Despite the minister's announcement to "correct" the by-law and the zoning of the PPRN as elaborated during the revision of the document, the elected officials maintained on Monday their request to "withdraw from the application in advance" of the PPRN. In administrative and legal jargon, we talk about repeal. Is this possible?
• The context
As a reminder, the early application of the revised PPRN entered into force on August 6, following the publication of a prefectural order; this desire to apply the new regulation in advance had been displayed from the start by the State.
• Repeal is not possible…
The withdrawal of the prefectural decree appears at first sight impossible. Indeed, according to the code of relations between the public and the administration (CRPA), the administration cannot repeal a regulatory act or “decision creating rights”, on its own initiative or at the request of a third party only in a period of four months after its application and only if the said decision is illegal.
In the case of the disputed prefectural decree, it is not illegal (all stages of the procedure have been respected) and was taken more than four months ago, precisely four months and twelve days to date).
• Unless….
The CRPA also specifies that "by way of derogation", the administration may "without condition of delay repeal a decision creating rights the maintenance of which is subject to a condition which is no longer fulfilled".
The question is then to know if there exists “a condition” which would no longer be fulfilled and which would justify the non-maintenance of the application in advance.
• What condition motivated the early application?
The condition is cited in article 1 of the prefectural decree: “the choice of resorting to the procedure for early application of the PPRN project is justified by the urgency of the situation assessed in view of the annual seasonal nature of cyclonic phenomena and in particular the risk generated by marine submersion and the mechanical shock of the waves ”.
In other words, the State decided to apply the new PPRN in advance because it considered that the risks of marine submersion during the hurricane season were great and that it was "urgent" to act.
The hurricane season having ended since November 30, it is now a question of seeing whether, from a legal point of view, the "urgency of the situation" cited in the order is still valid and constitutes a condition for maintaining or not of the decree.
(soualigapost.com)
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