A.J.D.A. 1999, 127
Case SARL du Parc d’activité de Blotzheim et SCI Haselaecker

18 December 1998

[The corporate owner of a leisure park in Blotzheim seeks the annulment of a decree publishing an exchange of notes between the French and Swiss Governments regarding the extension of the Basle/Mulhouse airport.]

Given that the Treaty between France and Switzerland of 4 July 1949 regarding the construction and operation of the airport at Blotzheim provides in its article 1 that “The Federal Council of Switzerland and the French Government agree to build and manage together a commercial airport…under the name of the Airport of Bâle/Mulhouse, which will be constituted as a public body, regulated by its statutes, the financial undertakings on the attached list, and the law of France except to the extent that it is displaced by this treaty and its annexes.” By article 2(2) of the Treaty “The installations already constructed are put by the French Government at the disposition of the Airport. The French Government agrees to acquire, to place in the public domain and to put at the disposition of the Airport any land required by the Airport, its installations and its road and rail links.” By article 3 the Airport as a public body is managed by “an administrative council”, and article 19 provides that “if the administrative council by a two-thirds majority of its active members requests a revision of the statutes or the list of financial undertakings such revision may be effected by an agreement between the two governments.” Article 3 of the list of financial undertakings annexed to the Treaty calls for the acquisition by the French government of land required for the exploitation of the airport, and article 9 provides that “If the works and installations described and estimated herein prove inadequate, the provision and management of any supplementary works or installations will be the subject of a protocol to this list of financial undertakings arrived at pursuant to article 19 of the Treaty; given that in an exchange of Notes, signed at Berne on 12 and 29 February 1996, the French Government and the Swiss Federal Council endorsed the proposal for the extension of the airport requested on 25 January 1996 by the administrative council pursuant to article 19 of the Treaty and article 9 of the list of financial undertakings annexed thereto, and that the agreement envisages the extension of the area of the airport from 536 to a maximum of 850 hectares so as to permit the construction of a further runway, the funds required for this purpose to be raised by the public body, subject to article 2(2) of the Treaty;

Given that the company which runs the leisure park at Blotzheim seeks the annulment, as being ultra vires, of the presidential decree of 13 May 1996 publishing this agreement under article 55 of the Constitution of 4 October 1958

On article 53 of the Constitution:

Given that under article 53 of the Constitution “The following may be ratified and approved only by statute: peace treaties, commercial treaties, treaties or agreements regarding international organisations, treaties involving state finances, treaties which modify legislation, treaties affecting the status of individuals, treaties which involve the cession, exchange or acquisition of territory, …”; given that according to article 55 of the Constitution “Treaties and international agreements properly ratified or approved are, from the time of publication, superior in authority to legislation, provided that in each case it has been applied by the other party thereto.” Given that it follows from these provisions taken together that treaties falling under article 53 of the Constitution cannot be regarded as properly ratified or approved under article 55 unless they have been authorised by statute; that in view of its effect in domestic law the publication of a treaty or agreement cannot be legally valid unless its ratification and approval has been authorised by legislation; given that if an argument is addressed to an administrative judge that a treaty or agreement has been published in breach of article 53 of the Constitution it is for him to determine its validity, and that it follows that contrary to the pleadings of the Minister for Foreign Affairs, the argument of the companies attacking the decree in question on the ground that the agreement it records had not been authorised by law is a good one;

Given that under the agreement signed in Berne on 12 and 29 February 1996, referring to article 2(2) of the Franco-Swiss Treaty of 4 July 1949 and article 3 of the list of financial undertakings already mentioned, the French Government is to acqure the land required for the projected extension of the airport, and that the companies are correct to assert that this involves state expenditure in the sense of article 53 of the Constitution;
But given that the possibility of an extension of the airport was envisaged by the French Government and the Swiss Federal Council from the very beginning, as emerges from the terms of article 19 of the Treaty of 4 July 1949 and article 9 of the list of financial undertakings annexed thereto; that by Law no. 50-889 of 1 August 1950 Parliament, relying on article 27 of the Constitution of 27 October 1946, repeated in article 53 of the Constitution of 4 October 1958, regarding treaties involving state expenditure, authorised the President of the Republic to ratify the Treaty, including its article 19 as well as its annexes, including article 9 of the list of financial undertakings; that in view of the purpose of these articles Parliament must be taken by this law to have authorised the cost of creating and operating the works and installations required to supplement the existing installations if shown to be inadequate;

On the other grounds:
Given that while the applicant firm maintains that the agreement of 12 and 29 February 1996 went beyond the mere creation of a protocol to the list of financial undertakings annexed to the Treaty of 4 July 1949 and that in consequence it could not be made under the simplified procedure laid down in article 19 of that Treaty, it is not for the administrative judge in contentious proceedings to discuss the procedure for concluding treaties and international agreements, that being a matter intimately connected with the conduct of diplomatic affairs;

Given that it is also not for the Conseil d’État seised of a contentious matter to question the decision of the French Government and the Swiss Federal Council regarding whether or not, as required by article 9 of the list of financial undertakings annexed to the Treaty, the existing works fully answer the original description and estimate of what was required, or whether any extension of the airport of Basle-Mulhouse was needed;

Given, finally, that while the applicant firms criticise the decree under attack for nonconformity with the stipulations of the Treaty of 4 July 1949, it is not for the Conseil d’État in a contentious case to inquire whether an international undertaking is or is not valid in relation to other international undertakings;

Given that it results from the above that the applicants cannot demand that the decree in question be annulled;

DECIDES
1. That the request of the company running the leisure park of Blotzheim is dismissed…

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