A change in case law regarding the challengeable nature of a proposal for classification as a national monument

In a recent and interesting ruling handed down on 6 November 2018, the Administrative Court reversed the traditional solution regarding appeals initiated against a proposal for classification as a national monument, such a decision usually being considered a preparatory act, and therefore not subject to appeal.

1. The classification process

In terms of the applicable legal framework, the provisions of the amended Act of 18 July 1983 on the conservation and protection of national sites and monuments (hereinafter “the 1983 Act”) set out the process to be followed by the authorities, which begins with a classification proposal issued by ministerial decree:

“The building belonging to any person other than those listed in article 3 is proposed for classification by order of the Minister, the Commission des Sites et Monuments Nationaux and the local council of the municipality in whose territory the building is located being heard in their opinions, which must be produced within three months of notification of the classification proposal. Once this period has elapsed, the proposal is deemed to have been approved.
The order determines the conditions of the classification“. (Article 4, §1-2 of the 1983 Law)

In accordance with Article 5 of the aforementioned Law of 1983, “From the day on which the Minister notifies the owner of his classification proposal, all the effects of the classification referred to in Articles 9 to 15 shall apply ipso jure to the property concerned“, this reference mainly covering :

– the obligations to inform (i) a potential purchaser of the existence of the classification, and (ii) the Minister of the sale, if the sale goes ahead (Art. 9 of the 1983 Act);

– prohibitions on destroying the building, changing its use and carrying out work without prior ministerial authorisation (Art. 10 of the 1983 Law);

Following this classification proposal, and in the event that the owner does not consent to the principle of classification, the effects of the latter will continue until a classification decision is taken, which must be within twelve months of the initial proposal.

Finally, in accordance with article 4 §6 of the 1983 Law, if the owner decides to oppose the classification, the final classification decision may be challenged before the administrative court.

2. The question of whether the ministerial classification proposal should be classified as a preparatory act

Traditionally, it was considered that the Minister’s classification proposal was to be regarded as a simple preliminary decision, which could not be challenged by an appeal to the administrative court.

It is generally accepted that only the final decision causes a complaint and that preparatory decisions cannot be appealed, in particular to avoid paralysing the administrative decision-making process.

This approach can be illustrated by examining the case law of the administrative courts:

– that the municipal decision to determine the outline of a construction project, in the context of the launch of a public procurement procedure, is a “preparatory and interim act” not subject to appeal (Cour administrative – 5 January 2010 – docket no. 26461C);

– that the provisional approval of a draft amendment to a General Development Plan is a simple “putting into orbit” that cannot be appealed unless it has direct legal effects on the public (for a recent example, the Administrative Court – 20 September 2018 – docket no. 39678).

From this point of view, the administrative court ruled in 2011 that the proposal to classify the site as a national monument, a decision considered to be non-final, could not be appealed:

“The court must therefore conclude that the Minister of Culture’s proposal order does not constitute the final decision in the matter subject to appeal, but is merely a preparatory act prior to the final decision, which is therefore only one stage in the procedure for drafting it. This interpretation is also based on the fact that Article 4 of the Law of 18 July 1983 provides for only one means of appeal, namely an appeal for reversal against the final act, i.e. the classification decision taken by the Government in Council“. (Administrative Court – 4 April 2011 – docket no. 26908)

In the case in point, in 2017, a few years after acquiring buildings on adjoining plots of land, a company was notified of a ministerial order containing a proposal to classify the buildings as national monuments.

The company lodged an appeal against this decision and the administrative court ruled that such an appeal was inadmissible, relying on its traditional case law and taking into consideration the conservatory and provisional effects of the classification proposal:

” (… While it is true that, by virtue of the said section, all the effects of classification referred to in sections 9 to 16 of the said Act apply ipso jure to the immovable concerned from the day on which the Minister notifies the owner of his proposal for classification, the fact remains that these effects are only conservatory and provisional, so that they will either be confirmed by the final classification decision taken by the Government in Council, or to terminate if the latter does not take a decision within a period not exceeding twelve months from notification of the ministerial proposal for classification, it being noted that it is common ground that, in the meantime, the Government in Council has issued a decree classifying the buildings at issue, against which the company . … has also brought a contentious action in which it may validly put forward its objections in relation to the grounds on which the contentious classification was based.

It follows from the foregoing that the subsidiary action for annulment directed against the order of the Minister for Culture of 30 March 2017 proposing the buildings located at …, in … for classification as a national monument on the grounds of their historical, architectural and aesthetic interest is to be declared inadmissible as not being directed against an administrative act against which an appeal is possible.” (Administrative Court – 11 June 2018 – docket no. 39639)

In its judgment handed down on 6 November 2018, the magistrates of the Administrative Court decided to overturn this decision by focusing on the effects of the classification proposal, which go beyond a mere preparatory act:

“From this point of view alone, the classification proposal could be described as a preparatory act if it did not have the precise and decisive effects set out in Article 5 of the same law.

It follows from Article 5 that, for a period not exceeding 12 months, all the effects of the classification itself, as referred to in Articles 9 to 15 of the same law, apply ipso jure to the property concerned.

It is clear that Article 5 in question gives the classification proposal the same effects as a classification proper for the maximum period of 12 months in the verified event of a dispute on the part of the owner concerned.

It follows directly from this simple observation that the classification proposal within the meaning of Articles 4 and 5 of the Law of 18 July 1983 is in no way a mere preparatory act, but comes very close to classification proper in that the law itself gives the classification proposal the same effects as classification proper.

(…)
The proposal for classification in question, as provided for by the said Articles 4 and 5, is eminently capable of being analysed as an individual administrative decision and undoubtedly does not adversely affect the owner concerned in so far as he contests the proposed classification.
Even if the effects of this proposal are limited in time, they are no less detrimental to the person affected.

By reversal of the judgment under appeal, the appeal by the company … is to be declared admissible under the aspect of the administrative act causing prejudice.” (Administrative Court – 6 November 2018 – no. 41339C)

Notwithstanding the interest of being able to better identify the analysis of the administrative courts at the level of the qualification of preparatory act, this decision opens the way to actions immediately directed against the ministerial proposal, without having to place oneself in the forced waiting of a decision of confirmation that can intervene up to twelve months after this first act.

For the sake of completeness, it should be noted that in this case a final classification decision was taken and the applicant company also lodged an appeal against this decision.

Now that the Administrative Court has referred the case back to the court, following a finding that the appeal against the ministerial proposal was admissible, it will be interesting to follow this case to see whether, if the ministerial order is annulled, the incidental classification decision will fall with it, or whether the Administrative Court will consider that the successive decisions are independent.