Privatisation of public domain
Decommissioning ceases the use of government-owned property, local communities and public institutions or other public entities. Decommissioning brings the good out of the public domain.
Decision to transfer from public to private
Although classification is not an essential condition for a property to be in public domain (mere assignment to a particular use may be enough), a specific decision to transfer from public to private use is always required if property is to be taken out of the public domain.
Except where special rules apply (for example, in the event of disagreement between the municipal council and representatives of a religious community, a decree is required to take a church out of the public domain and make it private), the authority which is competent for classifying a property is competent for its declassification. The decommissioning procedure obeys the principle of parallelism of forms in that both the form of the decommissioning act and the determination of the competent authority to take it depend on the procedure followed for the classification of an asset In the public domain.
Decision of decommissioning
A decision of decommissioning and a legal instrument declassifying the property from public to private domain are essential prerequisites to making the property transferrable. Incidentally, declassification without decommissioning does not take the property out of public domain.
These principles are now codified in the French General Code of Public Property. This code stipulates that property which is owned by a public entity but no longer allocated to a public service or direct use by the public will no longer be deemed in the public domain as of the issue of the administrative deed recording its transfer to the private domain.
Law 2016-1961 of 9 December 2016 (known as the "Sapin 2 Law") extends to local authorities, groups of local authorities and local public institutions the early downgrading procedure for concluding the sale of a public good That its disaffection is deferred.
The notary will therefore check that the declassification procedure has been performed following the downgrading of the property. The notary will contact the local authorities for proof and record the instrument with total certainty.