Legal Newsletter N°1: Public and Administrative Law - Energy
December 23, 2015
Legal update for Energy and Public and Administrative Law in France
Conseil constitutionnel (Constitutional Court) 11 December 2015 (QPC n°2015-507): Article L.671-2 of the Energy Code is constitutional and may deprive filling station operators appearing in the plan for prevention of supply interruptions of the right to suspend the sale and distribution of petroleum products without adversely affecting or unconstitutionally interfering with right to strike, when they are salaried managing directors of filling stations and their liberty to do business, when they are independent.
Voidness and wind power: Article 33 of Decree n°2015-1614 dated 9 December 2015 provides that the voidness rule applicable to ICPE (Installations classes pour la protection de l’environnement – facilities classified for environmental protection purposes) does not apply to wind farms that are covered by vested rights.
Tribunal administratif (Administrative Court) of Bordeaux 3 December 2015 req. n°1304077: Ferso Bio, which had been denied issuance of CO2 quotas for 2005-2007, obtained in 2013 cancellation of such denial (CAA (Administrative Court of Appeal) Bordeaux 4 April 2013, req. n°10BX02988). Having sued the Government to obtain compensation for the loss, it was awarded an amount corresponding to the volume of unallocated quotas multiplied by the average annual value of such quotas.
Decision dated 27 November 2015 defining the terms and conditions for completion and delivery of the paperwork for terminating a hydraulic energy concession (JORF (Official Gazette) dated 10 December 2015 p.22763).
Decision dated 27 November 2015 relating to valuation of receipts from the hydroelectric concessions mentioned in Article L. 523-2 of the Energy Code (JORF dated 10 December 2015 p.22763).
Reasoned Opinions by the European Commission, dated 19 November 2015, to France for complete non-transposition of the Directives relating to radioactive waste and energy efficiency.
Decree n°2015-1369 dated 28 October 2015 relating to simplification of the procedures to build various public works for supply of electricity (JORF n°0252 dated 30 October 2015 page 20172). This Decree ends the obligation for issuance of a building permit, when a project involves an overhead electric line and its supporting structures and the construction project has been approved as provided in Article L. 323-11 of the Energy Code.
Tribunal administratif (Administrative Court) of Rennes 23 October 2015, req. 1301056: An Administrative Court cancelled the regional wind energy plan for Brittany insofar as it covered the entire region without showing, on the basis of data collected in accordance with a scientific method, that the entirety of the region had actual wind power potential.
Conseil d’Etat (Council of State) 14 October 2015, req. n°369995: The Council of State affirmed that a permit to clear wooded areas belonging to local governmental bodies may not be granted without the opinion of the Office national des forêts (Forest Service).
Conseil d’Etat (Council of State) 25 September 2015, req. n°369055: An administrative law judge held that the CRE had the power to adjust the pricing structure of networks for transporting and storing natural gas as long as it does not infringe the right to engage in commerce and industry. Storengy challenged the legality of the CRE’s decision, dated 13 December 2012, which held that rates for interface points between the transportation network or system and storage structures should be harmonized.
Conseil d’Etat (Council of State) 25 September 2015, req. n°386077: The Council of State held that the ancillary services defined by the CRE are covered by the scope of services undertaken on an exclusive basis by managers of networks or systems for electricity distribution. Here, such was not the case.
Conseil d’Etat (Council of State) Conseil d’Etat 10 September 2015, req.n°331016: After an expert fact-finding, the Administrative Law Judge found that the SNCF should receive EUR129 million (value as of 1st May 2010) as a price for the sale of electricity transportation infrastructures sold to RTE on such date.
Law n°2015-992 dated 17 August 2015 relating to energy transition for green growth. This law has 215 articles covering numerous areas of the energy sector. In addition to enactment of a limitation on nuclear power (50%) in the energy mix, this statute substitutes a feed-in premium mechanism for the feed-in tariff applicable up to now in the area of generating electricity from renewable energy sources. The statute also establishes (i) a maximum period of 18 months to connect the above-described installations, (ii) a minimum distance of 500 meters between wind energy facilities and dwellings, and (iii) extends the system for single approval for all regions of France. Finally, the scheme for hydroelectric concessions was amended to allow for (i) the combining of several concessions, (ii) changes to rates for royalties paid by a concession-holder to the licensor, and (iii) creation of hydroelectric SEMs.
Conseil d’Etat (Council of State) Conseil d’Etat 22 July 2015 (Avis), req. n°388853: The Council of State ended (theoretically) the class action brought by more than 12,000 consumers of electricity, holding that the CSPE was not a full party in light of cancellation by it, on 28 May 2014, of the aid (Vent de Colère, req. n°324852). This opinion, furthermore, set forth the dispute scheme for unnamed impositions.
Public and Administrative Law
Ordonnance (Decree-Law) n°2015-1628 dated 10 December 2015 relating to guarantees or security interests consisting of a formal taking of a position, enforceable against the State, on application of a standard to the de facto situation or to the applicant’s project. The Decree-Law adds a section 2 to Article L 2122-7, of the Code général des propriétés des personnes publiques (General Code on governmental property and entities). It states that the holder of a temporary occupancy permit may request that the authority that issued it indicate whether, in light of the facts submitted to it at that stage and subject to a subsequent change in legal or factual circumstances which would require that it reconsider its decision, it could issue the approval to a given person that may be substituted thereto for the term of the approval remaining to run, in the rights and obligations resulting from such approval. Such provisions are not applicable to permits to occupy the public domain issued after a publication procedure and competitive bidding.
