S.A.R.L. DU PARC D'ACTIVITES DE BLOTZHEIM AND LA S.C.I HASELAECKER v. FRANCE
Inadmissible
The applicants, Parc d’activités de Blotzheim (“PAB”), a limited company (société à responsabilité limitée – “SARL”), and Haselaecker, a non-commercial partnership (société civile – “SCI”), were both incorporated under French law and have their registered office in Blotzheim (France). They were represented before the Court by Mr P. Martin, of the Paris Bar. The French Government (“the Government”) were represented by their Agent, Mr R. Abraham, Director of Legal Affairs at the Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The Mulhouse-Rhin-Mines outline development scheme, approved in a prefectoral order of 15 September 1977, made provision for the building of an industrial estate in the vicinity of Basle-Mulhouse Airport (whose premises are situated on land in the French municipalities of Blotzheim, Hésingue, Bourgfelden and Saint-Louis). On 27 April and 3 May 1989 the managing director of PAB (whose memorandum and articles of association were drawn up before a notary on 8 June 1989) submitted a project to the mayor of Blotzheim for the development of industrial, business and service-sector activities on a site within the municipality’s boundaries, adjoining Basle-Mulhouse Airport. On 16 May 1989 Blotzheim Town Council gave the mayor its consent for the sale to PAB of municipal land within the area covered by the project. It also gave its approval for, among other things, the municipality to undertake to waive its right of pre-emption over the land which the company intended to use, a special planning area (zone d’aménagement concerté – “ZAC”) to be created on the site and the procedure for revision of the municipality’s land-use plan (plan d’occupation des sols) to be initiated. By notarial deeds of 30 June 1989 PAB purchased various plots of land in Blotzheim from the municipality. On 11 January 1990 the town council decided to take steps to create a ZAC, to set in motion the appropriate procedure and to revise the land-use plan accordingly. A public consultation meeting was held on 28 February 1990 about the proposal to create the ZAC. On 2 March 1990, in the light of the findings of the consultation process, the town council formally decided to create the ZAC. In the meantime, on 4 July 1989, Basle-Mulhouse Airport’s board of directors had adopted, confidentially, a general development plan in which it was proposed, in particular, to acquire additional land and build a third runway on the same site which the developers of the Blotzheim industrial estate intended to use. On 8 September 1991 PAB submitted its building project to the airport’s board of directors. In a letter to the board dated 1 December 1989 it had emphasised that the project would not hinder the development of the airport’s activities. On 17 April 1990 the board of directors decided to take the necessary steps to set aside the land it required in order to implement its development plan. On 6 December 1989 it had decided to apply to the prefect of the département of Haut-Rhin to set in motion the procedure by which the development plan could be designated as a “project in the public interest”. In an order of 17 May 1990 the prefect of Haut-Rhin designated the development plan as a “project in the public interest” and served formal notice on the municipality of Blotzheim to revise its land-use plan to take the project into account. As the mayor of Blotzheim did not reply within the statutory time-limit, the prefect made an order on 11 July 1990 for the revision of the land-use plan. After Basle-Mulhouse Airport’s board of directors had amended its development plan and the statutory three-year period had expired without the above-mentioned orders having been confirmed, the prefect of Haut-Rhin made further orders on 14 March 1993 (designating the plan as a “project in the public interest” and serving formal notice on the mayor) and 26 October 1993 (requiring the revision of the land-use plan). The municipality of Blotzheim, PAB and SCI Haselaecker applied to the Strasbourg Administrative Court, which in a judgment of 27 October 1995 set aside the decision taken by Basle-Mulhouse Airport’s board of directors on 6 December 1989 and the prefect’s orders of 17 May and 11 July 1990 and 14 May and 26 October 1993. Ruling on a preliminary objection as to admissibility lodged by Basle-Mulhouse Airport, the court held that PAB had an interest in seeking to have set aside the decision taken by Basle-Mulhouse Airport’s board of directors on 6 December 1989 and the subsequent orders, on the ground that prior to that date the municipality of Blotzheim had promised to sell it the land in question. As to the merits, the court pointed out that Basle-Mulhouse Airport was governed by the Franco-Swiss treaty signed in Berne on 4 July 1949, which provided, among other things, for the building of two runways and for the expropriation of 536 ha of land (Articles I and IV of Annex III to the treaty), and that under the treaty, although the airport’s board was empowered to draw up plans to expand the airport, its exercise of that power was subject to the limits laid down in the treaty regarding both the airport’s infrastructure and the maximum area of land to be expropriated. Noting that in the instant case the development plan adopted by the airport’s board had exceeded those limits, the court set aside the decisions in issue. On 25 January 1996 Basle-Mulhouse Airport’s board of directors decided to ask the governments concerned to revise the specifications appended to the Franco-Swiss treaty of 4 July 1949 in accordance with Article 19 of the treaty, and to increase the maximum area that could be expropriated for use by the airport