- Conseil d’Etat (Contentieux) No.149722 152848 Case Montaignac
- 03 February 1999
- Translated by:
- J T Brown
- Professor B. S. Markesinis
Conseil d’Etat (Contentieux)
3 February 1999
Given that (i) pursuant to Article 24 of the Law of 29 December 1979 relating to advertising, sign-boards and temporary sign-boards(“préenseignes”), as drafted at the time of the facts of this case: “…When the existence of an advertisement, a sign-board or a temporary sign-board which contravenes the provisions of this law or any regulations made for its application has been reported, the mayor or the “préfet” shall immediately issue an order that either such advertisement sign or temporary sign shall be removed or that it be made to conform with such provisions and that, as the case may be, the premises be returned to their former state. This order shall be served upon the person who put up or caused to be put up or maintained after having been put on notice the illegal advertisement sign or temporary sign. If that person is not known, the order shall be served upon the person upon whose behalf such advertisement sign or temporary sign have been carried out”; and (ii) pursuant to Article 25,
“The order mentioned in Article 24 sets out the period given for the removal or the modification of the advertisements signs or temporary signs which have been put up and, as the case may be, the return of the premises to their former state. Upon the expiry of this period, whose commencement shall be the day upon which the order was served, the person so served shall be liable for a penalty (“astreinte”) of one hundred francs a day for each advertisementsign or temporary sign kept in place”;
Concerning the pleadings in favour of quashing the order dated 23 July 1991 made by the mayor of Saint-Jean-de-Vedas:
Given that by an order of 23 July 1991 the mayor of Saint-Jean-de-Vedas put M. Montaignac upon notice to remove an advertising installation set up upon municipal territory, upon the grounds that it was installed within 100 metres of another installation;
Given that (i) pursuant to paragraph five of Article I 5-3 of Municipal Regulation no. 27-91 of 13 February 1991 relating to advertising upon the municipal territory of Saint-Jean-de-Vedas: “several installations shall be permitted on the same cadastral plot and on the same side of public roads provided that they have the same form and are in line, with one every 100 metres or one every 150 metres for dihedrals or front-and back signs (“doublons”)”; and (ii) pursuant to the last paragraph of that same Article: “two installations shall be separated by at least 100 metres, 150 metres for front-and-back signsor dihedrals”;
Given that (i) it flows from these provisions that all advertising installations set up upon the municipal territory of Saint-Jean-de-Vedas must be at least 100 metres away from one another, whether or not such installations are set up on the same plot ; and (ii) thus, M. Montaignac, who does not dispute the fact that in this case the installation in question was set up less than 100 metres from another installation, but merely claims that the installations were set up on two different plots, has no grounds to argue that the mayor of Saint-Jean-de-Vedas was wrong in law when he maintained that the advertising installation in question had been set up in breach of the municipal regulation on advertising;
Given that (i) M. Montaignac does not criticise the time allowed by the order under attack to proceed to the removal of the board in question; (ii) the documents produced show that, when he ordered the removal of such board, the mayor limited himself to stating the breach of the provisions of the municipal regulation on advertising without any obligation to give any interpretation of the facts of the case; (iii) pursuant to the provisions of Article 24 of the Law of 29 December 1979 mentioned above he was obliged, upon becoming aware of such breach, to put the applicant upon notice to remove the board; and (iv) thus the grounds based upon the claim that he did not give M. Montaignac the possibility of making observations prior to making the order of 23 July 1991, and that such order had no sufficient grounds, are ineffective;
Given that it flows from the above that M. Roger Montaignac has no grounds for claiming that the Administrative Court of Montpellier was wrong, in the judgement of 22 April 1993, currently under attack, to reject his claim that, on the grounds of “ultra vires” (“excès de pouvoir”), the order of 23 July 1991 (by which the mayor of Saint-Jean-de-Vedas put him on notice to remove the installation set up on cadastral plot Section D 463)should be quashed;
Concerning the pleadings filed against the orders of 18 Novenber 1991 and 13 November 1992:
Given that (i) M. Montaignac argues only that these orders fixing the penalties envisaged in the order of 23 July 1991 must be quashed because the latter has been quashed; (ii) thus it flows from the rejection of the pleadings of M. Montaignac against that order that the applicant has no grounds for complaining that, by its judgements under attack of 22 April 1193 and 18 August 1993, the Administrative Court of Montpellier rejected his claims that the orders of 18 November 1991 and 13 November 1992 which fixed the penalties envisaged by the order of 23 July 1991be quashed;
Concerning the pleadings claiming the application of the provisions of Article 75-I of the Law of 10 July 1991;
Given that (i) the provisions of Article 75-I of the Law of 10 July 1991 make it impossible that the State, which is not, in this case, the losing party, be found liable to pay to M. Montaignac the amounts he claims by way of costs incurred by him which are not included in legal costs; and (ii) it is appropriate, on the other hand, in the circumstances of this case, to apply those provisions and to order M. Montaignac to pay to the State an amount of F4,000 under the same head;
Article 1: Petitions nos. 149 722 and 152 848 by M. Montaignac are rejected.
Article 2: M. Montaignac shall pay to the State the sum of F4,000 pursuant to Article 75-I of the Law of 10 July 1991;
Article 3: …….
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