the expropriating party intends to resell the expropriated property under conditions already known. The meaning of this decision had wronged the author of the QPC who criticized this provision for allowing the expropriating party to realize a certain substantial added value, to the detriment of the expropriated party (Cons. const. June 11, 2021, No. 2021-915/916 QPC, Dalloz news, June 19, 2021, observation G. Hamel; AJDI 2021. 696 , obs. G.Hamel ; ibid. 658, study F. Lévy ).
Subsequently, the decision of the Constitutional Council was applied by the Court of Cassation in a judgment of March 2, 2022, according to which the expropriation judge is not required to carry out a review relating to the disproportionate attack on the right to respect for the property, resulting from the added value benefiting the expropriating party during the resale of the plots expropriated for the realization of the public utility operation (Civ. 3e1er Apr. 2021, n° 20-17.133, Dalloz news, March 17, 2022, obs. G.Hamel; AJDA 2021. 768 ; AJDI 2021. 377 , obs. G.Hamel ).
Finally, very recently the Council of State ruled, along the same lines, that the revenue expected from the future sale of the land and the expropriation operation “neither should be included the revenue expected from the future sale of the land and the expropriation operation” (CE 22 March 2022, n° 448610, Crossroads Evangelical Church Association, Dalloz news, March 30, 2022, obs. E. Maupin; Good ; AJDA 2022. 610 ; RDI 2022. 275, obs. R. Hostiou ; AJCT 2022. 411, obs. D. Chauvaux ).
Close the debate
On the strength of these multiple constant cases on the subject, the Court of Cassation, in the judgment reported, prefers to close the debate and not to refer the QPC once again to the Constitutional Council.
Indeed, after analyzing the scope of the decision rendered on March 22, 2022 by the Council of State, the Court of Cassation indicates that this decision does not constitute a change in the circumstances of law likely to affect the constitutionality of these provisions, for two reasons:
the decision does not constitute a modification of previous case law,
the Constitutional Council did not base itself, in order to declare article L. 322-2 of the code of expropriation for public utility in conformity with the Constitution, on the existence of an appeal against the declaration of public utility that can be exercised before the administrative judge in the event of certain added value exceeding the needs of the project, realized by the expropriating authority to the detriment of the expropriated party.
The Court of Cassation concludes that no change in the legal or factual circumstances has occurred which, affecting the scope of the contested provisions, would justify their re-examination.
More than a year later, the decision of the Constitutional Council of June 11, 2021 is struggling to achieve unanimity among the expropriated, who remain very motivated to try to soften or change the current position of the Constitutional Council.