Expropriation: the government commissioner can appeal, it's legal

Imagine: you own a house in Chinon, with a nice garden. One morning, you receive a letter from the town hall: your land is involved in a public utility project, and expropriation (a procedure allowing the State to compel you to sell your property in return for compensation) is launched. You negotiate compensation, but the amount offered by the administration seems derisory. You challenge it before the expropriation judge. And then, surprise: the government commissioner (the State's representative in the proceedings) appeals the decision. You wonder: does he have the right to do so? Is this not an infringement of your right to a fair trial?

This is exactly the question that arose in the case decided by the Court of Cassation on 23 June 2010 (No. 09-13.516). A property owner challenged the possibility for the government commissioner to appeal, arguing that it breached equality of arms (the principle that each party must have the same means to defend its interests). The Court ruled: yes, the government commissioner can appeal, and this is not contrary to the European Convention on Human Rights.

This decision, often overlooked, has direct consequences for any owner faced with expropriation. It clarifies the role of the government commissioner and the rules of the game. In this article, we dissect the case, explain what it changes for you, and give you tips to avoid being caught off guard. Whether you are in Amboise or elsewhere, these rules apply throughout France.

The facts: a story like any other

Mr X, owner of a plot of land in Chinon, had signed a preliminary sale agreement (a pre-contract promising to sell) with a buyer in 2001. The land was intended for the operation of a gravel pit. But the land use plan (POS, a planning document) in force at the time prohibited such operation. The sale never took place, and the preliminary agreement became void.

A few years later, the land is targeted for expropriation. The expropriation judge sets the compensation due to Mr X. The government commissioner, considering that the compensation was too high, appeals the decision. Mr X challenges this: according to him, the government commissioner is not a party to the proceedings like any other and should not be able to appeal. He invokes Article 6 § 1 of the European Convention on Human Rights, which guarantees the right to a fair trial and equality of arms.

The case goes up to the Court of Cassation. Mr X argues that the articles of the Expropriation Code (R. 13-47 and R. 13-49) which allow the government commissioner to appeal are contrary to the Convention. The Court must decide: does the government commissioner have the right to appeal? And if so, does this respect equality of arms?

The reasoning of the court — analysed

The Court of Cassation begins by recalling that the government commissioner, under Article R. 13-7 of the Expropriation Code, carries out his mission in compliance with the adversarial principle (the principle that each party must be able to discuss the other's arguments). He is therefore a party to the proceedings, just like the expropriated owner or the expropriating authority (the administration carrying out the expropriation).

Next, the Court examines the amendments made by the decree of 13 May 2005 and the law of 13 July 2006. These texts strengthened the government commissioner's access to tax information (notably via Article L. 135 B of the Tax Procedures Book), enabling him to better assess compensation. For the Court, these changes ensure equality of arms between the parties: the government commissioner now has tools to defend the administration's interests, but his powers are regulated and he remains subject to the adversarial principle.

The Court concludes that the provisions allowing the government commissioner to bring a principal appeal and a cross-appeal (an appeal brought by a party after the principal appeal) are not contrary either to Article 6 § 1 of the Convention or to Articles R. 13-7 and R. 13-32 of the Expropriation Code. In other words, the government commissioner does have the right to appeal, and this does not violate the right to a fair trial. This decision confirms earlier case law: the government commissioner is a full participant in the expropriation procedure, with the same rights as other parties.

What this changes for you — practically

For you, the expropriated owner, this decision means that you have to deal with an adversary who has the same weapons as you, including the right to appeal. In concrete terms, if the first-instance judge awards you compensation that the government commissioner considers too high, he can appeal. You will then have to defend your compensation before the court of appeal, which can take time and money.

Let us take a numerical example: in Amboise, an owner is offered €50,000 for his land. The expropriation judge sets the compensation at €80,000. The government commissioner appeals. The court of appeal could reduce the compensation to €60,000. The owner will then have to bear the costs of a lawyer and expert for the appeal proceedings, with no guarantee of keeping the initial amount.

If you are a landlord (you rent out your property), be vigilant: expropriation can concern a rental property. The compensation then includes the value of the property and the rental loss (loss of rent). The government commissioner can challenge these amounts on appeal.

For tenants, expropriation leads to the termination of the lease (end of the rental contract). You are entitled to an eviction compensation (compensation for leaving). Here again, the government commissioner can appeal if he considers the compensation excessive.

If you are a buyer of an expropriated property (for example, you signed a preliminary agreement before the expropriation), note that expropriation can render the preliminary agreement void, as in the Chinon case. You could lose your purchase and have to seek damages (financial compensation) from the seller.

Four tips to avoid this type of dispute

• Have your property valued by an independent expert from the start of the procedure. Do not rely on the administration's estimate. An expert can justify a higher compensation, and your arguments will be stronger if the government commissioner appeals.
• Keep all documents relating to your property: preliminary sale agreements, surveys, rent receipts, invoices for works. Any evidence proving the value or income of the property can be used to defend the amount of compensation.
• Do not sign anything without the advice of a lawyer specialised in expropriation. The administration may offer you an amicable compensation, but once signed, you waive the right to challenge. A lawyer will check whether the offer is fair.
• Anticipate the appeal: if you obtain compensation at first instance, prepare for the government commissioner to appeal. Gather your arguments and evidence from the outset to save time.

Further information: related case law and developments

This 2010 decision is part of a consistent line of case law. Already in 2006, the Court of Cassation had ruled that the government commissioner was a party to the proceedings (Civ. 3e, 14 June 2006, No. 05-15.123). The 2010 judgment confirms and clarifies this point, incorporating the legislative developments of 2005 and 2006.

Another important decision is that of the Council of State of 22 February 2008 (No. 295089), which validated the compatibility of the government commissioner's role with Article 6 of the European Convention. The two orders of jurisdiction (judicial and administrative) are therefore in agreement on this point.

Since 2010, the trend has been towards strengthening the powers of the government commissioner, particularly through access to tax data. This means that owners must be even more rigorous in defending their interests. The courts are committed to procedural balance, but this balance often works in favour of the administration, which is better equipped.

In the future, we can expect the legislature to continue harmonising the rules of expropriation, perhaps by simplifying the routes of appeal. But for now, the government commissioner's right to appeal is firmly established.

In practice: what to do

FAQ:

• Q: Can the government commissioner appeal any expropriation decision?
  A: Yes, he can appeal any decision setting expropriation compensation, whether the principal amount or ancillary items (costs, etc.).
• Q: Can I myself appeal if the compensation is too low?
  A: Absolutely. You have the same right to appeal as the government commissioner. That is the principle of equality of arms.
• Q: What are the time limits for appealing?
  A: The time limit is one month from the notification of the judgment (the date you receive the written decision). After this time, you lose the right to challenge.
• Q: How much does an appeal procedure in expropriation cost?
  A: Lawyer's fees vary, but expect between €1,500 and €5,000 for an appeal, depending on complexity. You can apply for legal aid (state assistance) if your income is modest.
• Q: What if I lose on appeal?
  A: You can still lodge an appeal in cassation (recourse to the Court of Cassation) within two months, but only on points of law, not on facts. The chances of success are low.

Are you in a similar situation? A first 30-minute consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →