Council of State decision
N° 492640
ECLI:FR:CECHS:2025:492640.20250225
Unpublished in the Recueil Lebon
6th Chamber
Ms Isabelle de Silva, President
Mr Antoine Berger, rapporteur
Mr Nicolas Agnoux, public rapporteur
Reading of Tuesday 25 February 2025
FRENCH REPUBLIC
ON BEHALF OF THE FRENCH PEOPLE
Having regard to the following proceedings:
By a request, registered on 15 March 2024 with the Secretariat for Litigation of the Council of State, the Fédération nationale de l'immobilier (FNAIM) is asking the Council of State:
1°) to annul as ultra vires the implied decision by which the Prime Minister rejected its request, submitted on 14 November 2023 and received on the following 17 November, seeking the enactment and publication of the implementing decree provided for in the first paragraph of Article 4 of Law No 70-9 of 2 January 1970 regulating the conditions under which activities relating to certain transactions involving immovable property and goodwill may be carried out, in the version resulting from 5° of the I of Article 24 of Law No 2014-366 of 24 March 2014 on access to housing and renovated town planning ;
2°) to enjoin the Prime Minister to issue the decree referred to in 1°, subject to a penalty of 50 euros per day of delay from the date of notification of the decision to be made until the date on which the decision is enforced;
3°) order the State to pay the sum of 5,000 euros pursuant to Article L. 761-1 of the Code of Administrative Justice.
It maintains that the refusal of the Prime Minister is vitiated by :
- an error of law with regard to the regulatory authority's obligation to issue the decree provided for by the Law of 2 January 1970, the application of which has been rendered impossible ;
- an error of assessment with regard to the absence of circumstances justifying the ten-year delay by the regulatory authority and the absence of any conflict between the law and a higher standard.
The request was communicated to the Prime Minister, the Minister for the Economy, Finance and Industry and the Minister for the Ecological Transition, Energy, Climate and Risk Prevention, who did not produce a brief.
Having regard to the other documents in the file;
Having regard to
- Law no. 70-9 of 2 January 1970;
- Law no. 2014-366 of 24 March 2014;
- Decree no. 72-678 of 20 July 1972;
- Decree no. 2015-1090 of 28 August 2015;
- the Code of Administrative Justice;
Having heard in open session :
- the report by Mr Antoine Berger, Auditor,
- the conclusions of Mr Nicolas Agnoux, public rapporteur;
SCP Lyon-Caen, Thiriez, avocat de la Fédération nationale de l'immobilier (FNAIM), was given the floor after the conclusions;
Whereas
1. Article 3 of the Act of 2 January 1970 regulating the conditions for carrying on activities relating to certain transactions involving immovable property and businesses requires persons who habitually engage in or assist in transactions involving the property of others and relating to the purchase, sale, search, exchange, letting or subletting of immovable property or businesses to hold a professional licence. To do so, these persons must, in particular, prove their professional competence. Article 4 thereof, resulting from Article 24 of the Act of 24 March 2014 on access to housing and renovated urban planning, provides that: "Any person authorised by a holder of a professional licence to negotiate, mediate or enter into commitments on behalf of the latter must provide proof of professional competence, his or her status and the extent of his or her powers under the conditions laid down by decree in the Conseil d'Etat. The provisions of Chapter IV of Title III of Book I of the Commercial Code shall apply to the persons referred to in the first paragraph where they are not salaried employees. (...) / Persons who, on the date of entry into force of the Conseil d'Etat decree referred to in the first paragraph of this article, have the authorisation referred to in the first paragraph are deemed to have the professional competence referred to in this article.
2. The Fédération nationale de l'immobilier (FNAIM) seeks annulment on the grounds of ultra vires of the implied decision by which the Prime Minister rejected its request, submitted on 14 November 2023 and received on the following 17 November, for the enactment and publication of the implementing decree provided for in the first paragraph of the aforementioned Article 4 of the Law of 2 January 1970.
On the legality of the contested decision :
3. Pursuant to Article 21 of the Constitution, the Prime Minister 'ensures the execution of the laws' and 'exercises regulatory power' subject to the competence conferred on the President of the Republic for decrees in the Council of Ministers by Article 13 of the Constitution. The exercise of regulatory power entails not only the right but also the obligation to take, within a reasonable time, the measures that the application of the law necessarily entails, except where compliance with France's international commitments would prevent this.
