issued by the Registrar of the Court

ECHR 314 (2016)

06.10.2016

The courts struck a balance between the applicants’ rights and

the general interest in protection of the French coastline
In today’s Chamber judgment1 in the case of Malfatto and Mieille v. France (application
no. 40886/06) the European Court of Human Rights held, unanimously, that there had been:
no violation of Article 1 of Protocol No. 1 (protection of property) of the European Convention on
Human Rights.
The case concerned some land around Anthénor cove (calanque) on the Mediterranean coast in the
département of Bouches-du-Rhône. It was designated as building land and in 1964 a permit was
issued for its subdivision into plots. Under the terms of a national planning directive of 25 August
1979 and the Coastal Areas Act of 3 January 1986, the land was made subject to an absolute
prohibition on construction, owing to the fact that it was located within 100 meters of the shoreline.
The Court found no basis on which to conclude that the decisions of the French courts had been
arbitrary or manifestly unreasonable, having regard in particular to the fact that the prohibition on
construction applied to the entire French coastline. The Court considered that the balance between
the applicants’ rights and the general interest of the community, which encompassed the legitimate
aim of the protection of coastal areas, had not been upset.

Principal facts
The first applicant, Mr Henri Malfatto, was a French national who was born in 1929 and lived in
Aix-en-Provence. He died in 2012. His sons, Mr Jean-Michel Malfatto and Mr Alain Malfatto, also
French nationals, were born in 1958 and 1964 respectively and live in Aix-en-Provence.
Mr Jean-Claude Mieille is a French national who was born in 1955 and lives in Cabries.
Henri Malfatto owned land (of approximately 63,000 sq. m) along the shoreline at a cove in the
municipality of Ensuès-la-Redonne. In a decision of 14 May 1964 the prefect of the département of
Bouches-du-Rhône gave him permission to subdivide the land into plots. In a further decision of 28
July 1970 the prefect authorised Mr Malfatto to sell individual plots before the construction work
had been completed. He gifted three plots to his sons by means of a deed of inter vivos division in
December 1978. In December 1979 he sold a further plot to Mr Mieille; the notarial deed indicated
that the plot was designated as building land. A fifth plot had been sold in March 1972 to M.T., who
built a house on the land and still lives there.
In a decision of 1 February 1982 the prefect published the land-use plan for the municipality, which
specified that land situated within the 100-metre coastal strip could not be built upon, in accordance
with the 1979 national planning directive.
In November 1984 the Marseilles Administrative Court allowed an application by Henri Malfatto for
judicial review and set aside the land-use plan. On 18 November 1988 the Conseil d’État dismissed
an appeal against that judgment by the Minister for Urban Planning and Housing. In the meantime,
the Coastal Areas Act for the development, protection and improvement of the coastline had

1. Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery,
any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges
considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final
judgment. If the referral request is refused, the Chamber judgment will become final on that day.
Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution.
Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution.
entered into force on 3 January 1986, prohibiting all new buildings within 100 metres of the
seashore. In January 1989 Henri Malfatto applied for planning permission to build a house, but his
application was refused by the mayor. His subsequent appeals to the Administrative Court and the
Conseil d’État were dismissed.
On 7 December 1995 the mayor of Ensuès-la-Redonne published the land-use plan for the
municipality, in which all the plots were classified as belonging to a natural area where construction
was prohibited in accordance with the Coastal Areas Act. The Administrative Court dismissed an
application by Henri Malfatto for judicial review of that decision.
In July 1998 and February 1999 the applicants submitted preliminary claims for compensation to the
prefect, alleging that their acquired rights had been infringed since the plots of land belonging to
them had been made subject to a prohibition on construction. In December 1998 and August 1999
they applied to the Administrative Court, requesting that the State be ordered to afford redress for
the infringement of their acquired rights stemming from the subdivision permit. In four judgments of
22 March 2001 the Administrative Court rejected their applications. The applicants appealed to the
Marseilles Administrative Court of Appeal, which found against them, holding in particular that the
prohibition in question was applicable nationwide to all land within 100 metres of the shoreline and
that the applicants had not established that the introduction of the prohibition had caused them to
bear an individual and excessive burden out of proportion with the general-interest grounds on
which it had been based.
The applicants appealed on points of law to the Conseil d’État, relying in particular on Article 1 of
Protocol No. 1 and on the Court’s case-law. On 27 June 2007 the Conseil d’État dismissed Mr
Mieille’s appeal, endorsing the finding by the Administrative Court of Appeal that he could not claim
to have borne an individual and excessive burden since the prohibition was applicable to all land
within 100 metres of the French shoreline. In the meantime, on 22 March 2006 the Conseil d’État
had declared the appeals by the members of the Malfatto family inadmissible, holding that none of
their arguments justified granting leave to appeal.

