Expropriation: the prefect remains competent despite decentralisation (Cass. 1985)

Imagine: you are the owner of a house in La Teste-de-Buch, near the Arcachon basin. One morning, you receive a letter from the town hall telling you that a public utility project (a road, a housing estate) will require the expropriation of part of your land. Your first reaction? "Who has the power to decide this? The mayor? The president of the department? The State?" This is exactly the question that arose following the great decentralisation laws of 1982 and 1983. Many believed that the prefect (then called "Commissaire de la République") had lost his central role in the expropriation procedure in favour of the president of the conseil général. But a decision of the Constitutional Council of 13 March 1985 set the record straight: no, the prefect remains the sole master on board to refer the matter to the expropriation judge. This decision, made in a case concerning a parcellaire inquiry in La Teste-de-Buch, has direct consequences for all landowners. Analysis.

The facts: a story like any other

Let's go back to 1981. The prefect of the Gironde issues an order prescribing the deposit at the town hall of the parcellaire inquiry file (i.e. the precise identification of the plots to be expropriated) for a project in the commune of La Teste-de-Buch. The order designates an inquiry commissioner, sets the opening and closing dates of the inquiry, and provides for the posting of notices. Everything seems in order. But an affected owner, Mr X, challenges the validity of the expropriation order made by the judge. His argument? The prefect no longer has standing to refer the matter to the expropriation judge since the decentralisation laws of 2 March 1982, 7 January 1983 and 22 July 1983. According to him, only the president of the conseil général (the elected assembly of the department) could now represent the department and initiate the procedure. The case goes up to the Constitutional Council (the highest court for this type of question). In short, the owner hoped to have the entire procedure annulled by invoking a defect of jurisdiction: if the prefect was not the right interlocutor, the expropriation would be void. But the Constitutional Council did not follow him.

The reasoning of the court — analysed

The Constitutional Council examined the texts one by one. It recalls that Article R. 12-1 of the Code of Expropriation (the regulation that sets out the procedure) gives the prefect the power to refer the matter to the judge. It then checks whether the decentralisation laws modified this rule. Its conclusion is clear: neither the law of 2 March 1982 on the rights and freedoms of communes, departments and regions, nor that of 7 January 1983 (supplemented on 22 July 1983) on the distribution of competences, nor any implementing decree transferred the State's competences in matters of expropriation to the local authorities. In other words, the prefect has not lost his role. The Council emphasises that expropriation falls within the public power of the State, and that local authorities (communes, departments) can only act within the framework of the competences expressly delegated to them. However, no delegation has been made for the referral to the expropriation judge. The decision therefore rejects the owner's argument: the prefect remains competent. What few people know is that this decision was made in the context of a constitutionality review (a posteriori): it does not rule on the merits of the expropriation, but solely on the distribution of powers between the State and the local authorities. undefined that the expropriation procedure remains centralised, even after decentralisation.

What this changes for you — concretely

If you are the owner of land or property in the South-West (or elsewhere in France), this decision has a direct impact: you now know that it is the prefect (the State's representative) who is the main interlocutor in any expropriation procedure, and not the mayor or the president of the department. Concretely, if you receive a public inquiry notice, check that it comes from the prefecture, not just the town hall. For a landlord in Arcachon, whose building might be targeted by a greenway project, it is with the prefect that you must challenge the public utility or the compensation. Example with figures: if your house is expropriated for an amount of €200,000, the procedure can last from 6 months to 2 years. The fact that the prefect is competent does not speed things up, but avoids unnecessary appeals on competence. However, be careful: local authorities may be project owners (they carry the project), but it is always the prefect who initiates the judicial procedure. If you are in this situation, you must verify that the prefectural order mentions the deposit of the parcellaire plan at the town hall, as required by law. The absence of this mention could be a ground for nullity, as the owner of La Teste-de-Buch had raised (even if in his case, the order referred to the order, which was deemed sufficient).

Four tips to avoid this type of dispute

• Check the origin of the inquiry notice: any expropriation notice must come from the prefect, not just the town hall. If in doubt, contact the prefecture.
• Keep all documents: prefectural orders, parcellaire plans, inquiry notices. They are essential to challenge any irregularity.
• Do not rely on rumours of decentralisation: even if your project is carried by the department or the commune, the prefect remains the only one who can judicially expropriate you.
• Consult a lawyer lawyer from the outset: the expropriation procedure is complex and the time limits for appeal are short (2 months to challenge the public utility). A lawyer will help you verify the regularity of the procedure.

Further reading: related case law and developments

This 1985 decision is part of a consistent line: the Conseil d'État had already ruled in 1983 (Ville de Paris case) that decentralisation did not modify the State's competences in expropriation matters. More recently, the Court of Cassation recalled in 2018 (No. 17-70.023) that only the prefect can refer the matter to the judge, even if the local authority is the beneficiary of the expropriation. The trend is therefore clear: no evolution towards a transfer to local authorities. What this means for the future: if a reform were one day to give this power to the presidents of departmental councils, it would have to be explicit. In the meantime, the prefect remains the key actor. undefined, I have encountered cases where owners wasted time challenging the prefect's competence, when the real problem was the amount of compensation. Better to focus on the essentials: the amount of compensation and the regularity of the public inquiry.

Summary and next steps

FAQ:

1. Who can trigger an expropriation? Only the prefect (Commissaire de la République) can refer the matter to the expropriation judge, even after the decentralisation laws.
2. Can I challenge the prefect's competence? Yes, but this 1985 decision shows that such an appeal has very little chance of success. Better to challenge the public utility or the amount of compensation.
3. What are the time limits to act? You have 2 months from the notification of the expropriation order to file an appeal. After this period, the expropriation becomes final.
4. What if the prefectural order does not mention the deposit of the parcellaire plan? This is a potential procedural defect. Consult a lawyer quickly to assess the opportunity of an appeal.
5. Can the mayor expropriate me? No, only the prefect has this power. The mayor can only propose the project, but it is the prefect who conducts the procedure.

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