Public domain in French public law

Prior to 2006, case law applied the criterion of special development, and as such, property that had been classified as public domain property prior to this date did not lose this status, as the Conseil d'Etat ruled that the criterion of essential development was not retroactive.

The concept of the public domain stems both from doctrinal proposals (such as the work of Proudhon) and from case law protecting its use during the nineteenth century.

This is the case in particular for "land reserves and real estate used for offices, excluding those forming an indivisible whole with real estate belonging to the public domain",[6] as well as rural roads and "woods and forests belonging to public bodies covered by the forestry regime".

Until 1973, to set the limit of the public maritime domain on the Mediterranean coast, case law even referred to Roman law and to an ordinance issued by Justinian, which set the winter high water as the reference point, rather than the March high water.

The clarification regarding the absence of exceptional disturbances makes it possible to avoid a sudden increase in the public domain during a storm or temporary flooding.

The law of 28 November 1963 extended this maritime public domain to the soil and subsoil of the territorial sea and to alluvial deposits ("lais et relais de la mer ").

[10] Finally, in the French overseas departments, the public maritime domain also includes the area known as the "cinquante pas géométriques" along the limit of the highest tides.

The boundaries of watercourses are determined on the basis of the notion of bank (defined in article 558 of the Civil Code), extending to the notion of ditches (meadows in counterpart to regularly flooded banks) and boires (natural water reserves for animals).

The Conseil d'Etat (decision of 8 March 1993, Commune des Molières) has not established the idea of an aerial public domain.

However, the owner of the land may sell or be expropriated part of the subsoil of his property, for example to build a railway or road tunnel.

Because it is used for a public purpose, the public domain cannot be expropriated, can only with difficulty be subject to easements, and can now be the subject of a business (Pinel law of 18 June 2014) but under certain very restrictive conditions; private occupation agreements or authorisations (for an individual or a private legal entity) are always precarious.

These questions are the result of different approaches to the concept of the public domain: once an area to be protected against royal squandering, today it is seen as a resource to be exploited.

In contrast to "désaffectation," or disuse which refers to a factual situation, "déclassement" or reclassificaiton, implies an explicit decision by the authority responsible for public property.

by decree, order or decision, following a formal procedure which, in some cases, includes a public enquiry[31] or the need to obtain the agreement of a third party authority.