Complaints, procedure and composition of the Court

The applicants alleged that the refusal of their claims for compensation amounted to a violation of
Article 1 of Protocol No. 1 (protection of property). Relying on Article 6 § 1 (right to a fair hearing),
the members of the Malfatto family complained that the Conseil d’État had failed to comply with its
obligation to give reasons for its judgments and its duty of impartiality, and argued that the domestic
courts had committed a manifest error of assessment. Under Article 14 (prohibition of
discrimination) read in conjunction with Article 6 § 1 and Article 1 of Protocol No. 1, they contended
that they had been subjected to an unjustified difference in treatment.
The application was lodged with the European Court of Human Rights on 21 September 2006.
Judgment was given by a Chamber of seven judges, composed as follows:
Angelika Nußberger (Germany), President,
Khanlar Hajiyev (Azerbaijan),
Erik Møse (Norway),
André Potocki (France),
Yonko Grozev (Bulgaria),
Síofra O’Leary (Ireland),
Carlo Ranzoni (Liechtenstein),

and also Milan Blaško, Deputy Section Registrar.

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Decision of the Court
Article 1 of Protocol No. 1
The Court observed that the interference with the applicants’ right to the peaceful enjoyment of
their possessions had been part of a general policy on spatial planning and environmental
protection. It had already held (Depalle v. France [GC], 29 March 2010) that protection of the
seashore was a legitimate aim in the general interest. It had also often noted that regional planning
and environmental conservation policies, where the community’s general interest was pre-eminent,
conferred on the State a wide margin of appreciation. Accordingly, the State could be called upon to
intervene in the public domain and even to exclude the possibility of compensation in certain
situations involving control of the use of property.
The Court observed that Article L. 160-5 of the Planning Code, as interpreted by the Conseil d’Etat,
entitled owners to claim compensation in “exceptional cases” where they had to bear “an individual
and excessive burden out of proportion with the general-interest objective pursued”. The Court
considered that this system made it possible to balance the interests of owners and those of the
community. In the present case, the French courts had held that the damage sustained by the
applicants did not entitle them to compensation. The Court found no basis on which to conclude
that those decisions had been arbitrary or manifestly unreasonable, having regard in particular to
the fact that the prohibition on construction applied to the entire French coastline.
In the case of Henri Malfatto, the Court observed that the Administrative Court of Appeal had found
that although he had carried out preparation and servicing work on the land between 1965 and
1972, he had not taken any steps between 1972 and 1989 – when he had been denied planning
permission – to enforce the rights he had acquired as a result of the subdivision permit issued to him
in 1964. The Court therefore observed that Henri Malfatto had refrained from making use of his
property for many years. It further noted that during this period, the single plot that had been sold
to a third party in 1972 had been built on.
In the case of Jean-Michel and Alain Malfatto and Jean-Claude Mieille, the Court also found that it
had been reasonable for the domestic courts to conclude that they had not personally borne the
costs of the work and pointed out that a subdivision permit did not automatically entail a right to
build on the land concerned. The Court considered that the decrease in the value of the land could
not suffice to call those conclusions into question.
The Court thus concluded that the balance between the applicants’ rights and the general interest of
the community had not been upset and that there had therefore been no violation of Article 1 of
Protocol No. 1.

Article 14 in conjunction with Article 6 § 1 and Article 1 of Protocol No. 1

To the extent that the Court had not already examined these complaints under Article 1 of Protocol
No. 1, it found no appearance of a violation of the provisions relied on. It rejected these complaints
as being manifestly ill-founded.

The judgment is available only in French.

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Denis Lambert (tel: + 33 3 90 21 41 09)
Tracey Turner-Tretz (tel: + 33 3 88 41 35 30)
Inci Ertekin (tel: + 33 3 90 21 55 30)
George Stafford (tel: + 33 3 90 21 41 71)

The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member
States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.