Conseil d’Etat (Council of State) 18 November 2015, req. n°380461: The Council of State clarified the methodology to be followed, when an illegal decision may give rise to compensation. The court, initially, must determine the type of irregularity committed, then “find, basing its conclusion on all the facts produced by the parties, whether, in light of the type and seriousness of such procedural irregularity, the same decision could legally have been made regarding both the principle itself of the penalty to be imposed and its amount in connection with the irregular proceeding.”
Conseil d’Etat (Council of State) 12 November 2015, req. n°384716: The exceptional and unforeseeable problems encountered in performing a public lump-sum contract may be indemnified either if they had the effect of upsetting the economics of the contract, or if they were attributable to an action by the governmental authority. The Court stated that the breach by the governmental authority may be committed “in particular in exercising its powers of supervision and management of the project, in the estimation of needs, in the very design of the project, or its implementation, in particular in the event where several co-contractors are involved in completion of public works.”
Conseil d’Etat (Council of State) 27 October 2015, req. n°386595: The Council of State held that the decision selecting a contractual partner with the Government (evidenced by the press release dated 4 December 2014), establishing the terms and conditions of transfer to the private sector, and the ministerial authorization to sign the agreement for sale of the Government’s stake in Aéroport de Toulouse SA (private law agreement) are individual decisions and not regulated ones over which only administrative court of Paris has jurisdiction. The petitioners, therefore, could pursue their claim in such court.
Conseil d’Etat (Council of State) 23 October 2015, req. n°369113: The Council of State held that action by a local government council entering into an administrative long-term lease is not necessarily improper, when it has occurred without involvement of the service des domaines (bureau of public lands), which, however, is provided by Article L.2241-1, paragraph 3 of the Code général des collectivités territoriales (Local Government Code). The authority of the local government council is not affected, and it is not deprived of a guarantee for purposes of the “Danthony” case law.
CSA Decision n°2015-367 dated 14 October 2015: The CSA (“Conseil Supérieur de l’Audiovisuel – Superior Audiovisual Council) handed down a rare decision revoking the broadcast permit granted to Diversité TV France on the ground, among others, that a change of control of the company had been hidden from the CSA, and that such company had met its obligations only very partially under the permit that it held. The CSA added that valuation of the sale depended solely on the existence of the governmental approval. It then characterized the proposed change of control as an “abuse of law that is fraudulent in character.”
Conseil d’Etat (Council of State) 1st October 2015, req. n°381078: The treatment given to information and external disclosure—in the instant case, consisting of a mayor sending information on school rhythms—may be exempt from filing with the “CNIL” (privacy protection agency).
Conseil d’Etat (Council of State) 18 September 2015, req. n°376973: When the court in which a claim is brought involving contractual liability decides, sua sponte, as the case may be, to disregard an agreement because of irregularities and improprieties applying to it, the parties may pursue their claims by invoking, even for the first time on appeal, arguments based on unjust enrichment or breach, even though such arguments are based on new legal grounds. If the claimant decides not to pursue the case, but to bring a new damage claim, he/she/it is not bound by the rule of prior administrative adjudication.
Decree n°2015-1145 dated 15 September 2015 amending the Code de justice administrative (Code of Administrative Justice). Among many adjustments, note should be taken, in particular, that, in the event of a connection between a petition falling under the jurisdiction of a civil court of first instance and another falling under the jurisdiction of the first instance of [an appeals] court, the matter should be settled by the Court of Appeal. Furthermore, a new Article R.351-5-1 vests jurisdiction in the Council of State to clarify directly the authority of the administrative court, when papers are served relating to a claim that is not within its administrative jurisdiction.
Law n°2015-991 dated 7 August 2015 relating to a new territorial organization for the country. The deputies and senators agreed on the uniform transfer of the entire inter-city transportation network to the regions and stated the terms and conditions for applying the new “transportation mobility” authority, the outlines of which were set out by Law n°2014-58 dated 27 January 2014 on modernization of public territorial administration and confirmation of cities.
Law n°2015-990 dated 6 August 2015 relating to growth, activity, and economic equality of opportunity. This law consists of 308 articles and applies to numerous economic sectors. It should be noted that it extends the authority of the Autorité de régulation des activités ferroviaires et routières (Authority for regulation of rail and road activities), frees the sector of inter-city bus transportation and strengthens access to data necessary to inform travelers. This law also strengthens control by the Autorité de la concurrence (Competition Authority) over concentrations or restructurings leading to an “economic powerhouse.” Finally, it authorizes privatization of Nice and Lyon airports.
Conseil d’Etat (Council of State) 9 July 2015, req. n°375542: The action by the board of directors of a professional football (soccer) league authorizing its Chairman to enter into a transaction with AS Monaco is null and void, where such transaction was for illegal purposes. The illegality results from the fact that the persons responsible for a public service (i.e., the LFP – “Ligue de Football Professionnel” – professional football league) may not agree, via a contract, to use the regulatory power conferred on them in a predetermined way.