4. In the first place, the provisions of Article 4 of the aforementioned Law of 2 January 1970, which require any person authorised by the holder of a professional licence to prove his professional competence, his status and the extent of his powers under the conditions laid down by decree in the Conseil d'Etat, do not leave it to the discretion of the Prime Minister to issue the decree they provide for. While the conditions under which these negotiating assistants must prove their status and the extent of their powers are set out in Articles 9 and 10 of the aforementioned Decree of 20 July 1972, there is no provision defining the conditions under which the persons concerned must prove their professional competence. While the decree of 28 August 2015 establishing the code of ethics for the activities of transaction and management of real estate and business assets, which, incidentally, has not been passed the Conseil d'Etat heard, requires holders of the professional card, in article 5 of its appendix, to ensure that their employees authorised to negotiate, to negotiate, act as intermediary or enter into commitments on their behalf "fulfil all the conditions laid down by the law and regulations and have all the skills and qualifications necessary for the proper performance of their duties", nor does it specify, in any event, the nature and content of these skills and qualifications. It follows from the foregoing that the application of the provisions of Article 4 of the Law of 2 January 1970 is therefore impossible in the absence of the decree which they provide for.
5. Secondly, at the date of the present decision, more than ten years have elapsed since the enactment of the Law of 24 March 2014 introducing the obligation, for authorised collaborators, to provide evidence of professional competence. In addition, in the absence of a statement of defence produced by the administration, it does not appear from the documents in the file that the drafting of the decree would have come up against legal and technical difficulties or that it would have been made impossible as a result of France's international commitments. The delay in adopting the regulatory provisions necessary for the application of the first paragraph of Article 4 of the Law of 2 January 1970 thus exceeds the reasonable period of time allowed to the regulatory authority to issue the decree provided for in that Article.
6. It follows from the foregoing that the FNAIM is entitled to seek annulment of the decision by which the Prime Minister refused to issue the decree provided for in the first paragraph of Article 4 of the Law of 2 January 1970.
The claim for an injunction :
7. Under the terms of article L. 911-1 of the Code of Administrative Justice: "When its decision necessarily implies that a legal person governed by public law or a body governed by private law entrusted with the management of a public service must take a measure of execution in a given direction, the court, seised of submissions to this effect, prescribes, by the same decision, this measure accompanied, where appropriate, by a time limit for execution. / The court may also prescribe this measure of its own motion".
8. The annulment of the refusal to issue the decree provided for in the first paragraph of Article 4 of the Law of 2 January 1970 necessarily implies the issue of that decree. The Prime Minister should be enjoined to issue the decree within six months of notification of this decision, without there being any need, in the circumstances of the case, to impose a penalty payment on the State.
As to the claims submitted under Article L. 761-1 of the Code of Administrative Justice :
9. In the circumstances of the case, it is appropriate to order the State to pay the FNAIM the sum of 3,000 euros under the provisions of Article L. 761-1 of the Code of Administrative Justice.
D E C I D E :
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Article 1: The implicit decision by which the Prime Minister refused to issue the Conseil d'Etat decree provided for by the first paragraph of article 4 of law no. 70-9 of 2 January 1970 is annulled.
Article 2: The Prime Minister is enjoined to issue the decree referred to in Article 1 within six months of notification of this decision.
Article 3: The State will pay the Fédération nationale de l'immobilier (FNAIM) the sum of 3,000 euros under article L. 761-1 of the Code of Administrative Justice.
Article 4: This decision will be notified to the Fédération nationale de l'immobilier (FNAIM), the Prime Minister, the Minister for the Economy, Finance and Industrial and Digital Sovereignty and the Minister for Ecological Transition, Biodiversity, Forestry, the Sea and Fisheries.
A copy will be sent to the Studies, Forecasting and Cooperation Section.
Deliberated at the end of the sitting of 23 January 2025, with Isabelle de Silva, President of the Chamber, presiding; Cyril Roger-Lacan, Conseiller d'Etat and Antoine Berger, Auditor-Rapporteur.
Delivered on 25 February 2025.
The President :
Signed: Isabelle de Silva
The rapporteur :
Signed: Mr Antoine Berger
The Secretary :
Signed: Ms Magalie Café