from 536 ha to 850 ha with a view to building a third runway. That proposal was agreed to in an exchange of notes (on 12 and 29 February 1996) between the French Government and the Swiss Federal Council; the agreement came into force on 29 February 1996. On 13 May 1996 the French President issued a decree publishing the agreement. On 12 July 1996 the applicant companies applied to the Conseil d’Etat seeking to have the decree annulled. Observing that the ratification of the Franco-Swiss treaty of 4 July 1949 had been authorised by a law of 1 August 1950, they submitted that in accordance with Article 53 of the Constitution (which provides that “... treaties or agreements ... entailing a financial commitment on the part of the State ... may be ratified or approved only by an Act of Parliament”) and with the principle that power to enact and amend legislation should be vested in the same authority, such an amendment required the legislature’s intervention and could not be carried out by the simplified method of an exchange of notes. They added that the decree in issue and the agreement published in it contravened Article 19 of the treaty (by which “amendments to the articles of association and specifications following a decision by a two-thirds majority of the serving members of the board may be effected by agreement between the two Governments”) in that they went beyond the purpose of the simplified amendment procedure. The companies further submitted that the exchange of notes published by the decree in issue incorrectly stated that the requirements of paragraph 9 of the specifications appended to the treaty had been satisfied. Whereas paragraph 9 made the procedure laid down in Article 19 conditional on the production of a detailed description and estimate – entailing the acquisition by the French State of the land needed for the airport – a significant portion of the 536 hectares of land corresponding to the maximum area that could be expropriated had not been acquired by the French State. Lastly, they argued that the agreement in issue contravened the treaty’s financial clauses. The Conseil d’Etat dismissed the application in a judgment of 18 December 1998. It pointed out that by the Law of 1 August 1950 Parliament had authorised the ratification of the Franco-Swiss treaty of 4 July 1949, which had from the outset provided for the possibility of extending the airport’s premises, and that Parliament should therefore be regarded as having “by that law authorised the expenditure associated with the development and operation of additional structures or facilities designed to compensate for the inadequacy of existing structures or facilities”, so that there had been no breach of Article 53 of the Constitution. As regards the applicant companies’ other submissions, the Conseil d’Etat held: “Although the applicant companies submit that the agreement of 12 and 29 February has a broader purpose than the mere drawing up of an amendment to the specifications appended to the treaty of 4 July 1949 and that, consequently, it could have not been concluded under the simplified procedure provided for in Article 19 of the treaty, the choice of the means by which international treaties and agreements are to be concluded is indissociable from the conduct of diplomatic relations and, accordingly, cannot be challenged in proceedings before the administrative courts. Nor is it the task of the Conseil d’Etat, acting in its judicial capacity, to review the assessment by the French Government and the Swiss Federal Council of whether the requirement to produce a detailed description and estimate, as laid down in paragraph 9 of the specifications appended to the treaty, was satisfied and whether the expansion of Basle-Mulhouse Airport was necessary. Lastly, although the applicant companies criticised the content of the exchange of notes published by the impugned decree in relation to the provisions of the treaty of 4 July 1949, it is not for the Conseil d’Etat, acting in its judicial capacity, to rule on the validity of an international undertaking in relation to other international undertakings.” “The President of the Republic shall negotiate and ratify treaties. He shall be informed of all negotiations leading to the conclusion of an international agreement not subject to ratification.” “Peace treaties, commercial treaties and treaties or agreements relating to the organisation of international affairs, or entailing a financial commitment on the part of the State, or amending legislative provisions, or relating to the status of persons, or entailing the cession, exchange or acquisition of territory, may be ratified or approved only by an Act of Parliament. They shall take effect only after having been ratified or approved. No cession, exchange or acquisition of territory shall be valid without the consent of the populations concerned.” “Treaties or agreements that have been lawfully ratified or approved shall, upon publication, prevail over Acts of Parliament, subject, in respect of each agreement or treaty, to its application by the other party.” “The Minister for Foreign Affairs shall have sole responsibility for ensuring the ratification and publication of international treaties, agreements, protocols and regulations to which France is a signatory or by which France is bound. The same shall apply to the renewal or denunciation of such agreements. ...” “After transmission to the Minister for Foreign Affairs and, where necessary, ratification, the treaties, agreements, protocols and regulations referred to in the preceding Articles, where their implementation is liable to affect the rights or obligations of individuals, shall be published in the Official Gazette of the French Republic. ...”