Unfounded review of proportionality: the capital gain benefiting the expropriator when the expropriated plots are resold does not cause a damage resulting from the dispossession (ruling 20-17.133)

Public hearing of 2 March 2022

Dismissal

Ms TEILLER, President

Ruling No. 209 FS-B

Appeal No. M 20-17.133

FRENCH REPUBLIC

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ON BEHALF OF THE FRENCH PEOPLE

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RULING OF 2 MARCH 2022 DELIVERED BY CIVIL CHAMBER No. 3 OF THE COUR DE CASSATION (COURT OF CASSATION)

1. Mr [O] [B], domiciled at [Address 4] (Canada),

2. Ms [U] [B], domiciled at [Address 5] (Canada),

3. Mr [E] [B], domiciled at [Address 3] (Switzerland), 4. Mr [J] [B], domiciled at [Address 6] (Canada),

lodged appeal No. M 20-17.133 against the ruling delivered by the cour d'appel (Court of Appeal of Lyon, Civil Chamber No. 1B, expropriations) in their dispute on 26 May 2020:

(1) the local public company Territoire d'innovation, with registered office at [Address 2],

(2) the departmental management of public finance of l'Ain, domiciled at [Address 1], respondents before the Cour de cassation (Court of cassation).

In support of their appeal, the plaintiffs rely on the single ground for the quashing attached to this ruling.

The case file has been sent to the Prosecutor-General.

Concerning Ms Djikpa’s report, judge referee, the comments of SCP Piwnica and Molinié, lawyers of Mr and Mrs [B], SCP Bauer-Violas, Feschotte-Desbois and Sebagh, lawyers of the local public company Territoire d'innovation, and Mr Burgaud’s advisory opinion, advocate-general referee, following debate in the public hearing of 25 January 2022 in the presence of Ms Teiller, President, Ms Djikpa, reporting judge referee, Mr Maunand, elder judge, Mr Nivôse, Ms Farrenq Nesi, Ms Greff-Bohnert, Mr Bech, Mr Boyer, Ms Abgrall, Ms Grandjean, judges, Mr Burgaud, advocate-general referee, and Ms Berdeaux, chamber registrar,

Following deliberation in accordance with law, Civil Chamber No. 3 of the Cour de cassation (Court of Cassation), comprising, pursuant to Article R. 431-5 of the Judicial Code, the abovementioned president and judges, delivered this ruling.

Partial withdrawal

1. With regard to Messrs [O], [E] and [J] [B] and Ms [U] [B] (Mr and Mrs [B]), cognizance has been taken of the withdrawal of their appeal insofar as it was lodged against the departmental management of public finance of l'Ain.

Facts and procedure

2. The ruling under appeal (Lyon, 26 May 2020) determines the compensation to be paid to Mr and Mrs [B] following expropriation of several plots of land belonging to them for the benefit of the local public company Territoire d'innovation.

Reviewing plea On the first and third parts of the plea, Pursuant to Article 1014, paragraph 2 of the Civil Procedure Code, it is not necessary to rule on the basis of a specially reasoned decision regarding these pleas, which are clearly not of a nature to the quashing.

On the second part of the plea

Statement of the plea

3. Mr and Ms [B] object to the ruling insofar as it sets the main compensation for expropriation and the compensation for re-use due to them, where "the court of expropriation must always ensure in practice that the expropriation strikes a fair balance between the requirements of public interest and the imperatives of safeguarding fundamental rights; where the court hearing the expropriation procedure must always carry out a specific review of proportionality in order to ensure, in particular, that the application of a rule of law does not cause a disproportionate infringement of the expropriated party's right to property, in particular by dispossessing them of their property without providing compensation commensurate with the value of said property; where, if the fact that the compensation is not full does not in itself render the State's control over the expropriated property illegitimate, the situation differs when the compensation granted in accordance with the criteria of applicable national law is much lower than the market value of the property in question, where it is not justified by any form of public interest and where it imposes a disproportionate burden on the expropriated party, in particular by affording the expropriating party a very significant capital gain when reselling the expropriated property; where, therefore, by stating, on both its own and expressly adopted grounds, that it is absolutely prohibited to take into account the capital gain made from the fixed assets by the planning operations carried out by the expropriating authority, which removes all interest from the demonstration by Mr and Ms [B] relating to the calculation of the profit the local public company Territoire d'Innovation would make, which does not even have to be examined, or that the capital gain made from the fixed assets by the planning operations carried out by the expropriating authority must not be taken into account to determine the compensation for dispossession, which does not constitute an excessive infringement of the right to respect for property protected by article 1 of the additional protocol to the European Convention on Human Rights, the cour d’appel (Court of Appeal), which refused, as a matter of principle, to carry out a specific review of proportionality and to take into account, when calculating the amount of compensation for expropriation, the considerable capital gain the expropriator had already ensured by immediately reselling the plots at market price, infringed article 1 of additional protocol one to the European Convention on Human Rights."

Court’s response

4. The cour d’appel (Court of Appeal), before which it was not disputed that the expropriated property had been resold for the project declared to be in the public interest, held, on the one hand, that the capital gain generated by the sales as a result of the operation carried out in the public interest by the expropriator did not have to be taken into account to determine the compensation for dispossession, the result of which was that the compensation for "loss of capital gain" claimed by the expropriated parties was not directly linked to the damage resulting from the dispossession, which could only be compensated by the expropriations judge, and that the compensation was commensurate with the value of the expropriated property and their property had been valued on the basis of comparative elements relating to comparable property.
5. Therefore, it was not obliged to carry out an ineffective check on the disproportionate infringement of the right to respect for the property of Mr and Ms [B] that would result from the capital gain benefiting the expropriator when the plots were resold.
6. The plea is therefore unfounded and the application for an advisory-opinion to the European Court of Human Rights must not be accepted.

ON THESE GROUNDS, the Court:

DISMISSES the appeal;

Orders Messrs [O], [E] and [J] [B] and Ms [U] [B] to pay the costs;

Pursuant to Article 700 of the Civil Procedure Code, dismisses the claims;

Thus decided by the civil chamber No. 3 of the Cour de cassation (Court of cassation) and pronounced by the President at the public hearing on the second day of the month of March of the year two thousand and twenty-two.